UN Photo/Milton Grant

Keywords: Millennium Development Goals (1 hits), MDG (1 hits),

Submission by The Access Initiative (TAI)

for UNCSD 2012 (Rio+20)

I ?Introduction

The Access Initiative (TAI): TAI is the world?s largest network of civil society organizations working to ensure that people have the right and ability to influence decisions about the natural resources that sustain their communities. TAI is 12 years old and represents over 250 civil society organizations in over 50 countries. This is our formal input to the Rio+20 compilation document and it is based on rigorous and robust assessments we have done on Principle 10 related laws, institutions and implementation in each of our countries, our three demands (3D) campaign in the run up to Rio+20, and our active participation in preparatory meetings, regional meetings and high level meetings leading to Rio+20. This submission is also supported by 180 individuals from all over the world who have signed a petition to UNDESA supporting the proposals contained here. The petition and individuals are set out in Annex 1.

Principle 10 of the Rio Declaration:

The right to obtain information, right to participate in decision-making and the right to seek justice are a bundle of valuable rights which we call ?access rights?. The access rights have their origins and roots in human rights recognized by a number of international instruments, including the Universal Declaration of Human Rights. These rights were recognized in Principle 10 of the Rio Declaration and are fundamental to good environmental governance. Progress has been made in many countries through ?access delivery mechanisms? such as environmental impact assessment procedures, pollution release and transfer registers, freedom of information laws, public comment and hearing procedures, zoning and planning procedures and environmental courts and tribunals.

But many gaps remain and need to be filled. Weak implementation of access rights has come about because governments have failed to provide the political will, necessary institutional and legal infrastructure and resources necessary for their full realization. Deliberate obstruction by vested interests that have inequitably benefited from closed and unaccountable governance regimes has contributed to the failure. Even where access rights are supported by national laws, secretive bureaucratic cultures have thwarted their full enjoyment by citizens. The lack of capacity building for government and civil society and the absence of basic information systems are two other factors that have prevented the wider enjoyments of the benefits of Principle 10.

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We believe that the accountability and implementation gap needs to be addressed through the setting up of a binding legal framework for Principle 10. The lack of adequate commitment and progress even after twenty years since the Rio Declaration of 1992 is a telling sign that Principle 10 will remain unimplemented unless a time bound legally binding international or regional mechanism is put in place to make it happen. Further and fuller reasons supporting our proposals are to be found in the paper we issued with Article XIX titled ?Moving from principles to Rights?.

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The full implementation of Principle 10 (letter and spirit) nationally, regionally and globally will provide the necessary enabling environment for sustainable development and good governance. There are numerous documented benefits that flow both to government and citizens when access rights are implemented, respected and enjoyed in full. Good governance will ensure that developmental decisions are responsive to citizen needs and demands, that sustainability and social equity considerations are given due consideration by decision-makers, that corruption is eliminated or minimized, that the voice of the poor and marginalized are heard and that government is accountable to citizens.

II - What We Want from Rio+20

The two main themes for Rio+20 are (a)the institutional framework for sustainable development (IFSD) and (b) green economy in the context of sustainable development and poverty alleviation. Principle 10 is fundamental to both of these themes and provides the underlying and enabling conditions for the success of Rio+20 outcomes. In 2011 we launched the Three Demands Campaign (3D Campaign) because we were concerned that the Rio+20 preparatory meetings were only focusing on international environmental governance (IEG) when the UN mandate for Rio+20 set a much wider agenda in IFSD and we wanted to ensure that national environmental governance (NEG) was included in the discussions (see below for results of the campaign). In the context of NEG, Principle 10 has received supportive mention in the submission of governments, civil society organisations as well as in the outcome documents of international gathering leading up to Rio+20 (See Annex 2). In this context, here are our suggestions for Rio+20:

1. Structure of the Outcome Document: We expect the political document adopted at Rio+20 to be (a) visionary (b) build on the Rio Declaration, Agenda 21 and the Johannesburg Plan of implementation, (c) identify the gaps in achieving the goals set by these decisions and (d) spell out concrete steps that will be taken by governments in the next decade to fill these gaps. With regard to NEG and Principle 10 we outline below the key gaps that need to be filled and the priority measures that need to be taken.

2 2. Concrete Proposals ? Moving from Principles to Rights: For the reasons stated below, we propose that the outcome document acknowledge in unequivocal terms, the importance of Principle 10 of the Rio Declaration for solving environmental issues and advancing sustainable development. We propose that the document contain:

 A clear mandate to the UN secretariat to commence negotiations on a UN framework convention on Principle 10. A framework convention will set out the basic standards and goals for state parties under Principle 10, require regional bodies to initiate negotiations on regional conventions containing binding obligations including compliance and monitoring mechanisms and establish a timeline for the negotiation of the regional conventions. A framework convention could incentivize national and regional Principle 10 reforms with added privileges, benefits and recognition for nations that pursue them.

 Alternatively, a mandate to UNEP regional offices or UN Regional Economic Commissions and encouragement to other regional inter- governmental organizations to negotiate regional or sub-regional conventions on Principle 10. This proposal is also reflected in the 3D campaign results below.

 A clear mandate to UNEP (as an interim priority measure) to develop a robust program for promoting the Bali Guidelines for the Development of National Legislation on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (2010) adopted by the UNEP Governing Council and for building the capacity of governments and civil society to implement the said guidelines.

 The constitution of a task force comprised of civil society representatives, governments and UN Agencies to develop, within one year, a universal set of guidelines, procedures and institutional reforms applicable to UNEP and other UN Agencies implementing Principle 10 in UN agency decision-making to be applied in their day to day work and deliberations.

 We expect the outcome document to set out a time frame for the completion of these commitments and mandates. We also highlight below, four other initiatives that will further the goals of principle 10 which may be featured in the informal space at Rio+20.

3 3. Further Concrete Proposals ? 3D Campaign: As part of the 3D Campaign, civil society coalitions and partners all over the world (currently in over 30 countries) collectively developed and made three top national environmental governance demands from each of their governments. A number of demands stood out, either called for by a number of countries, or urgent in nature. These demands ranged from legal reforms to practice changes and are listed in our interim report. All of these demands should find a place within the Rio+20 outcome document and should be included in the zero draft.

 Regional Conventions on Principle 10: Many countries have regulations requiring access in major areas of environmental concern. Yet much of the time, these laws remain unenforced and accountability mechanisms are weak. Civil society organizations in many countries feel that an international mechanism to mutually raise one another to a higher level of performance would improve access at the national level. This proposal is also reflected in those set out above.

 Improving Environmental Assessment Practice: A common request in many countries was expansion and improvement of access to information and public participation in environmental impact assessments (EIA). While EIA procedures useful for decision-making they are by no means sufficient means for ensuring sustainable development. However, when EIA processes are used they need to be transparent and participatory and accountable. This is often seen as one of the most important means of improving decision-making and environmental quality of new development.

 Broad Legal Reforms for Access: In some countries, coalitions felt that all three access rights could be addressed in an overarching legal reform, rather than in piecemeal legislation, as has been the practice in many countries.

 Environmental Databases: In a number of participating countries, regulations call for the regular publication of environmental data and related information. However, many of these regulations have gone unimplemented with tremendous gaps in data collection, analysis, and publication.

 Environmental Courts: Environmental courts provide what can be an effective and cheaper means of dispute resolution than regular courts. Specialized attention to environmental laws and increased scientific expertise can mean that victims of pollution may be able to have their environmental complaints addressed in a faster, cheaper, more predictable manner.

 Citizen Enforcement: In many countries, law enforcement officers are spread thin, with little ability to prioritize among serious environmental issues. For that reason, a number of countries felt the need for citizen enforcement of environmental laws and rights. We request that governments establish citizen suit provisions allowing for citizen enforcement of laws.

4. Reasons for our Proposals - Implementation Gaps & How to Fill Them: National environmental governance (NEG) improvements should include better coordination among government agencies, clear environmental laws and more efficient bureaucratic procedures. At the heart of good NEG is Principle 10 ? which requires more open, inclusive and accountable decision-making.

In our first submission to the Rio+20 processes in response to UNDESA?s 2010 questionnaire, we identified a number of gaps in Principle 10 implementation. Foremost among the gaps in implementing Principle 10 are:

• weak implementation across all three pillars of Principle 10 (information access, public participation and access to justice);
• weak laws on public participation and access to justice; and
• the lack of affirmative legal rights for empowering the poor and marginalized groups to have a voice and say in decisions that affect them.

We also provided good examples of Principle 10 implementation and practice including examples of progressive access to information laws from Mexico and India and good practice examples from countries that have signed the Aarhus Convention. Philippines and Indonesia have recently established environmental courts to provide greater access to justice on environmental matters, while Chile is reforming its environmental impact assessment laws to ensure that poor and marginalized people have more voice and access to the decision-making process. Thailand is revising its public participation laws to improve public engagement spaces. While there is progress in some countries, in others access rights are being curtailed.

There are plenty of examples of good practice and guidelines and tools to help governments and civil society implement Principle 10 ? what is needed is political commitments, a framework convention, serious and urgent law and institutional reforms at the national and regional levels and funding for governments and civil society to work on improving laws, administrative capabilities, and building the capacity of civil society to use the access rights more effectively.

5. Comments on Existing Proposals: A number of governments, civil society organisations and international organizations have acknowledged the importance of improving transparency, citizen engagement and accountability (Principle 10) as part of the Rio +20 Agenda. These include several governments, the European Union, the Declaration from the 4th Meeting of the parties of the UN European Economic Commission?s Aarhus Convention (Chisinau Declaration) and the resolution from the European Union Parliament. Additionally, several UN documents acknowledge the importance of Principle 10 and the need to fully implement it. In particular the Synthesis Report of the Secretary General, the UNEP Report on the Green Economy, UNECLAC Report for the Regional Consultation, the Beijing High Level Consultation texts, the Latin America and Caribbean Regional Meeting Statement, and The Chair?s text from the UNESCAP Asia pacific regional meeting in Seoul. For a summary of these statements see Annex 1.

6. Statements have also been made in support for full implementation by civil society groups including the Stakeholder Forum, Article XIX, ourselves, and the NGO, Women?s and Youth Major Groups. Many call for a global Principle 10 convention. Others support regional Principle 10 conventions. These proposals and submission together signify broad based support for moving from principles to rights enshrined in national laws and practiced by government institutions and civil society ? rights that enable people to obtain environmental information held by governments and corporations, rights that enable people to engage in government decision-making on the environment and rights that enable people to hold decision-makers accountable for their decisions.

III - IFSD: Formal and Informal Initiatives on Principle 10

There are formal and informal initiatives that will improve national environmental governance and move Principle 10 to concrete enforceable rights. These are:

1. As part of the 3D Campaign, civil society coalitions and partners all over the world (currently in over 30 countries) collectively developed and made three top national environmental governance demands from each of their governments. Several Governments, including South Africa, Jamaica and Hungary have agreed in writing to implement at least one of these governance demands. These demands form a framework for action across countries and in regions. A formal mechanism to share experiences, capacity building, training etc can be built from these demands and government commitments.

2. Co-led by USA and Brazil, the Open Government Partnership (OGP) consisting of eight founding governments and civil society issued a declaration of principles on open government in September 2011 on the margins of the UNGA. Dozens of other government are expected to join the partnership in March 2012 when they meet in Rio for their second meeting. Each partner government has developed a set of time bound commitments to improve open government, including commitments on environmental governance. This specific cooperation mechanisms could allow for an environmental caucus to be developed that will look specifically at improvements in the passage of freedom of information laws and implementation efforts; discuss the use of technology to improve transparency and citizen participation as well as provide a framework for collaboration which is subject to accountability peer review mechanisms

3. The USA and some other governments are considering the establishment of an International Partnership for Environmental Governance (I-PEG) either as a caucus within OGP or as a free standing partnership. The purpose of this partnership will be to improve national environmental governance by improving the clarity and effectiveness of environmental laws, improving the coordination and efficiency, of institutions responsible for promoting sustainable development, increasing transparency, citizen engagement and accountability of sustainable development decision-making and reducing corruption.

4. It is likely that Eye on the Earth Summit (Abu Dhabi Dec-2011 multi-stakeholder meeting) will affirm the need for full implementation of Principle 10 and launch a special initiative to implement Principle 10 globally. The initiative will include sharing of good practices, capacity building, monitoring and assessment of Principle 10 implementation.

IV - The link between the Green Economy and IFSD

If a green economy is to be a tool for achieving sustainable development and poverty eradication we need to highlight the importance of improving national environmental governance. Achieving sustainable development will require making policy decisions that involve balancing competing interests and reaching environmentally sustainable, economically sound and socially equitable outcomes. If decision making processes are secret, non-participatory and unaccountable, a few selected and powerful interests will influence policy and developmental decisions. Principle 10 and good national environmental governance which recognizes coordination, efficiency, transparency, engagement and accountability becomes a foundational and enabling requirement for the success of a green economy and sustainable development.

SUSTAINABLE DEVELOPMENT GOALS

For the green economy in the context of sustainable development and poverty eradication to succeed, we believe that sustainable development goals (SDGs) that eventually become part of the Millennium Development Goals in a post 2015 world would help set global targets that nations can strive for. But these goals cannot be confined to thematic goals covering water, oceans, pollutants etc. SDGs must include clear good governance goals as well. If such goals cannot be negotiated in time for the Rio+20 meeting, at the very least, a process should be established to negotiate such goals in the lead up to the review of the Millennium Development Goals in 2015. This will ensure that we have real targets that the international community and national governments can work towards. Governance goals are currently not reflected in the MDG framework. In this regard we recommend that the Rio+20 examine carefully the proposals submitted by Colombia and the goals enunciated in the Bonn Declaration from the 64th UN-DPI Conference of over 1200 civil society organisations. We propose the following four good governance SDGs be included in the Rio+20 outcomes or a process for their negotiation be put in place at Rio+20:

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ACCESS TO INFORMATION

By 2022, governments will enact and implement Freedom of Information laws giving people the right to obtain accurate and truthful information held by their government, especially on the environment. Governments will actively make available to all stakeholders useful, accurate and truthful well publicized data and information in appropriate formats and languages, including on the internet. These laws should include whistleblower protection and should extend to information disclosure by corporations.

PUBLIC PARTICIPATION

By 2022, governments need to ensure that voluntarism and citizen engagement are incorporated in all global, national and local action plans for implementation of sustainable development and human well-being, to commit to the creation of an enabling environment for citizen engagement and voluntary action, and will include mandatory public participation in

(a) major development project approvals and environmental impact assessment procedures,

(b) drafting of national level sustainable development policies, laws and regulations and

(c) administrative decisions such as pollution permitting.

ACCESS TO REDRESS AND REMEDY

By 2022, governments will adopt and implement laws ensuring effective access to judicial and administrative proceedings concerning sustainable development, including redress and remedy. In particular, they will ensure that the costs of such proceedings are reasonable and affordable to affected people and that access to such proceedings is available through expansion of legal 616 standing and other means to interested people and organizations.

ENVIRONMENTAL JUSTICE FOR THE POOR AND MARGINALIZED By 2022, governments will adopt laws that obligate government agencies to take appropriate measures to provide information and engage affected people living in poverty, women and other disadvantaged groups when making sustainable development decisions.

Annex 1

Worldwide Open Public Petition to UNDESA and the Rio+20 Bureau

WHAT WE WANT FROM RIO+20

Sustainable Development Governance Goals & Commitments

For the reasons set out in this open public petition, we the undersigned individuals and organizations support the three demands (3D) campaign facilitated by The Access Initiative and joined by scores of civil society organizations from around the world and request UNDESA and the Rio+20 Bureau to include the following five sustainable development governance goals and commitments in the compilation document and zero draft of the Rio+20 outcome documents: Sustainable Development Governance Goals & Commitments

1. A clear mandate to regional UN Economic Commissions and UNEP regional offices and a request to other regional bodies to negotiate Regional (or sub-regional) Conventions on Principle 10 by 2022: Many countries have regulations requiring access to information, participation and justice in major areas of environmental concern ? the substantive rights enshrined in Principle 10 of the Rio Declaration (1992). Yet much of the time, these laws remain unenforced and accountability mechanisms are weak. Civil society organizations and citizens in many countries feel that an international mechanism to mutually raise one another to a higher level of performance would improve access at the national level. Civil society in six Latin American countries (Bolivia, Costa Rica, Ecuador, El Salvador, Guatemala, Mexico) called for their governments to begin the process of negotiating a regional convention for Principle 10, something with a similar form and function to the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation, and Access to Justice in Environmental Matters (The Aarhus Convention). Similar calls have also come for the development of a regional convention in Southeast Asia. UN ECLAC in a recent report has listed such a convention as an important step to improving the implementation of Principle 10 of the Rio declaration.

2. A commitment by governments to enact broad and comprehensive legal reforms for access to information, public participation and access to justice in environmental matters by 2022: As part of these reforms, government commitment to adopt laws obliging agencies to take appropriate measures to provide information and engage affected people living in poverty when making sustainable development decisions. In some countries, civil society and citizens feel that all three access rights could be addressed in an overarching legal reform, rather than in piecemeal legislation, as has been the practice in many countries. For example in Thailand there are calls for the updating of the legal code to more accurately reflect its ?access-friendly? 2007 Constitution. In Costa Rica there are calls for a wholesale ?access law? which would close many of the gaps and loopholes in prior environmental laws. Finally, in Indonesia there are calls by civil society for complete implementation of the Environmental Protection and Management Act No. 32 of 2009 which holds the promise of greatly improving transparency, participation, and accountability but remains, in large part, a paper tiger.

3. A commitment by governments and the UN to Improve Environmental Assessment Practice by 2022: A common request by civil society and citizens in many countries is the expansion and improvement of access to information and public participation in environmental assessment. This is often seen as one of the most important means of improving decision-making and environmental quality of new development. However, in many countries, this development is carried out in secret or important decisions are hidden from the public.

4. A recognition of the importance of environmental databases and the commitment to establish by 2022, international standards and protocols for collection, analysis, dissemination and uptake of environmental information: In a number of countries, regulations call for the regular publication of environmental data and related information. However, many of these regulations have gone unim¬plemented with tremendous gaps in data collection, analysis, and publication. Civil society and citizens have called for central national databases of environmental information in Benin, Brazil, Chile, South Africa, and Trinidad and Tobago. The Eye on the Earth Conference December 2011 will address this issue.

5. A commitment by governments to establish low or no cost, efficient and effective environmental dispute resolution citizen enforcement mechanisms (e.g. Environmental Courts and citizen suit): Environmental courts and tribunals provide what can be a cheaper means of dispute resolution than regular courts. Specialized attention to environmental laws and increased scientific expertise can mean that victims of pollution may be able to have their environmental complaints addressed in a faster, cheaper, more predictable manner. In many countries, law enforcement officers are spread thin, with little ability to prioritize among serious environmental issues. For that reason, a number of progressive governments have created citizen suit provisions allowing for citizen enforcement of laws. Citizen enforcement supplements government enforcement of environmental laws. Annex 1: Petition Signatory List http://www.change.org/petitions/what-we-want-from-rio20

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