Public participation legislation
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This article gives a brief overview of the main conventions and international legislation concerning public participation. This overview is presented in chronological order, therefore it also presents an historical perspective of public participation. The introduction also gives an historical overview of the period before the 1992 Rio convention.
Before the Rio Convention
When learning about public participation in an environmental context it is easy to assume that it is an issue of only the past decades. Although there is a recent increase in interest in public participation, countries like The Netherlands, Germany, Denmark and Sweden, have had provisions concerning public participation and the freedom of information in their legal systems since before the Middle Ages. These countries “have continually faced the eternal struggle against the threats of the sea” and are well-known for dike-construction, polderization and the reclamation of land. These measures have been a necessity for living in these areas for centuries. Managing such activities calls for public involvement and the oldest regulations known are the Rüstinger Rules of Law (1100 A.D), which facilitated such participation. Democracy and public participation are closely connected and democratic nations like the US have included elements for it centuries ago. The right to petition, for example, has been part of the first Amendment of the US constitution since 1791.
Even in contemporary society, there are still relatively few binding provisions on access to information and public participation in plans and projects dealing with environmental matters. Most legislation is “soft law” which means that the nation state is not obliged to abide by this law and that they can set their own provisions. The handbook Human Rights in Natural Resources (Zillman, 2002)  provides a good overview of the sources of international law concerning public participation in environmental matters. After World War II, public participation began to gain some international ground; the Universal Declaration of Human Rights included several provisions on public participation. Ideally, people should have the right and the opportunity to interfere in all administrative processes and that they have a full right of standing in procedures under civil law. “Public Participation laws serve to inject `new players'-citizens, NGOs, indigenous peoples' interests, local communities, etc.-and therefore new challenges into one or more stages of the developmental decision-making that were previously the province only of the project developer, landowner, financier, and government officialdom.”
Before 1970, there was very little international law concerning the environment and this was the case mostly because of “the Seventeenth-Century principle of the sovereignty of nation-states, and its corollary, that states have exclusive sovereignty in particular over their natural resources”, meaning that states were solely responsible for their own environment. In the 1960's, global attitudes started to change, even though Principle 21 of the 1972 [Declaration of the United Nations Conference on the Human Environment|Stockholm Declaration] still declares that states have sovereignty over their own natural resources when in agreement with the Charter of the United Nations. Around this time, in the 1970's it started to become more evident that environmental exploitation of one's own state does not just stay within boundaries and also affects other states. Therefore, another provision in the Stockholm Declaration defines that states also have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.
The 1992 Rio Declaration on Environment and Development
The United Nations Conference on Environment and Development in Rio de Janeiro, also called the Rio Earth Summit was a major step towards public participation as a human right and therefore a major step towards the Århus Convention. Principle 10 of the declaration deals with public participation and states that “environmental issues are best handled with participation of all concerned citizens, at the relevant level”. The Rio Declaration then emphasizes the important role of states in facilitating public participation by taking care of adequate and effective access to information. Principle 20 deals with women's participation, Principle 21 deals with youth participation, Principle 22 promotes the participation of “indigenous people, their communities and other local communities” and Principle 23 calls for the protection of “the environment and natural resources of people under oppression”. By including all these different groups, the Rio Declaration sets the stage for a common vision on public participation in which everyone is allowed to participate. Declarations are, like “principles”, and “agendas” sources of non-binding or “soft” law.
The Rio Declaration adopted Agenda 21 which sums up what the important points are on which the  (United Nations Environment Programme) should concentrate. These issues are for example, “the further development of international law” (of course also including participation as a human right) and the promotion of sustainable development. Agenda 21 calls for more efficiency in the implementation of international environmental law.
The EU Directive 90/313 of 7 June 1990 on the freedom of access to information on the environment is one of the first binding pieces of European legislation that had to do with public participation. This is however not included in the General Fundamental Rights Framework of the European Union and only concerns “information on the environment held by public authorities” so anything that does not concern the environment is not included. The freedom of access to information has to do with creating “awareness”, a level of public participation which will be discussed in chapter 4. This directive is now amended by Directive 2003/4/EC which also constitutes the first pillar of the the Århus Convention.
After the Rio Earth Summit
Pring and Noé mention some of the first provisions on public participation such as the Environmental Impact Assessment (EIA) laws, as a tool for public participation. These laws, that have their origin in the United States, are there to guarantee that the impact on the environment of decisions is clear before the decisions are made. In this way, the EIA laws combine development planning with environmental policy and also public participation. There is not a direct provision on public participation but because the impact on the environment needs to be known, consultation and access to information is obviously essential. Since such an interactive process is necessary to guarantee the success of EIA laws, public participation plays a role in almost all “EIA schemes” and that is why these EIA laws are worth mentioning. It was not until 1985, with the EC Directive on Environmental Impact Assessment, that international law really started to require EIAs, since directives are a form of “hard” law. Since EIAs are still required today and seem to be implemented throughout in Europe, they are an important drive behind public participation.
With the emergence of the concept of sustainable development in the 1970's a new era for public participation came about. Especially in the mid-1980's, after the Chernobyl disaster occurred, public concern for environmental issues increased tremendously. The report Our Common Future, by the Brundtland Commission played a role of great significance with its new approach towards environmental problems, highlighting sustainable development. The Rio Earth Summit in 1992 with Agenda 21 resulted in a plan of action for sustainable development which also included clauses on public participation.
A major recent development in the field of public participation in environmental issues in the EU is the Århus Convention or the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Kofi A. Annan, then Secretary-General of the United Nations said in reaction to the Århus Convention:
"Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration, which stresses the need for citizen's participation in environmental issues and for access to information on the environment held by public authorities. As such it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations."
Pring and Noé  call this Convention the “crucible” of international law on public participation. This is the first piece of European legislation that combines environmental rights and human rights and it is also the first document completely about public participation in environmental matters. The Convention is based on the premise that greater public awareness of and involvement in environmental matters will improve environmental protection. It is designed to help protect the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. The idea of the Århus Convention is that greater public awareness and public participation in environmental matters will help to ensure the successful application of environmental law. The Århus Convention has three pillars. All EU member states are party to the Convention and Council Decision 2005/370/EC approves the Convention as a whole.
The Århus Convention was adopted on the 25th of June 1998 in the Danish city of Århus at the fourth Ministerial Conference in the “Environment for Europe” process. It entered into force in October, 2001 and the process of ratification still continues. The Convention is also open to accession for non-ECE (East-Central European) countries and therefore countries like Kazakhstan and the Republic of Moldova have ratified it. This is a big step in these countries towards more democracy and a better environment.
The 3 pillars of the Århus Convention
See also the Aarhus convention
The Access to Information pillar has a passive and an active aspect. The passive or reactive aspect deals with “the obligation on public authorities to respond to public requests for information” so this is basically the right of the public to information they want on environmental issues. The active aspect is mainly about the right to accurate information and therefore the obligation of providing accurate environmental information by for example “collection, updating, public dissemination” etc. One important definition relating to this pillar is the one on “environmental information” which is defined by the UNECE to include the following: “a non-exhaustive list of elements of the environment (air, water, soil etc.); factors, activities or measures affecting those elements; and human health and safety, conditions of life, cultural sites and built structures, to the extent that these are or may be affected by the aforementioned elements, factors, activities or measures”. There are some exemptions relating to access to environmental information and they usually involve matters like national defence, public security, justice and personal privacy. Before they are imposed, these exemptions are reviewed very well and often face many restrictions. The Convention gives people the right to public participation by setting some minimum participation standards in environmental decision-making. These requirements are similar to the ones for an Environmental Impact Assessment. The public participation requirements are:
- The “public concerned” should be notified timely and effectively
- Time should allow for public participation
- Acquiring information should not cost the public any money
- The decision-makers should take into account the public's opinion
- The decision should be made public timely, with full text and reasons to back it up
Access to Justice is the pillar that guarantees the right to justice in the following contexts: “review procedures with respect to information requests, review procedures with respect to specific (project-type) decisions which are subject to public participation requirements and challenges to breaches of environmental law in general”. This pillar supports the other two pillars and “also points the way to empowering citizens and NGOs to assist in the enforcement of the law”. Besides guaranteeing the right to justice in those three contexts, the pillar also requires that all of the procedures in the three contexts are carried out “fair, equitable, timely and not prohibitively expensive”.
A recent and very important development concerning public participation is the recognition of it as a basic human right. This is the central theme of the Århus Convention (1998). This Convention guarantees people the right of access to information, public participation and the right to justice. Besides being a human right, public participation is also one prerequisite for democracy. According to the Regional Environmental Centre for Europe, “openness should be a rule in a democracy, and secrecy and exemption”. A knowledgeable, well-informed and interested public can be a great asset in the decision making process. Therefore, it is often in a governments interest to make sure that the public is well-informed and able to participate.
The SEA Protocol
Besides the Århus Convention, there is yet another international instrument that aims to incorporate public participation in decision making. The Protocol on Strategic Environmental Assessment (SEA Protocol) supplements Environmental Impact Assessment and it is a “process of evaluation of environmental effects (including health) during the preparation of policies, plans, programmes and legislation”. The SEA protocol basically aims to keep in mind health factors, social, economic and other issues in strategic decisions. In order to achieve this, SEA should be conducted with public participation; in this way, strategic decisions are made more transparent and should limit harm to environment and health. One of the problems with this protocol is that even though it was adopted in 2003 (after the Århus Convention) it is not stronger at all. The main difference between the two instruments is that the Convention includes all policies that have to do with the environment and that “no requirement for a significant effect is included”. The SEA Protocol on the other hand, “covers only policies likely to have a significant effect on the environment, including health, and it applies only to the extent appropriate”. So the SEA Protocol puts a greater emphasis on what is happening and what the effects are of a decision, while the Convention has a much broader scope, and focuses on public participation in specific situations.
As stated above, all citizens of the EU now have the right to participate in environmental decision-making. Especially considering the recent enlargements of the EU with former communist states, public participation levels throughout Europe can differ immensely. For example, a country with a strong central government will probably have a very different participation tradition from a country with a weaker central and stronger regional government. First of all, regional governments logically exist of people from the region and secondly, regional government and regional issues are much closer to the people which makes citizens and citizen groups more prone to participate. It is important to acknowledge these differences and similarities in Europe's participation practices for the context of this paper.
- ↑ Zillman, D.N., Lucas, A., Pring, A. (ed.)(2002). Human Rights in Natural Resources . Oxford University Press
- ↑ Bruntland, G. (ed.), (1987), "Our common future: The World Commission on Environment and Development", Oxford, Oxford University Press.
- ↑ Pring, G., Noe, Susan Y., International law of public participation in Zillman et al., Human Rights in natural resource development, (2002), Oxford University Press.
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