Article 23. Public awareness and participation

587. Article 23 provides for a mix of mandatory and discretionary actions that Parties to the Protocol are expected to undertake relating to:

588. Article 23 is best understood in the context of Principle 10 of the 1992 Rio Declaration on Environment and Development (Box 40). Principle 10 articulates what are now known as the three “pillars” of public participation: (1) the right of citizens to information; (2) their right to participate in environmental decisions which affect them; and (3) their access to mechanisms of redress and justice when their rights are violated.

589. It should also be noted that Article 14(1)(a) of the CBD encourages public participation in:

environmental impact assessment of proposed projects that are likely to have significant adverse effects on biological diversity.

Box 40. Principle 10 of the Rio Declaration

Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

590. Article 23(1) does not explicitly require Parties to make specific information available to the public. The obligation is somewhat softer. Parties are required to “promote and facilitate” public awareness, education and awareness regarding LMOs, and are to “endeavour” to ensure public awareness and education on LMOs that may be imported.

591. The phrase “promote and facilitate” would indicate that Parties intended to commit themselves to encourage and make easier the flow of information to the public concerning LMO transfers, handling and use, through the establishment of such mechanisms as may be deemed appropriate or necessary. Article 23(1)(a) indicates that such mechanisms should be focused on three main areas of public information:

592. Article 23(1)(b) expressly indicates that public awareness and education mechanisms should cover and provide access to information pertaining to LMOs “that may be imported”. A significant omission from Article 23(1)(b), however, is a reference to “public participation”. This would imply that Parties have not bound themselves to provide, or endeavour to provide, public participation mechanisms with respect to LMOs that may be imported. This gap, however, seems to be addressed in Article 23(2).

593. A major difference between subparagraphs (a) and (b) of Article 23(1) is the level of obligation to which Parties have agreed to be bound. Article 23(1)(a) requires Parties to “promote and facilitate”– i.e. encourage and make easier through the setting up of appropriate or necessary mechanisms – public awareness, education, and participation with respect to LMOs. The use of such a phrase clearly indicates that the establishment and implementation of such mechanisms for promotion and facilitation are mandatory. Article 23(1)(b), on the other hand, uses the word “endeavour” to refer to the obligation to ensure that public awareness and education mechanisms cover and include access to information on imported LMOs. The word “endeavour” suggests that the Parties must attempt or strive to ensure such inclusion of access to information on imported LMOs within the scope of public awareness and education mechanisms relating to LMO transfers, handling, and use.

594. Article 23(2) of the Protocol lays down affirmative obligations on Parties to:

595. The obligation to consult with the public, however, is qualified by two factors:

596. This means that the scope, extent, and methodologies for public participation are subject to national laws and regulations governing public participation in each Party. Furthermore, the information to be provided to the public to enable them to effectively participate in LMO-related decision-making processes must not include information that has been identified as “confidential information” pursuant to Article 21 of the Protocol.

597. Article 23(2) does not provide specific guidance on the public consultation mechanisms to be adopted in decision-making processes and on how to make results of decisions on LMOs available to the public. This effectively leaves it up to the Parties to decide how this obligation should be implemented in their own national contexts. These issues are addressed in some other existing regional and international agreements (see Box 41). Possible elements may be grouped in three phases:

Box 41. Information and public participation in decision-making

The linkage between the provision of information to the public and public participation in decision-making relating to environmental matters has long been recognized as an essential element in ensuring environmentally- sustainable development. Aside from Principle 10 of the Rio Declaration, recent international environmental conventions that incorporate public participation provisions include:

In addition, the most recent and comprehensive international agreement relating to public participation is the 1998 UN/ECE Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters (the ‘Aarhus Convention’). This treaty outlines and effectively provides guidance on how public participation should be realized in the context of environmental decision-making processes. Among the principles contained in its provisions on public participation are that public participation must be “timely, effective, adequate and formal, and contain information, notification, dialogue, consideration, response”. It establishes obligations that Parties to the Aarhus Convention must comply with in providing for timely, adequate, and effective public participation. These include requirements concerning public notification, timing, provision of relevant information, provision of opportunities for public comment, responses to such comments, and communication.

Article 6(11) of the Aarhus Convention expressly makes applicable the provisions relating to public participation in Article 6 thereof to “decisions on whether to permit the deliberate release of genetically modified organisms into the environment”. Implementation of this provision is to be done “within the framework of [the Party's] national law”.

The public participation elements contained in Article 6 of the Aarhus Convention are outlined below:

Work is underway under the Aarhus Convention to elaborate the requirements of public participation in decisions concerning deliberate releases of LMOs into the environment. A double track approach is being followed: on one hand, draft guidelines have been adopted by the first Meeting of the Parties in October 2002 to elaborate public participation requirements; at the same time, a Working Group on GMOs has been established to examine possible legally binding options, including a draft amendment of the Convention to develop the application of the Convention in the field of GMOs.

(See: UNECE, The Aarhus Convention: An Implementation Guide, 87–122 (2000). For more information, see http://www.unece.org/env/pp/acig.htm).

598. Article 23(3) of the Protocol requires Parties to take steps to inform the public about the means of access to information contained in the Biosafety Clearing-House (Article 20).

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