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The International Journal
of Not-for-Profit Law

Volume 3, Issue 1, September 2000

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Articles

The Relationship Between the Governmental and Civil Sectors in Hungary
By István Csóka

Tax Incentives for Nonprofit Institutions: Analysis of International Experience
By Ignacio Irarrázaval and Julio Guzmán

The Definition of Religion in Charity Law in the Age of Fundamental Human Rights
By Kathryn Bromley

The Taxation of NPOs in South Africa
By Karen Nelson

The Aarhus Convention and its Practical Impact on NGOs Examples of CEE and NIS Countries
By Czelaw Walek

Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms
By Wino Van Veen

Creation of a Special Legal Framework for NGOs [Spanish]
By Maria Beatriz Parodi Luna

Reviews

Charity Law
By Kerry O'Halloran
Reviewed by ICNL Staff

Cross-Border Philanthropy: An Exploratory Study of International Giving in the United Kingdom, United States, Germany and Japan
Edited by Helmut K. Anheier and Regina List
Reviewed by ICNL Staff

Case Notes

Central and Eastern Europe:
Serbia

Latin America and the Caribbean:
Venezuela

Middle East and North Africa:
Egypt

Western Europe:
Negative Freedom of Association: Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms

Country Reports

Asia Pacific:
Australia

Central and Eastern Europe:
Regional
| Bulgaria

Latin America and the Caribbean:
Venezuela

Middle East and North Africa:
Regional

Newly Independent States:
Moldova
| Ukraine

North America:
Canada
| Mexico | the United States

South Asia:
India | Pakistan

Sub-Saharan Africa:
Ethiopia
| South Africa

Western Europe:
Regional | Italy | Turkey

International

International Grantmaking

Program-Related Investments: Domestic and International
By David S. Chernoff

New International Grantmaking Website Unveiled
By Rob Buchanan

Review of a New International Grantmaking Website
By Peter deCourcy Hero

- - - - - - - - - -

Editorial Board

The Aarhus Convention and its Practical Impact on NGOs Examples of CEE and NIS Countries

By Czeslaw Walek[1]

The Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters introduces a new environmental agreement between public authorities and the public in general. The agreement imposes clear obligations on public authorities to provide and facilitate access to environmental information to the general public, to involve the public in the decision-making process on environmental issues, and to guarantee access to justice for individuals and NGOs in case of a breach of environmental law and/or provisions of the convention. In addition, it is also worth mentioning the convention’s significance in providing a clear link between environmental rights and human rights.[2] For example, Article 1 of the Convention places the right to healthy environment among basic human rights and extends this concept to a set of legal obligations.[3]

The term ‘public,’ as used in the Convention, is defined as any legal or natural person, and their associations, organizations or groups. Therefore the Convention uses the broad definition without substituting ‘public’ with non-governmental organizations.[4] Nonetheless, certain provisions of the Convention grant more favorable treatment to environmental NGOS.[5] The Convention is of tremendous importance to NGOs and not only to those active in the environmental field. The Convention may be considered as a first step towards participatory practices in other fields of social life. This paper focuses on the possible impact of the Convention on place and role of NGOs and their new position in interactions with the state.

I. General Information

The Aarhus Convention was adopted at the UN ECE Fourth Ministerial Conference of “Environment for Europe” in Aarhus – Denmark, on 25 June 1998.[6] Although 39 countries and European Community signed the document, only eight states have become parties to the Convention (all of which are countries either from CEE or NIS). According to Article 20 of the document, the Convention shall enter into force on the 90th day following the date of deposit of the sixteenth proof of ratification, acceptance, approval or accession.

Out of the 39 countries signatories and 8 parties to the Convention, 20 countries are from CEE and NIS. In addition, the European Community is also signatory of the Convention, so we may expect that countries applying for accession to EU (e. g. Slovakia) will sign the Aarhus Convention in the near future. The reason for the rather slow ratification by states signatories is in the new approach of interaction between the public and public administration introduced by the Convention, which requires innovative methods of implementation.[7] Nevertheless, according to the Committee on Environmental Policy, the Convention should enter into force by the end of the year 2000. Twenty-two countries indicated that they are prepared to ratify the Convention by the end of year 2000 at the first meeting of the Signatories to the Convention held in Moldova.[8]

Table 1 (the current state of ratification):[9]

Country

Date of Signature

Ratification, Acceptance,

Approval, Accession

Albania

25 June 1998

 

Armenia

25 June 1998

 

Azerbaijan

 

Accession - 23 March 2000

Belarus

16 December 1998

Approval - 9 March 2000

Bulgaria

25 June 1998

 

Croatia

25 June 1998

 

Czech Republic[10]

25 June 1998

 

Estonia

25 June 1998

 

Georgia

25 June 1998

Ratification - 11 April 2000

Hungary

25 June 1998

 

Kazakhstan

25 June 1998

 

Latvia

25 June 1998

 

Lithuania

25 June 1998

 

Poland[11]

25 June 1998

 

Republic of Moldova

25 June 1998

Ratification - 9 August 1999

Romania

25 June 1998

Ratification - 11 July 2000

Slovenia

25 June 1998

 

The Former Yugoslav Republic of Macedonia

 

Accession - 25 July 1999

Turkmenistan

 

Accession - 25 June 1999

Ukraine

25 June 1998

Ratification - 18 November 1999

The Convention is divided to six parts: the preamble, general provisions, access to information, public participation in decision-making, access to justice and the final provisions. The preamble recalls the origins of the Convention, and sets the goals of the document. In particular, the preamble underlines two concepts: the link between environmental rights and human rights and the promotion of sustainable and environmentally sound development by the public authorities. The general provisions set up the objective, definitions and principles of the Convention. Although the vast majority of the state’s obligations are set forth in the following three parts, Article 3 imposes certain obligations on states, which apply to the whole Convention. States are obliged to introduce and undertake such legislative, enforcement or other measures that would establish a framework for the implementation of this document.[12]

Example:

The Ministry of Environment of the Czech Republic has established a specific Working Group to coordinate the implementation and ratification of the Aarhus Convention. The Working Group is comprised of senior officials from the Ministry of Environment, representatives of other levels of the state environmental administration, a representative of municipal self-management administration, academics and non-governmental organizations. The Working Group has established its Secretariat, which is located at an independent NGO and jointly funded by the Ministry of Environment and partly by the Regional Environmental Center for CEE. [13]

Article 3 of the Convention further develops the obligation of facilitating access to information by promoting environmental education and awareness.[14]

Although generally the Convention does not substitute NGOs for the public, in some provisions it treats environmental NGOs advantageously. Paragraph 4 of Article. 3 provides that: “each party shall provide for appropriate recognition of and support to associations, organizations or groups promoting environmental protection….”[15] Consequently, environmental groups interpreting this provision may expect a state to provide appropriate legislation on the formation and registration of NGOs in order to avoid creating unnecessary obstacles for those groups. In addition, states should provide environmental NGOs with support, such as tax benefits or even financial support. States may chose to treat environmental organizations differently than other non-governmental organizations in order to comply with the Convention. However, most of the states prefer to create common rules for the creation, registration and functioning of the NGO sector as well as to provide common forms of support of NGOs.

Example:

Hungary provides different funding for environmental NGOs through National Environmental Funds (NGOs are also involved in decision-making on the criteria, distribution and evaluation of grants). Hungarian law, however, also provides general support to NGOs working in all sectors; the Hungarian Parliament has adopted the so-called “1% law,” providing that each citizen may assign 1% of income tax to support certain NGOs. In addition, Hungarian NGOs may also apply to the Hungarian Parliament for funding.[16]

The final provisions of the Convention deal with management, implementation and institutional matters, as well as amendment and dispute procedures. The implementation procedure is of a monitoring rather than judicial character. States are obliged to report regularly on state of implementation of the Convention,[17] and parties should examine those reports at their regular meetings. However, such reviews shall be established on a “consensus basis, as optional arrangements of a non–confrontational, non-judicial, and consultative nature.”[18] In addition, the Convention sets requirements for appropriate public involvement in reviewing implementation reports, a process which may include public communication.[19] Moreover, according to Article 10 para. 5, NGOs may enjoy observer status at Parties Meetings under certain circumstances. “NGOs wishing to participate at a meeting of the Parties must submit to an admission process that requires:

Example:

The following NGOs were represented at the first meeting of signatories to the Convention, held in Moldova in 1999,: the American Bar Association Central and East European Law Initiative, Environmental NGO Coalition, GLOBE Europe Network, the Congress of Local and Regional Authorities of Europe and the Regional Environmental Center for Central and Eastern Europe. This last organization reported on the preparation of an implementation guide, which was welcomed by the participants who decided to sponsor and publish this project.[21]

II. Access to Environmental Information

Articles 4 and 5 create the first substantial pillar of the Convention. ‘Environmental information’ is not directly defined in the Convention, though Article 2 para. 3 deals with that issue. However, this provision should be treated as a minimum standard, which shall be developed further by the signatory countries. Articles 4 and 5 deal with the public at large, hence the broad interpretation of ‘public’ is used for the purpose of those provisions.

Examples:

The NIS countries legally guarantee access to environmental information without discrimination on the grounds of citizenship and nationality. In addition, persons may request information without having to prove legal interest in the matter. However, Albanian practice concerning access to information concerns mostly persons who prove interest. Lithuanian law allows access to information only to citizens or national NGOs.[22]

Article 4 deals with the passive role of the state in providing a system of information that would allow the public to request environmental information from public authorities. In general, a country shall adopt appropriate legislation regarding access to environmental information, which would not only set up institutional conditions of this system and requirements as time or form limits, but also would define the exemptions and charges for providing services. The Convention does not specify whether a state should adopt specific legislation concerning access to environmental information or whether the general law on access to information would be sufficient tool to achieve this goal. However, the wording of para. 1 of this provision gives states flexibility in terms of forms of legislation. Although states are obliged to provide environmental information on request, they shall do it “within the framework of national legislation.” Therefore, states may chose to adopt specific laws dealing with access to environmental information, to regulate this matter within the environmental laws, or they may issue a general law dealing with access to information that would include rules on environmental information.

 Examples:

The Polish legislature included provisions on access to environmental information into the Draft of the Law on Environmental Protection (see Part III of the Draft).[23] The Czech legislature chose to adopt a Law on the Right to Environmental Information (no. 123/98) and Law on Free Access to Information (no. 106/ 1999).[24]

Public authorities have an obligation to appropriately respond to a request for environmental information. The form of the request has not been determined. However, the Convention does prescribe the manner in which a public authority shall reply to requests. A public authority also has the obligation to provide copies of any requested documents and to respond in a reasonable time without any conditions. Article 4 para. 3 deals with refusal of the request and its conditions. Paragraph 8 of the provision requires public authorities to limit the amount charged for providing services to a reasonable amount.  

Example:

In Hungary, NGOs and foundations are exempt from charges by public services for providing information. In various NIS countries (Belarus, Armenia) ministerial decrees stipulate that information provided by the state shall be accessible free of charge. [25]  

Article 5 contains a requirement of a more active approach by public authorities. In general, it requires parties to collect and disseminate environmental information, clarifies in detail what information shall be collected and disseminated, and gives a range of concrete forms by which information shall be collected or disseminated- while leaving to countries the freedom to choose between forms. Examples of information that shall be collected and disseminated include emergency information, product information, pollutant releases, information on laws (national and international), policies and environmental strategies as well as country reports on the state of the environment as well as reports on the functioning of public authorities in this area. These types of information have an impact on everyday people’s lives, hence there is a need for updated information on those matters.

In particular, states shall guarantee that public authorities possess and update information relevant to their activities. Moreover, states shall ensure that mandatory system, which would monitor and disperse among public authorities information on activities affecting the environment, will be established.

Example:

Belarusian Ministry of Statistics collects information on emission, discharges, waste disposal and environmental protection measures from all enterprises. [26]

Appropriate authorities also shall make sure that the public is aware of the information an authority possesses and under what conditions information may be obtained. The Convention proposes concrete ways through which states may gain this goal: creating public lists, registers or files; and establishing and maintaining individual points of contacts. The Convention encourages states to support the dissemination of environmental information- in particular, reports on the state of environment, texts of relevant legislation, policies, programs, plans relating to the environment - through electronic databases.

Examples:

In Armenia, public authorities are legally bound to prepare an annual report on state of environment. In Ukraine, a similar report is available in electronic form. In Estonia, polluters have a legal obligation to inform public about accidental pollution. Most of the CEE countries already publish legislation in electronic form (the Czech Republic, Poland, Hungary, Slovenia).[27]

NGOs, especially those with an environmental focus, should expect states to create and maintain a system that would collect public environmental information in a transparent and effective manner. Moreover, public authorities have an obligation to provide environmental information upon the request of NGOs, which is of particular relevance in regards to decision-making, environmental policy and strategy, legislation, as well as draft of legislation in environmental matters. This pillar of the Convention should serve as a useful tool for the public, including NGOs, to gain environmental information which in turn will provide the opportunity to effectively participate in decision-making.

III. Public Participation in Decision-Making

Public participation should be treated as the most significant aspect of the Convention for NGOs. The idea had already been incorporated into other international documents, but the way the Convention regulates this matter is rather novel. No common pattern exists for public participation practices. As the Convention does not explicitly define the term, each country shall develop its own practices. However, “in minimum [public participation] requires effective notice, adequate information, proper procedures and appropriate taking account of the outcome of public participation.”[28] The Convention limits understanding of the term ‘public’ as used in public participation to the ‘public concerned’ in Article 6 and goes even further with limitations in Article 7. Article 2, para. 5 defines the ‘public concerned’ as “the public affected or likely to be affected by, or having an interest in, the environmental decision-making….” This provision considers non-governmental organizations promoting environmental protection as having an interest. The term ‘public’ as used in Article 7 refers to the groups and individuals distinguished by public authority. This provision leaves much flexibility to public authorities in this matter. However, if read in conjunction with other provisions of the Convention, it is clear that although the state has the freedom to chose who shall participate in policy-making, it should set up a transparent and accessible procedure of determining this individual or group.

Article 6 requires parties to ensure public participation in decision-making regarding environmental issues. Annex I further specifies the matters in which public participation shall be applied. In addition, Annex I para. 1 b) extends its scope to activities that may have a significant effect on the environment. This provision does not specify how public authorities should guarantee public participation in decision-making, therefore sufficient flexibility is left to countries in this regard. Paragraph 2 of this provision compels countries to inform the public about the decision-making process early on, so interested members of the public may have sufficient time to respond and actively participate in the process. The public notification required of the government shall be effective- it is not enough to simply contact the public. The public authority must make sure that its message is understood. The Convention requires not only public notification about the decision-making process, but also individual notices must be issued if appropriate. Hence, we may expect that active environmental NGOs should be individually contacted on key environmental issues. The provision also determines in concreto the content of such a notification,[29] including specific rules concerning public confrontation procedure (which should include: the starting date of the procedure; forms of public participation; time of public hearings; identification of the responsible public authority; identification of the contacting authority; and identification of available and relevant environmental information).

Although Article 6 applies to all environmental decision-making procedures in highlighted matters, the most significant form of decision-making falling under this provision are Environmental Impact Assessments (EIA).[30]

Examples:

European Council issued a Directive No.85/337/EEC on the assessment of the effects of certain public and private projects on the environment amended by Directive 97/11/EC, in which determines participation of public in environmental decision-making. Most of CEE countries have already incorporated or are going to incorporate this Directive to their legislation (the Czech Republic, Slovenia, Poland, Estonia, Latvia).[31]

The Czech draft law on Environmental Impact Assessments imposes a duty on the relevant public authority to inform and consult any NGO that requested so about proposed environmental scheme. NGOs have then right to comment proposed scheme within 15 days. An appropriate public authority is obliged to inform those NGOs about development in decision-making as well as sending all relevant documentation. At the time of reviewing the proposal, public authority shall take into account all comments received relating to the matter. On the ground of this review an appropriate public authority establishes its position, which is a ground for decision-making in the matter. (Although both a position of an authority as well as the decision are referred to public, their opinion is taken into account only during composing a review).

Moreover, a public authority is obliged to inform the public on documentation collected during the  procedure and during public hearings. Article 27 of the draft further specifies what shall be included in such information: a) announcement of scheme and announcement of environmental conception, when and where it is possible to examine them b) place and time of any public hearing; c) proposal of content of required documentation, when and where it is possible to examine them; d) content of documentation of scheme and environmental conception, when and where it is possible to examine them or information on returning a documentation for its revising e) documentation of scheme and environmental conception, when and where it is possible to examine them; f) review of proposed scheme and environmental conception, when and when it is possible to examine them. The authority shall also make public the position to scheme and environmental conception. Furthermore, the provision determines the way in which appropriate public authority shall inform public.

Article 28 deals with public hearings and obliges public authority to inform the public of a hearing's content 5 days prior to the hearing. A public hearing shall be held at least 5 days before a deadline for delivering position to environmental scheme or conception.[32]

According to this draft, the public is asked its opinion during the decision-making process- although the public's position may not be fully taken into account. Moreover, only those NGOs that request so are invited for consultations. In practice, NGOs started to organize distinct public hearings dealing with the same issue as official ones. The result of such hearings is sent to appropriate public authority, yet an authority still does not have an obligation to take this position into consideration.[33]

Ecological expertise may be another form of such decision-making, as it is practiced in various NIS countries (Belarus or Moldova).[34]

Paragraph 6 of Article 6 obliges public authorities to make accessible all information relating to decision-making process. In particular, public authorities must allow the examination of those documents at the soonest possible time and without charges. The provision further specifies the content of such information, providing a list of elements which includes, but is not limited to: a description of the activity; its effects on the environment; a description of measures which may be undertaken in order to limit the above-mentioned effects; a non-technical translation of such a proposal (which may be of significant importance for the public, as most of their members are non-professionals); alternatives to the proposal; and finally reports and advice made to the public authority related to the activity.

The Convention also compels countries to allow public to comment on proposed activities, which shall be taken into account when decision is made. Parties to the Convention are obligated to publish the decision made in a particular matter, as well as the reasoning for such a decision.

Example:

Part IV of the Polish Draft Law on Protection of the Environment enclosed provisions considering public participation in environmental issues.

Article 32 of the Draft Law makes it obligatory for a public authority to inform the public about proposals for decision-making on environmental matters and about the possibility of making comments to such a proposal 21 days after publication of this public notification. A public authority may organize a public hearing on a matter and shall consider comments from the public while making the decision. Article 34 further compels an appropriate public authority to enclose in the proposal’s documents public comments and their use.[35]

Article 7 and 8 further develop the concept of public participation in decision-making to participation concerning plans, programs and policies in environmental issues as well as participation during the legislative process. In both provisions, the Convention gives much more flexibility to a state than in the previously described provision.

In Article 7, the Convention only ensures that a transparent and fair framework should be established in which the public will have an opportunity to participate in the program, plans and policy-making. The Convention clearly distinguishes between plans, programs and policy-making. As regards plans and programs, the rules of Article 6 apply: parties are obliged to provide necessary information on plans and program to public, without specifying what kind of information should be treated as necessary. This must be done at an early stage and with reasonable scheduling of the procedural phases so the public may prepare adequately. The Convention also requires taking into account public opinion in those matters.

One of the forms of public participation concerning plans, programs and environmental policies is strategic environmental assessment (SEA).[36]

Example:

Strategic environmental assessment was applied for the first time in the Czech Republic in 1997, when the government invited NGOs to comment upon two significant environmental programs: on the Energy Policy of CR, and the Conception on Development of Transportation Network in the CR through 2010 were publicly consulted. Concerned public authorities, municipalities, NGOs, businessmen, and professional groups were actively involved in commenting as well as proposing alternatives to those conceptions. The SEA included two public hearings organized by the Czech Parliament.[37] The concept is in ongoing development process, the latest example of such a policy is a request for public comments on National Program on Environmental Education in CR, which was presented to the public for comments during the final stage of preparation. The final draft  was publicly introduced on July 24, 2000 and the Ministry expected to receive public comments until August 31, 2000.[38]

Article 8 goes far in its flexibility towards states while requiring parties to “strive to promote effective public participation” in the legislative drafting process. Notwithstanding the vague wording of this provision, it has a tremendous impact on the role of the public in environmental issues, due to resignation of exclusivity in the drafting process by public authorities. The public, and here I mean especially environmental NGOs, may have an important role in shaping the legal framework dealing with the environment. The public should be allowed to enter the participation process at an early stage, when its comments can still be taken into account while redrafting legislation. The Convention further requires that drafts should be published, so the public may comment either directly or through their representative councils.

Examples:

The Hungarian Act XI of 1987 on Legislation allows NGOs to actively participate in drafting legislation, policies, programs and plans. NGOs may give their comments and opinions on particular drafts from the scope of their interest. In addition, NGOs may also participate in the drafting procedure through a consultative body on environmental issues; seven of the twenty-one members of which are NGOs.[39]

Furthermore, in some countries NGOs have a right to initiate legislation- e.g. in Albania NGOs initiated legislation on the conservation of cave habitats.[40]

This pillar will possibly affect NGOs to the greatest extent. It gives certain guarantees that countries will adopt legislation that will allow the public to participate in decision-making as well as in the policy, program and plans-making process. Moreover, parties should adopt systems that would make it easier for the public to participate. It is insufficient to allow the public to participate without ensuring that their participation will actually affect the decision. Therefore, states must take public comments and opinions into consideration. The opportunity to influence plans, programs and policy-making in environmental matters is of great importance due to the possible long-termed effects of such activities. NGOs have been given a chance to shape governmental environmental policy so that both parties may agree on common goals and their achievements.

IV. Access to Justice

Access to information as well as public participation cannot be effective without proper enforcement, which is guaranteed by the third pillar of the Convention - access to justice - in Article 9. Parties shall simply guarantee that in case of violation of provision from the Convention person should have an opportunity to challenge such a failure before other public authority (either administrative or judicial). The Convention distinguishes between persons who may challenge failure of providing information by the public authority (any person who has requested information)

Example:

Article 9 sec. 3 of the Czech Law no. 123/1998 on the right to Environmental Information establishes that a denial by a public authority to provide the required information or to make a decision in a fixed time is equivalent to a denial of providing such information or making the decision. Consequently, such a denial is equivalent to a decision in the legal term and an applicant is entitled to an appeal. A higher authority decides on appeal and in case of applicants’ dissatisfaction with decision of this higher authority, s/he may file a complaint to an administrative court.[41]

and persons who may challenge a procedural failure in decision-making process or any other relevant provisions of the Convention (only members of public concerned who have sufficient interest or maintained impairment of a right). On the other hand, the provision ensures that environmental NGOs are considered to have sufficient interest in the matter. Paragraph 3 concerns members of the public in general who should have a possibility to challenge acts of public authorities or private persons contravening the requirements of the Convention. One of the obstacles in implementing the Convention is that in a number of countries, NGOs lack legal standing to complain against violations of their rights. Moreover, in some states individuals and NGO cannot challenge executive decisions of the government or other public authority that does not follow the requirements of the Convention.

Examples:

Czech law allows complaints only from those persons whose right is directly impaired by the decision of the authority. Consequently, if an NGO’s right is not directly impaired, notwithstanding the extent of legal breach, it does not have legal standing to challenge the decision.

In some countries it is permissible to file a complaint to the constitutional court against actions of public authorities which are contrary to legislation. The usual requirement in such cases is exhaustion of all other existing legal remedies prior to filing the complaint. (e.g. Hungary, the Czech Republic, Ukraine, Slovenia).

The Convention does not explicitly determine the way in which complaints should be decided- either by a court or any other legally established review body, including administrative authorities. In terms of procedural requirements the Convention requires a speedy, inexpensive (preferably free of charge), fair, impartial procedure, as well as effective and adequate remedies. Finally, parties are obliged to circulate among the public information regarding access to review procedures, including consideration of establishment mechanisms that would minimize procedural costs for the public.

NGOs generally should expect states to adopt such legislation that would allow them to enforce their right of access to environmental information and public participation. In particular, this means that NGOs should have legal standing before judicial or other public organs as well as bring complaint to such authorities in those matters. Furthermore, domestic legislation should incorporate certain provisions allowing the public (NGOs) to challenge executive decisions of public authorities in environmental matters, specifically if the government has failed to involve the public in decision-making processes that have an impact on the environment.

In conclusion, the Aarhus Convention presents a great opportunity for NGOs in terms of their direct impact on environmental matters in a country. Generally, NGOs are entitled to receiving information on the environment, directly or indirectly participating in decision-making significantly affecting environment and finally bringing complaints to judicial or other bodies in case of breach of the Conventional provisions by public authority. Consequently, the role of NGOs has shifted from opposing the government to working with the government. As a result of implementation of the Convention, common consent and cooperation on environmental matters should be achieved.

A number of countries in CEE and NIS  already started to implement the conventional provisions simultaneously with starting ratification procedure. Eight of 20 CEE and NIS countries have ratified the Convention. However, a number of countries are still preparing the ratification process due to innovative implementation demands. NGOs should use this opportunity to actively cooperate in the implementation of this Convention, in particular in drafting new legislation. The Convention gives certain flexibility to states in terms of implementation, and so the states may take a minimal approach and make only the most necessary changes in order to comply with the Convention. By actively cooperating with the state, NGOs may have a more significant impact on environmental issues.

Notes

[1] Former intern with ICNL. Mr. Walek is currently Program Coordinator of the Human Rights Student Initiative.

[2] See point 6 of the Preamble to the Convention “Recognizing that adequate protection of the environment is essential to human well-being and the enjoyment of basic human rights, including right to life itself”.

[3] It may be of significant importance in some countries like the the Czech Republic, where according to Article 10 of the Constitution, ratified and promulgated international human rights treaties are immediately binding and superior to domestic law.

[4] Moreover, by including into the definition legal persons and organizations it broadens its scope on organizations without legal personality.

[5] See Articles 2.5; 5; 6 and 9.6.

[6] S. Stec, S. Casey-Lebkowitz: The Aarhus Convention: An Implementation Guide, ECE/CEP/72, New York, Geneva, 2000, p. 1.

[7] See the Czech report on state of implementation published August 20 1999 and updated November 2 1999, http://www.env.cz/.

[8] See http://www.unece.org/env/pp/.

[9] See http://www.unece.org/env/pp/.

[10] The Czech Ministry of the Environment specified June 2001 as the probable date for referring the Aarhus Convention to the Czech Parliament for ratification. The delay is caused by pending adoption of crucial legal acts on Environmental Impact Assessments and judicial reform by the Parliament, which are necessary for ratification of the Convention. See http://www.env.cz/ (the last update August 10, 2000).

[11] The Polish Ministry of Environment is planning to finalize the ratification of this document till the end of year 2000.

http://www.mos.gov.pl/mos/publikac/Raporty_opracowania/sprawozdanie/
sprawozdanie_3.html#_Toc488572307

[12] See Article 3 para 1.

[13] See http://www.env.cz/.

[14] Article 3 paras. 2 and 3.

[15] Other provisions dealing with environmental NGOs: Articles 2; 5; 6 and 9 para. 2.

[16] See Progress in the Implementation of the ECE Guidelines on Public Participation in Environmental Decision-Making, Report by the ECE secretariat, ECE/CEP/46, http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm.

[17] See Article 10 para. 2.

[18] See Article 15.

[19] The language of this provision seems to be contradictory. If in order to establish a non-confrontational review procedure there is a need for consensus, then parties may be rather cautious when entering such a review in presence of NGOs.

[20] See S. Stec, op. cit., p. 143.

[21] See  Report on the First Meeting, CEP/WG.5/1999/2.

[22] See  http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm

[23] See  http://www.mos.gov.pl

[24] See  http://www.env/cz

[25] See  http://www.mem.dk/aarhus-confernence/issues/public-participation/ece46.htm

[26] See  S. Stec, op. cit. p. 69.

[27] http://www.mem.dk/aarhus-confernence/issues/public-participation/ece46.htm

[28] S. Stec, op. cit., p. 85.

[29] See Articles 6. 2. a), b), c), d): proposed activity; nature of possible decision; responsible public authority; procedure confronting the public.

[30] “A national procedure for evaluating the likely impact of a proposed activity on the environment”; see: article 1 (vi) of the Convention on Environmental Impact Assessments in Transboundary Context (Espoo, 1991). EIA usually refers to procedures including public participation that results in common position (of competent authorities and public) on impact of such an activity on environment.

[31] http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm.

[32] http://www.env.cz/env.nsf/pages/indexleg.

[33] http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm.

[34] http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm.

[35] http://www.mos.gov.pl.

[36] “A process that helps governments to assess the environmental impacts of proposed development policies, plans and programs. SEA enables policy makers to promote public participation in broad environmental policy-making, identify and predict cumulative impacts of broad governmental programs and take this information into account early in policy making.” See S. Stec, op. cit., p. 115.

[37] http://www.env.cz.

[38] Ibid.

[39] See http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm; See also S. Stec. op. cit., p. 120.

[40] http://www.mem.dk/aarhus-conference/issues/public-participation/ece46.htm.

[41] http://www.env.cz.

 

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