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The Aarhus Convention and the Access to Justice
Pillar:
Article 9.3
Stephen StecTirana, 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 through the use of their basic rights
• Aarhus Conv Art. 9.1 should be seen in this context as a rights-based tool for individuals and organizations to protect the environment
Article 9.3
Obligation to provide opportunities for public to challenge general violations of national law relating to the environment (citizen enforcement)
Article 9.3
By the language of the article, this is a separate and distinct opportunity from those found in Article 9, paras. 1 and 2
Involves the availability of administrative or judicial procedures to members of the public …
To challenges acts and omissions of private persons and public authorities that contravene environmental law (not limited to core Convention matters)
Article 9.3
Parties may develop criteria in their national law applicable to members of the public in order for them to make use of this right
Sofia Guidelines para. 26 promotes the notion of broad standing in environmental proceedings
Some countries have granted NGOs standing to bring administrative or judicial action based on their statutory goals (NL, PO, CH, I)
This may even include the right to bring criminal actions
Article 9.3 – Actio Popularis
In some countries individual members of public have to show a direct interest, or meet other requirements, which however should not be too restrictive
Other countries have a form of actio popularis which allows public to go to court concerning failures of public administration to execute laws without need to show a direct interest
While general a.p. is rare, several countries allow for constitutional issues to be raised without standing requirements
Article 9.3 – Cases
Challenges to authorities’ failure to enforce conditions of environmental permit
Failure to develop management plan required by law
Inability to challenge findings in land use or urban planning (therefore may act as access to justice provision related to Art. 7)
Failure to provide adequate remedies in a case of this nature
Article 9.3 – Matters to consider
Whether a review procedure was provided
Whether the matter complained of is a requirement under the country’s environmental law (i.e., whether act or omission is a legal duty)
Whether the authority in fact acted properly in the particular case (complainant cannot prescribe the method authority uses to discharge duty)
