Transparency in Global Environmental Governance: Critical Perspectives

4 So Far but No Further? Transparency and Disclosure in the Aarhus Convention

4 So Far but No Further? Transparency and Disclosure in the Aarhus Convention Michael Mason Insofar as the transparency turn in global environmental politics includes multilateral agreements, one treaty stands out as seminal—the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (henceforth Aarhus Convention 1998).1 The Aarhus Convention, negotiated under the auspices of the United Nations Economic Commission for Europe (UNECE), contains a striking invocation of human environmental rights. Its article 1 affirms the “right of every person of present and future generations to live in an environment adequate to his or her health or well-being” as justification for its recognition, in environmental matters, of rights to information access, public participation, and access to justice. These Aarhus procedural rights bring corresponding duties to states. Thus, for citizen access to information, there are information disclosure obligations for public authorities. Similarly, for citizen rights of access to decision making and justice in environmental matters, the convention sets out associated duties. The effective realization of these procedural rights becomes a condition for realizing the substantive right to an adequate level of environmental quality. This claim about the necessary conjoining of procedural and substantive environmental rights is also found in the preamble to the Protocol on Pollutant Release and Transfer Registers (Kiev Protocol 2003), adopted at a meeting of the parties to the Aarhus Convention.2 In force since October 2009, the Kiev Protocol is the first legally binding international instrument facilitating access to pollution registers. UNECE has lauded “Aarhus environmental rights” for increasing citizen access to environmental information across Europe and helping to secure more transparent and accountable regulatory processes. As will be shown, the agreement has indeed introduced innovative mechanisms for empowering public participation in national and international decision 84 Michael Mason making and affording legal standing to affected publics and nongovernmental organizations (NGOs). This in part reflects the efforts of environmental NGOs in lobbying UNECE regarding decision-making entitlements for civil society actors—lobbying that found fertile ground in the 1990s in the context of external democracy promotion within Eastern Europe. Transparency, expressed as information disclosure, was seen as a necessary expression of, and condition for, democratic governance. In this chapter, which revises and updates an earlier article on the Aarhus Convention (Mason 2010), I examine the nature and scope of its information disclosure obligations. Combining elements of constructivism and critical political economy, the theoretical concern is with the historical emergence, institutionalization, and effects of the information disclosure norms prescribed by the convention. The close association of Aarhus transparency with democracy promotion suggests confirmation of the first hypothesis set out chapter 1—that the extensive adoption of transparency in global environmental governance is largely driven by democratization and marketization trends, although this finding does not capture the relationship between the two drivers in this case. In the next section, I argue that the marketization driver has been more significant in shaping Aarhus information disclosure , because the UNECE’s promotion of political modernization in Central and Eastern Europe has deferred in practice to market liberal norms of governance dictated by multilateral economic actors. After setting out this historical context for the adoption of the Aarhus Convention, I then survey the institutionalization of its information rights. Drawing on materials from the treaty secretariat and parties to the convention, as well as relevant nonstate actors (notably public communications to the Aarhus Convention compliance committee), I examine the second hypothesis, presented in chapter 1, that the institutionalization of transparency decenters or qualifies state-led regulation and also opens up political space for new actors. For the Aarhus Convention, these tendencies relate, first, to the extent to which state sovereign actors implement and comply with treaty obligations and, second, to the governance scope for civil society actors in realizing and validating information disclosure. An analysis of the implementation record of the parties to the convention reveals a mixed picture of compliance with information disclosure obligations , with civil society actors playing a major role in scrutinizing and challenging states over their implementation practice. Finally, I investigate the normative, procedural, and substantive effects of Aarhus governance by disclosure. The third hypothesis examined in So Far but No Further? 85 this book is that transparency is more likely to be effective under contexts resonant with the goals and decision processes of disclosers and recipients. The Aarhus Convention advances disclosure obligations that are general enough to...