Are climate activists protected by the Aarhus Convention? A note on Article 3(8) Aarhus Convention and the new Rapid Response Mechanism for environmental defenders

• Published date: 01 April 2023
• Author: Teresa Weber
• Date: 01 April 2023
• DOI: http://doi.org/10.1111/reel.12465

ORIGINAL ARTICLE

Are climate activists protected by the Aarhus Convention? A

note on Article 3(8) Aarhus Convention and the new Rapid

Response Mechanism for environmental defenders

Teresa Weber

Institut für Politik und Öffentliches Recht,

Ludwig-Maximilians-Universitat Munchen,

Munchen, Germany

Correspondence

Teresa Weber, Ludwig-Maximilians-

Universitat Munchen, Institut für Politik und

Öffentliches Recht, Ludwigstraße

28, Munchen 80539, Germany.

Email: teresa.weber89@gmail.com

Abstract

The parties to the Aarhus Convention recently established a new Rapid Response

Mechanism for environmental defenders. This article analyses this mechanism and its

guarantees for environmental defenders, with a specific focus on the protection of

diverse forms of climate activism. The Convention's Compliance Committee has

taken a broad approach towards the definition of ‘environmental defenders’pro-

tected by Article 3(8) of the Convention. This definition includes persons who engage

in demonstrations or rallies connected to environmental issues, even if there is no

immediate link to the rights provided by the Aarhus Convention. In some cases, direct

actions and acts of civil disobedience may fall under Article 3(8) of the Convention.

Where environmental defenders suffer harmful acts such as penalization, harassment

or persecution either by State authorities or private parties, the State concerned

must produce evidence to show that these harmful acts were not a response to the

civic engagement of the environmental defenders concerned. If environmental

defenders are victims of harmful acts in the sense of Article 3(8) of the Aarhus Con-

vention, they may address the Special Rapporteur who can swiftly issue protection

measures. This could be especially relevant for detained persons, persons under

police supervision or activists who undergo systematic harassment by the police or

private security forces. In these cases, the Special Rapporteur may intervene and use

their unique position on the international plane to ensure that environmental

defenders do not suffer due to their engagement for the environment.

1|INTRODUCTION

Although the urgency of the climate crisis is evident, States are still

lagging behind when it comes to effectively tackling the issue. Courts

increasingly declare State climate policies inadequate,

1

but

enforcement of these decisions remains problematic.

2

Climate pro-

tests and other public events organized by civil society are vital tools

1

From the vast literature on this topic see for instance M Wewerinke-Singh and A McCoach,

‘The State of the Netherlands v Urgenda Foundation: Distilling best practice and lessons

learnt for future rights-based climate litigation’(2021) 30 Review of European, Comparative

and International Environmental Law 275; J Setzer and D Winter de Carvalho, ‘Climate

Litigation to Protect the Brazilian Amazon: Establishing a Constitutional Right to a Stable

Climate’(2021) 30 Review of European, Comparative and International Environmental Law

197; L Wegener, ‘Can the Paris Agreement Help Climate Change Litigation and Vice Versa?’

(2020) 9 Transnational Environmental Law 17; F Sindico and MM Mbengue (eds),

Comparative Climate Change Litigation: Beyond the Usual Suspects (Springer 2021).

2

See for instance with regard to the Urgenda Judgement: D Baazil, ‘After Climate Court

Victories Comes the Problem of Enforcement’(Bloomberg, 18 August 2021) <https://www.

bloomberg.com/news/articles/2021-08-18/climate-litigation-victories-face-enforcement-

problems>.

Received: 21 March 2022 Accepted: 9 September 2022

DOI: 10.1111/reel.12465

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License, which permits use, distribution and reproduction in any

medium, provided the original work is properly cited and is not used for commercial purposes.

© 2022 The Author. Review of European, Comparative & International Environmental Law published by Wiley Periodicals LLC.

RECIEL. 2023;32:67–76. wileyonlinelibrary.com/journal/reel 67