MAHARASHTRA NATIONAL LAW UNIVERSITY MUMBAI

ENVIRONMENT LAW

SEVENTH SEMESTER

‘AARHUS CONVENTION- ROLE OF PUBLIC IN FORMULATING

ENVIRONMENTAL LEGISLATION’

Submitted to- Prof. Dr. Anil Variath

Submitted by- Ayaskanta Parida

Enr. No.-2017012
Table of Contents
INTRODUCTION ........................................................................................................................ 4
PUBLIC PARTICIPATION IN TRANSNATIONAL FORUMS ............................................ 5
NEED FOR AARHUS CONVENTION IN INDIA .................................................................. 8
POLITICS OF JUSTICE AS RECOGNITION: ........................................................................ 9
CONCLUSION.............................................................................................................................10
BIBLIOGRAPHY ........................................................................................................................10

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Environmental Justice is rooted in the idea of both human rights and human development with
respect to environment. There exists no single conception of environmental justice. Justice like
human rights have to be time and space contextual. Single and uniform notion of justice has no
inter-generational aspect. It has to address not just hierarchical inequalities and injustices, but
parallel inequalities and injustices also. Environmental injustice exists due to institutions
contingent upon human behavior1, making institutions ineffective to tackle inequality and
injustice. Justice is comparative in nature and must base upon plural and impartial competing
principles. Environmental Justice is also a procedural human right, as courts become the last resort
of accessing injunctive relief against the injustice. It also needs to have ethical and moral aspect
as an intrinsic component. Clear and steady procedures and rules like public participation,
information and injunctive relief in a way facilitate equal conception of justice. Social and
environmental movements like Chipko Movement, struggle against Tehri Dam and Silent valley
struggle in Kerala and activism for justice for Bhopal victims has largely shaped the discourse of
environmental justice in India.

The Aarhus Convention, a regional pact signed and ratified by European and Central Asian
countries in 1998, played an instrumental role in making laws related to the protection of
environment. It makes public participation instrumental and highly beneficial in the making of
laws for the protection of the ecosystem in which they live in. This intermixing between
government bureaucracy and the civil society would help in the formation of a law that would not
just be equally acceptable and efficient in all fields, it would also entail a level of transparency
which is rarely seen between the people and the government, as both the parties would be
responsible for enabling sustainable development for the present and future generations alike.

The paper would be talking about the convention and the need for a similar pact at the global and
domestic domain.

1
Sen, Amartya: The Idea of Justice. Penguin Publications (2009)

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INTRODUCTION
The Aarhus Convention was adopted under the auspices of the United Nations Economic
Commission for Europe (UNECE) on 25 June 1998.2 It entered into force on 30 October 2001 and,
presently, has 40 signatories and 34 parties.3The convention is the first legally binding instrument
at the supra-national level guaranteeing access to information, public participation in decision
making and justice in environmental matters.4 Its global significance was highlighted by the UN
Secretary General, Kofi Annan, in the following terms:
Although regional in scope, the significance of the Aarhus Convention is global. It is by far the
most impressive elaboration of Principle 10 of the Rio Declaration, which stresses the need for
citizens’ participation in environmental issues and for access to information on the environment
held by public authorities. As such it is the most ambitious venture in the area of ‘environmental
democracy’ so far undertaken under the auspices of the United Nations.5
The global relevance of the Aarhus Convention can be identified as being the first comprehensive
effort at the supra-national level at putting Principle 10 of the Rio Declaration6 into operation,
providing legally binding obligations on the three pillars of public participation (access to
information, decision making and justice).
However, this is but one, albeit the most prominent, global aspect of the treaty. In addition, the
Aarhus Convention is potentially a global convention: according to its Article 19(3), membership
is not only open to State members of, and States having consultative status with, the UNECE, but
also to any other State that is a member of the UN, upon approval by the Meeting of the Parties
(MOP). Furthermore, the general provisions of the convention explicitly require State parties to

2
Convention on Access to Information, Public Participation in Decision Making and Access to Justice in
Environmental Matters (Aarhus, 25 June 1998) (hereinafter ‘the Aarhus Convention’).
3
The parties are Albania, Armenia, Austria, Azerbaijan, Belarus, Belgium, Bulgaria, Cyprus, Czech Republic,
Denmark, Estonia, the European Community, Finland, France, Georgia, Hungary, Italy, Kazakhstan, Kyrgyzstan,
Latvia, Lithuania, Malta, the Netherlands, Norway, Poland, Portugal, Republic of Moldova, Romania, Slovenia,
Spain, Tajikistan, the Former Yugoslav Republic of Macedonia, Turkmenistan and Ukraine. Signatories are Croatia,
Germany, Greece, Iceland, Ireland, Liechtenstein, Luxembourg, Monaco, Sweden, Switzerland and the UK.
4
S.T. McAllister, ‘Human Rights and the Environment: The Convention on Access to Information, Public
Participation in Decision Making, and Access to Justice in Environmental Matters’, 9 Colorado Journal of
International Environmental Law Yearbook (1998), 187;
5
See United Nations Economic Commission for Europe (UNECE), Introducing the Aarhus Convention
(UNECE, undated), available at http://www.unece.org/env/pp/
6
UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992)

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promote the application of the principles of the convention in international environmental
decision-making processes and within the framework of international organizations in matters
relating to the environment.7 Therefore, it is already evident how the convention, from the start,
was aimed at influencing international practice beyond the limits of the UNECE region. This
actually exemplifies the ‘desire of UNECE to continue to produce environmental agreements that
are at least potentially beneficial at the global level’.8

PUBLIC PARTICIPATION IN TRANSNATIONAL FORUMS

Based on Article 3(7) of the Aarhus Convention, parties have the obligation to promote the
application of the principles of the convention in international environmental decision-making
processes and within the framework of international organizations in matters pertaining to the
environment. At MOP-1 in 2002, the parties recommended considering the possibility of
developing guidelines on this issue,9 which, without introducing new legal obligations for the
parties, would provide useful guidance on how to fulfil the obligation and include elements of
good practice that parties may choose to apply in the appropriate contexts.10
A preliminary study, prepared by the working group of the parties,11 highlighted, in terms of access
to information, the ad hoc practice of international fora in providing final documents on their
websites, with few clear, general rules and procedures on how staff and members of the public can
proceed with requests for information. The need for consistency, transparency, timeliness and
accessibility of information systems, coupled with a clear and reasoned process for refusal, was
thus underlined.12 Along the same lines, international practice regarding public participation in
environmental decision making is also generally developed in an ad hoc manner, providing for
accreditation of NGOs as observers at meetings, often in the absence of clear rules on active
participation and comments within the decision-making process. The study highlighted the need
for clear procedures for public participation in all decision-making processes, and accessible

7
See Aarhus Convention, Supra note 2, Article 3(7).
8
A. Antypas and S. Stephen, ‘Towards a Liability Regime for Damages to Transboundary Waters: A New Protocol
in the UNECE Region’, 14:4 Journal of Water Law (2003), 185, at 193.
9
Lucca Declaration (MP.PP/2002/CRP.1, 2 April 2004), para. 6
10
Public Participation in International Forums (MP.PP/WG.1/2003/6,12 August 2003), para. 3.
11
The working group was set up by the Meeting of the Parties at its first session (October 2002) under Decision I/14
(2 April 2004).
12
Access to Information, Public Participation and Access to Justice in International Forums (MP.PP/2002/18, 12
September 2002),paras 15–32.

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accreditation procedures, timeliness and financial assistance.13 Finally, the study noted the lack of,
and obstacles to, public access to justice in international fora, which would allow individuals to
request investigations or to participate in dispute-settlement procedures. The study stressed the
need for improved access to fair, open and transparent proceedings, allowing the public to review
access to information and for public participation and the review of the rules of international
organizations in this regard.14
The purpose of the draft guidelines is of global interest. They will be applied not only by the State
parties to the Aarhus Convention, acting individually or in a collective way, but will also possibly
serve as a ‘source of inspiration’ to other interested States, the secretariats of international fora, as
well as other concerned actors such as NGOs and members of the public.15
Member States should refer to these guidelines in the context of both the development or
modification of relevant rules and practices applied within international fora, and in the treatment
of relevant substantive issues.16 Interestingly, the guidelines focus not only on negotiation,
implementation and other decision making relating to MEAs, but also include an indicative list of
other non-MEA agreements, and connected dispute-resolution processes, whose decisions or
projects have, or may have, a significant impact on the environment. These include trade
agreements, intergovernmental conferences, international environmental and development policy
fora (such as the Commission on Sustainable Development and the UN Environment Programme
Governing Council), and international financial institutions.17 It should be also noted that the
definition of ‘international forum’ in the guidelines applies to regional and bilateral meetings as
well.18
Potentially, the scope of the guidelines extends to all stages of any given international policy
process, from initiation and pre-negotiation, to the decision-making and implementation phases.19
The definition of ‘environmental information applicable to international fora’ is the same in the
guidelines as in the Aarhus Convention.20 The ‘public concerned’ is also defined according to

13
Ibid., paras 33–48.
14
Supra note 12, paras 49–52.
15
Draft Guidelines on the Application of the Principles of the Aarhus Convention in International Fora, prepared by
the Chairman in consultation with the drafting group established at the first meeting of the expert group and with the
assistance of the Secretariat (ECE/MP.PP/WG.1/2005/8/Add.1, 23 November 2004).
16
Ibid., para. 1.
17
Ibid., para. 4.
18
Ibid., para. 12.
19
Ibid., para. 2.
20
Ibid., para. 8,

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Article 2(5) of the convention, with the specification that it should be determined on a case-by-
case basis, with a view to responding to the particular characteristics of the forum
concerned.21Specifically, relevant actors could include not only representatives of those affected
or likely to be affected, or having an interest in the outcome of the decision-making process, but
also those that can offer expertise, or represent commercial interests that might cause, contribute
to, or alleviate the problems under discussion.22 The guidelines further indicate that special efforts
should be made to facilitate the involvement of representatives of the public concerned,23thus
suggesting differentiated treatment to ensure a balanced and equitable process, to promote
transparency, minimize inequality and avoid the exercise of undue economic or political
influence.24 The guidelines provide that participation processes should generally facilitate access
by the public.25
It also suggests that public involvement occur at an early stage, when all options are open, and at
all relevant levels.26 In terms of access to information, the guidelines suggest that each
international forum develops and makes available to the public a clear and transparent set of
policies and procedures on access to information, and post on the Internet in a timely manner
documents from all relevant stages of decision-making processes, as well as organizational and
procedural information.27
They should also provide information, upon request, in a timely manner, or provide a reasoned
refusal with information on access to a review process.28 In terms of public participation, the
guidelines envisage that international fora set up clear and objective criteria for selection
procedures, for the proposal of agenda items and provision of comments by the public, with
sufficient time for the public to be informed and to be prepared so that they can participate
effectively.29

21
Ibid., para. 11.
22
Supra note 15
23
Ibid
24
Ibid
25
Ibid
26
Ibid
27
Ibid
28
Ibid
29
Ibid

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They further suggest that participation mechanisms result in reasoned decisions that take due
account of public comments.30 With reference to access to review mechanisms,31the guidelines
propose that public participation should be provided also in the establishment of review
mechanisms and in the process of appointing the members of the relevant bodies,32clearly building
on the example of the Aarhus Convention compliance mechanism. Public access is particularly
recommended for review procedures that challenge an act or omission of any international forum,
including its secretariat, in the provision of information or in the process of public participation in
the forum’s processes.33

NEED FOR AARHUS CONVENTION IN INDIA

After analyzing events like the Bishnoi Movement, Narmada Bachao Andolan, Silent Valley
Movement, Chipko Movement it can be seen that there is not just an urgent need for a legislation
being the equivalent of Aarhus Convention in India, if not at the global level but also India itself
becoming a signatory under the convention.
Increase in the magnitude of Cyclones along both the coasts, water shortage in major metro areas
and places of tourism like Shimla, temperature going above 40-45 degrees centigrade in many
places, issues of Smog during the winter which seems to be erratic every advancing year are signs
that India is on the cusp of facing a major catastrophe due to climate change. The need of the hour
is of a mechanism that makes major parties like the public, NGOs and the government gelled in a
process of dialogue though which the lawmakers can be made aware of the changes happening in
the environment in which the people who elected them reside. The 2020 notification regarding the
EIA shows us the lack of on-ground information with the government or the worse prospect of
them not doing anything even while being aware of the up and coming problems. The new
notification exempts a list of projects from prior requirements, notably renewable energy projects,
solar thermal power projects, solar parks, and coal and non-coal mineral prospecting. The rationale
seems to be the notion that solar energy projects reduce our dependence on fossil fuels and are
better for the climate. However, such simple assumptions overlook the manifold environmental

30
Ibid
31
Ibid
32
Ibid
33
Note from the Secretariat, Draft Guidelines on Promoting the Principles of the Aarhus Convention in
International Forums: The Possibility of a Differentiated Approach (ECE/MP.PP/WG.1/2005/8/Add.2, 6 December
2004).

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and social concerns, like requirement of large land area, diversion of agricultural land and changes
to drainage patterns brought on by the construction and operation of solar parks. There is clearly a
lack of consensus between the government and the public as to how we should set up industries in
a way where the damages to the environment are minimized as much as possible. We desperately
need a law pari materia with the Aarhus Convention or be a party to it.

POLITICS OF JUSTICE AS RECOGNITION:

Politics of justice as recognition matters because the discursive injustice and action for justice are
tightly interlinked. Justice was and is deeply rooted in the politics of occurrences of both the events
and continue to happen. Indian state through its agencies tried curtailing the full acknowledgement
of both events. It continues to defy the demands of the next generation of protestors and survivors
for justice.
Access to environmental justice begins only when the conversation of harm and suffering starts
between the inflictor and the inflicted. The court in the rule of law countries is the final and only
source of injunctive relief. Political pressures have been also a significant mechanism to culminate
environmental justice in movements like Chipko and Tehri. Yet, it failed to happen so in Bhopal
and Narmada. In absence of direct representation, agency become an important mode and medium
of participation. Representation of certain marginalised communities like tribals, Dalits,
transgender and people affected by development, becomes an issue. The representation by these
agencies helps to construct, articulate and represent the interests of affected communities. It is
activists like Satinath Sarangi and Medha Patkar, which continue to fight for rights of affected
people. International law and forums of representation are also not effective in these scenarios.
They demand robust domestic structure to implement most of the conditions for environmental
justice. Formal legal and political structure are blindfold in the assurance of growth and fail to
acknowledge the systemic injustices. Even Article 21, of the Indian constitution for Protection of
Life and Personal liberty against state actions fails to safeguard the rights and livelihood of people
in these two case studies. In environmental cases like air pollution, Article 21 as indirect
environmental right through right to life and preservation of health and wellbeing has been
effectively come to rescue. Institutionalization of such mechanisms have also been of little help
as the implementers rarely follow the procedures. In this hazy scenario, only proper justice could
be possible to achieve, if communities are part of the process.

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Representation is a contested ground. The politics of representation strewed in India, as instead of
the leaders elected by the people, political parties chose candidates suitable for representation
following party ideologies. PIL intended to be a catalyst for justice of communities from social,
economic, cultural and political injustices. PIL in both the case studies could achieve little as the
courts were under the political and ideological influence of the state. Actio Popularis as mentioned
in Aarhus convention would be of significant effective factor, because it contains substantive
obligations of public participation.

CONCLUSION
In conclusion, the draft guidelines contain several innovative concepts as to public participation in
international fora. They have the potential, even as a nonbinding instrument, to promote a
systematic approach on the matter, by suggesting the preparation of clear, general guidelines on
access to information, participation in decision making and access to review mechanisms, on the
basis of the willingness of State parties. If the conclusion and entry into force of the Aarhus
Convention represented a ground-breaking event in international environmental law, the recent
developments that have occurred within its framework confirm its relevance at the global level,
despite its regional character. The innovations of its compliance mechanism and the role created
for NGOs make it an extremely valuable laboratory for assessing the effectiveness of a more
participatory and transparent approach to the implementation of international environmental
agreements.

BIBLIOGRAPHY
• Draft Guidelines on the Application of the Principles of the Aarhus Convention in
International Fora, prepared by the Chairman in consultation with the drafting group
established at the first meeting of the expert group and with the assistance of the Secretariat
(ECE/MP.PP/WG.1/2005/8/Add.1, 23 November 2004).
• Amartya Sen: The Idea of Justice. Penguin Publications (2009)
• A. Antypas and S. Stephen, ‘Towards a Liability Regime for Damages to Transboundary
Waters: A New Protocol in the UNECE Region’, (2003)
• Access to Information, Public Participation and Access to Justice in International Forums
(MP.PP/2002/18, 12 September 2002)
• Public Participation in International Forums (MP.PP/WG.1/2003/6,12 August 2003)

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 • Lucca Declaration (MP.PP/2002/CRP.1, 2 April 2004)
• Convention on Access to Information, Public Participation in Decision Making and Access
to Justice in Environmental Matters (Aarhus, 25 June 1998)
• S.T. McAllister, ‘Human Rights and the Environment: The Convention on Access to
Information, Public Participation in Decision Making, and Access to Justice in
Environmental Matters’, 9 Colorado Journal of International Environmental Law
Yearbook (1998), 187;
• United Nations Economic Commission for Europe (UNECE), Introducing the Aarhus
Convention (UNECE, undated)
• Rio Declaration, UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992)

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