The Ospar Convention, the Aarhus Convention and EC Law: Normative and Institutional Fragmentation on the Right to Access to Environmental Information
MULTI-SOURCED EQUIVALENT NORMS, T. Broude and Y. Shany, eds., Oxford, Hart Publishing, 2010
28 Pages Posted: 16 Dec 2009 Last revised: 6 Dec 2010
Date Written: December 4, 2010
Since the early 1990s the access to information has quickly developed into an important tool for increasing transparency in the decision-making process of public authorities regarding projects that may have a negative impact on the environment. Indeed, the fast development of environmental law - at the international, European and national levels1 - as well as the increasing awareness of citizens and nongovernmental organizations (NGOs) of their potential to prevent or at least reduce environmental pollution has been one of the most important reasons for the wide recognition received by the right to access to information. In fact, the right of access to information has been enshrined in numerous international and European instruments, so that it can serve as a prime example for analysing this book's main topic of international multi-sourced equivalent norms (MSEN), which are defined ‘as two or more norms which are (1) binding upon the same international legal subjects; (2) similar or identical in their normative content (in the words of the ILC, ‘point in the same direction’); and (3) have been established through different international instruments or ‘legislative’ procedures or are applicable to different substantive areas of the law’.
This chapter will discuss the proceeding under the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR), which formed part of the wider MOX plant dispute, as a case-study for identifying the existence of MSENs concerning the right to access to environmental information. It will subsequently, analyse the extent to which MSENs create divergent rights and obligations for states that could lead to divergent or conflicting outcomes and ultimately to fragmentation.
Accordingly, Section II will identify the MSENs involved in this case-study and discuss the substantive aspects of the right to access to environmental information. Based on that, section III will examine how the OSPAR arbitral tribunal dealt with the MSEN issue. A few concluding remarks will wrap up this chapter.
Keywords: OSPAR, Aarhus, environmental law, access to information, fragmentation, comity, multi-sourced equivalent norms
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