20 years in pursuit of ‘access to justice’ under the AARHUS Convention

Brief journey of the Aarhus Convention

Environmental rights and climate justice under the international law regime cannot be discussed without referring to the 1998 Convention on Access to Information, Public Participation in Decision–Making and Access to Justice in Environmental Matters, more popularly known as the Aarhus Convention (the ‘Convention’). Negotiated and adopted under the auspices of the United Nations Economic Commission for Europe (UNECE) in the year 1998 and entered into force in the year 2001, it recently completed 20 years of being a seminal instrument in global environmental governance.¹

One of the distinguishing tenets of the Convention has been its recognition of the limitations of environmental decision making by public authorities. Climate jurisprudence stands witness to often irreversible and long-term impacts of such decision making. Therefore, the Convention provides for accountability by imposing obligations on such public authorities towards recognizing and upholding the right to health and well-being of persons in the present and in posterity through access to environmental information, public participation in environmental decision making, and access to justice in environmental matters. Since the primary subject matter of this Convention consists of the enforcement of the three aforesaid procedural human rights² of right to information, right to participation and the right to access of justice, the Convention’s impact and relevance has attracted both academic examination as well as public scrutiny. The Convention draws its legitimacy as a human rights-based instrument from its efforts in integrating environmental concerns with human rights.³ The Convention is equipped to protect said rights and address trans-national environmental concerns through mechanisms of both compliance and implementation without prejudice to the availability of dispute settlement procedures.⁴ Art. 15 of the Convention provides for the establishment of a compliance committee for the purposes of a non-confrontational, non-judicial, advisory and consultative review of state compliance with the obligations under the Convention. The composition of the compliance committee is both noteworthy and unprecedented as it comprises of independent experts from state parties or signatories instead of representatives from respective state governments and that non-governmental organizations (NGOs) have the same right as other signatories and state parties in nominating members to the Committee.⁵ At this juncture, it is important to note that contrary to the historical treatment of non-state parties such as NGOs under most international treaties, the Convention has made a very pronounced exception since its very inception. Not only were NGOs involved extensively in the negotiation and drafting of the Convention, but they have since been considered as ‘principal clients’ of this Convention instrumental in realization of the rights guaranteed under the Convention.⁶ The Committee has been mostly perceived as merely authoritative and non-binding in its interpretations, rulings and recommendations over time, however, such perception has undergone a re-evaluation in the recent years.⁷ It has been observed that the compliance committee’s enforcement mechanism has transcended from issuing ‘soft remedy’⁸ to judicialization of rulings with binding and legal effect. This has further contributed to the increasing relevance and impact of the Committee’s rulings on domestic state practices.⁹

The dynamics between the AARHUS Convention and the EU through the ‘access to justice’ provisions

This post intends to view the Convention through its 20 years of environmental democracy, with a specific emphasis on its developing jurisprudence on access to justice within the EU member states. Although the Convention has 47 signatories including the EU, its implementation vis-à-vis the EU primary law has been the subject matter of several practical and academic discussions and this post wishes to capture and analyse the quintessence of that dynamic and what it means for the environmental rights discourse. Under the EU legal order, the Convention must be incorporated into the domestic legal systems of state parties for it to be binding. And in instances where such integration has not taken place, the provisions of the Convention may be relied upon at the discretion of the court in matters of legislative ambiguity.¹⁰ The same principle extends to the decisions and rulings issued by the Committee.¹¹ On one hand, whereas Arts. 4 (access to environmental information) and 5 (collection and dissemination of environmental information) have become part of domestic EU law through their incorporation into the EU Directives, the critical provisions on public participation (Arts. 6, 7 and 8) have however been incorporated only partially. For disputes arising in and out of compliance obligations within the Public Participation Directive, the CJEU and domestic courts can exercise discretion to determine and rule on public participation requirements or their violation thereof.¹² The aforesaid rights of access to environmental information and public participation in decision making along with enforcement of domestic legislations on the environment¹³ are guaranteed by the access to justice clause enshrined in Arts. 9(1), 9(2) and 9(3) of the Convention. Art. 9(4) mandates the procedural framework for the enforcement of said rights to be ‘fair, equitable, timely, not prohibitively expensive and able to provide effective and adequate remedies, including appropriate injunctive relief.’¹⁴ Art. 9(5) obliges each party, inter alia, to establish appropriate assistance mechanisms towards reduction or removal of financial or other barriers to access to justice.¹⁵

Through a combined reading of the aforementioned provisions and of the preamble to the Convention, it can be reasonably inferred that one of the fundamental objectives of the Convention is to ensure adequate representation and protection of the legitimate environmental interests of the public through effective judicial mechanisms. Consequently, the Convention is perceived to be an empowering instrument in the hands of the common public in its treatment and facilitation of environmental justice concerns. The Convention has managed to significantly bridge the distance between an aggrieved party and the redressal of their grievances by conjoining of its procedural and substantive environmental rights. Both members of the public as well as NGOs can invoke their rights under the Convention against any instances of alleged non-compliance by simply sending a ‘communication/s’ to the Compliance Committee. This is often also identified as a public trigger. Although communications can be raised by either an individual member of the public or by a group, it is the NGOs which have brought forward the most notable instances of non-compliance against their respective State parties.¹⁶ The Committee is obligated to take each communication under consideration unless it makes an adverse inference as to the merits of said communication or if it determines such communication to be incompatible with the provisions of the Convention.¹⁷ It is pertinent to note that in addition to providing interpretations of the Convention, the Committee also discharges a crucial function of assisting and clarifying to the Parties their access to justice obligations.¹⁸

Since its inception, the Committee has received more than 165 communications from members of the public on issues of compliance while engaging with the provisions in the Convention.¹⁹ The modus operandi of the Committee can therefore be seen as an evolutionary exercise complementary to the scope of the Convention. The compliance procedure is structured not merely towards the determination of non-compliance but also to ultimately ensure compliance by the erring parties.²⁰ As mentioned in this post previously, the discussions around the judicialization of the Committee’s rulings and interpretations have become more pronounced, especially in response to the idea that a traditional compliance mechanism in an international treaty is unlikely to guarantee compliant conduct. While that might be a part of an ever-evolving narrative, it has not constrained the Committee from issuing findings of non-compliance with respect to access to justice obligations under the Convention to several EU member states.²¹ The likelihood and appearance of discord in the implementation of the Convention within the EU arises and has been observed on account of the three distinct jurisdictional ambits of the Committee, the CJEU and the domestic courts.²² Despite the CJEU’s proclamation of the Convention’s provisions being an integral part of the EU legal order²³, it is still interesting to examine the CJEU’s overall treatment of the Committee’s findings and/or rulings and its consequent impact on ensuring access to justice as provided for under the Convention.

As referenced previously in this post, Art. 9 of the Convention contains, inter alia, procedural provisions such as legal standing, timely and effective review mechanisms including injunction, and a ceiling on expenses etc. for the purposes of guaranteeing access to justice for rights enshrined in other provisions of the Convention. In several instances, due to lack of textual clarity, these procedural standards have often been interpreted in a manner that facilitate the widest and most effective access to justice while upholding their legislative intent. The frequent references made by the domestic courts to the CJEU have contributed to the growing body of jurisprudence within the realm of environmental justice litigation. This is also indicative of the reliance of the domestic courts on the CJEU for optimal interpretations of the access to justice obligations.²⁴ The CJEU has found the EU Commission in contravention of the obligations under the Convention on several occasions. The CJEU has consequently implored the EU Commission to act with utmost diligence in its disclosure and transparency obligations which can impact access to justice.²⁵ Although it is an expectation that the rulings of the CJEU in interpreting the provisions of the Convention will offer a uniform jurisprudence to all member states, it is not always practical considering the existence of diverse systemic factors and approaches such as culture, politics, investment obligations, socio-economic status vis-à-vis other member states etc. Therefore, implementation of access to justice under the CJEU may not always have a linear progression, but it does offer a roadmap for emphasizing the significance of access to environmental justice and protection.

The way forward: recent amendments and public interest litigations

Despite the attempts by the CJEU to provide the widest possible interpretation to access to justice obligations under the Convention, the EU’s Aarhus Regulation²⁶ has often been criticised by experts, environmental law scholars and civil society organizations as being inadequate in fulfilling the access to justice obligations under the Convention.²⁷ In a communication brought forth by the NGO ClientEarth, the main grievance focused on the inconsistent jurisprudence of the CJEU on access to justice in environmental matters generally. The communicant NGO submitted that the internal review procedure in Art. 10 of the Aarhus Regulation was neither adequate, effective or fair.²⁸ While agreeing in part with the communicant’s allegations, the Committee did acknowledge the non-compliance by EU with respect to access to justice obligations and recommended that all relevant EU institutions must take appropriate measures to overcome the shortcomings reflected in the jurisprudence of the EU Courts in providing the concerned public with access to justice in environmental matters.²⁹ Since then, the EU Commission has undertaken few steps towards exploring options and ways to improve access to justice with respect to environmental concerns.³⁰ With a view to address some of these concerns, the EU Commission published a proposal³¹ to amend the administrative review procedure under the Aarhus Regulation. The EU Commission also published a communication on improving access to justice in environmental matters in the EU and the member states.³² Following considerable political and social backlash both internally³³ and outside of the EU³⁴, the EU Commission published a detailed external study³⁵ on the present situation on access to justice in environmental matters at the EU level and commissioned a report³⁶ on the status of the implementation of the access to justice obligations under the Convention. On the heels of these reports in 2019, the EU Commission undertook few concrete steps in the year 2020 to expand the scope of administrative review under the Aarhus Regulation which was previously deemed as being restrictive³⁷ in determining not only the beneficiary and subject matter of the review but also the overall impact of such review. However, the proposed amendment merely addresses the subject matter that can be considered for the purposes of the administrative review, while the entitled beneficiary and the impact remain unchanged.³⁸

Although not a complete overhaul, however this can still be considered as both a necessary as well as a positive change as the prior definition of ‘administrative acts’ under the Aarhus Regulation could not be broadened through judicial interpretation.³⁹ What the amendment does not address is extension of the scope of administrative acts to acts with no legally binding or external effects.⁴⁰ Finally, although the entire gamut of proposed amendments are a step towards course correction, it remains to be seen if a point of convergence can be imagined between access to justice under the Convention and the extent to which EU law guarantees the same.

A separate but analogous element in any discussion on access to justice under the Convention is the practice of public interest litigation (‘PIL’). Public interest can arise from both public and private law matters and PILs are largely understood in the context of a domestic entity pursuing a specific policy change with the aid of an international law instrument before the domestic court as their forum.⁴¹ In a recent landmark ruling before the Netherlands Supreme Court, a civil society organization named Urgenda proceeded to bring a case against the Dutch Government for failing to reduce its greenhouse gas emission levels, while claiming to represent the interests of almost everybody concerned or everyone likely to be affected.⁴² The Dutch Supreme Court accepted Urgenda’s representation of all residents of the Netherlands who are entitled to be protected by the state from any environmental hazard or dangerous impacts of climate change. The Dutch Supreme Court ruled in favour of Urgenda while relying on both human rights as well as environmental rights instruments including the Aarhus Convention. The Supreme Court relied on both access to justice provisions of the Convention under Art. 9(3) and on Art. 2(5) by holding Urgenda as an NGO promoting environmental protection and having an interest in environmental decision making.

In the Slovak Brown Bear⁴³ ruling of the CJEU concerning an NGO’s right to challenge an alleged infringement of environmental law, the Court acknowledged species protection provisions to be in the general interest of the public and the right of an environmental NGO to challenge any decision in that regard.⁴⁴ The CJEU further clarified that although Article 9(3) of the Convention was not sufficiently precise and unconditional to have direct effect with respect to legal standing of individuals and associations, it certainly was ‘intended to ensure effective environmental protection’ in pursuance of access to justice.⁴⁵

Conclusion

The former Secretary-General of the United Nations, Mr. Ban Ki Moon once observed, “This treaty’s powerful twin protections for the environment and human rights can help us respond to many challenges facing our world, from climate change and the loss of biodiversity to air and water pollution. The Convention’s critical focus on involving the public is helping to keep governments accountable.”⁴⁶ A further affirmation to this overarching commitment towards the Convention and goodwill of the parties to the Convention is the recent legally binding treaty on environmental rights covering the Latin Americas and the Caribbean known as the Escazú Agreement.⁴⁷ While this Agreement draws heavily on the experiences of the Convention, it also strives towards learning from the shortcomings of the Convention and exploring its own boundaries. As the Convention crosses its two-decade milestone into increasingly unchartered and challenging territories such as the global pandemic and raging climate change repercussions, it is crucial to center and expand the contours of the Convention for safeguarding the rights of all conceivable stakeholders. The transformative potential of the Convention should be further explored by acknowledging the congruence of civil and political rights with environmental rights. A concerted effort should be made towards advocating for universal ratification and implementation of this Convention or towards importing the underlying principles of this Convention to other relevant discourses. With every radical step on the roadmap of access to justice, it is remarkable how this Convention has made it possible to reimagine environmental justice as social justice.