McGill School of Environment: Environmental Research Project 2002 (ENVR401)

Improving the Commission for Environmental Cooperation's Citizen Submission Procedure:

Recommendations Based on Human Rights Complaint Mechanisms







At the request of the Submissions on Enforcement Matters Unit (SEM) of the North American Commission on Environmental Cooperation (CEC), this project looked at the following two questions to address the client's interest in obtaining information pertaining to the degree to which reporting procedures based on international agreements can successfully compel States to follow the provisions of those agreements. The first question is: "Are there ways in which collecting and publishing information under international agreements helps compel national governments to comply with the obligations set out in such agreements?" The second question follows from this. "In light of any major differences between the NAAEC citizen submission process and comparable reporting mechanisms used by other international bodies, are specific changes to any elements of the NAAEC process likely to improve environmental law enforcement in any of the NAFTA member countries?"

A study of the effectiveness of citizen reporting mechanisms and the elements that influence their effectiveness is of importance given the structure of international law. International law has a horizontal structure based on reciprocity and consensus rather than on command, obedience and enforcement. Furthermore, individuals, who are often the most influenced by the decisions of States, are excluded from the process. Citizen reporting mechanisms provide an avenue for individuals to state their grievances and become involved in the system, as well as a means to compel States to comply with their international obligations.

Of the criteria extracted from the doctrinal commentary and the interviews those which were found to be most pertinent to the CEC are as follows: lack of legally binding decisions; publicity / confidentiality; problems with admissibility, investigative power, follow-up comments and views; ambiguity of the language in the convention / problems with the convention itself; and political nature. Based on the evidence from the UN experience and the interviews, as well as the commentary on the CEC itself, we recommended that the CEC address the concerns related to these criteria in order to increase their effectiveness while at the same time recognizing that some changes are beyond the current mandate of the CEC. As such, we emphasized that the CEC should attempt to increase the amount of publicity aimed at the submission procedure and factual records produced. The beneficial ramifications of this step alone were found to be numerous and acting to increase publicity is a relatively feasible goal. In addition, we suggested that the CEC take steps towards including recommendations in the factual records and making such recommendations legally binding. This has been shown to be an important factor in affecting the effectiveness of such procedures, but may not be feasible for the CEC as it was found to require direct changes to the NAAEC document. Furthermore, the CEC was advised to maintain its investigative powers, which were depicted as enhancing the effectiveness of the CEC procedure. We also recommended that the CEC review the admissibility criteria associated with the procedure and attempt to interpret them more liberally. This would not require changes to the NAAEC document but may hinge on the level of resources allocated to the CEC. Nonetheless, it was portrayed as a feasible option. The final recommendation involved lessening the degree to which government representatives in the member countries are able to influence the outcome of the procedure. This, however, may not be easily accomplished since the political nature of the process was shown to be a central component of the NAAEC structure.



© 2002 McGill School of Environment
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