| • ECO REPORT ON THE 1ST MEETING OF THE AD HOC WORKING GROUP ON THE ECE CONVENTION ON ACCESS TO ENVIRONMENTAL INFORMATION AND PUBLIC PARTICIPATION IN ENVIRONMENTAL DECISIONMAKING |
Prepared by Jeremy Wates, EEB, with input from other ECO participants in the meeting
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The negotiations on the proposed Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking began in Geneva on 17-19th June 1996. 20 ECE countries were represented out of a possible 55, together with representatives of UNEP, WHO and the Council of Europe. NGOs were represented by an active delegation of environmental citizens organisations (ECOs), together with IUCN, the Regional Environmental Center for Central and Eastern Europe and GLOBE Europe.
A draft text for the Convention had been circulated in advance of the meeting. After some procedural matters, discussions on the articles in the draft text dealing with definitions, general provisions and access to information (passive) took place. For the most part, the discussion was exploratory. However, although no firm conclusions were reached, areas of agreement and disagreement were identified, as well as (in some cases) possible solutions.
The same draft will form the basis for the next negotiating session, which will take place at the end of October. It is expected that there will be seven or eight negotiating sessions before the text is submitted to the UN ECE's Committee on Environmental Policy, and from there to the Environment Ministers meeting in Denmark meeting in May/June 1998.
The ECO coalition was represented by the following:
Jeremy Wates, European Environmental Bureau (EEB)
Olga Razbash, Ecojuris, Russia
Sandor Fulop, Environmental Management and Law Ass., Hungary
Steve Stec, Central & Eastern European Law Initiative (CEELI)
Barbara Vrecko, ECOSVET, Slovenia
Brennan van Dyke, Center for International Environmental Law (CIEL)
In addition, the Regional Environmental Center for Central & Eastern Europe (REC - Magda Toth Nagy), Global Legislators for a Balanced Environment (GLOBE - Nicolas Tavitian) and the World Conservation Union (IUCN - Wolfgang Burhenne) were separately represented and adopted similar positions to those of the ECO coalition.
Two governments, Poland and the Netherlands, had invited ECO representatives to participate in their delegations (Jerzy Jendroska and Ralph Hallo respectively). The ECE secretariat had also funded a representative of the Russian Ecological Projects Center (Nikolai Grishin) to attend as an ECO observer, though not as part of the ECO coalition delegation.
The Dutch candidate Willem Kakebeeke was elected unopposed to the Chair. For the time being, no vice-Chairs have been elected. Nor has any drafting committee or 'Friends of the Chair' group been set up. These steps are likely to be taken at the next meeting. No new draft will be prepared before then. The ECO coalition indicated its interest in participating in and supporting the work of such a drafting group if set up, or in any expert groups.
The main reason cited for not setting up structures to expedite the drafting process was the poor attendance at the meeting - only 20 out of 55 countries were represented.
The ECO coalition requested that draft texts of the Convention be made available on e-mail or on diskette, to facilitate the consultative process we are engaged in. Extraordinarily, this request was first ignored then evaded with illogical arguments (e.g. Russia: 'many governments do not use e-mail').
A draft text prepared by the ECE Secretariat (modestly entitled 'Draft Elements for the Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking', CEP/AC.3/R.1, though in fact looking more like a first draft of the Convention itself) had been circulated in advance of the meeting.
A round of general comments on the draft text revealed that all were happy to take it as a starting point for the negotiations. (Later, one veteran of Convention drafting processes said it was unusual to have such an advanced text so early in the negotiations.)
After this, the following parts of the draft text were discussed in more detail:
Art. 1 (Definitions), paras. ii), iii), iv)
Art. 2 (General Provisions)
Art. 3 (Access to Information)
The discussions were of a fairly preliminary nature, designed to identify problem areas and possible solutions rather than to adopt specific textual amendments. So the outcome of these discussions was (and was intended to be) inconclusive.
The main issues addressed were as follows:
One of the more contested issues discussed was the question of whether the Convention should explicitly establish rights (in addition to establishing procedures). The Belgian delegation circulated a written proposal which would establish 'a right of every person to live in a healthy environment', supported by the ECO coalition but opposed by Denmark, the UK, Norway and Russia. (Later Norway withdrew its opposition on this point.) The UK argued that such provisions would not fall within the Working Group's mandate which called for 'practical, concise and action-oriented procedures and tools'. Another reason given (by Denmark) was that the concept of a human right to a healthy environment was anthropocentric, not taking into account other life-forms; and also that it did not take into account the needs of future generations. (Some of these arguments would of course not apply to rights to information or participation.) It was also suggested that attempting to resolve this controversial issue would divert attention away from more concrete areas of discussion and jeopardise the prospect of meeting the target date for having the Convention ready for signature. The Chair was keen to link the question of rights with that of obligations. This whole question of rights will be discussed further at subsequent meetings.
Definition of public authorities:
This seems to be quite a confusing area for some delegations, especially regarding the justification for keeping (b) and (c) separate. (We also had this discussion in the ECO preparatory meeting.) The ambiguity in (b) (does 'governmental' apply to 'persons'?) did not help.
The ECO coalition opposed the requirement that the public responsibilities held by bodies referred to in (b) be specifically 'in relation to the environment', and argued that the important questions were whether the body had public functions and whether it held environmental information to which the public should be entitled. Variations in control/ownership structures within a country over time or between countries (e.g. in relation to the supply of drinking water) should not alter the degree of public access to information.
The UK felt the text was already quite broad (more so than the EU directive) and met the ECO demand that it should be privatisation-neutral. Other delegations seemed to be sympathetic to the ECO proposal to make the holding of public functions a sufficient condition for deciding that a body is covered.
The need for legislative bodies to be covered, though not necessarily in an identical manner to other bodies, was put forward by the ECO coalition (see also 'Environmental Decisionmaking' below).
Definition of environmental information:
The most controversial issues here were whether or not the list (flora, fauna etc.) should be exhaustive (UK) or non-exhaustive (ECOs and others, with WHO citing non-exhaustive definition of environmental health from European Charter on Environment and Health); whether or not human health and safety should be included (ECOs/GLOBE/REC strongly in favour, Germany against, UK prefers 'environmental health'); and the extent to which socioeconomic conditions, cultural heritage or economic and financial analysis should be included (in general, ECOs/REC in favour, UK/Germany against). Some delegations felt that other items should be included in the definition: atmosphere (Chair), GMOs (Denmark), outer space and everything under the surface of the Earth (ECOs). Info on programmes, plans and policies (whether affecting or designed to protect the environment) were proposed to be included alongside 'activities or measures' (GLOBE). A proposal to delete 'adversely' (which presently limits the range of activities etc covered to those 'adversely' affecting the environment) was not opposed.
Definition of environmental decisionmaking:
The issue of what constitutes a 'significant' environmental impact (ECOs proposed 'appreciable'), the question of whether programmes, plans and draft legislation (ECOs, IUCN, GLOBE) should be covered, the duration of the 'decisionmaking' (REC taking a broad approach, Denmark a narrower one) and the question of international decisionmaking processes (see below) were discussed.
Regarding legislative bodies, ECOs suggested that these might need to be addressed separately as different conditions would apply. The Chair raised the question of how to justify treating draft environmental legislation differently from other draft legislation - perhaps implying that to deal with this issue in the Convention would open up a can of worms.
Several countries attacked para 5 of Art. 2 dealing with education and training, being either happy to see it deleted (Norway, UK), diluted (Germany) or cut right back (Greece, Russia). REC argued that it could be shortened but must keep three elements: education/training for the public on access to info, pp and access to justice (new element); education/training for officials in these areas; and general environmental awareness raising. Portugal also defended it, proposing some clarification. Denmark proposed to include a separate article on education and training, with a corresponding recital in the preamble.
Para 6, which is the closest the text comes to referring to NGOs, was also controversial. Denmark was concerned that the present text (vague as it is) would oblige governments to give money to any small group of three people. There was a proposal to change 'shall' into 'may' in the second sentence, making it optional. The Chair raised the possibility of including a definition of environmental NGOs. The UK suggested a narrower description of the types of groups which would be covered in this paragraph. The ECO coalition emphasised the crucial role played by NGOs as mediators between governments and the public, and the importance of creating the right conditions for a strong environmental movement, including development of scientific expertise, legal skills, liberal registration rules for environmental groups and a supportive fiscal regime (in terms of tax concessions etc.)
International bodies and processes
The question of international bodies and processes was raised in relation to several parts of the text. During the discussion on the definition of public authorities, Greece proposed a new sub-paragraph (d) covering joint international commissions. The special case of the EU was discussed, with the Commission representative arguing that if the Commission becomes a Party to the Convention and is bound by its terms as currently proposed, this would have huge institutional implications (e.g. in relation to the appeals processes described in Articles 3.8 and 5.9), and not just for the Commission but for the other EU institutions. Belgium pointed out that it would be difficult to explain why obligations applying to nation states should not apply to the Commission. (See below for further comments on the EU question.)
The question of international decisionmaking was also discussed under Article 1(iv) on the definition of environmental decisionmaking, and under Article 2, para. 8, with some delegations puzzled as to why the latter paragraph focussed on processes involving a mixture of Parties and non-Parties to the Convention, without there being any reference to processes purely involving (at least as decisionmakers) Parties. ECOs argued that 'mixed' processes as well as processes purely consisting of Parties should be addressed, though in different ways. In the former case, the Convention could only commit Parties to individually act in a certain way; in the latter case, the Convention could possibly go further and commit the international body or process itself. Belgium more or less supported this approach. Several countries (Denmark, UK, Greece) had doubts about applying the concrete provisions in the Convention to international environmental decisionmaking. It was suggested (by the Chair?) that the principles (rather than the provisions) of the Convention should apply, though this is a rather vague term.
On this issue, we may have made some progress in resolving the traditional polarisation, whereby a single fixed time limit emerges as a compromise between two extremes and nobody is happy. Specifically, the ECO coalition proposed a shortish time limit (1 week) for acknowledgments of requests, assistance with clarification of requests and onward referral of requests (where the public authority does not hold the info); and a longer but not too long timeframe (2 weeks) for refusals of requests and for provision of information, but with scope for extending this period in increments in the case of certain difficult requests where this can be justified. Whether or not any extension of the period is justified would be subject to determination by the appeals process if the requester so wished.
This approach (short, differentiated deadlines with restricted provision for extensions) may help to bring the debate over time limits onto a more sophisticated level. By showing some concern for the difficulties faced by hard-working public officials in always meeting short deadlines, we may have gained some goodwill.
Before the ECO proposal was made, the Netherlands proposed a 2-week time-limit and was asked by Denmark not to 'exaggerate' - Denmark (which has a 10-working-day response provision) went on to remind delegates that the 2 month time limit in the EU directive had been carefully negotiated. The UK initially said it could live with 6 weeks, but did not seem happy with the ECO approach. Sweden initially said it would be difficult even to meet a 6-week deadline and expressed a preference for using a more general phrase like 'as soon as possible' rather than an actual time limit. Later, however, Sweden said its earlier remarks applied to exceptional cases and supported the ECO approach (though not necessarily the exact time limits). Austria argued that information could usually be given in a much shorter time than 8 weeks and proposed that reasons for delays in providing information be studied carefully, to see the sort of situations in which it was justified. The Council of Europe, here as on many other occasions during the negotiations, referred to relevant legal texts, in this case the Lugano Convention on environmental liability (1993).
Exemptions (Art. 3.2):
Predictably, most of the debates here were initiated by the concerns of the ECO coalition. These are fairly well known and not spelled out here.
The UK flagged a concern over the condition that 'the public interest served by the disclosure is weighed against the interest of non-disclosure in each case', observing that this would mean states cannot create categories of information which could or should be withheld.
The UK also felt the exception to the exemption on commercial confidentiality (sub-paragraph (d)), and specifically the phrase 'relates to', was too broad and effectively undermined the entire exemption. Germany and Denmark also seemed to be unhappy with the exemption of emissions data from the commercial confidentiality exemption (Denmark referring to releases of GMOs under closed conditions, and a possible conflict with the EU directive on this).
Greece was the only country to come out strongly against the commercial confidentiality exemption clause, and to some extent against the exemption of voluntarily supplied information.
Regarding information on potential (as opposed to actual) emissions (a concern raised by the ECO coalition), the Secretariat was asked to see if this was dealt with in the ECE Convention on the Transboundary Effects of Industrial Accidents. It transpired that Art. 22 of this Convention allows for countries to exempt commercially confidential information - so this is still a concern if 'relates to' is diluted.
The ECO coalition also proposed an overriding 'exception to the exemptions' where the release of information would reduce an imminent threat to health or the environment, which was duly noted. This linked in with concerns, initially raised by Italy and expressed at several points during the session, about the release of information in accident or emergency situations.
During the discussion on Article 2 ('General Provisions'), several countries opposed any binding requirement to designate officials responsible for facilitating the public in exercising information and participation rights (Sweden, Denmark, UK). The ECO coalition later defended such a requirement but in Article 3.
Regarding cases where a request is directed to a public authority which does not hold the information requested (Art. 3.3), the ECO coalition argued for a minor amendment whereby the public authority would be required to refer the request onward to the public authority most likely to hold such information and notify the requester that this had been done (instead of just referring the requester to the appropriate public authority). The UK, Germany and the Council of Europe all supported this approach, and Greece even proposed a more unqualified obligation on public authorities (too detailed for here).
The proposed obligation on public authorities to assist the public in clarifying imprecise requests was more controversial, especially when the ECO coalition proposed it should be extended to 'manifestly unreasonable' requests. The UK was opposed to extending this to all such requests. Russia and Denmark also had problems, the latter referring to mentally unstable persons. The ECO coalition urged these delegates to have more confidence in the proposed appeals mechanisms to arbitrate in such cases.
Where information is to be refused, the obligation to necessarily give the grounds for refusal in writing in all cases was contested by the UK, Norway and the Netherlands (?), but supported by Belgium and Portugal. The former group felt it was sufficient if the public had a right to request that the grounds for refusal be given in writing. The ECO coalition also called for a minor amendment making it clear that all grounds for refusal should be cited at once - so that a public authority could not work one by one through a list of possible grounds, each one having to go through an arbitration process. This was not opposed.
Both Germany and the ECO coalition supported the availability of information in electronic form.
Whereas the ECO coalition proposed a more liberal regime on costs, including cost waiver provisions, some countries (UK, Germany) clearly had problems even with the current text. For example, the UK was not happy to exclude the costs of compiling or retrieving the information (Art. 3.7(a)) Germany also pointed out that under its laws, public authorities may charge for time spent retrieving information - which prompted the Chair to remark that this might make the need for waiver provisions more pressing. (In fact, the Chair seemed quite sympathetic to the notion of waiver provisions, but especially where large volumes of information are sought, and on the basis of the poverty of the requester - the ECO proposal was that they should apply where the amounts of information fell below certain threshholds.)
Belgium cited its experience with wide variation in charges levied, but did not believe the Convention could resolve this.
The ECO coalition questioned making the supply of information conditional on the payment of charges (this could cause delays while cheques are being processed) (Art. 3.7(b))
REC called for a clear right of inspection, free of charge. The ECO coalition pointed out that 'access' in Art. 3.7(c) was unclear (also Denmark, Chair), and called for a reference to inspection. Finland referred to Art 16 of the ECE Convention on Transboundary Watercourses (this provides for a right of inspection of certain info free of charge, and a right to obtain copies on payment of reasonable charges).
Appeals process (information requests only):
Denmark pointed out that its Ombudsman's decisions have the status of recommendations (so would not fulfil the 'binding' requirement in Art 3.8) though in practice are always complied with. Not a blocking objection. The UK favoured a less prescriptive approach where the objectives are specified rather than the means to achieve them. The Netherlands was happy with the content but wondered if this issue would be better addressed in Art. 6.
This report does not go into the details of the positions which each country took during the first session, but some of the more obvious tendencies which emerged are listed here. Please enquire if you want further details on any specific country, or if you want to know the name of the delegates from any particular country.
Belgium: took consistently progressive positions throughout (the only slight exception being on the costs regime).
Denmark, Norway and Sweden: We had expected better. Denmark took quite conservative positions on a number of issues (rights, time limits, international decisionmaking, commercial confidentiality). Sweden and Norway got off to a poor start but seemed to improve as the session went on, with Norway revising its position on the rights issue and Sweden doing likewise on time limits.
The Netherlands: Quieter than expected, and early on not as helpful as we had hoped, perhaps because of losing its head to the Chair. Some useful contributions e.g. on time limits. From the Chair, Kakebeeke made some quite useful comments, e.g. urging those countries who had said they could not go further than their existing national legislation to 'reflect further' on this, or the process could be over within a fortnight.
Greece: Mixed and prolific input, at one point going back on the 'any person' principle which it committed itself to in the EU directive, at another point even upstaging the ECO coalition with a more progressive proposal.
UK: Probably the most active and articulate proponent of not going beyond the EU directive.
Germany: Even more cautious than the UK, reluctant to agree to either go beyond directive 90/313/EEC, or to agree to provisions affecting other Ministries.
Russia: Mixed input. It seems that they did not receive the documentation sufficiently in advance, so were not taking very fixed positions yet. Could go either way.
US: Not represented at all.
Canada: Using its federal structure as an excuse not to participate actively in the negotiations. Not represented during much of the discussion on the more concrete provisions.
One important question which has arisen is whether the EU will at some point during the negotiations adopt a common position and negotiate as a bloc.
This question was put on the table by the ECO coalition in its opening submission. We stated that we were neutral on the question of whether or not a common position would be adopted but if such an approach were taken, it would be important that the same levels of transparency and participation would apply to the process of reaching the common position. Otherwise, EU citizens would be deprived of the opportunity to know the positions taken by their elected governments and the influence these might have had on the resulting common position.
This resulted in two apparently contradictory responses: Italy (which holds the Presidency) assured the meeting that EU member states would negotiate separately even if the Commission also negotiated on its own, and that there would be no question of individual member states hiding behind a common position of the EU. The EU Commission then stated that while it would not be participating actively in the first meeting, having not obtained a mandate to negotiate on behalf of the EU, it would shortly be seeking such a mandate from the Council, which if granted would be in place in time for the second and subsequent meetings.
Further comments and discussions both inside and outside the meeting with both the Commission and Italian delegates, and others, clarified the situation as follows:
- The Commission will table a proposal to the Council of Ministers in July, to be discussed at the September Council meeting, seeking a negotiating mandate in the areas of the proposed Convention in which it has competence. Broadly speaking, this would include the access to information provisions but not the public participation or access to justice provisions. In the areas in which the Commission does not have competence, the member states would continue to negotiate separately.
- The decision to grant this mandate should be taken by unanimity (i.e. just one country could block it). However, there are different opinions as to whether the Council could actually refuse the mandate. One view is that a recent judgment in the European Court of Justice supports the position that the Commission cannot be refused the negotiating mandate if it can be established that it has competence in the area.
Whether or not the Commission obtains a negotiating mandate, a further issue is the implications of the EU becoming a Party to the Convention in its own right. Under the terms of the present draft, this would require changes in the way the EU institutions operate (e.g. in relation to access to justice) and changes in the Treaty on European Union, or else there would need to be some kind of derogation for the EU.
This is clearly an area which needs to be studied closely. Opinions would be welcome.
Future meeting schedule (provisional):
29/10/96 Informal session to bring countries not present at first meeting up to date on progress made at 1st AHWG meeting
30/10/96 - 1/11/96 2nd AHWG meeting
11-13/12/96 3rd AHWG meeting
17-19/2/97 4th AHWG meeting
18-20/6/97 5th AHWG meeting
24-26/9/97 6th AHWG meeting
3-5/12/97 7th AHWG meeting
Press conference
On the second day of the negotiations (18.6.96), the ECE hosted a press conference at which two ECO representatives (Olga Razbash of Ecojuris and Jeremy Wates, EEB) presented perspectives on the new Convention to 15 journalists (including from AP and AFP). The ECE also issued a press release conveying our views and used an interview covering the same ground for its own publication 'ECE Spotlight'. Copies of these materials are available on request.
mara.silina@foeeurope.org - Public Participation Campaign - webmaster