Speech at the Aarhus Convention, Geneva

The Rule of Law as a Shield for the Environment: The Aarhus Convention, the Role of Courts, and the Enforcement of Environmental Liability

Kari Kuusiniemi, President of the EU Forum of Judges for the Environment (EUFJE), President of the Supreme Administrative Court of Finland

Introduction: Environmental Democracy and the Rule of Law

Esteemed Chair, distinguished colleagues, I wish to thank the organizers for the honour of addressing you in today´s important meeting! As a representative of the EU Forum of Judges for the Environment, and as a Court Chief Justice, I ask for your understanding for emphasizing the role of courts and taking some examples from the case law of my own court.

In this era of compounding environmental crises, the true measure of the rule of law lies in its capacity to protect the very foundations of life. Within this legal framework, the Aarhus Convention stands as a cornerstone, directly linking environmental protection to fundamental procedural human rights.

The third pillar of the Convention—access to justice—transforms substantive environmental law into binding enforceable rights. Today, I will discuss how the judiciary can more effectively prevent environmental crime and ensure that ecological damages are fully remedied through civil, administrative, and criminal liability. I am happy to add that the Convention will be addressed by prominent experts at the EUFJE Annual Conference in Dublin.

Current Trends: Professionalized Crime and Legal Impediments

The landscape of environmental litigation has grown increasingly complex. Besides traditional court cases, we face different forms of strategic litigation and sometimes even a kind of lawfare. Two alarming trends challenge the judiciary:

• Transnational Organized Crime: Environmental offenses are no longer isolated incidents of corporate negligence; they have evolved into highly lucrative forms of organized crime exploiting corporate structures. According to statistics, environmental crime ranks as the third or fourth most financially rewarding crime worldwide. E.g., in Italy, the rise of the ecomafia—orchestrating illicit waste disposal and related money laundering—demonstrates that environmental law must be capable of penetrating the corporate veil to hold the true perpetrators accountable.
• Strategic Lawsuits Against Public Participation (SLAPP): We are witnessing a troubling global rise in the weaponization of legal systems to silence experts and activists (SLAPPs). When environmental defenders are targeted with meritless defamation or exorbitant civil damage claims, courts must be equipped to identify and dismiss these procedural abuses, in strict alignment with Article 3, Paragraph 8 of the Aarhus Convention, which prohibits the penalization and harassment of activists.

Access to Justice: Some Case law

Jurisprudence has consistently shown that effective prevention and enforcement rely heavily on granting standing (locus standi) to environmental organizations. In this regard, e.g., the Supreme Administrative Court of Finland, has established progressive precedents, integrating international obligations directly into national judicial interpretation:

1. Recognition of Transboundary Standing: In a landmark ruling SAC 2019:97, the Court assessed the right of a Polish environmental foundation to appeal a permit regarding a natural gas pipeline project in the Finnish Exclusive Economic Zone (Nord Stream 2). With reference to the Aarhus Convention, the Court ruled that an environmental NGO’s right to appeal cannot be denied solely because its registered seat is in another treaty state, provided that the project has transboundary environmental impacts.
2. Bringing Climate Accountability and State Inaction Under Judicial Review: In a more recent judgment (SAC 2025:2), the Court addressed the adequacy of government climate measures and access to court. While respecting the separation of powers, the Court acknowledged the European Court of Human Rights´ Grand Chamber judgment in the Swiss case KlimaSeniorinnen and held the appeals lodged by NGOs admissible, even though the established doctrine does not allow appeals against the passivity of authorities. Hence, government´s failure to promote statutory climate targets can fall under judicial scrutiny if that inaction threatens environmental human rights of affected parties.

• NGOs as Guardians of Justice: There is a long series of rulings demonstrating that NGO lawsuits are an essential component of legality control in the field of environmental law. Without broad standing for civil society, numerous violations and administrative omissions would evade judicial oversight. In Spain, courts have demonstrated innovative practice by broadly interpreting the legal standing of environmental groups in cases involving the illegal poisoning of protected wildlife, giving the public interest a voice in the courtroom.

The Way Forward: Recommendations to Strengthen the Judicial Role

To ensure that the promises of the Aarhus Convention are fully realized I submit four recommendations for your consideration:

1. Stricter Penalties and Compensation: The EU Environmental Crime Directive empowers courts to impose criminal sanctions that genuinely reflect the gravity of the offenses. EUFJE, together with IMPEL, ENPE and EnviCrimeNet, supported the adoption of the directive, in particular the provisions on coordination, cooperation, national strategies and data collection and statistics. Provisions for prison sentences of up to ten years and corporate fines tied to global turnover dismantle the economic incentives to violate environmental laws.
2. A Dynamic Interpretation of the Polluter Pays Principle: The judiciary must shift from nominal fines toward genuine restoration (restitutio in integrum). Where the physical restoration of nature is impossible, courts should impose compensatory damages that reflect the long-term loss of ecosystem services. I would like to highlight the role of the indicative tool for compensating nature damage (Bioval), the development of which has actively been supported by EUFJE. It gives judges guidance on values of lost nature objects enabling them to inflict adequate and deterring compensation on offenders.
3. Eliminating Financial Barriers: Review procedures must not be prohibitively expensive. Article 9, Paragraph 4 of the Convention explicitly mandates that Courts must proactively utilize legal structures so that public-interest litigation does not result in the financial ruin of NGOs.
4. Specialization and Expertise: Environmental litigation demands highly complex scientific evidence. We must actively promote specialization among judges and prosecutors, and establish clear, reliable mechanisms for integrating independent scientific expertise into court proceedings. The dialogue and cooperation between European and national Courts as well as between organizations, such as the 4 Networks, is of utmost importance. EUFJE has already twice organized an annual conference on the protection of the environment through criminal law, and specialization in environmental law, including administrative and criminal enforcement, was on the agenda in Sofia in 2018.

Conclusions

Distinguished colleagues, the Aarhus Convention defines the parameters of environmental justice, but it is the courts that bring those parameters to life. As the precedents mentioned earlier demonstrate, a transboundary and dynamic approach to interpretation is both possible and vital. Without a strong, independent, and accessible judiciary, environmental legislation remains mere rhetoric.

Courts shall remain places where illegal environmental acts and administrative failures receive a proportionate, rigorous, and swift legal response. The rule of law must protect those who protect our planet.