Status of NGO treaty submission (Part 2) – Aarhus Convention

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All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 10/12/2009

In addition to the advice given in Part 1, those seeking to argue for consideration of the NGO draft might find it useful:

(a) with the UNFCCC, to make reference to the Aarhus Convention (AC) and the Almaty Guidelines; and

(b) with AC Parties, to request details of how their obligation under Article 3.7 of the AC is being complied with in the climate change negotiation process.

We set out below some more information on the AC and the Almaty Guidelines.

The Aarhus Convention

The most extensive degree of NGO and citizen participation in official treaty-making processes that we are aware of occurred during the negotiations for the UN ECE Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, adopted in 1998:

http://www.unece.org/env/pp/documents/cep43e.pdf.

This degree of participation has continued in relation to the meetings of the Parties under that Convention, and has included representation on the Compliance Committee.

The then UN Secretary General Kofi Annan described the Convention as “the most ambitious venture in environmental democracy undertaken under the auspices of the United Nations [whose] adoption was a remarkable step forward in the development of international law.”

Jermey Wates, the UNECE official responsible for the AC (and, before that position, head of the pan-European NGO delegation to the negotiations) has written:

“When the actual negotiations [for the AC] began, NGOs participated to an extent hitherto unprecedented in the development of any international law. Under the chairmanship of Prof. Willem Kakebeeke (Netherlands), they were invited to intervene on a basis more or less equal to that on which government delegations participated, having considerable influence upon the resulting text.”

(JEEPL 2005, page 9 here: [Link no longer available]).

The Convention guarantees rights of access to information, to participate in decisions that affect the environment, and access to justice.

Under Article 3.7, State Parties (but not the UNFCCC Secretariat) have the following legal obligation:

“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.”

 The Almaty Guidelines

 At their second meeting in Almaty, Kazakhstan (May 2005), the Parties adopted a set of guidelines on promoting the principles of access to information, public participation in decision-making and access to justice 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.)

 Several paragraphs might help in discussing with the UNFCCC Secretariat. For example, paragraph 32 provides as follows:

 “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.”

 Most European countries, and the EU, are Parties to the AC. Norway, and Sweden on behalf of the EU, might be receptive. In July 2009, Norway supported the ECO-Forum proposal reminding AC Parties to apply Article 3.7 in the context of the UNFCCC processes, in particular the upcoming COP 15; and Sweden, on behalf of the EU, expressed its support for public participation in international forums and stressed that the EU was committed to promoting the application of the principles of the Convention in international environmental decision-making processes  (see paragraphs 87 and 88 of the Report of the 11th Session of the AC Parties, available here:

http://www.unece.org/env/pp/wgp/ece_mp_pp_wg_1_2009_2_adv.pdf). Denmark might also be worth approaching, as the AC was adopted in their second city and they are generally proud of it.