Ana Barreira, Director of IIDMA, Member of the IUCN Commission on Environmental Law
We, present generations, are facing unprecedented environmental challenges. The actions of past and present generations not only have impacts in our time, but also affect future generations, who are unable to have their voices heard in the Rio+20 discussions.
Good governance and the rule of law are part of the equation to attain sustainable development. The existence of a well developed international environmental legal framework alone does not guarantee sustainable development, as evidences the state of the Planet. We are still far from achieving inter- and intra-generational justice. For this reason, it is imperative to place emphasis on the implementation of, and compliance with, the international environmental commitments embedded in Multilateral Environmental Agreements (MEAs).
Ensuring compliance by members of the international community with their international environmental obligations is vital to the achievement of sustainable development. Non-compliance limits the effectiveness of legal commitments, undermines the international legal process, can lead to conflict and instability in the international order, and weakens the credibility of public institutions at the international, regional and national levels. Non-compliance can include a failure to give effect to substantives norms, or to fulfil procedural requirements, or to fulfil an institutional obligation.
The Preamble of the Zero Draft affirms the commitment of Heads of State and governments ‘to work for a prosperous, secure and sustainable future for our people and our planet’. However, in the 40th years since the Stockholm Conference, it has been shown that the work of Heads of State and governments alone is not sufficient in the quest for sustainable development.
The Zero Draft recognises gaps in implementation and makes a call to address them, through the commitment of Heads of State and governments to ‘improv[e] governance and capacity at all levels – global, regional, national and local...’ It also recognises ‘that States must work together cooperatively and join with all stakeholders to address the common sustainable development challenges we face’ and ‘that strong governance at local, national, regional and global levels is critical for advancing sustainable development’. One of the key points of governance is institutional reform, which is necessary in order to return some functions to society and to turn democracy to a participatory one. Openness, transparency and participation, principles essential to the achievement of good governance, improve the damaged credibility of public institutions.
To attain sustainable development, engaging the public not only in decision-making, but also in implementation, is a prerequisite. Failure to implement is a case of non-compliance. If the commitment of Heads of State and governments to sustainable development is real, then they must show it in the Rio+20 outcomes. For this reason, the proposal in paragraph 58 of the Zero Draft ‘…to take steps at various levels to give further effect to Rio Principle 10 at the global, regional and national level’ should include the introduction of a participatory mechanism at the international level to improve compliance with MEAs.
The Instituto Internacional de Derecho y Medio Ambiente (IIDMA), jointly with Justice and Environment (J&E) and supported by a series of NGOs, proposes to introduce to the Zero Draft a call to Parties of MEAs to take the necessary steps to include public participation in MEAs compliance procedures – specifically in multilateral non-compliance procedures when members of the international community fail to implement their international commitments the proposal is available here. The proposal consists of replicating the instruments available to the public under the Compliance Committtee of the Aarhus Convention, which may bring communications to that Committee concerning a Party’s compliance with the Convention. This is a concrete measure that, using the words of the Zero Draft text, will serve to ‘strengthen international environmental governance within the context of the institutional framework for sustainable development’. Thus, we propose the inclusion of a new sentence in paragraph 58 of the Zero Draft:
We agree to take steps at various levels to give further effect to Rio Principle 10 at the global, regional and national level, as appropriate. At the global level we call on the governing bodies of MEAs to take the necessary steps to establish, where they are not already in place, participatory compliance mechanisms which allow for a review of any Party’s compliance to be triggered inter alia by communications from the public.