Estrategias de Backups

This Chapter will review the evolution, principles and the pillars of the Aarhus Convention and its implementation in the UK. It will give a short overview of the process which led to signing the Convention and a particular attention will be paid to the principles found in the preamble. Each pillar will be reviewed in detail. The author will show that through its principles and structure the Convention is an instrument, which can support the attainment of environmental justice. However, it is neither explicitly nor implicitly restricted to environmental justice claims. It may as well serve the purely environmental objectives as well as serve those who oppose the environmental protection in favour of economic development. The Chapter will also provide a short overview of the implementation of each pillar in the UK. The Convention is effective in the UK through a number of EU directives. The compliance is also satisfied through a number of soft law provisions such as an expanded availability of information regarding each pillar in the country. Given the overall objectives of the thesis particular attention will be paid to the implementation of the third pillar.

Environment for Europe process as a catalyst for the Aarhus Convention

This section focuses on the Environment for Europe (EfU) process, though, it is widely recognised³⁷⁵ that the origins of the Aarhus Convention can be traced back to the

375 Casey- Lefkowitz S, Stec S and Jendroska J, The Aarhus Convention: An Implementation Guide (United Nations 2000); Jeremy Wates, (Secretary to the Aarhus Convention) ‘The Aarhus Convention: A New International Framework Regulating Public Access to Environmental Information’ (discussion paper) presented at: INFOTERRA 2000 – Global Conference on Access to Environmental Information, Dublin, 11-15 September 2000 <http://www.unep.org/infoterra/infoterra2000/Wates-rev.pdf> accessed 28 March 2009

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Principle 10³⁷⁶ of the Rio Declaration on Environment and Development:

"Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided."³⁷⁷

The EfU process was created by the UN Economic Commission for Europe (UNECE), a subsidiary body of the UN Economic and Social Council. The UNECE itself was established in 1947 with the view to promoting “pan-European economic integration”³⁷⁸. It consists of 56 Member States, which include European, Asian states as well as The United States of America and Canada.³⁷⁹

The EfU process commenced with a conference that took place at Dobris Castle, near Prague in Czechoslovakia³⁸⁰ in 1991. This was followed by five additional ministerial conferences: Lucerne (Switzerland) in 1993; Sofia (Bulgaria) 1995; Aarhus (Denmark) in 1998; Kiev (Ukraine) in 2003; and Belgrade (Serbia) in 2007.³⁸¹ Whereas the first

376 It should be also recognised that the Principle 22 supports participation of indigenous people in achieving sustainable development by recognising their attachment to land, local knowledge and

traditions. Interestingly, the Aarhus Convention does not mention ‘indigenous people’ though they would fall under the umbrella of the ‘public’

377 ‘Rio Declaration on Environment and Development’ adopted during the United Nations Conference on Environment and Development, Rio de Janeiro, 3 to 14 June 1992, Principle 10

378 UNECE ,‘About UNECE’ <http://www.unece.org/about/about.htm> accessed 28 March 2009

379 Ibid

380 Czechoslovakia split into two sovereign states, Czech and Slovak Republics on 1 January 1993

381 UNECE, ‘”Environment for Europe” Process’ <http://www.unece.org/env/europe/> accessed 28 March 2009

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conference aimed at analysing the current environmental situation in Europe and discussing the potential ways of strategic cooperation, the following three conferences were of great importance for the development of the Convention, including the portentous Aarhus Conference.

In Lucerne the participants recognised public participation as one of the crucial components of the long term strategic environmental process. The Ministers concluded:

(1) that UNECE should work on proposals concerning “legal, regulatory and administrative mechanisms to encourage public participation in environmental decision making”³⁸², (2) that UNECE should pay particular attention to elaborating the ways of promoting participation in a cost-efficient manner as well as providing training and education for the public in order to increase their skills of understanding environmental information and (3) that public education should benefit from the support of the

‘informal sector’.³⁸³ Following the conference, senior advisers set up a task force³⁸⁴, which aimed at realising the above obligations. The established ‘Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-Making’ were subsequently endorsed by ministers at the Sofia conference³⁸⁵. Interestingly, the guidelines consisted of expanded recommendations for developing the future informational and participatory pillars of the Convention. This cannot be said in relation to the third pillar since the guidelines recommended only that:

“The public should have access to administrative and judicial proceedings, as

382 Declaration by the Ministers of the Environment of the region of the united Nations Economic Commission for Europe (UN/ECE) and the Member of the Commission of the European Communities responsible for the Environment, Lucerne 28-30 April 1993

<http://www.unece.org/env/efe/history%20of%20EfE/Luzern.E.pdf> accessed 12 April 2009, art. 22(2)

383 Ibid

384 Casey- Lefkowitz, Stec and Jendroska, ‘The Aarhus Convention...’, op cit.

385 Declaration by the Ministers of Environment of the region of the United Nations Economic Commission for Europe (UNECE) 25 October 1995, Sofia (Sofia Declaration)

<http://www.unece.org/env/efe/history%20of%20EfE/Sofia.E.pdf> accessed 12 April 2009, art. 42

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appropriate. Suitable legal guarantees should ensure that proceedings are fair, open, transparent and equitable. It is desirable that proceedings are not prohibitively expensive”

and that

“It is desirable that standing should be given a wide interpretation in proceedings involving environmental issues.”³⁸⁶

As a result the Ministers in Sofia recommended that UNECE should work on “effective public access to judicial and administrative remedies for environmental harm”³⁸⁷. The Ministers recommended developing “a regional Convention on Public Participation”³⁸⁸ and allowed NGOs to contribute to its creation.

The Convention’s drafting process took place between 1996 and 1998 and involved careful considerations of the wording, various proposals of all participants, some of which have been accepted.³⁸⁹ Crucially, the drafting sessions established the third pillar of the Convention, initially, by a tentative assertion that “the article” concerning access to justice would form an essential part of the agreement.³⁹⁰ Later, during the second session in November 1996, the working group agreed that the Convention “should include a third substantial part on access to justice”.³⁹¹ Substantial discussions followed,

386 UNECE, ‘Guidelines on Public Participation in Environmental Decision Making’ (Sofia Guidelines), Geneva 1996 ) < http://www.unece.org/env/documents/1996/Sofia_Guidelines_1996.pdf> accessed 12 April 2009, art. 25, 26

387 Sofia Declaration, art. 41

388 Ibid, art. 47

389 The whole process of drafting has been transcribed including the discussions and proposals and is available from the sessions’ reports: UNECE ‘Reports of the Ad Hoc Working Group for the preparation of a draft convention on access to environmental information and public participation in environmental decision-making’ < httphttp://www.unece.org/env/pp/adwg.htm> accessed 12 April 2009

390 Working Group for the preparation of a draft convention on access to environmental information and public participation in environmental decision-making (Aarhus Working Group) ‘Report of the First Session’ (UNECE, Committee on Environmental Policy)

<http://www.unece.org/env/documents/1996/cep/ac.3/cep.ac.3.2.e.pdf> accessed 12 April 2009, art 11

391 Aarhus Working Group, ‘Report of the Second Session’ (UNECE, Committee on Environmental Policy) < http://www.unece.org/env/documents/1996/cep/ac.3/cep.ac.3.4.e.pdf> accessed 12 April 2009,

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both formal and informal, in the subsequent session. Concluding negotiation sessions

“involved an unprecedented level of participation on the part of NGOs”³⁹² and resulted in the adoption of the Aarhus Convention in Denmark in 1998 by 35 states including the European Union³⁹³. As of September 2012 there are 46 parties to the Convention.³⁹⁴

To sum up, the Convention’s roots can be traced back to the Rio Declaration and Lucerne and Sofia conferences within the EfU process. It must be stressed however that the initial focus was on the first two pillars with considerably extensive guidelines and recommendations in the early 90s. Access to justice was seen as an underpinning article that was supposed to give some credibility to the Convention. The idea concerning the third pillar was formally considered and generated during the middle stage of the EfU process and the initial stage of drafting the Convention. This helps to shed some light on the present challenges with the third pillar of the Convention.

Aarhus Convention principles

The principles of the Aarhus Convention are non-binding obligations that can be found in the preamble and the first articles concerning the objective (Article 1), definitions (Article 2) and the general provisions (Article 3) of the Treaty. They are very useful in terms of placing the agreement in a wider socio-political context and can serve as background for interpretation of the specific procedural elements entrenched into the three pillars.

art 6

392 Casey- Lefkowitz, Stec and Jendroska ,‘The Aarhus Convention...’, op cit., p.2

393 UNECE, ‘”Environment for Europe” Process: History of the process: from Dobris to Belgrade’

<http://www.unece.org/env/efe/history%20of%20EfE/fromDobtoBelg.htm> accessed 12 April 2009

394 UNECE Aarhus Convention, 'Status of Ratification" (September 2012)

<http://www.unece.org/env/pp/ratification.html> accessed 26 September 2012

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Floor, not a ceiling

The Convention sets the minimum standards that should be achieved by all Signatories and countries can preserve existing measures extending beyond those in the Convention or provide broader rights under the three pillars³⁹⁵. The Convention leaves considerable discretion to the national legal systems to establish certain measures and is flexible enough in order to accommodate most of the distinct features found in different legal traditions³⁹⁶. Whereas the states must achieve the minimum standards many strive to go beyond the that and share their best practice through a network of bodies and platforms for exchange of information.

Principle of sustainable development³⁹⁷

The concept of sustainable development arose from the attention to the harmful environmental impact associated with traditional development and ways of producing growth and wealth. There are two main and broad definitions of the concept, one which focuses on the intergenerational and intra-generational equity and second which highlights three pillars of development: social, economic and environmental. While there are multitude of variations of the principle of sustainable development the paragraphs below will refer to those two broad definitions.

395 Casey- Lefkowitz, Stecn and Jendroska, ‘The Aarhus Convention...’, op cit. 5

396 As for example art. 9(2)

397 It has been suggested that sustainable development is an objective. It was recognised as an objective by the Welsh Government (Welsh Government, A Sustainable Wales: Better Decisions for a Better Future (WG, 2012)). However, sustainable development has been widely recognised in international law as a principle. See for example: Christina Voigt Sustainable Development as a Principle of International Law :

Resolving Conflicts Between Climate Measures and WTO Law (BRILL 2009), Alan E. Boyle, David Freestone (eds.) International Law and Sustainable Development. Past Achievements and Future

Challenges (OUP 1999), Victoria Jenkins, ‘Placing Sustainable Development at the Heart of Government in the UK: the Role of Law in the Evolution of Sustainable Development as the Central Organising Principle of Government’ (2002) 22(4) Legal Studies 578.

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Intergenerational equity

This definition of sustainable development, which received “a quasi official status”³⁹⁸, was coined by the Brundland Report³⁹⁹:

“Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs.

It contains within it two key concepts:

• the concept of 'needs', in particular the essential needs of the world's poor, to which overriding priority should be given; and

• the idea of limitations imposed by the state of technology and social organization on the environment's ability to meet present and future needs”⁴⁰⁰

The Convention mentions future generations in the preamble and in Article 1. Due to the importance of the latter (which, unlike the preamble, forms part of the Convention) it is worth citing the whole Article:

“In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision making, and access to justice in environmental matters in accordance with the provisions of this Convention”

The principle concerning the right to healthy environment is considered below; for now,

398 Magraw Barstow D and Hawke D L, ‘Sustainable Development’ in Bodansky D, Brunnee J and Hey E, The Oxford Handbook of International Environmental Law (OUP 2007)

399 Brundtland H G and others, ‘ Report of the World Commission on Environment and Development:

Our Common Future’ (OUP 1987)

400 Ibid 43

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it suffices to highlight that the Convention puts both present and future generations at the same level. However, it is difficult to establish how this objective can be realised, barring the fact that the Convention might exist and serve the same rights to future generations. In addition, the concept of future generations itself has not been grounded in any viable theoretical construct that would explain why and how such duties are accountable. Some argue that, according to a ‘future person paradox’, the future generations do not exist.⁴⁰¹On the other hand, the intergenerational equity principle could be underpinned by various theories. According to a chain of love theory⁴⁰² our concerns about a well-being of future generations are driven by love for our children and their descendants. This could well underpin participation of local groups or indigenous people concerned with both their well being as well as that of their descendants. Another theory that could flesh out the concept of intergenerational equity is the restraint principle according to which:

“no goods shall be destroyed unless unavoidable and unless they are replaced by perfectly identical goods; if that is physically impossible, they should be replaced by equivalent goods resembling the original as closely as possible; and if that is also impossible, a proper compensation should be provided”⁴⁰³

This principle, as Beekman argues⁴⁰⁴could serve both present and future generations.

This could also work well through public participation allowing participants to negotiate for some sort of compensation if their interest is affected. Members of the present generation would participate in decision-making in order to fight for the same

401 Carter A, ‘Can We Harm Future People?’ (2001) 10 Environmental Values 429–54

402Passmore J, Man’s Responsibility for Nature: Ecological Problems and Western Traditions (Duckworth 1980)

403 Wissenburg M, Green Liberalism. The Free and the Green Society (UCL Press 1998) 123

404 Beekman V, ‘Sustainable Development and Future Generations’ (2004) 17 Journal of Agricultural and Environmental Ethics 3–22

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possibilities for posterity; however, they may be better prepared to accept that there are some unavoidable decisions.

Moreover, the Convention mentions future generations in the ‘objective’ article without explicit reference to disadvantaged and poor people. The intra-generational equity principle is part of the Brundland definition of sustainable development and has not found any reference in the Convention. Crucially, the research shows that economically disadvantaged and marginalised groups are more likely to live in proximity to environmental hazards.⁴⁰⁵ The Aarhus Convention does not make an attempt to address this issue, except that it puts much emphasis on the participation of NGOs, which may be insufficient.⁴⁰⁶

Three pillars of sustainable development

The alternative definition of sustainable development can be traced back to the Johannesburg Declaration,⁴⁰⁷ which highlights “pillars of sustainable development - economic development, social development and environmental protection - at the local, national, regional and global levels”.⁴⁰⁸

The social pillar of sustainable development is concerned with equality and justice and is well covered by both the Brundland Report and the Johannesburg Declaration.

Shortly, the aim is to decrease the gap between haves and have-nots within countries and between countries with the ambitious goal of ending the poverty. The economic pillar recognises a link between environmental degradation and economic growth and is

405 Schlosberg D, Defining Environmental Justice. Theories, Movements, and Nature (OUP 2007);

Layfield D, ‘New Politics or Environmental Class Struggle?’ (2008) 17 (1) Environmental Politics, 3-19

406 Lee M and Abott C, ‘The Usual Suspects? Public Participation Under the Aarhus Convention’ (2003) 66(1) The Modern Law Review 80-108

407 UN World Summit on Sustainable Development, ‘Johannesburg Declaration on Sustainable Development’ (A/CONF.199/20 , 4 September 2002) < http://www.un-documents.net/jburgdec.htm>

accessed 12 April 2009

408 Ibid 5

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preoccupied with “establishing the possibility of environmentally-benign economic growth, and economically beneficial environmental protection.”⁴⁰⁹ As a simple illustration, such growth can take place by means of economic modernisation, where industry makes effort to compete on the market by producing/selling environmentally-friendly products. The third pillar is concerned with environmental protection and with balancing this with social cohesion and equality and economic growth.

The Convention makes a reference to the second and the third pillar of sustainable development; it is set against the need to “protect, preserve and improve the state of the environment and to ensure sustainable and environmentally sound development”.⁴¹⁰ However, as mentioned above, the Convention does not refer to the problems of social inequality, injustice and the gap between the rich and the poor. It mentions only that

“citizens may need assistance in order to exercise their rights”. ⁴¹¹ In addition, Article 3 requires parties to:

“promote environmental education and environmental awareness among the public, especially on how to obtain access to information, to participate in decision-making and to obtain access to justice in environmental matters”⁴¹²

This is insufficient because it ignores the divisions among citizens. We may suppose that both economically advantaged and disadvantaged might initially lack knowledge as to how they can obtain access to information or participation. However, once this basic requirement has been satisfied it might appear that the latter group still needs assistance in order to understand the information, and perhaps financial support in order to make a

409 Lee M, EU Environnemental Law. Challenges, Change and Decision-Making (Hart Publishing 2005) 35

410 Aarhus Convention, Preamble

411 Ibid

412 Ibid, art. 3(3)

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meaningful contribution to participatory processes or in order to be able to access justice.

The right to healthy environment

The Convention, as mentioned above, highlights the need to protect the environment.

Nevertheless, there has been a long-standing insistence that there should be recognition of a human right to the healthy and decent environment.⁴¹³The emergence of such a right could offer another tool to disadvantaged citizens with which to pursue justice in the event of shortfalls in legislation.⁴¹⁴ The Convention makes direct reference to the human right to healthy environment in the Objectives of the Convention in Article 1 above. However, the right itself does not exist at the international level despite the fact that it has been recognised at national level in many countries.⁴¹⁵ The Convention’s Implementation Guide argues that Article 1 “is the clearest statement in international law to date of a fundamental right to a healthy environment”,⁴¹⁶ and that though “the Convention does not expressly state that the right exists, it does refer to it as an accepted fact”.⁴¹⁷ As a result there is an assumption that the Convention can contribute to achieving the state of decent environment for every person through the procedural

Nevertheless, there has been a long-standing insistence that there should be recognition of a human right to the healthy and decent environment.⁴¹³The emergence of such a right could offer another tool to disadvantaged citizens with which to pursue justice in the event of shortfalls in legislation.⁴¹⁴ The Convention makes direct reference to the human right to healthy environment in the Objectives of the Convention in Article 1 above. However, the right itself does not exist at the international level despite the fact that it has been recognised at national level in many countries.⁴¹⁵ The Convention’s Implementation Guide argues that Article 1 “is the clearest statement in international law to date of a fundamental right to a healthy environment”,⁴¹⁶ and that though “the Convention does not expressly state that the right exists, it does refer to it as an accepted fact”.⁴¹⁷ As a result there is an assumption that the Convention can contribute to achieving the state of decent environment for every person through the procedural

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