The Aarhus Convention is a multilateral environmental treaty, ratified by 47 States throughout Europe and Central Asia, that commits States Parties to effectively protecting three fundamental rights that are critical to effective environmental governance: the right of access to information, the right of public participation, and the right of access to justice with regard to domestic environmental decision-making. These rights form the three “pillars” of the Aarhus Convention.
The United Nations Economic Commission for Europe (“UNECE”) oversees the Aarhus Convention and its bodies, including Task Forces on each of the three pillars. The Task Force on Access to Justice convened for the eleventh time at the Palais des Nations in Geneva, Switzerland, to discuss a broad range of issues relating to access to justice for environmental concerns.
CIEL is particularly focused on the work of the Task Force on Access to Justice and its interpretation of Article 9 of the Aarhus Convention – which contains the right to access to justice – because of the concerning potential of investor-state dispute settlement (ISDS) on the public’s Aarhus rights.
ISDS is an international system of ad hoc investment arbitration. There are thousands of bilateral investment treaties across the globe that contain ISDS provisions. These terms allow foreign investors to challenge state actions before secretive, closed-door international arbitration panels for alleged investment treaty violations. Details of the proceedings are seldom released to the public; state respondents are rarely allowed to bring counterclaims against investors; and third parties are never allowed to intervene as full participants to the dispute, regardless of the extent to which their legal interests are impacted by the outcome of the proceedings.
ISDS is a powerful system with the potential to strip citizens of their right to access to justice under the Aarhus Convention. For example, when a government settles an ISDS dispute with a foreign investor by issuing permits, relaxing environmental standards, or otherwise compromising on environmental protections, the settlement may have profound environmental impacts. Nevertheless, ISDS settlements are binding under international law, and the public affected by the decision will generally have little or no right to seek judicial review of the decision in domestic courts. This raises the question of whether ISDS provisions could lead to the violation of the access-to-justice guarantee of Article 9(2) of the Aarhus Convention.
Such was the case in the Vattenfall I dispute, in which a Swedish power company brought an ISDS complaint against Germany challenging the government’s denial of a water permit to construct a coal-fired power plant on the Elbe River. Faced with long and costly international arbitration, Germany decided to settle the case by granting the disputed water permit and relaxing its environmental standards. German citizens had no access to information about the settlement until after it was finalized.
Furthermore, when ISDS tribunals order State governments to overturn domestic court decisions, citizens lose the ability to challenge environmental violations by private actors. Article 9(3) of the Aarhus Convention guarantees any person the right to seek judicial remedy for public or private violations of domestic environmental law. But if governments comply with ISDS panel orders to overturn national court judgments, citizens lose that right.
These and other aspects of ISDS threaten to impede the Aarhus Convention’s access-to-justice provisions. Beginning with today’s meeting, the Task Force on Access to Justice should work with stakeholders to address these concerns.
By Reed McCalib, Geneva-based intern
Originally posted on February 28, 2018