The Aarhus Convention and
the Access to Justice Pillar:
Introduction to Article 9. 1
Stephen Stec
Tirana, November 2008
Aarhus Convention: A New Kind of
Convention
• Rights based
approach
• Link with human rights
• Public and civil
society
empowerment
Stockholm to Rio
• Principle 1 of Stockholm Declaration (1972) spoke
of a right to a decent environment and the duty to
protect the environment
• Principle 10 of the Rio Declaration (1992) showed
the way for individuals and groups to reach the
goal of a healthy environment is to participate in
decisionmaking
• Prin. 10 set framework for 3 pillars of Aarhus
Convention
Aarhus Convention has influenced EU
legislation
EIA Directive
Information Directive
SEA Directive
Information held by Community institutions
PRTR (EPER, IPC)
GMOs
Standards reflected in many sectoral directives
Some general provisions (Art. 3)
• Public authorities should assist and guide the public
• NGOs should be recognized and supported within the
framework
•
Legal system should be adjusted if necessary
• Convention is a “floor” not a ceiling
•
Establishes minimum standards that can be exceeded
• State must protect against public being penalized, persecuted
or harassed for making use of rights
• Non-discrimination on the basis of citizenship, nationality,
domicile or seat
The Access to Justice Pillar
Access to Justice (Art. 9)
• Mechanisms for enforcing the legal regime
• 9.1 – Access to Information
• 9.2 – Participation in Decisionmaking
• 9.3 – Public “Defense” of environmental law
Article 9.1 claims
Arise to guarantee rights under Article
4, where information request is:
Ignored
Refused
Partial information
is given
Definitions relevant to Arts. 4, 9.1
(Art. 2)
• “Public authority”
•
•
Authorities at all levels – as well as public or private bodies performing
traditionally public functions or providing public services that are acting under
the control of a public authority
Exception – bodies exercising judicial or legislative functions
• “Public”
•
Any person
Definitions relevant to Arts. 4, 9.1
(Art. 2)
• “Environmental Information”
•
•
•
Virtually any info
In any material form
that can be connected to the environment
•
•
Relates to “elements” of the environment (air, atmosphere, land,
landscape, soil, water, biological diversity etc.)
And their interaction
•
Factors affecting these elements
•
•
Substances, energy, noise, radiation
Activities or measures affecting these elements
•
Administrative measures, environmental agreements, policies, legislation, plans,
programs
•
And cost-benefit and other economic analyses and assumptions used in
environmental decisionmaking
•
•
AND this includes
Human health and safety, conditions of life, cultural sites and built
structures insofar as they may be affected by the above
Art 9.1 –
Obligation to provide review of
claims that right of access to
information is violated
• Judicial or other independent and impartial review
• Binding decisions
• Reasoned, written decisions
• Where judicial review is available, another
expeditious, inexpensive procedure shall also be
available
• Reconsideration by public authority or
• Review by other independent, impartial body
• Standing - any person principle
Critical issues under Art. 4
•
•
•
•
No need to state interest (4.1)
In form requested (4.1)
Time limits (4.2)
Optional exceptions (manifestly unreasonable, too
general, material in course of completion, internal
communications) (4.3)
• Optional exceptions with adverse interest test
•
•
•
•
•
•
•
•
Proceedings of public authorities
International relations, national defence, public security
Matters in the course of justice
Commercial and industrial confidentiality
Intellectual property rights
Personal data
Voluntary information
Protecting the environment (e.g., habitats of rare species)
Critical issues under Art. 4 (cont’d)
• Response to initial request, forwarding to relevant
authority (4.5)
• Separation of information (maximum disclosure)
(4.6)
• Procedures for refusal to disclose (in writing, with
reasons, including information on appeal
possibilities, time limits and notice) (4.7)
• Reasonableness of costs, publication of schedule
of charges (4.8)
Typical cases under Art. 9.1
• The filing of a case may lead to “voluntary”
disclosure of the information by an authority to
avoid going to court
• Interpretation of deadlines – Conv requires not only
a formal response but a substantive one
• Information request must relate to information
actually held (alternative basis for failure to collect
relevant info – Art. 8 of ECHR)
• Over-exclusion of information based on
exemptions, failure to maximize disclosure
• Reasonableness of costs – material costs can be
recovered only, not labor
Typical cases under Art. 9.1 (cont’d)
• “proceedings of public authorities exemption”
should not be used for matters in the general
public interest, but only for matters related to an
ongoing specific investigation (Eur. Ombudsman)
• Challenges concerning balancing done by public
authorities – exemptions should be applied in a
limited way
• Challenges concerning requirement for legal basis
for exemptions (e.g., “confidentiality of
proceedings of public authorities, where such
confidentiality is provided for under national law”)
Aarhus Convention: Third Pillar
Art 9.4 – Minimum standards for A to J
• Adequate and effective remedies, including
• Injunctive relief ‘as appropriate‘
• Permanent and temporary
•
•
•
•
•
Fairness
Equity
Timeliness
Not prohibitively expensive
Decisions made in writing and
publicly accessible
Thank you
Stephen Stec
Central European University
Earthconsult LLC
[email protected]
[email protected]