SUMMARY ECO REPORT ON THE 10TH SESSION OF THE WORKING GROUP

Jeremy Wates, European Environmental Bureau
with input from Magda Tóth Nagy and Steve Stec, Regional Environmental Center for Central and Eastern Europe

INTRODUCTION

The 10th and final session of the Working Group preparing the draft Public Participation Convention took place in Geneva, 3-6 March 1998.

At the session, the Working Group completed its work on the draft text of the Convention, producing a text without square brackets, though a number of delegations asked for reservations to be noted in the report of the meeting. The most controversial issues discussed were the non-compliance mechanism for the Convention, commercial confidentiality, public participation in projects involving genetically modified organisms and defence, and the question of whether financial rules should be established under the Convention. One significant event was the agreement of the EU that in principle the Convention should apply to EU institutions.

The meeting also produced a draft text for a Ministerial resolution which would accompany the adoption of the Convention in Arhus.

Both texts have been forwarded to the Committee on Environmental Policy for endorsement at its meeting this week (16-18 March 1998).

HOW THE OUTSTANDING ISSUES WERE RESOLVED

[presented here in the order in which they appear in the draft Convention]

The title

The title was re-named 'Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters'. Some delegations felt a shorter more 'user-friendly' title should be chosen, either as well as or instead of the long title. Belgium had previously proposed 'Convention on Citizens' Environmental Rights', and at the meeting suggested 'Convention on Environmental Citizenship'. Others said the short title would be 'the Arhus Convention'. Some (Denmark, Belgium, NGOs) were in favour of referring to rights in the title, while others (UK, Germany) opposed any reference to rights.

Legislative bodies (Preamble)

A Regional Environmental Center (REC) proposal to include a new recital in the preamble referring to legislative bodies was broadly supported by several delegations (Belgium, Netherlands, also GLOBE and the Chair), with some proposals for textual amendments. The adopted text recognises the desirability of transparency in all branches of government and invites legislative bodies to implement the principles of the Convention in their proceedings.

Genetically modified organisms (Preamble - see also below, Art. 6)

As a compensation for the treatment given to GMOs in Article 6 (described below), the meeting agreed to include a preamble referring to the public concern over the deliberate release of GMOS into the environment. The NGOs attempted to have the text refer also to contained use of GMOs but this was opposed by the EC which argued that the preamble should not refer to something which it had been decided not to include in the operative provisions.

Right to an environment adequate to health and well-being (1)

Although the text of Article 1 was not in square brackets, at the end of the 9th session the UK had entered a last-minute reservation on the reference to guaranteeing the right to an environment adequate to health and wellbeing. At the 10th session, the UK withdrew the reservation.

EU Institutions (2(b)(iv))

The European Commission indicated that the European Community was in principle willing to apply the Convention to EU institutions, and lifted its reservation on the text of 2(b)(iv) which includes the institutions of regional economic integration organisations within the definition of public authorities. However, the Commission said it might be necessary for the Community to make a declaration on the way the Convention will apply to EU institutions.

Public participation in both land use and emission permitting processes (2)

The NGOs proposed a new definition in Article 2 of 'proposed activity' to make it clear that where an activity requires both a land use permit and an emission permit, public participation must be provided for in both processes. The proposal was opposed by the UK, which confirmed the fears of the NGOs by arguing that it was sufficient to provide for public participation in one or other of the processes. No other country supported the NGO proposal, and it was not taken up.

General provision on non-discrimination (3.9)

A Hungarian/Netherlands proposal to add a new paragraph in Article 3 preventing discrimination on the basis of citizenship, nationality or domicile in applying the provisions of the Convention was adopted despite objections from Turkey, which asked for a footnote stating that this provision will be implemented in Turkey according to the provisions of its national legislation. A joint proposal from Finland and the NGOs to extend the provision so as to make it applicable to organisations as well as individuals (by adding a reference to the place of the registered seat or effective centre of activities) was partially successful, with Russia insisting that it should not extend beyond 'legal persons' to cover unregistered NGOs.

Commercial confidentiality (4.4d)

The NGO delegation had written to all other delegations in advance of the meeting asking for an unequivocal obligation in the Convention to the effect that information on emissions to the environment must not be withheld under the commercial confidentiality exemption. Many delegations supported the inclusion of such an 'exemption from the exemption', including: Hungary, Norway, Poland, Italy, Sweden, Ukraine, Albania and the REC.

In the event, the meeting was only willing to adopt a more qualified obligation proposed by France: "Within this framework, information on emissions which is relevant for the protection of the environment shall be disclosed." The words 'Within this framework' follow the phrase "the confidentiality of commercial and industrial information, where such confidentiality is protected by law in order to protect a legitimate economic interest". Another alternative, put forward by Denmark as a compromise proposal, proposed to limit the 'exemption to the exemption' to information on emissions 'which may have a significant effect on the environment', but more governments were willing to accept 'relevant for the protection of the environment'.

The square-bracketted requirement in the opening text to the effect that the exemption could only be invoked where 'disclosure of the information would cause significant financial damage to an economic interest' was threatened with dilution to the point of meaningless (e.g. by proposals to delete 'financial' and replace 'would' with 'might'), and was replaced by the aforementioned reference to a legitimate economic interest.

Public interest test (4.4 tail)

The requirement to interpret the exemptions in a restrictive way 'taking into account the public interest served by disclosure' (4.4, tail) was confirmed without the proposed qualifiers 'where possible' or 'whenever possible'. It was also agreed to add a requirement to take into account whether the information requested relates to emissions into the environment (which would apply to all the exemptions in 4.4, not just the commercial confidentiality exemption). A late attempt by the NGOs to have a stronger form of public interest applying where information on emissions to the environment is concerned did not succeed.

Pollutant release and transfer registers (PRTRs) (5.9)

The proposed obligation in 5.9, 'Each Party shall progressively establish .. a system of pollution inventories' was amended to 'Each Party shall take steps to progressively establish ...', at the insistence of Germany, which was the country most opposed to the entire provision. Germany also attempted to have the requirement that the system be 'nationwide' deleted, claiming that this would create problems for it because of its federal structure. Other alternatives proposed were 'comprehensive' and 'which cover the whole territorial area of the Party', but in the end 'nationwide' was kept and a German reservation noted.

National defence (6.1)

A UK written proposal to allow Parties to exempt activities from the public participation provisions in Article 6 'for reasons of national defence or security' led to a debate on the inclusion of a defence exemption in the public participation pillar of the Convention. A proposal by the Chair to require that such exemption should be on a 'case by case basis' was undermined by the addition of 'if so provided under national law'. In line with another recommendation of the Chair, it was agreed to omit the reference to 'security' as this could be construed widely to refer to internal security. Efforts by Norway, Poland and the NGOs to have a threshhold applied to the degree of threat to defence (Poland proposed 'having significant importance' for national defence purposes), or to have a reference to restrictive interpretation of the exemption analogous to the tail of 4.4, were strongly opposed. A Norwegian proposal to require that in such cases public participation would have to have an 'adverse effect' on national defence purposes was agreed - though even this was qualified by wording giving the discretion to Parties to 'deem' whether it would an adverse effect.

Information to be provided within public participation process (6.6)

Italy clarified that in the EU proposal to add 'where so required under national law' after 'upon request' in the first sentence of 6.6, the new words should not have been preceded by a comma. In other words, a Party would be able to make the making of a request by the public a precondition of providing access to the information in question only if this is reflected in its law. (The comma obviously would give the sentence a very different meaning.) With this clarification, the proposal was adopted.

Regarding the EU proposal to add a minimum list of types of information which should be available to the public within a public participation procedure, some countries (notably Poland) were keen to see the text clarified so that it could not be interpreted as requiring public authorities to produce such information even when it did not exist. Other delegations, while agreeing with the objective, felt such clarification was unnecessary. In view of the restrictive language being applied to some items on the list, the NGOs asked for it to be made explicit that the provision did not reduce the public access provided under Article 4 ('without prejudice to ..'), which was agreed.

A proposal from the Netherlands to add a further category of information, namely 'reports and advice, issued to the public authority by governmental or other advisory bodies, with regard to the assessment of the proposed activity', was opposed by the EC. It ended up being diluted in several ways: with the addition of a lead-in 'In accordance with its national legislation,' by the addition of 'main' before 'reports and advice' and with a time limitation restricting the scope to reports and advice issued to the public authority at the time of notification of the decisionmaking process (thereby excluding, or at least failing to include, reports and advice issued during the decisionmaking process - despite objections from REC and the NGOs).

Public hearings with the applicant (6.7)

It was agreed to adopt an EU proposal, apparently motivated by France, to specify in 6.7 that the public hearing or inquiry to which the public would be entitled to submit comments be 'with the applicant'. Efforts by the NGOs to get an explanation for the reasoning behind the proposal were unsuccessful - though France said that the proposal had come from its associations (NGOs?).

Transportation of waste (Annex I)

An NGO proposal which would require public participation to be provided for in decisionmaking on the transportation of waste (by including this as a new category in Annex I) was supported by Albania, Ukraine, Poland), Norway, GLOBE and the REC, but opposed by the EC, which considered the reference to waste management already in Annex I to be sufficient, as well as Germany, Italy, Uzbekistan, Kyrgyzstan (though wanting to see radioactive waste covered), Russia, Latvia and Switzerland. Even though the NGO proposal (a weakened version of an earlier proposal) gave a lot of discretion to governments to set threshholds above which the provision would apply, it was not possible to find agreement and the proposal was rejected.

Genetically modified organisms (GMOs) (Annex I/Art 6)

An NGO proposal which would require public participation to be provided for in decisionmaking on deliberate release to the environment, and contained use, of GMOs by listing a new category in Annex I was supported by a few delegations (notably Norway, Russia, Poland, Albania, REC and GLOBE), but opposed by several others (especially France, Germany and the EU). Efforts were then made to find a compromise text providing for limited application of the public participation provisions of Article 6 to decisionmaking on deliberate release of GMOs, e.g. by including it under 6.1(b) as proposed by Italy. Netherlands, Denmark and Finland could accept provisions covering 'deliberate release' but not contained use.

The resulting text fails to cover contained use of GMOs, and only applies the provisions of Article 6 to deliberate release of GMOs 'to the extent feasible and appropriate'. It is also qualified by 'within the framework of national legislation', which may be subject to differing interpretations in different countries.

Public participation in development of new methods or products (Annex I)

The Germany-inspired text exempting projects of less than two years duration undertaken for the development and testing of new methods and products from automatic application of the provisions of Article 6 (Item 21 in Annex I) was amended with the addition of 'research' alongside 'development and testing'. Also, the 'exemption from the exemption' for projects holding 'the potential for causing irreversible effect on environment and health' was amended to refer to projects 'likely to have a significant adverse effect on environment or health'. The NGOs, supported by a number of delegations (including Italy, Sweden, Uzbekistan, Austria, Belgium, UK, Norway, Switzerland, Ukraine, Denmark and REC), succeeded in retaining the reference to 'health' in the text, which had been omitted (possibly by accident) from the Chairman's proposal. (During the adoption of the report, the NGOs succeeded in clarifying that the reference to 'environment AND health' in the draft text was supposed to be to 'environment OR health'.) Germany made a brazen attempt to have the two year period extended to four years 'where such a condition is provided under national law', but gained no support.

Extensions of Annex I activities (Annex I)

A Norwegian proposal ensuring that changes to or extensions of Annex I activities would themselves be subject to mandatory application of Article 6 provisions was modified following Italian input so that the scale of the change or extension would itself have to exceed the relevant threshhold in order to trigger such mandatory application (in other words, decisionmaking on a minor change to a major activity would not necessarily require public participation to be provided for). The modified text was adopted, with Germany reserving its position.

Public participation in plans, programmes and policies (7)

A French proposal to refer to each Party's obligation to make 'appropriate PRACTICAL provisions' for the public to participate in the preparation of plans and programmes (instead of just 'appropriate provisions') was amended slightly ('appropriate practical and/or other provisions...') and adopted, despite protests from the NGOs about the further weakening of this article.

Public participation in general rules (8)

A new title of Article 8 was adopted which includes a reference to 'generally applicable legally binding normative instruments' as well as to 'executive regulations' - so the title does not exclude legislation.

More significantly, Italy pointed out that the reference to 'public authorities' in the body of the article itself had been put in the wrong place following the 8th session, so that whereas the text referred to 'during the preparation of executive regulations and ... rules of public authorities', it was supposed to read 'during the preparation by public authorities of executive regulations and ... rules'. This change was agreed upon without dissent, being seen as simply the correction of a incorrect reflection of an earlier discussion. By removing the limitation that the 'rules' referred to should only be those of public authorities, it opens the way for the article (weak as it is) to apply to legislation at the stage where it is being prepared by public authorities.

A proposal from Denmark to strengthen the force of this provision by deleting 'strive to' in the phrase 'Each Party shall strive to promote effective public participation ...' was supported by Belgium, Poland, Ukraine, Romania, Norway, Denmark, NGOs, REC and GLOBE but strongly opposed by Russia, Germany and Turkey. The proposal was withdrawn, along with two other Danish proposals for amendments to this article.

Financial rules under the Convention (10.3)

As at the 9th session, there were sharply divided views on whether there should be the possibility for the Meeting of the Parties to establish financial rules (which could include adoption of a budget with rules on national contributions). The compromise proposal on the table only provided for the possibility of establishing such rules, and then only by consensus. However, France, Switzerland and the UK considered it preferable to deal with financing activities under the Convention within the framework of the UN ECE budget, alongside all the other environmental activities, and wanted to delete the provision entirely to avoid the issue always being on the agenda. Russia also wanted a weaker text. At the other extreme, Italy wanted to delete the reference to the decision being made by consensus, and to add a reference making allowance for the difficult financial position of the countries in transition. In the end, the compromise text was adopted, with UK, Switzerland and France entering reservations.

Status of NGOs in Meetings of Parties (10.4, 10.5)

In response to pressure mainly from Russia, it was agreed that representatives of NGOs and intergovernmental bodies participating in Meetings of the Parties should be described in 10.4 and 10.5 as 'observers' - despite the objection that this term suggests a far more passive role than has actually been played during the negotiations. (The alternative option, preferred by the NGOs and REC, simply referred to participating 'without the right to vote'.) Netherlands and Austria supported a reference to continued participation of NGOs on the same basis as in the negotiations, but it was agreed to address this in the resolution (see below).

The question of REC's status was discussed, with REC stating that it was not covered either by 'non-governmental organisation' or 'intergovernmental organisation'. It proposed to add 'or international' before 'organisation'. Switzerland, UK, Denmark and Austria sympathised with REC's situation. However, the Chair suggested this should be discussed in the context of the resolution (see below).

Procedure for amending annexes

The procedure for amending annexes outlined in 14.5 was adopted, with only the UK expressing some misgivings but not wishing to block a consensus.

Non-compliance mechanism

As at the 9th session, the outcome of the discussion on the question of a non-compliance mechanism (Article 15) was one of the least satisfactory in the course of the meeting, mainly due to the strong opposition from Russia, and to a lesser extent Turkey, to any meaningful non-compliance mechanism.

The opening text was already a poor shadow of more ambitious draft texts produced earlier on in the negotiations. It only required Parties to 'consider' the establishment of a procedure/mechanism at their first meeting, and stated that the procedure 'may' (not 'shall') include the consideration of communications from members of the public.

The NGO coalition circulated a paper prepared by Yves Lador of Earth Justice with input from Peter Roderick of EarthRights/FoE arguing for strengthening the very weak texts being discussed and including tables showing that virtually all the governments present in the negotiations had already signed and ratified other instruments in the field of human rights with provisions at least as far-reaching as those envisaged in the text of Article 15.

Belgium, Finland, Denmark, Sweden, Hungary and the Czech Republic circulated a text which put an obligation on Parties to actually establish (not just consider establishing) a procedure and mechanism at their first meeting, and requiring the procedure to include an optional mechanism for consideration of individual complaints from the public. However this text was too radical for Russia and with respect to the second part, too detailed or far-reaching for the UK, Germany, Italy and France.

Belgium was then invited to consult with Russia and produce a compromise text. The new text reverted to 'shall consider establishing' as opposed to 'shall establish', referred to 'arrangements' rather than procedures or mechanisms, with those arrangements to be established by consensus (giving a single Party the power of veto). Furthermore, the obligation was no longer tied to the 'first' Meeting of the Parties.

This was regarded by many delegations as a very weak text (Denmark: "this text is below the bottom", UK: "we are on the verge of adopting the weakest text on non-compliance in any international environmental law"). However, Russia still sought to weaken the text further, proposing to replace 'shall' with 'may' in the first sentence, and also to introduce the word 'optional' in the first sentence.

As a further and final concession, the second of these proposals was accepted, so the 'arrangements' are to be optional - even though it was pointed out that the 'consensus' requirement gave countries a veto over the introduction of arrangements in which they would have no obligation to participate. (In fact, at one point towards the end of the discussion, it seemed as if Russia might accept a REC proposal for "shall establish optional arrangements ...", i.e. containing 'optional' but keeping 'shall establish' without the consensus requirement, but this was not fully put to the test - at least in the meeting - and the moment passed.)

DRAFT RESOLUTION

The text of the draft resolution to accompany the adoption of the Convention was discussed. Some parts of the draft represent declarations of principle, whereas others have a bearing on the practical steps towards implementation of the Convention. Only the main items of discussion are mentioned here.

Capacity building: an NGO proposal to include some text on the importance of capacity building was accepted.

Democracy: Russia at one point argued against a recommendation to 'strengthen democracy', protesting that it was experiencing so much democracy that it could not adopt a national budget. Then it agreed to accept a reference to strengthening 'the process of democratisation.'

NGO participation in future activities under the Convention: A draft text referring to the 'active and constructive role' played by the NGOs and others in the development of the Convention and recommending that they be allowed to participate in the same manner in the Meeting of Signatories and its activities was discussed. Russia preferred 'in the same spirit' to 'in the same manner' and France was concerned not to pre-empt the adoption of rules of procedure for the Meeting of Parties. The text was agreed, taking account of the concerns expressed.

NGO participation in other intergovernmental organisations: Italy proposed recommending that NGOs be given the same opportunities to participate in other intergovernmental organisations as in the Convention drafting process. This remains in square brackets.

GMOs: As further compensation for the way in which GMOs were dealt with in Article 6, it was proposed to include a paragraph on the subject in the resolution. Italy submitted a proposal which referred to the importance of applying the Convention to GMOs and requested the Meeting of the Parties to decide on the extent of application at its first session. The UK proposed an amendment which on the one hand limited the reference to deliberate release of GMOs (i.e. excluding contained use), and on the other, used slightly stronger language with respect to the first Meeting of the Parties ('... further develop the application of the Convention by means of inter alia more precise provisions...'). The amended text was provisionally adopted but left in square brackets.

Role of the REC: the REC was concerned that the resolution should accommodate its status as being neither a governmental body nor purely non-governmental. Initially it sought a specific reference to the REC and its role in the implementation process. However, it was forced to settle for a reference to article 10, para 2c (which refers to 'competent international bodies'.

Steps towards implementation: Whereas the opening draft referred to supporting implementation through 'an advisory board of prominent experts, including experts from NGOs, to assist in the process of ratification and implementation', the text adopted makes no such reference and instead puts emphasis on the role to be played by the meeting of signatories, namely, to identify activities needing to be taken pending entry into force, reporting to the CEP on progress and preparing the first Meeting of the Parties.

NGO Participation in the meeting

On the third day of the session, one member of the NGO delegation, Peter Roderick, attempted to attend a lunchtime EU co-ordination meeting where it was expected that the EU would reach a common position reflecting the views of the more conservative countries, by out-voting the more progressive countries. After some intense exchanges, he left the meeting.

Back in the plenary, following the discussion of the GMO issue, Peter Roderick made a statement to the meeting expressing his deep dissatisfaction with how this crucial matter had been resolved and left the negotiations (see Peter's statement on our Websites or available on request).

COUNTRIES POSITIONS

Recital on legislative bodies:
Best: Belgium, Netherlands

Non-discrimination:
Worst: Turkey (also Russia with respect to the NGO-Finnish proposal)
Best: Hungary, Netherlands, Finland, Lithuania, Norway, EU,

Commercial confidentiality:
Worst: EU, Germany, Netherlands, France
Best: Norway, Denmark, Hungary, Ukraine, Austria, Italy, Albania, Poland?

Public interest test:
Worst: Germany
Best: Italy, Norway

PRTRs:
Worst: Germany
Best: Denmark, Belgium, Norway, EU, UK

Information to be provided within public participation process
Worst: EC, Germany, France
Best: Netherlands, Norway, Italy, Poland

Public participation in plans, programmes and policies
Worst: France

Defence:
Worst: Italy, Germany, UK, EC, Romania
Best: Poland, Norway

Waste:
Worst: EU, UK, Turkey, Germany, Switzerland, Uzbekistan, Latvia
Best: Poland, Ukraine, Albania, Norway.

Genetically modified organisms:
Worst: France, Germany, Netherlands?, UK, EU
Best: Norway, Russia, Poland, Denmark (but unwilling to cover contained use), Albania

Public participation in development of new methods or products
Worst: Germany

Public participation in general rules:
Best: Italy, Denmark, Belgium, Poland, Ukraine
Worst: Russia, Germany, Turkey

Financial rules under the Convention:
Worst: UK, Switzerland, France
Best: Italy, Turkey, Netherlands, Denmark, also Norway, Romania, Sweden, Finland, Ukraine.

Status of NGOs in Meetings of the Parties:
Worst: Russia
Best: Netherlands, Austria

Non-compliance mechanism:
Worst: Russia, Turkey
Best: Norway, Belgium, Finland, Denmark, Sweden, Hungary, Czech Republic, Poland

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