From the Aarhus Convention to the Escazú Agreement. Aarhus.
Carmen Plaza Martín
Doctor and Professor of Administrative Law and EU Law
Counsel to the Constitutional Court
In “Laudato Si,” Pope Francis denounces the irresponsible use and abuse of the goods of our “common home,” the Earth, and how “We have grown up thinking that we were its owners and dominators, authorized to plunder it.” He also reminds us that Francis of Assisi is the example par excellence of the extent to which concern and care for nature, justice, respect for the most vulnerable, commitment to society, and inner peace are inseparable.
This brief article highlights the importance of two international conventions aimed precisely at making it easier for all people and environmental NGOs to exercise three fundamental rights for the care of the common home: (i) the right of access to information and knowledge about the state of the environment that sustains our existence, and about the problems and pressures to which we subject it with an unsustainable production and consumption model; (ii) the right to public participation in decision-making that affects our environment; and (iii) access to justice to defend it against public or private activities and projects, or rules adopted by governments that threaten it.
The first of these treaties, the Aarhus Convention, has been in force in Europe and Asia for two decades and is the subject of this first part.
The second, the Escazú Agreement, to which we will devote a second entry in this blog, has just entered into force for Latin America and the Caribbean, following in the wake of the Aarhus Convention but introducing important new features to adapt to the circumstances of this region and, in particular, to facilitate the exercise of these rights by the most vulnerable people and to protect those who, for exercising them, are persecuted or even killed.
I. The Aarhus Convention and environmental democracy
The “Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters” -available at cep43s.pdf (unece.org)-, sponsored by the United Nations Economic Commission for Europe, has now completed more than two decades since it was signed on June 25, 1998, in the Danish city of Aarhus by 39 European countries.
Described by the then Secretary-General of the United Nations, Ban Ki-Moon, as the most ambitious initiative adopted to date to promote universal environmental democracy, it came into force on October 31, 2001. Spain ratified it on December 29, 2004, and the European Union on February 17, 2005. At present, 46 countries in Europe and Asia are parties to the Convention, plus the European Union itself as a regional integration organization.
This international instrument is based on three interrelated pillars, built up with provisions that grant everyone, including NGOs dedicated to environmental protection, the exercise of fundamental rights for the defense of our common home: access to information, public participation, and access to justice. Furthermore, its provisions are aimed at strengthening the protection of the environment through the articulation of personal and collective rights in the interest of more active involvement of society in its protection. It is, in short, a Convention aimed at involving “each person,” and the non-governmental organizations in which they may be integrated, in environmental information, in the decisions of the public authorities that may affect it and that shape the development model of our society, as well as at strengthening the control and enforcement of the provisions adopted to protect it.
The public participation pillar of the Aarhus Convention is aimed at giving effect to Principle 10 of the Rio Declaration on Environment and Development, according to which “Environmental issues are best handled with the participation of all concerned citizens, at the appropriate level.” The Convention starts from the premise of the critical role played by the involvement of society as a whole in environmental protection, as emphasized in its Preamble, to improve the quality and effective implementation of measures taken by public authorities, to ensure transparency and control of decision-making processes, and to strengthen social support for the decisions thus taken.
The rights of access to information and public participation are granted to any national public authority, which has an obligation to provide environmental information and effective participation of the general public and NGOs in decisions concerning the environment. In case these rights are infringed or national regulations for the protection of the environment are violated, their defense can be claimed before national courts, which must apply the provisions of the Convention for their protection. On the other hand, the Convention has also introduced a novel system of “communication” between individuals and environmental NGOs with the bodies created by the Convention: a unique instrument in the field of international environmental law that allows for denouncing violations of the Convention before a Compliance Committee (see Compliance Committee | UNECE). This Committee has processed and made public nearly 200 communications, most of them submitted by environmental non-governmental organizations, as well as the decisions and recommendations it has addressed to non-compliant States.
The involvement of the EU in the articulation and negotiation of the Aarhus Convention, firstly, and its subsequent ratification, also opened a new stage in European Unión Law on access to information and public participation in environmental issues and, therefore, also in national laws (with the adoption of new directives such as, among others, Directive 2003/35/EC on public participation). In Spain, on the other hand, it prompted the adoption of Law 27/2006, of July 18, which regulates the rights of access to information, public participation, and access to justice in environmental matters. The purpose of this Law is to guarantee that citizens, individually and collectively, can effectively participate in the adoption of measures aimed at ensuring the provisions of article 45 of our Constitution: the right of everyone to enjoy an environment suitable for the development of the individual, as well as the duty to preserve it, through the active collaboration of society in the fulfillment of the mandate addressed to the public authorities to defend and restore the environment, based on the indispensable collective solidarity.
In short, the Aarhus Convention is an essential instrument to advance towards a well-educated and informed society in relation to environmental protection, to facilitate and promote its involvement and effective participation in the decisions that affect our development model, and to guarantee that, in the event that these rights or environmental protection regulations are violated, we can exercise our right to effective judicial protection of our common home.
Carmen Plaza Martín