Moving from Principles to Rights: Rio 2012 and Access to Information, Public Participation, and Justice

Author:David Banisar - Sejal Parmar - Lalanath de Silva - Carole Excell
Position:Senior Legal Counsel for ARTICLE 19 - Senior Legal Officer for ARTICLE 19 - Director of the Access Initiative at the World Resources Institute ('WRI') - Senior Associate at WRI and works for the Access Initiative
Pages:8-14
 
CONTENT
8SUSTAINABLE DEVELOPMENT LAW & POLICY
MOVING FROM PRINCIPLES TO RIGHTS:
RIO 2012 AND ACCESS TO INFORMATION,
PUBLIC PARTICIPATION, AND JUSTICE*
by David Banisar, Sejal Parmar, Lalanath de Silva, and Carole Excell**
In the 1992 Rio Declaration on Environment and Develop-
ment (“ Rio Declaration”), the international community
recognized that sustainable development depends upon
good governance.1 Principle 10 of the Rio Declaration sets out
the fundamental elements for good environmental governance
in three “access rights”: 1) access to information, 2) public
participation, and 3) access to justice.2 This principle is based
on the experience that, where governmental decision-making
fails to include these essential tenets of access, the outcomes are
more likely to be environmentally damaging, developmentally
unsustainable, and socially unjust.3
Access rights facilitate more transparent, inclusive, and
accountable decision-making in matters affecting the environ-
ment 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 facilitates the public’s ability
to enforce their right to participate, to be informed, and to hold
regulators and polluters accountable for environmental harm.
The access rights in the Rio Declaration have been widely
recognized across the world. However, much work remains to
ensure that these rights are truly available to empower societies.
Commitments made by governments to the principles of good
governance under the Rio Declaration,4 Agenda 21,5 and the
Johannesburg Plan of Implementation6 need to be strengthened,
monitored, and reported upon. Governments that have not already
done so must establish legal rights to access to information,
public participation, and justice. Finally, all governments must
demonstrate their support for the protection of these rights. Once
access rights are established, governments and civil society need
to focus on developing the capacity to operationalize these rights
and make them meaningful for the communities they are intended
to support.7
The outcome of the United Nations Conference on
Sustainable Development (“UNCSD,” also known as the “Rio
2012 Summit” or “Rio 2012”) 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. At a minimum, national governments must commit to
the full implementation of access rights as national law, ensure
intergovernmental organizations and institutions incorporate
these rights into their own regulation and practices, and develop
international and regional mechanisms to monitor the implementa-
tion of these practices. New international instruments are necessary
to ensure that these access rights are truly available to everyone.
THE RIO 2012 PROCESS AND PRINCIPLE 10
The Rio 2012 Summit follows up on the 1992 Earth Summit.
The stated purpose of the Rio 2012 Summit is to “secure renewed
political commitment for sustainable development, assessing the
progress to date and the remaining gaps in the implementation
of the outcomes of the major summits on sustainable develop-
ment and addressing new and emerging challenges.”8 Within that
purpose, there are two specific themes: 1) a green economy in
the context of sustainable development and poverty eradication,
and 2) the institutional framework for sustainable development.9
Although visionary, these themes have been discussed in
isolation of each other when they should be considered together.
Furthermore, current discussions lack the specificity of what
reforms are needed to achieve these objectives, who needs to
be involved in decision-making, and how the objectives will
be achieved. As UN Secretary General Ban Ki-moon notes,
the goals represented by these themes are interdependent, as
“improved institutions are crucial to favourable social outcomes
of green economy policies.”10 He calls upon governments to do
more to “build on progress made to promote transparency and
accountability through access to information and stakeholder
involvement in decision-making.11 A fruitful approach would be
to consider both themes in conjunction with the larger objective
of securing political commitments for sustainable development.
Finally, both agenda items need to be discussed in light of the
principles of transparency, public participation, and accountabil-
ity. Without these basic changes, the current economic paradigm
will prevail, supported by institutions and interest groups that
have benefited from restricting citizen access.
*A version of this article was originally published by ARTICLE 19 in July
2011. ARTICLE 19, the Global Campaign for Free Expression, is an interna-
tional human rights organisation focused on protecting and promoting the right
to freedom of expression and right to information. ARTICLE 19 is a registered
UK charity (No. 32741) with headquarters in London and field offices in Kenya,
Senegal, Bangladesh, Mexico, and Brazil.
**David Banisar is the Senior Legal Counsel for ARTICLE 19. Sejal Parmar is
Senior Legal Officer for ARTICLE 19. Lalanath de Silva is Director of the Access
Initiative at the World Resources Institute (“WRI”). Carole Excell is a Senior
Associate at WRI and works for the Access Initiative.
9SPRING 2012
THE GREEN ECONOMY
There has been an extensive debate around defining the
“green economy” and its scope. Some agree that, at the national
level, greening the economy will include improving fiscal policy
reform, reducing environmentally harmful subsidies, employing
new market-based instruments, and targeting public invest-
ments to “green” key sectors. However, there has been almost
no discussion on the role of citizens and on access rights as an
important facet of creating this new economic model.
We should no longer ignore the role citizens must play in
determining the success or failure of a global green economy.
Ensuring that policies meet their intended aims of economic and
environmental sustainability, as well as social equity, requires
broad support from empowered civil society actors and a well-
informed and engaged public that includes voters, consumers,
and shareholders. Disseminating information about what a green
economy specifically means for society is essential to motivat-
ing social actors’ involvement in the decision-making process.
To achieve this broad participation, governments must establish
infrastructure for access to this type of information and ensure
public participation, with the media acting as a neutral messen-
ger. Without a fundamental shift in the power of interest groups,
greening the economy will remain a game of catch up as innova-
tion and industry move ahead without regard to the social and
environmental costs.
REFORMING INSTITUTIONS AT THE
INTERNATIONAL AND NATIONAL LEVELS
Meanwhile, discussions of strengthening the institutional
framework for sustainable development have focused on interna-
tional environmental governance (“IEG”). The Nairobi-Helsinki
Outcome Document proposes a reform agenda for institutions
such as the UN Environmental Programme (“UNEP”), the UN
Commission on Sustainable Development (“UNCSD”), and
the Economic and Social Council.12 A second tier of concerns
under this theme addresses the fragmentation of Multilateral
Environmental Agreements (“MEAs”), funding mechanisms,
and Secretariats.13
Currently, there are limited and inadequate mechanisms
for access to information held by UN bodies, especially relat-
ing to trade.14 There has been more significant progress with the
World Bank and International Financial Institutions (“IFIs”).15
However, current deliberations before the UNCSD have failed
to deliver a visionary approach to the creation of a new inter-
national environmental governance system that includes mecha-
nisms for accountability.16 Within the IEG discussions there has
been insufficient emphasis on the need to make these interna-
tional institutions and governments themselves more transparent
and accountable to the citizens they are intended to serve.17
At the same time, there has also been little effort toward
reviewing and reforming national institutions. While interna-
tional institutions have critical roles in formulating and coordi-
nating policy on international environmental governance, their
reform will have little impact on those national level institutions
where citizens are still struggling to participate in decisions
affecting their environment.
The Nairobi-Helsinki Outcome Document, for example,
does not make any mention of compliance mechanisms to ensure
implementation and monitoring of Multilateral Environmental
Agreements and environment obligations by citizens.18 This is
a glaring omission. Without mechanisms to ensure a means of
government accountability, gover nments may continue to fail to
fulfill their obligations under international environmental law.
Possible mechanisms for consideration include:
      
Co-operation and Development (“OECD”) Group on
Environmental Performance (“GEP”) has developed and
implemented a process to conduct reviews of the envi-
ronmental performance of OECD member countries with
respect to both domestic policy objectives and international
commitments.19
     
North American Commission for Environmental Cooperation
has taken a multi-pronged approach to promoting
environmental enforcement and compliance.20 Central to
the agreement is a commitment by the parties to effective
enforcement of their respective environmental laws, reinforced
by two formal procedures: 1) a procedure for citizen submis-
sions asserting ineffective enforcement by a party, to which
the secretariat may respond by requesting a response from the
party and developing a factual record, and 2) a procedure for
claims by a party that another party exhibits a persistent pattern
of failure to effectively enforce its environmental law.
      
states are considering a procedure that would give private
investors a right to appeal decisions by the Clean
Development Mechanism that go against their interest, and
under the World Bank Inspection Panel affected citizens
can trigger inspections of alleged failures of the Bank to
follow its own policies.21 Finally, under the WTO dispute
settlement process, and under several bilateral investment
agreements, civil society organisations have been allowed
to submit amicus curiae briefs to influence the outcome of
decisions.22
In his background paper for Ministerial consultations
at the 26th session of the Global Ministerial Environmental
Forum, Executive Director of UNEP Achim Steiner noted that
to deal with the accountability challenge, it would be neces-
sary to make review a key function of the Global Ministerial
Environment Forum.23 He also emphasized the implementation
of independent third-party reviews and performance monitor-
ing, the creation of incentives for performance and early action,
and the establishment of a global version of the Convention on
Access to Information, Public Participation in Decision-making
and Access to Justice in Environmental Matters.24 Thus, IEG
discussions need to move away from the current negotiations
and refocus on areas that can engender greater transparency and
accountability, acknowledging achievements and compliance
10 SUSTAINABLE DEVELOPMENT LAW & POLICY
with international commitments, and also acknowledging where
capacity and political will have been lacking.
PROGRESS TO DATE ON PRINCIPLE 10
The 1992 Rio Declaration has seen mixed success on the
global level in the area of access rights.25 Unlike many other
areas in the Declaration, no global legal instrument — such as a
treaty or convention — on access rights in the environment has
been developed. It is only recently, mostly in the context of the
Rio 2012 process, that this has even been discussed.26
UN bodies have also been slow in addressing the issue. In
2010, after nearly twenty years, the UNEP Governing Council
finally adopted guidelines (“the Bali Guidelines”) on how govern-
ments should develop national laws in relation to Principle 10.27
The guidelines are intended to assist national governments by
“promoting the effective implementation of their commitments
to Principle 10 of the 1992 Rio Declaration on Environment and
Development within the framework of their national legislation
and processes.”28 However, the guidelines 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.
The efforts of the UN Economic Commission for Europe
(“UNECE”) have been more successful. The UNECE has
adopted two ground-breaking treaties based on the Declaration.29
Of primary interest to this paper, the Declaration was the starting
point for development of the first legally binding international
treaty on access rights — the 1998 Convention on Access to
Information, Public Participation in Decision-Making and
Access to Justice in Environmental Matters (commonly known
as the “Aarhus Convention”). The Aarhus Convention places
ratifying nations under a series of important obligations includ-
ing collecting 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.30
It also established rules for public
participation, appeals, and access to
justice measures.
Additionally, the Aarhus
Convention requires that signato-
ries “promote the application of
the principles of this Convention
in international environmental
decision-making processes and
within the framework of inter-
national organisations in matters
relating to the environment.”31
UN Secretary General Kofi Annan
described it as “the most ambitious
venture in the area of environmental
democracy so far undertaken under
the auspices of the United Nations.”
As of November 2011, the
Aarhus Convention has been
ratified by forty-five countries from Western Europe to Central
Asia and has been incorporated into EU law through a directive.
The Compliance Committee has now heard over fifty cases,
nearly all filed by the public or civil society organisations.32
In 2003, a follow-up instrument to the Aarhus Convention, the
Kiev Protocol on Pollutant Release and Transfer Registers, was
adopted.33 This Protocol holds corporations accountable for disclos-
ing information on the toxins they release into the environment, and
has been ratified by twenty-six countries.34
In addition to the Aarhus Convention, Principles 17 and 19
of the Rio Declaration also resulted in the creation of the 1991
UNECE Convention on Environmental Impact Assessment in
a Transboundary Context (“Espoo EIA Convention”).35 This
convention creates requirements for state parties to assess the
environmental impact of major projects early on and to notify
other countries when the project will have a transborder effect.36
It has been signed by forty-five countries and ratified by thirty
countries.37
ACCESS TO INFORMATION
Sustainable development relies on accurate information on
a range of environmental matters, including those related to the
green economy and climate change. Disclosure of information is
therefore clearly in the public interest and serves to enhance the
effectiveness of sustainable development programmes.
Since the 1992 Rio Earth Summit, there has been a dramatic
increase in recognition of the right to access information by
nations. Over ninety countries have adopted framework laws or
regulations for access to information, including in the past few
years China, Indonesia, Nigeria, Chile and Mongolia.38 Over
eighty countries have the right to information enshrined in their
constitutions.39 Many others including Brazil have adopted spe-
cific environmental information access statutes or provisions in
general environmental protection laws.40
MAP 1: RIGHT TO INFORMATION LAWS, 2011.
11SPRING 2012
As the map above shows, there are significant dispari-
ties between regions. While most of the nations of Europe,
the Americas, and a significant portion of Asia have the laws
in place, individuals in most Middle Eastern, African, Pacific,
and Caribbean countries do not yet have this right incorporated
into national law. Furthermore, practice lags behind laws in the
majority of these countries. Causes for this gap vary, including
lack of detailed administrative rules and operational policies,
inadequate public capacity to use the laws, and insufficient offi-
cial capacity to implement laws.
Another positive trend with respect to access to informa-
tion is the increased adoption of Pollutant Release and Transfer
Registers (“PRTR”s), which require governments to collect
information on pollution releases and make that information
publicly available through databases. PRTRs have been shown
to be one of the most effective means of getting pollutant related
information out to the public while simultaneously reducing pol-
lution.41 There has been a steady increase of countries providing
registers and it is estimated that the number of national registers
is likely to double over the next ten years.42 There are now single
registers covering all of North America43 and Western Europe.44
Outside of these successes, however, there are many gaps
remaining for access to information. These include:
        
information about climate change and the environment.45
Denial of access to information stems largely from the
absence of freedom of information legislation and the
institutional secrecy of numerous state authorities, coupled
with legislation in place preventing access to information,
including state secret laws, national security laws, and
anti-terrorism legislation.46
        
proactively release environmental information, including
basic information on air quality and drinking water
quality.47 Meaningful access to environmental information
requires governments to proactively gather, analyse, and
disseminate this information.48 Where databases exist at
the international level, there are no requirements that this
information is disclosed to the public.
    
information during and after emergencies.49 Mandates to
produce and disseminate such information are generally
weak despite recent international disasters.50
        
of environmental reports through the mass media or in a
usable format.51
PUBLIC PARTICIPATION
Progress on public participation is more complex to assess
at the policy, planning, and project levels. In many countries,
planning processes are now designed to ensure that the public
has procedural rights to intervene and to ensure that public
bodies have a duty to take this into account when making their
decisions. One key aspect of this area is Environmental Impact
Assessments (“EIAs”), which require the assessing of the
environmental and social impact of projects prior to their approval.
There has also been a substantial up-take of laws requiring
Environmental Impact Assessments in recent years. Currently,
over 120 countries have adopted legal provisions on EIAs.52
However, in practice, there are many gaps remaining in public
participation. 53 These gaps include:
   
project level through EIA procedures in many countries.
Often there are hurdles to meaningful participation, including
insufficient lead-time or unavailable project documents,
even where there are open participatory processes in place.
Consultation is often held too late in the project develop-
ment cycle to make a significant difference in project design
or selecting outcomes.
   
governments despite progress in their adoption in a number
of countries, e.g. Thailand and Indonesia.
    
as weak. Often sequencing of EIA and permitting processes
excludes participation in the scoping and screening exer-
cise, as well as in the determination of permit conditions. In
some countries, copies of EIAs are only provided to citizens
at a substantial cost, while restrictions to access based on
claims of commercial confidentiality are evident in other
countries.
         
technical nature of EIAs, access to non-technical summaries
in local languages, and claims of lack of independence
of systems to develop and review EIAs are also evident.
At a higher level, Strategic Environmental Assessments
(“SEAs”) are a mechanism for incorporating environmental
considerations into policies, plans, and programmes. The World
Bank describes SEAs as “including mechanisms for evaluating
the environmental consequences of policy, planning, or program
initiatives in order to ensure that they are appropriately addressed
in decision making on par with economic and social consider-
ations.”54 The strengths of SEAs include a general availability of
documents relating to proposed policies. A recent EU directive
attempted to require that all EU member states incorporate SEAs
into national law.55 SEAs have also been incorporated within
national legislation in a number of countries in Latin America
and the Southeast Asia region.56
ACCESS TO JUSTICE
The access to justice pillar of the Aahrus Convention is
arguably an area that has experienced the least improvement.
Increasingly, countries have created or enhanced environmental
courts and tribunals with specialized functions.57 In 2010, there
were over 300 environmental courts and tribunals in 41 coun-
tries.58 Recently, India established a Green Tribunal and Malawi
created an Environmental Tribunal.59
However, there remain many bumps in the road to improving
access to justice. Issues of timeliness,60 intimidation, and costs
should be highlighted. The risk of seeking injunctive relief is
also significant. There are improvements in many countries in
12 SUSTAINABLE DEVELOPMENT LAW & POLICY
which the rules for legal standing have been relaxed.61 However,
there are still concerns about legal standing in regional legisla-
tive processes such as planning.
CAPACITY BUILDING AND THE MEDIA
Legal mandates are insufficient to ensure the implementa-
tion of access rights. Governments need the infrastructure and
capacity to supply access. Additionally, public and civil society
organisations must have the ability to demand access and partici-
pate. Government officials need knowledge of the legal frame-
work and officials must possess practical skills and financial
resources for access across all relevant ministries. To address
the needs of indigenous peoples, vulnerable communities, and
the poor, governments must be innovative in how they provide
and disseminate access to information.62 These communities in
particular continue to be excluded from decision-making, and
specific entitlements are needed to facilitate their participation
and achieve inclusiveness.63
In addition, a free and independent media plays a key role
in increasing awareness of environmental protection and sustain-
able development to those most likely to be effected by these
policies. Article 19 of the Universal Declaration of Human
Rights declares that everyone has the right to freedom of opinion
and expression. This right includes freedom to hold opinions
without interference and to seek, receive, and impart informa-
tion and ideas through any media and regardless of frontiers.64
Information access effects how and what media covers. With
legal protections, a free and independent media can monitor and
strengthen the transparent and accountable delivery of funds
for environmental goals on a diverse range of issues including
climate change, protected areas, species endangerment, and
protection of coastal resources. An effective, free, and indepen-
dent media translates complex information into meaningful,
understandable, and actionable formats for public consumption.
Media facilitates discussion and debate between citizens and
officials about sustainable development and green policies. The
media has the ability to relay back key messages from affected
communities to officials.
Furthermore, media plays a key role in disaster mitigation
through advanced warning systems.65 Indeed, in many areas
affected by natural or other disasters, the mass media are the
only means by which crucial information is quickly and widely
disseminated.66 In order to be able to perform this role, the
media must be able to access accurate and timely information
from credible sources. Local media outlets, including commu-
nity radios, newspapers, and even television services, have a
central role to play not only in disseminating information from
official sources but also in ensuring an effective two-way flow of
information underpinning effective participation.
HOW RIO 2012 COULD STRENGTHEN PRINCIPLE 10
There is a compelling need to ensure that Principle 10 of
the UN Global Compact is fully implemented in all countries.
While UNEP made some progress in 2010 with the adoption of
Bali Guidelines on national legislation discussed above,67 this
development is not sufficient by itself. Bolder action involving
the development of new and revised international instruments to
promote Principle 10 is needed.
There are a number of approaches at the international level
that should be considered to strengthen Principle 10. These
approaches are not exclusive but rather complementary and
should be considered as part of a package that can be advanced
simultaneously:
1. A New Global Convention on Principle 10: Drafting
and adopting a new, global, legally binding instrument
incorporating the access rights of Principle 10, is the most
far-reaching option. Such an instrument would be a global
platform to engage worldwide discussion on the subject
of access rights, as has been done for other environmental
issues. It could also ensure that Principle 10 is uniformly
adopted worldwide. However, there are a number of chal-
lenges associated with the development of a global legally
binding instrument such as a convention on access rights.
The proposal of such an instrument may encounter resis-
tance from some states and there is a risk that such an
initiative would lead to the adoption of minimal standards.
Considerable development time would likely be necessary.
Finally, there may be difficulties regarding how such an
instrument would affect parties to the Aarhus Convention.
2. Regional Principle 10 Conventions: A more scaled down
approach would focus on the development of new, regional,
legally binding instruments similar to the UNECE Aarhus
Convention. This approach has the potential to encourage
greater involvement of all countries in each region during
development of the regional instrument’s text. This would
differ to the development process of an international agree-
ment, which would limit discussion to major countries. As
such, a regional approach would provide the opportunity to
take account of regional specificities and create a sense of
regional ownership. In addition, countries within a region
often share common political, cultural and linguistic ties,
potentially simplifying the negotiations and making it easier
to reach consensus. Finally, regional conventions would
likely strengthen existing regional institutions and processes
to reduce resource constraints.
3. Opening Up the UNECE Convention to All States:
The last option is to encourage accession to the Aarhus
Convention by states outside the UNECE region.68 The
Treaty is well respected and has a functioning oversight
system, and has already been ratified by 44 countries.69
However, no states outside the UNECE region have acceded
to it. There are political and practical obstacles to accession
including the procedure for accession itself and reticence
from many governments towards adopting a treaty viewed
as “European-centric.”
Considering these three options, the best way to strengthen
Principle 10 is to begin the process of negotiating regional and
sub-regional instruments using the UNECE Aarhus Convention
as a model. This approach is guided by a pragmatic belief that
a new global convention would be too slow to develop and
13SPRING 2012
is likely to be substantially watered down in the process. The
Aarhus Convention has been recognized as a model that should
be considered for other regions.70 However since its adoption
in 1998, no other nation outside the UNECE region has signed
it. This suggests it is not likely to significantly expand in terms
of accession without substantial incentives, which have not yet
been forthcoming.
There are risks to a regional and sub-regional approach —
some regions may be unlikely to adopt legally binding instru-
ments at the regional level in the foreseeable future. However,
the possibility for progress toward agreement on their merits,
drafting, and adoption at the sub-regional level remains. The
development of regional treaties could further strengthen efforts
to create a global instrument in the future as has happened in the
field of anti-corruption.71
OPPORTUNITIES IN LATIN AMERICA
Latin America and the Caribbean region are ideal candidates
for implementation of a regional approach. In both regions there
has been a normative convergence around Principle 10. There
have been relevant developments in various areas:
 Regional Support. The Declaration of Santa Cruz +10
reaffirmed the commitment of the members of the
Organisation of American States (“OAS”) to Principle 10
as well as the importance of public participation in sustain-
able development decision-making.72 The Inter American
Court of Human Rights recognizes the right of citizens in
the region to have access to information and participate in
decisions that affect their rights,73 while the OAS Secretariat
recently released a Model Law on Access to Information.74
 Free trade agreements. Such agreements between several
North and South American states recognize the importance
of environmental assessments and the need to harmonize
environmental regulations and standards.75 The Central
American Commission on Environment and Development
(“CACED”) along with the UN Institute for Training and
Research developed tools for a national strategy to guarantee
access rights in Nicaragua, Honduras, and the Dominican
Republic. ECLAC proposed activities in its 2011 programme
of work to help states implement Principle 10.
 National Developments. A number of countries in the
region have already adopted laws improving access rights
including Chile, Jamaica, Peru, and Mexico, while Brazil
is currently about to adopt one.76 Jamaica has just under-
gone an extensive review of its Access to Information
Law to improve implementation, proactive disclosure, and
development of a mandated public interest test.77 Mexico
has one of the most advanced access to information regu-
latory systems, with one of the most effective oversight
and enforcement agencies in the world, and has developed
its own pollutant release and transfer register.78 Some
countries have increased their efforts to promote public
participation. For example, Chile is in the process of revis-
ing environmental impact regulations that will take public
participation to the next level — to proactively include poor
and marginalized groups in decision-making by requiring
proponents of projects and the government to adapt their
strategies of information dissemination and to adopt meth-
ods of citizen participation that take into account the social,
economic, cultural, and geographic characteristics of the
affected population.79 Draft regulations require making spe-
cial efforts to adapt procedures, taking into account vulner-
able and geographically/territorially isolated communities,
indigenous communities or those with ethnic minorities,
and communities with a low educational level.80 What is
particularly exciting about this new draft regulation is that
it is the first time a Latin American country has brought the
notion of environmental justice in public participation into
standard practice within the framework of a law. And last,
Brazil leads the way with innovative strengthening of the
justice system to provide relief for environmental harms
through public prosecutors and environmental courts.
CONCLUSION AND RECOMMENDATIONS
Experience and research have demonstrated that freedom of
expression, access rights (including access to information, pub-
lic participation, and access to justice), transparency, and civic
engagement are fundamental to sustainable development and
achieving the Rio Principles. While there has been significant
progress over the past twenty years, billions of people around the
world still do not have these rights.
If Rio 2012 is to be successful and bring the world closer
to building a green economy and ensuring sustainable develop-
ment, these fundamental principles must be at the heart of the
Outcome Document and consecutive commitments by govern-
ments to advance Principle 10 at the international, regional, and
national levels.
This article offers four key recommendations. First, all
states should codify Principle 10 of the Rio Declaration in their
national laws and commit to improve their laws, institutions, and
practices for implementation of Principle 10. Particularly states
should establish a legal and regulatory framework to protect
freedom of expression, freedom of information, freedom of
association, freedom of assembly, access to administrative and
judicial remedies, and political freedom. This legal regulatory
framework should also enshrine principles of maximum and pro-
active disclosure of environmental and green economy informa-
tion as well as the right to broadly participate in environmental
and natural resource decision-making. The media, civil society
groups, scientists, and members of the general public must not
be hindered in their efforts to gain access to information on
development and environmental issues and to report and express
their opinions. Whistleblowers, especially those reporting
environmental hazards, must be afforded adequate legal protec-
tion. Further, all obstacles preventing people living in poverty,
vulnerable groups (such as women and minorities) and indig-
enous peoples from accessing information on development and
environmental policies must be removed. Proactive measures
must also be taken to promote these groups’ participation in the
design and execution of development strategies.
14 SUSTAINABLE DEVELOPMENT LAW & POLICY
Second, the Rio 2012 Outcome Document should call for
new international instruments to provide global and regional
standards for, and oversight of, the implementation of Principle 10
into national law. This would include a resolution by all member
states mandating UN regional bodies in Asia, Africa and Latin
America and the Caribbean, as well as UNEP regional offices
and other regional bodies to take steps to negotiate and conclude
legally binding regional or sub-regional conventions modelled
on the UNEP Principle 10 Guidelines. The Aarhus Convention
Secretariat should intensify its efforts to convince governments in
other regions of the world to either adopt the Convention or take it
as a model for regional or sub-regional efforts.
Third, the Rio 2012 Outcome Document should include a
commitment by all international organisations and agencies
working on sustainable development to codify Principle 10 of
the Rio Declaration in their rules and procedures, including
by proactively disclosing information, providing for the
participation of civil society in their decision-making processes,
and establishing redress mechanisms for individuals affected
by their policies and activities. International financial institu-
tions should adopt comprehensive standards as proposed by the
Global Transparency Initiative.
Fourth, the Rio 2012 Outcome Document should include
specific and time measured information regarding the imple-
mentation of the Bali Guidelines recently adopted by the UNEP
Governing Council. This programme should identify target coun-
tries and specify long term funding sources as well as a timetable
for UNEP to provide assistance to developing countries to bring
their laws, institutions, and practices in line with the Guidelines.
The programme should include capacity building programmes,
opportunities for mentoring of public officials, and mechanisms
for civil society organisations to share experiences on the devel-
opment of new legal instruments to create and implement access
rights.
Endnotes: Moving from Principles to Rights: Rio 2012 and Access
to Information, Public Participation, and Justice
1 In addition to Principle 10, the Rio Declaration Principle 11 asserts that
States should “enact effective environmental legislation.” Principle 15 speaks
about the precautionary principle. Principle 17 states that “[e]nvironmental
impact assessment[s] are a national instrument” and should “be undertaken
for proposed activities that are likely to have a significant adverse impact on
the environment and are subject to a decision of a competent national authority.
Principles 20 and 22 recognize that women and indigenous people play a vital
role in environmental management and that their participation is essential to
achieve sustainable development. United Nations Conference on Environment
and Development, Rio de Janiero, Braz., June 3-4, Rio Declaration on Environment
and Development, U.N. Doc. A/CONF.151/26/Rev.1 (Vol. I), Annex I (August
12, 1992), http://www.un.org/documents/ga/conf151/aconf15126-1annex1.htm.
2 See id.
3 See FOTI J. ET AL., WORLD RESOURCES INSTITUTE, VOICE AND CHOICE: OPENING
THE DOOR TO ENVIRONMENTAL DEMOCRACY 1, 78 (2008), http://www.access
initiative.org/sites/default/files/voice_and_choice.pdf.
4 See Rio Declaration on Environment and Development, supra note1.
5 See Agenda 21, U.N. Conference on Environment and Development, U.N. Doc.
A1CONF.151/26 (1992).
6 See U.N. DEPARTMENT OF ECONOMIC AND SOCIAL AFFAIRS, DIVISION FOR
SUSTAINABLE DEVELOPMENT, JOHANNESBURG PLAN OF IMPLEMENTATION OF THE
WORLD SUMMIT ON SUSTAINABLE DEVELOPMENT 2 (1992), http://www.un.org/esa/
sustdev/documents/WSSD_POI_PD/English/WSSD_PlanImpl (reaffirming a
commitment to the principles of Rio and the implementation of Agenda 21).
7 See FOTI J. ET AL., supra note 3, at 78.
8 U.N. Secretary General, Objective and Themes of the United Nations
Conference on Sustainable Development: Rep. of the Secretary-General, 4, 7-8,
U.N. Doc. A/CONF.216/7 (Dec. 10, 2010), http://www.uncsd2012.org/files/
prepcom/SG-report-on-objective-and-themes-of-the-UNCSD.pdf.
9 U.N. Secretary General, supra note 8, at 4.
10 U.N. Secretary General, supra note 8, at 25.
11 U.N. Secretary General, supra note 8, at 5.
12 SECOND MEETING OF THE CONSULTATIVE GROUP OF MINISTERS OR HIGH-LEVEL
REPRESENTATIVES ON INTERNATIONAL ENVIRONMENTAL GOVERNANCE, NAIROBI-
HELSINKI OUTCOME (Nov. 23, 2010), http://www.unep.org/environmental
governance/Portals/8/documents/Events/NairobiHelsinkifinaloutcomeedited.pdf
13 See UNEP DIVISION OF ENVIRONMENTAL LAW AND CONVENTIONS, FRAGMENTATION
OF ENVIRONMENTAL PILLAR AND ITS IMPACT ON EFFICIENCY AND EFFECTIVENESS 1, 4,
http://www.pnuma.org/forumofministers/18-ecuador/InstitutionalFrameworkfor
SustainabledevPAPER2.pdf (discussing the inability of various Multilateral
Environmental Agreements inabilities to address environmental issues in a unified
approach).
14 Roberts, Id.
15 See generally ACCOUNTABILITY AND INTERNATIONAL FINANCIAL INSTITUTIONS
DEEPENING TRANSPARENCY AND OPENING POLITICAL SPACE, http://www.ifitrans
parency.org/index.shtml (describing a report from the Centre for Law and
Democracy stating that International Financial Institutions have made progress
towards access to information).
16 U.N. Secretary General, supra note 8, at 25.
17 See, e.g., Alasdair S. Roberts, A Partial Revolution: The Diplomatic
Ethos and Transparency in Intergovernmental Organizations, 64 PUBLIC
ADMINISTRATION REVIEW 408-422 (Jul 2004).
18 See SECOND MEETING OF THE CONSULTATIVE GROUP OF MINISTERS HIGH-LEVEL
REPRESENTATIVES ON INTERNATIONAL ENVIRONMENTAL GOVERNANCE, NAIROBI
-HELSINKI OUTCOME , supra note 12, at 1, 4 (explaining the Nairobi-Helsinki’s
failure to include compliance mechanisms for the effective implementation of
Multilateral Environmental Agreements).
19 See ORGANISATION FOR ECONOMIC CO-OPERATION AND DEVELOPMENT, OECD
ENVIRONMENTAL PERFORMANCE REVIEWS — A PRACTICAL INTRODUCTION, OCDE/
GD(97)35 (1997), http://www.oecd.org/officialdocuments/publicdisplaydocume
ntpdf/?cote=OCDE/GD(97)35&docLanguage=En.
20 See COMMISSION FOR ENVIRONMENTAL COOPERATION, BRINGING FACTS TO
LIGHTS: A GUIDE TO ARTICLE 14 AND 15 OF THE NORTH AMERICAN AGREEMENT
ON ENVIRONMENTAL COOPERATION 1, 14 (2000), http://www.cec.org/Storage/41/
3331_Bringing%20the%20Facts_en.pdf (discussing the mechanisms for
citizens’ submissions of complaints).
21 Peggy Rodgers Kalas & Alexia Herwig, Dispute Resolution under the Kyoto
Protocol, 27 ECOLOGY L.Q., 53, 58 (2000).
22 Kalas et al., id., at 68.
23 U.N. Governing Council of the United Nations Environment Programme,
Twenty-Sixth Session of the Governing Council/Global Ministerial Environment
Forum, Item 4 (b) of the Provisional agenda Policy Issues: Emerging Policy
Issues, UNEP/GC.26/17/Add.2 (Feb. 2011).
24 Id.
25 The 1992 Rio Declaration was signed by 178 States. There has been notable
progress both internationally and nationally since its adoption. However, many
gaps remain.
26 See, e.g., ARTICLE 19, THE LONDON DECLARATION FOR TRANSPARENCY,
THE FREE FLOW OF INFORMATION AND DEVELOPMENT (Aug. 2010), http://www.
article19.org/data/files/medialibrary/1798/London-Declaration.pdf (addressing
the commitment of 150 countries to adopt eight millennium development goals
and to meet their target by 2015).
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