The Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters was signed 25 June 1998. It entered into force 30 October 2001 and was ratified by 41 Parties.
Purpose and issues
The Aarhus Convention aims to “guarantee the rights of access to information, public participation in decision-making, access to justice in environmental matters”.
There are three main issues addressed by the Convention.
First, the Convention recognizes that “every person has the right to live in an environment adequate to his or her health and well-being”. To be able to assert this right, three conditions must be met: citizens must have access to information, be entitled to participate in decision-making and have access to justice.
Second, the three pillars of the Convention seek to strengthen democracy in environmental matters by guaranteeing transparency, improving access to public participation in decision-making, and making effective judicial mechanisms available to the public so that its legitimate interests are protected.
Third, the Convention seeks to improve and strengthen the effectiveness and efficiency of environmental decision-making. Its Preamble states that “improved access to information and public participation in decision-making enhance the quality and the implementation of decisions“. Access to justice must enhance compliance with the law.
Pillar 1: Public access to information (Articles 4 and 5)
Laying the groundwork for the other two pillars, this first pillar addresses public access to information. Article 4 stipulates that public authorities must make any requested information available to the public, without an interest having to be stated. It also, however, outlines limits for the disclosure of certain documents. The main reasons a request for environmental information may be refused are if the disclosure would adversely affect public security, national defence, the course of justice, intellectual property rights, or the confidentiality of commercial and industrial information.
Article 5 addresses the collection and dissemination of environmental information to the public. Suggested means include publicly accessible lists and registers, as well as strengthening administration’s capacity to inform the public. Electronic databases are also encouraged. Article 5 also addresses eco-labelling and informing the public in the event of any imminent threat to human health or the environment.
Pillar 2: Public participation (Articles 6 to 8)
The second pillar of the convention provides a framework for enhanced public participation in decision-making. Annex I is a list of activities which must take into account public participation in decision-making. The Convention also applies to public participation concerning plans and programmes relating to the environment, while article 8 outlines conditions for public participation during the preparation of executive regulations. Article 6 provides a framework for public participation, first by stating that the public shall be informed early in an environmental decision-making procedure, so as to “participate effectively during the environmental decision-making”. Article 6 paragraph 4 is particularly important in that it states when public participation starts: “at the commencement of the procedure“, “when all options are open and effective public participation can take place”. Each Party shall then ensure that in the decision due account is taken of the outcome of public participation.
Pillar 3: Access to justice
The third pillar of the Convention guarantees wider access to justice allows members of the public to challenge the legality of any decision with an impact on the environment. To do so, they must “have a sufficient interest” to act; the interpretation of this clause varies considerably from country to country. Moreover, the Convention provides a framework for this access to justice, specifying that review procedures must be “adequate and effective”. Finally, the procedures must be “fair, equitable, timely, and not prohibitively expensive”. Besides the strictly legal conditions surrounding access to justice, the Convention guarantees “effective” access to justice, notably by effacing the financial barriers which limit this access.
Effects and application
As with most international treaties, the Aarhus Convention was adapted to the national legislations of ratifying States. Although some countries, such as Norway or Sweden, had a head start in this area, central and eastern European States made a great legislative effort. Most countries have yet to improve application of the rights guaranteed by this Convention.
Concretely, adopting the Convention has in some cases led to the creation of an environmental information centre (in France, the IFEN mainly fulfils this role). Access procedures for administrative documents have been implemented or strengthened (in France, this is done by the CADA, the commission for access to administrative documents). Every citizen who is refused a request for information may appeal to this commission, which can order the administrative authority in question to provide the requested information.
The Convention has also led to the implementation or expansion of public debate, such as that organised in France by the national commission for public debate (CNDP). In practice, this means that the public can participate and publicly express its opinions on large projects. The Convention requires countries to take due account of the outcome of public participation.
The area where certainly the least progress has been made is access to justice. Legal (Germany) and financial (UK) barriers remain. Full application of the Convention should allow citizens to defend their case at a cost that is not prohibitively expensive.
The main implementing body is the Conference of the Parties, which meets at least every two years. It organises financing of Convention activities and is competent to adopt amendments to the Convention (an amendment on GMOs is being ratified) as well as to create protocols to the Convention (a Protocol on Pollutant Release and Transfer Registers was adopted in 2003). One of the main characteristics of the COP to the Aarhus Convention is that it logically leaves a large place for NGOs. Besides very generous freedom of expression, they enjoy voting privileges in the final statement of the conference of the parties.
As for convention implementation, at each meeting of the Conference of the Parties, national application reports from each country are examined. This is the opportunity to assess the state of national implementation of the Convention.
Finally, the Aarhus Convention evaluates the monitoring of its application through its Compliance Review Mechanism. This 9-member committee examines appeals made to it regarding non-compliance of national law. It is widely accessible, given that no particular formal conditions are attached to it, so it is open to States, NGOs, and individuals.