Emily Barritt and Päivi Leino-Sandberg

Connecting the aims of environmental protection with those of human rights, the
UNECE Aarhus Convention is an ambitious piece of international law. Together, with its sister treaty, the Escazú Agreement, (see GNHRE’s blog symposium), it gives life to the Rio Declaration, Principle 10 promise that:

Environmental issues are best handled with participation of all concerned citizens…

Whilst the Aarhus Convention is ostensibly designed to protect the three procedural rights of access to environmental information, public participation in environmental decision-making and access to justice in environmental matters, it is also committed to realizing ‘the right of present and future generations to live in an environment adequate to human health and well-being’ (art 1). The Convention was signed in 1998, long before the UN General Assembly started making resolutions on the subject.

Alongside this very early international commitment to a right to a healthy environment, the Convention has a remarkable and robust compliance architecture: the hard-working Aarhus Convention Compliance Committee (ACCC) and the Rapid Response Mechanism for Environmental Defenders. Together, these bodies help maintain the dynamism of the Convention and ensure that its rights are respected and promoted by its Parties.

Disturbingly, both were under threat at the 8th Aarhus Convention Meeting of the Parties in Geneva, held between 17-19 November. In this blogpost, we outline the Convention’s unique compliance architecture and some of the moves made by the EU and its Members States (represented by the European Commission) and the United Kingdom, to undermine it, potentially jeopardizing the Convention’s fundamental commitments to accountability, transparency and democracy.

Compliance Architecture of the Convention

The ACCC, established by Decision I/7, is a ‘non-confrontational, non-judicial and consultative’ committee, made up of legal experts serving in a personal and voluntary capacity. Although the findings of the ACCC are not directly legally binding, once the MOP endorses the ACCC’s findings, it represents a ‘consensus of the States Parties on how to interpret treaty provisions’. Consequently, the findings become relevant to how the Convention should be interpreted, in line with Article 31(1)(3)(a) and (b) of the Vienna Convention on the Law of Treaties. The dialogic nature of its process means that that the ACCC has been successful in coaxing Parties into compliance with various aspects of the Convention. One example is the EU’s decision to update the so-called Aarhus Regulation in 2021 to ensure compliance with the access to justice provisions of the Convention, which had been subject to the ACCC’s critical findings.

Complementing the compliance role of the ACCC is the Special Rapporteur on Environmental Defenders, a post held by Michel Forst, a former UN Special Rapporteur on the Situation of Human Rights Defenders. This role was created by Decision VII/9 of the MOP to provide a Rapid Response Mechanism for the protection of environmental defenders in response to increasingly worrying reports to the ACCC that Parties were not in compliance with article 3(8) of the Convention which states that:

Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement.

A particularly chilling example of these failings included the murder of two Romanian forest rangers responding to incidents of illegal logging in 2019.

The mandate of the Special Rapporteur ‘is to take measures to protect any person experiencing, or at imminent threat of, persecution, penalization or harassment for seeking to exercise their rights under the Aarhus Convention’. He can do this by writing diplomatic communications, issuing reports and press releases, or issuing a protection measure, which requires the Party concerned to act to halt any further persecution, harassment or penalization.

Since taking on the role, Forst has been very active, witnessing and reporting on incidents of non-compliance with article 3(8), responding to complaints from members of the public, drafting position papers, writing diplomatic communications to Parties, and most recently, making an official referral to the ACCC and publishing guidelines on how Parties should respond to acts of civil disobedience.

The ACCC and the Special Rapporteur are chiefly about facilitating better compliance, helping Parties to understand and more faithfully implement the Convention’s provisions. But they are also about accountability. The ACCC and Special Rapporteur shine a light on the actions of Parties. As the events at the MOP show, some Parties were not happy with what this light reveals and sought to dim the power of these mechanisms.  

Events at the MOP

At the 8th MOP in Geneva, a series of unprecedented events marred the proceedings. First, the EU introduced substantial changes to the draft of Decision VIII/9 on promoting the effective protection of environmental defenders, at midnight before the opening of the meeting. Proposed changes to draft decisions should have been made by 27 October, 3 weeks before the MOP. This timeline was critical to allowing all Parties to the Convention sufficient time to appropriately consider Convention documents. Given the EUs tardiness, it was necessary to set up a contact group during the MOP to consider the EU proposal.

For example, the EU requested the removal of the reference to the right of present and future generations to an environment adequate to human health and well-being from art 7(e), as well as the removal of reference to ‘protecting environmental defenders from any use of force against them during peaceful environmental protest’ from art 8, preferring instead the language of ‘reasonable and proportionate’ force in relation to peaceful protesters. Given the magnitude of some of these amendments, the last-minute timing of the EU’s proposal meant that not all Parties were able to fully evaluate the changes.

Then, the United Kingdom, with the support of the EU and its Members States, attempted to postpone any discussion of the findings of the ACC to the next MOP, scheduled for 2029. The argument being that they had not had sufficient time to consider the findings. However, discussion on and endorsement of the findings had happened according to the same timeline for previous six MOPs. Therefore, the attempted delay would have amounted to a retrospective change of procedural rules. As far as the EU is concerned, it is also difficult to understand why this was necessary – the mandate to approve the critical findings concerning the EU had been approved in the Council in good time before the MOP.

When confronted with the news of this proposed move, the Chair of the ACCC, Professor Áine Ryall told the Parties that: ‘We have played by your rules. We complied with all of the timeframes at enormous cost, to the Committee and to the Secretariat.’ She warned the parties that they should ‘be careful what you wish for’ and reminded them that:

The Compliance Committee …  is seen as a beacon and a leading light on the rule of law and democracy, something that I know is precious to all of the Parties here.   And for you then to undermine the integrity of your own compliance mechanism, that sends an incredibly negative signal beyond these four walls.

Following these remarks, Dame Eleanor Sharpston, member of the ACCC and former Advocate General of the Court of Justice of the European Union said that:

You the parties made the rules, the rules have applied for the last six meetings, and the Compliance Committee has played scrupulously by the rules laid down. None of the documents were submitted out of time. You are the masters of the rules of procedure, but on an ordinary view of the rule of the law, you change the rules for the future, you do not retrofit them…

After these masterful and measured remarks, the EU changed its position. The UK, however, remained unmoved, seemingly impervious to any reminders about the basic tenets of the rule of law. Disappointingly, they refused to endorse any of the findings claiming that to do so would amount to ‘constitutional upheaval.’

Third, the MOP was expected to elect the members of the ACCC. Members ‘serve in their personal capacity’ and are to be ‘of high moral character and recognized competence in the fields to which the Convention relates, including persons having legal experience’.

Since the Committee’s inception, the term ‘in their personal capacity’ has been understood to exclude serving members of the executive branch of a party to the Convention—independence is required in terms of fact and perception. In the past, when a serving member of the ACCC, Eva Kruzikova was appointed to a permanent government position, she resigned.

Despite this established practice, the EU proposed appointing an official of the European Commission to the Committee. Glossing over the requirement of the EU staff regulations that an EU official must always “carry out his duties and conduct himself solely with the interests of the Union in mind” and “in keeping with his duty of loyalty to the Union”, the Commission scoffed at any suggestion that their preferred candidate would undermine the independence and integrity of the ACCC. Justifying their choice with EU exceptionalism, they argued that the Commission should not be compared to a national government given its task as the independent guardian of legality and observance of EU law. Faced with strong resistance from NGOs and the promised resignation of the Chair (and possibly other members) of the ACCC, the Commission did withdraw their candidate.

Finally, and most critically, the Aarhus Convention has been consistently and deliberately underfunded. As the secretariat reported at the MOP, there remains $20,000 [€17,278] in the trust fund of the convention for 2026. Despite this dire financial forecast, the EU tabled proposals on funding, effectively freezing the machinery of the Convention.

Fear of the Light: the need for continual defence

As the recent MOP to the Aarhus Convention has shown, the struggle to keep transparency and accountability from dimming remains very much alive. One way to avoid external human rights scrutiny is to never join a human rights treaty — just look at the EU’s foot-dragging with the European Convention on Human Rights. But once you are in, exiting comes at a political cost. In this case, rather than openly distancing themselves from the Aarhus regime, the EU and the UK  appeared to pursue measures that would have weakened it from within. Whether motivated by institutional defensiveness, divergent views on independence, or genuine concerns about procedural design, their interventions risked blunting the Convention’s core safeguards. The episode ultimately underscores a broader lesson: that openness, participation, and scrutiny are never settled achievements, but values that demand continual defence even from those who helped craft the system meant to uphold them.