The Aarhus Convention Test: Environmentalists and Freedom of Information in Post-Soviet States

By
F. Joseph Dresen

"For the post-Soviet states, becoming party to the Aarhus Convention [on access to environmental information] is an indication of good will to change," said Tatiana R. Zaharchenko, Visiting Scholar, Environmental Law Institute, Washington, D.C., and Title VIII-Supported Research Scholar, Kennan Institute, at a 19 April 2004 lecture at the Kennan Institute. "However, it is the specific measures on implementation, both institutional and legal, that will build a solid base for these countries to become more open and transparent societies."

The issue of state transparency on the environment is of special importance to the successor states to the Soviet Union, according to Zaharchenko: "It is important to note that the tendencies for openness and transparency started in the Soviet Union before it fell apart." Environmental activism—especially following the Chernobyl disaster in 1986—played an important role in promoting legal reform and the development of civil society in the late Soviet period. Pressure from citizens and non-governmental organizations led leaders of the Soviet Union and, later, its successor states to adopt liberal legislation on environmental protection and access to environmental information. For example, stated Zaharchenko, in 1990 Ukraine led the way by requiring its State Committee for Nature Protection to collect all environmental information from environmental agencies and then disseminate it to the public through mass media, although it was not established whether the public had the right to request this information.

With the collapse of the Soviet Union, many of the newly independent states passed a series of laws giving their citizens the right to live in a safe, healthy environment and to obtain information about the environmental situation in their countries. As these states went on to pass new laws on state secrecy that were in the Soviet tradition, exceptions were written into the legislation for preserving access to environmental information.

In the early 1990s environmental organizations throughout the newly independent states began to push for environmental rights, including access to environmental information. These groups also produced manuals and guides for ordinary citizens to request information or get involved in government decision-making. According to Zaharchenko, public interest legal groups such as Ecojuris in Russia and Ecopravo in Ukraine—and later, Ecolex in Azerbaijan and Green Salvation in Kazakhstan—tried to use the court system within their respective countries to obtain environmental information. While these groups achieved some victories, Zaharchenko reported, the overall success rate of these organizations in getting requested environmental information was low.

A more promising avenue for securing access to environmental information would arrive in the form of an international agreement. In 1991 a conference of European environmental ministers sparked a series of negotiations on public participation in environmental policies. This process led to a major conference in Aarhus, Denmark in 1998 to draft a common framework for environmental rights for citizens. The Aarhus Convention was drafted with the participation of fifty-two countries and over seventy non-governmental organizations.

Under the Aarhus Convention, parties agree to provide certain rights in three main areas: access to environmental information, public participation in environment-related decision-making, and access to justice in environmental matters. Zaharchenko contended that many of the post-Soviet states participated in and eventually signed this convention to symbolize a break with their Soviet past and to forge a new identity that would be welcomed by the West. Eleven of the original seventeen signatories required to bring the convention into force were successor states to the Soviet Union. All post-Soviet states except for Russia and Uzbekistan are now parties to the Aarhus Convention, which came into force in 2001.

Zaharchenko emphasized that under the Aarhus Convention, states now had the obligation to provide environmental information their citizens previously had the "right" to request: "It introduced procedural requirements and mechanisms that were missing beforehand." Zaharchenko went on to cite several examples in Kazakhstan and Ukraine where the Convention was successfully invoked in court cases.

In the West, access to information is rooted in traditions of democratic governance and respect for human rights and liberties. For the post-Soviet states, Zaharchenko said, the Aarhus Convention "represents a turning point from deep traditions of communist governance as well as attitudes and mentalities formed over seventy years of Soviet history."

Zaharchenko believes that signatories from the region view the Aarhus Convention as a kind of "entry ticket" to the club of civilized, democratic societies. Although many of these states are not yet politically open, often it is their environmental ministries that are the most open and democratic arm of the government. Zaharchenko hopes that "the potential linkage between pressure from environmental movements and the Aarhus Convention-inspired reform of government processes and procedures makes a real transformation of the post-Soviet states into more transparent and accountable societies possible."

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