Download This PaperNon-Judicial, Advisory, Yet Impactful? The Aarhus Convention Compliance Committee as a Gateway to Environmental Justice (Preprint)
Transnational Environmental Law, Cambridge University Press, Forthcoming
37 Pages Posted: 28 May 2020 Last revised: 23 Jun 2021
Date Written: April 30, 2020
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 convention, access to justice, access to environmental justice, compliance committees, soft law, environmental litigation, regulatory impact, effectiveness of law, impact assessment
JEL Classification: K33, K32
Suggested Citation: Suggested Citation