Also accompanying this message (or available on request to those who requested to only receive summaries) are the latest draft texts of a) the Convention and b) elements for the Ministerial resolution to accompany the Convention. [NB The Convention text is slightly different from the draft I sent you last week having had some minor presentational changes made. There may still be the possibility of further VERY minor presentational changes being made by the ECE secretariat but not affecting the substance at all.]

The endorsement of the draft Convention by the CEP, without any square brackets, means that the accompanying draft text of the Convention will be the text, which is submitted to the Ministers in Arhus. Given the deep reluctance of governments to reopen any discussion on the draft Convention, the prospects of achieving any further improvements in the text are extremely limited - so this may well be the final text of the Convention.

Without ruling out the possibility that we would continue to seek some very specific changes to the draft Convention, the priority in my view should therefore now should shift to i) carefully evaluating the draft text, so that we can present an objective critique in Arhus, and ii) lobbying governments to sign the Convention in Arhus (assuming you think this would be a positive step).

I would be very grateful if you could help with these tasks, by letting me know:

- how much difference the draft Convention would make in your country (the more detail on specific provisions, the better);

- whether your government is intending to sign the Convention in Arhus (or at any time).

As this point represents a milestone in the development of the Convention, I would like to express my thanks to the other members of the ECO delegation - Olga Razbash, Sandor Fulop and Peter Roderick - additionally to Peter for managing not to walk out in frustration until the final session so that we had the benefit of his superb drafting skills for most of the negotiations. Also to all those who joined the delegation in an advisory capacity or as substitutes - Steve Stec, Katy Brady, Roda Verheyen, Alexander Kodjabashev, Brennan van Dyke, Barbara Vrecko, John Bonine, Svitlana Kravchenko, Julia Harris, Vera Mischenko, Vladimir Petrenko, Maja Kostic, Yves Lador, Oleg Cherp, Fe Sanchis Moreno - as well as to Barbara Rutherford, though tragically she did not live to see the finished product. Special thanks to Magda Toth Nagy and Steve Stec (under a new hat) for an excellent co-operation with the REC, and also to Nicolas Tavitian of GLOBE and Wolfgang Burhenne and Anders Hellsten of IUCN. And of course to Ralph Hallo, Vice-President Jerzy Jendroska and Ondrej Velek when they were able to cross over from the government lines to talk to us. Then, playing crucial roles in the background, John Hontelez, Mara Silina, Juris Martins, Iza Kruszewska, Albin Keuc, Jonas Ebbesson, Mary Taylor, Susan Casey-Lefkowitz, Brian Rohan, Jiri Dusik, David Hunter.... There were others but I will apologise to them for not mentioning them specifically and stop here before you do.

As you can imagine, it was a difficult and often depressing task but working with such a team of people has made it one of the most inspiring, fulfilling and sometimes humorous tasks I have ever been engaged in. Almost enough to make one look for another Convention ... I said, 'almost'. And of course we will have our hands full with the implementation of this one. But first, to Arhus...

Best wishes,

Jeremy Wates
Co-ordinator
ECO delegation to the Public Participation Convention negotiations

Convention on Access to Information, Public Participation in Decisionmaking
and Access to Justice in Environmental Matters
Public Participation Convention Negotiations:
ECO Report on UN ECE Committee on Environmental Policy meeting, 16-18/3/98

by Jeremy Wates, European Environmental Bureau

SUMMARY

At its meeting on 16-18 March 1998, the UN ECE's Committee on Environmental Policy (CEP) endorsed the text of the draft Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters, without making any changes to the text submitted by the Working Group in which the negotiations have taken place over the past 21 months. The draft text will be transmitted by the CEP to the Ministers for adoption and signature at the 4th Ministerial Conference "Environment for Europe" in Arhus, Denmark, 23-25 June 1998.

During the meeting, the NGO coalition welcomed some aspects of the draft text and criticised other aspects but reserved its strongest criticism for the article on the question of a compliance mechanism for the Convention (Article 15). Several delegations echoed this criticism but were unwilling to re-open the negotiations on the text of the Convention, suggesting instead to redress the deficiency through the resolution.

Denmark lifted its scrutiny reservation on the text but France said it needed more time before it could lift its reservations, and several other countries having made reservations did not comment. (Canada and US did not participate in the discussion and it is now assumed that they will not sign the Convention, though it is rumoured that Israel may sign.)

Given the unwillingness of governments to discuss the text of the Convention itself, the main discussions were over the draft text of the Ministerial resolution intended to accompany the adoption of the Convention. When the issues could not be resolved in the plenary, a small group was convened to resolve the differences, chaired by Willem Kakebeeke (NL) who had chaired the negotiations in the Working Group.

There were two paragraphs in square brackets (i.e. not yet agreed) in the opening draft text of the resolution, the first recommending that NGOs be given the opportunities to play the same role in international environmental instruments in general as in the Convention negotiations and the second requesting the first meeting of the Parties to further develop the application of the Convention in connection with the deliberate release of GMOs. These were both adopted: the first in slightly amended form, the second unamended despite the efforts of the NGOs and some governments to extend it so as to cover contained use of GMOs.

Two new proposals for the resolution were tabled by Denmark. The first proposed an explicit reference to the roles played by the Regional Environmental Center and the NGO Coalition in the preparation of the draft Convention. This was not accepted.

The second Danish proposal was intended to compensate for the weakness of Article 15 and strongly urged the establishment of effective compliance arrangements. During extensive discussions in the small group, Russia and Turkey vigorously opposed the Danish text and the Chair put forward a weaker compromise text referring to Article 15. The two texts were returned to the plenary where it still proved impossible to reach agreement, so both alternatives remain in []s.

The CEP paid tribute to the role played by the NGO coalition and the REC in the negotiations.

The following sections elaborate on the discussions on these issues in more detail.

General NGO statement on the draft Convention

In its opening statement, the NGO delegation gave a mixed reaction to the draft Convention.

On the one hand, it welcomed the concept of such a Convention as a step forward in international law, and the three-pillared structure of the Convention. It welcomed the fact that the text had gone in the direction of a rights-based approach, and the fact that in principle the EU was intending to apply the provisions of the Convention to the EU institutions.

It also welcomed the fact that several issues raised by the NGOs had been included in the Convention, albeit inadequately, such as pollutant release and transfer registers, human health, international bodies, information on Websites, and the public interest test for exemptions. These issues were at least firmly on the agenda and recognised as within the scope of the Convention.

On the other hand, it deplored the fact that many of these issues had been dealt with in such a weak way, with excessive discretion given to governments through phrases such as 'in accordance with national legislation' or qualifiers such as 'progressively' or 'as appropriate'. As examples of weak points in the Convention, it referred to the broad exemptions from the access to information provisions; the weak provisions on public participation in decisionmaking on policies, plans, programmes and legislation; the second class treatment given to GMOs under the public participation pillar; and the discretion given to governments to determine who should have access to the courts to challenge breaches of environmental law.

However, the NGO delegation levelled its strongest criticisms at Article 15 on compliance mechanism for the Convention, reminding the meeting of the UK delegation's comment at the final session of the Working Group warning that the group was 'on the verge of adopting the weakest text on non-compliance in any international environmental law'. The NGO delegation said it recognised the unwillingness of governments to amend the draft text but urged them to do so in this case to avoid a substantial embarrassment. It then offered its comments on a Danish proposal to address this issue in the resolution (see further comments in following section).

Non-compliance mechanism

At the beginning of the meeting, Denmark circulated a written proposal for a new paragraph in the resolution 'strongly urg[ing] the Meeting of the Parties at their first meeting or as soon as possible to establish effective compliance arrangements and call[ing] upon each of the Parties to be obliged by such arrangements'.

The NGO delegation criticised Article 15 as possibly the weakest aspect of the entire Convention and said that some of the expert advice it had received had even deemed that the text would be better if Article 15 was deleted, though it was not proposing this. It argued that it was illogical to require that the decision under Article 15 be 'on a consensus basis' when the arrangements were to be 'optional', and proposed that the word 'optional' be deleted or failing that, the words 'on a consensus basis'. It said that the Danish proposal for the resolution did not make up for the weakness of Article 15 but welcomed it as a step in the right direction, and proposed to strengthen the Danish text by deleting 'or as soon as possible', by referring to a mechanism rather than 'arrangements' and by specifying that such a mechanism be 'accessible to the public'.

Following these criticisms, several delegations expressed similar concerns about the weakness of Article 15 but saw this as a reason to support the Danish resolution or an amended form of it rather than to amend the draft Convention (Sweden, Norway, UK, Belgium, Slovenia, IUCN). Ukraine could also support it without 'strongly'. Countries opposing the Danish proposal in the plenary were Hungary, Turkey and Russia (except in a severely truncated form).

In the small drafting group, Turkey and Russia remained implacably opposed to the Danish proposal or anything resembling it. They argued that anything, which went beyond Article 15, would not be consistent with it. Italy proposed to amend the Danish proposal so that it would call upon Parties to 'take part' in the arrangements (rather than be 'obliged' by them), which Denmark was willing to accept. The UK proposed calling upon Parties to 'support' the arrangements but this was not acceptable to Denmark.

The Chair then proposed as a compromise, 'Urge the Meeting of Parties at its first meeting or as soon as possible thereafter to establish effective compliance arrangements in accordance with Article 15.' As there was no consensus, it was agreed to send this text together with the original Danish text back to the plenary.

In the plenary, Russia and Turkey preferred to delete both options but could in any case not accept the Danish proposal. France also preferred the Kakebeeke text referring to Article 15. Italy and the NGOs preferred to work with the Danish proposal, with Italy proposing 'take part' as described above and the NGOs proposing the deletion of 'or as soon as possible'. Denmark asked for both options to be kept in []s and discussed at the 4th meeting of the Working Group of Senior Officials preparing the Arhus conference. Turkey appealed to Denmark as the host country to withdraw its proposal in the spirit of compromise (!) but Denmark declined to do this so the two options remain in []s (and are in fact the only text remaining in []s).

Genetically Modified Organisms (GMOs)

A square bracketed paragraph in the opening text recommended further development of the Convention in the area of deliberate release of GMOs into the environment, at the first Meeting of the Parties (basically, intended as a 'consolation prize' after the second class treatment given to GMOs in the Convention itself). Several countries were in favour of keeping this text (Finland, UK, Norway, Slovenia) with only the Ukraine at that stage expressing some doubts about it. The NGO coalition called for adding an explicit reference to contained use of GMOs, but gaining insufficient support was willing to support an Italian compromise proposal to delete any reference to deliberate release, so that it would refer to GMOs in general.

In the small group, the Italian proposal was also supported by Denmark and Norway but opposed by the UK and Turkey (the latter questioning the need for the entire paragraph). Netherlands proposed to follow the Italian proposal but to add 'in particular to deliberate release ...' to give this more emphasis. However, this was unacceptable to the UK. Italy proposed to use the language in the Convention preamble recital as a lead-in, but this was unacceptable to Denmark and the NGOs because it still limited the scope to deliberate release of GMOs. Denmark proposed to put []s around 'deliberate release of' and 'to the environment' and to remove the []s around the entire paragraph, and was supported by Norway and the NGOs, so that the issue could be decided by the Ministers. However, the Chair rejected this approach and the entire text was returned to the plenary in []s.

Back in the plenary (Wed am, 18/3/98), only Norway, Poland and the NGOs supported deleting the restriction to deliberate release of GMOs, Denmark (and other possible EU allies) having had its hands tied by an EU co-ordination meeting. The EU (represented by UK), Turkey and Russia were in favour of the full text, referring only to deliberate release. Italy (post-EU co-ordination) claimed to be sympathetic to removing the limitation to deliberate release, but could accept the limitation on the basis that it reflected the draft Convention. Kakebeeke proposed to adopt the EU position (the full text). Norway then requested to keep the reference to deliberate release in []s pending further consultation, but Kakebeeke persisted and Norway agreed to accept a footnote in the report on its position.

NGO participation in international environmental instruments

The opening text contained a recommendation in []s that NGOs be able to play the same role in other intergovernmental organisations on instruments in the field of environmental protection as in the development of this

Convention (originally proposed by Italy during the final session of the Working Group). This was supported in the initial plenary session by Finland, Ukraine, Norway and Slovenia, and opposed by the UK and Russia who felt it was not appropriate to make such recommendations to other bodies.

In the small group, the text was again opposed by the UK and Russia, as well as by France and Turkey. The Netherlands proposed to restrict it to UN ECE bodies, but this did not remove the objections. The Chair then proposed to replace the reference to being given opportunities to play 'the same role' by a reference to being allowed 'to effectively participate'. With a further clarification that the participation was in the 'preparation of' instruments, the text was adopted first in the small group and then in the plenary.

Role of NGOs and REC in the negotiations

Denmark proposed that the paragraph in the resolution commending environmental organisations for their active and constructive participation in the development of the Convention should explicitly refer to the REC and the NGO coalition. This was supported in the initial plenary session by Finland, Sweden, Norway, Belgium, Hungary and Slovenia, and opposed by the UK (which said it was implicit and would omit GLOBE and IUCN), Turkey, Ukraine and Croatia (the last two arguing that the structures of both REC and the NGOs might change).

In the small group, Denmark argued that while other groups had played a significant role, it was generally recognised that the NGO coalition and the REC had played a substantially greater role in the negotiations, which deserved to be reflected in the resolution. However, the UK and Turkey persisted in opposing the proposal and the Chair rejected the proposal, inviting to Denmark to refer the matter to its Minister.

Several governments (Denmark, Finland, Italy, Sweden) paid tribute to the role played by the NGO coalition and the REC in the negotiations and Denmark asked for a note in the report reflecting its view on this. At the suggestion of Kakebeeke, it was agreed that the note should express this on behalf of the CEP as a whole, not just Denmark.