Most Governments have responded to the coronavirus disease (COVID-19) pandemic by declaring a state of emergency and by adopting numerous measures to combat the spread of the virus, which have often included restrictions on the freedoms of assembly and movement. This has altered the way in which numerous rights are exercised. Overnight, we have seen the closure of borders, the cancellation of meetings and gatherings, the shutting down of public spaces and public institutions and the transferal online of services. Consequently, there has been an impact on procedural rights of public access to information, participation in decision-making and access to justice, including in environmental matters. These rights are the cornerstones of environmental democracy and embody the right to a healthy environment.
In such a situation, the two global treaties hosted by UNECE – the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention, 1998) and its Protocol on Pollutant Release and Transfer Registers (Protocol on PRTRs, 2003) – aid authorities in ensuring the implementation of the above-mentioned rights to common standards.
The Aarhus Convention provides for a number of obligations specifically relevant in the context of COVID-19. For example, the provision of effective public access to information related to COVID-19 matters, such as: the origin of the virus; related impacts on biodiversity and ecosystems, on other objects of the environment and on human health; and how to ensure effective procedures of public participation in decision-making on legislation, plans, policies and projects related to these matters. In the event of any imminent threat to human health or the environment, the Convention also requires that all information that could enable the public to take measures to prevent or mitigate harm arising from the threat and that is held by a public authority be disseminated immediately and without delay to those who may be affected. Lastly, the Convention ensures safety for environmental defenders without discrimination as to citizenship, nationality or domicile. The latter point is particularly relevant as many people have been locked up in foreign countries. I am proud to see that, owing to these visionary treaties, the above-mentioned procedures have become the norm across the UNECE region. They have driven fundamental changes in governance culture that would otherwise not have occurred.
At the same time, we also observe that Governments have adopted different measures for weathering the pandemic, walking the thin line between public health and civil liberties. Deadlines, hearings and public comment periods for environmental matters have been postponed or moved online. This means that major projects having an impact on the environment could be implemented without proper public involvement.
In response, a number of non-governmental organizations (NGOs) across the globe have called attention to several new pieces of COVID-19-related legislation that may limit those public rights and roll back environmental standards. In New Zealand, a group of environmental organizations has expressed concerns that the Government is using COVID-19 as an excuse to limit public input in the fast-tracking of some projects, which could “lead to poor outcomes, and amounts to a heist of democratic process.” They have called on the Government “to strengthen public participation by signing up to the United Nations Aarhus Convention”. In Malta, ten environmental NGOs have condemned Legal Notice 109/2020 – which announces the extension of development permits valid until 2022 for another three years – arguing that “the Legal Notice was not preceded by a legally required public consultation” and that the Planning Authority’s invitation to the public to participate in hearings electronically “is discriminatory and excludes persons without access to electronic means of communication”. In Slovenia, three NGOs have asked the Constitutional Court to examine tighter standards for the participation of NGOs in procedures in which building permits are issued, which were introduced with the amendments of the first coronavirus crisis stimulus package. The NGOs claim that the new arrangements are in breach of the Slovenian Constitution, European Union law and the Aarhus Convention and that they will prevent the majority of NGOs from participating. In Ukraine, an NGO highlighted that proposed changes to the Law on Environmental Impact Assessment during the lockdown period limit public discussion of the planned activities after the submission of the environmental impact assessment report exclusively to written comments and suggestions and foresee that public hearings will not be held for the duration of the lockdown.
In view of this disturbing trend, it is critical that the rights enshrined in the Aarhus Convention and its Protocol not only be maintained, but also strengthened in the context of the COVID-19 pandemic. The rights under these treaties support governance and accountability. They contribute to more effective decision-making in environmental matters and innovative solutions and facilitate the capturing of key local knowledge. In addition, they build public consensus around environmental issues and public ownership of solutions and decisions, which also leads to increased social cohesion and strengthened communities. Moreover, they foster a sense of trust in the authorities’ environmental decisions.
Conversely, we see that developers and public utility providers have been looking for more elaborate virtual solutions. For example, as a part of a grid development project, 50Hertz in Germany has developed digital alternatives for some of its projects and has provided easily accessible materials, such as maps, explanations, brochures and explanatory films, while a citizens’ consultation was conducted via telephone. Energy and environmental regulators in Canada have implemented measures in response to the COVID-19 pandemic, by replacing hearings and other in-person meetings with virtual means such as webinars or conference calls.
The move to virtual platforms and the use of information and communications technologies (ICTs) clearly expands the space for civic engagement and has a role in promoting responsible and accountable governance. However, the use of such technologies should be handled with due care, taking into account the needs of the public. A wide range of guidance materials has been developed at UNECE to assist authorities in handling public participation in different circumstances. The Convention’s Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters and its Aarhus Convention: An Implementation Guide, for example, clarify that: electronic information tools are efficient means of assisting the public in obtaining information and participating in decision-making, however, not all members of the public may be able to access such tools, in particular the elderly, illiterate, poor, etc.; public hearings or inquiries offer the opportunity to respond to questions and provide a venue for dialogue among stakeholders; and thus online consultation should be both complementary and tailored to the needs of the public. In the same spirit, the Office of the United Nations High Commissioner for Human Rights Guidelines for States on the effective implementation of the right to participate in public affairs note that ICT participation tools should be human rights compliant by design, and that participation through the use of ICTs should follow the same principles as offline participation, i.e. with particular regard to gender equality, in order to avoid any adverse human rights impact on individuals and groups that are marginalized or discriminated against.
This approach requires that the use of ICTs to implement the rights under the Aarhus Convention be accompanied by proactive measures that facilitate their availability, accessibility and affordability, including in remote and rural areas. For example, the ICT tools for participation need to be made available in local languages and in accessible formats for persons with disabilities. Alternatives for groups with limited Internet access also need to be implemented, such as telephone conferences. Furthermore, including in the context of the pandemic, changes to civic space and public engagement should be carried out in a transparent, accountable and participatory way.
More broadly, all measures for the prevention, treatment and control of the pandemic that restrict the rights of access to information, public participation and access to justice in environmental matters should be considered cautiously. They should adhere to international commitments, be limited to narrow circumstances, such as the duration of the lockdown, be proportionate to the pandemic situation and non-discriminatory and by no means put the rights themselves in jeopardy. Likewise, when moving to the recovery stage, existing environmental standards should not be rolled back in the name of economic recovery. On the contrary, upholding strong environmental democracy and integrating environmental concerns into recovery decisions will help us pave the way for economic development that is sustainable, environmentally viable, socially acceptable and healthy.
Since 1992, when the notion of public participation was enshrined in Principle 10 of the Rio Declaration on Environment and Development, the Aarhus Convention and its Protocol on PRTRs have been the most prominent promoters of access to information, public participation and access to justice in environmental decision-making. They recognize that, when we are able to exercise our public rights, we can help to protect the environment, strengthen environmental democracy and promote sustainable development.
At this critical time, we shall not forget our commitment to implementing the 2030 Agenda for Sustainable Development. The rights enshrined in the Aarhus Convention and its Protocol are essential for the Agenda’s implementation, in particular that of Sustainable Development Goal 16 on peace, justice and strong institutions. The procedures they offer are relevant across sectors and borders, making them critical tools for addressing transboundary and other risks and supporting a green, just and resilient recovery in the current circumstances.
UNECE stands ready to assist Parties and interested Governments in applying these valuable treaties to help overcome the current crisis while preserving democratic values.