2.6 Relevant international instruments
The Declaration adopted at the U.N. Conference on Environment and Development (UNCED), in Rio de Janeiro in 1992, includes an important statement on the right to information on the environment. Principle 10 of the so-called Rio Declaration provides, in relevant part:
"At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes."
This statement forms the springboard for the subsequent adoption of the Sofia Guidelines discussed below.
Chapter 40 of Agenda 21, also adopted at UNCED, contains important provisions on information for decision-making as well. Worth noting here are the call for "attention [to] be directed to the quality of the information and the ease with which users can find the appropriate, accurate and timely information they require" (para. 35); and the concern that as access to information improves for some, "the gap between these groups and those who are not able to keep pace will widen dramatically" (para. 38).
The Environment Ministers of the UN ECE region's countries (comprised of more than 50 states including all of Europe) adopted Guidelines on Access to Environmental Information and Public Participation in Environmental Decision-making at their third Ministerial Conference in Sofia, Bulgaria, in October 1995.
The Guidelines draw significantly on the provisions of the EU's Directive on freedom of access to environmental information and in certain respects go beyond what the Directive requires. The Guidelines are however just that, guidelines, and are not binding. They are significant in that they do reach beyond the EU to all the countries of Europe as well as a number of former Republics of the Soviet Union, including states where access to environmental information rules have yet to be adopted.
The ECE Guidelines are in four sections including one on access to environmental information. The Guidelines cover most of the key issues pertaining to access to environmental information in its "passive" mode.
Notable elements of the Guidelines are:
- the presumption in favour of access to environmental information for any person (i.e. in principle, all environmental information should be available to any person unless it falls in an exempt category);
- a fairly broad definition both of environmental information, and of the bodies which are supposed to supply it;
- a requirement that in each case where it is proposed to withhold information, the public interest served by disclosure must be taken into consideration;
- a qualified requirement to limit charges for information to the costs of reproduction and dissemination (qualified by "where appropriate"), with the right to inspect information free of charge;
- a requirement that where information is held in various forms, it should be supplied in the form specified by the person requesting the information (a measure which could significantly reduce the costs of information, where for example voluminous reports can be obtained on diskette or accessed through a modem).
Some of these aspects go slightly further than the EU Directive and (notwithstanding their non-binding status) could point the way to possible changes in the Directive in the course of its forthcoming review. On the other hand, other access to information elements in the Guidelines have drawn criticism from environmental NGOs and other groupings13, on the grounds that they replicate provisions of other legislation, including the Directive, which have been found wanting. Among the points raised are the following:
- the wide range of broadly defined categories of information which may be exempt from disclosure (in particular, information relating to matters which have been, but are no longer, sub judice or under enquiry; commercially confidential information; and voluntarily supplied information);
- the failure to include in express terms information relating to human health in the definition of environmental information;
- the blanket exemption of legislative bodies from the obligation to supply information;
- the length of the time-frame allowed for a response to a request for information (six weeks, only slightly less than the two months allowed under the EU Directive) and the lack of clarity as to whether the information is actually meant to be supplied within that period or merely that a response must be given.
In endorsing the ECE Guidelines, the Ministers invited the ECE "to review their implementation in 1997 and to report to the next Conference".14
The Guidelines themselves also address the question of their own implemen-tation:
- states are encouraged to use a "broad consultative process" in developing the necessary strategies for implementing the Guidelines;
- reference is made to the need for "a clear regulatory framework providing procedural and institutional guarantees and proper enforcement programmes" in order to achieve effective implementation of access to environmental information and public participation in environmental decision-making processes;
- specific measures which states are to a greater or lesser extent encouraged to introduce are the designation of information officials, the use of Ombudspersons and educational and training activities;
- states are urged to "promote regular monitoring of the implementation of the present Guidelines". States are also requested to "support ongoing activities and facilitate the exchange of experiences of implementation";
- a recommendation is made that "states should report about the progress made in implementing the present Guidelines to the United Nations Economic Commission for Europe not later than two years after the adoption of the document", i.e. October 1997.
In Sofia, the ECE Environment Ministers also agreed that the possibility of a Convention on Public Participation should be considered, with "appropriate involvement" of NGOs. Negotiations for such a Convention have indeed commenced, as discussed in section 3.3 below.
Even assuming that a Convention is adopted by the target date of mid-1998 and that it covers the same ground as the Guidelines, it would be a number of years from now before it would enter into force. Even after that time, the Guidelines will continue to be relevant for any state which has not signed the Convention.
12 This section is drawn from J. Wates, AThe UN ECE Guidelines and draft Convention on Access to Environmental Information and Public Participation in Environmental Decisionmaking@, in Access to Environmental Information in Europe, note 1 above.
13 Notably the European Parliament (PE 213.458/fin.), GLOBE EU (Global Legislators' Organisation for a Balanced Environment) and the federation of European Green Parties.
14 Sofia Ministerial Declaration, para. 43.
For references, please go to www.eea.europa.eu/soer or scan the QR code.
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