Category Archives: Access to Justice

The Non-Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms (C. Pitea)

Author

Cesare Pitea

Keywords

public participation, decision-making, access to justice, access to information, the Aarhus Convention, international environmental law

Extract

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.

Citation

(2006) Italian Yearbook of International Law 16 pp.85-116

Paper

The Non-Compliance Procedure of the Aarhus Convention: Between Environmental and Human Rights Control Mechanisms

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Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity (E. Morgera et al.)

Author(s)

Elisa Morgera, Elsa Tsioumani, Matthias Buck

Keywords

access, benefit-sharing, environmental sustainability, sustainable development, international law, human rights, intellectual property rights, health, food, oceans

Abstract

The Nagoya Protocol on access and benefit-sharing is an international environmental agreement that concerns environmental sustainability, other sustainable development issues and equity. It addresses a complex subject matter that affects a range of research, development and commercial activities and is relevant to different areas of international law such as human rights, intellectual property rights, health, food and oceans.

Unraveling the Nagoya Protocol identifies textual, contextual and systemic interpretative questions and suggests solutions that aim to give a coherent and balanced meaning to the text of the Protocol. Offering a systematic discussion of the Protocol’s legal innovations against the background of general international law, this commentary aims to be of use to international biodiversity law scholars and practitioners, as well as to international lawyers that approach access and benefit-sharing for the first time

Citation

E. Morgera et al. 2014. Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity. Martinus Nijhoff.

Paper

Unraveling the Nagoya Protocol: A Commentary on the Nagoya Protocol on Access and Benefit-sharing to the Convention on Biological Diversity

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Commentary on Article 37 of the EU Charter of Fundamental Rights – Environmental Protection (M. Marin-Duran and E. Morgera)

Author(s)

Gracia Marin-Duran and Elisa Morgera

Keywords

EU Charter, environmental integration, environmental rights, access to justice, international environmental law

Abstract

This paper analyzes Article 37 (Environmental Protection) of the EU Charter of Fundamental Rights from the viewpoints of EU law and international environmental law. It explores the reasons for the lack of any individually justifiable environmental right of a substantive or procedural character under the Charter. The paper then investigates the potential of Article 37 to influence the interpretation and application of EU law and of other Charter provisions in the light of the EU Treaty requirement of environmental integration.

Citation

(2014) Peers, Hervey, Kenner and Ward, eds. Commentary on the EU Charter of Fundamental Rights (Hart) pp. 983 – 1003.

Paper

Commentary on Article 37 of the EU Charter of Fundamental Rights – Environmental Protection

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Research Handbook on Human Rights and the Environment (A. Grear and L.J. Kotzé eds)

Editor

Anna Grear and Louis J. Kotzé

Keywords

Human rights, environment, epistemology, Ecological Subjectivities, natural law, United Nations, Australasia, New Zealand, environmental justice, Inter-American Court of Human Rights, Aarhus, climate displacement, North-South, ecosystem services

Abstract

Bringing together leading international scholars in the field, this authoritative Handbook combines critical and doctrinal scholarship to illuminate some of the challenging tensions in the legal relationships between humans and the environment, and human rights and environment law.

The accomplished contributors provide researchers and students with a rich source of reflection and engagement with the topic. Split into five parts, the book covers epistemologies, core values and closures, constitutionalisms, universalisms and regionalisms, with a final concluding section exploring major challenges and alternative futures.

An essential resource for students and scholars of human rights law, the volume will also be of significant interest to those in the fields of environmental and constitutional law.

Citation

(2015) Edward Elgar

Book

Research Handbook on Human Rights and the Environment

 

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Procedural Rights as a Crucial Tool to Combat Climate Change (S. Kravchenko)

Author(s)

Svitlana Kravchenko

Keywords

human rights, procedural rights, combating climate change, freedom of expression, right to access information, right to participate in decision-making, access to justice, transparency, indigenous people, jurisprudence, human rights treaties, multilateral environmental agreements, civil society participation

Abstract

This Article will discuss how a subset of human rights – procedural rights – can play an important role in limiting climate change. These include freedom of expression and the right to seek and receive information, the right to participate in decision-making and the right of access to justice. States must address climate change through a transparent process of giving the public full and complete information during the early stages of decision-making in climate change related issues. States must also give the public a voice by allowing participation by all affected communities, including indigenous peoples.

In Part II, this Article will first discuss how freedom of expression and access to information are embedded in human rights treaties, multilateral environmental agreements, national constitutions and information laws, and in the jurisprudence of regional human rights and domestic courts, as well as national reporting and how these rights can be used for combating climate change. Part II will also briefly evaluate the right of investors to disclosure of climate risk information and the role of Securities and Exchange Commission (SEC) in light of the agency’s new interpretive guidance on existing public company disclosure requirements relating to the issue of climate change.

In Part III, this Article will discuss public participation in decision-making related to climate change, first exploring the established legal framework for public participation in “soft law” MEAs, and in environmental impact assessments (EIAs), including the transboundary context. Part III concludes by providing case examples how procedural rights have been used to combat climate change. Finally, Part IV will evaluate the role of civil society participation in the negotiation of an international treaty at the United Nations Framework Convention on Climate Change (UNFCCC) Fifteenth Session of the Conference of the Parties in Copenhagen, as well as the author’s participation in the Working Group on Human Rights and Climate Change.

Citation

(2010) 38 (3) Georgia Journal of International and Comparative Law 613

Paper

Procedural Rights as a Crucial Tool to Combat Climate Change

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