Category Archives: Public Participation

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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The Human Right to a Clean, Balanced and Protected Environment (J. Symonides)

Author

Janusz Symonides

Keywords

Human Right to a Healthy Environment, International Law, Domestic Law, Education, Participation, Recourse and Sanctions, International Protection

Excerpt

Since the December 1968 General Assembly’s resolution in which for the first time the United Nations admitted the linkage between environmental protection and human rights and expressed concern that environmental changes could have various (negative) implications for basic human rights, this question has been vividly discussed on many occasions. […]

Today nobody can put in doubt this intimate linkage, as well as the serious impact of the environmental protection on human rights. However, the following question arises: can we already speak about the existence of a human right to a clean, balanced and protected environment? And if the answer is positive, what are the conditions for its implementation?

Citation

(1992) 20 The International Journal of Legal Information 24

Paper

The Human Right to a Clean, Balanced and Protected Environment

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Human Rights, Human Development, and the Right to a Healthy Environment: An Analytical Framework (M.J. Rogge)

Author(s)

Malcom James Rogge

Keywords

Human Rights, Development, Human Right to a Healthy Environment, Public Participation,

Abstract

This paper provides a framework for understanding the profound interrelationship of human rights, human development, and the right to a healthy environment. The author argues that concerted public action in environmental affairs is necessary for true advancement in human development, and for the broad attainment of the whole range of human rights in society. Human dignity consistent with the realization of human rights is only possible where steps are taken to protect the environments on which people depend for their basic needs. The author links the normative position implied in human rights theory to the practical and prescriptive ideas of human development. In conclusion, the author argues that improving environmental conditions goes hand in hand with improving levels of human development and in promoting human rights.

Citation

(2001) 22 Canadian Journal of Development Studies 33-50

Paper

Human Rights, Human Development, and the Right to a Healthy Environment: An Analytical Framework

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David Bollier, Think Like a Commoner: A Short Introduction to the Life of the Commons – Book Review (A. Grear)

Author

Anna Grear

Keywords

business as usual, collective commons, commoners, digital commons, dispossession, market, neoliberal ideology, norms, property rights, urban food production, values

Abstract

At a time when there is widespread disillusionment with ‘business as usual’, attention is turning, thanks in part to the high-profile publication of books such as Jeremy Rifkin’s, The Zero Marginal Cost Society, towards the notion of ‘collective commons’ as an
alternative paradigm to neoliberal free-market economics.

David Bollier’s book broadens the focus to identify the centrality of commons (and ‘commoning’) to an epochal shift in consciousness now emergent across the world. Such scholarship suggests that a fundamentally different mode of being appears to be surfacing from beneath neoliberal market hegemony and the assumptions of ‘business as usual’ – presenting a renaissance of something much more ancient in the light of which the free market economy and the rise of homo economicus stand revealed as a historical anomaly.

This book provides a short, engaging and important introduction to the commons and to the dynamics of commoning, while unsettling important mainstream assumptions underlying life in the ‘real world’ of neoliberal globalization and the duopoly of the state-market complex.

Citation

(2014) 5/2 Journal of Human Rights and the Environment 213-9

Paper

David Bollier, Think Like a Commoner – Book Review

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The Right to a Healthy Environment, Human Rights and Sustainable Development (S. Giorgetta)

Author(s)

Sueli Giorgetta

Keywords

sustainable development, environmental preservation, rights of present and future generations, human rights, right to a healthy environment, international law, procedural rights, public participation, human rights law, international law

Abstract

The concept of sustainable development is presented as a solution able to cope with development needs and the preservation of the environment, protecting it for present and future generations. The right to a healthy environment may be part of existing international law being implemented through human rights instruments. The procedural aspect of the right to a healthy environment embodies the right to information, the right to participate and the right to effective remedies. Participation in the decision-making process and available and effective means of redress are essential features of the right to a healthy environment. Expressed in the field of human rights law, these principles convey the notions that citizens are entitle to participate. The Aarhus Convention links environmental protection and human rights norms and is the first international legally binding instrument elaborating on Principle 10 of the Rio Declaration and recognizing the right to a healthy environment.

Citation

(2002) 2 International Environmental Agreements: Politics, Law and Economics 173

Paper

The Right to a Healthy Environment, Human Rights and Sustainable
Development

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