1. The Aarhus Convention and Biosafety
Fiona Marshall
United Nations Economic Commission for Europe
Full name:
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters

2. What is the Aarhus Convention? How does the Aarhus Convention work?
What is its relevance for biosafety?
Future steps for Aarhus and biosafety
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
Three “pillars”: access to information, public participation in decision-making, access to justice
Most far-reaching international agreement on environment and human rights
First environmental compliance mechanism to have public trigger
44 Parties: 43 countries and European Communities
Entered force in 30 September 2001

3. What is the Aarhus Convention?
Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters
Three pillars: information, participation, justice
Entered force in 30 October 2001, now has 44 Parties: 43 countries and the European Union
Parties adopted Lucca Guidelines on GMOs in 2002, still a useful tool
Amendment on public participation in GMO decisions adopted in May 2005, not yet in force.

4. What is the Aarhus Convention?
Most far-reaching international treaty on environment and human rights
First international environmental treaty to allow members of the public to bring cases before the compliance mechanism
Expressly covers information and decisions on GMOs
Neither for or against GMOs
Aarhus Clearinghouse, which also contains biosafety related materials.

5. How does the Aarhus Convention work?
Requires Parties to provide access to information, public participation and access to justice to the public regarding the environment
Obligations mainly fall on public authorities
Rights are owed to the public, or the public concerned
Definitions – article 2
All wide definitions:
Public authority
Government at national, regional and other level;
Natural or legal persons performing administrative functions under national law;
Natural or legal persons having public responsibilities or functions or providing public services in relation to the environment, under the control of the above
Who has rights under the Convention?
Public
One or more natural or legal persons
Public concerned
Public affected or likely to be affected by, or having an interest in, the environmental decision-making, NGOs promoting environmental protection and meeting any requirements under national law deemed to have interest
Note: the Convention’s rights apply irrespective of citizenship, residence or domicile

6. The Aarhus Convention and biosafety
Right of access to information
Has two sides: active and passive:
Public has right to environmental information upon request
Obligation on Parties to collect and disseminate environmental information, including on GMOs
Environmental information widely defined
Includes (among other things) any information in any form on the state of elements of the environment, eg air, atmosphere, water, soil, land, landscape and natural sites, biological diversity, including genetically modified organisms, and the interaction between these elements.
Access to information
Requests for information – article 4
Public authorities to make information available where requested
Without interest having to be stated
In form requested, unless another form reasonable or already publicly available
Information to be granted as soon as possible, latest in one month or two if voluminous and complex

7. Passive information obligation:
Access to information on GMOs on request
Requirements:
Without interest having to be stated
In form requested
As soon as possible or at latest within one month
Reasonable charges published beforehand
Limited grounds for refusal to be interpreted in a restrictive way
Request may be refused if:
Public authority does not hold information (but must then redirect)
Request manifestly unreasonable or too general
Requested material in course of completion
If disclosure would affect:
Confidentiality of public authority’s proceedings or internal communications (where protected by law)
International relations, national defence or public security
Course of justice
Confidentiality of commercial and industrial information, where such confidentiality protected by law (however not emissions)
Intellectual property rights
Confidentiality of personal data of natural person who has not consented
Interests of third party who has supplied information without legal obligation to do so
Environment to which the information relates, eg breeding ground of rare species.
Grounds to be interpreted in restrictive way, taking into account public interest served by disclosure.
If possible, confidential information to be separated and rest of information to be made available
Any refusal of request as soon as possible, latest one month or two months if complex
Refusal to be in writing if request was in writing or if applicant so requests
Refusal must give reasons and information on review procedure
Any charges for information to be reasonable and published beforehand

8. Active information obligation:
To collect and disseminate environmental information
Parties must ensure that:
Public authorities have up-to-date environmental information relevant to their functions
Systems are established to ensure an adequate flow of information to public authorities about proposed and existing activities which may significantly affect the environment
Also product information:
Parties must develop mechanisms to ensure that sufficient product information is available for consumers to make informed environmental choices.
Request may be refused if:
Public authority does not hold information (but must then redirect)
Request manifestly unreasonable or too general
Requested material in course of completion
If disclosure would affect:
Confidentiality of public authority’s proceedings or internal communications (where protected by law)
International relations, national defence or public security
Course of justice
Confidentiality of commercial and industrial information, where such confidentiality protected by law (however not emissions)
Intellectual property rights
Confidentiality of personal data of natural person who has not consented
Interests of third party who has supplied information without legal obligation to do so
Environment to which the information relates, eg breeding ground of rare species.
Grounds to be interpreted in restrictive way, taking into account public interest served by disclosure.
If possible, confidential information to be separated and rest of information to be made available
Any refusal of request as soon as possible, latest one month or two months if complex
Refusal to be in writing if request was in writing or if applicant so requests
Refusal must give reasons and information on review procedure
Any charges for information to be reasonable and published beforehand

9. Public participation in GMO decisions – current article 6 (11)
Currently, Parties must apply the Convention’s public participation requirements on decisions on whether to permit the deliberate release of GMOs into the environment to the extent feasible and appropriate within the framework of its national law
Public participation in environmental decision-making
Public participation in decisions on specific activities – article 6 and annex I
Applies to decisions on whether to permit proposed activities listed in annex I
Public concerned to be informed, either by public notice or individually, early and in an adequate, timely and effective manner, of:
Proposed activity
Nature of possible decisions
Public authority responsible
Public participation procedure envisaged (including timeframes and opportunities to participate),
If activity subject to national or transboundary EIA procedure

10. Public participation in GMO decisions – current article 6 (11)
Requirements:
Reasonable timeframes
Early public participation when all options are open
Applicants encouraged to identify public concerned, to provide information and to enter into discussions with them before applying for a permit
All relevant information to be accessible to public concerned upon request, free of charge
Public participation in environmental decision-making
Public participation in decisions on specific activities – article 6 and annex I
Applies to decisions on whether to permit proposed activities listed in annex I
Public concerned to be informed, either by public notice or individually, early and in an adequate, timely and effective manner, of:
Proposed activity
Nature of possible decisions
Public authority responsible
Public participation procedure envisaged (including timeframes and opportunities to participate),
If activity subject to national or transboundary EIA procedure

11. Public participation in GMO decisions – current article 6 (11)
Requirements (continued):
Opportunity for public concerned to comment
Due account of public participation
Public to be promptly informed of decision and decision (including reasons) to be made accessible
Public participation in environmental decision-making
Public participation in decisions on specific activities – article 6 and annex I
Applies to decisions on whether to permit proposed activities listed in annex I
Public concerned to be informed, either by public notice or individually, early and in an adequate, timely and effective manner, of:
Proposed activity
Nature of possible decisions
Public authority responsible
Public participation procedure envisaged (including timeframes and opportunities to participate),
If activity subject to national or transboundary EIA procedure

12. Aarhus Convention amendment on GMOs, 2005
In 2005, Parties to the Aarhus Convention adopted an amendment to the Convention on public participation in GMO decisions
Requires Parties to provide for early and effective information and public participation in decisions on the deliberate release into the environment and placing on the market of GMOs
Will enter into force when ratified by ¾ of Parties at time amendment was adopted.
Has 26 ratifications, 22 of which count to entry into force, needs 5 more.

13. Requirements:
Gives rights to “public”, generally, not just “public concerned”
Requires a reasonable timeframe in order to give the public an adequate opportunity to express an opinion on proposed decisions
Some possible exceptions
For deliberate release, if another such release in comparable bio‐geographical conditions approved by Party and sufficient experience gained
For placing on market, if already approved by Party or if intended for research or future culture collection

14. Summary of notification to obtain authorization and assessment report to be made public in timely and effective manner, if available
Some information cannot be kept confidential:
General description of GMO, name and address of applicant, intended use, and if appropriate, location of release
Methods and plans for monitoring and emergency response
Environmental risk assessment

15. Must ensure transparency of decision‐making procedures
Public entitled to submit any comments, information, analyses or opinion it considers relevant
Must endeavour to take due account of outcome of public participation
Text of decision, along with reasons, to be made public

16. Access to justice regarding GMOs
For a refused request for information
For impairment of a right provided under the national law regarding public participation in decisions on deliberate release covered by art 6(11) – but not regarding decisions covered by GMO amendment.
To challenge an act or omission by private persons or public authorities which contravenes national environmental law

17. Lucca Guidelines on GMOs, 2002
Non‐binding examples of good practice
Most far‐reaching and detailed instrument on GMOs e.g. covers contained use as well as deliberate release and placing on the market
Still a valuable guidance tool

18. Future steps for Aarhus and biosafety
Entry into force of the GMO amendment
Preparation of draft work plan
More effective implementation of Convention’s provisions
Collaboration and dialogue with Cartagena Protocol and other relevant organizations

19. Aarhus Convention secretariat, UNECE
Thank you!
Fiona Marshall
Aarhus Convention secretariat, UNECE