AarhusConvention_Guide_ece mp pp 5_E

8/6/2019 AarhusConvention_Guide_ece mp pp 5_E

1/28

A simplifed guide to the

Aarhus Convention on Access toInormation, Public Participation in

Decision-making and Access to

Justice in Environmental Matters

Your

Righthealthy environmentto a

A simplifed guide to the

Aarhus Convention on Access toInormation, Public Participation in

Decision-making and Access to

Justice in Environmental Matters

UNITED NATIONS


2/28

NOTE

The designations employed and the presentation o the material in this publication do

not imply the expression o any opinion whatsoever on the part o the Secretariat o

the United Nations concerning the legal status o any country, territory, city or area, or

o its authorities, or concerning the delimitation o its rontiers and boundaries.

__________

Published by the United Nations Economic Commission or Europe and the United

Nations Environment Programme in July 2006. Produced by UNECEs Secretariat

o the Aarhus Convention and UNEPs Division or Environmental Conventions. This

book is intended or public inormation purposes only and is not an ofcial document.

Permission is granted to reproduce or translate the contents giving appropriate

credit.

For more inormation, please contact:

Secretariat o the Aarhus Convention

United Nations Economic Commission or Europe

Environment, Housing and Land Management Division

Palais des Nations, 8-14 avenue de la Paix

1211 Geneva 10

Switzerland

+41 22 917 1502

[email protected]

Ofcial convention website: www.unece.org/env/ppInormation on national laws and practices: aarhusclearinghouse.unece.org

UNEP/DEC/Inormation Unit or Conventions

International Environment House

13-15 chemin des Anmones

1219 Chtelaine (Geneva)

Switzerland

+41 22 917 8244

[email protected]

www.unep.org/dec/

ECE/MP.PP/5

UNITED NATIONS PUBLICATION

Sales No. E.06.II.E.9

ISBN 92-1-116943-7


3/28

healthy environment

to aYour right

A simpliied guide to the Aarhus Convention

on Access to Inormation, Public Participation

in Decision-making and Access to Justice in

Environmental Matters

United Nations Environment Programme

United Nations Economic Commission or Europe

UNITED NATIONSNew York and Geneva, 2006


4/28


5/28

ForewordThe Aarhus Convention is widely recognized as the worlds oremost international

instrument promoting access to inormation, public participation in decision-

making and access to justice in environmental matters.

Following its adoption, United Nations Secretary-General Koi Annan called the

Convention a giant step orward in international law and an instrument o global

signiicance, albeit negotiated in the UNECE region. Since then, the Convention

has entered into orce with impressive speed and been ratiied by most o the

countries o Europe and Central Asia. Increasingly, it is empowering members

o the public to hold governments accountable and to play a greater role in

promoting more sustainable orms o development.

Open to accession by States throughout the world, the Convention has

established a new benchmark in environmental democracy. It is unique among

multilateral environmental agreements in the extent to which it seeks to enable

ordinary people, irrespective o their citizenship, nationality or domicile, to have a

say in decisions that aect their environment.

However, the rights guaranteed by the Convention are only meaningul i they are

exercised. Raising public awareness o the Convention is thereore crucial or its

eective implementation.

This is why UNECE and UNEP have collaborated to produce this Guide. By

presenting the rights and obligations under the Convention in plain, easy-to-

understand language, we hope to bring this important treaty closer to people rom

all walks o lie, so that they can directly beneit rom its provisions.

Marek BelkaExecutive SecretaryUnited Nations EconomicCommission for Europe

June 2006

Achim SteinerExecutive Director

United Nations Environment Programme


6/28


7/28

Table of contents

The birth o environmental rights . . . . . . . . . . . . . . . . . . . . . . . . . 1

How the Convention works . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

The right to know . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

The right to participate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

The right o access to justice . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Environmental rights in the 21st

century . . . . . . . . . . . . . . . . . . . . . 17

v


8/28

Parties to the Aarhus Convention

(as o June 2006)

Albania

Armenia

Austria

Azerbaijan

Belarus

Belgium

Bulgaria

Cyprus

Czech Republic

Denmark

Estonia

Finland

France

Georgia

Greece

Hungary

Italy

Kazakhstan

Kyrgyzstan

Latvia

Lithuania

Luxembourg

Malta

Netherlands

Norway

Poland

Portugal

Republic o Moldova

Romania

Slovakia

Slovenia

Spain

Sweden

Tajikistan

The Former Yugoslav Republic oMacedonia

Turkmenistan

Ukraine

United Kingdom

European Community

vi


9/28

1

RIGHTS

The birth of environmental rightsA government ministry supports a project to ill in an abandoned copper mine

with sewage sludge rom a wastewater treatment plant. The ministry classiies

the waste as non-hazardous, but other authorities and experts point out that the

wastewater includes industrial discharge rom several actories.

Citizens rom a nearby village orm a committee to oppose the plan. They sue the

project contractor, but the court rejects their claim. The citizens are convinced

that the court is ignoring applicable laws as well as strong evidence that the

industrial wastes could be dangerous or their community. But, without ull

access to scientiic inormation about the case, and with no urther legal remedies

available, their case stalls.

Not so long ago, this would have been the end o the campaign. But today, a

growing number o citizens are beneiting rom a new emphasis on environmental

The Aarhus Convention recognizes every persons right to a healthy environment as well as hisor her duty to protect it.


10/28

2

rights. Governments increasingly recognize that environmental legislation will only

be eective i individuals have a ormal right to obtain environmental inormation,

are empowered to participate ully in environmental decision-making and have

redress to the courts when necessary.

Todays environmental rights derive rom a wide range o environmental laws and

principles adopted over the past several decades. By the 1970s, international

declarations and resolutions began to link environmental concerns explicitly to

human rights. At the 1992 Earth Summit, governments adopted the landmarkRio Declaration; its Principle 10 stresses that environmental issues are best

handled with participation o all concerned citizens.

To put this principle into practice, in 1995 the member States o the United

Nations Economic Commission or Europe (UNECE) adopted the Soia Guidelines.

This document urther elaborates the importance o public inormation, public

participation, and access to justice on environmental issues.

Then, in 1998, governments took the urther step o adopting the Aarhus

Convention on Access to Inormation, Public Participation in Decision-making

Environment Ministers rom Europe and Central Asia exchange views with representatives o non-governmental organizations, the judiciary and parliaments.


11/28

3

RESPONSIBILITY

and Access to Justice in Environmental Matters. Named ater the city in Denmark

where the inal talks were held, the Convention entered into orce in 2001 and aso June 2006 has 39 members (see box, page vi).

In 2003, the Parties adopted a Protocol on Pollutant Release and Transer

Registers (PRTRs), which will enter into orce ater it has been ratiied by 16

countries.

Established under the auspices o the UNECE, the Aarhus Convention creates

a uniied legal ramework that guarantees a powerul set o rights to the citizens

o Europe and Central Asia. This simpliied guide briely explains the Conventionand the tools it oers to individuals and communities concerned about their

environment.

How the Convention works

The Aarhus Convention recognizes every persons right to a healthy environment

as well as his or her duty to protect it. It seeks to ensure that every individual

lives in an environment adequate or his or her health and well-being. This appliesnot only to those o us living today, but to uture generations as well.

To promote this objective, the Convention embraces governmental accountability,

transparency and responsiveness. It sets minimum standards a loor, not

a ceiling or citizens rights in the ield o environmental decision-making.

UN Secretary-General Koi Annan described this as an ambitious venture in

environmental democracy.

The Convention is legally binding on those States that have chosen to becomeParties to it. Because the European Community is a Party, the Convention applies

to EU institutions. A Meeting o the Parties is organized at least once every two

to three years to review progress and share inormation on national actions. These

conerences are open to observers, including the public and representatives o

organizations and other countries.

The Convention was drated by governments but with the intensive involvement

o environmental non-governmental organizations (NGOs). These organizations

continue to play a vital role in promoting its ambitions. In addition, the

Conventions member governments have pledged to promote its principles on the


12/28


13/28

5

ACCESS

The Chernobyl nuclear disaster o 1986, which released a radioactive cloud across Europe, led to

calls or greater transparency and was reerred to by delegates several times during the AarhusConvention negotiations.

The right to knowIn a democracy, the people have the right to gain access to inormation,

including environmental inormation. The government has the responsibility o

supporting the public interest by making it easy to access that inormation.

To ensure that this undamental democratic right is ully realized in practice, the

Convention elaborates on the speciic rights o individuals. Some key questions

people ask about the right to know are:

What inormation can I ask or? Anyone can ask or any environmental

inormation possessed by any governmental agency or any private body that

serves a public unction. The person making the request does not have to be a

citizen or resident o that State and does not even have to provide an interest

or a reason. NGOs can request inormation regardless o where they are legally

registered.


14/28

6

The Conventions broad defnition o

environmental inormation includes air,water, soil, and biological diversity.

NICKwATES.CO.UK

The Conventions deinition o environmental inormation is deliberately broad,

including inormation on any element o the environment, such as air, water, soil orbiological diversity (including genetically modiied organisms). Also included are all

activities and programmes aecting these elements, as well as the eects that the

state o the environment may have on human health and saety.

What inormation must oicials provide in response? Public authorities should

generally supply the inormation in the orm requested, including copies o the

actual documentation i asked to do so. They may impose a charge or supplying

the inormation, provided it does not exceed a reasonable amount.

The authorities must make the requested inormation available as soon as

possible, generally within one month ater receiving the request. I the inormation

is very unwieldy or complex, they may take a maximum o one more month to

compile it, provided that they notiy the requesting individual or organization and

provide the reasons or the delay.

I the request is too general or maniestly unreasonable, it may be rejected on

those grounds. In that case, the source o the request must still be notiied.

Can oicials reuse to release the

inormation? In general, the publics

right to inormation should be interpreted

as broadly as possible. However, the

Convention lists some exemptions:

the authorities can reuse to disclose

inormation where the disclosure would

adversely aect international relations,

national deence, public security,the course o justice, commercial

conidentiality or the conidentiality o

personal data.

They may also withhold inormation whose

release could harm the environment, such

as the breeding sites o rare species. But

these exemptions may only be applied

when the public interest served by

disclosure has been taken into account.


15/28

7

I the request or inormation is reused on the basis o these exceptions, the

requesting person or organization should generally be notiied o the reusal inwriting within one month, or at most within two months, including the reason or

reusal. This decision can then be challenged through an appeals process.

What i oicials do not have the inormation? They should direct the person

or organization to the appropriate public authority or transer the request to that

authority and notiy the requesting person.

Is the appropriate authority required to have the inormation?All publicauthorities must collect and update environmental inormation related to theirunction and make that inormation publicly accessible, ultimately in electronic

databases. They must also tell the public what kind o environmental inormation

they have and how to access it. This is part o authorities active responsibility to

produce, compile and maintain public inormation.

Each State must also produce a publicly accessible State o the Environment

Report at regular intervals, at least once every our years.

Does the Convention require States to track the release and transer opollutants? States must progressively establish pollutant release and transer

registers (PRTRs), which are inventories o pollution rom industrial sites and other

sources. The Conventions 2003 Protocol regulates the establishment o the

registers in more detail.

Although the Protocol regulates inormation on pollution, rather than the pollution

itsel, it is expected to reduce pollution because companies will not want to be

identiied as major polluters.

The PRTRs must be publicly accessible through the Internet ree o charge,

and must be searchable, user-riendly and timely. They must have limited

conidentiality provisions and allow or public participation in their development

and modiication.

What inormation must the authorities provide in an emergency? In any

emergency situation, ranging rom a potential nuclear disaster to a day o

unusually bad air pollution, authorities must immediately distribute all inormation

in their possession that could help the public take preventive measures or reduce

harm.


16/28

8

Inormation is power i you can get it

In a small town on the ringes o Europe, the local people have

become increasingly concerned about the quality o their drinking

water. Several young women in the neighbourhood have contracted

a rare and atal orm o cancer. Rumours are circulating that

their deaths might be connected with discharges rom a timber

processing plant in the catchment area that supplies the towns

drinking water.

The locals orm a residents group to look into the situation. As a

frst step, they ask the local authority or copies o the monitoring

data on discharges rom the timber processing plant, which the

company is required to monitor on a daily basis under the terms

o its operating licence, and or copies o the publicly unded

drinking water monitoring data. They also ask the health board orepidemiological data on the incidence o that type o cancer in the

province, to determine whether or not the situation in their town is

unusual.

The local authority ails to respond or three months, despite

several reminders. It fnally replies that the inormation about the

plants discharges is confdential, but without giving any reasons.

The residents group may come and inspect the drinking water data

at the local authority ofces during opening hours but may not take

copies o the inormation, even or a ee. The health board reusesto provide the statistical inormation requested on the grounds that

it could jeopardize the right to personal privacy, even though the

residents insist that they are interested only in the statistics, not in

data on any individual.

As no other appeals process is available, the residents group tries

to go to court to orce both o the public authorities to disclose

the inormation. However, since it is an ad hoc group ormed in

CASE STUDY


17/28

9

response to an immediate concern and lacks legal status, the court

rules that the group does not have standing (the right to bring a

case to court). Meanwhile, two more cases o cancer are diagnosed

in the town

It was to address situations like this that the Aarhus Convention

came into being. While the overall example is fctitious, the elementsthat compose it are all too real and commonplace.

The Aarhus Convention responds to peoples concerns about the quality o theirenvironment, including drinking water.

UNEP/DONNBELL


18/28

10

The right to participatePublic participation renders decision-makers more accountable and

environmental decision-making more transparent, thereby improving the quality

o decision-making. Individuals should be given the opportunity to express their

concerns and opinions, and public authorities should take due account o these.

The Convention sets minimum standards or public participation when authorities

make general plans or license speciic projects that could aect the environment.

How much public participation is guaranteed beore the licensing o aspeciic project or activity? The public concerned must be inormed o the

proposed activity early in the process, while options are still open. They can

inspect relevant inormation ree o charge, including the projects possible

eects on the environment and an outline o the main alternatives. Inormation

should also be available about the authority responsible or decision-making, the

method or submitting comments, and dates and times o opportunities or public

participation.

Authorities must consider the outcome o the public participation in their decision,

which must be promptly and publicly accessible, in writing, with its reasoning.

The Aarhus Convention requires authorities to consider the publics views when taking decisions.

NICKwATES.CO.UK


19/28

11

PARTICIPATION

Who are the public concerned?The Convention deines this term as

the public aected or likely to be aected by, or having an interest in, the

environmental decision-making. It explicitly includes NGOs promoting

environmental protection i they are recognized under national law.

What kinds o speciic projects require public participation?The Convention

lists in an annex the types o activities or which decisions to approve projects

should always be subject to public participation. They include any activity that

might have a signiicant impact on the environment, such as the licensing o a

nuclear power station, smelter, chemical plant, waste-treatment plant or road-

construction project.

The public should have input into decisions about the deliberate release o

genetically modiied organisms (GMOs) into the environment to the extent

easible and appropriate. An amendment to the Convention adopted by the

Parties at their second meeting aims to strengthen the rights o the public to

participate in decision-making on GMOs. The amendment will enter into orce

once it has been ratiied by three ourths o the Parties.

The public has a role to play in decisions about activities such as road construction thatcould potentially aect the environment.

UNEP/NIGELDICKINSON


20/28

12

How much public participation is guaranteed in the development o

programmes and plans related to the environment?Authorities must make

appropriate provisions or public participation in the preparation o plans

and programmes related to the environment. This phrase covers plans or

programmes prepared by ministries (or example, o transport, energy or tourism)

when they have signiicant environmental implications. The Convention does not

speciy exactly what provisions or public participation are necessary in this case,

but several rules still apply: authorities must provide reasonable time rames or

participation and opportunities or early participation, and they must take due

account o the outcomes o participation in their decision.

Parties must also try to involve the public in the executive phase o law-making

that may have a signiicant eect on the environment. Executive regulations, which

may include decrees, rules or norms, should be prepared with public participation

until the rules are passed to the legislature. This article o the Convention is a

comparatively sot, best eorts obligation, but it is still an important goal.

Authorities must make appropriate provisions or public participation in the preparation o plans

and programmes related to the environment.

GREENPEACE


21/28

13

Listening to the public a success story

A small village eatured a

hazardous waste site containing

62,000 corroded barrels o

chlorine. The owner proposed

building a modern incinerator

at the same location. The

local residents approved, but

surrounding towns opposed the

plan, stating that their products

based on a spa, vineyards

and arms would suer when

consumers realized they were

produced near a hazardous-

waste incinerator.

The environmental inspectorate

notifed the public about the

plan as soon as the request

or a permit was fled. It issued

a one-page summary o the plan and sent it together with a copy o

the environmental impact statement to the neighbouring communities.

Town clerks posted notifcations on municipal notice boards.

Public hearings were held, and a large coalition o NGOs, communitygroups, economic and tourism interests and political parties

commented. The owner o the proposed plant provided detailed replies

and a non-technical summary about environmental eects and public

health and social consequences.

Based on the negative response to the plan rom the neighbouring

towns, administrative bodies denied the permit. A court approved their

decision. Negotiations have started with an already-existing incinerator

to burn the waste instead.

CASE STUDYCASE STUDY


22/28

14

The right of access to justice

For access to inormation and public participation in decision-making to be eec-

tive, the public must have recourse to a court o law or administrative proceeding.

Such a review mechanism provides a means o challenging the authorities

decisions and ensuring the eective implementation o the Convention.

What does access to justice include? Breaches o the rights to inormation and

to public participation can be appealed to a court o law (or another independentand impartial body, such as an ombudsman). Members o the public can sue

i the law has been violated or i the authority has ailed to ollow the proper

procedures. There must be access to a review process that is air, equitable,

timely, and ree or inexpensive. Final decisions must be in writing and must be

binding on the public authority.

Is access to justice limited to cases about the right to inormation and

public participation? No. Under the Convention, members o the public should

in principle be able to challenge any violation o national law relating to the

environment. I public authorities or private persons have broken such a law,citizens should be able to challenge the acts or omissions in court, even i they

have not suered personal harm. This is known as public enorcement o the law,

which has proven to be o major help to understaed environmental enorcement

agencies in some countries.

Who has access to justice under the Convention?Anyone including

individual citizens, NGOs, government oicials and companies can bring a

case to court to enorce their right o access to inormation. For example, anyone

who requested inormation and did not receive an adequate response can sue.Any member o the public with a suicient interest or legal standing can seek

a review regarding the right to participate in environmental decision-making i he

or she was barred rom participating earlier. Finally, governments must provide

access to administrative or judicial procedures to challenge breaches o national

law relating to the environment. Here the deinition o legal standing is determined

by national law.

What i court costs are extremely high?Access to justice must not be prohi-

bitively expensive. States must provide an inexpensive, accessible orum. Parties

have also agreed to work on reducing the inancial barriers to going to court.


23/28


24/28

16

Going to court in the

public interest

In the year 2000, a citizen fled a

request or access to data about

noise and air pollution roma metal-waste reprocessing

plant. The public authorities at

frst reused to provide the data

on the grounds that the citizen

had no right to participate in

government decisions relating

to the enterprise and lacked

legal standing in any o the

ongoing legal cases related tothe plants emissions.

The individual responded by fling a lawsuit in the local city court. He

based his claim on a legislative provision allowing any person acting

in the public interest to seek a court order or inormation. Importantly,

the legislation placed the burden on the holder o inormation to prove

why a reusal would be lawul or well ounded.

At the heart o the case was the argument that inormation should not

be accessible only to those with legal standing on a specifc matter, butto all those promoting the public interest. Moreover, the decision to

provide inormation should not turn on whether the inormation relates

to a private company. In addition, it should not be relevant who paid or

the collection and processing o the inormation in question.

While the fnal court decision was still pending, the public authority

voluntarily released part o the air-emission data. The deendant later

released the rest o the requested inormation to the plainti.

CASE STUDY


25/28

17

Environmental rights in the 21st centuryNow that the Aarhus Convention has entered into orce and is ully operational,

governments will ocus on making it work at the national level. National laws

will increasingly be written or adjusted to reflect the Conventions principles and

objectives. In each country a track record of case law and precedents will develop.

And new countries will join, thus expanding the Conventions geographic reach.

To ensure the Conventions eectiveness, its member States will continue to

promote capacity-building activities, particularly in the countries o Eastern

Europe, the Caucasus and Central Asia that are in transition to a market

economy, as well as those o South-Eastern Europe. These activities will include

support to environmental NGOs and eorts to strengthen national institutions.

Several international and regional organizations are also actively engaged in

capacity-building activities to support the implementation o the Convention.

SUPPORT

Top: children attempt toorce open the Doors

to Democracy during aceremony held to mark

the entry into orce o theConvention (October

2001). Bottom: Finallythe doors open.


26/28


27/28


28/28

Other useful publications available at the Convention

website:

The Aarhus Convention Implementation Guide

Public Participation in Making Local Environmental

Decisions Good Practice Handbook

Handbook on Access to Justice under the Aarhus

Convention

Kiev Protocol on Pollutant Release and Transfer

Registers

www.unece.org/env/pp

Printed at United Nations, GenevaGE S b

United Nations publicationS l N E 06 II E 9

Date post:	07-Apr-2018
Category:	Documents
Upload:	mark-purdon
View:	226 times
Download:	0 times

AarhusConvention_Guide_ece mp pp 5_E

Documents