PUBLIC PARTICIPATION AND DEMOCRACY IN PRACTICE—AARHUS CONVENTION PRINCIPLES AS DEMOCRATIC INSTITUTION BUILDING IN THE DEVELOPING WORLD

Abstract

In recent years, a number of national and international legal developments have led to the implementation of procedures to ensure the empowerment of private citizens in environmental decision-making processes. In practice, this has meant increased access to information affecting decision-making, the establishment of public fora for discussion, and some broadening of legal standing requirements for individuals and citizens' groups challenging actions based on environmental concerns. These three concepts-public participation, access to information, and access to justice-are the three main pillars of the Aarhus Convention, which entered into force in October of 2001, and is administered by the United Nations Economic Commission for Europe (UNECE). In addition to the three pillars, the most notable feature of the Convention is the key role carved out for non-governmental organizations (NGOs), which feature prominently in the Convention's conception of environmental democracy. The Convention has been signed and ratified by more than forty countries from Europe and Eurasia, and parallel principles are being advocated and applied in a variety of other settings. The Aarhus principles grew out of the Rio Declaration's Principle 10 and the United Nations' Agenda 21 program, both of which underscored the importance of the role of the public and the NGO sector in environmental decision-making. In part I, this paper will introduce how an empowered public can help address various difficulties in confronting environmental issues. This section will emphasize general arguments for procedural rights for the public. Part II will offer an in-depth look at the three pillars, trace similarities in the United States' federal law, and also look at European Union (EU) implementation efforts at the Member State level through the directive process. A secondary goal of this section will be to assuage some critics' fears about the Aarhus Convention. The section will also look to various Aarhus Convention Compliance Committee decisions, so as to distill a sense of the Committee's interpretation of the Convention. In reviewing the advisory "case law" of the Compliance Committee, the central guiding principle, in line with the goals of the Convention, has been to guarantee a modicum of public participation rights in line with basic procedural rights. The Committee has also hewn a course in line with both the letter and spirit of the Convention, balancing deference to the signatory parties with the broader goals of the three pillars. Part III will look at the special rights accorded to the NGO sector by the Convention and discuss the benefits of empowering the NGO sector in this manner. The section also addresses key elements of the Convention's compliance mechanisms. Part IV will focus the implications of the Aarhus convention for the signatories, especially in the former Soviet satellite nations, and includes lessons gleaned from implementation efforts there. The section will also advocate for the continued adoption of Aarhus principles in the developing world.