By: Gordon Cobb
Recent news stories suggest that the UK’s “Brexit” bill to withdraw from the EU might violate UN environmental law, specifically an agreement signed in 1998 called the Aarhus Convention.[i] This report will briefly examine the history of the Aarhus Convention, its environmental regulations, and the reasons the withdrawal bill might be in violation of international law.
History of the Aarhus Convention
The development of the Aarhus Convention began in 1991, when the United Nations Economic Commission for Europe (UNECE) created the “Environment for Europe” initiative, as a post-communist effort to “promote pan-European environmental cooperation.”[ii] The initial step towards environmental cooperation was the First Ministerial Conference in 1991, where politicians from 34 European countries, as well as representatives from the United States, Brazil, Japan and various UN bodies gathered at Dobris Castle in Czechoslovakia.[iii] The conference aimed to increase cooperation between European countries in efforts to “protect and improve the environment, and of long term strategies toward an environmental programme for Europe.”[iv] The conference laid a framework for the Environment for Europe and set up a number of guidelines including: “need for intensified cooperation, introduction of ecological aspects in the process of transition of economies in central and eastern Europe; promotion of environmental considerations by financial and economic assistance; assistance to improve environment-related health conditions; and finally that each country shall bear responsibility for global environmental problems.”[v] Overall, the Dobris Conference highlighted the need to develop an environmental program in Europe and developed a baseline of cooperation from which future environmental laws would grow.[vi]
The Environment for Europe continued to grow as more conferences convened and more countries joined environmental program.[vii] The number of European countries represented at the second conference grew to forty-five[viii], and the number increased to forty-nine at the third meeting.[ix] Each conference led to changes in policy and increased cooperation between countries, but it was the Aarhus Convention that resulted in the doctrine that now potentially challenges the British government.
In 1998, the Fourth Ministerial Conference took place in Aarhus, Denmark.[x] Representatives of fifty-two states attended and passed new guidelines for European countries, including protocols designed to eliminate the use of lead in petrol, transboundary air pollution and an initiative to strengthen support from member countries to newly independent states and non-member European nations.[xi] Of chief importance today is the conference’s adoption of the “Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.”[xii] Members of thirty-five countries signed on, in addition to the Ministers themselves.[xiii] The Aarhus Convention strengthened the power of individuals throughout Europe in terms of environmental law and impact.[xiv] The Public Access protocol breaks down into three distinct rights for individuals.[xv]
Explaining Aarhus and Public Access
The first new right was “access to environmental information.”[xvi] Individuals had the right to “receive environmental information that is held by public authorities.”[xvii] This information includes data on the state of the environment, “the state of human health and safety” and any environmental policies put in place.[xviii] To access this information individuals were required to fill out an application and submit it to the group from which the information was requested.[xix] Individuals did not have to give any reason for their request, just filling out an application entitled them to the requested information within one month.[xx] Additionally, public authorities were instructed to actively and regularly release environmental information to the public.[xxi]
The second right implemented was “public participation in environmental decision-making.”[xxii] This placed a requirement on public authorities to create avenues for discussion between themselves and “the public affected and environmental non-governmental organizations” about proposals, projects, and plans that would impact the environment in any way.[xxiii] It also tasked public authorities with considering public commentary as they continued work on the plans and projects.[xxiv] All final decisions were then to be released to the public with explanations and reasoning provided.[xxv]
The third and final right was “access to justice.”[xxvi] This applied the right to review when public decisions were challenged for not respecting rights one and two in environmental law and policy decisions.[xxvii]
The Convention on Access to Environmental Information, Public Participation and Decision-making and Access to Justice in Environmental Matters was signed at the Aarhus Convention in 1998 and marked the end to two years of negotiations between members.[xxviii] The final rules were the result of a compromise between groups who wanted a complete freedom of environmental information and those who believed States should be able to restrict access to the information in certain situations.[xxix] This compromise created the first international rule granting the public to access government environmental information and giving them a role in policy creation.[xxx]
Why Aarhus Matters
The importance of the rights provided by the Convention goes beyond the face of the three-pronged text; it symbolized a public acknowledgement of the connection between human and environmental rights.[xxxi] Cooperation between States in environmental matters is what led to the Environment for Europe movement and subsequently the development of the Aarhus Convention and public access rights. As the Ministerial Conferences continued to meet and grow in numbers the members always stressed the importance of cooperation between states as a key to future success in environmental matters.[xxxii] By signing the Public Access Convention, the States broadened the scope of cooperation in environmental matters; now, States would not only work together to protect the environment, they would work with their people as well. The following excerpt by European Environmental experts describes the importance of the Aarhus Convention for the public and the environment:
Aarhus Convention is a new kind of environmental agreement. It links environmental rights and human rights and acknowledges that we owe an obligation to future generations. It established that sustainable development can be achieved only through the involvement of all stakeholders, links government accountability and environmental protection and focuses on interactions between the public and public authorities in a democratic context and it is forging a new process for public participation in the negotiation and implementation of international agreements.[xxxiii]
The importance of the Aarhus Convention and the Right to Access is clear; so how does Brexit violate this law?
Brexit and Aarhus: What’s Next?
While the UK was a member of the EU, EU environmental law directly impacted and governed the UK’s environmental policies.[xxxiv] By leaving the EU, the UK will no longer be subject to EU environmental legislation and by withdrawing will have to amend or eliminate environmental EU-based policies.[xxxv] However, according to Friends of the Earth, a non-governmental environmental rights group[xxxvi], the EU withdrawal bill passing through the House of Commons violates the Aarhus Convention and UN law.[xxxvii] The bill reportedly gives government ministers, specifically, the Department for Environment, Food and Rural Affairs (Defra), the authority to determine the actions taken regarding the country’s post-EU environmental policies.[xxxviii] This is no small task; the EU environmental policies at issue number over 1000.[xxxix] Concern over the bill comes from many groups who criticize expansive powers given to the government post withdrawal, worrying that the “Henry VIII Powers” are overreaching and undemocratic.[xl]
The Aarhus Convention dictates that the government must involve the public when taking any steps that change or create new policies that impact the environment.[xli] According to Friends of the Earth, the Government never presented the proposed legislation to the public and therefore deprived them of any opportunity to comment on the bill before it went before Parliament.[xlii] If the public truly had no chance to view or impact the bill, then the withdrawal bill violates the Aarhus Convention. Michael Mason, a professor at the London School of Economics, says “the UK is either fully in or would have to pull out from the treaty. To stay in, the UK government will have to retain all EU-derived law implementing Aarhus obligations. A withdrawal from the Aarhus convention would be disastrous for UK environmental policy.”[xliii] This challenge comes after a February 2017 case where campaigners won against the Ministry of Justice for “failing to meet its legal obligations on access to justice under the Aarhus convention.”[xliv] Now, the government has until June 5 to respond to the complaint and a UN committee will determine whether or not the withdrawal bill violates UN environmental law.[xlv]
[i] Laura Laker, Brexit bill may have broken international environmental law, says UN, The Guardian (Jan. 9, 2018, 8:56), https://www.theguardian.com/environment/2018/jan/09/brexit-bill-may-have-broken-international-environment-law-says-un [https://perma.cc/LGY9-N3RH].
[ii] Michael Mason, Information Disclosure and Environmental Rights: The Aarhus Convention, 10 Global Environmental Politics, ¶ 4 (2010).
[iii] First Ministerial Conference “Environment for Europe”, UNECE https://www.unece.org/env/efe/historyofefe/history.en1991_01.html [https://perma.cc/C6FW-N5Q2].
[vi] See id.
[vii] See Meetings & Events, UNECE https://www.unece.org/env/efe/meetings.html#/0/0/0/28093/8150 [https://perma.cc/FX7K-H7RY].
[xxi] Aarhus, supra note 15.
[xxvi] Fourth Conference, supra note 10.
[xxvii] Aarhus, supra note 15.
[xxviii] Axel Luttenberger & Biserka Rukavina, The Right to Access to Information on Environmental Matters, Energy and the Environment 257 (2004) https://bib.irb.hr/datoteka/273798.Luttenberger_-_The_right_to_access_to_information_on_environmental_matters.pdf [https://perma.cc/QN8V-5NZ9].
[xxxi] See id.
[xxxii] See First Conference, supra note 3; See Second Conference, supra note 8; See Third Conference, supra note 9; See Forth Conference, supra note 10.
[xxxiii] Id. at 258.
[xxxiv] Laker, supra note 1.
[xxxvii] Josh Robbins, Brexit bill may break international law, claims UN, International Business Times (Jan. 11, 2918, 9:03), http://www.ibtimes.co.uk/brexit-bill-may-break-international-law-claims-un-1654458 [https://perma.cc/YYD2-KUPR].
[xli] See Brexit & The Aarhus Convention, New Law Journal (Jan. 10, 2018), https://www.newlawjournal.co.uk/content/brexit-aarhus-convention [https://perma.cc/J5SS-DW55].