European Law and Practice for Public Participation:The Aarhus Convention(slides from presentation) (Svitlana Kravchenko)
European Law and Practice for Public Participation:
European Law and
Practice for Public Participation:
The Aarhus Convention
(slides from presentation)
Svitlana Kravchenko, Environmental Lawyer
L Before 1989 (perestroika and
collapse of the former Soviet Union)
1.1.Western Europe-Election Day Democracy
1.2.Central and Eastern Europe (CEE)-outside of the Doors to Democracy
1.3.Former Soviet Union-Democracy on Paper. All public
participation rights existed in the Constitution.
Environmental movement as a part of
the movement for political changes. The role of the Green Party (Germany, Ukraine).
Chernobyl disaster and "waking
up" of public for the freedom of information.
H. After 1989
Political changes: New Constitutions and laws with clear provisions on right to a safe
(favorable) environment, access to information, and access to the court-in CEE and
NIS. Public involvement in creation of new legislation (examples: Ukraine,
New environmental impact assessment (EIA) laws and public participation
(Example: Pasichna, Ukraine, project on public participation in oil development,
organized by US EPA, US AID, and Ministry of Environment of Ukraine).
Public participation in EIA for the Moscow-St.Petersburg highway ("Ecojuris",
Russia). First law suits against the government.
III.Road to Aarhus
3.1.UN Conference on the
Environment in Stockholm, 1972-rightto
live in the environment of a quality that permits a life of dignity and well-being.
Its impact on
3.2.UN Conference on the Environment and Development, Rio de Janeiro,
3.3.Rio Declaration, principle 10: access to information, public participation,
and access to justice
3.4.Sofia Guidelines on Access to Information and Public Participation
in Environmental Decision-Making. "Environment for Europe"
process and public participation.
4.1.Preparation, negotiations and role of European ECO Forum, NGO Coalition
pillars of the Convention, main provisions on
-access to information
-access to justice
A. Access to information (art. 3.2, 3.3, 4 and 5)
Definition of "environmental information"
information without interest having to be stated, in form
information passive (upon request) and active (duties of the
to collect and disseminate information)
Time limits (one month) for public
authorities to respond
of information request Reasonable costs
Using electronic tools and Internet Example: Garbage incinerator plant in Lviv.
Fundamental Role of Public Participation
partnership between government and public
-improves quality of the
transparency of decision-making and accountability of
-contributes to public
-makes an opportunity
for public to express concerns
authority to take due account such concerns
-creates a mechanism
for the public to assert the right to live in favorable
environment and to fulfill the duty to protect the
1. Public participation in decision on specific
activities, which may have significant environmental impact (art.6)
-notification of the
public at early stage, when all options are open
-must provide enough
time for public for preparation and effective
-comments in writing
or public hearing
-decision takes due
account outcome of public participation
-public must be
informed about final decisions (with reasons and considerations)
EIA as a main tool of public participation in decision-making in NIS region.
EIA and Ecological Expertise in NIS. Public Ecological Expertise. Examples:
Completion of Rivne and Khmelnitsky nuclear power plants and role of public
"Terminal" case: NGO won the case in High Arbitration Court
decision of the Ministry of the Environment of Ukraine
2.Public participation concerning plans, programs and policies- SEA (art. 7)
shall, as minimum, make practical provisions in plans and programs.
SEA is legally required in Bulgaria, Czech Republic, Denmark, Finland, the
Netherlands and Slovakia.
Example: National Environment and Health Plan (NEHAP) in Ukraine (draft was
sent to 400 NGOs; eleven regional public hearings and one national
hearing were organized).
3.Public participation in preparation of executive regulations and other legally binding instruments
The applicability of the Convention to law-making was thoroughly discussed during negotiation. "The
desirability of transparency in all branches
of the government" and "invites legislative bodies to implement
principles of the Convention in their proceedings".
Comparatively soft obligation to use best efforts for the steps to be taken in order to fulfill objectives of
the Convention. The Convention requires to
promote public participation in the preparation of laws and laws by
In many UN ECE countries the public authorities play a major role in the preparation of
legislation that is than submitted to the legislative branch.
The environmental ministries in some countries, such as Czech Republic, Hungary, Ukraine and the UK have
developed a practice of publishing draft
laws on the electronic network, using their own facilities or taking
advantage of NGO initiatives.
countries there is no legal requirements of public participation in law making,
but good practice exists. More difficult and
less transparent is public participation in preparation of regulations.
Hungary: The Ministry for Environment of Hungary publishes half-yearly the list of
laws and regulations being drafted and also requests the list of other ministries'
legislation significantly affecting the environment. NGOs can check in
expressing their intention to be involved to the elaboration. The Ministry for
Environment completes the
list of such NGOs-a so-called "lobby-list"--and sends them the draft acts and decrees. The drafts are also
published on the Green Spider
Latvia: Experience of involvement of different stakeholders into the development of
normative acts, plans, and programs being developed in terms of
diversity of tools used, such as working groups, round tables, workshops,
seminars, conferences, consultations, public hearings, publications,
information/public awareness raising campaigns.
The EC SEA Directive was published at Official Journal no. L 197 from July 21,2001
Draft Protocol SEA Protocol under the Convention on EIA in Transboundary Context
(including plans, programs, policies and legislation)
C. Access to Justice
Third pillar of the Convention concerns legal mechanisms which can be
used to gain review of potential violation of access to information and public
participation provisions as well as domestic environmental law. It helps ensure
effective implementation of the other pillars.
Independent environmental lawyers willing to take on the job of citizen enforcement.
Legislation assuring the right of citizens and NGOs to sue government agencies exists in
mostly all countries of the region.
Removal of financial barriers for citizens and NGOs enforcing the law,
and even subsidies to them for doing so.
These are just examples of some of the public-interest,
independent, environmental law firms orNGOs doing legal cases in Europe:
Association Demeter in Bulgaria
Service in the Czech Republic
-UfU in Germany
Management and Law Association in Hungary
Center in Poland
Environmental Public Advocacy in Slovakia
-Ecojuris in Russia
-Lawyers for Rights
and the Environment in Russia
-TERRA in Spain
Ecopravo-Kyiv, and Ecopravo-Kharkiv in Ukraine
-Earthrights in UK
Legislation on public participation, access to information, or environmental impact
assessment can be ignored or watered down by the bureaucracy if the legal system
does not also ensure that citizens can go to court when the laws are
implemented only poorly. Three components are needed to prevent the participation
requirements from being only "paper requirements".
Seventeen countries ratified and their documents received by UN. Sixteen
countries are needed for entering into force, which will take place on October
VI.Changes in the legislation to comply with the
Bulgaria: Water Act
In the new
Water Act, in the water management bodies, there are representatives of the public.
Bulgaria: The Protected Areas
The Protected Areas Act provides two types
of public participation:
-the public can open the procedure for
declaring an area as
"protected area" and take part in the procedure;
-the public can prepare the plans for
management of the
activities in the protected areas;
One of the most important opportunities for public participation is the
National Environmental Council, an advisory board to the Government which was established
in 1996. One third of the Council members are representatives of environmental
nongovernmental organizations. Further respected representatives ensure
participation of the scientific organizations and the business sector, as well
on a one
Slovenia: 1999 Law
on Nature Conservation
Slovenia's Law on Nature Conservation, adopted in 1999, recognizes legal standing for
all public interest environmental NGOs to participate in all administrative and
judicial procedures to defend the interest of nature conservation.1II]
NGOs are considered to be acting in the public interest if their charters and
actual activities exceed the particular interests of individual members. Additionally
they must be active in the field of nature conservation.
VII. New EIA
Legislation in Europe
NIS: In many NIS countries, EIA is still an internal governmental procedure,
nontransparent, without public participation and without independent checks.
The practical experience of full-scale EIA has been largely limited to few major
developments funded by Western .investorsand
international aid agencies. The legal framework for public participation is still unclear.
Gazette of the RS, No. 56/99. This information and analysis was author by Slovenian environmental lawyer Milada
Example: Regulation on Public Participation in Environmental Decision-Making in
Ukraine. It was prepared and discussed with NGOs via Internet, comments were
taken into account.
Eastern Europe: The picture is quite different in Central
and Eastern Europe. In large part because of the EIA Directive of the European Union, and the plans
of the countries of Central and Eastern Europe to become members of the
EU, EIA legislation is good and getting better.
Czech Republic: Passed a new law on Environmental Impact Assessment (EIA).
Act No. 100/2001, has been under preparation for over five years, and replaces Act No.
244 on EIA of 1992.
Estonia: Environmental Impact Assessment and Auditing Act was adopted on
June 2000 and entered into force on the 1st of January 2001.
Poland: New Act on Access to Information on the
Environment and its Protection and on Environmental Impact Assessments, passed
Polish parliament on 9 November, 2000, and which came into force, January 1,
2001.2[21 The new legislation harmonizes the EU Directive on Access
to Information (90/313/EEC) and brings closer compliance with the Directive on
Environmental Impact Assessment (337/85/EEC).
VIII. Obstacles for public participation in NIS and CEE:
-lack of enforcement
-lack of traditions
-low level of public
Some description in: Jerzy Jendroska,
New Environmental Framework Poland, in Environmental Liability, Vol 9,
issue 1, February 2001, pp. 13-1^ (Lawtext
Program: Good governance and public participation
Rio + 10 Summit: global or regional (sub-regional) convention or another legally
binding instrument? UN ECE, IUCN (CEL) initiatives
Aarhus is applicable
in Asian context, it is not purely a European
"Although regional in scope, the
significance of the Aarhus Convention is
global. It is by far the most impressive elaboration of principle 10 of the
Rio Declaration ... As such it is
the most ambitious venture in the area of
the environmental democracy so far
undertaken under the auspices of the United Nations" (Kofi A. Annan, Secretary General of the United