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Aarhus Convention. The right to information on the environment and participation of the public in
the environmental protection.
12th December 2018
Dominik Židek

•Environmental Rights
•Public participation in environmental matters at the international level
•The Aarhus Convention (and the European Union law)
•European Convention on Human Rights and European Court of Human Rights
•Environmental management instruments incorporating access rights
•Czech environmental law and access rights
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Content
Dominik Židek

•Look at the video (next step) and prepare answers to the following questions:
–Try to define basic human rights related to the environment.
–What is environmental justice and how did it redefine the concept of environment?
–Why is environmental justice important?
–What is the goal of environmental justice and how does it want to achieve this goal?
–
–
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Environmental Rights
Dominik Židek

•Video:
•https://www.youtube.com/watch?v=ISlZKIjS10o
•
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https://encrypted-tbn1.gstatic.com/images?q=tbn:ANd9GcRrjJhmB6btU_Eclg06gIPIlC40R06_wplcghTvAQvWEoG
7qaxEzg
Environmental Rights
Dominik Židek

•Sustainable development
•Rights of future generations
•Rights of indigenous people
•Environmental justice
•Environmental migration
•
ÞRight to environment or rights which flow from the right to environment, such as the right to be
free from pollution, access to safe water and food, etc.
•
ÞHealth and well-being: right to a healthy environment or the right to an environment adequate for
the well-being of people.
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Environmental Rights
Dominik Židek

ÞAll persons have the right to a secure, healthy and ecologically sound environment.
•
ÞAll persons shall be free from any form of discrimination in regard to actions and decisions that
affect the environment.
•
Þ All persons have the right to an environment adequate to meet equitably the needs of present
generations and that does not impair the rights of future generations to meet equitably their
needs.
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Environmental Rights
Dominik Židek

•Environmental justice
–„Environmental justice is the fair treatment and meaningful involvement of all people regardless
of race, colour, national origin, or income with respect to the development, implementation, and
enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities
and persons across this Nation. It will be achieved when everyone enjoys the same degree of
protection from environmental and health hazards and equal access to the decision-making process to
have a healthy environment in which to live, learn, and work.“ (The United States Environmental
Protection Agency definition)
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Environmental Rights
=> Public participation in environmental matters at the international level

•1948 Universal Declaration of Human Rights
–no direct reference to environmental protection, but there are universal human rights standards
(which may be) related to environmental protection
•1966 International Covenant on Civil and Political Rights
–no direct reference to environmental protection, but there are universal human rights standards
(which may be) related to environmental protection
•1972 Stockholm Declaration on the Human Environment
–the Preamble recognized the intimate relationship between environmental protection and the
enjoyment of human rights
•1982 World Charter for Nature
–rights of nature distinct from human rights
•1992 Rio Declaration
–"human beings are at the centre of concerns for sustainable development. They are entitled to a
healthy and productive life in harmony with nature“
–Agenda 21: Non-binding action plan for sustainable development. Chapters 23 to 40 address issues
related to access to information and civil society participation in decision-making.
•1993 Vienna Declaration on Human Rights
–"all human rights are universal, inter-dependent and indivisible“
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International level
Dominik Židek

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International level
Universal human rights standards related to environmental protection
The right to information
The right to participation
The right to justice
Dominik Židek

•
•
•
•Article 19 of the Universal Declaration of Human Rights: “Everyone has the right to freedom of
opinion and expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of frontiers.”
•
•Article 19 of the International Covenant on Civil and Political Rights: “2. Everyone shall have
the right to freedom of expression; this right includes freedom to seek, receive, and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print,
in the form of art, or through any other medium of one’s choice.”
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International level
The right to information
Dominik Židek

•
•
•
•Article 21 of the Universal Declaration of Human Rights: “1. Everyone has the right to take part
in the government of his country, directly or through freely chosen representatives.”
•
•Article 25 of the International Covenant on Civil and Political Rights: “Every citizen shall have
the right and the opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through
freely chosen representatives.”
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International level
The right to participation
Dominik Židek

•
•
•Article 2 of the International Covenant on Civil and Political Rights: “3. Each State Party to the
present Covenant undertakes: (a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding that the violation has been
committed by persons acting in an official capacity; (b) To ensure that any person claiming such a
remedy shall have his right thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal system of the State, and
to develop the possibilities of judicial remedy; (c) To ensure that the competent authorities shall
enforce such remedies when granted.”
•
•Article 14 of the International Covenant on Civil and Political Rights: “1. All persons shall be
equal before the courts and tribunals. In the determination of any criminal charge against him, or
of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public
hearing by a competent, independent and impartial tribunal established by law. The press and the
public may be excluded from all or part of a trial for reasons of morals, public order (ordre
public) or national security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice; but any judgement rendered
in a criminal case or in a suit at law shall be made public except where the interest of juvenile
persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of
children.”
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International level
The right to justice
Dominik Židek

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Dominik Židek
The Aarhus Convention
The Aarhus Convention

;
•Look at the 2 videos (next step) and prepare answers to the following questions:
•
–What rights do we have based on environmental democracy?       (3 pillars of the Aarhus
Convention)
–In what year was the Aarhus Convention adopted, how many signatories does it have and in which
organization was it adopted?
–Is the European Union also a signatory to this Convention? If so, since when?
–What was the key case that the Court of Justice of the European Union dealt with environmental
NGO‘s access to court according to the Aarhus Convention and what are its conclusions?
–What are the problems in the „EU – Aarhus Convention relationship“? Is the same standard of
protection available in all EU countries?
–
–
–
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Dominik Židek
The Aarhus Convention

•Videos:
•https://www.youtube.com/watch?v=uyhE9v2UnEQ
•https://www.youtube.com/watch?v=2UvwbKCjmjA
•
•
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Dominik Židek
The Aarhus Convention

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The Aarhus Convention
Universal human rights standards related to environmental protection
The right to information
The right to participation
The right to justice
The Aarhus Convention
Dominik Židek
access to environmental information
public participation in environmental decision-making
access to justice in environmental matters

•
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–
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Dominik Židek
The Aarhus Convention
•Adopted on 25 June 1998 in the Danish city of Aarhus (Århus).
•Entered into force in 2001.
•Adopted by The United Nations Economic Commission for Europe (UNECE) which was set up in 1947 by
ECOSOC. It is one of five regional commissions of the United Nations.
•
–
–
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•All Member States of the EU and EU (itself) are the Parties to the Convention
•Links environmental rights and human rights
•Acknowledges that we owe an obligation to future generations
•Establishes that sustainable development can be achieved only through the involvement of all
stakeholders
•Links government accountability and environmental protection
•Focuses on interactions between the public and public authorities in a democratic context.
•But only procedural rights!
•
•http://live.unece.org/fileadmin/DAM/env/pp/documents/cep43e.pdf
•
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Dominik Židek
The Aarhus Convention

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Dominik Židek
The Aarhus Convention
Access to information
•Article 5: Collection and dissemination of environmental information – Mandatory systems,
electronic databases, providing information in case of imminent threat to human health or the
environment, wide access free of charge.
•
•
•Article 6: Public participation in decisions on specific activities
•Article 7: Public participation concerning plans, programmes and policies relating to the
environment
•Article 8: Public participation during the preparation of executive regulations and/or generally
applicable legally binding normative instruments
–with respect to decisions on whether to permit proposed activities listed in annex I
–decisions on proposed activities not listed in annex I which may have a significant effect on the
environment
•
–
–
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Access to public participation

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Dominik Židek
The Aarhus Convention
•
–
–
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Access to justice
•Article 9: Access to justice – Following Art. 6, members of the public concerned
–(a) Having a sufficient interest or, alternatively
–(b) Maintaining impairment of a right, where the administrative procedural law of a Party requires
this as a precondition
–
–
–
•“The public” means one or more natural or legal persons, and, in accordance with national
legislation or practice, their associations, organizations or groups;
•“The public concerned” means the public affected or likely to be affected by, or having an
interest in, the environmental decision-making; for the purposes of this definition,
non-governmental organizations promoting environmental protection and meeting any requirements
under national law shall be deemed to have an interest.
–
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•
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Public and public concerned
NGOs are considered public concerned

•
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Dominik Židek
The Aarhus Convention
Aarhus Convention
European Union (european law)
EU Member state  (national law)
Direct effect?

•C-240/09 – The Slovak Brown Bear Case
•
•No direct effect but...
•The national courts must interpret their national law in accordance with the objectives of this
provision (article 9 of the Aarhus Convention) and that of effective judicial protection of the
rights conferred by European Union law, so as to enable an environmental NGOs to challenge before a
court a decision taken following administrative proceedings liable to be contrary to European Union
environmental law.
•
•Judgment: https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A62009CJ0240
•Summary: http://ec.europa.eu/dgs/legal_service/arrets/09c240_en.pdf
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Dominik Židek
The Aarhus Convention

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Dominik Židek
The Aarhus Convention
Is the same standard of protection available in all EU countries?
•Right to a healthy environment ≠ protection of environment as a duty of the state
•The national laws of individual Member States are based on a framework pursuant to the Aarhus
Convention and European law (and the case law of CJEU), but the specific protection mechanisms are
different in the ranks of national regulations, even to a large extent => also problems with the
implementation of legislation.
•Member states do not always apply the conventions provisions in the same way and sometimes they
don‘t even fully comply with the conventions requirements.
•One of the most important issue – legal standing which determines who and under what conditions is
allowed to bring a complaint and to be heard in court.
•
•
•
•Environmental rights: Portugal, France, Poland, Hungary, Romania, Slovenia, Spain, Czech Republic,
Slovakia, Belgium, Croatia
•Duty of the state: Germany, Austria, Bulgaria, Estonia, Latvia, Lithuania, Finland, Greece, Malta,
Italy
•No environmental protection: Cyprus, Denmark, Luxembourg, Ireland, Sweden
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National law – constitutions

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Dominik Židek
European Union law
•Charter of Fundamental Rights of the European Union
–Article 37: Environmental protection: A high level of environmental protection and the improvement
of the quality of the environment must be integrated into the policies of the Union and ensured in
accordance with the principle of sustainable development.
–
•Court of Justice of the European Union
–strict in granting access to justice
•it is essential for the individual to be affected in his or her own subjective rights in a way
sufficient to distinguish him or her individually in the same way as the addressee of a contested
decision
•associations formed for the protection of collective interests (typically NGOs) are not considered
to be directly and individually concerned by a measure affecting the general interest
•CJEU will not deal with direct claims of individuals
•
•

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Dominik Židek
European Convention on Human Rights and European Court of Human Rights
The European Convention on Human Rights

•Article 3: Prohibition of degrading treatment
•Article 6: Right to a fair trial
•Article 8: Everyone has the right to respect for his private and family life, his home and his
correspondence.
•Article 13: Everyone whose rights and freedoms as set forth in this Convention are violated shall
have an effective remedy.
•
•Does not include a right specifically to protect the environment => does not offer protection from
general deterioration of the environment (Kyrtatos v. Greece, 41666/98 [2003]) – Even clear
violations of the rule of law cannot be remedied if the applicant is not sufficiently affected or
if no direct link between the alleged victim and the violation can be proven.
•
•
•
•
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Dominik Židek
The European Convention on Human Rights

•Tătar v. Romania, 67021/01 (2007)
•lived approximately 100 metres from a gold mine
•the authorisation permit placed the operator under a general duty to protect the environment
•no finding by the national authorities that the activity was harmful to the environment or that it
was in violation of local environmental regulations
•almost complete absence of official decisions or documentation which had taken into account the
dangers to the public and the environment inherent in the activity being undertaken at the gold
mine
•the Court was unable to find any evidence to support that this deterioration had been caused by
the activities at issue, the very existence of a serious and substantial risk to the health and
well-being of the claimants placed an obligation on the state to adopt reasonable measures which
were capable of protecting their private and family life
•=> Violation of Article 8 – but no justification
•
•
•
•
•
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Dominik Židek
European Court of Human Rights

•Taşkin v. Turkey, 46117/99 (2004)
•application was submitted by individuals living in the vicinity of a gold mine
•the Supreme Administrative Court had found that the use of sodium cyanide in the mine posed a
threat to the local environment and the health of the local population
•the Council of Ministers adopted a decision that the gold mine should continue its activities
•=> Violation of Article 6 and 8 – All 10 applicants received 3.000 EUR
•
•
•Brânduşe v. Romania, 39951/08 (2009)
•serving a ten year sentence in a prison for fraud
•several complaints about the conditions in the prison, including over-crowding, poor food and
invasion of privacy, all of which he alleged were violations of his Convention rights
•one of the complaints concerned the proximity of the prison to a rubbish dump
•=> Violation of Article 3 – justification 1.500 EUR
•
•
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•
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Dominik Židek
European Court of Human Rights

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Dominik Židek
Environmental management instruments incorporating access rights
Environmental management instruments

•Environmental management instruments incorporating access rights
•
•
•
•Environmental information systems
•Periodic reporting on the state of the environment
•Inventories of toxic emissions, pollutant release and transfer registers
•Emergency and disaster risk information systems
•Systematized environmental quality monitoring systems (urban, national)
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Environmental management instruments
Access to information
Dominik Židek

•Environmental management instruments incorporating access rights
•
•
•
•
•Environmental impact assessment
•Strategic environmental assessment
•Public hearings on permits, authorizations and licences and for planning purposes
•Advisory councils involving multiple actors
•Legislative hearings
•Preparation of emissions and environmental quality standards
•(Environmental) land-use planning
•Public consultations on standards, strategic instruments, and prevention and decontamination plans
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Access to public participation
Dominik Židek
Environmental management instruments
see previous lesson

•Environmental management instruments incorporating access rights
•
•
•
•Administrative mechanisms and judicial actions
•(Environmental courts)
•Ordinary and administrative courts of justice specializing in the environment
•Complaints to sectoral agencies with environmental competencies
•Alternative conflict resolution
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Access to justice
Dominik Židek
Environmental management instruments

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Dominik Židek
Czech environmental law and access rights
Czech environmental law and access rights

•Charter of Fundamental Rights and Freedoms
•Article 35
–(1) Everybody has the right to live a favourable living environment.
–(2) Everybody is entitled to timely and complete information about the state of the living
environment and natural resources.
–(3) In exercising his or her rights nobody may endanger or cause damage to the living environment,
natural resources, the wealth of natural species, and cultural monuments beyond limits set by law.
•Article 41
–(1) The rights listed in ... Article 35 of the Charter may be claimed only within the scope of the
laws implementing these provisions.
•
•
•
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Dominik Židek
Czech environmental law and access rights

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Dominik Židek
Czech environmental law and access rights
Universal human rights standards related to environmental protection
The right to information
The right to participation
The right to justice
especially Act No. 123/1998 Coll., on the right to information on the environment
and other legislation
especially Act No. 114/1992 Coll., on Nature and Landscape Protection, Act No. 100/2001 Coll., on
Environmental Impact Assessment and Act No. 183/2006 Coll., Building Act
and other legislation
especially Act No. 150/2002 Coll., Code of Administrative Justice
and other legislation

•Literature in IS MU – Full Information on the Course „SOC002“
•Ludwig Krämer: EU environmental law. 7 ed. London: Sweet & Maxwell; University edition, 2012. 566
s. ISBN: 978-0-4140-2331-4.
•J. Foti and others: Voice and Choice: Opening the Door to Environmental Democracy. Washington,
D.C., World Resources Institute (WRI), 2008.
•David R. Boyd: The Status of Constitutional Protection for the Environment in Other Nations. David
Suzuki Foundation.
•Office of the United Nations High Commissioner for Human Rights (ECLAC/OHCHR). Society, rights and
the environment: international human rights standards applicable to access to information, public
participation and access to justice (LC/W.712). Santiago, 2016.
•Economic Commission for Latin America and the Caribbean (ECLAC). Access to information,
participation and justice in environmental matters in Latin America and the Caribbean: towards
achievement of the 2030 Agenda for Sustainable Development (LC/TS.2017/83). Santiago, 2018.
•
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Sources
Dominik Židek