This month, governments and civil society from Europe and Central Asia will gather in Montenegro to consider the state of environmental democracy across the region. From the assassination of Berta Caceres in Honduras to judicial attacks against environmental NGOs in the US or growing restrictions on the freedoms of NGOs in the EU, recent developments demonstrate that the protection of civil and political rights remains vulnerable in the context of environmental policy and that instruments such as the Aarhus Convention remain particularly crucial today.
Shortly after the fall of the Soviet Union, European governments sought to promote values associated with democracy and good environmental governance across the continent with the adoption of the Aarhus Convention on Access to Information, Public Participation, and Access to Justice in Environmental Matters.
The international community had already recognized in 1992 the concept of environmental democracy as a foundation of sustainable development. But the Aarhus Convention was designed to take this one step further, turning this recognition into enforceable rights with the establishment of an independent review mechanism mandated to evaluate complaints submitted by individuals.
Fast forward two decades later. Across the planet, environmental organizations and community leaders are facing repeated – and often violent – pushback from industry and/or governments seeking to maximize profits over environmental or social considerations. More and more environmental activists are facing threats due to their engagement and activism, many of them paying for this commitment with their lives. In a growing number of countries – from Russia to India to the United States, governments and the extractive industry are using legal and judicial tools to silence environmental activists and organizations.
It is in this context that 47 European and Central Asian states will gather next week in Montenegro to review – as they do every three years – the implementation and the promotion of the Aarhus Convention.
The implementation of the convention is now approaching a critical existential moment. As a result of the work of the committee and other associated bodies, the convention has reached maturity; standards for the effective enjoyment of access to information, public participation, and access to justice in environmental matters have been defined in specific terms.
At the same time, some Western European states have grown increasingly wary of the agreement. The instrument, once primarily designed to “export” democratic values eastwards, appears to have somewhat backfired for governments’ citizens are now increasingly petitioning the compliance committee. Additionally, with the emergence of “illiberal democracies” at the heart of Europe and more repressive regimes further east, the democratic process seems less resilient than initially anticipated. Even Brexit and the resulting deregulation of the British economy means that 65 millions of citizens in the UK will no longer be able to rely on the European Court of Justice to compel their national government to enforce environmental legislation and rights, thereby removing one layer of legal protection.
The Conference on Environmental Democracy held in Montenegro thus comes at an opportune time to assess whether governments in Europe still believe that environmental democracy is a key value for the twenty-first century.
Judging from the current political context and recent developments associated with the Aarhus Convention, here are three priority areas that will serve to test the resolve of European states regarding the promotion of environmental democracy:
First, the state parties must confirm that they respect the integrity and authority of the decisions adopted by the compliance committee established under the Convention. This independent body is key to guaranteeing that 650 million citizens effectively enjoy the rights defined in the treaty. Recently, the governments concerned have increasingly sought to undermine the weight of the conclusions of the committee instead of seeking to learn from it to improve domestic legal and administrative proceedings. In particular, earlier this summer the EU Commission proposed that all its member states act en bloc to reject conclusions by the committee that access to justice was not sufficient in the EU. While this option seems to be no longer on the table, the manner in which the EU member states will react in Montenegro to these conclusions could have a major and long-lasting impact on the credibility and influence of the Aarhus Convention. If access to justice in the EU does not match the standards set under the Convention, then its member states should focus on fixing this issue rather than shooting the messenger that revealed their breach of obligations.
Second, the Aarhus Convention has an important role to play in ensuring that the rights and interests of the public take precedence over the short-term interest of private companies’ shareholders. While effective policy making benefits from taking into consideration the expertise of all relevant actors, the end-goal must remain the delivery of effective policies that protect rights and increase public welfare. Nonetheless, governments are paying increasing attention to the concerns and demands of actors whose primary motivation is maximizing profits for their shareholders. As the examples from climate policy and the chemicals regulation demonstrate, industry lobbyists have worked to systematically undermine the essence of environmental policy: its reliance on science and on the precautionary principle. Because the Aarhus Convention takes a rights-based approach to decision-making and establishes linkages between environmental policies and human rights, it is uniquely positioned to prevent the encroachment of business interests over the rights of citizens and communities.
Third, the state parties must take more seriously the obligation defined in the Convention to promote environmental democracy beyond their borders. European governments must ensure that their representatives in international negotiations promote proactively transparent and participatory decision-making for policies that impact the environment. They must also work with partners to guarantee the effective protection of environmental defenders in every part of the world. And they must encourage states to accede to the Aarhus Convention so that the convention benefits more individuals.
Governments in Europe should not turn a blind eye to the murders of environmental advocates and the shrinking space for civil society: twenty years after the adoption of the Aarhus Convention, its principles remain – perhaps more than ever – particularly relevant and crucial for good governance and sustainable development.
By Sébastien Duyck, Senior Attorney
Photo credit: South Bend Voice, CC BY-SA
Originally posted September 8, 2017