Paper 3.1 Toward an Instrument on Environmental Democracy in Latin America and the Caribbean

Paper 1

Toward an Instrument on Environmental Democracy in Latin America and the Caribbean

Marcos Orellana

At the Rio+20 Conference, thanks to the leadership of the Government of Chile, and working alongside civil society organizations cooperating in The Access Initiative (TAI) (1), ten States of Latin America and the Caribbean (LAC) signed the Declaration on the Implementation of Principle 10 of the Rio Declaration on Environment and Development (Declaration). By the end of 2014, nine more countries had signed the Declaration, representing more than 500 million people and at the same time including more than half of all Latin American and Caribbean countries: Argentina, Brazil, Bolivia, Chile, Colombia, Costa Rica, Ecuador, El Salvador, Guatemala, Honduras, Jamaica, Mexico, Panama, Paraguay, Peru, the Dominican Republic, Saint Vincent and the Grenadines, Trinidad and Tobago and Uruguay.

The signatory countries to the Declaration expressed their commitment to a process that explores the viability of a regional instrument that will assure the comprehensive implementation of the rights to access information, participation and justice enshrined in Principle 10 of the Rio Declaration on Environment and Development of 1992. This process progressed in accordance with a 2012-2014 Plan of Action agreed to by the signatory countries in Guadalajara, Mexico. Then, in November 2014, the participating governments adopted the Santiago Decision to commence negotiations on the regional instrument on rights of access to information, participation and justice regarding environmental matters, with a view to concluding them by December 2016.

Among the most notable points of the Plan of Action are the definition of modalities of participation of the concerned public and the identification of tasks for States, including actions to promote the active participation of the public at the national level and the creation of working groups to work towards the achievement of a regional instrument. The modalities of public participation are significant for various reasons:

They constitute a good international practice not only because they permit the public to participate in the meetings, but also because they establish, the right to request the floor. The Chair will give the floor in the order in which it is requested, regardless of whether the respective speakers are government representatives, representatives of international agencies or a member of the public, aiming to ensure that everyone is heard and the meeting is effective.
They point out that the goal is an open process in all instances. While it is possible for signatory countries to hold certain closed sessions in exceptional circumstances, in that case, the countries will explain the reasons that motivate a closed session within a meeting. The process has so far exhibited an exceptionally high degree of transparency and participation, establishing a model of best practices in international negotiations.
They confer to the UN Economic Commission for Latin America and the Caribbean (ECLAC) the role of administrator of the regional public mechanism. The objectives of this mechanism are to keep all interested parties informed about the process, to coordinate the participation of the public in international meetings and to contribute to the transparency of the process. ECLAC also publishes the calendar of meetings and the official documents of the meetings on its web page.

The Plan of Action also defines various tasks for States, identifying the goal in each, actions to be performed, resources, expected results, the entities responsible for these tasks and the maximum period of completion. This identification allows, among other things, accountability of the focal points at the meetings. Among these tasks are national-level actions, such as the dissemination of information, strengthening of capacity, consultation and support for the activities organized by the public. These activities highlight an important aspect of the process: one of its key goals is a process of learning and capacity strengthening. To this end, the process towards the LAC regional instrument already comprises a series of other sub-instruments, such as the national workshops, the dissemination of information about access rights and the development of diagnostics in the national plan. The progress towards the LAC regional instrument has witnessed successful meetings of the participating governments. For example, the third meeting of the focal points, held in Lima in November 2013, agreed on the Lima Vision for the instrument, which recognizes:

That everyone has the right to a healthy environment, which is essential for the full development of human beings and for the achievement of sustainable development, poverty eradication, equality and the preservation and stewardship of the environment for the benefit of present and future generations.
That exercising rights of access to information, participation and justice in environmental matters deepens and strengthens democracy and contributes to the better protection of the environment, and thus of human rights.

Similarly, in October 2014, participating governments adopted the San Jose Content, which identifies the key issues to be considered in the negotiations of the regional instrument and which includes the right to a healthy environment in the general principles of the operative part of the regional instrument. Thus, the direct link between access rights, the right to a healthy environment and sustainable development affirmed in this process, particularly the Lima Vision and the San JosÃ© Content, provides a strong basis for further progress on the road ahead.

To conclude, in the 21st century new legal tools are needed in order to combat the spread of socio-environmental conflicts and reverse ecological degradation, and in this way ensure peace, coexistence, and social dialogue. A regional instrument regarding access rights presents a real opportunity for empowering local communities and strengthening the organs of the State so that the debates about sustainability are conducted within the framework of institutional channels that give consideration and expression to the plurality of voices within society and the public interest. Therefore, an instrument about access rights creates the possibility for new spaces of legitimacy for the social contract and the construction of a culture of respect and inclusion.

In this way, the LAC regional instrument will make access rights operative as foundational elements of sustainable development, thereby enabling the implementation of a rights-based approach to sustainable development governance. The instrument will redefine State-society relations at all levels of government so that they come to respond to a democratic model; a model in which the structures of governance of natural resources and ecosystems, on which the whole economy is based, respond to the needs and concerns of the present and future generations; and which is judged by the effective observance of rights, social inclusion, pluralism and equality.

Notes

(1) TAI is the largest global network of civil society organizations that work to ensure that citizens have the right and the ability to influence decisions about natural resources on which their communities depend.

Marcos A. Orellana is Director of the Human Rights and Environment Program at the Center for International Environmental Law (CIEL) and Adjunct Associate Professor at the George Washington University School of Law. Prior to joining CIEL, Dr. Orellana was a Fellow to the Lauterpacht Research Centre for International Law of the University of Cambridge, UK. Dr. Orellana has acted as legal counsel to the Chilean Ministry of Foreign Affairs on international environmental issues, such as the Rio+20 process. Orellana has also acted as legal advisor to several International Institutions, including the UN Economic Commission for Latin America and the Caribbean, the UN Environment Programme and the Office of the High Commissioner for Human Rights.