12-16 January 1998

SUMMARY ECO REPORT ON THE 9TH SESSION

Prepared by Jeremy Wates, European Environmental Bureau

with input from

Katy Brady, Foundation for International Environmental Law and Development, and Steve Stec, Regional Environmental Center for Central and Eastern Europe

INTRODUCTION

During the 9th session of the negotiations over the draft Public Participation Convention, the Working Group went through the entire text of the draft Convention, including parts of the draft which had never been discussed in the plenary such as the preamble and the annexes.

It had been expected that the 9th session would be the last session of the Working Group. However, at the beginning of the meeting, the Chair announced the intention to hold a 10th and final session, which will take place 3-6 March 1998, shortly before the text is due to be considered by the Committee on Environmental Policy (16-18 March).

At the end of the session, the meeting agreed a checklist of points which are open for discussion at the 10th session - the implication being that issues not on the checklist will not be admitted for discussion.

GENERAL ISSUES

NGO participation in the session

At the beginning of the meeting, the Environmental NGO Coalition delivered a general statement concerning the lack of transparency of the EU Member States' participation in the negotiations due to increasing co-ordination of EU positions in secret, and the importance of not weakening the draft Convention even further, particularly (at this stage) as regards the application of the public interest test to information requests and the provisions on pollutant release and transfer registers and non-compliance.

As on previous occasions, the NGOs played an active role throughout the meeting, and were frequently supported by the REC, which had also made a significant contribution to the NGO preparatory process before the meeting, in particular through its programme of national roundtables on the Convention held in many CEE and NIS countries.

Article 1

After a brief and unsuccessful attempt by Moldova to make the reference to protecting the right of every person to live in an environment 'adequate to his or her health and wellbeing' less anthropocentric, it seemed that there was consensus on this important provision.

However, in a dramatic last-minute announcement during the adoption of the final report, the UK reported that it had belatedly received instructions to oppose this provision. (During the early stages of the negotiations, the UK had opposed such a provision, but following the collapse of the Conservative government in May 1997, it had reserved its position and then, at the 8th session, had come out in support of the provision, proposing only minor amendments to it. So this announcement at the end of the 9th session represented a complete reversal of what had seemed to be the new policy under the Labour government.)

Article 2(b)(i)

Germany once again proposed that the definition of public authorities be restricted by limiting the elements of government referred to in Article 2(b)(i) to those 'having responsibilities for the environment'. Poland, for completely different reasons, also wanted to open the discussion on this sub-paragraph, proposing to replace 'government' with 'governmental bodies' to avoid the interpretation that only the Cabinet of Ministers was covered. However, the Chair refused to open the discussion on the paragraph which had been well discussed in the past.

Article 2(b)(iv)

In early December 1997, the EU Commission received a mandate to negotiate on behalf of the European Community on matters within Community competence (primarily the information pillar and parts of the participation pillar).

The European Commission announced that the EU institutions had not yet reached a final position on how the Convention should apply to them. It therefore continued to reserve its position on the proposed inclusion of institutions of regional economic integration organisations in the definition of 'public authority'.

Article 2(c)(ii)

Germany attempted to re-open discussion on this definition, proposing to amend the reference in Article 2(c)(ii) to 'cost-benefit and other economic analysis and assumptions used in environmental decisionmaking' to 'cost-benefit and other economic analysis and assumptions essential for decisionmaking'. However, it gained no support.

New para in Article 3

Efforts to generalise the existing non-discrimination provisions in the information and justice pillars (preventing distinctions being made on the basis of citizenship, nationality or domicile) by replacing them with a general provision on this subject continued to prove problematic - one of the problems being a reluctance of governments to apply such a provision to the public participation pillar. A proposal to replace 'without distinction as to' with the formulation 'without discriminating on the basis of', which would have the effect of weakening the provision, made it possible for most governments to accept its application to the public participation pillar but failed to allay the concerns of Russia and Turkey.

NGO efforts to make the provision explicitly applicable to organisations, by adding a reference to an organisation's 'registered seat or effective centre of its activities', received some support (Finland, Norway) but were not taken up.

The text was left open for further discussion, with the Chair adding for discussion a similar draft provision in the public participation pillar, as an insurance policy in case the general provision falls.

Article 4.4, chapeau and tail

After some discussion, it was agreed that the exemptions listed in Article 4.4 may only be used if disclosure would 'adversely' affect the various interests listed. It was also agreed to keep the requirement in the tail that the exemptions be interpreted in a restrictive way. The main point of discussion was whether the requirement in the tail to take account of the public interest served by disclosure should be qualified by 'whenever possible', 'where possible', or neither. Most countries were either firmly opposed to any such qualification, or willing to accept its deletion provided the commercial confidentiality exemption was not further restricted. However, a few countries (Netherlands, Germany, Belarus and

Turkey) supported keeping one of the qualifiers in the tail. An EU compromise proposal to the effect that the restrictive interpretation of the exemptions should be done 'in view of the public interest in disclosure' also failed to gain consensus, though Germany was able to live with it. The matter remains open for discussion at the 10th session.

Article 4.4(c)

France proposed that the exemption for information the disclosure of which would adversely affect 'the course of justice' should be amended to refer to 'the confidentiality of judicial proceedings', but gained no support.

Article 4.4(d)

The question under discussion here was whether the commercial confidentiality exemption should be restricted in some way (other than by the already agreed qualifier 'where such confidentiality is protected by law'). Most countries that intervened (including several EU countries) were in favour of limiting the exemption, either by retaining the text in square brackets referring to a 'significant financial damage' threshhold (and in the case of Norway and the NGOs, by restoring text from an earlier draft requiring that such damage result from the information being used by a competing economic interest) or in some other way. However, the EU Commission, strongly supported by France, was opposed to any limitation on the commercial confidentiality exemption. Ukraine and Moldova wanted to delete the exemption entirely but seemed to believe that such information could still be withheld under other laws regulating business. The matter remains unresolved.

Article 5.8

An NGO-inspired provision requiring Parties to develop mechanisms 'with a view to ensuring that sufficient product information is made available to the public in a manner which enables consumers to make informed environmental choices' was agreed but with Russia and the EU Commission entering reservations (though several individual EU countries supported it).

Articles 5.9 and 10.2

The proposed obligation on each Party to 'progressively establish' a nationwide system of pollution inventories or registers was amended slightly but remains in square brackets, for discussion at the 10th session. It was only possible to reach agreement on indicative language describing in broad terms what the characteristics of such systems might be.

It was agreed that at the first meeting of the Parties, consideration must be given to what steps are necessary to develop such systems, including the elaboration of 'an appropriate instrument' concerning PRTRs. The more far-reaching text requiring the first meeting of the Parties to start the preparation of a PRTR protocol to the Convention was deleted.

Article 6.1 and Annex I

The list of activities in Annex I, to which the provisions of Article 6 automatically apply, was discussed and amended. NGO proposals to include production of protein feed additives, certain movements of waste, and deliberate release and contained use of genetically modified organisms where subject to a regulatory procedure gained some support and were included in square brackets for discussion at the 10th session. An NGO proposal to include all activities subject to an EIA, if not otherwise covered in the annex, was weakened so as to only include such activities where public participation is already provided for in accordance with national legislation (so it would bring such public participation procedures into line with the Convention, but would not introduce them if completely absent from certain countries' EIA procedures).

A German proposal to exempt from Annex I any projects for the development and testing of new products for less than two years was left in square brackets, qualified by an NGO-inspired phrase (also in square brackets) to the effect that the exemption would not apply where there was potential for irreversible effects on health or the environment. A Norwegian proposal to cover modifications to or extensions of Annex I activities remains in square brackets for further discussion.

The UK introduced a proposal giving Parties the possibility to exclude activities from Annex I for reasons of national defence or security. Whereas some countries felt that the defence exemption in the information pillar was sufficient to protect defence interests, others felt that there was some merit in the UK proposal (though some of these felt that the word 'security' was too broad). As this was considered to be an entirely new proposal for the Convention, the discussion was deferred to the 10th session.

With respect to activities falling outside the scope of Annex I, it was agreed that the provisions of Article 6 must also apply to decisions on proposed activities which 'may have a significant effect on the environment' - an improvement on the opening text which referred to decisions on proposed activities which 'may have an effect on the environment comparable to that of those [proposed activities] listed in Annex I'. However, this obligation is qualified in two ways: first, by a reference to 'in accordance with its national law'; and second, by a requirement that each Party determine whether a proposed activity is covered (which could be seen to give the Party discretion in the interpretation of 'significant')

Article 7, 8

Governments were willing to make a stronger commitment to public participation in plans and programmes than in policies. Thus it was agreed that each Party must 'make appropriate provisions for' public participation during the preparation of plans and programmes (the opening wording had been 'promote'), whereas as with respect to policies, a weaker formulation was chosen: 'To the extent appropriate, each Party shall endeavour to provide opportunities for public participation ...'

Public participation in general rules was not supposed to be up for discussion at the 9th session. A brief attempt by the NGO Coalition to extend the scope of the provision so as to cover the preparation at executive level of rules and regulations which would later be adopted by the legislature did not succeed. However, Denmark circulated a written proposal which would strengthen the force of the provision but make it possible to restrict participation to concerned organisations (as distinct from the general public). This will be discussed at the 10th session.

Article 9.2

Whereas the 8th session had agreed a text in Article 9.2 setting out how the access to justice provisions would apply to alleged breaches of public participation rights in connection with decisionmaking on activities (Article 6), the question of how such provisions would apply to other categories of decisionmaking (policies, plans, programmes, general rules) had been left open with a square-bracketted reference to 'other relevant provisions of this Convention'. In the event, the 9th session was only able to agree on a very weak formulation to the effect that the access to justice provisions would only apply 'where so provided under national law'.

Article 10.3

A proposal that the Meetings of the Parties should be able to establish financial rules governing the funding of activities under the Convention, and to adopt a budget, proved to be one of the most divisive issues of the session. Some delegations (e.g. Italy, Denmark, Turkey, Finland, Norway, NGOs) felt that this was a crucial issue for successful implementation of the Convention, especially in countries in transition. Others (e.g. UK, France, Germany, Switzerland) were equally vehemently opposed, preferring that financing decisions and the setting of priorities should all take place under the common umbrella of the ECE's Committee on Environmental Policy and arguing that if costs were involved, this could deter countries from ratifying the Convention. Neither the fact that the draft text only provided for the possibility of financing activities under the Convention ('may establish'), nor the proposed addition of a requirement that any decision to establish financial rules or adopt a budget be taken by consensus, did anything to mitigate the opposition of the latter group. A reduced text was left in square brackets for further consideration at the 10th session.

Article 10.4

The idea that NGOs should in principle be entitled to participate in Meetings of the Parties was not contested during the session. The main issues under discussion were what the threshhold should be whereby the Meeting of the Parties could refuse the participation of a particular NGO; whether NGOs should have the right to be 'represented' or to 'participate'; and whether NGOs should be considered 'observers' or 'participants without the right to vote'.

Regarding the threshhold, objections by 'one third of the Parties present in the meeting' emerged as the compromise, after Russia withdrew its proposal that any single Party should be able to block an NGO request to participate. An NGO proposal that objections by Parties to a particular NGO should be 'reasoned' did not gain sufficient support. It was agreed that the entitlement of NGOs should be 'to participate' rather than 'to be represented', and that practical issues around NGO participation could be resolved through the rules of procedure. The issue of 'observers' versus 'participants without the right to vote' was left unresolved, with both options kept in square brackets.

Article 14

The discussion on this topic began with two alternative texts in the consolidated draft and a third proposal from Belgium (annexed to the report of the 8th session). Each of these texts included an obligation on the meeting of the Parties to establish, in one form or another, a non-compliance mechanism for the Convention, to which the public would have some degree of access. Several countries supported working on the basis of one or more of these proposals. However, due to pressure from Turkey, France, Russia, Belarus and Switzerland, the obligation was weakened to 'shall consider the establishment of...', and there is no obligation to provide any degree of public participation in or public access to the mechanism (it was agreed that such a procedure 'may' include consideration of communications from members of the public). A Belgian fallback proposal drawn from experience in the human rights field, whereby the concept of an effective non-compliance mechanism would be retained in the text but it would be optional for Parties to make a declaration choosing to submit to it, was not taken up. The resulting text, which remains in square brackets, is probably the weakest of all the options considered throughout the negotiations.

POSITIONS OF DELEGATIONS

No strikingly new patterns emerged during the meeting as regards countries' positions, when compared with the 8th and previous sessions (see full ECO report for more detailed information on country positions).

The role of the EU

In early December 1997, the EU Commission received a mandate to negotiate on behalf of the European Community on matters within Community competence (primarily the information pillar and parts of the participation pillar).

During the 9th session, the NGO coalition, through its EU members, attempted to engage in a dialogue with the EU Commission and member states to resolve the problem of lack of transparency in the EU co-ordination process. This involved the EU-based NGOs at one stage attempting to attend an EU co-ordination meeting, and being asked to leave. The EU countries were not prepared to admit the NGOs to co-ordination meetings, but did agree that a troika consisting of the UK, Belgium (on behalf of Luxembourg) and Austria, representing the present, past and future EU Presidencies, together with the Commission, should meet with the NGOs as and when necessary to attempt to resolve the issue. One such meeting took place at which the NGOs made a set of demands relating to the basis for excluding NGOs and the possibilities for more transparency, the response to which is awaited at the time of writing.

Whereas the issue of EU co-ordination in closed meetings continued to be a problematic factor, it was noticeable that on several issues the EU countries had failed to reach a common position, and sometimes the EU Commission took positions at odds with those of EU member states.

MINISTERIAL RESOLUTION

Independently from the Working Group meeting, the ECE convened a small meeting to discuss the possible content of a Ministerial resolution which would accompany. The meeting discussed a draft text prepared by the ECE and a revised draft was produced after the meeting, taking into account the comments made. The NGO coalition argued that such a text should not be discussed too soon, as it could become a soft option for governments to put certain important elements in the resolution instead of in the draft Convention. It was generally felt that the question of whether there should be a separate resolution or whether the content of the resolution should be incorporated as part of the general Arhus Ministerial Declaration should be left open for the time being.

Note: textual references correspond to the post-PPC8 consolidated draft text, i.e. the opening text for PPC9.

 *************

Summary list of outstanding points in the draft Convention which are open for further discussion:

Title

2(b)(iv) and tail - EU institutions, ref to 'institutions' in exemption of leg/jud bodies
3 - new general provision on non-discrimination
4.4(d) and tail - comm conf exemption and public interest test
5.9 - PRTR obligation
6.6 - Italian proposal to extend info to be made available in pp context
6.7 - applicant to be present at public inquiry
6 - new pp provision on non-discrimination (alternative to gen prov)
6 - UK proposal for exemption of defence-related issues from pp pillar
8 - title
8.1 - Dk proposal for slight strengthening of pp in general rules
10.3 - financial rules (will the Convention have a budget?)
10.4, 10.5 - NGO participation in Meetings of Parties
14.4, 14.4bis - expedited procedure for amending annexes
14bis - non-compliance mechanism
Annex 1 - new items on movement of waste, and GMOs
- limited exemption of product testing
- extension or modification of activities

[NB Article and paragraph references here correspond to the post-PPC8 consolidated draft - let me know if you want a copy of this. The official list I send out next week may have different numbering, corresponding with the post-PPC9 consolidated draft.]

[Back] [Home]

mara.silina@foeeurope.org - Public Participation Campaign - webmaster