The Aarhus convention and the politics of process: The political economy of procedural environmental rights

AuthorSusan Rose-Ackerman, Achim A. Halpaap
DOIhttps://doi.org/10.1016/S0193-5895(02)20003-2
Pages27-64
Publication Date15 Aug 2002
THE AARHUS CONVENTION
AND THE POLITICS OF PROCESS:
THE POLITICAL ECONOMY
OF PROCEDURAL
ENVIRONMENTAL RIGHTS
Susan Rose-Ackerman and Achim A. Halpaap
ABSTRACT
In 1998, UNECE Member States completed negotiation of the Aarhus
Convention to enhance public participation in environmental decision-
making. Three years later, only two western democracies have ratified the
agreement. This paper suggests why parliamentary democracies in Western
Europe have been slow to ratify the Convention. We argue that their polit-
ical structure discourages strong public participation in bureaucratic
policy making, in contrast to separation of powers regimes, such as the
United States. To illustrate our point, we discuss examples from the U.S.,
selected European countries, and the European Community, which has
separation-of-powers features similar to the U.S.
An Introduction to the Law and Economics of Environmental Policy: Issues in Institutional
Design, Volume 20, pages 27-64.
Copyright © 2002 by Elsevier Science Ltd.
All rights of reproduction in any form reserved.
ISBN: 0-7623-0888-5
27
28 SUSAN ROSE-ACKERMAN AND ACHIM A. HALPAAP
INTRODUCTION
On 25 June 1998, thirty-one out of fifty-five Member States of the United
Nations Economic Commission for Europe (UNECE) signed the Aarhus
Convention, an international agreement designed to strengthen democratic
environmental governance, l Unlike other international environmental agree-
ments, the Convention does not address substantive environmental issues,
such as ozone depletion or climate change. Instead, it establishes procedural
obligations for policy making, implementation, and enforcement with the aim
of enhancing public participation.
The Convention is based on the premise that "every person has the right to
live in an environment adequate to his or her health and well being". 2 To achieve
this goal, the Convention grants citizens the fight to obtain environmental
information, to participate in environmental decision-making, and to appeal to
courts or non-judicial bodies. These three pillars of the Convention -
collectively known as procedural environmental rights - are interdependent. 3
They assume that meaningful participation in policy making depends on access
to environmental information and that access to justice guarantees individuals
and organizations that their participation and information rights can be
exercised. Although regional in scope, it may serve as a model for strength-
ening procedural environmental rights in all United Nations member states. 4
The number of signatory nations has now grown to forty, but only
seventeen have ratified the Convention. 5 Among the ratifying countries,
only two are western European countries with a long-standing democratic
tradition, while the great majority are post-Communist countries without either
a strong democratic or an administrative law tradition. The goal of this paper
is to analyze and explain the first half of this seeming anomaly. Why have
France, Germany and the United Kingdom not yet ratified a convention that
seems to represent widely-held democratic values? Are there explanations for
the ratification delay that go beyond the complexity of fitting the Convention's
provisions into existing legal structures? We argue that the parliamentary
structure of the West European democracies may well have played a role in
discouraging quick ratification because parliamentary regimes may see little
benefit in enhanced public participation in bureaucratic processes.
Before moving to the political--economic analysis, one needs to understand
the strengths and weaknesses of the Convention itself. Part I argues that the
Convention, although it would require increased participation rights in most
signatory countries, is a moderate document designed to accomplish marginal
changes. Nevertheless, many signatories have not been in a hurry to ratify
the Convention. To explain this foot dragging, Part II develops a positive
The Aarhus Convention and the Politics of Process
29
political--economic analysis of a legislature's motivations to create procedural
environmental rights. We build on existing work to show that parliamentary
systems have little incentive to establish such rights. Part HI follows up the
conceptual arguments with case study material that shows how procedural
environmental rights differ in practice under different political systems. 6
The cases are broadly consistent with our conceptual scheme, but they also
reveal some interesting nuances. Part IV concludes with a discussion of the
relationship between the Aarhus Convention and the European Union (EU).
This linkage is of interest as all EU Member States have signed the Convention
and the European Community itself is a signatory. EC ratification requires both
changes in EC legislation that affect member states as well as modifications
in the practices of EC institutions. 7 We suggest that the separation of powers
characteristic of EC institutions may work to spur EC ratification and, in
turn, may raise the salience of the Convention in member states with less
accommodating systems of public law.
PART I. THE AARHUS CONVENTION
The Aarhus Convention is motivated by the claim that environmental
protection policy requires participation from ordinary citizens as well as
from scientists and other experts. Policy makers face two ways: toward public
accountability and toward technical competence. The public may be uninformed
about scientific and economic factors, but the technocrats may be uninformed
or uninterested in the opinions of ordinary citizens.
Some political systems seek to separate environmental policy making
from implementation. The ideal in such systems is for politically accountable
politicians to make policy and then delegate implementation to the professional
bureaucracy. The bureaucracy ought to consult with technical experts before
implementing a statute, but, under this view, officials need not elicit the
opinions of organized pressure groups or ordinary citizens. These actors should
exercise their influence at the legislative stage through party representatives and
legislative hearings. If ordinary citizens do participate at the implementation
stage, it is only to complain about violations of their individual rights.
This sharp division of labor sounds sensible at first, but it ignores the
realities of democratic life. The legislature is uninformed about many technical
aspects of environmental issues, and in a complex world where time is scarce,
this is as it should be. The result is laws that delegate many of the details of
implementation to the bureaucracy. These "details" are not mere technical gaps
but often determine the policy impact of environmental laws. This basic feature
of environmental implementation raises the issue of public participation when

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