Introduction of public participation
Historical and cultural perspective
When learning about public participation in an environmental context it is easy to assume that it is an issue of only the past decades. Although there is a recent increase in interest in public participation, countries like The Netherlands, Germany, Denmark and Sweden, have had provisions concerning public participation and the freedom of information in their legal systems since before the Middle Ages. These countries “have continually faced the eternal struggle against the threats of the sea” and are well-known for dike-construction, polderization and the reclamation of land. These measures have been a necessity for living in these areas for centuries. Managing such activities calls for public involvement and the oldest regulations known are the Rüstinger Rules of Law (1100 A.D), which facilitated such participation. Democracy and public participation are closely connected and democratic nations like the US have included elements for it centuries ago. The right to petition, for example, has been part of the first Amendment of the US constitution since 1791.
Even in contemporary society, there are still relatively few binding provisions on access to information and public participation in plans and projects dealing with environmental matters. Most legislation is “soft law” which means that the nation state is not obliged to abide by this law and that they can set their own provisions. The handbook Human Rights in Natural Resources (2002) provides a good overview of the sources of international law concerning public participation in environmental matters. After World War II, public participation began to gain some international ground; the 1948 Universal Declaration of Human Rights included several provisions on public participation. Ideally, people should have the right and the opportunity to interfere in all administrative processes and that they have a full right of standing in procedures under civil law. “Public Participation laws serve to inject `new players'-citizens, NGOs, indigenous peoples' interests, local communities, etc.-and therefore new challenges into one or more stages of the developmental decision-making that were previously the province only of the project developer, landowner, financier, and government officialdom.”
Before 1970, there was very little international law concerning the environment and this was the case mostly because of “the Seventeenth-Century principle of the sovereignty of nation-states, and its corollary, that states have exclusive sovereignty in particular over their natural resources”, meaning that states were solely responsible for their own environment. In the 1960's, global attitudes started to change, even though Principle 21 of the 1972 Stockholm Declaration still declares that states have sovereignty over their own natural resources when in agreement with the Charter of the United Nations. Around this time, in the 1970's it started to become more evident that environmental exploitation of one's own state does not just stay within boundaries and also affects other states. Therefore, another provision in the Stockholm Declaration defines that states also have the “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction”.
The 1992 Rio Declaration on Environment and Development The United Nations Conference on Environment and Development in Rio de Janeiro, also called the Rio Earth Summit was a major step towards public participation as a human right and therefore a major step towards the Århus Convention. Principle 10 of the declaration deals with public participation and states that “environmental issues are best handled with participation of all concerned citizens, at the relevant level”. The Rio Declaration then emphasizes the important role of states in facilitating public participation by taking care of adequate and effective access to information. Principle 20 deals with women's participation, Principle 21 deals with youth participation, Principle 22 promotes the participation of “indigenous people, their communities and other local communities” and Principle 23 calls for the protection of “the environment and natural resources of people under oppression”. By including all these different groups, the Rio Declaration sets the stage for a common vision on public participation in which everyone is allowed to participate. Declarations are, like “principles”, and “agendas” sources of non-binding or “soft” law.
The Rio Declaration adopted Agenda 21 which sums up what the important points are on which the UNEP (United Nations Environment Programme) should concentrate. These issues are for example, “the further development of international law” (of course also including participation as a human right) and the promotion of sustainable development. Agenda 21 calls for more efficiency in the implementation of international environmental law.
The EU Directive 90/313 of 7 June 1990 on the freedom of access to information on the environment is one of the first binding pieces of European legislation that had to do with public participation. This is however not included in the General Fundamental Rights Framework of the European Union and only concerns “information on the environment held by public authorities” so anything that does not concern the environment is not included. The freedom of access to information has to do with creating “awareness”, a level of public participation which will be discussed in chapter 4. This directive is now amended by Directive 2003/4/EC which also constitutes the first pillar of the the Århus Convention.
After the Rio Earth Summit
Pring and Noé mention some of the first provisions on public participation such as the Environmental Impact Assessment (EIA) laws, as a tool for public participation. These laws, that have their origin in the United States, are there to guarantee that the impact on the environment of decisions is clear before the decisions are made. In this way, the EIA laws combine development planning with environmental policy and also public participation. There is not a direct provision on public participation but because the impact on the environment needs to be known, consultation and access to information is obviously essential. Since such an interactive process is necessary to guarantee the success of EIA laws, public participation plays a role in almost all “EIA schemes” and that is why these EIA laws are worth mentioning. It was not until 1985, with the EC Directive on Environmental Impact Assessment, that international law really started to require EIAs, since directives are a form of “hard” law. Since EIAs are still required today and seem to be implemented throughout in Europe, they are an important drive behind public participation.
With the emergence of the concept of sustainable development in the 1970's a new era for public participation came about. Especially in the mid-1980's, after the Chernobyl disaster occurred, public concern for environmental issues increased tremendously. The report Our Common Future by the Brundtland Commission played a role of great significance with its new approach towards environmental problems, highlighting sustainable development. The Rio Earth Summit in 1992 with Agenda 21 (discussed in paragraph 3.3) resulted in a plan of action for sustainable development which also included clauses on public participation. Chapter 2: Public participation legislation, elaborates on recent public participation history.
A major recent development in the field of public participation in environmental issues in the EU is the Århus Convention or the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters. Kofi A. Annan, then Secretary-General of the United Nations said in reaction to the Århus Convention:
"Although regional in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration, which stresses the need for citizen's participation in environmental issues and for access to information on the environment held by public authorities. As such it is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations."
Pring and Noé call this Convention the “crucible” of international law on public participation. This is the first piece of European legislation that combines environmental rights and human rights and it is also the first document completely about public participation in environmental matters. The Convention is based on the premise that greater public awareness of and involvement in environmental matters will improve environmental protection. It is designed to help protect the right of every person of present and future generations to live in an environment adequate to his or her health and well-being. The idea of the Århus Convention is that greater public awareness and public participation in environmental matters will help to ensure the successful application of environmental law. The Århus Convention has three pillars. The first is the Right to Information, the second the Right to Participate and the third the Right to Justice in environmental matters. All EU member states are party to the Convention and Council Decision 2005/370/EC approves the Convention as a whole.
The Århus Convention was adopted on the 25th of June 1998 in the Danish city of Århus at the fourth Ministerial Conference in the “Environment for Europe” process. It entered into force in October, 2001 and the process of ratification still continues. The Convention is also open to accession for non-ECE (East-Central European) countries and therefore countries like Kazakhstan and the Republic of Moldova have ratified it. This is a big step in these countries towards more democracy and a better environment.
The 3 pillars of the Århus Convention
The Access to Information pillar has a passive and an active aspect. The passive or reactive aspect deals with “the obligation on public authorities to respond to public requests for information” so this is basically the right of the public to information they want on environmental issues. The active aspect is mainly about the right to accurate information and therefore the obligation of providing accurate environmental information by for example “collection, updating, public dissemination” etc. One important definition relating to this pillar is the one on “environmental information” which is defined by the UNECE to include the following: “a non-exhaustive list of elements of the environment (air, water, soil etc.); factors, activities or measures affecting those elements; and human health and safety, conditions of life, cultural sites and built structures, to the extent that these are or may be affected by the aforementioned elements, factors, activities or measures”. There are some exemptions relating to access to environmental information and they usually involve matters like national defence, public security, justice and personal privacy. Before they are imposed, these exemptions are reviewed very well and often face many restrictions. The Convention gives people the right to public participation by setting some minimum participation standards in environmental decision-making. These requirements are similar to the ones for an Environmental Impact Assessment. The public participation requirements are:
- The “public concerned” (for definition see paragraph 1.2) should be notified timely and effectively
- Time should allow for public participation
- Acquiring information should not cost the public any money
- The decision-makers should take into account the public's opinion
- The decision should be made public timely, with full text and reasons to back it up
Access to Justice is the pillar that guarantees the right to justice in the following contexts: “review procedures with respect to information requests, review procedures with respect to specific (project-type) decisions which are subject to public participation requirements and challenges to breaches of environmental law in general”. This pillar supports the other two pillars and “also points the way to empowering citizens and NGOs to assist in the enforcement of the law”. Besides guaranteeing the right to justice in those three contexts, the pillar also requires that all of the procedures in the three contexts are carried out “fair, equitable, timely and not prohibitively expensive”.
A recent and very important development concerning public participation is the recognition of it as a basic human right. This is the central theme of the Århus Convention (1998). This Convention guarantees people the right of access to information, public participation and the right to justice. Besides being a human right, public participation is also one prerequisite for democracy. According to the Regional Environmental Centre for Europe, “openness should be a rule in a democracy, and secrecy and exemption”. A knowledgeable, well-informed and interested public can be a great asset in the decision making process. Therefore, it is often in a governments interest to make sure that the public is well-informed and able to participate.
The SEA Protocol
Besides the Århus Convention, there is yet another international instrument that aims to incorporate public participation in decision making. The Protocol on Strategic Environmental Assessment (SEA Protocol) supplements Environmental Impact Assessment and it is a “process of evaluation of environmental effects (including health) during the preparation of policies, plans, programmes and legislation”. The SEA protocol basically aims to keep in mind health factors, social, economic and other issues in strategic decisions. In order to achieve this, SEA should be conducted with public participation; in this way, strategic decisions are made more transparent and should limit harm to environment and health. One of the problems with this protocol is that even though it was adopted in 2003 (after the Århus Convention) it is not stronger at all. The main difference between the two instruments is that the Convention includes all policies that have to do with the environment and that “no requirement for a significant effect is included”. The SEA Protocol on the other hand, “covers only policies likely to have a significant effect on the environment, including health, and it applies only to the extent appropriate”. So the SEA Protocol puts a greater emphasis on what is happening and what the effects are of a decision, while the Convention has a much broader scope, and focuses on public participation in specific situations.
As stated above, all citizens of the EU now have the right to participate in environmental decision-making. Especially considering the recent enlargements of the EU with former communist states, public participation levels throughout Europe can differ immensely. For example, a country with a strong central government will probably have a very different participation tradition from a country with a weaker central and stronger regional government. First of all, regional governments logically exist of people from the region and secondly, regional government and regional issues are much closer to the people which makes citizens and citizen groups more prone to participate. It is important to acknowledge these differences and similarities in Europe's participation practices for the context of this paper.
What is participation, who participates and how?
What is participation ?
The Århus Convention does not present a specific definition for participation, therefore when referring back to the general definition of public participation by Pring and Noé, participation means “the various mechanisms that individuals or groups may use to communicate their views on a public issue”. So it is the way that the public gets their views across on a public matter. The ways this may occur are numerous: voting, demonstrating, petitioning, lobbying, letter writing, debating, campaigning and many more. One major principle of public participation is the principle of subsidiarity. This principle means that decisions should be taken at the lowest possible level of organisation, as closely as possible to the citizen. For the EU this principle means that they do not take action “(except in the areas which fall within its exclusive competence) unless it is more effective than action taken at national, regional or local level.” The prospective EU Constitution is supposed to include more binding provisions concerning the principle of subsidiarity. Public participation is considered to be one of the eight principles of good ICZM. The EU defines it as: “ Involving all the parties concerned (economic and social partners, the organisations representing coastal zone residents, non-governmental organisations and the business sector) in the management process, for example by means of agreements and based on shared responsibility.” According to the Århus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (1998) “the public means one or more natural or legal persons, in accordance with national legislation or practice, their associations, organizations or groups.” The Århus Convention differentiates between “the public” and the “concerned public”, the latter basically meaning that part of the public which will probably be affected by, or which has a “special interest” in environmental decision-making. So the public does not include decision-making bodies or “bodies or institutions acting in a judicial or legislative capacity” like the European Court of Human Rights or the International Court of Human Rights. As this terminology is specifically derived from the Århus Convention, which will be further explained later in the chapter about legislation, it is important to also consider yet another definition. CoastLearn, the multimedia distance training package on Integrated Coastal Zone management provides us with the following definition: “Notions like "public" and "interested public" are used to identify the citizens who are directly affected by the project and not vested with administrative responsibilities, but taking part in the process of decision-making and implementation.” This is a much narrower definition because how can it be determined who is “directly affected” and who is not? What about the people who are just interested in a coastal matter? CoastLearn suggests that only the, possibly less informed, people who are indirectly involved with decision making are the public. The Århus Convention, on the other hand, claims that the public consists of just about anyone who wants to be involved and/or has an interest in the matter. A very simple definition is presented by the Regional Environmental Centre for Central and Eastern Europe (REC): the public are “people or organizations who do not represent the government” (pp. 36). The REC definition basically supports the Århus definition, even though it was publicized some years before in 1994. In this paper, the Århus Convention definition will be used and this is mainly because it is much easier in this case to use a broader definition. When a narrower definition is used this might call for unnecessary exceptions that can complicate the research. Besides that, the Convention is one of the most important international pieces of legislation concerning public participation in environmental issues. Since it is so important, it makes sense to use the definition of public participation that it provides.
Stakeholder is a term frequently used in Integrated Coastal Zone Management projects. According to the European Environmental Agency (EEA), a stakeholder is “an institution, organisation, or group that has some interest in a particular sector or system”; in this case the coastal zone. This definition obviously does not exclude the public since the public can be part of an organisation or group, however, it also does not explicitly include the public either. CoastLearn, sees the two (the public and stakeholders) as different entities while the Århus Convention includes more overlap. This matter is also a question of culture; there are the so called “weak participation” cultures and “strong participation” cultures. In many Eastern European countries, even though much progress has been made in the past decade, it is not as common for the public to be involved in the decision making progress. One of the main reasons for this is that the public is often not aware of the possibilities concerning access to environmental information and the right to participation. Is the public a stakeholder? This is a very important question because one can imagine there are different ways to involve different actors in a decision-making process. It can be argued that when the public is not included as one of the stakeholders, it is not true public participation because the public would be regarded as a separate group with different rights that are not equal to the other stakeholder (groups). This question was asked in the ICM participation questionnaire and many respondents acknowledged, without the question even being stated that way, that the public should be a stakeholder. However, four out of eleven regional respondents answered that the public is considered to be a stakeholder. Five answered that the public is not a stakeholder, and even though this is not necessarily bad practice, it does mean that the public is not automatically included in stakeholder meetings, consultations and therefore the participation process. Two out of eleven respondents said that neither of the answers applied, but that the public is included in a different way, which can also be good practice. Tim Badman, of the Dorset County Council says that “they' (the public) `embrace a range of stakeholder groups, and individual perspectives. However the views of individuals need to be sought in a different way”. His view is that the public is not really a stakeholder, but they should be included deliberately. Taking all of this into consideration it is logical to say that whether the public is a stakeholder is partly a matter of opinion and perception, though it does matter for the level of public participation. Therefore, when the term full participation is used in this paper, both stakeholders and the public are involved. Otherwise the term public participation, stakeholder participation, or stakeholder involvement will be used. Whether the public is considered a stakeholder or not, is largely a matter of culture. As a reader of this paper, it is however important to acknowledge and to at least be aware of these differences.
Levels of Public Participation
A large number of sources in the past have identified the following elements of public participation: access to information, a voice in decision making, transparency, post-project analysis and monitoring, enforcement and access to justice. All of these elements keep turning up in this paper and in other works on public participation. The Århus Convention has narrowed them down to the “three pillars” of public participation (see previous chapter). Public participation in ICM always includes several of these elements, like in a recent coastal planning project in Varna, Bulgaria where the citizen administration showed “transparency” by announcing their vision on future development of the coastal zone in a timely manner. In order to give the public a “voice in decision making” these methods and more were used: public opinion polls, meetings, phone enquiries, press announcements, workshops and TV information. The latter methods are all forms of public participation and can be used to determine what level is being reached on Arnstein's Ladder (see the next section). A classic in public participation theory is Sherry Arnstein's “ladder of citizen participation”. It dates back to the 1960's but is still used today. The ladder illustrates the so-called “power” and “powerlessness” of people. The ladder of participation has 8 rungs with each one “corresponding to the extent of citizens' power in determining the end product”. Arnstein also indicates that these 8 rungs is not enough to accurately differentiate between the levels of participation because there are many more distinctions between the way people participate in policy and programmes.
Unfortunately, the Arnstein levels of public participation are not always appropriate for coastal issues. Furthermore, the questionnaire required a clear distinction between each level, with a brief explaination. The following information was added with the questionnaire, with a reference to Arnsteins’ work.
- Level 1 - all decisions are taken by government;
- Level 2 - committees for the main purpose of engineering support;
- Level 3 - informed but no channel for feedback;
- Level 4 - consultation i.e. opinions asked;
- Level 5 - advisory role where adviceactually taken;
- Level 6 - real negotiation between stakeholders and decision-makers;
- Level 7 - decision-making delegated
Is public participation always a good thing?
Although public participation has numerous advantages in ICZM, there are several disadvantages to public participation. Even when all stakeholders involved support the public participation process, the public participation process requires a lot of time and effort from all stakeholders. In practice, there may be numerous additional obstacles. A more centralized decision process is more efficient and may be more effective in certain circumstances. Public participation does not necessarily add to the quality of the decision process. Although public participation should produce a more balanced decision, it is also possible that one or more stakeholder use the public participation process to unbalance the decision in their favour. A common example is the NIMBY (Not In My BackYard) effect, where the public is in favour of a unpopular measure or facility (such as a waste facility), but does not want that facility in their direct surrounding. Without public participation, coastal management is the responsibility of civil servants and coastal politicians. These groups have been trained and professionally involved in coastal management and can therefore be depended upon for suitable decision making. Although the public is the end user of the coast, they may not have the expertise to make good decisions. In most public participation processes, the members of consultation boards and other public participation methods are often members of higher socio-economic classes and therefore do not represent the public as a whole. This may be a problem when these higher socio-economic classes do not represent the end users of the coast. Even when the public participation process is successful, the end result may not be satisfactory to all participants or stakeholders. This could result in frustration in the process and government distrust, also weakening further participation.
Public Participation and ICM
Integrated Coastal Management (ICM) is a way to support sustainable development by sustainably managing the coastal region. The terms ICZM (Integrated Coastal Zone Management) and ICAM (Integrated Coastal Area Management) are also used but all are approached and defined a little differently. This paper will use ICM as the default term, just like the European Coastal Code of Conduct which defines ICM as a process which is “meant to combine physical, biological and human elements into a single management framework encompassing both land and marine coastal area, and ensures that the most important issues receive the highest priority of attention”. It is important to keep in mind that it is not merely a form of land-use planning but that ICM focuses on “linkages between different sectors” (interdisciplinarity) and in this way aims to get all stakeholders involved. ICM has only recently been embraced by the European Union and the first EU initiatives for ICM started in 1995. The first was the Commission Demonstration Programme for ICZM (which ended in 1999) that included the Baltic Sea, North Sea, the Atlantic seaboard and the Mediterranean Sea. Following this programme the EU produced several documents on ICM in EU coastal states (for specifics, consult chapter 2 on Legislation) and since the EU Recommendation, the member states have started to implement ICM practises -a slow but sure process. So what are the benefits of ICM? Why is this process so important in the coastal zone? The CoPraNet ICM special provides the reader with several reasons.
- More jobs, better living standards and major profits. It has been shown that the benefits gained with ICM greatly outweigh its costs. Also very important is the focus on sustainable development, so short term economic interests do not form long-term risks
- Managing the impacts of a natural disaster, by for example strategically locating tourist resorts
- Restoring the loss of natural habitat, by for example introducing MPAs (Marine Protected Areas)
However, in order for the adequate implementation of ICM to be successful, there are a few prerequisites:
- Political leadership: Politicians need to make sure that ICM is on their priority list. They also have to keep in mind that these coastal management plans may take more than a decade.
- Funding: Funding is of course extremely important and often hard to obtain for the same reason that is stated above, ICM takes long and most of the time it is not a very high priority issue and therefore it is often difficult to maintain long-term funding.
- International Cooperation: Coasts, seas and oceans do not stop at borders. It is important for coastal regions to cooperate.
- Good communication and relevant information: In this way the stakeholders can actively and effectively participate in the decision-making process.
- Full participation: The participation of all stakeholders, including the public is a "cornerstone" in the ICM process, and thoroughly discussed in this paper.
All of the legislation discussed above applies to Integrated Coastal Zone Management, since it is part of European environmental policy. There are however some specific documents on participation in the ICZM process. Recommendation 2002/413/EC of the European Parliament and of the Council of 30 May 2002 concerning the implementation of Integrated Coastal Zone Management in Europe declares that “Member States undertake a stocktake to identify the main actors, laws and institutions involved in the management of coastal zones across all sectors and levels”. Hereby the EU promotes participation, but through soft law because such a recommendation is merely declaratory and non-binding. Recommendations do, however, cause pressure from the international community so it is certainly in a country's interest to strongly take these recommendations into account.
Is public participation needed on the coast?
As already mentioned before, public participation is an important principle of Integrated Coastal Management. In order to determine the importance of public participation in the coastal region, first an explanation is necessary of why the European Union has such an interest in the coastal region and therefore, ICM. The European Union provides three reasons as to why an European-wide initiative concerning the coastal zone is necessary. First, it is established that the coast is a European issue that is shared by the member states and that its problems therefore cannot be solved by a single member state. Our coasts have a common natural heritage, transfers of pollutants and sediments, tourist flows and maritime safety. Second, European policy has a great influence on the development of the coast, in particular in the areas of fisheries, regional policy and agriculture. Third, there is a need for knowledge and experience exchange in the field of coastal management, especially in areas where there is high political and public demand for the sustainable development and conservation of the coastal zone.
Participation of all Stakeholders There are many benefits to public participation in environmental decision making; all of these benefits also apply to the coastal region since many are principles and provisions for effective democracy. The general benefits of public participation in environmental issues are: educating the public and making them aware of environmental issues, using the knowledge and experience of stakeholders to improve plans and policies, more public understanding and supporting, more openness (transparency in decision-making), less disagreements, delays and misunderstandings and the implementation of sustainable development. If it is carried out at a higher level, public participation leads to decisions that are better for the environment because the public contributes with expertise and knowledge. This corresponds with the aim of the Århus Convention - “to further accountability of and transparency in decision making and to strengthen public support for decisions on the environment.”
Conclusion In conclusion, it is essential to discuss the relationship between a common vision, legislation and public participation in European coastal zones. As we have noticed above, there are many European pieces of legislation about public participation in the European Union. However, many are not binding and therefore have considerably less influence. National legislation also has an important additional role to play in public participation legislation. International legislation, as discussed above, must be ratified and implemented by each member state by incorporating it into existing national legislation. It is not part of the scope of this report to include and explain all different provisions of national law on public participation in the coastal zone. It is however important to emphiseze that all European Union states are subject to the same international legislation. One might even say that in a legally, EU member states do not differ that much. The main legal difference lies in the way international law is implemented nationally. Cultural, traditional and political differences between member states have led to differences in public participation traditions. Legislation is therefore a good catalyst for promoting a (more) common standard on public participation in European Coastal Zones.