Strategy for Civil Society Engagement in the Escazú Agreement

2018

Authored by: Andrea Sanhueza, Gabriela Burdiles Perucci, Karetta Crooks Charles, Danielle Andrade-Goffe, Magdolna

Toth Nagy

This strategy has been prepared with the financial support of the project “Building Bridges between Regions - Interregional cooperation on the implementation of Principle 10 of Rio Declaration and Article 6 of UN Framework Convention on Climate Change in the Caribbean region (UN ECLAC – UN ECE)” funded by the Ministry of Land and SEA (IMELS) of Italy and implemented by the Regional Environntal Center (REC) in the period July 1, 2016 to June 30, 2018.

Cover photograph: The Escazú Protected Zone, Costa Rica © Bernal Saborio

TABLE OF CONTENTS

ACRONYMS ...... 4 INTRODUCTION ...... 5 Overview of Civil Society engagement in the Escazú Agreement ...... 5 Methodology ...... 7 Chapter 1 ...... 8 OUTREACH, COMMUNICATIONS AND ADVOCACY STRATEGY ...... 8 I. The Elected Representatives of the Publics’ Engagement of Civil Society ...... 9 II. Regional and National Activities to Raise Awareness of the Escazú Agreement ...... 10 III. Collate and Disseminate Partners’ Actions to Promote the Escazú Agreement ...... 12 IV. Online Campaign to Support Early Signature and Ratification ...... 13 V. Maintenance of the LAC P10 Webpage...... 16 Chapter 2 ...... 18 NEGOTIATION STRATEGY FOR PUBLIC PARTICIPATION ...... 18 I. Public Participation in the Institutional Structure and Activities of the Agreement ...... 19 II. Public Participation in the Implementation and Compliance Committee ...... 23 Chapter 3 ...... 26 GOVERNANCE STRUCTURE FOR CIVIL SOCIETY ENGAGEMENT ...... 26 I. Description of Existing and Future Governance Structures ...... 27 II. Comparison of Existing and Future Governance Structures ...... 30 III. Requirements for Creation of Civil Society Organisation ...... 34 CHILE ...... 34 JAMAICA ...... 39 IV. The Aarhus Experience ...... 43 CONCLUSION AND RECOMMENDATIONS ...... 46 b. Public Participation in the Implementation and Compliance Committee...... 48 ACTION PLANS ...... 51 Annex I: Outreach and Communications: Action Plan 2018 - 2020 ...... 51 Annex II: Advocacy and Negotiation: Action Plan 2018 - 2020 ...... 52 Annex III: Governance structure: Action Plan 2018 – 2019 ...... 55 Bibliography ...... 56

ACRONYMS

AI Amnesty International CARICOM Caribbean Community COP Conference of the Parties CSO Civil Society Organisation ECLAC Economic Commission for Latin America and the Caribbean EEB European Environmental Bureau EfE Environment for Europe GCT General Consumption Tax LAC Latin America and the Caribbean MoS Meeting of the Signatories NGO Non-governmental organsation OECS Organisation of Eastern Caribbean States P10 Principle 10 REC Regional Environmental Centre RPG Regional Public Mechanism SCT Special Consumption Tax SDG Sustianable Development Goals TAI The Access Initiative UN United Nations UNEA United Nations Environment Assembly WRI World Resources Institute

INTRODUCTION

In a historic event on March 4, 2018, 24 Latin American and Caribbean countries adopted the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean in Escazú, Costa Rica. State parties to the Escazú Agreement will be required to provide the public with rights to obtain environmental informaiton, participate in decisions affecting the environment and to access justice in environmental matters. The Agreement is also the first treaty to require States to specifically protect environmental human rights defenders from harm and to ensure they have an enabling environment for their work.

This is a proposed strategy for civil society engagement in the Escazú Agreement process to: • Increase public awareness of the Escazú Agreement • Promote early signature and ratification of the Escazú Agreement • Negotiate the rules of procedure and modalities for public participation in the implementation phase of the Escazú Agreement • Review and develop a governance structure used by civil society organisation (CSOs) to engage and coordinate with CSO partners and the Public engaged in the process

Overview of Civil Society engagement in the Escazú Agreement

The unique and unprecedented modalities for public participation in the negotiation process for the Escazú Agreement included an integral role for the public to coordinate input into the process through Elected Representatives of the Public1 and their continuous engagement of Civil Society Organizations (CSOs)2 from across Latin America and the Caribbean (LAC).

The Modalities for Public Participation in the negotiation of the Escazu Agreement was established following the rules of the preparatory phase agreed with the Public in 2013. The modalities recognized a broad definition of the term "Public". Accordingly, any natural or legal person or community organisation could participate in open meetings unless the plenary decided to have a closed session. Also, the modalities were intended to ensure the provision of due information and

1 There are two main and four alternate Elected Representatives of the Public. The primary function of the representatives is to serve as liaison and maintain continuous dialogue with the Presiding Officers for the Regional Agreement on Principle 10. Being a representative of the public also involves educating and communicating with the public and fundraising to support the involvement of the public in this regional process; communicating with the public to inform them about the regional process and to channel the public comments, proposals and observations to the Steering Committee and the Negotiating Committee. Brief biographies of the Elected Representatives available at: https://www.lacp10.org/regional-public-mechanism 2 An incomplete complete? list of CSO LAC representatives: https://www.lacp10.org/civil-society 5

specific levels and opportunities for the Public to get involved in the process. Consequently, the Public was able to attend, report and make statements during negotiation meetings: the Public had the right to request the floor and the Chair organized interventions in the order in which they were requested, regardless of whether the speaker was a representative of the government, international agency or the Public. In the case of written proposals, these were compiled in a separate document and not in the negotiating text unless they were sponsored by a participating country.

The Modalities for Public Participation also guaranteed that the Public would receive all information in a timely manner by registering in the Regional Public Mechanism (RPM) managed by the Secretariat for the Agreement – the United Nations Economic Commission for Latin America and the Caribbean (ECLAC); a tool that has also facilitated the Public’s coordination and involvement in the negotiations. Nowadays, more than 3,500 legal and natural persons are registered in this mechanism. Two main and four alternate Representatives of the Public were elected through an open web-based election using the RPM3. Their main responsibility was to maintain continuous dialogue with the Presiding Officers and coordinate public input into the negotiations.

Finally, at the national level, States made the commitment to hold consultations with the Public in their countries. Considering the above, the modalities allowed the Public to exert influence in raising the standard of the Agreement with their informed expertise leading to broad and diverse direct participation and a transparent, inclusive and accountable negotiating process and a legitimate agreement appropriate for the beneficiaries of the instrument.

The Agreement, explicitly mentions a Clearing House (Art. 12), a Voluntary Fund (Art. 14), a Conference of the Parties (COP- Art. 15), a Secretariat (Art. 17) and a Committee to support Implementation and Compliance (Art. 18). Regarding this Committee, the Agreement already established it will be a subsidiary body of a consultative and transparent nature, non-adversarial, non-judicial and non-punitive (Art 18). Details of its functions and rules are yet to be agreed but the significant participation of the Public is a characteristic already set in the text.

The next step is the entry into force of the Agreement which requires signature and ratification by 11 of the 33 LAC countries. The Agreement is open for signatures at the United Nations General Assembly on September 27, 2018. The first Conference of the Parties (COP) must be held no later than one year after the entry into force of the Agreement. ECLAC plans to organise (if funding is available) at least one Meetng of the Signatories (MoS) possibly in 2019 before the first COP which will have the significant participation of the public.

3 The modalities for the election of representatives from the Public are available in https://www.cepal.org/sites/default/files/news/files/election_of_representatives_of_the_public_final.pdf

To date, only Chile, Costa Rica, Argentina and Peru have officially indicated their intention to sign the Escazú Agreement. Whilst the signature process will be open until September 2020, it is paramount that as many LAC countries as possible sign on early to ensure their full participation in crafting the monitoring and compliance mechanism and the implementation guide for the Agreement. It is integral that the Elected Representatives continue to engage CSOs in order to ensure that there is meaningful and effective advocacy efforts leading up to the signature event, as well as the first MoS.

This strategy is divided into three main chapters: 1. Communications and outreach strategy to encourage countries to sign and ratify the Agreement and to increase civil society involvement at the national and regional level 2. Negotiation strategy for the Meetings of Signatories to the Agreement up until the first COP 3. Recommendations for formalising the governance structure for civil society, individuals and organizations participating in the implementation of the Agreement

An action plan for implementing these strategies is included in the Annex. The time frame for the strategy is July 2018 to 2020 when it is expected to have the first COP.

Methodology

The Methodology for preparing this strategy includes: 1. Desktop research taking into account existing proposals on these matters. 2. Analysis of legislation relating to incorporation and administration of non-governmental organisations in specific countries (Chile and Jamaica) 3. Analysis of similar processes in the Aarhus Convention and discussion with ECLAC and civil society. 4. Interviews with key members of the public and experts that can provide relevant input for the draft proposal. This draft document will be disseminated among civil society partners and other key stakeholders including ECLAC, in order to have a proposal that has the consensus and commitment of the Elected Representatives of the Public, its civil society partners and experts, and that can be used for further activities. The strategy and action plan will be updated on a regular basis in order to adjust it to the changing situation.

Chapter 1

OUTREACH, COMMUNICATIONS AND ADVOCACY STRATEGY

The objective of the Outreach, Communications and Advocacy Strategy is to increase civil society involvement at the national and regional level in order to encourage countries to sign and ratify the Agreement. It is organised in 5 sections:

i. The Elected Representatives of the Public’s Engagement of Civil Society ii. Regional and National Activities to Raise Awareness of the Escazú Agreement iii. Method to Collate and Disseminate Partners’ Actions to Promote the Escazú Agreement iv. Online Campaign to Support Early Signature and Ratification v. Maintenance of the LAC P10 Website

Amnesty International (AI) and The Access Initiative (TAI) created a ‘Campaign Strategy for the Signing and Ratification of the Escazú Agreement (June 2018)’ which provides general campaign guidelines to influence the region’s governments to sign and ratify the Agreement and to build pressure by increasing public awareness of the benefits and importance of the treaty. These proposed campaign awareness raising and advocacy activities include, inter alia: i. Production of a booklet of a maximum of 4 to 6 pages that explains the Escazú Agreement and its benefits in a simple and educational manner; ii. An open letter to the presidents of the countries in the region signed by a broad coalition of NGOs. iii. Meeting with the Vatican mission in New York to promote their public stance – between June and Sept 2018 / AI Regional Office. iv. Creation and circulation of audio-visual materials. v. Infographics: Four infographics explaining the different themes of the Agreement. vi. Postcards that can be adapted for different types of content (quotes, statements, etc.) vii. This campaign will start in early august in order to get as many countries as possible to sign the Agreement on the 27th. It will be implemented at the national local with local coalitions and at the regional level.

I. The Elected Representatives of the Publics’ Engagement of Civil Society

Increasing awareness of the Escazú Agreement among a wide cross-section of stakeholders (non- governmental organisations, community-based organisations, civil society networks and the private sector) in Latin America and the Caribbean will galvanzie support for the full implementation of the Agreement.

The following are proposed activities for consideration by the Elected Representatives of the Public to enhance their interaction with CSOs and the wider public of Latin America and the Caribbean:

MILESTONES Prior to September 2018 Prior to 1st MoS expected to Prior to 1st COP expected Signing Meeting be held in July 2019 to be held in July 2020 a. Face-to-face Meetings at the a. Webinar (Explore hosting in a. Webinar (Explore hosting country level between CSO and English and Spanish) in English and Spanish) Foreign Affairs & Environment Goals: Goals: Ministers 1. Provide an update on the next 1. Provide an update on the Goals: step of the process. process. 1. Raise awareness on status of 2. Define civil society’s role in the Escazú Agreement process. 2. Share and obtain feedback 2. Provide information on how CSOs 3. Strategize new ways of getting on language proposals for the can assist in advocacy efforts for more signatories from countries guidelines to govern the early signature and ratification. that did not sign on Sept. 27. Agreement (These can be planned on their own Activities if funds/resources permit, or they can be included on the agendas of & upcoming environmental meetings)

Goals b. Online/Social Media Campaign b. Frequent Skype Calls a. Frequent Skype Calls (See section below providing an Goals: Goals: outline for a social media campaign. 1. Keep abreast CSO’s positions 1. Keep abreast CSO’s To avoid duplication of efforts ahead of the 1st MoS. positions ahead of the 1st merge, where possible with 2. Provide timely updates on COP. campaign created by Amnesty activities to promote the 2. Provide timely updates International, The Access Initiative Agreement. on activities to promote and CIVICUS and Escazú partners.) the Agreement

c. Frequent Skype Calls Goals: 1. Provide timely updates on activities to promote the Agreement. 2. Provide information on how CSOs can assist in advocacy efforts for early signature and ratification.

II. Regional and National Activities to Raise Awareness of the Escazú Agreement

The following section outlines a few initiatives that can be utilized at the national and regional levels to raise awareness about the Escazú Agreement and promote its early signature and ratification. The activites described below are targeting both government and non-government stakeholders in an effort to reach as many people and organisations and to promote the early signature and ratification of the Agreement. The timeframe for these activites range from April to September 2018. Regional Level Objectives Target Audiences Desired Action/Response Channels Products/Tools Lead (assist) Timeline /Status Encourage early Environmental & Encourage and follow up with - Partners A sample letter has already been Elected Representatives April – 31st signature and Foreign Affairs Partners to send the Escazú - ECLAC to disseminate drafted in English and Spanish. August 2018 ratification among the Ministries/Focal Agreement letter to their through the Regional Public The petition by AI/TAI urging 33 LAC countries Point Ministries/Focal Point. Mechanism early signature and ratification - Emails has been launched. Provide timely updates LAC CSOs Intensified advocacy by a more - Partners - PowerPoint Presentations Elected Representatives April – on Agreement to CSOs. informed LAC CSOs. - Via the ECLAC’s RPM - Talks September 2018 - Social Media - One pagers Partners - Emails Vlogs EcoLAC Newsletter Inclusion of Escazú LAC Public Space to publicize the Agreement ECLAC Notices PowerPoint Presentations Elected Representatives April – Agreement on Regional and show linkages with other OECS website One pagers of the Public September 2018 Meetings’ Agendas. environmental matters, e.g. CARICOM website Videos Partners Climate Change and the SDGs. UN’s website Promotion of a Day of LAC Public Mobilize countries in the region - LAC P10 website & social Press Releases Elected Representatives September 26, 2018 Prayer and Action for Religious people to organize a activities to observe media pages Videos Members of the Public (One day before the Environmental LAC Governments a Day of Prayer and Action for - Via the ECLAC’s RPM Social Media Posts Churches UN General Defenders Environmental Defenders -Partners’ website Infographics with no. of Assembly) -The media Environmental Defenders killed Creation of key LAC Public Elected Representatives and LAC P10 Social media Press Releases; Elected Representatives July – August messages for use in CSOs/NGOs/ CBOs partners to come up with key platforms & website; Social Media posts; of the Public; 2018 early signature and Partners messages to ensure consistency TAI social media/website; Communiques to Governments; Partners. ratification campaign LAC Governments in communications to the Partners’ Social Media Funding proposals. (Message examples are public/governments. platforms/website. in the AI/TAI campaign) Increased media CSOs/NGOs/ CBOs Write and disseminate cover LAC Electronic & Print TV/Radio Interviews; Elected Representatives July – appearances to Partners note partners can use to request Media Managers Newspaper Features. of Public September 2018 publicize the media appearances and LAC Partners. Agreement. newspaper features.

National Level Objectives Target Audiences Desired Action/Response Channels Products Lead (assist) Timeline /Status Prepare proposals on specific General Public A more engaged and active citizenry List serve Llist of activities to Partners July – activities, beyond dissemination and Government Focal concerned about access rights in Emails raise awareness on Sept 2018. advocacy to raise awareness on the Points environmental matters. the importance of Agreement. CSOs agreement. Organize dialogues/meetings with Government Focal More countries signing early and Webinars Meeting reports Partners April – key CSOs, government Focal Point Point ratifying the Agreement. Face-to face Sept 2018 and other stakeholders to influence CSOs meetings government’s position and push for Other stakeholders Skype early signature and ratification. Organize meetings with members of Members of A more aware politicians concerned Emails Meeting reports Elected Representatives of July – Congress/Parliament to make them Parliament about access rights in environmental Telephone the Public; Sept. 2018 aware of the Agreement and seek matters. Partners support for its ratification; Propose assessment of the status of Government Focal Identification of gaps in mechanisms Local Laws Document showing Elected Representatives of July – laws and amendments, changes or Point required to promote access rights in Environmental an assessment of laws Public; Sept 2018 new legislation needed for the Lawyers/Partners environmental matters and proposed Treaties and new legislation Partners; Aarhus Convention implementation of the Agreement or new laws to address the issues. Cabinet required for the Representative; comment on such assessments if the memorandum implementation of University Law students. government will prepare them. the Agreement. Inclusion of Escazú Agreement on Government Focal Space to publicize the Agreement Government PowerPoint Elected Representatives of April – National Meetings’ Agendas. Points and show linkages to other ministries websites Presentation the Public Sept 2018 environmental matters (e.g. Climate One pagers Partners Change and Sustainable Development Goals) Identify champions to advocate for Singers, Actors, Recognized individuals/celebrities LAC P10 websites Short adverts Elected Representatives of July – Sept early signature and ratification Religious, Athletes, advocating for the Agreement. and social media Jingles Public 2018 media personalities platforms Songs Partners

III. Collate and Disseminate Partners’ Actions to Promote the Escazú Agreement

As is customary, partners from the LAC region have coordinated and participated in numerous activities to promote the Principle 10 process. The information is often passed on to the Elected Representatives of the Public for collation and then presented at the Negotiation Meetings. Thereafter, this is posted on www.lacp10.org and shared with partners via email or WhatsApp. For example: https://docs.wixstatic.com/ugd/0cd7e7_edfb46b6f22149ecb7147c2a1043d702.pdf However, due to the lack of funds to continue updating the website, iinformation from the last two negotiations has been disseminated to the wider public via postings on the website for Derecho, Ambiente y Recursos Naturales (DAR), a Peruvian partner CSO and TAI member .

Additionally, there is a vibrant WhatsApp group with 58 partners from across the LAC region. This platform is used to share updates from partners on their advocacy efforts and to provide details on upcoming events pertaining to the Escazú Agreement and who will be participating.

The following suggestions may be considered to augment the existing collation and dissemination methods, thereby allowing information to be shared with a wider cross section of people in a timelier manner:

• A Google Calendar – this free time-management and schedule Calendar would enable the Elected Representatives or designated partner(s) to create and edit events and invite others in the network to various events; • Mailing List serve – this electronic mailing list software will faciliate widespread dissemination by allowing a sender to email a single email address that is automatically sent to the subscribers to the list, and • Update the existing LAC P10 website’s, in particular its ‘Information Board’ and encourage partners to utilize it as a repository for materials on the Escazú Agreement.

IV. Online Campaign to Support Early Signature and Ratification

As at 2018 the combined population for Latin America and Caribbean is over 650 million people4. Therefore, in addition to the traditional use of print and electronic media it is critical to also utilize social media which has a wide following. This is an outline for a two month online/social media campaign of activites to support the early signature and ratification of the Escazú Agreement.

Objectives 1. To raise awareness among general public, CSOs and governments about the importance of early signature and ratification of the Escazú Agreement. 2. To obtain practical stories from CSO partners and ordinary citizens from the LAC region about what Principle 10 means to them and how its implementation will enhance their work/lives and to popularize the Agreement among regional and national stakeholders.

Actions 1. Send an email with the LAC P10 Facebook and Twitter handles reminding partners and the public signed up to ECLAC’s Regional Public Mechanism with the LAC P10 Facebook and Twitter handles and remind them to follow us in order to build and expand our audience. 2. Send reminders of the campaign calendar with general messages posted leading up the Sept. 2018 meeting. Specific messages can be crafted and disseminated based on the context of respective countries as it relates to the Agreement. 3. Request materials, preferably with images from partners for content for the Campaign.

Campaign period: July 27 – September 27, 2018

Outline of Calendar for Online/Social Media Campaign

4 http://www.worldometers.info/world-population/latin-america-and-the-caribbean-population/

Date Social Media Message Two months to go! Two months to the opening of the #EscazúAgreement at the United Nations General Assembly on September 27th. We need 11 of the 33 Latin America and Caribbean (LAC) countries to sign, so contact your Government today and encourage them to sign on early as we raise the standards for access to information, public participation and access to Facebook (FB) justice in environmental matters in the LAC region. Learn more about the Escazú Agreement here: https://www.cepal.org/en/subsidiary-bodies/regional-agreement-access-information- Friday, July 27, 2018 public-participation-and-justice

#Principle10 #TimeToSignP10

2 months before signature ceremony for the #EscazúAgreement. Encourage your Twitter (TW) government to sign on early at the UN General Assembly on Sept. 27! More info: https://www.cepal.org/en/subsidiary-bodies/regional-agreement-access-information- public-participation-and-justice

#EscazúAgreement is the first in the region to have requirements to protect Environmental Defenders. According to the Global Witness 2017 Report in 2016 there was a record of 200 killings of people defending their land, forests and rivers against destructive industries. If FB you demand a change, contact your government and encourage them to sign on early at the UN General Assembly on Sept. 27th! More info: https://www.cepal.org/en/subsidiary- Monday, July 31, 2018 bodies/regional-agreement-access-information-public-participation-and-justice #Principle10 #TimeToSignP10 #EscazúAgreement the first in the region to have requirements to protect Environmental Defenders. Tell your government to sign on early. More info: TW https://www.cepal.org/en/subsidiary-bodies/regional-agreement-access-information- public-participation-and-justice

What does the #EscazúAgreement or #Principle10 mean to you or your organization? Why is it important for your government to sign on early? How will its implementation enhance your work/lives? Email your articles or vlogs (videos not exceeding 3 minutes) to FB [email protected]. #Principle10 #TimeToSignP10

What does the #EscazúAgreement mean to you and why should your government sign on Tuesday, August 1, early? Email your articles or short videos to [email protected] 2018

LACP10 Articles and videos will be shared on the website. Wednesday, August 2, Website 2018

Date Social Media Message

Don’t know much about the #EscazúAgreement. Take 2 minutes to sign up the Regional FB Public Mechanism to keep abreast of the latest information such as the UN General Assembly on September 27th where we hope LAC countries will sign on to ratify the Agreement to raise standards for access rights regarding environmental matters. Sign up at: https://www.cepal.org/en/topics/principle-10/regional-public-mechanism #Principle10 #TimeToSignP10 Sign up to the Regional Public Mechanism and stay abreast of the latest information on the TW #EscazúAgreement. https://www.cepal.org/en/topics/principle-10/regional-public- mechanism

FB Chile, Costa Rica and Argentina have publicly indicated that they will sign the Thursday, August 3, #EscazúAgreement at the UN General Assembly on September 27th. Will your country take 2018 the bold step to do the same? Contact your Government delegate today! #Principle10 #TimeToSignP10

TW Encourage your government to join Chile, Costa Rica and Argentina and sign on early to the #EscazúAgreement at the UN General Assembly on September 27th.

V. Maintenance of the LAC P10 Webpage

This section will outline key areas of the LAC P10 webpage that needs to be updated in order to raise awareness and keep the public and stakeholders interested in the ratification of the Agreement and its subsequent implementation.

The LAC P10 website5 was launched in July 2016 ahead of the Fourth Negotiation Meeting of the Regional Agreement on Access to Information, Public Participation and Access to Justice in Environmental Matters. This tool, funded under an OSF Project was useful to raise awareness on the Principle 10 process and keep the public and stakeholders abreast of its ongoing development before, during and after negotiations. Information was collated from partners by an Elected Representative of the Public for onward transmission to the website developer, contracted by CIAM based in Panama, who was responsible for updating the website. Unfortunately, after the project ended in 2017, funds were unavailable to ensure the website’s continued update. As mentioned previously, DAR Peru, has graciously posted information emanating from the last two negotiations on their website.

Considering that the process has reached this important stage of ratification, the following recommendations are proposed in order to ensure that the website serves the function for which it was created: a. Identify new website administrator from among partners who can assist with frequent updates; b. The ‘Home’ page of the website should be modified to reflect a daily countdown to the September 27th Signing ceremony; c. A message to encourage visitors to the page to contact their respective governments/focal point regarding the importance of early signature should be on a highly visible section of the ‘Home’ page; d. The link to the sample letter promoting early signature and ratification should be on the ‘Home’ page (a link to the email address for the LAC focal points should be made available);

5 https://www.lacp10.org/

e. A link to a petition encouraging LAC governments to sign the Escazú Agreement at the UN General Assembly; f. Ensure timely translations of material so all posts can be made in English and Spanish; g. All Press Releases leading up to the UN General Assembly meeting as well as afterwards should be posted on the website and the links be placed on social media; h. The number of signatories to the Regional Agreement should be updated from 21 to 24; i. The ‘Documents/Videos’ section needs to be updated with pertinent information such as the text of the Escazú Agreement adopted in March 2018 and videos recorded at previous negotiations; j. The ‘News/Events’ page should be updated with Press Releases emanating from the recent negotiations; k. The page displaying the partners’ logo should be updated to reflect the Civil Society Organizations who have been actively promoting the Escazú Agreement, and l. Elected Representatives should continuously encourage CSO partners to submit content (articles, photographs, flyers, posters, videos, vlogs, etc.) for the website pertaining to their advocacy efforts to promote early signature and ratification.

Chapter 2

NEGOTIATION STRATEGY FOR PUBLIC PARTICIPATION

This chapter aims to provide key points that will ensure effective and meaningfull public involvement in the Agreement, particularly at the Meeting of Signatories (MoS), the Conference of the Parties (COP) and in the Implementation and Compliance Committee.

According to Article 15 (Conference of the Parties) and 18 (Committee to Support Implementation and Compliance) of the Escazú Agreement, the following issues will be addressed at the first COP:

1. Rules of Procedure and Modalities of Public Participation, which includes election of Representatives of the Public and the proposal to have the public’s representative/s in the Bureau of the Agreement. 2. Periods during which the COP will meet 3. Financial provisions 4. The rules relating to the structure and functions of the Committee to Support Implementation and Compliance.

The main proposals that the public need to address are: the modalities of public participation, the Rules of Procedure and structure and functions of the Committee to Support Implementation and Compliance.

Even though the Modalities for Public Participation has become a reference and benchmark for other international processes, the modalities can be improved. The meaningful participation in the Implementation and Compliance Committee and in the COP will be crucial for interpretation and for keeping the Agreement a useful living agreement.

I. Public Participation in the Institutional Structure and Activities of the Agreement

1) The functioning of the Escazu Agreement shall be coherent with the principles and standards of the Agreement and also raise the bar of the negotiation process and other international related agreements. Ensuring this objective through innovative proposals that are effective, efficient, inclusive, transparent, participatory and accountable is a responsibility of both State Parties and the Public. Parties must take positive action to promote that the interested public is active and closely involved in determining the rules of procedure and in the development of the framework for monitoring, evaluation and reporting on the implementation of the Agreement..

At its first meeting, the COP will discuss and adopt the rules of procedure including the modalities for participation by the Public. The experience of the process and international standards must be the starting point for meaningful debate and dialogue.6 The principles of the Agenda 2030 for sustainable development of openness, inclusion, participation, and transparency7 are guidelines that can be applied. Particular attention must be given to the Public proposals on environmental defenders and persons and groups in vulnerable situations.

Due consideration has to be made to facilitate public participation in defining the framework for monitoring and evaluation, as well as in assessing the effectiveness of public participation in the Agreement. As in the case of the Aarhus Convention, national imlementation reports to the COP should be required from each Party and prepared with public involvement. The draft report would be made available for public comment and these comments would be reflected in the final report.8 A

6 It is pertinent to recall that the Human’s Rights System acknowledges the right to participate in the conduct of public affairs clarifying this is a broad concept that covers the formulation and implementation of policy at international, national, regional and local levels. Likewise, it has emphasized that where a mode of participation is established, no unreasonable restrictions should be imposed. Human Rights Committee, General Comment Nº 25, Article 25 (The right to participate in public affairs, voting rights and the right of equal access to public service), 1996, CCPR/C/21/Rev.1/Add.7 available in https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2fRev.1%2fAdd.7&L ang=en 7 Resolution 70/1 of 25 September 2015 of the United Nations General Assembly, entitled “Transforming our world: the 2030 Agenda for Sustainable Development” Article 74.D available in https://sustainabledevelopment.un.org/post2015/transformingourworld

8 In the case of the Aarhus Convention, a decision for a reporting mechanism was made before the second COP. (The first reporting was made for the 2nd COP.) There is an online format for reporting made available on the Aarhus website which

regional synthesis report can also be prepared about the deveopments, trends, difficulties and obstacles for submission to the COP, which together with the national implementation reports, helps to monitor implementation of the Agreement and can be the basis for developing task forces and working groups on identified issues.

The contributions of the Public to the implementation of the Agreement can also be published in the Clearing House9.

2) Ensuring a democratic debate where the public can exert influence requires, e.g. open sessions, a broad concept of the Public as well as representatives, recognition of public proposals, participation in the subsidiary bodies of the Escazu Agreement and representation to support coordination, steer dialogue and contribute to the implementation by being part of the directive body.

It is crucial to have a general rule of open sessions in all bodies and activities of the Agreement, allowing the Public, in the broad term used in the negotiation process, to attend, report, and make statements and proposals in all sessions including COPs, as well as participate in decision-making of these bodies. Sessions must be public with only a few and previously agreed exceptions and the information provided must follow the characteristics of the right to information present in the Agreement and the principle of maximum disclosure. Regardless of this openness, efficiency in this phase of implementation demands a new election of representatives from the Public that responds to a gender approach, inclusion, and a regional balance. Therefore, there must be main and alternate representatives from each one of the following sub-regions: from the Caribbean , from Central America and Mexico, and from South America. Also, considering there will be six representatives, at least three must be women and at least one must have a strong track record as a human rights defender in environmental matters. Elections should take place in or around March 2019 with the support of ECLAC to provide sufficient time to prepare for the MoS.

should be used. The agreed format makes possible the comparability among the countires’ situation. See http://www.unece.org/env/pp/reports.html 9 In 2015, the Access Initiative and the World Resources Institute launched the Environmental Democracy Index, that evaluates countries based on the on the Guidelines for the Development of National Legislation on Access Rights and will be updated every two years. See World Resources Institute (WRI), Environmental Democracy Index [online] www.environmentaldemocracyindex.org

Besides, when proposals are being discussed, contributions from the Elected Representatives of the Public shall be reflected as their own in the text regardless of the eventual support of Parties. Implementation also requires continuous and in-depth dialogue between representatives from the Public and presiding officers from Parties. In this sense, they must be able to participate in this body with representatives, preferably one each from the Latin American and Caribbean sub-regions, as well as in the decision-making process for the use of funds in the Voluntary Fund that will support the Agreement.

3) Capacity building, accountability, and transparency are cross-cutting issues that enhance democratic governance. The COP must give attention to emerging themes and the development of technologies ensuring the Convention adapts to reality and new challenges. Also, the barrier of costs shall be removed through a clear commitment of Parties to support public participation by allocating sufficient resources.

Due information available in a timely manner, transparency and the use of technologies should be present in the COP and subsidiary bodies including the procedures and findings of the Committee to support Implementation and Compliance. This should include public access to draft documents in early stage of decision-making, and documents before and during sessions, as well as in intersessional period. For the wider public not attending meetings, access can be faciliated by providing draft and finalised documents on ECLAC’s webite or dissemination via RPM and live video transmission of sessions. The public should have the right to attend sessions of the Committee to support implementation and compliance unless a session is declared confidential due to some sensitive issue (e.g. the person who is in the hearing needs to keep anonimity due to the risk of being intimidated or threatened etc). The Committee should decide on a case-by-case basis whether it is justified to have a closed session. In addition to capacity building carried out at the regional level as decided by the Parties in their future work programme after entry into force of the Agreement, these Parties also have to provide funding and capacity building to enable people to use spaces and procedures for getting involved in the processes. Special attention must be given to Human Rights Defenders in Environmental Matters considering this is the first binding instrument dealing with a particularly

dramatic reality in the region.10 Besides, various organisms and programs, with experience in access rights can support the role of different actors like ECLAC, UNEP, UNITAR, OAS, and UNESCO.11

4) The Agreement shall reflect the diversity of the region and the principle of inclusion ensuring geographic representation and a gender balance in all activities and bodies of the Agreement.

Another outstanding aspect of the instrument was the attention given to those who face special difficulties in exercising their access rights. Procedures and decisions must take all opinions into account, paying particular attention to the concerns of persons or groups in vulnerable situations. Also although the Agreement does explicitly mention a gender approach, affirmative measures are an urgent trend that the Agreement can address. Parties must ensure that the composition and activities of the Agreement, including the Committee to support Implementation and Compliance, are gender- sensitive and regionally balanced thereby encouraging inclusion and diversity12.

5) At a national level, Parties must establish mechanism and modalities for public involvement considering the obligations of the Agreement. The Public must be supported so they can engage in cooperation and implementation activities.

As proven in the process of negotiation, Parties must relate with their societies by undertaking activities and consultations at the national level. Therefore, they shall make an explicit commitment to specifically inform the COP how they have promoted and implemented participation including the participatory means used for defining those measures (Art. 15. 5(c)). Moreover, the Public must also be able to develop and present their own studies and be involved in national reports on the state of

10 The Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, adopted by the General Assembly, 53/144, 1999 refers to the right, individually and in association with others, to solicit, receive and utilize resources for the express purpose of promoting and protecting human rights and fundamental freedoms through peaceful means. Available in https://www.un.org/ruleoflaw/blog/document/declaration-on-the-right-and-responsibility-of-individuals-groups-and-organs-of- society-to-promote-and-protect-universally-recognized-human-rights-and-fundamental-freedoms/

11 See Access to information, participation and justice in environmental matters in Latin America and the Caribbean: Towards achievement of the 2030 Agenda for Sustainable Development in https://www.cepal.org/en/publications/43302-access- information-participation-and-justice-environmental-matters-latin-america 12 The Committee on the Elimination of Discrimination Against Women, in its General Observation no. 23, Political and public life, 1997, A/52/38, highlights that Governments are obliged to ensure the presence of women at all levels and in all areas of international affairs available in http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom23

the environment (Art. 6.7), independent environmental performances reviews, (Art. 6.8) spaces for consultation. (Art. 7.13) and in capacity building and cooperation activities (Arts. 10.3 and 11.5) 13. In particular, the Public shall be consulted before any meeting or activity of the Convention and allowed to make contributions. Parties must also inform about their positions and performances presented in international fora related to access rights including the Agreement.

II. Public Participation in the Implementation and Compliance Committee

1) The Public shall be able to present candidates of integrity and ability with appropriate training and experience, and vote for their representatives to be members of the Implementation and Compliance Committee.

Members of the Implementation and Compliance Committee should not be representatives of the Parties but must serve in their personal capacity having regard to their proven competence, knowledge, integrity, and expertise. In order to maintain the independence and impartiality and to foster diversity of knowledge and experience. Membership should be rotated with the oldest serving members retiring and members serving no more than two terms.

Considering the population and number of Latin American and Caribbean countries, the Committee could comprise at least 5 members with balanced representation from the sub-regions. The membership should also reflect gender balance.

Finally, taking into account the value of the Public recognized in different articles of the Agreement (e. g. Preamble and Arts. 4.6, 10.2.f, 10.3, 10.4) the Public should have the right to nominate candidates and the Representatives of the Public should have a vote in selecting members.

13 The Human´s Rights System highlights the duty to facilitate public participation in environmental decision-making in order to safeguard a wide spectrum of rights from environmental harm. See reports of the Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, A/HRC/25/53, 30 December 2013; A/HRC/28/61, 3 February 2015; A/HRC/31/52, 1 February 2016 available in https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx

2) The Committee to support Implementation and Compliance must benefit from inputs of the Public to raise awareness, report and elaborate surveys and assessments.

As an organ to support Parties, the Committee shall contribute to increasing public awareness in the Region about access rights and its importance for democracy and sustainable development. Also to facilitate the application of the Agreement, the Committee may advise any State seeking counsel on how its domestic legislation or practices conform to the treaty, conduct overall surveys and assessments or participate in the environmental performance reviews of Art. 6.8. Additionally, the Committee must also respond to requests made by the COP as well as submit periodic reports of its work. In this function, the space for the Public contributions must be guaranteed in coherence with the recognition of its role.

3) The Public, complying with the formal procedure to be established, shall be able to trigger this Committee regarding alleged incompliance with the Agreement and assist the work of the Committee by providing knowledge and expertise.

The ability of the Public to trigger the Committee will be discussed considering the Aarhus Convention and regional experience. Giving the Public the right to present a communication to the Committee, under a known and clear procedure, can help people gain trust in governments and prevent violent conflicts14. Regardless of this faculty, the Committee shall always take into account information and receive legal or interdisciplinary arguments from the Public that comply with rational requisites, such as seriousness and respect, and in so doing promote contributions of experts and local leaders.

4) The Committee, considering appropriate public involvement, must be able to make direct recommendations to a State which may act upon them immediately, considering the importance of preventive and timely action in environmental matters and regardless of the COP´s functions.

Bearing in mind this is not a judicial body of binding decisions, the Parties can move forward trusting the Committee with a mandate to give direct recommendations or assistance to a Party following its findings and in consideration of the Public’s input. This is without prejudice to measures that the COP

14 There are good practices in the Region of procedures that allow members of the public to raise claims for independent investigation like the Submissions on Enforcement Matters process established by the North American Agreement on Environmental Cooperation and by the Canada - Chile Agreement on Environmental Cooperation http://www.sice.oas.org

may decide to adopt with the participation of the public such as follow up strategy, developing special reports, protocols, guidelines, cooperation programs or working groups. Also, the Committee shall be able to follow up and monitor the petitions reviewed with the participation of the public. In urgent cases of violations the Committee (or the COP) should act immediately or in a very short time, otherwise the preventive function will be difficult in such cases as the Committee’s procedure and the COP’s action may take a long time. An example of an urgent situation is where an environmental human rights defender is being threatened and their life is at risk as a result of a State’s breach of its obligations under the Agreement.

For the Advocacy and Negotiation Action Plan see annex II.

Chapter 3 GOVERNANCE STRUCTURE FOR CIVIL SOCIETY ENGAGEMENT

This chapter examines the existing governance structure for civil society engagement in the Escazú Agreement which is essentially the Elected Representatives of the Public working in coordination with the Access Initiative (TAI) network, a global informal network of environmental civil society organisations and individuals.

The Elected Representatives of the Public have through the election process brought legitimacy to the involvement of the public in negotations while the TAI network has been able to leverage the expertise and financial support of its members to assist the Elected Representatives of the Public. Notwithstanding, a signifcant limitation is that there is currently no legally registered oganisation with responsibility solely for coordinating and promoting the collective engagement of the Public in the Escazú process. As we embark on the implementation phase of the Escazu Agreement, it is prudent to examine the effectiveness of the existing governance structure, compare the strengths and weaknesses of the existing and alternative governance structures and provide recommendations for the future.

The alternative structures examined in this report are: a) Registration of a non-profit organisation in at least one Latin American and one Caribbean country b) A coalition of organisations and individuals with a registered Secretariat dedicated solely to the Escazu process.

The existing and possible future governance structures are analysed and compared with respect to several core functions needed to facilitate public involvement in the Escazu process: funding, administration, negotiations, outreach (communications and advocacy), membership and elections.

The chapter is divided into the following sections: 1. Introduction to existing and future governance structures 2. Comparison of governance structures 3. Registration process for a non-profit organisation

I. Description of Existing and Future Governance Structures ELECTED REPRESENTATIVES OF 1. THE EXISTING GOVERNANCE STRUCTURE THE PUBLIC As a group of six individuals, the Elected Representatives of the In March 2015, two main Public do not have a staffing complement or funding to carry out and four alternative their functions. They also lack the advantages of being an Representatives of the organisation which include the ability to solicit donor funding to Public were elected by support their work. individuals registered in the Regional Public Mechanism As it currently stands, the Elected Representatives of the Public . These representatives are are all TAI members although this will not necessarily be the case comprised of three (3) in the future. It was through their work with TAI that the Elected women and three (3) men Representatives of the Public first became aware of and engaged from Argentina, Colombia, in the Escazú negotiations. Chile, Jamaica, Mexico and TAI’s involvement in the Escazú process began as early as 2012 Saint Lucia. Under the with discussions on the possibilty of having an access rights Modalities of Public treaty. The TAI network has been instrumentally involved in the Participation, the Elected Representatives can: negotiation process for the Escazú Agreement by: a) Leveraging the expertise from its members to assist in the a) Make opening development and implementation of the negotiations strategy statements at the (language proposals for the wording of the Escazú Agreement beginning of Negotiation and negotiators on behalf of the public). Meetings b) Undertaking outreach and advocacy to spread awareness of b) Organise input from the the negotiation process and lobby government to adopt a public at negotiations progressive stance on the Escazú Agreement. meetings at the request of the Chair c) Soliciting grants to support the work of the Elected

Representatives of the Public and TAI members involved in the c) Attend preparatory negotiation of the Escazú Agreement. (virtual) meetings with the Presiding Officers

For more information: https://www.cepal.org/en/subsid iary-bodies/regional-agreement- access-information-public- participation-and-justice

A signifcant limitation of this partnership is that it does not address that there is currently no oganisation registered as a legal organisation with responsibility solely for coordinating and THE ACCESS INITIATIVE promoting the collective engagement of the Public in the Escazú (TAI) process. This has led to the following issues: 1) Complicated arrangements for soliciting funding which include identifying eligible and willing organisations to TAI is a global network of over voluntarily fundraise for the work of the Elected 250 CSOs and individuals Representatives and channeling funds through these working to promote organisations. environmental democracy. 2) Reliance on TAI network members to voluntarily assist the Elected Representatives of the Public in carrying out The TAI network is led by a functions (outreach, communications, advocacy and core team of seven (7) CSOs negotiations). elected by the member 3) TAI network members working voluntarily are not organisations for each region accountable to Elected Representatives of the Public. The TAI Core Team Leader serves a four (4) year team. The TAI Core Teams are for the 2. FUTURE GOVERNANCE STRUCTURE following regions: Africa, i. Registration of a non-profit organisation South, Asia, South East Asia, Latin America and the An option for a governance structure to continue civil society Caribbean, Europe, North engagement in the negotiation process Escazú Agreement is the America and the International registration of a non-profit organisation. Chapter. There are currently 60

members of LAC TAI members. Registration of a non-profit organisation has several advantages The current TAI Core Team which include: Leaders for that region are: a) The organisation exists in perpetuity Centro Mexicano de Derecho b) The organisation has legal personality and can access Ambiental, Cultura Ecológica, loans, grants and control its own funds and can sue and Comunicación y Educación be sued in its own name. Ambiental and Ambiente y c) The members of the organisation enjoy limited liability Sociedad. as their legal exposure is limited to the amount

guaranteed in their registration documents. The Secretariat is the World Resources Institute (WRI).

Given the diversity of the sub-regions of Latin America and the Caribbean in language and culture, and the need to ensure that the needs and voices of the people of each sub-region is adequately represented, it is recommended that the organisation be registered in at least one Latin American counrty and one Caribbean country.

This chapter considers registration of the organisation in Chile under the Civil Code and the Associations and Citizen Participation in Public Administration Act (Law 20.500) and in Jamaica under the Companies Act, 2004. In Jamaica, an overseas company registered in a foreign country such as Chile can be registered in Jamaica under the Companies Act without the need for the creation of new incorporation documents or a new Board of Directors or new/additional members.

The members of the organisation can be both organisations or individuals and could be those currently working collaboratively on the process (‘prospective member’). The criteria for including new members would have to be agreed upon and the process can be relatively simple as decided either in the incorporation documents or by the Board of Directors. The Board of Directors would be agreed upon by the prospective members. ii. Coalition of Latin American and Caribbean organisations with a dedicated secretariat

This is an option to establish an informal civil society network, composed of NGOs and individuals from Latin America and the Caribbean with a dedicated Secretariat registered as a legal organisation. This coalition would be created specifically for the collective engagement of civil society in the Escazú Agreement process.

Members of the network that are also elected as Representatives of the Public in this process to coordinate civil society participation, would coordinate the engagement of submissions to governments or other treaty bodies, lead oral submissions in meetings and prior to meetings, work on capacity building to improve submissions from civil society in the process, and also conduct public awareness campaigns, among other functions.

The governing body of the coalition would be a Board with members from both regions, elected by the coalition members, to guide the network and coordinate activities. Its rules of procedure and membership would be decided by members of the coalition.

Finally, a technical Secretariat (e.g. an international or a regional non-governmental organization), would support all of this work and would undertake all administrative burden, as the legal umbrella of the coalition.

II. Comparison of Existing and Future Governance Structures

This section of the strategy summarizes the advantages, disadvantages (strengths and constraints) of the different governance structures for collective civil society engagement.

The specific functions and roles of the governance structures to be analysed will include: a) Funding: This function refers to the search for and receipt of donations and resources required for the correct performance of the activities of the organization or coalition.

b) Administration: This refers to which person or body of persons will perform executive duties within the organization or the coalition. This includes the administration of funds or grants, and to guide and coordinate all activities of the organisation.

c) Membership: this criterion refers to who may be part or member of the organization or coalition. This may be open to all individuals and civil organizations registered in the Regional Public Mechanism, and/or be previously decided in the bylaws of an organization, and/or based on the criteria agreed by the coalition members.

d) Negotiations and relationship with Escazu bodies: This is the role of civil society, irrespecitve of the governance structure, to represent the public in negotiations at COP and to effectively interact with ECLAC and subsidiary bodies in furtherance of the implementation of the Escazu Agreement. Within the CSO governance structure, persons may be appointed to coordinate the negotiations on behalf of the group. It may or may not be the case that these persons are also the Elected Representatives of the Public, albeit if this were the case this would provide greater legitimacy as the latter is recognised within the Escazu process.

e) Outreach, Communications and Advocacy: This is the role of civil society to undertake outreach, communications and advocay to further the implementation of the Escazu Agreement. Specific roles may be assigned within the CSO group to coordinate these tasks. A wide and diverse membership or partnerships may be critical to this function. f) Elections: The CSO governance structure will require the election of a decision-making governing body to have oversight of the CSO . The rules for the operation of this governing body must be transparent and enforceable in order to hold the body accountable to the membership. The election procedure should be agreed upon by the members and be fair and impartial. It is not necessarily the case that the Elected Representatives must be a part of this governing body although if this were the case it would ensure that the body has greater authority and synergies when engaging with the COP, ECLAC and subsidiary bodies of the Escazu Agreement.

Table 1 Comparison of Existing and Future Governance Structures EXISTING STRUCTURE (TAI NETWORK) REGISTERED NON-PROFIT ORGANISATION COALITION WITH DEDICATED SECRETARIAT Organizational Unregistered, informal global network of Non-profit organisation Unregistered coalition of LAC organisations status individuals and organisations registered/incorported in LAC and individuals with registered secretariat

Governing body: TAI Core Team leader Governing body: The Board of Directors Governing body: Elected group of coalition with members from LAC sub-regions members/secretariat from LAC sub-regions

Funding Solicited and received by TAI members Solicited and received by organisation Solicited and received by the secretariat and and Secretariat of TAI network member organisations

Administration Funds and activities controlled by Funds and activities controlled by Funds and activities controlled by member organisations receiving funds management staff/Board of Directors secretariat/member organisations receiving funds

Membership Open to all individuals and organisations First members agreed at registration; other Open to organisations and individuals with that are a part of TAI network members included based on criteria criteria decided by coalition members established by Board of Directors

Negotiations and Coordinated and executed by Elected Coordinated by Board of Directors Coordinated by governing body/ secretariat relationship with Representatives of the Public, TAI Escazú bodies network and partners in consultation Executed by Elected Representatives of the Executed by Elected Representatives of the with Regional Public Mechanism Public, Board of Directors and members in Public, governing body and coalition consultation with Regional Public members in consultation with Regional Mechanism Public Mechanism

Outreach, Coordinated by TAI members and Coordinated by Board of Directors Coordinated by governing body and Communications Elected Representatives of the Public secretariat and Advocacy Elections TAI Core Team elected by TAI members Board of Directors elected by members Governing body elected by coalition members Election procedure set by TAI Election procedure set by incorporation Secretariat documents (agreed by members) Election procedure set by coalition members

Every 4 years Annually/set out in incorporation documents Term determined by coalition members

Strengths Pre-existing structure /no start up costs Exists in perpetuity Works under legal umbrella of Secretariat which undertakes administrative burden. Flexible approach to governance; Oversight by a Board of Directors of elected flexible procedures members Flexible approach to governance; flexible procedures No administrative requirements related Eligible to solicit and receive funding to registration and operation of an Secretariat can solicit and receive funding organisation Ability to enter into contracts Rules of procedure and membership decided Secretariat can solicit and receive Articles/ bylaws provide procedural by members funding certainty, oversight and accountability to members

Limited liability of members (debts and liablities are those of organisation) Constraints TAI Core Team has no legal Start-up costs required for registration, bank Start-up costs required for registration of duty/accountability to members account and core costs of operation Secretariat, bank account and core costs of (administration) operation (administration) TAI network’s remit is wider than Escazú

process: TAI Core Team does not have Requires filing of registration documents at to be involved/interested in Escazú start up and filing documents annually Requires filing of registration documents at process and neither does the members during operation start up and filing documents annually who elect the TAI Core Team leader during operation for the Secretariat Changes to articles/ bylaws requires special Rules of procedures for membership and resolution of members and filing of Benefits of legal registration does not extend consulting members not specific to documents to members (Members could be separately Escazu process liable for actions of network e.g. lawsuits, debts) No centralized oversight or control on the solicitation and use of funds Secretariat can enter into contracts but can only do so on its behalf and not as the Fundraising and activities dependent on network the voluntarism of members

III. Requirements for Creation of Civil Society Organisation

This section of the strategy will examine the requirements for registration of a CSO organisation in Chile and Jamaica including: a) The legal procedure for establishing the organisation This chapter will explain in detail the conditions to constitute, modify and to dissolveorganisations, as well as, the different types of organizations, their rights, obligations during their functioning and the role of the State in supporting them. b) Tax obligations This chapter will examine tax and accounting obligations applicable to non-profit entities regulated in the income tax law, as well as the exemptions that are applicable in this case.

c) Generation and receiving of funds (charitable status) This chapter will analyse the regulation and tax obligations for receiving funds and grants in Jamaica and Chile and from abroad, and the exemptions applicable to non-profit entities. We will also examine the possibility for the organization for generating their own funds through professional goods and services in line with the objective of the organisation and its regulation.

CHILE

1. Legal procedure for establishing a CSO organisation

The constitution of a non-profit legal organisation (referred to in Chile as an “association”)15 is mainly governed by Law No. 20,500 on "Associations and Citizen Participation in Public Administration" and by Title XXXIII of Book I of the Civil Code. a) The first step is to go to the Municipality corresponding to the borough where the organisation will be established or to the Notary Public’s office or to the Civil Registry to request the Constituent Assembly. This is the first meeting of all the members of the organisation where they agree to establish the organisation. There is no minimum number of persons required.16 However, all the members of the board of directors must be present at this constituent assembly.17

15 Within this type of legal persons are associations and foundations. The fundamental difference between associations and foundations is not in their purposes, which may be similar, but in the fact that associations have a set of people as their predominant element, while foundations have a set of assets or assets as their primary purpose. For this reason, it can be concluded that associations can be a better alternative for organizing this network, considering that the central element of the network is that it has a group of natural and legal persons organized for the same purpose. 16 However, bearing in mind the incompatibilities and the bodies that must exist within it, at least six or nine members are required depending on whether or not the auditing committee is established. 17 Any type of person can be members of an association: natural persons or legal persons including institutions, organizations or companies, nationals or foreigners. 34

b) The articles of incorporation and bylaws of the association must be presented to the municipality of the borough where the organization will be domiciled. There is a maximum of 30 calendar days to submit these documents. The background certificates of the board members and a certificate from the Civil Registry must also be attached, which guarantees that no organization of the same or similar name is being formed.

c) Once the documents for registration have been deposited with the relevant municipality, the municipal secretary has a maximum of 30 calendar days to object or approve the registration. If no comments have been made after 30 days, the organisation shall be deemed to have been properly established. If an objection has been raised, however, the new organization has 30 days to correct the errors and resubmit the documents for further analysis.

d) After approval of the registration documents, the municipality sends the records to the Civil Registry to register the organization as a legal organisation. Upon registration, the organization will have full legal personality.

The Constitutive Act This document must identify the members of the organization, contain the express approval of the statutes, as well as the designation of the board of directors and the other initial positions of the organization.

Cost of Registration The national register of non-profit legal entities is maintained by the Civil Registry and Identification Service. Its objective is to register and update the records related to the constitution, modification, dissolution or extinction of non-profit legal entities. This registration is free of charge.

Bylaws Without prejudice to other elements that may be agreed upon by the partners at the time of incorporation of a corporation or foundation, bylaws of legal entities shall contain: a) Name and address of the legal organisation: The name must refer to its nature, purpose or object. In addition, it may not be identical or confusingly similar to any other legal organisation in force. The domicile is the head office of the organsation, that is to say, the borough where it will exercise its rights and contract its obligations. b) Duration, where it is not established for an indefinite period.

c) Indication of the purposes for which it is intended: The purpose or object of the association must be clearly and precisely stated. The different laws governing donations specify that organizations eligible to receive donations must refer to certain items. d) The assets that make up its initial patrimony, if any, and the manner in which they are contributed: In associations, the patrimony is formed with the quotas or contributions, previously determined by the assembly, contributed by the members of the organisation. It should be noted that, for associations, it is not obligatory to have an estate to be constituted. e) The provisions established by its administrative bodies and their attributions. f) Provisions relating to the amendment of the statutes and the expiry of the legal person, indicating the non-profit institution to which its assets would be transferred in the event of dissolution. g) Rights and obligations of its members, the conditions for their incorporation and the form and reasons for their exclusion.

Dissolution Corporations will be dissolved, according to Article 559 of the Civil Code: a) For the expiring term of its duration, if any. b) By agreement of the extraordinary general assembly. In this case, the dissolution requires the approval of two thirds of the members attending the meeting. c) By enforceable court order, if it is prohibited by the constitution or the law, or in serious breach of its statutes. d) For all other causes provided for in the statutes and laws.

Bodies of the legal organisation a) General Assembly of the members of the corporation The General Assembly is the body in which all the members of an association meet. Assemblies are held on an ordinary basis once a year, or extraordinarily as required by the needs of the association, which may be attended by all members that belong to the association.

Decisions are made by a majority of the members of an association that has, according to its bylaws, a deliberative vote, and must have a book or record that ensures that the decisions made are recorded.

b) Board The direction and management of an association shall be vested in a board of directors of at least three members, elected by the Assembly, whose term of office may be extended for up to five years. At least three members are required, as the offices of president, treasurer and secretary must be

filled. They can be nationals or foreigners. Their functions and form of designation of the board must be established in the bylaws. Board of Directors Meeting The Board of Directors shall meet with the absolute majority of its members and its resolutions shall be adopted by the absolute majority of those present, deciding in the event of a tie, the vote of the Chairman. The Board of Directors may hold ordinary meetings agreed upon for regular intervals or extraordinary meetings when any of the grounds contemplated for such a purpose occur. Finally, the possibility of having virtual or telephone sessions can be established to facilitate the participation of the directors.

Chairman of the Board The chairman of the board of directors shall also be the chairman of the association, shall represent it judicially and extra-judicially and shall have such other powers as the bylaws may provide.

Treasurer, secretary and other board positions The offices of treasurer and secretary must necessarily exist in a board of directors and their appointment form and attributions must be established in the bylaws themselves.

Auditing In relation to internal controls, organizations are required to report fully and in detail once a year. It is submitted to the General Assembly. Accountability includes a balance sheet and a report on the activities carried out.

As far as external controls are concerned, every organization with legal personality must send its annual reports and financial statements to the Department of Legal Persons of the Ministry of Justice.

2. Tax and accounting obligations applicable to non-profit organisations

a) Enroll in the Single Tax Role Any agent acting on behalf of the association must request registration for the Single Tax Role from the Tax Service Unit that has jurisdiction in its domicile, or through its virtual office.

b) Declaration of initiation of activities Nonprofit associations that do not perform activities that fall into the first category of the Income Tax Law are only required to register for the Single Tax Role. However, to the extent that they start businesses or work that may produce taxable income, they must submit an affidavit on such work to the Tax Service Unit, within two months following the month in which they begin their activities.

c) Keep accounting records 37

Any person required to provide proof of actual income shall do so by means of reliable accounts in the national currency.

d) Pay the corresponding taxes pursuant to the Income Tax Law Decree Law No. 824. The wealth that associations have, in general, is only constituted by social quotas that their associates contribute for the financing of the social activities that they carry out, and they do not constitute income for tax purposes. However, if this type of organisation carries out operations or activities that generate a profit that is included in the concept of income defined for tax purposes, it is affected by the Income Tax Law.

e) File annual tax returns Taxpayers taxed in the first category are required to file an annual affidavit of their income in each tax year for the income earned or received in the previous calendar or business year.

3a. Generation and receiving of funds (charitable status) a) Initial contributions The initial contributions are the sums of money or goods delivered by the associates at the time of the association’s constitution. The Tax Service Unit has indicated that these contributions will not be subject to the established taxes. b) Social contributions The periodic membership fees, which may be fixed or variable, are the financing that the collaborators or partners of an association undertake to contribute, which may consist of the delivery of money or goods. The Tax Service Unit has ruled that these fees are in the nature of non-taxable income. c) Sales of goods, provision of services and miscellaneous income: The Tax Service Unit has also indicated that tax is payable for other types of income that associations can earn. i. Associations may acquire, retain and dispose of all types of property, free of charge or for a valuable consideration. ii. Associations may carry out economic activities related to their purposes. They may also invest their resources in the manner decided by their management bodies. The income received from such activities shall be used only for the purposes of the association or foundations or to increase their assets. iii. Rental income from the rental of its property (furnished and unfurnished). iv. Interest and income from bonds, promissory notes, other cash and cash equivalents. In these cases, they must comply with the tax obligations detailed above. In other words, there is no general exemption that benefits associations. 38

b) Grants i. Donations from Chile Donations from Chile must be authorized by the courts. This authorisation procedure is called an 'insinuation'. In addition, they must pay the tax pursuant to the Law on Inheritance and Grants, unless they take advantage of any of the exemption mechanisms contemplated in the legislation.

ii. Donations received from abroad: Donations received from abroad are exempt from the insinuation process and the tax on donations. According to the Tax Service Unit, the donor must be a foreign donor, with no domicile or residence in Chile; the recipient must be resident in Chile; and the donated assets must be located abroad or the donated funds must originate from a foreign source.

JAMAICA

This section examines the procedure for registration of a non-profit as a company without share capital and limited by guarantee or registration of an existing overseas company in Jamaica under the Companies Act of Jamaica 2004.

A company without share capital and limited by guarantee has no share capital or shareholders. The company’s members are its ‘guarantors’ who undertake to contribute a minimal amount towards paying its debts in the event of its being wound up and if the company’s assets are insufficient. Members are liable only up to the amount of the guarantee which can be any amount and is set out in the company's articles. Any profits earned cannot be distributed to its members but must go towards the objectives of the company.

1. Legal procedure for establishing the organisation

Registration of a new company limited by guarantee

Registration of a company without share capital and limited by guarantee is done through with Companies Office of Jamaica. As a first step, a company name can be reserved for up to 90 days with the Companies Office before it is registered to ensure it is available for use. This step is optional. a) Submission of Company Documents

The following documents must be submitted to the Companies Office for registration:

i) The Articles of Incorporation (Form 1B)

The Articles of Incorporation are the constitutional documents (bylaws) of the Company which detail how the company is governed. The Articles must contain the following information:

• The Name of the Company, which must include “Limited” as the last word of the name. Once registered the company limited by guarantee can apply to have the word ‘limited’ removed from its name due to is charitable objectives. • The registered address of the company which must be situated in Jamaica; • Minimum and/or maximum number of Directors • The subscribers (first members) of the Company • Any restrictions on the business that the Company may carry on.

ii) The Business Registration Form This form captures the required information on the directors, secretary, registered office and the relevant information for the payment of taxes with the National Insurance Scheme, Tax Office, Heart Trust and National Housing Trust.

The form must be signed by all Director(s) and the person declaring the accuracy of the information submitted on the form.

iii) Valid ID A certified copy or original valid government issued identification of the principal director and the person declaring the accuracy of the form must be submitted.

b) The documents submitted to Companies Office are examined to ensure that they are fully and accurately completed and if they are in order, a Certificate of Incorporation is issued along with a Tax Registration Number and National Insurance Scheme number. The Company must also register with the National Housing Trust.

Registration of an overseas company

An overseas company can operate in Jamaica but must be registered with the Companies Office. In this case there is no need for creation of incorporation documents, additional Board Directors or members.

Within one month of establishing its operation in Jamaica, the overseas company must file with the Registrar of Companies, a Form 31 and a certified copy of the Charter, Statute or Articles of the company or other instrument constituting or defining the constitution and name of the company. The

copy of Articles of Incorporation must be certified to be a true copy of the original by an official of the Government body responsible for custody of the original document.

After registration, the overseas company must file a Balance Sheet, Profit and loss account in accordance with the Companies Act 2004.

Cost of registration

The cost for registration of a company (new or overseas) is JMD$25,000 (plus JMD$500 stamp duty). Registration of a company can be done within as little as four working days.

Bodies of the legal organisation a) Board of Directors The company must have at least one director which can either be a natural person or a company. The Board of Directors is responsible for overseeing the company’s affairs but is not generally involved in the day-to-day management of the Company. The number of directors, criteria for membership and disqualification, term of service and procedure for meetings is set out in the Articles of Incorporation. They have a fiduciary responsibility to members. b) Members There must be at least one member of the company which can also be a Director. The members are the owners of the company and can vote on the matters relating to how the company is governed in accordance with its Articles of Incorporation. Generally, there is a requirement for members to have paid up their dues to be able to exercise their voting rights. In a company limited by guarantee, the liability of members for the company’s debts is limited to the extent of the nominal amount set out in its Articles of Incorporation.

Dissolution Companies can be wound up, according to the Companies Act, section 214-220: a) Voluntarily, by special resolution or extraordinary resolution of the members (approval by two thirds of the members attending the meeting). b) By Court Order where: • the company has by special resolution resolved that the company be wound up by the Court; • default is made in delivering the statutory report to the Registrar or in holding the statutory meeting; • the company does not commence its business within a year from its incorporation, or suspends its business for a whole year; • the company is unable to pay its debts; • the Court is of opinion that it is just and equitable that the company should be wound up. 41

c) Under the supervision of the Court

A company may be removed from the Register of Companies where the Registrar has reasonable cause to believe that the Company is not operating. If the company has ceased to operate and has no assets or liabilities the directors or a majority of them may request in writing that the company be removed from the Companies’ Register. The fact that the company has no assets nor liabilities must be confirmed in writing by the Auditors of the Company.

In the event that a company is removed while it is still in business or owns property, it can seek restoration to the Register within Twenty (20) years of being removed.

Compliance

A company is required to file documents to ensure compliance with the Companies Act. Failure to file these documents on time attract late filing fees and could lead to prosecution, a civil suit or disqualification of the company’s officers. These documents include documents noting a change in Directors, Company Secretary or registered office. Additionally, a Company must file an Annual Return accompanied by a financial statement each year on or before the anniversary of incorporation.

2. Tax obligations

A company without share capital and limited by guarantee is responsible for paying the following taxes: • Education tax (employers contribution for staff) • National Insurance Scheme contribution (employers contribution for staff) • National Housing Trust contribution (employers contribution for staff) • General Consumption Tax (GCT) on goods or services provided where the gross income is over JMD$3million. • Property tax (on property owned by the company) • Transfer tax (for transferring ownership of property ) • Stamp duty • Special Consumption Tax (SCT) • Customs duty on imported and exported goods

A company without share capital and limited by guarantee can apply to the Department of Cooperatives and Friendly Societies to obtain charitable status under the Charities Act 2013. With this charitable status, the Company is exempt from property tax, GCT, SCT, Stamp duty, transfer tax,

customs duty. A Certificate of Charitable Status is issued for a period of two years and must be renewed in order to continue receiving the benefits of charitable status.

To qualify for charitable status the company must meet the following criteria: a) It is established exclusively for a charitable purpose, b) It intends to and does operate for the public benefit; and c) No part of its net income or assets ensures to the personal benefit of any governing board member or settler of the charity, or of any other private individual

Additionally, the Directors of the company must not have been convicted of an offence involving dishonesty or be an undercharged bankrupt and must be, in the Authority’s assessment, a person of sound probity, able to exercise competence, diligence and sound judgment in fulfilling his or her responsibilities.

3. Generation and receiving of funds

In addition to the tax exemptions noted above, donations made to a company with charitable status are an allowable expense for the purpose of making deductions from income under the Income Tax.

IV. The Aarhus Experience

This section examines the experience of civil society coordination in the Aarhus Convention to understand strengths and weaknesses of key civil society organisations including The European ECO Forum (ECO Forum) and The European Environmental Bureau (EEB), participating in the negotiations.

1. Background to establishment

Unlike the process established by ECLAC for the Escazú Agreement which called for the election of Representatives of the Public, there was no formal process in the Aarhus Convention which designated any one person or entity with responsibility for coordinating public input into the negotiation process.

The EEB, Europe’s largest network of environmental citizens’ organisations,18 was established in 1974 as a registered non-profit organisation well prior to the negotiations for the Aarhus Convention and works on a wide range of environmental issues. The ECO Forum, an unregistered coalition of

18 EEB has approximately 140 member organisations in more than 30 countries that are primarly EU Member States and representing some 30 million individual members and supporters. See www.eeb.org. 43

European civil society organisations that included EEB, REC, Greenpeace, WWF and Friends of the Earth, was established specifcially in preparation for the Lucerne Environment for Europe (EfE) Ministerial Conference (1993) and later became a prominent vehicle for civil society involvement in the negotiation of the Aarhus Convention during the period 1996 to 1998. ECO Forum, being comprised of these large structured NGOs with large memberships and prominence in environmental matters, gave the coalition legitimacy to represent civil society in the negotiations.

The peak of CSO participation was during negotiation of the Convention and a few years after its adoption. Today, many of the large NGO members no longer work with ECO Forum and coordinate their involvement separately due to differences in opinion in management of the coalition.19

2. Negotiations Eco Forum created a negotiations committee with EEB as Secretariat to coordinate public input into the negotiations for the Aarhus Convention. The committee in turn appointed an NGO Coalition which was a delegation of NGO campaigners/ negotiators and an expert resource group of 16-20 people specialising in access rights including not only NGOs but also environmental experts and law professors. The expert resource group worked with the negotiating team to present proposals on behalf of their collective civil society members. If there was a disagreement between the expert group and the delegation then the NGO committee would intervene.

3. Communications ECO Forum created an open-ended mailing list called Aarhus Econet with an estimated 300 subscribers that any individual or organisation (with the exception of businesses and governments) could join. This list of subscribers would be consulted periodically by ECO Forum and subscribers could, through this forum, request that the negotiators raise any issues of concern. ECO Forum would share draft proposals with the subscribers and report on the outcome of the meetings.

Today, ECO Forum does not use this mailing list. ECO Forum members, such as EEB that continue to work on other issues in the EU, use their own mailing lists.

4. Governing body, membership and elections ECO Forum’s main decision-making body is Plenary. Preparatory plenary meetings are organised for EfE Ministerial conferences to coordinate NGO input in the process. In between plenaries ECO Forum activities are coordinated by the Coordination Board, composed of the ECO-Forum Issue Groups coordinators, Chairperson and Treasurer. Every 3 – 4 years ECO Forum had an NGO meeting where the coordinators/focal points on access rights issues (ATI, PP, A2J) reviewed their mandate.

EEB is governed by a Board of approximately 30 national members, up to 10 European network representatives and up to three other individuals. The Board meets three to four times a year to provide oversight and direction in between the meetings of the General Assembly. An Executive

19 Mr. Jeremy Wates, EEB, 2018, pers comm july 12 July 44

Committee, consisting of the President and Vice-Presidents, provides direction in between the Board meetings.

Any environmental NGO can apply to become a member of EEB by filling out and submitting an application form to the EEB secretariat. The application is reviewed by two nominated scrutineers, one being an EEB Board Member in the applicant’s country if it is a national NGO. The scrutineers make recommendations to the EEB Board. The General Assembly decides upon all applications for membership on the basis of the recommendations from the EEB Board once a year at the EEB’s Annual General Meeting (AGM). The EEB has four membership categories: full members, associate members, affiliate members and honorary members. While membershiop if open to organisations and individuals, only a registered EU organisation can be a full member and individuals are affiliate members.

5. Funding and Administration At its peak of ECO Forum involvement, EEB, as Secretariat, provided the legal mandate to access funding for the work of ECO Forum. EEB staff were contracted to represent Eco Forum in negotiations.

While the EEB continues to The EEB has limited staff capacity to participate effectively in the Aarhus Convention process these days. The head of EEB attends the MoP and they do not have the funding to hire someone to do coordination which is voluntarily undertaken. Nevertheless, both EEB and ECO Forum are present in all of the Aarhus meetings (not only MOPs) represented by their member organizations and they coordinate their involvement before and during the meetings (albeit separately).

Lessons learned Two capacities are needed for effective collaboration of civil society in negotiations: 1. Coordination A strong organisation with the capacity to raise and receive funding, organise travel for participants to attend meetings (MoS, COP and subsidiary bodies) is critical. In the case of ECO Forum, the EEB as Secretariat was able to fulfil this role.

2. Expertise Individuals with expertise in the focal areas should be made responsible for policy /legal issues. These can be designated persons within the organistion or as in the case of ECO Forum these do not necessarily have to be members of the coalition/organisation.

The lack of a registered organisation with a democratic process for election of the governing body made it difficult to sustain the collective engagement of ECO Forum’s members. With the loss of support from large NGOs, ECO Forum’s legitmacy to represent civil society collectively in the process is called into question.

CONCLUSION AND RECOMMENDATIONS This section of the report presents the conclusions and recommendations for: 1) Outreach and communications 2) Advocacy and Negotiations 3) Governance strcuture for collective engagement of civil society in the Escazú Agreement process.

Outreach and communications In order for the Elected Representatives to remain focused and efficient during this next phase of the Principle 10 process, it is concluded that they should be guided by a comprehensive outreach, communications and advocacy strategy as proposed in this chapter. Furthermore, the selected strategy should ensure a high level of engagement between the Elected Representatives and civil society organizations in Latin America and the Caribbean working towards the ratification and full implementation of the Escazú Agreement.

A Google Calendar, List serve and updating the LAC P10 website were three methods suggested to ensure the collation and dissemination of pertinent information on partners’ efforts to promote the Agreement. However, they require continuous management which may call for funding. Therefore, considering the importance of this exercise in tracking and measuring partners’ progress and the impact of their activities, it is recommended that partners from organizations with ample human resource or a Communications Department can take turn to managing these platforms (rotation on a 6 to 12 months basis can be considered).

Regarding the maintenance of the LAC P10 website, it is recommended that until the Elected Representatives are able to identify the funds to pay for the management of the website, a request should be made to partners who might be able to host it in the interim. Upon identifying such partner(s), CIAM (Panama) will transfer the information to the new administrator who will then update the website accordingly. This is critical for this transfer to take place ahead of the United Nations General Assembly on September 27th.

Elected Representatives and partners have been scouting for opportunities to disseminate information on the Escazú Agreement on an International level. Here are a few examples: ➢ World Youth Parliament for Water (March 2018) – Partner attended ➢ Open Government Partnership in Georgia (July 2018) - Partners will be in attendance ➢ Side Event: Environmental democracy for sustainable societies organized by UN ECLAC in collaboration with Chile, Costa Rica, France, Italy, UN-ECE, UN ENVIRONMENT, and The Access Initiative (July 2018) – at the UN Headquarters – Partners attended

➢ Side event to be held on September 27th in New York. Organized by ECLAC, Government of Chile and Costa Rica and WRI/TAI. ➢ Eye on Earth Summit in Dubai (October 2018) – a proposal was submitted to make a presentation on the Escazú Agreement.

The Elected Representatives of the Public with support from CSO partners can write to the United Nations to explore the possibility of observing a theme in 2019 which encompasses the issue of ‘access rights regarding environmental matters’. This would not only raise awareness of the Escazu Agreement on the national and regional level, but internationally as many UN environmental observances such as World Environment Day or World Oceans Day are celebrated worldwide. There are also opportunities to raise awareness of the Escazu Agreement through montoring and reporting on the Sustainable Development Goals (SDGs) and espcially SDG 16 in different UN sessions as well as at the next relevant high level UNEA meeting in 2019.

Advocacy and negotiations The main proposals that the public need to address are: the modalities of public participation, the Rules of Procedure and structure and functions of the Committee to Support Implementation and Compliance. a. Public Participation in the Institutional Structure and Activities of the Agreement.

The functioning of the Escazu Agreement shall be coherent with the principles and standards of the Agreement and also raise the bar of the negotiation process and other international related agreements. Ensuring this objective is a responsibility of both State Parties and the Public.

Specifically at the regional level:

• It is crucial to have a general rule of open sessions in all bodies and activities of the Agreement, allowing the Public, in the broad term used in the negotiation process, to attend, report, and make statements and proposals in all sessions including COPs, as well as participate in decision-making of these bodies. Sessions must be public with only a few and previously agreed exceptions and the information provided must follow the characteristics of the right to information present in the Agreement and the principle of maximum disclosure. 47

• Efficiency in this phase of implementation demands a new election of representatives from the Public that responds to a gender approach, inclusion, and a regional balance. Therefore, there must be main and alternate representatives from each one of the following sub-regions: from the Caribbean, from Central America and Mexico, and from South America. Also, considering there will be six representatives, at least three must be women and at least one must have a strong track record as a human rights defender in environmental matters. Elections should take place in or around March 2019 with the support of ECLAC to provide sufficient time to prepare for the MoS.

• When proposals are being discussed at a body that is created, contributions from the Elected Representatives of the Public shall be reflected as their own in the text regardless of the eventual support of Parties. Implementation also requires continuous and in-depth dialogue between representatives from the Public and presiding officers from Parties. In this sense, they must be able to participate in this body with representatives, preferably one each from the Latin American and Caribbean sub-regions, as well as in the decision-making process for the use of funds in the Voluntary Fund that will support the Agreement.

Specifically at a national level:

• Parties must establish mechanism and modalities for public involvement considering the obligations of the Agreement. The Public must be supported so they can engage in cooperation and implementation activities. b. Public Participation in the Implementation and Compliance Committee.

• The Public shall be able to present candidates of integrity and ability with appropriate training and experience, and vote for their representatives to be members of the Implementation and Compliance Committee.

• The Committee must benefit from inputs of the Public to raise awareness, report and elaborate surveys and assessments.

• The Public, complying with the formal procedure to be established, shall be able to trigger this Committee regarding alleged incompliance with the Agreement and assist the work of the Committee by providing knowledge and expertise.

• The Committee, considering appropriate public involvement, must be able to make direct recommendations to a State which may act upon them immediately, considering the

importance of preventive and timely action in environmental matters and regardless of the COP´s functions.

The governance structure for civil society engagement There appears to be greater advantages to registration as a legal regional organisation or with a dedicated registered Secretariat, when compared with operating under the TAI network. While the TAI network has provided access to considerable expertise in the negotiation process, the constraints of operating as the TAI network when the Elected Represntatives are not members of the TAI Core Team has meant inability to solicite funds and the dependence on the voluntarism of members and the Secretariat to undertake fundraising on their behalf. Appropriate funding is critical to the effectiveness of the Elected Representatives of the Public as it will ensure the ability to bring negotiators and experts to the meetings, to hold preparatory meetings, to conduct outreach and communications among other things.

It is also preferrable to have a registered organisation with a democratically elected governing body (Board of Directors) with transparent and enforceable accountabilty obligations to its members rather than a coalition with a dedicated Secretariat. As learned from the experience of CSOs in the Aarhus Convention process, it is difficult for NGOs to collaborate effectively and to sustain an unregistered coalition without accountabilty to its membership.

If registration of a non-profit organisation is pursued, consideration should next be given to assess the advantages of proposals for the county/ies of registration. There are advantages to registration of the legal organisation in Chile – which is where the headquarters of ECLAC, Secrtariat for the Escazú Agreement, is located and which is also likely to be the venue for many COP meetings. There are also no registration fees in Chile. Additional registration of the organisation in the Caribbean would ensure that the sub-region is appropriately involved and represented in the affairs of the legal organisation and encourage actions across both sub-regions concerning civil society particaption in the Escazu Agreement. In the case of Jamaica, an overseas non-profit organisation can be registered without the need for further drafting of incorporation documents or selection of a new Board. The entity can also receive tax exemption benefits from if it applies for registration as a charity.

Recommendations for governance structure: 1. Convene a consultative meeting with the civil society individuals and members involved in the Escazú process to agree on the governance structure, roles and responsibilities. In the case of registration issues to be decided include the country/ies of registration, the bylaws or articles of incorporation with rules for membership, election procedures for the governing body and its operation, appointment of the first Board of Directors, first members of the organisation. Note: if there is consensus to have a coalition with dedicated Secretariat, a decision must be taken to elect the member organisation will be the Secretariat. 49

2. If there is consensus, register a non-profit organisation in Chile as an association for the purpose of promoting civil society engagement in the Escazú process. 3. Following registration in Chile, register the overseas organisation in the Caribbean. If Jamaica is selected, registrion is under the Companies Act 2004 and an application can be made for charitable status under the Charities Act 2013.

ACTION PLANS Annex I: Outreach and Communications: Action Plan 2018 - 2020

Objective: To Raise Awareness about the Escazu Agreement and promote its early signing, ratification and full implementation Action Area Strategy to Implement Tasks Person(s) Resources Needed Measurement Timeline Responsible Execute activities and Review, adopt, post and - Draft Outreach, Elected - Sample - Outreach, Communications - Strategy is drafted within 3 weeks. create products communicate an Communications and Representative of communications and & Advocacy Strategy is - Strategy is communicated to key partners and stakeholders identified in Strategy. Outreach, Advocacy Strategy. the Public outreach strategy drafted, adopted, posted and within 2 to 3 weeks. Communications and - Share strategy with promoting ratification communicated to partners - Activities and products are followed by 1-year post-strategy Advocacy Strategy. key partners and other - Partners’ buy-in and key stakeholders. adoption. stakeholders. - Activities & products - Implement strategy. outlined in strategy are followed 1-year post strategy adoption.

Collate and disseminate Propose, adopt and -Propose method to Elected - New administrator - Collation and dissemination -Strategy is drafted within 1 week. Partners’ Actions to communicate collation collate and disseminate Representative to post on website method is proposed, adopted - Strategy is communicated to key partners and stakeholders Promote the Escazú and dissemination partners’ actions. - Google Calendar and communicated to within 2 to 3 weeks. Agreement method. -Share proposal. Administrator partners and key - Suggested methods are followed by 1-year post-strategy - Mailing List serve stakeholders. adoption. administrator -Methods -Partners’ buy-in Update LAC P10 Review, adopt, post and - Draft method to Elected - New Administrator - Outline of requirements to - Outline to update website is drafted within 1 week. website communicate the update website. Representative of Partners buy-in update Website is drafted - Outline is communicated to key partners and stakeholders with outline to update the -Share method with the Public and communicated to 2 to 3 weeks. website. partners and partners and key - Website update outline is followed by 1 – year post strategy stakeholders. stakeholders adoption. -Implement method - Website is updated 1 yr post-strategy adoption

Annex II: Advocacy and Negotiation: Action Plan 2018 - 2020 Main Objectives: 1. Finalize strategic civil society’s position and priorities ahead of international meetings, in particular the preparatoy session and COP1, through an inclusive and participatory process 2. Raise the standard of Public involvement 3. Ensure CSO negotiators know their roles and are in agreement with the group´s position. 4. Effectiveness, efficiency and a gepgraphic and gender balance are present in the Public strategy 5. Achieve Public proposals are supported by governmentes and relevant actors 6. Improve the Public´s involvent and capacities at the national level I. Public participation in the institutional structure and activities of the Agreement Action Area Strategy to Tasks Person(s) Resources Needed Measurement Timeline Implement Responsible 1.Elaborating the rules A supported proposal - Draft rules of procedure facilitated by the Elected - Webinars, seminars, surveys - Proposal of rules of procedure 2018: of procedure of the for a significant representatives of the Public. Representatives of and workshops and face to face is drafted, discussed and - Rules are preliminary drafted, discussed with key COP including a participation by the - Discuss draft with key partners, relevant the Public. meetings when possible. adopted by the Public. partners, relevant actors, experts and the public geographic and gender Public is reflected in actors, experts and the Public. - Participation in offical meetings - The proposal is presented to balance. the rules of - Proposal is sent and discussed with focal SCO in LAC countries. and activities at the national and governments and relevant 2019 procedure. points and the member countries that international levels. actors. - The proposal is sent and discussed with the member served as the Presiding Officers of the - Outreach and communications - The proposal is discussed at countries that served as the Presiding Officers of the negotiating committee . instruments of the Public. the preparatory meeting and negotiating committee - Proposal is presented at the preparatory -Regional Public Mechanism. the rules of procedure adopted and with focal points . meeting by the COP reflects the - Proposal is presented at the preparatory meeting. - Proposal by the Public is disseminated positions of the Public - Outreach and meetings with focal points. and discussed with focal points for their - Actions at the national level support. are transparent, accountable 2020 - Public negotiate the rules of procedure at and with public involvement. - Rules of procedure are adopted at the first COP. COP1. 2.Developing concrete Supported proposals - Experts for each proposal are chosen Experts from the - Webinars, seminars, surveys - Proposals are drafted, 2018: proposals for early on relevant issues, from the Public ensuring geographic and Public. workshops and face to face discussed and adopted by the - Election of experts. implementation, as already identified in gender balance. meetings when possible. Public. - Main elements are drafted, discussed with key cross cutting issues, of: the negotiation - Drafts are discussed with key partners, Elected - Participation in offical meetings - Proposals are presented to partners, relevant actors, experts and with the public. a) Review and follow process, are relevant actors, experts, and the Public. Representatives of and activities at the national and governments and relevant up process reflected in the - Proposals are sent and discussed with the the Public. international levels. actors. 2019 b) Environmental Agreement´s focal points and the member countries that - Outreach and communications - Proposals are in the Agenda of - Proposals are presented and discussed with the defenders activities and served as the Presiding Officers of the SCO in LAC countries. instruments of the Public the preparatoy meeting and member countries that served as the Presiding Officers c) Person and groups decisions. negotiating committee - Regional Public Mechanism. COP1. of the negotiating committee in vulnerable - Proposals are presented at the and with focal points . situations preparatory meeting. - Proposals are presented at the preparatory meeting d) Funding and - Proposals are disseminated and discussed - Outreach and meetings with focal points. capacity building at with focal points for their support. the national and - Public present their proposals at COP1. 2020 international level - Proposals are at the agenda of the COP1 regarless 52

activities that may be implemented prior to this meeting. 3.Defining the election Proposal for - Draft for the election and functions (e. g. Elected - Webinars seminars, surveys and - Proposal is discussed and 2018: process and functions representatives of requirements, voting of candidates, Representatives of workshops adopted by the Public. - Proposal is drafted, discussed with key partners, of representatives from the Public to be elections, terms, taks and responsibilities) the Public. - Outreach and communications - The proposal is presented to relevant actors, experts and with the public . the Public, considering considered in the are discussed with key partners, relevant instruments of the Public governments and relevant - The proposal is sent and discuss with the member a geographic and rules of procedure of actors, experts, and the Public. SCO in LAC countries. - Regional Public Mechanism actors. countries that served as the Presiding Officers of the gender balance. the COP. -Election of main and alternate - The Public chooses its negotiating committee representatives. representatives reflecting a and with focal points. - Proposal is sent and discussed with focal regional and gender balanace. points and the member countries that - The rules of procedure are 2019 served as the Presiding Officers of the presented at the preliminary - Representatives are elected in March prior to the negotiating committee . meeting and the decision preparatory meeting. - Proposal is presented at the preparatory adopted by the COP reflect the - Proposal is presented at the preparatory meeting. meeting. Public´s position. - Outreach and meetings with focal points. - Proposal by the Public is disseminated and discussed with focal points for their 2020 support. - Rules of procedure are adopted at the first COP - Public negotiate the rules of procedure at including the role of the public. the first COP including the role of the representatives of the Public. - Public negotiate the rules of procedure at COP1 including the role of the representatives from the Public. 4.Ensuring Public Proposals, including - Public elects experts ensuring geographic Experts from the - Webinars seminars, surveys - Proposals are drafted, 2018: involvement at the guidelines, to and gender balance. Public. workshops and face to face discussed and adopted by the - Election of experts national level. contribute to the - Analize the provisions of the Agreement meetings when possible.. Public. -Main elements are drafted, discussed with key implementation of that recognize the role of the public as well Elected - Outreach and communications - Proposals are presented to partners, relevant actors, experts and with the public. the Agrement. as national legislation and practices and Representatives of instruments of the Public governments and relevant develop proposals to foster aliances. the Public. -Regional Public Mechanism. actors. 2019 - Discuss proposals with key partners, -Proposals are in the Agenda of - Proposals are presented and discussed with the experts, relevant actors and the public. SCO in LAC countries. the preparatoy meeting and member countries that served as the Presiding Officers - Proposals are sent and discussed with the COP1. of the negotiating committee focal points and the member countries that and with focal points. served as the Presiding Officers of the - Proposals are presented at the preparatory meeting. negotiating committee. - Outreach and meetings with focal points. - Proposals are presented at the preparatory meeting. 2020 - Proposals are disseminated and discussed - Proposals are at the agenda of the COP1 regarless with focal points for their support. activities that may be implemented prior to this - Public present their proposals at COP1. meeting.

5.Defining Public Supported proposal -Experts are chosen ensuring geographic Experts from the - Webinars seminars, surveys - Proposals ares drafted, 2018: participation in the to: and gender balance. Public. workshops and face to face discussed and adopted by the - Election of Coordinators. Implementation and - present candidates, - Discuss draft with key partners, relevant meetings. when possible. Public. - Proposal is discussed with key partners, relevant Compliance Committee. be elected, and vote actors, experts and the Public. Representatives of - Outreach and communications - Proposals are presented to actors, experts and the public prior to the opening of - involve the public -Proposal is sent and discussed with focal the Public. instruments of the Public. governments and relevant the signature of the agreement. particularly in raising points and the member countries that - Regional Public Mechanism. actors. awareness, reporting served as the Presiding Officers of the SCO in LAC countries. - Proposals are discussed at the 2019 and elaborating negotiating committee. preparatory meeting and the - The proposal is sent and discussed with the member surveys and -Proposal is presented at the preparatory rules of procedure adopted by countries that served as the Presiding Officers of the assessments. meeting. the COP reflects the position of negotiating committee - allow the Public to -Proposal by the Public is disseminated and the Public. and with focal points. trigger the discussed with focal points for their - Proposals are presented at the preparatory meetin.g Committee regarding support. -Outreach and meetings with focal points. alleged incompliance -Public negotiate this rules at COP1. with the Agreement 2020 and support their - Rules are adopted at the COP1. findings and recommendations.

Annex III: Governance structure: Action Plan 2018 – 2019 Objective: To review and develop a suitable governance structure for civil society engagement in the Escazú process Action Area Strategy to Implement Tasks Person(s)Responsible Resources Needed Measurement Timeline

Consult CSO partners Consultations - Convene a consultative meeting with the CSO partners in Elected Representatives - Virtual meeting - Consultation meeting January – March 2019 on proposals for the Escazú process to agree on the governance structure of the Public - Partners’ buy-in is held governance structure roles and responsibilities. In the case of registration issues for civil society to be decided include the country/ies of registration, the bylaws or articles of incorporation with rules for membership, election procedures for the governing body and its operation, appointment of the first Board of Directors, first members of the organisation. - Note: if there is consensus to have a coalition with dedicated Secretariat, a decision must be taken to elect the member organisation that will be the Secretariat. Prepare incorporation Draft and adopt bylaws If there is consensus on registration of non-profit Elected Representatives - Volunteer lawyer - Documents completed March – April 2019 documents or articles of organisation (Secretariat or regional organisation): of the Public - Translation of document incorporation - draft bylaws/articles of incorporation -Partners’ buy-in - circulate to CSOs for approval Registration of non- Registration Folllowing the abovementioned task and if there is Elected Representative of - Volunteer lawyer based - Registration certified April– May 2019 profit organisation in consensus: register a non-profit organisation in a Latin the Public in Latin American country as complete Latin America American country as an association for the purpose of where registration is to promoting civil society engagement in the Escazú process. be done -Registration costs (if any) Registration of overseas Registration Register the Latin American organisation in the Caribbean. If Elected Representative of - Volunteer lawyer based - Registration certified May – June 2019 non-profit organisation Jamaica is selected, registrion is under the Companies Act the Public in Caribbean country as complete in the Caribbean 2004 and an application can be made for charitable status where registration is to under the Charities Act 2013 be done - Registration costs

Bibliography Carl Bruch, (2002) The New Public: The Globalization of Public Participation [on line] https://www.eli.org/research-report/new-public-globalization-public-participation

Charities Act of Jamaica 2013

Companies Act of Jamaica 2004

ECE (Economic Commission for Europe): -Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) [on line] https://www.unece.org/env/pp/treatytext.html

-The Aarhus Convention: An Implementation Guide, second edition [on line] http://www.unece.org/env/pp/implementation_guide.html.

ECLAC (Economic Commission for Latin America and the Caribbean) -Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean [on line] https://www.cepal.org/en/publications/43583-regional- agreement-access-information-public-participation-and-justice

-Modalities of participation of stakeholders [on line] https://www.cepal.org/en/publications/21792- report-second-meeting-focal-points-appointed-governments-signatory-countries

-Modalities for participation of the public in the negotiating committee of the regional agreement on access to information, participation and justice in environmental matters in Latin America and the Caribbean [on line] https://repositorio.cepal.org/bitstream/handle/11362/40413/S1600323_en.pdf?sequence=1&isAllowed=y

-Modalities for the election of representatives from the Public are available in https://www.cepal.org/sites/default/files/news/files/election_of_representatives_of_the_public_final.pdf

-Organization and work plan of the negotiating committee of the regional agreement on access to information, participation and justice in environmental matters in Latin America and the Caribbean (LC/L.4011/Rev.1), [on line] http://repositorio.cepal.org/bitstream/handle/11362/38134/S1500422_en.pdf.

-Access to information, participation and justice in environmental matters in Latin America and the Caribbean: Towards achievement of the 2030 Agenda for Sustainable Development [on line] https://www.cepal.org/en/publications/43302-access-information-participation-and-justice- environmental-matters-latin-america

-Observatory on Principle 10 [on line] https://observatoriop10.cepal.org/en

ECLAC/OHCHR (Economic Commission for Latin America and the Caribbean/Office of the United Nations High Commissioner for Human Rights) Society, rights and the environment: international human rights standards applicable to access to information, public participation and access to justice [on line] https://www.cepal.org/en/publications/40736-society-rights-and-environment-international-human-rights- standards-applicable

OAS (Organization of American States) Foreign Trade Information System [on line] http://www.sice.oas.org/

TAI-WRI (The Access Initiative and the World Resources Institute) Environmental Democracy Index [on line] www.environmentaldemocracyindex.org

UNEP (United Nations Environment Programme) Putting Rio Principle 10 into Action: An Implementation Guide for the UNEP Bali Guidelines for the Development of National Legislation on Access to Information, Public Participation and Access to Justice in Environmental Matters [on line] https://wedocs.unep.org/bitstream/handle/20.500.11822/11201/UNEP%20MGSB- SGBS%20BALI%20GUIDELINES-Interactive.pdf?sequence=1&isAllowed=y

Law No. 20,500 on "Associations and Citizen Participation in Public Administration" and by Title XXXIII of Book I of the Civil Code (Chile)

United Nations -“Transforming our world: the 2030 Agenda for Sustainable Development” (A/RES/70/1), New York [on line] https://undocs.org/en/A/RES/70/1.

-“The future we want” (A/CONF.216/L.1), Rio de Janeiro, [on line] https://rio20.un.org/sites/rio20.un.org/files/a-conf.216l-1_english.pdf.pd

-Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms, (A/RES/53/144) New York [on line] https://www.un.org/ruleoflaw/blog/document/declaration-on-the-right-and-responsibility-of- individuals-groups-and-organs-of-society-to-promote-and-protect-universally-recognized-human-rights- and-fundamental-freedoms/

-Reports of Independent Expert on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment, John H. Knox, A/HRC/25/53, 30 December 2013; A/HRC/28/61, 3 February 2015; A/HRC/31/52, 1 February 2016 [on line] https://www.ohchr.org/EN/Issues/Environment/SREnvironment/Pages/SRenvironmentIndex.aspx

-Human Rights Committee, General Comment Nº 25, Article 25 (The right to participate in public affairs, voting rights and the right of equal access to public service), 1996, CCPR/C/21/Rev.1/Add.7 [on line] https://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f21%2f Rev.1%2fAdd.7&Lang=en

-Committee on the Elimination of Discrimination Against Women, in its General Observation N°. 23, Political and public life, 1997, A/52/38, highlights that Governments are obliged to ensure the presence of women at all levels and in all areas of international affairs [on line] http://www.un.org/womenwatch/daw/cedaw/recommendations/recomm.htm#recom23