A/HRC/23/36
30.
States therefore have positive obligations under international human rights law to
establish specific mechanisms at all the relevant levels to ensure that all persons concerned
have the de facto opportunity to take part in the conduct of public affairs and decisions that
might affect them (A/63/274, para. 22). This is especially relevant for people living in
extreme poverty who might lack the necessary strength, knowledge or education required to
make a meaningful contribution to the conduct of public affairs.
Other sources of international law
31.
Aside from the United Nations human rights instruments, various other legal
frameworks also refer to participation. While not specifically focused on participation of
people living in poverty, these other frameworks could also assist in determining the legal
content of the right to participation. For example, the Convention on Access to Information,
Public Participation in Decision-Making and Access to Justice in Environmental Matters
(Aarhus Convention) regulates procedural rights for environmental decision-making for
State parties. It links environmental rights with human rights, and in particular the right to
participation,12 and is based on three pillars – access to information, public participation in
decision-making, and access to justice in environmental matters. The Convention sets out
minimum requirements for public participation in various categories of environmental
decision-making. The public participation requirements include: (a) timely and effective
notification to the concerned public; (b) reasonable time frames for participation, including
provision for participation at an early stage; (c) a right for the concerned public to inspect
information relevant to the decision-making process at no cost; (d) an obligation for the
decision-making body to take due account of the outcome of public participation; and (e)
prompt public notification of the decision, with the text of the decision and the reasons and
considerations on which it is based made publicly accessible. 13
32.
The Indigenous and Tribal Peoples Convention of the International Labour
Organization (1989) (ILO Convention No. 169) is focused on participation of indigenous
people in decision-making, and is the only international convention to assign governments
the duty of face-to-face consultation with communities.14 It states that consultation with
indigenous peoples should be undertaken through appropriate procedures, in good faith and
through the representative institutions of these peoples; the peoples involved should have
the opportunity to participate freely at all levels in the formulation, implementation and
evaluation of measures and programmes that affect them directly. ILO Convention No. 169
also specifies individual circumstances in which consultation with indigenous and tribal
peoples is an obligation. In particular, relocation/displacement of the community should
take place only with their “free and informed consent”.
33.
If not developed with the indigenous and tribal institutions or organizations that are
truly representative of the peoples in question, consultations will not comply with the
requirements of the Convention. Notably, in applying the Convention, several judgments of
national and regional tribunals have found that the non-participation of indigenous groups
in consultation or decision-making processes violated their rights and, as such, a broad set
of measures have been judicially ordered, from the invalidation of approval of government
12
13
14
S. Stec and S. Casey-Lefkowitz, The Aarhus Convention: an Implementation Guide, United Nations,
New York and Geneva, 2000, p. 1.
J. Foti et al., Voice and Choice: Opening the Door to Environmental Democracy, World Resources
Institute, 2008, p. 19.
J. Foti and L. de Silva, A Seat at the Table: Including the Poor in Decisions for Development and
Environment, World Resources Institute, 2010, p. 4.
9
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