Please find following a summary report on the 8th session of the Public Participation Convention negotiations held in Rome recently.

As you will see, we had quite mixed fortunes in Rome. On the positive side, we gained something like the right to a healthy environment, and made some small bit of progress on the access to justice provisions (though not regarding cost barriers). On the other hand, we lost some ground on the information provisions (e.g. dilution of the public interest test for exemptions and the right to specify the form in which information is provided). One of the most disturbing features of the week was the loss of transparency in the negotiations which resulted from the increasing co-ordination of the EU positions in secret.

For those wanting more information than is in the accompanying report (e.g. so that you can check up on all the things your government was saying), a longer report will be available from me on request and will also be posted on two Websites, hopefully within a week, at:

http://www.participate.org and http://www.ljudmila.org/retina/eco-forum/

What is not included in the attached report (because these reports are rather serious documents) is an account of a brilliant (well, we enjoyed it) evening of entertainment that was laid on by the NGOs but with the active participation of government officials. After a dinner generously hosted by the Italian government, we warmed up with a couple of songs on the Convention negotiations (the ones we rehearsed in Slovenia) and then launched into a short play (mainly scripted by Peter Roderick) on the '73rd session of the Working Group for a Convention on Access to a Bit of Information, a Little Participation of Some of the Public in a Few Decisions, and Access to Square Brackets', for which the main (in fact only) topic on the agenda was Annex 29 on 'The Right of the Public to Know What Officials Have Had for Breakfast'.

To make it a bit more interesting, the NGO delegation was acted by the German government negotiator; the Chair and Russia were each acted by NGOs; the ECE Secretariat acted Germany; the Italian and UK government officials acted each other (each trying to outdo the other in their caricatures of each other) ... and so on. And of course, in the spirit of effective participation, appropriate consultations were held with all governmental participants - in other words, they were given their scripts at short notice (during the dessert) with no opportunity to change the text. But in the event, they entered the spirit of it and turned out some star performances.

Then we ended the evening with 'The Battle Hymn of the NGOs', in which many of the government officials once again became citizens and sang as loudly as any of us.

Well, you can imagine the rest, but if that is not enough for you and you want to get the scripts, check out the Websites mentioned above or ask me for a copy.

Of course, next morning we all went back into the trenches and continued the battle. Maybe it was just an evening's entertainment....

Wishing you all a merry Christmas and a fruitful New Year.

Jeremy Wates

SUMMARY ECO REPORT

Prepared by Jeremy Wates, European Environmental Bureau with input from Peter Roderick, Friends of the Earth (England, Wales and N. Ireland)

The 8th session of the negotiations over the proposed UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking took place in Rome in the first week of December 1997.

The main outcomes were as follows:

GENERAL

   * Right to an environment adequate to health and wellbeing: The new draft text of the Convention now acknowledges 'the right of every person to live in an environment adequate to his or her health and well-being'. While this is more anthropocentric than the 'right to a healthy environment' wording originally proposed, the new text would represent a historic step forward in the recognition of environmental rights in international law. Reference to present and future generations is also included, which ECOs supported despite the (wrong) arguments that this could weaken the individual nature of the right. More generally, it was agreed that (as well as requiring certain procedures) the Convention should guarantee the rights to information, participation and justice in environmental matters.

   * The role of the EU: Increasing co-ordination of the EU positions in secret led to a significant loss of transparency in the negotiations during the session. The EU Commission is on the brink of obtaining a mandate to negotiate on behalf of the EU countries, at least for the information provisions of the Convention and some of the participation provisions. While the prospect of the EU becoming a Party to the Convention strengthens the logic of applying the Convention's provisions to the EU institutions and is for that reason to be welcomed, ECOs criticised the secrecy of the EU co-ordination process and urged the EU to develop more open ways of doing its work.

   * International bodies are not to be included within the definition of public authorities, except possibly in the case of regional economic integration organisations (principally meaning the EU), where the question is to be left open pending the EU Commission getting a negotiating mandate from the Council. The text still contains a weaker obligation on Parties to promote the application of the principles of the Convention in international fora.

   * Non-discrimination: Turkey made several efforts to oppose or weaken text which would prevent any distinction being made on the basis of citizenship, nationality or domicile when applying the provisions of the Convention.

   * Anti-harassment: Only Russia opposed a general provision preventing the penalisation, persecution or harassment of people exercising their rights under the Convention.

INFORMATION

   Most of the outstanding issues under the information pillar were resolved in the direction of more secrecy, less openness:

   * GMOs: Genetically modified organisms are now explicitly referred to in the definition of environmental information, following an ECO proposal.

   * Form of information: Most governments were opposed to any unequivocal obligation on public authorities to provide environmental information in the form requested by the public (electronic, paper), or to provide access to actual copies of documentation (as well as to the information contained in it). The resulting wording makes this little more than an aspiration.

   * Emergency situations: Many EU and NIS countries joined forces to oppose a requirement that information requests be answered 'immediately and without delay' where disclosure of the information would result in preventing or mitigating an imminent threat to health or the environment. Several of them argued that an active obligation to disseminate such information (to be discussed at the 9th session) would be sufficient.

   * Exemptions: Apart from agreeing to a general obligation to interpret most of the exemptions in a restrictive way, governments argued strongly against any narrowing of the specific exemptions under the information provisions. The meeting saw a significant weakening of the public interest test to be applied by public authorities using the exemptions, so that they would merely have to take account of the public interest served by disclosure - with no obligation to be guided by it - and for most of the exemptions, even this only 'whenever/where possible'.

   * Information not held: Governments also rejected the proposed requirement that information which a public authority is entitled to examine in connection with a regulatory function, but which it does not actually hold, should be available to the public on the same terms as information it does hold. So 'not holding' information (by deliberately leaving it on the premises of a private company) becomes another, unwritten exemption for public authorities to use.

   * Time limits for refusals: It was agreed that more or less the same time limits should apply for refusing information as for providing it, i.e. one month, with the possibility for extending this to two months where justified by the complexity of the information (in this case, no reference to the 'volume' of information). Reasoned notification of such an extension should be given.

PUBLIC PARTICIPATION

   There was no discussion on public participation in decisionmaking on activities, policies, plans, or programmes (they will be discussed at the next session).

   * General rulemaking: A reference to public participation in the making of legislation, regulations and other binding rules has been included in the text but only in more or less recommendatory form (Parties 'shall strive to promote'), and strictly limited to the executive stage (i.e. excluding the parliamentary stage). Bodies acting in a legislative or judicial capacity are excluded from the scope of public authorities covered by the Convention (an ECO attempt to clarify that it is only 'when' they are acting in such capacities that they are excluded did not succeed).

   * EIA: An article requiring public participation in environmental impact assessment (to the extent not already provided) was deleted on the understanding that its content can be brought up in the discussion of the public participation articles at the next session.

ACCESS TO JUSTICE

   The outcome of the negotiations on most of this pillar was slightly more satisfactory than for the information pillar - perhaps because the expectations were lower. However, little progress was made to tackle the crucial question of costs.

- In the information context:

   * It was agreed that in addition to review by the courts of decisions on information requests, a lower-level review or reconsideration procedure must be provided which is established by law, expeditious and free of charge or inexpensive.

- In the participation context:

   * The question of access to justice was only discussed in connection with public participation in decisionmaking on activities (i.e. not in relation to decisionmaking on policies, plans, programmes and general rules, though this has not been ruled out for future discussion).

   * Germany insisted on being able to restrict access to justice in connection with public participation to those who could show impairment of individual rights. However, Germany was put under pressure to accept a broad interpretation of standing and to accept that NGOs should be deemed to have rights capable of being impaired.

   * For countries not having the impairment of individual rights as a pre-condition of access to justice in their law, members of the public concerned having a 'sufficient interest' would be entitled to access to justice in connection with a public participation procedure. Environmental NGOs will not automatically be recognised as having rights to participate or seek access to justice on the basis of their objectives or activities. Governments will be able to establish requirements for NGOs to be counted among the 'public concerned', but these requirements must be established in national law. If NGOs promoting environmental protection meet such requirements, they shall then be considered to have 'sufficient interest'.

- In general:

   * A provision remains in the text requiring Parties to allow members of the public to have access to administrative or judicial procedures to challenge acts and omissions by private persons and public authorities which contravene provisions of a Party's national law relating to the environment. The flexibility (or limitation) in this 'citizen suit'-type of provision comes in the fact that it only applies where those members of the public 'meet the criteria, if any, laid down in .. national law'.

   * It was agreed that procedures providing access to justice should be fair, equitable, timely, not prohibitively expensive, and that decisions should be given or recorded in writing and, in the case of court decisions, publicly accessible. It was not agreed that procedures should be required to be open and transparent, or that decisions of non-court bodies should always be publicly accessible (only 'whenever possible'). Nor was it agreed that reasons should be given (except in connection with information refusals).

   * There was strong resistance to any firm provisions to overcome financial barriers to access to justice. Parties only have to 'consider the establishment of appropriate assistance mechanisms' in this regard.

COUNTRIES OVERVIEW 
                

Quite difficult:

Sometimes good,
sometimes bad:

Quite helpful:

Most progressive country:

the EU (when acting as a bloc), Belarus, Ukraine, France, Romania, Spain

Italy, Netherlands, Moldova, UK

Finland, Denmark, Belgium, Poland, Sweden, Hungary

Norway