First reading of the Rio+20 Zero Draft elements on governance – not yet the future we want

By Seb, Rioplustwenties.

While the first draft of the outcome of the Rio+20 declaration contains several promising proposals, the elements of its contain related to the governance for sustainable development fall short of what would be required to build a more sustainable future.

The release on January 10th of the “Zero Draft” constitutes a major step forward in the process leading towards Rio+20. The bureau of the UN Conference on Sustainable Development drafted a document, 19-pages long, as the first version of the declaration that will be adopted in June in Brazil. With the release of this draft document, the process leading towards the conference is now at a turning point, as the various governments and stakeholders have now a solid basis on which to discuss. Between now and Rio, all actors of the international community will meet several times to discuss and improve the document so that the heads of governments attending the conference in June can adopt this text as the final outcome of the conference.

At first glance, the document, entitled “the future we want”, contains a lot of good elements. It is for instance rather inclusive as it covers a lot of the issues that stakeholders have raised during various consultations organized in the past year. Also the importance of the participation of civil society in shaping and implementing policies related to sustainable development is highlighted many times throughout all the sections of the document.

“Institutional framework for sustainable development” being one of the two main themes of Rio+20, I have gone through the text and propose below a first reaction to the proposals and shortcoming of this document in relation to governance issues. You will find here a very good first reaction to the elements of the draft related to the green economy (the second theme of Rio+20).

Renewed Political Commitment

Quite unexpectedly, the first section affirming the “renewed political commitment” of the states to their former declaration contains the first flaw of the document. When we would expect this section to only confirm that previous principles are not questioned – as is actually stated in these paragraphs, one element tends however to indicate otherwise. Paragraph 9 indeed recall the principle of the sovereign right of the states over their natural resources, a principle at the core of the Stockholm Declaration (principle 21) and of the Rio Declaration (principle 2). But here’s the rub: in the previous two declarations, this principle was carefully balanced by the affirmation immediately afterwards of the responsibility of the state to ensure that activities within its boundaries do not cause transboundary harm. Astonishingly, the later responsibility has vanished in the Zero Draft from this principle of sovereignty.

Towards science-based decision making

One of the positive surprises contained in the document came from the high number of references to the importance of a science-based approach to decision-making and the role of scientists in sustainable development. While noting this strength of the draft text, the Science and Development network however highlighted that this affirmation is neither backed by additional financial commitments to research institutions nor by the establishment of new mechanisms for the science to inform adequately political leaders, despite the importance of the later being explicitly acknowledged (para. 53). Proposals in the text for the creation of a Council for Sustainable Development offer an important opportunity to better design decision-making processes. The establishment of an Intergovernmental Panel for Sustainable Development could provide a particularly helpful forum to streamline research in order to provide this “regular review of the state of the planet and the Earth’s carrying capacity” that is called for in the draft text (para 52). The creation of such a panel could easily replicate the positive experience of model of the Intergovernmental Panel on Climate Change.

Integrating the interests of future generations to our decision making

While the reference to the establishment of an Ombudsperson for Future Generations (para. 57) is a positive result of the advocacy campaigns of many NGOs, this reference might not lead to much concrete outcomes if the current wording is maintained in the final version of the text. The idea underlying this proposal is that too often current political processes fail to integrate the interest of future generations in their decision making, in particular due to the lack of representation of these interest. Establishing an authority mandated to doing just that, so the argument goes, would provide a fairer chance to these interests. While it is laudable that the Zero Draft took up this recommendation, the current wording only affirms the agreement of the governments “to further consider the establishment of” such an institution. With such a wording, it is likely that we will not decide to establish an Ombudsperson FOR future generations, but rather than we leave the decision to create such an authority up to future generations, failing to address the urgency of the current environmental crises. While there are little chances that the Rio Conference will result in the immediate establishment of an Ombudsperson within the UN system, the conference could conclude with the creation of a working group with a clear mandate to propose next year to the UN General Assembly concrete terms of references for this new authority.

Conservation of the marine biodiversity in area beyond national jurisdiction

While the current draft document includes a long section dedicated to the conservation of the oceans, wording related to the governance of the high seas lacks ambition. The oceans are regulated since 1982 by the UN Convention on the Law of the Sea, which provides a strong legal framework for a wide range of issues related to the uses and conservation of marine areas. This framework however lacks teeth beyond areas of national jurisdiction (that it is, further than 200 nautical miles from the coast). These high seas are often the scenes of “the tragedy of the commons”, with states acting with a short-term vision in order to harvest benefits before marine living resources are depleted.

The international community has acknowledged this issue repeatedly in the past, the Johannesburg World Summit on Sustainable Development highlighting the need to “maintain the productivity and biodiversity of important and vulnerable marine (…) areas, including in areas (…) beyond national jurisdiction”. The UN General Assembly established in November 2004 the Ad Hoc Open-ended Informal Working Group to consider the issue of the conservation and sustainable use of this marine biodiversity. Since then, the Working Group has hold four meetings and made little progress on the definition of a new legal framing which would fill the governance gap existing in areas beyond national jurisdiction. In this context, the Rio+20 conference provides an opportunity to give a new dynamic to these discussions. The current wording of the draft outcome however fails to do so as it simply “notes” the existence of this group (eight years after its establishment!) and agrees to initiate “as soon as possible” the negotiation of a new legal agreement. In practice, this would leave the possibility for states indefinitely postponed decisions over the governance of the high seas, while overfishing is leading to a major crisis requesting urgent action.

International Environmental Governance

Finally, the issue of International Environmental Governance (IEG) remains one of the most contentious issues of the declaration. Within the institutional framework for sustainable development, IEG designates the institutions specifically dealing with environmental matters. The UN Environmental Program (UNEP) is the main body of IEG, but lacks the mandate to effectively lead environmental governance, as it is constrained by its status as a program, status which limits its field of activities to implementation. Elevating the status of the UNEP to a UN agency would enable it to also play a role in decision-making. All other branches in international affairs have their own agency, with the IMF or bodies of the World Bank Group in the economic field and UNESCO or the ILO in relation to social matters. At a time when there is a consensus on the need for more effective international environmental governance, it is difficult to see how maintaining this status quo can be seen as a solution.

The Zero Draft exemplifies this discussion as it proposes to concurrent paragraphs 51, with one version of the text simply suggesting a broadening of the membership of UNEP and an increase of its resources, but preserving the absence of decision making for the UNEP. This lack of ambition on the reform of the IEG is however little surprising considering the fact that this issue is one of the few for which some states have expressed explicit opposition to the proposals made by others. The US considered in their submission that it was preferable to “avoid the distraction of trying to set up something new and untested“, while India claimed that “elevating UNEP to the status of a UNEO or a specialized environmental agency, would give disproportionate weight to the environmental pillar of sustainable development” (considering the environmental pillar is the only one for which no such organization or agency currently exists, it is difficult not to see the India claim as an expression of bad faith).

The path to Rio

Despite covering a whole range of important issues, this short analysis of the Zero Draft highlights the shortcomings of the documents and its lack of ambition. There is no doubt that a lot remains to be done before this document can be adopted in June in Rio as “the future we want”. Luckily, five more months and many rounds of negotiations separate us from the Rio Conference. The release of this draft text provides nevertheless a useful canvas, on the basis of which governmental delegates and civil society advocates will have to work on.

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