THE AARHUS CONVENTION Marianna Bolshakova Environment, Housing and Land Management Division United Nations Economic Commission for Europe

THE AARHUS CONVENTION 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 UN Secretary-General Kofi Annan recently described the drafting as having global significance as a 'giant step forward in the development of international law in this field' it is the first legally binding UN instrument to address the issues covered by what we might call environmental democracy in a detailed and systematic way Secretary General: Rio +10 meeting: examine the global relevance of the Convetion prinicples

WHY A CONVENTION ON PROCEDURAL ENVIRONMENTAL RIGHTS? 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 UN Secretary-General Kofi Annan recently described the drafting as having global significance as a 'giant step forward in the development of international law in this field' it is the first legally binding UN instrument to address the issues covered by what we might call environmental democracy in a detailed and systematic way Secretary General: Rio +10 meeting: examine the global relevance of the Convetion prinicples

ORIGIN 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 Convention June 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 Convention Oct 2002 1st meeting of the Parties (Lucca, Italy) May 2005 2nd meeting of the Parties (Almaty, Kazakhstan) By early October 2000, five of the signatories (Denmark, Georgia, Republic of Moldova, Romania and Ukraine) had ratified, three other countries (Turkmenistan, Former Yugoslav Republic of Macedonia and Azerbaijan) had acceded and another (Belarus) had approved the Convention, making a total of nine. 2nd MoS: Convention is likely to enter into force during 2001.

STATUS OF RATIFICATION Albania Armenia Austria Azerbaijan Belarus Belgium Bulgaria Cyprus Czech Republic Denmark Estonia Finland Former Yugoslav Rep. of Macedonia France Georgia Germany Greece Hungary Italy Kazakhstan Kyrgyzstan Latvia Lithuania Luxembourg Malta Moldova Netherlands Norway Poland Portugal Romania Slovakia Slovenia Spain Sweden Tajikistan Turkmenistan Ukraine United Kingdom European Community TOTAL: 40 PARTIES

THE THREE ‘PILLARS’ PARTICIPATION INFORMATION JUSTICE AARHUS CONVENTION INFORMATION PARTICIPATION JUSTICE DEMOCRACY/RULE OF LAW

GENERAL 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 Rights based approach - rights to information, participation, justice - right to “an environment adequate to ... health and wellbeing” Enforce their rights in courts Public: any natural or legal person, without distinction on basis of citizenship, residency, etc Public authority: - all sectors and levels of government - inclusion of private environmental bodies under control of governmental bodies - exclusion of bodies acting in legislative or judicial capacity Implications EU signature Compliance mechanism: 1stMoP

GENERAL 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 Rights based approach - rights to information, participation, justice - right to “an environment adequate to ... health and wellbeing” Enforce their rights in courts Public: any natural or legal person, without distinction on basis of citizenship, residency, etc Public authority: - all sectors and levels of government - inclusion of private environmental bodies under control of governmental bodies - exclusion of bodies acting in legislative or judicial capacity Implications EU signature Compliance mechanism: 1stMoP

ACCESS TO INFORMATION 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 Passive and active The two aspects are essential and complementary elements in an effective information regime Environmenal information: - non-exhaustive list of environmental elements such as air, water, soil, environmental policies and programmesa and legislation Presumption in favour of public access to environmental information held by any public authority, with some finite exceptions: national defence, public security, commercial confidentiality and intellectual property Restrictive interpretation and balancing of interests.

ACCESS TO INFORMATION (2) 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 Requirement for p.a. to actively disseminate certain types of information. In a transparant and accessible way f.I. by public registers and lists. Categories of information Parties must take steps in developing a Pollutant Release and Transfer Register. Use of Internet Parties must publish and disseminate state of the environment reports

PUBLIC PARTICIPATION 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 GMOs Annex I: oil refineries, production and processing of metals, waste management, chemical industry…

PUBLIC PARTICIPATION

PUBLIC PARTICIPATION (2) 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

PUBLIC PARTICIPATION (3) 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) 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

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

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

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

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

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

COMPLIANCE MECHANISM (1) Non-confrontational (not prosecute but facilitate) Independent Reviews Submission by Party about itself Submission by Party about Party Referrals by secretariat Communications by the public (17)

PUBLIC 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. By early October 2000, five of the signatories (Denmark, Georgia, Republic of Moldova, Romania and Ukraine) had ratified, three other countries (Turkmenistan, Former Yugoslav Republic of Macedonia and Azerbaijan) had acceded and another (Belarus) had approved the Convention, making a total of nine. 2nd MoS: Convention is likely to enter into force during 2001.

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) By early October 2000, five of the signatories (Denmark, Georgia, Republic of Moldova, Romania and Ukraine) had ratified, three other countries (Turkmenistan, Former Yugoslav Republic of Macedonia and Azerbaijan) had acceded and another (Belarus) had approved the Convention, making a total of nine. 2nd MoS: Convention is likely to enter into force during 2001.

AN 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) UN Secretary-General Kofi Annan recently described the drafting as having global significance as a 'giant step forward in the development of international law in this field' it is the first legally binding UN instrument to address the issues covered by what we might call environmental democracy in a detailed and systematic way Secretary General: Rio +10 meeting: examine the global relevance of the Convetion prinicples

Challenges of participatory democracy

http://www.unece.org/env/pp http://aarhusclearinghouse.org MORE INFORMATION AVAILABLE ON THE AARHUS CONVENTION WEBSITE AND CLEARINGHOUSE: http://www.unece.org/env/pp and http://aarhusclearinghouse.org