The Aarhus Convention Compliance CommitteeThe Aarhus Convention Compliance Committee

Aphrodite SmagadiLegal Officer

Aarhus Convention SecretariatEnvironment, Housing and Land Management Division

United Nations Economic Commission for Europe

Aarhus ConventionAarhus Convention1998 Convention on Access to Information, Public 1998 Convention on Access to Information, Public

Participation and Access to Justice in Environmental Participation and Access to Justice in Environmental MattersMatters

• The Convention in general–Origin and evolution–Content overview

• Compliance Mechanism–Structure–Functions

• Areas of activity• PRTR Protocol

REGIONAL SCOPE – GLOBAL RELEVANCEREGIONAL SCOPE – GLOBAL RELEVANCE

"… the Aarhus Convention … is by far the most impressive elaboration of principle 10of the Rio Declaration... As such it is the most ambitious venture in the area of‘environmental democracy’ so far undertakenunder the auspices of the United Nations."

Kofi Annan, former Secretary-General of the United Nations

ORIGIN AND EVOLUTION OF THE CONVENTIONORIGIN AND EVOLUTION OF THE CONVENTIONJune 1992 Principle 10 of Rio Declaration

Oct 1995 Adoption of UNECE Guidelines on Access to Environmental Information and Public Participation in Decision-making (Sofia Guidelines)

1996 – 1998 Negotiation of the draft Convention

25 June 1998 Adoption at the 4th Ministerial “Environment for Europe” Conference, Aarhus (Denmark), 39 countries and the EC

30 Oct 2001 Entry into force

Oct 2002 1st Meeting of the Parties (MoP 1) (Lucca, Italy)

May 2003 ExMoP: adoption of the Protocol on PRTR (Kiev, Ukraine)

May 2005 MoP 2 (Almaty, Kazakhstan)

June 2008 MoP 3 (Riga, Latvia)

8 Oct 2009 Entry into force of PRTR Protocol

June 2011 MoP 4

ORIGIN AND EVOLUTION OF THE CONVENTIONORIGIN AND EVOLUTION OF THE CONVENTION

June 1992 Principle 10 of Rio Declaration

Environmental issues are best handled with participation of all

concerned citizens, at the relevant level. At the national level, each

individual shall have appropriate access to information concerning

the environment that is held by public authorities, including

information on hazardous materials and activities in their

communities, and the opportunity to participate in decision-making

processes. States shall facilitate and encourage public awareness

and participation by making information widely available. Effective

access to judicial and administrative proceedings, including redress

and remedy, shall be provided.

STATUS OF RATIFICATIONSTATUS OF RATIFICATION

Albania Armenia AustriaAzerbaijan Belarus BelgiumBosnia and HerzegovinaBulgariaCroatiaCyprusCzech RepublicDenmark Estonia European UnionFinland

FranceGeorgiaGermanyGreeceHungaryItalyKazakhstan Kyrgyzstan Latvia Lithuania LuxembourgMaltaMontenegroNetherlandsNorwayPoland

TOTAL: 44 PARTIES TOTAL: 44 PARTIES (including the EU)(including the EU)

PortugalRepublic of MoldovaRomaniaSerbiaSlovakiaSloveniaSpainSweden TajikistanThe FYROM Turkmenistan UkraineUnited Kingdom

CONTENT OF THE CONVENTIONCONTENT OF THE CONVENTION

Objective, definitions, general features (art. 1-3) ACCESS TO INFORMATION (art. 4-5) PUBLIC PARTICIPATION (art. 6-8) ACCESS TO JUSTICE (art. 9) Final clauses (art. 10-22) Annexes

THE THREE ‘PILLARS’THE THREE ‘PILLARS’

INF

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MA

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PA

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ICIP

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DEMOCRACY/RULE OF LAW

AARHUS CONVENTION

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Objective (article 1)Objective (article 1)

In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention.

GENERAL FEATURESGENERAL FEATURES

• Each Party to establish and maintain a clear, transparent and consistent framework to implement the Convention

• Citizens’ rights:

•Substantive – right to a healthy environment, intergenerational equity

•Procedural – to information, participation and justice

• Broad definitions of the “public”, the “public concerned” and the “public authorities”

• Anti-harassment, non-discrimination provisions

Rights irrespective of citizenship, nationality or residence

• Compliance review arrangements

• Open to non-ECE countries

• European Union is a Party and its institutions are covered

ACCESS TO INFORMATIONACCESS TO INFORMATION

• Passive aspect – article 4

• Proactive aspect – article 5

ACCESS TO INFORMATIONACCESS TO INFORMATIONPassive aspect (art 4)Passive aspect (art 4)

• Any person has access (no need to state interest)

• Broad definition of environmental information

• Information to be provided ‘as soon as possible’

• Charges not to exceed reasonable amount

• Limited set of exemptions, with restrictive interpretation (potential

effects of disclosure must be adverse, public interest must be

taken into account)

ACCESS TO INFORMATIONACCESS TO INFORMATIONProactive aspect (art 5)Proactive aspect (art 5)

• Transparency and accessibility of information systems

• Immediate dissemination of information in case of imminent threat to the environment

• Dissemination of international agreements, laws, policies, strategies, programmes, actions relating to the environment

• Sufficient product information to ensure informed environmental choice

• Increased access to information (lists/registers)

• Pollutant release and transfer registers

PUBLIC PARTICIPATIONPUBLIC PARTICIPATION

• Specific activities article 6 annex I to the Convention

• Plans and programmes – article 7• Policies – article 7• Executive regulations and/or

generally applicable legally binding normative instruments - article 8

PUBLIC PARTICIPATIONPUBLIC PARTICIPATIONSpecific projects or activities (art 6)Specific projects or activities (art 6)

• List of types of activity covered (Annex I)

• Timely and effective notification

• Reasonable timeframes

• Free inspection of relevant information by public concerned

• Comments in writing or public hearing

• Taken into account in decision-making

PUBLIC PARTICIPATIONPUBLIC PARTICIPATIONPrograms, plans and policies (art 7 and 8)Programs, plans and policies (art 7 and 8)

Programmes and PlansProgrammes and Plans::

• “appropriate practical and/or other provisions for the public to participate” during the preparation

• reasonable timeframes, early participation

• outcome of public participation taken into account

PoliciesPolicies: : general obligation, but only “to the extent appropriate”

Rules and regulationsRules and regulations:: strive to promote effective public participation in rules, regulation and other legally binding instruments that may have a significant impact on the environment.

ACCESS TO JUSTICEACCESS TO JUSTICE

Review procedures in relation to:

• Information requests (open to any requester)

• Public participation in decision-making (open to public

concerned)

• General violations of national environmental law (great

discretion to national legislator)

ACCESS TO JUSTICEACCESS TO JUSTICEFeatures of review proceduresFeatures of review procedures

• Procedures to be fair, equitable, timely and not

prohibitively expensive

• Decisions in writing, court decisions publicly accessible

• Injunctive relief as appropriate

• Mechanisms to remove financial barriers to be considered

CONVENTION’S GOVERNANCE CONVENTION’S GOVERNANCE STRUCTURESTRUCTURE

• Meeting of the Parties to the Convention (every 3 years)

• Working Group of the Parties (once a year)

• Bureau (three to four times a year)

• Task Forces (once a year)

ImplementationImplementation

• National implementation reports

• When? To each MOP

• By whom? Parties, signatories and other stakeholders

• How? through transparent and consultative process involving the public

• COMPLIANCE MECHANISM

Compliance Mechanism – The ConventionCompliance Mechanism – The Convention

Article 15

The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.

Compliance Mechanism – Decision I/7Compliance Mechanism – Decision I/7

• Decision I/7 (adopted at MoP-1) on Review of Compliance decides on the structure and the procedures to be applied

• Minor revisions introduced through decisions II/5 and III/6 (e.g. the number of the members increased from eight to nine)

Compliance Mechanism – StructureCompliance Mechanism – Structure

• Compliance Committee of nine independent members elected to serve in personal capacity

• Candidates are:

– nationals of Parties or Signatories

– nominated by Parties, Signatories or environmental NGOs

– elected by MoP

• Full term of office = from the end of an ordinary MOP and until the second MOP thereafter

– eg MoP-3 until MoP-5, with possibility for re-election once until MoP-7

• CC normally meets four times/year for a period of four days

Compliance Mechanism - FunctionsCompliance Mechanism - Functions

The Committee

• Reviews compliance of an individual Party, triggered by:

- Submission by Party about another Party

- Submission by Party about itself

- Referrals by secretariat

- Communications by the public

It also prepares reports at request of MoP oversees reporting mechanism may examine compliance issues on own initiative

Nature of non-complianceNature of non-compliance

• General failure by a Party to take the necessary legislative, regulatory and other measures(eg institutional, budgetary) necessary to implement the Convention (art 3, para 1)

• A failure of specific legislation, regulations or other measures implementing the Convention to meet specific requirements of its provisions

• Specific events, acts, omissions or situations that demonstrate a failure by the public authorities to comply with or enforce the Convention

Communications – ProcessingCommunications – Processing

• Receipt and acknowledgment • Preliminary admissibility• Response from the Party concerned (within five

months after forwarding); additional questions may be put for clarification by the communicant

• Admissibility and formal discussions (OPEN to the public)

• Deliberations (CLOSED to the public)• Draft findings and, as appropriate,

recommendations• Findings and, as appropriate, recommendations• MOP endorsement

Communications - basic infoCommunications - basic info• Who may submit?

Any member of the public – lawyer? Not necessary

• What is the State concerned? A Party to the Convention, as long as it has not

opted out

• Can data be kept confidential? YES

• What is the language of the communication? English, Russian or French Working language of the Committee = English

• To whom should the communication be addressed? To Committee through the secretariat

• What is the content and form of the communication? In writing, no specific form, but recommended Include necessary facts and provisions

Communications – AdmissibilityCommunications – AdmissibilityThe Committee makes a preliminary determination on admissibility, unless the communication is:

– Anonymous;– An abuse of the right to make such communications;– Manifestly unreasonable;– Incompatible with the provisions of this decision or with the

Convention. Domestic remedies are taken into account De minimis: communications which the Committee

deems to be insignificant in light of their purpose and function would be determined inadmissible

• Admissibility confirmed at stage of discussions

Communications – FindingsCommunications – Findings

• Non-compliance or non non-compliance

• Subject to agreement of the MoP or of the Party concerned

• All Committee’s findings of non-compliance so far endorsed by MOP (3 Parties at MoP-2, 6 Parties at MoP-3)

The Meeting of the Parties may:The Meeting of the Parties may:(a) Provide advice and facilitate assistance to individual Parties regarding the

implementation of the Convention;

(b) Make recommendations to the Party concerned;

(c) Request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy;

(d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public;

(e) Issue declarations of non-compliance;

(f) Issue cautions

(g) Suspend, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, the special rights and privileges accorded to the Party concerned under the Convention;

(h) Take such other non-confrontational, non-judicial and consultative measures as may be appropriate.

In the inter-sessional period, the Committee may:In the inter-sessional period, the Committee may:

In consultation with the Party:

• Provide advice and facilitate assistance to individual Parties regarding the implementation of the Convention;

Subject to agreement by the Party concerned:

(b) Make recommendations to the Party concerned;

(c) Request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy;

(d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public;

Communications/submissions in numbersCommunications/submissions in numbers

As of November 2010:

• 54 communications from public received, 1 submission (merged with a communication)

• 37 communications have been determined admissible and three will be considered as for the preliminary admissibility at the December meeting

• 26 sets of findings– Non-compliance: 15– Non non-compliance: 11

• 11 cases pending

Useful information on complianceUseful information on compliance

• http://www.unece.org/env/pp/Implemintro.htm

• Implementation Guide (updated version in summer 2011)

• Compliance Committee Guidance Document (includes modus operandi)

AREAS OF ACTIVITY in briefAREAS OF ACTIVITY in brief

• Pollutant release and transfer registers (Protocol)

• Genetically modified organisms: amendment to the Convention (MoP2) establishing public participation procedure for GMO decision-making (Art. 6 bis and annex I bis)

• Access to justice: task force to exchange information and promote good practices

• Electronic information tools: task force to exchange information and promote good practices

• Public participation task force set up at exMoP in April 2010

• Public participation in international forums: task force (Almaty)

PRTR ProtocolPRTR Protocol• Adopted in May 2003, into force since 8 Oct 2009• First legally binding international instrument on

pollutant release and transfer registers• Objective: to enhance public access to information

through the establishment of coherent, integrated nationwide PRTRs

• Each Party to establish a PRTR, publicly accessible through the Internet and maintained through mandatory annual reporting of emissions (air, water and soil) and transfers of pollutants from certain activities

• Open to accession by all UN Member States• Compliance Committee

(1st meeting in January 2011)

MORE INFORMATION AVAILABLE ON MORE INFORMATION AVAILABLE ON THE AARHUS CONVENTION WEBSITE:THE AARHUS CONVENTION WEBSITE:

http://www.unece.org/env/pphttp://www.unece.org/env/pp

AND ALSO ON THE CLEARINGHOUSE:AND ALSO ON THE CLEARINGHOUSE:

http://aarhusclearinghouse.unece.org/http://aarhusclearinghouse.unece.org/

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