Stockholm Conference on Environmental
Law and Justice,  6-9 September 2006

Malgosia Fitzmaurice (Queen Mary) :
Environmental Justice through International Complaints Procedures?:
A Comparison between the Aarhus Convention and the NAAEC 

Environmental justice through international complaints procedures in the 1998 Aarhus Convention is a part of a general right of access to justice. The procedural right to environmental justice is formulated with a view of the particular legal character of this Convention, which is based on three pillars: access to information; public participation and access to justice of the individual.

This right can be viewed and analysed from the national point of view, dealt with in article 9 of the Convention, which in general brush strokes amounts to the correction of an offending administrative decision by a court or an independent organ. The Convention in article 15 provided for the establishment of the international body for compliance control: “The Meeting of the Parties shall establish, on a consensus basis, optional arrangements of a non-confrontational, non-judicial and consultative nature for reviewing compliance with the provisions of this Convention. These arrangements shall allow for appropriate public involvement and may include the option of considering communications from members of the public on matters related to this Convention.”

Through the decision I/7 of the first Meeting of parties, the Compliance Committee was established. The mandate of the Committee is fairly complicated and its innovative feature is the possibility of for members of the public to make communications to the Committee regarding a party’s compliance. This provision of course reflects the concept of participation, which is a fundamental principle of the Convention. As it was proved in practice such means is a popular method of triggering of the compliance procedure.

Article 9 (3) of the Convention, national justice (complaints) has been linked with international justice. Due to still comparatively limited practice, it is very difficult to draw extensive conclusions. However, there are some positive, public- friendly aspects of the Committee’s evolving practice, such as a possibly not so strict interpretation of the requirement of the exhaustion of local remedies as a prerequisite of the access to the Committee (although this issue is still under discussion by the Committee). However, there are aspects of the procedure before the Committee, which give some reasons for concern. For example, the standard of response by the party subject to the compliance review was not satisfactory. Also, the quality of communications was not equally high. It may be said that the Aarhus Convention and its complaints procedures give a good legal framework for parties to elaborate further procedures. However, the issue is the willingness of the parties to comply with their duties and whether the procedure gives to the Committee enough “teeth” to deal with the parties in non-compliance matters for the benefit of the public.

Articles 14 and 15 of the NAAEC are specially designed to enlist public participation of the general North American public to help to ensure that the parties abide by their obligations to enforce respective environmental laws. Prima facie, the provisions of the Agreement make the impression of a very well conceived system of international complaints procedure. Close scrutiny, however, indicates that several limitations imposed by the Agreement, the very restrictive interpretation by the Commission for Environmental Co-operation, and the weakness of the final document provided by this body (A “Factual Report,” which only provides for the clarification of facts, without any legal conclusions or determination) make the complaint procedure very ineffective. In reality it is a soft tool, with the Commission acting as nothing more than a facilitator.




 Ansvarig utgivare är SMC | Copyright 2006