Civil Society Participation and transparency at the GCF

Legal assistance paper

All reasonable efforts have been made to ensure the accuracy of this information at the time the advice was produced. However, the materials have been prepared for informational purposes only and may have been superseded by more recent developments. They do not constitute formal legal advice or create a lawyer- client relationship. To the extent permitted any liability is excluded. Those consulting the database may wish to contact LRI for clarifications and an updated analysis.

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Date produced: 01/12/2012

1. What do the Almaty Guidelines to the Aarhus Convention require the ratifying countries to support? What best practices developed under the Almaty Guidelines are relevant here? Which countries represented on the GCF Board have been particular champions in the work under the Almaty Guidelines?

2. Besides the Almaty Guidelines, are there other international legal standards or soft law norms that some or all of the Board members should take into account when determining their positions on these issues? Since the Almaty Guidelines apply only to European countries, are there agreements or norms that apply to developing country members of the Board?

3. What precedents are there in other peer institutions for robust rules procedures and mechanisms?

4. We anticipate that Egypt, South Africa, India and China will be particularly influential developing countries in the Board’s deliberations. What national laws or guidance do these countries have that promote transparency and public participation in environmental decision-making and/or more generally, particularly in international contexts? What best practices have these countries supported (or agreed to) in other institutions?

Summary

1. Many of the participation proposals for which you are seeking support are ones which have already been made in the context of SBI discussions on improving civil society participation in the UNFCCC framework. While observers haven’t yet been successful in getting these adopted in full, they have to some extent been taken into account in the SBI resolution of 2011. The challenge now is to implement the resolution in the participation processes of the bodies created under the UNFCCC framework, such as the GCF, as well as to build on the resolution in the light of practices outside the UNFCCC framework.

2. As will be explained below, support for your proposals can be found in a range of sources. These include Principle 10 of the Rio Declaration, the Rio +20 outcome document, the Aarhus Convention (which has adopted rules of procedure allowing for the kind of observer participation you are seeking) and the Almaty guidelines adopted under the Aarhus Convention. Finally, there are the provisions of the UNFCCC itself, along with an important SBI Resolution on civil society participation.

The Rio Declaration and Rio +20 outcome document are soft law (ie they provide guidance rather than being legally binding), but apply to all UNFCCC parties. The provisions of the Aarhus Convention are binding on its parties but these only number the countries of the Economic Commission for Europe (UNECE region). The provisions of the UNFCCC and SBI decisions are legally binding on all parties but have not yet resulted in adequate civil society participation.

3. Advice on institutional practices other than the above is beyond the scope of this note.

4. Likewise, reviewing national laws is a huge task and beyond the scope of this note. It is hoped that the information set out below will provide much of what you need but some sources of information on national laws are suggested at the end of this note.

5. For a legal analysis of the Aarhus Convention and Almaty Guidelines, please refer to http://www.justiceandenvironment.org/_files/file/2011%20CC%20PPIF.pdf

Advice

1. & 2. Legal Framework for Civil Society Participation at the International level

Principle 10 of the Rio Declaration

Along with the UNFCCC and two other conventions, the Rio Declaration was a key outcome of the original Earth Summit in Rio 1992; Principle 10 of this declaration has had a seminal role in emphasising the right of the public to be involved in environmental decision-making. It sets out that:

“Environmental issues are best handled with 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.”

As a part of a declaration, it is guidance or “soft law” and therefore doesn’t carry legally binding force in its own right. If they are referred to in a legally binding context sufficiently often, principles such as Principle 10 can become “hard” or legally binding law. Determining whether Principle 10 now has this status would require investigation, but it has in any case generated a number of legal frameworks to implement it (see below).

During Rio there were calls to give Principle 10 clear legally binding force through a global Principle 10 Convention. While this was not agreed to, there is language in the final outcome document giving UNEP a mandate to take these proposals forward by “exploring new mechanisms to promote transparency and the effective engagement of civil society” (para 88(h))

The outcome of Rio + 20 was a political declaration and therefore it doesn’t have legal force as such. However, it contains a number of references to Principle 10 that could be helpful in the context of promoting Principle 10 in UNFCCC processes, particularly as the UNFCCC is a Rio Convention (it was adopted at the original Earth summit in Rio, alongside the Declaration) and all the members of the UNFCCC will also have been represented at the Rio + 20 summit. Some of the key passages are set out below:

The preambular section of the document, “Our Common Vision” recognises the value of democracy, good governance and the rule of law.

In section C, “Engaging major stakeholders”, Paras 43, 44 and 45 contain helpful language:

Para 43 says “We underscore that broad public participation and access to information and judicial and administrative proceedings are essential to the promotion of sustainable development…In this regard we agree to work closely with Major groups and other stakeholders and encourage their active participation, as appropriate, in processes that contribute to decision making, planning and implementation of policies and programmes for sustainable development at all levels.”

In paragraph 44 countries “recognize that improved participation of civil society depends upon, inter alia, strengthening access to information, building civil society capacity as well as an enabling environment”.

Para 76 recognises that: “effective governance at local, sub-national, national, regional and global levels representing the voices and interests of all is critical for advancing sustainable development”.

It therefore resolves to strengthen the institutional framework for sustainable development, which will “enhance the participation and effective engagement of civil society and other relevant stakeholders in the relevant international fora and in this regard promote transparency and broad public participation and partnerships to implement sustainable development.”

All of the above, along with what is set out below, provides support for observer participation in the GCF in the way you have outlined. The full Rio + 20 outcome document text is in link: http://www.uncsd2012.org/thefuturewewant.html

The Aarhus Convention

The Aarhus Convention is currently the only legally binding articulation of Principle 10 at the supra-national level. Its provisions provide for rights of information, participation and access to justice for the public in relation to the environment. A list of parties can be found here. They are all currently from the European (UNECE) region, but there is a process for parties from outside the region to sign up.

Rule 7 of the rules of procedure stipulates that meetings must be open to members of the public, other than in exceptional circumstances.

Rule 5 (e) defines observers simply as “Relevant non-governmental organisations, qualified or having an interest in the fields to which the Convention relates.” This could be useful language to adopt for the definition of observers in the GCF.

Rule 6 (2) means that such observers are able to participate, although Rule 6 (3) means that they cannot vote. The practice under the  Convention has evolved in a variety of ways so that observers are able to ask for the floor, intervene on any item of the agenda, propose additions to the agenda, be part of drafting groups for proposals for text and propose text for decisions. Rule 19 requires the Chair to ensure the participation of observers.

http://www.unece.org/fileadmin/DAM/env/pp/documents/mop1/ece.mp.pp.2.add.2.e.pdf

Almaty guidelines

Article 3(7) of the Aarhus Convention requires each Party to promote the application of the principles of the Convention in international environmental decision-making processes and within the framework of international organizations in matters relating to the environment. Parties felt the need for guidance on the interpretation of these provisions and as a result the Almaty guidelines were prepared. These can be accessed via:

http://www.unece.org/fileadmin/DAM/env/documents/2005/pp/ece/ece.mp.pp.2005.2.add.5.e.pdf

Specific approaches in respect of particular fora have been developed in more detail in further discussions, originally in the taskforce on public participation in international fora and more recently in Aarhus working groups.

As a result of engagement by NGO representatives also working in the international climate negotiations, the Aarhus Working group provided guidance to its members on implementing the Almaty guidelines in the UNFCCC. This included recommending the types of approaches set out in the items bulleted in the LRI request. The recommendations it made are set out in the link below (the relevant pages are 9 to 14). The proposal for an EU Aarhus focal point during the negotiations mentioned in the report was actioned at the next COP, it hasn’t been used since.

http://www.unece.org/fileadmin/DAM/env/pp/wgp/ece_mp_pp_WG_1_2011_3_e.pdf

The issue of civil society participation in the UNFCCC is one that the Aarhus Secretariat continues to monitor; it was considered at the September 2012 working group of the Aarhus Convention and public participation problems in discussions concerning standing bodies were flagged.

Impact of Aarhus/Almaty obligations

As a result of their membership of the Aarhus Convention and guidance from the Aarhus Secretariat on how to comply with their Aarhus obligations in the UNFCCC, countries/blocs such as the EU, Switzerland and Norway have been particularly helpful in promoting Principle 10 rights in the UNFCCC and the kind of processes being proposed. However, these countries are of course only a small fraction of the countries involved in the climate negotiations.

UNFCCC

The importance of civil society participation is recognised in Article 4.1 (i) of the UNFCCC and in Article 6. Discussions on a work programme under Article 6 of the Convention are currently taking place and may produce helpful conclusions.

In 2010, the UNFCCC launched a consultation on ways to enhance the engagement of observer organisations. At this, civil society groups made proposals of the kind bulleted in this request. As well as the Aarhus countries mentioned above, Bolivia and Mexico were also very helpful in pushing the agenda forward. A good summary of the proposals made can be found at:

http://www.unece.org/fileadmin/DAM/env/pp/ppif/6meeting/SBI%20synthesis%20report%20on%20observer%20participation.pdf

After workshops, debate and discussion, the end resolution adopted by the SBI was as set out below:

http://unfccc.int/resource/docs/2011/sbi/eng/l19.pdf

Section E on page 3 is the key section that relates to observer organisations.

It highlights the importance of the need to engage a broad range of stakeholders (15) and the fundamental value of effective participation by observers (16) It encourages chairs of workshops and expert meetings to invite observer participation (21) and para 23 sets out that:

“The SBI agreed that the existing means of engagement of observer organizations could be further enhanced, in the spirit of fostering openness, transparency and inclusiveness through:

(a) Inviting the presiding officers of various bodies, as relevant, subject to the

availability of funding, time and space, to:

(i) Seek opportunities for observer organizations to make interventions”

It is worth reading in full as it sets out a range of ways for improving participation, including increased use of interventions and webcasts. It is worth noting that it refers to the “presiding officers of various bodies, as relevant…” which would indicate that these provisions are intended to relate to all UNFCCC bodies, including the GCF.

3. Other Fora

I do not have the capacity to carry out the extensive research requested on this but would flag that the CAN participation group have produced a very good note on mechanisms that provide good models in other fora. I have personally been told by colleagues that the CBD, Food Security Committee of the FAO and UNEP Governing Council provide good examples.

4. National Laws

I do not have particular knowledge of this area, nor do I have the capacity to carry out the extensive research that is being requested here but would suggest The Access Initiative (TAI) and Article 19 sites as sources of information on this.

http://www.accessinitiative.org

http://www.article19.org