The Aarhus Convention

Owing to its wide ambit, students of all areas of environmental law will soon find mention of the Aarhus Convention. It concerns a range of global issues including water management, nuclear energy, human rights, development and poverty. To give the Convention some context it is important to look at the institutions and history that gave rise to it. The United Nations officially came into existence almost immediately following the end of World War II. The United Nations charter had been drawn up during the culmination of the War and was ratified by the original Parties to it in October 1945. Article 1 of the Charter explains its purposes, including: ‘to maintain international peace and security’, ‘to develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples’ and also ’solving international problems of an economic, social, cultural, or humanitarian character, and promoting and encouraging respect for human rights’.
The UN Charter also established the Economic and Social Council (ECOSOC), one of the 6 main organs of the United Nations. In 1947 ECOSOC set up 5 regional commissions, one of which was The United Nations Economic Commission for Europe (UNECE). It was the UNECE that would go on to develop what is now known as the Aarhus Convention.
The Aarhus Convention entered into force in October 2001 and the EU has been Party to the Convention since May 2005. During the time between the establishment of the UN and the Aarhus Convention being ratified, there was a shift in thinking towards the idea that human rights and the protection of the environment were inextricable. In Rio de Janeiro in 1992, at the ‘Earth Summit’, this led to the Rio Declaration on Environment and Development, of which Principle 10 stated, ‘environmental issues are best handled with the participation of all concerned citizens’. This meant that, ‘each individual shall have appropriate access to information’ and that they should be able to ‘participate in decision-making’ and have ‘effective access’ to justice.
The Rio Declaration formed the foundation for the Aarhus Convention. Principle 10 was enshrined in the Convention and is really what the Convention is about. The Aarhus Convention, or to give it it’s full name, The UNECE Convention on Access to Information, Public Participation in Decision Making and Access to Justice in Environmental Matters provides for 3 core rights. These are (i) the right to information (ii) the right to participate (iii) the right to justice. Parties to the convention are subject to ongoing reviews by the Aarhus Convention Compliance Committee to ensure that the Convention remains effective. Non-compliance allegations can be made by NGOs, individuals and also other Parties. Interpretation of the Convention is to be carried out in such a way that it is in keeping with development and innovation.

The Right to Information
The first right is the right to access material on the environment. Mainly these obligations are directed towards public authorities such as governments and legal persons with public responsibilities. The individual requesting the information need not explain their reasons nor be a citizen/resident of the country of which they make their request. There are time limits for providing the requested information and processes to follow when the required information is not held by those from whom it is requested. There are also obligations to provide information to the public without request, meaning public bodies should be actively disseminating certain material.

The Right to Participate
Parties must provide for early and effective public participation in decisions relating to the environment. Decisions include permitting certain activities in planning, as well as programmes and policies insofar as they relate to the environment. Parties must genuinely promote public participation during the creation of any legislation or regulation that may have a significant effect on the environment.

Access to Justice
Equitable and timely judicial or administrative review procedures must be available to challenge the legality of a particular decision, an insufficient response to a request for information as well as acts or omissions by public authorities.

By providing standards for public authorities in respect of accountability, transparency and the participation of the individual the Aarhus Convention should play a role in furthering the democratic ideals of its signatories. Implementation of the Convention is monitored very closely and is not without its problems. In 2017 documents were released by both the European Commission and the UNECE Compliance Committee which highlight how access to justice was not being guaranteed by the Aarhus Convention, particularly in relation to NGOs. The EC found that giving legal standing to NGOs in some situations would contravene the constitutional principles of the EU. This will not be reviewed again until the next meeting of the Parties which is in 2021.