Ten Years of the Aarhus Convention: How Procedural Democracy Is Paving the Way for Substantive Change in National and International Environmental Law

Abstract

Arab Spring. Occupy Wall Street. Protests against austerity measures in Europe. Around the world, people are dissatisfied with traditional top-down style governance. The call for change sounds especially loud and clear in the environmental arena where legislative and law enforcement status quo imperils the future of our natural surroundings. This article adds new value to international environmental and democratic discourse by being the first major work to examine the first ten years of case law under the UNECE Aarhus Convention, a groundbreaking multilateral environmental agreement that promotes public participation in government environmental decision-making and enforcement through procedural requirements. The objective of the article is to verify whether such requirements are mere “toothless” procedural devices or if they have the potential for bringing about positive substantive change as well. They do. Via cases concerning the power plant construction inside a national park in Albania to gold mining in Romania, the article analyzes how even newly democratized nations have expressed their willingness to improve national environmental legislation and law enforcement by taking into account the results of public participation. Such bottoms-up style governance also has great potential for change at the international level. What may be seen as a dichotomy between procedure and substance is thus more correctly seen as an effective interface between the two. This first-of-its kind article concludes by proposing how the Convention has room for both thematic and geographical growth as well as how its legal principles can be beneficially emulated in other legal instruments.