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Summary

Various modern constitutions have confronted this question [the connection between the domestic system and the international system] and provided solutions that “build a bridge” between the two legal orders that ultimately benefit that who must be favored: the human being … If there is such clear and unequivocal connection – or at least one that is sufficient and intelligible, and that it is not lost in uncertainties or a diversity of interpretations – and international instruments are immediately applicable in the domestic sphere, domestic courts shall carry out their own “conventionality control”.

Sergio García Ramírez Reasoned Concurrent Opinion in the Aguado-Alfaro Case (2006)

INTRODUCTION

The Inter-American Court of Human Rights has progressively defined the normative aspects of the doctrine of conventionality control in its jurisprudence. The foundational cases of Almonacid Arellano et al. v. Chile, Dismissed Congressional Employees (Aguado-Alfaro) v. Peru, and Heliodoro Portugal v. Panama were complemented in important aspects by the decisions of Boyce et al. v. Barbados, Radilla Pacheco v. Mexico, Cabrera Garcia and Montiel Flores v. Mexico, Gelman v. Uruguay, Santo Domingo Massacre v. Colombia, and more recently in Andrade Salmón v. Bolivia.

The progressive development of conventionality control in the Court's jurisprudence makes it possible to say that the evolution of this doctrine has had an empirical nature. It has responded to the particular challenges that the Court identified in concrete cases, especially when it found that the existence, interpretation and/or enforcement of domestic laws were the causes of human rights violations at the State level. For this reason, the specific characteristics of conventionality control cannot be understood or evaluated either in the abstract–as a“finished”doctrine created in Almonacid–or by just looking at the foundational cases, or by just looking at the last decision where the doctrine was mentioned. It is necessary to analyze all the different elements of the achieve a proper understanding of the specific obligations derived from its existence.

The approach followed by the Court to develop conventionality control might produce uncertainty about what is the exact content of this doctrine. This condition has been a legitimate source of concern and confusion among scholars and judges. Several questions might be formulated in this sense: Is it possible to define conventionality control?

Summary

ABSTRACT

This paper proposes an improvement to Article 37 of the Charter of Fundamental Rights of the European Union (CFREU) through the introduction of procedural environmental rights. It challenges the current legal provision, which takes into account solely a policy principle (interest-based approach). The presentation has a three-part structure: the first one analyses the development of European environmental law under different perspectives in order to ascertain the role of the CFREU regarding environmental protection. The second part investigates some aspects in the EU Charter, particularly the legal structure of Article 37, aiming to highlight some opposite ideas and problems concerning the so-called “rights of solidarity”. The third part presents critical comments to the current policy principle approach in Article 37, proposing an alternative by the introduction of procedural environmental rights, according the framework of the Rio Declaration and the Aarhus Convention. The conclusion reaffirms the proposal initially presented, reviewing the main arguments and advantages of such an alternative, specially taking into account the role of individuals and non-institutional actors in the process.

KEYWORDS

Article 37; Charter of Fundamental Rights of the European Union; environmental protection; European environmental law; procedural environmental rights; right to environmental protection.

INTRODUCTION

EU institutions solemnly proclaimed a Charter of Fundamental Rights of the European Union (CFREU) in 2000. It alludes to dignity, freedom, equality, solidarity, citizen's rights and justice – although it did not have a legally binding effect at that time. Article 37 of the Charter specifically addresses environmental protection. Before reading the content of this Article, we should presume that such legal provision is a sort of right to environmental protection, considering that we are here under the scope of a Charter of Fundamental Rights.

Nevertheless, Article 37 has only prescribed a policy principle for environmental protection addressed only to EU institutions. In 2009, the Charter of Fundamental Rights of the European Union became a part of EU primary legislation with legally binding effect. However, the wording of Article 37 remained the same, without any significant modification.

The question is if the perspective of a policy principle (interest-based approach) is coherent with a catalogue of fundamental rights.

Summary

ABSTRACT

The negotiations for the adoption of an international instrument to implement Principle X of the Rio Declaration in Latin America and the Caribbean are currently taking place and expected to finish in 2017. Notwithstanding the premature state of the new instrument, the present study takes an exploratory approach to compare the material scope of the rights to access information, participate in decision-making and access justice under the current Draft and the Aarhus Convention, as the main international reference, by analysing the definitions of key terms such as ‘public authorities’, ‘environmental information’ and ‘public concerned’ in both texts.

KEYWORDS

Aarhus Convention; LAC Regional Instrument; Private entities; Procedural environmental rights; Public participation; Rio Declaration.

INTRODUCTION

In June 2012, at the Rio+20 UN Conference on Sustainable Development, several Latin-American governments put forward a proposal which led to the adoption of the ‘Declaration on the application of Principle 10 of the Rio Declaration on Environment and Development’ in Latin American and the Caribbean (‘The Declaration’).

As of April 2017, this agreement has been signed by twenty three States in the region and has given place to the negotiating process for an international instrument to ensure the application of the rights of access to information, public participation in decision-making and access to justice in environmental matters, as envisioned in Principle 10 of the Rio Declaration (the ‘Regional Instrument’). Whilst the precise ‘nature’ of the Regional Instrument is still to be defined, since the Parties have left to the end of the process the discussion on whether or not it will be legally binding, and a comparison between the working draft and the Aarhus Convention may thus be premature, the definitions contained in the current working text on terms like ‘environmental information’, ‘competent authority’ and ‘directly affected public’ provide a glimpse into what the material scope of the new instrument will look like and how it would compare to Aarhus’.

This book is the fourth volume in the European Environmental Law Forum (EELF) book series. The Fourth EELF Conference dedicated to Procedural Environmental Rights of the public was organised in Wroclaw from 14 to 16 September 2016 by the Faculty of Law of the University of Wroclaw in co-operation with the Environmental Law Center, Wroclaw, the law firm Jendroska Jerzmanski Bar & Partners and the Faculty of Law of the University of Opole. 'Procedural Environmental Rights: Principle X in Theory and Practice' is not a random collection of papers presented at the conference but rather a monograph presenting in a structured manner some of the topical issues related to this subject. It provides an overview of various aspects of the current status, development and practice of rights of access to information, public participation in decision-making and access to justice in environmental matters following their codification as non-binding principles in Principle X of the Rio Declaration. The book goes far beyond presenting merely the issues related to environmental procedural rights in Europe - it brings together the expertise of worldwide legal scholars, representing a wide range of legal cultures, to discuss the adoption and implementation of procedural environmental rights in different jurisdictions and under various legal instruments. Furthermore, it provides insight into the various aspects of procedural environmental rights ranging from theoretical issues of global application to practical problems at local level.

Summary

The importance of procedural environmental rights is currently widely recognised. They serve not only as a guarantee of the right to environment and a tool to increase participatory democracy and active involvement of the public in environmental protection but also as an effective instrument of monitoring compliance with – and enforcement of – environmental law. Following recognition of their importance, procedural environmental rights have increasingly been acknowledged in legal frameworks at the national, supranational and international level. The first comprehensive approach to procedural environmental rights at the international level was undertaken when access to information, public participation in decision making and access to justice in environmental matters were codified in Principle X of the Rio Declaration. Although the Rio Declaration belongs to the instruments of so called ‘soft law’ (i.e. having not binding legal nature but only a form of recommendations or political declarations) Principle X is commonly considered to be significant as a clear global expression of the developing concepts of the role of the public in relation to the environment. It was soon after its adoption acknowledged as an international benchmark against which the compatibility of national standards could be compared and as a forecast of the creation of new procedural rights which could be granted to individuals through international law and exercised at the national and possibly international level.

The binding international standard in relation to procedural environmental rights was set with the adoption in 1998 in the Danish city of Aarhus of the UNECE Convention on access to information, public participation in decision making and access to justice in environmental matters (Aarhus Convention). Since then a number of legal instruments regulating procedural environmental rights have been developed or are in the process of development at the national, supranational (regional) and international level.

The role of the Aarhus Convention for the development of procedural environmental rights is well acknowledged in the academic literature, It is described as “the first multinational environmental agreement that focuses exclusively on obligations of the nations to their citizens and nongovernmental organizations”, and the first binding international instrument attempting to comprehensively and exclusively address issues of citizens’ environmental rights. Furthermore, it is considered to be a “driving force for environmental democracy” in Europe, and “at the forefront” of developing the legal framework in this respect worldwide.

Summary

ABSTRACT

Over the past two decades ecological restoration has become a major environmental policy objective both at international and EU level. However, the question to what extent such restoration claims can be effectively enforced through legal action before national courts within the context of EU nature conservation law has received little attention so far. In this chapter a case is made for a legally enforceable restoration duty for strictly protected species, such as the Wild hamster, which are listed in Annex IV of the Habitats Directive. Taking into account recent case law developments before the Court of Justice of the EU (CJEU) it is argued that environmental NGOs might step in as effective ‘guardians’ of endangered species that are in dire need of additional recovery measures in order to stave offimminent extinction. It is demonstrated that the powerful combination of Article 9(3) of the Aarhus Convention and the general principles of EU law is capable of overcoming the traditional procedural obstacles to environmental litigation. Moreover, while the system of strict protection duties contained in Article 12(1) of the Habitats Directive is primarily directed at conserving the ‘status quo’, the restoration imperative present within the directive can still be used so as to compel Member States to adopt more progressive restoration strategies vis-a-vis protected species. The major conclusion is that it is no longer inconceivable to force national and/or regional authorities through court room action to implement more robust restoration programmes aimed at achieving the favourable conservation status of endangered Annex IV species.

GENERAL INTRODUCTION

FROM STATIC PRESERVATION MANAGEMENT TO ECOLOGICAL RESTORATION

‘Imagine a single survivor, a lonely fugitive at large on mainland Mauritius at the end of the seventeenth century. Imagine this fugitive as a female. She would have been bulky and flightless and befuddled – but resourceful enough to have escaped and endured when other birds didn't. Or else she was lucky. (…) (The dodo) had become rare unto death. But this one flesh-and-blood individual still lived.’

This compelling excerpt from the book The Song of the Dodo, written by David Quammen on the extinction of species in, to quote the author's own words, ‘a world that has been hacked to pieces’, aptly captures the unenviable fate of the last living survivor of a species that is on the road to extinction.

Summary

ABSTRACT

The Lisbon Treaties constitute a new stage in the process of European integration. They promote an open society in which decisions are taken as openly as possible and as closely as possible to the citizen. The functioning of the EU shall be founded on representative democracy, which includes that right of every citizen “to participate in the democratic life of the Union”.

This individual right to participate is further concretized by the right to participate in elections to the European Parliament (Articles 22(2) and 223 TFEU), the right to participate in a citizen initiative (Article 11(4) TEU), the right to submit petitions to the European Parliament (Articles (24(2) and 227 TFEU, the right to submit complaints to the European Ombudsman (Articles 24(2) and 228 TFEU), the right to have access to documents held by EU institutions (Article 15 TFEU) and the right to write to any EU institution or body and obtain an answer (Article 24(4) TFEU).

The present contribution will limit itself to examining how the right of participation of citizens in environmental decision-making was put into practice by EU institutions and bodies at EU level and, via secondary EU law, at the level of the Member States. After a description of the different provisions of primary law – the TEU and the TFEU – (1) and of secondary EU law (2), the application of the right to participate at EU level (3) and in EU legislation regarding the participation in environmental decision-making at national level will be examined (4). Some concluding remarks will round up the contribution (5).

PRIMARY EU LAW

The EU Treaties do not contain specific provisions as regards the rights of citizens to participate in environmental decision-making. As a general obligation, apart from the provisions mentioned above, Article 11(2) TEU is to be mentioned, which obliges the EU institutions to maintain an open, transparent and regular dialogue with representative associations and civil society. Article 11(3) TEU obliges the Commission to “carry out broad consultation with parties concerned in order to ensure that the Union's actions are coherent and transparent”. The objective of the open and regular dialogue is clarified in Article 15(1) TFEU, which asks the Union institutions and bodies to conduct their work as openly as possible, “(I)n order to promote good governance and ensure the participation of civil society”.

Summary

INTRODUCTION

There are two important features of the Polish system of issuance of development consent for projects requiring the Environmental Impact Assessment that need mentioning for the purpose of this article: the first one is the multi-stage nature of the development consent in Poland and the other is that the first stage thereof is the “environmental decision”, summarizing the findings of the Environmental Impact Assessment. The latter is regulated by the Act of 3 October 2008 on the access to environmental information, public participation and the Environmental Impact Assessment (OJ 2016 item 353 text codified as amended, further referred to as EIA Act).

At the same time, the Polish legal system provides for several sectoral Acts that derogate the general rules of the issuance of environmental decisions and replace them with separate provisions that are more favourable for the investors and at the same time lowering the safeguards for the environment. Those changes encompass the elements as mentioned:

Summary

ABSTRACT

A history of conflicts and failures: the Ilva case might be summarized like that. The Ilva steel plant, located just outside the city of Taranto, is a big polluter, but also a provider for thousands of jobs. In 2012 criminal judges seized core parts of the factory, in order to shut it down; the Italian Government intervened in order to overcome the seizure and its effects. The citizens of Taranto are torn between the anxiety for their health, jeopardized by the industrial activities, and the concern for their economic future, should the plant be closed. Failures are evident in the persisting unsustainability of the environmental, social and economic crises. In this context, lack of reliable and coherent information and problematic public participation has made things worse, delaying and altering the awareness of the local community and, in the end, procrastinating the adoption of incisive measures.

KEYWORDS

Environmental permit; Ilva; Information; Integrated pollution prevention and control; Participation; Pollution; Steel plant; Sustainable development.

INTRODUCTION: THE ISSUES

Ilva is the Latin name for Isola d'Elba, a beautiful island rich in iron offthe coast of Tuscany. Ilva is also the name of the company (Ilva s.p.a.) that owns, among others, the steel plant located just outside the city of Taranto, in the Southern Italy Region of Apulia. Its business is the production, processing and marketing of steel products. The Ilva steel plant in Taranto has been operating, and polluting, for more than fifty years, but it is just in the last few years that it attracted a high level of legislative, administrative, judicial and mass media attention.

The basic and dramatic dilemma concerning the Ilva factory in Taranto is between shutting it down and letting it open. In the first case, social and economic measures would be needed in order to avoid a “welfare disaster”, as thousands of people would lose their jobs or substantially reduce their income and their business chances. In the second case, environmental measures would be needed in order to avoid further deterioration of the quality of air, water and soil, which would put the health of the population under additional, intense, stress. Both solutions aim to protect some basic rights and interests: life and health, in the first case; work and private enterprise, in the second case.

Summary

“I support the indigenous people anywhere in the planet.”

Edward James Olmos

ABSTRACT

The paper describes the participatory mechanisms granted to minorities or indigenous groups in Europe and in the Arctic Region.

The first part analyses various legal instruments approved in Europe (and more specifically by the Council of Europe and by the Organization for Security and Cooperation in Europe) to protect and safeguard the status and the participatory rights of minorities and indigenous groups at international, regional and national level.

The second part explores the initiatives undertaken by the Arctic Council and then more specifically by Norway as an example of Arctic State, that grants to the Arctic indigenous peoples an active role as decision makers and participants in environmentally-related decisions.

The scope of such a dual analysis is to show that only an inclusive approach can offer an effective restoration to the injustice of marginalisation. The inclusive stance has a dual meaning: first, it allows to apply legal restorative provisions to the widest extent of groups, no matter what formal category they fall into; second, it orientates such provisions to the common scope of fulfilling the substantive equality principle.

The inclusive approach does not foresee any contrast between the international instruments that provide restorative rights to minorities and indigenous groups and the regional provisions that grant an official status to the indigenous groups, as well as other effective mandatory tools to engage them in decision-making processes; it rather encourages the application of minimum standards for responding to the needs of vulnerable groups.

KEYWORDS

Arctic; Environmental decision making; Europe; Indigenous peoples; Minority groups; Participatory rights

INTRODUCTORY REMARKS

This work offers a dual analysis of different legal regimes that aim to restore and protect the indigenous peoples’ substantive and procedural rights: a regional overview of the indigenous rights’ protection in Europe (with a focus on the international conventions approved by the European Council and the Organization for Security and Cooperation in Europe, OSCE) and an analysis of the state-of-the-art of the indigenous peoples’ protection in the Arctic Region (Arctic Council at regional level; Norway at national level). The scope is to show that only an inclusive approach can offer an effective restoration to the injustice of marginalisation.

Summary

ABSTRACT

Access to justice is a pillar of democratic governance. It promotes just and equitable outcomes thereby supporting the rule of law. The importance of judicial institutions [courts and specialist tribunals to adjudicate environmental disputes] is widely acknowledged in international instruments. Principle 10 of the Rio Declaration, 1992, strengthens access rights by stating ‘effective access to judicial and administrative proceedings, including redress and remedy, shall be provided by states in environmental matters’. In this context, India's commitment to secure environmental justice assumes significant practical importance. This chapter traces and evaluates the role of the Indian judiciary (Supreme Court of India and the National Green Tribunal) in contributing and promoting access to environmental justice. The chapter presents and analyses participatory parity in Indian environmental discourse evolved from the concept of broad and liberal litigant ‘standing’ in environmental matters facilitated by Supreme Court of India through Public Interest Litigation (PIL) and ‘aggrieved party’ by the National Green Tribunal (NGT). It reviews appropriate case illustrations in providing victims of environmental degradation with a way to access justice in a participatory manner.

INTRODUCTION

A broad understanding of environmental justice involves participation in environmental controversies. Participatory mechanisms can help to meliorate issues of inequality, recognition and the larger question of capabilities and functioning of individuals and communities. ‘Parity of participation’ comes with the satisfaction of two conditions: ‘that institutionalized cultural patterns of interpretation and evaluation express equal respect for all participants and ensure equal opportunity…’ and ‘the resources to enable participation’.

The discourse and understanding of environmental justice has increased and now includes issues of fairness, equity and standing, rights of disadvantaged populations in developing countries and meaningful participation in the decision-making process to promote environmental governance. This chapter focuses on a strong procedural dimension that reflects fair, open, informed and inclusive state institutional processes. In this context, access to justice through an accessible judicial mechanism that offers redress to environmental damage or harm and the protection and enforcement of legitimate interests becomes important.

Access to justice is a pillar of democratic governance. It promotes just and equitable outcomes thereby supporting the rule of law. Courts allow people to hold government, agencies, companies and individuals accountable for the violation of their fundamental rights as enshrined in the constitutional mandate.

Summary

ABSTRACT

In Czechia, the EIA procedure is the very first step in a long chain of permitting procedures. This chapter focuses on such multi-stage decision-making process from the perspective of public participation, and provides several examples from the Czech case law and administrative practice. The authors conclude that the quantity of various specific regimes itself has a huge impact on effectiveness of public participation and the narrow scope of various proceedings seems restrictive, pushing the public to carefully select its arguments or employ a “carpet bombing” tactics instead. Moreover, multiple decision-making generates costs on all sides, including investors and administrative bodies.

KEYWORDS

Czech Republic; EIA; infrastructure development; public participation

INTRODUCTION

The separate environmental impact assessment (EIA) usually forms a part of a multi-stage decision making process which, at first glance, brings additional requirements as regards coordination of the official authorities and their statements or decisions.

Furthermore, a multi-stage decision making process might create problems which are not obvious per se but may present substantial threat to effective public participation.

In our contribution, we will discuss these issues on example of the legal regulation in Czechia and its recent changes. We focus on the advantages and disadvantages of the EIA as a part of the multi-stage decision making process from the perspective of public participation, and provide several examples from the Czech case law and administrative practice to answer the question whether the public participation can be an effective and under which conditions.

QUEST FOR COMPLIANCE

First of all, some introductory remarks should be made as regards a long struggle of the Czech legislator to fulfil the criteria of the EIA Directive. While most of the Member States opt for the EIA procedure integrated into the existing procedures for development consent to projects, some countries, including Czechia, use the second option offered by Article 2.2 of the EIA Directive and establish a specific, separate procedure to comply with the aims of the Directive.

HISTORICAL DEVELOPMENT

The EIA procedure was introduced in the Czech legal system more than two decades ago, in 1992. Current legislation was adopted in 2001 and has been amended several times since then. In 2006, the European Commission had opened a case against Czechia, and although it amended its legislation in 2009, the case was brought to the Court of Justice.

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Chapter 2 - Legal Analysis of the Doctrine of Conventionality Control

Summary

Miscellaneous Endmatter

Frontmatter

The Improvement of Article 37 of the EU Charter of Fundamental Rights – A Choice Between an Empty Shell and a Test Tube?

Summary

Procedural Environmental Rights and Climate Change

Definitions of the Aarhus Convention v the Proposal for a New Latin America and the Caribbean Instrument – Mapping the Differences in the Material Scope of Procedural Environmental Rights in International Law

Summary

Procedural Environmental Rights

Introduction Procedural Environmental Rights in Theory and Practice

Summary

Access to Justice

Towards a Legally Enforceable Duty to Restore Endangered Species under EU Nature Conservation Law – On Wild Hamsters, the Rule of Law and Species Extinction

Summary

The EU and Public Participation in Environmental Decision-Making

Summary

Special Provisions on the Issuance of Environmental Decisions in Sectoral Legislation in Poland

Summary

Procedural Environmental Rights: Status and Developments

Procedural Environmental Rights in the Jurisprudence of the European Court of Human Rights and Their Impact on Criminal Procedure Law

Ilva: An Environmental Case

Summary

Legal Instruments to Protect Indigenous Peoples’ Participation in Europe and in the Arctic Region

Summary

Access to Environmental Justice in India: Innovation and Change

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Contents

Public Participation and EIA in the Multi-Stage Decision-Making Process: The Czech example

Summary

Procedural Environmental Rights in Practice

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Procedural Environmental Rights

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