Exploring Access to Justice in Environmental Matters through the Lens of Rights of Nature and Animal Welfare

Abstract

Keywords

Aarhus Convention, access to justice, Rights of Nature, environmental NGOs, animal welfare

Suggested Citation Style:

Ofak, Lana (2026). Exploring Access to Justice in Environmental Matters through the Lens of Rights of Nature and Animal Welfare. Journal of Animal Law, Ethics and One Health (LEOH), Special Issue on Rethinking Ecosphere and Biojustice: Legal Personality and Legal Rights Beyond the Human, 63-71. DOI: 10.58590/leoh.2026.009

* Full Professor, University of Zagreb Faculty of Law (Croatia), lana.ofak@pravo.unizg.hr; https://orcid.org/0000-0001-7585-6370

Content

• I. Introduction
• II. Selected ACCC Case Law on Protecting Wildlife Through Access to Justice
  • 1. Preventing Excessive Barriers to Access to Justice: ACCC/C/2006/18 (Denmark)
  • 2. Standing for Environmental NGOs: ACCC/C/2008/31 (Germany)
  • 3. Barriers to Standing of Individuals: ACCC/C/2015/135 (France)
  • 4. Financial Barriers to Access to Justice: ACCC/C/2015/130 (Italy)
• III. Conclusion

I. Introduction

While many regulations at international, European, and national levels allow citizens and their organisations to participate in environmental decision-making processes that impact their health and well-being, these laws are primarily anthropocentric, focusing mainly on human interests.^[1] Consequently, as Villavicencio-Calzadilla and Kotzé point out, the legal instruments for participation and access to justice are mostly designed to promote human interests.^[2]

In recent decades, the concept of the Rights of Nature has emerged as a promising new approach to environmental protection,^[3] accompanied by a growing body of legal literature on this issue.^[4] Jendrośka highlights that most authors engaged in the debate on the Rights of Nature emphasise that the central issue is ensuring the adequate protection of nature, and, consequently, the ability to represent its interests in court.^[5] Additionally, Krämer concluded that the main lesson for the European Union is the need to improve access to courts for environmental issues, thereby avoiding situations where public authorities ignore environmental laws and support polluters and their vested interests.^[6] Recent scholarship has advanced the discourse on the Rights of Nature by exploring its conceptual convergence with animal rights, its evolution in comparative legal perspectives, and the practical application of nature-based animal rights in jurisprudence.^[7]

In this context, the aim of this short contribution is to explore the role of the right of access to justice in protecting the Rights of Nature, as guaranteed by the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).^[8] The Aarhus Convention aims to ensure every person’s right to live in a healthy environment by guaranteeing the rights of access to information, public participation in decision-making, and access to justice in environmental matters in accordance with the provisions of this Convention (Article 1).

As Jendrośka observes, there is a clear connection between the Rights of Nature and the right to a healthy environment, as both require proper procedural guarantees for access to justice, including standing.^[9] The preamble to the Aarhus Convention references the UN World Charter for Nature, which is structured into four main parts: Preamble, General Principles, Functions, and Implementation. Although not legally binding, Kotzé summarises that the Charter “arguably most fully represents the idea of global environmental constitutionalism.”^[10] The reference to the Charter in the preamble to the Aarhus Convention is crucial, as it underscores the importance of establishing legal mechanisms to safeguard nature.^[11]

Article 1 of the Aarhus Convention stipulates that the objective of the Convention is to contribute to the protection of the right of every person of present and future generations to live in an environment adequate to their health and well-being. Hence, Article 1 establishes an anthropocentric purpose for the rights it outlines. It emphasises the connection between the human right to a healthy environment and procedural environmental rights. However, the justification for granting these procedural rights extends beyond this human focus, recognising their potential role in safeguarding the Rights of Nature as well. As Jendrośka concludes, the title of Article 1 can be misleading because it suggests that the sole goal of the Aarhus Convention is to ensure that every person, now and in the future, can live in a healthy environment. Jendrośka argues that procedural environmental rights are granted not only for this reason, but also to protect nature, enhance environmental protection, and promote democracy as well as better governance. The Preamble to the Aarhus Convention highlights these broader motivations, which should be taken into account when interpreting its provisions.^[12]

The Aarhus Convention is also known for the Compliance Committee (ACCC), which was established as a special body to monitor compliance with the Convention.^[13] It issues recommendations that interpret and clarify the provisions of the Convention, thereby establishing a body of case law.^[14] The Committee reviews how well Parties are meeting their obligations under the Convention and provides a platform for individuals and organisations to raise concerns about non-compliance. It is essential to note that while any member of the public can submit a communication to the Compliance Committee, this process should not be viewed as a legal remedy for the rights granted by the Convention. According to the Convention, the compliance review mechanism is not a redress mechanism.^[15] However, by examining cases of non-compliance and issuing recommendations, the Committee ensures that the provisions of the Aarhus Convention are adhered to. Its work helps improve environmental governance by encouraging Parties to adopt better laws and practices.^[16]

The following section presents selected ACCC case law to demonstrate how the environmental procedural rights granted by the Convention can be utilised to protect the Rights of Nature, as well as to identify obstacles to such protection. Examining ACCC case law provides evidence that procedural rights can serve as tools for advancing the paradigm shift toward the recognition and practical application of the Rights of Nature. The selection of cases presented in the following section was based on the criterion of identifying how, within the framework of the Rights of Nature, the protection of animal welfare can be addressed through the right of access to justice granted by the Aarhus Convention. Cases were chosen specifically to illustrate instances where animal welfare concerns intersect with the broader concept of the Rights of Nature, thereby highlighting the potential and limitations of the Convention’s procedural mechanisms in safeguarding animal interests. Although the cases examined primarily concern the conservation of wild animals, it is increasingly recognised that wildlife protection and animal welfare are interconnected fields.^[17] These cases demonstrate how the Aarhus Convention safeguards the procedural rights of the public and non-governmental organisations (NGOs) to advocate for the interests of wild animals, encompassing both conservation and welfare concerns. Thus, the analysis can provide valuable insights for the broader discourse on animal welfare.

This paper is envisioned as a short contribution with the purpose of providing a concise reflection on how the procedural guarantees enshrined in the Aarhus Convention may serve to advance the emerging understanding of the Rights of Nature, with particular regard to animal welfare. Given its format and limited scope, the paper does not aim to offer a comprehensive theoretical framework or exhaustive analysis. Rather, it seeks to outline key considerations – reflecting the current state of play – and to invite further scholarly discussion on the potential and limitations of the Aarhus Convention’s mechanisms in supporting the protection of nature and animals.

II. Selected ACCC Case Law on Protecting Wildlife Through Access to Justice

The third pillar (Article 9) of the Aarhus Convention addresses access to justice in environmental matters. This section will present cases concerning Article 9(3), which ensures access to review procedures in instances where decisions, acts, or omissions of private persons or public authorities contravene provisions of national law relating to the environment.^[18] The relevant provisions of Article 9, paragraphs 3–5 of the Convention to which the cases discussed in this section pertain are as follows:

3. In addition and without prejudice to the review procedures referred to in paragraphs 1 and 2 above, each Party shall ensure that, where they meet the criteria, if any, laid down in its national law, members of the public have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of its national law relating to the environment.

4. In addition and without prejudice to paragraph 1 above, the procedures referred to in paragraphs 1, 2 and 3 above shall provide adequate and effective remedies, including injunctive relief as appropriate, and be fair, equitable, timely and not prohibitively expensive. Decisions under this article shall be given or recorded in writing. Decisions of courts, and whenever possible, of other bodies, shall be publicly accessible.

5. In order to further the effectiveness of the provisions of this article, each Party shall ensure that information is provided to the public on access to administrative and judicial review procedures and shall consider the establishment of appropriate assistance mechanisms to remove or reduce financial and other barriers to access to justice.

Additionally, it is essential to highlight the definition of “the public concerned” as set out in Article 2(5) of the Convention, since it is particularly relevant for the participation of environmental NGOs:

“The public concerned” means the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organizations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest.

1. Preventing Excessive Barriers to Access to Justice: ACCC/C/2006/18 (Denmark)

Very early in its case law, the Compliance Committee dealt with the issue of access to justice for the protection of wildlife. The case ACCC/C/2006/18 highlights the challenges which individuals face when trying to protect wildlife under the Aarhus Convention. The communication addressed the inability of the communicant, a Danish biologist, to access administrative or judicial proceedings to challenge the authorised culling of rooks (Corvidae family).^[19] In the spring of 2006, the Municipality of Hillerød intended to cull 1,500 juvenile rooks at several locations it owned to reduce noise problems caused by the rooks’ behaviour in their colonies during the breeding season. The communicant believed this action violated the EU Birds Directive, which protects rooks from being hunted unless specific criteria are met. The communicant reported the culling to the police, but his complaint was rejected because the culling was deemed necessary to protect human health. He appealed to the public prosecutor, but his appeal was dismissed because he lacked legal standing.^[20]

The Compliance Committee did not find Denmark in violation of the Convention.^[21] The Committee noted that contacting the police was not enough; the communicant or any other member of the public should have requested the Forest and Nature Agency to intervene and take measures to stop the culling of the rooks. The communicant had the option to complain to the Minister of the Environment if the Agency’s decision had not been in his favour. Additionally, the communicant did not bring the matter before the Ombudsman. To the Committee’s knowledge, no other member of the public pursued these avenues of redress. The Committee stated that just because one person cannot challenge a specific action under Article 9(3) of the Aarhus Convention, it does not automatically mean that the Party is not in compliance with the Convention.^[22]

While the Committee did not find any violations, it did identify important factors related to access to justice. The Aarhus Convention aims to be flexible in deciding who can access justice for environmental issues. But it does not require Parties to allow “actio popularis” where anyone can challenge any environmental decision, act, or omission. However, Parties cannot use their national laws to set criteria so strictly that they prevent almost all environmental NGOs or members of the public from challenging actions that violate environmental laws. The Convention allows Parties to apply general criteria, like having a legal interest or demonstrating a substantial individual interest, as seen in Danish law. But these criteria should not be so strict that they block almost everyone from challenging actions related to wildlife protection.^[23]

2. Standing for Environmental NGOs: ACCC/C/2008/31 (Germany)

The case ACCC/C/2008/31 concerned, inter alia, the ability of environmental NGOs in Germany to access justice under Article 9(3) of the Aarhus Convention. The communication, submitted by ClientEarth and supported by the Nature and Biodiversity Conservation Union, alleged that German legislation did not allow environmental NGOs to challenge acts and omissions by private persons and public authorities that contravened environmental law when the “impairment of rights” criterion is not satisfied, thereby failing to provide the wide access to justice required by Articles 9(3) and 9(4) of the Convention.^[24]

This case is significant because the Compliance Committee emphasised the role of NGOs as members of the public concerned under the Aarhus Convention, affording them broad access to justice. It follows from Article 2(5) that NGOs “promoting environmental protection” shall be considered to have an interest in environmental decision-making. According to the Compliance Committee, a criterion in national law that NGOs must promote the protection of the environment, to have standing for judicial review, is not inconsistent with the Convention. However, to be in accordance with the Convention, requirements for access to justice should be applied “with the objective of giving the public concerned wide access”. As ACCC concluded:

“This means that any requirements introduced by national law should be clearly defined, should not cause excessive burden on environmental NGOs and should not be applied in a manner that significantly restricts access to justice for such NGOs.” ^[25]

Taking into account the findings of the ACCC in this case, it can be concluded that, under the Aarhus Convention, animal welfare NGOs may also be regarded as environmental organisations provided that their mission and activities are connected to environmental protection – such as the protection of wildlife, habitats, biodiversity, or ecosystem health – and that they satisfy any additional requirements established by national law.

3. Barriers to Standing of Individuals: ACCC/C/2015/135 (France)

The case ACCC/C/2015/135 (France) highlights the challenges individuals face in accessing justice for environmental protection when they are not acting as representatives of an NGO, even if they are experts in environmental protection.^[26]

In 2015, the French Minister of Ecology, Sustainable Development, and Energy adopted a list of animal species classified as pests, along with the periods for their destruction and the methods to be used (‘the ministerial order’). The communicant in this case was a university academic with a long-standing interest in wildlife and its conservation, who held responsible positions in several nature protection associations and had published numerous articles on the subject. He participated in the public participation procedure during the preparation of the ministerial order and filed a petition before the Conseil d’État, requesting the annulment of the order. Specifically, the communicant alleged that the public consultation procedure for preparing the order was defective. The Conseil d’État ruled the petition inadmissible due to lack of standing, stating that the communicant had not demonstrated a direct personal interest in the annulment of the order.^[27]

The communicant argued that denying his standing to challenge the ministerial order was incompatible with Article 9(3) of the Convention. However, the Committee found that France did not violate the Convention. The Committee repeated that the Convention does not establish an “actio popularis” that would mean that any person can challenge any decision, act or omission related to the environment. The Committee considered the communicant’s claim that he should have had the right to challenge the order because of his environmental experience and commitment. However, the Committee noted that these factors alone do not automatically grant him the right to challenge under the Aarhus Convention. Just because someone participates in a procedure does not mean they immediately have the right to challenge. This right depends on the criteria set by national law. The fact that the communicant himself could not challenge the ministerial order does not necessarily mean France is not complying with the Convention. The communicant did not show that other people, such as those living, working, or using the areas affected by the order, would also be denied the right to challenge.^[28]

From this case, we can conclude that NGOs hold a privileged status under the Aarhus Convention, whereas individuals, even those who are experts in issues at stake, do not. As Chevalier and Eliantonio correctly observe, in situations where a breach of environmental law occurs in a sparsely populated area or where a measure pertains to the protection of biodiversity, it becomes evident that no individual can demonstrate a direct personal interest. Furthermore, they compellingly point out:

“While it is true that the Convention does not require an actio popularis, it is equally true that national provisions on legal standing must comply with the objective of securing “wide access to justice”. As mentioned above, there are legitimate doubts as to whether a legal system which de facto immunises decisions from judicial review in the absence of a challenge brought by an approved NGO, complies with this objective.” ^[29]

4. Financial Barriers to Access to Justice: ACCC/C/2015/130 (Italy)

The case ACCC/C/2015/130 (Italy) illustrates the issue of financial barriers that can impede effective access to justice in environmental matters, highlighting how prohibitively expensive procedures may undermine the rights guaranteed under the Aarhus Convention. In this case, the communicant, WWF Italia, alleged that Italy failed to comply with Article 9(4) of the Convention due to the costs associated with filing a claim before the administrative courts. For instance, in one case, the Italian Council of State ordered WWF Italia to pay €30,000 in litigation fees (€5,000 to each of the six defendants). After adding tax and other charges, the total costs were €43,776.^[30]

Upon reviewing this communication, the Compliance Committee found that by charging a filing fee of €650 at the first instance and €950 at the second instance, Italy has failed to comply with the requirement of Article 9(4) of the Convention, which prescribes that court procedures should not be prohibitively expensive.^[31]

Additionally, the ACCC determined that, while the Convention permits the awarding of reasonable costs to a public authority that has successfully defended its decision, it is considered unfair under Article 9(4) to require claimants in cases falling within the scope of the Convention to bear the costs of public authorities, developers, or other entities that voluntarily join the proceedings.^[32]

This case also raised questions about whether environmental NGOs can access legal aid. Italian regulation provides that non-profit organisations, which neither pursue profit nor engage in economic activities, are eligible for legal aid under the same conditions as individuals. This means that their annual income must be below the threshold of €11,493.82. However, the communicant submitted that, in practice, they cannot receive legal aid because their yearly income usually exceeds this threshold.^[33]

Article 9(5) of the Aarhus Convention stipulates that Parties should consider establishing mechanisms to reduce financial barriers to access to justice. It is insufficient for Parties merely to express an intention to address these barriers; they are required to undertake concrete and demonstrable measures to ensure effective implementation. The Committee noted that this is an ongoing responsibility. Even if a Party has reviewed its cost system before, it still needs to keep checking and updating it as required. Therefore, the Committee found that Italy has not complied with the Convention because it has not taken concrete steps to help reduce financial barriers to access to justice.^[34]

Despite the privileged legal standing granted to environmental NGOs under the Aarhus Convention, the case law shows that these organisations face significant practical barriers to justice, most notably the lack of access to legal aid and the prohibitive cost of litigation. The persistence of these barriers reveals a fundamental tension, if not outright hypocrisy, within the current legal regulation relating to access to justice: NGOs are expected to safeguard the public interest in environmental protection, especially when public authorities fail to do so, yet are too often left without the practical means to do so effectively. While NGOs are recognised as “watchdogs” for the environment and are afforded broad standing under the Aarhus Convention, the financial burden of court fees, legal representation, and the risk of adverse cost orders often deters them from pursuing cases, especially when compared to industry or government actors with greater resources. This is a topic that warrants further research and critical examination.

III. Conclusion

In conclusion, the Aarhus Convention has made a substantial contribution to the protection of the Rights of Nature by facilitating access to justice in environmental matters. Environmental NGOs, in particular, benefit from a more favourable standing, as they are not required to demonstrate personal harm or infringement of their rights, an obstacle that often prevents individuals, even those with relevant expertise, from bringing environmental claims when they lack legal standing. Nevertheless, despite this privileged position, environmental NGOs continue to encounter substantial barriers, including limited access to free legal aid and the considerable financial burden associated with litigation. These persistent obstacles underscore that, while the Convention has established an essential framework for public participation and access to review procedures, its Parties must take further, concrete actions to eliminate financial and procedural impediments and fully realise the Convention’s objectives of wide and effective access to justice in environmental matters.

Although animal welfare regulation is not traditionally considered a part of environmental law, the two fields are closely related and overlap in areas such as biodiversity and wildlife protection. Furthermore, animal welfare is increasingly recognised as an integral component for achieving sustainable development and enhancing environmental protection.^[35] As ACCC determined, “it is not necessary that the alleged violation concern environmental law in a narrow sense: an alleged violation of any legislation in some way relating to the environment, for example, legislation on noise or health, will suffice”^[36] and that “the text of the Convention does not refer to “environmental laws”, but to “laws relating to the environment”.”^[37] In this context, integrating animal welfare into the framework of the Rights of Nature and the procedural mechanisms of the Aarhus Convention holds significant potential.

Copyright (c) 2026 Lana Ofak

This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License.