Introduction to Rio + 20: A Reflection on Progress Since the First Earth Summit and the Opportunities that Lie Ahead

Author:Roger Martella - Kim Smaczniak
Position:Partner in the Environmental Practice Group at Sidley Austin LLP - Attorney at the United States Department of Justice, Environmental and Natural Resources Division where she works to enforce and defend claims that arise under federal environmental law on behalf of the United States
Pages:4-7
 
CONTENT
4SUSTAINABLE DEVELOPMENT LAW & POLICY
INTRODUCTION TO RIO + 20: A REFLECTION ON
PROGRESS SINCE THE FIRST EARTH SUMMIT AND
THE OPPORTUNITIES THAT LIE AHEAD
by Roger Martella and Kim Smaczniak*
CONVENING IN THE SHADOW OF THE EARTH SUMMIT
The 1992 UN Conference on Environment and Develop-
ment or, as it is better known, the “Rio Earth Summit,
has become emblematic of the opportunities that can
be realized when the international community comes together
to discuss seriously the goal of advancing sustainable develop-
ment. The Earth Summit was the largest gathering yet to address
the future of the planet, with representatives of 172 countries,
including 108 heads of state and government, coming together
over 12 days of negotiations.1 Some 2,400 NGOs were present
at a parallel NGO Forum, and thousands of reporters covered the
event on site.2 Following the long years of tepid international
relations during the Cold War, the Rio Earth Summit marked a
change in global affairs, offering the potential for the world to
come together in support of a shared vision for the environment
of the planet.
The then-Secretariat General of the Rio Earth Summit,
Maurice Strong, reflecting on the unparalleled legacy of the
Summit even 20 years later, concluded that the negotiators
“got agreement beyond what anybody thought was possible.3
The Summit delivered a series of legal instruments that, even
though unbinding, articulated a common set of principles
and a path forward relevant to this day: Agenda 21, the Rio
Declaration on Environment and Development, the Statement
of Forest Principles, the United Nations Framework Convention
on Climate Change and the United Nations Convention on
Biological Diversity. Agenda 21 proclaimed a particularly noble
purpose, one intended to inspire generations. As “humanity
stands at a defining moment of history,” Agenda 21 sought to
address “the pressing problems of today and … to [prepare] the
world for the challenges of the next century.”4
Now, twenty years later, participants and observers to the
second United Nations Conference on Sustainable Development
in Rio de Janeiro or “Rio+20” have acknowledged the large
shoes to fill. The enormity of the first event, and the lofty set of
aspirations it established for the world community, lends itself to
comparison and stock-taking. How far have we come in address-
ing those pressing problems identified originally in Rio, and are
we prepared for the challenges of the remainder of the century?
While the specifics may vary across perspectives and metrics,
the larger answer is resoundingly: Not enough. Yet, in today’s
economic and political climate, the expectations that Rio +20
will change the status quo and accelerate the pace of progress
unfortunately appear moderate at best.5
Rio +20, prefaced by a series of meetings and preparatory
committee negotiations, commenced June 20 with a three-day
Conference in Rio. For this Rio + 20 summit, two themes were
the focus: “a green economy in the context of sustainable devel-
opment and poverty eradication” and “institutional framework
for sustainable development.At the core of framing the discus-
sions in advance of the Summit, the so-called “Zero Draft” was
developed as a 19-page discussion document to guide negotiators
toward a final outcome document. The Zero Draft, which largely
tracks the two core themes, reaffirms principles established in
the Earth Summit and calls for renewed commitment to a num-
ber of legal instruments adopted since then. First, in support of
a green economy, the Zero Draft calls for creation of a platform
to share knowledge related to green economic policy and imple-
mentation strategies, and greater support to developing nations,
including increased funding, support for green technology
transfer, and capacity building. Second, the Zero Draft presents
alternative proposals to address the framework for global gov-
ernance, including a placeholder allowing negotiatiors to either
affirm support for UN Environmental Programme (UNEP) or to
establish a new UN agency based on UNEP option to replace
the Commission on Sustainable Development with a Sustainable
Development Council. Furthermore, beyond the Zero Draft,
another key submission identified as a potential outcome of
Rio +20 is a commitment to the non-regression principle.6 This
principle rejects backsliding from previous international com-
mitments and requires governments to commit to ratchet up, not
down, environmental protection. 7
TAKING STOCK: WHERE DO THE OUTCOMES
OF THE EARTH SUMMIT STAND TODAY?
Addressing expectations for the recent Rio event and its
own legacy entails looking back at its predecessor. If the Earth
Summit is considered a success, can those successes be repeated
in the aftermath of Rio +20? Understanding what we have gained
*Roger Martella is a partner in the Environmental Practice Group at Sidley Aus-
tin LLP. He recently rejoined the firm after serving as the General Counsel of the
United States Environmental Protection Agency, concluding 10 years of litigat-
ing and handling complex environmental and natural resource matters at the
Department of Justice and EPA.
Kim Smaczniak is an Attorney at the United States Department of Justice, Envi-
ronmental and Natural Resources Division where she works to enforce and
defend claims that arise under federal environmental law on behalf of the United
States. She also serves as the Vice-Chair of the American Bar Association Sec-
tion of International Law’s International Environmental Law Committee.
5SPRING 2012
from the first Rio Earth Summit, how far we have come and still
have to go, sets the stage for Rio+20.
At the outset, there can probably be little debate that the UN
Framework Convention on Climate Change (UNFCCC) stands
as one of the defining outcomes of the Earth Summit, with an
objective to stabilize greenhouse gases at a level that would
prevent dangerous interference with the climate system. Despite
widespread ratification of the UNFCCC and recognition of the
credibility of the recommendations, political negotiations since
1992 have failed to obtain meaningful global commitments to
greenhouse gas reductions. While an increasing amount of
nations, states, provinces, and municipalities cite the need for
compelling and prompt action,8 greenhouse gas emissions are
higher today than ever before and are rising globally.9 The Kyoto
Protocol, which set forth the first phase of binding commitments
toward emission reductions in industrialized nations who are
parties to the agreement, expired in 2012. The most recent cli-
mate change talks at Durban in 2011 resulted in an agreement to
adopt another binding agreement by no later than 2015 — essen-
tially kicking the can of tough political decisionmaking down
the road.
Another well known legacy of the Earth Summit, the UN
Convention on Biological Diversity (CBD), has similarly
obtained widespread ratification, at the same time that worldwide
markers of progress toward the conservation and sustainable use
of biodiversity have lagged dismally. The Millenium Ecosystem
Assessment, a four year study conducted across 90 countries,
concluded that 60% of the services provided by ecosystems have
been degraded or are being used unsustainably and that, for a
range of taxa, the majority of species are currently in decline.10
In the same vein, the UN 2010 Global Biodiversity Outlook
boded ominously that “[c]urrent trends are bringing us closer
to a number of potential tipping points that would catastrophi-
cally reduce the capacity of ecosystems to provide [] essential
services.”11 CBD is another outcome of the Earth Summit where
the stage was effectively set but whose objectives remain largely
unrealized.
Whereas the measures of progress toward certain goals set
in the Earth Summit are disappointing or even alarming, Agenda
21 and the Rio Declaration are sound victories with more than
symbolic importance. Since the Earth Summit, international
attention to sustainable development and sound environmental
governance has persisted. In turn, the language of sustainable
development has gained greater currency in the two decades since
the Earth Summit. Meyerstein’s article, “The New Protectors of
Rio: Global Finance and the Sustainable Development Agenda,”
speaks of a phenomenon that one could not conceive of without
the successes of the Earth Summit and international commitment
to the principles of sustainable development — the evolution of
the “Equator Principles.” Among other strong indicators, the
willingness of inherently pragmatic large project financiers to
take into account the borrower’s ability to comply with relevant
social and environmental policies is a mark of a larger cultural
shift toward the integration of the concepts of sustainable devel-
opment into society.12
But beyond the mere awareness that Agenda 21 and the Rio
Declaration spurred for sustainable development worldwide, this
progeny also stimulated direct funding for projects in support
of sustainable development. International organizations in par-
ticular have used such instruments to guide and prioritize their
funding portfolios. To showcase a single example, in 1997 the
World Bank published a paper tracking its grants and loans in
furtherance of Rio’s objectives during the five-year period fol-
lowing the Earth Summit.13 The study documented the steady
increase in projects targeting the improvement of environmental
management, the rise in the funding available for such projects
by $8 billion, or 8% of its lending over that time period, and
ways the Bank was working to mainstream sustainable develop-
ment into other development programs.
Further substantiating the sustained international atten-
tion to the goals articulated at the Earth Summit, the number
of multilateral environmental agreements has exploded over the
years, now totaling some 500 (or more) different legally binding
documents.14
Yet, despite this encouraging trend that has enabled
environmental agreements where the traditional treaty process
would have stood still, the spike of international commitments,
however, has not been matched by either national implementing
laws or capacity for enforcement. A well-recognized “imple-
mentation gap” exists between goals recognized at the interna-
tional level and the practical ability to attain those goals on the
ground.15 Even with dedicated funds and attention to overcom-
ing the implementation gap, there can be long delays between
the enactment of national legislation, its implementation, and the
ultimate impact on environmental and development outcomes in
the country.
This fundamental shortcoming has been well-documented
in the context of Environmental Impact Assessment (EIA)
legislation. The Rio Declaration incorporated as Principle 17
a requirement to undertake an EIA for national activities that
are likely to have a significant adverse impact on the environ-
ment. Throughout the 1990s, there was a proliferation of
national legislation implementing Principle 17. By 1998, more
than 100 countries had incorporated some form of EIA legis-
lation.16 A number of international organizations, including
the Organization for Economic Cooperation and Development
(OECD), the World Bank, and UNEP, implemented measures to
promote the establishment of EIA laws and provide guidance or
training on EIA implementation.17 A 2003 study diving deeper
into implementation, however, found that most EIA systems
in developing countries failed to meet a series of performance
criteria.18 More recent country-specific studies have found that,
despite the sometimes decades since the enactment of the EIA
law, the effectiveness of EIAs remains uneven and lacking in
key areas, including, for example, public participation, techni-
cal expertise, and regular enforcement.19 The gradual nature of
countries’ progress in the implementation of EIA laws is the
same story that could be told across a wide range of international
environmental commitments.
The upshot is not that the Earth Summit failed to have
impact, but that the force of that impact, and subsequent efforts,
6SUSTAINABLE DEVELOPMENT LAW & POLICY
has not been sufficient to reach a change in behavior at a suf-
ficiently global scale. The pertinent question for Rio+20 thus
becomes how to recognize and account for the achievement
gap to streamline implementation in the future, in addition to
what role this particular conference can play in reinforcing com-
mitment or amplifying the effectiveness of ongoing efforts to
advance sustainable development.
THE WORLD AT RIO + 20
Even as negotiators look back to the lessons of the Earth
Summit, they must also assess the realities of the world in
2012. The world stage is set differently now than in 1992. Most
prominently, recent financial and economic crises loom large in
the minds of political leaders and their constituents. For many
nations that classically take leadership in international environ-
mental negotiations, the political climate pulls in the direction
of scaling back international support, rather than increasing
financial or other commitments of resources toward sustain-
able development. New players have emerged as well, further
changing the nature of international negotiations. Developing
economies are burgeoning with great success stories of declin-
ing poverty levels. But they also are contributing at growing
rates to the world’s environmental issues, in a manner that was
likely unforeseeable even as recently as 1992. China, Brazil, and
India have each attained prominence of their own, pressing for-
ward with agendas and environmental interests that are distinct
from that of other developing countries. Kelley’s ar ticle, “China
in Africa: Curing the Resource Curse with Infrastructure and
Modernization,” highlights two features of the changing role of
these countries through its focus on China’s investment activities
in Africa: the increasing importance of their economic activities
as drivers of environmental outcomes, and their evolving politi-
cal interests as a result of an increasing interconnectedness with
the global economy.
Developments in the technical and scientific world also have
been rapid and dramatic. For those with access to the internet,
information flows freely. For the many who remain without such
access, the expansion of mobile phone networks has similarly
opened the gates of communication. Samantar discusses the
extensive access to mobile phones and the surprising number
of applications for this technology — ranging from gathering
information for rural farmers about crops to offering training for
nurses — in three sub-saharan countries in his article, “Shining
Sun and Blissful Wind: Access to ICT Solutions in Rural
Sub-Saharan Africa Through Access to Renewable Sources.
Changes in access to information are as big of a game-changer
as developments in the political and economic climate, and we
have only begun to witness the effects of this transformation.
Our increasing capacity to communicate information goes hand-
in-hand with a steadily growing ability to monitor the state of
the world, including environmental impacts. Technology, such as
satellites, and research, including extensive collaborative studies
like the Intergovernmental Panel on Climate Change, have con-
tinued to advance our understanding of human activity across
the globe and its impacts.20
Another reality of the 2012 world is that an extensive array
of institutional machinery to address sustainable development
has already been built, unlike 1992 when such organizations
were still newly emergent. With the proliferation of MEAs,
as well as other regional or bilateral agreements such as trade
agreements containing environmental aspects, there has been
a commensurate rise in the number of institutions engaged in
environmental governance. MEAs are each typically supported
by a different Secretariat, and trade agreements now frequently
incorporate environmental cooperative mechanisms. At the same
time, international organizations and national development
agencies have increasingly become important actors in interna-
tional environmental governance.21
While the global environmental infrastructure is thus more
thoroughly developed than in 1992, there are perhaps unsurpris-
ingly a host of common criticisms of global environmental gov-
ernance, including concerns that (i) the system is too fragmented
(for example, each MEA Secretariat focuses too narrowly on
its objectives rather than synergies among sustainable devel-
opment objectives); (ii) there is a lack of coordination among
the different actors (it is common enough for one organization
not to be aware of similar activities of others in the geographic
same area); (iii) there is insufficient focus on implementation
of commitments rather than negotiation of new ones; (iv) its
resources are used inefficiently (with large overhead costs for
each institutional entity and a tendency for certain activities
to be overfunded while others are systematically neglected);
(iv) there is insufficient inclusion of or authoritative guidance
provided to non-environmental organizations, such as trade,
development, and investment organizations; and (v) it fails to
adequately engage with non-state actors, including NGOs and
business.22 Thus, while negotiators in 2012 are not starting with
a clean slate in developing an infrastructure to implement their
goals, what they do inherit includes a confusing and often unco-
ordinated mix of actors that must be accounted for.
THE OPPORTUNITIES FOR RIO +20?
As the world emerges from the June Rio + 20 summit, the
fundamental question will be whether Rio +20 becomes the
watershed event that its predecessor, the Earth Summit, was
before. Most commentators preceding the event have been
pessimistic on the point.23 Yet, perhaps a better question, in light
of the decades of evolution in environmental governance norms
and institutions that must be considered, is whether an Earth
Summit of the magnitude of Rio + 20 is the only avenue toward
advancing sustainable development goals. The Earth Summit
generated a series of universal aspirational, long-term principles
and goals that remain significant to the environmental and devel-
opmental challenges of 2012. While there is certainly value in
bringing world leaders together to reaffirm and focus attention
on those goals again, the heaviest lifting to improve sustainable
development outcomes needs to happen at the ground level of
implementation. Such decisions and commitment of resources
are much more likely to be made in national, bilateral, or
regional contexts. Rio +20 should be evaluated, then, for how
7SPRING 2012
well it brings increased attention, resources, or coordination
toward the implementation of sound environmental governance
measures first established in the Earth Summit but which have
evolved since then.
With such a lens, there are a number of hopeful signs for
productive outcomes from Rio +20 in the near and longer term.
It should come as no surprise that much of the event involved
negotiations over text of debatable value. As one veteran of UN
development negotiations put it, “the shelf life of a typical UN
declaration or report rarely lasts beyond a few days.24 However,
the time spent wrangling over the definition of a “green econ-
omy” (does it supersede the concept of sustainable development,
is it a means to the end of sustainable development, it is flexible
enough to accommodate for the growth needs of developing
countries, and so on) should be weighed against the knowledge
sharing and new initiatives related to the green economy that are
emerging from Rio +20. At a basic level, the Rio +20 website
already includes a section highlighting successful green econ-
omy initiatives, ranging from the global to the local, and many
country submissions and preparatory sessions have showcased
other such successes.25 Such exchange is likely to continue to
amplify post-Rio.
Indeed, one of the outcomes identified in the Zero Document
is the establishment of a more comprehensive information
sharing platform, to provide countries with a toolbox of best
practices, methodologies, and policies for a green economy. As
they did following the Earth Summit, other international orga-
nizations, NGOs, and national development organizations will
likely continue to coalesce around objectives identified at Rio
+20 and initiate their own programs. The World Bank already
has indicated it views the green economy theme of Rio +20 as
a platform to promote adoption of “natural capital accounting,”
alternative measures of the economy beside GDP that take into
account the value of ecosystem services.26 Rio + 20 is likely to
inspire other such spin-off efforts.
The possibility remains that a series of “Sustainable
Development Goals,” mirrored off the success of the Millennium
Development Goals (“MDGs”), may yet emerge from nego-
tiations. The MDGs set forth a series of eight goals and defined
metrics and timeframes by which to achieve certain targets in
furtherance of each goal. (E.g., Target 1a: Reduce by half the
proportion of people living on less than a dollar a day) As such,
the MDGs represent an unprecedented consensus about mea-
sures to reduce poverty.27 While there is dispute as to whether the
benefits of hard, measurable targets are sufficient to overcome
their limitations, there is at least anecdotal evidence that the
identification and widespread adoption of a few, targeted metrics
have improved the concentration and coordination of develop-
ment funds.28 This, in turn, appears to have led to documented
improvements in those metrics for at least some of the MDGs.
Whether negotiators are up to the challenging task of distilling
the broad concept of sustainable development into a small num-
ber of concrete and time delimited goals is uncertain.29
Rio + 20 is also promising in its continued engagement of
stakeholders beyond member nations. The conference has an
established web presence, including a Facebook page, Twitter
account, and You Tube footage, and has successfully sparked
engagement of youth at cities across the globe. Organizers have
provided space for civil society to contribute to discussions at
numerous side-events at Rio. The inclusion of business as part-
ners in advancing sustainable development is also a prominent
feature of the conference. A number of preparatory sessions
and side-events focus on the perspective of industry, and there
is a particular day set aside for discussion between policymak-
ers and business leaders. The broader the base of participants,
the greater the possibility that such stakeholders will generate
greater attention, and accordingly resources, to implementation
at the local and national levels.
Less heartening is the lack of progress to date toward any
particular option for the reform of the institutional framework
for sustainable development. While it remains feasible that
some simple “fix” is adopted, such as expanding UNEP’s man-
date or funding or some combination of both, it seems unlikely
that more ambitious and comprehensive reforms necessary to
address the weaknesses in global environmental governance will
emerge in the wake of Rio + 20.30 This is an area where lead-
ers should remain resolute even after the conference to open the
path forward to greater reform and avoid a lost opportunity, par-
ticularly as changes in such institutions are unlikely to occur out-
side a multilateral forum. So long as environmental governance
remains fragmented and insufficiently coordinated, the efforts of
the diverse actors in this space are likely to remain diffuse.
Whatever the ultimate legacy of Rio +20, however, the first
Rio has already taught us that advancing sustainable development
is an extended, multi-pronged effort. No single international
conference can provide sufficient momentum alone to reach
the large scale changes in human behavior that are necessary to
improve global developmental and environmental outcomes. Rio
+20 will be judged, finally, not by its immediate splash, but as
a part of that greater sustained effort to bring about change.
Endnotes: Introduction to Rio + 20: A Reflection on Progress
Since the First Earth Summit and the Opportunities that Lie Ahead
1 U.N. Conference on Environment and Development (1992), UN.ORG,
http://www.un.org/geninfo/bp/enviro.html .
2 ‘Earth Summit’ Held in Brazil; Climate, Species Pacts Signed: Targets
Lacking on Aid, Controls; Other Developments, FACTS ON FILE WORLD NEWS
DIGEST, 18 June 1992, http://www.2facts.com/article/1992050592.
3 Jenny Purt, Reflecting on Rio: looking back to 1992, THE GUARDIAN
(Mar. 6, 2012, 8.02 AM) http://www.guardian.co.uk/sustainable-business/
video-rio-1992-reflections-sustainable-development.
continued on page 50