10 November 2021
The 7th Aarhus Convention Meeting of the Parties (MOP) took place from 18-21 October 2021 in Geneva (including online participation). The MOP was dominated by controversy surrounding the EU’s access to justice regime and the persecution of environmental activists in Belarus. These problematic compliance issues overshadowed more positive developments, such as the establishment of a new Rapid Response Mechanism for environmental human rights defenders under the Convention as well as the accession of Guinea Bissau as the first African Party to the Aarhus Convention.
The MOP could have been a moment for the EU to celebrate and be celebrated. After all, it had amended its legal framework (the Aarhus Regulation) to extend the possibilities for internal review and thus access to justice in environmental matters. It thereby implemented the recommendations of the Aarhus Convention Compliance Committee in relation to case ACCC/C/2008/32. While some caveats remain, the EU took a major step towards compliance with the Convention.
However, at the same time the EU failed to address the ACCC’s findings on case ACCC/C/2015/128 as regards state aid decisions. The reasons for this are merely political; the European Parliament had agreed to a requisite amendment of the Aarhus Regulation but Member States (acting through the Council) could not agree to support it.
To make matters worse, the EU travelled to Geneva with the position to postpone the findings on ACCC/C/2015/128 to the next MOP, rather than endorsing them. This had only been done once before, also by the EU, at the last MOP in relation to the ACCC/C/2008/32 findings. The EU eventually got its way, thus further undermining the practice of consensus on which the success of this mechanism is based. However, the severe criticism from other Parties, especially Norway and Switzerland, and the NGOs present sent a strong signal that this should in no way set a precedent for the future.
For the first time in the history of the Convention, the ACCC suspended the rights and privileges of a Party under the Convention – Belarus – because of the grave nature of the actions taken by the country.
What had happened? In July, the NGO Ecohome, active communicant before the ACCC and recognized environmental NGO in Belarus, received a request for documents from the Belarussian Ministry of Justice requesting proof of a legal address and a list of members. Ecohome provided more than 1000 pages of information in return but the Ministry considered the information to be insufficient. The Ministry first issued a caution and then applied to the Supreme Court for liquidation of Ecohome, which the court confirmed on 31 August. The ACCC considered this a flagrant violation of the Convention’s requirement that persons exercising their rights under the Convention are not penalised, persecuted or harassed for their involvement (Art. 3(7) Aarhus Convention.)
The Draft Decision for the MOP therefore proposed to suspend Belarus’ rights and privileges under the Convention (such as chairing meetings etc) effective 1 February 2022, unless Ecohome was reinstated. Three days of protracted negotiations with a myriad of compromise proposals did nothing to obtain an agreement from Belarus. The MOP therefore voted for the first time in its history on a substantive matter – Belarus was outvoted with 37 to 4 votes, with one abstention. While a good outcome on substance, the fact that Belarus left the other Parties no choice but to abandon consensus for the first time in the history of the Convention is certainly regrettable.
In face of these more concerning developments, it is easy to forget the good news coming out of the MOP, even though there were quite a few. For one, all other Decisions on compliance were endorsed, including by the Party found in non-compliance. A particular problematic case continues to be Bulgaria, which continues to resist certain changes to its legal system. A lot of work is also needed in the UK, which has now been asked to prepare a time schedule for implementation to remedy its non-compliance in relation to the costs of judicial procedures. However, contrary to the EU and Belarus, both Bulgaria and the UK, as well as all other Parties found in non-compliance, have acknowledged their non-compliance.
Moreover, the Meeting of the Parties established by consensus, despite some resistance from Belarus, a Rapid Response Mechanism intended to give persons who are harassed, penalised or persecuted for exercising their rights under the Convention a quick and easily accessible complaint procedure. The work will be done by a Special Rapporteur, whose initial funding will be provided by Austria and Ireland. At an extraordinary MOP next year, the Parties will appoint the first Rapporteur under the Convention. This is certainly a big success to counter persecution of environmental human rights defenders in Europe and beyond.
The MOP further approved two new members of the Aarhus Convention Compliance Committee. The Committee loses in Prof. Jonas Ebbeson (Sweden) and Mr. Alexander Kodjabashev (Bulgaria) two particularly long-standing members, which have served as the Chair and Vice-Chair of the Committee. However, the Committee also gains Prof. Thomas Schomerus (Germany) and former Adocate General Ms. Eleanor Sharpston, QC (Luxembourg) as two excellent new members.
Last but not least, the MOP approved the request for accession of Guinea Bisseau to the Aarhus Convention. Guinea Bisseau will thereby become the first Party to the Aarhus Convention from outside of the UNECE region. The Aarhus Convention is open to accession to all United Nations members. While the Latin American countries have chosen another route by establishing the Escazu Agreement, perhaps other Africa, Asian or Oceanian countries may consider joining the Convention based on the precedent set by Guinea Bissau.