Integrating Development and Public Participation into International Environmental Governance: a Latin American perspective on a World Environmental Organization.*
(June 2001)
Daniel E. Ryan1 Fundaci贸n Ambiente y Recursos Naturales (FARN); Argentina Email dryan@farn.org.ar
* This paper was prepared for FLACSO Argentina as part of a research project titled "Possible Global Environmental Institutions: Exploring the Developing Country Interests." Support for this project was gratefully provided by the MacArthur foundation. 1 I am very thankful to NikkI Skuce for her valuable comments and extremely efficient research and editing assistance.
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1. - Introduction There is an increasing debate among international policy makers, scholars and environmental NGOs about the present state of international environmental governance and the need to strengthen international environmental institutions. One of the proposals which is attracting growing attention is the possibility of creating a world environmental organization (WEO). Varied arguments have been put forward for and against the creation of this new entity. Most of the debate is centered on either how to improve coordination between existing environmental regimes or how to counter-balance the WTO. In general, advocates seek to overcome the institutional and policy limits of the current multi-tiered, sometimes overlapping, network of issues-based regimes. On the other hand, critics argue that while it is necessary to strengthen the coordination and improve the enforcement of multilateral environmental agreements (MEAs), the creation of a new organization, in addition to being politically costly, is not the solution to international environmental governance problems. In essence, the overall debate is about how to improve international environmental governance. This paper intends to enrich that debate by introducing development and public participation variables in the discussion. As demonstrated at the United Nations Conference on Environment and Development (UNCED), there is general consensus in the international society that development and environmental protection are interrelated. However, and despite some advancements, there has been an inadequate level of integration of environmental and social considerations into the mainstream economic decision making. As a result, the state of the global environment has deteriorated, poverty levels have not declined and the gap between the quality of life of industrialized and developing countries has increased. Integrating environment and development is still a main challenge for sustainable development governance in Latin America and the rest of the world. One of the main conditions for good governance is public participation. A number of international treaties, declarations and action plans have stressed the importance and necessity of strengthening the role of civil society for the achieving of sustainable development. The Rio Declaration signed by more than 100 heads of government, states that “environmental issues are best handled with the participation of all concerned citizens at the relevant level�.2 Agenda 21 calls on the UN system, including international finance, development agencies and all intergovernmental organizations, to take measures to enhance the contribution of non-governmental organizations in “policy design, decision-making, implementation and evaluation of the individual agency level, in inter-agency 2
Principle 10 of the Rio Declaration.
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discussions and in United Nations conferences”.3 More recently, the Malmo Ministerial Declaration of May 2000, reaffirms the principles of Río, stating that civil society plays a critically important role in addressing environmental issues.4 The argument made here is that, from a Latin American perspective, the challenge for any proposal on international institutional reform is to develop a model of international governance that integrates development and environmental concerns, and that any approach in this direction will need to strengthen public participation. Thus, it is necessary to assess whether a WEO would provide a more favorable institutional setting than the current scenario, to develop a more pro-active agenda in the field of public participation at the international level. More specifically, what contributions, if any, could a WEO make on issues such as access to information and public participation in international policy making and enforcement.
2. - Integrating development and environment In Latin America, as elsewhere, there is a broad range of social, economic and political factors affecting the environment. Different reports and studies have stressed how poverty, inequitable income distribution, unsustainable development of agriculture, industry and tourism activities, unplanned urban growth, population density, weak institutional structures, and other social and economic factors, are deeply linked to environmental problems in the region.5 At the international level, the First Global Ministerial Environmental Forum (May 2000) outlined that the global environmental degradation process is embedded in social and economic problems such as pervasive poverty, unsustainable production and consumption patterns, inequity of wealth and the debt burden.6 The Ministers agreed that the two greatest challenges to sustainable development -that the Rio plus10 summit in 2002 should aim to address- are poverty of most of the world population, and unsustainable consumption patterns of richer segments of all countries, particularly developed countries. It is clear then, that environmental problems can not be treated in isolation; the real focus of attention must move to the model of development and how to meet interrelated social, economic and environmental demands. The legal instruments adopted at the UNCED recognize and reaffirm this relationship between environment and development. Principle 4 of the Rio Declaration states that “In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it.” Agenda 21(Chapter 38, subparagraphs 7 and 8) points out that international institutions have the duty to 3
Agenda 21, para. 27.9 (a). Art. 14 of the Malmo Ministerial Declaration (First Global Ministerial Environment Forum, Malmo, Sweden, 29-31 May 2000). 5 See Latin American and Caribbean Commission on Development and Environment, “Our Own Agenda”, Inter-American Development Bank, UNDP, ECLA, 1990. Also, UNEP, “GEO América Latina y el Caribe 2000.Perspectivas del medio ambiente”; 2000. 6 Malmo Ministerial Declaration, (First Global Ministerial Environment Forum (Malmo, Sweden, 31 May 2000). 4
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integrate environment and development issues into all levels of national and international arrangements. Clearly, policy integration is a fundamental requirement for effective sustainable development governance. Nevertheless, policy integration in Latin America, as well as at the international level, has a poor record. During the last decades, public concern and action regarding environmental issues have increased significantly at the local, national and regional level in Latin America. Furthermore, institutional developments have accelerated since the Rio Summit in 1992. At the national level, most countries of the region have developed national environmental legislation and related institutional arrangements to provide a sound basis for addressing major environmental threats, often on a sectorial basis. However, and despite some specific success, national environmental ministries and agencies have neither the political leverage nor the necessary resources to foster sustainable development strategies across all areas of government. Similarly, the creation of Sustainable Development National Councils, even though an extremely valuable step, in most of the cases have not yet had the expected impact regarding the integration of environment and development policies.7 A similar situation is repeated among international institutions. For many years international regulation of environmental issues has taken place in international fora such as UNEP and the conferences of the parties of environmental treaties, which are not directly connected to international economic organizations such as the World Bank, the IMF or the WTO. Historically, environmental concerns have been addressed on the margin of international economic regimes. However, in the last decade, these issues have shifted from being addressed exclusively by a limited number of international organizations with specialized environmental mandates to be a matter of concern of a broader range of international organizations. As international environmental regulation is increasingly placing limits on certain economic activities, and international economic regulations foster economic and social processes of high environmental impact, there is a greater need to integrate environmental considerations in mainstream international policyand-law making. The challenge though is how to achieve this integration where international law and policy traditionally provide different regimes to address different subject matters. This is a very central issue for improving international sustainable development governance, in which, as it has been pointed out, there is little successful practice to follow. Would a WEO provide a better institutional setting than the current scenario to advance a more integrated approach to environment and development issues? Most of WEO advocates have not addressed this issue in detail, even though many of the calls for a WEO have emerged in light of the trade/environment debate. 7
According to the GEO report, There are around 20 councils in the region and the number is increasing. UNEP; op. cit., p.86.
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In this regard, it is argued that an international environmental agency could serve as a counterweight to the World Trade Organization (WTO), preventing the multilateral trade system from taking on environmental issues which are outside of its core trade functions.8 Similarly, many leaders of the trade community have also expressed their interest in creating such an entity, based on their desire to remove complex environmental problems from the multilateral trade system. They stade that the trade organization is not adequately prepared to address this type of issues which, moreover, threaten to block further advances on the trade agenda.9 In contrast, WEO critics argue that trade/environment tensions will not be overcome by the mere creation of a new environmental global organization. Calestous Juma stresses that, rather than creating a new agency, it is necessary to effectively integrate environmental considerations into trade activities.10 Furthermore, Konrad von Molke states that environmental regimes have no problem in addressing the trade dimension of their work; it is the trade regime that has troubles. If so, then, it is the WTO that requires significant institutional changes and not the environmental regimes.11 WEO proposal outlined by John Whalley and Ben Zissimos offers a different set of arguments to justify the creation of a world environmental organization. Whalley and Zissimos state that the central problem in addressing global environmental issues is the relative lack of internalization of cross border and global externalities. Present global environmental regimes, with few exceptions, fail to internalize these environmental externalities and are not designed for that purpose. Accordingly, their WEO proposal seeks to remove impediments to bargaining between States (and non-governmental actors as well) on the global environment, and to facilitate cross-country deals on environmental issues with the aim of raising environmental quality.12 In this perspective, the WEO is seen basically as a deal-brokering entity. Environmental cost internalization is a policy goal worth pursuing, which would facilitate higher levels of integration between environment and development. Nevertheless, the proposal of a deal brokering international organization does not seem to be enough to solve sustainable development problems in Latin America. Under that framework, developed countries would fulfill mainly the role of funding sources, while developing countries would play a “sink” role, assuming commitments to protect specific environmental assets in exchange for financial payments. It is reasonable to think that, within this institutional framework, a WEO 8
UNEP, “International Environmental Governance: Report of the Executive Director”, paper presented at the first meeting of the Intergovernmental Group of Ministers on International Environmental Governance; New York, 18 April 2001, p. 143. 9 Dan Esty, “An Earthy effort”, in World Link, September/October 2000, pp. 14-15. 10 Calestous Juma, “The perils of centralizing global environmental governance”, in Environment, November 2000, pp. 44-45. 11 Konrad von Molke, “The Organization of the Impossible”, IIED working Papers, 2000, p.7. 12 “...Exchanges of commitments on forest cover, maintenance of coral reefs, species management, biodiversity protection and other environmental concessions in return for cash, policy change (trade policy changes, for instances) and other considerations could all fall under the bargaining umbrella of a WEO. If bargains were struck, the result would be improved environmental quality and transfers of resources for developmental purposes to poorer countries, who, in the main, are custodians of these assets.” (John Whalley and Ben Zissimos, “A bargaining approach to a World Environmental Organization”, September 2000, p. 2).
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agenda is most likely to be driven by developed country interests, given the fact that they would be the suppliers of the financial resources needed for the deals. Peter Newell clearly points out that such organization would tend to focus on a quite narrow range of environmental problems, mainly on those of interest of the countries with economic resources to engage in deal brokering and not necessarily on those of interest of the Latin American countries.13 Furthermore, issues that are primarily responsibility of developed countries, such as changes of consumption patterns, would be difficultly undertaken by this new entity. It is arguable, then, whether a WEO as proposed, would encourage further integration of environment and development, when addressing issues that matter most to the North. Alternatively, it is argued that developing new and stronger institutional mechanisms, rather than a new body, could be more convenient to strength environment and development integration. From a legal perspective, this approach implies developing legal norms requiring or setting specific standards, procedures or actions to integrate environment and development concerns into law and policy making. It is fair to say that efforts have been made between environmental and development institutions to cooperate and/or to incorporate the two concepts into policy making. The UNCED generated a process towards permeating the policies of international institutions with the sustainable development principles and, while far from perfect, there have been some advances towards the greening of development projects and international lending institutions,14 as well as a greater consciousness of development needs in the implementation of environmental projects. Arguably a lot more has to be done; there is a need to further operationalize environment and development integration, and to develop new techniques towards this goal. In this regard, there are different proposals aiming to develop common environmental guidelines and to strengthen processes for integrating sustainable development considerations into the operations and policies of existing international financial, trade, technical and development organizations.15 Beyond these different alternatives and arguments, any of the international institutional reforms proposed to strengthen international environmental governance will encounter the same obstacles to further improve an integration approach. Privileging some goals over others and institutional power imbalance, are some of the main difficulties to integrate environment and development policies. As Newell strongly points out, environmental regimes fail to deliver the expected outcomes mainly because they address problems caused by powerful
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Peter Newell, “A World Environment Organisation: Critical perspectives”, p. 3. For a detailed analysis of the Latin America environmental agenda see Claudia Schatan, “An Overview of Environmental Issues in Latin America: Precedents for a WEO discussion”, 2000. 14 Just as an example, it is worth mentioning that in 1980, a group of multilateral development and finance institutions signed a declaration on policies and procedures for ensuring environmental soundness and viability in their operations. Thus the Committee of International Development Institutions on the Environment (CIDIE) was created to review this Declaration of Environmental Policies and Procedures in Relation to Economic Development by UNDP, UNEP and the World Bank, among others, to have environmental assessments and evaluations done on their development projects. Gradually CIDIE expanded to 17 members and helped contribute to the incorporation of environmental considerations into the policies and development activities of its member institutions. 15 See UNEP, “International Environmental Governance...”, op. cit., p.143.
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and influential sectors of society.16 The classical vision of economic growth, without fully integrating social and environmental aspects, continues to be the driving force of development strategies and policies, and this pattern is reproduced throughout Latin America as well as internationally. Furthermore, the increasing global nature of the economy makes it more difficult for governments to regulate market forces and to integrate environment and development concerns. In this scenario, one of the keys to sustainable development is public participation. Strengthening environment and development integration, at any level, requires a more open and participatory decision making process. Developing public participation implies the democratization of power. Empowering social actors to participate in policy decision making, to monitor compliance with environmental and social regulations, to require their enforcement, etc., is a way to redress unequal distribution of environmental and social costs and benefits, strengthening the presence of underrepresented interest and concerns within the decision making process. This does not mean that public participation, by itself, guarantees sustainable development. As Michael Anderson states, it is entirely possible that a participatory and accountable policy may opt for short-term goals rather than a long-term environmental and social sustainability.17 Nevertheless, experience shows that strong public participation frequently has been one of the driving forces of sustainability concerns in the public agenda at national and international level. The point is that as far as political processes and institutions open up to civil society participation and scrutiny, there will be more possibilities of effectively integrating environment and development.
3. -Public Participation and International Governance Public participation, and in particular NGOs, are very important factors in the development of environmental policy and institutions, both at the national and international levels.18 Among many other roles, NGOs act as mobilizers of public opinion, publicizing the nature and seriousness of environmental problems, shifting public and political attitudes towards environmental issues and placing them high on the national and international political agenda; as advocates of view points and interests that governments and international organizations do not fully take into account; as watchdogs, monitoring the implementation and enforcement of 16
Peter Newell, op. cit., p.5. Michael Anderson, “Human Rights Approaches to Environmental Protection: An Overview”, ed. By Alan Boyle and Michael Anderson; Clarendon Press; Oxford 1996, pp. 9-10. 18 The term non-governmental organization encompasses a diversity of actors, although there is considerable debate over what groups should be considered an NGO. According to some interpretations, the term applies to any group outside government, and therefore includes business groups, professional associations, labour unions, churches, scientific communities, interest groups and so on. From a different perspective, the term NGO encompasses a diversity of associative forms that share certain common characteristics: non-governmental, non-profit, volunteer association and with self governing mechanisms. These criteria differentiate civil society organizations from those belonging to the political and economic system, such as political parties and business. (González Bombal, I. y Krotsch, P., “IV Encuentro Iberoamericano del Tercer Sector: Hacia Un Nuevo Contrato Social para el Siglo XXI. Reflexiones Finales.” Buenos Aires, 1998, p. 16). For the purpose of this article, the term NGO is applied to any organization that fulfills the characteristics aforementioned. 17
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environmental obligations; as policy analysts and expert advisors to governments and international organizations; and as bridges between local and global politics, supporting the local implementation of international environmental agreements.19 However, it is important to stress that the phenomenon of public participation in international politics is not exclusive to the environmental realm. In several social welfare areas, such as human rights, disarmament and peace issues, public participation has played a key role in influencing public opinion and placing these issues on political agendas. In any case, the attention placed on public participation in the international environmental field shows the growing role of civil society actors in international issues and in international governance schemes. 20 There are several reasons to explain why NGOs are more active in the international arena now than they were before. Steve Charnovitz points out some of them.21 First, the integration of the world economy and the increasing recognition of global problems have led to more international negotiations affecting domestic policy. Second, the end of the Cold War also marked the end of the superpower polarization in world politics. Third, the emergence of a worldwide media provides opportunities for NGOs to publicize their views. Furthermore, new communications tools, particularly the Internet, have greatly increased their potentials to network globally and locally, to make new alliances to exchange information, etc. Fourth, the spread of democratic norms and values has raised expectations about transparency of international fora and the opportunities they provide for public participation, even though broad democratic rights are not effectively recognize at the international level yet. In Latin America, public participation in sustainable development issues has also greatly increased in the last two decades, together with the restoration of democracy and a higher citizen acknowledgement of environmental problems. 19
Andrew Hurrel and Benedict Kingbury, “The International Politics of the Environment”, Clarendon Press, Oxford, 1992, p.20; S. Charnovitz, “Two Centuries of Participation: NGOs and International Governance”, Michigan Journal of International Law, Vol. 18, No. 2, Winter 1997, pp 271-274; Dan Esty, “Non-governmental Organizations at the World Trade Organization: Cooperation, Competition or Exclusion”, Journal of International Economic Law 1 (1998); pp. 123-147; Philippe Sands, “Principles of international environmental law. Frameworks, standards and implementations”, Manchester University Press, Manchester, 1995. 20 The notion of a “global civil society” is not an easy one and it is not the purpose of this paper to get into the details (and the richness) of that debate. Nevertheless, it is clear the existence of networks of relationships among different non-governmental actors that take place in the international scenario. Taking this argument several steps forward, Paul Wapner argues that “..although the historicity of civil society is important to keep in mind, the concept of a global society is nonetheless attractive when it becomes apparent that the same type of space as well as similar affections and relations that define civil society at the domestic level are prevalent at the global one. Human interaction throughout the world is not contained within the territorial borders of the state. People communicate, collaborate, and build relationships across national boundaries. In doing so, they establish modes of interaction and generate affiliations that constitute rich transnational networks. The interpenetration of markets, the intermeshing of symbolic meaning systems, and the propagation ot transnational collective endeavors establish structures for human interaction and affection that operates above the individual, below the state, and across state boundaries. Although perhaps less coherent than domestic economic, social and cultural networks, sustained cross-boundary practices generate a domain that exist unto itself. Due to such conceptual similarities, it therefore makes analytical sense to understand this domain as global civil society...”. (Paul Wapner, “Governance in Global Civil Society” in Oran Young (ed.) Global Governance. Drawing Insights from the Environmental Experience. MIT Press, 1997, pp.72-73). 21 S. Charnovitz, op. cit., pp.265-266.
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Nevertheless, environmental concerns in Latin America have distinguishing characteristics that respond to the specific political, social, economic and ecological context of the region. Undoubtedly, these contexts impact on the Latin American NGOs’ agenda. One particular feature of the environmentalist concerns in the region has been the emphasis placed on the importance of democratic values and institutions. Together with poverty and the unequal distribution of wealth, the weakness of democratic institutions is perceived as one of the principal obstacles for sustainable development of the region.22 Accordingly, environmental NGOs have pressed for different mechanism of citizen participation and control that encompass not only the field of environmental policy but public policy as a whole.23 Nevertheless, there are several political, social, economic and cultural obstacles limiting public participation in the region; weak institutional capacities of governmental and non-governmental actors engaged in sustainable development issues and fragile public participation legal frameworks are among the most important.24 The challenge then is how to further strengthen public participation. Using categories developed by Cohen and Arato in their analysis of civil society, we can highlight at least two components of public participation.25 On the one hand, there is an “active” component that comprises all of the acts and actions of participation; it is the “doing” of civil society - holding workshops, raising consciousness in public opinion, or any other form of social action. On the other hand, there is an “institutional” component that refers to all institutions that recognize and guarantee the rights of the citizens, such as the right to organize, to access public information, etc. It is necessary to develop both components to build up public participation. A high level of social movement, the ability of certain social organizations to strongly influence public agendas, etc., are not sufficient indicators of the strength of public participation. Participation needs institutional and legal support. Participation becomes institutionalized once rights are recognized with legal basis and not when they depend on the will of government officials. Principle 10 of the Río Declaration provides some of the basic public participation institutional components of any governance model. It states that to advance public participation, people should have access to public information, to decision-making processes and to judicial and administrative proceedings:
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“..Mientras subsistan desviaciones como el autoritarismo y la incapacidad para interpretar las señales que emita el cuerpo social; haya una deficiente representación; no exista garantía plena del Estado de Derecho; no se combata decididamente la corrupción y otros delitos.... será muy difícil adelantar acciones efectivas para hacer viable un desarrollo sustentable [en América Latina]...”. Latin American and Caribbean Commission on Development and Environment, op. cit., p. 85. 23 Such is the case, for example, of the developing of public hearings in Argentina, which was a public participation mechanism “introduced”, in a way, by environmentalism. In 1984, the Senate carried out, with the advice of environmental NGOs, the first public hearing in the national congress to determine the competence of the upper house to deal with water pollution issues in the Reconquista River. Similarly, environmental judicial cases have fostered most of the legal and judicial developing regarding access to justice in public interest cases in Argentina. (Poder Ciudadano, “Nuevas herramientas para la acción ciudadana en defensa de los derechos del medio ambiente”, Programa de Fiscalización y Control Ciudadano, Buenos Aires, 1997). 24 UNEP, op. cit., pp 85-88. 25 J. Cohen and A. Arato, “Civil Society and Political Theory”, Cambridge-MIT Press, 1992, pp. i-xi.
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[E]nvironmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided. Although Principle 10 is not binding and refers mainly to the national level, it explicitly states that the most appropriate way to manage environmental issues is with the participation of all interested stakeholders “at the relevant level�. Therefore in cases where environmental issues cannot be adequately addressed by national governments acting on their own and where international cooperation is required, this principle provides a sort of benchmark to assess the public participation standards of specific international regimes. As from this basic model stated in the Rio Declaration (namely access to information, access to decision-making and access to judicial and administrative proceedings) the question is whether, and how, the creation a WEO might strengthen public participation in international sustainable development governance.
3.1. - Public Access to Environmental Information Improving the availability of information on the state of the environment and on activities that have damaging effects are well-established objectives of international environmental policy and law. Information is a main input for the development, implementation and enforcement of international environmental standards; there is an extensive body of international environmental rules on this subject, establishing several different but related techniques and mechanisms on the provision and dissemination of information, such as information exchanges, reporting, consultation, notification of emergency situations, and others. 26 Nowadays, these well established international legal obligations to inform are being supplemented by a second wave of rules that seeks to increase the availability of information, by recognizing the right of persons to access public environmental information. Access to information is an essential element for effective public participation in decision-making and for the effective monitoring of States´ compliance with their international environmental obligations. The right of access to information on the environment is a relatively recent development in international law. Philippe Sands points out that the EC 26
For a detailed international legal analyses of these techniques and mechanisms, see P. Sands, op. cit.; pp. 616-620.
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Environmental Information Directive (1990) was the first international instrument to create a person’s right of access to environmental information.27 Later, the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention) also recognized that right.28 Other treaties, such as the 1992 Climate Change Convention, do not include a public right of access to information, although they require their State parties to make reported information publicly available.29 The Cartagena Protocol on Biosafety does not explicitly recognize a citizen right of access either, but it states that the parties should endeavor to ensure that public awareness and education encompass access to information on imported living modified organisms identified according with the Protocol.30 Furthermore, the State parties should inform its public about the means to access to the Biosafety Clearing House.31 Also there have been important developments at regional levels. On 25th June 1998 in the Danish city of Aarhus, the States members of the United Nations Economic Commission for Europe adopted the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.32 This Convention represents a landmark in the development of international law on the public participation issue; it contains innovative provisions on the rights and obligations of governments regarding civil society access to timely environmental information, and requirements for the collection and dissemination of this data to the general public. In the Americas, the Organization of American States has adopted the InterAmerican Strategy for the Promotion of Public Participation in Decision Making for Sustainable Development (IPS).33 The Strategy states basic principles, goals and policy recommendations aiming to promote and strengthen public participation in sustainable development decision making; access to information, in particular, is a main issue throughout the Strategy. Even though, the IPS is not a binding legal instrument, it clearly represents a step forward in the advancement of public participation issues in the political agenda of the Americas. 27
Council Directive 90/EEC, OJ L 158, 23 June 1990, 56. The Directive is aimed to ensure free person access to, and dissemination of, environmental information held by public authorities throughout the EU; accordingly, it set out the basic terms and conditions on which information should be made available. Sands also mentioned a couple of earlier treaties, such as the 1985 Occupational Health Services Convention and the 1986 Asbestos Convention, which sought to ensure that hazardous substance information was available to workers, even though they did not create a right of access to information. 28 Art. 9 of the OSPAR Convention. 29 Art. 12(9) and (10) of the Climate Change Convention. 30 Article 23 of the Cartagena Protocol on Biosafety. The Protocol was adopted on 29 January 2000 in Montreal (Canada). It will enter into force after 50 countries have ratified it. 31 According to the Protocol, the Biosafety Clearing House has several functions, including the exchange of scientific, environmental and legal information on living modified organisms, as well as a making that information available. See article 20 of the Protocol. 32 The Aarhus Convention was signed by 40 countries. 16 countries are required to ratify, approve or accept of accede to the Convention in order to bring about the entry into force; the current expectation is that entry into force will take place during 2001. 33 The Inter-American Council approved the IPS for Integral Development (CIDI) of the OAS in April 2000. The OAS General Secretariat has formulated this Strategy in response to a mandate from the Heads of State and Governments of the hemisphere gathered in the 1996 Summit of the Americas held in Santa Cruz de la Sierra, Bolivia. The IPS is the first concrete result stemming from the Santa Cruz Summit.
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Despite the importance of these international and regional law developments, analysts point out a number of issues in order to improve public access to information and strengthen international environmental governance.34 First, international cooperation to gather environmental information should be further enhanced. As the Malmo Ministerial Declaration states, science provides the basis for environmental policy decision-making. There is a need for intensified research on environmental issues, increased scientific cooperation, as well as improved avenues of communications between the scientific community, decisionmakers and other stakeholders.35 In this regard, it is argued that experiences like the Intergovernmental Panel on Climate Change (IPCC) need to be developed for other areas of international environmental policy.36 Second, compliance with basic reporting requirements established by international environmental treaties must be improved. Experience shows that States reporting on the fulfillment of their commitments is an indispensable tool for monitoring international compliance. However, producing and collecting the necessary information to fulfill international reporting obligations can place heavy burdens on already overloaded national environmental agencies, particularly in the developing world. The availability of international financial resources for reporting (as has been the case of the Climate Change and the Biodiversity regimes) along with technical assistance and capacity building can improve compliance in this field. WEO advocates argue that a global organization would be in a better position to provide this assistance and facilitate reporting requirements. This could be done, for example, by setting a common comprehensive reporting system of the state of the environment and on the state of implementations of international environmental obligations in each country.37 However, it is debatable whether this task of harmonizing reporting systems undoubtedly requires the creation of a world environmental organization or could be carried out through improved coordination of existing bodies. Third, the public right of access to environmental information must be further integrated into international environmental regimes. The establishment of a WEO might provide the opportunity to explicitly recognize this right in the constitutive legal instrument of the organization, extending its application to the issue-based 34
See P. Sands, op. cit., pp. 626-627; and the report of the German Advisory Council on Global Change, “World in Transition: New Structures for Global Environmental Policy. Summary for policymakers”, (09/2000), pp.7-9, at http://www.wbgu.de. 35 Art. 17 of the Malmo Ministerial Declaration. 36 The Intergovernmental Panel on Climate Change (IPCC) was established in 1988 by UNEP and WMO; the Panel has the mandate to assess the state of existing knowledge about the climate system and climate change; the environmental, economic, and social impacts of climate change; and the possible response strategies. Its First Assessment Report released in 1990, confirmed the scientific evidence for climate change. It had a powerful effect on both policy-makers and the general public and provided the basis for negotiations on the Climate Change Convention. In December 1995, The IPCC adopted its Second Assessment Report, which was written and reviewed by some 2,000 scientists and experts worldwide. Its Third Assessment Report is expected to be published in 2001. Furthermore, the IPCC has produced a series of technical papers and special reports. 37 F. Biermann, “The Case for a World Environmental Organization”, Environment; November 2000; vol. 42; n. 9; p.26 and p. 28.
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environmental regimes encompassed by the new entity. Moreover, more detailed legal developments will be needed to ensure citizen access to timely environmental information. Furthermore, citizen’s right of access to information should be extended to encompass any information of public interest, not only that related to the environment. Information is an essential element for effective participation in any field of public policy. Currently, trade, intellectual property and investment areas, with their often closed-door policies, are increasingly becoming the true battlegrounds for many sustainable development issues. Policy integration requires that public information must be available and accessible to any stakeholder. Greater attention needs to be given to the right to access information, in international economic, as well as environmental, regimes.
3.2. - Public Participation in International Policy Making There are several different institutional arrangements for NGO participation in international policy making. In fact, non-governmental actors have been able to participate as observers in the activities of many international organizations for a long time. Such participatory rights are usually granted in the constitutive treaty of organizations, by its rules of procedure or simply by practice. Within the UN system, various bodies and agencies provide different accreditation schemes for NGO participation. Generally, these schemes allow NGOs to participate as observers in public organization meetings, to make oral statements, to submit written statements, and in a few cases, even to propose items for agenda discussion.38 International environmental regimes have been at the forefront of institutional development favoring public participation in international policy-making. The 1992 OSPAR Convention is considered to be the first international treaty to include a provision for observers that does not distinguish between States, international organizations and NGOs in relation to the conditions granting observer status.39 Similarly, the Convention on Biological Diversity (CBD) states no distinction between observer requirements for governmental and non-governmental entities.40 According to the rules of procedure of the Biodiversity regime, observer 38
Perhaps the main forum of formal NGO participation in the UN system is the Economic and Social Council (ECOSOC) and its subsidiary bodies through their consultative status. According to Article 71 of the UN Chapter, ECOSOC is entitled to make “suitable arrangements for consultations" with NGOs. To that aim, ECOSOC recognizes three categories of consultative status (General, Special and Roster status) according to different levels of involvement and with different rights and obligations in each case. (The International Centre for Trade and Sustainable Development –ICTSD-, “Accreditation schemes and other arrangements for public participation in international fora. A contribution to the debate on WTO and transparency”, Geneva, November 1999, pp 7-8). 39 P. Sands, op. cit., pp. 95-96 40 Article 23(5) of the Convention on Biological Diversity states that “...[a]ny body or agency, whether governmental or non-governmental, qualified in fields relating to conservation and sustainable use of biological diversity, which has informed the Secretariat of its wish to be represented as an observer at a meeting of the Conferences of the Parties, may be admitted unless at least 1/3 of the Parties present object.”.
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organizations may, upon invitation of the President, participate in the proceedings of a meeting, make oral interventions and distribute documents, although they cannot propose items for the agenda. All CBD documents are public; therefore NGOs enjoy the same access to them as the State parties.41 Similar rules of procedures are provided in several multilateral environmental regimes, including the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Ozone regime. Also worth highlighting is the 1992 UN Conference on Environment and Development and its preparatory process as an example of NGO involvement in multilateral environmental negotiations. The simplified UNCED accreditation rules and procedures authorized more than 1400 NGOs, including trade unions, local government representatives, indigenous people and industry, to participate. Furthermore, financial resources were available by the Secretariat to enable representatives of relevant NGOs from developing countries to participate in the preparatory process and in the Conference itself. Accredited NGOs could make written presentations, address plenary meetings of the Preparatory Committee and the Working Groups and had access to official documents.42 Other international organizations have established formal non-governmental advisory committees.43 These schemes provide opportunities for regular consultations with NGOs as well as possibilities for NGOs to make contributions and to influence specific issues. Nevertheless, establishing this type of advisory committee has its challenges; particularly in relation to which NGOs should be included, and issues of legitimacy and representativeness of the institution’s members. The above are just some of the various types of institutional arrangements allowing NGOs to participate in on-going international policy making, as well as in the preparation and negotiation of specific treaties and other international legal instruments. Compared to other areas of international relations, non-governmental actors play a significant role in international environmental policy making and, as mentioned earlier, environmental regimes have been at the forefront of some of the legal developments in this field. Clearly, for any WEO proposal to be politically feasible for NGOs, its institutional approach to public participation would have to be built starting from these records. 41
“In practice, the strict differentiation between formal and informal discussions –which has been observed in some international conventions- has not been strictly applied in the CBD. As a consequence, observers have enjoyed access to meetings of almost all groups except the budget group.” (ICTSD, op. cit., p. 10). 42 ICTSD, op. cit., pp. 10-11. 43 For example, the Joint Public Advisory Committee of the North American Commission for Environmental Cooperation. The JPAC can provide technical and scientific advice or other information to the governing bodies of the North American Agreement for Environmental Co-operation. The Committee consists of five members from each NAFTA country, including NGOs, business and academics. The members of the JPAC are appointed by the State parties, they are independent and do not receive instructions from governments. Another case worth mentioning is the NGO–World Bank Committee. The Committee provides a formal arena for policy dialogues on specific issues raised either by the Bank or the NGOs. It is composed by Bank managers and 15 civil society representatives. The latter are selected by the NGO Working Group on the World Bank, a global forum of NGOs engaged in policy dialogue with the World Bank.
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Furthermore, as environmental considerations increasingly become a feature of international economic and social policies, and viceversa, it can be argued that some of the main challenges in strengthening public participation for sustainable development are faced, not so much in the environmental realm, but in other international fora. There are many calls for greater transparency and public participation in international economic regimes. The public reaction, such as was seen at the Seattle and Quebec demonstrations, can be partly attributed to the closed-door policy and lack of transparency -in these cases- of the WTO and the FFTA negotiation processes. Improving public participation and sustainable development policy integration will require significant organizational change in the international economic regimes, particularly in the trade regimes; challenges that go beyond the scope and mandate of any WEO proposal. Notwithstanding the aforementioned, there are a number of issues to address in order to improve public participation in international environmental policy making itself. How to ensure a meaningful NGO participation, especially from developing countries, is an important challenge that needs to be faced. In the past 20 years, there has been an explosion of the number of fora of international environmental law and policy; furthermore, the international agenda is becoming more complex as environmental topics are linked to trade, intellectual property, and other issues. This situation requires financial and human resources that NGOs, especially from Latin America and the rest of the developing world, find extremely difficult to acquire. Experience shows that even many developing country governments are incapable of participating fully and effectively in the international environmental law making process because they frequently lack sufficient financial and human resources. Consequently, international environmental negotiations, in general, tend to be driven by northern delegations with the financial resources and the scientific and legal expertise to follow the processes and shape them according to their interest.44 A similar situation occurred with civil society actors. Northern NGOs are generally better resourced and prepared than their southern counterpart to understand the complexity of international negotiations and to participate in them. As a result, developing NGOs perspectives and agendas tend to be underrepresented in these international scenarios. WEO advocates argue that the relocation of the main elements of the existing set of international environmental regimes to a single city would greatly facilitate effective participation of developing countries governments and NGOs in general.45 44
See Peter Newell, op. cit., p. 15. “A world environmental organization at one specific seat –most likely in Africa- would allow smaller developing countries to build up specialized environmental embassies with highly qualified staff able to follow the various complicated negotiations. The same holds for non governmental organizations, which could participate in global negotiations at lower cost.” (F. Biermann, op. cit., p. 28). Dan Esty outlines that centralizing geographically the core international environmental programs would greatly enhance efficiency and permit a range of synergies. Furthermore, “One-stop shopping would be a particular boon to developing countries, environmental bodies of which are often thinly, staffed and over-stretched as they try to keep up with the vast sweep of meetings, negotiations and activities spanning the planet.. “ (D. Esty, op. cit., p.15).
45
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A world environmental organization at one specific place might allow individual NGOs or networks to build up offices to follow various on-going policy negotiations, to gather and distribute information, etc, while reducing participation costs.46 In this respect, WEO proposals seem to represent a clear advance compared to the current institutional scenario. Notwithstanding these potential benefits of a geographically centralized world environmental organization, building up southern NGOs capacities to meaningfully participate in international negotiations will still be an issue. This point raises the question of the funding of public participation and the resources that the international community assigns to that aim. Nowadays, few governments regularly fund NGO participation.47 In some cases, international organizations provide financial resources to enable representatives of relevant NGOs to participate in international conferences, as it was in the case of the UNCED process; some United Nations agencies have certain programs in place for funding NGO participation, such as UNDP with the Civil Society Organizations and Participation Program (CSOPP). However, the available funding is scarce. Clearly, at least in the case of NGOs from Latin America and the rest of the developing world, some type of funding system must be designed at the international level to collaborate in supporting public participation costs, which should include not only the mere attendance to international meetings, but mainly building up civil society capacities. This also raises the issue of which NGOs receive the funding. A similar question is raised when assessing NGOs to grant observer status, or selecting NGOs to participate as advisory committee members. In the end, all of these related problems are based on the difficulty of establishing standards of legitimacy and representativeness with regards to civil society organizations.48 This is an issue that any WEO proposal will have to address when defining its institutional approach to public participation. There are, already, international examples of different methods and criteria for the assessment and selection of NGOs. In some cases, member States individually select the NGOs (such as the JPAC - the Joint Public Advisory Committee of the North American Commission for Environmental Cooperation), or they make the decision based on recommendations of the secretariat (e.g. the Biodiversity regime and most of the international environmental regimes) or establish special committees (e.g. the ECOSOC Committee on NGOs which is composed by States). In other cases, NGOs themselves establish and carry out their own selection process (e.g. NGO-World Bank Committee). Furthermore, most of these Another issue is the specific location of a potential WEO; this would surely be a contentious issue, as is already the case with UNEP headquarters. 46 An interesting case to take into account is the International Centre for Trade and Sustainable Development (ICSTD) founded in 1996 by leading NGOs working on environment, developments and trade issues from all over the world. Located in Geneva, minutes away form the WTO headquarters, a main objective of the ICSTD is to contribute to a better access of interested NGOs to the multilateral trading system and to promote public participation in the international trade decision-making. 47 It is worth mentioning that, in some cases, government funding may raise concerns about NGOs independence; in fact, there are some NGOs that do not accept funding from governments. 48 German Advisory Council on Global Change (WBGU), op. cit., pp.9-10.
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schemes set certain criteria for the selection process, such as field of expertise, representativeness, democratic structure and accountability, geographical distribution, and others.49 Clearly, the type of selection process depends on the issue for which the process has been designed, whether it be funding, granting observer status or becoming a member of an advisory committee; however, as a general statement, NGOs selection process should be formalized (which is not the same as more complex or bureaucratic) and less discretional, ensuring review instances when possible. Following these criteria, any proposal of institutional reform - whether a WEO or another- will enhance the transparency of these processes, as well as strengthen the legitimacy of the NGOs involved. Another main challenge is how to legally strengthen NGOs role in international environmental policy making. Visionary proposals for full NGO participation in the decision-making process –with voting rights like those enjoyed by workers unions and employers associations in the ILO- do not seem politically feasible for the near future.50 Public international law making is still in the realm of sovereign States. Nevertheless, there are other more modest steps that can be taken to further integrate NGOs in these processes; establishing non governmental advisory committees might be a feasible strategy that either international environmental regimes individually, or a WEO could carry out. A global mechanism of such nature could play an important role identifying critical issues and priorities for law making. In this regard, the German Advisory Council on Global Change (WBGU) suggests the creation of an “Earth Commission”; a sort of international council for sustainable development whose main functions would be to identify and evaluate global change problems, and provide guidance for international policy making.51 Moreover, there is a clear need to develop proper and more formalized arrangements for public participation, while improving the international legal status of NGOs. Observer rights should be strengthened, ensuring that NGO inputs and contributions are effectively part of the international environmental decision making process. Again, these advances could be developed either by a global environmental entity or by issue-based international environmental regimes.
49
ICSTD, op. cit., pp. 20-24. The ILO is, perhaps, the most inclusive approach to non-governmental actors’ participation within the UN system. The ILO has a unique structure with workers and employers participating as equal partners with government in the work of its governing bodies. Each member State sends four delegates (two from the government, one from employers and one from workers). Employer and worker delegates cannot be government officials and they vote according to instructions received from their constituents organizations; thus they may vote against their own governments. The tripartism of the ILO is viewed by many analysts as the key to its success and survival as the only remaining institution from the League of Nations (S. Charnovitz, op. cit., pp. 218-219 and 283). 51 According to the WBGU proposal, this commission, composed by 10-15 international leading figures appointed by the UN General Assembly, should report to the General Secretary of the UN. 50
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3.3. - Public Participation in International Monitoring, Compliance, and Enforcement Procedures Particularly important for international environmental governance are those institutional arrangements allowing NGO participation in different international monitoring compliance and enforcement procedures. Ensuring State compliance with their international environmental obligations has become a main issue in the environmental agenda. With regards to mechanisms to monitor compliance, international human rights law provides useful lessons that can be applied to the environmental field. The UN Committee on Economic, Social and Cultural rights is entrusted with monitoring State compliance with the provisions of the Covenant on Economic, Social and Cultural Rights. State parties have to submit periodic reports to the Committee explaining the measures taken to implement the Covenant. The Committee has a formal procedure, allowing civil society organizations to express their views orally or to submit written statements regarding State reports and how the Covenant is being implemented. In the environmental field, this type of public participation arrangement may be considered to be in an emerging stage of development. The Commission on Sustainable Development has the mandate to “receive and analyze relevant input from competent non-governmental organizations, including the scientific and private sector, in the context of the overall implementation of Agenda 21�.52 Even though this provision is not enough to entitle NGOs with the right to provide reports, it clearly envisages contributions from non governmental actors in the Commission’s work, which might include information related to the implementation of Agenda 21 at the domestic level and opinions on State implementation performances.53 It is worth pointing out that international environmental negotiations have demonstrated how sensitive many States remain to attempts of external scrutiny of their performance in meeting treaty obligations. The negotiations to develop compliance assessment mechanisms under the Framework Convention on Climate Change and, later under the Kyoto Protocol, faced a lot of difficulties mainly for that reason. This reluctance is even higher when it comes to enforcement. When a State fails to comply with its international environmental obligations, one of the first legal questions to arise is which international actor may enforce that obligation internationally. In a legal context, international enforcement is understood as the right to take measures to ensure the fulfillment of international legal obligations or to obtain a ruling by an appropriate international court, tribunal
52 53
United Nations General Assembly Res. 47/191 (1992), para. 3(h). P. Sands, op. cit., p. 605.
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or other body that obligations are not being fulfilled. This aspect of enforcement is really about the legal standing required to bring about international claims.54 As the principal subjects of public international law, States play the primary role in enforcing international environmental rules. Nevertheless, experience shows that States are generally unwilling to bring international legal claims and enforce obligations towards the protection of the environment, in particular with global commons. Perhaps one of the clearest examples of this is the Chernobyl accident in 1996. No State sought to enforce compliance by the former USSR with its international legal obligations resulting from the consequences of the nuclear accident.55 There are many reasons for this State “unwillingness”, mainly the possibility to establish a legal precedent that could subsequently apply to the enforcing State. This highlights the need for an increased role for international organizations and NGOs in enforcement issues. International organizations play an important role in developing international environmental law, however their enforcement functions have traditionally been very limited. Generally, it is pointed out that States, based on sovereignty arguments, are reluctant to transfer too much enforcement power to international organizations, including treaty secretariats.56 In fact, most of the institutions established by international environmental agreements do not have formal enforcement functions, although there are some cases showing that such reluctance could be overcome.57 It might be time, then, to seriously assess the feasibility of different proposals to create a “global ombudsman”. Konrad von Molke clearly states that there exists an international environmental interest that is different from the mere sum of national environmental interest; yet there is no way to articulate this international interest effectively in a governance system based on nation States alone. He adds that it might be appropriate to create a small office, within the UN or without, to act as global spokesperson for the environment.58 Recently, the IUCN and the Earth Council created the International Ombudsman Centre for the Environment and
54
P. Sands, op. cit., p. 148. For a detailed legal analyses of enforcement issues around the Chernobyl case, see P. Sands, op. cit., chapter 17, pp.642-4. 56 P. Sands, op. cit., p 154. 57 For example, the 1982 United Nations Convention on the Law of the Sea (art. 162) and the 1992 OSPAR Convention (art. 23) foresee certain enforcement powers to some of their institutions. 58 Konrad von Molke, op. cit., p. 7. Along the same lines, Christopher Stone, the well-known advocate for expanding the legal boundaries of environmental protection, put forward the idea of creating a system of “global guardians” for defending global commons. The proposed “guardians” would have several roles; firstly, they could monitor compliance with international environmental obligations. Second, they could exercise legislative functions, recommending and stimulating the development or adjustment of environmental regimes. Third, they could appear as special counsels for underrepresented environmental victims in a variety of bilateral and multilateral disputes. Stones, takes this idea one step further and claims that “...international treaties should endow the guardians with standing to initiate legal and diplomatic actions on environment’s behalf in appropriate situations...” (Christopher Stone, “Defending the global commons” in P. Sands (ed.), “Greening International Law”, Earthscan; London 1993, pp-34-49). 55
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Development (OmCED), which represents a non governmental initiative aiming to provide some type of answer to this situation aforementioned.59 NGOs legally play a very limited enforcement role in international environmental issues. In international public law, non governmental actors (individuals alone or organized through associations) have, traditionally, no rights to participate in international judicial or quasi-judicial proceedings, to bring legal claims or submit amicus briefs. NGOs’ primary role is at the national level, through political means or by recourse to administrative or judicial procedures to enforce national measures adopted by States implementing their international environmental obligations.60 At the international level, NGOs play a role as watchdog, monitoring State’s compliance, but their ability to legally enforce international environmental obligations is extremely limited. Again, international human rights law presents a model for environmental law, in that it provides non governmental actors with the possibility for invoking the assistance of international institutions in cases of violation of international human rights standards. The Optional Protocol to the 1966 UN Covenant on Civil and Political Rights established an independent body of experts - the Human Rights Committee, which besides receiving and examining reports from States, can also investigate complaints brought by States and, more significantly, made by or on behalf of individuals. The regional human right systems have gone even further. The Inter American Convention on Human Rights also establishes a commission of independent experts -the Inter American Commission on Human Rights- that is entitled to receive and investigate petitions from any individual or NGO, alleging violations of the Convention by a State party. When a petition is declared admissible and no friendly settlements has been reached, the Commission may decide to take the case to the Inter-American Court of Human Rights, in such a case, the petitioner is “represented” by the Commission.61 In the case of the European regime, after the reform of 1998, any individual or NGO claiming to be a victim of a human right violation, may submit directly to the European Court of Human Rights an application alleging a breach by one of the State parties of the European Convention on Human Rights.62 As Alan Boyle highlights, the multilateral environmental regimes have not created an enforcement system comparable to those of the human rights regimes.63 The enforcement mechanism established under the North American Agreement for Environmental Cooperation (NAAEC) might be one of the closest exceptions,
59
The OmCED was formally created on 5 July 2000 and functions under the legal auspices of the Earth Council. For more information visit: http://www.ecouncil.ac.cr/ecombud.htm 60 Sands, op. cit., p.158. 61 See articles 44, 48-51 and 62 of the Inter American Convention on Human Rights. 62 Article 34 Protocol No. 11 to the European Convention for the Protection of Human Rights and Fundamental Freedoms. 63 Alan Boyle, “The Role of International Human Right Law in the Protection of the Environment”, in A. Boyle and M. Anderson (ed.) “Human Rights Approaches to Environmental Protection”, Clarendon Press, Oxford, 1996, p. 47.
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although clearly weaker.64 Evidently there is a need to broaden the category of persons legally entitled to identify violations of international environmental rules and take measures to remedy them. It is well known the States’ reluctance to address this issue, although if the institutional reforms proposed by a WEO gain momentum in the international agenda, it might provide the opportunity to discuss this and other sensitive issues. Any WEO proposal seeking to really strengthen international enforcement of environmental law, will have to make advances in the empowerment of international organizations, NGOs and individuals at the international level. In doing so, they would make a significant contribution to international environmental governance.
4. - Conclusion It is clear that environmental problems, either global, regional or local, can not be treated in isolation; they are deeply linked to social and economic processes. From a Latin American perspective, the debate over the design of a new model of international environmental governance must be predicated on the need for sustainable development. Further integration of environmental, social and economic policies must be one of the challenges of the new model. However this is not an easy task. Despite some advances, economic growth continues to be a privileged goal over environmental and social concerns in Latin America and the rest of the world. In this context, public participation is one of the keys to better sustainable development governance at the international -as well as the national- level. Opening the political processes and institutions to the participation and monitoring of civil society, will strengthen the presence of underrepresented interests and concerns within the decision making process, enhancing the possibilities of environment and development integration and, overall, improving international governance. Whether the mere creation of a world environmental organization, per se, would provide any advance for the public participation agenda in the international scenario, remains uncertain. Perhaps the relocation of the core international environmental programs, secretariats, etc., to a single city is the clearest benefit for public participation arising from the establishment of a WEO. This is not a point of minor importance, on the contrary, as WEO advocates argue, it could greatly
64
The NAAEC establishes a mechanism to assess non-enforcement of national environmental laws within the NAFTA countries. Although only States are able to initiate complaints, NGOs or citizens from NAFTA countries can make submissions to the Secretariat alleging a failure by a State to enforce its environmental laws. The Secretariat may decide to request a response from the challenged State if it determines that the submission so merits. In light of the response, the Secretariat may be instructed by the NAAEC Council to prepare a “factual record� which may be made public by the Council. However, even in the case that the factual record sustains the complain that a State is not enforcing its environmental law, an Arbitral Panel could be only requested by a State party to the NAFTA. (ICSTD, op. cit., p. 17).
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facilitate, at least in terms of logistics, the effective participation of NGOs –as well as developing country governments- in international environmental negotiations. Throughout the paper, many of the most significant legal issues of an international agenda on public participation for sustainable development have been identified. One could rank those challenges into three main tasks. First, there is the need to further enhance the role of non-state actors in international environmental policy making. To that end, a number of appropriate measures to improve public participation legal frameworks can be carried out, such as developing more formalized public participation arrangements, strengthening NGOs observer status, etc. Furthermore, it is necessary to promote stronger civil society involvement from Latin America and the rest of the developing world in international environmental policy making; building up NGO capacities will contribute to that goal. Nevertheless, it is worth noting that some of the main challenges and obstacles to improve public participation for sustainable development are faced in international fora other than environmental conferences and meetings. As environmental policy is increasingly integrated with social and, mainly, economic policies, other international fora such as the WTO (and the FTAA negotiation process at the regional level) are becoming the scenarios for public participation on environment and development issues. It is in these regimes where significant institutional reforms are needed to strengthen public participation and improve policy integration. Second, full and effective participation can only occur when the information is available. Increasing the amount and quality of the information is as important as enhancing its dissemination and accessibility. The right of access to public information requires further development in international law and should encompass not only environmental information, but also any information of public interest. Again, the economic regimes, with their often closed-door policies, present the greatest challenge in this field. Finally, there is a need to strengthen the role of non-state actors in international environmental law compliance and enforcement. It is clear that there are political, economic and social reasons lying behind non-compliance -as well as behind other weaknesses of the international environmental regimes. It is also clear that legal developments alone are not sufficient to overcome them. However, as Sands rightly points out, law and institutions can make a difference. Allowing NGOs to participate in compliance monitoring procedures, enlarging the category of persons (to include international organizations, NGOs and individuals) as legally entitled to enforce international environmental rules, are measures that should be encouraged if States and other members of the international community are to be subjected to the type of pressures that will lead them to improve compliance with their international environmental obligations.65 65
P. Sands, op. cit., p. 178.
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Many of the public participation issues outlined above are very sensitive for many States and other members of the international community and, in certain cases, there is reluctance to make any significant advances. It can be argued that such resistance to change will exist independently of the international institutional scenarios in which these political discussions might take place, whether there be under the framework of a world environmental organization, or some other type of institutional arrangement. The question, in any case, seems to be whether there is sufficient political will to address these issues and provide alternatives to overcome them. For the institutional reforms proposed by a world environmental organization to not merely shuffle around bureaucracies, substantial changes in the international governance model, some of which have been outlined in this paper, need to be introduced. In some cases, integrating environment and development and improving public participation will require reforms that might go beyond the scope of an international organization with an environmental mandate, showing that there are other international fora and regimes that require significant institutional changes as well, in order to strengthen sustainable development. Still there are challenges that need to be broached. If the establishment of a WEO enhances the probability of ensuring citizen access to information, increasing public participation in international decision making, and improving NGOs access to compliance monitoring and enforcement procedures, then there are justifications -at least from a public participation agenda- for this new global environmental entity. If not, the creation of a WEO will be –as Konrad von Molke has pointed out- “..no more successful than rearranging the chairs on the Titanic..�.66
66
Konrad von Molke, op. cit., p.3.
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