ATTN. DELEGATES TO THE 10TH SESSION OF THE WORKING GROUP PREPARING THE DRAFT CONVENTION ON PUBLIC PARTICIPATION (GENEVA, 3-6/3/98)

Dear Sir/Madam,

I am writing on behalf of the NGO delegation to the Public Participation Convention negotiations in connection with two issues which will be discussed at the forthcoming session of the Working Group (3-6/3/98). These issues are:

- commercial confidentiality; - non-compliance mechanism.

We have decided to circulate our views on these matters in advance of the meeting next week in the hopes that delegations which see merit in our proposals will have the opportunity to consult over them at home before coming to Geneva.

Commercial confidentiality (Art 4.4d)

NGOs regard the commercial confidentiality issue as one of the key tests for the Convention. It is undoubtedly one of the most visible yardsticks by which the public will judge the Convention. If they see that no progress has been made on this issue, it will reinforce the impression that many governments are unwilling to constrain the activities of the private sector. Already, the exemption for voluntarily supplied information gives considerable latitude for public authorities to withhold information supplied by businesses.

The discussion on the commercial confidentiality exemption currently hinges on the question of whether or not disclosure of information would or might cause 'significant financial damage'. The NGOs have been strong supporters of the idea of limiting the exemption in some such way. However, with the Chairman's latest proposal on this point, which understandably attempts to find a compromise between those who accept the wording and those who do not, there is a risk that we end up with a text which has marginal benefits and may even under some interpretations have a negative effect. Notwithstanding the 'minimum standard' nature of the Convention (2.5, 2.6), a weak provision on commercial confidentiality could send a dangerous signal to those Eastern European countries, like Hungary and Ukraine, whose new and modern access to information regulations do not contain any references to commercial confidentiality.

Noting the direction in which this discussion is going, we now feel it may be fruitful to re-examine an earlier proposal, namely the proposal that information on emissions to the environment should not be covered by the commercial confidentiality exemption. This is not a new idea in these negotiations, as it was contained in the initial draft text of the Convention and remained in the text up until last August (CEP/AC.3/R.1 and CEP/AC.3/R.4). The reason we are suggesting that this idea should be put back on the table is because some of the countries which opposed it during the early sessions of the Working Group have recently indicated to us that they could now accept it (in revised form) as offering a possible way out of the current impasse.

We are therefore requesting government delegates to give consideration to whether they could accept, in some form, an 'exemption to the exemption' for information on emissions.

Non-compliance mechanism (Art 15)

After the discussion at the 9th session of the Working Group, we cannot claim to be optimistic about prospects of achieving a satisfactory solution on the issue of a non-compliance mechanism. The square-bracketted text which resulted from that session is weaker than any text previously considered during the negotiations. Nonetheless, because of the importance of effective implementation of the Convention, we feel it is necessary to urge delegates to reconsider their positions on this point, in the hopes that a genuine compromise can be achieved rather than just the adoption of the lowest common denominator.

At this stage, we are forced to accept that it will not be possible for governments to reach agreement on the exact form of any non-compliance mechanism before Arhus, and that decisions on this will effectively be deferred to a later date.

On the other hand, there is no reason why the Convention should not commit Parties to actually adopting a non-compliance mechanism at the first meeting of the Parties (as opposed to merely considering whether to do so). This is primarily a question of political commitment. Furthermore, the Convention should also lay down the principle that the public should have access to such a mechanism, even if the precise form of such access needs to be elaborated after Arhus.

We hope that delegates will respond to these proposals in the constructive spirit in which they are offered, and look forward to meeting you again shortly.

Yours sincerely,

Jeremy Wates on behalf of Environmental NGO delegation to the Public Participation Convention negotiations

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