of the Aarhus Convention in Southeast Europe

© Springer-Verlag Berlin Heidelberg 2015
Siniša Rodin and Tamara Perišin (eds.)Judicial Application of International Law in Southeast Europe10.1007/978-3-662-46384-0_4

Application of the Aarhus Convention in Southeast Europe

Lana Ofak 

Faculty of Law, University of Zagreb, Cirilometodska 4, 10000 Zagreb, Croatia



Lana Ofak

1 Introduction

The United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters was adopted on 25 June 1998 in Aarhus, Denmark, at the Fourth Ministerial Conference in the ‘Environment for Europe’ process. It came into force on 30 October 2001.

The Aarhus Convention is generally considered as a new kind of international agreement in the field of environmental protection that links environmental rights and human rights.1 For the first time in a legally binding international agreement adopted in Europe, the right to a healthy environment is stated as a human right:

In order to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to his or her health and well-being, each Party shall guarantee the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention. (Article 1 on the objective of the Convention).

Although the Convention does not expressly guarantee the right to a healthy environment, it does refer to it as an accepted fact.2 The rights of access to information, public participation in decision-making, and access to justice in environmental matters, in literature often considered as procedural environmental rights, are not an end in itself, but represent a meaningful instrument for the realisation of the substantive right to a healthy environment.3

As of 30 June 2013, there were 46 Parties to the Aarhus Convention. The dates of ratification and accession of the seven countries of Southeast Europe that are parties to the Convention are as follows: Albania—27 June 2001, Bosnia and Herzegovina—1 October 2008, Croatia—27 March 2007, Macedonia—22 July 1999, Montenegro—2 November 2009, Slovenia—29 July 2004, Serbia—31 July 2009.4 Kosovo is not a party to the Convention.

A Protocol on Pollutant Release and Transfer Registers to the Aarhus Convention was adopted at the Extraordinary Meeting of the Parties held in Kiev from 21 to 23 May 2003. Out of seven countries of Southeast Europe, Bosnia and Herzegovina and Montenegro signed the Protocol but have not ratified it yet. Another five countries are parties to the Protocol.5 The application of the Protocol will not be discussed in this chapter.

Genetically modified organisms (GMOs) were one of the most controversial topics during the negotiations over the draft of the Aarhus Convention.6 The provisions of the Convention that guarantee public participation in decision-making apply to decisions on whether to permit the deliberate release of GMOs into the environment only ‘to the extent feasible and appropriate’ (Article 6/11 of the Convention). At the second meeting of the Parties held in Almaty, Kazakhstan, from 25 to 27 May 2005, the Parties adopted the Amendment to the Aarhus Convention that introduced a new Article 6 bis and Annex I bis with the aim to strengthen public participation in decision-making on GMOs. The amendment will enter into force when it has been ratified by at least three-quarters of the Parties that were party to the Convention at the time the amendment was adopted (i.e. it must be ratified by 27 of the 35 Parties that were party to the Convention at the time the amendment was adopted). As of 30 June 2013, the amendment has been ratified by 27 Parties, 22 of which were party to the Convention at the time the amendment was adopted. This means a further five ratifications are required. Slovenia is the only country in Southeast Europe that has ratified the GMO amendment.7 Albania and Macedonia are among the parties that were parties to the Convention at the time the amendment was adopted but are yet to ratify the amendment.

Public authorities might tend to discriminate against non-citizens or non-residents in determining whether they have a recognisable interest regarding the right to initiate administrative and/or judicial procedures on the basis of Article 9 of the Convention, and might also tend to omit non-citizens and non-residents in decision-making on environmental matters.8 Prohibition of discrimination is one of the main principles of the Aarhus Convention. Within the scope of the relevant provisions of this Convention, the public will have access to information, have the possibility to participate in decision-making and have access to justice in environmental matters without discrimination as to citizenship, nationality or domicile and, in the case of a legal person, without discrimination as to where it has its registered seat or effective centre of activities (Article 3(9)). This provision establishes that all persons, regardless of their citizenship, nationality or domicile, have the same rights under the Convention as citizens of the Party concerned.

Pursuant to Article 17 of the Convention that allows regional economic integration organisations constituted by sovereign UNECE Members States to become its parties, the European Community signed the Convention on 25 June 1998 in Aarhus. The Convention was concluded by the Council of the European Union on 17 February 2005.9 Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States (Article 216(2) of the Treaty on the Functioning of the European Union). In addition, all EU Member States ratified the Aarhus Convention. Its provisions are, therefore, binding on them in two ways: firstly, as its direct Parties, and secondly as the Member States of the EU that are committed to respect obligations under the Treaties.

The European Union is also a Party to the Protocol on Pollutant and Transfer Registers and to the GMO Amendment to the Aarhus Convention.

2 Status of the Aarhus Convention Within the Domestic Legal System

In the countries of Southeast Europe, ratified international treaties form an integral part of the domestic legal order and have primacy over domestic law.10 Therefore, the status of the Aarhus Convention is superior to all laws and other general legal acts. The only exception is Macedonia where international treaties have equal rank to domestic laws, but cannot be changed or derogated by law.11

Constitutional courts exist in all the countries of Southeast Europe. They have the competence to determine the conformity of domestic laws with international treaties to which the State is a party,12 with the exception of the Macedonian Constitutional Court.13 In principle this means that there is the possibility to initiate before constitutional courts a procedure of review on whether the provisions of domestic law are in concordance with the provisions of the Aarhus Convention.

In Croatia, Macedonia, Montenegro and Serbia any person has the right to submit an initiative for commencing a procedure of assessing the constitutionality of a law or the constitutionality and legality of other regulations.14 The submission of an initiative in these countries is not conditioned by the existence of legal interest.

A very different situation exists in Albania and Bosnia and Herzegovina. In Albania, individuals do have the right to initiate proceeding before the Albanian Constitutional Court, but only for issues related to their interests. Since

…every normative act is, technically speaking, abstract in nature and has general effects, [so] it would be quite hard to argue that an individual may have a personal interest in their compatibility with the Constitution or international treaties. If a law is incompatible with the Constitution, it would first have to be applied to the concerned individual, who in turn could file a lawsuit with a district court and claim such incompatibility. In such case, it would be the court to formally seize the Constitutional Court (incidental proceedings ex art. 145(2)15), not the individual.16

Something similar is prescribed by the Constitution of Bosnia and Herzegovina. The Constitutional Court has jurisdiction over issues referred by any court in Bosnia and Herzegovina concerning whether a law, on whose validity its decision depends, is compatible with the Constitution, with the European Convention for Human Rights and Fundamental Freedoms and its Protocols, with the laws of Bosnia and Herzegovina, or concerning the existence of or the scope of a general rule of public international law pertinent to the court’s decision.17 In conclusion, individuals do not have direct access to the Constitutional Court to challenge the compatibility of domestic laws with the Aarhus Convention, as they do in Croatia, Montenegro and Serbia.

In Slovenia, the right to submit a petition to initiate a procedure for the assessment of the constitutionality or legality of regulations or general acts is connected with the existence of the legal interest of the person who submits it.18 Legal interest is deemed to be demonstrated if a regulation or general act issued for the exercise of public authority whose review has been requested by the petitioner directly interferes with his rights, legal interests, or legal position (Article 24(2) of the Constitutional Court Act). In instances in which regulations or general acts issued for the exercise of public authority have direct effects and interfere with the rights, legal interests, or legal position of the petitioner, a petition may be lodged within 1 year after such an act enters into force or within 1 year after the day the petitioner learns of the occurrence of harmful consequences (Article 24(3)).

The only case of repealing domestic laws due to their incompatibility with the Aarhus Convention can be found in Slovenia.

2.1 A Case of Review of Conformity of Domestic Law and Regulation with the Aarhus Convention in Slovenia

The Society for the Liberation of Animals and their Rights (Društvo za osvoboditev živali in njihove pravice) lodged a petition for the initiation of a procedure for the review of the constitutionality and legality of the Regulation amending the Regulation on Protected Wild Animal Species and the Ordinance on the withdrawal of the brown bear. The Society based its legal interest on the fact that it operates in the public interest. However, the Constitutional Court did not consider that such a status was sufficient for the recognition of legal interest. The legal interest of the petitioner was rather established on the fact that, as a member of the public concerned, the Society was not able to participate in the drafting of legally binding rules that regulate the protection of the area in which it operates.19

The petitioner claimed that the procedure of adopting the contested Regulation and Ordinance was not carried out in accordance with Article 8 of the Aarhus Convention that addresses public participation in the preparation of executive regulations and other generally applicable legally binding rules that may have a significant effect on the environment. The Constitutional Court agreed with this argument and went even further and repealed the Nature Protection Act. Although Articles 26(1) and 81(1) of the Nature Protection Act20 provide legal foundations for passing implementing regulations in the material field of its application, this Act lacked provisions that guarantee public participation in the preparation of such regulations. Thus, the Nature Protection Act was not in conformity with Article 8 of the Aarhus Convention.21

The Constitutional Court found that the Act is unconstitutional for the very reason that it did not regulate public participation in the preparation of subordinate legislation governing the protection of flora and fauna (i.e. implementing regulations that are adopted by the executive branch of government). In view of the fact that Slovenia is obliged to implement the Aarhus Convention, the legislature had the obligation to prescribe in the Act procedural rules for effective public participation in the preparation of these regulations. Since the Nature Protection Act, whose provisions provide a basis for the adoption of implementing regulations in this area, does not regulate public participation in the process of their preparation, it is inconsistent with the Aarhus Convention, and thus in conflict with the Constitution.22

The Slovenian legislature (Državni zbor) was instructed by the Court to correct the omission of public participation provisions within 3 months of the date of publication of the decision of the Constitutional Court in the Official Journal of the Republic of Slovenia. The Constitutional Court considered the deadline of 3 months to be adequate for rectifying the unconstitutionality, since the Nature Protection Act could be amended with minor changes.23

The contested Regulation amending the Regulation on Protected Wild Animal Species and the Ordinance on the withdrawal of the brown bear were adopted on the basis of the Nature Protection Act that was determined to be inconsistent with the Constitution. Since the Regulation was passed in a procedure that was, unconstitutionally, not regulated by the Act, the Constitutional Court found that this implementing regulation was in conflict with the Constitution and repealed it. The Ordinance was also repealed, with the explanation that it was adopted under the provisions of the Regulation which had just been invalidated by the Constitutional Court.24

The importance of this decision of the Slovenian Constitutional Court for the region of Southeast Europe is twofold. Firstly, it demonstrates that, pursuant to the hierarchy of legal norms, all laws and subordinate legislation must be in conformity with the Aarhus Convention and, in the case of conflict, their provisions can be challenged before the Constitutional Court in a procedure of assessment of their constitutionality. The only dissimilarity between the countries refers to different regulation of the right to submit an initiative for reviewing the constitutionality before the Constitutional Court (as noted supra). Secondly, although Article 8 of the Aarhus Convention, instead of mandatory wording, requires that the Parties ‘strive to promote effective public participation’, the Constitutional Court interpreted this phrase as obliging Slovenia to take concrete measures to fulfil the objectives of the Convention. Since there were neither legislative guarantees nor efforts on the side of Slovenian legislature to promote effective public participation in the preparation of implementing regulations, the absence of such guarantees in the Nature Protect Act represented a violation of the Aarhus Convention.

3 Direct Application of the Aarhus Convention by the Courts

In Albania, Croatia, Macedonia, Montenegro, Serbia and Slovenia international treaties are directly applicable by the courts.25 Recognition of the direct application of international agreements in Bosnia and Herzegovina arises from the interpretation of Articles 28 and 29 of the Law on the Procedure for the Conclusion and Execution of International Treaties.26

One of the main features of a monistic relationship between national and international law is the obligation of the national authorities of a Contracting State to interpret and apply domestic legislation in a manner that their decisions are not contrary to the international obligations their State has committed itself to by the ratification of a treaty.27 In addition, ratified rules of international law become directly applicable before the national courts and other public authority bodies without the need for any additional regulatory activity of the parliament or the government.28 However, Article 3(1) of the Aarhus Convention requires the Parties to establish and maintain a clear, transparent and consistent framework for its implementation. Moreover, certain provisions of the Convention often contain the phrase ‘within the framework of its national legislation’. This suggests that the Parties have the duty to adopt detailed provisions in their legislation to allow the implementation of the Convention. Therefore, direct application of the Convention by the national authorities may not be enough to fulfil the obligations that the Parties have undertaken.29

This issue was addressed by the Aarhus Convention Compliance Committee in its Report to the second Meeting of the Parties.30 It was noted that some Parties, with legal systems that allow for ratification of an international treaty without prior transposition of its requirements into the domestic system, sometimes make inadequate institutional arrangements for the implementation of the Convention, relying on its direct applicability.31 Although the Convention in these cases becomes a part of the domestic legal system, in many of its provisions it represents only a framework without clear requirements. These can lead to findings of the Compliance Committee that the Party concerned failed to take sufficient measures to establish a proper framework to implement the provisions of the Convention, regardless of the fact that national courts have the obligation to directly apply international treaties.32

In principle, courts deny the possibility of the direct application of rules of international treaties that are formulated in such a vague way that they could not be considered as self-sufficient and directly applicable.33 If a provision of an international treaty is formulated in such a way that it is necessary to adopt other legal norms to enable its implementation, due to the clear principle of separation of powers, judges cannot create a new norm, and, as a consequence, they cannot apply the provisions of the international treaty. Despite its vagueness, the norm of an international treaty is still binding upon a Party and creates obligations. Even in the event that individuals cannot invoke provisions that do not have a self-executing character before the national courts, the State can still be held responsible for non-compliance with the international treaty.

Are the provisions of the Aarhus Convention formed in a sufficiently clear way that enables the national courts to directly apply them in the case of a lack or deficiency of national norms? An explicitly affirmative answer in relation to all the provisions of the Convention certainly cannot be given. However, in my opinion the courts should be wary of declaring a lack of clarity of certain norms of the Convention and denying their direct application. Specifically, lack of clarity in the application of norms of international treaties is comparable to the situation of the interpretation of domestic legal norms. Certain ambiguities in legal norms do not necessarily mean that the norm automatically becomes inapplicable, since courts are bound to apply the law, including international treaties. National courts should interpret the relevant national norms in accordance with the requirements of the Aarhus Convention and in many cases this should be sufficient to fulfil its goals of providing access to information, public participation in decision-making and access to justice in environmental matters.34

How does a court deal with a case of conflict between national norms and the Aarhus Convention? Taking into consideration that the Aarhus Convention is part of the acquis communautaire, the answer to this question depends on whether the country concerned is an EU Member State or not. In EU Member States, if the provisions of domestic law are incompatible with or contrary to the Convention (for example, due to the incorrect implementation of the provisions in national legislation or the retaining of existing national norms that are contrary to the Convention), national authorities should, in line with the principles of direct effect and supremacy of EU law, directly apply the provision of the Aarhus Convention that is clear, precise and unconditional. If an issue is regulated by a provision of the Convention which is not sufficiently clear and precise to have direct effect and the relevant provisions of national law are incompatible with the Convention or there is no adequate provision of domestic law, the national authorities must, as far as possible, interpret domestic law in line with the objectives of the Convention. With respect to the Aarhus Convention, this obligation was established by the Court of Justice of the EU in judgment C-240/09 Lesoochranárske zoskupenie VLK. In this case of reference for a preliminary ruling by the Slovakian Supreme Court, the Grand Chamber of the CJEU ruled that:

Article 9(3) of the Convention on access to information, public participation in decision-making and access to justice in environmental matters … does not have direct effect in European Union law. It is, however, for the referring court to interpret, to the fullest extent possible, the procedural rules relating to the conditions to be met in order to bring administrative or judicial proceedings in accordance with the objectives of Article 9(3) of that convention and the objective of effective judicial protection of the rights conferred by European Union law, in order to enable an environmental protection organisation, such as the Lesoochranárske zoskupenie, to challenge before a court a decision taken following administrative proceedings liable to be contrary to European Union environmental law.

The requirement to interpret national law in conformity with Union law is called the principle (doctrine) of consistent interpretation.35

In countries that are not EU Member States, if a court in its proceedings determines that the law to be applied, or some of its provisions, are not in accordance with ratified international treaties, it shall stop the proceedings and initiate a review of the constitutionality of the law before the Constitutional Court.36

In our search for cases of direct application of the Aarhus Convention by courts in Southeast Europe, we have not been able to find many examples.37 There are many possible explanations for the rare application of the Convention. The European Union has adopted several legal instruments, binding on its Member States, that include rules on access to information, public participation in decision-making and access to justice in environmental matters (e.g. Directives 2003/4/EC, 85/337/EEC, 2001/42/EC, 2003/35/EC, 2004/35/EC). In the process of harmonisation with the acquis, EU candidate countries must align their legislation with the EU directives. In most of the countries of Southeast Europe, implementation of the Aarhus Convention was part of such a process of harmonisation with EU law. Therefore, in situations where the provisions of the Aarhus Convention are relevant to the merits of the case, the courts will apply the corresponding norms of domestic legislation rather than the provisions of an international treaty. There is another restrictive factor for the direct application of the Convention in environmental cases. The Convention does not contain any provisions that prescribe the level of the quality of the environment (e.g. levels of air or water quality) that should be protected, since it only covers procedural environmental rights (access to information, public participation and access to justice). Thus, in many environmental cases the provisions of the Convention will not be relevant for the adjudication of the dispute.38 The failure of a State to ensure a certain standard of the right to a healthy environment will not constitute a breach of the Aarhus convention, provided that all the procedural rights guaranteed by the Convention have been respected.