Influence of Article 9 (3) of the Aarhus Convention on Legal Standing in Estonian Administrative Courts

• Author: Kaarel Relve
• Position: LL.M., Lecturer of Environmental Law, University of Tartu
• Pages: 176-184

Most countries of the world, including Estonia, declared in 1992 in Rio de Janeiro that the better resolution of environmental issues requires public participation in decision-making, provision of access to environmental information, and ensured access to justice. ¹ Observance of the declaration helps not only to solve environmental issues but also to implement the principle of democratic rule of law. Environment-related procedural rights significantly contribute to the transparency of the authority of the state, increase the legitimacy of decisions, ensure better protection of persons' rights, and provide for more effective implementation of laws.

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters ² opened for signing on 25 June 1998 in Aarhus proceeds from the above principle of the Rio Declaration and has become the most important international agreement on environmental rights. Estonia ratified this convention on 6 June 2001 ³ , and it entered into force on 30 October 2001. By the beginning of 2009, the convention had been ratified by the European Union and all of its member states, except Ireland. ⁴

The provisions of the convention regarding access to justice have proved the most difficult to implement. ⁵ The most problematic of these provisions is perhaps Article 9 (3). The wording of the paragraph is vague, allowing radically divergent interpretations. The purpose of this paper is to explain the meaning of Article 9 (3) of the convention and to examine whether Estonian administrative court practice complies with this provision upon giving meaning to standing. The wording and interpretation of the convention provision are therefore analysed through examination of the practice of the committee reviewing the implementation of convention requirements, and the extent of the legal standing in Estonian administrative courts and the influence of the convention provision thereon are analysed. As a result of limitations of space, the article does not discuss the compliance of administrative court procedure with the minimum requirements of Article 9 (4), and the relation of Article 9 (3) to other Estonian administrative and court procedures.

1. Article 9 of the Aarhus Convention: Access to justice

Article 9 of the convention consists of five paragraphs. The first two are closely connected to certain aspects of the right of information and participation. Paragraph 1 of Article 9 sets forth an obligation to ensure access to justice upon violation of the right to request information, established in Article 4 of the Aarhus Convention. Paragraph 2 obliges the party to ensure access to justice upon violation of the right to participate in the procedure granting permission for projects with a significant effect on the environment, stipulated in Article 6. A more detailed specification of these projects is provided in Annex 1 to the convention. Both substantive and procedural aspects can be challenged. Filing a complaint pursuant to Article 9 (2), environmental associations are not required to prove either impairment of their rights or sufficient interest.

It must be noted that, proceeding from the practice of the Supreme Court, the scope of application of Article 9 (2) of the Aarhus Convention is broader in Estonia than the text implies. ⁶ The convention enables reference to paragraph 2 not only upon the impairment of Article 6 but also upon infringement of other requirements of the convention if so provided in national law. In the interpretation of the Supreme Court, this means that there is no need for a special regulation that would provide such a possibility - it is sufficient if a decision, act, or omission mentioned in the Constitution is essentially challengeable in an administrative court. Not only compliance with the convention but also compliance with other relevant legislation can be subject to challenge. Therefore, if a decision, act, or omission belongs within the competence of an administrative court, the legality thereof can be checked because of infringement of both convention provisions and other relevant legislation. ⁷

Article 9 (3) of the Aarhus Convention lacks direct association with the right of information and participation. The paragraph provides:

In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

Article 9 (4) of the convention lays down the minimum requirements that the access-ensuring procedures (established in paragraphs 1 to 3) must meet. Procedure shall be fair, equitable, timely, and not prohibitively expensive. Also, the powers of the body conducting procedures shall be adequate and effective, and the final decision shall be rendered in writing.

Article 9 (5) obliges each party to provide information to the public about the possibilities of access to justice, and to consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

2. Possible interpretations of Article 9 (3)

The vagueness of the wording of paragraph 3 is not incidental. The negotiations preceding the adoption of the convention featured heated discussions regarding the extent (if any) to which the public should be able to demand adherence to requirements of environmental law. ⁸ The initial purpose of the provision was to allow the broadest possible access to justice, but during negotiations the wording was changed such that the requirements of national law obtained a focal position. ⁹ The final wording of the provision seems to reflect a lack of consensus, allowing radically different interpretations.

According to one radical interpretation, the provision merely constitutes a plea to broaden access to justice and fails to directly bind the parties in any respect. According to another radical interpretation, the provision gives rise to anyone's right to initiate judicial or other, similar proceedings in private or public interests. There are, naturally, several other interpretations between these extremes. Most EU Member States tended to favour the first line, claiming during the negotiations that paragraph 3 does not presume changing of national law. ¹⁰ Positions close to the first extreme have also been expressed in academic discussion. These state that the parties enjoy great freedom in decision upon the determination of criteria. In order to implement the provision, it is enough to have the possibility to draw the attention of state supervisory bodies to the violations, and the right to challenge omission on the part of supervisory bodies, if they fail to take relevant measures on the basis of the information. ¹¹

In the Implementation Guide to the Convention, instructions regarding the implementation of paragraph 3 remain vague, but the guide seems to exclude extreme interpretations. According to the guide, the convention makes it abundantly clear that it is not only the province of the public authorities to enforce environmental law: the public also have a role to play. The purpose of Article 9 (3) of the convention is to provide certain persons with the right to enforce environmental requirements directly or indirectly. Indirect enforcement constitutes the possibility to participate in state-initiated procedures. A person must have official status in that procedure. The convention nonetheless limits the right of the parties to determine criteria the meeting of which is prerequisite for initiation of enforcement procedure or participation therein. ¹²

At the same time, opinions supporting the other extreme can also be found in the literature. There are, e.g., references to the possibility of considering Article 9 (3) a means for the provision of "the right to a clean environment", established in Article 1. ¹³ According to another view, paragraph 3 presumes the right of environmental organisations to file altruistic challenges in respect of all environmental matters. ¹⁴

The author of this article has no doubts that the purpose of the provision is to broaden access to justice. The preamble highlights that the purpose of procedural rights is to ensure the above-mentioned right to a clean environment, on the one hand, and to provide everyone with the obligation to protect and improve the environment, on the other. The preamble also indicates that access to effective judicial mechanisms is given to the public not only for the purpose of protecting their justified interests but also for ensuring the implementation of laws. The public are not able to protect their interests, or meet the expectations imposed on them in environmental protection, if access to justice rests on ordinary restrictive criteria. Reference to this can also be found in the language referring to the criteria, "if any", laid down in paragraph 3 - if requirements meant ordinary grounds for access, this phrasing would not make sense. On the other hand, it would be odd if, upon the violation of any environmental provision (Article 9 (3)), more extensive access should be provided to justice than with regard to activities...