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Non-Judicial, Advisory, Yet Impactful? The Aarhus Convention Compliance Committee as a Gateway to Environmental Justice

Published online by Cambridge University Press:  30 April 2020

Gor Samvel
Gor Samvel*
Affiliation:
Graduate Institute of International and Development Studies, Geneva (Switzerland); Visiting Scholar at Duke University, School of Law, Durham, NC (United States). Email: gor.movsisyan@graduateinstitute.ch.
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Abstract

In accordance with Article 15 of the Aarhus Convention, the first meeting of the parties to this Convention established a non-judicial and consultative Compliance Committee to consider, among other matters, individual cases concerning compliance by parties with their obligations. The Committee is traditionally viewed as a non-judicial, soft mechanism and its rulings as non-binding, soft law. In recent years, however, to support the claim that rulings of the Committee have an impact and legal effects, some scholars have departed from the traditional perspective and characterized the Committee as a more judicialized mechanism, which issues legally binding rulings.

This characterization assumes a correlation between judicialization and binding effect on the one hand, and legal effect on the other. The latter claim, however, has not been supported by a systematic assessment of the impact of the Committee's rulings on domestic practice. Against this background, the article assesses the impact of Article 9-related rulings of the Committee, issued between 2004 and 2012, on national legal orders. The assessment reveals that in fewer than 41% of the cases parties recorded some degree of compliance with the rulings of the Committee, whereas in 59% they recorded no progress. The quantitative assessment and respective qualitative insights, among other factors, suggest that the normative character of the Committee and its rulings play an auxiliary role in the process of ensuring compliance with the provisions of the Aarhus Convention. The decision of parties to comply is determined typically by the substance of the rulings as they stand in relation to domestic circumstances rather than by the institutional features of the Committee and binding effect of its rulings.

Keywords

Aarhus ConventionCompliance CommitteeAccess to environmental justiceSDG16Soft lawEnvironmental litigation
Type
Article
Information
Transnational Environmental Law , Volume 9 , Issue 2 , July 2020 , pp. 211 - 238
Copyright
Copyright © 2020 Cambridge University Press

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References

1 See, e.g., the implementation committee of the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), Montreal, QC (Canada), 16 Sept. 1987, in force 1 Jan. 1989, available at: http://ozone.unep.org/new_site/en/montreal_protocol.php, and the implementation committee of the Convention on Long-range Transboundary Air Pollution, Geneva (Switzerland), 13 Nov. 1979, in force 16 Mar. 1983, available at: http://www.unece.org/env/lrtap.

2 Aarhus (Denmark), 25 June 1998, in force 30 Oct. 2001, available at: https://www.unece.org/env/pp/treatytext.html.

3 United Nations Economic and Social Council (ECOSOC), Report of the First Meeting of the Parties: Addendum, Decision I/7 ‘Review of Compliance’ (21 Oct. 2002), UN Doc. ECE/MP.PP/2/Add.8.

4 The encompassing term ‘individual cases of compliance’ is used to refer to (i) submissions by parties on the compliance of another party or on their own compliance; (ii) referrals by the Secretariat of the Convention; and (iii) communications from the public.

5 United Nations Economic Commission for Europe (UNECE), ‘Communications from the Public’, available at: https://www.unece.org/env/pp/pubcom.html.

6 McGlone, E. Fasoli & A., ‘The Non-Compliance Mechanism under the Aarhus Convention as “Soft” Enforcement of International Environmental Law: Not So Soft After All!’ (2018) 65(1) Netherlands International Law Review, pp. 27–53Google Scholar.

7 Ibid., p. 38.

8 The Committee recommends that the MoP should advise the respective party on the necessary actions to bring the party into compliance. What this article refers to as Committee recommendations are, therefore, formally also the recommendations of the MoPs. The evaluations in this article are based on recommendations and progress evaluations adopted by the MoPs.

9 As for the rationale for choosing this period, see Section 3 below with regard to methodology.

10 A quotation from the statement by Ralph Hallo, President of the European Environmental Bureau (EEB) and Coordinator of the International Programme, Stichting Natuur en Milieu (the Netherlands), available at: https://www.unece.org/fileadmin/DAM/env/pp/documents/statements.pdf. See also Pitea, C., ‘Procedures and Mechanisms for Review of Compliance under the 1998 Aarhus Convention on Access to Information, Public Participation and Access to Justice in Environmental Matters’, in Treves, T. et al. (eds), Non-Compliance Procedures and Mechanisms and the Effectiveness of International Environmental Agreements (T.M.C. Asser Press, 2009), pp. 221–51CrossRefGoogle Scholar, Brady, K., ‘New Convention on Access to Information and Public Participation in Environmental Matters’ (1998) 28(2) Environmental Policy and Law, pp. 69–76Google Scholar, Koester, V., ‘Review of Compliance under the Aarhus Convention: A Rather Unique Compliance Mechanism’ (2005) 2(1) Journal for European Environmental & Planning Law, pp. 31–44CrossRefGoogle Scholar.

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12 Francioni, F., ‘International Human Rights in an Environmental Horizon’ (2010) 21(1) European Journal of International Law, pp. 41–55CrossRefGoogle Scholar; Bonine, S. Kravchenko & J., ‘Interpretation of Human Rights for the Protection of the Environment in the European Court of Human Rights’ (2012) 25(1) Global Business & Development Law Journal, pp. 245–87Google Scholar.

13 J. Darpö, ‘Effective Justice? Synthesis Report of the Study on the Implementation of Articles 9.3 and 9.4 of the Aarhus Convention in the Member States of the European Union’, UNECE, 2013; D. Skrylnikov, ‘Study on Standing for Individuals, Groups and Environmental Non-Governmental Organizations before Courts in Environmental Cases: Eastern Europe, the Caucasus and Central Asia’, UNECE, 2014; ECOSOC, ‘Maastricht Recommendations on Promoting Effective Public Participation in Decision-making in Environmental Matters, Addendum to the Report of the Fifth session of the Meeting of the Parties’ (30 June 2014), UN Doc. ECE/MP.PP/2014/2/Add.2, available at: https://www.unece.org/environmental-policy/conventions/public-participation/aarhus-convention/tfwg/envppppdm/ppdm-recs.html.

14 UNECE, ‘Electronic Information Tools: Case Studies’, available at: https://www.unece.org/env/pp/aarhus/tfai/case_studies.html.

15 Task Force on Access to Information, further information is available at: https://www.unece.org/env/pp/tfai.html; Task Force on Public Participation in Decision-Making, further information is available at: https://www.unece.org/env/pp/ppdm.html; Task Force on Access to Justice, further information is available at: https://www.unece.org/env/pp/tfaj/background.html.

16 UNECE, The Aarhus Convention: Implementation Guide, 2nd edn (UNECE, 2014).

17 Additionally, the Committee considers that the use of the formulation ‘“laws relating to the environment” in Article 9(3) is not limited to “environmental laws”, e.g., laws that explicitly include the term “environment” in their title or provisions. Rather, it covers any law that relates to the environment, i.e. a “law under any policy, including and not limited to, chemicals control and waste management”’: see Findings and Recommendations with regard to Compliance by Austria (ACCC/C/2011/63) (this and other findings are referred to in this article as ‘F&R with regard to Compliance’).

18 Jendrośka, J., ‘Aarhus Convention Compliance Committee: Origins, Status and Activities’ (2011) 8(4) Journal for European Environmental & Planning Law, pp. 301–14CrossRefGoogle Scholar, at 303,

19 Ibid., p. 303.

20 See further Koester, n. 10 above.

21 UNECE, ‘Guidance Document on the Aarhus Convention Compliance Mechanism‘, last revised version of Nov. 2018, available at: https://www.unece.org/fileadmin/DAM/env/pp/compliance/CC-62/Guide_to_the_ACCC_fifth_draft_for_CC62.pdf.

22 Three members are environmental law academics, and the remaining six are environmental law practitioners.

23 The last intersessional period is 2017 to 2020. Members of the Committee are elected either for one or two intersessional periods.

24 UNECE Guidance Document, n. 21 above, p. 38.

25 In exceptional circumstances, when compliance issues need to be addressed without delay, the Committee, ‘in consultation with the Party concerned’ or ‘subject to agreement with the Party concerned’, may resort to the measures listed in para. 37(a) (provide advice and facilitate assistance to individual parties regarding the implementation of the Convention); 37(b) (make recommendations to the Party concerned); 37(c) (request the Party concerned to submit a strategy, including a time schedule, to the Compliance Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy); or 37(d) (in cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public) of the Annex of MoP Decision I/7 on review of compliance, n. 3 above.

26 The separation of adjudication from post-adjudication phases is fundamental for international courts and tribunals: see Rosenne, S. & Ronen, Y., The Law and Practice of the International Court, 1920–2005 (Martinus Nijhoff, 2006)Google Scholar. In the compliance process the declaration of non-compliance and the post-compliance phase (follow-up) are integral parts of one entire compliance process.

27 Vienna (Austria), 23 May 1969, in force 27 Jan. 1980, available at: https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-English.pdf.

28 Koester, V., ‘The Aarhus Convention Compliance Mechanism and Proceedings before Its Compliance Committee’, in Banner, C. (ed.), The Aarhus Convention: A Guide for UK Lawyers (Hart, 2015), pp. 201–15Google Scholar, A. Tanzi & C. Pitea, ‘Non-Compliance Mechanisms: Lessons Learned and the Way Forward’, in Treves et al., n. 10 above, pp. 569–80.

29 Fasoli & McGlone, n. 6 above, p. 38.

30 Brölmann, C. & Radi, Y., Research Handbook on the Theory and Practice of International Lawmaking (Edward Elgar, 2016), p. 258CrossRefGoogle Scholar; Loibl, G., ‘Compliance Procedures and Mechanisms’, in Fitzmaurice, M., Ong, D.M. & Markouris, P. (eds), Research Handbook on International Environmental Law (Edward Elgar, 2010), pp. 426–49Google Scholar, at 435.

31 Guzman, A. & Meyer, T., ‘International Soft Law’ (2010) 2(1) Journal of Legal Analysis, pp. 171–225CrossRefGoogle Scholar, at 172.

32 Ibid., p. 171.

33 Ibid., p. 174.

34 Fasoli & McGlone, n. 6 above, p. 29.

35 Some authors, however, have recognized the need for such an assessment: see, e.g., Ryall, Á., ‘Access to Justice in Environmental Matters in the Member States of the EU: The Impact of the Aarhus Convention’ (2000) 5(16) Jean Monnet Working Paper, pp. 1–56Google Scholar, at 55.

36 The data for this article is sourced from a database created for a research project on the evaluation of the impact of 18 compliance committees. The data is coded for the first time, and is not fully publicly available. The impact assessment data is available in Appendix I and verifiable through the respective references. The remaining data can be provided upon request to the author of this article.

37 In its recommendations the Committee puts forward practical, legislative, and policy measures, implementation of which should bring parties into compliance.

38 In its F&R with regard to Compliance by Germany (ACCC/C/2008/31) the Committee stated: ‘The mere hypothesis that courts could interpret the relevant national provisions contrary to the Convention's requirement is not sufficient to establish non-compliance by the Party concerned … the Committee considers whether the evidence submitted to it demonstrates that the practice of the courts of the Party concerned indeed follows this approach. If it does not, the Committee may conclude that the Party concerned fails to comply with the Convention’. If this is a reasoning the Committee follows when deciding the question of non-compliance the same merit should be applied when evaluating the progress of the parties. When reviewing Germany's progress the Committee recognized the adequacy of legislative measures but did not request evidence of relevant judicial practice. Instead, the Committee leaves the matter of practice for future consideration.

39 There were more than 87 communications up to the end of 2013; however, the article includes those cases in respect of which the MoP's decisions on non-compliance could have been issued by 2012.

40 F&R with regard to Compliance by the United Kingdom (UK) (ACCC/C/2011/65).

41 ‘… in cases which were determined to be preliminarily admissible, but where the legal issues raised by the communication had already been tackled by the Committee, summary proceedings could apply’: for further information see UNECE, ‘Guidance Document on Aarhus Convention Compliance Mechanism’, Dec. 2010, p. 22, available at: http://www.unece.org/index.php?id=21457.

42 The parties concerned are Armenia (AM), Austria (AT), Bulgaria (BG), Czech Republic (CZ), Germany (DE), Denmark (DK), Spain (ES), European Union (EU), Kazakhstan (KZ), Moldova (MD), Romania (RO), United Kingdom (UK).

43 ACCC/CC/2004/10 (KZ).

44 ACCC/C/2007/20 (KZ), ACCC/C/2009/40 (UK), ACCC/C/2012/72 (EU), ACCC/C/2012/75 (UK), ACCC/C/2013/82 (Norway).

45 ACCC/C/2010/47 (UK), ACCC/C/2010/49 (UK), ACCC/C/2012/74 (UK), ACCC/C/2013/84 (UK).

46 Under another communication relating to the UK (ACCC/C/2008/23) the Committee found non-compliance stricto sensu with Art. 9(4) but no evidence was presented as to whether it was a result of systemic error; hence no recommendations were issued. With regard to two other communications concerning the UK's compliance the Committee applied summary proceedings (ACCC/C/2011/64, ACCC/C/2012/65), and thus the communications were no longer pursued.

47 Koester, n. 10 above, p. 34.

48 The Committee requires exhaustion of domestic remedies before a compliance case can be initiated. In practice, however, the Committee also considers whether those remedies are sufficient and effectively available, and whether their application is not unreasonably prolonged so that it effectively impedes access to justice (Decision I/7, n. 3 above, para. 21).

49 Henkin, L., How Nations Behave (Columbia University Press, 1979), p. 47Google Scholar.

50 There have also been 13 cases of alleged non-compliance with Art. 9 where the parties were found to be in compliance.

51 Studies carried out under the auspices of the Aarhus Task Force on Access to Justice have also shown the existence of implementation loopholes in legal systems (e.g., the Netherlands, Sweden and Estonia, Azerbaijan, Belarus) whose compliance with Art. 9 has never come under the Committee's scrutiny for the period evaluated in this article: see, e.g., Darpö, n. 13 above; Skrylnikov, n. 13 above.

52 F&R with regard to Compliance by KZ (ACCC/CC/2004/10) (lengthy legal procedures and denial of NGO standing for access to environmental information).

53 F&R with regard to Compliance by MD (ACCC/C/2008/30) (failure of public authority of Moldova to fully execute the final decision of the Civil Chamber of the Chisinau Court of Appeal).

54 F&R with regard to Compliance by AM (ACCC/C/2011/62) (denial in standing by the Court of Cassation of Armenia for NGOs to challenge mining permits in the court).

55 F&R with regard to Compliance by CZ (ACCC/C/2010/50) (no access to a review procedure in the Czech Republic to challenge the legality of environmental impact assessment screening conclusions).

56 F&R with regard to Compliance by DE (ACCC/C/2008/31) (the requirement in German legislation for NGOs to assert that under the Environmental Appeals Act (Umwelt-Rechtsbehelfsgesetz) (EAA) the challenged decision contravenes a legal provision ‘serving the environment’).

57 F&R with regard to Compliance by DE (ACCC/C/2008/31).

58 F&R with regard to Compliance by CZ (ACCC/C/2010/50).

59 F&R with regard to Compliance by AM (ACCC/C/2004/08).

60 F&R with regard to Compliance by BG (ACCC/C/2011/58).

61 F&R with regard to Compliance by KZ (ACCC/CC/2004/06). The communication concerning Kazakhstan highlighted the absence of ‘effective remedies in a review procedure concerning an omission by the public authority to enforce environmental legislation as well as failure to ensure that courts properly notify the parties of the time and place of hearings and of the decision taken’.

62 F&R with regard to Compliance by the EU (ACCC/C/2008/32).

63 F&R with regard to Compliance by AT (ACCC/C/2010/48). Non-compliance by Austria was a result of having no ‘access to a timely review procedure’ (Art. 9(4)), and ‘no standing of environmental non-governmental organizations (NGOs) to challenge acts or omissions of a public authority or private person in many of its sectoral laws’ (Art. 9(3)). In a later communication the Committee reiterated the failure of Austria to comply with Art. 9(3)–(4) on finding the public to have no means of access ‘to administrative or judicial procedures to challenge acts and omissions of public authorities and private persons which contravene provisions of national laws, including administrative penal laws and criminal laws, relating to the environment, such as contraventions of laws relating to trade in wildlife, nature conservation and animal protection’: see F&R with regard to Compliance by AT (ACCC/C/2011/63).

64 F&R with regard to Compliance by BG (ACCC/C/2012/76) (inadequate and ineffective remedies to prevent environmental harm in Bulgaria).

65 F&R with regard to Compliance by RO (ACCC/C/2012/69) (untimely and ineffective remedies of the review procedures for information requests under Art. 9(1)).

66 F&R with regard to Compliance by ES (ACCC/C/2008/24) (a finding of no adequate remedies (i.e. injunctive relief)).

67 F&R with regard to Compliance by DK (ACCC/C/2011/57).

68 F&R with regard to Compliance by DK, ibid.; F&R with regard to Compliance by the UK (ACCC/C/2008/27); F&R with regard to Compliance by the UK (ACCC/C/2012/77) (prohibitively expensive proceedings).

69 F&R with regard to Compliance by ES (ACCC/C/2009/36): Spain had no appropriate assistance mechanisms to remove or reduce financial barriers to access to justice to a small NGO (Art. 9(5)) and no system of fair and equitable remedies (Art. 9(4)).

70 F&R with regard to Compliance by the UK (ACCC/C/2008/33). In this early case on compliance by the UK the reason for non-compliance was the prohibitively expensive cost (Art. 9(4)). The Committee also found that the system as a whole is not such as ‘to remove or reduce financial … barriers to access to justice’, as Art. 9(5) of the Convention requires parties to the Convention to consider that ‘by not having taken the necessary legislative, regulatory and other measures to establish a clear, transparent and consistent framework to implement [Art.] 9(4) of the Convention, the Party concerned also fails to comply with [Art.] 3.1’.

71 Appendix 1 contains a per-case evaluation of the impact based on the adopted methodology.

72 With regard to compliance by Germany under this communication (ACCC/C/2008/31/DE), the MoP issued its decision only in 2014. This explains why the non-compliance period is only 36 months when the communication was submitted in 2008.

73 Out of 10 non-compliance cases four relate to the UK.

74 Clapham, A., Human Rights and Non-State Actors (Edward Elgar, 2013)CrossRefGoogle Scholar.

75 Hertogh, M. & Halliday, S., Judicial Review and Bureaucratic Impact: International and Interdisciplinary Perspectives (Cambridge University Press, 2004)CrossRefGoogle Scholar.

76 Alter, K., The New Terrain of International Law: Courts, Politics, Rights (Princeton University Press, 2014)Google Scholar.

77 Voigt, C. & Makuch, Z., Courts and the Environment (Edward Elgar, 2018)CrossRefGoogle Scholar.

78 Koester, n. 28 above.

79 Fasoli & McGlone, n. 6 above.

80 Ibid., pp. 36 and 45.

81 ‘In considering any communication from the public, the Compliance Committee will take into account the extent to which any domestic remedy (i.e. review or appeals process) was available to the person making the communication, except where such a remedy would have been unreasonably prolonged or inadequate. Before making a communication to the Committee, the member of the public should consider whether the problem could be resolved by using such domestic remedies’: UNECE, Guidance Document, n. 21 above, p. 34.

82 Fasoli & McGlone, n. 6 above.

83 Dörr, O. & Schmalenbach, K., Vienna Convention on the Law of Treaties: A Commentary (Springer, 2018), pp. 579–614Google Scholar.

84 The recommendations do not purport comprehensively to list all actions required for full compliance and the party concerned may take alternative actions: Fasoli & McGlone, n. 6 above, p. 42.

85 Washington DC (US), 2 Dec. 1946, in force 10 Dec. 1948, available at: https://iwc.int/convention.

86 Whaling in the Antarctic (Australia v. Japan: New Zealand intervening), Judgment, 31 Mar. 2014, ICJ Reports (2014), p. 46.

87 Jutta Brunnée claims the development of a significant ‘grey zone’ with regard to the lawmaking power of Conferences of the Parties (COPs). This ‘grey zone’ is as a result of COP decisions the adoption of which is authorized explicitly by or can be implied from the underlying treaty. For example, Art. 2.9 of the Montreal Protocol (n. 1 above) explicitly authorizes the COP to change the ozone depleting potential of substances or their phase-out schedule; the Kyoto Protocol (Kyoto (Japan), 11 Dec. 1997, in force 16 Feb. 2005, available at: http://unfccc.int/resource/docs/convkp/kpeng.pdf) charges the COP to the UN Framework Convention on Climate Change (New York, NY (US), 9 May 1992, in force 21 Mar. 1994, available at: https://unfccc.int/resource/docs/convkp/conveng.pdf) with elaborating the terms that are needed to flesh out several of the Protocol's key provisions (i.e., Art. 6.2): Brunnée, J., ‘COPing with Consent: Law-Making under Multilateral Environmental Agreements’ (2002) 15(1) Leiden Journal of International Law, pp. 1–52CrossRefGoogle Scholar, at 21–33. The provisions of the Aarhus Convention do not fall within any of the mentioned exceptions in terms of the powers of the MoP to act as a lawmaker.

88 Thürer, D., ‘“Soft Law”: Eine neue Form vom Völkerrecht’ (1985) 104 Zeitschrift für schweizerisches Recht, pp. 429–45Google Scholar, at 445.

89 According to Daniel Bodansky, ‘[i]n general, decisions by international institutions such as the COP are not legally binding unless their governing instrument so provides’: Bodansky, D., ‘Legally Binding versus Non-legally Binding Instruments’, in Barrett, S., Carraro, C. & de Melo, J. (eds), Towards a Workable and Effective Climate Regime (CEPR Press, 2015), pp. 155–65Google Scholar, at 157. Jutta Brunnée suggests an interaction perspective towards international law which embraces the entire normative continuum, where through the process designed to promote compliance, including MoP decision making, the law is remade as the scope or the content of norms shift and give rise to new normative understanding. This understanding of international law eschews the notions of ‘soft’ and ‘hard’ as meaningful categories, and the legal norms are distinguished from non-legal norms by internal characteristics (compatibility of the rules, reasonable requirements of the rules, and congruence of official actions with the rules, transparency and relative predictability of the rules): Brunnée, n. 87 above, pp. 33–7. See also Wiersema, A., ‘The New International Law-Makers? Conferences of the Parties to Multilateral Environmental Agreements’ (2009) 31(1) Michigan Journal of International Law, pp. 232–87Google Scholar.

90 Fasoli & McGlone, n. 6 above.

91 F&R with regard to Compliance by BG (ACCC/C/2011/58).

92 F&R with regard to Compliance by the EU (ACCC/C/2008/32).

93 Progress report by BG, Sept. 2013, available at: https://www.unece.org/env/pp/compliance/compliancecommittee/58tablebg.html.

94 Fifth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by BG, ECE/MP.PP/2014/13, 2 July 2014.

95 Regulation (EC) No. 1367/2006 on the Application of the Provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters to Community Institutions and Bodies [2006] OJ L 264/13.

96 F&R with regard to Compliance by the EU (ACCC/C/2008/32).

97 Sixth MoP to the Aarhus Convention: Agenda Item 7(b): Compliance Mechanisms. Statement by the EU with Respect to the Draft Decision VI/8f concerning Compliance by the European Union with Its Obligations under the Convention, ECE/MP.PP/2017/25, 14 Sept. 2017.

98 Council Decision (EU) 2017/1346 of 17 July 2017 on the Position to be Adopted, on behalf of the European Union, at the Sixth Session of the Meeting of the Parties to the Aarhus Convention as regards Compliance Case ACCC/C/2008/32 [2017] OJ L 186/15.

99 Statement of European Ecoforum under the Agenda Item 7(b): Compliance Mechanism, Sept. 2017, available at: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Statements_and_Comments/MOP_6_7b_Eco_Forum_Compliance.pdf.

100 Statement of Norway under Agenda Item 7(b): Draft Decision VI/8f concerning Compliance by the European Union with Its Obligations under the Convention, Sept. 2017, available at: https://www.unece.org/fileadmin/DAM/env/pp/mop6/Statements_and_Comments/MOP-6_7b_Compliance_General___EU_-_Norway_statement_1.pdf.

101 Statement of Switzerland under Agenda Item 7(b): Report of the Sixth Session of the Meeting of the Parties of the Aarhus Convention, ECE/MP.PP/2017/2, Sept. 2017.

102 Proposal for a Council Decision on the Position to be Adopted, on behalf of the European Union, at the Sixth Session of the Meeting of the Parties to the Aarhus Convention regarding Compliance Case ACCC/C/2008/32, COM(2017) 366 final.

103 The draft of the EU Commission refrains from using the term ‘authoritative interpretation’.

104 Proposal for a Council Decision, n. 102 above, pp. 4–7.

105 In its argumentation the CJEU relied on the Implementation Guide, n. 16 above, which, in turn, refers widely to the Committee's interpretations of the Aarhus provisions.

106 See, e.g., Case C-260/11, The Queen, on the Application of David Edwards and Another v. Environment Agency and Others (Reference for a Preliminary Ruling from the Supreme Court (United Kingdom)), Opinion of Advocate General Kokott, Oct. 2012, ECLI:EU:C:2012:645; and Joined Cases C-401/12P to C-403/12P, Council of the European Union, European Parliament, European Commission v. Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht, Opinion of Advocate General Jääskinen, May 2014, ECLI:EU:C:2014:310.

107 The measures are: (a) Provide advice and facilitate assistance to individual parties regarding the implementation of the Convention; (b) Make recommendations to the party concerned; (c) Request the party concerned to submit a strategy, including a time schedule, to the Committee regarding the achievement of compliance with the Convention and to report on the implementation of this strategy; (d) In cases of communications from the public, make recommendations to the Party concerned on specific measures to address the matter raised by the member of the public; (e) Issue declarations of non-compliance; (f) Issue cautions; (g) Suspend, in accordance with the applicable rules of international law concerning the suspension of the operation of a treaty, the special rights and privileges accorded to the Party concerned under the Convention; (h) Take such other non-confrontational, non-judicial and consultative measures as may be appropriate.

108 Wolfrum, R., ‘Means of Ensuring Compliance with and Enforcement of International Environmental Law’ (1998) 272 Collected Courses of the Hague Academy of International Law, pp. 56–8Google Scholar.

109 Third MoP to the Aarhus Convention: Decision III/6f, Compliance by UA, ECE/MP.PP/2008/2/Add.14, 13 June 2008.

110 Fourth MoP to the Aarhus Convention: Decision IV/9c on Compliance by KZ, ECE/MP.PP/2011/2/Add.1, 1 July 2011.

111 Third MoP to the Aarhus Convention: Decision III/6e, Compliance by TM, ECE/MP.PP/2008/2/Add.14, 13 June 2008.

112 Sixth MoP to the Aarhus Convention: Decision VI/8d, Compliance by BM, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017.

113 As well as the practice of many other MEAs. For more on the effectiveness of other environmental regimes see Miles, E.L. et al. , Environmental Regime Effectiveness: Confronting Theory with Evidence (The MIT Press, 2001)CrossRefGoogle Scholar.

114 Rosenne & Ronen, n. 26 above.

115 See, e.g., Keller, H. & Sweet, A. Stone, A Europe of Rights: The Impact of the ECHR on National Legal Systems (Oxford University Press, 2008)Google Scholar; Fikfak, V., ‘Changing State Behaviour: Damages before the European Court of Human Rights’ (2018) 29(4) European Journal of International Law, pp. 1091–125CrossRefGoogle Scholar.

116 C. Schulte, Compliance with Decisions of the International Court of Justice (Oxford University Press, 2004).

117 Fikfak, n. 115 above, p. 1092.

118 Council of Europe, 11th Annual Report of the Committee of Ministers, ‘Supervision of the Execution of Judgments and Decisions of the European Court of Human Rights 2017’, Mar. 2018, available at: https://edoc.coe.int/en/european-convention-on-human-rights/7570-supervision-of-the-execution-of-judgments-of-the-european-court-of-human-rights-2017-11th-annual-report-of-the-committee-of-ministers.html.

119 Rosenne & Ronen, n. 26 above, p. 195.

120 Fikfak, n. 115 above, p. 1101.

121 Guzman & Meyer, n. 31 above, p. 174.

122 E.g., under communication ACCC/C/2011/63 Austria was declared non-compliant with Art. 9(3) as members of the public in certain cases have no means of access to administrative or judicial procedures to challenge acts and omissions of public authorities and private persons that contravene provisions of national laws, including administrative penal laws and criminal laws, relating to the environment. Communication ACCC/C/2011/63 remains open and under review until Austria fulfils the Committee's recommendation to amend its legislation and practice so that members of the public obtain such access.

123 Various interpretations of the provisions of the Aarhus Convention by the Committee not only clarify or illuminate but also expand the meaning of those provisions: see, e.g., F&R with regard to Compliance by HU, ACCC/C/2004/04 (Art. 6 ‘Timeframe for decision-making and commenting’), F&R with regard to Compliance by BG, ACCC/C/2011/58 (Art 9(3) ‘the criteria, if any, laid down in national law’), F&R with regard to Compliance by LT (ACCC/C/2006/16) (Arts 6 and 7 ‘permitting decisions in consecutive decision making’).

124 E.g., in communication ACCC/C/2011/63 concerning compliance by Austria the Committee relied on its interpretation of the notion of ‘laws related to the environment’, which was defined in communication ACCC/C/2005/11 concerning compliance by Belgium.

125 d'Aspremont, J., ‘Softness in International Law: A Self-Serving Quest for New Legal Materials’ (2008) 19(5) European Journal of International Law, pp. 1075–93CrossRefGoogle Scholar, at 1078–9.

126 Ibid., pp. 1081–7.

127 Communication ACCC/C/2011/63 concerning compliance by Austria is cited as an example. The observations based on this case though (other than those relating to legal interpretation) are relevant for all remaining communications discussed in this article.

128 Loibl, n. 30 above, p. 437.

129 F&R with regard to Compliance by DE (ACCC/C/2008/31); F&R with regard to Compliance by AT (ACCC/C/2010/48).

130 Fourth MoP to the Aarhus Convention, Decision IV/9i on Compliance by the UK, ECE/MP.PP/2011/2/Add.1, 1 July 2011, available at: https://www.unece.org/env/pp/mop4/mop4.doc.html.

131 Fifth MoP to the Aarhus Convention, Decision V/9n on Compliance by the UK, ECE/MP.PP/2014/2/Add.1, 4 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html.

132 Sixth MoP to the Aarhus Convention, Decision VI/8k on Compliance by the UK, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

133 ‘(a) Regarding paragraphs 8(a), (b) and (d) of decision V/9n, that: (i) With respect to England and Wales, while the 2017 amendments to the costs protection system in England and Wales introduced some positive improvements, the 2017 amendments overall appear to have moved the Party concerned further away from meeting the requirements of paragraphs 8(a), (b) and (d) of decision V/9n; (ii) Concerning Scotland, the Party concerned has not yet fulfilled the requirements of paragraphs 8(a), (b) and (d) of decision V/9n, though the significant steps taken by the Party concerned to date in that direction are welcome; (iii) With regard to Northern Ireland, the Party concerned has not yet fulfilled the requirements of paragraphs 8(a), (b) and (d) of decision V/9n, though the considerable progress made by the Party concerned to date in that direction is welcome;’.

134 In this decision the MoP ascertains the UK's failure to comply with Art. 9(4) as declared in communication ACCC/C/2008/27. The decision also endorsed the findings of communications ACCC/C/2012/77, ACCC/C/2013/85 and ACCC/C/2013/86, which in similar vein found the UK to be in non-compliance with Art. 9(4) because of the prohibitively expensive costs order system, particularly in private nuisance proceedings.

135 Fifth MoP to the Aarhus Convention, Decision V/9h on Compliance by DE, ECE/MP.PP/2014/2/Add.1, 4 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html.

136 Sixth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by DE, ECE/MP.PP/2017/40, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

137 Fifth MoP to the Aarhus Convention, Decision V/9b on Compliance by AT, ECE/MP.PP/2014/2/Add.1, 2 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html.

138 Sixth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by AT, ECE/MP.PP/2017/34, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

139 Sixth MoP to the Aarhus Convention, Decision VI/8d on Compliance by BG, 14 Sept.2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

140 Fifth MoP to the Aarhus Convention, Decision V/9d on Compliance by BG, ECE/MP.PP/2017/23, 2 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html.

141 Sixth MoP to the Aarhus Convention, Decision VI/8h on Compliance by RO, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

142 Sixth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by AM, ECE/MP.PP/2017/33, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html

143 Sixth MoP to the Aarhus Convention, Decision VI/8j on Compliance by ES, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

144 Sixth MoP to the Aarhus Convention, Decision VI/8k on Compliance by the UK, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

145 Third MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by AM, ECE/MP.PP/2008/5/Add. 2, 13 June 2008, available at: https://www.unece.org/env/pp/mop3/mop3.doc.html.

146 Sixth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by AT, ECE/MP.PP/2017/34, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

147 Sixth MoP, Decision VI/8b, Compliance by AT, ECE/MP.PP/2017/2/Add.1, 14 Sept. 2017, available at: https://www.unece.org/env/pp/aarhus/mop6_docs.html.

148 Fourth MoP to the Aarhus Convention, Decision IV/9c on Compliance by KZ, ECE/MP.PP/2011/2/Add.1, 1 July 2011, available at: https://www.unece.org/env/pp/mop4/mop4.doc.html.

149 Fifth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by MD, ECE/MP.PP/2014/18, 2 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html.

150 Fifth MoP to the Aarhus Convention, Report of the Compliance Committee: Compliance by DK, ECE/MP.PP/2014/15, 2 July 2014, available at: https://www.unece.org/env/pp/aarhus/mop5_docs.html. The case is exceptional in that in a letter in Dec. 2013 the Danish government clarified that the Danish regulation was not amended to comply with the Committee's findings and recommendations. As a result of a change in the political regime in the government, Denmark informed the Committee of its decision to change the legislation before the Committee had issued draft recommendations. Despite these circumstances, the case is included in the pool of non-compliance cases and progress is scored in accordance with the methodological approach of this article. Compliance with the Committee's recommendations may result from different domestic factors. However, such circumstances are part of the domestic socio-political processes the influence of which on the state's decision to comply is subject to separate evaluation.