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Training package on National Judges and the EU Aarhus Acquis - Focus on Access to Justice

Module 3: Public Participation in Decision-Making

Public participation at international law landscape (2/2)

Concerned with international trade in chemicals, the Rotterdam Convention prescribes minimum standards for public access to information, but it does not provide for public participation in any decision-making procedure. Equally concerned with international trade, the Cartagena Protocol to the Convention on Biological Diversity (CBD) is nevertheless far more supportive to public participation. The parties to the Protocol shall promote and facilitate public participation and access to information concerning living modified organisms in general. Moreover, they are requested to:

  • “consult the public in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information [in accordance with the Protocol].”

This is slightly similar to the reference to public participation in the Stockholm Convention. The parties are not only requested to endeavour to consult with the public; to comply with the Protocol they must indeed grant opportunities for public participation and consultation.

The participatory elements in the International Atomic Energy Agency (IAEA) conventions are marginal. The parties to the Nuclear Safety Convention shall provide the “population” with appropriate information for emergency planning and response, but there is no express reference to public participation in the planning (as opposed to the European Industrial Accident Convention). The Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management requires preparations of environmental assessments for facilities for spent fuel and radioactive waste, but it does not make any reference to public participation in such procedures. One may, however, consider that, conceptually, an environmental assessment requires public participation in its preparation.

Contrary to some environmental agreements of global scope, the International Law Commission´s (ILC) Articles are relevant also for public participation in environmental matters. As mentioned, the ILC Articles formulate the principle for access to information and public participation accordingly:

  • “States concerned shall, by such means as are appropriate, provide the public likely to be affected by an activity within the scope of the present articles with relevant information relating to the activity, the risks involved and the harm which might result and ascertain their views.”

The participatory element consists in the requirement that states, when providing the information concerning activities, must also ascertain the views of the public. While not very elaborate, it at least indicates that states would not comply with this duty merely by disseminating information without any consideration of the views of the public.

The Universal Declaration on Human Rights refers to the right to be part of government, directly or through voting, and the International Covenant on Civil and Political Rights (ICCPR) to the right to take part in the conduct of public affairs. In principle, both versions of the right to political participation embrace environmental matters, but this right has not been understood as implying in itself a right for members of the public to take part in specific environmental decision-making.

A right to participate in environmental decision-making is also set out in the 1989 International Labour Organozation (ILO) Convention Concerning Indigenous and Tribal Peoples in Independent Countries (20 parties). Focusing on tribal and indigenous peoples, it provides for consultations and for means by which these peoples may freely participate at all levels of decision-making as well as in the use, management and conservation of natural resources.

 


Developed by the Academy of European Law (ERA)