We the People: Coastal Communities, International Environmental Law, and the Right of Public Participation

By: Daniel Zummo

The objective of this article is to better equip the reader with knowledge of the importance of the right of public participation, and to understand how the absence of public participation affects coastal fishing communities.

The idea of individual participation in international environmental lawmaking is premised on the statement in Principle 10 of the Rio Declaration, which reads that “environmental issues are best handled with the participation of all concerned citizens, at the relevant level.”[1]  The participatory norms embodied in Principle 10 of the Rio Declaration, more than any other aspect of international environmental law, challenge traditional ideas and limits of both international law and municipal law.  The inward bearing of these international participatory norms have the potential to impinge upon fundamental aspects of the state including state secrecy, legal procedure, public administration, and even the limits of the very form of municipal governance itself.[2]

Furthermore, public participation may also lead to decisions that are better for the environment, protecting the rights of people not to have their health, communities, or natural areas degraded or destroyed.[3]  The public can bring expertise and knowledge to a decision making process.[4]  Public experts may not only criticize mistakes or see negative sides of a plan or program, but also suggest good alternative solutions.[5]

It seems that decisions about environmental protection formally integrate the views of the public.  Generally, government decisions to set environmental standards for specific types of pollution, to permit significant environmentally damaging activities, or to preserve natural resources, are made only after the impending decision has been formally and publicly announced. Usually, the public has been given the opportunity to influence the decision through written comments or hearings.  In many countries citizens may challenge government decisions affecting the environment in court or before administrative bodies.  These citizen lawsuits have become an integral and essential component of environmental decision making.  The remaining sections of this article will look at the public participation elements in the Declaration on the Rights of Indigenous People and the Aarhus Convention.

A.                Declaration on the Rights of Indigenous People

The right to effective participation in decision making is essential for the development of a truly inclusive society. The participation of indigenous and tribal peoples in decisions that affect them is fundamental to the realization of their rights of self determination. As expressed in the United Nations Declaration on the Rights of Indigenous Peoples, the participation of indigenous people is crucial to their culture because it promotes the paradigm that they can “freely determine their political status and […] freely pursue their economic, social, and cultural development.”[6] In the face of growing encroachment on their territories, the coastal communities struggle to maintain control over their lands and resources, and as a result, their identity. Their aspiration to retain control over their institutions and to maintain their identities, may only be realized when they have the opportunity to participate in decision making on these matters. [7]

Article 32 of the Declaration on the Rights of Indigenous Peoples provides the following:

“States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.”[8]

This article sets forth the requirements that, before projects that affect the lands of the indigenous people are carried out; they must be consulted and must consent to these projects.

The next relevant section of the Declaration on the Rights of Indigenous Peoples is Article 37, which states:

“Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other constructive arrangements concluded with States or their successors and to have States honour and respect such treaties, agreements and other constructive arrangements.”[9]

This article articulates that the State in which the indigenous people live must honor the agreements made with the indigenous people in their territory.

B.                 The Aarhus Convention

The Aarhus Convention[10], although it presently applies primarily to the region of Europe, has global significance for the promotion of environmental governance. The Convention focuses on the need for civil participation in environmental issues, as well as on the importance of access to environmental information held by the government and its public authorities. Aarhus goes further than previous international conventions, in providing explicit linkages between environmental rights and human rights. Commencing with the preamble, it states in the 7th and 8th preambular paragraphs:

“Recognising also that every person has the right to live in an environment adequate to his or health and well-being, and the duty, both individually, and in association with others, to protect and improve the environment for the benefit of present and future generations,”

“Considering that, to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights.”[11]

The Convention also explicitly deals with governmental accountability, as it grants the public rights of access to information and imposes obligations on public authorities to provide this information. Access to environmental information leads to a well-informed public, equipped to question the actions of the government. These factors can then lead to more accountable environmental decision-making and greater potential for environmental justice. Article 4 outlines when access to information can be denied; i.e. when the public authority does not have the information requested; when it is unreasonable to provide the information; and when confidentiality is in the public interest (e.g. intelligence or national security information). Moreover, information can be refused if disclosure will adversely affect factors such as the course of justice and intellectual property rights.

At the first Meeting of the Parties to the Convention,[12] the Parties recognized that the revolution in electronic information technology is essential to the promotion of environmental governance.  The Meeting’s declaration called on the Parties to make the government’s environmental information progressively available in electronic format, yet to be kept under frequent review.[13]  The Meeting of the Parties stressed that the Convention was largely about building partnerships between an empowered civil society and the government, and that the public had responsibility for sustainable development too. It was stated:

“The engagement of the public is vital for creating an environmentally sustainable future. Governments alone cannot solve the major ecological problems of our time. Only through building partnerships within a well-informed and empowered civil society, within the framework of good governance and respect for human rights, can this challenge be met.”[14]

The Aarhus Convention is a clear advance in the area of environmental governance. It is an instrument that is being considered for its merits, not only by European countries, but also by many countries around the world.[15]  The Aarhus Convention presents us with the type of model for environmental governance, which is one that implements civil empowerment, through access to information and resources; and through participation by a variety of stakeholders, including civil society and indigenous groups.

In conclusion, coastal fishing communities have been given a framework through international environmental law to be part of the decision making process when it comes to fishery management.  Public participation is extremely important to the decision making process because it brings in the expertise of a wide variety of interested parties.  Coastal communities, through public participation, can be involved in the protection of their land and natural resources from governmental entities by making their voices heard.