RENEWING THE SPIRIT OF RIO

The CSD, Agenda 21, and Earth Summit +5

Published by the International NGO Task Group on Legal and Institutional Matters
INTGLIM - March 1997

Executive Summary

General Assessment

Agenda 21, the United Nations global program of action for sustainable development worldwide, has become one of the most successful and well known documents in the organization's history. Though more progress has occurred than most people realize, it has to be acknowledged that fundamental changes towards integrating environmental protection with economic development as called for in the Rio Earth Summit have not been achieved.

Overall CSD appraisal

Most experts interviewed for this survey rate the UN Commission on Sustainable Development as a "qualified" success in achieving its mandate of monitoring the implementation of Agenda 21. In only four years, many believe, it has become the most dynamic, innovative, and effective of the functional commissions of ECOSOC. However, praise for the CSD was tempered with concern that the overall implementation of Agenda 21 by governments, the UN, other international organizations, and the global financial sector, has been disappointing. Perhaps during the last four years, the world has even lost ground in relation to the historic goals agreed to in Rio. Institutionally and technically, the CSD and its secretariat, the DPCSD, have made important advances. All agree the CSD's mandate should be renewed.

Sustainable Development - Definition and Principle

While a few experts call for redefining "sustainable development," for example to "developing sustainability," the majority of experts favor, especially at the international level, maintaining the term and definition given in the Brundtland Report. The experts generally agree that the CSD has succeeded in establishing sustainable development as an overarching principle integrating environment and development. However, many feel that the term is still widely perceived as primarily an environmental principle. Several experts expressed concern about efforts by some business, industry, and developing country representatives to undermine the principle and confuse sustainable development with "sustainable growth." Social and economic dimensions of sustainable development must address poverty eradication and effort to halt and reverse the widening gulf between the world's haves and have-nots.

Special Session Goals

The United Nations Special Session to Review and Appraise the Implementation of Agenda 21 - Earth Summit +5 - must renew the world's commitment to sustainable development. The phase of discussing global strategies and building consensus for sustainable development and Agenda 21 must be elevated by the Special Session to one which is primarily operational and action-oriented. Confirming the responsibility of all organizations in the UN system for sustainable development, and assigning responsibilities for implementation to specific fora beyond the CSD, are essential goals for Earth Summit +5.

Globalization and interdependence, the dominant traits of the post-Cold War world, must be central themes of the Special Session (UNGASS).

The Special Session, according to some experts surveyed, could be a "make or break" point for the UN in the field of development, not just sustainable development. Many hope Earth Summit+5 will recharge the Rio process, restore the sense of urgency at the world level to address global environment and development challenges, and reaffirm and clarify the important roles the United Nations has in addressing these challenges.

No one supports reopening Agenda 21, not because they believe it does not need improvement or elaboration, but mostly because of concerns that the process could go backwards instead of forwards. While all recognize the value of the initial review of all forthy chapters of Agenda 21, there is almostuniversal support, in the next multi-year term for a new, more narrowly focused, innovative program of work. The annual agenda for the CSD should be limited to only a few issues. For example, each year one sectoral issue, one cross-sectoral issue, and one "sector of society" could be placed on the agenda.

Among the goals broadly supported by the experts, which should be achieved in the next multi-year program, are:

• greater effectiveness in the CSD monitoring emerging patterns and critical trends;
• further development of indicators of sustainable development;
• closer cooperation and more effective monitoring of the international financial and economic sectors, bringing into better focus progress and failures in implementation of Agenda 21;
• increased concentration on financing issues, including the development of global political support for new and innovative financial mechanisms; and the
• breaking through of the political restrictions in discussing energy, production and consumption patterns.

The Special Session should adopt three documents, a general declaration, an honest assessment of progress and failures since Rio, and a prioritized program of work for the CSD for the next 4 years and assignment of operational tasks for other bodies in the UN system.

Institutional Issues

The INTGLIM report recommends that the CSD remain a functional commission of ECOSOC, however one with an overarching mandate. We recommend that the CSD create Sub-Commissions on long-term CSD issues, including one on economic and financing issues, one on NGOs and major groups, one on country, region and TNC reporting, and one on indicators of consumption and production patterns. The CSD should consider eliminating the High Level Advisory Board, and also consolidating and integrating the work of the Committees on Natural Resources and New and Renewable Resources for Energy and Energy for Development into the CSD. The procedure for electing the Chair and officers of the CSD should be modified so that the term of office begins at the end of the CSD in which officers are elected, in order that the bureau which prepares for a CSD and oversees the intersessional processes presides over that session of the CSD.

The INTGLIM report calls upon international financial and trade institutions to assume a more formal relationship with the CSD, perhaps integrating CSD meetings into their own. The report praises the achievements of DPCSD and the task manager system of coordination.

UNEP's role, or that of a complementary institution, in the areas of global environmental governance, regulation, and enforcement should be upgraded along the lines enunciated in the 1989 Hague Declaration on the Environment, endorsed by scores of nations and five of the G-7 leaders. While the existing UNEP programs should remain in Nairobi, the enforcement authority should be located in a major industrialized country.

Financial Resources and Mechanisms

The integrity of the Special Session will largely depend on its ability to overcome the North-South political gridlock on global financial support for sustainable development. Progress on increased ODA, replenishment of GEF, and developing market-based instruments (MBIs) must be made. Also, mandates for further development of indicators for sustainable development and mechanisms for discussing production and consumption patterns must be advanced. UNGASS cannot fail to find a political solution to resistance, especially from the USA, to explore new and innovative ideas for generating funds, including levies on use of the "global commons."

Decision-making

The Special Session will occur in a crucial year on UN reform, a process which must be one of strengthening the UN, not confined to efforts to downsize and reduce UN budgets. The essence of UN reform is change in the decision-making processes of governments, not only at the UN, but at the national level as well. It involves the member states committing to a United Nations which would be fundamentally more democratic, transparent, and accountable. UNGASS should resolve important issues concerning expanding the rights and roles of NGOs and major groups in the General Assembly. UNGASS should address the issue of what role it wants for the CSD and GA relative to the maze of independent and overlapping governing boards and processes in the UN system.

Strong support should be expressed for continued development in the CSD and other UN fora of the innovative processes begun during UNCED such as the NGO-government Dialogues, panel discussions, inclusion of NGOs in working groups, drafting groups and informal sessions. More "hearings" type mechanisms should be developed in the CSD, and more mechanisms which might employ multi-partite or stakeholder representation principles.

Legal Issues

The Special Session should reaffirm support for and strengthen the legal standing of the Rio Declaration on Environment and Development, and consider ways to elaborate legal principles for sustainable development, such as the precautionary and polluter-pays principles. New principles on subsidiarity, decentralization and self-sufficiency should be elaborated, and further work should be done on proposals for rights of petition, for an Earth Charter and for a global framework treaty on the environment.

Local to Global Reporting and Agenda 21s

The INTGLIM report calls for major improvements in national reporting and the development of mechanisms to secure reporting from regional bodies and the transnational corporate sector. The Special Session should strongly support Local Agenda 21 processes throughout the world and further the development of national commissions of sustainable development. These must incorporate greater involvement of national and grass-roots organizations of civil society.

NGOs and Major Groups

The extraordinary participation and contributions of NGOs, landmark in Rio, have carried on in the CSD. NGOs, and representative of the "major groups" identified in Agenda 21, continue to develop new and innovative mechanisms of self-organization, and new modalities of interacting with governments and UN officials. However, the roles of non-state actors, fundamental to the implementation of Agenda 21, are severely restricted by an intergovernmental process and international civil service which have themselves not adjusted to the post-Cold War world. Indeed, at the time this report went to press there were great dangers that NGOs would be prohibited from having any formal role in the Special Session, and that the beginning of a process to reverse the gains made by NGOs in the UN was gaining momentum, propelled by different forces and supported for different reasons by an uncommon alliance of governments, Cuba, European Union, France, Egypt, Iran, India, Syria, Russian Federation, and the USA

The INTGLIM report calls for the establishment of a CSD Sub-Commission on NGOs and Major Groups, a "civil society forum" in the CSD, where the partnership between governments and civil society organizations can continue to develop and grow. It would be a forum where NGOs can develop their proposals, such as ones on financing sustainable development.

Conclusion

The Special Session could be a make or break event for sustainable development, for key aspects of UN reform, for halting the decline in financing for multi-lateralism for the CSD, and for the fate of all the review processes of the world conferences which are to be held in Special Sessions of the General Assembly. Will governments and international civil society succeed in taking the UN beyond the stage of standard setting and program developing to one of implementation and a more operational, action-oriented system of global governance?

INTGLIM Recommendations

Following are key recommendations of the INTGLIM Report for the UN Commission on Sustainable Development (CSD) and Earth Summit +5, the Special Session of the United Nations General Assembly on the Review and Reappraisal of Agenda 21. While the following recommendations emerge in large part from the survey, they are the independent opinions and proposals of the authors and include issues not covered in the survey. A primary focus of the survey and recommendations relates to legal and institutional aspects, as these have been the main goals of the INTGLIM task group and caucuses over the last six years.

General Goals of the Special Session

Renew global commitment for sustainable development principle

Acknowledge successes and failures since Rio

Move from the stage of strategies and programs to one of implementation and operations

Establish CSD Sub-commissions on financing and financial mechanisms, NGOs and major groups, and country, region and TNC reporting

Establish special arrangements for Special Sessions-1996/31-based

Consolidate the Energy and Natural Resources Committees into the CSD

Reform or abolish the High Level Advisory Board

Indicators for sustainable development as basis for national reporting

Adopt special arrangements for special sessions based upon 1996/31 NGO procedures

• A principle goal of Earth Summit+5 should be to recapture and renew the spirit of Rio, restoring the sense of urgency in the world community for sustainable development and for the implementation of Agenda 21, including to the principles of the Rio Declaration on Environment and Development.
• Earth Summit +5 should confirm sustainable development as the goal of all UN bodies, and of all development. This would reaffirm and renew the limited but essential role of the United Nations in the field of development, including the CSD, ECOSOC and GA roles of coordinating the implementation of Agenda 21 among all key bodies of the UN and international system, including the international financial institutions.
• The Special Session should renew and strengthen the mandate for the Commission on Sustainable Development, reaffirming its overarching role in ECOSOC, among the commissions, in the world conferences follow-up processes, and in the UN, in relation to developing and monitoring broad policy directions and setting long-term strategies for achieving sustainable development.
• The CSD should be encouraged to continue its role as a commission which encourages innovative procedures, experimentation and proposals, one which captures and promotes "best practice," good governance principles in the North and South, and pushes the envelope in innovative intergovernmental decision-making.
• The CSD should be a forum where governments agree to debate issues still enshrouded with political controversy, such as new financial mechanisms, production and consumption patterns, indicators for sustainable development; the CSD should help elaborate the precautionary and "polluter pays" principles, seek agreement on innovative financial resources. Further, the CSD should explore a more formal UNGA-WTO relationship; a forum for tackling the international enforcement dilemma in the areas of environment and development.

Sustainable Development - Principle and Definition

Earth Summit+5 should not attempt to redefine sustainable development, but maintain the Brundtland Commission and Agenda 21 definition, at least for the next 5 years. Different terms used by different cultures, languages or levels of society, but based on the same [similar or strengthened] principles, should be welcomed, but attempts to equate or link the definition of sustainable development with "sustainable economic growth" should be rejected outright.

Financing Sustainable Development

There is no greater challenge before the Special Session than the goal of achieving progress on increasing financial commitments for sustainable development. Without tangible progress, it is hard to see how the "spirit of Rio" can be recaptured and renewed:

• Increasing ODA, replenishment of the GEF, reviewing and redeploying existing subsidies, shifting economic incentives, developing tangible commitments to market-based instruments (MBIs) to encourage or discourage different kinds of production and consumption patterns - all need CSD attention.
• New and innovative ideas for generating funds must be endorsed at the Special Session.
• Imposing global levies, user fees, currency-exchange taxes, levies on airline fuel, trading emission or pollution rights, charging replacement costs on unsustainable uses of natural resources, and many other proposals need the global commission's research, evaluation and decision.
• The Special Session should clearly reject unilateral vetoes and other forms of economic and financial blackmail, especially by the UN Host Country and its congress.

CSD and ECOSOC

• The Commission on Sustainable Development should remain a functional commission of ECOSOC, but given the overarching nature of Agenda 21, the Special Session should reaffirm the CSD's particular role in ensuring that all world conference follow-up efforts abide firmly within the framework of sustainable development.
• The Special Session should recommend that the CSD receive regular reports and presentations from other commissions and UN bodies charged with implementing various parts of Agenda 21. Other commissions should not be combined with the CSD.

The CSD should consider, during its next five year program of work, the advantages of establishing sub-commissions on specific long term areas of its work. The following are four possibilities:

• Sub-commission on Finance and Financial Mechanisms for Sustainable Development. Promoting linkages between the CSD and the IFI's on global financial policies and financing for sustainable development is, we believe, the most important subject area for the establishment of a sub-commission. The development of innovative or independent financial resources for sustainable development and alternative UN funding should be included in work of this subcommission.
• Sub-commission on NGOs, Major Groups, and Sustainable Development. Creation of a "major groups" subcommission as a cross-sectoral, inter-regional forum for NGOs and representatives major groups should also be considered. A "civil society forum" sub-commission of the CSD, could be mandated, for example, to focus initially on the goals of the above-proposed financial subcommission. In other words, the CSD should consider letting NGOs and civil society attempt to seek proposals and solutions to the calls for enhanced ODA and "new and additional resources" in which governments have been largely unsuccessful. It would also be a forum where the relatively new and still controversial concepts of "major groups," "civil society" and "stake-holder" and others, could evolve within a positive political environment.
• Sub-commission on Indicators for Sustainable Development and Consumption and Production Patterns.
• Sub-commission on country, region and transnational corporation reporting.

ECOSOC

• ECOSOC should encourage and, where appropriate, incorporate the innovative procedures advanced by the CSD.
• ECOSOC should consider convening meetings of the bureaus of its subsidiary and other relevant bodies for the purpose of enhancing implementation, coordination, and reducing unnecessary duplication of efforts.
• A joint session between the bureaus and the ACC on the implementation of Agenda 21 could be held during the next 5 years period.
• The Special Session should consider consolidating and/or streamlining, under the CSD, the work of the Committees on Natural Resources and the Committee on New and Renewable Sources of Energy and Energy for Development.

CSD and the United Nations Environmental Programme

• UNEP should continue to play a key role implementing Agenda 21, both as the UN's environmental agency and as a task manager for various issues.
• The Special Session should consider recognizing the long term need to upgrade the UN's or UNEP's global environmental authority, in particular relating to the need for the establishment of regulatory mechanisms to monitor and enforce compliance with global aspects of international environmental law.
• The regulatory and enforcement roles and secretariats should be independent and separate from the current Nairobi-based UNEP programs and should be located in a major industrialized country.

CSD and World Bank

• The World Bank, during its annual meetings, should convene a joint meeting between the Directors, Ministers and CSD representatives. Similar sessions with the CSD should be held at meetings of other international financial institutions.

CSD Elections and Chair

• The Special Session should encourage the CSD to modify its process of elections for the CSD in order that the Chair and Bureau, while being elected at the beginning of a CSD session, should assume office at the conclusion of the session and serve through the conclusion of the next CSD, over whose preparatory processes the Chair and Bureau have presided.
• In addition, serious consideration should be given to extending the term of the CSD Chair to two or three years. The INTGLIM report believes the advantages of a longer term far outweigh the difficulties and potential drawbacks. The CSD could experiment with longer terms for its officers, evaluating the matter at a future review session.
• Adequate funding for the Chair and Bureau should be allocated in order that the CSD can be present and participate in the wide spectrum of fora necessary.

Legal Issues

• The Special Session should reaffirm support for and strengthen the legal standing of the Rio Declaration on Environment and Development.
• As with other UN declarations, the CSD should consider ways to elaborate legal principles for sustainable development, in particular those in the Rio Declaration, including:

Principle 15: Precautionary Principle

Principle 13: Polluter Pays Principle

Principle 24: Environmental Impact

Principle 22: Rights of Indigenous people and their communities

Principle 24: Protection of the environment in times of armed conflict

• New principles on subsidiarity, decentralization and self-sufficiency should be elaborated.
• Legal discussions should commence on rights of petition, development of an Earth Charter, and further consideration of a global environmental framework treaty, such as proposed by IUCN.
• In renewing its commitment to the principles of the Rio Declaration and the central role of the United Nations in promoting international peace and security, the Special Session should consider ways of elaborating upon Principle 25: "Peace, development and environmental protection are interdependent and indivisible."

CSD, Treaty and Regional Intergovernmental Organizations

• The CSD should continue to explore how to enhance the participation of treaty bodies and regional organizations, and, especially for regional unions, the development of more appropriate negotiation rights and modalities for these intergovernmental bodies.
• If a sub-commission or intergovernmental panel on financing sustainable development is established, consideration of qualified, limited membership, the adoption of a weighted-voting for limited aspects of its decision-making, should be considered.
• The CSD should introduce innovative decision-making mechanisms involving multi-partite, stake-holder representation.

National Reporting

• Indicators for sustainable development should become the central basis for national reporting.
• The CSD and DPCSD should insure appropriate input by NGOs and representatives of major groups in the preparation of national reports. National reporting requirements for the CSD and other bodies should be, as appropriate, harmonized and integrated.
• The CSD and DPCSD should consider the promotion - though not the organization of - local, national and regional Agenda-21 processes to be a high priority during the second five year period.

Local Agenda-21 Initiatives

• The CSD and DPCSD should recognize that the synergy between local and global A-21 initiatives [by whatever names] are crucially important to the achievement of sustainable development and the implementation of Agenda 21 at all levels, especially at the national and regional levels.
• Continued support for establishing and maintaining accountable national and regional Agenda 21 councils should be encouraged. The backbone of these national and regional commissions should be the inclusion of NGOs, major groups and parliamentary representatives.

NGOs and Major Groups

• Governments should adopt special arrangements for NGO participation in General Assembly Special Sessions. These arrangements should be based upon those in 1996/31, and in particular, those in Part VII of 1996/31. (The ECOSOC resolution delineating the consultative relationship and arrangements with NGOs, including the section dealing with NGO participation in UN conferences.)
• In order to assist in implementation and in building global civil society support for the General Assembly and UN financing, governments should complete the process of extending NGO rights of access and participation to the General Assembly and its Main Committees and subsidiary bodies. These rights should be based, in principle, on the arrangements agreed to in 1996/31.
• The Special Session should reaffirm paragraphs 42-44 of Chapter 38 of Agenda 21.
• The Special Session should express support for development of new and innovative modalities for NGO and major group involvement in UN bodies, including NGO-Government Dialogues, NGO Plenaries, panel discussions, hearings, NGO speaking rights, and including appropriate rights to attend and contribute during drafting sessions.
• The CSD and Special Session could explore ways to correct the misunderstandings and contradictions caused by conceptual inconsistencies in Section 3 of Agenda 21 "Strengthening the Role of Major Groups."
• For the immediate future, in those bodies which "accredit" or draft legal arrangements for non-state actors in the UN, it should be accepted that, as a rule, Major Groups and their representatives should come in as NGOs.

About INTGLIM

The International NGO Task Group on Legal and Institutional Matters (INTGLIM) was formed at the end of the second Preparatory Committee meeting of the United Nations Conference on Environment and Development (UNCED) in 1991. During UNCED, the task group served as the primary non-governmental caucus that developed the proposal and generated support for the establishment of a Commission on Sustainable Development (CSD).

Making the goal of more effective communications between non-governmental organizations (NGOs) from all regions a priority, INTGLIM coordinated the first NGO-Government Dialogues and NGO Plenary sessions held during PrepCom IV, supported by the UNCED Secretariat and a grant from the government of The Netherlands.

While normally not taking positions on specific issues, INTGLIM was given a mandate by non-governmental organizations during UNCED to advocate rights of access and participation for NGOs in the United Nations, especially national, regional and grassroots NGOs, in relation to the follow-up of UNCED and Agenda 21. INTGLIM has convened legal and institutional issues meetings and briefings since 1991 pursuant to this mandate, and on related issues in the CSD, NGO Review and general UN reform processes.

In recent years, INTGLIM has helped organize informal NGO committees on the Sixth and Fifth Committees of the UN General Assembly, and an international NGO Coalition on the International Criminal Court (CICC).

INTGLIM is co-convened by the World Federalist Movement and Center for Development of International Law.

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PREFACE

Maria S. Verheij has been primarily responsible for conducting the survey and writing the INTGLIM Report for WFM/INTGLIM in New York in 1996, pursuant to completing graduate studies in the USA and The Netherlands. My contribution consisted of assisting in developing the overall goals and strategies for the survey, preparing the questionnaire, writing the Executive Summary, INTGLIM Recommendations, and helping edit the body of the report.

The transcription of the interviews alone exceeds more than 100 pages, and would itself be a fascinating document. I wish that cost and space limitations would not have prevented us from reproducing more of the comments of those surveyed. I hope we have captured a representative sampling of the expert opinions.

We hope some of the thinking, proposals and recommendations will help governments, UN officials, and representatives of NGOs and major groups in their preparations for the Earth Summit+5, the Special Session of the UN General Assembly to Review and Appraise the Implementation of Agenda 21. The use and dissemination of this report is encouraged as long as appropriate attribution is made.

William R. Pace
Executive Director, WFM-IGP
Convenor, INTGLIM

ACKNOWLEDGEMENTS

The authors would like to express their sincere appreciation to all the individuals who agreed to participate in our survey - they are listed on page 4.

We would also like to thank the following funders and organizations who supported the preparation and publication of this survey and report:

Cover Design Peter Arkle

Editors Naheed Rehman and Rik Panganiban

Layout Lydia Swart

TABLE OF CONTENTS

About INTGLIM

Preface

Acknowledgment

List of Experts Interviewed

Questionnaire

Executive Summary

INTGLIM Recommendations

Survey and Report

Introduction

1. How to Read this Report

2. The History of the CSD

General Assessment

3. General Observations - Successes and Failures

4. The Definition of Sustainable Development

Institutional and Legal Issues

5. Legal Issues

6. The CSD within ECOSOC

7. The CSD in Relation to UNEP, UNDP and GEF

8. The CSD and International Financial and Trade Institutions

9. Financial Resources

10. Election of CSD Officers/Chair Procedures

Decision-making Issues

11. Decision-Making and UN Reform

12. The Involvement of Economic and Financial Ministers and Policy Makers

13. The Task Manager System and Interagency Coordination

Local, National and Regional Processes

14. National Reporting

15. National and Local Agenda 21's

Major Groups

16. NGO and Major Group Participation

17. Danger of Retreat - NGO Participation in the Special Session

18. The NGOs and Major Groups Dilemma

19. The CSD, Transnational Corporations and the Business Community

20. NGOs on Government Delegations

The Future of the CSD

21. The Goals for the Special Session

Bibliography

Acronyms