Governments from Latin America and the Caribbean (LAC) are entering the final stages to develop a regional agreement on access to information, participation and justice in environmental matters (Principle 10 of the Rio Declaration on Environment and Development).
Currently, the Aarhus Convention, which was adopted in 1998 in Aarhus, Denmark, is the only legally binding instrument on the implementation of Principle 10.
The LAC regional agreement is expected to set standards for the development of laws, build capacity to implement rights and help reduce conflicts over natural resources.
Governments from Latin America and the Caribbean (LAC) are entering the final stages to develop a regional agreement on access to information, participation and justice in environmental matters (Principle 10 of the Rio Declaration on Environment and Development). The first round of negotiations in 2017 will take place in late March, with the conclusion of the negotiation process and finalization of the agreement expected by December 2017.
Original Call for Principle 10 Provisions
The Rio Declaration, which was adopted in June 1992 in Rio de Janeiro, Brazil, during the UN Conference on Environment and Development (UNCED), provides guidance for countries to protect the environment and achieve sustainable development. The Declaration also articulates standards that UN member countries should undertake when establishing domestic and international environmental policies and agreements. Principle 10, one of 27 non-legally binding principles in the Declaration, calls on governments to ensure that every person has “access to information, can participate in the decision-making process and has access to justice in environmental matters with the aim of safeguarding the right to a healthy and sustainable environment for present and future generations.”1
More specifically, Principle 10 calls for provisions that enable citizens to fully participate in environmental issues, including at the national level, and that everyone “shall have appropriate access” to environmental information held by public authorities, including information on hazardous materials and activities in their communities. It states that States “shall facilitate and encourage” public awareness and participation by making information widely available, and that “access to judicial and administrative proceedings, including redress and remedy, shall be provided.”2
Rio+20 Follow-Up Declaration
Twenty years after the Rio Declaration was adopted, the process for a regional Principle 10 agreement in LAC was launched, also in Rio de Janeiro. The ‘Declaration on the application of Principle 10 of the Rio Declaration on Environment and Development’ was adopted during the UN Conference on Sustainable Development (UNCSD, or Rio+20) in June 2012. Through this Declaration, signatory countries pledged to work towards a regional agreement on Principle 10, and to: bring environmental information into the public domain and guarantee access to it; intensify regional and international cooperation; and work with civil society. While Europe adopted a similar instrument, with the UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention), the LAC regional process represents the first time that developing countries have formally considered adopting a regional instrument on Principle 10 of the Rio Declaration.3
Currently, the Aarhus Convention, which was adopted in 1998 in Aarhus, Denmark, is the only legally binding instrument on the implementation of Principle 10. The Convention combines environmental and human rights law4 and has become increasingly important and relevant in the European region, offering responses to public calls for more citizen engagement in sustainable development-related issues, such as implementing the 2030 Agenda for Sustainable Development and realizing the Sustainable Development Goals (SDGs).5 For example, during a December 2016 meeting on public participation in decision-making held in Geneva, Switzerland, participants discussed how the Aarhus Convention addresses, inter alia: the public’s right to have a say in activities related to, inter alia: extending the life of chemical or nuclear plants, landfills and mining; public participation regarding decisions that have a transboundary environmental impact; and youth involvement in decision-making.6
The process to reach a regional agreement in LAC follows on the example of the Aarhus Convention in Europe, and has the overall objective of strengthening environmental governance and implementing Principle 10 in the region, with an emphasis on cooperation and strengthened capacities to help countries improve related laws, policies, institutions and practices. The agreement will also aim to, inter alia: deepen democracies and social cohesion, build trust, eliminate asymmetries and prevent socio-environmental conflicts; redefine traditional relationships between the State, the market and society; and contribute to the implementation of the 2030 Agenda for Sustainable Development.7
The process has, in some cases, prompted related national actions that increase, for example, civil society’s involvement in environmental matters and information access.8 By September 2015, 17 of 33 LAC countries had guaranteed access to information under their constitutions, 14 had legislation regarding information access, and eight were in the process of creating or adopting such legislation.9 However, producing such “comprehensive, user friendly, timely and accessible” national-level environmental information is still necessary, as are strategic environmental impact assessments, capacity building for those underrepresented in participatory processes, and alternative mechanisms for environmental conflict resolution. Thus, the regional agreement is expected to set standards for the development of laws, build capacity to implement rights and help reduce conflicts over natural resources.10
Discussing the importance of the instrument for the region and beyond during recent negotiating sessions, Alicia Bárcena, Executive Secretary of the Economic Commission for Latin America and the Caribbean (ECLAC), stressed that the LAC region is acting as the “protagonist of a unique agreement.” She also cited the “historic opportunity” the regional instrument presents to transform decision-making with active participation by citizens,11 and said the instrument will strengthen democratic institutions and reduce “global and local asymmetries.”12 Chilean Environment Minister Pablo Badenier said that better access to information, participation and environmental justice will increase the legitimacy of each LAC country’s environmental management system and natural resource protection. He said the process is “demonstrating a new model of best practices in international negotiations.”[13
As of 1 December 2016, 23 signatory countries have formally joined the process by signing the Declaration on the application of Principle 10 in the LAC region. The signatory countries are: Antigua and Barbuda, Argentina, Bolivia, Brazil, Chile, Colombia, Costa Rica, Dominica, Dominican Republic, Ecuador, El Salvador, Grenada, Guatemala, Honduras, Mexico, Panama, Paraguay, Peru, Saint Vincent and the Grenadines, Trinidad and Tobago, and Uruguay.14
Negotiation Process for a LAC Principle 10 Agreement
Following the 2012 signing of the Declaration, the negotiation process got underway. Coordinated by Chile, the Dominican Republic and Mexico, four meetings were convened between 2012 and 2014 to bring together focal points from the signatory countries: Santiago, Chile, in November 2012; Guadalajara, Mexico, in April 2013; Lima, Peru, in October 2013; and Santiago in November 2014. During these focal point meetings, participants adopted: a road map; a plan of action, which agreed to establish a Regional Public Mechanism to coordinate public participation, increase transparency of the process and complement national-level actions regarding participation;15 the Lima Vision, which outlines agreement on principles to guide negotiations on the instrument; Priority Action Lines for Capacity-Building and Cooperation; and the Santiago Decision, which mandates the creation of a negotiating committee to begin negotiations on a regional agreement on “rights of access to information, participation and justice in environmental matters.”16
In addition, two working groups, which were established to advance discussions on ‘Capacity-Building and Cooperation’ and on ‘Access Rights and Regional Instrument,’ met 14 times and concluded their mandates in November 2014. Numerous workshops were also convened, including on: lessons learned regarding public participation in environmental decision-making; climate change, natural disasters and coastal vulnerability in the Caribbean; capacity building for civil society organizations so they can participate in international negotiations on environmental issues; and information and communications technologies (ICTs) and sustainable development.
The Santiago Decision requests ECLAC, which acts as Technical Secretariat of the process, to “continue and intensify” efforts to build capacities and cooperation regarding the application of Principle 10, in coordination with the Presiding Officers (appointed to coordinate negotiations of the regional instrument), signatory countries and interested members of the public. The Decision also invites observer countries to continue communications with the Presiding Officers with a view to joining the process, and the public to designate two representatives to maintain dialogue with the Presiding Officers.17
Thus far, five meetings of the Negotiating Committee have convened, as outlined below. The sixth meeting will convene in March 2017 in Brasilia, Brazil. The Committee is co-chaired by representatives from Chile and Costa Rica. In addition to in-person meetings, the Committee has held numerous virtual meetings, with the public providing input to the negotiating process.
To facilitate the Negotiating Committee’s work, ECLAC prepared a preliminary document at the behest of the signatory countries of the Declaration, and based on the San José Content, a document that was adopted at a September 2014 workshop in Costa Rica that describes the instrument’s objective and recommends that it include: support for the post-2015 development agenda; a rights-based approach; recognition of the region’s diversity; and links between human rights and the environment.18 The preliminary document lays out proposed articles for the agreement, also drawing on: an ECLAC regional assessment; national laws, practices and institutions; and the LAC region’s challenges and requirements.19 The Negotiating Committee has conducted negotiations based on this document, with further iterations of the text compiled by the Presiding Officers in advance of each Committee meeting, incorporating comments and proposals by countries.
During the first meeting of the Negotiating Committee, held in Santiago in May 2015, countries adopted the organization and work plan of the Committee. During the second meeting, in Panama City, Panama, in October 2015, the third meeting, held in Montevideo, Uruguay, in April 2016 (where countries agreed on modalities for public participation in the Committee), and the fourth meeting, held in Santo Domingo, Dominican Republic, in August 2016, the Committee reviewed the preamble, and articles on objective, definitions, principles, general obligations, access to environmental information, and generation and dissemination of environmental information. The fifth meeting, held in Santiago in November 2016, discussed articles on generation of environmental information, public participation in environmental decision-making and access to justice. The sixth meeting will, among other things, resume negotiations on the remaining articles.2021
The fifth, and most recent, version of the text compiled by the Presiding Officers was published on 27 December 2016, in advance of the sixth meeting of the Negotiating Committee. As it currently stands, the text is 43 pages long and contains advances made in reviewing the preliminary document of the regional agreement thus far. It also incorporates proposals received from countries, with textual options and brackets included throughout.22
Looking ahead, the sixth meeting of the Negotiating Committee will meet from 20-24 March 2017, in Brasilia, Brazil, and will continue negotiations on the regional agreement. The meeting will also include: a special session on rights of access to environmental justice, with a presentation from a justice of the National High Court of Brazil; presentations of actions taken at the national level by signatory countries to the Declaration on the application of Principle 10 in LAC and by the Secretariat; and a presentation of the preliminary report assessing the agreement’s possible administrative, financial and budgetary implications.
Countries are expected to review the remaining articles in the instrument and reach agreement by December 2017. More information on the process can be found on the SDG Knowledge Hub, through the links below. We will continue to follow this process, as the LAC region strives to implement the promises set out in declarations from 1992 and 2012, in order to ensure access to information that enables citizens to fully participate in environmental issues.