Update

Rio+20: Incorporating Principle 10 and the right to information

[Letter of submission to UNCSD Secretariat] 

The rights of access to information, public participation, and access to justice are essential to sustainable development. The 1992 Rio Declaration fostered these rights in Principle 10. Now renewed commitment is needed for the full recognition of the rights in all countries. The Rio 2012 Summit provides an opportunity for governments to transform Principle 10 from aspirational goals into actionable rights. In particular, the Outcome Document should include strong commitments from all nations to improve their legal structures on national environmental governance based on Principle 10 and the Bali Guidelines, agree to the development of an international instrument giving legal force to Principle 10 based on the Aarhus Convention, and ensure that the principles are incorporated into all UN bodies decision-making processes.

The Interest of ARTICLE 19

ARTICLE 19 is an independent human rights organisation that works around the world to protect and promote the right to freedom of expression and information. It takes its name from Article 19 of the Universal Declaration of Human Rights, which guarantees freedom of expression and freedom of information.

ARTICLE 19 has worked on numerous environment and development-related human rights projects around the world, managed through our offices in London, Mexico, Brazil, Senegal, Kenya, and Bangladesh. In 2010, ARTICLE 19 brought together civil society groups, government officials and experts to develop the London Declaration for Transparency, Free Flow of Information and Development, which sets a clear agenda for transparency in the promotion of development (see appendix 1). In 2011, ARTICLE 19 worked with groups across Africa to set a development-focused agenda on access for African states and assisted in the development of the African Platform on Access to Information (see appendix 2). For the upcoming Rio 2012 Summit, ARTICLE 19 is working closely with other civil society groups around the world, including development and environmental groups, and has recently released a report with The Access Initiative (TAI) on the progress since Rio 1992 and needed outcomes to make Rio 2012 meaningful (see appendix 3).

The Importance of Access to Information and Rio 1992

We believe that one of the largest problems standing in the way of sustainable development and a clean environment is the lack at both the national and international level of operational and effective rights of access to information, public participation and access to justice. These access rights facilitate more transparent, inclusive, and accountable decision-making in matters affecting environment and development. Access to information empowers and motivates people to participate in an informed and meaningful manner. Participatory decision-making enhances the ability of governments to respond to public concerns and demands, to build consensus, and to improve acceptance of and compliance with environmental decisions because citizens feel ownership over these decisions. Access to justice encourages the public’s ability to enforce their right to participate, to be informed, and to hold regulators and polluters accountable for environmental harm.

Principle 10 of the 1992 Rio Declaration recognised the crucial importance of these rights and proposed that access to information, public participation and access to justice be adopted into law in all nations. We believe that the outcome of the Rio 2012 Summit must include an affirmation of these fundamental access rights and that substantial efforts must be made to establish them and make them enforceable in all countries.

Need for Full implementation of Principle 10

These demands are necessary because Principle 10 has not yet been fully embraced in many nations. There has been substantial improvements in many national legal frameworks, particularly in areas of access to information and environmental impact assessments. A substantial number of countries have adopted new legal frameworks on access rights, especially relating to access to information. However, the adoption of laws has not been uniform. There remains much needed to be done to ensure that these rights are truly available to empower societies and citizens.

This is particularly noticeable in the area of access to information. Over 90 countries have now adopted framework laws or regulations for access to information, including in the past few years China, Indonesia, Nigeria, Liberia, Mongolia and Brazil. Many countries have also adopted specific environmental information access statutes or included access provisions in general environmental protection laws. Many nations have also created Pollutant Release and Transfer Registers (PRTRs), which require governments to collect information on pollution releases and make that information publicly available through databases. These PRTRs have been shown to be one of the most effective means of making pollutant related information available to the public while simultaneously reducing pollution. The 1992 Rio Declaration and Agenda 21 were instrumental in promoting the adoption of these laws.

However, there are many countries who have not adopted these laws and there are significant disparities between regions. While most of the nations of Europe, the Americas and a significant portion of Asia have the laws in place, most Middle Eastern, African, Pacific and Caribbean countries do not yet have the right incorporated into national law. Thus, much work remains to ensure that the citizens of the other 100 nations without adequate legal rights are empowered to ensure that they are informed so they may participate and ensure development and a clean environmental is enjoyed by all in an equitable and fair manner.

Furthermore, practice lags behind laws many countries. Research by ARTICLE 19 and other human rights and environmental organisations across the world demonstrates that many people are still being denied access to essential information about climate change and the environment 20 years after Principle 10 was signed by the world’s leaders. Some of the problems include a lack of detailed administrative rules and operational policies, inadequate public capacity to use the laws, and insufficient official capacity to implement laws. There are also problems with governments failing to proactively release environmental information, including basic information on air quality and drinking water quality. Emergencies also raise problems. As the recent disasters in Japan and Burma revealed, the public is often not informed of serious hazards.

International institutions have also not fully adopted Principle 10 into their practices. The international bodies of the UN, including UNEP and UNDP, do not have adequate mechanisms for access to information that obligate them to provide information and have working mechanisms for appeals of denials for access. Important discussions are held and decisions are made at the World Trade Organisation and other bodies without adequate public participation.

There has been somewhat more progress with the global financial institutions. The World Bank’s recent revision of their Policy on Access to Information is a significant improvement but it remains to be seen it if fully provide information that communities need. The other regional development banks are also revising their public information policies but so far, the revisions have been mostly unsatisfactory. The newly revised Public Information Policy of the European Bank of Reconstruction and Development mentions confidentiality more than transparency. Thus any discussion of institutional reform should firmly establish that the international bodies are accountable and transparent also.

The role of the international bodies in promoting Principle 10 has also been mixed. The UNECE Convention on Access to Information, Public Participation and Access to Justice (The Aarhus Convention) has been a notable success as the first legally binding international treaty on access rights. The Convention places ratifying nations under a series of important obligations including the collection of information held by private bodies and requiring public bodies to affirmatively make information available to the public, respond to requests, and provide strong rights of appeal. It also established rules for public participation, appeals, and access to justice measures. It has now been ratified by 44 countries from Iceland to Turkmenistan. The 2003 EU Directive which firmly implements the Convention into EU law should also be noted. We believe that this is a model that should be widely followed. Unfortunately, this model has not been widely adopted elsewhere. No other UN regional body has adopted or even begin negotiations on a similar instrument and non-UNECE countries have joined the Convention.

The UNEP Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters (“the Bali Guidelines”) on how governments should develop national laws in relation to Principle 10 are also a welcome development, even if it was nearly 20 years after Rio 2012. Unfortunately, the Guidelines are only voluntary, are largely unknown, and while there are commitments by UNEP and other bodies to provide assistance and training, the efforts appear currently to be on a very small scale.

Growing Consensus on Principle 10

There is a growing agreement both in civil society and in governments that enhancing Principle 10 rights is an essential element in making further progress on sustainable development and environmental protection. The Declaration of the 64th Annual UN DPI/NGO Conference, representing the consensus of over 1,400 civil society representatives included numerous references and demands relating to Principle 10 and many individual and joint CSO submissions make similar demands. There is also significant government support. The Economic Commission for Latin America and the Caribbean (ECLAC) submission states that “Rio+20 could produce a mandate to negotiate international agreements (at the global or regional level) to promote the enactment of legislation pertaining to Principle 10 of the Rio Declaration and its implementation, to be possibly, but not necessarily, based on the Aarhus Convention.” The European Committee of the Regions is calling for “promotion of environmental democracy globally” through extension of Aarhus, regional conventions or starting negotiations on a new global convention. Similarly, the European Parliament resolution of 29 September 2011 on developing a common EU position on Rio+20 calls for “ensuring the effective global implementation of Rio Principle 10” and creating a new global convention or extension of the Aarhus Convention. Based on our discussions with other officials, we expect many government submissions to mirror these recommendations.

Recommendations 

We believe that there needs to be a significant effort to ensure that Principle 10 is reaffirmed and extended in the Rio 2012 progress. We urge governments and negotiators to include these three major areas in the Outcome Document.

• All nations should make tangible and identifiable commitments for adopting Principle 10 into national law based on the Bali Guidelines by 2017. This includes laws on access to information, public participation, and mechanisms to ensure that access to justice to enforce these rights are implemented. These should be included in Sustainable Development Goals. Additional assistance should be provided by UNEP and other parties to assist nations into fully implementing the UNEP guidelines into national law.
• All parties should commit to begin negotiations on a new international convention on Access to Information, Public Participation and Access to Justice to be completed by 2017 based on the Bali Principles and the Aarhus Convention model. The other UN regional bodies should be encouraged to adopt in the meanwhile regional mechanisms for access to information following the model of the Aarhus Convention. The members of the Aarhus Convention should also be encouraged to open up the Convention to members outside of the UNECE.
• Any reform of the institutional framework of governance for sustainable development should including the creation of a Council on Sustainable Development, and a World Environmental Organisation or UN Environmental Organisation should also ensure that the Principle 10 rights are incorporated into their structures. This includes all other UN and regional bodies.

 

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