Introductory remarks on the idea and the purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making (Poto/Lohse) Part I: Perspectives on participation – rationales, protected interests, and democracy

Download 0.51 Mb.
Size0.51 Mb.
  1   2   3   4   5   6   7   8   9   ...   21
Participatory Rights in the Environmental Decision-Making Process and the Implementation of the Aarhus Convention: a Comparative Perspective

Eva Lohse/Margherita Poto

Workshop und Expertenseminar, Turin, 3-5 July 2014

Introductory remarks on the idea and the purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making (Poto/Lohse)

Part I: Perspectives on participation – rationales, protected interests, and democracy

§ 1 Strengths and weaknesses of environmental participation under the Aarhus Convention: what lies beyond rhetorical proceduralisation? (Margherita Poto)

§ 2 Participatory Democracy and the global approach in environmental legislation (Cristina Fraenkel-Haeberle)

§ 3 The Aarhus Convention between protection of human rights and protection of the environment (Claudia Sartoretti)

§ 4 Participatory rights and the notion of interest in environmental decision-making: a theoretical sketch and some international legal considerations (Paolo Turrini)

§ 5 The public interest to environmental protection and indigenous peoples’ rights: procedural rights to participation and substantive guarantees (Federica Cittadino)

Part II: Participation in administrative decision-making: prerequisites and principles in national and supranational law

§ 6 Ecological Interest as a leading rationale for participation (Giulia Parola)

§ 7 The implementation of the Aarhus Convention in Italy: a strong “vision” and a weak “voice” (Viviana Molaschi)

§ 8 Participation of environmental associations in the context of nature conservation law in Germany (Julian Zwicker)

§ 9 Participation under REACH – stakeholder interests and implementation of EU secondary law (Nicola Below)

Part III: Participation through access to justice – conditions and concepts of judiciary participation

§ 10 Access to justice a the main challenge for implementing the Aarhus Convention (Eva Lohse)

§ 11 Implementation and the Separation of Powers (Angela Schwerdtfeger)

§ 12 The German criteria for access to justice under the scrutiny of the Aarhus Convention Compliance Committee and of the ECJ: is there room for similar proceedings against Italy? (Elena Fasoli)

§ 13 The effect of the Aarhus Convention´s Right to Access to the Courts in Germany (Bilun Müller)

§ 14 Attorneys for the environment – implementation of Art. 9 (3) Aarhus Convention? (Ulrike Giera)

Part IV: An example for best practises in environmental participation

§ 15 Environmental Management: the model of the environmentally equipped industrial area (Riccardo Beltramo/Stefano Duglio/Maria Beatrice Pairotti)

Comparative conclusions from a German-Italian Dialogue on Participation (Lohse/Poto)

Introductory remarks on the idea and the purpose of a German-Italian Dialogue on Participation in Environmental Decision-Making (Poto/Lohse)

Earth Democracy is a shift from anthropocentrism to ecocentrism. And since we all depend on the Earth, Earth Democracy translates into human rights to food and water, to freedom from hunger and thirst.

(Vandana Shiva, Earth Democracy)

I. Scientific background of the project

Our project on Participatory rights in the environmental decision making process and the implementation of the Aarhus Convention aimed to provide a comparative overview of the implementation of the Aarhus Convention (AC) on participatory rights in environmental decision making processes. The core idea was to explore the legal cultures of various EU member states, where the AC principles have been implemented in national law with a special focus on the participatory rights in German and Italian environmental law.

The AC can be seen as the litmus test of economic and political revolutions, having triggered shifts in mentality in the administrative decision-making process in environmental law. These changes have a twofold impact on the legal systems at stake: firstly, they certainly contributed to the expansion of public participation in all phases of the decision-making process (mainly in Italy); secondly, they run the risk of restricting the procedural autonomy of the Member States (mainly in Germany) on the basis of an excessively interpreted principle of effectiveness (art. 4 (3) Treaty establishing the European Union).

The project has scrutinised a few of these interrelations, in line with the following structure:

1) first, a comparative study on the differences and similarities in the German and Italian administrative procedures and court proceedings (especially regarding the access to courts, subjective/individual rights, third parties in administrative proceedings);

2) second, a scrutiny of the connection between the participatory achievements and the awareness of a common ecological interest;

3) third, the intricacies of participatory democracy and multi-level entities such as an international Convention, a supra-national organisation as a signatory and its Member States as co-signatories.

As regards participatory rights, the analysis on the compliance of the Italian and the German legal systems has followed a matrix of questions.

  • Are there differences in the application of the rules on public participation applicable respectively to specific activities (art. 6 AC), to plans, programs and policies (art. 7 AC), and to normative instruments (art. 8 AC)?

  • Is participation going beyond defence and consultation, and leading up negotiation or co-decision?

  • Are participatory rights given to NGOs in the same manner as to individuals (also considering art. 7 AC – “public which may participate” – and art. 9 AC)?

  • What is considered a reasonable timeframe for the different phases (art. 6 (3) AC)?

  • Are the requirements for participation in the AC considered the same as with the Environmental Impact Assessment (EIA) and Strategic Environmental Assessment (SEA) introduced by European Union (EU) directives or existent in national law? If not, how are differences dealt with?

  • In connection with access to justice, what is meant by “due account is taken of the outcome of public participation” (art. 6 (8) AC) and what are considered to be sufficient “reasons and considerations” (art. 6 (9) AC)?

As a starting point for the comparison, the situation 1) pre-, and 2) post-implementation of the AC was considered.

The difficulty in effectively implementing the participatory rights derives from the absence of a clear definition of substantive environmental rights. This Achilles’ heel of the AC has been pointed out by legal research. This lack has been defined as a practical obstacle impinging on its commitment to human rights, as it arguably reduces the scope for public deliberation on the appropriateness of environmental decision-making according to competing social values. It is therefore important to define characteristics or elements of substantive environmental rights. Their established connection to fundamental rights of the human being as endorsed in national and international codifications of human rights should be a starting point, yet, clearly environmental rights have to encompass further elements, such as sustainability and care for future generations but also collective rights and the protection of common goods that can hardly be expressed by individual human rights.

Therefore, the project has scrutinised where and to what extent the AC and EU implementation measures establish the legal protection of such rights and interests, especially by the introduction of participatory rights for the common good. In conclusion, there have been ups and downs in implementation of the AC over time. So far, however, the resulting legislation does not seem to have led to structural changes, which could have a significant impact on environmental policies and, most of all, which could give substance to environmental rights. Placing the Earth as the core object of the investigation, a shift to ecocentrism is needed, where the ‘ecological interest’ has to stand out as a fundamental right of the individuals. Our project, with the debate followed by the present publication, aims to contribute to the knowledge of whether the European Union is on the right way to establish such an approach.

II. Success and outcome of the project

The success of this project lies in the wish that a research group led by young (mostly female) legal researchers can trigger a shift in mentality on environmental participation.

This idea was generously supported by the Deutsche Akademische Austauschdienst (DAAD), that believed in our potential to build up a network of scholars and practitioners willing to explore the environmental consciousness flourished after the AC, and therefore to contribute to its programme of Deutsch-Italienische Dialoge. And a dialogue it was, indeed. The research group was formed by legal scholars, young in age or in spirit, practitioners, economists, philosophers and a theologian from different countries of the EU.

The importance of a participatory approach was dual, since it found its own dimension both as main objective of the project (environmental participation) and as the methodology applied to reach the objective itself (a German-Italian dialogue open to third interlocutors).

The importance of environmental participation is grounded on some key aspects:

1) the dialoguing parties all agree upon the core idea that deep reflections on the importance to grant a wide environmental participation are of great benefit for the Earth;

2) a serious commitment to constitute a task force of young researchers on environmental protection is urgently needed;

3) all the efforts undertaken toward an effective shift to ecocentrism in the global scenario shall be strengthened and encouraged.

Alongside with our commitment to environmental legal studies, we wish that this project, with a conference and a collection of proceedings, is only the starting point of a long-term cooperation between academic institutions, free thinkers, scholars and third parties.

Our heartfelt gratitude goes to all the people who believed in our idea and decided to be part of the dialogue, as supporters and interlocutors.

Erlangen-Turin, 22 November 2014

Eva Lohse, Giulia Parola, Margherita Poto

Download 0.51 Mb.

Share with your friends:
  1   2   3   4   5   6   7   8   9   ...   21

The database is protected by copyright © 2023
send message

    Main page