Participatory and Procedural Rights in Environmental Matters

The Aarhus Convention goes further than other environmental agreements also in setting minimum standards for public participation. The Convention distinguishes between three situations and procedures: decisions concerning permits for listed activities (“specific activities”); decisions on plans, programmes, and policies relating to the environment; and the preparation of regulations and other normative instruments. The most detailed provisions on public participation apply to permit procedures. The parties must ensure that the public concerned is adequately, timely and effectively informed at an early stage; and allowed to participate “when all options are open and effective participation can take place.” The procedures for public participation must allow the public to submit comments and views that it considers relevant, and in the decision, due account must be taken to the outcome of the participation. Rather similar standards apply to decision-making concerning plans, programmes and policies, while the requirements for public participation are less strict for the preparation of regulations and generally applicable normative instruments. The Aarhus Convention standards for access to justice are also relevant for the right to public participation, since members of the public concerned shall be able to challenge decisions, acts and omissions by public authorities also on the ground of procedural legality. The Aarhus Convention Compliance Comittee (ACCC) has in several cases considered and interpreted the provisions concerning public participation, e.g. with respect to Albania, Armenia, Ukraine, Kazakhstan, Hungary, Lithuania, and France.

Some participatory elements are also found in the Espoo Convention. In addition to establishing a scheme for inter-state notification and consultation in Environmental Impact Assessment (EIA) procedures, the Espoo Convention obliges the parties to ensure that the public likely to be affected be informed and provided with a possibility to make comments and objections concerning the proposed activity. The EIA documentation shall be distributed to the public for comments, and the comments shall be taken into account in the final decision for the proposed activity.

Although the Helsinki Convention on transboundary watercourses does not provide for public participation, the parties to the Protocol on Water and Health confirm the need also for public participation in decision-making concerning water and health.

The European Convention on Human Rights and the jurisprudence of the European Court of Human Rights have been important also for public participation in environmental matters. Again, article 8 of the European Convention on Human Rights, the right to respect for private and family life, has been construed as providing also for certain procedural rights. Whereas Guerra and Others v Italy, referred to above, essentially focuses on access to information, in Taskin et al v Turkey, the Court also considered that the decision- making processes leading to measures of interference must be fair and such as to afford due respect to the interests of the individual safeguarded by the right to respect for the respect for privacy and family life.