Tag Archives: Access to information

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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Human Rights and the Environment – Background Paper for the 13th Informal ASEM Seminar on Human Rights (BW Boer and A Boyle)

Authors

Ben W Boer and Alan Boyle

Keywords

Background paper, human rights and environment, interaction, crosscutting issues, sustainable development, access to information, participatory rights, actors, institutions, governance and climate change, Europe, Asia

Abstract

This Background Paper was prepared for the Asia-Europe Foundation‘s 13th Informal ASEM Seminar on Human Rights which took place in October 2013 in Copenhagen. It gives an overview of the topic of human rights and the environment and explores the interaction between these two fields. A number of crosscutting issues are identified. A fundamental set of questions concerns the relationship between human rights concepts and the need to protect and conserve the environment at international, regional and national levels. While many of the issues raised are presented from a legal perspective, clearly, a number of approaches can be taken to the interaction between human rights and the environment, for example from the point of view of ecology, political science, international relations, economics and sociology. The paper addresses four themes with examples drawn from the European and Asian regions: Sustainable Development, Environment and Human Rights; Access to Information, Participatory Rights and Access to Justice; Actors, Institutions and Governance and Climate Change and Human Rights Implications. The paper argues that while neither the European Union (EU) countries nor countries in the Asian region are by any means uniform in the development of human rights and environmental protection at a national level, there is a good deal more coherence in terms of a regional approach in Europe compared with Asia. In relation to human rights, this is in part because of the establishment of the European Court of Human Rights. In Asia, apart from the Intergovernmental Commission on Human Rights established by the Association of Southeast Asian Nations in 2009, no such regional structures exist. In the environmental realm, there is a reasonable amount of consistency in the development of environmental law across the European Union, because of the directives and regulations issued by the European Parliament and the oversight of the European Commission. In Asia, there is little capacity for region-wide or sub-region-wide environmental law-making, with the exception of the ASEAN member states. Differing social, cultural, political and economic circumstances in the European and Asian regions are the drivers of these distinctions.

Citation

Human Rights and the Environment – Background Paper for the 13th Informal ASEM Seminar on Human Rights (February 10, 2014). Sydney Law School Research Paper No. 14/14.

Paper

Human Rights and the Environment – Background Paper for the 13th Informal ASEM Seminar on Human Rights

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Access to environmental information in Ireland: implementation challenges (A. Ryall)

Author

Aine Ryall

Keywords

Access to information, EU law, Environmental information, Implementation, Ireland, Legal professional privilege, Public authorities

Abstract

Examines the implementation of Directive 2003/4 in Ireland under the European Communities (Access to Information on the Environment) Regulations 2007 as a case study of the challenges it poses. Considers the scope of the discretion it affords to Member States. Reviews the decision-making of the Irish Commissioner for Environmental Information, including on: (1) the definitions of “environmental information” and “public authority”; (2) the duty of public authorities to create records; (3) charges; and (4) legal professional privilege. Comments on the scope of the Commissioner’s jurisdiction.

Citation

(2011) 23(1) Journal of Environmental Law 45-71

Paper

Access to environmental information in Ireland : implementation challenges

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Access to environmental information (V. Edwards)

Author

Vanessa Edwards

Keywords

Environment, Administrative law, Agriculture, European Union,  Access to information, EU law, Environmental information, Plant protection products, Trade secrets

Abstract

Reports on the European Court of Justice ruling in Stichting Natuur en Milieu v College voor de Toelating van Gewasbeschermingsmiddelen en Biociden (formerly College voor de Toelating van Bestrijdingsmiddelen) (C-266/09) on whether Directive 2003/4 was applicable to a request for information submitted as part of an application for a plant protection product authorisation since it was in force on the date that the request was refused. Considers whether the information requested was “environmental information” within the meaning of art.2 of the Directive. Assesses whether it was a trade secret.

Citation

(2011) 23(1) Journal of Environmental Law 143-144

Paper

Access to environmental information

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Environmental Protection and Human Rights (Donald K Anton and Dinah L Shelton)

Author(s)

Donald K Anton and Dinah Shelton

Keywords

Environmental protection, human rights, formalisation into law, procedures, techniques, case law, right to life, right to public participation, access to information, right to health, human right to a clean environment

Abstract

With unique scholarly analysis and practical discussion, this book provides a comprehensive introduction to the relationship between environmental protection and human rights being formalized into law in many legal systems. This book instructs on environmental techniques and procedures that assist in the protection of human rights. The text provides cogent guidance on a growing international jurisprudence on the promotion and protection of human rights in relation to the environment that has been developed by international and regional human rights bodies and tribunals. It explores a rich body of case law that continues to develop within states on the environmental dimension of the rights to life, to health, and to public participation and access to information. Five compelling contemporary case studies are included that implicate human rights and the environment, ranging from large dam projects to the creation of a new human right to a clean environment.

Citation

D Anton and D Shelton, Environmental Protection and Human Rights (Cambridge, CUP, 2011)

Publication

Environmental Protection and Human Rights

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