Published: 2008
This report is a detailed account of the objectives and outcomes from the second TAI Global Gathering, held in Sligo Ireland. At the gathering more then 50 TAI partners from 29 different countries met to discuss network activities and share access rights success stories.
By David Heller (Posted: March 4, 2009)
During its annual meetings in February, the UNEP Governing Council failed to adopt guidelines that would have directed developing country governments to create national legislation that respects and protects access principles. Unfortunately, adoption was postponed until the Council’s next set of meetings in 2010 because of a flawed UNEP process that neglected to include civil society organizations and developing countries in the process of drafting the guidelines.
Though on its face this development is a significant setback for access advocates, other news from Nairobi leaves ample reason for hope: failure was not due to fundamental opposition to access principles, and the U.S. no longer stands in the way of such a global access movement from happening.
Adoption would have been a concrete step towards ensuring all global citizens have the right to access information, participate in their government’s decision making process, and seek judicial redress in matters affecting the environment. Still, we cannot interpret their failure to adopt as a lack of respect for these principles.
Why?
Language in the decision also reflects an interest in using the guidelines to inform national law. In addition to “taking note of” the guidelines, the Council requested that the UNEP Secretariat “carry out further work on the guidelines with a view to the adoption by the [Governing Council] at its next special session.”
With adoption imminent, some “further work” is a necessary but ill-timed element of getting relevant parties to agree on proper guidelines; such preparatory activities should have been carried out prior to Nairobi.
We owe this pending setback to the flawed consultative process used by UNEP when it drafted the guidelines.
Though they were written by a select group of high-level experts and judges, UNEP failed to oversee a process of consultation where civil society and developing country delegations could deliberate on the guidelines’ merits and influence its content. Out of 192 member countries, for instance, only 40 participated in the drafting.
This lack of inclusion is especially troubling considering the burden that adopting these guidelines would entail for many nations. Since essentially states are being asked to graft a series of ambitious multilateral standards into their own domestic law, it’s logical that they’d want to have a say in the content of whatever it is that they’d be committing to.
Instead, most developing nations were simply presented with a finished product and asked to sign off on it in Nairobi.
It was no surprise then that during the meetings, developing nations representing the G-77 were the guideline’s most outspoken opponents. Sources privy to deliberation say that their reactions of disapproval stemmed from the aforementioned procedural issues; as opposed to disagreement with the guidelines’ substantive content.
These nations had little prior knowledge of the substance of the guidelines due to their lack of participation and consultation in their construction, and were understandably unwilling to undertake the burden of implementing what they had no hand in creating.
Noticeably absent from the list of opposing delegations were the E.U. and U.S. During deliberation, both influential parties supported adoption. Moreover, both acknowledged that the grievances expressed by developing nations were legitimate.
The U.S.’s position represents an about-face from previous policy under the Bush administration. This drastic change, according to Augustine Njamnishi,TAI coordinator in Cameroon and part of his country’s UNEP delegation, did not go unnoticed.
“Wholehearted U.S. support of the guidelines raised eyebrows and suspicions,” Njamnishi says.
U.S. officials must recognize the diplomatic anxiety that their changed policy preferences cause. The U.S. should fully explain the rationale behind its decisions, justifying votes with principled reasons that can be universally followed.
Despite this apparent improvement in U.S. policy towards governmental transparency, newly appointed UNEP Executive Director Achim Steiner was visibly disappointed by the Council’s decision to forego adoption, according to Njamnishi.
But this disappointment should not have been a surprise. By failing to include an overwhelming majority of UNEP members in the drafting of guidelines, the access principles promoted within these documents were ironically neglected by UNEP and absent from its method of guideline creation.
Seeing a silver lining in Nairobi’s outcome, some UNEP officials remarked that the further consultative work called for in the Governing Council’s decision would be a valuable learning experience for developing countries. While it pays to be optimistic, this doesn’t excuse the missed chances for consultation prior to Nairobi.
And we must be wary of assuming that the upcoming consultation will be any more inclusive than it was before. If UNEP’s halfhearted effort to extend an invitation to civil society and the developing world prior to Nairobi is any indication, their future involvement is far from guaranteed.
UNEP must learn from its mistakes and go to great lengths to include as many civil society and developing country representatives as possible in forthcoming consultations. Come the next Governing Council meeting, this will ensure more delegations will be presented with guidelines they’ll be more likely to support – those that they have agreed to and are fully prepared to implement.
Given its re-discovered priorities, the U.S. ought to embrace its global influence and lead this process.
The agenda is ambitious, but no more so than the goal.
This is a story about how community leaders activated the Supreme Court of Sri Lanka to intervene and save a river the Deduru Oya.
The river bed had been mined for years for sand. Sand is used in buildings and road construction. Over exploitation of the river had lead to major environmental damage river bank erosion, lowering of the water table, salt water intrusion, poor water quality and habitat destruction.
The Supreme Court acted on a human rights case brought by community leaders. Led by Chief Justice Sarath N. Silva, the Court banned sand mining in the river and ordered the Geological Survey and Mines Bureau to stop issuing mining permits. The Court galvanized the Police to arrest and prosecutes illegal miners. The issue received wide publicity in the press.
Mining operations have been stopped for about two years now. As a result natural recovery has begun. Additionally the community leaders have been able to obtain funds through the UNDP and commence rehabilitation of the river bank in two critical areas.
The case was made possible through financial and legal aid given to community leaders by the Green Movement of Sri Lanka. The green Movement is part of The Access Initiative Coalition of Sri Lanka.
Published: 2008
Este video muestra el proceso de fortalecimiento de capacidades que inició el Centro Ecuatoriano de Derecho Ambiental en el 2005, como resultado de la evaluación realizada por la Iniciativa de Acceso, donde se detectó que uno de los grandes vacíos existentes era justamente la falta capacidades en la ciudadanía y en los funcionarios gubernamentales respecto de los derechos de acceso.
Nuestro proceso de formación de capacidades aplica metodologías participativas apoyadas de materiales desarrollados con enfoque pedagógico, así como también con actividades de difusión y discusión de los temas de acceso en la agenda publica.
This is a memorandum authored by Professor John E. Bonine. The best practices regarding access to justice include removal or modification of two major barriers: (1) restrictions on “standing to sue” and (2) the high costs of going to court. The first of these is a legal barrier. It determines which persons or organizations are allowed to file lawsuits in the courts against public authorities (governmental bodies). The second barrier can be either a legal barrier or a practical one. Lawyers and lawsuits can be expensive. Citizens and their organizations usually lack the resources to bring such cases to court.
Barriers to access to justice can be imposed by either national legislation (or in just one country by a national constitution) or court interpretations and practices. They can be overcome by national constitutions, legislation, and court interpretations.
Standing to sue
In countries with the most restrictive policies on “standing to sue,” a person cannot file a lawsuit unless he or she can demonstrate that a “legal interest” or “legal right” will be affected by the action of a public authority. This is sometimes phrased as requiring that a person show a “direct and individual concern,” that he or she is part of the public that is legally “concerned,” or even that he or she must be able to prove an “injury” that is satisfactory to the courts. All of these formulations of standing requirements impose definite barriers to access to justice.
In many countries, which have better practices, the “standing to sue” requirement has been softened by requiring only that a “sufficient interest” be shown. A similar softening occurs in countries that allow any person to start a court case to defend a “diffuse interest” or the “public interest.” These types of progress have taken place in countries in Latin America, Asia, Africa, and Europe. In several countries, particularly in Europe and nearby regions, registered nongovernmental organizations (NGOs) with a concern for protection of the environment are granted standing to sue without need to show either a legal or “sufficient” interest.
The best practice, however, is to abolish entirely the requirement for “standing to sue.” In such countries or jurisdictions, the courts do not look at who is bringing a lawsuit, but only at whether a public authority has violated its constitutional or statutory duties. This “open standing” (or actio popularis) can be granted by legislation or a national constitution. It can be granted explicitly or through judicial interpretation in court decisions. Such open standing has been recognized in parts of Asia, the Americas, and Europe.
Economic barriers
The most obvious economic or financial barriers to access to justice involve the high cost of lawyers and the high costs imposed by courts as a condition of filing lawsuits. These costs obviously consist of paying a person’s own lawyer. But in some countries a party who loses a lawsuit must also pay the costs of the opponent’s lawyers and experts, which can dramatically increase costs and raise barriers even higher.
With regard to a person or NGO having to pay lawyers to bring a case, the best practice is for government programs to provide steady funding for individuals or NGOs that are dedicated to the protection of the environment. Funding from private charitable foundations is crucial as bridge funding, until such time as governments recognize the value of public interest litigation and their obligation to support it. Relying on the voluntary efforts of private lawyers is necessary in many countries at the present time, but it is sporadic and uncertain. This results in unequal justice because business interests have the resources to pay for their own lawyers and the pressure of threatened lawsuits coming from only one side can lead government officials to lean in their direction.
With regard to being ordered by a court to pay the costs of the lawyers and experts on the other side of a case, when the individual or NGO brings a case but is not successful, countries that have such a “loser-pays’ policy have erected a particularly high barrier to justice. The best practice is to eliminate such a policy entirely. This can occur through either legislation or court decisions rejecting this policy. Such court decisions can be based on constitutional, human rights, or pragmatic grounds. A good practice is at least to create an exception for public interest cases, or for all cases in which a public authority is on the other side of the case.
In the process of abolishing the loser-pays requirement as it is applied against individuals and NGOs, some countries provide for courts to award costs to individuals and NGOs when they win. Such “one-way attorney costs” is a best practice, giving citizen enforcers of environmental law the best of both worlds.
By Lalanath de Silva (Posted: February 17, 2009)
This is a video story about how the Environmental Foundation Ltd. (EFL), a public interest environmental law organization in Sri Lanka activated the Supreme Court of Sri Lanka and saved the only open ocean waterfront in the capital city of Colombo. The court also affirmed the right of the public to have access to information. If you cannot view the video from the video frame below you can do so by clicking here
The Galle Face Green had been dedicated to the public by an order of the colonial British Government in 1856. Since that time the Green had been used by the city’s public as a recreational area. The Urban Development Authority (UDA) had decided to hand over the public space to a private company to develop it as a built up amusement park. Although admission to the park would have been free, the amusements themselves would have to be paid for by the public.
The UDA had run an advertisement in a widely circulating national newspaper that the project was “More Transparent than Glass”. But when EFL asked the UDA for a copy of the agreement it had signed with the private company, it refused to give it a copy. EFL filed a human rights violation case in the Supreme Court. EFL argued that the freedom of speech and expression guaranteed in the Sri Lankan constitution included the right to seek and receive information from the Government. Ms. Ruana Rajapakse, legal counsel who represented EFL shares her thoughts on this video.
The private company filed a copy of the agreement in court. The court decision affirmed the right of the public to have access to information. The court inferred that right from the freedom of speech and expression guaranteed in the Constitution of Sri Lanka. It ruled that the freedom of expression included the right to seek and receive information from the Government in certain situations. The court also annulled the agreement saying that the UDA did not have the power to hand over the Green which had been dedicated to the public. Subsequently, the new Minister for Urban Development and Sacred Area development, the Hon. Dinesh Gunawardene (also featured on this video) decided to establish a national steering committee to examine transparency, accountability and inclusiveness in the urban sector and to introduce public participation into local government budgeting and decision-making processes.
By Ritwick Dutta (Posted: February 19, 2009)
In a significant victory with respect to Access to Justice, the Delhi High Court comprising of the Chief Justice A.P Shah and Justice Dr S Muralidhar, by its order dated 11.2.2009 has come down heavily on the Ministry of Environment and Forests for not fully constituting the National Environment Appellate Authority despite clear directions from the court more than three years back. The High Court also was critical of the manner of functioning of the National Environment Appellate Authority (NEAA) with in its 11 years of existence has dismissed all appeals filed. The Court observed that “given the fact that all petitions have been dismissed the NEAA, it is at present neither an effective nor an independent mechanism for redressing the grievance of the public in relation to the environment clearances granted by State or Central Government”. The High Court imposed a fine of Rs 20,000 on the Ministry of Environment and Forest for non compliance of its order to be given to the petitioner. The order came in response of the petition filed by Vimal Bhai of Matu People’s organization
The National Environment Appellate Authority is established through an Act of Parliament (The National Environment Appellate Authority Act, 1997) and provides a forum to challenge the decision of the Ministry of Environment and Forest granting environment clearance to various projects. A five member body, it consists of a Chairperson, a Vice Chairperson and three technical member. At present there is no Chairperson, Vice Chairperson but three ‘technical member’. The post of chairperson has been lying vacant for more than last eight years and that of vice chairperson for the last three years. The NEAA at present is hearing a number of Appeals against various projects such as the three dams in Uttarakhand (Kothlibhel Projects), Thermal power Plant by Reliance Energy in Maharashtra among others. Except one case concerning Polavaram Project in Andhra Pradesh, it has dismissed every single appeal in the last eleven years of its existence.
The judgment states: “the court cannot be expected to remain a mute witness to the unfortunate rendering of a statutory body ineffective by an unwilling executive. The present case tests the limit of the scope of Court’s power in exercise of its extraordinary jurisdiction under Article 226”.
“the Government of India has by its unwillingness to take effective steps, rendered the NEAA and ineffective body, thus defeating the very purpose of the NEAA Act… the Union of India is not at all serious about having an effective functioning NEAA. That the Government has been lackadaisical is obvious”.
“The headless NEAA has thus been rendered and ineffective by an act of omission of the government… The intention of Parliament in requiring the government to constitute an independent body for quick redressal of public grievances in relation to grant of environmental clearances has thus been defeated.”
The Court did not even spare the current members comprising and concluded that “We are not happy with the manner of appointment of Members of the NEAA as they do not fulfill the requirements of possessing technical expertise as per Section 5(2) of the NEAA Act. The Court also directed that after the retirement of these members, the Government of India should appoint persons with special technical knowledge in the area concerning the environment as members of NEAA as required in Section 5 (2) of NEAA Act and the appointment of retired bureaucrat is contradictory to the letter and spirit of the NEAA Act. It further held that “in the absence of a properly constituted NEAA, persons aggrieved by the grant of EIA clearances do not perceive it to be an effective mechanism.”
Delhi High Court in its judgment analyzed the issue from a point of view of access to justice. The Court stated that “the NEAA Act is an enactment intended to provide an effective and efficacious remedy for citizens aggrieved by what they perceive to be adverse decisions of the government granting EIA clearance for various projects. The challenge to such decisions would invariably on the ground that it would adversely affect the right to clean environment and health, which are but facets of the right to life itself. The NEAA Act was intended to ease the burden of the High Courts and the Supreme Court thus enabling them to take up other equally important issues affecting the lives of citizens……by rendering the NEAA ineffective, the government has denied the citizens the right of access to effective and efficacious justice in matters concerning the environment. This Court, being a constitutional court charged with the responsibility of protecting and enforcing fundamental rights cannot be expected to be a mute spectator and permit the continued apathy of the government. The plenitude of its powers under Article 226 of the Constitution require it to issue mandatory directions by way of corrective measures to prevent the continued denial of the right of access to effective justice in matters concerning the environment. This Court would, by issuing further mandatory directions, be ensuring the protection and enforcement of the fundamental rights of persons of access to justice guaranteed under Articles 14 and 21 of the Constitution”
The Petitioner were represented before the Delhi High Court by Ritwick Dutta and Rahul Choudhary, members of the TAI India Coalition. For more information email at ritwickdutta@gmail.com
By David Heller (Posted: February 6, 2009)
At the upcoming United Nations Environmental Program (UNEP) Governing Council meeting in Nairobi, Kenya, delegates will have the unprecedented opportunity to extend the adoption of important principles – a peoples’ right to access information, participate in their government’s decision making process, and seek redress in matters affecting the environment – to states around the world. But in preliminary negotiations, not all delegations were sanguine about committing to spread the codification of these principles globally.
In 2008, a select group of high-level external experts and judges, in consultation with the UNEP secretariat, was formed to draft principled guidelines that direct developing countries in the creation of national legislation protecting these access rights.
But alone, these guidelines can not compel state action. So the UNEP secretariat also drafted a complementary resolution, on how the Council should act upon the principles and work to ensure states reflect them in new law.
As it’s currently written, the draft resolution is that the Council:
Decides to adopt the guidelines for the development of national legislation on access to information, public participation and access to justice in environmental matters as set out in the [guidelines]… [Emphasis added]
Adoption of the guidelines by the Council would be a very positive, symbolic step for UNEP and the spread of the access principles. But, this language is not immune from alteration, and indeed, has already been compromised.
During preliminary discussions, several delegations, allegedly including the American contingent, expressed interest in replacing “adopt” with “take note of,”a subtle proposal with profound implications for the strength of UNEP’s commitment.
It is imperative that this change not occur.
If the Council were to merely “take note of” the guidelines, then they would be sending the wrong message to member countries: that it would be sufficient for all to do the same. While “adoption” implies an unequivocal recognition that the guidelines are desirable and binding, “taking note of” is pleasantly ambiguous and leaves far too much room for them to be ignored. The Council, by “taking note” of the guidelines, would simply be recognizing that they exist; a far cry from guaranteeing that the guidelines serve their namesake’s purpose and direct future action: a small but far from trivial distinction.
This proposed change will not go unopposed. The Access Initiative (TAI) has been working hard to leverage its influence and keep the language unmolested. Attending the meeting in Nairobi and advocating on TAI’s behalf will be Mr. Augustine Njamnshi, TAI coordinator in Cameroon, and part of the official UNEP Cameroonian delegation.
TAI has also harnessed support from its allies in the Irish and Argentine delegations, who share its concern over the dilution of the original language and will be advocating for the Council to remain committed to adoption, as the initial draft explicitly recommends.
The American delegation’s alleged complicity to the proposed change was particularly alarming. Given the Obama administration’s newfound commitment to promoting transparency and public participation in its own government, it appears as though the sea change in U.S. politics has not yet filtered down to affect the composition nor stance of its Nairobi delegation. But surely they must have been briefed on their new boss’s priorities. It’s baffling as to why the State Department Officials, representing the new administration, might be willing to water down stronger language when they arrive at the negotiating table.
Not only would U.S. support of weak language be inconsistent with its existing commitments, the U.S. delegation should consider its snowballing effects. Other nations, particularly China, will be emboldened by any U.S. disapprobation of the existing recommendations, making efforts to spread access principles beyond parties to the Aarhus Convention that much more challenging.
If any change is to be made to the initial draft of the proposed action document, it should include language that commits delegates towards creating a proper convention in the future – similar to the existing Aarhus Convention, but global in scope. Because the Aarhus parties are strictly European and Central Asian in origin, creating a similar scheme in Nairobi, where both developed and developing countries will have a presence, would be a step towards globalizing access principles. And that is an ideal that all delegations ought to be striving towards.
By Joseph Foti (Posted: February 9, 2009)
The Danube Delta is Europe’s largest wetland, but it is threatened. The Government of Ukraine wants to put a large canal, including a dam through the core area of the Danube Delta Biosphere Reserve. This video tells the story of the fight to save the Delta, and how access rights-access to information, public participation, and access to justice are critical to preserving a global treasure.
Changing Channels: Ukraine’s Chance to Save the Danube Delta from Joe Foti on Vimeo.
By Ritwick Dutta (Posted: January 29, 2009)
The last few weeks had seen a unique situation in India where the Supreme Court (the Apex Court in the Court) filed a petition before the Delhi High Court against an order passed by the Central Information Commission (CIC).
The situation arose in view of the order of the Central Information Commission directing that “The Central Public Information Officer (CPIO) of the Supreme Court is directed to provide information as to whether declaration of assets, etc., has been filed by the Honourable Judges of the Supreme Court or not within ten working days from the date of receipt of this decision notice,”.
The judgment followed the refusal by the Supreme Court to entertain a query on the declaration of assets by judges. The Applicant S C Agrawal had applied to the apex court for a copy of a Full Court Resolution passed on May 7, 1997, prescribing “every judge to make a declaration of assets in form of real estate or investments held in their names or in the name of their spouses and any person dependent on them to the Chief Justice”. He had also asked if judges had complied with the Resolution, and whether any high court judge had ever declared their assets to their respective Chief Justices. The Supreme Court had parted with a copy of the Resolution, but stonewalled the other queries.
It was argued by Supreme Court officials during the hearing that the declaration of assets submitted by the judges of the Supreme Court are confidential and the information has been provided to the Chief Justice of India in a fiduciary relationship and, as such, its disclosure is exempted under the Act.
The Central Information Commission however held that “The appellant…is apparently not seeking a copy of the declarations or the contents therein or even the names etc. of the judges filing the declaration, nor is he requesting inspection of any such declaration already filed. He is seeking a simple information as to whether any such declaration of assets has ever been filed by the judges of Supreme Court or High Courts. What he is seeking cannot be held to attract exemption..”
The Delhi High Court on 18th of this January stayed the order of the Central Information Commission and appointed noted senior lawyer Fali Nariman as an Amicus Curiae to assist the Court. However, Nariman informed the High Court that as he did not agree with the stand of the judiciary, and as such he could not be a friend of the court. Mr. Fali Nariman has refused to act as amicus curie, on the ground that his views on the judges of the High Courts and Supreme Court declaring their assets is well known. Mr. Fali Nariman has repeatedly opined that judges of the High Courts and Supreme Court should declare their assets on assumption of office and continue to annualy declare their assets.
The former CJI, J.S. Verma, has also openly criticized the stand of the judiciary not to make public the assets disclosed by judges voluntarily to the CJI.
The High Court will further hear the matter on 12th of Feb.