Public Participation in Environmental Decision-Making:

An Ecosystem Approach View

Huanlin LANG (University of Groningen, Groningen, the Netherlands)

Abstract: The ecosystem approach is new management method in biodiversity conservation, which aims at reaching a balance of the three objectives of the Convention on Biological Diversity: conservation, sustainable use and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, and it is meaningful for the further development of Chinese natural resources law. According to the ecosystem approach, public participation in environmental decision-making is an essential instrument for its implementation. Meanwhile, the right of participating in environment issues is now also regarded as a fundamental right of human beings throughout international law. So it deserves our attention and further research. This paper firstly gives a quick look at the content of the ecosystem approach and then turns to public participation in environmental decision-making in general terms and international law. Since the Aarhus Convention is one of the most advanced legal texts in this field, a detailed analysis will be made on it. Finally, the paper will focus on specific requirements of the ecosystem approach on public participation in environmental decision-making and based on this contribute to a normative framework of public participation in environmental decision-making in the light of the ecosystem approach.

Keywords: the ecosystem approach; public participation in environmental decision-making; international law; the Aarhus Convention; the legal framework

1. Introduction The ecosystem approach (EA)[1] is a new comprehensive management method in biodiversity conservation. It is mainly advocated by the Convention on Biological Diversity (CBD) as an integrated management method of living resources that promotes conservation and sustainable use in an equitable way. The CBD formulates 12 EA principles, and according to these principles, public participation is an important instrument for its implementation. According to international environmental law, public participation has become acknowledged as a fundamental right of affected populations. It is also regarded as an important instrument to ensure human and other fundamental rights. The Rio Declaration recognizes three aspects of environmental public participation: access to information, public participation in decision-making procedures and access to justice. This paper will only focus on the second aspect: public participation in environmental decision-making (EDM).

This paper aims at finding out specific requirements of the ecosystem approach on public participation in EDM and based on this contributing to a normative legal framework for public participation in EDM in the light of the ecosystem approach. Chapter 2 briefly introduces the content of the ecosystem approach. Chapter 3 and 4 then turn to public participation in EDM, the former is about its general content and the latter focuses on concrete standards in international law. Based on these, chapter 5 will look into specific requirements of the ecosystem approach on public participation in EDM compared to existing standards. Finally, a normative legal framework will be established, including standards with respect to: range and objects, subjects, rights and duties of subjects in public participation in EDM, and procedural standards.

2. The Ecosystem Approach The ecosystem approach means a strategy for the holistic management of land, water and living resources that promotes conservation and sustainable use in an equitable way. With this method, conservation, sustainable use and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources will be balanced.[2]

As a new management method for biodiversity conservation mainly advocated by the Convention on Biological Diversity (CBD), the concept of the EA partly originated in a discussion process on the ‘ecosystem management’ which started in the USA and Canada in the late 1980s and early 1990s.[3] It was for the first time introduced to the CBD at the first meeting of the Subsidiary Body on Scientific, Technical and Technological Advice (SBSTTA).[4] The Recommendation I/3 of SBSTTA I states that ‘conservation and sustainable use of biological diversity and its components should be addressed in a holistic manner, taking into account the three levels of biological organization and fully considering socio-economic and cultural factors.’[5] According to this, the conservation and use of biodiversity should

Compared Aspects	Traditional Management Methods	The Ecosystem Approach
Management object	Individual Species	Ecosystems
Management target	Number of specific species	Structure and functioning of the ecosystem and its interaction with other ecosystems
Management spatial scale	Specific species and its living surroundings (fragment and small)	The ecosystem and its adjacent and other ecosystems (holistic and muti-level)
Role of human	Independent of the nature	Part of the nature
Management objectives	Current benefits	Sustainable development
View of change	Ignore the change	The change is inevitable
Management mode	Top-down	Bottom-up
Role of the public	Being passive managed	Positive participate
Economic context	Ignore the economic value of the ecosystem services	Internalize costs and benefits of the ecosystem services, and use economic methods to stimulate the ecosystem conservation and restoration
Main information sources	Scientific knowledge	Scientific knowledge form different disciplines, and knowledge and experience from local people and communities
Relationship between conservation and use	Conflicted	Balanced
Participating sectors	The responsible sector (single)	All relevant sectors (cooperation)

be set on a holistic view of the nature as well as human societies, which later became the basic concept of the EA. And this was reaffirmed in the second Conference of the Parties (COP 2), and regarded as the primary framework for the action under the CBD. Till 2000, during the COP 5, the EA was formally confirmed as an important management method of biodiversity conservation, which includes a brief description, 12 principles and 5 operational guidance. And all above was reaffirmed and improved as an important decision in the COP 7.

In the past, the biodiversity conservation was mainly based on species or habitats conservation and protection, which has been approved lack of efficiency. Since the 1960s, scientists have turned to consider biodiversity conservation from a more holistic view based on ecosystems and finally formed the EA. From the following table, we can learn some features of the EA from a comparison with some traditional conservation methods. (Table 1)

Table 1: Traditional management methods v. the EA

However, the content of the EA in the CBD documents is somewhat theoretical and still needs concrete instruments from different fields for the implementation. As an overall methodological framework of biodiversity conservation, the CBD regards ‘there is no single correct way to achieve the EA to management of land, water, and living resources.’[6] And the 12 principles supplied by the CBD should be translated flexibly to address management issues in different social context.[7] On the legal side, some existing legal instruments can be borrowed and enriched, and simultaneously some instruments can be developed so as to fulfill the need of the EA. These existing and new instruments may include but are not limited to the following aspects: public participation in environmental decision-making (EDM)[8], decentralization, information management, market-based approach, regulations, enforcement and conflicts settlement, etc. Hereafter, we will concentrate on public participation in EDM.

3. The Public Participation in Environmental Decision-Making 3.1 Definition of environmental decision-making

As Jendroska describes, ‘EDM means a procedure at national, regional and local level for a public authority to make decisions which may have a significant impact on the environment excluding decisions taken by courts or other bodies acting in a judicial capacity.’[9]

The decisions here referred to are very comprehensive in which, except judicial decisions, ‘specific’ and ‘general’ decisions are both included. One of the most advanced documents on public participation in EDM, the Aarhus Convention, divides different decisions into three concrete categories and applies three separate articles with specific standards.[10]

- Decisions on specific activities

- Decisions concerning plans and programmes and policies

- Decisions during the preparation of executive regulations and generally applicable legally binding normative instruments

The common feature of above EDM is that they may have ‘a significant impact on the environment’. This is an essential standard to tell whether decision-making should integrate public participation. However, in reality, this is a very complicated point. If the range is chosen too broad, some decision-making without necessity of public participation will waste administrative resources and administration impediment. If it is too narrow, then some decision-making will escape the public’s eyes and may cause some kinds of environment destruction. So a standard of the impact’s degree is needed to evaluate whether a decision-making procedural calls for public participation. In fact, different international laws are adopting different words to describe the impacts. For example, in the Aarhus Convention, article 6(2) and 8 use the word ‘significant’, while article 7 describes as ‘relating to the environment’. The Rio Declaration[11] shortly states in principle 10 as ‘environmental issues’. The African Nature Resources Convention[12] in article 1(3) uses ‘a potentially significant environmental impact’. And the Draft Declaration of Human Rights and the Environment[13] adopts ‘planning and decision-making activities and processes that may have an impact on the environment and development’. This identification is mostly left to national laws to make further limits according to specific issues, however, a basic principle or standard should be established in case of the authorities’ discretion.

3.2 Status as a fundamental right

The idea of public participation in environmental issues originated from the latter part of the 20^th century and emerged from ‘an increasing awareness of the biosphere in which we all live, coupled with a growing desire to get involved in its protection.’[14] The Rio Declaration (1992) is an important milestone of its development. Before the 1990s, public participation was considered only on the national level, and except some human rights law, it was not formally referred to in international law. The Rio Declaration inspires the consciousness that only managing environmental affairs on the national level is not enough, international cooperation must be introduced, which includes the international cooperation on public participation in environmental issues.[15] It also gives a more concrete classification of public participation in environmental issues, including: access to information, public participation in EDM and access to justice. As one of three pillars, public participation in EDM is closely linked with the other two. Access to information is its prerequisite, and access to justice is its means of enforcement.

Nowadays, public participation in EDM has been regarded as a part of the fundamental right of human beings to environmental protection.[16] The right to live in a ‘healthy and productive life in harmony with nature’ has been stated in the Rio Declaration as well as some other international human rights documents. The Draft of Human Rights and the Environment also confirms that ‘human right, an ecologically sound environment, sustainable development and peace are interdependent and indivisible’, and ‘all persons have the right to a secure, healthy and ecologically sound environment’.[17] And the Aarhus Convention recognizes that ‘every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations’.[18] That is to say, humans have the right to live in a sound environment, and at the same time this right is also a guarantee of other human rights. To protect sound living surroundings, a procedural right of the public to participate in environmental issues through which the public can access to concrete environmental affairs and protect and assert their rights efficiently is necessary. The status as a fundamental right of the public participation in EDM can be learned from the Aarhus Convention. In article 1 of the Aarhus Convention, the notion of ‘using right to realize right’ has been affirmed officially that ‘in order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.’ Here, drafters directly adopted the word ‘rights’ in front of these public participation issues to confirm its status. And in the Draft of Human Rights and the Environment, it reaffirms that ‘all persons have the right to active, free, and meaningful participation in planning and decision-making activities and processes that may have an impact on the environment and development’. Public participation in EDM has been developing from a principle of environmental law[19] which depends mainly on the authorities’ activities, to a fundamental right that can be directly invoked in court through which rights can be protected positively and actively. [20] Nowadays the fundamental status of public participation in EDM has been accepted wider and wider, however, approaches are still lack and call for more specific regulations.

3.3 Contribution to the ecosystem approach

The most obvious advantage is that public participation in EDM can help absorb more information, knowledge and experience from local people and communities, and these make decisions more comprehensive and adaptable. The public in fact is the group of people and communities who are close to the ecosystem, and since such groups have been living there for perhaps hundreds of years, they have more first-hand knowledge and information about the structure and functioning of the ecosystem. Their experience as well as what they have learned from their forefathers are so precious that can supply decision makers with a lot of the first-hand information which cannot be taken place of that from scientists. Moreover, scientific thinking and designs would be sometimes ideal or ivory-towered in some degree, and the public is very helpful in telling the truth and impossibilities based on their practical knowledge and experience to avoid some impractical decision-makings. The importance of local information input can be testified in the case that once the World Bank sponsored and evaluated 25 overseas projects, and 13 failed mainly through lack of local input.[21]

At the same time, because of the local information input, decisions can be modified in time according to the ecosystem conditions and the public interests, in case of unilateral thinking and negative minds. And this contributes to the quality enhancement of decisions. In addition, public participation in EDM also helps save resources. Though public participation in EDM itself is somewhat expensive and calls for extra funds, however, this is worth that public participation in an early stage can help identify diverse perspectives on the issues of concern and generate the best choice among them which will improve the efficiency as well as keeping away from adverse decisions or reduplicate working that cost meaningless resources input.[22]

Public participation in EDM can also promote the construction of the mutual trust between the public and the authorities, and make decisions more acceptable and enhance the administrative efficiency. In the past, the results of environment protection were not always satisfied partly because the public could not meet all requirements given by the authorities. Public participation in EDM can lead to a public sense of “ownership”, and inspire their positive actions.[23] Because of their participation in the whole procedure, the public can better understand and comprehend decisions, including their intention, aim, process, instruments, influence, etc. The better understanding of decision-makings, the more harmony the public will cooperate with final decisions. Moreover, in public participation in EDM, the public has opportunities to deliver their different ideas and suggestions. These ideas and suggestions are required to be considered in the final decisions. If not being adopted, the authorities have to give related explanations. In this way, the EDM is more democratic and makes the public much easier to accept and act in their direction.

As stated, the sense of “ownership” of the public has been established during public participation in EDM. This is positive. The sense of “ownership” makes the public realize their responsibilities in environmental issues and elevate their consciousness of environment protection. This is very necessary, for that, previously the public plays a passive role in environment protection, within which they always set themselves on an opposite role against the authorities and are reluctant to implement related decisions since in most of their minds these decisions are kind of burdens on them. With the introduction of public participation in EDM, the public receive more education during their participation and set up the view of ‘sustainable development’. In this situation, they can understand the long-term meaning of healthy ecosystems and switch their role in decision-making and decision implementation to a positive side. They will even prefer to supply monitoring, inspection and enforcement assist to decision implementation. This can supplement government resources and their working neglects.[24] In one word, the public initiatives mean a lot from planning to implementation stages.

3.4 Problems Encountered in Practice

Nowadays, problems encountered in the practice of public participation in EDM may include the uncertain attitude and capacity shortage of both the authorities and the public, and also the lack of concrete normative framework.

The first hot potato is that whether the authorities would like to share their rights of EDM with the public. In the past, without any public participation, the authorities can make decisions in their own wish. But the results were disappointing, for that some authorities only focus on instant benefits and ignore the long-term development, which causes the destruction of ecosystems. Therefore, the introduction of public participation is necessary, and the authorities should correctly recognize, accept and integrate this into their actions. Meanwhile, their capacity has also to be enhanced to make sure that public participation can really work effectively as supposed.

In the research of Ewing[25], within the survey group, only 17% of the public believes that the decision-making procedural is legitimate and consistent with the aim of environmental protection, which shows the distrust of the public. In fact, in the past, in similar public participation affairs, the public has already cumulated some negative reorganization on their participation for that in their opinions their suggestions and interests could not be really admired and accepted at all in EDM. So the second obstacle is how to win the trust and confidence of the public that they will be actually referred to in decision-making participation, and stimulate them to positively participate in the procedure. At the same time, because every person and community in the group of the public has their own interest, it is also a difficult job to balance different interests and in the fullest extent to make the public behave in a holistic view of ecosystem protection but not only for their self-interest.

On the legislative side, as mentioned, public participation in EDM has been affirmed in international environmental and human rights law. The problem is that, throughout all these treaties and conventions some only give general admission of its status as a fundamental right, some go further and set general obligations, but only the Aarhus Convention is one of the most advanced international legal texts currently in force that provides minimum standards and directions in details. Generally, the development of public participation in EDM has taken place regionally all over the world. The strongest support for such rights is from Europe, North America and Africa also give some significant attention whereas only general guidance without concrete standards and Asia honestly drops behind.[26] On the national level, some countries like the USA, Canada, Japan, France and also China have integrated this right into environmental law. However, most provisions are still standing on a rather general level with a big space for the authorities to operate in practice, and this causes some arbitrary actions and negatively effects on its implementation.[27] Moreover, in biodiversity conservation, the EA is now advocated as a more advanced management method and accommodated by the CBD. Most countries have already integrated this into their environmental law and regulations, and that requires the legal framework of public participation in EDM also be coordinated to the EA in ecosystem conservation and restoration.

4. Public participation in EDM in international law 4.1 International law: general statement

International human rights law has early admitted the right of the public to be part of governmental decision-making. For example, in the Universal Declaration on Human Rights, ‘everyone has the right to take part in the government of his country, directly or through freely chosen representatives. Everyone has the right of equal access to public service in his country.’[28] As well, in the International Covenant on Civil and Political Rights, it also states that: ‘every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: to take part in the conduct of public affairs, directly or through freely chosen representatives.’ [29] And the Treaty of Lisbon, which entered into force on 1 December 2009, also affirms that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.’[30] These examples of human rights law all confirm that the public has the right to participate in the authorities’ decision-making, which certainly should include that on environmental affairs. However, in the case of Mikmaq people v. Canada Official Records of the Human Right Committee, the Committee stated that, ‘although prior consultations, such as public hearings or consultations with the most interested groups, may often be envisaged by law or have evolved as public policy in the conduct of public affairs, article 25(a) cannot be understood as meaning that any directly affected group, large or small, has the unconditional right to choose the modalities of participation in the conduct of public affairs. That, in fact, would be an extrapolation of the right to direct participation by the citizens, far beyond the scope of article 25(a).’[31] That is to say, the right cannot be applied directly by the public according to these human rights acts to participate in specific environmental decision-makings, and the implementation of this fundamental right in environmental issues still calls for more special provisions from related environmental law and regulation.

The United Nations Framework Convention on Climate Change (UNFCCC) states the right of public participation in EDM in a rather general ‘The parties shall promote and facilitate at the national and, as appropriate, subregional and regional levels, and in accordance with national laws and regulations, and within their respective capacities: (iii) public participation in addressing climate change and its effects and development adequate responses.’[32]

The same, the Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol) states: ‘Participation under the clean development mechanism, including in activities mentioned in paragraph 3 (a) above and in the acquisition of certified emission reductions, may involve private and/or public entities, and is to be subject to whatever guidance may be provided by the executive board of the clean development mechanism.’[33]

Both of these conventions do not give any further explanation or standards on public participation in environment issues. However, they are still promoting. At least, they have given powerful support to the legitimacy of integrating public participation into environmental protection that the public could invoke this right to protect their right of living in a sound environment as well as their right of being part of the governance.

Besides of these, some other international and regional agreements and documents have also given some general statements on the admission of this fundamental right. Like, Agreement on the Conservation of Nature and Natural Resources[34], African Convention on the Conservation of Nature and Natural Resources [35], Inter-American Convention for the Protection and Conservation of Sea Turtle[36]. However, this kind of general statement can only help confirm the status of public participation in environment issues, and to the practical side more detailed obligations are still needed.

4.2 International law: detailed obligations

The Rio Declaration on Environment and Development for the first time raises the public participation in environment issues to a principle height. The goal[37] of the Rio Declaration shows the importance of cooperation, including that between states and their peoples. Principle 1[38] confirms that people have a right to live in a healthy and productive environment. To realize and ensure this right, people should be able to participate in decision-making process to make sure the sustainable exploration and utility of nature resources. Principle 10 is essential for public participation. As it shows, the participation of all concerned citizens at the relevant level can promote the sustainable development of natural resources. And this principle divides public participation into three broad issue-areas: public access to information, public participation in decision-making proceedings, and access to review procedures and remedies (access to justice). The public participation has been for the first time formally brought out to be one independent pillar of the fundamental right of public participation in environment issues. Principle 20 and 21[39] emphasize the right of participation of special subjects – vulnerable groups, including women, youth and indigenous people and their communities. And principle 22[40] emphasizes advantages of local people and communities in environmental affairs, and the necessity of promoting their participation in environmental decision-making processes.

Agenda 21 of the Rio Declaration reaffirms some points in public participation in EDM. In its preamble, it asserts that ‘the broadest public participation and the active involvement of the non-governmental organizations (NGOs) and other groups should also be encouraged.’[41] While confirming the status of public participation, it also expresses that NGOs are an important subject in public participation in environmental issues and their role must be encouraged and realized. In the third chapter ‘Combating Poverty’, public participation has also been regarded as an essential approach.[42] Chapter 8 – ‘integrating environment and development in decision-making’ – goes further. ‘Ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation;’[43] ‘Delegating planning and management responsibilities to the lowest level of public authority consistent with effective action; in particular the advantages of effective and equitable opportunities for participation by women should be discussed.’[44] Obviously, obligations in public participation have become more concrete here, like requirement of ‘facilitating the reception’ and ‘effective’ have been brought out, the best level of decision-making in addition emphasizes the importance of local people and communities, and the adjectives in front of women – ‘effective and equitable opportunities’ – can also be considered adopted widely for all participants.

Further development in obliging the parties could be seen in the United Nations Convention to Combat Desertification (UNCCD). The UNCCD, in its preamble, stresses that the participation should be ‘full’ and ‘at all levels’.[45] And it also sets public participation in decision-making as its implementation principle, that ‘decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and an enabling environment is created at higher levels to facilitate action at national and local levels.’[46] The UNCCD goes further than previous international laws, for that its text supplies more detailed obligations. In article 5(d) the importance of NGOs in public participation is reaffirmed.[47] And article 10(f) requires the effective participation should be at the ‘local, national and regional level’, and it also gives subjects (‘particularly resource users’) and applied ranges (‘policy planning, decision-making, and implementation and review of national action programmes’). [48] Article 17(f) is about the relationship between public participation and technologies development which requires the former in the latter process.[49] And in its Annex, UNCCD provides that obligations of public participation should be integrated into national actions and be realized on the national level.[50]

Cartagena Protocol on Biosafety to the Convention on Biological Diversity improves in two aspects. One is that it states directly as ‘consult the public’ to express its view that the authorities in decision-making should be positive to integrate the public into their work. And the other is that ‘results should be available to the public’.[51] This is an important development. In the past, eyes were focused mostly just on participation in discussion and negotiation, with the neglect of the results of such participation. And the Cartagena Protocol begins to also pay attention to results – whether public participation really effects on decision-making? Whether the authorities really take public opinions into account? They solve this problem through the disclosure of decision-making results, within which the public can clearly see their effects during participation. This kind of disclosure is a significant assurance of the quality of public participation. This obligation is later reaffirmed in the Stockholm Convention on Persistent Organic Pollutant with the expression of ‘adequate responses’.[52] Prevention of Transboundary Harm from Hazardous Activities ensures the right of participation in EDM in the part of information access with the emphasis that the public should ‘ascertain their views’. [53] This is not very elaborate, however, it at least shows the duty that nations must set up some effectively ways for the public to express their views and also take these into account.

As mentioned, Europe develops the fasted in the area of public participation in EDM. Before the Aarhus Convention, Convention on Environmental Impact Assessment in a Transboundary Context (the Espoo Convention) has already brought out some detailed obligations in this field. Article 2.2 directly requires that public participation should be a part of an environmental impact assessment.[54] Article 2.6 states that it is the duty of the authorities to supply opportunities to the public to participate in assessment and these opportunities must be equal.[55] And then the Espoo Convention also emphasizes that the public is supported to make comments or objections on issues which must be considered by the authorities. Moreover, there should also be ‘a reasonable time before the final decision is taken on the proposed activities’ for the public to review reports. This procedural standard is for the public to make sure their opinions can be made due account and actually influence decision-making results.

Detailed obligations in above international law are separated. The Aarhus Convention makes an integration of these standards as well as adds some new ones. Next, we will go through this advanced legal framework for public participation in EDM.

4.3 The legal framework for public participation in EDM in the Aarhus Convention

The Aarhus Convention was negotiated within the framework of the UN Economic Commission for Europe (UNECE) in 1998. Based on Stockholm Declaration, Rio Declaration, World Charter for Nature, and European Charter on Environment and Health, the Aarhus Convention recognizes that ‘every person has the right to live in an environment adequate to his or her health and well-being’[56] and the public participation is a good assistance to exercise this right[57]. As the Aarhus ministerial declaration praises, that the Aarhus Convention is ‘a significant step forward both for the environment and for democracy.’[58] And Pallemaerts regards it as ‘the most comprehensive and ambitious effort to establish international legal standards in the field of individual environmental rights to date.’[59] In a word, the Aarhus Convention is seeking to ensure the human right of living in a sound environment through the increase of the openness and democratic legitimacy of government actions, during which the sense of responsibility and ownership of the public will be enhanced. As one of the most advanced international legal texts currently in force in this field, the Aarhus Convention sets minimum standards and directions in three pillars that are interactive, access to information, public participation in decision-making and access to justice. Below the legal framework of public participation in EDM in the Aarhus Convention will be discussed.

4.3.1 Scope of application

The Aarhus Convention divides decision-making in environmental matters into three subsets.

Article 6 is about specific activities. This article as a whole has been drafted with reference to article 2(1) of the EIA Directive, its annexes, and Council Directive 96/61/EC concerning integrated pollution prevention and control (IPPC).[60] While article 6(1)(a) refers to proposed activities listed in annex I, article 6(1)(b) supplements with other activities not listed in annex I but have ‘a significant effect on the environment’ and leaves the discretion to parties. In fact, annex I is based on annex I to the Espoo Convention and annexes to the EIA and IPPC Directives, which all regulate activities considered to have significant effects on the environment.[61] So, specific activities in the Aarhus Convention can be shortly and reasonably understood as those that have significant impact on the environment. Article 6(1)(c) narrows down the range of applicable activities, that those will call adverse effect on national defence purposes can be away from this article. According to this, financial and budget plans are outside the scope of this.[62]

Article 7 is about plans, programmes and policies. Different from article 6, it adopts the standard of ‘relating to the environment’ instead, which can be evaluated through some elements in article 2(3) about ‘environmental information’. What has to be considered is: to what degree of the ‘relating’ should plans, programmes and policies integrate public participation? In practice, perhaps it is possible to adopt the definition of ‘a potential significant impact’ as well as a standard. For that, if there is no significant impact on the environment within the foreseeable, public participation in EDM may seem meaningless as its aim is to protect environment from destruction.

Article 8 refers to the preparation of executive regulations and/or generally applicable legally binding normative instruments. The Aarhus Convention uses a rather broad definition here, including decrees, regulations, ordinances, instructions, normative orders, norms and rules, as well as the participation of the authorities in the legislative process, up until the time that drafts prepared by the executive branch are passed to the legislature.[63] And the binding condition here is the same with article 6 that is those may ‘have a significant impact on the environment’.

There are some points should be attended to ‘a significant impact on the environment’. Initially, the ‘impact’ may but not definitely occur, that is to say, it is only a kind of possibility. Secondly, there should be a standard of the ‘significant’. As mentioned in 3.1, a broader or narrower definition will either lead to some negative results. However, the Aarhus Convention itself does not give such a standard and leaves this discretion to parties. Lessons can be learned from the Espoo Convention which adopts three criteria of size, location and effects to evaluate the ‘significant’. And EC Directive 85/337/EEC (amended by Council Directive 97/11/EC) uses characteristics of projects, location of projects and characteristics of the potential impact as standards. The UK’s Circular from the Department of the Environment (Circular 2/99) on Environment Impact Assessment gives its national standards on this.[64] In short, in the practice of public participation of EDM, standards for the ‘significant’ should be established in the first place by nations in order to avoid some manners to escape from public participation. So the final question is that who has the right to decide ‘standards of significance’ and predict the possibility of impacts. This subject should be neutral, without any preference in activities or normative regulation preparation. Independent scientists and experts are more preferred by the public in practice.[65]

4.3.2 Subjects of participation

There are two kinds of subjects of participation in the Aarhus Convention, ‘the public’ and ‘the public concerned’.

The definition ‘the public’ sometimes invokes ‘any person principle’, like in the Espoo Convention.[66] In the Aarhus Convention, its range is somewhat limited with ‘national legislation or practice’, which introduces some ‘discretionary elements’ into this definition to be associates with ‘every one principle’.[67] However, this range is still rather broad without any limitation of affected facts or interests. Moreover, compared to the Espoo Convention, it is also supplemented with ‘associations, organizations or groups’ to emphasize on recognition of their roles in public participation.

The concept of ‘the public concerned’ appears in the EIA Directive, within which parties are required to determine the range of ‘the public concerned’ ‘depending on the particular characteristics of the projects or sites concerned.’[68] According to this, the content of ‘the public concerned’ is a case-to-case definition accommodating with specific activities as article 6 concerns, who always have impact within a certain area. In article 2(5) with definition of ‘the public concerned’, two binding conditions indicates as ‘affected or likely to be affected’ and ‘having an interest’. As a matter of fact, the scope of ‘the public concerned’ limited by them is still very broad, since there is no further limitation on the affect degree or what kind of interest should be like. As the Implementation Guide states, ‘potentially affected rights vary depending on the domestic legislation, but may include material and property rights, as well as social rights such as the right to be free from injury or the right to a healthy environment.’[69] And even ‘an unspecified interest of the public’ could also be included,[70] which indicates though ‘the public concerned’ would like to concentrate on a certain core people and communities in specific activities, it is still trying to realize the widest participation in specific area to ensure the quality of decision-making and consists with the basic notion of public participation. Besides, the Aarhus Convention specially emphasizes the role of NGOs and supplies standards to evaluate their interest in activities as ‘promoting environmental protection and meeting any requirements under national law’. ‘Promoting environmental protection can be estimated according to article 2(3), and requirements under national laws must also be consistent with principles of the Aarhus Convention to make sure of the participation of NGOs. Once NGOs meet the standards they can be included as part of ‘the public concerned’ sharing the same right in this process.

In the Aarhus Convention, as the article within which the subject of ‘the public concerned’ appears the most, article 6 in fact also applies ‘the public’ in some paragraphs at the same time. For example, article 6(2) and (6), about information related to public participation process and content of activities disclosure, adopt ‘the public concern’. As well, article (3), in its statement of ‘allowing sufficient time for informing the public in accordance with paragraph 2 above’, also uses ‘the public concerned’ as that in article 6(2). However, in the same article, the following part ‘for the public to prepare and participate effectively’ extents to ‘the public’. Article 7 about comments and opinions express also adopts ‘the public’. These can certify the view of Verschuuren, that ‘duties for the authorities to actively inform or contact its citizens are aimed at the public concerned, whereas rights of citizens to address the authorities are granted to the public.’[71] Furthermore, perhaps we can consider that in plans, programmes, policies and normative instruments parts we can also introduce the concept of ‘the public concerned’ to make the authorities pay extra attention on their views and comments. In fact, in article 7, it does not directly use ‘the public concerned’, instead, it adds a limitation to ‘the public’ that ‘the public which may participate shall be identified by the relevant public authority, taking into account to objective of this Convection.’ This statement endows public the authorities with right to decide the range of subjects in participation. Either it should be a broad definition of ‘the public’, or concentrate on ‘the public concerned’ in the light of plans and programmes, is both possible. In my view, since plans and programmes are mostly related to a specific area with impacts on certain populations and communities, it is possibly better to consider ‘the public concerned’ in advance in order to make sure that within limited administrative resources, the public participation can reach the most effective and satisfied result.

4.3.3 Ladders of participation

Ladders of participation in the Aarhus Convention related to decision-making process can be simply divided into two levels. Public participation concerning specific activities and plans and programmes belongs to a ‘binding’ level.[72] In article 6 and the former part of article 7 concerning plans and programmes, the Convention states as ‘each party shall…’ Here the use of ‘shall’ means this is an obligation of parties to promote and facilitate public participation in according decision-making process, this is not a choice. On the contrary, public participation in policies and normative instruments issues is on a ‘non-binding’ level. In the latter part of article 7 concerning policies, it prescribes as ‘to the extent appropriate, each party shall endeavor to’. And in article 8, it also uses ‘shall strive to’. Both express the obligation in a rather modest way, which indicates public participation here is not compulsive but depends on the ability and views of the authorities. Jendroska describes this as a ‘soft law obligation’[73]. And this is attributed to the traditional concept of public participation in Europe which was originally motivated by the need to protect property rights through granting the public broad information and participation rights during permitting procedures, which is different from the American concept of ‘open government’.[74] However, since the Aarhus Convention strives to realize democratic governance as well as environment protection, public participation both for specific activities and strategic decisions should be developed to a new stage on the ‘binding’ level.

4.3.4 Procedural standards

4.3.4.1 Information disclosure

Article 6 (2) and (6) are both about information disclosure. While the former focuses on information necessary for effective participation, the latter is about concrete content of activities themselves that should be available to participants. The subject of participation here refers to ‘the public concerned’ which narrows duties of the authorities to the public affected or likely to be affected and those with interest.

In article 6(2), actors of information notice can be the authorities, as well as proponents or applicants. This power of the actor selecting is in the hand of the competent authorities, who have the ability to choose the most suitable actors and guarantee of an effective process. Moreover, they also have the right to choose ‘appropriate’ approaches of information disclosure, ‘either by public notice or individually’. Where individual interest might be affected, an individual notice will be in need. And since NGOs have been specially included in ‘the public concerned’, an individual notice to them sometimes is also necessary. For example, the Polish Environmental Protection Act requires the relevant the authorities to draw up a list of NGOs who have interest in being notified on decision-making related to EIA. And when a concerned permit happens, the Polish the authorities must notify NGOs in the list one by one.[75] A public notice aims at all the public, and it can be implemented through newspaper, TV programmes, outside advertisement, etc. The timing of notice is required to be ‘early in an environment decision-making procedure’, which can be understood through article 6(4) that the pubic concerned should access to information when all options are open and participation may be effective. An ‘adequate, timely and effective manner’ criterion is set for the quality of information disclosure. In the information disclosure, only a TV advertisement or a simple notice in the newspaper would not be enough. It has to be assured that the public concerned have sufficient chances to access to such information but not easily miss, and besides reaching to it, the fully understanding of related information should also be attained. If the information is too simple without details or too complicated to comprehend, its disclosure will breach this article. However, in the public notice approach, the authorities cannot make sure all the public concerned actually access to their notices even sparing no effort, so this calls for the public who are interested in such issues be positive to pay attention and participation. This article also gives a list of information related to effective participation, however, ‘inter alia’ has been used to show that this list is indefinite and depends on parties to enrich it based on specific conditions.

Article 6(6) refers to the disclosure of all information relevant to the decision-making. ‘All information relevant to the decision-making’ here has been listed as minimum standards, together with guidance of article 4, and parties are obligated to supplement this minimum standard list according to specific activities and their experience to make sure the effective and sufficient delivery of information. Two subjects here are the public concerned and the competent public authorities. The latter may include those in charge of specific activities to give permits. And the former – the public concerned – has the right of examination. As the Implementation Guide implies, this ‘examination’ refers to the opportunity to study the information and to make notes.[76] And this right is guaranteed by two limitations. If there is any requirements in the national law require the public concerned to hand on a request before access to the information, it should be done. Otherwise, the request is unnecessary. Moreover, access to relevant information is free of charge, and the authorities are not allowed to make profits from it. ‘As soon as become available’ is the requirement on the time. Besides, this article also supplies some grounds for refusal which is in accordance with article 4, paragraphs 3 and 4. That is to say, when we adopt information disclosure in public participation in EDM, some standards in article 4 are available.

Article 7 adopts ‘provided the necessary information’ without further guidance on standards of ‘necessary’. Article 8 (b) requires as ‘draft rules should be published or otherwise make publicly available’. However, the information that has to be disclosed must be more than these, and nations have to design concrete standards for plans, programmes, policies and normative instruments to make sure there are sufficient information that can support effective participation.

4.3.4.2 Reasonable time-frames

Article 6(3) and article 8(a) both emphasize on the necessity of ‘time-frames’. As they require, the time-frame should be reasonable and sufficiently enough to make sure of effective participation. This time-frame roots from article 3 ‘to establish and maintain a clear, transparent and consistent framework to implement the provisions of this Convention’. And ‘a transparent and fair framework’ brought out by article 7 also include it. Article 6(3) supplies more concrete standards and sets two aims for reasonable time-frames. One is allowing sufficient time for informing the public with information in article 6(2), and the other is to ensure sufficient time for effective preparation and participation of the public. Moreover, the time-frames should be designed for ‘the different phases’, which means there should be a general time-frame for the whole project as well as separate time-frames for each stage. Besides making sure of the quality of public participation, this also benefits the authorities by ‘providing sufficient time to manage the process of public participation and to process the information provided by the public’.[77] In practice, time-frames should not be fixed or in a one-to-all style. According to the Aarhus Convention Compliance Committee, a flexible time-frame is suggested. In case ACCC/C/2009/37 (Belarus), the Committee appreciated ‘a flexible approach to setting the time-frames aiming to allow the public to access the relevant documentation and to prepare itself, … the flexible approach allows to extent this minimum period as may be necessary taking into account, inter alia, the nature, complexity and size of the proposed activity.’[78] A minimum standard is accommodated, and based on this the period can be extended according to the real needs. What could be considered that is, whether public participation should be integrated into the time-frames design? Or only depend on the experience and analysis of the authorities? At least, when the public disapprove with suggested time-frames, there should be a channel for them to state their viewpoints. If reasonable, appropriate adjustment could be done.

4.3.4.3 Early public participation

‘Early public participation’ is supported by all of three articles related to public participation in EDM. The most detailed standards are given in article 6(4) following on article 6(3), one is for that pace while the other is about the starting point.[79] Article 6(4) gives definition of ‘early’ that all options should be still open and effective public participation can take place. Shortly, public participation should happen when it is still possible to influence and change the concrete choices of relevant issues. For example, in a case of chemical factory establishment, when the site of this factory has already been decided and only integrated the public into comments on future construction and operation, this kind of participation is ineffective and obeys article 6(4). As the ACCC said, ‘once a decision to permit a proposed activities in a certain location has already been taken without public involvement, providing for such involvement in the other decision-making stages that will follow is still not meet the requirement of early public participation’.[80] Another key question is that when should the early public participation happen? Generally accepted idea is that the early participation should happen both in the whole process and at each stage.[81] Practical activities are normally rather complicated with more than one permits should be done. In the same example as above, this chemical factory may need a pollution release permit. The permitting procedure for the factory might not provide an opportunity to receive public comments on that aspect of the project, so on the stage especially for the pollution release permits, early public participation is still necessary to be taken into account. As the ACCC made it clear that ‘the requirement for “early public participation when all options are open” should be seen first of all within a concept of tiered decision-making whereby at each stage of decision-making certain options are discussed and selected with the participation of the public and each consecutive stage of decision-making addresses only the issues within the option already selected at the preceding stage.’[82]

4.3.4.4 Effective ways of comments and opinions expression

Article 6(7), (8) and (9) are all about public comments and opinions on projects, including expression of the public, consideration of the authorities and the impacts on final decision. Their aim is to make sure that the public could efficiently deliver their thinking to the authorities which will effect decisions actually.

Article 6(7) is about the effective ways of comments and opinions expression, as well as article 8(c). Compared to previous articles in article 6, the subject in article 6(7) has been changed to ‘the public’ instead of ‘the public concerned’. This can be understood simply as all the public whether they will be affected or have interests or not should have the right to express their views on EDM. So the authorities could not exclude anyone from participation in this stage. Furthermore, it can be imaged, if one has contributed his/her ideas on EDM, then this person can then win some concern with relevant decisions. And that means in following stages, even the subject of participation may require ‘the public concerned’, this person, based on his/her contribution to the development, can certainly have a right to participate.[83]. Article 6(7) supplies two ways for comments and opinions expression: writing and at a public hearing or inquiry. In practice, only these two ways will not be enough to make sure the effective participation, more various approaches could be set by parties, as long as they are ‘appropriate’. And in article 8, based on the nature of law- and rule- making process, it suggests that the comment could be delivered ‘directly or through representative consultative bodies’. The Implementation Guide of the Aarhus Convention explains this as lawmakers and legislators bear ultimate responsibility for the outcome of law-making and rule-making process, and that therefore some accommodation must be made for them. In a ‘representative consultation’, what must be noticed is that since most representatives are experts and leading figures in some fields, they ought to keep in mind what they present is the interests of the public and they must effectively express the interests and appeals of the public, then finally realize the value of public participation in EDM. Another standard in article 6(7) is that the relevance of comments and opinions to proposed activities is evaluated by ‘the public’.[84] So the authorities could not refuse any comments or opinions from the public with the excuse that it has nothing to do with activities, however, they can still do their own judge in the substantive examination.

4.3.4.5 Due account taken of the outcome

Only a pro forma public participation in EDM will not meet the requirement of the Aarhus Convention, whose purpose is to let parties adopt different approaches to make sure that EDM will be practically influenced and promoted by the public participation. And article 6(8) and 8 puts forward the requirement of due account taken of the outcome of public participation.

Article 6(8) and 7 use the same standard without detailed standards, while article 8 requires the due account should be ‘as far as possible’, which means the authorities should try their best to take effective and efficient account of the public participation outcome. However, article 6 is always stricter than article 8, based on different natures of their relevant EDM. So, in this aspect, we have reasons to believe that article 6 and 7 should also adopt this standard. In practice, whether due account has been taken to the outcome or not is difficult to be qualified with procedural standards. So, a more practical way is to make a requirement and checkup on the final decisions. The final decisions, as many countries have already required, should show which public opinions are adopted and which are not together with concrete explanations. And this can be checked by the public through article 6(9).[85] The objects of the account are comments and opinions from the public but not only the public concerned, regardless of their source. This emphasizes on the equal treatment of all comments and opinions, for that sometimes the authorities will prefer spending more time on those from experts and influential participants to considering those form common people. ‘Due account’ does not mean that the authorities must accept the public ideas. In fact, they are still final decision makers, and their obligation is only to state clearly the reason why they refuse some ideas.

4.3.4.6 Final decisions release

This is stated in article 6(9). The latter part of this article requires ‘each party shall make accessible considerations on which the decision is based’. And this is just accommodated with the previous paragraph as a good way to checkup the due account of the outcome. As all three articles have standards of due account, we can suppose that, at least the second half part of article 6(9) can be applied to all. Besides benefits to the due account, reasoned decisions also have some other advantages like increasing the reliability of the decision, enhance the confidence of the public in decision, supply a guide for future decision makers in the similar situation, and etc.[86]

The former part of paragraph 9 is about the procedural standards on the final decisions release. The subject of participation here is ‘the public’, which indicates that final EDM should be available to everyone with no confine or obstruction. And temporal standard here is ‘promptly’, and the releasing approaches should be ‘appropriate’ under the design of parties. The ultimate demand is to make final decision quickly and widely available to the public, to accommodate them with a chance to know their participation results. Its importance will be shown when someone wants to appeal specific decisions. The early notice on one hand can protect their procedural rights in case of losing challenge change because so time limits. And the on the other hand, the challenge can happen before projects proceed far away and induce to resources waste.

5. Requirements of the EA on public participation in EDM The CBD has brought out 12 principles of the EA to guide the implementation of the EA. The realization of these 12 principles is not an easy work. As mentioned, different instruments must be adopted, and when they are put into use, their implementation should be adjusted so as to meet needs of related principles. Public participation in EDM is one of essential implementation instruments, and this part will go through a number of 12 principles to have a conclusion of their requirements on it.

In case studies of the International Union for Conservation of Nature (IUCN), principle 1(societal choice)[87], 2(decentralized management)[88], and 12 (the engagement of the widest possible range of stakeholders)[89] are the most relevant aspects to public participation in EDM.[90] They may have some overlapped requirements, so the following analysis of their requirements on public participation in EDM will be in an integrated way.

Principle 1 emphasized on “societal choice”, which means the objective of the management of natural resources should not only aim at biodiversity conservation, but also consider economic cultural and social needs. This requires that ecosystems should managed in an equitable way, which both considers instincts values of ecosystems and also the tangible and intangible benefits from humans.[91] This indicates that the content of the information and knowledge to be collected and adopted in public participation in EDM ought to be comprehensive in order to enhance the decision-making quality in the EA. Besides principle 1, principle 12 also states this requirement. Principle 12 requires the EA should include “all relevant sectors of society and scientific disciplines”. This is because the complexity and diversity of the ecosystem decides that no individual or single group can process all information or capacities to management this complicated system, only the cooperation among different sectors and disciplines can realize the objective of the EA.[92] The aim of this principle is to integrate as much useful information and knowledge as possible in the EA.

As an important way of information and knowledge collection, public participation in EDM has the obligation to realize this duty. So, public participation in EDM is required to include as many potential affected individuals and communities as possible to gather their knowledge and experience related to the ecosystem. Combined with principle 1, in the widest range of the public included, the information and knowledge collected in public participation in EDM should include two aspects: one is the natural information about the ecosystem structures and functioning, the other one is the social information about the rights and interests of the public which may be from economic, cultural and societal needs. In the past, the information from the public was always focused on the natural side. However, in the requirement of the EA, this is no longer enough and the social side must be given equal attention. Decision makers had better design an appropriate information collection plan that could guide the information collection activities well and make sure in a suitable range of the selected public all information and knowledge influencing will be included, in case of neglect of some remote details leading to the failure of the whole plan. For example, in China, there are some areas inhabited by ethnic minorities. When decision makers implement some ecosystem conservation and restoration plans, they must pay attention to traditions and habits of these ethnic minorities to know whether they have any special faith, customs or taboos. If they do, decision makers should try to admire these traditions or get some kind of coordination with ethnic minorities to avoid conflicts. Otherwise, without fully understanding and regards, sometimes plans are difficult for ethnic minorities to accept and they will certainly be reluctant to act as required. A good way to ensure the quality of the information and knowledge collection plan is to involve the public also in this stage. On one hand this can help decision makers to make a suitable selection of the public involved, and on the other hand, they can also have an early general grasp of potential information and knowledge they should pay extra attention in the collection process, which will avoid any neglects or idle work.

Another essential requirement of principle 1 is that the rights, interests and opinions of the affected public should be heard and considered carefully in the decision-making, so as to make sure the general direction of the decision is coordinate with the ecosystem values and the public benefits. The decentralization management advocated in principle 2 also requires this. One important reason is that local individuals and communities may positively or negatively affect specific ecosystems mostly. Their knowledge and experience, their suggestions and ideas, and their cooperation with decisions or not are decisive elements in the EA. So the public should not only an information and knowledge source, they should also be part of decision-making to exert their brightness and experience to improve decisions, and also through this way to win their cooperation in the decisions implementation.

Therefore, in public participation in EDM of the EA, the public must be actually involved. In other words, the hearing and consideration required could not be only superficial or pro forma. In the past, the participations were limited to some forms of material giving and questions asking, and within this kind of participation, the public always finds it is rather pro forma and cannot feel that they are really admired in public participation procedure and lead to the result of their negative impression on public participation.[93] In the EA, one important change is that public participation in EDM must be actually carried out and make sure the public can feel their proposals are really being carried out. Some instruments can be adopted. For example, a feedback process could be established. Within this process, on any stage of the EDM, the authorities should use some ways to let the public know that their suggestions are being adopted or not. If not, why not. In this way, the public can understand their values in EDM and promote their enthusiasm and confidence in public participation in EDM, and this can finally enhance the quality of public participation in EDM.

Principle 2 also brings out the requirement on the public concerned selection, which refers to the subject issue in public participation in EDM. The selection of the public concerned is a significant step in public participation in EDM, for that the negative selection could lead to failure of the whole decision. For example, if decision makers choose a smaller group of the public concerned than necessary, the information and knowledge in need will in fact not sufficient and perhaps some unfound facts will suddenly appear and bring some irremediable results in later implementation. And in this situation, there could also be a group of neglected populations, whose rights and interests may be possibly infringed. On the contrary, some false inclusion will cause a waste of resources. So the selection of the public concerned must be cautious. To reach this objective, decision makers must answer two questions: what is the suitable range of the affected ecosystem? Who are affected populations inside? This requires some beforehand work, including both scientific knowledge and analysis and investigation in the public. Some other principles of the EA could also be borrowed here as guidance. Principle 3 requires ‘ecosystem managers should consider the effects (actual or potential) of their activities on adjacent and other ecosystems’. This indicates that including only the public in the targeted ecosystem is not enough, those who area also affected in adjacent and other ecosystems should be taken into account as well.

In above principles, the rights and interests of the public are emphasized a lot. However, it must be admitted that it is impossible for all the public to have a unified rights or interests, so when these rights and interests are all taken into account in EDM, some conflicts will appear. The EA requires public participation in EDM to deal with this, and the capacity building is a good approach to meet this requirement. Principle 5, 6, 7, 8 and 9[94] all talk about that the EA must be coordinated with the nature of the ecosystem, and should make use of ecosystem services in a sustainable development way. Some interests of the public would be contrary to this, whereas the public may not realize this and still stand on these interests. At the same time, what cannot be avoided is that, normally, people would like to make decisions on their own interests and wishes, which will lead to the destruction of the nature. The capacity building could be helpful in stimulating the public to enhance the consciousness of the ecosystem protection and initiate to act in the limit of ecosystem functioning. In practice, the capacity building should not only focus on the understanding of ecosystem structure and functioning, but also the comprehension of public participation procedures. The public should realize their rights and duties in participation activities, which can promote them sufficiently and properly play their roles.

These requirements should be embodied in the legal framework of public participation in EDM, and some concrete standards and criteria can be used to ensure their realization. This will be discussed further later.

6. The Legal Framework for public participation in EDM in the EA Public participation in EDM is an important and essential instrument of the EA Implementation. As a new management method for biodiversity conservation, the EA advocates a number of new notion, principles and requirements, according to which the legal framework of public participation in EDM should be adjusted and enriched. In this part, based on the general legal content of public participation in EDM throughout international environmental law, a normative legal framework for public participation in EDM in the light of specific requirements as analyzed in the last chapter will be established. This legal framework includes detailed standards with respect to: ladders of public participation in the EA, objects, subjects, rights and duties of different subjects, and procedural standards.

6.1 Ladders of public participation in EDM

Public participation should be a binding duty of the authorities in EDM. Maybe this could not be realized at once, at least, it should be an aim of the democratic governance.

According to Arnstein’s Ladders[95], public participation has been divided into 8 levels. To the EA, maybe level 7 ‘delegated power’ which means some power is delegated to the public should be the ultimate objective of public participation in EDM. However, it is difficult to fully realize this at once. At the moment, level 6 may be a more suitable aim. Level 6 is ‘participation’, within which ‘people negotiate with traditional power holders, agreeing rules, roles, responsibilities and levels of control.’[96] In this level, citizens may indeed ‘hear’ and ‘be heard’, moreover, they also have the power to ensure that ‘they are heeded’, which shows some essential standards in participation procedure.

6.2 Range and objects

EDM in the Aarhus Convention includes: decisions on specific activities, plans and programmes, policies, and preparation of executive regulations and/or generally applicable legally binding normative instruments. In accordance with their nature and content, the Convention supplies different cluster of standards to them. The EDM in this legal framework will refer to all above decisions. However, their detailed standards will not be separated into different parts as the Aarhus Convention. Instead, it will be set on the most concrete and strictest level, which seems like those in article 6. [97] For that, this paper intends to construct a comprehensive legal framework for public participation in EDM in the EA which could be a general guide for all decisions, and the concrete implementation on different decisions in practice can be derived from it with some limitations or confines according to national laws or practical situations. Moreover, though at this moment, policies, law- and rule- making in the Aarhus Convention are enjoying a less tight binding, with the development of democratic governance, the ultimate objective should be that someday all kinds of decisions can be integrated with the widest public participation. This is the requirement of the EA that local populations and communities can be part of all kinds of decisions related to them, and this is also the requirement of the fundamental right of the public to take part in EDM.

Not all kinds of decisions will be regarded as EDM, and here we will borrow the standard – ‘a significant impact on the environment’ – from the Aarhus Convention to be a criterion on choosing applied objects. Below, some more detailed standards will be listed to help recognize the existence of ‘a significant impact on the environment’.

Firstly, since this legal framework here is established in the light of the EA, the ‘environment’ here should be given some specific content in addition to what is stated in the Aarhus Convention. As principle 5 of the EA states, ‘conservation of ecosystem structure and functioning’ is the priority target of the ecosystem management, so this could be regarded as an important object. The ‘significant impact’ on them may include, inter alia, change, destruction, degradation, negative effects or limitations on restoration. Moreover, ‘ecosystem services’ provides both the conditions and process that sustain human life, like purifying water and air, detoxifying and decomposing waste, renewing soil fertility, regulation climate, mitigation droughts and floods, etc.[98] It is one of essential reasons why we must attach importance to ecosystem management and biodiversity conservation[99]. So the degradation of ecosystem services would be another significant impact. It must be attended that ecosystem services embrace a very comprehensive content, including supporting services, provisioning services, regulation services and culture services, and each has to been given equal consideration when judging whether there is a significant impact or not.

Secondly, same to the Aarhus Convention, the ‘impact’ here is only a kind of possibility but may not definitely happen, and the right of judging the ‘possible impact’ is in the hand of the public. As long as the public feel certain decisions will influence conditions of the ecosystem, the authorities then must accept their opinions and take into account[100].

Thirdly, this ‘significant impact’ could happen at once, as well as in the far future. Since the EA sticks to the sustainable development notion, decisions could not only consider current situations but also what will be like in the future. Principle 9 of the EA asserts that ‘change is evitable’, which means that the potential changing, involving the possible unpredictable impact caused by the changing, must be also taken into consideration.

Fourthly, the impact area should be set on a holistic view, not only the target ecosystem but also its adjacent and other ecosystems that would be potentially influenced. This could be comprehended through principle 3 of the EA. It is possible that some decisions which do not have significant impacts in its target ecosystem may heavily impact other ecosystems. This ought to be noticed, and the public in such ecosystems could not be ignored. This potential impact can be found through scientific research of the authorities, as well as from experience and knowledge of local people and communities. NGOs who have both professional and practical knowledge perhaps can contribute a lot.

6.3 Subjects

Stakeholders are those with a stake in an issue and may include government and its agents, industry, individuals, communities and NGOs.[101] And all stakeholders in EDM could contribute something to the final decisions and could be regarded as applied subjects. In practice, we can roughly put them into two main groups: one is the public including individuals, communities and NGOs, and the other is the authorities. Applicants and other proponents are not included here, for that, in the legal framework of public participation in EDM, they always play an assistant role whose work are more about information supply and supplement, reasoning, etc. So perhaps it is more suitable to set them as a third party in this legal framework with some special standards.

The authorities can be simply defined as the government and its agents who are in charge of specific decisions and have the right to make the final decisions. Public participation is served for the final decision-making results, so who take the responsibility of the final decisions are organizers of public participation is reasonable. These the authorities can design and organize public participation according to their needs, and if later there are any disputes arose from this procedure they must take the responsibility.

The members of the public are always a complicated part. According to the EA, setting ‘the public concerned’ as the main subject in public participation in EDM may be a suggested choice. The EA emphasized on decentralization and management with local people and communities, because it is an ecosystem-based management approach. An important idea in the EA is to cooperate with local people and communities who have practice experience and knowledge about specific ecosystems, and these can contribute to the quality of final decisions. Moreover, since they are operators or cooperators of related decisions, so their understanding and support are other aims of the EA in public participation. Therefore, in this legal framework, ‘the public concerned’ in certain ecosystems would be main subjects. ‘The public concerned’ in the EA can be defined as local individuals and communities, NGOs with interest and other people or communities who affected or likely be affected, or having rights or interests in certain decisions. However, that is not to say the other common pubic have nothing to do with EDM. In fact, the notion in article 6 of the Aarhus Convention can be applied here, that: the authorities’ duties are being focused on the public concerned so as to make sure they will all effectively participate in EDM, while all the public have the right to acquire certain information and deliver opinions on EDM which must be treated equally.

Though members of the public concerned have been listed above, it is still difficult to make sure everyone would be included without any omit. We can combine two ways to reinforce the accuracy in selection. One is the authorities’ choices. The authorities can finish this task in two steps, firstly they have to fix the affected ecosystems, and then to choose affected populations in them. Two points should be noticed in the first step. Affected ecosystems could be more than imagine as discussed in the previous part, so different information and knowledge must all be considered to reach the final choice. At the same time, ecosystems could be affected in varyingdegrees, and the authorities ought to keep this in mind which would be helpful when design modes of participation. The other way of selection is using the approach of public participation. In this period, public participation could be open to anyone. Those who think themselves or other will be affected or likely to be affected, and those who have interests or rights can all deliver their opinions to the authorities. Depending on this wide information, the authorities can make the final choice. What can be assumed here is that, those who have interests in decisions, like NGOs, would often positively make sounds. If they have no reasonable explanation for why they do not assert their right in this stage of public participation, in the later disputes, this may be taken into account to reduce the duties of the authorities.

NGOs play a special role in the public participation in EDM. In the Aarhus Convention, they are regarded as part of the public concerned since they can share the same right. Moreover, they are also a bridge of the authorities and local individual and communities. Sometimes, local people are lack of education or ability, and this limits their opportunities to effectively participation in EDM. NGOs at this time can contribute a lot. They can use their way to help enhance local population’s ability, as well as on behalf of them to express their appeals. Furthermore, since they are standing on a more general and continued stage, they can understand the connection and interaction between ecosystems better than local populations and the authorities.[102] This can just meet the need of the EA. So, in the public participation in EDM, the role of NGOs must be regarded.

6.4 Rights and duties

6.4.1 Rights and duties of the authorities

Rights:

(1) Acquiring practical experience and knowledge from the public concerned, which is necessary or influential to decisions;

(2) Refusing to apply content related to defence purposes;

(3) Adjusting the public participation plans during the implementation process according to national laws, including, inter alia, adding or reducing content or steps, regulation inappropriate actions of the public, organizing special meetings or discussions, etc.;

(4) Making the final decisions with consideration of comments and opinions from the public.

Duties:

(1) Designing effective public participation plans;

(2) Preparing sufficient knowledge and information for decision-making;

(3) Providing information and knowledge to the public through effective approaches;

(4) Providing effective ways for the public to participate in decision-making;

(5) Hearing and taking due account on comments and opinions of the public;

(6) Providing feedback to the public about their participation;

(7) Facilitating with capacity building of the public;

(8) Providing financial support to public participation activities.

6.4.2 Rights and duties of the public concerned

Rights:

(1) Acquiring sufficient information and knowledge from the authorities, either through passive supply or active request;

(2) Accessing to capacity building opportunities;

(3) Participating in decision-making process through various effective ways, freely and sufficiently expressing comments and opinions;

(4) Being taken account of their comments and opinions;

(5) Acquiring feedback from the authorities in time;

(6) Opportunities to appeal, either for procedural or substantive issues.

Duties:

(1) Providing practical experience and knowledge to the authorities, informing impacts or potential impacts of decisions as far as they know;

(2) Exercising participation right in a reasonable and legitimate way, avoiding use this right only depending on self-interests or infringing others’ rights or interest;

(3) Admiring the final decisions of the public participation and cooperating positively with them.

6.4.3 Rights and duties of the public[103]

Rights:

(1) Accessing to any available information and knowledge, either from passive supply or active request;

(2) Delivering comments and opinions on decisions, which ought to be treated equally by the authorities with those from the public concerned;

(3) Acquiring feedback from the authorities with results on their participation.

Duties:

(1) Admiring interests and traditions of local people and communities;

(2) Exercising participation right in a reasonable and legitimate way.

6.4.4 Rights and duties of proponents[104]

Rights:

(1) Taking part in public participation activities, like meeting, discussion, and hearing comments and opinions from the public;

(2) Having opportunities to give further explanation or communicating with the public (concerned) to reasonably persuade them to accept certain decisions.

Duties:

(1) Facilitating the authorities’ work in public participation in EDM in the EA;

(2) Providing information regarding their activities;

(3) Taking comments and opinions from the public into account;

(4) Providing explanation to questions being brought out during the participation procedure.

6.5 Procedural Standards

6.5.1 Capacity building

Capacity building is introduced to ensure and enhance the quality and impact of public participation in EDM in the EA. In the past public participation, some problems appeared like: the public concerned were reluctant to join in because they regarded this as a waste of time and no benefit would be wined back. Even some public concerned who took part in could not supply useful comments or opinions, either because they do not understand the appeal of the procedural, or they only expresses based on their own interests. So the authorities should take some actions in capacity building, so as to ensure that public participation will not be only pro forma as a waste of time and energy.

Three main objectives of capacity building include: enhancing the passion and ability of the public concerned in public participation, improving their environment protection consciousness and a neutral attitude establishment in participation, and acquiring right, clear and deep understanding of related EDM. Relevant activities for the first two objectives should take place at the beginning of the whole public participation procedure, and the third one should keep pace with different subdecisions appearing in EDM. The authorities could be the main ‘teacher’, and they can also trust this matter to NGOs. And concrete ways would be like: introduction letters and emails, open houses with relevant information and knowledge display, consultation desks and special lines with explanation to doubts of the public concerned, training programmes with specific subjects.

6.5.2 Mutualinformation mechanism

One of the most essential contributions of the EA to public participation in EDM is that it enriches the content of information, which includes not only those from the authorities’ research or collection, but also experiences and knowledge from local people and communities. So compared to the information disclosure in the Aarhus Convention, this legal framework endeavors to establish a mutualinformation mechanism, in which the information can flow bidirectionally.

In this mutualinformation mechanism, the authorities have similar obligations as in the Aarhus Convention that they must supply both procedural information about the public participation process in EDM and substantive information about decisions and related issues. The new point is that, the public concerned should also deliver their practical experiences and knowledge related to their living ecosystem, which includes not only natural, but also societal, economic and cultural information. As mentioned previously, the EA stresses on social needs a lot because of their heavy influence on final decisions and implementation effects. Therefore, in mutualinformation mechanism, social needs must be reflected equally with other information.

The general requirement here is information can keep flowing among different subjects and reach the public concerned (as well as the public) in time. Firstly, the time-frame for information disclosure therefore should also serve for information provision of the public concerned. Secondly, effective approaches should be given for both disclosure and provision. In information disclosure, letters, emails, notice, inter alia, can be used for the public concerned to make sure that everyone can really receive the information. And for the public, some public ways like newspaper, website, TV and outside advertisement could be adopted. Meanwhile, letters, emails, reception desks, suggestion boxes, consultation can all be adopted for information provision by the public concerned, and the only condition is that the ways ought to be simple and convenient in case of information channels themselves becoming the obstacles for public participation. Thirdly, after the authorities receive information from certain people and communities, they have to do some analysis on its quality and usefulness. Different from comments and opinions, information from the public concerned should be objective without any emotion or interests influencing. This can also be checked by the authorities. With the evaluation and necessary modified (mainly on words or some emotional expressing), if the information is regarded suitable and helpful, then it can be disclosed equal to other information from the authorities.

6.5.3 Modes of public participation

The choice of modes can influence the quality of public participation. A good mode will promote the effectiveness of the public’s expressing of comments, analyses and opinions, while an unsuitable mode will become obstacles and lead to resources waste.

In practice, the administrative resources are limited, so it is hard for the authorities to focus on every member of the public. Here is an assumption: is it possible to design different modes of public participation according to different affected areas?

Concretely, we can divide the public concerned and the public into different participation levels depending on (potential) impacts on their living areas. A rough division will be: the public concerned in central ecosystems (affected heavily), the public concerned in subcentral ecosystems (also affected but a bit lighter), and the public in common areas (all other areas).

The public in the central ecosystems which being effected mostly should be given the most attention, the participation mode here could be an individual way. In this way, the authorities can adopt face-to-face or individual modes to guarantee everyone inside can get information and opportunities to exert their interests. Public meetings, hearings and deliberate polling can be held in one or several villages, for example, and everyone concerned is available to participate. These kinds of participation should be organized as near as possible to be convenient for the public concerned to join in. And advanced notice and prompt are necessary. Interviews, surveys, response sheets, inter alia, can help collect information and reactions from each participant as a one-to-one approach. The decisive point is their content. Statement and questions should be designed easy to understand, all necessary and key points should be included and the length must be controlled.

In subcentral areas, a representative way may be more suitable. Everyone still has the right to be heard, but the expressing way is through some representatives. Modes above can also be used here, and the difference is participants are not every one of the public concerned, but representative selected from them. The key point in a representative way is the selection of representatives and how they can represent others. Representatives must fully express others’ opinions and appeals, and this requires their communication before they take part in related activities. In this side, maybe NGOs can play an important role, for that they have certain basic knowledge of local situations, and also have time, motivity and staffs to accomplish this.

And to the public in common areas, the chance of hearing or being heard depends on their positivity in a public way. Information would be delivered on the internet, TV, newspapers, outside advertisement, inter alia, and the authorities have no duties to ensure everyone will read it. But if someone would like to get more information or deliver comments, their rights have to be admired and certain effective express approaches should be applied. Meanwhile, some random surveys would be suggested for the authorities to gather opinions from the public but not only passively waiting.

This is an assumption of the modes of public participation in EDM, and it can be further studied through cases to test its feasibility.

Table 2: Modes of Public Participation in EDM in the EA

6.5.4 Reasonable time-frame

Time-frame is mostly applied for the period from the public receive related information to they give comments and opinions through some approaches to the authorities. This period is used to give the public sufficient time to acquire information, read and understand information, prepare and bring out comments and opinions.

A fixed time-frame for all actually is not a good idea. Different projects have different situations, the more complicated the project is the more time will be demanded. So the suggestion is to adopt a case-to-case time-frame design. Furthermore, some requirements should be given to the time-frame design. The first and most important one is that time-frame must be ‘reasonable’. The ‘reasonable’ here refers to the number of days given to the public must be able to ensure they will get enough time to understand, absorb and give reactions, not in a hurry. The second is a minimum standard of requisite days, which can provide the basic guarantee. The third is the necessity of public participation in case-to-case time-frame design, within which the public concerned can express their opinions on the requisite number of days based on their needs and situations. Public participation is necessary here for that the public concerned can provide some unimaginable situations of difficulties in accessing to information to the authorities. For example, according to different farmers, they will have different farming seasons. In their busy seasons, it is unreasonable to require farmers to divert more attention to public participation affairs. The authorities may be hard to understand all participants’ concrete situations, so public participation with such information provision is useful. Lastly, time-frame can be flexible with the possibility to extend if necessary. Mutualinformation mechanism is suggested in this legal framework, which can bring some new and key information within given time-frame. When such information really appears, the authorities should pass it to the public concerned in time. And in circumstance, time-frame can be considered to extend reasonably. However, time-frame has been designed together with the public concerned in advance, if its extending is discretional, the credibility of public participation effects would be challenged. Therefore, added content must be very influential and necessary which will greatly influence decisions. And Reasonable and persuasive explanations must be provided to the public concerned alongside with the notice of time-frame extending.

6.5.5 Early public participation

As the Aarhus Convention states, an ‘early public participation’ requires there are open options and effective public participation can still take place. And the same standard can be applied here.

Early public participation can supplement local information to avoid neglects and idle work of the authorities. Also, some decisions may be objected by the public, if public participation happen after the start of related activities or plans, some meaningless work will be done and cause a waste of resources. At the same time, impairments on either rights and interests of the public concerned or ecosystem function and structure would happen. If the impairment is irreversible, the result will be possible beyond imagination. So, as long as there is a rude idea of the EDM, the public concerned can be invited to give information about who should be involved and the possible influenced range. Public participation can happen during the preparation of the draft, not only limited to the discussion about the finished draft.

Moreover, an EDM may include several subprojects, and early public participation should take place at the commencement of both the whole EDM and every subproject. This is emphasized separately here because of its easy being neglected. In the previous analysis of the Aarhus Convention, the reason and necessity of early participation have been stated. Additionally, early participation in subprojects can be monitored by the public concerned. They have already joined in the discussion of the whole EDM with knowledge of what is going on in the future. If they find some subprojects should integrate them but in fact not, they can appeal to competent the authorities for their participation right.

6.5.6 Due account taken and outcome release

In this legal framework two points are combined together, because due account taken of the public participation is mainly evaluated by the outcome. The importance of due account derives from its influence on the public’s impression on public participation. If the public feel that their participation in fact has no impact at all, in the future they would not prefer to participate any more. On the contrary, a first successful experience will encourage them to contribute more next time.

The only way for the public to check their participation results is through the outcome release. So in this outcome, final EDM should be stated clearly, including both accepted and not accepted content. Stating which comments and opinions have been accepted and integrated into the EDM can make the public concerned feel admired and promote their positivity in public participation in the future. And comments and opinions that are not adopted also should be explained. These reasons, on one hand can help the public concerned understand the final EDM better as well as acquire experience for following participation, on the other hand, they can also make the public concerned easier to accept the EDM and cooperate to put it into act.

Some further requirements are, firstly, the outcome release does not only refer to the final decision, but also every subdecision. Every time the public concerned take part in some meetings or hearings, they should be able to get feedback some days later, either through letters or email. Moreover, outcomes released to the public concerned may include some room for further modification. At this moment, neither individual nor representative approach will be adopted. Only those who have objections can express their ideas to the competent the authorities through some feedback channel. Two conditions must be ensured here, one it reasonable time-frame for receiving, understanding related outcomes and feedback, and the other is effective channels, like special lines, mailbox, etc. The third requirement is a high standard, that, the authorities may use some measures to help the public concerned understand the outcomes better. These could a further explanation or guide, consultation desks, legal services, etc.

7. Conclusion Public participation in EDM in the EA is a complicated job, for that it calls for cooperation between different subjects with different interests and appeals. Either of them is possible to make decisions or deliver comments standing on self-centered point. So, though there is a huge room at their discretion through discussion or negotiation, basic standards are still necessary and must be obeyed. While the authorities need provide the widest opportunities for the public to give words in the EDM, the public should also strive to contribute to better EDM to realize their right of living in a sound environment. Both the authorities and the public should endeavor to enhance their capacity for high-quality public participation, and finally realize the aim of the EA.

综合生态系统管理视角下环境决策中公共参与法律制度的构建

郎嬛琳 （格罗宁根大学，荷兰）

摘要：《生物多样性公约》将综合生态系统管理确定为生物多样性保护的重要方法和指导思想，提出通过这一方法实现保护、可持续利用以及公平和公正分享基因资源的利用所带来的利益三者的平衡和统一，这对中国环境资源法的发展和完善具有深远影响和意义。环境决策中的公共参与制度是贯彻落实综合生态系统管理的重要手段之一，同时也被多个国际公约确定为一项人类基本权利。本文将着重讨论综合生态系统管理方法的特点及其对环境决策中公共参与法律制度的新要求，并在分析现有相关国际法基础上，构建起综合生态系统管理方法下环境决策中公共参与的法律制度框架。

关键词：综合生态系统管理；环境决策中的公共参与；国际法；奥胡斯公约；法律框架

[1] Some other terms are also used to describe this management method, like “integrated ecosystem management”, “ecosystem management approach”, “ecosystem-based approach”, etc. In China, “integrated ecosystem management (IEM)” is more often used. However, since the “ecosystem approach” has been used more widely according to CBD documents and decisions, here, the author would like to use the term “Ecosystem Approach” instead of others. The content of these terms are substantially the same.

[2] UNEP/CBD/COP/DEC/V/6, (2000)

[3] Jutta Stadler, Historical Background of the Ecosystem Approach and Current Debates, (2003), Report of the International Workshop on the “Further Development of the Ecosystem Approach”, Bundesamt für Naturschutz (BfN), 25-29

[4] Report of the Scientific Workshop on “The Ecosystem Approach – What Does It Mean for European Ecosystems?” (1999), Horst Korn, Jutta Stadler, Edward Maltby, Alexander J. Kerr Eds, German Federal Agency for Nature Conservation

[5] SBSTTA 1 Recommendation I/3, (1995)

[6] UNEP/CBD/COP/DEC/VII/11, (2004)

[7] Ibid.

[8] According to the Principle 10 of The Rio Declaration indicates the public participation in the environmental issues can be divided into three aspects: access to information, access to decision-making processes and access to justice. (The Rio Declaration on Environment and Development (1992)) In my research of the general legal framework of the ecosystem approach, I will put these three aspects in different implementation instruments to study, like access to information will be categorized to the information collection, disclosure and management part. This paper is part of my whole research and will only focus on public participation in environmental decision-making procedures.

[9] Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing, 94

[10] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (The Aarhus Convention), (1998), article 6, 7 and 8

[11] The Rio Declaration on Environment and Development, (1992)

[12] African Convention on the Conservation of Nature and Natural Resources (1968)

[13] Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, (1994)

[14] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011,

[15] Jonas Ebbesson, Participatory and Procedural Rights in Environmental Matters State of Play (Draft Paper), (2009), The New Future of Human Rights and Environment: Moving the Agenda Forward UNEP, Nairobi, Kenya, 30 November- 1 December 2009, http://www.unep.org/environmentalgovernance/Events/HumanRightsandEnvironment/tabid/2046/language/en-US/Default.aspx, the lasted modified 25 June 2011, 1-2

[16] P. Birnie and A. Boyle, International Law & The Environment (2002), Oxford: OUP, Jonathan Verschuuren, Public Participation regarding the Elaboration and Approval of Projects in the EU after the Aarhus Convention, T.F.M. Etty, H.Somsen eds. Yearbook of European Environmental Law, Vol.4, (2004), Oxford University Press, 29-48

[17] Draft Principles On Human Rights And The Environment, E/CN.4/Sub.2/1994/9, (1994)

[18] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (The Aarhus Convention), (1998)

[19] Jonathan Verschuuren, Principles of Environmental Law, (2003), Nomos Verlagsges.MBH + Co

[20] Jonathan Verschuuren, Public Participation regarding the Elaboration and Approval of Projects in the EU after the Aarhus Convention, T.F.M. Etty, H.Somsen eds. Yearbook of European Environmental Law, Vol.4, (2004), Oxford University Press, 29-48

[21] E.L.I. Research Report, Transparency and responsiveness: Building a Participatory Process for Activities Implemented Jointly under the Climate Change Convention, (1997), Environmental Law Institute

[22] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011

Bisset R. Methods of consultation and public participation (Chapter 9), Environmental assessment in developing and transitional countries, Lee N, George C, eds, (2000), Chichester: Wiley

E.L.I. Research Report, Transparency and responsiveness: Building a Participatory Process for Activities Implemented Jointly under the Climate Change Convention, (1997), Environmental Law Institute;

[23] Acland A. Guidelines for Stakeholder Dialogue, (2002), The Environment Council London

[24] Bisset R. Methods of consultation and public participation (Chapter 9), Environmental assessment in developing and transitional countries, Lee N, George C eds, (2000) ,Chichester: Wiley

[25] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011

[26] Jonas Ebbesson, Participatory and Procedural Rights in Environmental Matters State of Play (Draft Paper), (2009), The New Future of Human Rights and Environment: Moving the Agenda Forward UNEP, http://www.unep.org/environmentalgovernance/Events/HumanRightsandEnvironment/tabid/2046/language/en-US/Default.aspx, the lasted modified 15 June 2011

[27] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011

Chang Jiwen, Foreign Legislative Experience of Environmental Basic Law on Public Participation and Its Revelation to Chinese Legislation of Basic Environmental Law, http://www.iolaw.org.cn/showArticle.asp?id=1549, the lasted modified 25 June 2011

[28] The Universal Declaration on Human Rights, (1948), article 21 (1) (2)

[29] The International Covenant on Civil and Political Rights, (1966), article 25(a)

[30] The Treaty of Lisbon, (2009), article 1-46(3)

[31] Mikmaq people v. Canada, Official Records of the Human Right Committee 1991/92 (II), (1986), UN Human Rights Committee, Communication 205 UN/CCPR/11/Add.1

Jonas Ebbesson, Participatory and Procedural Rights in Environmental Matters State of Play (Draft Paper), (2009), The New Future of Human Rights and Environment: Moving the Agenda Forward UNEP, Nairobi

[32] The United Nations Framework Convention on Climate Change (UNFCCC), (1992), article 6 (a)

[33] The Kyoto Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), (1998), article 12 (9)

[34] Agreement on the Conservation of Nature and Natural Resources, (1985), Association of Southeast Asian Nations, Article 16(2), ‘They shall …, as far as possible, organize participation of the public in the planning and implementation of conservation measures. ’

[35] African Convention on the Conservation of Nature and Natural Resources, (1968,) adopted by the Organization of African Unity (now the African Union). Article XVI1, ‘The Parties shall adopt legislative and regulatory measures necessary to ensure timely and appropriate: (c) participation of the public in decision- making with a potentially significant environmental impact.’

[36] Inter-American Convention for the Protection and Conservation of Sea Turtle, (1996), article IV-2(g), ‘The promotion of environmental education and dissemination of information in an effort to encourage the participation of government institutions, nongovernmental organizations and the general public of each State, especially those communities that are involved in the protection, conservation and recovery of sea turtle populations and their habitats.’

[37] The Rio Declaration on Environment and Development, (1992), Preamble, ‘With the goal of establishing a new and equitable global partnership through the creation of new levels of co-operation among States, key sectors of societies and people.’

[38] Ibid., Principle 1, ‘Human beings are at the center of concerns for sustainable development. They are entitled to a healthy and productive life in harmony with nature.’

[39] Ibid., Principle 20, ‘Women have a vital role in environmental management and development. Their full participation is therefore essential to achieve sustainable development.’

Principle 21, ‘The creativity, ideals and courage of the youth of the world should be mobilized to forge a global partnership in order to achieve sustainable development and ensure a better future for all.’

[40] Ibid., Principle 22, ‘Indigenous people and their communities, and other local communities, have a vital role in environmental management and development because of their knowledge and traditional practices. States should recognize and duly support their identity, culture and interests and enable their effective participation in the achievement of sustainable development.’

[41] Ibid., article 1.3, ‘The broadest public participation and the active involvement of the non-governmental organizations and other groups should also be encouraged.’

[42] Ibid., article 3.2, ‘…the rights of women, the role of youth and of indigenous people and local communities and a democratic participation process in association with improved governance.’ Article 3.7, ‘… Governments, in cooperation with appropriate international and non-governmental organizations, should support a community-driven approach to sustainability, which would include, inter alia: (d). Giving communities a large measure of participation in the sustainable management and protection of the local natural resources in order to enhance their productive capacity.’

[43] Ibid., article 8.4 (f), ‘Ensuring access by the public to relevant information, facilitating the reception of public views and allowing for effective participation;’

[44] Ibid., article 8.5 (g), ‘Delegating planning and management responsibilities to the lowest level of public authority consistent with effective action; in particular the advantages of effective and equitable opportunities for participation by women should be discussed.’

[45] Ibid., preamble, ‘…the importance of ensuring the full participation of both men and women at all levels in programmes to combat desertification and mitigate the effects of drought.’

[46] Ibid., article 3 (a). ‘the Parties should ensure that decisions on the design and implementation of programmes to combat desertification and/or mitigate the effects of drought are taken with the participation of populations and local communities and that an enabling environment is created at higher levels to facilitate action at national and local levels.’

[47] Ibid., article 5 (d), ‘promote awareness and facilitate the participation of local populations, particularly women and youth, with the support of nongovernmental organizations, in efforts to combat desertification and mitigate the effects of drought.’

[48] Ibid., article 10(f), ‘provide for effective participation at the local, national and regional levels of non-governmental organizations and local populations, both women and men, particularly resource users, including farmers and pastoralists and their representative organizations, in policy planning, decision-making, and implementation and review of national action programmes;’

[49] Ibid., article 17 (f), ‘promote the conduct of joint research programmes between national, subregional, regional and international research organizations, in both the public and private sectors, for the development of improved, affordable and accessible technologies for sustainable development through effective participation of local populations and communities;’

[50] Ibid., article8-2 ‘National action programmes shall, as appropriate, include the following general features: (c) the increase in participation of local populations and communities, including women, farmers and pastoralists, and delegation to them of more responsibility for management.’ Article 9, ‘Preparation of national action programmes and implementation and evaluation indicators (c) facilitate, design and formulate project activities based on interactive, flexible approaches in order to ensure active participation of the population in affected areas, to minimize the negative impact of such activities, and to identify and prioritize requirements for financial assistance and technical cooperation;’

[51] Cartagena Protocol on Biosafety to the Convention on Biological Diversity, (2000), article 23(2), ‘The Parties shall, in accordance with their respective laws and regulations, consult the public in the decision-making process regarding living modified organisms and shall make the results of such decisions available to the public, while respecting confidential information in accordance with Article 21.’

[52] Stockholm Convention on Persistent Organic Pollutant, (2001), Article 10, ‘ Public information, awareness and education: (d) Public participation in addressing persistent organic pollutants and their health and environmental effects and in developing adequate responses, including opportunities for providing input at the national level regarding implementation of this Convention;’

[53] Prevention of Transboundary Harm from Hazardous Activities, (2001), Article 13, ‘Information to the public: States concerned shall, by such means as are appropriate, provide the public likely to be affected by an activity within the scope of the present articles with relevant information relating to that activity, the risk involved and the harm which might result and ascertain their views.’

[54] Convention on Environmental Impact Assessment in a Transboundary Context (The Espoo Convention), (1991), article 2.2, ‘… with respect to proposed activities listed in Appendix I that are likely to cause significant adverse transboundary impact, the establishment of an environmental impact assessment procedure that permits public participation and preparation of the environmental impact assessment documentation described in Appendix II.’

[55] Ibid., article 2.6, ‘The Party of origin shall provide, in accordance with the provisions of this Convention, an opportunity to the public in the areas likely to be affected to participate in relevant environmental impact assessment procedures regarding proposed activities and shall ensure that the opportunity provided to the public of the affected Party is equivalent to that provided to the public of the Party of origin.’

[56] Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention), (1998), preamble, ‘Recognizing also that every person has the right to live in an environment adequate to his or her health and well-being, and the duty, both individually and in association with others, to protect and improve the environment for the benefit of present and future generations;’

[57] Ibid., Preamble, ‘to be able to assert this right and observe this duty, citizens must have access to information, be entitled to participate in decision-making and have access to justice in environmental matters, and acknowledging in this regard that citizens may need assistance in order to exercise their rights;’

[58] Marc Pallemaerts, Introduction, The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing

[59] Ibid.,

[60] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 92

[61] Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing, 95

[62] Jan H Jans, European Environmental Law, 3^rd edition, (2008), European Law Publishing

[63] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 120

[64] Ibid,. 94

[65] Ibid,. 94

[66] Convention on Environmental Impact Assessment in a Transboundary Context (The Espoo Convention), (1991), article 1(x), ‘'The Public' means one or more natural or legal persons.’

[67] Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing

[68] Ibid.

[69] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 40

[70] Ibid,.40

[71] Jonathan Verschuuren, Public Participation regarding the Elaboration and Approval of Projects in the EU after the Aarhus Convention, T.F.M. Etty, H.Somsen eds. Yearbook of European Environmental Law, Vol.4, (2004), Oxford University Press

[72]Jendroska divides the legal nature of obligation of different types of decisions into ‘binding’ and ‘non-binding’ parts to show their sanctions on the authorities. And here this will be borrowed to describe the ladders of participation to describe different duties of the authorities as the Aarhus Convention requires. Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing

[73] Ibid,.96

[74] Ibid,.98

[75] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 96

[76] Ibid,.104

[77] Ibid,.102

[78] Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing, 139

[79] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 102

[80] Jerzy Jendroska, Public Participation in Environmental Decision-Making: Interaction between the Convention and EU Law and Other Key Legal Issues in its Implementation in the Light of the Opinions of the Aarhus Convention Compliance Committee (Chapter 5), The Aarhus Convention at Ten: Interactions and Tensions between Conventional International Law and EU Environmental Law, Marc Pallemaerts eds, (2011), European Law Publishing, 134

[81] Ibid,. 133-136

Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 102

[82] ECE/MP.PP/2008/5/Add.6, (2008), para. 71

[83] The contribution here is only a possibility, but not requires actually impacts.

[84] Article 6(7) states ‘that it considers relevant to the proposed activity’, within which ‘it’ refers to ‘the public’.

[85] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 109 [86] Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 111

[87] UNEP/CBD/COP/DEC/VII/11, (2004), Convention on Biological Diversity, Principle 1: The objectives of management of land, water and living resources are a matter of societal choice.

[88] Ibid., Principle 2: Management should be decentralized to the lowest appropriate level.

[89] Ibid., (2004), Principle 12: The ecosystem approach should involve all relevant sectors of society and scientific disciplines.

[90] R.D. Smith, E. Maltby, Using the Ecosystem Approach to Implement the Convention on Biological Diversity – Key Issues and Case Studies, (2003), IUCN- The World Conservation Union

[91] UNEP/CBD/COP/DEC/VII/11, (2004), Convention on Biological Diversity

[92] Priot, J-Y., Meynell P.J. and Elder D, Ecosystem Management: Lessons from Around the World. A Guide for Development and Conservation Practitioners, (2000), IUCN, Gland, Switzerland and Cambridge, UK

[93] R.D. Smith, E. Maltby, Using the Ecosystem Approach to Implement the Convention on Biological Diversity – Key Issues and Case Studies, (2003), IUCN- The World Conservation Union

[94] UNEP/CBD/COP/DEC/VII/11, (2004), Convention on Biological Diversity, Principle 5: Conservation of ecosystem structure and functioning, in order to maintain ecosystem services, should be a priority target of the ecosystem approach.

Principle 6: Ecosystems must be managed within the limits of their functioning.

Principle7: The ecosystem approach should be undertaken at the appropriate spatial and temporal scales.

Principle 8: Recognizing the varying temporal scales and lag-effects that characterize ecosystem processes, objectives for ecosystem management should be set for the long term.

Principle 9: Management must recognize that change is inevitable.

[95] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011, 30

[96] Ibid.

[97] In the Aarhus Convention, it can be certified that article 6 has the most concrete and strictest standards, while those in article 7 and 8 are only part of these which are selected according to the nature of different decisions themselves. As The Implementation Guide of the Aarhus Convention points that ‘the ultimate responsibility for the outcome of policies and normative instruments design are borne by the authorities, so some accommodation must be made for them in public participation’, and some standards should be more flexible and less striker than that for specific activities and plans and programmes. (Stephen Stec, Susan Casey- Lefkowitz, The Aarhus Convention: an Implementation Guide, (2000), New York/Geneva: United Nations Publication, 122)

[98] James Salzman, Creating Markets for Ecosystem Services: Notes from the Field, (2005), Social Science Network Electronic Paper Collection, 101-184

[99] Ecosystem services are created by the interactions of living organisms within their environment, so the biodiversity loss will be more likely to cause impact on ecosystem services. One important aim of biodiversity conservation is to maintain ecosystem services. Moreover, ecosystem services are created not by a single or several sorts of species but a complicates process in the ecosystem, that is also the reason why experts exert change the way of biodiversity conservation from species protection to the ecosystem protection with is a more holistic view.

[100] After the authorities accept the view of ‘possible impact’ from the public, they have the right to estimate whether this is true of false and make the final decision. However, their estimation must be scientific, taking into various knowledge from experts as well as local populations and communities, and their final results should be explained to the public why they regard there will be any impact or not.

[101] Michael K. Ewing, Public Participation in Environmental Decision-Making, (2003), http://www.gdrc.org/decision/participation-edm.html, the lasted modified 25 June 2011, 3

[102] The authorities cannot keep eyes on all information and knowledge of different ecosystems all the time. Mostly, they only begin to learn when they want to make decisions, so their understanding may be limited and incomplete.

[103] ‘The public’ here, refers to any one excluding the public concerned.

[104] ‘Proponents’ here refers to other stakeholders like industries, applicants, operators and other proponents. They will possibly win some kind of interests through EDM, and the legitimacy of these interested has to be checked by the public.