The long path towards “environmental democracy” and the role of public participation
Sixty years ago, the bases for environmental protection were outlined, with the need to establish common goals and principles. It was also taken into account that citizens need to have a role in the protection of the environment. This article retraces the way in which public participation was included in various environmental law instruments in an attempt to fight climate change and render environmental governance effective.
Half a century ago, the main bases for global environmental protection were already outlined. In the late 1960s, it was already largely assumed that common global principles and goals were needed to align the action of different spheres of public power to fight against the progressive degradation of the environment: at international, regional, state, and local levels. The critical importance of having the best available scientific and technological knowledge to articulate environmental policy and law was equally clear. It was also acknowledged that any environmental regime should take into due account the role of different actors that could potentially contribute to both its depletion and its protection (citizens, NGOs, social and economic undertakings), and for its goals to pass from paper to real environmental protection.
The 1972 Conference on the Human Environment forged in the Stockholm Declaration, the first generation of “common principles to inspire and guide the peoples of the world in the preservation and enhancement of the human environment.” Among its 26 Principles, it already included a principle devoted to the role of science in environmental protection (Principle 18). The Declaration, shaped like a “soft-law” instrument, came escorted by historically global institutional and financial arrangements for the protection of the environment.[1] The outcome of this UN Conference laid down the foundations of modern global environmental law and governance to start gaining answers about the increasing environmental degradation all over the world.
The role of different private actors in environmental protection was also the object of consideration by the UN Preparatory Committee of the Conference, which called for the Declaration “to serve to stimulate public opinion and community participation for the protection and betterment of the human environment”. [2] Besides, the Declaration states in its preamble that “achiev[ing] this environmental goal will demand the acceptance of responsibility by citizens and communities and by enterprises and institutions at every level, all sharing equitably in common efforts. Individuals in all walks of life as well as organizations in many fields, by their values and the sum of their actions, will shape the world environment of the future” [para. 7th].
However, the Stockholm Declaration did not enclose a principle devoted to public participation, access to information or access to justice to protect the environment. The time was not right for the international community to connect these fundamental rights with the protection of the environment (not even in a non-binding instrument). It did contain, however, a principle devoted to environmental education (Principle 19) which -jointly with Principle 18 on the role of science- was an essential premise for enlightening access to environmental information, as well as to responsible and effective public participation and access to environmental justice.
The Aarhus Convention was the first environmental legally binding instrument to link the protection of the environment with human rights already enshrined in the Universal Declaration of Human Rights and every international and regional treaty for the protection of fundamental rights hereinafter: the right to receive information, the right to participate in public decision-making processes and the right to effective judicial protection.
A 10-year wait was necessary until another soft law instrument, the Rio Declaration (1992), enclosed public participation in the second generation of global environmental principles: Principle 10 enshrined “the participation of all concerned citizens, at the relevant level” as an instrument to “best handle” environmental issues. Principle 10 comprises three features closely intertwined: “appropriate access to information concerning the environment that is held by public authorities”; “the opportunity to participate in the decision-making process”; and “access to administrative and judicial proceedings”. Thus, it sowed the seeds for the three fundamental “access rights” for individuals and environmental NGOs: the right of access to environmental information, the public’s right to participate in environmental decision-making and the right of access to justice in environmental matters.
Principle 10 was indeed the catalyst that triggered the inclusion of provisions on public participation in major multilateral and regional environmental treaties, such as the UNFCCC Framework Convention on Climate Change (1992), where the Parties committed to promoting and facilitating at the national, subregional, and regional level public participation in addressing climate change and its effects and subsequently developing adequate responses (art. 4 (a)(iii)). And later on, in the Paris Agreement – UNFCCC (arts. 6 and 12).
Furthermore, public participation also crystallized in 1998, in the form of a binding treaty with the UNECE Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention). This regional agreement -ratified by 46 Eurasian countries and the EU- was described by the UN Secretary-General Ban Ki-Moon as “the most ambitious venture in the field of environmental democracy under the auspices of the United Nations.” [3] It is based on the premise that sustainable development can be achieved only through the involvement of all stakeholders, and it devotes the three “access rights” to this end. The Aarhus Convention was the first environmental legally binding instrument to link the protection of the environment with human rights already enshrined in the Universal Declaration of Human Rights and every international and regional treaty for the protection of fundamental rights hereinafter: the right to receive information, the right to participate in public decision-making processes and the right to effective judicial protection. The Aarhus Convention expands the scope of these rights: it regulates them as essential instruments for the protection of the environment in any democratic society and it also extends them to environmental NGOs to acknowledge and strengthen the vital role that they play in the preservation of our common environmental heritage. Lastly, the Convention introduces a novel and important compliance mechanism in the field of environmental law treaties: the Compliance Committee to which any individual or environmental NGOs might denounce any breach of these instrumental environmental rights by any public authority.[4]
Aarhus is indeed a milestone in the landscape of International Environmental Law.
A zero-carbon future will entail the adoption and implementation of stricter measures which might need a clearer social mandate and wider public support to be successfully implemented.
Two more decades had to elapse, however, until this right-based approach was followed in another part of the world with the signature in 2018 of the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean. The Escazú Agreement entered into force in April 2021, just when Aarhus Convention was celebrating twenty years of its implementation in the Old Continent. The new Agreement goes, then again, a step beyond: it expressly envisages “access rights” as instrumental for the protection of the “right of every person of present and future generations to live in a healthy environment and to sustainable development” (art. 1). It also reflects the priorities and particularities of the region: It incorporates provisions devoted to individuals and groups in situations of vulnerability and also to indigenous peoples; moreover, it also encloses the first-ever indemnity clause to protect the human rights of those who act to demand compliance with environmental law against any reprisals for their activity, as it is further explained in another entry of this blog.[5] It should be recalled that, according to the 2020 Global Witness report, this is the region where more environmental defenders have been murdered in recent years: in 2019 more than 212 people were killed for defending the environment and two-thirds of these murders were perpetrated in Latin American countries.[6]
Along this path, citizens and NGO’s “access rights” have developed as essential instruments of environmental law and governance. They are fundamental rights intrinsically linked to the principles of transparency, legitimacy, the rule of law and, therefore, to democracy, which now serve environmental protection. Constitutionalising these rights in a Global Pact for the Environment, within a balanced and clear system of principles, rights, and duties, would significantly strengthen the effectiveness of environmental law all around the world. Just as it is urgently needed in a time of environmental emergency.
Finally, climate change is confronting environmental law and governance with ever-increasing challenges both to fight against this phenomenon and to channel social demands linked to it. In the last few years, we have witnessed a swirl of public discontent (as unveiled by the Yellow Vests movement in France), coupled with a growing social concern about the forecast effects of climate change (triggered by scientific reports -as those released by the IPCC- and driven by environmental movements such as Extinction Rebellion). Further, we have also seen an exponential rise of climate change litigation before national courts, where NGOs and citizens are suing public authorities for the enactment of further measures either to comply with their international obligations under the Paris Agreement or to meet their constitutional duties to protect the environment or the fundamental rights of current and future generations, as another entry to this blog explains.[7]
These events have urged some States to take renewed actions against climate change. In this context, innovative forms of public participation have also appeared: the so-called “Climate Citizens’ Assemblies” or “Citizens’ Conventions for Climate” has thriven in countries such as Ireland, the UK, France, and Spain, among others.[8] They have been summoned as novel channels to engage citizens in the design of further policies and laws on climate change which should reinforce the credibility and legitimacy of political decision-making and bridge the distance between citizens and institutionalized decision-making. They intend, in short, to strengthen public support for more ambitious climate policies to pursue the zero-carbon transition. A zero-carbon future will entail, indeed, the adoption and implementation of stricter measures which might need a clearer social mandate and wider public support to be successfully implemented. [9] However, for the assemblies to serve to this end, it is essential they have a clear and fully transparent regulation of their constitution, task, and decision-making process. Otherwise, such deliberative fora would run the risk of becoming irrelevant as a mere “political performance” [10] or, even worse, it would eventually lead to both mistrust in public authorities and a negative perception of the outcome.
Over five decades the pathway for environmental protection has been slow, uneven, and full of challenges. Now it is more urgent than ever to spread and upgrade all the achievements already obtained with the invaluable help of a Global Pact for the Environment. We need this constitutional instrument to move forward to environmental democracy.
[1] See, among others, LOUIS B. SOHN, The Stockholm Declaration on the Human Environment, Harvard International Law Journal, Vol. 14, Num. 3, 1973, pp. 423 ff.
[2] Doc. A/CONP.48/PC/6, para. 36.
[3] Ban Ki-Moon, Foreword, The Aarhus Convention: An Implementation Guide, second edition, p. 3; Prieur, M. (1999) “La participation d’Aarhus, instrument universel de la démocratie environnementale”, Revue Juridique de l’Environnement, n. spécial, 9-29.
[4] Compliance Committee | UNECE.
[5] Maria Antonia Tigre, Principle 10: what can we learn from its regional implementation through the Escazú Agreement?
[6] See Environmental activists – land and environmental defenders | Global Witness.
[7] Access to domestic courts to enhance environmental governance by Professor Nora Paillon.
[8] See, for example, in France, https://www.conventioncitoyennepourleclimat.fr/, and in the UK https://www.climateassembly.uk.
[9] DREWS, S y VAN DEN BERGH, J. “What Explains Public Support for Climate Policies? A Review of Empirical and Experimental Studies.” Climate Policy 16:7 (2016), 855–76. MURADOVA, L; WALKER, H.; y COLLI, F, “Climate Change Communication and Public Engagement in Interpersonal Deliberative Settings: Evidence from the Irish Citizens’ Assembly”, Climate Policy, vol. 20, nº 10, 2020 pp. 1322-1335;
[10] Vid. MILLER, C. y WILSON, R., “Getting Climate Citizens’ Assemblies Right, Carnegy Europe, 5 de Noviembre de 2020, https://carnegieeurope.eu/2020/11/05/getting-climate-citizens-assemblies-right/ka9g.
