THE AARHUS CONVENTIONTHE AARHUS CONVENTION

Marianna BolshakovaEnvironment, Housing and Land Management Division

United Nations Economic Commission for Europe

2

UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters

“"… The adoption of the Aarhus Convention was a giant step forward in the development of international law in this field. ... Although regional

in scope, the significance of the Aarhus Convention is global. It is by far the most impressive elaboration of principle 10 of the Rio Declaration .. As such, it is the most ambitious venture in the area of ‘environmental democracy’ so far undertaken under the auspices of the United Nations...."

Kofi Annan, Secretary-General, United Nations

THE AARHUS CONVENTIONTHE AARHUS CONVENTION

3

Idealistic motivation:- an issue of democratic rights, relation between

government and civil society- representative democracy vs. participatory

democracy

Pragmatic motivation:- More participation leads to better decision-making- Environmentally sustainable development needs

involvement of all actors

WHY A CONVENTION ON PROCEDURAL WHY A CONVENTION ON PROCEDURAL ENVIRONMENTAL RIGHTS?ENVIRONMENTAL RIGHTS?

4

ORIGIN AND EVOLUTION OF THE CONVENTIONORIGIN AND EVOLUTION OF THE CONVENTION

June 1992 Principle 10 of Rio Declaration taken up within Environment for Europe process

Oct 1995 UNECE Guidelines on Access to Environmental Information and Public Participation in Decision-making (Sofia Guidelines) adopted.

1996 – 1998 Negotiation of the draft ConventionJune 1998 Adoption of the Convention at the 4th Ministerial

“Environment for Europe” Conference, Aarhus Denmark. Signed by 39 countries and the European Community

Oct 2001 Entry into force of the ConventionOct 2002 1st meeting of the Parties (Lucca, Italy)May 2005 2nd meeting of the Parties (Almaty, Kazakhstan)

5

STATUS OF RATIFICATIONSTATUS OF RATIFICATIONAlbania ArmeniaAustriaAzerbaijan Belarus BelgiumBulgariaCyprusCzech RepublicDenmark EstoniaFinlandFormer Yugoslav Rep. of Macedonia France GeorgiaGermanyGreeceHungaryItalyKazakhstan

Kyrgyzstan Latvia Lithuania LuxembourgMalta MoldovaNetherlandsNorway PolandPortugalRomaniaSlovakiaSloveniaSpainSwedenTajikistan Turkmenistan UkraineUnited KingdomEuropean Community

TOTAL: 40 PARTIESTOTAL: 40 PARTIES

6

THE THREE ‘PILLARS’THE THREE ‘PILLARS’

INF

OR

MA

TIO

N

PA

RT

ICIP

AT

ION

DEMOCRACY/RULE OF LAW

AARHUS CONVENTION

JUS

TIC

E

7

GENERAL FEATURESGENERAL FEATURES

• Recognition of citizens' rights

Procedural rights to information, participation, justice

Substantive rights of present and future generations to live in an environment adequate to health and wellbeing

• Broad definition of 'the public‘

Any natural or legal person, plus informal groups

• Broad definition of public authorities

All sectors and levels of government, excluding bodies

acting in legislative or judicial capacity

8

GENERAL FEATURESGENERAL FEATURES

• European Community is a Party

EU institutions covered

• Anti-harassment, non-discrimination provisions

Rights to be enjoyed irrespective of citizenship, nationality,

domicile etc

• Compliance review arrangements

• Open to non-ECE countries

9

ACCESS TO INFORMATIONACCESS TO INFORMATION

Passive (art. 4)Passive (art. 4)

• Any person has access (no need to prove or even state an

interest)

• Broad definition of environmental information (art. 2)

• Time limit: ‘as soon as possible’, max 1 month, plus 1 more

month.

• Charges not to exceed reasonable amount

• Finite set of exemptions

– public interest to be taken into account

– Potential effects of disclosure must be adverse

10

ACCESS TO INFORMATION (2)ACCESS TO INFORMATION (2)

Active (art. 5)Active (art. 5)

• Transparency and accessibility of information systems

• Immediate dissemination of information in cases of imminent threat to health or environment

• Sufficient product information to ensure informed environmental choices

• Pollutant release and transfer registers

• Increased access to information through Internet

• State of environment reports

11

PUBLIC PARTICIPATIONPUBLIC PARTICIPATION

Specific Projects or Activities (art. 6)Specific Projects or Activities (art. 6)

• list of types of activity covered (Annex I)

• timely and effective notification

• reasonable timeframes

• free inspection of relevant information by public concerned

• comments in writing or public hearing

• due account to be taken of outcome of public participation

Amendment – new article on GMOsAmendment – new article on GMOs

12

PUBLIC PARTICIPATIONPUBLIC PARTICIPATION

13

PUBLIC PARTICIPATION (2)PUBLIC PARTICIPATION (2)

Programmes and Plans (art. 7)Programmes and Plans (art. 7)

• Not too prescriptive - “appropriate practical and/or other provisions for the public to participate during the preparation of plans and programmes relating to the environment”

• reasonable timeframes, early participation

• due account to be taken of the outcome of public participation

14

PUBLIC PARTICIPATION (3)PUBLIC PARTICIPATION (3)

Policies (art. 7)Policies (art. 7)

• General obligation to endeavour to provide opportunities in the preparation of policies relating to the environment “to the extent appropriate”

Rules and regulations (art. 8, 9)Rules and regulations (art. 8, 9)

• Obligation to strive to promote effective public participation in rules/regulations and other legally binding instruments that may have a significant effect on the environment

15

ACCESS TO JUSTICE (art. 9)ACCESS TO JUSTICE (art. 9)

• Review procedures to challenge the handling of

information requests (any person) (art. 9.1)

• Review procedures to challenge legality of project-

level decisions requiring public participation

(restricted to concerned public)

• Review procedures to challenge general violations of

national law relating to the environment

16

ACCESS TO JUSTICE (1)ACCESS TO JUSTICE (1)

• Review procedures to challenge the handling of information requests (art. 9.1)

• Review before a court of law or other independent and impartial body established by law

• Available to any person whose info request refused, ignored etc

• Where review before court of law provided, must also provide expeditious procedure, free of charge or inexpensive

17

ACCESS TO JUSTICE (2)ACCESS TO JUSTICE (2)

• Review procedures to challenge legality of project-level decisions requiring public participation (art. 9.2)

• Review before a court of law or other independent and impartial body established by law

• Restricted to subset of public concerned having sufficient interest or maintaining impairment of right (to be interpreted in line with objective of giving wide access to justice)

• Substantive or procedural legality may be challenged

18

ACCESS TO JUSTICE (3)ACCESS TO JUSTICE (3)

• Review procedures to challenge general violations of national law relating to the environment (art. 9.3)

• Acts and omissions by private persons and public authorities may be challenged

• Access to administrative or judicial procedures

• Criteria determining standing may be established by Parties

19

ACCESS TO JUSTICE (4)ACCESS TO JUSTICE (4)

• Procedures to be fair, equitable, timely and not prohibitively expensive

• Procedures to provide adequate and ef-fective remedies, including injunctive relief ‘as appropriate’

• Decisions in writing, court decisions publicly accessible

• Info on access possibilities to be provided to public

• Appropriate assistance mechanisms to remove or reduce financial and other barriers to be considered

20

COMPLIANCE MECHANISM (1)COMPLIANCE MECHANISM (1)

• Non-confrontational (not prosecute but facilitate)• Independent

• ReviewsSubmission by Party about itself

Submission by Party about Party

Referrals by secretariatCommunications by the public (17)

• Non-confrontational (not prosecute but facilitate)• Independent

• ReviewsSubmission by Party about itself

Submission by Party about Party

Referrals by secretariatCommunications by the public (17)

21

PUBLIC PARTICIPATION IN INTERNATIONAL FORUMSPUBLIC PARTICIPATION IN INTERNATIONAL FORUMS

Art. 3.7: Parties required to ‘promote the application of the principles of [the] Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment’

Guidelines on application of Art. 3.7, set up task force to consult with relevant international fora.

22

An open, transparent and inclusive process… An open, transparent and inclusive process…

Convention negotiated with full and active participation of NGOs, to an extent unprecedented in the development of international law

Since adoption and through entry into force, NGOs involved as observers in the MOP and all subsidiary bodies, including the Bureau

NGO role partly formalised through rules of procedure but procedures remain largely informal

Environmental citizens’ organisations (ECOs) recognized as the most relevant class of NGOs in this context (NB: In PRTR protocol negotiations, chemical industry played equivalent role)

23

AN UNCONVENTIONAL CONVENTIONAN UNCONVENTIONAL CONVENTION

• Unique among MEAs in the extent to which it seeks to guarantee procedural rights of the public: addressing the environment/human rights interface

• A treaty less about Party-to-Party relations, more about the relations between governments and civil society

• An international treaty is not a blueprint - national and local procedures can and must go into more detail (cf art. 3.1)

24

Challenges of participatory democracyChallenges of participatory democracy

25

MORE INFORMATION AVAILABLE ON THE MORE INFORMATION AVAILABLE ON THE AARHUS CONVENTION WEBSITE AND AARHUS CONVENTION WEBSITE AND

CLEARINGHOUSE:CLEARINGHOUSE:

http://www.unece.org/env/pphttp://www.unece.org/env/pp

andand

http://aarhusclearinghouse.org