Bringing environmental rights violators to justice

Residents of a village in country X have noticed an odd taste in their well water lately and an increased incidence of respiratory problems among their children. A nearby former military site is being used as a dumping ground for ashes from a power plant. They are worried there might be a connection.  But when they try to find out, they are subjected to a bureaucratic run-around. The administrative board responsible for the site denies having any obligation to provide information. The local environment and health authorities say they have done a risk assessment study but refuse to disclose it, claiming it contains business secrets of the power plant.

This kind of scenario was foreseen by the drafters of the United Nations Economic Commission for Europe (UNECE) Aarhus Convention on environmental rights, the implementation of which the OSCE supports with an extensive network of Aarhus Centres. Article 9 of the Convention guarantees members of the public the right to a judicial review if they have been denied access to information or participation in decision-making in environmental matters or if they wish to challenge private or public violations of law related to the environment. 

Although there is no doubt that the Aarhus Convention’s provisions on access to justice, often referred to as the Convention’s “third pillar”, have brought a substantial improvement to environmental democracy, challenges remain, not only inside but also outside the courtroom.

“In some countries you have to try to go the administrative route first and then when you try to challenge in court it might be too late,” says Jan Darpo, who heads the UNECE Aarhus Convention Task Force on Access to Justice. “Furthermore, success in court does not guarantee success on the ground. You can actually go to court, but the court decisions are not enforced or enforced using time-consuming procedures. And of course, costs are always a problem: court fees, lawyers’ fees, witness fees, securities – all kinds of different costs. The Convention stipulates that procedures shall not be prohibitively expensive, but what constitutes ‘not prohibitively expensive’ is something that one can and does argue about,” he explains. 

The Parties to the Aarhus Convention recently acknowledged that enforcement of its third pillar is lagging behind. In response, the OSCE Office of the Co-ordinator of Economic and Environmental Activities together with the UNECE decided to organize a regional meeting in Almaty, Kazakhstan on 22 and 23 May 2012. It was hosted by the OSCE Centre in Astana and attended by participants from the five OSCE participating States in Central Asia and from Mongolia, which has recently expressed interest in becoming a Party to the Convention.

Having different stakeholders participating in the discussions really improves the conditions for discussions, and quite often the Aarhus Centres are very well informed.

Jan Darpo

The meeting was innovative because it was tailored for different target groups, both inside and outside the judiciary. The participants included senior judges and representatives of judicial training institutes but also representatives of Aarhus Centres, NGOs and government officials. They discussed case scenarios prepared on the basis of material gathered by the Aarhus Convention’s Compliance Committee – itself an innovative body which individuals or groups can approach directly if they find that a State Party is not complying with the Convention’s provisions. For each case, the question was asked, “what could the Aarhus Centres have done to help ensure that justice was done?”

“Having different stakeholders participating in the discussions really improves the conditions for discussions, and quite often the Aarhus Centres are very well informed,” Darpo observes. “Using the technique of discussing concrete scenarios allows you to bridge professional and also cultural differences. Of course you will never have a judge as outspoken as an NGONGO
non-governmental organization, but the exchange can be quite fruitful.”

Addressing environmental challenges to security requires co-operation between and within countries and among a variety of stakeholders, including civil society, and the Aarhus Convention and the Aarhus Centres are an exceptional tool to this end.

Goran Svilanović

One of the added values of the Aarhus Centres mentioned was that, in addition to informing citizens and providing legal advice on how to approach the courts, they constitute an international network and can share case outcomes and experiences from one country to another.

“Addressing environmental challenges to security requires co-operation between and within countries and among a variety of stakeholders, including civil society, and the Aarhus Convention and the Aarhus Centres are an exceptional tool to this end,” said Goran Svilanović, Co-ordinator of OSCE Economic and Environmental Activities. “The Aarhus Centres provide an excellent platform for promoting dialogue between authorities and non-governmental organizations on environmental protection issues,” Jeanette Kloetzer, Deputy Head of the OSCE Centre in Astana, added.

The representatives of the Central Asian Aarhus Centres convened for a separate day-long consultation after the meeting, at which they discussed how to enhance their network. The OSCE supports 38 Aarhus Centres in 11 countries, which provide practical advice on all aspects of the Aarhus Convention’s implementation. They are part of the Environment and Security (ENVSEC) Initiative work programmes in Central Asia, South Caucasus, Eastern Europe and South-Eastern Europe.