Part II

Implications and Implementation of Selected International Legal Instruments Dealing with Access to Information, Public Participation and Access to Justice in Environment and Health Related Decisions

Stephen Stec - Jennifer Braswell
with input from Grazyna Krzywkowska, Kevin Gray and Les Trobman

I. General Overview

Here in Part II we will evaluate the implications and implementation of selected international legal instruments that provide for access to information, public participation and access to justice in environment and health related decisions and identify problems and areas which need to be covered by future instruments or initiatives. The analysis takes into account international legal instruments which are generally relevant to the scope of environment and health set out in this Substantiation Paper (see Introduction). Such instruments include those in the field of environmental protection as well as those relating to worker health and safety. The latter type of instrument has a relatively long history arising out of labour conventions, but only recently have developments in this field begun to converge with developments in the environmental field.

A World Health Organization report from 1997 notes that human health has historically been, and continues to be, adversely affected by many environmental factors, ranging from climate change to water supply. In the WHO report "Health and the Environment in Environmentally Sustainable Development: Five Years After the Earth Summit (1997)," poor environmental quality was said to be directly responsible for about 25 percent of all preventable ill-health in the world today, with diarrheal diseases and respiratory infections heading the list. At the time of the report's publication, major health problems due to environmental hazards were found to be persistent, although progress was observed in awareness-raising, policy and planning at various levels, and concrete action particularly at the local level.

Intergovernmental cooperation on environment and health issues in recent years has revealed increasing support for the concept of public participation and the need to involve individual members of the public in the decision-making process in environmental matters and in health matters. It has to be stressed that intergovernmental cooperation would be ineffective without provisions on public participation in decision-making in general on the national level.

Today it is widely accepted that enhanced cooperation among government officials, public health authorities, the private sector, organisations, and individual members of the public in environment and health decision-making is essential to fully and adequately addressing issues of health and safety in home and workplace. On a legal level, this requires placing certain responsibilities on all stakeholders to gather and share information and to establish a means for integrated and active dialogue and involvement in the decision-making process. Further, increased cooperation necessitates that greater rights be given to the public to access relevant environment and health information, to have the opportunity to participate fully in the decision-making and to use legal processes involved, which includes having adequate access to redress and remedies as provided for in customary international law under Principle 10 of the Rio Declaration.

On a practical level, this requires the obligation and commitment of public authorities to actively raise public awareness of environmental and health issues through provision of information in an accessible and user-friendly manner and to promote the role of the public in safeguarding health and the environment for their own safety and well-being.

Numerous international agreements, negotiated multilaterally among WHO/ EURO¹ countries and others, have set out commitments relevant to the broad subject of public participation in the field of environmental health. Nevertheless, gaps remain. For the pan-European countries, several multilateral environmental agreements place binding requirements on member states to provide proper access to information and ensure public participation in environmental decision-making. The Fourth Pan-European Conference of Environmental Ministers, held in Aarhus, Denmark, in June 1998, marked an important milestone in the effort to integrate the participation of the public into environmental policy-making across the continent. At Aarhus, 35 countries and the European Commission signed the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (the Aarhus Convention).² This new agreement, though not yet in force, is extremely important as an expression of new directions the international community wishes to pursue in the area of public participation. It is significant in that it raises the issues of public involvement in decision-making to the pan-European level, and it represents an opportunity to harmonise law and practice across the continent. Recognising the importance of this Convention, this paper will use the Aarhus Convention as a framework for analysis of how public participation can more fully be integrated in the field of environmental health.

As a matter of methodology, we will consider the topic of environment and health as it relates to the three "pillars" outlined in the Aarhus Convention: i) Access to Information; ii) Public Participation in Decision-Making; and iii) Access to Justice. Under each pillar, we will consider the body of provisions existing in legally binding multilateral agreements on environment and health to which the WHO/EURO countries have committed themselves.

An evaluation will be presented of how effective these provisions are or may become in practice within the countries - drawing conclusions about the problems of implementation and making recommendations as to the enhancement of existing legislation and improvements to compliance regimes, which may ensure implementation on the regional, national and local levels. Finally, under each pillar, an examination of the Aarhus Convention itself will be presented and gaps in this legislation - as it relates to environmental health - will be identified as a means to offer recommendations for legislative mechanisms for the future.

II. The Basis:

Right to Healthy Environment, Home and Safe Workplace

Right to Healthy Environment

The legal basis for the current trend toward increased public participation in environment and health decision-making is the generally accepted jus cogens principle of the right of individuals to health and well-being, which was first expressed in Article 25 of the 1948 Universal Declaration of Human Rights³ as the right of every individual "to a standard of living adequate for the health and well-being of himself and of his family." This principle later was upheld in the 1992 Rio Declaration, which states as its first principle that "human beings are ... entitled to a healthy and productive life in harmony with nature." These concepts have reached their greatest expression in international law to date in the Aarhus Convention, which further builds upon these statements in a clear rights-based formulation. That Convention states in Article 1: "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."

The link between the environment and international human rights law is further manifest in Article 12 of the United Nations Convention on Economic Social and Cultural Rights (ICESC), where the right to the highest attainable standard of health, including the improvement of all aspects of environmental and industrial hygiene, is proclaimed. Article 12 has given rise to an important UN study of non-binding character. In 1994, the Human Rights Committee, which deals with complaints under ICESC, assigned a special rapporteur to review the question of environment and human rights. In a series of progress reports, it was noted that environmental rights are growing in acceptance at the national, regional and international levels,⁴ and that more than 60 state constitutions contained specific provisions relating to the protection of the environment, a significant number of which explicitly recognised the right to a satisfactory environment and prescribed a state duty to protect the environment. It was also noted that regional and international human rights bodies increasingly accept complaints of human rights violations based on ecological considerations.

Success in recognising the right to a healthy environment at the national levels has been seen in both developed and developing countries. In her second progress report, the special rapporteur asserted that procedural rights, such as access to information and the right to public participation and involvement in decision-making, were becoming more established in human rights bodies.

As a result of the special rapporteur's work, The UN Commission on Human Rights has proposed a series of qualitative environmental rights, including important health and environment provisions. These include:

• freedom from pollution, environmental degradation and activities that adversely affect the environment or threaten life, health, livelihood, well-being or sustainable development;

• the highest attainable standard of health;

• safe and healthy food, water and working environment;

• adequate housing, land tenure and living conditions in a secure, healthy and ecologically sound environment.

  Procedural rights include:

• right to information concerning the environment;

• right to receive and disseminate ideas and information;

• right to participation in planning and decision-making processes, including prior Environmental Impact Assessment (EIA);

• right to freedom of association for the purpose of protecting the environment or rights of persons affected by environmental harm;

• right to effective remedies and redress for environmental harm in administrative or judicial proceedings.⁵

Examples of how the rights set forth above are expressed in international instruments can be found in documents arising out of the 1992 Rio Conference. Principle 10 of the Rio Declaration states that each individual is to have appropriate access to environmental information held by authorities and the opportunity to participate in decision-making processes when it affects his or her environment. This includes the right of effective access to judicial and administrative proceedings, including redress and remedy. Principle 10 of the Rio Declaration has been reflected in the European Community's Fifth Environmental Action Plan, which states that "individuals and public interest groups should have practicable access to courts in order to ensure that their legitimate interests are protected and that prescribed environmental measures are effectively enforced and illegal practices stopped."⁶ Agenda 21, paragraph 23.3, reiterates this concern, specifically including information on products and activities that have a significant impact on the environment or are likely to do so.

Right to Home

In the Pan-European region, an important human rights convention is emerging as a source of legal obligations relating to public participation and access to information in environment and health matters. Such obligations may be based on the principle set out in Article 8 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, commonly known as the "right to home." This article ensures that each individual member of the public has "the right to respect for his private and family life, his home and correspondence." In 1994, the European Court of Human Rights (ECHR) ruled in Lopez Ostra v. Spain⁷ that the plaintiff's rights pursuant to Article 8 were infringed by a polluting leather tannery 12 meters from her home that caused health problems for her and her family in Lorca, Spain.⁸ This case represents a significant advance in bridging the relationship between environmental rights and human rights under the convention.

The Lopez case confirms that the absence of specific reference to the environment in a human rights convention does not preclude the pursuit of environmental rights under a human rights provision. The second successful environmental case under Article 8 was Guerra v. Italy,⁹ in which the ECHR held that a violation of Article 8 had occurred because failure to inform residents concerning toxic emissions from a chemical factory had infringed on the applicants' right to respect for their private and family life. The court reiterated that severe environmental pollution may affect individuals' well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely.

Right to Safe and Healthy Working Conditions

An important body of legislation that serves as the foundation of environment and health law is the legal framework regarding workers rights. The World Health Organization report for 1997 stated that there may be up to 160 million cases a year of occupational diseases stemming from exposure to chemical, biological and physical agents and other environmental hazards.

International law is highly supportive of the worker's right to a safe and healthy work environment. The 1965 European Social Charter guarantees that "all workers have the right to safe and healthy working conditions." Provisions relevant to the present subject include Articles 3, 11 and 16. Article 11(1) of the Social Charter provides for the right to protection of health. Part II provides that the parties take appropriate measures designed to remove as much as possible the causes of ill-health and to prevent as much as possible epidemic, endemic and other diseases. The ILO Occupational Safety and Health Recommendation of 1981 called for a universal effort of cooperation between employers and employees "with a view to eliminating hazards or reducing them as far as practicable." (Art. 4d) Through the distribution of adequate information, this partnership was to be solidified. The emphasis on a joint program was further highlighted in the ILO Occupational Health Services Convention of 1981, whereby workers are to be guaranteed a participatory role in identifying and assessing health hazards that exist in the workplace. Article 13 states: "All workers shall be informed of health hazards involved in their work." With the aid of such information distribution, workers are better enabled to act as partners in developing programs which improve existing working conditions.

The cooperation between management and employees is touted as of primary concern within the Occupational Safety and Health Convention, International Labor Organization legislation of 1981. The right of each employee to be fully informed of the health status of his/her workplace was detailed further in the provision of this convention, which stated that the dissemination of information regarding worker-specific health hazards as well as the results of examinations and their implications is essential. Of particular relevance is the myriad functions specified under Article 11, reflecting a firm commitment to protecting a worker's right to a healthy work environment.

Among its responsibilities, the management authority is directed to publish all information related to measures taken in response to "occupational accidents, occupational diseases and other injuries to health which arise in the course of or in connection with work." The international community is clear in its determination to provide each worker with the necessary tools to work in conjunction with employers to maintain a hazard-free work atmosphere.

Recent international support for the furtherance of safe and healthy workplaces is evidenced in the Helsinki Declaration on Environment and Health in Europe, which was signed in 1994. The declaration stressed a particular commitment to workplace safety under Article 13, where the community agreed to place special emphasis on actions for the improvement of essential environment and health services, including occupational safety. As concerns over environmental conditions continue to grow, international response is increasingly focused on the primary importance of workers' rights. Chapters 6 and 29 of Agenda 21 dictate in an elaborate fashion the goal that "workers should be full participants in the implementation and evaluation of activities related to Agenda 21." (Chapter 29, Paragraph 2) When health and the environment are discussed in relation to each other, the commitment to providing the employee with a safe and healthy workplace is expressly repeated.

III. Implementation

Supervision of the European Social Charter is based entirely upon national reports from the contracting parties without any right for individual invocation of its provisions. However, a complaints procedure was set up in the Additional Protocol to the Social Charter.¹⁰ As of 1996, Article 3(3) had been fully accepted by all states with the exception of Turkey. Article 16 was accepted by all parties with the exception of Cyprus.¹¹ The Sub-Committee of the Governmental Social Committee of the Council of Europe for the European Social Charter has reported that the right to safe and healthy working conditions has had much impact at the national level although certain states - Cyprus, Ireland and Italy - were found not to be in compliance with Article 3. The Committee of Experts to the Committee of Ministers for the Council of Europe has interpreted this provision as requiring states to take measures aimed in particular at the prevention of air and water pollution, protection from radioactive substances, noise abatement, food control, and environmental hygiene. The Committee of Experts noted that there has been general compliance with Article 11.

There has been no systematic review undertaken of occupational safety and health ILO Conventions. As a result, compliance must be measured by general reports conducted by international organisations. The "Report of the Director-General: Activities of the ILO, 1996-97" outlined a few examples where ILO occupational safety and health technical cooperation activities occurred. The report added that a large proportion of the deaths and injuries suffered by workers every year are attributable to inadequate safety and health information. The development of technical cooperation through modern forms of communication between occupational safety and health institutions was seen as an improvement, particularly in Asian countries.

Developing countries were reluctant to strengthen the institutional supervisory machinery of the ILO at the 1997 International Labor Conference. However, the ILO does conduct some reviews of several countries or regions on how ILO Conventions and Recommendations are being implemented. The implementation of the 1981 Occupational Health and Safety Convention was subject to a review in 1990 by the Committee of Experts. The committee noted that progress toward this broad approach to occupational safety and health in the treaty was slow, with a number of member states who had ratified the convention failing to transform their commitments into a coherent policy concerning occupational safety and health.

Spain has been under investigation in relation to a number of safety and health problems in the Fuengirola and Marbella police stations and the absence of appropriate consultation and cooperation by the authorities with the representative organisations of the workers concerned. Moreover, Spain's failure to introduce a national law on occupational safety and health was given attention by supervisory bodies. The Czech Republic has also been a subject of supervisory body review and recommendation. Even in the face of offers for assistance in accomplishing this task, a proper occupational safety and health statute still has not been finalised.

A recent United Nations Environment Programme (UNEP) study concerning implementation of multilateral environmental agreements (MEAs) on a pan-European level¹² determined that the number of ratifications of significant global agreements is high and rather balanced among subregions.¹³ In general, formal compliance with MEAs through adoption of legislation is good throughout Europe - even in countries where legislation drafting has been largely driven by the European Union accession process. However, technical difficulties have been encountered with respect to some MEAs. For example, many European countries have reported discrepancies between their national lists (such as lists of hazardous wastes as required under the Basel convention) and those found in the convention annexes. In addition, ratification, acceptance and implementation of MEAs in Europe may be affected by the particular environmental problems and priorities of each sub-region.

The so-called "countries in transition" - consisting of the countries of Central and Eastern Europe (CEE), and to some extent Central Asia - exhibit special characteristics of relevance to adoption and implementation of MEAs. In the field of public participation, the countries in transition - in particular those of Central Europe - have had special experiences connected with the process of revolution and democratisation. This may have contributed to a high rate of signature of the Aarhus Convention in this region in comparison with other parts of the former Eastern Bloc. In terms of implementation of global MEAs on the WHO/EURO level, the economic circumstances in the countries in transition have affected the level of achievements, especially in Eastern Europe or the Newly Independent States (NIS). The process of transition to market-oriented democracies has been accompanied by large dislocations and breakdowns which have created financial difficulties for most global multilateral environmental agreements on the European level.

National efforts to achieve implementation of MEAs tend to outweigh international assistance, and therefore the difficulties in CEE have only minimally been addressed through the flow of financial and technical assistance within the region from West to East. The capacity of countries in transition to address environmental protection obligations is thus now only beginning to return to pre-transition levels.

With specific regard to compliance in the areas of public participation and environmental health, it is useful to consider the current compliance regimes in place across the WHO/EURO region in comparison to successful implementation regimes in place in other regions, such as the EPCRA (Emergency Planning and Community Right to Know, 1986) system, which has been widely and effectively implemented in the United States.

IV. Access to Environmental Health Information

Introduction

The issue of information is one of the central policy areas in the establishment of cooperation among public authorities, involvement of the public, and the regulation of industries for the protection of environmental health. The bulk of current international legislation regarding access to environment and health information has largely been developed in response to global industrial accidents, which have brought worldwide focus on issues of risk, hazard and impact assessment for all industrial activities that may pose a threat to human health and the environment. More recently, the legislation has begun to evolve to incorporate an approach based more directly on the precautionary principle, in which the public's right to access all publicly held information is viewed as essential for individuals to be able to take part in safeguarding their own health, well-being, home and workplace.

Access to information is the first of the three pillars of the recently signed Aarhus Convention.¹⁴ Under the convention, an obligation rests on parties to collect and disseminate environmental information and to ensure that public authorities make such information available to individuals upon request (Articles 4 and 5). However, the integrated area of environment and health not only involves public officials managing environmental resources but also includes all health officials and professionals who hold vital sanitary, epidemiological and research data that directly relate to human well-being.

It is thus important to determine to what extent the convention covers environment and health, and which public officials are obliged to respond to information requests.

With regard to achieving a greater degree of public involvement in managing the environment as it relates to human health, there are clearly steps which may be made to expand upon existing provisions of international legislation and the Aarhus Convention to ensure greater access to environment and health information in the future.

Current International Legislation: Access to Information Provisions

For the pan-European community, the bulk of international legislation regarding access to information on environment and health matters was adopted largely in response to several major global industrial accidents which had disastrous and fatal consequences: a chemical explosion at Seveso, Italy in 1976; a gas leak in Bhopal, India in 1984; a noxious fire in Basel, Switzerland in 1986; and, that same year, a nuclear accident at Chernobyl, USSR.

In the years since the first of these accidents occurred, several multilateral international agreements were signed, setting forth principles for the transmission of specific information to workers and community residents. The provisions on access to environmental information were stated in the 1989 London Guidelines for the Exchange of Information on Chemicals in International Trade, which discusses in Article 7.4(a), the need for sharing and disseminating environmental information via computerised databases. Soon thereafter (1989), the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal was signed. The convention builds upon the idea of information sharing as a means for cooperation in protecting human health and the environment. Article 6(a) of the 1992 United Nations Framework Convention on Climate Change further expands this idea by acknowledging that access to and sharing of information is the key to effectively finding solutions to global environmental problems.

The evolution toward a precautionary-based legislative framework regarding access to environmental information has progressed via several international agreements that deal with transboundary issues of the Economic Commission for Europe conventions. In particular, Article 9 of the Helsinki Convention on the Transboundary Effects of Industrial Accidents (1992) places the duty on parties to give "adequate information É to the public in areas capable of being affected by an industrial accident arising out of hazardous activities." Similarly, Article 16 of the Helsinki Convention on the Protection and Use of Transboundary Watercourses and International Lakes (1992) places the duty on parties to "ensure that information on the conditions of transboundary waters, measures taken or planned to be taken to prevent, control and reduce transboundary impact and the effectiveness of those measures, is made available to the public"; and Article 4(2) of the Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1992; hereafter Espoo Convention) places the duty on parties of origin to "furnish É environmental impact assessment documentation to the authorities and the public of the affected Party."

Since the signing of these conventions, states have been entering into bilateral agreements to implement them. The Espoo Convention, in particular, has been managed since its signing by a system in which parties are scheduled to meet every three years to review the extent of the treaty's implementation. Similarly, the Convention on the Protection and Use of Transboundary Watercourses and International Lakes, though still in its nascent stages (as it has only been in force since October 1996), is being regulated via these types of bilateral agreements. The same process is also envisaged for the Convention on the Transboundary Effects of Industrial Accidents, though it is not yet in force (currently only 10 of the 16 required ratifications have been achieved).

This legislation has been viewed as "a clear trend in Europe toward requiring that the public be given more information É and in a more active way."¹⁵ This perspective suggests the movement away from a mere "need-to-know" foundation, and the development of a "right-to-know" basis to international hazard communication law. In Europe, this law has only begun to evolve to the extent necessary to adequately ensure safety and well-being in the context of environmental health.

Access to Information in the Aarhus Convention

The recently signed Aarhus Convention goes a long way in this evolutionary process by establishing the international obligation on the part of states to provide environmental information to the public. Correspondingly, it reaffirms the basic right of individuals of access to environmental information to ensure their own health and well-being. There are several points, however, on which the convention falls short in addressing access to information within the specific context of environmental health.

Definitions

First, in general, the "health" dimension is largely not specifically addressed under the existing provisions of the Aarhus Convention and, thus, its provisions could very usefully be expanded to include crucial facets of environment and health information sharing. In particular, the convention defines "Environmental Information" in Article 2.3 as pertaining to pathways, targets, polluting substances and pollution-causing activities. While it alludes to issues of health as related to environment by linking environmental information to "the state of human health and safety" and "conditions of human life" (Article 2.3c), it does not specifically mention environment and health information as it has been defined for this reports and it fails to pinpoint the crucial elements of environment and health information (such as data from health authorities and research institutions).

This example is one of many in which specific anthropocentric environment and health details may be usefully added to the Aarhus Convention at points where only environmental issues are addressed. Thus, to create an effective, viable regime for environment and health law, there is room to clarify the scope of the convention by amending or supplementing the definitions to specifically include environment and health related data, authorities and institutions.

Access to Information Upon Request

The scope of the entities obliged to provide information to the public upon request is too limited and does not include vital stakeholders in the environment and health field. Additional "public authorities," such as public health bodies holding health-related data, should also be subject to the Aarhus Convention's provisions. Of major interest to environment and health legislation is toxicological, epidemiological and other data that concerns conditions that are threatening to human health.

Another important issue regarding access to environment and health information upon request is the question of what information may be exempted. Articles 4.3 and 4.4 of the Aarhus Convention enumerate the various circumstances in which public authorities may refuse disclosure of information to the public. Article 4.3 exemptions are preliminary, procedural and formal exemptions, while Article 4.4 exemptions apply to the potential adverse effects of disclosure. The latter exemptions provide, for example, for the safeguarding of intellectual property rights, commercial and industrial "secrets," national security and confidentiality of information relevant to a current domestic trial; but there is a clearly stated obligation to consider (and "test") the public interest before refusing to disclose information on these grounds.

With regard to information specific to environmental health, however, these exemptions may not be justified. In particular, there is a question as to whether it is sufficient to rely solely on the public interest test in the case where the disclosure of information could prevent a threat to human health. This situation needs to be more clearly defined and addressed. A protocol to the Aarhus Convention could focus on this possibility and provide for expanded access to information that may assist in resolving human health related emergencies. This expansion may involve introducing shorter time limits for release of health information, lower charges or no charges for such disclosure, and decreased possibility for public health authorities to rely on exemptions in denying access to environment and health information.

Secondly, within the framework of environmental health, a central issue is that a person should have the right to access his or her own health information in order to properly understand his or her own current state of health and be effectively involved in safeguarding his or her health and well-being in the future. This topic falls somewhat outside of the Aarhus Convention because: a) human health information may not necessarily be "environmental" information; and b) this type of access is based upon an individual right rather than a right of the public. Thus, it is suggested that this topic be brought into international legislation, either in the form of a protocol to the Aarhus Convention or as an aspect of new legislation specific to environment and health in the near future.

Information Gathering by Public Authorities

The issue of how, and in what form, information is gathered and stored by public authorities is crucial within the context of environmental health. It is essential to guarantee that public authorities have adequate means - in terms of power and resources - to gather the environment and health information necessary to protect the public interest. Additionally, other important entities, such as universities and research institutions, must also have access to compatible information storage and dissemination systems.

The means of storing and sharing information and the establishment of viable information systems (including database networks) is an essential aspect of safeguarding environmental health. Information which has direct relation to public health authorities (such as epidemiological information) should be catalogued and stored in a specific, sophisticated and accessible manner. Under the Aarhus Convention, however, information systems are only addressed with regard to environmental information systems (Article 5.3). There is no specific reference to the establishment of such information systems regarding environment and health information.

Thus, the establishment of mandatory compatible systems throughout the regions would be an important next step in ensuring access to environment and health information among WHO/EURO nations. A possible solution may be the use of the International Register of Potentially Toxic Chemicals (IRPTC), established under section 7.4(a) of the London Guidelines for the Exchange of Information on Chemicals in International Trade in 1989, as a basis for national systems. Pollutant Release and Transfer Registers (PRTRs), which have the benefits of being quite simple in design, are already widely in use in many parts of the WHO/EURO region and have proven highly effective in practice.

Additionally, public authorities face problems in gathering environment and health information, that are not specifically addressed under the Aarhus Convention. There is a lack of legal power under the convention to force companies to provide information. This problem tends to lead companies toward voluntary self-reporting, which is often not combined with independent verification of data by authorities within the regulatory regime, and thus is often unreliable.

The best solution is to establish a mandatory, regulated regime of self-reporting that includes both economic and punitive incentives to encourage compliance. A means for generating this regime could be the use of eco-auditing or the use of independent bodies financed by the polluter to carry out studies providing evidence for decision-making in the process of licensing of releases of pollutants into the environment.

Additionally, the continued evolution of hazard communication law could prove useful in this regard, in that it would remove the "middle step" of provision of information from companies to the government and then dissemination of that information from the government to the people. Instead, hazard communication law requires the private sector to communicate directly with the public, thus reducing governmental costs and facilitating greater efficiency in access to information as it may relate to environment and health.

Public Communication/Active Provision of Information to the Public

Articles 5.1, 5.3 and 5.9 of the Aarhus Convention state that "mandatory systems" must be established to ensure an adequate flow of information to public authorities by industries, and from public authorities to the public, in a timely, transparent and responsible manner. However, there is no specification of how this should be achieved except for a direct requirement to publish a national report on the state of the environment. In particular, there is no mention of the role of the media in the environment and health information sharing process. It would be extremely useful to identify points where formal partnerships may be established -- for example, media with the scientific community, media with NGOs, media with public authorities or media with health officials.

Moreover, Art. 5.8 of the Aarhus Convention obliges parties to the convention to establish and maintain adequate product information systems that are available to the public.

The various types of environment and health information which need to be communicated include: environment and health policies, programs and plans (such as NEHAPS or LEHAPS); routine preventative health care and lifestyle improvement information (such as dietary, smoking, exercise, HIV-related, etc.); and non-routine hazard prevention/minimisation information (such as smog, UV levels, pollen count, etc.).

Gaps in Legislation and Models for Improvement

For the WHO/EURO countries, the public right-to-know regarding risks and hazards was initially established primarily to address the rights of workers to a safe working environment. In 1971, the ILO began making recommendations for occupational health and safety which included the provision that "each worker should be informed in an adequate and appropriate manner of the health hazards involved in his work" (Occupational Health Services Recommendation of International Labor Organization, 1981, No. 171, Part II, Section B 22.1).

Today, it is clear that this body of legislation must be expanded and guided in its evolution to include not only workers' rights but also the rights of the general public. In the United States, hazard communication law has undergone such a progression and may serve as a useful model for the pan-European community to follow. In 1983, the US Federal Occupational Safety and Health Administration (OSHA) enacted its hazard communication rule for workers, placing the duty on manufacturers to provide information to workers regarding substances to which they would be exposed, so they might avoid harm in the workplace. Building upon this idea, the US Congress, in 1986 passed the federal Emergency Planning and Community Right to Know Act (EPCRA), which involves state officials and the public in the process by requiring governmental authorities to make information (reported by firms in a standardised manner) available to community residents. The exception to this availability is that of narrowly-defined "trade secret" information.

Though similar policies have been enacted in parts of Europe - such as the European Union's "Seveso" Directive, which requires firms in member nations to report accident hazard information on designated chemicals to national officials, who then transmit relevant data to local officials for emergency response planning - hazard communication law in the pan-European context has yet to make the evolutionary step from a "need-to-know" to a "right-to-know" basis.¹⁶ Both the Seveso Directive and the EPCRA have been discussed here only as national models for international instruments.

Recommendations

The existing body of international legal instruments that make specific reference to environment and health information was developed primarily as a response to major industrial accidents. The evolutionary process from a "response" basis to a "precautionary" basis of this legislation has been slow. Several conventions that address environmental issues in a transboundary context have begun to shift the obligations of information sharing and dissemination toward this precautionary approach.

In order to effectively address issues of environmental health, this evolutionary process must specifically include expanded involvement of the public. The establishment of a viable, functioning network of environment and health information is essential to ensure participation and full understanding of the issues among all stakeholders.

The next step should be to advance the evolution of environment and health information legislation by guaranteeing access to information not only on a "need-to-know" basis but on a wider "right-to-know" foundation. Existing national legislation, such as the US EPCRA, could provide a useful model. Based on the widely accepted norm of precaution as a guiding principle of international law, it seems clear that the process of identifying the level and nature of risks in situations of uncertainty should be the same at all levels - local, national, regional and international.

Additionally, the specific area of hazard communication presents an opportunity to overcome the problem of information gathering by public authorities from the private sector, as it may establish the obligation of enterprises to provide information directly to the potentially affected public. This could both save costs to the government and increase transparency in the entire system.

The recently signed Aarhus Convention marks a significant addition to the body of legislation concerning access to information. However, while the definition of environmental information under the convention does include information relating "to the state of human health and safety, and the conditions of human life," it does not extend far enough to encompass all aspects of environment and health information as it has been defined by the WHO and for the purposes of this report (see Introduction). Thus, the foundation laid down by the convention should be expanded upon by amending or supplementing the definitions to specifically include environment and health related data and to oblige the authorities and institutions that hold this information to ensure its availability to the public. An amendment or protocol to the Aarhus Convention to specifically define and include environment and health related information systems would be a useful next step.

Additionally, access to environment and health information may be expanded from the framework of the Aarhus Convention by introducing shorter time limits for the release of health information, lower or no charges for such disclosure and decreased possibility for public health authorities to rely on exemptions in denying access to environment and health information. A central issue is that individuals should have the right to access their own health information in order to properly understand their own current state of health and be effectively involved in safeguarding their health and well-being in the future.

Similarly, building upon and expanding the legislation of the Aarhus Convention, a mandatory system of harmonised information storage and dissemination should be established throughout the WHO/EURO region. A part of the solution may be universal adoption of pollutant release and transfer registers (PRTRs), IRPTC, etc., which have the benefits of simple design, existing widespread use (and thus greater compatibility for the future) and a precedent of high effectiveness in practice.

V. Public Participation in Environmental Health Decision-Making

Introduction

A number of international instruments, most of them in the field of international environmental law, provide for some measure of public participation that can be extended to environmental health-related decision-making. While general statements of principle concerning public participation have become a norm in international environmental agreements, more concrete provisions are steadily increasing in frequency, leading to ultimate expression in the Aarhus Convention. However, steps towards concrete public participation requirements in so-called strategic decision-making (plans, programs and policies) have proven to be more difficult to take. In instruments relating to worker health and safety, public participation provisions are comparatively less developed.

Current International Legislation: Public Participation in Environmental Health Decision-Making

Principle 10 of the Rio Declaration on Environment and Development is the starting point for public participation in environmental issues in international instruments. This provision calls for participation of all concerned citizens at the relevant level in the handling of environmental issues, and it makes reference to the fundamental requirements of access to information and access to justice. Taken together with Agenda 21, endorsed at the same time, Principle 10 may be applied to environment and health issues as well. In particular, Chapter 6 of Agenda 21, concerning protecting and promoting human health, underlines the connection between health and development and calls for cooperative relationships among government, NGOs and local communities. This view was confirmed by the 1994 Helsinki Declaration on Environment and Health in Europe, which placed special emphasis on "actions for the improvement of essential environment and health services including É public awareness and participation." Other parts of Agenda 21 further develop this theme and deal respectively with strengthening the roles of major groups, NGOs and workers and trade unions.

When the Espoo Convention on Environmental Impact Assessment in a Transboundary Context came into effect in September 1997, the strongest provisions on public participation in environment and health decision-making in a binding international instrument could be applied for the first time. Nonetheless, the Espoo Convention, while taking strides toward developing international standards for public participation in environmental decision-making, still only applies to a limited range of activities - both in terms of type (listed in an annex) and scope (those with transboundary impacts). Article 3, on notification, and Article 4, on preparation of the EIA documentation, both contain express provisions for participation of the public in decision-making relating to certain proposed activities likely to cause a significant adverse transboundary impact. "Impact" under the convention includes "any effect caused by a proposed human activity on the environment including human health and safety."¹⁷ The Article 3 and 4 provisions require that parties to the convention ensure that the public in the areas likely to be affected are informed and given opportunities to make comments or objections before the final decision is taken on a proposed activity.

The Convention on Biological Diversity requires, where appropriate, public participation in EIA of proposed activities affecting biodiversity. The UN Framework Convention on Climate Change includes a passing reference to public participation in addressing climate change and its effects and developing adequate responses. In addition, the UNEP Principles of Environmental Impact Assessment, an international instrument of a non-binding character, includes more explicit provisions as to public participation in EIA, introducing elements of timing, form of comment and decision and notification. Multilateral lending institutions and development banks, such as the World Bank and the European Bank for Reconstruction and Development, have also developed rules for EIA of funded projects which include public participation requirements. The OECD Development Assistance Committee has declared public participation to be a good practice in EIA.

The Convention on the Transboundary Effects of Industrial Accidents imposes a general obligation on parties to the Convention to provide an opportunity to the public in areas capable of being affected by prevention and preparedness measures to participate in relevant procedures to make known its views and concerns. This convention is not yet in force, however. The most explicit public participation provisions in an international legal instrument are found in the Aarhus Convention, discussed below, opened for signature in June 1998.

Instruments that relate to worker health and safety also include provisions relating to public participation in environment and health related decision-making. Many of these provisions are based on labor relations concepts and therefore contemplate representation of workers through labor organisations. The European Social Charter of the Council of Europe, for example, sets forth the commitment of states to consult such organisations on measures intended to improve industrial safety and health in order to ensure the effective exercise of the right to safe and healthy working conditions. The Occupational Safety and Health Convention and the Occupational Health Services Convention require consultation with such organisations at several stages of decision-making relating to environmental health. Recommendations of the ILO pursuant to these conventions call for workers, or their representatives, to be able to participate in decisions, inter alia, affecting the organisation and operation of occupational health services and in committees involved in planning alterations of work processes, work content, or organisation of work that may have safety or health implications for workers.

Implementation

The Espoo Convention only came into force in 1997; it is therefore difficult to provide any proper evaluation of public participation requirements as implemented in the member states. However, many of the parties are European Union member states and are already under public participation obligations pursuant to EC Directive 85/337 on EIA. These states, together with those that have applied for EU membership, have already begun the process of strengthening and harmonising their EIA regulations. Meanwhile, even prior to the convention's taking effect, signatories to Espoo began a process of harmonisation of EIA measures to coordinate EIA procedures where a project causes transboundary effects.¹⁸ Some of the countries have even gone so far as to enter into bilateral agreements in order to facilitate the operation of the Espoo Convention, including its public participation requirements. Such signatories have expressed a preference for developing understandings on bridging differences between national EIA systems in a bilateral context as opposed to a multilateral forum.¹⁹

Public Participation in the Aarhus Convention

Articles 6 through 8 of the Aarhus Convention provide for public participation in decisions on plans, policies, programs, projects and activities which may affect the environment. While the provisions are aimed at promoting the development of procedures to take the views of interested members of the public into account at meaningful stages during decision-making processes, there is a great difference in detail depending on the level of decision-making. More specific provisions with clearer obligations and more easily enforceable rights are found in the article on decision-making with respect to projects and activities. The obligations placed on states by the convention become more general and "softer" as the types of decision-making reach higher levels.

Nevertheless, the Aarhus Convention is the international legal instrument with the most detailed and most advanced provisions relating to public participation in any field. With respect to public participation in decision-making relating to specific activities, it includes several principles to be followed in carrying out a state's obligations. Among them are the principle that reasonable time frames shall be provided so as to allow adequate participation, and that participation should be provided for at an early stage, where all options are open, so that effective participation can take place. The convention also includes detailed provisions relating to the contents of notification given to the public at an early stage in an applicable decision-making procedure, as well as to the contents of the information relating to the proposed activity itself that is to be made available to the public for examination.

The decision-making processes covered by the convention may relate to potential impacts on human health. The convention definition of "environmental information" provides an implicit definition of "environment," as discussed in the section on Access to Information. Article 2, paragraph 3 specifically pertains to several aspects of the physical environment that might be affected by an array of factors and activities, some examples of which are put forth in the provision text. Among these is the health of humans.

Gaps in Legislation and Models for Improvement

Application of the Espoo Convention is helping to harmonise EIA practices among parties. These practices, in turn, help to shape other EIA practices - that is, EIA for projects for which there are no transboundary impacts. While the Aarhus Convention covers public participation in EIA on the national level, it does not act as a "convention on EIA." Espoo and Aarhus together, however, lead to the inescapable conclusion that international standards for EIA are being developed and that a comprehensive international instrument on EIA ought to be adopted. As environment and health and environment increasingly coincide, an instrument on "environment and health impact assessment" might be either a stepping-stone toward, or in fact a vehicle for, development of such an instrument.

The Aarhus Convention is also much less explicit with respect to public participation in the development of plans, policies and programs. A category of policies, programs and plans, such as NEHAPs and LEHAPs, is an independent group of environment and health decisions bearing a unique set of factors that need to be analysed. Improving participation of the public in development of items within such a category could serve to extend the scope of public participation generally.

Recommendations

Because of the ambiguous position of human health within the Aarhus Convention - and within the realm of the public participation scheme in particular - a special focus on environment and health is an appropriate "next step." One possibility is to combine the next steps from Aarhus and Espoo into an international instrument on environment and health impact assessment that would give particular attention to so-called "strategic" assessment, on the level of plans, programs and policies, and would include enhanced public participation provisions.

A less ambitious, but no less significant, initiative concerns the extension of the Aarhus Convention to address more activities with potential impacts on human health and the environment than those contained in Annex I. At the same time it would be possible to address the inadequate treatment of genetically-modified organisms in Article 6.11. While it would be difficult to talk of a protocol or amendment before a convention takes effect, a declaration by the ministers that implementing legislation should go beyond the convention itself in particular directions might serve a useful purpose.

In such cases, any imprecision in definition could provide opportunities for exclusion of such activities from the scope of Aarhus. It is clear that Aarhus was drafted from an environmental, rather than an environmental health, perspective. Thus, Articles 6 through 8 and Annex I of the Aarhus Convention bear examination from the perspective of whether these provisions give adequate consideration to environmental health related decision-making. Considering the convention's incomplete treatment of genetically-modified organisms and particular activities such as transportation of nuclear or hazardous waste, improvements to the scope of the Aarhus Convention could conceivably be made in the context of an environment and health instrument.

Finally, worker health and safety has lagged behind environmental agreements in terms of inclusion and sophistication of public participation provisions. While information, especially in terms of hazard communication, is increasingly available, mechanisms need to be adopted for increased opportunities for participation in decision-making by affected workers in the workplace.

A primary recommendation in drafting environment and health agreements is the necessity of clear language. Not only will this aid in avoiding misunderstandings of scope by signing states, but also the rights of interested parties will be more attainable. When NGOs are fully aware of the particular avenues of acquiring pertinent information, the arena of public discourse and debate may better reflect the overall interests of society. Also, loopholes that could provide the business sector with an unequal level of policy and activity participation may be effectively closed.

In drafting an instrument on environmental health, particular clarity should be provided with respect to the breadth of activities which might be covered under a participatory framework. While the implied definition of "environment" in the Aarhus Convention is rather broad, there may be circumstances in which a particular activity might have clear impacts on human health but for which the "pure" environmental connection would be debatable. Whether there ought to be participatory options provided for potential activities affecting purely human health -- such as the permitting processes for food additives -- is an issue deserving attention. Another line which will necessarily be drawn is along the fine parameter of private and public health concerns. Is public participation appropriate in the absence of universal health effect?

VI. Access to Justice

Introduction

Public participation within the environmental field as it relates to human health would prove virtually meaningless in the absence of opportunities for administrative and judicial review of decisions made by state authorities. Until recent times, international legal obligations did not often specify matters relating to properly working systems of justice on the national level. While such systems were assumed to exist, the reality was somewhat different. As international legal instruments have moved to the level of individual rights and duties, differences among legal systems have become increasingly apparent, highlighting the need to achieve certain minimum standards and opening the door to specific provisions in international legal instruments. New developments in international legislation relating to environment and health, therefore, can build upon previously enacted provisions which, to a degree, recognise the necessity of providing express standards for such opportunities for review.

Current International Legislation: Access to Justice in Environmental Health

Principle 10 of the Rio Declaration concludes with a sentence declaring that effective access to judicial and administrative proceedings, including redress and remedy, shall be provided with respect to access to information and public participation in environmental decision-making.²⁰

The need for effective measures to enforce the fundamentally important right of access to information in environmental matters was confirmed in Article 14 of the Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment, which provides that judicial or administrative review be available to challenge insufficient responses to information requests. Another instrument that upholds standards of access to justice in a transboundary setting is the Convention on the Transboundary Effects of Industrial Accidents. In particular, Article 9, Section 3 states, "Access is provided to judicial and administrative proceedings in the other country, including the possibility of starting legal action and appealing a decision affecting their rights, equivalent to those available to persons within their own jurisdiction."

Provisions on access to information and public participation from the Espoo Convention and Aarhus Convention partly overlap, but a possible gap between the two instruments could be covered by a new instrument. Such an instrument should bring together issues of EIA and access to information, public participation and access to justice in an international context.

As mentioned in previous sections, Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms offers an avenue of redress to seek review of state action in protection of health and environment. Paragraph 2 of Article 8 - prohibiting interference by a public authority with exercise of the right to respect for private and family life, home and correspondence - is increasingly being used successfully to find officials liable for failing to adequately protect the public from real and perceived environmental and health risks, as demonstrated by the Lopez Ostra and Guerra cases.²¹ There are still legal difficulties in mounting a successful Article 8 challenge, including problems relating to proximity of the applicant to the project inflicting the environmental harm. In Tauira and others v. France,²² residents of Tahiti brought a claim against the nuclear tests France was conducting in the South Pacific. The court dismissed the claim because they were not "victims" according to Art. 25 of the convention. There are also problems with showing a direct link - which must be serious, specific and imminent - between the violation of the right and the government action or omission. In Balmer-Schafroth v. Switzerland [(1998) 25 E.H.R.R. 598], the court dismissed an application for a violation of Article 8 and Article 2 of the convention from a group of residents who lived in the vicinity of a nuclear power plant. The Swiss government granted a license to the operators to increase its production by 10 percent. The European Court of Human Rights (ECHR) dismissed the application due to the applicants' failure to show, with a proper degree of probability, the dangers to them from the increase in production.

Repeated references to the assurance of access to administrative procedures and courts is indicative that enforceable rights are present. However, access to justice in general is always mired by practical realities and limitations, such as exorbitant legal expenses, the possibility of costs being awarded against an unsuccessful applicant, and standing rules. Liberalising standing requirements is always hindered by the courts' concern of opening up floodgates to a barrage of environmental litigation. A significant barrier to mounting legal action is the court's adherence to standing rules. In X. v. Federal Republic of Germany,²³ the ECHR dismissed a claim by an environmental association that the group was entitled to standing in an administrative court proceeding against the construction of a nuclear power plant, because the group was required to show a legal interest of its own in the matter.

Standing requirements will be satisfied by demonstrating a sufficient legal interest. While not corresponding precisely to international legal instruments, European Union legislation provides a pertinent example. In Stichting GP Council and others v. EC Commission, 19 applicants, comprising local residents, farmers, fishers and local and regional groups in the Canary Islands, challenged a decision to release ECU 12 million in structural funds to Spain for the construction of two power plants. The applicant cited the lack of a proper EIA under Directive 85/337 and Article R of the EC Treaty, and they alleged harm to environmental and health protection interests. The European Court of Justice, in a controversial decision, refused to give the parties standing because the mere existence of harm was not sufficient since it affected a large number of persons in the same way. The applicant citizens did not have any attribute substantially distinct from all other people who live or pursue a similar activity in the area. Greenpeace, which received communications from the commission about the project, was ruled not to be an interested party. Associations formed for the protection of collective interests of a category of persons are not deemed to be directly and individually interested because the group's members cannot assert a claim themselves. The ruling of non-admissibility contrasts with the Thorp case in the British courts, where Greenpeace was found to have standing in an application impugning the grant of authorisation for radioactive discharge to a nuclear processing facility. The court was sensitive to the consequences of not granting standing because the people Greenpeace was representing would lack the expertise of Greenpeace in bringing a legal challenge by themselves.

Instruments relating to worker health and safety are much more vague when it comes to access to justice. This is mainly due to the fact that labour relations tend to be cast in terms of consultation and cooperation, implicating negotiations between labour and management. Provisions found in labour instruments often refer to workers' representatives, whereas in environmental agreements, parallel, stronger and more definite provisions refer to participation of the affected public. Dispute resolution typically takes the form of consultation and negotiation in labor agreements, whereas administrative and judicial procedures fit environmental agreements. One exception in which labor agreements approach the enforceability of rights is in the field of employee protection or "whistle-blower" rules. An example can be found in Article 12 of the Occupational Safety and Health Recommendation No. 164, which, in broad and non-particular form, aims at protecting workers from losing employment as a result of exercising legal rights that may effectively threaten their employer.²⁴

Access to Justice in the Aarhus Convention

One of the Aarhus Convention's remarkable achievements is that it includes an entire article (Article 9) on access to justice. The access to justice regime established under the convention depends upon the nature of the claim. Any claimant challenging actions of authorities with respect to requests for information is empowered with access to review either "before a court of law or another independent and impartial body." [9(1)] Claims based on the rights provided in the articles on public participation in decision-making, however, require specific standing requirements to be satisfied. The claimant must establish a sufficient interest or, depending on the state in question, an impairment of a right defined within the framework of national law and consistent with the objectives of the convention. While this opportunity for review is more restrictive than that provided in connection with access to information, special provision is made for non-governmental organisations, which in many ways reverses the limitations imposed, at least with respect to such organisations. Such NGOs are in effect granted the presumption of an interest under the law, making further demonstration of standing requirements unnecessary. Article 9, subsection 3 provides a third mechanism for access to justice in environmental matters by allowing members of the public to bring forward actions challenging acts or omissions of private parties or public authorities that violate the environmental laws of the state involved.

Gaps in Legislation and Models for Improvement

In general, while many instruments include provisions calling for information sharing, data distribution and access to information, they often lack particular directives concerning substantial legal redress. As it stands now in worker health and safety instruments, legislative language is primarily concerned with goals of cooperation. Existing international legislation occasionally provides for rights to appeal both refusals to provide environment and health information and violations of rights to participate in decision-making. The Aarhus Convention takes substantial steps toward fleshing out such mechanisms and takes the first significant steps toward endorsing direct citizen enforcement of environmental laws.

However, to the extent that environment and health matters are not covered by the implied definition of environment in the Aarhus Convention, there is a potential gap in the availability of the access to justice provisions found therein. Furthermore, there is still a void concerning rights to challenge general violations of laws protecting health. In the field of worker health and safety, particularised rights have been slower to develop. Consequently, there is much room to strengthen access to justice provisions. Because the new focus is on environmental health, the category of persons affected by actions might be considerably broadened. This new angle could very well depart from existing case law regarding issues of standing. Such access, however, is contingent on new legislation and its particular application to the rights of the individual.

Recommendations

As mentioned in a previous section, the area of hazard communication presents an opportunity for increasing efficiency of communications and improving the flow of information by establishing, through the states, the obligation of enterprises to provide information directly to the potentially affected public. In so doing, states would avoid huge expenses in collecting and disseminating information, stepping into the primary role of enforcer. Meanwhile, the public's accessibility to information would be facilitated. Any such instrument must also include substantial access to justice provisions. To some extent, the Aarhus Convention represents a model.

Viewing the current difficulties in satisfying requirements of standing, it seems clear that there is a need to draft specific, binding legislation - at both national and international levels - which gives natural and legal persons greater access to justice in situations related to environmental health. The Aarhus Convention makes progress in establishing a presumption of a legally recognised interest on the part of environmental NGOs, but further developments in this direction are needed.

In the field of worker health and safety, the correspondence between worker rights of access to information and participation in decision-making in the workplace and those of the general or affected public in terms of environmental matters should be clarified. This correspondence works in one direction, by extending the right of workers to be informed about hazards they encounter to the general public exposed to hazards from particular activities. In the other direction, the result should be an improvement of the status of the rights of participation of workers and greater opportunities for enforcement.

VII. Conclusions

Increasingly complex environment and health problems, and a lack of solutions, make it necessary to enhance mechanisms for public participation in environment and health matters in order to improve the chances of innovation and the commitment of citizens to make necessary changes in their lives. The relationship between members of the public and the authorities, formerly a domain for sovereign nations, is increasingly the subject of international obligations as the significance of this relationship to transboundary and global issues is being realised. This development in the field of international legal instruments is one of the most remarkable of our era.

The recent Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environment-al Matters (the Aarhus Convention), which was signed in June of 1998 but is not yet in force, represents a significant step in the field of environment. The London Ministerial Conference in 1999 has a chance to build upon this development in the field of environmental health. In so doing, the ministers will confirm that several fields are converging under a new umbrella that covers environmental, environmental health, and worker health and safety concerns. Moreover, because these issues reach to the level of the individual in a complex society, it is important to involve more than just the executive branch of government in fulfiling important obligations; a system of rights enforceable by independent tribunals provides the most efficient means of achieving the basic change needed to face critical problems successfully. As such, the whole broad field of environment and health has a strong connection to the field of human rights.

The basic importance of access to information as the sine qua non of all multi-stakeholder activities is well understood. The Aarhus Convention provides a starting point. At London '99 there is an opportunity to link current developments within the pan-European context to access to environment and health information. Secondly, the scope of activities in which members of the public have an internationally recognised right to actively participate in decision-making is still rather narrow. London '99 also presents an opportunity to expand the types of decision-making covered into the environment and health field.

Thus, it is recommended that the ministers consider extension of the provisions of the Aarhus Convention to the field of environmental health, through consideration of the definitions found in the convention, additions to the annex and clarifications and amendments of certain provisions, such as those relating to genetically modified organisms. Some of these goals could be accomplished through a protocol to the convention, open for signature and ratification independently of the convention itself, or through a separate environment and health instrument. In particular, it is recommended that guidelines for the creation of a regime for environment and health information be established that would include proper provision for access to epidemiological data. In the short term the Ministerial Declaration coming from the London Conference could contain language endorsing these measures.

At the same time, the ministers might take a closer look at the link between environmental, health, social and cultural and basic human rights, as discussed in an emerging body of literature including the UN Report on Human Rights and the Environment.²⁵ One response of the ministers to these developments might be to endorse particular statements of "environment and health human rights," as gleaned from such literature, or to call for the establishment of a forum for development of a declaration on such rights.

It is also time to examine how trends in the gradually converging fields of worker health and safety law and environmental law can be maximised through a unifying international instrument on Hazard Communication and Community Right to Know. Such an instrument might build upon the experience concerning effectiveness and impact of legislation, such as the United States EPCRA, and might contribute to the inevitable shift in thinking from "need-to know" to "right-to-know," as a logical step in the development of environmental health on a pan-European level. Moreover, such an instrument would multiply many times over the amount of information available to authorities as well as the public -- and would greatly enhance the ability of authorities in partnership with the public to enforce and uphold environmental and health standards.

Endnotes

1 Complete list of countries in Annex B.

2 Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, ECE Committee on Environmental Policy Fourth Ministerial Conference "Environment for Europe," Aarhus, Denmark, June 23-25, 1998, ECE/CEP/43.

3 Universal Declaration of Human Rights, Adopted by UN General Assembly Resolution 217 A (III) of Dec. 10, 1948.

4 UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Second Progress Report, UN Doc. E/CN.4/Sub.2/1993/7, 36.

5 UN Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Human Rights and the Environment, Final Report of the Special Rapporteur. UN Doc. E/CN.4/Sub.2/1994/9 (July 6, 1994), 74.

6 Council Resolution 93/C 138/01, O.J.E.C. 17.5.93, p. 82

7 Lopez Ostra v. Spain, ECHR judgment of Dec. 9, 1994, Series A no. 303-C, p. 55, ¤ 55 and Guerra and Others v. Italy, ECHR judgment of Feb. 19, 1998, case no. 116/1996/735/932.

8 Lopez Ostra v. Spain, Series A no. 303-C.

9 Case No. 116/1996/735/932 (Feb. 19, 1998)

10 Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, ETS No. 158.

11 D. Gomien, D. Harris & L. Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe, 1996) p. 446.

12 Fourth Ministerial Conference "Environment for Europe," Aarhus, Denmark, June 23-25, 1998, Report on the Status of Multilateral Environmental Agreements in the European Region, ARH.CONF/BD.12.

13 Western Europe, Eastern Europe, Central Europe, and Central Asia

14 Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters, ECE Committee on Environmental Policy Fourth Ministerial Conference "Environment for Europe," Aarhus, Denmark, June 23-25, 1998, ECE/CEP/43.

15 Michael S. Baram, "Risk Communication Law and its Implications," in H.B.F. Gow and H. Otway (eds.), Communicating With the Public About Major Accident Hazards. Center for Law and Technology, Boston University School of Law, 1990.

16 It has to be mentioned that the EU directives serve as models for European countries, especially the accession countries.

17 Espoo Convention, Article 1 (vii) (emphasis supplied).

18 United Nations Economic Commission for Europe, Current Policies, Strategies and Aspects of Environmental Impact Assessment in a Transboundary Context (United Nations: Geneva, 1996) p. 1.

19 Meeting of Parties, Baarn, The Netherlands, Nov. 27-30, 1994.

20 See, discussion at p. 49-50.

21 A more general obligation is found in Article 16 of the European Social Charter, which advances the "legal and social protection of family life" through "appropriate means."

22 Application 28204/95, Dec. 4, 1995 D&R 83-A

23 Application 9234/81, 26 DR 270.

24 See also US Occupational Safety and Health Act of 1970 Section 11 (c ) (1) stating: "No person shall discharge or in any manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act."

25 See, endnote 6 and accompanying text.

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REC * PUBLICATIONS * HEALTHY DECISIONS

 Regional Environmental Center for Central and Eastern Europe