Environmental Rights of the Public: The Aarhus Convention

by Lucia Rua

The Aarhus Convention is an international treaty promoting environmental democracy. It was adopted in 1998 in the Danish city of Aarhus, within the framework of the United Nations Economic Commission for Europe (UNECE) [1]. The Convention regulates access to information, public participation in decision-making and access to justice in environmental matters [2]. Today, there are 47 parties in the Convention: 46 countries and the European Union[3]. 

The three pillars of the Aarhus Convention

The public authorities (at the national, regional or local level) from the 47 parties must enforce the following environmental rights [1,2]:

1. Access to environmental information

The public has the right to request and receive environmental information (e.g., the state of the air and atmosphere, water, soil, land, biological diversity, human health and safety) from the public authorities. But what is the exact meaning of ‘public’ in this case? The public means one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organizations and groups, such as NGOs.

2. Access to governmental decision-making

In specific activities, only the public concerned has access to decision-making. The ‘public concerned’ refers to the public affected, or likely to be affected, by, or having an interest in, environmental decision-making. For example, NGOs promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

On the other hand, the public in general can access decision-making in plans, programmes, policies, executive regulations, and generally applicable normative instruments. 

3. Access to the courts

If the two previous rights have not been respected by the public authorities, there is the right of access to the courts. The public in general can go to the courts to enforce their right on access to information. Nevertheless, only the public concerned can enforce the right to access decision-making on specific activities. Moreover, the members of the public, meeting the criteria of national law, can access the courts to enforce environmental law.

National courts of member states, and the Court of Justice of the European Union, have to apply the Aarhus Convention, leading to binding and enforceable decisions. On the other hand, citizens and NGOs may also address the Compliance Committee of the Aarhus Convention. The decisions of the Compliance Committee are not binding, however, but may serve as important influence.

Thus, the Aarhus Convention enables the public to take direct legal action regarding environmental matters. Professor Christopher D. Stone argues, in Should Trees Have Standing? Law, Morality, and the Environment, that natural objects (e.g., oceans, forests, rivers) should have legal rights [4]. In his opinion, although natural objects cannot speak, they should be represented by guardians that protect their rights in legal affairs. The Aarhus Convention gives an important position to environmental NGOs and citizens as guardians of nature. Indeed, the Convention contributes to public awareness of environmental problems, gives the public the opportunity to express its concerns, and enables public authorities to take due account of such concerns [2]. Moreover, the Aarhus Convention also includes the rights to live in a healthy environment for future generations [2].

Nevertheless, it should be stated that there are challenges when implementing the Aarhus Convention in some countries. For instance, some authors indicated that the Convention will not be truly implemented until openness, transparency and accountability in environmental decision-making become everyday habits [5].

References

[1] European Commission, n.d., ‘Aarhus Convention’,  URL:  https://ec.europa.eu/environment/aarhus/, accessed on 10/06/2021.
[2] UNECE, 1998, ‘Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters’, URL: https://unece.org/environment-policy/public-participation/aarhus-convention/text, accessed on 10/06/2021.
[3] UNECE, n.d., ‘Map of the parties’, URL: https://unece.org/environment-policy/public-participation/aarhus-convention/map-parties, accessed on 10/06/2021.
[4] Christopher D. Stone, 2017, Should trees have standing? Law, Morality and the Environment (pp. 283-334), Routledge.[5] Tatiana Zaharchenko and Gretta Goldenman, 2004, ‘Accountability in governance: The challenge of implementing the Aarhus Convention in Eastern Europe and Central Asia’, International Environmental Agreements, 4(3), 229-251.