The Foundations of the Aarhus Convention

Environmental Democracy, Rights and Stewardship

Emily Barritt

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509915286
• Edition: 1
• Topic: Droit
• Subtopic: Droit de l'environnement

This important new monograph offers an innovative new analysis of the Aarhus Convention. Environmental law is dense with monolithic concepts, from environmental democracy to intergenerational justice, from sustainable development to stewardship. Each concept generates its own mythology about what environmental law should aspire to. Sometimes these ideas become so big that we lose hold of their meaning and therefore what we allude to when we describe environmental law in such terms. No more so is this true than in relation to the Aarhus Convention – an ambitious instrument of environmental law that promotes public participation and access to justice in relation to the environment. Since its inception it has been revered in glowing terms, and praised variously for its contribution to citizenship, environmental responsibility and democratic legitimacy. But how are we to know whether these descriptions are mere puffs or genuine statements about the Convention's character? This book digs deep into the foundations of the Aarhus Convention, examining its ambitious potential through the lens of three foundational purposes – environmental rights, democracy and stewardship. In so doing, it contributes to our understanding both of the Convention and our understanding of three important purposes that inhabit environmental law, unravelling and reassembling them to build meaning into our broad-brush descriptions.

1

The Philosophical Scope of the Aarhus Convention

Understanding knowledge as an essential element of love is vital because we are bombarded daily with messages that tell us love is about mystery, about that which cannot be known.¹

I.INTRODUCTION

The Aarhus Convention was the first of its kind: an environmental agreement primarily concerned with the obligations that Parties have towards the public, rather than simply those between Parties (as is the pattern of other multilateral environmental agreements).² Aarhus therefore has a dual identity; it is both an environmental agreement and a human rights one.³ Mirroring the form of Principle 10 of the Rio Declaration, the Convention is composed of three pillars that correspond to three rights – access to environmental information, public participation in environmental decision-making and access to justice in environmental matters. Like Principle 10, the Convention is predicated on the consensus view of international environmental law, that ‘environmental issues are best handled with the participation of all concerned citizens’.⁴ At the time it was drafted,⁵ and for a long time afterwards, the Aarhus Convention was ‘the most impressive elaboration of Principle 10’ in international law and represented the high watermark of good environmental decision-making.⁶ Central to the ethos of the Aarhus Convention is the recognition that the profound environmental challenges of our times – climate change, pollution, biodiversity loss, food insecurity etc – require a transnational, transpolitical and transcommunity effort.

Animating the three pillars of the Convention are a number of far-reaching purposes which inform how the Convention should operate.⁷ These purposes range from the establishment of international legal standards on individual environmental rights,⁸ to the advancement of environmental citizenship.⁹ They are ambitious and wide ranging, and accordingly the Convention’s foundations have an expansive ‘philosophical scope’.¹⁰ However, because the Convention’s aims are ambitious, relating to high ideals, they are also ambiguous.¹¹ Many of the Convention’s purposes correspond to complex and contested concepts that do not give rise to straightforward definitions. Take, for example, the Convention’s aspiration to improve government legitimacy: legitimacy could simply mean ‘social credibility and acceptability,’ but this straightforward definition can have pragmatic, moral and cognitive dimensions.¹² As Julia Black highlights, legitimacy ‘can differ significantly across time and space, and between actors, systems and contexts’.¹³ How these various purposes influence the ways in which the Convention should be interpreted is, accordingly, unclear and it is not enough to simply say that the Convention improves government legitimacy, without first defining legitimacy.

To understand these purposive ambitions of the Convention, and their interpretive consequences, it is necessary to take a step back from nitty gritty challenge of its implementation and to reflect on what it is the Convention is aspiring to. Birthdays are always a good opportunity to do this, and in the twentieth year of the Convention’s adoption, there was a significant degree of meditation on the impressive vision that inspires the Aarhus Convention.¹⁴ In this book, I reflect on a part of that vision by isolating and examining three animating purposes – environmental rights, environmental democracy and environmental stewardship. In so doing, I hope to better understand the ambitious scope of the Convention.

Discerning these purposes is both a challenging and enjoyable task. There is a significant body of explanatory material that surrounds the Convention and thus an extensive range of possible purposes to explore. The preamble is a rich narrative of the Convention’s scope, as are its travaux préparatoires, Implementation Guides¹⁵ and Strategic Plans.¹⁶ More recently, additional narrative materials have been produced as part of the twentieth anniversary celebration, all of which contribute to the folklore of the Convention. On the UNECE website for the Aarhus Convention there are a total of 33 different publications all elaborating aspects of the Convention’s character. Further, given its compelling nature, there is also a vast and revealing academic commentary on the Convention, often drafted by those intimately connected with its development and delivery.¹⁷ There are, therefore, plenty of explanatory resources to draw on in analysing the Convention’s philosophical scope. Selecting only three purposes to study, although necessary to make this book manageable, was a challenge.

The first purpose I consider, environmental democracy, is the purpose that dominates the chronicles of the Convention. From the Foreword to the first edition of the Convention’s Implementation Guide, where Kofi Annan described it as the ‘most ambitious venture’ in environmental democracy,¹⁸ to the 2017 Budva Declaration on Environmental Democracy for Our Sustainable Future, the call of environmental democracy on the Convention is loud and clear.¹⁹ Environmental rights, the second purpose, relates directly to the Objective of the Convention contained in Article 1. Article 1 commits the Convention and its three pillars to contributing to the protection of the ‘right of every human being both now and in the future to an environment adequate to human health and well-being’. This purpose is critical because it is an explicit animating purpose found in the main text of the Convention. However, as a purpose it is frequently misunderstood, and one of the key messages from the Rome Anniversary Event was that this objective ‘is often forgotten’.²⁰ The final purpose, environmental stewardship, is neither made explicit in the Convention’s text nor is it proclaimed boldly as a purpose of the Convention. Instead, it is a soft but persistent whisper that runs throughout the entirety of the Convention, breathing life into the three pillars and balancing the other two purposes on the edge between human needs and environmental responsibility.

Unpacking these three purposes is the principal activity of this book, but before embarking on their examination, there are number of things I need to do prepare the ground. The first is to say something about how and why the Convention was developed. Understanding the history of the Convention’s development is important both for identifying the philosophical scope of the Convention and for explaining why some of its purposes are so complex and at times controversial. This is particularly so for the environmental rights purpose, which was the subject of heated disagreement in the early stages of the Convention’s creation. Second, I scratch the surface of the Convention’s philosophical scope, showing both how wide ranging the purposive ambitions of the Convention are, but also how important they are for understanding how the Convention is used and interpreted. I will come back to this in Chapter 2, where I explain in more detail how and why each of the three purposes was selected for examination. For now, I simply draw attention to the life that stirs in the foundations of the Convention.

Third, I switch gears from doctrinal scene-setting to explaining my intellectual approach. Principally, I am concerned with deeply ‘understanding’ the Convention and its animating purposes; that is ‘to describe and analyse’ them ‘in order to comprehend’ both the three candidate purposes and the Convention itself.²¹ However, as these purposes correspond to complex and contested concepts, much of the book is a tumultuous theoretical tour of conceptual complexity. In order to navigate this tumult, I take a systematic approach, ‘elucidating the content’ of each purpose whilst maintaining its essential dynamism.²² This approach requires a careful methodology and thoughtful explanation, which I will clarify in section III below, situating my work within an intellectual tradition that embraces conceptual dynamism.²³

II.CONSTRUCTING THE CONVENTION

The Aarhus Convention was adopted on 25 June 1998 at the Fourth Ministerial Conference of the ‘Environment for Europe’ process and it entered into force on 30 October 2001. To date it has been adopted by 47 parties within the United Nations Economic Commission for Europe (UNECE) region, including the European Union. The Convention is founded on three related pillars: access to information; public participation; and access to justice in environmental matters. Although the negotiation of the Convention officially began in 1996, its inception can be traced back to an ECE draft charter of environmental rights and obligations prepared in 1990.²⁴ Although this charter was never endorsed, in part because of a lack of consensus associated with the inclusion of a substantive right to a healthy environment, its influence can be detected in how the Aarhus Convention was eventually drafted.²⁵

At the Second Environment for Europe Ministerial Conference in 1994 a Task Force on Environmental Rights and Obligations was established.²⁶ This Task Force was appointed to draw up a set of draft guidelines that focused on the merits of procedural rights in environmental matters, steering clear of the more controversial proposal related to the substantive right to a healthy environment. The new draft reflected the procedural approach advocated in Principle 10 of the 1992 Rio Declaration on the Environment and Development.²⁷ These guidelines – the ECE Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-making (the Sofia Guid...

Table of contents

• Cover
• Dedication
• Title Page
• Acknowledgements
• Table of Contents
• Introduction
• 1. The Philosophical Scope of the Aarhus Convention
• 2. The Three Purposes
• 3. Environmental Democracy
• 4. Environmental Rights
• 5. Environmental Stewardship
• 6. Interpretive Possibilities
• 7. Conclusion
• Index
• Copyright Page