Public Participation in Transboundary Environmental Impact Assessment - Closing the Gap between International and Public Law?

Introduction Public participation is an acknowledged part of environmental decision-making and is included in most domestic and international law. The notion of ‘public participation’ varies, with the term having subtle differences of meaning to different groups. It is, however, part of a discourse of sustainable development and its adherents share an understanding about it involving the public at all stages of decision-making. This results in better outcomes for the environment and more acceptance by the public. In examining the relationship between international and public law concerning environmental protection, the role of the public stands out. Under municipal public law, opportunities to participate in decision-making and challenge regulatory failings in judicial review proceedings are commonly made by individuals and non-governmental organisations (NGOs). In public international law, Principle 10 of the Rio Declaration recognises the role of individuals and NGOs, with the Aarhus Convention providing more opportunities to challenge state governments for similar failings when applicable. International law is no longer confined to the relationship between states and international organisations, and in an environmental context it is as appropriate to emphasise the relationship between individuals and states as in international human rights and humanitarian law. In international environmental law, therefore, individuals and NGOs now have an important role in environmental regulation. This chapter focuses on the discourse, principle and practice of public participation, contributing in particular to the growing debate concerning the globalisation of administrative law. As discussed in the first section of the chapter, the globalisation of administrative law is seen in many ways, including in the regulatory cooperation established through international treaties providing for public participation in transboundary environmental impact assessment (transboundary EIA), the UN Economic Commission for Europe Espoo and Aarhus Conventions. The decision-making body for each treaty, the Meeting of the Parties, has been active in adopting decisions and developing guidance, including for public participation. The non-compliance procedures of each treaty, in particular the Compliance Committee of the Aarhus Convention, informs the argument in this chapter that administrative law mechanisms are permeating public international law so that the traditional gap between municipal and international law in the public domain is closing.