Tuesday, 29 May 2012

Why it makes no sense for Australia to be a spoiler in Rio - by Don Anton

Why it makes no sense for Australia to be a spoiler in Rio
Donald K Anton
May 7, 2012

Rio+20 is an opportunity for us to re-establish our environmental credentials, DONALD K. ANTON writes
Negotiations are proceeding apace in New York in preparation for the global environmental gathering of the decade, the 2012 UN Conference on Sustainable Development in Rio de Janeiro - popularly known as Rio+20. One bright spot, in what is shaping up to be an otherwise disappointing meeting from an environmental protection perspective, is a proposal by the host country, Brazil, to use the conference as a platform to launch negotiations on a treaty to globalise public participation in environmental decision-making. Unfortunately, Australia appears to be acting as a spoiler.
Twenty years ago, the 1992 Rio Declaration on Environment and Development established Principle 10, in which the international community unanimously declared the fact that ''environmental issues are best handled with the participation of all concerned citizens'. Principle 10 established what have become known as the three pillars of effective participation. These pillars require:
■ access to environmental information held by government so that participation can be meaningful.
■ participation in environmental decision-making itself in order to give citizens democratic voice.
■ effective access to legal remedies in order to correct refusals to provide information or decisions that do not comport with the law.
In 1998, the Aarhus Convention on public participation was adopted under the auspices of the UN Economic Commission for Europe. The Aarhus convention is notable for its progressive rights-based approach to public participation in environmental protection. Its provisions helped to establish democratic accountability in a number of formerly closed and dictatorial Eastern European countries as they became members of the European Union. The Aarhus Convention, however, has been mostly a European affair. Although any member of the UN can join with the consent of the parties, disappointingly, this has not happened. This failure is presumably one reason why Brazil proposed to ''globalise'' public participation by starting negotiations on an international ''Aarhus'' type convention.
This brings us to the current state of play and Australia's negotiating stance in New York on moving towards a global public participation treaty. While negotiations always take place in a broader political context, it is disappointing that Australia is urging the deletion of the mere ''consideration of legally binding frameworks'' on public participation ''at the appropriate level'', including the ''international level'', from the political declaration that Rio+20 will produce. Such a position retards democratic accountability globally. Such a position is also contrary to the progressive, world leading environmental legislation across Australia that provides generous opportunities for concerned citizens to meaningfully engage and participate in environmental decision-making. Why would Australia oppose the globalisation of rights that its own citizens enjoy at home, when citizens in many countries continue to bear the unfair costs of decisions in which they neither have a voice, nor have a seat at the table? It does not make sense.
Lalanath de Silva, director of the Access Initiative at the World Resources Institute, and Jeremy Waits, secretary general of the European Environmental Bureau, suggest four additional reasons why it is bad policy for Australia to oppose the consideration of legally binding frameworks for public participation. First, the language being opposed only obliges states to ''consider'' a legally binding framework. It does not create a mandate to negotiate a convention or other framework, nor does it oblige states to negotiate one.
Second, the phrase ''legally binding frameworks'' covers many types of instruments. First it covers a potential global treaty. It also covers possible regional treaties. But most importantly from the Australian point of view, it covers ''bi-lateral'' treaties. If Australia's preference is to advance Principle 10 through bi-lateral agreements and mechanisms, then this language covers such instruments as well. The language is broad enough to catch up a variety of mechanisms leaving it open to each state to decide which framework (of many) suits them best.
Third, deleting the word ''international'' cuts right across the efforts Australia has been making to build the capacity of other nations to improve access rights. It cuts right across even bi-lateral approaches which are ''international''. It cuts right across the recently adopted 2010 UNEP Bali Guidelines on Principle 10 setting international guidelines. By deleting ''international'' the universal Principle in the Rio Declaration is being changed and limited to less than global as intended. This is a regressive step.Principle 10 has always been seen as a universal principle.
Fourth, it is in the interests of Australian business to globalise our domestic Principle 10 laws - because this creates a more level playing field for our companies to compete with companies from places like China - where such laws don't exist. This increases efficiencies for them and above all, increases their competitiveness and reduces the need to fall foul of laws and global conventions against corruption.
If we are to make the Rio+20 outcome ambitious and agenda-setting, it is important that Australia advances the cause of Principle 10 by specifying steps to advance its implementation. In addition to advancing global democracy, supporting the consideration of legally binding frameworks for public participation at the appropriate level could allow Australia to showcase its world leading participatory environmental legislation and help it regain the international environmental leadership it once so prominently held.
Professor Donald K. Anton is associate professor of law at the ANU College of Law 

Read more from Don Anton on Rio+20: 

The 2012 United Nations Conference on Sustainable Development and the Future of International Environmental Protection
Donald K Anton 


This opinion piece addresses concerns about the suitability of the continuing use of sustainable development as a concept around which to organize international environmental protection. Despite advances made in international environmental law over the last 40 years, progress in abating global greenhouse gas continues to be slow, and predictions about global average temperature increases remain disturbing. The upcoming GEO5 publication based on the United Nations Environment Programme’s Global Environmental Outlook data portal reveals that prospects for improvements in global environmental standards are grim. Some of the challenges facing the advancement of international environmental law can be largely attributed to inefficiencies associated with treaty congestion; however, there is a more fundamental reason why international environmental law remains ineffective. There has been little, if any, progress because we have been focusing solely on the concept of sustainable development for the last quarter century. It is clear that ‘sustainable development’ has become too malleable a theory to serve its vital purpose. Consequently, it needs to be replaced with a straightforward title for the environmental movement. The international community needs to reconsider its approach in dealing with today’s pressing environmental concerns.

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