REC: The Bulletin 8/2: Convention opens door to public

P U B L I C   P A R T I C I P A T I O N

Convention opens door to public

Magda Toth Nagy, leader of the REC's Public Participation Program, assesses the strengths and weaknesses of the Aarhus Convention, where tough negotiations led to a compromise document that represents a dramatic first step.

TOP ENVIRONMENTAL OFFICIALS signing the document, from left: Dr. Ante Kutle of Croatia, Madame Dominique Voynet of France and Mr. Svend Auken of Denmark.

The highlight of the conference in Aarhus came June 25, when the European Union and 35 governments signed the Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters — guaranteeing citizens the right to influence environmental decisions.

After two years of difficult negotiations, through the framework of the United Nations Economic Commission for Europe (UNECE), the final "Aarhus Convention" was a compromise, hammered out to gain consensus of diverse governments. The process benefited from the unprecedented participation of nongovernmental organisations (NGOs), including a pan-European NGO Coalition, the Regional Environmental Center for Central and Eastern Europe (REC) and others, without whom many new initiatives would not have been raised.

The Convention goes well beyond norms existing in international law and national environmental legislation in many countries. Some positive elements include:

a right-based approach whereby access to information, participation and justice are based on the right to a healthy environment;
a definition of public authorities extending to all governmental bodies (including non-environmental authorities), as well as to private bodies providing services under the control of public authorities;
the principle that any member of the public has the right to information without discrimination and without having to state an interest;
a broad definition of environmental information, including environmental-related human health information;
a public interest test for virtually all exemptions to access to information;
a limitation of the commercial confidentiality exemption so that it does not apply to information on emissions relevant to environmental protection;
early notice and public participation requirements for specific decisions having significant impact on the environment including an obligation to take a due account of the outcome of the public input;
assurance of expeditious and inexpensive review by an independent body for denial of requests for information or participation;
the inclusion of EU institutions;
the requirement on parties to promote the application of the principles of the Convention in international bodies in matters relating to the environment.

Although the Convention is perceived by many as a big step in the right direction, there is a need for further improvement. Several governments and the NGOs sought stronger provisions on some issues, but the divergence of views meant that not everyone could be satisfied. NGOs welcomed the Convention, though they did not hide their criticism over the many weaknesses, loopholes and ambiguities, including:

requiring the establishment of pollutant release and transfer registers (PRTRs) but deferring the obligation to the future;
keeping an extensive, vague and circular list of exempt categories of information;
lacking a clear, binding requirement for making certain categories of environmental information available on the Internet;
failing to adequately include human health issues under the participation and justice pillars;
failing to provide strong public participation requirements in decisions on plans, programs, policies and lawmaking relating to the environment.

SPOTLIGHT
Doors to Democracy: A Pan-European Assessment of Current Trends and Practices in Public Participation in Environmental Matters This report is based on an examination of both laws and actual practices in 31 European countries. The report shows that, although Europe is moving slowly in the direction of more participatory forms of democracy, major problems still exist in each of the main regions. Whereas Eastern European countries tend to have constitutional provisions protecting rights to information, participation and justice, the development of specific detailed laws capable of delivering these rights in practice is quite limited in many of these nations. In Western Europe, specific laws setting down concrete procedures are more developed, especially in the field of information, but there are large variations within the region. (For more info on the complete Doors to Democracy series, see the REC publications for Aarhus)

SPOTLIGHT

Doors to Democracy: A Pan-European Assessment of Current Trends and Practices in Public Participation in Environmental Matters

This report is based on an examination of both laws and actual practices in 31 European countries. The report shows that, although Europe is moving slowly in the direction of more participatory forms of democracy, major problems still exist in each of the main regions. Whereas Eastern European countries tend to have constitutional provisions protecting rights to information, participation and justice, the development of specific detailed laws capable of delivering these rights in practice is quite limited in many of these nations. In Western Europe, specific laws setting down concrete procedures are more developed, especially in the field of information, but there are large variations within the region. (For more info on the complete Doors to Democracy series, see the REC publications for Aarhus)

  The most crucial areas which the Convention failed to address, due to strong controversies, include the weak compliance mechanism for the Convention, the broad exemption for information voluntarily supplied by industry and the omission to include a guarantee for public participation rights in decisions related to genetically modified organisms (GMOs).
  Several countries did not sign the Convention in Aarhus. Until the last moment it was unclear whether Germany, Russia and Turkey would sign the Convention. These countries, for whose sake significant compromises were accepted in the hopes of an eventual signature, seemed to agree on the last draft of the Convention, but in the end decided not to sign. Canada and the U.S. opted out from signing. Minister Angela Merkel said Germany needed more time to decide whether or not to sign the Convention. Were Germany to sign it within the next six months, it would need to include reservations on a number of essential provisions.
  Ukraine, Kazakhstan, Moldova, Georgia and Armenia were among those NIS countries signing the Convention in Aarhus. Russia indicated its willingness to sign the Convention in the future.

"The new Convention constitutes a milestone in increasing transparency and participatory possibilities in the environmental arena. It will help put an end to environmental secrecy."
Yves Berthelot,
Executive Secretary, UNECE

  Many of the Central and Eastern European (CEE) countries are in a good position to be able to sign and ratify the Convention early. The negotiations and signature of the Convention are among the first instances where several transition countries are actually "leapfrogging" past some of the Western European nations, at least in their legislative texts. Their environmental legislation developed in the early or mid-90s already has incorporated many significant elements of the Convention.
  Among the 14 CEE countries in attendance only Bosnia & Herzegovina, Hungary and Slovakia did not sign. FYR Macedonia submitted a Declaration in lieu of signing. Hungary, having an interim government at the time of the Conference, was not in a position to sign but expressed support and current compliance with the principles of the Convention. Slovakia, which kept a low profile during the negotiations, might have the chance to reconsider its position after the upcoming elections.
  There are a few issues where the existing provisions already show future directions for improving or further developing the Convention. The most important are: the introduction of a strong compliance mechanism involving strong public participation; a legally binding instrument with a full regulatory scheme for PRTRs; effective mechanisms to guarantee public participation in decisions related to GMOs; stronger requirements for public participation in the preparation of policies, plans, programs and lawmaking relating to the environment; clear mechanisms for citizens to enforce provisions of national law relating to the environment and health; measures to increase public availability of environmental information through electronic means; and an action plan to build domestic civil society capacity to implement the Convention.
  Some initiatives for the early implementation of the Convention were already announced at Aarhus.
  Kaj Barlund said the UNECE is ready to propose a work program for the implementation of the Convention. The UK government offered to host a workshop early next year. Jernej Stritih, Executive of Director of the REC had suggestions on assistance for the CEE countries to facilitate the implementation process and capacity building for NGOs, ministry officials and local authorities on practical aspects of access to information, public participation and access to justice.

REC * PUBLICATIONS * THE BULLETIN * SUMMER 1998