| • COVERNOTE ON 6TH PPC REPORT |
| Dear Friends, Please find in accompanying messages the ECO
report on the 6th session of the negotiations for the new Convention on Public
Participation. Also accompanying is a report of a meeting between BUND (FoE
Germany) and the German Environment Ministry to discuss the Convention. As you know,
Germany has been one of the most difficult countries in the negotiations so this report
might be of interest to some of you. The report, and Germany's performance in the small
drafting group last week, give some small grounds for optimism on that front. Yours sincerely, Jeremy Wates |
| • ECO REPORT FROM 6th NEGOTIATING SESSION AND PREPARATORY MEETINGS | |
Proposed UN ECE Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking Geneva, 7-11/7/97 Prepared by Jeremy Wates, European Environmental Bureau, on behalf of the ECO delegation to the negotiations, [Note: Parts of this report should be read in conjunction with the 'Draft Elements (CEP/AC.3/R.1) , the draft prepared by the small drafting group in April (CEP/AC.3/R.4) and with other documentation which is available on request.] The 6th session of the ECE Working Group for the preparation of the draft Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking took place on 9-11/7/97. It was preceded by a two-day informal meeting (7-8/7/97). The informal meeting, which was chaired by Francesco la Camera (Italy), focussed on Articles 1 (definitions) and 2 (general provisions) and produced a new draft for those Articles. The plenary also addressed these issues, taking as a starting point the draft prepared by the informal meeting. The plenary then went on to discuss the new text for Article 3 (passive information) which had been produced by the small drafting group in April (CEP/AC.3/R.4). There were also brief presentations and/or discussions on the questions of rights, non-compliance mechanisms and pollutant release and transfer registers. The goal of both meetings was to remove as many square brackets as possible (square brackets indicate that the text inside the brackets is disputed). Reflecting the desire to increase the pace of the negotiations, when only one delegation opposed text, its opposition was relegated to a footnote - rather than having it reflected in the retention of square brackets. This obviously increased the pressure on isolated countries to drop their opposition to widely supported proposals. The small drafting group which met in April will meet in mid-August (with slightly expanded membership) to produce a complete consolidated new text based on the discussions which have taken place to date. This new draft will then form the basis of the discussions at the following sessions of the Working Group. 1.2 Overview of specific issues International bodies: The ECOs succeeded in introducing a new category (in square brackets) in the definition of 'public authority', namely, 'international bodies under the control or made up exclusively of Parties'. The proposal was predictably quite controversial and was referred to the August drafting group. The draft provision in Article 2 (General Provisions) requiring Parties to support the provisions of the Convention in international environmental decisionmaking processes involving parties who are not Party to the Convention was amended, with 'support the provisions' changed to 'promote the principles'. Also, the restriction to processes 'involving parties who are not Party to the Convention' was seen to be illogical and was removed. The issue of international bodies, including EU institutions, was the subject of a short informal dialogue session between the EU country delegations and an ECO representative. There was no response during the meeting to the ECO's request at the previous session to participate in the formal EU co-ordination meetings. Legislative and judicial bodies: There was general opposition from governments to including bodies acting in a judicial or legislative capacity in the definition of 'public authority', despite a plea from the ECOs and REC to leave the matter open until hearing the outcome of the GLOBE conference in Stockholm in September. Definition of environmental information: Most countries are now accepting a non-exhaustive list of elements of the environment (beginning 'such as'), with only the UK continuing to argue for an exhaustive list. A majority of countries are in favour of including human health and safety, the 'conditions of life' and cultural sites, inasmuch as they are or may be affected by the environment (only Russia, Germany and Moldova oppose this). During the discussion, it was agreed to include landscape on the list, but not to include built structures or climate. Germany has proposed that the middle strand of the definition should be limited to information on those factors, activities or measures which 'negatively' affect the environment (as in the EU directive), but was isolated in this position. The most controversial unresolved issue was whether 'economic or financial analysis used in decisionmaking' should be included. Time limits for information: In the discussion on time limits, most countries supported a 30 day time limit on the supply of information, with the possibility of extending this to 8 weeks from the date of the request where justified by the volume and complexity of the information requested. Only Germany wanted to retain a single 8 week option. There was a less clear majority in favour of an obligation to notify the requester of any extension of the period, and only the Netherlands supported an ECO proposal that such notification should include the reasons for the extension. A Netherlands proposal to have a time limit on the decision on a request (2 weeks, with the possibility for extending this by a further 2 weeks) received little support from other governments. However, a majority of countries favoured a 30 day time limit for refusals. Several delegations felt it was necessary to have a time limit on dealing with situations where the public authority does not have the information requested, though no specific proposals were agreed. Exemptions: Some countries felt that any provision for exempting information from disclosure should be subject to a public interest test (i.e. for the exemption to be invoked, the potential harm from disclosure would have to be greater than the public interest in disclosure); some felt that the public interest should only apply to certain exemptions and not to others; some felt it should not apply at all; and others claimed to be neutral on the issue. The matter was left unresolved. Regarding the specific exemption provisions, governments were united in defending exemptions relating to material in the course of completion, the confidentiality of the proceedings of public authorities (the only limitation being that it be 'specifically provided for under national law'), voluntarily supplied information (after a short-lived attempt to delete it by Norway and Denmark) and commercial confidentiality. The proposal to exclude emissions data from the commercial confidentiality exemption received no government support, though some governments (Norway, Bulgaria, Denmark) were willing to consider some limitations on this exemption. Otherwise, the main areas under dispute were intellectual property (Belgium and Norway in favour of deletion, Germany and Russia against), and whether communications between public authorities could be exempted under the 'internal communications' exemption (Denmark, Belgium and Sweden were against, Germany and the UK in favour). The only exemption where arguably some progress was made was in relation to matters under enquiry where all countries except Germany favoured limiting the enquiries referred to to those of a criminal or disciplinary nature. Requests for information not held: Two main options emerged with respect to situations where public authorities are asked for information which they do not hold: i) an obligation to pass the request on to any public authority known or believed to hold it, or responsible for holding it, and to notify the requester of this (onward referral plus notification - supported by Denmark, Netherlands, Finland and the ECOs); or ii) an obligation simply to inform the requester of where to seek the information (supported by Italy, France, Spain, Romania, Moldova, Belarus and Norway). In the end, there was consensus among governments (excluding Germany, which was against any binding obligation in this area) on a text giving each Party the choice between these options. Following an ECO proposal, several countries (Norway, Denmark, France) recognised the need to address the special case of information which no public authority holds but which a public authority is entitled to inspect in performance of a regulatory function. However, the notion was opposed by Germany, which wanted to draw the line at whether information was held or not (as in the EU directive). Procedure with refusals: Apart from the issue of time limits on refusals, there was a discussion on whether a refusal should be in writing if the request was in writing (only Germany against) and whether provision should be made for oral requests. Several delegations felt the provisions relating to oral requests were too detailed. There was general agreement that the refusal should inform the requester of their appeal rights. Charges for information: The two main issues here were i) whether or not charges should be limited to a 'reasonable' amount (Denmark, Belgium, UK and Norway supported the 'reasonable' ceiling, Russia, Poland, Kazakhstan, Ukraine and Armenia objected to the term, perhaps for translation reasons); and ii) whether or not there should be more specific restrictions on what items could be charged for (Denmark, Belgium, Norway, Poland, REC and ECOs supported a Czech proposal that charges should not include the costs of compiling or retrieving the information, whereas Italy, Spain and France wanted this left to national level). Italy proposed a compromise whereby charges would be limited to actual costs, but this was seen by some to avoid the issue of which costs could be included, and for different reasons failed to keep the UK happy, which raised the issue of commercially valuable information. Definition of environmental decisionmaking: The issue of defining 'environmental decisionmaking' was sidestepped by a widely supported proposal that it was not necessary to have a definition as such. Positions ranged from the view that the Convention should only deal with the specific categories of decisionmaking referred to in Articles 5-8 (Germany) to the view that limiting the scope to any decision having a significant impact on the environment was too high a threshhold (Netherlands), but resolution of these approaches was deferred for the time being. Support to NGOs and the wider public: Most countries were reluctant to make any commitment to giving concrete support to NGOs. The resulting wording - an obligation to give 'appropriate recognition and support' - is little more than a gesture. Some countries felt the Convention should change the administrative culture and wanted a reference to assistance being provided to the public (Belgium, UK, Bulgaria), whereas others did not (France, Germany, Spain). Only Sweden was in favour of retaining a more specific obligation in the information provisions requiring a public authority to assist the public in clarifying poorly formulated requests. NGOs without legal personality: The issue of whether NGOs without formal legal status should be recognised by the Convention was discussed under the definitions of 'the public' and 'the public concerned', and also under general provisions on support to the public. A majority of countries, led by the Netherlands, were opposed to any obligation to recognise or support groups without legal personality. Several others (Italy, Poland, Latvia) felt it was helpful to include such groups. Most countries favoured giving appropriate support to groups 'promoting the objectives of environmental protection' as opposed to groups 'performing tasks related to the environment'. The Convention as a 'floor', not a 'ceiling': The principle that the Convention should only establish minimum standards, leaving countries to go further if they wished, was confirmed (there had been a concern that Russia would oppose this) though there was some disagreement about the precise wording. Rights: Belgium presented a revised version of its earlier proposal for a new Article 1, referring to the right of every person to live in a healthy environment and introducing as the primary objective of the Convention the guaranteeing of rights to information, participation and justice in accordance with the provisions of the Convention. The proposal was co-sponsored by Denmark and Italy and in the limited time for discussion received a positive response. Only Germany expressed outright opposition to the proposal, stating that it had recently addressed the issue in a constitutional review process and had reached a different conclusion. The UK, previously one of the main opponents of a rights-based approach, reserved its position. Non-Compliance Mechanism: The UK and the ECOs separately circulated proposals for a Non-Compliance Mechanism (NCM) to support the implementation of the Convention. There was little discussion of the issue due to shortage of time. The UK proposal was reiterating its support for an NCM but arguing that the detailed provisions should be elaborated after the Convention had been adopted rather than in the Convention itself. The UK text made no reference to provision for public participation in the mechanism. By contrast, the ECO proposal, co-sponsored by REC, set out quite detailed provisions establishing a Non-Compliance Committee. Individuals or ECOs would be able to make complaints to the Committee alleging a violation by a Party of any provision of the Convention. Parties would be required to co-operate with its examination of complaints and, where found to be in breach of the Convention, to take the measures needed to ensure compliance. Some members of the Committee would have ECO expertise and its work would be undertaken in an open and transparent manner. Pollutant Release and Transfer Registers: The ECOs circulated a written proposal on Pollutant Release and Transfer Registers (PRTRs), containing: i) a basic obligation on Parties to establish national PRTRs, contained in a revised Article 4.6; ii) a new Annex to the Convention setting out the minimum elements which should be included in a national PRTR; iii) a requirement to start the preparation of a PRTR protocol at the first meeting of the Parties. Time did not permit any discussion of the proposal. It was annexed to the report of the meeting for consideration by the August drafting group meeting. EU Role: The EU Commission still does not have a negotiating mandate and is unlikely to have one before the 7th session. A short discussion was held between EU countries and an ECO representative on the way the Convention should deal with international bodies and specifically EU institutions. There was not yet any response to the ECO request made at the time of the 5th session for ECO participation in the EU co-ordination meetings. The ECO / Environmental NGO Coalition was represented in the plenary session by (including advisers): Jeremy Wates, European Environmental Bureau/Earthwatch (FoE Ireland) Olga Razbash, Public Interest Environmental Law Centre for Human Rights and Environmental Defence, Russia Peter Roderick, Friends of the Earth (England, Wales and Northern Ireland) and Earthrights, UK Steve Stec, Utrecht University, Netherlands / Public International Law and Policy Group, US. Also present representing other NGOs or quasi-NGOs were: Magda Toth Nagy, Regional Environmental Center (REC), Hungary Wolfgang Burhenne and Anders Hellsten, IUCN Henri Bandier, ICEL. Only Poland had an ECO representative within its delegation, notably Jerzy Jendroska of the Polish Environmental Law Association (also Vice-President of the Working Group). [In sections 3 and 4 of this report, it has been felt useful to distinguish between the informal group proceedings and the formal session of the Working Group. Paragraphs beginning [IG:] refer to the informal group meeting (and the paragraphs immediately following unless otherwise indicated), whereas those referring to the plenary begin [P:].] The definitions of public authorities, environmental information, environmental decisionmaking, the public and the public concerned were discussed and revised texts produced. [Unless otherwise indicated, paragraph references in sections 3 and 4 of this report refer to a document circulated by Italy primarily based on the Draft Elements (CEP/AC.3/R.1) but incorporating comments included in the official reports from the 3rd and 4th sessions of the Working Group and the report of the April drafting group.] 3.1 Public authorities (Art. 1(ii)) Having recognised the need for the definition of public authorities to cover bodies which are obviously governmental, the main discussions here were over the extent to which the definition should encompass: - bodies having public responsibilities (e.g. semi-state agencies); - privatised bodies under the control of governmental bodies; - international bodies; - bodies acting in a legislative or judicial capacity. Bodies having public responsibilities [IG:] One of the disputed issues here was whether the public responsibilities should be 'in relation to the environment'. The ECOs felt that any body with public responsibilities should be covered, whether or not those responsibilities related to the environment. If a body was acting with public money, it should be covered. The UK felt that the expression 'public responsibilities in relation to the environment' was too vague: everyone has such responsibilities. It proposed 'duties under national law for the protection of the environment'. The ECOs opposed the idea that the duties must relate to 'protection of the environment' - some bodies with public responsibilities might be engaged in activities damaging to the environment. Privatised bodies [IG:] Belgium and the UK supported the idea of privatised bodies being covered, with different formulations. The ECOs stressed that it should not just cover bodies 'under the control of' public authorities but also those 'supplying a service under the control of' same. The UK opposed a proposal to add 'or on behalf of' after 'under the control of'. [P:] The UK wanted it to be clear that 'under the control of' should not mean that private bodies would be covered just because they were obliged to comply with environmental regulations, and proposed to add 'over and above routine regulatory control'. However, the Chair pointed out that these words would exclude inspectorates of pollution. Legislative and judicial bodies: IG: All governments that spoke (Russia, UK, Netherlands, Germany) wanted legislative and judicial bodies to be excluded, though the Netherlands proposed to refer to bodies acting in a judicial or legislative capacity (as in the EU directive). Only the ECOs and REC argued against the blanket exclusion of legislative bodies, asking for the matter to be left open at least until the GLOBE conference of parliamentarians due to take place in Stockholm in early September. REC cited the Hungarian system of NGO participation in law-making, and said that as a minimum, the legislative functions of the executive branches of government should be covered. International bodies: [IG:] The ECO coalition proposed a new sub-paragraph covering 'international bodies under the control or made up exclusively of Parties'. This wording was included in square brackets following reservations expressed by Netherlands, Denmark, Romania and the European Commission. (A later request from the ECOs to move 'exclusively' to before 'made up' was not opposed but is not reflected in the resulting draft.) [P:] The ECOs presented the wording in the plenary but the Chair did not want to open a discussion, asking delegations to take it back to their capitals. (N.B. The wording proposed here was intended to cover EU institutions. It was later put to the ECOs outside the meeting that the EU institutions might not be under the control of the Member States and that a more explicit wording might be needed, either referring directly to the EU institutions or the institutions of economic integration organisations, or to international bodies to which Parties had transferred their authority.) Other issues Russia, supported by Uzbekistan, objected to the inclusion of the term 'local' in (a) ("Government at national, regional and local level"), explaining that under the Russian Constitution, local and municipal authorities are not included under the definition of governmental bodies. REC favoured retaining the reference to 'local' [IG], but it was agreed to substitute 'other'. During the discussion on the definition of public authorities, the Chair asked if the phrase 'in accordance with national legislation' could be removed from here and elsewhere in the text, as all provisions have to be in accordance with national legislation. Russia, which had previously proposed that this phrase be inserted in many parts of the text, felt it was premature to delete it but did not insist on it. Spain felt it could be useful in the definitions but not elsewhere. Several other delegations felt it was unnecessary or undesirable (Belgium, Ukraine, Denmark). The words 'under national law' were used in the definition. 3.2 Environmental Information (Art. 1(iii)) Elements of the environment (sub-paragraph (a)) [IG:] The first choice facing the meeting was between two alternatives for sub-paragraph (a): a longer, non-exhaustive list of elements of the environment (Option 1), and a shorter list which could be either exhaustive or non-exhaustive (Option 2). A majority of governments supported Option 2 (Belgium, Denmark, Albania, France, Russia, Netherlands, Norway, Moldova, Romania, Sweden, Bulgaria) but following complaints from the ECOs that Option 2 would represent a step back from Espoo and the EU directive, most delegations supported the inclusion of the words 'such as' to make it clear the list was non-exhaustive (Belgium, Denmark, France, Norway, Moldova, Sweden, Georgia, Latvia). Only the UK opposed 'such as', preferring the additional certainty of an exhaustive definition using 'namely'. Only Latvia, REC and the ECOs supported Option 1 (though Latvia not wanting 'built structures'). The UK, the Netherlands and Georgia said they could live with either option. It was decided to work with Option 2. [P:] In the plenary, the ECOs attempted to introduce climate, landscapes, cultural sites and built structures into the list in (a).Italy and Germany were against expanding the list at all, Italy arguing that it was now in line with the Sofia Guidelines. The Chair reminded the meeting that the group's mandate was broader than the Sofia Guidelines. The Netherlands felt the choice should be between starting the list with 'such as' or having a long list, but not both. [IG:] Several countries wanted to retain 'the state of' before 'the elements....' (Austria, Romania, Moldova, Netherlands), with only the ECOs objecting. Air, atmosphere, climate [IG:] Several delegations supported including both 'air' and 'atmosphere' (UK, Bulgaria, Romania, Latvia, ECOs and possibly Norway). Sweden asked if the ECOs were happy with 'climate' not being included (which they were not), but said it felt the other elements covered climate. [P:] Belgium, Germany and Albania felt that 'climate' was redundant as its components were covered. Armenia and Russia questioned whether it was necessary to have both air and atmosphere. Moldova said air would be sufficient. Poland supported having both, and the Chair pointed out that this had been discussed before and it had been felt necessary to have both. Built structures, cultural sites [IG:] Norway, while supporting Option 2, wanted built structures and sites of natural or cultural interest included. Georgia, REC and the ECOs also supported the inclusion of 'built structures'. [P:] In the plenary, Norway said it would not pursue its proposal to include 'cultural sites' in (a), it would be content with the reference to cultural heritage in (c), but if it were deleted from there, it would want to re-open the discussion on cultural sites in (a). Denmark argued that 'cultural sites' was part of the elements of the environment and should be in (a), whereas 'cultural heritage' included things like folk dancing, music etc which should at most be in (c). Switzerland, Finland, Albania and Austria were also in favour of including 'cultural sites' in (a) and Belgium could accept it.but Bulgaria and Russia were against. Germany was against including built structures and historical monuments. Latvia was also against including built structures. However, Finland felt the built environment should be included. Landscapes [IG:] Norway supported the inclusion of 'landscapes'. [P:] In the plenary, Denmark, supported by Russia, Switzerland, Albania, Finland and Poland also proposed that landscapes should be included. Belgium, Belarus and the Netherlands were willing to accept this. The Chair proposed to add 'landscapes' to the list but Italy objected, saying it could accept landscape in (c). Moldova also objected to landscapes. The Chair persisted and the objections were footnoted. [IG:] Denmark wanted 'biological diversity and its components' instead of biological life, which was eventually supported. Bulgaria wanted to add 'soil and natural resources'. ('Soil' was added but not 'natural resources'.) Bulgaria and Georgia supported retaining 'and the interaction among these elements'. Factors, activities or measures affecting the environment (sub-paragraph (b)) [IG:] Under sub-paragraph (b) dealing with factors, activities or measures affecting the elements of the environment, Belgium had proposed to list 'substances, energy and micro-organisms' as examples of 'factors'. Germany was opposed to referring to micro-organisms, as this would cover medical research. This was supported by Lithuania (also wanting to refer to 'factors of pollution'). Moldova, supported initially by Russia, Romania and Bulgaria, proposed listing 'substances, energy and noise' alongside 'factors' (rather than as examples of factors). Russia said 'factors' was not clear in translation. The Moldovan proposal was opposed by the UK and the ECOs. [P:] Most countries felt it was useful to keep 'substances, energy, noise and radiation' as examples of factors (Denmark, Netherlands, Sweden, Lithuania, Hungary, UK, ECOs), exceptions being Moldova and Russia. Most were also in favour of (or willing to accept) the deletion of 'micro-organisms' (especially Germany, Kyrgyzstan, Moldova). [IG:] Russia wanted to delete the reference to voluntary agreements, as this mechanism does not exist in Russia. Netherlands, supported by Norway, Romania and the ECOs, proposed to use the term 'environmental agreements', which was accepted. [P:] Germany, France, Switzerland, Spain and Russia wanted to delete the reference to 'economic or financial analysis used in environmental decisionmaking'. Italy, Netherlands, Norway, Sweden, Lithuania (citing the context of sustainable development) and the ECOs defended this phrase. The UK, Austria and France reserved their positions (the UK having opposed it at previous meetings). Belgium could accept it but preferred 'cost-benefit analysis ..' as an alternative. This was supported by Romania and (as a compromise) by Switzerland and Germany but opposed by Italy and the ECOs, which pointed out this was a quite limited type of economic analysis. The ECOs also questioned the limitation 'used in environmental decisionmaking'. The whole phrase remained in square brackets. Germany wanted to add 'adversely' after 'affecting' but gained no support for this. A slightly amended German proposal (using 'negatively') was footnoted. The ECOs pointed out that the phrase 'the elements referred to in sub-paragraph (a)' was ambiguous: under a restrictive interpretation, it could be taken to only refer to those elements explicitly referred to as examples. The ECOs proposed to use the phrase 'elements of the environment' instead. This seemed to be agreed but was not reflected in the final text or footnotes. Similarly, a Danish proposal to move 'affecting or likely to affect etc' to the end of the sub-paragraph seemed to be agreed but did not happen. Russia reserved its position on the entire sub-paragraph (b). Human health and safety, cultural heritage etc (sub-paragraph (c)) [IG:] Regarding sub-paragraph (c) referring to matters such as human health and safety, quality of life and so on, Germany, Russia and Moldova wanted to delete this sub-paragraph altogether and the UK entered a 'study reserve' but most delegations wanted to retain it in some shape or form. [P:] Germany was concerned that human safety might include industrial safety. Ukraine supported 'safety', saying it should include radiation safety. Bulgaria also supported human health. Both the Chair and the ECOs reminded the meeting of the European Ministerial conferences on environment and health establishing closer links between these areas. Bulgaria proposed deleting the reference to 'information necessary to assess the impacts such as epidemiological and toxicological data', but Italy and the ECOs defended these words, the ECOs pointing out that causality was often not established when information was sought. Russia was against referring to cultural heritage: the leaning tower of Pisa or a picture gallery were nothing to do with deterioration of the environment. Denmark proposed 'cultural sites' instead, citing the UNESCO Convention on cultural and natural heritage, but said it felt this phrase should really be in (a). The Netherlands felt 'quality of life' was too vague. Belgium proposed 'conditions of life'. Belgium, supported by the Netherlands and Italy, wanted (c) to refer to the impact of the elements of the environment in (a) on the items listed in (c) as well as the impact of the factors, activities etc of (b) on the elements of (a). Along similar lines, Denmark felt that the interactions within (b), and between (a) and (b), needed to be addressed. The ECOs, supported by Sweden, proposed that (c) should refer to the effects of the elements of (a) AND the factors etc in (b) ON the items listed in (c), and that the other issues raised by Belgium, Denmark and the Netherlands could be largely dealt with in (b) by adding 'and the nature and extent of such effects' at the end of (b). Against the Belgian approach, the ECOs argued it was essential to cover the effects of factors in (b) on the items in (c), otherwise a person could find out more about the impact of a polluting industry on plants, trees and other animals than its impact on human beings. This point of view was then supported by Italy and Netherlands. The matter was referred to a small drafting group (Bulgaria, Italy, Denmark, Belgium, UK, ECOs) which produced a revised text. In the drafting group, the UK did not want the definition to cover the effects of factors etc in (b) on the items in (c) except insofar as they were mediated through the elements of (a), but with this refinement, the ECO approach was found acceptable. This was presented to the plenary where 'human' was added before 'life' (Denmark). 3.3 Environmental decisionmaking (1(iii)) [IG:] The UK proposed that there was no need for a definition of environmental decisionmaking. Most delegations agreed, with Netherlands, Romania and the ECOs wanting to keep the option open. The ECOs felt it might be acceptable not to have such a definition as long as there were general provisions covering decisionmaking other than the specific categories of decisionmaking covered in Articles 5-8 (from the April drafting group). The Netherlands felt if a definition proved necessary, it should be a definition of 'environmental decision', not 'environmental decisionmaking'. [P:] In the plenary, Romania withdrew its reservation. Subsequently, the Netherlands entered a reservation over the deletion and both countries were referred to in a footnote. [IG:] The main point of contention here was whether or not the definition should encompass NGOs without legal personality. It was pointed out by Poland that such organisations are quite common, play an important role and are not covered by the term 'one or more natural or legal persons'. Denmark proposed referring to individuals instead of natural persons, and Italy, responding to Poland, felt that 'one or more individuals' would cover such non-registered groups. However, Poland argued that the group was different from the sum of individuals in the group. Netherlands, supported by Bulgaria, Romania and to some extent Belgium, strongly preferred to refer to natural or legal persons. Its system could not recognise 'individuals', and it did not feel it necessary or even possible to cover unregistered NGOs in the definition. On these grounds, it opposed a reference to 'groups'. Romania proposed a definition which distinguished i) the general public, ii) public interest organisations and iii) international or foreign NGOs. The ECOs saw the first two as useful categories but not the third. Later, Romania withdrew its proposal. [P:] The same arguments were made in the plenary over whether 'groups, associations or organisations' should be covered irrespective of whether they have legal personality. Germany, Spain, France and the UK added their support to the Netherlands' position, the UK arguing that unregistered groups could always use natural or legal persons to front them. Italy, Latvia, IUCN and the ECOs supported such groups being covered and Denmark and Belgium could accept it. Denmark said there was a trend in Denmark towards recognising groups without legal personality, granting them access to the decisionmaking process but not to the courts (where legal personality was necessary). To break the deadlock, the Chair proposed to add 'in accordance with their national legislation'. The ECOs said this would be acceptable with the addition of 'or practice'. The modified version was supported by Romania, UK and Sweden and accepted by the meeting. A linguistic problem mentioned by the Chair [IG] was the fact that from the definition, a public authority consulting with just one natural or legal person could say that it had consulted 'the public', which clearly was not the intention. It was proposed to leave the discussion about whether the Convention should refer to the public or to natural or legal persons to the August drafting group. [IG:], Italy and the Netherlands each put forward written proposals for a definition of 'the public concerned'. Discussion of these resulted in a new text with square brackets. Several delegations felt the definition was unnecessary (Russia, Austria, Germany, Belarus, Denmark). Most delegations seemed to support the idea that environmental NGOs should be within the definition, though the Netherlands wanted to only include those which were legal persons. The Italian formulation referred to 'accomplishing tasks relating to environmental protection', whereas the ECOs proposed 'promoting the objectives of environmental protection'. The ECOs emphasised that any definition of interest should be broad, not limited to material financial or health impacts. The UK and Norway supported this but the UK and Sweden felt it was implicit. The UK proposed 'sufficient interest'. This was opposed by the Netherlands, which felt it was too restrictive. 'Sufficient' went in square brackets. The Netherlands' proposal used the word 'directly' before 'affected', limiting the scope somewhat. This was supported by Denmark and ended up in the final text. [P:] After Italy presented the text from the informal group, Germany said it (Germany) uses different definitions of the 'public concerned' for different decisionmaking processes; it would not be feasible to have a single definition for all such processes. Russia did not want to have two types of public. Denmark felt the term would only be used in the public participation pillar, that different criteria would be used with access to justice. Belarus was also against having a definition. 4. GENERAL PROVISIONS (Article 2) [IG:] Several delegations felt that the text of Article 2 of Draft Elements was too long and could be substantially reduced (UK, Italy, Denmark, France, Belgium, Bulgaria, REC). It was proposed to make paras 1-3 into one para setting out the broad obligations of the Convention. The ECOs did not oppose this but asked for the retention of a reference to a 'clear and transparent framework'. A REC proposal to refer to access to justice in what remained of para 2 was accepted. [P:] The new text drawn up by the informal group was presented. Several countries (Belgium, UK, Poland, Netherlands, Italy, ECOs) felt that 'achieve the purposes' was too weak and preferred 'implement the provisions'. Poland and Bulgaria felt it was unnecessary to refer to enforcement here. Belgium, supported by Netherlands, wanted to keep a reference to enforcement but to refer to 'enforcement measures' rather than 'enforcement programmes'. Italy preferred to keep 'programmes'. Denmark and Italy supported retaining the reference to a clear and transparent framework. Russia, supported by Italy, wanted the basic obligation to be qualified by 'if necessary'. It was pointed out that this amendment could render the provision ineffective; instead, it was proposed to put 'maintain or establish' instead of just 'establish' to address this concern. Support to the public Regarding the second part of 2.1 of the report from the informal group (re the need for officials to support the public, formerly 2.3 of Draft Elements), Belgium, the UK, Denmark and Bulgaria supported this concept, saying it was necessary to change the administrative culture. Belgium said 'support' did not mean financial support and proposed 'assist' as an alternative.. However, Germany, France and Spain felt the text went too far. France and Spain said it was not the task of the Convention to change administrative culture. Spain said this part of the text should be recommendatory only. It was agreed that this text should be linked up with the final sentence of 2.3 of the report from the informal group (formerly 2.5 of Draft Elements) in a new paragraph. 4.2 General provisions on public participation [IG:] There were differing views as to whether general provisions on public participation intended to apply to all types of environmental decisionmaking (contained in paras 4, 4bis, 4ter and 4quarter of the opening text) should be part of Article 2 (Italy) or an opening Article for the public participation pillar of the Convention (UK, Netherlands, Poland, ECOs). It was eventually agreed to follow the latter course. Before this conclusion was reached, there was some discussion on the content, during which several countries opposed any general requirement that public participation should be provided for 'continuously throughout' the decisionmaking process (UK, Netherlands, Germany, Russia). Russia also proposed to remove the requirement that the public should be able to participate 'effectively', a term which it considered too vague, but was reminded that this term is used in the Sofia Guidelines. Regarding the 'threshhold' issue, the Netherlands felt 'significant impact on the environment' was too high a threshhold and wanted to delete these words, whereas Germany only wanted to refer to decisionmaking covered in Articles 5 to 7 (April drafting group text). ECOs, supported by Denmark, opposed the addition of 'in accordance with Articles 5, 6 and 7 of this Convention' and asked for these words to be in square brackets, indicating that there was not consensus on Germany's point of view. Russia proposed to delete the requirement that the public participation timeframes be 'reasonable', and to state that such timeframes give 'reasonable' time to the public to participate (rather than 'sufficient'). This was opposed by the ECOs and both options were left in square brackets. [P:] In the plenary, Denmark wanted to remove the whole paragraph to Article 5. REC and the ECOs, supported by Albania, pointed out that while the content of the current version of the paragraph was purely public participation material, earlier versions had been making the link between the information and participation pillars of the Convention (cf para 19, Sofia Guidelines), and that this important element of ensuring compatibility between the pillars (preferably all three pillars) had been lost. The ECOs were invited to put forward text for a paragraph in Article 2 on the need for compatibility between the three pillars of the Convention. Most countries felt the original paragraph (2.5) was too detailed and too prescriptive. The middle sentences of the paragraph were taken out as possible material for the preamble. There was a discussion over whether the first sentence should create an obligation to promote environmental education generally or just in relation to exercising rights under the Convention. In the end, an obligation to promote environmental education generally was chosen, but especially in relation to using the rights under the Convention. Italy, Belgium and UK supported 'shall' rather than 'should'. Germany was the only country to want a recommendation rather than an obligation, believing the question of environmental education to lie within the responsibility of individual states. This prompted Denmark to point out that Germany had already accepted an obligation regarding environmental education by subscribing to the Biodiversity Convention. Italy, UK and Latvia wanted Parties to be obliged to give 'advice' rather than 'training' to the public, whereas Lithuania preferred 'training' and REC wanted both. REC pointed out that where 'training' was used in the Sofia Guidelines, there was a reference to 'specified target groups'. The references to providing education, training and resources for officials were moved to a separate paragraph, together with the references to assisting the public in para 1. Moldova, supported by Romania and Russia, said the Convention should not put a questionmark over the qualifications of officials. REC pointed out that the idea was not to suggest that officials were stupid and that this was supposed to be in the context of maximising implementation of the Convention (rather than more generally). Some delegations were reluctant to refer to 'responsible officials' as this would imply that there were irresponsible officials. 'Competent officials' was proposed but it was noted that the same problem applied here. [IG:] The original text referring to support for 'groups' (Art 2.6) was criticised by the ECOs as being far too vague. It did not specify which types of groups were meant (Denmark also made this point) and the word 'appropriate' made it little more than a gesture. It was agreed to add a phrase qualifying the types of groups which were to be supported. Two alternatives were proposed: 'promoting the objectives of environmental protection' (which gained the most support) and 'performing tasks related to the environment' (supported by the Netherlands, which wanted the actions of such groups to bear out their objectives). The latter option was criticised by the ECOs as giving too much discretion to public authorities. [P:] In the plenary, the ECOs, supported by Belgium, Russia and Switzerland again defended 'promoting the objectives of environmental protection', with only Belarus opposed to it. Netherlands could accept it but wanted to add 'and act in accordance with thier objectives', but this was opposed by Belgium, Denmark and Switzerland. [IG:] On the issue of 'appropriate', most delegations were reluctant to remove this qualifier from 'support' but were willing to remove it from 'recognition' (so it would read 'recognition and appropriate support'. However, the Netherlands did not want to be forced to recognise groups without legal personality and objected to this. It was willing to recognise 'the role of' such groups (a different concept). The ECOs pointed out that in some countries, registration of groups might be a lengthy, expensive or otherwise difficult process, even if this were not the case in the Netherlands. Having a 'legal basis' for such recognition and support was not sufficient, it needed to be a supportive legal basis. The ECOs and the UK then put forward a compromise text requiring countries to ensure that their legal systems were consistent with the obligation to provide appropriate support and recognition etc - a rather weak formulation given the retention of 'appropriate'. [P:] In the plenary, Russia wanted to add 'if appropriate' after 'provide', weakening the text even more than the existing 'appropriate'. Belgium said this would make the paragraph worthless and appealed to Russia to reconsider. However, Russia maintained its position and asked for it to be footnoted. In fact, the final text reads 'provide for', which is weaker than 'provide' and is not what the UK and ECOs proposed ... The ECOs urged that more detailed text on the form of support should be used, even if only with a recommendatory status, citing para 9.2.1 of the ECO declaration from Groznjan (July 1995). However, no government supported this. The opening phrase requiring Parties to recognise the rights of the public to form groups was considered to be redundant, already being covered by human rights texts on the rights of association. Russia argued against the entire paragraph (despite being reminded by the Chair that there is a similar provision in the Sofia Guidelines) and reserved its position. 4.5 The Convention as a 'floor', not a 'ceiling' [IG:] In light of statements by several Russian-speaking delegations at earlier meetings that the term 'more stringent' in 2.7 was ambiguous, and especially concerns expressed outside the meetings that the intended meaning of 2.7 might be in conflict with the Russian Constitution, the ECOs put forward less ambiguous wording to clarify the intention that the Convention should not in any way prevent countries from adopting more far-reaching measures to protect information, participation and justice rights than those provided for in the Convention. The Chair pointed out that the term 'stringent' was used in Espoo and other instruments and the UK favoured using that word, but the ECOs and Belgium argued that the term had a different meaning in the context of restricting activities (e.g. setting environmental standards) than in the context of granting rights (e.g. to information). Several countries concurred with the ECOs that the word 'stringent' as used was problematic. There was general agreement (including from Russia) on what 2.7 should be trying to say, and after several discussions, a new text was agreed, still using the term 'more stringent' but in a less ambiguous context. An additional 'copperfastening' sentence from the ECOs, slightly amended by Belgium, remains in square brackets. 4.6 International bodies and processes (Art. 2.8) The main discussion points here were: - whether processes and organisations should be covered; - whether the text should focus on bodies not exclusively consisting of Parties; - whether the bodies or processes covered should be involved in matters relating to 'environmental protection' or to 'the environment'. Initially, the UK wanted the substance of the paragraph to be dealt with in the preamble. Germany, Russia, Netherlands and Denmark all had concerns. It was agreed (following Netherlands and UK interventions) that it was illogical to focus on bodies not exclusively consisting of Parties. That limitation was removed. Whereas the original text had referred to 'supporting the provisions', Denmark felt the detailed provisions of the Convention would not be applicable in international fora and proposed 'promote the principles'. Poland had a problem with 'promote' but could live with it. The ECOs proposed 'apply' rather than 'support' or 'promote', pointing out that (with respect to bodies involving non-Parties) the obligation was on the Parties, not the international body, to do the applying. It was agreed that both organisations and processes should be covered. In respect of organisations, there was a discussion on whether the paragraph should apply in matters relating to 'environmental protection' or 'the environment'. The ECOs, supported by Bulgaria and Norway, favoured the latter option, arguing that it was essential that bodies such as EBRD, WHO or the World Bank are covered. The UK preferred the former, but could accept the latter 'for the time being'. In the end, the latter option was agreed, though with respect to international processes, the so far undefined term 'environmental decisionmaking processes' is used. Germany wanted the provision only to have the force of a recommendation. [Note: for more on international bodies, see also sections 3.1 and 7 of this report.] 4.7 Anti-harrassment provision The ECOs, supported by the UK, proposed that the anti-harrassment provision should be moved to Article 2. This was agreed (though not recorded in the official minutes). The discussion on the text produced by the small drafting group in April to replace Articles 3-5 of Draft Elements (CEP/AC.3/R.4), which commenced at the 5th session, was resumed. (Paragraph references in this section refer to that paper.) The Netherlands opened the discussion with a proposal which involved distinguishing between a decision on a request and the actual supply of information. The proposal included a 2-week period for a decision on a request, with the possibility for extending this by a further 2 weeks, and with the information to be supplied within 8 weeks of the decision. The proposal received little support. Italy, supported by the EU Commission, Belarus and the UK, said the proposal was unacceptable because it would allow 10 weeks (sic) from the date of the request to the date of supply, which was too long. Italy and the UK felt that having to respond after 2 or 4 weeks would impose an extra administrative burden, leading to unnecessary paperwork and bureaucracy. Uzbekistan and Ukraine said their systems required an acknowledgment to be issued as soon as possible or within 30 days. Belarus said the 4+4 option (4 week time limit on supply with the possibility for extending this by a further 4 weeks if justified) would present problems. Germany and France were opposed to making any distinction between the decision on a request and the supply of information. Germany argued that it could take some time to decide on a refusal. It preferred a single time-limit of 8 weeks. Belgium said the Netherlands proposal would call for some changes in the Belgian system but it wanted to keep the issue on the table. The ECOs supported the principle behind the Netherlands proposal but wanted shorter time limits on responses and could not accept the long time limit for supply. Between the two options in para 1A, the ECOs preferred the 4+4 option but considered this to be too long. Denmark preferred the 4+4 option over the 8 week option. Italy, supported by the UK, said it could accept a variation of the 4+4 option as a compromise, namely 30 days with the possibility of extending up to 8 weeks from the date of the request. France also said it could live with this, leaving Germany as the only country wanting the 8 weeks option. When the Netherlands proposal was circulated in writing later on, it required the information to be supplied within 8 weeks of the request (rather than within 8 weeks of the decision). To make it clear that separate mailings for the decision and the information were not expected to be the norm, it proposed to add to its proposal 'and wherever possible the information shall be supplied together with the decision.' Poland warned that in some jurisdictions, 30 days might be understood to mean 30 working days (which might be more like 6 weeks). Regarding the proposed obligation to notify the requester of any extension beyond 30 days, Italy and Bulgaria opposed this, and Netherlands, Norway, Denmark and the ECOs supported it, though Norway did not feel the notification needed to be in writing. Poland proposed using 'should' instead of 'shall' but this was not agreed. The sentence stayed in square brackets. The ECOs also proposed that when the period was being extended, the notification should include the reasons for the extension. This last point was accepted by the Netherlands and was included in inner square brackets. The issues of time limits on cases where the public authority does not hold the information, or for refusals, were discussed in connection with paras. 3.3 and 3.6 respectively (see below under sections 5.3 and 5.7 of this report). Information not held (3.2(a)) Regarding the exemption for information which a public authority does not hold, the ECOs pointed out that a public authority 'may' issue a refusal but they are not required to, i.e. they might legitimately decide to simply ignore it, leaving the requester in a vacuum. This would depend on other requirements on how public authorities deal with such requests or whether they are in all situations required to respond to the requester. If this aspect was not addressed satisfactorily elsewhere, it might be necessary to return to this paragraph. Uzbekistan and Belarus said that under their systems, where a public authority does not have the information requested, it is required to inform the requester where it can be found. Material in the course of completion (3.2(c)) The limitation on exempting material in the course of completion, namely the phrase 'provided that such completion is not unduly delayed', was attacked by Germany, Russia, France, Italy (which had proposed it at the 4th session), Georgia and Spain, and only defended by the ECOs. It was deleted. Internal communications (3.2(c)) The ECOs proposed that internal communications between different public authorities should not be exempt. The ECOs were supported by Denmark, Belgium and Sweden, and opposed by Germany and the UK. Confidentiality of proceedings of public authorities and state secrets (3.2A(a)) Most countries wanted to retain the exemption provision for information affecting the confidentiality of proceedings of public authorities. Belgium, supported by Bulgaria, Denmark and Romania, felt it was necessary to have such an exemption in some form but wanted it restricted by saying the confidentiality must be 'specifically provided for under national law'. Russia also supported the reference to national law. Italy, the UK and Spain also wanted to retain such an exemption. The UK questioned why it was necessary to put 'specifically'. The ECOs pointed out that otherwise a government could just pass a law saying that all the proceedings of public authorities are confidential. Only the ECOs questioned the need for such an exemption, saying that potentially it was a major loophole and was duplicating the 'internal communications' exemption, it was not necessary to have both. Denmark said it was necessary to have both because (having deleted 'and between' in 3.2(b)) a memo between two Ministers would not be an internal communication. The ECOs regarded the Belgian proposal as an improvement on the draft, but suggested to add 'other than the law implementing this Convention.' This was not taken up. Only Latvia supported an exemption as broad as 'state secrets' (maybe Russia's support was also implicit, as it had made the original proposal, but it did not make a clear statement). International relations, national defence, public security (3.2A(b)) Denmark and Belgium proposed the deletion of the words in square brackets (referring to the civil fuel cycle and nuclear industry, nuclear arms, etc). Russia, which had originally proposed this text, reserved its position, but no other country supported the text so the words were deleted and Russia's reservation was footnoted. Matters under enquiry, sub judice etc ((3.2A(c)) Between the two main options for this paragraph, several countries expressed a preference for the first option (Belgium, Norway, Poland, Latvia and Belarus) whereas only Germany defended the second option, with 'or administrative' included. Germany's position was footnoted and the second option was deleted. Commercial and industrial confidentiality, intellectual property (3.2A(d)) Belgium repeated its arguments from earlier sessions for the deletion of 'intellectual property': intellectual property rights can be an obstacle to copying or distribution but not to disclosure, so the issue should be dealt with elsewhere. Norway supported this position but Germany and Russia opposed it, and the UK said the disclosure of information before a patent has been obtained could be a problem. It was agreed to invite Belgium to come with a proposal as to how this issue would be dealt with elsewhere in the Convention, and meanwhile, to leave it in square brackets. The ECOs proposed that the words 'and the competitive position of a third party' should be deleted, as the public obtaining information about some environmentally damaging activities of a company might indeed adversely affect its competitive position but that should not be a reason to be able to withhold the information. This was agreed. The phrase 'unless the requested information relates to emissions or impacts on the environment', which would prevent the commercial confidentiality exemption being used to withhold information on emissions, was attacked by Netherlands, Russia, Uzbekistan, Belarus and Denmark, with only the ECOs defending it. It was deleted. The sub-subparagraphs i) to iv), which had been introduced by the ECOs to circumscribe the commercial confidentiality exemption more narrowly, were attacked by the Netherlands, Austria, Germany, France, Italy and Spain, and possibly also Russia and the UK. Norway, Bulgaria and Denmark felt the text was too detailed but that some of it should be salvaged. The ECOs indicated that i) and iv) were in their view of higher priority than ii) and iii). The Chair invited the ECOs to hand in written proposals for the August drafting group meeting. Personal data (3.2A(e)) Belgium, supported by Netherlands, Denmark, UK and the ECOs, felt it should be clarified that the 'persons' to which this exemption related were natural persons rather than legal persons (companies etc). No delegation opposed this in principle. Netherlands wanted to refer to 'the respect of personal privacy'. The ECOs proposed that such confidentiality should be 'established under national law'; the UK, 'where provided under national law'. The matter was referred to the small drafting group, to find the best wording. Voluntarily supplied information(3.2A(f)) Norway, Denmark and the ECOs argued against the proposed exemption for voluntarily supplied information. The ECOs said that the only valid reason for such a clause was to protect a person who out of a sense of civic duty had provided information on an activity threatening the environment, and this was covered more precisely in the proposed para 2B. Norway said it was not relevant how the information was obtained, only what its content was. Germany, France and Belarus wanted to keep the exemption. Against the argument that 3.2B covered this point, Germany said it was not just a matter of protecting the identity of an individual who had supplied information but also the information itself. Belarus wanted the exemption to be even broader and proposed deleting the words in the inner set of brackets. The Chair seemed to have a strong preference for keeping the subparagraph and pointed out that a similar exemption was used in the Guidelines. The Chair asked who was willing to review their position. Denmark said it could, it did not see this as a very important point, and the Chair then put Norway under pressure to withdraw its objection. Norway did so and the square brackets were removed. Belgium proposed 'which has supplied the information requested' instead of 'supplying material', and Denmark proposed 'does not consent' instead of 'has not consented'. These changes were agreed. The ECOs then proposed 'which has refused to consent', which would mean that a definite act of refusal would have to take place before this exemption could be invoked. The Chair responded that this was not necessary. The ECOs disagreed, but no country supported the point and it was not taken up. Public interest test (3.2(c), 3.2A) Denmark, Austria, Bulgaria, Norway and the ECOs supported keeping the public interest test in relation to the 'material in the course of completion' and 'internal communications' exemptions and Belarus was happy to apply it to the 'material in the course of completion' exemption. However, Germany and Russia were opposed to it, so the words remained in square brackets in 3.2(c). In the chapeau of 2A, Russia, Germany, Bulgaria, Spain, Norway and Georgia wanted to delete 'adversely', whereas Belgium, Austria, the UK, Denmark and the ECOs defended it. Regarding the 'tail' of 2A (containing the main public interest test), there were three main opinions: - Russia and Belarus wanted to delete the tail completely; - Germany, Netherlands and Bulgaria wanted to only apply it to some of the subparagraphs in 2A but not to all (Germany cited personal data and intellectual property as two areas where it should not apply, the Netherlands cited commercial and industrial confidentiality, and Bulgaria pointed out that it would conflict with national law to apply the public interest test to the exemption provisions for information affecting the confidentiality of proceedings of public authorities where that confidentiality was provided for under national law); - Armenia, Austria, Belgium, Norway, Albania wanted to keep the tail; and - Italy, Denmark and Spain, said they were neither for nor against the tail but felt the public interest should always be taken into account. Italy then said that if the tail were to be kept, it should be applied to all exemptions. Denmark, supported by the ECOs, said the tail should be moved to the beginning of the sentence to avoid confusion. Whistleblower protection clause (3.2B) Paragraph 3.2A(f) having been agreed upon, the UK and Denmark said it was unnecessary to keep 3.2B. The ECOs defended the paragraph, and the Netherlands suggested that part of 3.2B could be used to tighten up 3.2(f), but the Chair said the discussion on (f) was closed. The paragraph was deleted. 5.3 Procedure where information is not held Several delegations felt it was important to consider this paragraph in connection with 3.2(a) and time limits considerations (Bulgaria, Denmark, ECOs). France and Germany wanted a recommendation rather than an obligation here - 'should endeavour' rather than 'shall'. However, Denmark, Finland, Belgium, Poland, Sweden, Italy and the ECOs preferred 'shall'. Lithuania proposed 'is known to hold' instead of 'is believed to hold. Poland, supported by the ECOs, proposed to keep 'or is responsible for holding'. In support of the latter phrase, the ECOs pointed out that words like 'is believed to' or 'is known to' gave higher priority to the psychological state of officials than to the principle of collective accountability of public authorities to the public. Denmark, Netherlands, Finland and the ECOs supported the obligation to notify the person requesting the information that the request had been referred onward. The ECOs, supported by Netherlands, said that there should be a short time limit on such notification. Without such a time limit, there was a loophole in the Convention which meant that a requester could be simply left in the dark. The Chair seemed to sympathise with this point. Italy, supported by France, Spain, Romania, Moldova, Belarus and Norway, argued that the obligation of the public authority should be to tell the requester where to look for the information, rather than to promptly refer the request onward. Italy cited extra costs and time involved in the latter approach. Spain said that with the latter approach, it would not be possible to apply the original time limit. Against this, the ECOs gave examples of how the public can be passed around from one public authority to another. The ECOs objected to the Italian approach, but if it were to be pursued, it would be essential to have much shorter time limits on a response, say one week. Belgium sympathised with both the Italian and ECO viewpoints and proposed either to link 3.3 with 3.2(a) and have a particular provision on time limits, or to have a paragraph giving the choice to the Party between onward referral of the request, and informing the requester where the information could be got. This was supported by Bulgaria, which mentioned 2 weeks. Italy said it was willing to accept the 4+4 option in 1A if the Netherlands and the ECOs could accept not including a 'notification of extension' requirement. The Chair proposed that the solution should take account of both the Belgian and Italian proposals and the possible need for a shorter time limit. 5.4 Information available to public authorities but not held (3.3A) An ECO-inspired paragraph designed to ensure the public availability (subject only to the exemptions) of environmental information which public authorities are entitled to inspect, but which they do not physically hold, was strongly supported by Norway, which said this kind of provision could become more important in the future. Denmark also supported the principle of the paragraph though not necessarily the precise wording. It suggested the information should be limited to that which was needed for carrying out the regulatory function. The ECOs pointed out that the proposed wording left it open to Parties to decide how they would make the information available, that is, whether directly from the regulated body or through the public authority. On this basis, France also said it could support the idea behind the text. Germany was opposed to the proposed text, arguing that it was in direct contradiction with 3.2(a). The Chair responded by saying there were data of private enterprises collected on the basis of regulations, which were not confidential and were not held by the public authorities. The question was whether any delegations objected to such data being publicly available. Italy said it supported Denmark's reservations over the wording, and made a cryptic remark about the 'principle of good faith in officials', which was supported by Germany. 5.5 Assistance in clarifying requests (3.4) This paragraph, requiring public authorities to assist the public in clarifying requests formulated in too general a manner, was attacked by Germany, Bulgaria, Moldova and Romania. Germany felt that on the one hand it was an example of over-regulating, and on the other, that it was a general rule to help the public. Bulgaria said it contradicted 3.2(b). Denmark felt it was unnecessary, being already covered by the general provisions in Article 2, but said it would be premature to delete it. The provision was defended by Sweden, which said it could go in the general provisions but should in any case be reflected somewhere in the Convention, and by the ECOs, who said that it was a necessary complement to 3.2(b) rather than a contradiction of it, and that it should be augmented by adding 'manifestly unreasonable'. Norway suggested having a reference in 3.2(b) to the relevant general provision in Article 2. The Chair proposed to delete the provision but to see if the notions contained in it were reflected overall in the Convention. 5.6 Separation of exempt from non-exempt material (3.5) There was general agreement on the idea behind this paragraph. The Chair proposed to delete the words in square brackets ('without prejudice to the information exempted', put forward by Russia in the April drafting group). The ECOs supported their deletion (possibly also the UK and Romania), but Russia objected. Belgium also favoured their deletion but proposed to amend the phrase to 'without prejudice to the confidentiality of the information exempted'. Belgium, supported by the UK, Poland, Norway, Bulgaria, Sweden, France and the ECOs, proposed that refusals or partial refusals should be issued 'as soon as possible' or within the time limit specified. Norway proposed to add 'of the original request' at the end of the first sentence. A two-week time limit was supported by Denmark, Belgium, Hungary, the Czech Republic (in its written submission, of which REC reminded the meeting), REC and the ECOs (the latter two indicating that they would prefer a shorter time limit). A four-week time limit was supported by the UK and Sweden (which could also accept 30 days). A 30-day time limit was supported by Poland, France, Spain (actually 'one month'), Russia, Bulgaria and (after declining a footnote offered by the Chair) Germany. Germany had initially stated its preference for an 8-week period for refusals, which it argued could be quite time-consuming. Poland said it should be specified that the time limit was 30 calendar days as opposed to 30 working days, warning that without this it could be susceptible to the latter interpretation in some jurisdictions. The Chair felt 30 days was clear enough. Italy wanted the time limit for refusals to be part of a compromise package looking at 1A and 3 as well. Regarding the requirement for the refusal to be in writing if the request was in writing, Germany wanted to make this optional but Norway said it must be obligatory. Bulgaria said both requests and replies should be in writing. Belgium amended this to 'Requests and refusals shall be given or recorded in writing', citing the importance of documentary evidence for the appeals process. Along similar lines, Belarus said that if oral requests are made, they should be recorded in writing. Some delegations felt the third sentence (dealing with oral requests) was too detailed and should be deleted (Germany, Norway, Italy). However, Sweden said that most requests are oral and that provision should be made for such requests. Netherlands said the crucial point was to safeguard a person's right to get a written answer (whatever the form of the request). Italy said this paragraph could be moved to follow para 1A (as earlier proposed by the ECOs). Poland proposed to delete the word 'all' in the requirement that a refusal include 'all the reasons for the refusal'. The ECOs defended 'all', saying it made it clearer that a public authority whose initial grounds for refusal had been rejected by the appeals process could not invoke new grounds for refusal. However, Denmark said it was redundant and the Chair agreed, so it was deleted. Regarding the final alternative choices in the paragraph, Denmark, Germany and the UK supported the latter option, which required the refusal to inform the requester of their rights of appeal (put forward by the ECOs at an earlier stage). Denmark proposed 'rights to judicial or administrative review' instead of 'rights to avail themselves of the judicial or administrative review procedure'. 5.8 Charges for information (3.7) The ECOs strongly defended the words 'but such charge shall not exceed a reasonable amount', pointing out that simply allowing public authorities to make a reasonable charge would not in any way prohibit them from making unreasonable charges. This was supported by Denmark, Belgium, Italy (initially) and Norway. However, Russia, Poland, Kazakhstan and Armenia objected to the term 'reasonable', which they considered too vague. Ukraine said the term had lost its meaning in the NIS region. Armenia proposed '... shall not exceed a maximum amount'. The ECOs also expressed their support for the written comments of the Czech delegation (the Czechs were not present), which had proposed that (as in Draft Elements 3.7(a)) charges should not include the costs of compiling or retrieving the information. This was supported by Denmark, Belgium, Norway, Poland and REC, with REC pointing out that 'should' should be amended to 'shall' in the 2nd sentence of the Czech proposal. Denmark suggested replacing 'supplying' in the first sentence of 3.7(a) with 'costs of reproducing and transmitting' as another way of achieving this. However, Italy and France were against this kind of elaboration on what was 'reasonable', and Spain was in favour of leaving the issue of charges to be determined at national level. In Italy, the actual cost of providing the information is the basis for what is reasonable. Italy proposed either leaving the issue to be determined at national level or replacing 'a reasonable amount' in the second square brackets in the first sentence of 3.7(a) with 'the actual cost of providing the information requested'. (The Italian proposal also involved changing the first 'may' to a 'shall', which would seem to conflict with 2.7 - maybe this was not intentional.) Poland and Romania were happy with the Italian approach, and Russia more or less happy but unsure how this would be calculated. However, the UK, Denmark and the ECOs were not happy. The UK preferred the original and reserved its position on the Italian proposal which it felt would pose problems where commercially valuable information was concerned. Denmark said it should not be possible to charge for civil servants' wages. The ECOs felt it was important to keep the 'reasonable' ceiling and then elaborate on what it meant. Italy then proposed keeping the first 'reasonable' (even though it had already been pointed out that this had no force). Spain suggested putting 'actual or direct costs' in the Italian proposal. REC introduced the idea of making a distinction between requests from individuals and public interest ECOs, and requests from business or commercial interests. The ECOs said this could be a possible route for a compromise. The Chair proposed to work on the basis of the Italian text, but retaining (the first?) 'reasonable' in square brackets. However, the UK continued to object and asked for the retention of the original text alongside the Italian text, with both in square brackets as alternatives. Denmark, Belgium, Norway and the ECOs supported the final sentence of the Czech proposal, which reintroduced the idea originally in the Draft Elements text that the schedule of charges should be setting the maximum that could be charged. The UK presented an outline written proposal for a Non-Compliance Mechanism (NCM) for ensuring effective implementation of the Convention (Annex VI to report of the 6th session of the Working Group (CEP/AC.3/12)). The UK proposal was reiterating its support for an NCM but arguing against including detailed provisions in the Convention itself. Its arguments for this 'slow-track' approach were that the NCM would need to be tailored to the text of the Convention, which could not be done till the latter was finalised; that it would already be a considerable task to finalise the Convention before Arhus without this additional task; that the NCM would not be needed until the first meeting of the Parties, so there was no urgency; and that if the mechanism were established in the body of the Convention, it would be difficult to modify in the light of changing circumstances. In line with this approach, the UK proposed only a short text for a new article on 'Monitoring Compliance', providing for a compliance monitoring procedure to be established at the first meeting of the Parties. Unlike the Draft Elements text which it would replace (7.2(f)), the UK text made no reference to provision for public participation in the mechanism. The ECO delegation then presented a written proposal (special thanks to Jonas Ebbesson, Stockholm University, and Peter Roderick, FoE, for work on the draft), co-sponsored by REC, for a Non-Compliance Mechanism (Annex VI to report of the 6th session of the Working Group (CEP/AC.3/12)). The proposal set out a new Article establishing a nine-person Non-Compliance Committee, three members of whom would have experience of working with or for ECOs. The Committee would consider reports on implementation of the Convention at national level, and comment on these to the meetings of the Parties. It would also consider complaints by individuals or ECOs alleging a violation by a Party of any provision of the Convention. Parties would be required to co-operate with its examination of complaints and, where found to be in breach of the Convention, to take the measures needed to ensure compliance. The Committee's work would be undertaken in an open and transparent manner. The ECOs and REC also proposed a new paragraph 3 in Article 7 which would entitle any ECO having applied three months in advance to attend and participate in Meetings of the Parties unless this was objected to by at least three-quarters of the Parties. Belgium indicated that it too had an NCM proposal which it will circulate, more detailed than the UK proposal though not so detailed as the ECO/REC proposal. There was virtually no time for a general discussion of the issue. Italy strongly supported the idea of a mechanism to involve the public in an NCM and mentioned that this was one of two issues on which Italy would not compromise (the other presumably being 'the public concerned'). It asked for all proposals to be on the table before the August drafting group meeting. The UK reiterated its view that it would create difficulties to go into detail on NCMs at this stage. The Chair said the first task was to give attention to the Convention itself and to deal with NCMs then if time permitted. 6.2 Pollutant Release and Transfer Registers The ECOs circulated a written proposal on Pollutant Release and Transfer Registers (PRTRs) (special thanks to Mary Taylor, FoE England, Wales and N. Ireland) (see Annex V to report of the 6th session of the Working Group (CEP/AC.3/12)). The proposal involves a three-tiered approach: i) a basic obligation on Parties to establish national PRTRs, contained in a revised Article 4.6; ii) a new Annex to the Convention setting out the minimum elements which should be included in a national PRTR; iii) a requirement to start the preparation of a PRTR protocol at the first meeting of the Parties. Whereas the Annex contains a list of important elements (approximately one page), the Protocol would go into detailed lists of chemicals to be covered, types of activities which would be covered size threshholds above which they would be covered, and so on. Time did not permit any discussion of the proposal. It was annexed to the report of the meeting for consideration by the August drafting group meeting. Belgium presented a revised version of its earlier proposal for a new Article 1, referring to the right of every person to live in a healthy environment and introducing as the primary objective of the Convention the guaranteeing of rights to information, participation and justice in accordance with the provisions of the Convention. The new Article would be accompanied by a series of new recitals in the preamble. The proposal was co-sponsored by Denmark and Italy. Belgium emphasised that the proposal would not create an enforceable right to a healthy environment, nor would it oblige Parties to take specific measures to introduce such a right in their national legislation. The proposal was supported by Finland, Norway, Netherlands and the ECOs. The UK was non-committal and wanted time to study the text but in contrast to its input to the 2nd session (before the change of government in the UK), it did not oppose the proposal. It welcomed the preambular reference to a 'duty' to protect and improve the environment. Only Germany voiced serious concerns about the proposal, arguing that it made no sense to create a right on paper which was unenforceable in court. In 1995, Germany went through a constitutional revision, at which point it was decided not to have an individual right to a clean environment but instead to make it a constitutional principle. Germany preferred a preambular obligation for each Party to ensure that the environment is protected efficiently. In response, Belgium pointed out that the specific obligations in the Convention would contribute to realising the right to a healthy environment but Germany said it was enough to have specific rights without invoking a general right. Italy, although a co-sponsor, felt that 'healthy' might be too narrow. Netherlands felt it might be necessary to make it more explicit that the right to a healthy environment was not enforceable in the courts. Poland said it had had the same discussion as Germany. The ECOs said the proposal did not go far enough but nonetheless described it as 'poetic and historic'. Belgium was invited to take account of the comments made and present a revised proposal by the end of August, ready for the 7th session. Denmark proposed that there should be a provision on territorial derogations, mentioning the situation of Greenland and the Faeroe Islands. Denmark also suggested a provision enabling Parties to make financial regulations, to produce a budget and to divide costs 'in the normal way'. It did not want to see the Convention hampered for lack of resources. As on previous occasions, the EU countries held a co-ordination meeting in advance of the Working Group meeting. As regards NGO participation, the same procedure was followed as in advance of the 5th session of the Working Group, namely, the formal meeting was suspended and a brief informal consultation with a representative of the ECOs (Jeremy Wates) took place. The subject of the consultation was the issue of how international bodies and in particular the EU institutions should be covered. The starting point was the ECO's proposal for a new subparagraph in the definition of 'public authority' covering 'international bodies under the control or made up exclusively of Parties'. Several Member States were sceptical of how the provisions of the Convention could be automatically applied to international bodies which have their own rules of procedure. The ECO representative, after explaining the principles behind the wording, said that the changes in the functioning of those bodies would not be automatic in the sense of instantaneous, but that by signing the Convention, Parties would be making a commitment to apply its provisions to such international bodies, and this would include setting in motion the processes for changing their rules of procedure where necessary. During a very short discussion, Denmark referred to the Vienna Convention on treaty-making powers and suggested it would be useful to list the kind of bodies that would be covered by such a provision. The Chair (Belgium, in the place of Luxembourg which was absent) invited the ECOs to produce such a list. The UK said it would be helpful to distinguish between international organisations which have the capacity to conclude the Convention and those which do not. There was no response during the meeting to the ECO's request at the previous session to participate in the formal co-ordination meetings, though outside the meeting, the Commission informed the ECOs that a formal written request would have to be made to the Council. ALBANIA: Generally positive. Supporting inclusion of landscape and cultural sites in environmental info definition but not climate; supporting public interest test for all exemptions; and supporting general provision linking the three pillars. ARMENIA: Supporting public interest test for exemptions. Accepting idea of limitation on charges but as before, against 'reasonable'. AUSTRIA: Supported cultural sites in environmental info definition, supported public interest and 'adversely' in chapeau. Main problems were with economic issues: against inclusion of economic and financial analysis in environmental info definition, against tighter definition of commercial confidentiality. BELARUS: Mixed input. Significant negative points were its opposition to the public interest test for exemptions (except for material in the course of completion), its support for the voluntarily supplied information and commercial confidentiality exemptions (in the latter case, wanting emissions data to be within the exemption), and its opposition to onward referral of requests. On the positive side, it supported landscapes in the environmental information definition, favoured an obligation to inform requesters where information could be found, and favoured the more restrictive sub judice exemption. BELGIUM: Again, Belgium played an active and constructive role, supporting a non-exhaustive definition of environmental information including landscape and cultural sites, arguing for restricting several exemptions (internal communications, personal data, intellectual property, sub judice etc) while retaining the public interest test, and presenting a revised version of its rights proposal. It tended to support shorter time limits (asap or 2 weeks for refusals) and limits on charges. BULGARIA: Mixed input. Against public interest test for some exemptions, against obligation to assist public to clarify requests, against obligatory recognition of unregistered NGOs. In definition of environmental info, defending air and atmosphere, soil and natural resources and interaction between elements and supporting human health, but against cultural sites and epidemiological and toxicological info. Some useful drafting suggestions. CZECH REPUBLIC: Virtually absent, but some good aspects of written submission from previous session were cited. DENMARK: Again, an active delegation having for the most part positive input. Supported non-exhaustive definition of environmental information with inclusion of landscapes and cultural sites, in favour of 4+4 time limit option with notification of any extension and 2 week time limit for refusals, supported obligatory onward referral of requests with notification of requester, supported principle of covering information not held by but accessible to public authorities for regulatory purposes, supported limiting charges to reproduction and transmission costs, opposed restriction of public participation provisions to certain limited categories, supported some recognition of groups without legal personality, and co-sponsored Belgian rights proposal,. Disappointingly, it backed down on its initial opposition to the voluntarily supplied information exemption, and failed to defend the public interest test for the main exemptions. It also opposed the exemption from the commercial confidentiality exemption for emissions data but supported the idea of some limitation on this exemption. ESTONIA: Quiet. EUROPEAN COMMISSION: Concern over including 'international bodies under the control or made up exclusively of Parties' in definition of public authorities. Otherwise quiet. FINLAND: Again, consistently positive interventions. Supported inclusion of cultural sites, built environment and landscapes in definition of environmental information, obligatory onward referral of requests with notification of the requester, and the rights proposal. Still could be more active. FRANCE: Fairly conservative approach, and generally against too much detail. Opposed inclusion of economic or financial analysis in environmental information definition, against specific limitation on charges, defending exemptions. Good points were support for non-exhaustive definition of environmental information and for principle of covering information not held by but accessible to public authorities for regulatory purposes. GEORGIA: Mixed input. Supported non-exhaustive definition of environmental information including built structures and the interaction between elements. Against limitation on material in course of completion exemption, and in general limiting use of exemptions to cases where effects of disclosure are 'adverse'. GERMANY: Continuing to be one of the most difficult delegations, with virtually all interventions aimed at weakening the draft text. Favouring short definition of environmental information, being against inclusion of climate, built structures, historical monuments, economic or financial analysis, human health and safety etc, and wanting to only include factors etc 'negatively' affecting the environment. The only delegation favouring single time limit of 8 weeks for supply of information, and wanting provisions on international processes and environmental education to be non-binding. Also wanting onward referral of requests to be optional. Defending broad exemptions (notably, matters sub judice, under inquiry etc) and opposing the application of the public interest test to several of these. Alone in unequivocally opposing Belgian rights proposal. The only positive shift was a willingness to accept a 30 day time limit for refusals, and its support for an obligation to inform a person being refused of their appeal rights. HUNGARY: Supported 2 week time limit for refusals. Otherwise quiet. ITALY: Mixed performance. Positive aspects were defence of including human health and economic or financial analysis in environmental information definition, support for recognising unregistered groups, and its support for the rights proposal and a non-compliance mechanism. On the other hand, it stubbornly opposed expanding the list of elements in the environmental information definition and indicated that its acceptance of the amended 4+4 option was conditional on no notification of the extension of the time limit. It also defended several exemption provisions and failed to defend the application of the public interest test to them. May have a problem with ECO participation in EU processes. KAZAKHSTAN: Opposed 'reasonable' ceiling on charges. Otherwise quiet. KYRGYZSTAN: Quiet. LATVIA: Generally positive interventions, supporting a non-exhaustive definition of environmental information with both air and atmosphere, and supporting recognition of unregistered groups and the limited version of the 'matters under enquiry' exemption. The main exception was its support for a broad 'state secrets' exemption. LITHUANIA: Mixed input, supporting economic and financial analysis in the environmental information definition but proposing the higher threshhold of 'is known to hold' for onward referral of requests. MOLDOVA: Somewhat negative input. Supporting narrower definition of environmental information, being against atmosphere (considered air sufficient), landscape, human health and safety, quality of life, etc. Opposed to obligation to support/assist public or for officials to undergo training to this end. Against onward referral of requests, preferring to inform requester where to seek information. NETHERLANDS: Proposing or supporting a number of useful measures ensuring practical accountability of public authorities to the public, e.g. 2 week time limit on decision on request for information, notification of extension of this (by another 2 weeks max) with reasons, notification of onward referral of request with short time limits, and right of public to get a written reply if desired. Defending broad commercial confidentiality exemption and opposing the application of the public interest test to this exemption. Strongly opposed to recognising groups without legal personality. Argued that the 'significant environmental impact' threshhold (above which public participation must be provided for) is too high. Cautious on international bodies. NORWAY: One of the more positive delegations. Supporting a broad non-exhaustive definition of environmental information, including built structures, landscapes, cultural sites (though partly backing down on that one) and economic and financial analysis. In favour of limiting some exemptions (commercial confidentiality, matters under enquiry), deleting others (intellectual property, voluntarily supplied information) and subjecting all exemptions to the public interest test. Strongly supported ECO proposal on information available to public authorities but not held. POLAND: Generally quite constructive interventions. Supported recognition of role of groups without legal personality. The only country to support idea of collective responsibility of public authorities to know where info is held. A weak point was its proposal to have recommendation rather than requirement for notification of extension of period for supplying information. ROMANIA: Most interventions tending to weaken the text. Against recognition of unregistered NGOs, opposed obligation to train officials or to assist public in clarifying requests (reversing its position at the 4th session). Against onward referral of requests, preferring to inform requester where to seek information. Concern over covering international bodies. RUSSIAN FEDERATION: For the most part, continuing to adopt positions weakening the text, but slightly more constructive than on previous occasions. Arguing for narrow definition of environmental information, excluding cultural sites, cultural heritage, possibly radiation, economic and financial analysis, human health and safety, conditions of life etc. - supporting landscapes however. Defended exemptions for material in course of completion, intellectual property, commercial confidentiality and state secrets, and opposed application of public interest test to any exemptions. Opposed 'reasonable' ceiling for charges. Against obligation to provide support NGOs. Despite rumours to the contrary, Russia supported the principle that the Convention is a floor, not a ceiling. SPAIN: Slightly more active than on previous occasions, and for the most part in a negative way. Against including economic or financial analysis in environmental information definition, defending exemptions for material in course of completion, commercial confidentiality and confidentiality of proceedings of public authorities, failed to defend public interest test for exemptions (though not against it either). Opposed to recognition of NGOs without legal personality, against obligation to support the public (recommendation only). Believes charges should be set at national level but limited to 'actual or direct costs'. Against onward referral of requests, preferring to inform requester where to seek information. SWEDEN: Generally positive input. Supporting non-exhaustive definition of environmental information including economic and financial analysis, obligation for onward referral of requests, exclusion of communications between public authorities from exemptions, provision for oral requests, obligation to support public in clarifying requests. Did not see need to specify that 'interest' should cover non-material interests (considered it implicit). SWITZERLAND: Supported proposals to expand definition of environmental information with cultural sites and landscape and possibly built structures, but against inclusion of economic and financial analysis. Fairly quiet. UKRAINE: Supported deletion of 'in accordance with national legislation' mantra, also supported reference to human safety in environmental information definition (mentioning radiation safety), otherwise fairly quiet. UK: Some signs of a favourable shift following the change of government, e.g. reserving position on Belgian rights proposal and on inclusion of economic and financial analysis in environmental information definition (instead of outright opposition as previously), willing to accept shorter time limit (30 days) for refusals. Still posing difficulties in several areas, e.g., the only delegation to hold out for exhaustive list of environmental elements in the environmental information definition. Defended exemptions for intellectual property, confidentiality of proceedings of public authorities and communications between public authorities, and stayed quiet on the issue of the public interest test for exemptions. Wants 'public concerned' to be limited to those with 'sufficient' interest but against explicitly defining interest to include non-material interests. UZBEKISTAN: Opposed 'exemption from exemption' for emission data. Against reference to local government. Cited 30-day response time and obligation to inform requester where information can be found. Otherwise fairly quiet. ABSENT: ANDORRA, AZERBAIJAN, BOSNIA & HERZEGOVINA, CANADA, CROATIA, CYPRUS, GREECE, ICELAND, IRELAND, ISRAEL, LIECHTENSTEIN, LUXEMBOURG, MACEDONIA, MALTA, MONACO, PORTUGAL, SAN MARINO, SERBIA & MONTENEGRO, SLOVAKIA, SLOVENIA, TAJIKISTAN, TURKEY, TURKMENISTAN, USA. The small drafting group (with slightly expanded membership) will meet in mid-August to produce a complete consolidated text based on the discussions which have taken place to date. This new draft will then form the basis of the discussions at the following sessions of the Working Group. The membership of the drafting group will as follows: UK (Alistair McGlone, Chair) Germany (Eckart Meyer-Rutz) Russia (Alexander Matveev) Denmark (Veit Koester) Albania (Dritta Dade) Poland (Jerzy Jendroska) France (Marie Laure Tanon) Italy (Francesco La Camera) Ukraine (Olga Kryjanovskaia) Bulgaria (Latchezar Pavlov) Netherlands (Krisztina Horvath) European Commission (Laurence Graff) ECO coalition (Peter Roderick) Dates of future meetings 11-15/8/97 Small drafting group 29/9-3/10/97 7th session of Working Group and informal pre-meeting (Geneva) 1-5/12/97 8th session of Working Group and informal pre-meeting (Rome) 12-15/1/98 9th Session of Working Group and informal pre-meeting 17-21/3/98 UN ECE Committee on Environmental Policy to consider draft text prepared by Working Group, for transmission to the Ministers 23-25/6/98 Adoption of Convention at Arhus, Denmark ********** Disclaimer While a reasonable effort has been made to ensure the accuracy of this report, many of the delegates' statements were apprehended through simultaneous translation, or were made by delegates not speaking in their native languages, so for this and other reasons, complete accuracy cannot be guaranteed. Further information, e.g. on the positions taken by specific delegations, can be obtained from the ECO participants. Enquiries about distribution of this report or requests for further information should be directed to Jeremy Wates at jwates@foeeire.iol.ie or +353-27-51333 ph/fax. ********** ANNEX I: ECO/REC proposal on Non-Compliance Mechanism 9th July 1997 Article 7 MEETING OF PARTIES Insert a new Article 7.3, as follows: 3. Any body or agency belonging to one of the following categories, namely: (a) international agencies or bodies, either governmental or non-governmental, and national governmental agencies or bodies; and (b) other non-governmental agencies or bodies may inform the Executive Secretary of the ECE, at least three months before any Meeting of Parties, of its wish to be represented at that meeting. It shall be admitted and be able to speak and participate fully unless, at least one month before the meeting, three-quarters of the Parties have informed the Executive Secretary of the ECE Commission of their objections. Delete draft Article 7(2)(f) and insert as follows a new Article 8 NON-COMPLIANCE COMMITTEE 1. A Non-compliance Committee (hereafter referred to as the Committee) shall be established in accordance with and having the functions set out in this Article. The Committee shall meet twice a year, normally at the United Nations Office in Geneva. 2. The Committee shall consist of 9 members and shall carry out the functions hereinafter provided. It shall be composed of persons with recognised competence in matters of access to information, public participation or access to justice. No fewer than 3 members of the Committee shall have experience of working for or with environmental citizens' organisations. The Committee may not include more than 2 citizens of the same Party. 3. The members of the Committee shall serve in their personal capacities, and may not be employed by a public authority of any Party or by any environmental citizens' organisation. 4. The members of the Committee shall be elected for a period of three years at the Meeting of Parties. The members shall be elected by the Parties by open ballot from a list of persons having competence as prescribed in paragraph 2. At the Meeting of Parties: (a) each State Party may nominate one or two persons; and (b) any environmental citizens' organisation admitted to the meeting in accordance with Article 7.3 may nominate one person. In addition, the Meeting of Parties may accept nominations from citizens. 5. Each Party shall, and any other agency, body or individual may, report information to the Executive Secretary of the ECE Secretariat regarding measures for implementing the obligations of the Convention sufficiently in advance of Meetings of Parties for consideration by the Committee. The Executive Secretary shall transmit these reports to the Committee for consideration. Each Party shall make available its reports to the public. 6. The Committee shall study the reports submitted by the Parties and thereafter shall submit to the next Meeting of Parties and to the Executive Secretary such comments as it may consider appropriate. The Committee may also undertake to consider any matter relating to compliance with the Convention which it sees fit and may report thereon as appropriate, in addition to references and complaints under paragraphs 7 and 8 below. 7. If a Party considers that another Party is not giving effect to the provisions of the Convention, it may, by a written communication, bring the matter to the attention of that Party. If the matter is not resolved to the satisfaction of both Parties concerned within three months, either Party may refer the matter to the Committee. 8. Individuals who claim to be victims of a violation by a Party of any provision of this Convention shall have the right to make complaints to the Committee. Non-governmental agencies or bodies, such as environmental citizens' organisations, may also complain to the Committee if they claim that a Party has violated any of the provisions of this Convention. 9. The Committee shall receive and consider references and complaints made under paragraphs 7 and 8 above. The Committee may decide not to consider a particular complaint which it considers to be vexatious or abusive. 10. The Committee shall bring any reference or complaint made under paragraphs 7 or 8 above to the attention of the Party alleged to be violating any provision of the Convention. Within three months of so doing, that Party shall submit to the Committee written explanations or statements clarifying the matter and the remedy or redress, if any, that may have been provided or taken by that Party. 11. The Committee shall consider all reports, matters, references or complaints in the light of all written information made available to it. If deemed necessary by the Committee, it may arrange for oral proceedings and on-site inspections. 12. The Committee shall perform its duties in an open and transparent manner. Its meetings shall be open to the public, and their minutes and the Committee's documents and correspondence shall be recorded by the Executive Secretary and made available to the public. Any secrecy which the Committee deems necessary shall be reasoned, recorded and strictly limited in scope and duration. 13. Subject to paragraph 14 below, a Party found by the Committee to be acting in violation of the provisions of the Convention shall, as soon as possible, take the measures needed in order to comply with the Convention. 14. If a Party disputes any finding of the Committee, it may refer the matter to arbitration in accordance with the procedure set out in Annex [I], as if the Committee were a Party to this Convention and as if, upon such reference, the Committee were a party to the dispute. ******** ANNEX II: ECO proposal on Pollutant Release and Transfer Registers 9th July 1997 Delete draft Article 7(2)(g), revise draft Article 4.6 (as appearing in Document CEP/AC.3/R.4 of 10 April 1997 prepared by the small drafting group), and insert a new draft Article 4.6A and Annex X, as follows: Article 4 DUTIES WITH RESPECT TO ENVIRONMENTAL INFORMATION 6. Each Party: (a) [shall][should] [require][encourage] entities whose activities have a significant adverse impact on the environment, to report regularly to the public on the environmental impact of their activities, including their resource and energy consumption; and (b) shall establish a national system for pollutant release and transfer registers, in accordance with and using as a framework at least those elements listed in paragraph 1 of Annex X, which shall be: (i) maintained through periodic reporting, on a mandatory basis, of inputs to, and releases and transfers from, a specified range of activities to air, water, land, on-site and off-site treatment and disposal and the product stream of a specified range of substances, including water, energy and resource use; (ii) compiled through a standardised reporting form for input into a structured computer database permitting production of reports on individual processes and sites, estimates of releases from diffuse sources and aggregation of data. 6A. At the first Meeting of Parties, the Parties shall: (a) consider amending Annex X, and (b) start the preparation of a Protocol to this Convention to harmonise and develop, as appropriate, on the basis of the framework set out in Annex X, national systems for pollutant release and transfer registers. Annex X 1. A national system for pollutant release and transfer registers established pursuant to Article 4.6 shall incorporate at least the following elements: (1) (a) precise geographic location of point sources (b) identification of local geographical area of emissions from diffuse sources on a specified area basis (2) a list of individual reportable substances, established under national legislation, having the following characteristics: explosive, oxidising, flammable, irritant, a risk to health, toxic, carcinogenic, corrosive, infectious, teratogenic, mutagenic, eco-toxic, endocrine-disrupting, neurotoxic, persistent, bioaccumulative, or contributing to global warming or the build-up of tropospheric ozone and other oxidising photo-chemicals (3) energy and water consumption data (4) periodic reporting, from measurements or estimates as appropriate, not less than annually (5) all releases and transfers to air, outer space, freshwater, coastal water, estuarial water, sewers, land, identified and categorised disposal facilities, as well as into products (6) inclusion of accidental releases (7) the basis for estimation of releases (8) on-site inventory (9) waste reduction activities (10) identifiers (i.e., common codes) for data elements such as substances, facilities, installations, processes and locations. 2. The system shall structure data for entry, organisation, analysis and access through computer database management and shall provide for electronic methods for data dissemination. 3. There shall be active and regular public dissemination of each register, particularly to local communities. 4. Commercial confidentiality shall be applied consistently with Article 3. Where such confidentiality is allowed, each register shall indicate what type of data have not been entered onto the register on the ground of commercial confidentiality. 5. Each Party shall, in accordance with the polluter pays principle, consider raising the cost of establishing and maintaining its system (including data collection and data dissemination) from polluters. |
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