Jerzy Jendroska
1. INTRODUCTION
The concept of rights�-based environmental democracy becomes widely recognised as one of fundamental principles of sustainable development. The Aarhus Convention has been recognised as "the most ambitious venture in the area of "environmental democracy" so far undertaken under the auspices of the United nations" (Foreword of Kofi Annan to the Aarhus Convention: An Implementation Guide)
Cooperation of environmental authorities with the public is commonly considered in the world as a prerequisite for efficient implementation of environmental policy. In particular, there is a growing recognition that public involvement contributes largely to effective monitoring compliance and enforcement. Bearing in mind limited monitoring capacities of the administration, granting the public access to information is considered the best guarantee of the accuracy of data supplied by companies, while public control enhanced by transparency is considered important and relatively least expensive of all instruments of implementing environmental policies and enforcing environmental legislation. Similarily, there are clearly recognised benefits from transparency of decision-making processes and openness of administration to public participation not only in concrete decisions whether to authorise certain facilities or operations, but also in developing draft laws, rules, policies etc. Broad public participation in preparation of such documents allows not only reaching educational goals or mitigating negative attitude towards decisions in controversial matters, but often also allows preventing significant mistakes in decision-making, which might cause problems with implementation or alter on enforcement.
Countries that have decided to grant the public broad information and participation rights and consequential access to environmental justice have benefited a lot from voluntary activities of their citizens willing to protect the environment. These positive experiences have no doubt had a big influence on addressing these issues also in countries which due to their legal and administrative traditions have been rather reluctant to accept as a rule the concepts of participatory democracy, open government and transparency of decision-making (Jendroska, 1998).
There are various ways of exchanging experience and disseminating good practices between countries. The most formal way of getting the message across is by using international legal instruments. And here indeed, the issues of public participation, access to information and access to justice have been present for years already in legal instruments concerning environmental protection and sustainable development.
2. LEGAL TRADITION
Access to governmental information and public participation in decision-making are still relatively new phenomenons in Europe. They both reflect the concept of "open" government which is rather strange for administrative culture which for most of Europe (with possible exceptions of Nordic countries) is based on traditions of secrecy and aversion to public involvement.
European administrative culture reflects traditional XIX century conceptions concerning relationships between the state and its citizens. According to these conceptions the role of citizens in administering the country was limited merely to vote once in a while and thus to give a democratic mandate for the authorities. This approach coincided with traditional XIX
Century believes in the role of experts, and science in general, in social life (Stec, 1994). It was only in the 40s when in the U.S. underwent administrative reform which heralded depart from the above traditional understanding of the so called "thin democracy" (Stewart, 1988) towards open government and participatory democracy. This reform was followed by changes in the administrative law and administrative procedure which reflected growing role of the laymen in decision-making (Aman).
The difference between traditional European and American approaches is that we in Europe are not accustomed to think about realtions between the state and its citizens in administrative procedure in in contractual terms. We tend to think rather on the state as a structure which expresses and creates the unity of the nation and we are not accustomed to think on it as forum of the competition of different interests of individuals, social groups and organizations. Thus, the law is not perceived in terms of the rules expressing the social compromise (the compromise between the interests of different groups) but as rules expressing the common interest conceived interest of the whole society. As a result traditional administrative procedure in Europe assumes dychotomy: administrative authority represents public interest, while a party to the procedure represents its own individual interest. Consequently, this model prefers "cabinet" proceedings where only experts are invited to participate. Therefore it is not easy to introduce participation rights of the general public to any decision-making procedures. This especially concerns public hearing, which originates from the system where participation is treated as an individual right and proceedings have adversorial character with administrative authority acting as a judge. That is not however only this conceptual reason that makes European authorities so reluctant to have public hearings, but rather disregard to the laymen and heavy reliance on "experts" and their opinions, which is especially noticeable in environmental decision-making (Stec, 1996).
However, that was to a great extent the need for effective environmental protection that has made so popular the issue of public participation and access to information. Extremely positive experience with an American invention of Environmental Impact Assessment, the core of which is access to information and public participation, have no doubt had a big influence on addressing these issues in international instruments concerning environmental protection and sustainable development (Jendroska, 1997).
3. PRINCIPLES OF INDIVIDUAL RIGHTS IN INTERNATIONAL ENVIRONMENTAL LAW
The need for legal guarantees of public involvement is being increasingly reflected in the international environmental law. Virtually all recent instruments mention necessity of assuring access to information and public participation in environmental decision-making. More developed provisions to this effect, recommending i.a. creation of mechanisms and procedures for cooperation with - and support for the public, can be found in documents from the UN Conference in Rio de Janeiro (in particular in Agenda 21) or in the Sofia Guidelines. Such attempts to regulate the issue in a complex way have been so far limited to the instruments of so called "soft law" i.e. having not binding legal nature but only a form of recommendations or political declarations. However, there is a number of international instruments that address some of the issues without attempting to comprehensive coverage.
Public participation in environmental decision-making may presently be considered a well established concept in the international law. A number of instruments can be quoted here, but in particular Agenda 21 that devotes to this issue entire Chapter 8. One has to distinguish here public participation in policy- or rule-making and public participation in concrete decision-making.
In the international environmental law the issue of public participation in policy- and rule-making gets gradually certain recognition, though it is far from being sufficiently regulated. In this respect Agenda 21 gives certain guidance while recommending on many occasions (particularly in provisions referring to the environmental protection against factors which may have a significant adverse impact on the environment) the need for an active public participation at all different levels of environmental decision-making. Similar provisions may be found As far as binding instruments are concerned, should be noted also that Desertification Convention of 1994 requires participation of NonGovernmental Organizations (NGOs) and local people in policy-making.
Public participation in concrete decision-making is more extensively regulated. The key idea is to provide the opportunities for the public to participate early in the environmental decision-making process, which means that public should be consulted before the actual decision has been taken. This issue is particularly well regulated in all instruments related to Environmental Impact Assessment (EIA). Obligations related to public participation in the EIA context may be found in regional (but covering almost the whole northern hemisphere) UNECE 1991 Espoo Convention on EIA in Transboundary Context, as well as in a number of global international agreements (like for example: Biological Diversity Convention or Framework Convention on Climate Change). A new regional Helsinki Convention on Transboundary Effects of Industrial Accidents (1992) shall be recognized, too.
The right to access to information may be recently regarded as a binding standard in the international environmental law. A number of regional conventions (signed in the 90's) include relevant provisions in this field, including the following: The Lugano Convention on Civil liability (1993), the new Helsinki Convention on the Protection of The Baltic Sea (1992), Convention on Industrial Accidents (1993) and Convention on Transboundary Watercourses (1992).
In most countries the public enjoys access to information via so-called Freedom of Information (FOI) laws, which provide everyone, without having to state any interest, access to all (except for few clearly statutory exemptions) information about both the state of the environment and its protection, including information about individual permits, emissions or enforcement actions. On the supra-national level the most comprehensive of such laws is the EC Directive 313/90.
In some countries the right of access to governmental information is supplemented by far reaching mechanisms concerning collecting, maintaining and making public some information held by governmental authorities, including such mechanisms as public registers or publicly accessible data-bases. At the international level obligations to this effect may be found i.a. in OECD Guidelines on Pollutant Release and Transfer Registers.
As compared with public participation and access to information, access to environmental justice is relatively rarely addressed in international environmental law, so its basic concept may be traced back to such generally recognised principles as right to be heard and to appeal the decisions, as it is guaranteed by the Human Rights Convention. In the area of environmental protection, as it was already mentioned, the most important in "access to justice" is to have standing without having individual interest to be stated. Arguably the first significant step in this direction was made by the Lugano Convention.
Article 18 of the Lugano Convention reads:
All the above mentioned international
instruments have contributed to common recognition of the need for greater
transparency, public participation and access to environmental justice.
There has been widely recognised however that legal obligations as well
as good practices in this respect shall be standardized throughout Europe
by a way of adopting an international instrument specifically and exclusively
devoted to citizens' procedural rights, and one that would regulate them
in a posiibly comprehensive manner. Significant breakthrough in this respect
brought the III Paneuropean Conference of Environmental Ministers held
in Sofia in 1995 within the "Environment for Europe" Process.
4. TOWARDS A BINDING COMPREHENSIVE REGULATION OF CITIZENS
PROCEDURAL RIGHTS IN ENVIRONMENTAL MATTERS
The III Paneuropean Conference of Environmental Ministers held in Sofia in 1995 within the "Environment for Europe" Process adopted the Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making (herain after referred to as "ECE Guidelines") which reflected political will of Ministers to make standard rules concerning these issues throughout Europe. The Guidelines however have only a non-binding nature of a "soft law". Therefore adoption of the Guidelines was paralleled by a mandate given to a Working Group to adopt an international legally binding instrument in form of a UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decision-Making (herain after referred to as "the Convention"), a draft of which the Ministers requested to be ready at their IV "Environment for Europe" Conference to be held in June 1998 in Aarhus, Denmark.
It took two years to negotiate the Convention. It was very difficult task despite of extremely co-operative approach of all partners. More than 40 Governments were involved in the negotiations. They represented countries with often extremely divergent traditions, religions and legal cultures, different levels of economic development and various political systems, such as Ireland and Kazakhstan, Spain and Belarus, Norway and Albania or France and Georgia.
Moreover, the Convention already in the process of its creation was arguably unprecedented in the history of international law as far as the degree of public participation in the drafting process is concerned. Non governmental organizations, being principally represented by NGOs Coalition, also played a very active role throughout the entire process, from the first draft through the negotiations to the final ministerial adoption session. And they too were represented by people with different backgrounds and traditions: there were 4 delegates from Western, Central and Eastern Europe. What is worth emphasising is also a democratic and participatory process of selecting NGO Delegation with a mandate given by the Pan-european Conference of NGOs held in Brussels. This unprecedented process of selecting a delegation of NGOs will no doubt be considered as another significant contribution to the development of international law.
5. THE CONVENTION ON ACCESS TO INFORMATION, PUBLIC PARTICIPATION IN DECISIOM-MAKING AND ACCESS TO JUSTICE IN ENVIRONMENTAL MATTERS
The Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (as it eventually has been termed) since opening for signature at the IV "Environment for Europe" Pan-European Ministerial Conference in 25 June 1998 in Aarhus, Denmark, has been signed by 39 countries and the European Community.
The Convention, except for being the first binding international instrument attempting to address comprehensively and exclusively the issue of Citizens Environmental Rights, features also a couple of specific provisions that might be considered precedential. First of all, Article 1 makes it clear that the objective of the Convention is to contribute to the protection of the right of every person of this and future generations to live in an environment adequate to his or her health and well-being (which is the first acknowledgement of such human right in international binding instruments).This provision was hotly debated and heavily negotiated. The final wording reflects careful compromise between the wish to reiterate and reinforce the issue by clearly acknowledging existence of such right, and on the other hand � fears of establishing any binding and enforceable commitments in this respect.
Certain novelty is also an obligation (Article 3 para 7) to promote the application of the principles of the Convention in other international environmental decision-making processes.
The core of the Convention cover three main issues (sometimes referred to as "three pilars of the Convention"), which are being addressed in Articles 4-9, while Article 2 (Definitions) and Article 3 (General Provisions) provide a background to all three pillars, as follows:
Worth mentioning is article 2 whereby defined are both those subject to right granted by the Convention and those subject to obligations stemming from the Convention.
As far as rights are concerned, the Convention makes a distinction between "public" and "public concerned". The former means �one or more natural or legal persons� while the latter means "the public affected or likely to be affected by, or having an interest in the environmental decision-making". Both terms include non-governmental organisations.
The principal addressee of the obligations are �public authorities". The definition is based on the definition used by the 90/313 directive with some modifications. Arguably the most important of the modifications is the fact that this definition include also the "institutions of any regional economic integration organization� � which in real terms means EU institutions.
Access to - and dissemination of environmental information
The Convention regulates the issue of access to environmental information in two separate articles: Article 4 regulates so called "passive" disclosure of information while Article 5 addresses so called "active" disclosure of information.
Article 4 is designed in a similar way to any other so called Freedom of Information Laws which regulate precisely rights to require information from the authorities, categories of information that might be exempted from disclosure and the procedure of disclosing the information. The Convention takes here into account in particular experience gained with the implementation of the EC Directive 313/90 on access to environmental information.
The definition of the environmental information is much broader in the Convention than it is in the Directive. According to Article 2 para 2 it covers "any information in written, visual, aural, electronic or any other material form on: