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16 Envtl. Pol'y & L. 1 (1986)

handle is hein.journals/envpola16 and id is 1 raw text is: 



lALt                               TO THE EDITOR
                                  (Re: Hainburg Power Station - Article in
                                  Environmental Policy & Law, Vol. 15, 1985)

   The OA  U  Council of Ministers, at its meeting from 28.2. to 4.3., agreed
 to amend  the African Convention,  signed  in 1968 by the Heads  of State of
 all the independent African countries. This will ensure that this Convention
 - long  recognized as being the most  advanced  regional convention  -  will
 now, together  with the Asean  Convention,  remain  the most  progressive.
   We  understand  that UNEP   has recently completed an internal evaluation
of its programme   activities, listing achievements and omissions and reflec-
ting on its role in the future. In the light of the task of the World Commis-
sion  on Environment and Development, to make proposals for future
perspectives  -  also in the institutional sphere -  it is of especial interest
that  UNEP   has  begun  a critical view of its activities. The WCED,  in its
mandate for change has stated that it will, inter alia, formulate in-
novative  concrete  action proposals  to deal with the critical issues of en-
vironment   and  development,   in co-operation with  the relevant organiza-
tions of the UN  system, including UNEP.   It could be that UNEP   wishes to
forestall any possible action  to alter its structure by seizing the initiative
itself, in proposing fundamental   changes to its terms of reference.
   We  expect, therefore, that the next UNEP   Governing   Council will have
before  it a proposal for some  changes  in the structure of its Programme
sphere  before the appearance  of the final report of the WCED,   to be sub-
mitted  to the United Nations  General  Assembly   in 1987.
   When   it was established in 1972, UNEP's  role was seen to be a catalytic
one.  There has been criticism in this Journal and elsewhere, now apparent-
ly accepted  by  UNEP,   that no  real effort has been  made  in the past to
assess the catalytic effect UNEP has had  on others. UNEP   has ever increas-
ingly been regarded  as afunding  body rather than a UN  Programme. It   has
been slow  in taking initiatives with regard to the development and carrying-
out  of projects and has mostly  left the initiative to others.
   Furthermore,  readers  will remember  that in our editorial following last
year's  Governing   Council,  we  expressed   our  disappointment   that the
documents   and  proceedings  of  the Governing  Council  and  the extensive
reports prepared  for  other meetings  do  not receive the recognition  they
deserve, nor are they widely available. We  have been  informed  that UNEP
has  now   also  recognized  this shortcoming   and   intends  to undertake
measures   to improve public  awareness.
   But if UNEP   really does intend -  or feels compelled -  to grasp the in-
itiative to draw up project objectives and initiate proposals for action it is
difficult to see how this willfit into its classical role, as it will entail a drift-
ing away from   the catalytic function. Perhaps it is time for at least a partial
change  -  as we are now  in 1986 and no longer in 1972 -  and  have learned
since  then that  the other  components   in  the UN  family   have  not co-
operated  so  intensively in the environment   field as the  drafters of the
resolution had  expected.
                                                              24 February 1986

Dear Sirs,
   In Environmental Policy and Law 15
 (1985) there is an article by H. Soell and F.
 Dirnberger dealing with the ruling by the
 Austrian Administrative Court of 2 January
 1985 regarding the Hainburg Case. It seems
 necessary to make some annotations so that
 the reader may have all the facts:
   1. In the authorization procedure it is
 possible to deal first with general aspects
 leading to a general authorization, and to
 deal afterwards with all details necessary,
 leading to an amount of detail authoriza-
 tions. Both the Administrative Court and
 the Constitutional Court have admitted this
 as correct.
 2. The plaintiff's estates are far away from
 that area, where the approved opening up of
 the construction site was to take place.
 3.  Nevertheless, the Administrative Court
 felt, that the cleaning of the area for the con-
 struction site could have some influence on
 the ground water below the plaintiff's estate
 (this to the great astonishment of experts),
 and therefore granted suspensory effect to
 the plaintiff's application.
 4.  It is not in accordance with the regular
 jurisdiction of the Administrative Court and
 the Constitutional Court, that all detail
 authorizations have to be completed before
 starting on a project.
 5. The DoKW  AG  was entitled to start the
 opening of the construction site, because of
 given general authorization, specific detail
 authorization and arrangement with the
 owner of this estate. Since the plaintiff's
 estates were not influenced, it was neither
 necessary nor possible for the Bundes-
 ministerium foir Land- und Forstwirtschaft
 to deal with them, especially issuing an
 authorization under Art. 122(3) WRG 1959.
 6.  From this point of view there may be
 doubts if the ruling of the Administrative
 Court of 2 January 1985 was correct. There
 is no doubt about its positive effects in bring-
 ing peace to the quarrelling parts. There is
 good hope that the definite decision of the
 Administrative Court will bring back light
 into this affair.
 7. An eminent question has been answered
 in the meantime by the decision of the Con-
 stitutional Court of 5 October 1985 rejecting
 an application of the same plaintiff. It is
 clear now, that an infringement of the plain-
 tiff's constitutional rights has not taken
 place and that the legal instrument of
 designating a hydraulic engineering project
 as one of high priority (under Art. 100 (2)
 WRG  1959) is correct from the constitu-
 tional point of view.
(Continued on page 27)



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