I. Horizontal normativity in International Order and Treaty Interlinkaging: An Overview
.Considering international law and the non-linear phases of its long historical development, there is a compelling theoretical-practical need – but one that is not confessed by the dominant positivist thinking that permeates it: to delve into, and evaluate the normative quality of the horizontality of international order. In other words, to delve into the process of the horizontal normativity of international law in its unceasing pursuit and polycentric flowing construction of the international common interest on which international society is based and evolves. This is a characteristic contemporary neglect that goes hand in hand with the intolerable limitations imposed by the positivist methodology of international law that imbues the religious-like “fundamental belief” (1) of the modern era of “non-thoughtful international lawyers” (2) that international law exists and develops as an analogy of private law, that treaties are concluded as discrete transactions and function like private law contracts (3).
It is against this background that we embark on the development of this article. To a theoretical-practical understanding of the importance of horizontal normativity in international law through the paradigm of the normative function of relational linkages in the application of the principles and procedural rules of the Aarhus Convention in international decision-making processes. From a pragmatic perspective, the foundation of treaty interlinkaging lies in the very nature of treaties as normative patterns that establish relational regimes, based on consensus in the furtherance of their legislative-like purpose that protects and promotes ICI in relation to the horizontally-operating international order.
From a political and legal perspective, and despite the various difficulties and complexities surrounding the handling of the problem of relational interlinkaging of international conventional regimes and processes, constantly associated with the understanding and evaluation of specific implementation frameworks (contexts of application), the promotion of the implementation of the Aarhus Convention regime to other Conventional Environmental regimes or International Organizations dealing with environment by the Parties to the Aarhus Convention should be treated as a legal duty-obligation, not as a mere discretion or possibility.
As to the Non-UNECE States participating in other Conventional Environmental regimes or International Organizations dealing with environment, the Aarhus Convention regime provides a powerful normative framework of internationally recognized best practices for sustainability governance that enables them to participate and contribute more effectively and meaningfully to the international decision-making process, leveraging their influence..
II. Interlinkaging under the Aarhus Convention Regime (Article 3(7) and Almaty Guidelines)
Roots and Relational Elements of interlinkaging
.Serving a relational approach to treaty-interlinkaging, the Aarhus Convention, provides in Article 3(7) the general duty of the Parties to promote the application of its principles in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment.
This relational general duty serves to link the Aarhus Convention principles and procedural rules with other Conventional Environmental regimes, International Organizations and other international Declarative processes, with the aim to democratizing the decision-making process in environmental matters and promoting, in this respect, international common interest (ICI). In other words, the advancement of a participatory sustainability governance process that protects intergenerational equity (the interests of present and future generations as a process), and certainly lays the foundations for awareness of the need for more effective, holistic management of ecosystems and natural wealth.
This general relational duty of treaty-interlinkaging is further specified by the Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums (Almaty Guidelines) adopted by the MOP-2 in 2005 (Decision II/4). (4) The Almaty Guidelines bring into the operation of Article 3(7) the five relational elements of interlinkaging (REI), associated with the horizontality of international order:
- Contextuality of Application
- Field of Application
- Phased-Process Operation
- Participatory Application
- Interlinkaging Directives
- CONTEXTUALITY OF APPLICATION – The Guidelines provide that their general guidance to Parties on promoting the application of the principles of the Convention in international forums in matters relating to the environment, should be carried out in a contextually effective manner (“to the extent appropriate in the light of reasonable considerations such as the institutional integrity and particular characteristics of each international forum concerned, its procedures and decision-making processes, and the nature and availability of its resources”) (5)
- FIELD OF APPLICATION-The Guidelines identify as “International forums” to which international access should be sought:
- “any multilateral international environmental decision-making process” (6) but this implicitly also includes those of a bilateral character. (7)
- “any multilateral international organization when dealing with matters relating to the environment”. (8)
- Importantly, they also encompass multilateral lending institutions such as the European Bank for Reconstruction and Development, specialized agencies and other organizations in the United Nations system, such as the World Bank and the World Trade Organization, and special international organizations formed for specific tasks, such as the reconstruction of infrastructure following a war or natural disaster. (9)
- PHASED-PROCESS OPERATION – The application of these Guidelines “relate to all international stages of any relevant decision-making process” and their aim is to influence in a practical and positive manner “the way in which international access is secured in international forums in which Parties to the Convention participate” (10) The stages and procedures of international access are defined in very general and indicative terms in the Guidelines. However, it can be reasonably inferred that their implementation can be effectively associated with the operation of international creative negotiation (11), a structured, three-phased (pre-negotiation, constitutive negotiation and renegotiation) relational process of multilateral shaping, formulating and renovating instruments of conventional regimes or conferential forums of international common interest (ICI) based on consensus-building in continuous harmonizing interaction with the referential context. In the light of this observation, the stages and procedures of international access set out by the Guidelines refer to:
- All aspects of the negotiating process (Pre-negotiation, Constitutive Negotiation and Renegotiation) of Conventional Environmental Regimes as well as their implementation, including their decisions and actions taken in their framework;
- All aspects of the negotiating process (Pre-negotiation, Constitutive Negotiation and Renegotiation) of other Conventional Regimes as well as their implementation, if their decisions or actions undertaken “relate to the environment or may have a significant effect on the environment”;
- Intergovernmental conferences focusing on the environment or having a strong environmental component, in both aspects of their negotiating process, the preparatory phase and their follow-up processes;
- International environmental and development policy negotiating forums;
- Decision-making negotiating processes of other international organizations “in matters related to the environment”.
These categories are not exclusive and may be clearly and creatively interrelated. Thus, for example, the third category may be the pre-negotiating aspect of the first category preparing its conventional constitution or influencing the environmental development of the second category, while the fourth category may be linked to the fifth category, preparing the relevant decision of a particular international organization.
- PARTICIPATORY APPLICATION – These Guidelines enable the parties to influence the Participatory International Access to the management of relevant substantive issues in these international forums (Rules of Procedure, treatment of substantive issues). Participatory International Access should be structured on the basis of the following considerations:
- Special care that the processes are open, in principle, to the public at large.
- Where members of the public have differentiated capacity, resources, socio-cultural circumstances or economic or political influence, special measures should be taken to ensure a balanced and equitable process.
- The participation of the most directly affected constituencies which might not have the means for participation should be facilitated.
- International access should be provided without discrimination on the basis of citizenship, nationality or domicile.
- International access may be important to be facilitated by capacity-building, especially in developing countries.
- Enhancing international access may imply investment of resources. (12)
- INTERLINKAGING DIRECTIVES – With regard to the three pillars of the Aarhus Conventional regime, the Guidelines provide for the establishment of linkages with international forums through specific interlinkaging directives
Access to Environmental Information
- Each Party should encourage international forums to develop and make available to the public a clear and transparent set of policies and procedures on access to information they hold.
- Environmental information, including that contained in all official documents, should be provided proactively, in a timely manner, in a meaningful, accessible form and, where appropriate, in the international forum’s official languages, so that access to information translates into greater knowledge and understanding.
- The designation of information officers or contact persons to facilitate the flow of information and the use of appropriate technical means to make information accessible to the public free of charge, e.g., using electronic information tools, such as clearing houses and live webcasting of events should be promoted.
- Any member of the public should have access to environmental information developed and held in any international forum upon request, without having to state an interest, as soon as possible, and subject to an appropriate time limit,g., one month. The availability of information free of charge or, at most, at a reasonable charge should be promoted.
- Requests for environmental information should be refused only on the basis of specific grounds for refusal, taking into account the Aarhus Convention’s requirement that the grounds for refusal should be interpreted in a restrictive way, taking into account the public interest in disclosure. A refusal of a request should give reasons for the refusal and provide information on access to any review procedure. (13)
Public Participation in Decision-Making on Environmental Matters
- Efforts should be made to proactively seek the participation of relevant actors, in a transparent, consultative manner, appropriate to the nature of the forum and as broad as possible.
- Participation of the public concerned in the meetings of international forums, including their subsidiary bodies, should be allowed at all relevant stages of the decision-making process, unless there is a reasonable basis to exclude such participation according to transparent and clearly stated standards. Accreditation or selection procedures should be based on clear and objective criteria, and the public should be informed accordingly.
- International processes should benefit from public participation from an early stage, including, at the international level, the negotiation and application of Conventions; the preparation, formulation and implementation of decisions; and substantive preparation of events.
- The participation of the public concerned should include, at meetings in international forums, the entitlement to have access to all documents relevant to the decision-making process produced for the meetings, to circulate written statements and to speak at meetings, without prejudice to the ability of international forums to prioritize their business and apply their rules of procedure.
- Public participation procedures in international forums should include reasonable time frames for the different stages, allowing sufficient time for informing the public and for the public concerned to prepare and participate effectively during the decision-making process. The public should be informed in due time of the opportunities, procedures and criteria for public participation in the decision-making and of the availability of information for the public
- Transparency with respect to the impact of public participation on final decisions should be promoted, and efforts should be made to apply innovative, cost-efficient and practical approaches to maximizing participation. (14)
Access to review procedures
- Each Party should encourage international forums to consider measures to facilitate public access to review procedures relating to the application of the forums’ rules and standards regarding access to information and public participation within the scope of the Guidelines. (15)
Structural Actions and Potential Responses
.Through the decision II/4 adopting the Almaty Guidelines, the Meeting of the Parties established a Task Force to operate in three interrelated directions:
- It entered into consultations regarding the Guidelines with relevant international forums.
- It invited Parties, Signatories, other interested States, NGOs, interested international forums and other relevant actors to submit to the secretariat comments relating to their experience regarding the application of the Guidelines.
- It requested the Working Group of the Parties, based on its consideration of the outcome of the consultations and experiences regarding the application of the Guidelines, to review the Guidelines and make recommendations, as appropriate, for consideration by the Meeting of the Parties.
In this context, it is important to consider the potential key role that the Aarhus Centres can play in supporting the promotion of the application of the Aarhus Principles and Procedures in international decision-making process. In the framework of their activities:
- they may contribute by providing expertise in the development of the negotiating capacity of representatives of States and non-state actors (civil society), for their effective engagement in the promotion of the principles and procedures of the Aarhus Convention in the international decision-making process (multilateral environmental agreements – MEAs, decisions of international institutions) in order to reduce the space of non-transparency and non-participation.
- they may also facilitate this process in an intermediate, bottom-up manner that produces “rippling effects” in the international decision-making process by working systematically and consistently for horizontal, cross-cutting application of the principles and procedural rules of the Aarhus Convention to other Multilateral Environmental Agreements to which their countries are parties, in order to achieve more effective and efficient implementation and compliance and good participatory governance.
III. Aspects of the Practical Implementation of the Aarhus Convention in International Forums: A Major Deficit in Negotiation Process and Negotiating Capacity
The ICAO Case and the CORSIA Rules
.With regard to the adoption of the rules of the Carbon Offset and Reduction System for International Aviation (CORSIA) within ICAO, (16) initiated, discussed and drafted by the Committee on Aviation Environmental Protection (CAEP), a technical standing committee of limited representation assisting the ICAO Council, and its meetings held in closed sessions, the 24th Meeting of the Working Group of the Parties highlighted the major gaps and inadequacies of this institutional process: it underlined that the negotiation process for the development of the CORSIA rules was not transparent and its constituent product was not produced from good multilateral governance
Ιt pointed out that the continuation of the efforts by the Parties to the Aarhus Convention to promote the Aarhus principles was, in fact, faced up to a “a major problem”: “negotiators had little awareness of the Aarhus principles and of the obligations arising therefrom.” To manage this problem the Meeting supported the development of future work to strengthen capacities in that direction, “with the provision of support material to facilitate the application of the principles of the Convention in international forums through guidance documents explaining the obligations related to article 3 (7), adapted to each specific forum and with a guide on the organization of international events to help host countries apply good practice. (17)
In this vein, the 24th Meeting of the Working Group of the Parties adopted a concrete framework of action recommended by the International Coalition for Sustainable Aviation (ICSA), consisting of five elements:
- Broaden observer diversity: Countries which are members of the ICAO Council should propose and support that interested observer organisations be allowed to apply for ICAO observer status instead of limiting participation by invitation only. The number of observers should not be limited
- Hold meetings open to the public: Countries which are part of the CAEP should request that CAEP meetings follow rule 17 of the general rules of procedure for standing committees and be held open by default
- Provide access to important documents: CAEP should follow rule 41 of the general Rules of Procedure for Standing Committees which allows committee documents, including Standards and Recommended Practices (SARPs), to be provided to the public
- Improve public engagement in decision making: All countries should call on the ICAO Council and CAEP to invite public input to ICAO decision making processes and make input received from observer organisations publicly available.
- Encourage democracy: ICAO members should be allowed to share the texts of Committee decisions, together with Committee working papers and other papers with their democratic institutions pursuant to rule 42 of the general Rules of Procedure for Standing Committees. (18)
Adopting this framework of action, the 24th Meeting of the Working Group perceptively underlined that those Parties to the Convention who were members of the CAEP and the ICAO Council and were proactively applying the principles of the Aarhus Convention in their national territory, providing all Parties with examples of good practice, should extend those national initiatives “to the international negotiations within ICAO, where access to information and participation remained restricted.” (19).
Protecting the Civic Space in the Context of UN Climate Agreements
.In view of the coming UN Climate Change Conference (30 November to 12 December 2023 in Dubai, United Arab Emirates (UAE)), which will comprise the 28th Meeting of the Conference of the Parties (COP 28) and the Fifth meeting of the COP serving as the Meeting of the Parties to the Paris Agreement (CMA 5), a group of NGOs ( Amnesty International, the Center for International Environmental Law (CIEL), Climate Action Network-Europe (CAN-E), Earthjustice, the European Environmental Bureau (EEB), Human Rights Watch (HRW) and Association Justice & Environment) has taken the initiative to send a joint letter to the governments of the States Parties expressing their concerns related to civic space in the context of UN climate change negotiations, and specifically on two issues:
- A Negotiation-Conducting Issue -Restrictions on the rights to freedom of expression and peaceful assembly, already experienced at UNFCCC COPs in the past and the possible threats to these rights in the current international climate change negotiation, especially in view of the very poor record the Government of the UAE, presiding over the COP28, has in protecting and operating civic space.
- A Thematic Management Issue –The risks associated with the operationalisation of carbon trading mechanisms under Article 6 (4) of the Paris Agreement, (20) expressing:
–Alarm that the operationalisation of carbon trading mechanisms may repeat the mistakes under the Kyoto Protocol, where the Clean Development Mechanism supported the implementation of multiple projects characterized by failure to conduct adequate consultations with impacted communities, failure to secure Prior and Informed Consent of Indigenous Peoples, Forced Relocations and assassinations of environmental human rights defenders.
– Deep concern that the Recommendation to incorporate activities involving removals in the Article 6(4) mechanism adopted by the Supervisory Body (21) in its effort to operationalize this mechanism, did not adequately protected local communities and indigenous people from violations of their human rights
It was strongly emphasized that, although rejected at COP27, decisions on this matter require sufficient guidance to the work of the Supervisory Body, in order to avoid the risk of such decisions and adequately safeguard human rights in the context of activities accredited by the Sustainable Development Mechanism.
In light of these threats, these International NGOs call upon the Governments of the Parties to the Aarhus Convention “to take active steps to effectively promote and protect human rights in these climate negotiations”, applying their legal obligations under Article 3(7) and Article 3(8) of the Aarhus Convention. They should, inter alia:
- reaffirm that no carbon trading mechanism will be operationalized under the Paris Agreement at the expense of human rights and climate ambition and that adequate safeguards and modalities as a well as an independent grievance mechanism are an absolute prerequisite for such mechanism to begin activity.
- Opportunities for Input: whether in writing though submissions or orally during relevant negotiations, to reiterate that the effective protection of the rights under the Aarhus Convention is a prerequisite for any operationalisation of carbon trading mechanisms under Article 6 (4) of the Paris Agreement
- Report to the Aarhus Secretariat the actions and initiatives taken by “your Government” to uphold this obligation in the context of the UN climate talks
Overall, they stress that States are in breach their legal obligations under the Aarhus Convention when they fail to take proactive steps to promote the principles of the Aarhus Convention in the UN climate change process and to avert threats to the exercise of the rights of human rights defenders and civil society organizations..
IV. Creative Negotiation Process
.As one can easily and plausibly infer from the above analysis, what fuels much of the problems surrounding the proper application of the principles and procedural rules of the Aarhus Convention in the decision-making process of the various international fora is the clear deficit in negotiation approach and management. The negotiating capacity deficit of many delegates as to how they can relate and manage such a process is in fact linked to an applied understanding of three interrelated aspects of the creative negotiation process:
- the thematic aspect of interlinkaging
- the participation at the conferential negotiation forum aspect. (22)
- the cross-cutting aspect of interlinkaging
- Thematic Aspect of Interlinkaging
This aspect focuses on the knowledge, management, and implementation of principles, rights, and duties-obligations set out in the Aarhus Convention at international forums. It embraces, in particular, the normative indicators of thematic governance that provide a platform for negotiating the governance nterlinkage between the Aarhus Convention and the decision-making processes of relevant international organizations or treaty/contractual regimes in an effective and context-appropriate manner to promote IPR.
The 24th Meeting of the Working Group emphasized continuous capacity building for negotiators through support materials, facilitating the integration of the principles and procedures of the Aarhus Convention into negotiations in international forums, guidance documents, appropriately tailored to the specific context each particular international forum, and informal meetings, organized by the UNECE-Aarhus Convention Secretariat to enhance the capacity building of government representatives of Parties participating in international forums.
The organization of Side-events in negotiation forums (23) provides an open dialectical platform for basic knowledge, learning opportunities and promotion of the Aarhus Convention, organized by Parties to the Convention, the UNECE-Aarhus Convention Secretariat, and NGOs.
- Participatory Aspect of Interlinkaging
This aspect aims to enhance the participation and contribution of NGOs in promoting Aarhus Convention principles in international negotiating forums and to open up “spaces of non-transparency” in the negotiating processes of certain international fora
In view of the widely varying participation of NGOs in international negotiating processes due to the limitations in accreditation and financial resources available to support consistent representation and expertise, the creation of umbrella organizations, like the European ECO Forum, helps coordinate NGO inputs, ensuring collective accreditation, representation consistency, knowledge exchange, and legitimacy for policy development.
At the same time, the Parties to the Aarhus Convention are invited, applying the Almaty Guidelines and the principles of the Aarhus Convention regime, to ensure that civil society is not excluded from participation in the meetings of international forums and that its participation is balanced and equitable, and to support, through their interventions and submissions, the principles of the Aarhus Convention in the development of the various negotiating drafts.
- Cross-Cutting Aspect of Interlinking:
This aspect involves the cross-cutting (horizontal) operation of linking the Aarhus Convention regime with the implementation of its three pillars of participatory environmental governance (right to information, right to participation, access to justice) by each Party in the implementation other conventional environmental regimes to which is also a Party. The degree of inter-conventional regimes operative integration varies but is growing and becoming more effective. The Aarhus Convention has had a ranging impact (from moderate to high) on improving participatory environmental governance in various conventional environmental regimes (24) and has served as a key reference framework for the Escazú Agreement.
In summary, the creative negotiation process outlined in the text addresses deficits in negotiating capacity through thematic interlinking, participatory engagement of NGOs, and cross-cutting integration of Aarhus Convention principles into other international agreements. The goal is to promote normative interconnections, transparency, and effective implementation of participatory environmental governance across various international forums.
(1) See characteristically, D’ASPREMONT, J., International Law as a Belief System, Cambridge University Press, 2018, passim.
(2) As was insightfully observed by Phillip Allott in ESIL Lecture at the Lauterpacht Centre, Cambridge (8 March 2013) with devastating simplicity “There are two sorts on international lawyers. There are thoughtful international lawyers and the rest!”.
(3) RAFTOPOULOS, E., The Inadequacy of the Contractual Analogy in the Law of Treaties, Publications of the Hellenic Institute of International & Foreign Law, Vol. 14, Alkyon Publishers, Athens, 1990, passim.
(4) ECE/MP.PP/2005/2/Add.5 (decision II/4), annex, Almaty Guidelines on Promoting the Application of the Principles of the Aarhus Convention in International Forums.
(5) Ibid., para 1.
(6) Ibid., para 9.
(7) UNECE, The Aarhus Convention: An Implementation Guide, 2014 (2nd ed), 69.
(8) ECE: Almaty Guidelines, para. 9.
(9) UNECE, The Aarhus Convention: An Implementation Guide, 2014 (2nd ed), 69.
(10) Ibid., paras. 5 and 6.
(11) For the concept of international creative negotiation, see RAFTOPOULOS, E., International Negotiation – A Process of Relational Governance for International Common Interest, 2019, Cambridge Univeresity Press.
(12) See ECE: Almaty Guidelines, paras. 13-18
(13) See ECE: Almaty Guidelines, paras. 19-27
(14) See ECE: Almaty Guidelines, paras. 28-39.
(15) See UNECE: Almaty Guidelines, para. 40.
(16) Adopted by ICAO in 2016, CORSIA, a global offsetting scheme with the objective to achieving “carbon-neutral growth” after 2020, was an important measure in many respects: the only mechanism that addresses the climate impact of international aviation; the only major carbon offset scheme in the post-Kyoto period 2021-2035; its effectiveness is related to the success of the Paris Agreement and how the aviation measure interacts with national climate targets.
(17) UNECE – Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Report of the Working Group of the Parties on its twenty-fourth meeting (Geneva, 1–3 July and 29 and 30 October 2020), ECE/MP.PP/WG.1/2020/2See ECE: Report of the Working Group of the Parties on its twenty-fourth meeting, para. 67.
(18) ICSA (International Coalition for Sustainable Aviation), Information Note for the twenty-fourth Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, 2017. Available at: https://carbonmarketwatch.org/wp-content/uploads/2019/08/ICSA-note-on-ICAO-for-Aarhus-Parties.pdf
(19) ECE – Meeting of the Parties to the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, Report of the Working Group of the Parties on its twenty-fourth meeting (Geneva, 1–3 July and 29 and 30 October 2020), ECE/MP.PP/WG.1/2020/2, paras. 64, 65.
(20) Article 6 (4). A mechanism to contribute to the mitigation of greenhouse gas emissions and support sustainable development is hereby established under the authority and guidance of the Conference of the Parties serving as the meeting of the Parties to this Agreement for use by Parties on a voluntary basis. It shall be supervised by a body designated by the Conference of the Parties serving as the meeting of the Parties to this Agreement, and shall aim: (a) To promote the mitigation of greenhouse gas emissions while fostering sustainable development; (b) To incentivize and facilitate participation in the mitigation of greenhouse gas emissions by public and private entities authorized by a Party; (c) To contribute to the reduction of emission levels in the host Party, which will benefit from mitigation activities resulting in emission reductions that can also be used by another Party to fulfil its nationally determined contribution; and (d) To deliver an overall mitigation in global emissions.
(21) The Conference of the Parties serving as the meeting of the Parties to the Paris Agreement (CMA), at their third session in Glasgow, adopted Decision 3/CMA.3 whereby it designated a Supervisory Body to supervise the mechanism under its authority and guidance. The Supervisory Body is fully accountable to the CMA and is composed of 12 members from Parties to the Paris Agreement, ensuring broad and equitable geographical representation.
(22) See generally, Raftopoulos, E., International Negotiation, supra n., pp. 11, 180.
(23) For the importance of the international practice of “Side-Events” as a new dimension to the conferential negotiating forum for an expert information and discussion on a specific thematic issue related to the negotiating process, see Raftopoulos, E., International Negotiation, supra n. 11, pp. 215-216.
(24) E.g. Convention on Long-Range Transboundary Air Pollution (Geneva, 1979), Convention on Environmental Impact Assessment in a Transboundary Context (Espoo, 1991) and its Protocol on Strategic Environmental Impact Assessment (Kiev, 2003), CE Landscape Convention (Florence, 2000), UN Framework Convention on Climate Change (1992), Convention on Biological Diversity (1992), Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean (Barcelona, 1976), Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes (London 1999), Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal (1989)..
About the author
Professor Emeritus of International Law, Panteion University, Athens, Greece, Fellow, C-EENRG, University of Cambridge, United Kingdom