2.1 Sustainability in International Environmental Law

In international environmental law, the concept of sustainability has evolved from the tension between the objectives of economic development and environmental protection.¹⁹ This tension was clearly formulated by the Club of Rome’s report The Limits to Growth in 1972,²⁰ which argued that the environment could not sustain continued economic growth.²¹ In 1983, the UN General Assembly (UNGA)²² approved the establishment of the World Commission on Environment and Development to “propose long-term environmental strategies for achieving sustainable development to the year 2000 and beyond”.²³ In its landmark report Our Common Future²⁴ (the “Brundtland Report”),²⁵ the Commission advanced the concept of sustainable development²⁶ as “development that meets the needs of the present without compromising the ability of future generations to meet their own needs”. According to the report, “at a minimum, sustainable development must not endanger the natural systems that support life on Earth: the atmosphere, the waters, the soils, and the living beings”.

Sustainable development can therefore be seen as a symbiosis between economic and environmental policy and – at the level of rights – between the right to development and the right to an adequate environment.²⁷ Conflicting aims seemingly dissolve in this term.²⁸ In any case, the relative weight given to economic and ecological values in documents committed to sustainable development can vary considerably. Ecologically oriented definitions of sustainable development rely on the natural sciences; they emphasise the need for an absolute reduction of pollution and consumption to levels within the carrying capacity of ecosystems.²⁹ Against this background, environmental legislation essentially serves to reduce or avoid the most serious impacts on the environment,³⁰ as it is committed – with a defensive approach – to the concept of sustainability from the perspective of the environmental media under threat. Legal instruments in this field of law set limits to activities that may interfere with the environment. This perspective also explains why, in environmental law, the term “sustainability” is increasingly used in isolation from the term “development”. This redefinition emphasises the ecological considerations and implies prioritisation of nature conservation over its economic use.³¹

2.2 Public Participation in International Environmental Law

Initial steps towards public participation in environmental matters can be traced back to the World Charter for Nature adopted by UNGA in 1982.³² Its principle 16 clarified the need for the timely disclosure of environmentally relevant information for effective public consultation and participation in planning. Principle 23 went one step further, stating that all persons shall have the opportunity to participate in the formulation of decisions of direct concern to their environment.³³ The Brundtland Report also proposed a right to participation in chapter 12 and enumerated it alongside the rights of access to information and access to justice.³⁴ Subsequently, the documents of the 1992 Earth Summit in Rio de Janeiro, the Rio Declaration on Environment and Development (principle 10)³⁵ and the “Agenda 21” Action Plan³⁶ linked the rights to access to information, public participation and access to justice. These rights were further differentiated and elaborated in 1995 in the Sofia Guidelines, which resulted from the third UNECE Ministerial Conference of the “Environment for Europe” process in Sofia (Bulgaria).³⁷ The guidelines already established the subsequent three-pillar structure of the AC, which was drafted from 1996 onwards.

The historical development reveals the close connection amongst the procedural environmental rights. Nowadays, the rights to information, public participation in decision-making and access to justice in environmental matters are generally provided for alongside one another. Beyond this, the historical step-by-step process reflects a multi-level model in the relationship between these rights.³⁸ International documents initially only dealt with aspects of access to information, subsequently with those of public participation, and only finally with access to justice. This development can be explained by the increasing intensity with which citizens can participate in environmental protection. Only gradually were states willing to share responsibility with the public. The historical development also corresponds to a logical sequence in the sense of a multi-level model to realise environmental protection: Access to environmental information can be understood as the first level. It necessarily precedes public participation as the next level at which it is possible to influence decisions with an environmental impact. Finally, access to justice serves to effectively enforce the rights of the lower levels. Conversely, deficiencies at one level may also compromise the effective exercise of rights at the next level.³⁹

2.3 The Right to a Healthy Environment in International Environmental Law

The history of the right to a healthy environment, which the AC and the EA seek to protect, dates back to 1972.⁴⁰ This was the year of the first UN Conference on the Environment which formulated in principle 1 of the Stockholm Declaration:⁴¹ “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations”. Nevertheless, the right to a healthy environment is still not guaranteed in any global human rights treaty. More recently, however, the UN Human Rights Council in October 2021 recognised “the right to a clean, healthy and sustainable environment as a human right that is important for the enjoyment of human rights” and noted that this right is related to other rights and existing international law.⁴² UNGA followed this example on 28 July 2022.⁴³ The right of every person to live in an ecologically sound environment adequate for their health, well-being, dignity, culture and fulfilment is also enshrined in the Global Pact for the Environment which the French government presented to UNGA for consideration in 2017.⁴⁴ Often, the right to an environment specified by different adjectives is equated with the shorter designation as “right to a healthy environment”.⁴⁵ Reversely, the right to a healthy environment should also not be understood too narrowly, but rather broadly. The focus on the adjective “healthy” can be justified by its direct connection to individuals.

The realisation of the right to a healthy environment depends to a large extent on procedural rights, as states have some discretion to adopt substantive environmental standards. In contrast, procedural rights are particularly clear and widely recognised: The obligation of states to protect individuals against environmental harm requires them, regardless of the right under threat, to take steps to inform those who may be affected, to facilitate their participation in decision-making and to provide effective remedies for harm.⁴⁶ These procedural rights enhance compliance with environmental law and thus contribute to the protection of the environment. By protecting the environment, procedural human rights also protect the substantive human rights – of their rights holders but also of other persons.⁴⁷ This is reflected in both the AC and the EA and their respective focus on protecting the right to a healthy environment.

3.1 Sustainability in the Regional International Treaties

A comparison suggests that the AC and the EA attribute different weight both to the concept of sustainability itself and to the different dimensions of sustainability, i.e. the economic and environmental values.

In the AC, only the preamble refers to the term “sustainability”.⁴⁸ The Parties to the convention affirm the need to ensure sustainable and environmentally sound development (recital 5), thereby acknowledging that the procedural rights guaranteed in the convention play an important role in achieving sustainable development.⁴⁹ State Parties also share the desire to promote environmental education to further understanding of the environment and sustainable development and to encourage widespread public awareness of, and participation in, decisions affecting the environment and sustainable development (recital 14).

The importance of the concept of sustainability is illustrated more clearly in the Implementation Guide to the AC. This is an explanatory document drawn up by international experts.⁵⁰ The Court of Justice of the European Union has decided that, although the observations in the Guide have “no binding force” and do not have the “normative effect” of the provisions of the AC, they can be taken into consideration if appropriate among other relevant material for the purpose of interpreting the convention.⁵¹ According to the Implementation Guide, then, the AC provides an effective model for ensuring public participation in, inter alia, the definition and implementation of green economy programmes and in the choice of the most appropriate road maps to sustainability.⁵² The AC, as plausibly interpreted in the Implementation Guide, establishes that sustainable development can only be achieved through the involvement of all stakeholders.⁵³

Beyond the explicit reference to the concept of sustainability, the AC emphasises the future perspective that is inherent in sustainability, as it aims at development that does not compromise the ability of future generations to meet their own needs. The Parties to the convention in its preamble recognise “the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations” (recital 7). Moreover, the right of every person to live in an environment adequate to his or her health and well-being, whose protection is the objective of the convention, is explicitly attributed to present and future generations in art 1.

Remarkably, art 1 of the EA establishes sustainable development as an objective of the agreement, placing it on an equal footing with the right to a healthy environment. The provision can even be understood to protect sustainable development as a right.⁵⁴ The preamble is replete with references to the concept of sustainable development. The Parties consider the 2030 Agenda for Sustainable Development⁵⁵ as reaffirming UNGA’s “commitment to achieving sustainable development in its three dimensions – economic, social and environmental – in a balanced and integrated manner” (recital 9). Furthermore, the principle of non-regression and the principle of progressive realisation (lit c), as well as the principle of permanent sovereignty of states over their natural resources (lit i) are among the principles that shall guide the Parties to the agreement in its implementation (art 3).

In the preface to the EA, Alicia Bárcena, the Executive Secretary of the Economic Commission for Latin America and the Caribbean (ECLAC) emphasised that the agreement balances the three dimensions of sustainable development (economic, social and environmental) and refutes “the false dichotomy between environmental protection and economic development”. The Executive Secretary underlined that “growth cannot take place at the expense of the environment and the environment cannot be managed if our economies and peoples are ignored”.

While the AC, with its focus on the right to a healthy environment clearly aims for environmental protection, the EA strives more for a balance between environmental protection and economic growth that should not be at the expense of the other.⁵⁶ This different nuance likely results from the different stages of development of the signatory states in Europe representing the Global North on the one hand and the signatory states in Latin America and the Caribbean representing the Global South on the other. It may be regarded as an expression of the principle of common but differentiated responsibility. This principle belongs to the inter-related principles of international law that are instrumental in pursuing sustainable development in an effective way. Among these are also the duty of states to ensure sustainable use of natural resources, the principle of equity which refers to both inter- and intragenerational equity, the principle of the precautionary approach to human health, natural resources and ecosystems, and – of particular importance in the present context – the principle of public participation and access to information and justice.⁵⁷ The precautionary principle (lit f) and the principle of intergenerational equity (lit g) are also enumerated in art 3 of the EA and shall guide the parties in its implementation.

3.2 Public Participation in the Regional International Treaties

The AC guarantees the right to public participation as one of the three procedural rights that contribute to the protection of the right to a healthy environment (art 1) and can thus also be regarded as instrumental rights. Differing from the right to a healthy environment, the AC defines the right to public participation as an enforceable right and obliges the Parties to the convention to take the necessary legislative, regulatory and other measures as well as proper enforcement measures to implement the relevant provisions of the convention (art 3(1)). This is also illustrated by art 9(2) AC, which provides that members of the public concerned shall have access to a review procedure to challenge the legality of decisions, acts or omissions concerning specific activities for which public participation is provided for under art 6 AC. On the whole, the convention contains extensive provisions on public participation in decisions on specific activities (art 6), in relation to plans, programs and policies relating to the environment (art 7), and during the preparation of executive regulations and/or generally applicable legally binding normative instruments (art 8). These form the second pillar of the convention – alongside access to information (first pillar) and access to justice (third pillar) in environmental matters.

According to art 1 EA, the objective of the convention is to guarantee the full and effective implementation in Latin America and the Caribbean of the right to public participation in the environmental decision-making process – as well as the rights of access to environmental information and access to justice in environmental matters. This objective stands alongside the contribution to the protection of the right to a healthy environment and to sustainable development as further objectives of the agreement. The instrumental character of the procedural rights is less clear than in the AC. Simultaneously, their intrinsic value becomes more apparent.⁵⁸ According to art 4, the Parties to the agreement shall ensure that the rights recognised in the agreement are freely exercised (para 2) and shall adopt the necessary measures to guarantee the implementation of its provisions (para 3). Access to justice shall also be ensured to challenge any decision, action or omission related to public participation in the decision-making process regarding environmental matters (art 8(2)(b)). The provisions on public participation are concentrated in art 7.

3.3 The Right to a Healthy Environment in the Regional International Treaties

For the first time, art 1 of the AC explicitly and bindingly provides for the right of every person, including future generations, to live in an environment adequate to his or her health and well-being.⁵⁹ The rights to access to information, public participation in decision-making and access to justice serve the procedural protection of this right, which highlights the link between environmental protection and the individual. However, art 1 AC recognises the right to a healthy environment only as the objective of the three procedural environmental rights, but not as an enforceable right. The provision does not impose any specific legal obligations on the Parties to the convention beyond guaranteeing the procedural rights of access to information, public participation and access to justice.⁶⁰

The preamble connects the idea that adequate environmental protection is essential to the enjoyment of basic human rights (recital 6) with the idea that every person has the right to live in a healthy environment (and the obligation to protect the environment) (recital 7).⁶¹ Thus, the right to a healthy environment not only illustrates the link between human rights and environmental protection. The preamble goes one step further, as the right to a healthy environment is deduced from the fact that a healthy environment is a precondition for the enjoyment of well-established basic rights, such as the right to life and the right to health.⁶² Moreover, the AC is the first international treaty that extends the right to a healthy environment to future generations, thus pursuing an intergenerational approach.⁶³ As already mentioned, the concept of intergenerational equity, i.e. that the impact of current actions on future generations must be taken into account, is also one of the fundamental tenets of sustainable development.⁶⁴ Previously, human rights law had tended to avoid identifying the rights of those not yet born.⁶⁵

The EA, according to its art 1, also aims to protect the right of every person of present and future generations to live in a healthy environment. The agreement is even classified as a human rights treaty in the preface,⁶⁶ and the preamble refers explicitly to international human rights instruments (recital 5). The general provisions in art 4 on the exercise of the rights recognised and the implementation of the provisions of the agreement also do not explicitly differentiate between procedural rights on the one hand and the right to a healthy environment (or sustainable development) on the other, all of which can be considered environmental human rights.⁶⁷ This raises the question of whether the right to a healthy environment is also an enforceable right. However, weighty arguments militate against this assumption. First, art 4(1) EA as a specific provision on the right to a healthy environment suggests that this right is to be distinguished from the procedural rights and should not be subsumed under art 4(2) EA.⁶⁸ Accordingly, the Parties to the agreement shall guarantee this right as well as any other universally-recognised human right related to the agreement. Second, the right to a healthy environment is not further specified in the agreement. Third, it is only with regard to procedural rights that art 1 states that the aim of the agreement is to guarantee their “full and effective implementation”. With regard to the right to a healthy environment, by contrast, only the creation and strengthening of capacities and cooperation, contributing to the protection of this right, is envisaged. Therefore, despite the divergent provisions on the right to a healthy environment in the two regional international treaties, it can be assumed that its meaning does not differ significantly. The greater openness to recognition of an independent right to a healthy environment that can nevertheless be observed may again at least also be linked to the perspective of the Global South. This is further illustrated by the Advisory Opinion of the Inter-American Court of Human Rights (IACtHR) from 2017.⁶⁹

4.1 Sustainability and Public Participation

As previously indicated, the procedural right to public participation in decision-making – as well as the rights to information and to access to justice – in environmental matters has an instrumental character in relation to sustainable development. This is reflected in the preamble to the AC (recitals 5, 14)⁷⁰ and in the preamble to the EA. The Parties to the agreement are convinced that access rights contribute to the strengthening of, inter alia, democracy, sustainable development and human rights (recitals 4, 8), thus expressing the instrumental character of the right to public participation. In contrast, art 1 EA lists the procedural rights alongside sustainable development (and the right to a healthy environment), without providing any information on their interrelationship. However, according to the same provision, the agreement shall guarantee the full and effective “implementation” of the procedural rights, while it shall only “contribut(e) to (…) sustainable development”. This difference in wording, which is inspired by art 1 AC, implicitly confirms the described linkage between public participation and sustainable development. It is also logical in view of the lesser degree of concretisation of sustainable development compared to the right to public participation in the regional international treaties. While the goal of sustainable development sets the direction, the enforceable procedural right serves as a means to achieve it.

This connection applies to international environmental law in general. The instrumental character of the procedural environmental rights in relation to sustainable development is reflected, for example, in the International Law Association’s (ILA) New Delhi Declaration of Principles of International Law Relating to Sustainable Development (2002).⁷¹ Furthermore, the ILA’s 2012 Sofia Guiding Statements on the Judicial Elaboration of the 2002 New Delhi Declaration refer to the principles of public participation, access to information and justice as foundational to sustainable development.⁷² According to these Statements, treaties and rules of customary international law should in general be interpreted in the light of principles of sustainable development.⁷³

4.2 The Right to a Healthy Environment and Public Participation

Art 1 AC clearly expresses the instrumental character of the rights to information, public participation in decision-making and access to justice in environmental matters (also) in relation to the right to a healthy environment, when the procedural rights are guaranteed to contribute to the protection of the right to a healthy environment. This is again confirmed by the vague substantive content of the right to a healthy environment and its lack of isolated enforceability.⁷⁴

For the EA, it is possible in this respect to refer to observations on sustainable development, since the right to a healthy environment is granted a parallel status, particularly in art 1 EA. In addition, the general provisions of art 4 reiterate at the outset that “(e)ach Party shall guarantee the right of every person to live in a healthy environment and any other universally-recognized human right related to the Agreement”.

4.3 Sustainability and the Right to a Healthy Environment

If the right to public participation in decision-making and the other procedural rights in environmental matters are instrumental for both sustainable development and the right to a healthy environment⁷⁵ (and also for the environment as a collective interest),⁷⁶ the question of their interrelationship also arises as a consequence.

Notably, it is not only the convergence of sustainable development and the right to a healthy environment in the AC and the EA that make it clear that these are largely congruent objectives. In principle 1 of the Rio Declaration on Environment and Development,⁷⁷ for example, the states recognised that “(h)uman beings are at the centre of concerns for sustainable development” and that “(t)hey are entitled to a healthy and productive life in harmony with nature”. Furthermore, the UN Human Rights Council and UNGA have explicitly recognised “the right to a clean, healthy and sustainable environment as a human right”.⁷⁸

Nevertheless, obvious differences exist between sustainable development and the right to a healthy environment. These can be illustrated by the two examples provided. In principle 1 of the Rio Declaration, states acknowledged the great importance of sustainable development for individuals, but avoided mentioning rights.⁷⁹ Furthermore, both the AC and the EA aim to protect the right to a healthy environment, which does not have to qualify as sustainable at the same time – like in the Human Rights Council and the UNGA resolutions. Rather, the EA places sustainable development as an objective alongside the right to a healthy environment. This raises the question: What does this imply?

First, the recognition of a right, i.e. the right to a healthy environment, already has a different quality from an objective legal principle, i.e. the principle of sustainable development. It goes one step further insofar as it presupposes beneficiaries through its subjective orientation as opposed to an objective law principle. This is fundamentally linked to the idea of simplified enforceability, even if the details depend on the substance of the right in question. However, as mentioned above, art 1 EA can also be read as referring to sustainable development as a right. Second, the characterisation of the environment as healthy establishes the most direct connection to the individual.⁸⁰ The recognition of an autonomous right to a healthy environment raises the relationship between negative environmental impacts and individuals to a new level. It is detached from other human rights that are not specifically tailored to this relationship. This is precisely the difference to the greening of generally recognised human rights. A healthy environment is no longer merely the prerequisite for individual human rights, rather it sits central to the individual itself and to the full enjoyment of all human rights.⁸¹ According to the Inter-American Court of Human Rights (IACtHR), the autonomous right to a healthy environment, unlike other rights, even protects the components of the environment (e.g. forests, rivers, and seas) as legal interests in themselves, regardless of the certainty or evidence of a risk to individuals.⁸² Moreover, in its collective dimension, it forms a universal value owed to present and future generations.⁸³

Finally, since the right to a healthy environment focuses on the protection of the environment as a habitat for individuals, it emphasises one of the three dimensions of sustainable development: Environmental protection is placed above economic and social development. At this point, however, the different accentuations of the AC and the EA should be stressed once again. While the AC clearly highlights the right to a healthy environment, the EA underlines the equal importance of this right and sustainable development (art 1), and the commitment to achieving the three dimensions of sustainable development in a balanced and integrated manner (preamble, recital 9).⁸⁴ In other words, under the EA environmental protection should not be given priority as a matter of principle.

Against this background, the focus on environmental protection seems to correspond only to the view of the Global North. For example, the Human Rights Council also juxtaposes sustainable development and environmental protection when it states that both contribute to and promote human well-being and the enjoyment of human rights for present and future generations.⁸⁵ Moreover, according to the IACtHR, the recognition of the right to a healthy environment as a right in itself is based on the close connection between environmental protection, sustainable development and human rights.⁸⁶ Following the African Commission on Human and Peoples’ Rights, the right to a healthy environment gives rise to states’ obligations to take reasonable measures to secure an ecologically sustainable development and use of natural resources.⁸⁷ What can be concluded in any case, however, is that the orientation towards a right to a healthy environment means that sustainable development must not come at the expense of human rights.⁸⁸

5.1 Participation in the Law-making Process

While the principle of sustainable development and the right to a healthy environment form the basis of the AC and the EA, the treaty provisions focus on the procedural rights of the eponymous treaties. Public participation as the central second pillar of the treaties can therefore be examined in more detail below. However, the AC and the EA not only address public participation in decision-making as a central issue, but they were also drafted with the active participation of the public. Numerous non-governmental organisations (NGO s) were involved in the negotiations of the AC. Such a strong participation of NGO s had never occurred before.⁸⁹ For the first time, NGO s specifically prepared one session in which government representatives and NGO s debated together.⁹⁰ Civil society and the wider public also participated significantly in the EA negotiations.⁹¹ At the first Conference of the Parties in April 2022, it became clear that public participation will continue to be important in the future of the EA. According to the Rules of Procedure of the Conference of the Parties, “(t)he public shall participate meaningfully in the Conference of the Parties and the subsidiary bodies established”.⁹²

Thus, public participation was realised on the two levels of drafting and content of the treaties. This may be due, on the one hand, to the subject matter of the treaties, namely public participation. The public should be involved in the decisions regarding its participation. On the other hand, the legal field of environmental law may also play a role, since the environment is a common good that can only be protected together. UNGA had already suggested that the World Commission on Environment and Development should “(m)aintain an exchange of views with (…) all (…) sections of public opinion, particularly youth, concerned with the environment”⁹³ when developing environmental strategies for achieving sustainable development.

5.2 Links to Concepts of Democracy

In particular, the right to public participation as a procedural environmental human right also has a democratic dimension. In the preamble to the AC, its parties recognise “the importance of the respective roles that individual citizens, non-governmental organizations and the private sector can play in environmental protection” (recital 13). The convention as a whole follows the approach of environmental protection through public supervision, and thus through decentralised control of law enforcement. This idea had determined European Union (at that time the European Community) law already before.⁹⁴ What is more, public participation under the AC means interaction between the public and state authorities, which is an expression of the idea of participatory democracy.⁹⁵

The EA is also assumed to recognise “core democratic” principles and to strengthen environmental democracy.⁹⁶ In its preamble, the Parties to the agreement recognise “the important work of the public and of human rights defenders in environmental matters for strengthening democracy, access rights and sustainable development and their fundamental contributions in this regard” (recital 11). According to art 4(6) EA, “(e)ach Party shall guarantee an enabling environment for the work of persons, associations, organizations or groups that promote environmental protection, by recognizing and protecting them”. As a specification of this “general provision”, the agreement even contains a separate provision on (the protection of) human rights defenders in environmental matters (art 9).⁹⁷

5.3 Rights Holders

This idea of participatory democracy is also reflected in the provisions of the regional international treaties on rights holders. Procedural rights are granted to the public. In environmental law, this approach seems logical due to the character of the protected environment as a common good of mankind. However, it is not always easily compatible with the (different) national perspectives, some of which are strongly based on the distinction of the individual from the general public.⁹⁸

The AC distinguishes between “the public” and “the public concerned”. According to art 2(4) “‘(t)he public’ means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations or groups”. According to art 2(5), “‘(t)he public concerned’ means the public affected or likely to be affected by, or having an interest in, the environmental decision-making (…)”. Under the convention, the public concerned has more extensive rights than the (general) public, including in public participation.⁹⁹ In this context, however, it should be noted that “non-governmental organizations promoting environmental protection and meeting any requirements under national law” fall within the definition of the public concerned, according to art 2(5) AC.

The EA goes even further. It makes no additional distinction with regard to the public.¹⁰⁰ Art 2(d) EA defines the public as “one or more natural or legal persons and the associations, organizations or groups established by those persons, that are nationals or that are subject to the national jurisdiction of the State Party”. In addition, the EA contains special provisions with respect to persons or groups in vulnerable situations.¹⁰¹ According to art 2(e) EA, this refers to “those persons or groups that face particular difficulties in fully exercising the access rights recognized in the present Agreement, because of circumstances or conditions identified within each Party’s national context and in accordance with its international obligations”. The Parties to the agreement shall ensure that guidance and assistance facilitating the exercise of access rights is provided particularly to those persons or groups in vulnerable situations (art 4(5) EA).¹⁰² Indigenous people are explicitly mentioned (art 5(4), art 7(15)), again reflecting the particular perspective of the Global South. Specifically on public participation, art 7(14) EA requires that persons or groups in vulnerable situations shall be identified and supported “in order to engage them in an active, timely and effective manner in participation mechanisms”. In other words, barriers to participation are to be eliminated.

5.4 Enforceability

The regional international treaties provide enforcement mechanisms at two levels for the procedural rights they guarantee. The rights under the first pillar (access to information) and the second pillar (public participation) are safeguarded via the third pillar (access to justice). According to art 9(2) AC and art 8(2)(b) EA, the contracting parties must ensure access to a review procedure to challenge the legality of, inter alia, any decision, action or omission related to public participation in the decision-making process regarding environmental matters. Since the AC is a so-called mixed agreement, concluded both by the European Union (EU) Member States and the European Union itself, case law of the Court of Justice of the European Union also exists on public participation under the convention.¹⁰³

The situation differs with regard to the EA and the IACtHR, whose European counterpart is the European Court of Human Rights (ECtHR).¹⁰⁴ In view of the previous case law of the IACtHR, however, it is not unreasonable to expect that the court would affirm its jurisdiction in the case of violations of procedural human rights under the EA.¹⁰⁵ Moreover, it should be noted that both the IACtHR¹⁰⁶ and the ECtHR¹⁰⁷ have already derived environmental procedural rights from other human rights guaranteed in the American Convention on Human Rights and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).¹⁰⁸

In addition, both regional international treaties provide for their own supervisory bodies, which are established as subsidiary bodies of the Conferences of the Parties. Based on art 15 AC, the first Aarhus Convention Compliance Committee (ACCC) was elected in 2002. Since 2005, it has submitted almost one hundred findings to the Conference of the Parties on reported violations of the convention.¹⁰⁹ The Committee to Support Implementation and Compliance established in art 18 EA does not yet exist. However, the Conference of the Parties already adopted the Rules relating to the structure and functions of the Committee to Support Implementation and Compliance at its first meeting in April 2022.¹¹⁰

5.5 Findings of the Arhus Convention Compliance Committee

In its numerous findings, the ACCC also made fundamental remarks on the second pillar (public participation) of the AC. These findings can generally be read as being guided by the concept of participatory democracy on which the convention is based. The corresponding broad understanding of public participation influences both the interpretation of the public concerned and the process of public participation.

Art 6(2) AC requires, inter alia, that the public concerned shall be informed in an effective manner. The Committee specifies that all those potentially concerned should have a reasonable chance to learn about the decision-making in question and their possibilities to participate.¹¹¹ The public concerned, which, as we have seen, includes both NGO s and individual members of the public, must not be based on discretionary power to pick individual representatives of certain groups.¹¹² Participation in closed advisory groups cannot be considered as fulfilling public participation requirements under the AC.¹¹³

In substance, the ACCC objects to the assumption that the general public cannot override the judgement of experts. The general public includes persons with different expertise, knowledge, opinions or experiences which, according to the objectives of the AC, should be taken into account in decision-making.¹¹⁴ The Committee points out that according to the preamble to the convention (recital 9), public participation is a fundamental tool for improving the quality of environmental decision-making. The AC aims to ensure that the public has the opportunity to express its concerns and that public authorities give due consideration to those concerns. In doing so it helps to ensure that environmental considerations are integrated into executive decision-making.¹¹⁵

According to art 6(4) AC, each party shall provide for early public participation, when all options are open and effective public participation can take place. In the ACCC’s findings on this and other provisions, it is evident that the convention is intended to create real opportunities for the public to influence decision-making. If construction starts before hearings are held, this is clearly not in conformity with the requirement for “reasonable time frames” and “early public participation, when all options are open” under art 6(3), (4) AC.¹¹⁶ It is important that participation includes public debate and the opportunity for the public to participate in this debate at an early stage of the decision-making process, when the outcome of the public participation can still be taken into account.¹¹⁷ The ACCC refers to the concept of tiered decision-making, where at each stage only the options already selected at the preceding stage are addressed.¹¹⁸ Therefore, if participation comes too late, alternative options may have already effectively been eliminated and decisive decisions may have been pre-determined.¹¹⁹ A multi-tiered decision-making procedure that provides for public participation on certain options at an early stage but considers other options only at a later stage without public participation is also incompatible with the AC.¹²⁰ Art 6(4) precludes foreclosing any options without public participation.¹²¹ It is not sufficient that there is a formal possibility, de jure, to turn down an application, if, in practice (e.g. due to political and commercial pressures or notions of legal certainty), this never or hardly ever happens.¹²² Furthermore, it must also be apparent to the public concerned that all options are open at the time of the public participation.¹²³

According to art 6(8) AC, each party shall ensure that due account is taken of the outcome of the public participation in the decision. This is the logical consequence of effective public participation. The ACCC recognises that the public authority is ultimately responsible for the decision and must take into account a number of (conflicting) factors, including the comments of the public. The requirement in art 6(8) AC to take “due account” of the outcome of the public participation therefore does not amount to a “veto right” of the public.¹²⁴ Even if this may result in a decision that is not necessarily accepted by the public, the public authority should, however, be able to demonstrate how comments were considered and why it did not follow the views expressed by the public.¹²⁵ Therefore, art 6(8), read in conjunction with art 6(9) AC, requires the competent authority to provide reasons for not accepting those options suggested by the public.¹²⁶

The ACCC also clarifies that it is not in line with the requirements of art 6 AC if the developers and not the competent authorities are responsible for organising public participation.¹²⁷ The obligation in art 6(8) AC necessarily requires that all comments from the public are fully considered by the competent authority itself and not only by the developer.¹²⁸ The administrative functions related to the organisation of the public participation procedure can be delegated to bodies or even private person, who are then considered as falling under the definition of a “public authority” in the meaning of art 2(2) (b) or (c) AC.¹²⁹ However, in order to ensure proper conduct of the public participation procedure, the bodies or persons shall specialise in public participation or mediation, be impartial and shall not represent any interests related to the activity under review.¹³⁰