On the Way to Transparency: a Comparative Study on Post-Soviet States and the Aarhus Convention by Tatiana R

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On the Way to Transparency: A Comparative Study on Post-Soviet States and the Aarhus Convention by Tatiana R. Zaharchenko

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Tatiana R. Zaharchenko

Occasional Paper # 303

Contents

introduction 1

1 the Evolution of Access to Information in Post-Soviet Countries 3

1.1 The Traditional Soviet Approach and Its Breakdown 3 1.2 Developments in Law and Policy after the Dismantling of the Soviet Union 5 1.3 The Emergence of Legal Activism among Environmental NGOs 7 1.4 Obstacles to Access 8

2 overview of Access to Environmental Information under the Aarhus Convention 11

2.1 Introductory Note 11 2.2 Definition of Environmental Information 11 2.3 Circle of Covered Institutions 12 2.4 Who is the “Public”? 12 2.5 Access upon Request 12 2.6 Collection and Dissemination 13 2.7 Access to Information during Decision Making 14 2.8 Review Procedures and Accessibility of Final Decisions 14

3 the Role of the Convention in the Opening of Post-Soviet States 15

3.1 Missing Concepts and New Approaches 15 3.2 Impact on National Laws and Policies 16 3.3 Environmental Ministries as Pioneers of Change 18 3.4 An Additional Tool for Civil Society 20 3.5 Compliance Mechanism under the Convention 21 3.6 Seminars, Manuals, Training, and International Assistance 22 4 Challenges in Place 25

4.1 The Case of Two Nonparties: Russia and Uzbekistan 25 4.2 Bureaucratic Resistance and an Incomplete Legal Base 25 4.3 Financial and Technological Constraints 27 4.4 A Promise of Change or Unmet Expectations? 27

5 Conclusion and Policy Recommendations 29

5.1 Study Findings 29 5.2 Institutional Arrangements and Legal Safeguards 30

appendix 33

Tatiana R. Zaharchenko, Ph.D., is a scholar in residence at the Environmental Law Institute (Washington, D.C.), currently on an overseas assignment in Ukraine. The main research for the present study was conducted from November 2003–July 2004, when Zaharchenko was a research scholar with the Kennan Institute. The study was completed in April 2007. Additional legal instruments have been enacted in the countries addressed in this study between the time of the main research and final writing. This ongoing process does not alter the conclusions of the study, which focus on a specific historical period and the impact of a particular international treaty on emerging democracies during that period. For those interested in the further evolution of laws and policies of the post-Soviet states and new accomplishments of nongovernmental groups with regard to access to information, the websites broadly used in this study may be a useful resource, as is the Aarhus Convention clearinghouse (http://aarhus- clearinghouse.unece.org/). The author is grateful to Sofia Plagakis for her invaluable help during the research for the present study. Thanks also go to the Environmental Law Institute for hosting the author while the final draft was completed and to its interns Emily Taylor and Nathalie Gilet for their assistance as necessary. The study focuses on 12 post-Soviet countries. It does not cover the three former Soviet Baltic states, which are all members of the European Union and parties to the Convention. Occasional references to them are intended for comparison purposes or are made in regard to their Soviet period. Estonia was a party to the Convention when it took effect, while Lithuania and Latvia were merely signatories. These two countries ratified the Convention in January and June 2002, respectively. Introduction

n October 30, 2001, an interna- mentation of the rights listed in its title. It is tional treaty known as the Aarhus recognized by a majority of European and post- OConvention became part of bind- Soviet states (see chapter 2. 1). For the Western ing international law. The Convention, which world, fulfillment of such rights within a vari- then-UN Secretary General Kofi Annan called ety of countries’ cultural traditions, political re- a symbol of “environmental democracy,” was gimes, and legal systems has a relatively recent ratified by 17 countries, 11 of them post-Soviet but substantial history.5 Overall, it is rooted in states. All Soviet successor states except Russia democratic traditions of governance and respect and Uzbekistan decided to abide by the Aarhus for human rights and civil liberties. For the Convention.1 post-Soviet states, however, the Convention These latter states’ signing of the Aarhus represents a turning point from deeply nested Convention was reminiscent of the Soviet traditions of totalitarian governance and from Union’s ratification in 1973 of two international attitudes and mentalities formed over 70 years covenants on human rights,2 much earlier than of Soviet rule.6 many other states and without any changes to In part promoted by extensive international Soviet laws. Does the post-Soviet states’ nearly assistance, the Aarhus Convention received complete official acceptance of the Aarhus great attention from post-Soviet states. Many Convention this time say anything new about of them looked at the Convention as an admis- this set of countries which still struggle with sion ticket to the club of civilized democratic corruption, controlled media, and one-man- societies. Implementing the Convention was show political regimes? If so, what does it say expected to move the legal systems of these and what does it entail for the societies of these countries closer to the fundamental princi- countries? The present study is an attempt to ples of European law, which was becoming a answer these and other questions about the model for developing laws and policies among evolution of openness and transparency in post- the Soviet successor states.7 The example of Soviet states through the prism of access to en- Baltic, Central European, and East European vironmental information. The prism metaphor countries that had just recently been socialist seems particularly appropriate, first, because but were now entering the European Union environmental information affects everybody family and harmonizing their legislation with in society, and second, because the opening EU requirements further contributed to the of Soviet society may be said to have begun in Convention’s appeal. 1986 with Chernobyl—a disastrously failed at- Perhaps even more significant is that for the tempt to withhold environmental information. post-Soviet states, turning to Europe symbol- The Aarhus Convention—formally the ized a rejection of their Soviet past. Joining UNECE3 Convention on Access to Information, the Aarhus Convention provided an opportu- Public Participation in Decision-Making, and nity to demonstrate an aspiration to Western Access to Justice in Environmental Matters4— principles of transparency and accountability obliges governments bound by it to provide in governance. Every post-Soviet country ex- procedures and guarantees concerning imple- cept Russia and Uzbekistan rushed to show its

Tatiana R. Zaharchenko / 1 changed attitude by being among the first to withstanding statehood, new currencies, and recognize the Convention, and initially these new leaders. According to the 2003 edition states constituted the majority of the parties. of Global Corruption Report, access to infor- Still, many of these countries remain po- mation in these countries continues to reflect litical “one-man shows,” where violence is the authoritarian legacy of the Soviet era.8 In routinely used to silence opponents and jour- such a context, the challenges of following the nalists, civil activists are jailed for revealing Aarhus Convention requirements based on inconvenient information or being too active, recognition of human rights and transparency torture may be used to force confessions, and in governance point out the tensions involved bribery is an accepted way of doing business. in reform. Efforts to deal with such challenges The old habits and traditions of Soviet-era have a history in the Soviet Union and its suc- governance keep manifesting themselves, not- cessor states.

2 / On the Way to Tr ansparency 1 The Evolution of Access to Information in Post-Soviet Countries

1.1 the Traditional Soviet to the public. In the late 1980s, across the Approach and Its Breakdown Soviet Union, outspoken public figures and The tendency toward increased openness in intellectuals called insistently for broad envi- Soviet society started before the Soviet Union ronmental awareness, citizen involvement in fell apart. Secrecy and deception, together decision making, and an end to the policy of with the regime’s self-confidence, the pillars secrecy. In Ukraine, Yurii Shcherbak stressed of Soviet rule for decades, began crumbling that the people had the right to know—and during perestroika, Mikhail Gorbachev’s pro- must know—about the environmental situa- gram of using reform to speed up socioeco- tion in which they lived.15 In Russia, Alexey nomic development, which he initiated in Yablokov said that forming mechanisms for 1985. Glasnost, courageously demanded by public discussion of projects with environ- human rights activists such as Andrei Sakharov mental impacts and halting the policy of in the early 1970s,9 became an officially en- classifying information about the environ- dorsed if not yet fulfilled policy of openness ment were critical measures in dealing with and of making officials more accountable to an environmental crisis.16 In Kazakhstan, the the public.10 Still, the main blow to the Soviet effects of Soviet nuclear tests on the Kazakh system came in the spring of 1986 from the steppe, which were kept a state secret for Chernobyl tragedy. Soviet citizens were glued years, were for the first time brought to pub- to international radio broadcasts for three lic attention.17 days before the first vague, official govern- One only may speculate now whether this ment announcement was made about the major shift in public consciousness would have enormous accident at the nuclear power plant. occurred without Chernobyl, given the many Government decisions on how to handle the other environmental disasters produced by possible consequences for human health and the Soviet regime. But it is obvious that after the environment were made behind closed Chernobyl many of these disasters became doors and were strictly classified.11 It took the subjects of open and heated public debate three more years for the first detailed yet still within the country. The need to achieve total incomplete report on the scope and intensity glasnost on environmental matters was often of the accident to be released.12 cited as a starting point for improving the eco- Nevertheless, the break in the mentality of logical situation.18 There could be no excuse Soviet society as a whole was made. It was any more for secrecy, especially for keeping a Soviet “Silent Spring,”13 not in a book but information related to the environment away in the air. The Chernobyl catastrophe gal- from public view and knowledge. “The pub- vanized the emergence of an environmen- lic requires truth, requires ecological infor- tal movement in the Soviet Union.14 It also mation,” insisted leading journalists of that demonstrated the failure of a system of gover- time.19 The scale of environmental destruction nance that did not recognize the state’s obli- in the Soviet Union also came under the spot- gation to provide environmental information light abroad.20

Tatiana R. Zaharchenko / 3 The need to introduce more open and the right to request environmental information democratic legal approaches in dealing with of their own choice directly from state authori- environmental matters became a subject of ties.26 1989 was also marked by the conceptu- scholarly discussions in the late 1980s in Soviet ally groundbreaking All-Union Law on the legal circles as well.21 Perestroika also opened Order of Appeal to a Court of Illegal Actions doors for young Soviet lawyers to travel abroad of State Bodies and Officials Infringing on the and to share, in the pages of law reviews, their Rights of Citizens.27 Until enactment of this newly acquired awareness of the significance law, Soviet citizens could not go to a court of of access to information and public partici- law to challenge public authorities.28 pation in environmental decision making in S ever a l st at e s , some st i l l S ov iet , some a l re ad y democratic societies.22 independent, enacted special laws on protection Crucial new institutional and legal devel- of the environment or of nature (Azerbaijan,29 opments took place in this period in the area Belarus,30 Estonia,31 Kazakhstan,32 Moldova,33 of environmental protection and management Russia,34 Tajikistan,35 and Ukraine36). In these as well as in making environmental informa- laws, articles referring to citizens’ rights to a tion more publicly known and recognizing safe or healthy environment, and to obtain- citizens’ right to challenge the state’s actions ing information, in particular, about the state and decisions in court (some of which are of the environment, were for the first time noted below). introduced in transitioning Soviet legal sys- In 1988, the State Committee for tems.37 So it is within the environmental con- the Protection of Nature of the USSR text that legal provisions recognizing a public (Goskompriroda), the first all-Union agency right to information in the hands of authori- with a mandate for environmental protec- ties emerged in Soviet and post-Soviet coun- tion, was established.23 In October 1989, tries. This development is arguably linked Goskompriroda published a handbook, The directly to the change in pubic consciousness State of the Environment in the USSR, that prompted by Chernobyl and other environ- was made commercially available.24 Ukraine mental catastrophes. became the first Soviet republic during this Some of these new environmental protec- period to adopt regulations on the collection tion laws stated that citizens had the right to and dissemination of environmental informa- demand information from the appropriate tion. In April 1990, a decree of the govern- authorities (e.g., Russia). One should note ment of Ukraine (at the time, the Ukrainian that according to Soviet legal doctrine, every Soviet Socialist Republic) authorized the right was understood to prompt a correspond- Ukrainian State Committee for the Protection ing obligation (so that the right could be ful- of Nature to collect relevant environmen- filled). Nevertheless, the laws did not include tal and public-health information from other the obligation of state authorities to meet citi- state agencies, and to make it publicly available zens’ demands for information. By and large, through mass media and press centers twice a they referred to obligations of citizens but not year throughout Ukraine and at least once a to competencies and powers (polnomochiia) of month in the republic’s regions.25 This decree the authorities. gave legal recognition, for the first time, to Some countries included in these laws arti- the necessity of making certain environmen- cles on supplying information to citizens about tal information processed by the government the state of the environment, cases of and rea- known to the public. However, it did not yet sons for its extreme pollution, and mitigation acknowledge that members of the public had measures (e.g., Ukraine). Such articles were

4 / On the Way to Tr ansparency contained and understood within the broader 1.2 developments in Law and provisions on informing the public (i.e., dis- Policy after the Dismantling seminating information). A few sector-spe- of the Soviet Union cific laws (such as the water code) obliged With the breakup of the Soviet Union in certain authorities to provide information to 1991, the opening up of society and politics the population, mainly about the state of the in the newly independent states accelerated. environment.38 Environmental concerns remained high on so- Sometimes the laws directly stated that the cial and political agendas. Post-Soviet govern- right of citizens to environmental information ments started to publish annual national “state should be fulfilled by periodically publishing of the environment” reports.41 Ministries of the information through specially authorized the environment or environmental protection state bodies (e.g., Tajikistan). In Ukraine, for were established by governments in almost all example, the law required the Ministry of the post-Soviet states. They began active public Environment and its local bodies to prepare an education campaigns to build more awareness annual “state of the environment” report to of environmental issues and to raise support for be submitted to the legislature. This approach environmental protection. of providing environmental information by With regard to citizens’ rights to a healthy publishing or submitting it to yet another gov- environment and access to information, the ernment body was very typical for that time. changed social mentality was also reflected in However, none of these laws stipulated that a post-Soviet constitutions, many of which in- public authority that possessed environmental cluded separate articles on the right to a safe, information had an obligation to provide ac- favorable, or healthy environment, and to in- cess to this information on request to members formation about the environmental situation of the public. Nor did any of these laws specify (see Table 1). procedures and mechanisms for providing such Legal scholars continued to emphasize the information. need for public participation and access to in- Nevertheless, some environmental protec- formation related to the environment, and tion laws called for administrative penalties looked for examples in Western legal systems.42 for public officials refusing to provide timely, Articles pointing out the importance of the full, and accurate environmental information right for citizens to know and to directly ac- (e.g., Kazakhstan).39 Within the Soviet legal cess information became a part of the public system, this clause was supposed to be fol- discussions concerning newly developed draft lowed by the inclusion of relevant articles in laws on public health and the environment.43 the administrative code specifying penalties, Between 1992 and 1998, with Ukraine in but it was not.40 the lead,44 many post-Soviet states introduced No matter how partial these first legal general laws on information.45 There was a va- provisions were and how vulnerable their riety of approaches in the first generation of enforcement remained, they were fundamen- post-Soviet information laws.46 All, however, tally new approaches for the Soviet republics shared some common features, bearing traces and the first bricks paving the way to open- of the Soviet past while also reflecting aspira- ing up government systems and providing actions for more open and transparent societies cess to information. They should be regarded with market economies. as a breakthrough in the political system and Following the example of a Ukrainian law, legal doctrine, signaling the beginning of a many post-Soviet information laws announced new era. that openness and availability of information

Tatiana R. Zaharchenko / 5 were important principles. A few countries a good, and that its owner could use it com- even enacted laws with titles mentioning free- mercially at his or her own discretion. dom of information or access to information. Information laws divided information into Another body of law—laws on state secrets po- open-access and limited or sometimes closed- tentially restricting access to information—was access information. But with no precise criteria enacted in the same period (see Table 2).47 for making this distinction, the state was free Basically, all laws on information during to decide on its own and monitor compliance. the immediate post-Soviet period were fo- Nevertheless, these laws also included some cused on regulating its flow, collection, and provisions on access to information by the pub- management. Following the Soviet legal tra- lic. Some stipulated that citizens had the right dition, the laws went into extensive detail— to get access to information about themselves, establishing various types, kinds, and catego- as well as information necessary for exercising ries of information, and classifying different their rights, freedoms, and legitimate interests. “objects” and “subjects” of “information rela- Some laws on information stated that citizens tions.” Some were rather lengthy, detailed legal could request any official document from pub- acts.48 A number of these laws introduced “in- lic authorities about their activities and estab- formatizatsiia,” an imprecise term recalling the lished periods during which requests should be vocabulary of the socialist era (see Table 2). answered. Most information laws also intro- Informatizatsiia was defined broadly as an orga- duced appeals to a higher state authority and nizational, socioeconomic, and scientific pro- then to a court in instances when a request for cess of satisfying needs of different state bodies information was refused. and juridical and physical persons for informa- Overall, the first generation of information tion.49 In a way, it was a post-Soviet variation laws in the post-Soviet states was preoccupied on information management. mainly with consolidating information in the Some laws on information also regulated hands of the government and controlling its protection of information and even emphasized flow, rather than sharing it with the public. that in their titles (see Table 2). It is perhaps Public interest in information or its public sig- natural that in post-Soviet societies still deeply nificance was hardly reflected in actual access rooted in a tradition of state supremacy, any to information.50 It was ownership that most information in the hands of the government of all determined the status of information and was considered an important national resource, access to it. to be guarded, protected, and used most of all Still, the importance of the first generation for the benefit of the state. Very often, infor- of post-Soviet information laws should not be mation laws directly stipulated that informa- understated. For the first time in their history, tion gathered by means of expenditures from the former Soviet republics referred, on the a state budget was considered state property. statutory level, to the necessity of openness and These laws also emphasized that the govern- citizens’ right to obtain certain information ment or other entity collecting the information from public authorities. owned it, along with the right to establish rules Post-Soviet laws on both information and governing its access. state secrets tended to recognize the special During this period of transition in the post- significance of environmental (often called Soviet states, the free-market economy intoxi- ecological) information and to make it publicly cated policymakers and society in general and available. A number of these laws stated that privatization accelerated. Information became information or data on the environment could a marketable commodity too. Information laws not be classified as a state secret or that access often said that information could be considered to such information could not be limited.

6 / On the Way to Tr ansparency Finally, this period was also marked by sion of the Russian government to waive taxes post-Soviet states’ enactment of separate laws for a Russian-American joint oil venture that on appeals from citizens.51 These laws created involved Conoco and a state enterprise from additional grounds for obtaining certain infor- Arkhangelsk.55 The case was eventually lost, mation from public authorities. They obliged but it was a powerful illustration that the time public authorities with competence over rel- for NGOs to use legal strategies had arrived, evant matters to consider and respond to ap- and it opened up a new stage for environmen- peals, complaints, and proposals from citizens. tal battles. The laws on appeals also introduced procedures The air at the time was filled with talk about for judicial review of decisions.52 building the rule of law and civil society. Many international programs within and outside the 1.3 the Emergence of post-Soviet states became available to support Legal Activism among NGOs, providing grants for activities, train- Environmental NGOs ing, seminars, computers, and libraries. The most powerful impetus pushing the post- From 1992 to 1995, in a few major cities, Soviet countries to become more open societ- public-interest legal organizations focusing on ies with more accountable governments came environmental matters were created. Some from citizens and NGOs. Born in the 1980s, of them were initiated by experienced law- the environmental movement of the post-So- yers with environmental expertise,56 others by viet states underwent a transformation in the young lawyers returning from internships in early 1990s. More liberalized states provided Western law schools,57 others by budding en- diverse opportunities for civic activism. Some vironmental activists interested in applying law environmental activists moved into the po- in the environmental field.58 All of them were litical arena; some drifted into business; some led by bright, brave individuals who saw legal switched to new social issues. Others just got action as a powerful strategy for resolving envi- disillusioned with the changes in their societies ronmental issues and protecting citizens’ rights and became overwhelmed by the difficulties of in the new political climate of openness. There daily life. One Russian observer, for example, were no legal precedents and no certainty of noted that environmentalists at this time were how the system would react to a challenge considerably weakened.53 However, those who posed by these groups. According to Professor remained involved matured and started look- Svitlana Kravchenko, a founder of one such ing for more effective ways to achieve their pioneering group in Ukraine, “During the goals. In the early 1990s, NGOs began to test years of communism, suing the government the opportunities provided by the post-Soviet was prohibited, impossible, and even danger- states’ many new laws. ous. In the early years after communism, to do Applying legal means to resolve environ- so was a leap into the unknown, yet an excit- mental matters was quite different from the ing one.”59 demonstrations and other forms of political The public-interest legal environmental protest of the very recent past, and it required groups provided advice to the public, submitted new skills and legal knowledge. Nevertheless, it requests for information on the environment to was clear to the green activists of that time that public authorities, and brought environmental it was no longer possible to advance the envi- cases to court on behalf of citizens.60 These ronmental cause by purely political means.54 groups built an impressive track record of using In 1992, the Social-Ecological Union legal tools to resolve environmental problems brought an unheard-of kind of case to the and spread awareness of this approach (includ- Supreme Arbitration Court against a deci- ing how to win access to information held by

Tatiana R. Zaharchenko / 7 public authorities) throughout the post-Soviet information. In November 1997, Armenia’s states.61 They put pressure on public authorities ministry of the protection of nature refused that gradually prompted changes in environ- to provide information on air pollution in the mental decision making and in social accep- city of Alaverdi to the Environmental Public tance of the growing role of NGOs and legal Advocacy Center (EPAC) on the basis that it activism. They also slowly but surely worked was secret. EPAC appealed to a court, which to overcome the reluctance of the judiciary ruled that under law the ministry should pro- to accept and consider environmental cases vide the requested information, but the min- brought by citizens and NGOs. These groups istry still refused. Only in July 2000, after re- became highly visible inside their countries, peated court appeals, did the ministry provide and often were noted abroad.62 In the early the information.69 This was a typical instance 1990s, court hearings on their cases often at- of the prolonged periods of time needed to tracted significant audiences, reflecting broad obtain environmental information. Very often interest within society. Their victories and fail- it took several years for NGOs and citizens to ures were highlighted in the print media63 and gain it, and doing so almost always required on television.64 judicial involvement.70 Although NGOs and The turn to legal actions on environmen- citizens of the former Soviet republics were tal issues motivated the publication of manuals ready to use new legal opportunities, the ex- and guides for citizens and NGOs.65 Published ecutive branch generally was reluctant to rec- collections of environmental legislation were ognize them. assembled by lawyers of public-interest environmental groups, which made laws and reg- 1.4 Obstacles to Access ulations more easily available to the public.66 The continuing difficulties in receiving infor- International programs supported seminars on mation from public authorities were in part environmental law for activists, officials, and rooted in the habits and traditions of Soviet-era judges, and often brought them for training to governance, which was accustomed to control- the West.67 ling information and was slow to change. The Individuals and NGOs tried to obtain vari- absence of a philosophical and legal concept ous kinds of environmental information from of government accountability to the citizenry public authorities and often appealed to courts kept blocking attempts to transform post-So- when it was not provided. This was sometimes viet societies, while the move toward free mar- part of a broader legal strategy to affect deci- kets and privatization that made information a sion making, but sometimes it was the main valuable commodity did not inspire often-im- focus of the groups’ efforts. For example, in poverished public officials to share it with the 1994 a Saint Petersburg NGO, Lawyers for public either. the Environment, requested information from Even if there was a shift in overall state pol- the municipal committee on statistics after the icy toward more openness, there was still little committee published a newspaper article on the recognition among officials that they were financing of environmental protection. The obliged to provide environmental informa- group wanted to know the specific sources of tion upon request to the public.71 Despite new financing and the specific activities that were legal provisions, NGOs and the citizens they undertaken.68 The request was initially denied, assisted had to battle the inertia of legal systems but at least part of it was granted in subsequent historically not oriented to serving them. On court appeals. top of that, the laws themselves were full of Nevertheless, difficulties remained in get- shortcomings. ting access to information in the hands of First of all, many provisions of the informa- public authorities, particularly environmental tion laws were simply confusing. Their transla-

8 / On the Way to Tr ansparency tion into English often makes these provisions post-Soviet laws on information in the 1990s more coherent, reflecting the genuine effort of resembled games of “hide and seek”—some- interpreters to make sense of them. In Ukraine, times coming close to granting public access for example, information was defined as “doc- but never completely getting there. umented or publicly announced records on Third, the first generation of post-Soviet events and occurrences which take place in so- laws on information and state secrets treated ciety, the state, and the natural environment,”72 environmental (ecological) information as a leaving room for the argument that unless the special kind of information to which access event or data had been publicly announced, it might not be limited. However, the impact of may be considered not to be information at all, this important development was mitigated by and therefore requirements for access might the fact that it was not clear what comprised not apply. The law also did not clearly specify environmental information. In addition, the what documented information was.73 laws most often referred to information or data Second, information laws had no defini- on the ecological situation or state of environment tion or underlying concept of public or public- in general, which left out a whole range of en- interest information. A very few contained a vironment-related information, including the weak reference to public interest, but in the impacts on the environment and human health context of informing the public (disseminating from discharges of hazardous materials and information) rather than providing informa- other forms of pollution. The environmental tion upon request by members of the public. and natural resource laws of post-Soviet coun- The information laws as a rule did not regulate tries have not offered a definition of environ- whether the public interest or the public sig- mental information either. nificance of information should mandate that it But even those laws that said environmen- be accessible to the public.74 Nor was there any tal information should not be made secret or public-interest test mentioned in these laws.75 be classified as limited-access information did The absence of an underlying concept of not stipulate that the government and pub- public information, in combination with a re- lic agencies had an obligation to provide such emphasis on state ownership of information information to the public upon request. Nor when its collection was underwritten by state did these laws provide exhaustive procedures funds, represented a crucial flaw in post-Soviet and a solid legal basis for the public to re- information laws stemming from a tradition of quest and receive information. The laws on total state supremacy. citizens’ appeals were based on a clause that As was mentioned in chapter 1.2, many of a particular citizen’s right or interest had to these laws stipulated that there was open-access be infringed upon in order for an appeal to information and limited or closed-access in- the public authority to be made. There was formation. But they failed to specify the cri- also the additional requirement that the pub- teria for distinguishing between the two. It lic authority have legal competence over the was left to the authority of the state to decide matter in question in order to respond to the this distinction, without clear regulatory guid- inquiry. ance. Even while some post-Soviet laws stip- In light of these legal flaws and absent tra- ulated that citizens could request any official ditions of accountability and transparency re- document from public authorities regardless of garding the government’s actions and decisions, whether it related to them personally or not, many laws addressing access to information these same laws exempted information of lim- continued to remain “paper” provisions and ited access from this clause. were very difficult to enforce. These imper- Generally, in terms of providing public ac- fections were actually addressed by post-Soviet cess to information held by public authorities, decision-makers in a 1997 model law on ac-

Tatiana R. Zaharchenko / 9 cess to environmental information adopted by ness of the urgent need to further expand and an inter-parliamentary assembly of the mem- strengthen the legal requirements and proce- bers of the Commonwealth of Independent dures so as to widen such access in post-Soviet States (CIS).76 However, no laws based on this states. It was against this background of persis- model law were enacted by any of the CIS tent legal action by NGOs and citizens in post- countries.77 Soviet societies to receive information, and the The numerous foiled attempts of citizens spreading awareness of difficulties arising from and NGOs to use the new legal opportunities these actions, that the Aarhus Convention to get access to information led to an aware- came along.

10 / On the Way to Tr ansparency 2 Overview of Access to Environmental Information under the Aarhus Convention

2.1 Introductory Note ing, and access to review procedures by The Aarhus Convention developed in the independent bodies on matters related to the framework of the Environment for Europe first two pillars, labeled more broadly as ac- process.78 It culminated a decade-long evolu- cess to justice. It established minimum stan- tion of international instruments addressing dards in these areas, described by the secre- access to information and public participation tary of the Convention, Jeremy Wates, as “a in environmental decision making, and re- floor, not a ceiling.”86 All three pillars of the sulted from two years of intense negotiations.79 Convention are closely connected, and for In many ways, the Convention itself is an out- their implementation they depend on each standing example of public participation in other. However, it is the first pillar—access to shaping international environmental laws and information—that is the focus of the present policies.80 Environmental NGOs from Central study.87 The other two pillars—public par- and Eastern Europe, Western Europe,81 and ticipation and access to justice—are discussed the United States82 made major contributions to the degree they address or enhance access to the Convention’s text. The Convention was to information. signed at the fourth Conference of European Environmental Ministers in Aarhus (Århus), 2.2 Definition of Denmark, in June 1998. Fifty-two of the 55 Environmental Information UNECE member countries and more than 70 The Aarhus Convention defines environmen- international intergovernmental and nongov- tal information as any information in written, ernmental organizations were represented at visual, aural, electronic, or any other material the Conference.83 form that relates to one of three groups. 88 The The Aarhus Convention came into force first group comprises the state of elements of and thus became a legally binding docu- the environment, such as air and atmosphere, ment for its parties on October 30, 2001. water, soil, land, landscape and natural sites, As of April 1, 2007, 40 countries84 and the biological diversity and its components, in- European Community had become parties to cluding genetically modified organisms, and the Convention. The first meeting of the par- the interaction among all these elements. ties took place in October 2002, the second The second group includes two different in May 2005.85 The Convention is open for types of factors: (1) substances, energy, noise, accession to any member state of the United and radiation, and (2) activities or measures, Nations upon approval from a meeting of the including administrative measures, environ- parties. mental agreements, policies, legislation, plans, The Aarhus Convention introduced ob- and programs affecting or likely to affect the ligations for its parties in three areas, called elements of the environment in the first group. “pillars,” reflected in its title: access to en- It also covers cost-benefit analyses and other vironmental information, public participa- economic analyses and assumptions used in en- tion in environment-related decision mak- vironmental decision making.

Tatiana R. Zaharchenko / 11 The third group extends to the state of cannot be directed to a court or legislative human health and safety, conditions of human body of a country. life, and cultural sites and built structures, as long as they are or may be affected by the state 2.4 Who Is the “Public”? of the environment or, through its elements, by Under the Convention, the “public” means the factors, activities, or measures determined one or more natural or legal persons, and, in by the second group. accordance with national legislation or practice, their associations, organizations, or 2.3 Circle of Covered groups.90 This definition entitles any person or Institutions legal entity to be considered the public for the The Convention is based on the assumption purpose of receiving environmental informa- that environmental information may be in tion. Moreover, the Convention requires that the possession of any public authority and that the public have access to information without each such authority should make it available discrimination as to citizenship, nationality, to the public. Such authority might not nec- or domicile, and, in the case of a legal person, essarily be a government agency or ministry without discrimination as to where he or she with explicitly pronounced environment-re- has his or her registered seat or the effective lated functions. According to the Convention, center of his or her activities.91 every public authority that holds environmental information is required to provide ac- 2.5 Access on Request cess to it. The Convention outlines four types The Convention established detailed proce- of public authorities that are covered by its dures and requirements for public authorities requirements:89 for providing environmental information in response to a request from the public. 92 They (a) Government at national, regional, and must make environmental information avail- other levels; able to anyone requesting it as soon as pos- (b) Natural or legal persons performing pub- sible—at the latest, within one month. The lic administrative functions under national state cannot require that the interest in infor- law, including specific duties, activities, or mation be stated. An exception is when the services in relation to the environment; volume and the complexity of the informa- (c) Any other natural or legal persons having tion justify an extension of this period of up public responsibilities or functions, or pro- to two months after the request is made. The viding public services, in relation to the Convention defines occasions when a request environment, under the control of a body for information may be refused, specifying or person falling within paragraphs (a) or that grounds for refusal should be interpreted (b) above; and also in a restrictive way. It says that a refusal should (d) The institutions of any regional economic be in writing if the request was made in writ- integration organization which is a Party ing or if the applicant so requests. The refusal to the Convention. should be explained and include information on the available review procedures. Refusals An exception to the list of covered pubic must be made within the same time frame as authorities is bodies or institutions acting in a set for providing the requested information judicial or legislative capacity. Therefore, the (i.e., one month, extended to two for complex Convention mainly establishes obligations for requests). the executive branch of government. A request According to the Convention, governments to receive information under the Convention may allow their public authorities to require a

12 / On the Way to Tr ansparency reasonable fee for supplying information. Public available in electronic databases, which have authorities intending to charge for supplying to be easily accessible to the public through information are required to make available to telecommunications networks. Provided that applicants a schedule of charges, indicating the it exists in electronic form, the following circumstances in which charges may be levied information should be made electronically or waived and in which the supply of informa- accessible: tion is conditional on advance payment. (a) Reports on the state of the environment; 2.6 Collection and (b) Text of legislation on or relating to the Dissemination environment; The Convention set requirements on the col- (c) Policies, plans, and programs on or relat- lection and dissemination of environmental ing to the environment, and environmen- information.93 It obliges public authorities to tal agreements, as appropriate; and also possess and update environmental information (d) Any other information, to the extent that relevant to their functions, and to establish sys- the availability of such information in tems to ensure an adequate flow of information electronic form would facilitate the ap- about proposed and existing activities that may plication of the national law implementing have significant effects on the environment. the Aarhus Convention. In the event of an imminent threat to human health or the environment, all information The Convention states that every three to that could enable the public to take preventive four years governments have to publish and or mitigating measures must be immediately disseminate a national report on the state of the disseminated. environment that should include not only in- The Convention language on measures formation on the quality of the environment and institutional arrangements for assembling but on pressures on the environment as well. environmental information and making it ac- Within the framework of their national legisla- cessible goes far beyond what was legally re- tion, governments also have to take measures quired even in the most open post-Soviet laws to disseminate: on information. It is a road map for countries attempting to collect and disseminate infor- (a) Legislation and policy documents such mation. First, governments are obliged to in- as documents on strategies, policies, pro- form their citizens about the types and scope grams, and action plans relating to the en- of environmental information held by relevant vironment, and progress reports on their public authorities and how citizens may obtain implementation, prepared at various levels access to it. Second, they are to establish and of government; maintain practical arrangements for making (b) International treaties, conventions, and environmental information accessible, such as agreements on environmental issues; and creating publicly accessible lists, registers, or (c) Other significant international documents files free of charge, and identifying points of on environmental issues. contact. The Convention also introduces what can be seen more as a behavioral rather than The Convention also obliges governments a legal rule, requiring officials to support the to develop specific mechanisms to ensure that public in seeking access to information. sufficient product information is made public In a reflection of the cyberspace era, the to enable consumers to make informed envi- Convention requires governments to make ronmental choices. In addition, governments environmental information progressively have to establish a coherent, nationwide system

Tatiana R. Zaharchenko / 13 of pollution inventories or registers compiled 2.8 Review Procedures and through standardized reporting and to make Accessibility of Final Decisions them available in a structured, computerized, The Convention set up a framework for chal- publicly accessible database. Although much of lenging public authorities when requests for in- the scientific data on monitoring the environ- formation are refused or ignored. 96 It requires ment was collected and maintained in the final governments to safeguard the right of appeal years of the Soviet Union, it was scarcely avail- within their national legislation when requests able even for the internal use of state authori- for information are ignored, wrongfully re- ties. The absence of computers and appropriate fused, or inadequately answered by a court of software is just one reason. justice or other independent and impartial body established by law. It also provides that members 2.7 Access to Information of the public with sufficient legal interest shall during Decision Making have access to administrative or judicial proce- The Aarhus Convention obliged governments dures to challenge acts or omissions by private to provide opportunities for public participa- persons and public authorities that violate pro- tion during decision making related to the visions of national environmental law. In ad- environment (referred to as the second pillar dition, they can challenge the substantive and of the Convention).94 Three areas of decision procedural legality of a decision subject to the making are targeted by the Convention with provisions of the Convention on public partici- different degrees of certainty in terms of pro- pation in decisions on specific activities. This cedural requirements, discussion of which is constitutes the third “pillar” of the Convention, beyond the scope of the present study. The access to justice. Governments must ensure that areas include: first, decisions on specific ac- procedures to supply access to justice will pro- tivities that may have a significant effect on vide adequate and effective remedies and not be the environment; second, decisions concern- prohibitively expensive for the public. ing plans, programs, and polices related to the The Convention stipulates that the final de- environment; and third, decisions during the cisions of the courts and, whenever possible, of preparation of executive regulations or gener- other bodies must be made publicly accessible. ally applicable legally binding normative in- With regard to decisions on access to informa- struments. It is within the public participation tion, the Convention also prescribes that they requirements with regard to specific activities be binding on the public authority holding the (the first area) that the Convention prescribes information. Governments are encouraged to that public authorities must give the concerned establish appropriate assistance mechanisms to public access to all information relevant to remove or reduce financial barriers and other decision-making.95 impediments to access to justice.

14 / On the Way to Tr ansparency 3 The Role of the Convention in the Opening of Post-Soviet States

3.1 Missing Concepts and New vironmental information. This definition is Approaches unusual for post-Soviet states in that what is As was discussed earlier, rights to information included under the rubric of environmental in- were stipulated in many post-Soviet constitu- formation goes far beyond how environmental tions and addressed by post-Soviet laws. The information was perceived. It not only includes criticism that those rights were pure declara- text on the state of environment but also cov- tions is commonplace in legal writing. But ers discharges, emissions, pollution, and other what is usually not mentioned is that the short- forms of environmental degradation. It touches comings of laws regulating these rights re- on any kind of policy, legislation, plan, or pro- vealed the weakness of transitioning societies gram that would or might affect the environ- that wanted to change but for certain histori- ment. Moreover, it encompasses the state of cal reasons did not necessarily know how to. human health and safety and the conditions With regard to environmental information, it of human life affected by the elements of the was the Aarhus Convention that showed them environment. how. In other words, the right to access en- The Convention applies to a broad range of vironmental information in post-Soviet states public authorities (see chapter 2.3). It goes be- was wishful thinking, indicating a goal rather yond the typical approach in earlier post-Soviet than the means to achieve it. The Convention legislation that ministries of the environment provided the means, as well as the necessary and their regional or local divisions should institutional and regulatory support, and of- provide environmental information. For coun- fered the legal concepts and approaches that tries that still have overlapping and complex had been missing. bureaucracies in the environmental area, this The Convention is focused on the obliga- has far-reaching consequences. It requires any tions of the states with regard to people. Thus, public agency that has in its possession infor- the Convention obliges each party to take the mation that falls under the Convention’s defi- necessary legislative, regulatory, and enforce- nition to be responsive to public requests, and ment measures to establish and maintain ac- obliges that agency to share this information cess to information (as well as participation with the public. in and access to justice) for the public.97 The The Convention also expands the circle of Convention addresses the executive branch of people who can receive environmental infor- government, prescribing what should be done mation beyond national borders (see chapter so that the members of the public may obtain 2.4). Post-Soviet laws on information and on access to environmental information. It pro- environmental protection referred to citizens’ vides a step-by-step guide to how public au- rights to receive information. Therefore, non- thorities have to act in response to requests or citizens residing in a particular country or citi- when, on their own initiative, they collect and zens of another country were basically excluded disseminate environmental information. from this legal privilege. The same was true for As mentioned in chapter 2.2, the Convention environmental NGOs. There were no provi- launched the concept and definition of en- sions in post-Soviet laws that implied that pub-

Tatiana R. Zaharchenko / 15 lic associations, organizations, or groups from a In practical terms, it makes requests for infor- different country could request or obtain envi- mation easier to submit for an individual or ronmentally related information from national organization and responses less burdensome authorities. Under the Convention, questions for an official because there is no need to ex- of citizenship, nationality, or residence do not amine the interest or motive. Moreover, this effect eligibility to receive information. Nor requirement dramatically expands the circle does it matter where the public associations or of people who may request information, giv- NGOs requesting information are legally reg- ing civil society opportunities to be broadly istered or located. This is a totally new global informed and involved. approach to recognizing and providing for a Overall, the Aarhus Convention is built universal right to environmental information upon the approach of spelling out the obliga- that every country bound by the Convention is tions of public authorities toward the general obliged to respect and follow. public. In doing so, the Convention switches Another novel legal approach in the the traditional focus of Soviet law that many Convention is its specification that public offi- post-Soviet states could not yet overcome cials have an obligation to respond to a request themselves—from obligations of the citizens to for environmental information (see chapter obligations of the state. 2.5). Also novel is the requirement that governments apply a public-interest test in deci- 3.2 Impact on National Laws sion making with regard to requests for infor- and Policies mation. The Convention says that in deciding The Aarhus Convention affects the shape whether to refuse a request for information of post-Soviet laws and policies on access on the grounds of confidentiality, intellectual to information.Legal commentators from property rights, national defense, public se- the Soviet successor states emphasize the curity, or other reasons, the government must Convention in their studies and guides on ac- take into account the public interest that would cess to information, public participation, and be served by a disclosure of information and the right to a favorable environment.100 States consider whether the requested information re- bound by the Convention are to various de- lates to emissions. In addition, the Convention grees revising their national laws and practices states that the grounds for refusal to provide to implement it. the requested information should be narrowly Of the three areas the Convention ad- interpreted.98 dresses—access to information, public partici- A breakthrough provision in the pation, and access to justice in environmental Convention in relation to post-Soviet legal matters—it is the first that has most engaged systems is that officials should provide envi- the post-Soviet states, as international ex- ronmental information without demanding perts working in these countries have pointed that an interest in obtaining the information out.101 This was also reflected in reports pre- be explained by the requester. This is particu- pared by the Aarhus Convention Secretariat larly significant for these countries emerging for the meeting of Convention parties in May from 70 years of state supremacy over the in- 2005 based on national reports submitted by dividual, with its implication that any com- the parties.102 munication from a person to a state, if allow- According to the Convention Secretariat’s able at all, must be justified. Introducing such Synthesis Report on the Status of Implementation of a legal requirement within post-Soviet sys- the Convention, legislative provisions for provid- tems is a philosophical and conceptual recog- ing access to information under the Convention nition that the public has the right to know.99 are currently in place in almost all of the post-

16 / On the Way to Tr ansparency Soviet states.103 Overall implementation of public request.112 In an effort to implement the Convention was judged most advanced in the Convention, the Majilis (the lower cham- Belarus, Kazakhstan, Moldova, and Ukraine, ber of the Kazakh parliament) has drafted and somewhat less advanced in Armenia, an environmental information law that Azerbaijan, and Georgia, while Kyrgyzstan, was distributed to experts and NGOs for Tajikistan, and Turkmenistan appeared to comments. have made the least progress. However, even Moldova also developed a national plan for in Kyrgyzstan and Tajikistan, hopeful signs in- implementing the Convention provisions.113 cluded decisions to undertake gap analyses be- In addition, following the requirement under tween the Convention and national laws and the Convention that persons exercising their to prepare “national profiles” for the assess- rights in conformity with the Convention not ment of implementation capabilities.104 be penalized, persecuted, or harassed in any There are various examples in the former way,114 Moldova introduced legislative provi- Soviet Union of how the Convention stimu- sions protecting public officials who disclose lates efforts to bring openness and transparency limited access information if this disclosure to laws and polices. In 2002, Azerbaijan in- does not effect national security interests and troduced a Law on Obtaining Environmental if the public interest in disclosure prevails over Information105 that includes definitions, rules possible damage from disclosure.115 for dissemination, and procedures for gain- In 2002, Ukraine enacted legislation ing access to information that reflect some amending a number of previous laws in light of the Convention’s requirements and ap- of Convention requirements, and introduced proaches.106 A law enacted the following year administrative penalties for government offi- introduced administrative penalties for officials who delay or refuse to provide environ- cials illegally limiting access to environmental mental information.116 In 2003, Ukraine’s en- information.107 vironmental ministry adopted the Regulation In December 2001, Belarus enacted a gov- on Providing Environmental Information, ernment decree implementing the Convention a rule on public access reflecting some of that introduced a detailed working plan.108 In the Convention’s approaches.117 In 2004, the 2003, following the decree, Belarus’s environ- Ukrainian legislature adopted the Decree on mental ministry adopted a list of types of acces- Informing the Public on Matters Concerning sible environmental (ecological) information the Environment.118 that was in line with the Convention’s defini- Almost all post-Soviet states have well- tion.109 With the support of national experts, developed legislative provisions on the collec- in 2004 the environmental ministry drafted a tion and dissemination of environmental in- regulation on providing environmental infor- formation; in addition, they use various laws, mation upon the request of physical and judi- state programs, government decrees, and edu- cial persons, which has been broadly discussed cational courses to promote environmental with the public.110 education and awareness.119 According to the In 2002, Georgia’s environmental minis- national reports drawn up in keeping with try and an NGO, the Strategy Research and Convention requirements, many post-Soviet Development Center, prepared draft legisla- states have established natural resources data- tion concerning “access to information, public bases and are in the process of developing pol- participation in decision making, and access to lutant registers. In a majority of these states, justice in environmental matters.”111 national laws and multilateral environmen- In Kazakhstan, state-owned enterprises tal agreements are published and are publicly are obliged to provide information upon accessible.120

Tatiana R. Zaharchenko / 17 3.3 Environmental Ministries public for environmental information (see as Pioneers of Change Table 3). Guides to the Convention have also The ministries of the environment of post-So- been prepared and published by the environ- viet states, or sometimes their state committees mental ministry in Armenia for official use.121 for environmental protection, are the main Comprehensive data is lacking on the num- public authorities with statutory competence ber of requests answered or declined annually to collect and disseminate environmental in- by environmental ministries in post-Soviet formation. They are not necessarily the most states. Partial records indicate some activity. For powerful agencies in their countries, but in the example, for the period January 1 to March 16, area of opening up access to information for 2006, the website of Belarus’s environmental the public they have established a worthy ex- ministry listed 36 requests for environmental ample for other authorities. information from citizens that were answered As noted in chapter 2, the Convention de- through the ministry’s public reception room.122 veloped within the “Environment for Europe” The environmental ministry of Azerbaijan re- process, which unites European environmen- ported answering more than 500 requests for tal ministers in their efforts to improve the re- information from NGOs and nongovernmen- gional environment. Therefore, environmental tal associations from 2002 to 2004.123 ministries have a mandate to implement the Overall, almost all post-Soviet states have Convention in their countries. They are the made significant progress in recent years in put- public agencies that represented their coun- ting environmental information in electronic tries (together with the ministries of foreign databases and making it available through their affairs) at the Convention signing, and they websites. All the post-Soviet environmental participate at the meetings of the parties. Since ministries except that of Turkmenistan now 2005, environmental ministries are obliged to have websites (although access to them may prepare national reports on the implementa- be sometimes sporadic and their addresses may tion of the Convention for the meetings of the change). Table 3 illustrates that the environ- parties and some of them put these reports on mental ministries websites provide various their websites. Thus, it is not surprising that kinds of environmental information. During they demonstrate a clearer commitment to 2002–04, when the main research for the the Convention relative to other public agen- present study was undertaken, these websites cies within the country and put greater efforts changed and expanded enormously. They con- into implementing it. The examples below il- tinue to be improved and expanded in terms of lustrate how some Convention-inspired mea- the volume of environmental information pro- sures encourage changes in post-Soviet habits vided, including announcements of upcoming of governance. projects, results of environmental impact as- Many post-Soviet environmental ministries sessments, texts of environmental legislation, provide training for their officials on how to multilateral environmental agreements, “state handle requests for information and how to of the environment” reports, and notices of involve the public in decision making. Using public hearings, among other items (see Table funding and technical expertise available 3). The development of these websites cannot through international assistance projects, envi- be attributed solely to the Aarhus Convention. ronmental ministries in Belarus, Kazakhstan, Other agencies and ministries of post-Soviet and Ukraine have prepared, published, and states also established websites in the early placed on their websites manuals for officials 2000s. Both Russia and Uzbekistan, neither of that explain the Convention’s obligations and which is a party to the Convention, have en- outline how to work with requests from the vironmental ministry websites. Nevertheless,

18 / On the Way to Tr ansparency during 2002–04 the environmental minis- coordination environmental council. In 2005 tries of the other post-Soviet states (save that it also established an Aarhus Center128 The en- of Turkmenistan) provided much more diverse vironmental ministry of Kazakhstan adopted a and broad environmental information on their regulation to create an Aarhus center in 2005.129 websites than these two countries.124 At the time this paper was completed no Aarhus The use of information technologies and Center has been opened. Nevertheless, within the Internet, often supported by international the information analytical center of the minis- assistance projects, has become commonplace try, an ecological information fund containing in most post-Soviet environmental ministries. annual reports on the state of environment and Some of the post-Soviet states have put signifi- environmental legislation has been introduced. cant resources into developing electronic envi- Aarhus Center Georgia was established in ronmental databases. For example, Kazakhstan Tbilisi, Georgia in December 2005 and began launched an electronic environmental infor- its activities in August 2006.130 mation system at a cost of around $662,000.125 The Azerbaijan Aarhus Center opened in Environmental ministry websites may also 2003 with support of OSCE. It was intended give insight on their commitment to the Aarhus to provide NGOs and government and science Convention and may offer information on ac- organizations with free access to a library, the tivities they have undertaken to implement it Internet, and conference rooms. More impor- (see Table 3). In addition, they may illustrate tant, it was expected to serve as the link be- the current status of access to environmental tween the government and NGOs in environ- information electronically in each country. mental policymaking.131 According to Minister The environmental ministries became an Hussein Bagirov, the center was established to important entry point for the public in the serve the needs of everyone who is interested post-Soviet states for developing a dialogue in the environmental situation of Azerbaijan with government officials. In the last few and wants to contribute to decision making.132 years, many environmental ministries have Since then, the center has been receiving about opened their doors to the public, creating a hundred visitors a week, who come to use what are often officially or informally called one of the country’s largest environmental li- Aarhus centers or information centers, where braries, which offers more than 500 books the public can obtain environmental informa- and 100 videos, all in local languages. Center tion. Such centers exist at the environmental events included training in NGO management ministries in Armenia, Azerbaijan, Moldova, and environmental journalism, public hear- Tajikistan, Ukraine, and Georgia (see Table ings on biodiversity legislation, environmental 3). Moldova, which in 1999 became the first youth congresses, and monthly NGO round- county to ratify the Aarhus Convention, table meetings. According to the OSCE, not has reported more than 2,000 visitors to its only does the center provide NGOs with op- Ecological Information Center annually; it has portunities to meet and discuss environmental plans to create local Aarhus centers and has issues, but, because of its location within the already opened one in Shtefan Vode.126 In the environmental ministry, it has also encouraged Fergana Valley in Central Asia, local Aarhus greater cooperation between NGOs and state centers have opened in Osh, Kyrgyzstan, and officials on environmental activities.133 Khujand, Tajikistan.127 In Tajikistan, during the opening of the The environmental ministry of Belarus has Aarhus center in Dushanbe (with support of been working steadily to create an Aarhus cen- OSCE), the first deputy minister of nature ter for several years. First, in 2001 it opened a protection emphasized that opening this cen- public reception room and established a public ter was “one more important step in the pro-

Tatiana R. Zaharchenko / 19 cess of democratization and development of and Belarus also do so, though sometimes less transparency.”134 frequently.139 The environmental ministries of The environmental ministries of the post- Belarus and Kazakhstan put their 2003 “state of Soviet states use the Aarhus centers for public the environment” reports in a reader-friendly hearings on pending legislation and decisions format on their websites.140 on upcoming projects; for seminars, meet- Overall, it may be concluded that influenced ings, and discussions between the public and by the Aarhus Convention, many environmen- the ministry’s representatives; and for press tal ministries in the post-Soviet region perhaps conferences on environmental issues and other slowly but surely are becoming the leading environmentally related public events. Many proponents of making their governments more centers have libraries that include collections open, transparent, and accountable. of documents that visitors may review and copy as necessary. Some of the centers pro- 3.4 An Additional Tool for Civil vide computer access and Internet connections. Society Some also respond to particular requests for The positive changes in national laws and poli- information. cies and in the role of environmental minis- Many environmental ministries in the states tries in post-Soviet states could not have oc- of the former Soviet Union have prepared pub- curred without the constant pressure placed lic directories or registers on the types of envi- on public agencies by citizens and NGOs. Of ronmental information held by different public particular consequence were efforts to compel authorities. These are often assembled with the the environmental ministries to become more help of foreign experts as part of technical as- transparent, with NGOs embracing the Aarhus sistance projects. The environmental ministries Convention as a tool for effecting greater of Armenia, Belarus, Kazakhstan, Moldova, openness and accountability on the part of and Ukraine posted these directories, registers, government. or lists on their websites, and in some instances On several occasions, a Georgian NGO, on their Aarhus center websites (see Table 3).135 Association “Green Alternative,” applied A similar list reportedly was also prepared by Aarhus Convention provisions to obtain en- the environmental ministry of Azerbaijan.136 vironmental information from the environ- Georgian laws require each public agency to mental ministry and to bring court actions on provide such registers.137 the construction of the Baku-Tbilisi-Ceyhan In some post-Soviet countries, environmen- (BTC) pipeline. The NGO claimed that the tal ministries also have been seeking to ensure government approval process that sanctioned the involvement of other public authorities in the pipeline’s route through Georgia was flawed implementing the Aarhus Convention. For and violated the requirements of the Georgian instance, they have created inter-ministerial constitution, Georgian laws, and the Aarhus groups and conduct workshops and seminars to Convention, particularly the Convention’s pro- which representatives of other public agencies visions on access to information.141 In March are invited.138 2003, the environmental ministry’s representa- Many post-Soviet states prepare national re- tive admitted in court that the ministry made ports on the state of the environment and put no public announcement and did not hold a them on their environmental ministry website legally required public meeting before making (see Table 3). Reportedly, the governments of the decision to grant the environmental per- Moldova and Ukraine publish and disseminate mit. Nevertheless, the NGOs lost the case.142 printed national reports at least once a year, In another case, in April 2004, a Georgian dis- while the governments of Azerbaijan, Armenia, trict court satisfied the Green Alternative ap-

20 / On the Way to Tr ansparency peal and called on parliament to guarantee the The Aarhus Convention strengthens the official publication of the intergovernmental legal arguments of individuals and NGOs agreement on the BTC construction, signed by that the obligation to provide environmental Georgia, Azerbaijan, and Turkey, which had information is stipulated not only in national not been officially published beforehand.143 law but in an international treaty. The moral In Georgia, 38 legal actions reportedly were weight added to a request by the fact that there brought to court in exercise of the right to is an international convention, broadly recog- information access between 2000 and 2004. nized in Europe and by which their country is In at least one case, thanks to the Aarhus abiding, obliges public agencies to release in- Convention provisions, the court reduced the formation. This is particularly true at a time state tax assessed on an NGO by 75 percent.144 when post-Soviet states look to European law Reportedly, Armenian courts also refer to as a model. There are networks of NGOs, by Convention requirements in their decisions.145 now quite experienced and mature, that are In May 2001, a Ukrainian NGO, Ecopravo- able to and in fact do apply the provisions of the Lviv, requested information from a munici- Convention. However, awareness of the right pal water supply company, Brodyvodokanal, to environmental information and knowledge about water quality and sanitation issues. of how to use the Convention still need to be Initially Brodyvodokanal refused the request, expanded among other NGOs in the region stating that the Ukrainian information ac- and the general public. cess law did not designate such information as publicly available. In response, Ecopravo-Lviv 3.5 Compliance Mechanism filed a lawsuit in the economic court of the under the Convention Lviv Region, referring to the provisions of the The Aarhus Convention compliance mecha- constitution and laws of Ukraine, and those of nism was established at the first meeting of the Aarhus Convention. In November 2001, the Convention parties,149 and an international the court ruled in favor of Ecopravo-Lviv, “Compliance Committee” became operational ordering Brodyvodokanal to provide the re- in 2003.150 It has eight independent members quested information, which it did the follow- who serve in their personal capacity. The ing month.146 unique feature of the Convention compliance In 2006, EcoPravo-Kyiv, another re- mechanism is that members of the public, in- nowned public-interest environmental law cluding NGOs, may submit complaints, known organization in Ukraine, successfully pressed as “communications,” concerning how states the regional departments of the state forestry comply with Convention requirements. If do- committee to provide information related mestic remedies first prove inadequate, NGOs to hunting permits referring to the Aarhus or individuals can approach the Compliance Convention, in addition to national legal Committee. Complaints can be considered requirements.147 after a country has been a party for one year. A Kazakhstan NGO, the Green Salvation The mechanism is designed to enhance com- Ecological Society, regularly relies on require- pliance with the Convention by parties, rather ments of the Aarhus Convention in its activi- than provide redress for infringement of an in- ties. In one case brought to the economic court dividual’s rights. of the Kazakh capital, Astana, which referred Once the Compliance Committee reaches to Convention provisions, Green Salvation its final conclusions on a particular commu- won a court decision obliging the ministry of nication, they are sent to the state and to the agriculture to provide information it had pre- member of the public who submitted them, viously refused to release.148 the “communicant.” Measures proposed by the

Tatiana R. Zaharchenko / 21 Committee with regard to communications Kazakhstan could achieve compliance.153 One are subject to the decision of the parties when recommendation was that the government they meet. The parties can then make recom- of Kazakhstan prepare a strategy, including a mendations to the concerned state on specific timetable, for transposing the Convention’s measures to address the matter.151 In May 2005, provisions into national law and developing the Compliance Committee presented the sec- practical mechanisms and legislation to set out ond meeting of the parties with recommenda- clear procedures for their implementation; an- tions regarding five communications from the other was that the government provide officials public, all of which were subsequently adopted of all the relevant public authorities at various by the meeting. administrative levels with training on how to Altogether, 16 communications from NGOs implement the Guidelines on Handling Public and individuals of various countries that are Requests for Environmental Information parties to the Convention were considered by prepared by Kazakhstan’s environmental the Compliance Committee by August 2006.152 ministry. These communications dealt with such issues The second meeting of the parties also as rights of legal standing for NGOs, the fail- found Ukraine not in full compliance with ure of national laws to reflect the Convention its obligations under the Convention, par- requirements, and the failure of public agen- ticularly in failing to ensure that information cies to provide access to information and pub- was provided by responsible public authorities lic participation procedures. Eight of the 16 upon request. The decision was triggered by communications were submitted by NGOs of a communication from the Ukrainian NGO post-Soviet countries: Armenia, Kazakhstan, Ecopravo-Lviv on construction of a navigation Moldova, and Ukraine. canal in the core area of the Danube Biosphere For example, in February 2004 the Reserve. The meeting of the parties requested Kazakhstan-based Green Salvation Ecological that the government of Ukraine bring its leg- Society became the first NGO to have a com- islation and practice into compliance with the munication considered by the Compliance Convention and prepare a strategy to achieve Committee. Green Salvation claimed that that objective.154 Kazakhstan’s national atomic company, Kazatomprom, had violated the NGO’s right 3.6 Seminars, Manuals, to information, refusing to respond to a request Training, and International concerning a proposal to import and dispose of Assistance foreign radioactive waste. The NGO’s previous The particular role of the Aarhus Convention appeals to various national courts were rejected in effecting and nurturing openness and trans- on grounds of jurisdiction, then on procedural parency for transitioning post-Soviet states was grounds, as the court declined to acknowledge recognized by international donors and tech- an NGO’s right to file a suit in its own name, nical assistance programs. During 2000–2005 rather than as an authorized representative of across the former Soviet Union, there were its members. various conferences, seminars, workshops, and Following the recommendation of the training programs related to the Convention Compliance Committee on this communica- and funded by multilateral and bilateral donor tion, the second meeting of the parties adopted agencies promoting democratic change. a decision that found Kazakhstan in incom- Building on the willingness of the states to plete compliance with Aarhus Convention re- implement the Convention, these activi- quirements, including those on access to infor- ties contributed to the process of opening up mation, and made recommendations on how post-Soviet governmental systems and helping

22 / On the Way to Tr ansparency NGOs to navigate these systems in their quests Caucasus, Central Asia, and Eastern Europe for information. since 2002.163 The EU funded a project on For example, in 2000 in Kazbegi, Georgia, implementing the Convention in Armenia, the Caucasus Environmental NGO Network Azerbaijan, Belarus, Georgia, Moldova, conducted a regional seminar titled “Implication and Ukraine during 2002–04 through the and Enforcement of Aarhus Convention in the EuropeAid Programme.164 Caucasus,” with the support of the U.S. Agency Working jointly with UNECE, the United for International Development (USAID).155 Nations Institute for Training and Research In 2001, the AVA network,156 which com- (UNITAR) assisted Kyrgyzstan and Tajikistan prises NGOs from eight Central and East in 2004 with preparations for their National European countries, conducted campaigns on Profile to Assess and Strengthen Capacities the Convention, arranging roundtable discus- to Implement the Aarhus Convention.165 The sions in regional capital cities and rural areas.157 Access Initiative (TAI), a worldwide coalition During 2000–2002, two regional workshops of public-interest groups working to promote on the Convention were conducted in both the national-level implementation of commit- Central Asian158 and South Caucasus159 regions ments to information access, participation, with support from a group of donors. and justice in environmental decision making, A national workshop on implement- developed an interactive tool kit to help civil ing the Convention was held in Issyk-Kul, society groups assess their government’s com- Kyrgyzstan, in October 2003, funded by the mitment in these areas.166 Under TAI auspices, Norwegian government.160 Some events were the first analytical report on a post-Soviet state focused particularly on improving access to was prepared in Ukraine.167 information.161 Assessment of the results of these and other Throughout 2000–2004, the Danish international projects and initiatives is beyond Environmental Protection Agency alone the scope of the present study. However, these supported projects on implementing the activities clearly have helped to expose rep- Convention in Belarus, Kazakhstan, Moldova, resentatives of public authorities and NGOs, and Ukraine, as well as a project to consider environmental activists, judges, and decision- the possibilities for Russia’s accession to the makers to the Convention requirements, mov- Convention.162 Other countries that supported ing the post-Soviet states toward greater trans- projects related to implementation of the parency and openness in governance. Further, Aarhus Convention in the post-Soviet states they have produced and left behind a wide included Italy and the Netherlands. range of training materials and publications The OSCE and its field offices have spon- available for the use of public officials and civil sored the development of Aarhus centers in the society.168

Tatiana R. Zaharchenko / 23 24 / On the Way to Tr ansparency 4 Challenges in Place

Despite positive developments in the post-So- was an important international document that viet states, total transparency on environmental protected the right to live in a favorable envi- matters has not been achieved. Various factors ronment, it might create a threat to Russian account for this. national security. The special commission further concluded that the scope of environmental 4.1 The Case of Two Nonparties: information defined by the Convention could Russia and Uzbekistan provide cover for spying activities.171 The most obvious limit on the Convention’s Discussion continues in Russia on joining ability to foster transparency in the post-Soviet the Convention.172 The Convention is vocally states is that two former Soviet republics have supported by well-known environmental ac- declined to join: Russia and Uzbekistan. tivists and public-interest lawyers.173 However, The Russian Federation played an ac- some of the prominent Russian environmental tive role during the negotiations over the NGOs are more cautious.174 They worry that Aarhus Convention (1997–98). But almost some provisions of the Convention, in particu- invariably Russia opposed any provision that lar the national security information exclusion, would strengthen the text of the Convention could limit the degree of access they have al- or require changes in domestic legislation.169 ready gained. Despite the fact that other countries compro- Uzbekistan follows Convention-related mised with the Russian positions, in the end, events carefully. For example, representatives Russia did not sign the Convention. The agen- of the government and domestic NGOs at- cies that strongly opposed signing included the tended the first meeting of the Convention par- Ministry of Defense and the Federal Security ties, and government representatives attended Service. At the time of the conference in the second. According to a 2001 statement Aarhus (see Chapter 2.1), Alexander Nikitin, of the chairman of the State Committee for a former naval captain of the Soviet Northern Environment of the Republic of Uzbekistan, Fleet who coauthored a report revealing the the Convention stimulates great interest among deterioration of submarine nuclear reactors and state and public organizations in Uzbekistan.175 the consequent radioactive contamination, was Despite this, Uzbekistan has not joined the charged with high treason and divulging state Convention. secrets for his work on the report. The case drew broad attention in Russia and abroad,170 4.2 Bureaucratic Resistance and probably contributed to the Kremlin’s de- and an Incomplete Legal Base cision not to join the Convention. The governments of the post-Soviet states, par- In response to repeated requests from ticularly their executive branches, do not like the State Committee of Ecology to join the to share information. This is not just a prob- Convention, in 1999 a special interagency lem peculiar to the post-Soviet states; it is in commission was created by the Security the nature of bureaucracy. However, in Soviet Council of the Russian Federation. It con- successor states, traditions of governance make cluded that although the Aarhus Convention the opening of the governmental systems to

Tatiana R. Zaharchenko / 25 the public and implementation of the Aarhus formation by public officials was enacted as an Convention particularly challenging. Very environmental ministry regulation instead of often, relevant legislative provisions are spread a decree of the Cabinet of Ministries, as was among various laws and regulations, which intended. While the law’s enactment was wel- makes it difficult for the public to apply them. comed, it limited the circle of public agencies The absence of a clear legal base and contradic- obliged to provide environmental informa- tions between different regulations have been tion on request to the public. The act applies mentioned as problems by governments them- only to the environmental ministry, while the selves in their national reports on implementing Convention states that all public authorities of the Convention.176 Some national reports have the executive branch that hold environmental indicated that public authorities do not always information should be obliged to provide it on explain why a request for information is refused, request (for more details, see chapter 2.3). do not meet required deadlines, and sometimes Such jurisdictional issues have been an on- fail to provide any answer at all (e.g., Armenia going challenge for all post-Soviet states. Much and Kazakhstan). The reports also show that in environmental information is accumulated and some cases discrepancies exist between provi- held by ministries of health and agriculture, sions in national laws concerning information committees on land resources and forestry, that may be withheld and the provisions of the agencies on nuclear safety and emergencies, Convention (Belarus, Ukraine).177 and ministries of defense, among others. They It also has taken time for post-Soviet states to all remain beyond the scope of the regulations adopt new legislation on access to information adopted by the various states’ environmental and to endorse new institutional developments. ministries. Even those countries that seem most active in Particularly at the regional and local lev- implementing the Convention experience reg- els, other public authorities in the post-Soviet ular delays. For example, in 1996 legal experts countries do not appear to be actively en- from a Moldovan NGO, Ecological Society gaged in fulfilling their obligations under the Biotica, prepared a draft law “On Access to Convention or sometimes even to be aware of Environmental Information” based on EU them. The report by the Convention Secretariat directives and international guidelines.178 In on implementation trends lists poor implemen- 2000, a version of this draft in line with the tation both by public authorities at the local Aarhus Convention requirements was prepared and provincial levels and by national-level for a second reading in the Moldovan parlia- public authorities other than environmental ment, but as of April 2007 it had not yet been ministries among the remaining challenges in adopted. the Soviet successor states.179 In Kazakhstan, a draft act has been discussed The laws of some post-Soviet states define by public agencies and NGOs for more than information in the area of environmental pro- seven years, first as a government decree stipu- tection (e.g., Kazakhstan).180 At least two coun- lating procedures for requesting and supplying tr ies (Azerbaijan and Belar us) have attempted to environmental information, then as a draft law introduce a definition in line with the Aarhus on environmental information, both in line Convention (see chapter 4.1). However, at the with the Convention. The act has been con- time of the present study, none of the post-So- sidered in Kazakhstan’s lower parliamentary viet states had provided a definition of envi- chamber, the Majilis, but has yet to be enacted. ronmental information in total correspondence In Ukraine, a draft act stipulating proce- with the Convention at the level of law or gov- dures for the provision of environmental in- ernment decree.

26 / On the Way to Tr ansparency 4.3 Financial and A similar sentiment was expressed by Technological Constraints Manana Kochladze, a prominent Georgian Among the challenges to implementation in the environmental activist and scientist who is the post-Soviet countries is a lack of financial re- Caucasus coordinator for the monitoring orga- sources. In many ways, the Aarhus Convention nization CEE Bankwatch. In 2004, she won the implies the availability of highly developed Goldman Environmental Prize for her grass- information technologies that enable public roots campaigning against the Baku-Tbilisi- agencies to put environmental information Ceyhan pipeline, which pumps Caspian oil into electronic databases and that permit the to the Turkish Mediterranean.181 Association public to access it. In many post-Soviet coun- “Green Alternative,” the Georgian NGO she tries, however, despite a rapid increase in the had founded, actively employed provisions of availability of computers and other necessary the Aarhus Convention in legal cases over in- infrastructure in recent years, such technol- formation access and in appeals to Georgian ogy, particularly at the advanced level, is not courts (see chapter 3.4). Kochladze concluded, widely found. Some counties are simply too “In a country like Georgia … the judicial sys- poor. Though public agencies in the capital tem simply does not work and access to justice cities are usually well equipped with comput- remains a dream…”182 ers, regional and local public authorities rou- This disillusionment of leading environ- tinely lack them, and the general public often mental activists in post-Soviet countries, who cannot afford them. are in the vanguard of applying the Aarhus Convention and other legal tools to environ- 4.4 A Promise of Change or mental problems, may be temporary, and in part Unmet Expectations? is perhaps explained by the high standard es- The Aarhus Convention was met with tre- tablished by the Convention. Nonetheless, it is mendous enthusiasm and great hopes by the profoundly disturbing. It shows the complexity NGOs of post-Soviet countries. But with the of the changes that post-Soviet countries face passage of time, some NGO activists have be- on the way to democracy, the pressures on the come disillusioned with the implementation people working for change, and the connec- of the Convention in their respective coun- tion between the building of transparency and tries. From Central Asia to Ukraine, in pri- openness in post-Soviet societies and the devel- vate conversations and e-mails, the author has opment of other democratic institutions such as heard disappointed comments, even from an an independent judiciary. Environmentalists’ NGO whose communication to the Aarhus disillusionment underscores the need to pursue Compliance Committee led to the organiza- legal and institutional developments that will tion’s home country being found not in com- sustain the momentum built by civil society for pliance with the Convention. change in Soviet successor states.

Tatiana R. Zaharchenko / 27 28 / On the Way to Tr ansparency 5 Conclusion and Policy Recommendations

5.1 Study Findings and constitutions of the Soviet successor states. In this study, I argue that there were forces It might have seemed that not much needed to pursuing more openness, transparency, and ac- be changed to put the Convention’s require- countability in environmental governance be- ments in practice. This proved to be wrong. fore the Soviet Union fell apart. Starting in the Since its signing, the Aarhus Convention late 1980s, intellectuals, scholars, and NGO ac- has gained a special position in the post-Soviet tivists raised issues of access to information and states. They were among the first countries to public participation in environmental decision ratify the Convention, and consequently it was making in articles, newspapers, legal writing, mostly their recognition that made it a binding and public debate. The push from civil soci- international law. As the present study suggests, ety found its reflection in laws and policies of post-Soviet states’ support may be explained by the time as well. In both government and civil the fact that recognition of the necessity for society, there was a mixture of general con- approaches embodied in the Convention had cern about access to information and a con- evolved from the bottom up. Unlike most mul- cern about the environment. When the Soviet tilateral environmental agreements, the deci- Union broke up, the overall liberalization of sion to sign on to the Aarhus Convention was the erstwhile Soviet republics accelerated. And not made solely by high-ranking government when international funds became available to officials, diplomats, and the scientific elite. work at what still was not a priority for post- It was rooted in civil societies determined to Soviet governments, NGOs and environmen- change their countries laws and practices. And tal activists took impressive initiatives to get it reflected a longing of the newly independent involved in decision making, formulate envi- states to find a new voice, a new identity, and ronmental policies, and obtain environmental a new future that would be welcomed among information. However, successful cases of the Western democracies. acquisition of requested environmental infor- Perhaps many of the post-Soviet govern- mation from public authorities were still few ments did not completely realize the conse- and far between, while understanding of the quences of joining the Aarhus Convention at need for legal reforms increased. the time. For them, burdened by Soviet tra- When the Aarhus Convention came along ditions and the Soviet culture of governance, in 1998, the soil for its sociological acceptance implementation continued to be a challenge. in the mentality of post-Soviet societies—both But from the legal and institutional points of on the governmental level and among civil view, in the area of access to information the society—was well prepared. The difference Convention provided instruments and other was that while environmental activists and solutions to the post-Soviet states to show NGOs were eager to move ahead, the bureau- them how to become more open and transpar- cratic systems, coming out of Soviet traditions ent if they were really serious about it. The of governance, were slow if not reluctant to Convention introduced important legal proce- change. Nevertheless, the vocabulary of the dures and concepts that the post-Soviet legal Convention was already in place in the laws systems were missing. As the post-Soviet states

Tatiana R. Zaharchenko / 29 proceeded to fill gaps in their legal systems, the of instruments and international principles to Convention helped them move from declara- facilitate access to information that may be tions of intent to provide access to information useful to the post-Soviet states as well.185 to the realization of that objective. The following suggestions are tailored par- Becoming a party to the Aarhus Convention ticularly to the post-Soviet states based on could be considered a sign of the intention of their traditions of governance, experiences to post-Soviet states to become more open and date, and challenges they face. This does not transparent. However, the true test remains pretend to be an exhaustive list. A country’s whether the Convention will be fully imple- particular situation, culture, challenges, and mented in national laws, policies, and prac- advances on the way to transparent governance tices, and reflected in new system-wide habits should be taken into account to further shape, of governance.183 adjust, and improve these recommendations. I Although the Aarhus Convention covers strongly recommend gap analysis of countries’ environmental information, it affects access to legislation and institutional arrangements in information in the hands of public authorities comparison to the requirements of the Aarhus in general. Implementation of the Convention Convention, provision by provision. has the potential to quicken the processes of openness and transparency in the post-Soviet Some Recommended Institutional states and to facilitate their move to democ- Arrangements racy. Still, such changes strongly depend on • Prepare and make available through web- civil society being involved and using the tools sites, publication, and broad dissemination provided by the Convention. While applaud- the inventories of environmental informa- ing the remarkable efforts that have been made tion in the hands of public agencies, with by citizens and NGOs in the Soviet successor contact information for environmental states by means of the Convention, some of ministries and other public authorities which have been recognized internationally,184 for those who wish to submit requests for one should note that broader public involve- information. ment remains vital. If that were achieved, the • Create and sustain Aarhus information potential linkage between pressure from the centers within the environmental minis- environmental movements and Convention- tries and their regional and local branches. inspired reform of government processes and Periodically evaluate the effectiveness of procedures would make a real transformation these centers in terms of providing infor- of the post-Soviet states possible. mation to the public and giving NGOs and the public the opportunity to voice their Institutional Arrangements concerns. and Legal Safeguards • Support training of officials from envi- For those decision-makers and citizens in the ronmental ministries and their regional post-Soviet states who are committed to the and local branches on access to informa- move to democracy, the following measures, if tion and public participation. Provide them taken by these states’ governments, could ad- with user-friendly manuals and guidelines. vance this process. Some of the measures have Environmental ministries are well posi- already been shown in practice in Soviet suc- tioned to play the leading role in opening cessor states to improve access to environmen- up access to environmental information in tal information and generally bring more trans- the post-Soviet states, assuming there is a parency to environmental governance. Various political will and the necessary leadership. attempts have been made lately to develop lists However, the ministries’ leading role may

30 / On the Way to Tr ansparency easily fade if they are left without nurtur- cesses for responding to requests. These ing and pressure from the public. processes should also be stipulated in the • Involve a broad spectrum of governmental law or by government decree, and there- actors in bringing about societal changes, fore be applicable to all public authorities and provide transparency in environmental holding information. governance. Environmental ministries may • Require a pubic-interest test before classi- share their experiences with other relevant fying environmental information. agencies holding environmental informa- • Introduce administrative penalties for tion through means such as inter-ministe- public officials who do not provide envi- rial working groups and joint workshops. ronmental information to the public as re- • Support and expand efforts to make en- quired by law. (This measure should follow, vironmental information further avail- not precede, completion of the legal base able through the Internet in user-friendly and the provision of system-wide training form. for government officials on how to handle • Explore opportunities to create an inde- information requests from the public.) pendent body to review disputes over the • Provide the possibility of appeal to an in- provision of information upon request.186 dependent, impartial body when a request A good example is provided by Mexico, is refused or inadequately answered, or which in 2003 established the Federal when information is classified as a state Institute for Access to Public Information, secret. an agency that is authorized to resolve cases in which the authorities refuse to respond For the last 15 years, the post-Soviet coun- to petitions for access to information.187 tries have been searching for ways to integrate • When such an independent body is created themselves into the world without commu- in post-Soviet states, its decisions should be nism, to transform their societies and deal with made binding on public authorities.188 the complex choices and hardships of implementing reform. This has not been an easy Some Recommended Legal time for any of the post-Soviet states and their Safeguards people. Some of them went from the euphoria In terms of legal safeguards, first of all a legal of raising the flag of democracy on the ruins of basis for access to environmental information in the Soviet Union to denouncing the value of the hands of public authorities still needs to be democracy. Unfortunately, the harsh changes completed in post-Soviet states. Several other in most people’s everyday lives—the evapora- measures should also be considered: tion of quality health care, free education, and secure jobs—that were often associated with • Concentrate provisions related to access the transition to democratic societies frequently to environmental information in one legal discredited the very idea of democracy itself. act. Nevertheless, almost all the Soviet successor • Introduce a definition of environmen- states now strive to be seen as democratic and tal information in line with the Aarhus claim that they are on their way to democ- Convention at the level of law (statute) or racy, though they frequently insist that their government decree, which will apply to democracy is of a special nature. The Aarhus information in the hands of all government Convention offers post-Soviet states a unique agencies.189 test of the seriousness of their announced in- • Establish clear requirements and proce- tentions to build open societies as well as an dures for acquisition of environmental opportunity to experience how transparency information by the public, including pro- in governance works.

Tatiana R. Zaharchenko / 31 32 / On the Way to Tr ansparency Appendix

Table 1: Articles in post-Soviet constitutions related to information, the environment, and the right to live in a healthy environment

En v i r o n m e n t , Environmental Pr o t e c t i o n , t h e Ri g h t Co u n t r y a n d Da t e o f In f o r m a t i o n , Acc e s s t o a n d /o r Fr e e d o m o f t o Li v e in a He a l t h y o r Fa v o r a b l e Ad o p t e d Constitution In f o r m a t i o n En v i r o n m e n t a n d t o In f o r m a t i o n Re l a t e d t o t h e En v i r o n m e n t

Re p u b l i c o f Ar m e n i a Article 20 Article 8 Adopted June 5, 1995 Everyone is entitled to defend his or her private The right to property is recognized and and family life from unlawful interference and protected in the Republic of Armenia. http://www.oefre.unibe.ch/ defend his or her honor and reputation from attack. The owner of property may dispose of, law/icl/am00000_.html use, and manage the property at his The gathering, maintenance, use, and or her discretion. The right to property dissemination of illegally obtained information may not be exercised so as to cause about a person’s private and family life are damage to the environment or infringe prohibited. on the rights and lawful interests of Everyone has the right to confidentiality in his or other persons, society, or the state. her correspondence, telephone conversations, Article 10 mail, telegraph, and other communications, which The state shall ensure the protection may only be restricted by court order. and reproduction of the environment and the rational utilization of natural Article 24 resources. Everyone is entitled to assert his or her opinion. No one shall be forced to retract or change his or her opinion. Everyone is entitled to freedom of speech, including the freedom to seek, receive, and disseminate information and ideas through any medium of information, regardless of state borders.

Re p u b l i c o f Az e r b a i j a n Article 50. Freedom of Information. Article 39. Right to Live in a Adopted November 12, 1995 Every person shall have the right to legally seek, Healthy Environment. get, pass, prepare, and spread information. Every person shall have the right to live http://confinder.richmond. Freedom of mass media shall be ensured. State in a healthy environment. Everybody edu/local_azerbaijan.html censorship in mass media, including print media, shall have the right to collect shall be forbidden. information on the environmental situation and to get compensation for damage rendered to health and property due to the violation of ecological rights. Article 78. Environmental Protection. Protection of the environment shall be the duty of every person.

Tatiana R. Zaharchenko / 33 Table 1 (cont.)

Re p u b l i c o f Be l ar u s Article 34 Article 46 Adopted March 15, 1994 Citizens of the Republic of Belarus shall be Everyone shall be entitled to a (November 24, 1996) guaranteed the right to receive, store, and favorable environment and to disseminate complete, reliable, and timely compensation for loss or damage English translation: information on the activities of state bodies caused by the violation of this right. http://www.oefre.unibe.ch/ and public associations, on political, economic, Article 55 law/icl/bo00000_.html and international life, and on the state of the environment. It shall be the duty of everyone to Russian text: protect the environment. http://icpo-vad.tripod.com/ State bodies, public associations, and officials const-rb.html must provide to citizens of the Republic of Belarus an opportunity to familiarize themselves with materials that affect their rights and legitimate interests.

Ge o rg i a Article 24 Article 37 Adopted August 24, 1995 Every individual has the right to freely receive Everyone has the right to health and disseminate information, to express and insurance as a means of gaining English translation: disseminate his opinion orally, in writing or in any medical assistance. In circumstances http://www.parliament. other form. determined by law, free medical ge/files/68_1944_951190_ services are guaranteed. CONSTIT_27_12.06.pdf The mass media are free. Censorship is prohibited. The state supervises every health Monopolization of the mass media or the means of institution and the production and dissemination of information by the state or natural distribution of medicine. persons is prohibited. Everyone has the right to live in a Clauses 1 and 2 of this article can be restricted healthy environment and use natural by law, on such conditions which are necessary and cultural surroundings. Everyone in a democratic society, for the guarantee of is obliged to protect the natural and state and public security, territorial integrity, cultural surroundings. prevention of crime, and the defense of rights and dignities of others, to avoid the revelation of The state guarantees the protection confidentially received information or to guarantee of nature and the rational use of it the independence and impartiality of justice in a to ensure a healthy environment, democratic society. corresponding to the ecological and economic interests of society, and Article 41 taking into account the interests of Every citizen of Georgia shall have the right current and future generations. to become acquainted, in accordance with a procedure prescribed by law, with the information Individuals have the right to complete, about him/her stored in state institutions as well objective, and timely information on as official documents existing there unless they their working and living conditions. contain state, professional, or commercial secrets. The information existing on official papers pertaining to individual’s health, his/her finances, or other private matters shall not be accessible to anyone without the consent of the individual in question except in the cases determined by law, when it is necessary for ensuring the state security or public safety, for the protection of health, rights, and freedoms of others.

34 / On the Way to Tr ansparency Table 1 (cont.)

Re p u b l i c o f Ka z ak h s t a n Article 18 Article 31 Adopted August 30, 1995 Everyone shall have the right to inviolability of The state shall set an objective to private life, personal or family secrets, protection protect the environment favorable for English translation: of honor and dignity. the life and health of the person. http://www.president. kz/articles/state/ Everyone shall have the right to confidentiality of Officials shall be held accountable state_container. personal deposits and savings, correspondence, for the concealment of facts and asp?lng=en&art=constitution telephone conversations, postal, telegraph, and circumstances endangering the life other messages. Limitation of this right shall be and health of the people in accordance Russian text: permitted only in the cases and according to the with law. procedure directly established by law. http://www.president. Article 38 kz/articles/state/ State bodies, public associations, officials, and the Citizens of the Republic of Kazakhstan state_container. mass media must provide every citizen with the must preserve nature and protect asp?lng=ru&art=constitution possibility to familiarize himself with documents, natural resources. decisions and other sources of information concerning his rights and interests. Article 20 The freedom of speech and creative activities shall be guaranteed. Censorship shall be prohibited. Everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan shall be determined by law. Propaganda of or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class, and clannish superiority as well as the cult of cruelty and violence shall not be allowed. Article 39 Rights and freedoms of the person and citizen may be limited only by law and only to the degree necessary in order to defend the constitutional system and protect the social order, the rights and freedoms of the person, and the health and morality of the population. Any actions capable of violating interethnic harmony are recognized as anticonstitutional. Limitation of the rights and freedoms of citizens for political reasons is not permitted in any form. The rights and freedoms anticipated in Articles 10, 11, 13-15, paragraph 1 of Article 16, Article 17, Article 19, Article 22, and paragraph 2 of Article 26 of the Constitution are not subject under any circumstances to limitation.

Ky rg y z Re p u b l i c Article 16 Article 35 Adopted May 5, 1993, Every person in the Kyrgyz Republic shall enjoy Citizens of the Kyrgyz Republic shall amended October 21, 1998 the right: –to free expression and dissemination have the right to a healthy and safe of one’s thoughts, ideas, opinions; freedom of environment and to the indemnification http://www.kyrgyzstan.org/ literary, artistic, scientific, and technical creative of damage caused to one’s health or Law/constitution.htm#c1a work; freedom of the press, transmission and property by the improper use of nature. dissemination of information; –to association; –to assemble peacefully and without weapons; to Protection of the environment, natural free meetings and demonstrations; –to freedom resources, and historical monuments and secrecy of correspondence; –to honor shall be a sacred duty of every citizen. and freedom of private life, personal and family secrets; –to secrecy of postal, telephone, and telegraph communication….

Tatiana R. Zaharchenko / 35 Table 1 (cont.)

Re p u b l i c Of Mo l d o v a Article 34. The Right of Access to Article 37. The Right to Live in a Adopted July 29, 1994 Information Healthy Environment Having access to any information of public interest Every human being has the right to live http://confinder.richmond. is everybody’s right, which may not be curtailed. in an environment that is ecologically edu/moldova3.htm safe for life and health, to obtain According with their established level of healthy food products and harmless competence, public authorities shall ensure that household appliances. citizens are correctly informed both on public affairs and matters of personal interest. The State guarantees every citizen the right of free access to truthful The right of access to information may not information regarding the state of the prejudice either the measures taken to protect the natural environment, living and working citizens or the national security. conditions, and the quality of food The State and private media are obliged to ensure products and household appliances. that correct information reaches public opinion. Nondisclosure or falsification The public media shall not be submitted to of information regarding factors censorship. detrimental to human health constitute offenses punishable by law. Private individuals and legal entities shall be held responsible before the law for any damages they may cause to personal health and property due to an ecological offense. Article 46. The Right of Private Property and Its Protection The right of private property carries with it the duty to observe the rules regarding the protection of the environment, the maintenance of good neighborly relations, and the observance of all the other duties that have to be fulfilled by owners of private property under the law. Article 59. Protection of the Environment and Public Monuments It is the duty of every citizen to protect the natural environment, and to preserve and protect the country’s historical and cultural sites and monuments.

Th e Ru s s i a n Fe d e ra t i o n Article 29. Article 42. Ratified December 12, 1993 Everyone shall have the right to freedom of thought Everyone shall have the right to and speech. a favorable environment, reliable English translation: information about its condition, and to http://www.departments. Propaganda or campaigning inciting social, compensation for the damage caused bucknell.edu/russian/const/ racial, national, or religious hatred and strife is to his or her health or property by constit.html impermissible. ecological violations. The propaganda of social, racial, national, Russian text: religious, or language superiority is forbidden. http://www.ibiblio.org/sergei/ Law/Constitution/const.html No one may be coerced into expressing one’s views and convictions or into renouncing them. Everyone shall have the right to seek, get, transfer, produce, and disseminate information by any lawful means. The list of information constituting the state secret shall be established by the federal law. The freedom of the mass media shall be guaranteed. Censorship shall be prohibited.

36 / On the Way to Tr ansparency Table 1 (cont.)

Re p u b l i c o f Ta j i k i s t a n Article 30: Each person is guaranteed the Adopted June 11, 1994 freedoms of speech and the press, as well as the right to use information media. Government http://unpan1.un.org/ censorship and prosecution for criticism are intradoc/groups/public/ forbidden. A list of information considered secrets documents/untc/ of the state is determined by law. unpan003670.htm.

Tu rk m e n i s t a n Article 26: Citizens of Turkmenistan have the right Article 10: The government is Adopted May 18, 1992 to freedom of conviction and the free expression responsible for preserving the national of those convictions. They also have the right to historico-cultural heritage and natural http://www.ecostan.org/ receive information unless such information is a environment, as well as for ensuring laws/turkm/turkmenistancon. governmental, official, or commercial secret. equality between social and national html groups. The government encourages Article 36: Citizens of Turkmenistan have the scientific and creative arts and the the right to freedom of artistic, scientific, and dissemination of their achievements, technical creation. Intellectual property rights and facilitates the development of and the legal interests of citizens in the fields international contacts in the fields of of scientific and technical creation and artistic, science, culture, education, sports, and literary, and cultural activity are protected by law. tourism. The government facilitates the development of science, culture, art, folk art, sport, and tourism.

Ukra i n e Article 34 Article 50 Adopted June 28, 1996 Everyone is guaranteed the right to freedom of Everyone has the right to an thought and speech, and to the free expression of environment that is safe for life and English translation: his or her views and beliefs. health, and to compensation for http://www.rada.kiev.ua/ damages inflicted through the violation const/conengl.htm Everyone has the right to freely collect, store, use of this right. and disseminate information by oral, written, or Ukrainian text: other means of his or her choice. Everyone is guaranteed the right of http://www.infoukes.com/ free access to information about the history/constitution/index- The exercise of these rights may be restricted by environmental situation, the quality of koi8u.html law in the interests of national security, territorial food and consumer goods, and also the indivisibility, or public order, with the purpose of right to disseminate such information. preventing disturbances or crimes, protecting the No one shall make such information health of the population, the reputation or rights secret. of other persons, preventing the publication of information received confidentially, or supporting the authority and impartiality of justice.

Re p u b l i c o f Uz b e k i s t a n Article 30. Adopted December 8, 1992 All state bodies, public associations, and officials in the Republic of Uzbekistan shall allow any English translation: citizen access to documents, resolutions, and http://www.umid.uz/Main/ other materials relating to their rights and Uzbekistan/Constitution/ interests. constitution.html

Tatiana R. Zaharchenko / 37 Table 2: Post-Soviet laws addressing access to information1

La w s o n In f o r m a t i o n a n d /o r o n Fr e e d o m La w s a n d /o r o t h e r legislation Co u n t r y La w s o n Se c r e c y o r Se c r e t s 2 o f o r Acc e s s t o In f o r m a t i o n o n environmental information 3

Ar m e n i a 2003 Law on Freedom of Information4 1996 Law on State and Official Secrecy5

Az e r b a i j a n 1998 Law on Information, Informatization 1996 Law on State Secrecy,9 replaced 2002 Law on Obtaining Environmental and Protection of Information6 by 2004 Law on State Secrecy10 Information11 1998 Law on Freedom of Information7 2005 Law on the Right to Obtain Information8

Be l a r u s 1995 Law on Informatization12 1994 Law on State Secrets14 The Decree of the Ministry of Natural New draft Law on Informatization has 2003 Law amending the 1994 Law on Resources and Environmental been developed in 200413 State Secrets15 Protection of the Republic of Belarus of May 29, 2003, N. 22, approved the list of records belonging to environmental information in compliance with the definition of environmental information provided in the Aarhus Convention.

Ge o r g i a Chapter 3 of the 1999 General Administrative Code of Georgia “Freedom of Information”16

Ka z a k h s t a n 2003 Law on Informatization17 1999 Law on State Secrets18

Ky r g y z s t a n 1999 Law on Informatization19 1994 Law on Protection of State 21 1997 Law on Guarantees and Freedom of Secrets Access to Information20

Mo l d o v a 2000 Law on Access to Information22 1994 Law on State Secrecy23

Ru s s i a 1995 Law on Information, Informatization, 1993 Law on State Secrecy25 and Protection of Information24

Ta j i k i s t a n 2002 Law on Information.26 2003 Law on State Secrecy 29 2002 Law on Protection of Information27 (replaced 1996 law) 2001/2005 Law on Informatization28

Tu r k m e n i s t a n 1995 Law on Protection of State Secrets30 2000 Law on Commercial Secrecy31

Uk r a i n e 1992 Law on Information32 1994 Law on State Secrecy33 2004 Decree on Informing the Public on Matters Concerning the Environment34 2003 Ministry of the Environment Regulation on Providing Environmental Information35

Uz b e k i s t a n 1997 Law on Guarantees and Freedom of 1993 Law on the Protection of State Access to Information,36 replaced by 2002 Secrets Law on the Principles and Guarantees of Freedom of Information37 1998 Law on Informatization38

Notes 1. For relevant articles in the post-Soviet constitutions, see Table 1. 2. In this table, to distinct two different words used in Russian, taina and secrety, two translations are given: “secrecy” and “secrets,” respectively. 3. For laws on environmental protection, see overview in chapter 1.1. 4. Law on Freedom of Information of the Republic of Armenia from 23 Sept. 2003. [online]. Available: http://www.foi.am/en/content/53/.

38 / On the Way to Tr ansparency 5. Law on State and Official Secrecy of the Republic of Armenia from 3 Dec. 1996. 6. Law of the Republic of Azerbaijan on Information, Informatization and Protection of Information N.460-IQ from 3 April 1998. See also Decree of the President of the Republic of Azerbaijan N. 729 from 9 June 1998 on Implementation of Law of the Republic of Azerbaijan on Information, Informatization, and Protection of Information. 7. Law of the Republic of Azerbaijan on Freedom of Information N.505-IQ from 19 June 1998 as amended on 1 Feb. 2000. 8. Law of the Republic of Azerbaijan on the Right to Obtain Information from 30 Sept. 2005. 9. Law of the Republic of Azerbaijan on State Secrecy N.196-1 from 15 Nov. 1996. See also Decree of the President of the Republic of Azerbaijan from 17 Jan. 17 1997 on Implementation of the Law of the Republic of Azerbaijan on State Secrets. 10. Law of the Republic of Azerbaijan on State Secrecy from 7 Sept. 2004. 11. Law of the Republic of Azerbaijan on Obtaining Environmental Information from 12 March 2002, as amended 25 March 2003. 12. Law of the Republic of Belarus on Informatization from 6 Sept. 1995 N.3850-XII, Vedomosti Verkhovnogo Soveta Respubliki Belarus, 1995, N.33, St.428 (in Russian). 13. In Spring 2004, the Council of Ministers of Belarus submitted a new version of the informatization law to the Chamber of Representatives. 14. Law of the Republic of Belarus on State Secrets from 29 Nov. 1994 N.3410-XII, Vedomosti Verkhovnogo Soveta Respubliki Belarus, 1995, N.3, St.5 (in Russian). See also 1999 Presidential Decree on List of Records That Are State Secrets of the Republic of Belarus. 15. Law of the Republic of Belarus on Amendments to the Law of the Republic of Belarus on State Secrets from 4 Jan. 2003, N.172-3, Natsionalnyi Reestr Pravovykh Aktov Respubliki Belarus. 2003. N. 8. 2/921 (in Russian). 16. The General Administrative Code of Georgia from 25 June 1999. No. 2181-IIR, as amended on 9 Sept. 1999, under the Law of Georgia No. 2372-IS. 17. Law of the Republic of Kazakhstan on Informatization from 8 May 2003 N412-II as amended by Law of the Republic of Kazakhstan from 20 Dec. 2004 N13-III. 18. Law of the Republic of Kazakhstan on State Secrets from 15 March 1999, N. 349-1. 19. Law of the Republic of Kyrgyzstan on Informatization from 30 Sept. 1999 as amended by Law of the Republic of Kyrgyzstan from 24 Jan. 2002, N10. 20. Law of the Republic of Kyrgyzstan from 11 Nov. 1997 on Guarantees and Freedom of Access to Information as amended by Law of the Republic of Kyrgyzstan from 18 Oct. 2002, N 147. 21. Law of the Republic of Kyrgyzstan on Protection of State Secrets of the Republic of Kyrgyzstan from 14 April 1994, N 1476-XII. 22. Law of the Republic of Moldova on Access to Information from 11 May 2000, N 982-XIV. 23. Law of the Republic of Moldova on State Secrets from 17 May 1994, N. 106-XIII. 24. Law of the Russian Federation on Information, Informatization and Protection of Information from 25 Jan. 1995, N 24- , Sobranie zakonodatelstva Rossiiskoi Federatsii (Collection of Legislation of the Russian Federation), 1995, N.8 (in Russian). 25. Law of the Russian Federation on State Secrecy from 21 July 1993 as amended by the Federal Law of the Russian Federation from 6 Oct. 1997, N 131-F3. 26. Law of the Republic of Tajikistan on Information from 10 May 2002, N 55. 27. Law of the Republic of Tajikistan on Protection of Information from 2 Dec. 2002, N 71. 28. Law of the Republic of Tajikistan on Informatization from 6 Aug. 2001, N 40, as amended by the Law of Republic of Tajikistan from 26 Dec. 2005, N 124. 29. Law of the Republic of Tajikistan on State Secrecy from 22 April 2003, N 4. (This law is by and large unchanged from the 1996 version). 30. Law of Turkmenistan on Protection of State Secrets from 24 Nov. 1995, N 84-I. 31. Law of Turkmenistan on Commercial Secrecy from 19 Dec. 2000. 32. Law of Ukraine on Information from 2 Oct. 1992, N 2657-X11, Vidomosti Verkhovnoii Rady Ukrainy. 1992, N 48, St. 650 (in Ukrainian). 33. Law of Ukraine on State Secrecy from 21 Jan. 1994, N 3855-XII as amended 21 Sept. 1999, Vidomosti Verkhovnoii Rady Ukrainy. 1999, N.49. St.428(in Ukrainian). 34. Decree of the Supreme Rada of Ukraine on Informing the Public on Matters Concerning the Environment from 4 Nov. 2004 No. 2169-IV. 35. Order of the Ministry of Environmental Protection No. 169 of 18 Dec. 2003 on Approval of Regulation on the Procedure for Providing Environmental Information. 36. Law of the Republic of Uzbekistan on Guarantees and Freedom of Access to Information from 24 April 1997. 37. Law of the Republic of Uzbekistan on the Principles and Guarantees of Freedom of Information from December 2002. 38. Law of the Republic of Uzbekistan on Informatization from 3 April 1998.

Tatiana R. Zaharchenko / 39 Table 3: Access to information and commitment to the Aarhus Convention reflected on the ministry of the environment websites

Co u n t r y Ar e t h e r e n a m e s Do e s t h e w e b s i t e Do e s it h a v e a n An y t r a ining Environmental Wh a t o t h e r a n d MoE’s w e b s i t e a n d c o n t a c t s p r o v i d e “s t a t e o f i n v e n t o r y o f m a t e r i a l s o n information c e n t e r environmental a d d r e s s * o f o f f i c i a l s t h e environment ” environmental t h e Aa r h u s o r Aa r h u s c e n t e r information d o e s t o r e q u e s t r e p o r t (s)**? information Co n v e n t i o n f o r w i t h i n t h e MoE t h e MoE w e b s i t e information? (w h o h o l d s w h a t o f f i c i a l s ? a n d i t s w e b s i t e s ? p r o v i d e ? information a n d a d d r e s s )?

Ar m e n i a Neither the MoE, Yes, the MoE No. But such a Not placed at On May 24, It provides Ministry of Nature nor the Public provides links directory was the website. 2002, the Public information on Protection of the Environmental to the 2002 and prepared and Environmental projects and Environment Center websites 2000 reports. published in 2002. Information programs funded http://www.mnpiac. provide any The MoE Aarhus (Aarhus) Center by international am (or http://www. contact center website was opened. agencies. It mnp.am) information. The has a “Directory It has its own includes news, MoE website of Governmental website, weather, provides an Agencies currently at: monitoring e-mail address Providing http://www. information for sending Environmental armaarhus.am. and information remarks. Data” under on multilateral construction. environmental agreements that Armenia is a party to (including aarhus Convention). In addition, the Environmental Information Center’s website provides environmental legislation, information on a citizen’s right to information and participation, and on sustainable development.

Az e r b a i j a n There is only No (as of August No (as of August Not placed at An Aarhus public The MoE website Ministry of Ecology an electronic 29, 2004). 29, 2004). MoE website. information provides general and Natural form to provide center located information on Resources suggestions or within the MoE the Caspian http://www.eco. ask questions. was opened on Sea, forests, gov.az/ September 23, hydrometerology, 2003. The center and its website is www. environmental aarhuscenter. policy. az.* There is a report of the national activities on implementing the Convention and new laws and regulations introduced to meet its requirements.

40 / On the Way to Tr ansparency Table 3 (cont.)

Be l a r u s Yes. The website “State of the With the support Implementing In December The website Ministry of Natural provides both environment” of a Danish the Aarhus 2003, MoE provides a Resources and the ministry’s reports are Environmental Convention: opened the vast amount of Environmental and a specific available in Protection A User Guide public reception environmental Protection governmental Russian for Agency (DEPA) for Officials room. (See information, http://www. official’s 1999-2002. project, a list in Belarus footnote 122). including on minpriroda.by/ address, phone One version of the type is posted on In 2005, it also the ministry’s (previously: number, fax (without a date) and scope of the Aarhus established an organizational http://www. number, and is available in environmental Convention Aarhus Center. structure, president.gov.by/ e-mail address English. information page of the information on Minpriroda/index_e. to contact for held by public website. Belarus’ natural htm) information. authorities has resources, been prepared environmental and posted on legislation, the website. and reviews of It includes citizens’ rights by contacts of public legal experts. agencies that are authorized Additional to keep and information is disseminate provided at the environmental official Aarhus information. Convention webpage, http://www. ac.minpriroda. by/60.htm.

Ge o r g i a Not clear from Not clear from Not clear from the No information Aarhus Centre In the English Ministry of the English the English English version of available. established in version, besides Environmental version of the version of the the website. December 2005. structure of Protection and website. website. the ministry Natural Resources and various http://moe. departments, caucasus.net/ENG/ there are headings http://www.garemo. for projects, itdc.ge/eng/ legislation, (or www.moe.gov. auctions, natural ge) resources, and tenders.

Tatiana R. Zaharchenko / 41 Table 3 (cont.)

Ka z ak h s t a n Gives the The website A memorandum A memorandum In 2005, the The website Ministry of Natural ministry’s provides the on how to handle on how to MoE adopted provides extensive Resources and contact 2003 report on requests for handle requests a regulation information. Environmental information; and the state of the information for information on creating It includes Protection contacts for all environment. posted on the is posted. an Aarhus legislation, www.nature.kz the departments. website contains Convention international list of public center. assistance agencies holding projects, environmental information on information, sustainable describes their development, competence, regional and provides programs, etc. their website It also provides addresses. information on the MoE organizational structure, ratified multilateral environmental agreements, and upcoming conferences held by the ministry.

Provides detailed information on activities and implementation of the Convention. See http://www. nature.kz/Orhus/ index1_1.htm.

Ky r g y z s t a n Not identified. During the time Ministry of Ecology of research, the and Extraordinary website had an Situations Aarhus Convention http://www. webpage, http:// ecomon.kg/* www.ecomon. kg/aarhus/ that provided Convention texts and its popular description, and included national activities for implementing the Convention.

42 / On the Way to Tr ansparency Table 3 (cont.)

Mo l d o v a Yes. It provides No, but the No, but the Not identified The Ecological It provides Ministry of Ecology the contact Ecological Ecological at the time of Information information and Natural information Information Information research. Center was on multilateral Resources (job title, phone Center website Center website created within environmental http://mediu.gov.md number, and does for 2002- has such an MoE. It provides agreements, (previously: e-mail address) 04. inventory, environmental the ministry’s http://www. for officials including contact information organizational moldova.md/ according to information. for the public; structure, and moldova.html) unit within the holds press other things. ministry. conferences, and undertakes other activities. It has a separate website: http:// www.cim. moldova.md/.

Ru s s i a Yes. It provides None as of No. Such a Not party to No. It provides Ministry of contact August 30, 2004. directory was the Aarhus information on Environmental information prepared in Convention. water resource Protection and (name and phone the framework issues and Natural Resources number only) of technical domestic http://www.mnr. on each unit, assistance environmental gov.ru and where to project funded by legislation. go for certain DEPA to consider environmental accession to information. the Convention, accessible at the Russian Regional Environmental Center website at http://www. rusrec.ru/.

Ta j i k i s t a n Yes. It provided In August 2006, An Aarhus It provides Ministry of Nature the contact the website was center within information Protection information not working. the MoE was on the various http://www.mop. (phone, fax, and opened on domestic laws of tojikiston.com/* e-mail address) September 2003. Tajikistan, as well (Currently, of the ministry. The center’s as geographical transferred into the webpage was and environmental State Committee previously resources on Environmental found at http:// information (e.g., Protection and tojikiston. water issues). Forestry) com/aarhus/, but became unavailable in September 2004.

Tatiana R. Zaharchenko / 43 Table 3 (cont.)

Tu r k m e n i s t a n The Ministry of Nature Protection http://enrin.grida. no/htmls/turkmen/ soe2/*

Uk r a i n e Yes. Website Yes. The website At the Aarhus Provides a Aarhus It gives a Ministry of provides contact provides Convention manual for Information and wide range of Environment and information “state of the page of the trainers on Training Center environmental Natural Resources for officials of environment” website, the list developing was opened in information such http://www.menr. the ministry reports for 1996, of ministries and courses for May 2003 with as information on gov.ua/ and regional and1998–2001, agencies holding officials on how support from environmental bodies of the and regional environmental to implement the DEPA project laws and ministry. Contact “state of the information and Convention and assisting Ukraine multilateral information environment” their websites is how to provide in implementing agreements; for the Aarhus reports, e.g., provided. information. the Convention. activities to center is also Kyiv Region, prevent climate provided. 2003. change; events at the MoE; “state of the environment” reports; materials on environmental impact assessments; information on upcoming environmental conferences and events; environmental indicators and statistics; and advice on what to do in emergency situations.

It has an Aarhus page that provides the vast information on implementation of the Convention in Ukraine, it’s text, practical examples, and various links.

44 / On the Way to Tr ansparency Table 3 (cont.)

Uz b e k i s t a n Yes. The website “State of the The website Not party to No information The website State Committee provides contact environment” offers the the Aarhus center within provides of the Republic information for reports can ministry’s contact Convention. the State information on of Uzbekistan for the MoE, some be found via information, an Committee. the ministry’s Nature Protection specific contacts the UNEP, electronic form organizational http://www.uznature. (address, phone/ Grid-Arendal for submitting structure and uz/eng/index.php* fax numbers, and website, but are information, multilateral (or http://www. e-mail address), supported by and contact environmental gov.uz/en/section. and form for Uzbekistan: information agreements it has scm?sectionId=2523) sending e-mails http://www. of various signed, plus a list to the ministry. grida.no/enrin/ individuals in of environmental htmls/uzbek/ management and publications. env2001/ other divisions content/soe/ within the index_frame. ministry. htm.

* Websites that have periodical problems with access are identified by * ** State of the Environment Reports of the post-Soviet countries may be also found at UNEP Grid-Arendal website at http://enrin.grida.no/.

Tatiana R. Zaharchenko / 45 Endnotes

1. The study focuses on 12 post-Soviet countries. 9. See Andrei D. Sakharov, Alarm and Hope, 2nd It does not cover the three former Soviet Baltic states, ed. [in Russian] (Moscow: Inter-Verso, 1991), 48–58. which are all members of the European Union and 10. See William G. Miller, ed., Toward a More Civil parties to the Convention. Occasional references to Society? The USSR under Mikhail Sergeevich Gorbachev them are intended for comparison purposes or are (New York: Harper & Row, 1989), 87–96. made in regard to their Soviet period. Estonia was a 11. See, e.g., Alla Yaroshinskaya, Chernobyl: party to the Convention when it took effect, while Completely Classified [in Russian] (Moscow: Drygie Lithuania and Latvia were merely signatories. These Berega); Murray Feshbach and Alfred Friendly Jr., two countries ratified the Convention in January and Ecocide in the USSR: Health and Nature under Siege June 2002, respectively. (New York: Basic Books, 1992), 152. 2. International Covenant on Economic, Social, and 12. Kristen Suokko, “The Former Soviet Union. Cultural Rights, and International Covenant on Civil A Poisonous Legacy,” in Defending the Earth: Abuses of and Political Rights, G.A. res. 2200A (XXI), 21 Human Rights and the Environment (Washington, DC: U.N.GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 Human Rights Watch and the Natural Resources (1966), 993 U.N.T.S. 3, entered into force Jan. 3, Defense Council, 1992), 89-96. 1976. 13. In 1962, Rachel Carson’s Silent Spring exposed 3. UNECE is the United Nations Economic the hazards of the pesticide DDT and helped set the Commission for Europe. It is one of five regional stage for the environmental movement in the United commissions of the United Nations created in 1947 to States. See Rachel Carson, Silent Spring (New York: encourage greater economic cooperation among their Houghton Mifflin, 1962). member states and other interested UN members. 14. See Tatiana Zaharchenko, “The Environmental UNECE became an important agency with a broader Movement and Ecological Law in the Soviet Union: range of activities such as policy analysis, development The Process of Transformation,” Ecology Law Quarterly of conventions, and technical assistance. It eventually 17 (1990): 455-75. widened its focus to environment and human 15.“‘Green World’ of Ukraine: Conclusions, settlements, among other areas. Currently, UNECE Problems, Perspectives” [in Ukrainian], Zelenyi Svit includes 55 member states. For more information, (April 1991), no. 5. visit http://www.unece.org/about/about.htm. 16. Alexey Yablokov, “Ecological Ignorance and 4. The text of the Convention is available at http:// Ecological Irresponsibility: Obstacles on the Way to www.unece.org/env/pp/treatytext.htm. Perestroika” [in Russian]. In No Other Way, ed. Yu. 5. See, e.g., Resources for the Future et al., N. Afanasiev (Moscow: Progress, 1988), 238-53. Public Access to Environmental Information and Data: 17. The Ecological Society Green Salvation. Practice Examples from the United States, the European 2000. Herald 2000 [in Russian]. Almaty-Kazakhstan: Union, and Central and Eastern Europe (Washington, Hermes. 10. DC: Resources for the Future, 2001), 3-36. 18. See, e.g., M. Ya Lemeshev, ed., Ecological Available at http://www.rec.org/REC/Programs/ Alternative [in Russian]. (Moscow: Progress, 1990). PublicParticipation/DanubeInformation/PDF/ 19. Viktor Yaroshenko, Expedition “Alive Water” [in PublicInfoAccess.pdf. Russian] (Moscow: Molodaia Gvardiia, 1989), 505. 6. For analysis of how the traditions and mentality 20. See, e.g. Feshbach and Friendly Jr., note 11; of the Soviet past effect implementation of the Aarhus D. J. Peterson, Troubled Lands: The Legacy of Soviet Convention, see Tatiana R. Zaharchenko and Gretta Environmental Destruction (Boulder, CO: Westview Goldenman, “Accountability in Governance: The Press, 1993). Challenge of Implementing the Aarhus Convention 21. See, e.g., N. R. Malysheva, “Democratization in Eastern Europe and Central Asia,” International of Environmental Decisions: Making Progress,” in Environmental Agreements: Politics, Law, and Economics 4 State and Public Control in the Area of Environmental (2004): 229-51. Protection [in Russian] (Kyiv: Naykova Dymka, 7. For information on bilateral agreements in place 1988), 28; S. N. Kravchenko, Realization of Law between individual post-Soviet countries and the EU, in Environmental Protection: Author’s Summary of the see Zaharchenko and Goldenman, note 6: 232–33. Doctoral Dissertation [in Russian]. (Kharkov: Kharkov 8. Alena Ledeneva, “Commonwealth of Law Institute, 1991). Independent States,” in Global Corruption Report 2003 22. See, e.g., Tatiana R. Zaharchenko, “Social- (Berlin: Transparency International, 2003), Available Legal Factors of Environmental Law Realization: at http://www.globalcorruptionreport.org/download. USA Experience” [in Russian], Soviet State and Law 2 shtml. (1992): 131-40.

46 / On the Way to Tr ansparency 23. See Decree of the Council of Ministers and the see also Ecopravo-Lviv and Regional Environmental Central Committee of the Communist Party, “On the Centre for Central and Eastern Europe, Doors to Radical Restructuring of Nature Protection in the Democracy: Current Trends and Practices in Public USSR,” 1988, SP SSSR, No.6., Item 14 [in Russian]. Participation in Environmental Decision Making in the 24. Peterson, note 20, 161. Newly Independent States (Szentendre, Hungary: 25. Sobranie postanovlenii pravitelstva Ukrainskoi Regional Environmental Centre for Central and Sovetskoi Sotsialisticheskoi Respubliki (Collection of Eastern Europe, 1998). Government Decrees of Ukrainian Soviet Socialist 39. See, e.g., Article 71 of the 1991 Law on Republic). 1990. N.8. St. 42. Protection of Natural Environment in the Kazakh 26. In the present study, the terms “state SSR, note 32. authorities” and “public authorities” are both used. 40. Ukraine, however, followed a clause in its It should be noted, however, that it is the terms “state environmental protection law adding in 1991 to authorities”—authorities of the state—and “state the contemporary Criminal Code of Ukraine a officials” (not public officials) that were and are provision about criminal liability for concealing or still, by and large, used in Russian. This reveals an distorting information on environmental conditions important dichotomy in understanding the nature or morbidity among the population and also for of governance in post-Soviet states. In a carry-over the preparation, processing, or selling of radiation- from Soviet times, it is the state’s will that authorities contaminated foodstuffs or other products (Articles must reflect, not the will of the public. It is the state, 227-1 and 227-2). not the public, that officials must serve. Thus, the 41. For example, Ukraine has published term for a government official used in the present annual national reports on the state of the natural article reflects the Russian expression gosudarstvennyi environment since 1991. See Natsionalna dopovid sluzhashchii: “state servant,” not “public servant.” pro stan navkolyshnioho pryrodnoho seredovyshcha 27. Vedomosti S’ezda Narodnykh Deputatov SSSR i (Kyiv: Ministry for Environmental Protection of Verkhovnogo Soveta SSSR. 1989. N.22. St. 416. Ukraine, 1993). National reports starting in 1996 28. This was the case even though the 1977 can be accessed at the website of the Ministry for constitution of the Soviet Union, as amended in Environmental Protection, http://www.menr.gov. 1988, provided for such a right (Article 58). For more ua/. information, see Zaharchenko, note 14, 470-71. 42. See Tatiana R. Zaharchenko, “An 29. The 1992 Law on Protection and Use of Nature of Experience Worth Learning: Public Participation the Republic of Azerbaijan. 1992 Feb. 25. N. 79. in Environmental Protection in the USA” Law of 30. The 1992 Law on Protection of Environment of the Ukraine 6 (1992): 39-42 [in Ukrainian]; Svitlana Republic of Belarus. 1993. Vedomosti Verkhovnogo Kravchenko, “Protection of Ecological Rights in Soveta Respubliki Belarus. NN.1. 10 [in Russian]. Ukraine and the USA: A Comparative Study” Law of 31. The 1990 Law on Protection of Nature of the Ukraine 5-6 (1995): 33-36 [in Ukrainian]. Thorough Estonian Soviet Socialist Republic, 1990 Vedomosti legal studies suggesting possible information Verkhovnogo Soveta i Pravitelstva, N. 6, St.103 [In disclosure strategies in the post-Soviet states were Russian]. undertaken in the United States. See Katherine M. 32. The 1991 Law on Protection of Natural Harman-Stokes, “Community Right-to-Know in Environment in the Kazakh SSR of the Kazakh Soviet the Newly Independent States of the Former Soviet Socialist Republic. 1991. Almaty [in Russian]. Union: Ending the Culture of Secrecy Surrounding 33. The 1993 Law on Protection of Environment of the the Environmental Crisis” Virginia Environmental Law Republic of Moldova. N.1515, June 16, 1993. Journal 15 (1995): 77-138. 34. The 1991 Law on Protection of Natural 43. See, e.g., Sofia Slobodyanik and Tatiana Environment of the Russian Federation. 1992. Vedomosti Zaharchenko, “Right to Know: From a Draft to a Siezda narodnykh deputatov Rossiiskoi Federatsii i Law,” Holos Ukrainy (The Voice of Ukraine). Sept. 18, Verkhovnogo Soveta Rossiiskoi Federatsii. N. 20. St. 1992 [in Ukrainian]. 641 [in Russian]. 44. “Law on Information of Ukraine. 1992 Oct. 35. The 1993 Law on Protection of Nature of the 2,” Holos Ukrainy (The Voice of Ukraine), Nov. 13, Republic of Tajikistan, Dec. 27, 1993. 1992 [in Ukrainian]. 36. The 1991 Law on Protection of Natural 45. See, e.g., the 1993 Law on Informatization and Environment of the Ukrainian Soviet Socialist Republic. the 1997 Law on Guarantees and Freedom of Access 1991. Vedomosti Verkhovnoi Rady Ukrainy. N.41. to Information of Uzbekistan; the 1995 Federal Law St.546 [in Ukrainian]. on Information, Informatization, and Protection 37. See, e.g., chapter 2 of the 1992 Law on of Information of the Russian Federation; the 1998 Protection and Use of Nature of the Republic of Law on Freedom of Information and the 1998 Law Azerbaijan; Article 7 of the 1991 Kazakh Law on on Information, Informatization, and Protection of Protection of Natural Environment; Article 12 of Information of the Republic of Azerbaijan; the 1995 the 1991 Russian Law on Protection of Natural Law on Informatization of the Republic of Belarus; Environment; Articles 10 and 12 of the 1993 Law on and the 1998 Freedom of Information Law of Latvia. Protection of Nature of the Republic of Tajikistan; 46. Description of some approaches and the laws and Article 9 of the 1991 Ukrainian Law on themselves of several countries may be found at Protection of Natural Environment. freedominfo.org, the online network of freedom of 38. For a discussion of relevant legal provisions in information advocates. See http://www.freedominfo. Armenia, Belarus, Moldova, Russia, and Ukraine, org/countries/index.htm.

Tatiana R. Zaharchenko / 47 47. See, e.g., the 1994 Law on State Secrets of 60. For examples of legal actions by public- Ukraine, the 1993 Law on State Secrets of the interest environmental groups in Russia, see Tatiana Russian Federation, the 1996 Law on State Secrets Zaharchenko, Environmental Protection: Guide to of the Republic of Azerbaijan, and the 1997 Law on Legal Actions by Russian Citizens [in Russian] (Saint State Secrets of Latvia. Petersburg: Natural Resources Defence Council, 48. For example, the 1992 Law on Information 1994). For Ukraine, see Ecopravo-Lviv Charitable of Ukraine has 54 articles; the 1995 Federal Law on Foundation et al., Ecological Rights of Citizens: How to Information of Russia includes 25 articles. Protect Them with the Help of Law [in Ukrainian] (Kyiv: 49. See, e.g., Article 2 of Belarus’s 1995 Law on Ekho-Vostok Information Agency, 1997). Additional Informatization; Article 2 of Azerbaijan’s 1998 Law examples may be found in Doors for Democracy, note on Information, Informatization, and Protection of 38; Stephen Stec, ed., Handbook on Access to Justice Information; and Article 2 of Russia’s 1995 Federal under the Aarhus Convention (Szendentre, Hungary: Law on Information. Regional Environmental Center for Central and 50. See also Svitlana Kravchenko, “Regional Eastern Europe, 2003), available at http://www. Overview: NIS Countries,” in Doors to Democracy, rec.org/REC/Programs/EnvironmentalLaw/PDF/ note 38, 11-37. accesstojustice.pdf; Zaharchenko and Goldenman, 51. See, e.g., the Law of the Republic of Belarus note 6; and Kravchenko, note 50. on Citizens’ Appeals, June 6, 1996, N. 407-XIII, 61. Groups that emerged in Russia and Ukraine in Vedomosti Verkhovnogo Soveta Respubliki Belarus, 1996, the early 1990s were joined by ones created in other N. 21 St.376 [in Russian]; the Law of Ukraine on post-Soviet states, such as an Almaty, Kazakhstan– Citizens’ Appeals, Oct. 2, 1996. based NGO called Green Salvation (www. 52. For example, the 1996 Law on Citizens’ greensalvation.org); Ecolex, in Baku, Azerbaijan Appeals of Belarus established procedures for citizens’ (http://ecolex-az.org); and Ecopravo, in Minsk, appeals to officials of state bodies in the form of Belarus, among others. suggestions, statements, and complaints. It provides 62. See, e.g., “To the Supreme Court of Russia,” for the possibility of judicial review of decisions made Zelenyi Mir [Green World] (1997, no. 5/240) [in with regard to citizens’ appeals (Article 8). Russian]; and Anna Menner, “Environmental 53. Oleg Yanitsky, Russian Environmentalism: Victory! The Russian Supreme Court Rules in Favor Leading Figures, Facts, Opinions (Moscow: of Forests,” Russian Conservation News 15 (1998): Mezhdunarodnyie Otnosheniia, 1993) 90-101. 11–12. In 2000, Vera Mishchenko, president of the 54. See, e.g., Ashat Kayumov, “Where Have We Ecojuris Institute, which had been featured in these Gone?” Bereginia, Feb. 1, 1993 [in Russian]. articles, received the Goldman Environmental Prize 55. Alexei Portanskiy, “Trial about Oil, as Never for supporting citizens’ rights in the environmental Happened Before,” Izvestiia, Nov. 23, 1992; and “Suit area. See: http://www.goldmanprize.org/node/134. to Government Rejected, Road to Oil Is Open,” 63. See, e.g. Vladimir Esipov, “Mission to the Izvestiia, Nov. 24, 1992 [in Russian]. Northern Wasteland,” Smena, Jan. 15, 1993 [in 56. For example, in Moscow “Ecojuris-WLED” Russian]. (Women Lawyers for Environment and Development) 64. For example, in 1994 a documentary, was created from the efforts of two lawyers, a Ryabchikhin against Vodokanal, filmed by Gennadii practicing attorney, Olga Razbash, and a legal Shabarin, was shown on one of the most popular Saint scholar, Vera Mishchenko, both with years of legal Petersburg TV stations. It concerned a court case experience. (In 1996 the group split apart, and later brought by an NGO, “Lawyers for Ecology,” against the Ecojuris Institute and the Regional Public Center the municipal water supply company. It generated for Human Rights and Environmental Defense significant feedback from viewers. were established. Ecojuris Institute stays active in 65. For Russia, see Zaharchenko, note 60; M. pursuing legal solutions to environmental problems). I. Vasiliyeva, Judicial Protection of Ecological Rights: In Lviv, a longtime professor of environmental law Legal Questions of Compensation and Prevention of at the university, Svitlana Kravchenko, founded, Environmental Damage [in Russian] (Moscow: with her students, an environmental public advocacy Center for Ecological Policy of Russia, 1996); S. A. center, Ecopravo-Lviv. (See also Kravchenko, note Bogolubov, Protection of Ecological Rights: Manual for 50). A group of lawyers led by an environmental Citizens and NGOs [in Russian] (Moscow: Center law professor, Alexei Shumilo, organized Ecopravo- for Ecological Policy of Russia, 1996); and Ecojuris Kharkiv in Kharkiv. Institute, “How to Defend Your Ecological Rights: 57. For example, in Saint Petersburg, Konstantin Guide for Citizens and NGOs” [in Russian], Zelenyi Ryabchikhin gathered around himself a group of Mir [Green World] (1997, no. 6). For Ukraine, see young lawyers to establish an NGO called “Lawyers Ecopravo-Lviv Charitable Foundation et al., Ecological for the Environment.” Rights of Citizens: How to Protect Them with the Help of 58. For example, in Kyiv, Borys Vasylkivskyi and Law [in Ukrainian] (Kyiv: Eho-Vostok Information his colleagues founded EcoPravo-Kyiv; Vasylkivskyi Agency, 1997). obtained a legal degree a few years later. 66. In Russia, in 1993 Ecojuris started publishing 59. Svitlana Kravchenko, “Citizen Enforcement of regular collections of environmental laws. See Russian Environmental Law in Eastern Europe,” Widener Law Legislation on Environmental Protection and Use of Natural Review 10 (2004) 475-502. Resources [in Russian], vols. 1-2 (Moscow: Ecojuris,

48 / On the Way to Tr ansparency 1993–94). In Ukraine in 1996, EcoPravo-Kyiv and process, see http://www.unece.org/env/wgso/ Ecopravo-Kharkiv published Ecological Legislation of welcome.html. Ukraine [in Ukrainian]. See also Ecological Legislation of 79. On the international origins of the Aarhus the Republic of Moldova [in Russian] (Kishinev: Cartier, Convention, see Stephen Stec, Susan Casey- 1997). Lefkowitz, and Jerry Jendroska, eds., The Aarhus 67. For example, in 1994 high-level decision Convention: An Implementation Guide (New York: makers and representatives of the executive United Nations, 2000), 1–4, Available at http://www. branch and the academic and NGO communities unece.org/env/pp/publications.htm. See also Jeremy of the Russian Federation were brought to the Wates, “Towards an ECE Convention on Access to United States for a U.S. Agency for International Environmental Information and Public Participation Development–funded training course, “Developing in Environmental Decision-Making,” Environmental and Implementing Effective Environmental Laws,” Law Network International 1 (1996):15–21. conducted by the Environmental Law Institute for 80. See, e.g., Jeremy Wates, “The Public Academy for Education. See ELI Seminar Materials. Participation Convention—Progress Report on the ELI, AED, USAID, Oct. 31–Nov. 11, 1994: Negotiation,” Environmental Law Network International Washington, D.C. Personal archive. 1 (1997): 29–32; and Elena Petkova and Peter Veit, 68. See Zaharchenko, note 60, 117-20. “Environmental Accountability beyond the Nation- 69. EPAC Cases. Personal archive. For more State: The Implications of the Aarhus Convention,” information, visit http://www.epac.am. Environmental Governance Notes, (World Resources 70. See, e.g., Stec, note 60, 163–65, 181–83, Institute), April 2000. 197–200. 81. In preparation for the Fourth Ministerial 71. See Zaharchenko and Goldenman, note 6. Conference, in Aarhus, the European NGO 72. Article 1 of the 1992 Law on Information of Coalition organized an “ECO [Environmental Ukraine. Citizens’ Organization] forum” focused on the draft 73. In fact, a review of the 1992 Ukrainian Law of the future Aarhus Convention. An NGO Aarhus on Information by the Organization for Security and agreement adopted during the Fourth Ministerial Cooperation in Europe and the Council of Europe Conference now serves as a basis for the work of described it as “confusing” and noted problems the Pan-European ECO Forum NGO Coalition for with the lack of a definition of official information Sustainable Development, a network of more than and with overly discretional exemptions. See David 200 ECOs throughout Europe. For more information, Banisar, Freedom of Information around the World 2006: see http://www.eco-forum.org/. A Global Survey of Access to Government Information 82. In the United States, an effort to develop a Laws (Privacy International, 2006), 153. Available U.S. NGO statement to the Aarhus Convention and at http://www.freedominfo.org/documents/global_ overall coordination among U.S. NGOs was led by survey2006.pdf. the Environmental Law Institute in Washington, DC. 74. An exemption would be Article 10 of the Personal archive. 1995 Russian information law. It is the article that 83. See Fourth Ministerial Conference. “Environment imposed a ban on making ecological information for Europe.” Aarhus, Denmark. 1998 Jun 23–25. limited-access information, which was also extended Report on the Conference, UNECE: 3–4, 34. to documents being accumulated in open stacks 84. They are Albania, Armenia, Austria, of libraries and archives, and in state information Azerbaijan, Belarus, Belgium, Bulgaria, Croatia, systems, which contain information of public interest. Cyprus, the Czech Republic, Denmark, Estonia, 75. See also Kravchenko, note 50. Finland, France, Germany, Georgia, Greece, 76. Model Law on Access to Environmental Hungary, Italy, Kazakhstan, Kyrgyzstan, Latvia, Information [in Russian]. Decree N.10-7. Dec. 6, Lithuania, Luxembourg, Malta, Moldova, the 1997. Information Bulletin of the Interparliamentary Netherlands, Norway, Poland, Portugal, Romania, Assembly of the CIS [in Russian]. N.16. 1998. Slovakia, Slovenia, Spain, Sweden, Tajikistan, 77. The Commonwealth of Independent States the Former Yugoslav Republic of Macedonia, (CIS) (in Russian, Sodruzhestvo Nezavisimykh Turkmenistan, Ukraine, and the United Kingdom of Gosudarstv) is an alliance of former Soviet republics Great Britain and Northern Ireland. At the conclusion initiated in 1991, when the Soviet Union was of this study, several European countries yet remained dismantled. Its 11 original members were Armenia, signatories: Iceland, Ireland, Liechtenstein, Monaco, Azerbaijan, Belarus, Kazakhstan, Kyrgyzstan, and Switzerland. Moldova, Russia, Tajikistan, Turkmenistan, 85. For more information and updates, visit the Ukraine, and Uzbekistan, joined in 1993 by Georgia. Aarhus Convention’s website, http://www.unece.org/ Turkmenistan discontinued its permanent membership env/pp. in August 2005, and is now an associate member. 86. Jeremy Wates, “The Aarhus Convention: A 78. The “Environment for Europe” process Driving Force for Environmental Democracy,” Journal formally started in 1991 with the first Conference of for European Environmental and Planning Law 1 (2005): European Environmental Ministers at Dobris Castle 2–11. in what was then Czechoslovakia, and subsequently 87. For an overview of other pillars of the went through several ministerial conferences in Aarhus Convention and the challenges to their Lucerne, Switzerland (1993); Sofia, Bulgaria (1995); implementation see, e.g., Zaharchenko and Aarhus, Denmark (1998); and Kyiv, Ukraine (2003). Goldenman, note 6. For information on the Environment for Europe 88. Article 2.3, (see footnote 4).

Tatiana R. Zaharchenko / 49 89. Article 2.2. establishing publicly accessible pollutant registers. 90. Article 2.4. The law, however, divides environmental information 91. Article 3.9. into limited-access information and open-access 92. Article 4. information, but it does not specify criteria for 93. Article 5. classifying limited-access environmental information. 94. Articles 6–8. 107. Law of the Republic of Azerbaijan, as 95. Article 6.6. The Convention defines the amended on March 25, 2003, with the Amendments “public concerned,” as “the public affected or likely to to Legislation in Light of Implementation of the Law be affected by, or having an interest in, environmental on Obtaining Environmental Information. decision making” (Article 2.5). However, the 108. Decree of the Council of Ministers of the Convention further stresses that NGOs promoting Republic of Belarus of Dec. 29, 2001, N.1900. environmental protection and meeting requirements Natsionalnyi Reestr Pravovykh Aktov Respubliki under their national law should be deemed to have an Belarus. 2002 . N. 6, 5/9718 [in Russian]. The plan interest. was prepared by the environmental ministry of 96. Article 9. Belarus together with other agencies and with the 97. Article 3.1. participation of NGOs. 98. Article 4.4. 109. Decree of the Ministry of the Environment of 99. In another region of the world striving to Belarus of May 29, 2003, N. 22 “On List of Records make democracy work, Latin America, requesting Belonging to Environmental Information.” Available information in the hands of government without at http://www.ac.minpriroda.by/60_100.htm. the necessity of demonstrating a personal motive 110. Available at the Belarus Ministry of the has also been recognized as an important principal Environment Aarhus Convention website, http:// of legislation. See Access to Information in the Americas www.ac.minpriroda.by/50_45.htm. (Washington, D.C: Inter-American Dialogue): 111. Implementation of the Aarhus Convention in 13. Available at http://www.thedialogue.org/ Georgia. Adopted commitments within the framework of PublicationFiles/Access%20Report.pdf. the Convention. Information on Implementing the 100. See, e.g., in South Caucasus: Aida Iskoyan Aarhus Commitments in Georgia. (Ministry of Public Participation in Environmental Decision Making Environmental protection and Natural Resources, in the Countries of South Caucasus: Guide [in Russian] Department of Public Relations, 2002); previously (Tbilisi, Georgia: Regional Environmental Center for posted at the ministry’s website. Personal archive. Caucasus, 2001); in Belarus: S. A. Balashenko, E. V. No information is available whether this draft has Laevskaya, and T. I. Makarova, The Right to a Favorable been adopted. For additional information on current Environment (How Can It Be Protected?): Practical Manual regulation of access to information in Georgia, see for Citizens and NGOs [in Russian] (Minsk, 2000); Green Alternative, Environmental Governance in Georgia in Ukraine: Maria Krasnova et al., I Have the Right to and How Can the EU Contribute to its Strengthening Know. Guidelines on Access to Environmental Information (Tbilisi: Green Alternative, 2006): 8-11, available [in Ukrainian] (Kyiv: KM Akademia, 2000). at http://www.greenalt.org/en_publications. 101. See Zaharchenko and Goldenman, note 4, php?lng=en_. 233–37. 112. Synthesis Report, note 102. 102. Synthesis Report on the Status of Implementation 113. Ibid. of the Convention, ECE/MP.PP/2005/18, April 12, 114. Article 3.8 of the Aarhus Convention. 2005, and Conclusions on the Reporting Process and 115. Article 7.5 of 2000 Law on Access to Implementation Trends, ECE/MP.PP/2005/20, April Information of Moldova. 12, 2005. Available at http://www.unece.org/env/pp/ 116. See 2002 Law of Ukraine on Introducing reports%20implementation.htm. I was involved in the Changes to a Number of Legislative Acts of Ukraine, drafting of these reports. adopted in connection with ratification of the Aarhus 103. Synthesis Report, note 102. The report Convention. 2003. Vidomosti Verkhovnoii Rady. [in prepared for the second meeting of parties illustrates Ukrainian]. N.4, St. 31. the progress made by parties in bringing their laws 117. Order of the Ministry of Environmental and policies in line with the requirements of the Protection N. 169 of Dec. 18, 2003 on Approval Convention and the obstacles they encountered. of Regulation on the Procedure for Providing Additional information from countries’ national Environmental Information. implementation reports may be found at http://www. 118. Decree of the Supreme Rada of Ukraine on unece.org/env/pp/reports%20implementation.htm. Informing the Public on Matters Concerning the 104. Synthesis Report, note 102. Environment, from Nov. 4, 2004, No. 2169-IV. 105. Law of the Republic of Azerbaijan on 119. Synthesis Report, note 102. Obtaining Environmental Information from March 120. Ibid. 12, 2002, as amended on March 25, 2003. 121. See Implementation Report by Armenia. ECE/ 106. These elements derived from the Convention MP.PP/2005/18/Add.1. Available at http://www. include providing environmental information unece.org/env/pp/reports%20implementation.htm. without requiring an interest to be stated; introducing 122. The public reception room (obshetvennaia terms of response to requests for information; the priemnaia) is an old-fashioned Soviet office where possibility of appeal to a court whenever a request people can come and ask questions, similar to some is wrongfully refused; requirements for publication form of public affairs office that many institutions/ of national “state of the environment” reports; and agencies have in the West. For more information,

50 / On the Way to Tr ansparency visit http://www.minpriroda.by/public_rel/Public_ prepared with participation of American legal experts Reception.htm. and it is largely based on the Freedom of Information 123. See Implementation Report by Azerbaijan. ECE/ Act. Information on how it is implemented appears to MP.PP/2005/18/Add. 2. Available at http://www. be very scarce. unece.org/env/pp/reports%20implementation.htm. 138. Synthesis Report, note 102. 124. At some point, Kyrgyzstan had a very 139. Ibid. advanced and extensive website with a page on 140. For the Belarus report, see the environmental implementation of the Aarhus Convention, but after ministry website http://www.nd.minpriroda.by/; for 2004 that website stopped working. At the time the Kazakhstan’s report, see its ministry website, www. present study was submitted for publication, the most nature.kz. extensive environmental information was offered on 141. To Tbilisi District Court, May 17, 2003, suit of the websites of Belarus, Kazakhstan, and Ukraine. Association “Green Alternative,” Personal archive; 125. Synthesis Report, note 102. First BTC Court Case Filed in Georgia, June 27, 2003. 126. Implementation report by the Republic of CENN INFO. Press release. Personal archive. Moldova. ECE/MP.PP/2005/18/Add. 19. Available Information on activities of Green Alternative is at http://www.unece.org/env/pp/reports%20 available at www.greenalt.org. implementation.htm. 142. “Green Alternative Loses Court Case against 127. The OSCE and the Aarhus Convention. Georgian Ministry,” Falkor News Release, March 22, OSCE factsheet. Available at http://www.osce. 2003. Additional information is available at www. org/publications/eea/2005/07/15634_429_en.pdf. greenalt.org. Local Aarhus centers were also opened in Hrazdan, 143. “NGO Targets Pipeline Disclosure,” Falkor Kotayk province of Armenia (see New Aarhus Centre News Release, April 6, 2004. Personal archive. For opens in Kotayk region of Armenia with OSCE support. additional developments see http://www.greenalt. OSCE press release, Dec. 5, 2007, available at http:// org/en_publications.php?lng=en. www.osce.org/item/28699.html) and also in other 144. See Implementation report by Georgia. ECE/ provinces of Armenia (for more information, visit MP.PP/2005/18/Add. 9. Available at http://www. http://www.armaarhus.am/index_eng.html). unece.org/env/pp/reports%20implementation.htm. 128. For further developments, visit the Belarus 145. See Implementation Report by Armenia, note 121. environmental ministry’s Aarhus website, http:// 146. For more information, see http://www.epl. www.minpriroda.by/ru/orxus. org.ua/a_cases_Brodyvodokanal.htm. Ecopravo- 129. Personal archive. Previously available at the Lviv later became an international nongovernmental Kazakhstan environmental ministry’s website, http:// organization, Environment-People-Law (EPL). www.nature.kz/Orhus/Rus/polozhenie_1.htm. 147. See Article 19 and EcoPravo-Kyiv, “For 130. See http://aarhus.dsl.ge/index. Internal Use Only”: Is Post-Chernobyl Ukraine Ready to php?lang_id=ENG. Have Access to Ecological Information? [in Ukrainian] 131. “Environmental Information Centre Opens (Kyiv: Article 19, 2008): 91-92. in Azerbaijan,” OSCE press release, Sept. 23, 2003. 148. For more information on Green Salvation Personal archive; Minutes of the first meeting of the cases, see http://www.greensalvation.org. Aarhus Center Management Board in Baku, July 18, 149. The first meeting of the parties to the Aarhus 2003 (Baku. Azerbaijan, 2003). Personal archive. Convention took place in October 2002. At that 132. “Environmental Information Centre Opens in time, they approved Decision 1/7, “Review of Azerbaijan”, note 131. Compliance,” following the mandate of the Article 15 133. The OSCE and the Aarhus Convention, note of the Convention, which stipulates, “The Meeting 127. of the Parties shall establish, on a consensus basis, 134. “Environmental Information Centre Opens in optional arrangements of a non-confrontational, Azerbaijan”, note 131. non-judicial and consultative nature for reviewing 135. In Armenia, a directory of 70 public compliance with the provisions of this Convention. authorities holding environmental information, and These arrangements shall allow for appropriate their contact information, was published in July 2002 public involvement and may include the option of with support from the United Nations Environment consideration of communications from members of Program and OSCE; reportedly its preparation was the public on matters related to this Convention.” inspired by information access requirements in the 150. For reports of the Compliance Committee Aarhus Convention. See “OSCE Supports Armenian and decisions of the second meeting of the parties Environmental Handbook”, OSCE press release, July on specific cases, and other information, visit http:// 12, 2002. Personal archive. Available at http://www. www.unece.org/env/pp/compliance.htm. osce.org/item/6840.html. 151. For an overview of the procedures and 136. See Implementation Report by Azerbaijan, note decisions of the Aarhus Convention Compliance 123. Committee, see Veit Koester, “The Compliance 137. See Article 35 of the 1999 General Committee of the Aarhus Convention: An Overview Administrative Code of Georgia. Available for of the Procedures and Jurisprudence., Environmental example at http://unpan1.un.org/intradoc/groups/ Policy and Law 37 (2007): 83-96. This article is public/documents/untc/unpan004030.pdf. It requires available at http://www.iucn.org/themes/law/ all public information kept by a public agency to cel10.html. Koester chairs the Aarhus Convention be entered into the public register. This code was Compliance Committee.

Tatiana R. Zaharchenko / 51 152. Updates on submitted communications are 167. EcoPravo-Kyiv et al., Assessment of Access to available at http://www.unece.org/env/pp/pubcom. Information, Participation in Decision Making, and Access htm. to Justice in Ukraine (Kyiv: EcoPravo-Kyiv, 2004) [in 153. See Decision II/5a on Compliance by Ukrainian]. Available in Ukrainian and English at Kazakhstan with Its Obligations under the Aarhus http://www.ecopravo.kiev.ua/epk/index_ua.shtm. Convention (ECE/MP.PP/2005/2/Add.7), available 168. Examples of such publications for Armenia, at http://www.unece.org/env/pp/compliance.htm. Azerbaijan, Belarus, Georgia, Moldova, and 154. See Decision II/5b on compliance by Ukraine Ukraine can be found at http://www.rec.org/REC/ with its obligations under the Aarhus Convention Programs/PublicParticipation/PublicAwareness/ (ECE/MP.PP/2005/2/Add.8). Available at http:// default.html. www.unece.org/env/pp/compliance.htm. 169. See, e.g., Wates, note 80. According to the late 155. See, e.g., Report of the Regional Seminar/ Sergey Kuraev, at the time Head of the International Workshop “Implication and Enforcement of Aarhus Relations Department of the State Committee Convention in the Caucasus,” conducted by the of Ecology (Goskomekologiia) of the Russian Caucasus Environmental NGO Network (CENN) Federation, who participated in the negotiations, Aug. 8–11, 2000, in Kazbegi, Georgia. Available the representatives of the Russian government were at http://www.cenn.org/Seminar/Aarhus%20 genuinely intending to sign the Convention at the Workshop_Web.pdf. conference in Aarhus, but at the last minute received 156. The AVA network was founded in 1998 by the instructions from the Kremlin not to. Personal Danish Society for the Conservation of Nature and interview. May 16, 2002. the Danish environmental organization Severin. 170. In 1997, Alexander Nikitin received 157. The AVA Aarhus Campaign Newsletter (no. 3, the Goldman Environmental Prize. For more 2002): 1. information, see http://www.goldmanprize.org/ 158. The first regional Central Asia Workshop on node/139. In 2000, ending five years of legal the Convention was held in May 2000 in Ashgabat, battle, the Presidium of the Russian Supreme Turkmenistan. It was organized by UNECE, Court completely acquitted Nikitin of charges UNEP, and OSCE with financial assistance from the of treason and revealing state secrets. For more governments of Austria, Denmark, and Norway. The information, see http://www.bellona.org/subjects/ second workshop was held in Dushanbe, Tajikistan, Nikitn_Case_2000. in June 2002. This workshop was organized jointly 171. See Conclusion of Interagency Commission of by UNECE, UNEP, OSCE, and the American the Security Council of the Russian Federation on the Bar Association, with the cooperation of the Tajik Aarhus Convention. [in Russian] Personal archive. Ministry for the Environment and the United 172. See, e.g., Russian Regional Environmental Nations Development Programme (UNDP). For Center, Perspectives of Russia’s Accession to the Aarhus more information, visit http://www.unece.org/env/ Convention [in Russian] (Moscow: Russian Regional pp/acrwca.htm and http://www.unece.org/env/pp/ Environmental Center, 2004), available at http:// workshops/caws.report.final.eng.doc. rusrec.ru/aarhus/conference/materials/aarhus_book. 159. For more information, visit http://www. pdf. See also Tatiana Zaharchenko, “Accession to the unece.org/env/pp/oa.htm. Aarhus Convention: Notes to Arguments in Favor,” 160. See information available at the website of Ecology and Law [in Russian] (St Petersburg: Bellona, the Regional Environmental Center for Central Asia, 2005), no. 19: 33-34, available at http://www.bellona. http://www.carec.kz/news/21.10.2003/21.10.2003. ru/filearchive/fil_ER19_10-06-2005.pdf. htm [in Russian]. 173. See, e.g., Olga Razbash, Right to Know. Right 161. See, e.g., Agenda of the Conference “Access to to Participate. Right to Justice [in Russian] (2000). Information: Problems and Perspectives.” July 29–30, Personal archive; Aarhus Convention: The Place of the 2004, Bishkek, Kyrgyzstan. Personal archive. Public in Russia and the Place of Russia in Europe [in 162. Personal archive of the terms of references for Russian] (2002), available at http://www.hrights.ru/ these projects. text/b17/Chapter11.htm. 163. Summarizing this experience, OSCE 174. See Ecojuris Institute, “Aarhus-98: Passions published The OSCE and the Aarhus Convention on the Convention” [in Russian], EcoLogos (Summer (note 127). In this document, the OSCE analyzed 1998), no. 6; Bellona. 2003 “Access to Environmental the activities of Aarhus centers, and assessed their Information in Russia” [in Russian]. Bellona on-line importance for the countries where they were present. publication. June 25, 2003. Available at http://www. 164. For more information on the project, bellona.ru/russian_import_area/international/russia/ see Implementing the Aarhus Convention: Resources envirorights/info_access/30214. Materials for Officials and Civil Society in the Eastern 175. See statement of Halilulla Sherimbetov, Europe and Caucasus Region. Available at http:// chairman of the State Committee for Environment www.rec.org/REC/Programs/PublicParticipation/ of the Republic of Uzbekistan, in What People Are PublicAwareness/INfo_about_proj_eng.html. Saying About the Aarhus Convention. A Compendium 165. For more information, see http://www.unitar. of Statements from Governments, Intergovernmental org/cwg/aarhus/index.html. Organizations, and Non-Governmental Organizations 166. For more information, see http://www. Made upon the Occasion of the Convention’s Entry into accessinitiative.org/.

52 / On the Way to Tr ansparency Force, Oct. 30, 2001. Available at http://www.unece. 185. See, e.g., 10 principles on the right of access org/env/pp/30.october/all.statements.pdf. to information developed by the Open Society Justice 176. Synthesis Report, note 102. Initiative with partner organizations: 1. Access to 177. Ibid. information is a right of everyone. 2. Access is the 178. See Elaboration of the Law Draft “On Access to rule—secrecy is the exception. 3. The right applies Environmental Information.” Available at http://www. to all public bodies. 4. Making requests should be biotica-moldova.org/act_law.htm. simple, speedy, and free. 5. Officials have a duty to 179. Conclusions on the Reporting Process and assist requestors. 6. Refusals must be justified. 7. Implementation Trends, note 102. The public interest takes precedence over secrecy. 8. 180. See, e.g., the 1997 Law of the Republic Everyone has the right to appeal an adverse decision. of Kazakhstan on Environmental Protection (as 9. Public bodies should proactively publish core amended on Jan. 31, 2006), Article 71, part 1. information. 10. The right should be guaranteed 181. For more information, see http://www. by an independent body. From Ten Principles on the goldmanprize.org/node/118. Right to Know. International Right To Know Day, Sept. 182. CEE Bankwatch Network * Green Alternative. 28, 2005. Justice Initiative press release. Available at Press release, Oct. 11, 2005. Personal archive. This http://www.justiceinitiative.org/Principles/index. quote also available at http://www.bankwatch.org/ 186. So far, none of the post-Soviet countries newsroom/release.shtml?x=695387. discussed in the present study decided to establish 183. The present study has not focused on legal an independent and impartial body under the transplantation—a process by which laws and legal Aarhus Convention to review cases when a request institutions developed in one country are then for environmental information has been ignored, adopted by another—which is examined in recent wrongfully refused, or inadequately answered. Some literature such as Frederick Schauer, The Politics and commentators suggested that post-Soviet states Incentives of Legal Transplantation, [CID Working should introduce an environmental ombudsman as a Paper No. 44, Law and Development Paper No. neutral arbiter of complaints from citizens about the 2] (Cambridge, MA: Center for International government. See Ruth Greenspan Bell, “Legitimacy, Development at Harvard University, April 2000), Trust, and the Environmental Agenda: Lessons from available at http://www.cid.harvard.edu/cidwp/ Armenia,” Environmental Law Reporter 30 (2000): 1–7. pdf/044.pdf; John Gillespie, “Globalisation and Legal The judiciary in these countries still remains weak Transplantation: Lessons from The Past,” Deakin and is often hampered by economic constraints and Law Review 6 (2001): 286, available at http://www. even corruption. Overall, the judiciary has not yet austlii.edu.au/au/journals/DeakinLRev/2001/5. evolved into an independent branch of government. html; and Daniel Berkowitz, Katharina Pistor, An ombudsman may be an effective alternative of an and Jean-François Richard, Economic Development, impartial body to fill this gap. Legality, and the Transplant Effect [CID Working Paper 187. Instituto Federal de Acceso a la Informacion No. 39] (Cambridge, MA: Center for International Publica, Mexico: Transparency and Access to Information. Development at Harvard University, March 2000). (Mexico City: 2004). See also Jonathan Fox, ed., It does, however, provide evidence of the complexity Mexico’s Right-to-Know Reform: Civil Society Perspectives of the adaptation of Western principles and rules (Washington, DC: Woodrow Wilson International of environmental democracy to post-Soviet legal Center for Scholars, 2007). systems. An analysis of how the traditions of the 188. The Convention has a particular requirement Soviet past effect implementation of the Aarhus that final decisions of such bodies be binding on the Convention can be found in Zaharchenko and public authority holding the information (Article 9.1, Goldenman, note 6. part 3). This would be a key for such institution/body 184. In addition to Manana Kochladze, of Georgia, to be effective. whose organization applied the Convention and 189. For Western democracies, it may not be who received the Goldman Environmental Prize in necessary to have legal provisions on access to 2004, a Ukrainian lawyer, Olya Melen, from Lviv, environmental information spelling out its definition as was a Goldman Prize winner in 2006. The Aarhus long as there is a general requirement that information Convention was among the legal means used by in the hands of the government has to be open and Melen and her organization, Environment-People- accessible to the pubic and mechanisms to obtain Law, in battling construction of a massive navigation it are in place. For post-Soviet countries, however, canal that would have cut through the heart of the it is advisable not only to establish procedures and Danube Delta, one of the world’s most valuable legal mechanisms for getting access to environmental wetlands, without a proper environmental impact information, but to define this information in line assessment. For more information, see http://www. with the Aarhus Convention requirements. goldmanprize.org/node/143.

Tatiana R. Zaharchenko / 53 Woodrow Wilson International Center for Scholars One Woodrow Wilson Plaza 1300 Pennsylvania Avenue, NW Washington, DC 20004-3027 Tel. (202) 691-4100 Fax (202) 691-4247 www.wilsoncenter.org/kennan