12 - The Aarhus Convention and the European…

Introduction

In Part 1 of this blog, I will look at the general principles that underly the relationship between the Aarhus Convention and the European Convention on Human Rights (“ECHR”) and will examine decisions of the Strasbourg Courts which have referred to and/or considered the Aarhus Convention.

In Part 2 (which will come much later on), I will look at the awaited decisions of the European Court of Human Rights (“ECtHR”) in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland and Carême v. France. Both cases were heard before the Grand Chamber on 29 March 2023. Oral argument in a third case, Duarte Agostinho and Others v. Portugal, will take place later this year (on 27 September 2023 – see https://youth4climatejustice.org/).

The cases all concern climate change and human rights. At the hearing in March one of the questions posed by the Court’s President O’Leary was “should we, in the specific context either of environmental cases or in climate change, and given that the vast majority of Council of Europe States are parties to the Aarhus Convention, which gives specific rights to environmental associations, should we now in 2023, review our existing case law in relation to the victim status of associations? If not, why not?”: see https://www.ejiltalk.org/climate-change-hearings-and-the-ecthr/.

Environmental rights under the ECHR: background

There are three key points by way of background.

First, as is well-known the ECHR does not explicitly enshrine any right to a healthy environment, but the ECtHR has developed case-law in environmental matters on the basis that certain provisions in the ECHR (articles 2, 3 and 8 in particular) may be breached by the existence of harm to the environment and exposure to environmental risks, see https://www.echr.coe.int/documents/fs_environment_eng.pdf.

Second, the ECtHR has also made it clear that, where relevant, the content of another international Convention, in particular one relating to human rights, may inform interpretation of the ECHR: see Neulinger v Switzerland (2010) 54 EHRR 31 at paras 131 and 132 and R. (DA) v Secretary of State for Work and Pensions [2019] 1 W.L.R. 3289 at para. 71. The recitals of the Aarhus Convention record that “[r]ecognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including the right to life itself”.

Third, a particular issue that arises in relation to environmental cases under the ECHR is the “victim” requirement imposed by Article 34; traditionally the ECtHR has taken a restrictive view in relation to the victim status of environmental organisations. Such organisations have, in contrast, a highly privileged status under the Aarhus Convention.

The case-law to date

A search of the HUDOC database (undertaken on 25 July 2023) reveals that there are 9 ECtHR decisions (available in English) which have referred to and/or considered the Aarhus Convention. In chronological order:

1. Taşkin and others v Turkey (Application no. 46117/99) (30 March 2005). In this case the ECtHR referred to the Aarhus Convention as part of the relevant international materials. It also referred to the Parliamentary Assembly of the Council of Europe adopted Recommendation 1614 (2003) on environment and human rights of 27 June 2003 (“the Recommendation”) which records that: “9. The Assembly recommends that the Governments of member States: … iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention“: see paras. 99 and 100 of the judgment. Beyond this, however, the Aarhus Convention did not explicitly feature in the reasoning of the ECtHR in that case. However, the ECtHR did say the following, which seems to have been influenced by the Aarhus Convention (see also DEMIR below) (emphases added):

“118. The Court reiterates that, according to its settled case-law, whilst Article 8 contains no explicit procedural requirements, the decision-making process leading to measures of interference must be fair and such as to afford due respect for the interests of the individual as safeguarded by Article 8 (see, mutatis mutandis, McMichael v. the United Kingdom, judgment of 24 February 1995, Series A no. 307-B, p. 55, § 87). It is therefore necessary to consider all the procedural aspects, including the type of policy or decision involved, the extent to which the views of individuals were taken into account throughout the decision-making process, and the procedural safeguards available (see Hatton and Others, cited above, § 104). However, this does not mean that decisions can only be taken if comprehensive and measurable data are available in relation to each and every aspect of the matter to be decided.

119. Where a State must determine complex issues of environmental and economic policy, the decision-making process must firstly involve appropriate investigations and studies in order to allow them to predict and evaluate in advance the effects of those activities which might damage the environment and infringe individuals’ rights and to enable them to strike a fair balance between the various conflicting interests at stake (see Hatton and Others, cited above, § 128). The importance of public access to the conclusions of such studies and to information which would enable members of the public to assess the danger to which they are exposed is beyond question (see, mutatis mutandis, Guerra and Others v. Italy, judgment of 19 February 1998, Reports 1998‑I, p. 228, § 60, and McGinley and Egan v. the United Kingdom, judgment of 9 June 1998, Reports 1998‑III, p. 1362, § 97). Lastly, the individuals concerned must also be able to appeal to the courts against any decision, act or omission where they consider that their interests or their comments have not been given sufficient weight in the decision-making process (see, mutatis mutandis, Hatton and Others, cited above, § 127).”

2. Okyay and other v Turkey (Application no. 36220/97) (12 October 2005): This also mentioned the Recommendation (referred to above) in passing.

3. Demir and Baykara v Turkey (Application no. 34503/97) (12 November 2008): In this case the ECtHR noted that:

“83. In the Taşkın and Others v. Turkey case, the Court built on its case‑law concerning Article 8 of the Convention in matters of environmental protection (an aspect regarded as forming part of the individual’s private life) largely on the basis of principles enshrined in the United Nations Economic Commission for Europe’s Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (ECE/CEP/43) (see Taşkın and Others v. Turkey, no. 49517/99, §§ 99 and 119, 4 December 2003). Turkey had not signed the Aarhus Convention.”

4. Atanasov v Bulgaria (Application no. 12853/03) (11 April 2011). This again mentions both the Aarhus Convention and the Recommendation in passing (see paras. 55 and 57);

5. Grimkovskaya v Ukraine (Application no. 38182/03) (21 July 2011). This case concerned a Ukrainian national who lived in Krasnodon (Ukraine). She lived in a house with her parents and son. According to her, in 1998, the authorities routed a motorway M04 through her street which had only been constructed as a residential street, had no drainage system, pavements or proper surfacing able to withstand high volumes of heavy goods traffic. As a result, she claimed that her house became unusable, as the people living in it suffered from the constant vibrations provoked by the traffic, and from the consequent noise and pollution. She complained of a violation of Article 8. The complaint was upheld. In so doing The ECtHR made mention of the Aarhus Convention and the Recommendation (as per Taşkin, see above) and said (emphases added):

“69. Thirdly, emphasising the importance of public participation in environmental decision-making as a procedural safeguard for ensuring rights protected by Article 8 of the Convention, the Court underlines that an essential element of this safeguard is an individual’s ability to challenge an official act or omission affecting her rights in this sphere before an independent authority (see Dubetska, cited above, § 143). It also notes that as of 30 October 2001 the Aarhus Convention, which concerns access to information, participation of the public in decision-making and access to justice in environmental matters has entered into force in respect of Ukraine (see paragraph 39 above). In the meantime, it has not been shown in the present case that the applicant was afforded a meaningful opportunity to contest the State authorities’ policymaking regarding the M04 motorway during the period of October 1998 – June 2002 before the domestic courts.

…

72. Overall, the Court attaches importance to the following factors. First, the Government’s failure to show that the decision to designate K. Street as part of the M04 motorway was preceded by an adequate environmental feasibility study and followed by the enactment of a reasonable environmental management policy. Second, the Government did not show that the applicant had a meaningful opportunity to contribute to the related decision-making processes, including by challenging the municipal policies before an independent authority. Bearing those two factors and the Aarhus Convention (see paragraph 39) in mind, the Court cannot conclude that a fair balance was struck in the present case.”

So it will be seen that reliance on the Aarhus Convention was an aspect of the ECtHR’s reasoning that there was a violation of Article 8 in that case.

6. Di Sarno and others v Italy (Application no. 30765/08) (10 April 2012): In this case the ECtHR noted:

“107. As to the procedural obligations under Article 8, the Court reiterates that it attaches particular importance to public access to information that enables them to assess the risks to which they are exposed (see Guerra and Others, cited above, § 60; Taşkin and Others v. Turkey no. 46117/99, § 119, ECHR 2004-X; Giacomelli v. Italy, no. 59909/00, § 83, ECHR 2006‑XII; and Tătar v. Romania, no. 67021/01, § 113, ECHR 2009‑... (extracts)). It further reiterates that Article 5 § 1 (c) of the Aarhus Convention, which Italy has ratified, requires each Party to ensure that “in the event of any imminent threat to human health or the environment, whether caused by human activities or due to natural causes, all information which could enable the public to take measures to prevent or mitigate harm arising from the threat and is held by a public authority is disseminated immediately and without delay to members of the public who may be affected””

7. National Movement Ekoglasnost v Bulgaria (Application no. 31678/17) (15 March 2021). In this case the ECtHR said:

“56. The United Nations Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (“the Aarhus Convention”) was adopted on 25 June 1998 and came into force on 30 October 2001. Bulgaria ratified the Convention in 2003. The Convention entered into force with respect to Bulgaria on 16 March 2004.

57. The Aarhus Convention promotes public participation in decision‑making and access to justice concerning issues with an environmental impact. In particular, the relevant provisions which deal with access to justice in environmental matters may be found in Tătar v. Romania, no. 67021/01, 27 January 2009 and Austin v. the United Kingdom ((dec.), no. 39714/15, §§ 27-28, 12 September 2017).”

8. Ecodefence and others v Russia (Applications nos. 9988/13 and 60 others) (14 June 2022). The ECtHR noted that:

“283. An inspection of the applicant organisation was carried out by the Nizhniy Novgorod Justice Department in April-May 2015. It was established that the applicant organisation was funded by Foundation for Sustainable Development, USAID, International Fund for Animal Welfare and World Wide Life for Nature, and had engaged in the following actions which were taken to constitute “political activities”: supporting a referendum initiative in support of the direct election of town mayors; advocating for the release of a Russian environmental activist and a member of the political opposition, and organising a protest to support him; issuing publications about State policy and statements by the organisation’s directors about local authorities’ decisions and environmental principles of State governance; criticising State authorities and Russian laws in a newspaper publication; recommending the ratification of environmental treaties such as the Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters, in addition to the amendment of existing environmental laws, the adoption of a new law on environmental control, and the establishment of an effective system of environmental control; and participating in an impact assessment of a law amending the local Code of Administrative Offences …

290. An inspection of the applicant organisation was carried out by the Justice Department of the Kaliningrad Region in June 2014. It was established that the applicant organisation was funded by Ecoinitiative, the Heinrich Böll Foundation, and the Nordic Council of Ministers, and had engaged in the following actions which were taken to constitute “political activities”: participating in protests against the construction of the Baltic Nuclear Power Station; advocating Russia’s accession to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, and the Espoo Convention on Environmental Impact Assessment in a Transboundary Context; and contributing to the development of education and initiatives in the environmental field.”

9. There is also a passing mention of the Aarhus Convention in Kotov and others v Russia ((Applications nos. 6142/18 and 13 others) (11 January 2023).

I should also mention Melox v France (Application no. 75218/01) (12 September 2007), only available in French, where I understand that the ECtHR specifically highlighted the importance played by environmental non-governmental organizations. In doing so, drawing on the Aarhus Convention, and in the process arguably strengthening the effectiveness of the Convention when finding Article 6 of the ECHR applicable to the circumstances of the case.

Authors

– James Maurici KC – James has been in many of the leading cases on Aarhus costs including: R (RSPB) v SSJ [2017] 5 Costs L.O. 691; Case C 530/11 Commission v United Kingdom; Case C-260/11 Edwards v EA; R (Edwards) v EA (No.2) [2011] 1 Costs L.R. 70 and [2013] UKSC 78; and R (Edwards) v EA [2011] 1 W.L.R. 79. He has also appeared a number of times before the UNECE Aarhus Compliance Committee in Geneva, cases include: ACCC/C/2010/45; ACCC/C/2010/53; ACCC/C/2011/60; ACCC/C/2011/61; ACCC/C/2012/77; and ACCC/C/2014/100 and 101. He is currently acting for the UK Government on the Brexit communication to the Compliance Committee – ACCC/C/2017/150. He was one of the contributors to the Aarhus Convention: A Guide for UK Lawyers (2015) and he has written and lectured extensively on the Aarhus Convention.

– Jacqueline Lean – Jacqueline has also been instructed on a number of matters concerning the Aarhus Convention, including appearing (with James Maurici KC) for United Kingdom before the Aarhus Compliance Committee on two communications concerning the Government’s decision to proceed with HS2 (ACCC/C/100 & 101); representing the Secretary of State for Communities and Local Government Secretary of State in R (CPRE Kent) v Secretary of State for Communities and Local Government [2019] EWCA Civ 1230 in which the Court of Appeal considered the approach to summary assessment of costs at permission stage when an Aarhus costs cap applied; and acting for the Secretary of State in R (RSPB) v Secretary of State for Justice [2018] Env LR 13, a challenge to the Government’s amendments to the Aarhus costs protections in the CPR (also with James Maurici KC). She is also a contributing author to Coppel’s ‘Information Rights’ on Environmental Information.

– Nick Grant – Nick joined Chambers in 2019 and has regularly advised on Aarhus related matters. He has represented the UK twice before the Aarhus Convention Compliance Committee, appearing with James Maurici KC in ACCC/C/2017/150 (the Withdrawal Act case) and unled in the admissibility hearing for ACCC/C/2022/194 (the free trade agreements case).

– Alex Shattock – Alex has been involved in a number of environmental claims including Friends of the Earth v SSLUHC (the Cumbria coal mine case: acting for Friends of the Earth in the Planning Inquiry and High Court, with Paul Brown KC and Toby Fisher); Cox and Ors v Oil and Gas Authority [2022] EWHC 75 (Admin) (representing Extinction Rebellion activists in a challenge to the Oil and Gas Authority’s Strategy, with David Wolfe KC and Merrow Golden); R (Hough) v SSHD [2022] EWHC 1635 (acting for the claimant in an environmental and equalities challenge to the controversial use of Napier Barracks as asylum seeker accommodation, with Alex Goodman and Charles Bishop). He regularly advises individual and NGO clients on Aarhus costs protection. Alex also has a keen interest in treaty law generally. He has a masters and PhD in public international law and has been involved in various treaty negotiations and treaty ratification processes.