public participation, decision-making, access to justice, access to information, the Aarhus Convention, international environmental law
When the Parties to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (“the Aarhus Convention” or “the Convention”), at their first meeting in Lucca (Italy) in 2002, adopted Decision I/7 on review of compliance, establishing a Compliance Committee (the Committee), it was immediately clear that something unusual and peculiar was taking place in international environmental law. Decision I/7 has its legal basis in Article 15 of the Convention, which provides that:
“The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention”.
This language makes an evident, although implicit, reference to the practice of setting up non-compliance procedures (NCPs) under multilateral environmental agreements (MEAs), along the lines traced by that established under the Montreal Protocol and subsequently followed under several other MEAs. The link to this model is indeed reflected in the institutional and procedural features of the mechanism, as well as in the language used in the Decision, in that it avoids any wording possibly suggesting judicial or confrontational attitudes. Therefore, expressions such as “non-compliance”, “submission” or “communication”, and “Party concerned” are used instead of the words “breach”, “application” or “defendant”.
At the same time, some aspects of the Aarhus Convention NCP are tremendously innovative. The Compliance Committee is conceived as a body of experts, rather then of Parties’ representatives, and non-State actors (“the public”, in the language of the Convention) are provided with a wide array of entitlements, including that of making communications.7 These features, unusual for NCPs and akin to those of quasi-judicial procedures under human rights treaties, have prompted strong criticism. In particular the United States, a member of UNECE, which is not a Party, nor a signatory to the Convention, requested and obtained to have a statement appended to the Report of the rst Meeting of the Parties (MOP), in which several aspects of the procedure were highlighted as not being of a “non-confrontational, non-judicial and consultative nature”, as required by Article 15. The idea underlying this position is that the peculiarities of the Aarhus NCP have changed the legal nature of procedure, into a quasi-judicial and confrontational procedure similar to those existing under human rights treaties. Thus the legitimacy of the procedure was questioned and its value as a precedent denied. This article aims at verifying whether the functioning in practice of the mechanism, in the light of the extensive practice developed by the Committee in its first four years of life, justifies such a view.
(2006) Italian Yearbook of International Law 16 pp.85-116