Aarhus Convention and access for NGOs

Legal assistance paper

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Date produced: 17/12/2009

Does the Aarhus Convention (AC) grant NGO delegates the legal right to access/remain in the host country conference center to participate in the climate change negotiations?

The AC requires the States (and EU) which are party to it, to guarantee certain rights. One of these rights is the right to participate in listed environmental-decision making processes (based on certain project developments, such as the construction of a new power plant or road); another is the right to participate in the preparation of plans, programmes and policies relating to the environment; and also the right to participate in the preparation of executive regulations and/or generally applicable legally binding instruments.

However, these project processes, plans, programmes, policies, regulations and/or binding instruments are processes (etc) under national law. The UNFCCC/KP processes are international processes. These AC rights therefore do not automatically transfer to international processes.

However, this is not the end of the matter.

Article 3.7 of the AC provides as follows:

Each Party shall promote the application of the principles of this Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.”

It can therefore be said without doubt – as against the host country (and indeed against all AC Parties), but not against the COP/CMP, or the UNFCCC Secretariat (which is not a Party to the AC, and which I presume is the ‘excluding body’) – that they have an international legal obligation under the AC to promote the principles of the AC within the UNFCCC/KP processes.

Although a verb such as ‘promote’ is generally regarded as softer than a verb such as ‘apply’, as it is contained in an in-force treaty, it is still binding. The problem or uncertainty comes in giving such a verb, and thus Article 3.7, meaning; and, having established its meaning, in determining if a breach has occurred.

Some assistance in establishing the meaning is obtained from considering the AC’s Almaty Guidelines (2005) on promoting the principles of the AC in international forums dealing with matters relating to the environment. (Decision II/4, available here: Section V, paras 28 – 39, especially:

http://www.unece.org/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.5.e.pdf.)

There is no doubt that these Guidelines support the participation of NGOs in the UNFCCC/KP processes. For example:

“28. Public participation generally contributes to the quality of decision-making on environmental matters in international forums by bringing different opinions and expertise to the process and increasing transparency and accountability.”

“30. Participation of the public concerned should be as broad as possible.”

“32. The international processes should benefit from public participation from an early stage, including, at the international level, the negotiation and application of conventions; the preparation, formulation and implementation of decisions; and substantive  preparation of events.”

“33. Effective participation of the public concerned may be ensured through a variety of forms, depending on different factors, such as the type of international forum concerned and the nature and phase of the decision-making process. Such forms could include, at meetings in international forums, observer status, advisory committees open to relevant stakeholders, forums and dialogues open to members of the public and webcasting of events, as well as general calls for comments.”

“34. Subject to the more specific guidance contained in other relevant paragraphs, the participation of the public concerned should include, at meetings in international forums, the entitlement to have access to all documents relevant to the decision-making process produced for the meetings, to circulate written statements and to speak at meetings, without prejudice to the ability of international forums to prioritize their business and apply their rules of procedure.”

However, the Almaty Guidelines also foresee limitations. For example:

“31. While an international forum, or a process within it, should in principle be open to the participation of the public, the number of members of the public concerned participating in the meetings may be restricted if this is necessary and unavoidable for practical reasons. Any such restriction should take account of the nature and phase of the decision-making process and the form of participation sought, and should aim at ensuring the quality, efficiency and expediency of the decision-making process. Where they are applied, accreditation or selection procedures should be based on clear and objective criteria, and the public should be informed accordingly.

Such procedures should be transparent, fair, timely, accountable and accessible, and aimed at securing meaningful and equitable participation, while avoiding excessive formalization. Selection criteria may include field of expertise, representation in geographic, sectoral, professional and other relevant contexts, and knowledge of the working language, having due regard for paragraphs 17 and 18.” [These paragraphs are not understood to be relevant for present purposes]

It is to be noted that the above paragraphs do not deal with the situation of post-accreditation exclusions. However, of particular importance in my view, in this context, is paragraph 29 of the Guidelines, the final words of which suggest that such exclusions are possible, even without advance notice:

“29. Participation of the public concerned in the meetings of international forums, including their subsidiary bodies and other groups established by the forums to contribute to the decisionmaking, in matters relating to the environment should be allowed at all relevant stages of the decision-making process, unless there is a reasonable basis to exclude such participation according to transparent and clearly stated standards that are made available, if possible, in advance.”

However, even if paragraph 29 foresees exclusions, and advance notice is not possible, as a minimum the exclusions should be on a “reasonable basis…according to transparent and clearly stated standards”.

In my view, it is therefore reasonably arguable that Article 3.7 of the AC means (in the current context) that the host country has an international legal obligation to allow accredited representatives of NGOs into the Conference Centre, unless it has a reasonable basis for excluding them according to transparent and clearly stated standards, and provided that it can demonstrate that advance notice was not possible.

If the host country is not the excluding body, then in my view it is also reasonably arguable that Article 3.7 at the very least requires the host country – and all other AC Parties at Copenhagen – to satisfy themselves that the four prerequisites (of reasonableness, transparency, clarity and the impossibility of advance notice), have been met by the excluding body (presumably the UNFCCC Secretariat).

If, as I presume, the excluding body is the UNFCCC Secretariat, then the AC imposes no international legal obligations, and the Almaty Guidelines do not apply to the Secretariat in the same way as they do to Parties to the AC. However, in the preamble to the Guidelines, the COP/CMP processes, and the Secretariat, are invited as follows:

“The Meeting of the [AC] Parties

3. Invites international forums within the scope of these Guidelines, including their secretariats, to take into account the principles of the Convention as reflected in these Guidelines and to consider how their own processes might further the application of these Guidelines;”

In my view, the Secretariat should be asked if it considers itself to have accepted this invitation; and, if so, how it considers that the post-accreditation exclusions were made on a reasonable basis according to transparent and clearly stated standards, and why advance notice was not possible (bearing in mind that the Secretariat would presumably have been fully aware of the number of accreditations and capacity of the Conference Centre); and, if not, why not.

In addition, we suggest that each State (and the EU) that is present at the conference might be asked how they have complied with their obligation under Article 3.7 in relation to the NGO exclusions.

The UNFCCC Secretariat must also operate in accordance with the UNFCCC/KP. We are considering further whether they have acted properly.