Proposed UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking
| • ECO REPORT FROM 2ND NEGOTIATING SESSION |
Geneva, 30.10.96 - 1.11.96
[Note: This report has been prepared by Jeremy Wates, European Environmental Bureau, with input from Barbara Rutherford, WWF International, Peter Roderick FoE (England, Wales and N. Ireland), and Julia Harris, Center for International Environmental Law, for the purpose of keeping interested ECOs (Environmental Citizens Organisations) and other NGOs and individuals in touch with the progress of the negotiations. Further information, e.g. on the positions taken by specific delegations, can be obtained from the ECO participants.]
The second meeting of the ad hoc Working Group for preparing a draft Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking took place in Geneva from 30th October to 1st November 1996.
The meeting completed the process of gathering a first round of reactions to the 'Draft Elements' text prepared by the ECE Secretariat last April. Whereas the previous meeting had covered Articles 1-3 (definitions, general provisions, 'passive' information), this meeting focussed on Articles 4-6 ('active' information, public participation, access to justice). Other issues that were discussed included the question of rights (to a healthy environment, and also to information, participation and justice with respect to the environment), the role of the EU, and the participation of the public in the mechanism of the Convention (meetings of parties, non-compliance procedures).
The meeting was preceded by an informal updating session (29.10.96) for delegations which had not attended the first meeting.
As at the first meeting, the NGO delegation(s) played an active role in the process, leading one government official to remark that 'never in the history of international negotiations have NGOs played such an active role in the preparation of an international law.'
The main outcomes of the meeting were as follows:
- Access to justice is now accepted by all delegations as a third pillar of the Convention, rather than an element which could be treated within the other two pillars (information and participation). However, some delegations (notably Germany) would prefer a minimalist approach in this area, and the issues of standing, scope of proceedings and legal costs remain controversial.
- Most delegations do not seem to object to an eventual requirement under the Convention to establish national pollutant release and transfer registers (PRTRs), though some remain to be persuaded. For the time being, the door remains open on this issue.
- The discussion on public participation (Art. 5) led to the conclusion that the definition of 'environmental decisionmaking' needed much more work. A proposal to break the whole range of environmental decisionmaking down into different categories, which might have different public participation provisions attached to them, led to a discussion on what those categories might be, with some government delegations proposing 'policy' and 'permitting' as two main types of environmental decisionmaking. The NGO delegation proposed that legislation, international decisionmaking, and monitoring/implementation/enforcement should be added.
- Belgium's proposal that the Convention should be underpinned by a reference to a right to a healthy environment, and also rights to information, participation and justice, received a higher level of support than at the previous meeting, including support from countries which had previously opposed it. However, the UK remains firmly opposed to it, supported by Ireland, Germany and Canada. The issue remains open for discussion later on in the process.
- In a discussion on a paragraph intended to prevent harrassment of environmental activists (5.11), the ECO coalition drew attention to the plight of the Russian activist Alexandr Nikitin, currently imprisoned by the Russian authorities. The Russian delegation did not respond.
- The EU Commission has still not obtained a mandate to negotiate on behalf of the Community, but is planning to do so before the next session. The ECO delegation reiterated its concerns expressed at the last meeting, adding that if the Commission does obtain a mandate, it should only negotiate with respect to the way the Convention's provisions apply to the Community institutions, leaving the EU member states to negotiate with respect to the way the Convention's provisions apply to them.
The next stage of the process will involve more concentrated work on producing a new draft. Two drafting committees, both including NGO representation, will prepare proposals relating to access to information/right-to-know and environmental decisionmaking respectively, for consideration at the next plenary session in December 1996.
The ECO coalition was represented by (including advisers):
Jeremy Wates, European Environmental Bureau, Ireland
Sandor Fulop, Environmental Management & Law Association, Hungary
Peter Roderick, Friends of the Earth, UK
Steve Stec, Utrecht University, Netherlands
Brennan van Dyke and Julia Harris, Center for International Environmental Law,
Switzerland/US
Olga Razbash of Ecojuris, Russia, had been expected to participate in the delegation but had to cancel at short notice for personal reasons. Barbara Vrecko of Ecosvet, Slovenia, also pulled out of our team at very short notice, having been invited to represent her Ministry in the negotiations. So the representation on CEE/NIS was less than had been planned.
The coalition worked together more or less closely with
several other delegations:
Barbara Rutherford, WWF International's main PRTR expert;
Magda Toth Nagy, public participation expert with the Regional Environmental Center for Central and Eastern Europe, Hungary;
Nicolas Tavitian, GLOBE Europe;
Wolfgang Burhenne, IUCN
Three national delegations also included ECO representatives: Poland (Jerzy Jendroska, Polish Environmental Law Association), the Netherlands (Ralph Hallo, Stichting Natuur en Milieu) and as already mentioned, Slovenia (represented exclusively by Barbara Vrecko, Ecosvet, who had been part of the ECO team at the previous session).
In addition to making frequent interventions on most of the substantive issues which came up (see below), the ECO delegation presented to the meeting the final version of the 'Brussels Declaration' - the declaration of the pan-European ECO conference on public participation, held earlier that week. On several occasions during the meeting, this provided a useful reference point for our interventions. We also drew attention to the resolution of the IUCN General Assembly adopted a couple of weeks previously. Copies of both documents were made available to the meeting.
[Points here are grouped thematically, and only approximately in the order they arose during the meeting.]
3.1 Active information provisions
WWF opened the discussion on Art. 4 by asking for an explicit reference to a requirement for Pollutant Release and Transfer Registers in this article, along the lines of the text currently located in Art. 7.2(g). This text would then point to an Annex elaborating on the minimum requirements for PRTRs. (This matter was also discussed in relation to Art 7.2g.) As well as setting out the rationale for PRTRs, WWF described relevant developments taking place within other international fora, notably the OECD's development of a Guidance Manual for Governments on PRTRs, and made information materials available to the meeting.
The requirement for PRTRs was opposed by Germany and Lithuania (written comments), though in Lithuania's case this could be more to do with wanting to avoid duplication with other instruments rather than as a result of a principled opposition to having a PRTR obligation on countries. Russia also felt it was premature to discuss this matter, preferring to leave the decision on whether to develop a protocol on PRTRs until the first meeting of the parties.
The ECO delegation supported WWF's call for a PRTR requirement and argued more generally for a clear obligation in Art 4 to actively inform the public. Examples of types of information which should actively be made available would include information relating to emergencies, and air quality information. REC proposed to add situations where there are dangerous levels of pollution. Elaborating on the release of information in emergencies, REC argued that this should be done immediately and without delay, and referring to the Chernobyl disaster suggested that there should be penalties for failure to comply in such cases. WWF argued that any list of types of information should be non-exhaustive, and that information on policies should be included.
Various delegations (ECOs, Italy, REC) spoke about the need for effective systems for actively providing information. Italy supported provisions relating to the collection and updating of info and a system ensuring the flow of information (4.1a, 4.1b). REC mentioned in addition the need to process and publicise information.
Finland had a problem with information having to be collected and updated 'regularly', preferring that it be done 'continuously' to give greater flexibility (this may have been a language problem).
Several delegations (UK, Germany, Russia, Austria, Ukraine) opposed any requirement to designate officers to facilitate information and participation practices, believing that the text should not be too prescriptive or detailed. The UK accepted the system needed to be accessible and transparent to the public, but argued that designating officials to deal with the public was not the answer; rather the obligation to deal with the public should rest with the officials working on the actual issues. The Netherlands defended the requirement for designation of officials, pointing to its own national system where both the officials and the function are designated. Italy also stated that its national practice is to have designated officials, and argued that the text should go further in elaborating practical arrangements, possibly in an annex listing all possible measures to ensure implementation, though not necessarily making such arrangements obligatory. Belgium said it had no problem with designation of officials.
Some delegations also wanted clarification of what 'public registers' meant (Belgium, Germany).
Various proposals to amend the frequency of reporting on the state of the environment were made. Whereas the draft text (Art. 4.3) specifies three years, Germany wanted four, Italy two and the ECO delegation one year. The ECO delegation also proposed that the text should use the phrase 'state of the environment report' to make it clear that a specific reporting requirement was involved, and should elaborate on the minimum requirements for such a report, for example by stating that as well as presenting statistical data it should evaluate this data in the light of critical loads or environmental space constraints. The possibility of tying these national state of the environment reports into regionwide reporting being undertaken by the European Environmental Agency, and the advantages of developing a common methodology and avoiding duplication of effort, was mentioned. REC added the suggestion that changes in the state of the environment should also be included.
Regarding the active publicising of information, the ECO delegation proposed that the Convention should specify a certain target date, defined in relation to the entry into force of the Convention, for having certain categories of information publicly accessible electronically on a Website on the Internet. It was suggested that such a provision would be concrete, tangible and comprehensible to the public when the Convention is launched.
REC proposed that draft texts of international legal instruments (as well as adopted texts) should be covered by Article 4.4, as well as texts of national instruments (draft and adopted).
Regarding the proposal in the draft text that Parties should inform the public of the possibilities for submitting information to international bodies concerning non-compliance with international rules (4.5), the ECO delegation proposed a broader formulation whereby the public would have the right to initiate non-compliance procedures within international bodies. The UK was not in favour of such an approach, preferring that non-compliance mechanisms be decided on a case by case basis by the parties to an international agreement. The UK indicated its support for 4.5 as drafted.
With regard to the question of public reporting by entities whose activities have a significant adverse impact on the environment (4.6), WWF argued that this should be required rather than merely encouraged. Italy and Austria questioned the meaning of "significant adverse impact", and Denmark also called for more precision, especially as between positive and negative companies. Finland expressed concern about legitimising adverse damage, and suggested that the threshold for 'significant' should be harmonised throughout. The Chair warned against attempting to define these terms, pointing out that this had not been achieved with the Convention on Long Range Transboundary Air Pollution.
The Netherlands questioned the meaning of entities, asking whether it applied to both public and private bodies. WWF responded that 'entities' should encompass both public (including local and municipal) and private bodies. However, Germany felt that generally it should apply to public authorities only. The Chair reminded delegations that many companies voluntarily report certain types of information and recognise the value of this practice. Therefore, the Convention should push governments to create mandatory reporting requirements for private bodies.
3.2 Public participation (Art. 5)
The scope of 'environmental decisionmaking' was generally regarded as being central to this issue.
Several delegations felt that it was not possible to apply all provisions in Art. 5 to all types of environmental decisionmaking.
The UK pointed out that this was the first time an attempt had been made to draw up a legal regime applying to all areas of environmental decisionmaking, and that it may be necessary to distinguish between different types of decisions and apply different provisions to the different types. With this approach, the UK felt there may be scope for covering legislation and policymaking in the Convention, dealing with them in a different manner from other environmental decisionmaking.
Italy said it was not appropriate to have a public hearing for all decisions. REC said the current draft appeared to be based on the EIA model, being the only area where standards have been developed; and that different standards might be needed for different decisionmaking types.
The Netherlands also supported the idea of differentiating different types of decisionmaking.
GLOBE felt that some of the wording of Art 5 did not apply to legislative processes, e.g. 5.7 providing the right to a public hearing. (This prompted the Chair to remark that it would be difficult for governments to agree to provisions in relation to preparing legislation without consulting with parliaments.)
Belgium wanted more clarity on the types of decisionmaking covered.
Hungary described its procedures giving the public the opportunity to be involved in preparing legislation. All NGOs connected to the 'Green Spider' network can participate.
IUCN pointed out that there could be problems for countries such as the US in including legislative decisionmaking.
The ECO delegation and REC argued in favour of including international decisionmaking, legislation, policies, programmes and plans in the definition, as well as decisionmaking in the sphere of monitoring, implementation and enforcement. The ECOs also argued that the lists should be non-exhaustive. With respect to the special case of EIA, the ECOs proposed that 5.10 should be amended (and not deleted as Denmark had proposed) so as to make it clear that EIA should include public participation - this could not be taken for granted.
Denmark proposed that the 'permitting/licensing' types of environmental decisionmaking covered should be limited to those carried out in fulfilment of some international obligation, and warned that in the current climate of deregulation, there was a risk that over-burdening decisionmaking processes with public participation requirements could lead to further deregulation. Countries which had gone beyond their international obligations and developed detailed national provisions for licensing activities would be effectively penalised by having to expand the public participation aspects of these provisions as a result of this Convention. This might persuade them to get rid of their licensing systems - so in order to protect these systems, it may be necessary to limit the amount of public participation. Denmark supported the inclusion of public participation in policy decisions, including in this 'the enactment of procedures to establish legislation'.
With respect to the Danish proposal, the ECO delegation expressed its concern that this could remove a lot of important environmental decisionmaking from the scope of the Convention. Some other delegations expressed similar views, or said that the distinction between internationally-required measures and other measures could be difficult to make (Belgium, Finland, Italy, REC).
Slovenia argued for public participation to be extended to policies, programmes and plans, as is already partly provided for in Slovenia.
Germany did not want policies, plans, programmes or voluntary agreements to be included.
The UK questioned the ECO's proposal to include monitoring, implementation and enforcement of decisions in the definition of environmental decisionmaking, arguing that the access to information pillar would allow public participation in monitoring, and the access to justice pillar would do the same in enforcement. To this the ECOs responded that there is a big gap between having a role in the permitting process and going to court.
REC outlined the different phases in decisionmaking processes: preparatory, consultative, the decision itself, implementation, monitoring and enforcement. Denmark supported this analysis but said these are cross-sectoral, applying to any type of decision, rather than being types of decision(making?). With respect to enforcement, Denmark said the biggest problem is non-enforcement, rather than lack of public participation in enforcement.
Some delegations felt that 'policy-type' decisionmaking could embrace international decisionmaking (UK, Denmark) and legislation (Poland), rather than these being separate categories. This suggestion was taken up by the Chair in his summing up.
Several delegations (UK, Poland, Germany, Denmark) felt that types of decisions should be listed, either in the body of the text or in an annex.
The distinction between the decision and the decisionmaking process was raised by the Netherlands and then Denmark, both of which suggested a definition of the former might be useful. Poland also preferred to focus on the decision rather than the process. The ECO delegation expressed some concern that focussing on the decision, as opposed to the process, could lead to a narrowing of the period during which public participation could occur. Other delegations (e.g. Belgium) felt this was a separate question which could be addressed elsewhere, e.g. 5.5.
The UK floated a general proposal to have categories of decisionmaking which would be exempt from public participation requirements, analogous to the exemption provisions applying to the information 'pillar' (3.2). It was suggested by the UK that a strong basic obligation coupled with exemptions could be preferable to a weaker general obligation with no exemptions. The UK declined to submit concrete examples.
As regards the question of who should be entitled to participate, Italy felt that while wider public participation was the goal, there should be an obligation to prove an interest. It was generally not useful for individuals without an interest to have the right to participate. Italy was in favour of NGOs having the right to participate, in recognition of their special competence and their ability to represent the public interest. This was preferable to public authorities being overwhelmed by thousands of complaints from individuals. Italy also felt that the interpretation of what constituted an interest should go beyond material effects on property or health, so that appreciation of the local environment would be sufficient to claim an interest.
The Netherlands argued that the right to participate should not be limited to NGOs. Belgium noted the 'inconsistency' between the approaches in paras. 1 and 2 of Art. 5 ('any person' as opposed to 'affected persons').
Germany felt the scope of the information to be provided as part of the notification procedure ('any available information on [the environmental decisionmaking's] possible impact' - 5.2a) was too broad and needed clarifying.
As regards the timing of public participation, Denmark was in favour of public participation commencing early and seemed in favour of 'early' being taken to mean 'before a proposal was published', but pointed out that it could be difficult for the public to comment before a proposal was published as there would be nothing to comment on. Denmark also pointed out the paradox in 5.2c that providing 'information on the commencement of the procedure' was itself part of the procedure.
REC suggested that 'early' should be understood by analogy with the scoping phase in the EIA process.
Belgium felt that the important issue in relation to timing is when the period for public comment expires.
The ECO delegation emphasised the importance of timeframes for public participation being sufficient to allow the public the opportunity to obtain information necessary to have an informed input to the decisionmaking processes, taking into account the timeframes pertaining to the supply of information. Having minimum timeframes for public consultation which were significantly longer than the time limits applying to the supply of information by public authorities would be one way, though not the only way, to achieve this.
The UK supported the principle that the timeframes should be such as to give the public the opportunity to have informed input, but opposed the idea of fixed time limits across the board.
Russia supported Lithuania's written concerns about the meaning of 'reasonable timeframes' in 5.3, asking whether this phrase was used in other international instruments.
It was noted that there was some overlap between 5.2c and 5.4, and also between 5.3 and 5.5.
The ECO delegation suggested that 5.5 could be the place to say that public participation should not only commence early but that it should continue through the decisionmaking cycle into the post-decision phase of implementation, monitoring and enforcement.
IUCN pointed out that 5.6 could not apply to information generated during the public participation process (as this would not exist before the start of the process). It was proposed to re-word it taking this into account.
Finland sought clarification as to whether 5.6 put an obligation on public authorities to provide information already held, or to take more active measures.
Regarding the practical arrangements supporting public participation, the ECO delegation proposed that the final sentence of 5.3 be expanded into a separate para, providing requirements as to what the 'assistance' provided to the public should consist of. Denmark supported the idea of exploring this, but the UK had some concerns
Regarding 5.4, the Ukraine suggested deleting 'actively', and Belgium, Denmark and the Netherlands pointed out an element of duplication with 5.2c.
Regarding the scope of public input to the decisionmaking process, Poland proposed the addition in 5.7b of 'and the best environmental alternative'. The ECO delegation supported the Polish proposal, and defended the importance of consideration being given to alternatives, not only 'when appropriate' but as an integral part of a rational decisionmaking process.
Denmark warned that the 'no action' alternative in 5.7b could in some circumstances refer to the possibility of not cleaning up some already existing pollution.
Several delegations felt that 5.7 could be tidied up, and some (Russia, Denmark) felt it was too detailed and should be made more general.
Poland urged that 5.7f be re-worded, otherwise it could be understood to mean that if the public were not properly notified, it would also lose its right to express its views at a public hearing.
Russia felt comments from the public should not necessarily be written (5.7e).
Regarding the official response to public input, several delegations (Italy, UK, Denmark, Belgium) felt it was not necessary to provide an individual response to every person who had submitted comments. The Chair then emphasised that in that case, the decision must be published in such a way that the public can find out. REC said that all comments should be documented and made available for public inspection.
As far as the content of the decision is concerned, the ECO delegation put forward the wording agreed in Brussels calling for a reasoned decision addressing each of the substantive arguments raised in the process. Within this approach, it would be possible for public authorities to group arguments repeated by different members members of the public. Belgium supported the ECOs on this, pointing out that Belgian practice is something like this. However, Denmark and the UK opposed it, arguing that the decision should only be required to expose the reasoning behind the decision, not to respond to every other argument raised in the process.
As regards the timeframe for giving notification of a decision, the ECOs called for this to be done immediately and without delay at the time of making the decision, and REC and the ECOs pointed out the linkage in many jurisdictions with the limit on the period during which an appeal may be lodged.
As regards appeals proceedings in connection with the right to participate (5.9), the main questions raised were:
- who should have the right to appeal? (several countries, including Austria, UK, Netherlands, Germany and Denmark felt that not any member of the public should have this right - though the Netherlands also proposed that anyone who had exercised their right to participate by submitting comments should have the right to appeal);
- should appeals cover procedural matters only, or should they extend to the content of the decision? (the UK thinks only the former, perhaps Austria also);
- when could the appeal or challenge be made (the ECOs argued that it should be possible at any stage, Italy opposed this);
- should both administrative and judicial proceedings be available (ECOs and UK believe so), or just one or the other?
- should individual officials be liable or the public authority? (Denmark was concerned at the reference to challenging 'acts or failures to act by public officials', it would prefer a reference to challenging 'decisions because of acts or failures ...' etc.)
The ECOs emphasised that some form of temporary relief should be available to parties awaiting a decision on the substantive merits of the case. The Chair suggested that perhaps this would require a separate para, rather than being included in 5.9
With regard to the need to ensure that the public are not VICTIMISED as a result of exercising their rights under the Convention (5.11), the Ukraine preferred a non-binding 'should' rather than 'shall', and Italy proposed moving the idea to the preamble.
The ECO delegation supported the need for such a provision, illustrating its concerns by describing the case of Alexandr Nikitin, an employee of the Norwegian Bellona Foundation involved in research into the radioactive waste problems posed by the Russian nuclear submarine fleet. It was proposed that rather than moving it to the preamble, the para should be clarified and elaborated to spell out further obligations.
The UK also felt that the Convention should have a provision against victimisation in such cases and that this para could play a useful role if it was re-worded to remove or clarify ambiguous words like 'obstacles' (which at present could be taken to include 'lack of money').
In general, the position of countries on access to justice was quite positive. It now seems to be generally accepted as a third pillar of the Convention. On the other hand, some delegations described it as a sensitive issue and emphasised the diversity of judicial systems, implying that the Convention should not go too far in this area.
The ECO delegation pointed to access to justice as a means to tackle the general deficit in environmental law, arguing that it should be seen primarily as a preventive or deterrent tool, rather than 'end-of-pipe' technology.
As regards the scope of proceedings, some delegations (Germany, Denmark, UK, Bulgaria, Belgium, possibly Finland) clearly had concerns about the breadth or vagueness of the terms 'matters related to the protection of the environment' (6.1) and/or 'proceedings with respect to the protection of the environment' (6.5). Belgium felt the Lugano Convention might be a useful reference on this point. Others wanted clarification on the meaning of 'quasi-judicial'. The UK said that within its national context, this would cover administrative appeals to the Secretary of State and to tribunals. The ECO delegation argued that the scope of proceedings should embrace the right to challenge the decisions (including inaction) of public authorities and the activities of polluting companies in breach of environmental law, and the right to appeal (administratively and judicially) regulatory decisions (e.g. in relation to permit applications) as a third party on an equal basis with the developers.
Regarding the minimum requirements for proceedings (6.2), some delegations questioned the need for some elements on the list, these being part of the due processes of law (e.g. Belgium), but did not oppose the list. The ECO delegation said that the law to be applied should not be restricted to national law: sub-national and international law could also be relevant (6.2d); and that the court's decision should be public and in writing (6.2e). Denmark seemed to have a problem with the wording referring to interim relief, but did not elaborate on this.
On the issue of standing, a range of views was expressed. At one extreme, Germany felt this issue should be left to individual countries to determine. At the other end of the spectrum, the ECO delegation argued that the environment is a common interest of humankind, and that any person should be entitled to claim this interest in order to have access to the courts. In between, the UK was against universal standing, but felt that the courts should be generous in their interpretation of standing. Belgium spoke about its positive experience with its system, which since 1993 has allowed NGOs access to the courts, and said that this right had been used responsibly, the courts had not been flooded with environmental litigation. Italy also favoured giving NGOs easier access than the general public, and the Netherlands said that under its system, standing in the civil courts is restricted to NGOs. Italy also felt that with respect to individuals, the interpretation of what constituted an interest should go beyond financial or personal interests, so that an interest in the quality of the environment to be affected by the decision would suffice to give standing. Denmark felt it could be difficult for governments to defend a broader locus standi in environmental matters than applied in other matters.
Regarding costs, the Netherlands expressed support for low-cost access to the courts. Italy expressed concern that if the cost was zero, lots of people would go to court. The ECO delegation put forward the points in the text agreed in the Brussels declaration (para. 24) and proposed to add 'poverty' to the list of grounds which should not prevent access to courts. When clarification was sought on the meaning of 'legal services', the ECO delegation described public interest law centres and the kinds of measures which would support them (legal aid provisions, tax concessions), and the Netherlands described its system of 'rechtswinkels' (lawshops), reminding delegates that the text only called on Parties to 'encourage' legal services to support the public in proceedings. Denmark preferred to leave out the reference to legal services, so that the support would go directly to the public.
Belgium re-presented its proposal for a provision referring to the right to a healthy environment, and requiring each Party to guarantee the rights of public participation in environmental decisionmaking and access to environmental information. Belgium added that since there seemed to be consensus that access to justice should constitute a third pillar of the Convention, the right of access to justice in environmental matters should now be added to the proposal. By presenting it as an objective rather than as a substantive right, Belgium hoped it would now be acceptable to the meeting.
Several countries which had not spoken on this at the previous session now came out in support of it (Bulgaria, Hungary, Croatia, Portugal, Poland). Finland also supported it, and suggested that the text might go further by referring to a person's right to have the opportunity to influence decisionmaking concerning their environment (as provided for under Finnish law). Denmark and Norway, who had opposed it in the previous session, now supported it. The Netherlands described it as an interesting proposal, but pointed out that it was not formulated as a direct social right for every person. The Netherlands was willing to support a reference in the preamble but not as an objective.
However, the UK remained adamantly opposed to any reference to abstract rights in the Convention, preferring a more concrete approach. Its main concern was whether the right was 'justiciable', i.e. whether it could be used to take an action in the courts. If not, then it was unnecessary; if so, then it would pave the way for 'litigation about a concept which no one fully understands', which would be a waste of resources.
The UK was supported in this opposition by Ireland, where a Constitutional Review Group had recently advised against the inclusion of such a provision in the Irish Constitution. It was pointed out by Belgium that acceptance of its proposal would not require the insertion of the provision into national constitutions or laws, but this failed to persuade Ireland to drop its opposition. Germany also opposed the Belgian proposal. The European Commission suggested there might be problems for the EU as a potential Party but said it was too early to say as the Treaty review process is ongoing. The Chair confirmed that a number of similar ideas had been proposed within the IGC process. Belgium repeated the point that the proposal did not require specific constitutional provisions.
Switzerland also had some concerns about the proposal (partly with respect to its impact on the private sector, partly because it was not sure if it had the legal basis for such a right) and reserved its position. Switzerland also suggested it might be more appropriate to present this in the form of a resolution of the CSD to the UN General Assembly next year, with the prospect that those countries which were opposed to this in Rio might now have shifted in their thinking (though it is not clear how this would allay either of Switzerland's aforementioned concerns ...). Belgium pointed out that if the private sector were to have concerns about public participation, it would be more realistic to have concerns about actual practices rather than rights. The proposal would not have major financial implications.
REC informed the meeting of a survey of 13 CEE countries which had shown that in eight, the right to a clean and healthy environment is a constitutional right, and in a further three, it is provided for in law.
The ECO delegation welcomed the proposal but argued that it did not go far enough, because it failed to guarantee the rights in question. The meeting was reminded of the reference to the need to guarantee the rights to information and participation in the IUCN General Assembly resolution passed in Montreal the previous week.
On a proposal from the Chair, it was agreed to return to the matter later on in the negotiations (June '97 was mentioned).
When the final report was being adopted, Canada, which had been absent for most of the meeting, stated that had it been present when this was being discussed, it too would have been among the countries which reserved their positions on the Belgian proposal as formulated. Its objection was not one of principle, but of formulation. Given that Canada already indicated at the first meeting that it did not intend to get involved in the Convention, the motivation for this intervention remains unclear. At the June meeting, the Chair had indeed urged Canada and the US to remain involved at least to share their positive experiences with relatively open regimes, but this intervention was probably not what he had in mind.
3.5 Definition of the environment
The ECO delegation, supported by the UK, proposed that there should be a definition of 'the environment', which would form the basis for the definitions of 'environmental information' and 'environmental decisionmaking'.
Finland cited the Lugano Convention as the only international Convention to have a definition of the environment. IUCN warned against having such a definition. Denmark was doubtful about the need for it, pointing out that many legal texts use the terms 'environment' or 'environmental' without ever defining them. The Chair proposed not to look into this further.
The EU Commission confirmed that it was in the final stages of preparing the request for a mandate to negotiate on behalf of the EU member states, and that it expected to have such a mandate at the next meeting.
The Irish delegation, representing the EU Council, stated that both the Commission and the EU member states should play an active role in the process, and that in particular, the Convention should seek to establish a regime at least as good as directive 90/313/EEC.
The ECO delegation, having been assisted by research undertaken by CIEL into this matter, presented its concerns in connection with this question, the main points being as follows:
- the EU institutions should comply with the provisions of the Convention;
- if the EU takes part in the negotiations, it should do so only with respect to the EU institutions, leaving the member states to negotiate with respect to their own provisions;
- under no circumstances should the adoption of a common position by the EU countries during the negotiations lead to a lowest common denominator approach;
- if the EU does develop a common position, the process of doing so should be characterised by the same degree of public participation and transparency as the negotiations in general.
The ECO delegation proposed that Art 7.1 should refer to NGO participation in meetings of the Parties. The UK and Denmark supported the principle of NGO participation, but the UK wondered if this might be better dealt with in the rules of procedure rather than in an article.
The proposal in the draft text to allow for public participation in a mechanism to support compliance with the Convention proved controversial (7.2f).
Poland supported the proposal, and proposed that it be elaborated with a requirement for mandatory reporting by Parties on progress in implementing the Convention, with the possibility of independent reviews being undertaken by ECOs. Belgium and Italy also supported the principle of having public involvement in the mechanism.
However, Germany was opposed to any reference to public participation in this para, and the UK described it as 'a difficult and thorny topic' which was a cause of concern and should not be allowed to hold up the Convention.
The ECO delegation supported the Polish proposal and asked why certain delegations found the public participation requirement so problematic in this case when they had recently agreed to third party, non-governmental involvement (in this case, the business sector) in a non-compliance mechanism for the Multilateral Agreement on Investment.
No delegations spoke out against having a non-compliance mechanism, though some felt it should be dealt with in an Annex, or added after the Convention was adopted. Finland suggested looking to the field of human rights for examples of incorporating public participation in non-compliance mechanisms.
- Accession of Non-ECE Countries
It was proposed that provision be made for non-ECE countries to become signatories to the Convention. No one disagreed.
The ECE Secretariat presented a list of relevant international instruments, and the meeting was invited to make further suggestions.
Denmark expressed its disappointment that the list did not cite the relevant extracts. The Secretariat will attempt to produce a longer list, citing relevant extracts, for the next meeting.
The ECO coalition offered to assist by providing the partially completed list of relevant instruments compiled on its behalf by EMLA.
AUSTRIA: Written submission very slightly tending to weaken text but mainly neutral. Mentions differentiated timeframe for responding to information requests, but time limits are excessive (one month, two months).
BELGIUM: Once again, Belgium played a very positive role in its interventions, giving an excellent presentation of its paper on the rights issue. It supported the designation of officers, the obligation on authorities to give a reasoned decision, a broad interpretation of standing where access to justice is concerned, and the principle of public participation in a non-compliance mechanism.
However, the written comments submitted by Belgium were far less positive. (Most of these related to parts of the text which were not discussed during the meeting.) They included a proposal to exclude legislative bodies from the scope of the Convention, opposition to the already vague requirement on Parties to support 'groups' (2.6) and support for the commercial confidentiality exemption provision even where the information sought concerns actual emissions to the environment. Most notably, Belgium's position on time limits is arguably even more conservative than that in the EU directive 90/313/EEC. It proposes a two-month time-limit which should merely apply to the response to the requester, not to the actual provision of information.
BULGARIA: No clear picture emerged of what Bulgaria wants from this Convention. It was one of the countries supporting 'rights'.
CANADA: Not represented until the final day, its only significant contribution was negative when it expressed its reservations about the Belgian proposal on rights (see 'Rights' above).
DENMARK: One of the most active delegations in the negotiations, with a tendency to dig into paradoxical and problematic areas. Some interventions were positive (e.g. supporting 'rights', public participation in policy-type decisionmaking including the enactment of procedures for preparing legislation, public participation in meetings of the Parties), some negative (e.g. proposal to limit range of 'permit-type' environmental decisionmaking to that which is in fulfilment of an international obligation, against obligation to publish reasoned decision addressing all arguments raised, problem with interim relief) and many were attempts to seek clarification.
FINLAND: generally positive (e.g. proposing to go further on 'rights') or neutral/clarifying.
GERMANY: appears to be heading for the cactus award, to be conferred on the country playing the most consistently negative role in the negotiations. Among the positions adopted by Germany were: a minimalist approach to access to justice, with the issue of standing left to individual countries to determine; opposition (at least provisionally) to any PRTR requirement; opposition to any reference to rights in the Convention; exclusion of public participation from policies, programmes, plans and voluntary agreements; opposition to any requirement to designate officers; reduced frequency of state-of-the-environment reports; and opposition to allowing public participation in any non-compliance mechanism.
HUNGARY: Gave positive example of NGO involvement in preparation of legislation.
IRELAND: Proved disappointing on the 'rights' issue. Some small comfort in statement (as EU Presidency) that Convention should not go less far than directive 90/313/EEC.
ITALY: played an active and for the most part positive role, supporting stronger 'active' information provisions (including more frequent state-of-the-environment reports), recognition of the role of NGOs, and public participation in non-compliance mechanism. Italy's main concerns seemed to come from the fear that officials could be overrun by complaints from individual members of the general public, hence its support for focussing on NGOs.
LITHUANIA: Its written submission contains some good suggestions but it is a pity it is not supporting a PRTR requirement.
NETHERLANDS: Provided useful examples of good practice (designation of officials, rechtswinkels), supporting role of NGOs but otherwise cautious on 'standing' issue.
POLAND: Generally positive, with some useful proposals on the consideration of best environmental alternatives and public participation in a non-compliance mechanism.
RUSSIAN FEDERATION: Position still not very clear. Lukewarm on PRTRs, opposed to Convention being too prescriptive.
SLOVENIA: Provided good example of public participation being extended to programmes, plans and policies.
SWITZERLAND: Not very active, pity about that reservation on the 'rights' issue.
UK: One of the most active delegations. A mixed performance, with some useful conceptual clarifications (e.g. on environmental decisionmaking). Remains adamantly opposed to including 'rights' in the Convention, is against public participation in non-compliance mechanism, does not want a reasoned decision to address all arguments raised in the process and is against designation of officials. On the other hand, it showed support for covering legislative and policy decisionmaking, supported the principle of an anti-harrassment provision, supported reasonable timeframes for public participiation and was in favour of both judicial and administrative proceedings in reviewing public participation procedures.
UKRAINE: Written submission was more or less neutral, interventions in the meeting very slightly tending to weaken the text.
OTHERS: ALBANIA, CROATIA, CZECH REPUBLIC, FRANCE, GEORGIA, LATVIA, NORWAY, PORTUGAL, SPAIN, SWEDEN: These countries kept a low profile.
ABSENT: ANDORRA, ARMENIA, AZERBAIJAN, BELARUS, BOSNIA & HERZEGOVINA, CYPRUS, ESTONIA, GREECE, ICELAND, ISRAEL, KAZAKHSTAN, KYRGYZ REPUBLIC, LIECHTENSTEIN, LUXEMBOURG, MACEDONIA, MALTA, MOLDOVA, MONACO, ROMANIA, SAN MARINO, SERBIA & MONTENEGRO, SLOVAKIA, TAJIKISTAN, TURKEY, TURKMENISTAN, USA, UZBEKISTAN.
5. ORGANISATIONAL AND PROCEDURAL MATTERS
Meetings of the ad hoc Working Group have been scheduled as follows:
11-13/12/96 (preceded by drafting group meetings 9-10/12/96)
17-20/2/97
17-20/6/97
7-10/7/97
29/9 - 2/10/97
It was agreed that two drafting committees would meet on the 9th-10th December 1996 (i.e. immediately before and running into the next plenary session). One of these committees will focus on access to information (Arts. 3 and 4 and the definition of 'environmental information' in Art. 1); the other will examine the concept of 'environmental decisionmaking' and the implications for public participation (Art. 5). NGO representatives will be entitled to participate in both committees. All delegations are at liberty to submit textual proposals, which the Secretariat will bring to the attention of other delegations. It is hoped that these drafting committees will produce draft texts for the plenary to work with.
The meeting failed to elect a vice-chairperson. Following precedent, it is presumed that the vice-chair(s) should come from the East when the chair is from the West. Poland, Bulgaria and Russia are each believed to be interested in putting forward candidates. The meeting was invited to return to this at the start of the next meeting, and elect up to three vice-chairs.
*************
12.11.96
*************
mara.silina@foeeurope.org - Public Participation Campaign - webmaster