Tag Archives: decision-making

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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Keynote Address: Indigenous Peoples and Global Climate Change: Intercultural Models of Climate Equality (R. Tsosie)

Author(s)

Rebecca Tsosie

Keywords

climate change, United States, tribal governance, human rights, Native Nations, development, environmental policy, energy development, decision-making

Abstract

This essay discusses the place of indigenous peoples within the politics of climate change. In the United States, contemporary policymakers understand federally-recognized Indian tribes as “domestic dependent nations.” In that capacity, tribal governments have the power to address many environmental issues arising on their reservation lands and impacting their members. At the level of international policy, Native Nations are designated as “indigenous peoples,” with a distinctive set of human rights related to their unique identity as land-based communities with longstanding cultural connections to their environments. Sometimes those two identities operate consistently, allowing Native Nations to preclude forms of energy development that threaten their lands, communities, and cultures, as the Navajo Nation did when it enacted the Dine Natural Resources Protection Act of 2005, which banned uranium mining within Navajo Indian Country. Sometimes, however, the identities may be in tension. For example, coal and oil extraction may benefit the economic interests of Native Nations which hold ownership interests in these resources, but may jeopardize the subsistence lifeways of other Native peoples who depend upon the integrity of their lands and waters, as well as the plants, animals and fish in those natural environments. In the era of climate change, these tensions are becoming particularly apparent, forcing Native peoples and policymakers to make difficult decisions about the optimal energy policies to guide the future. This essay compares the predominant model of decision-making, which uses a utilitarian cost-benefit analysis to construct the optimal policy to serve the interests of national and tribal governments in the present day, with the type of long-range thinking used by many land-based indigenous communities to promote sustainable use of lands and resources for several generations. The essay concludes that the current challenge of climate change poses an opportunity to transform our ways of thinking about environmental policy and energy development.

Citation

(2010) Journal of Environmental Law and Litigation 25 (1)

Paper

Keynote Address : Indigenous Peoples and Global Climate Change: Intercultural Models of Climate Equity

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Is Access to Environmental Information a Fundamental Human Right? (S. Kravchenko)

Author(s)

Svitlana Kravchenko

Keywords

environmental information, human rights, right of access to information, democracy, disclosure, decision-making

Abstract

Can access to information held by the State be seen as a fundamental right of the individual and a crucial component of democracy? What about access to environmental information? This Article attempts to answer these questions by exploring international treaties and agreements, national constitutions, and national information laws. The Article starts by providing some background and history on the issue of public access to government records. It analyzes the extent of the right of access to information, restrictions on access to information, procedures for obtaining information from governmental agencies, and remedies for violating the right of access to information. It also identifies problems that frequently arise in the field of public access to information and makes recommendations for promoting public access to environmental information, based on examples where such practices are already in place. Access to information allows the public to be aware of governmental decisions that can impact the environment and individual lives. It also allows the public to participate in criticizing, and thereby improving governmental decision-making. This ultimately can help to prevent harmful activities that can cause significant damage to the health of people and the environment. The Article contends that meaningful access to information must include these key principles:

• Maximum disclosure and transparency of governmental files should exist;

• Any exceptions for access to information should be narrowly drawn, with only limited and justifiable exemptions;

• Information should be provided free of charge or at reasonable cost; and

• Administrative or judicial remedies for denial of access to information should be available.

Citation

(2009) 11 Oregon Review of International Law 227

Paper

Is Access to Environmental Information a Fundamental Human Right? 

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Public Participation and Democracy in Practice—Aarhus Convention… (B. Toth)

Author

Bende Toth

Keywords

Empowerment, private citizens, environmental decision-making, access to information, public fora, Aarhus Convention, UNECE, NGOs

Abstract

In recent years, a number of national and international legal developments have led to the implementation of procedures to ensure the empowerment of private citizens in environmental decision-making processes. In practice, this has meant increased access to information affecting decision-making, the establishment of public fora for discussion, and some broadening of legal standing requirements for individuals and citizens’ groups challenging actions based on environmental concerns. These three concepts-public participation, access to information, and access to justice-are the three main pillars of the Aarhus Convention, which entered into force in October of 2001, and is administered by the United Nations Economic Commission for Europe (UNECE). In addition to the three pillars, the most notable feature of the Convention is the key role carved out for non-governmental organizations (NGOs), which feature prominently in the Convention’s conception of environmental democracy. The Convention has been signed and ratified by more than forty countries from Europe and Eurasia, and parallel principles are being advocated and applied in a variety of other settings.

The Aarhus principles grew out of the Rio Declaration’s Principle 10 and the United Nations’ Agenda 21 program, both of which underscored the importance of the role of the public and the NGO sector in environmental decision-making.

In part I, this paper will introduce how an empowered public can help address various difficulties in confronting environmental issues. This section will emphasize general arguments for procedural rights for the public.

Part II will offer an in-depth look at the three pillars, trace similarities in the United States’ federal law, and also look at European Union (EU) implementation efforts at the MemberState level through the directive process. A secondary goal of this section will be to assuage some critics’ fears about the Aarhus Convention. The section will also look to various Aarhus Convention Compliance Committee decisions, so as to distill a sense of the Committee’s interpretation of the Convention. In reviewing the advisory “case law” of the Compliance Committee, the central guiding principle, in line with the goals of the Convention, has been to guarantee a modicum of public participation rights in line with basic procedural rights. The Committee has also hewn a course in line with both the letter and spirit of the Convention, balancing deference to the signatory parties with the broader goals of the three pillars.

Part III will look at the special rights accorded to the NGO sector by the Convention and discuss the benefits of empowering the NGO sector in this manner. The section also addresses key elements of the Convention’s compliance mechanisms.

Part IV will focus the implications of the Aarhus convention for the signatories, especially in the former Soviet satellite nations, and includes lessons gleaned from implementation efforts there. The section will also advocate for the continued adoption of Aarhus principles in the developing world.

Citation

(2010) 30 Journal of Land, Resources, and Environmental Law 295

Paper

Public Participation and Democracy in Practice—Aarhus Convention Principles as Democratic InstitutionBuilding in the Developing World

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