Statement by International-Lawyers.Org (INTLawyers) to the Public Session of the Aarhus Compliance Committee held in Geneva, Switzerland on 27 June 2017

INTLawyers welcomes the work of the Aarhus Compliance Committee and indeed the mandate of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).

INTLawyers is a legal organization with former Attorney-General’s, Prime Ministers, and Foreign Ministers on our Advisory Board and members who are prominent professors and practitioners of law situated from the United States and European as well as places as far away as India, Sierra Leone, and the South Pacific. As predominately a lawyers’ organization, INTLawyers welcomes the work of Committees which we believe makes an important contribution to ensuring respect for the rule of international law.

INTLawyers or its members have followed the Committee since January 2015, the process under the auspices of the United Nations Framework Convention on Climate Change (UNFCCC) for the past decade, and the United Nations’ human rights mechanisms since 1976. It is on each of these processes that we wish to comment.

First, as concerns the work on human rights and climate change at the Human Rights Council (HRC), we express our concern about the lack of both progress and transparency or participation in the Council’s work on this issue. While we welcome that the Members States of the Council are considering human rights and climate change annually, we believe that the progress made has been inadequate in part because of issues relating to transparency or participation in this work that falls under the auspices of this Committee. We judge progress on an issue as is common within the Council by how it is dealt with formally and through mechanisms that might enhance is implementation. Formally, we note that human rights and climate change is not an agenda item on the Council’s agenda. It depends on the ad hoc concern of States at any given session or annual cycle of sessions. Moreover, while some States that are disproportionately affected by adverse effects of climate change have kept the issue on the Council’s agenda, other States—including State Parties to the Aarhus Convention have tried to remove it—most disturbingly through means that limit transparency or participation by civil society actors. It should be recalled that to date the Council has not given effect to the unanimous call by participating NGOs at the 2010 HRC Social Forum to establish a special procedure or mandate on human rights and climate change. The establishment of a mandate is the most common means of judging progress on an issue before the Council. Instead, the Council’s work on human rights and climate change has been mired in a repetitive series of seminars, panels, and half-day discussions without the Council committing to any more substantive action on this issue. Most recently, as occurred in June 2016 as well, when the Council held informals to consider its annual resolution on human rights and climate change the text of the resolution was withheld from accredited NGOs until the actual meeting in which it was discussed and these NGOs were denied their request to intervene at the informal meeting. We regret that some of the most prominent States that apparently endorsed this dual lack of transparency and participation were Aarhus Convention Member States. We would hope that these States, respecting their obligations under the Convention would be at the forefront of pushing for greater public transparency on the issue of human rights and climate change and that they would equally encourage greater civil society involvement in the processes of the Council on this issue.

Second, we note that at the 15th Conference of the Parties (COP15) held in Paris in December 2015 our NGO considered initiating proceedings within the national legal system in France to challenge the exclusion of Observers from contact groups. Our action as based on France’s failure to observe its international legal obligations in the Aarhus Convention. The French decision contradicted an undertaking given at the Bonn meetings and the undertaking of the two co-chairs off the Working Group that our NGO had personally solicited in public meeting just days before the start of COP15. Moreover, while the overwhelming majority of UNFCCC Member States had supported the participation of Observers in accordance with past practice, a small number of States, the majority of which appeared to be Aarhus Convention Member States, opposed it. Among those opposing it, was most notably the State holding the COP15 Presidency, France, which is a prominent Aarhus Convention Member State. It was for this reason that we sought to challenge this decision in the French courts. Unfortunately, our action was blocked by a combination of French procedural law that requires that a huissier be employed to observe the complained of act—in this case denial of Observer organizations’ ability to attend Contact-Group meetings, for which neither our videotaped evidence nor the public decision of the COP15 President was not apparently sufficient—and the UNFCCC Secretariat’s decision to prevent the huissier from entering the United Nation’s premises as he had not been accredited six months in advance of the meeting. As a result, our action—our access to the French judicial system—was completely denied for the purpose of raising a legal issue of compliance with the Aarhus Convention. Had it not been for the representations of some partner NGOs that they wished to discuss this with France, we would have filed a communication with this Committee during the year of the France’s COP15 Presidency.

Third, we want to express our appreciation for the efforts of Ambassador Nazhat Shameem-Khan and chief negotiator for the host State, Fiji, for her efforts to try to provide for more transparency and more adequate participation activities for Observers. While we heartily welcome these efforts, we are equally dismayed at the efforts undertaken by several Aarhus Convention Member States to obstruct Fiji’s efforts. An example of how this conflict has worked itself out in practice is the disappointing decision to house Observer’s side-events in the Green Zone, outside the easy reach of negotiators who often confine themselves to the Blue Zone due to their heavy responsibilities in the negotiations and the fact that their meeting rooms and office are located in the Blue Zone. The result will be, we believe, a significant deterioration of the impact of side-events on the governmental negotiations. In addition, it appears as if Observers will again be excluded from Contact-Group meetings in Bonn, Germany. The deteriorating access of Observers to even passively observe negotiations is troubling and run counter to the object and purpose as well as the express words of the Aarhus Convention. That such action is being supported by Aarhus Member States is troubling and we suggest raises an issue as to whether or not these States are complying with their international legal obligations under the Aarhus Convention.

Finally, while recognizing the complex jurisdictional considerations that may arise we hope that this Committee will view any future communication concerning the UNFCCC process very seriously especially when a meeting is held in a country under this Committee’s jurisdiction.


Miguel D’Escoto Brockmann: The World has Lost a Champion for Justice

Pix6Miguel D’Escoto Brockmann, the 65th President of the United Nations General Assembly from 2008 to 2009, former Foreign Minister of Nicaragua, renown human rights defender, and Advisory Board Member of International-Lawyers.Org, died on Thursday, 8 June 2017.

Father Miguel was a leading figure of his generation. A priest by training, his heart and soul were committed to seeking justice. He was one of those rare people who was willing to stand up to any power, even the most powerful States to condemn their injustices and fight to bring justice. His life inspired millions around the world to fight for justice without fear of the most powerful opponents.

Father Miguel was born on 5 February 1933 in Los Angles, California in the United States of America, but raised in in Nicaragua. In 1953, he entered the Maryknoll seminary and he was ordained a priest in 1961. He earned a Master of Science degree from the Columbia University Graduate School of Journalism in 1962 and in 1970 founded the Maryknoll publishing house, Orbis Books. In 1972, he founded the Nicaraguan Foundation for Integral Community Development (FUNDECI), to assist the people displaced by Managua earthquake that had decimated his country.

He also joined the Sandinistas, the struggle against nearly half a century of dictatorship in Nicaragua. In 1979, when the Sandinistas overthrew the Somoza dictatorship, Father Miguel was named Foreign Minister of Nicaragua, a post he held for 11 years. His involvement in politics as a priest was criticized by some in the Vatican, but he defended it as part of his obligation to strive for justice through all means. As a priest, he adhered to liberation theology with the firm belief in the cause of justice. Nevertheless, in 1985 the Vatican suspended him from saying Mass as a Catholic priest. The suspension was only lifted in 2014 when Pope Francis declared the suspension was unfair and announced, through Cardinal Fernando Filoni, prefect of the Congregation for the Evangelization of Peoples, that Father Miguel would again be able to say Mass with the blessing of the Catholic Church. This meant much to Father Miguel who had remained committed to his faith.

As Foreign Minister of Nicaragua, Father Miguel is perhaps most well-known for initiating successful legal proceedings against the United States before the International Court of Justice. In 1986, the Court in one of its leading opinions held that the United States had violated the Charter of the United Nations’ most fundamental prohibitions on the use of force and non-interference in the internal affairs of other States by its actions against the Sandinista government. To this day, this decision remains one of the most important decisions of the International Court of Justice.

In May 2008, Father Miguel was nominated to serve as the 65th President of the United Nations General Assembly. His term ran from September 2008 to September 2009. During his term, he raised the profile of the United Nations’ most senior post to a level of respect it had rarely enjoyed or has enjoyed since. During his term, he led efforts to confront the cause of the international financial and economic crisis; to recognize the need to respect Mother Earth; to redress the injustices being done to the Palestinian people; to expose the hypocrisy of the Responsibility to Protect as a pretext for intervention; and to re-create the United Nations to enable it to achieve the mandate given to it by international law.

The Palestinian people will likely never forget his efforts to take action during Israel’s unlawful and deadly aggression against Palestinians in Gaza in December 2008. After the Security Council refused to take any action to protect Palestinians being slaughtered by Israeli warplanes, Father Miguel convened a session of the General Assembly that condemned Israel’s use of force. At the same time, he also spoke out in the most unambiguous terms against Israel’s aggression.

Father Miguel was willing to speak truth to the most powerful countries, including the United States, whose violations of international law he strongly condemned. Throughout his term as President of the General Assembly, Father Miguel continued to condemn the ongoing violations of international law by the United States, especially its inhumane treatment of the Iraqi people. Father Miguel arduously urged both the United States and the Iraqi government to respect the Opinion of the United Nations Working Group on Arbitrary Detention that had found the detention of Tariq Aziz to violate both country’s international obligations and had called for his release until his death in 2015. While the United States was able to cower many senior statesmen from much larger and more powerful States, it was never able to intimidate Father Miguel who pushed back against this hegemon’s violations of international law using the dictates of law and justice.

His efforts to revitalize the United Nations are documented in a book entitled Recreating the United Nations that was published in 2009. It included the idea that the Charter of the United Nations should be revised to remove the authority of the world body to authorize the use of force. This, believed Father Miguel, would force the world body to rely on its diplomatic means without subjecting it to the pressure of a few powerful countries seeking to use the UN as cover for their military interventions. In the book, he also suggested creating an international climate and environmental justice tribunal with authority similar to the International Court of Justice, to make legally binding decisions that could ensure States respect the Mother Earth. Today this recommendation looks increasingly necessary if States are to restrain themselves from destroying life on our planet. In his book, he also urges that the term of the President of the General Assembly, the most senior executive UN official, be made longer than that of the Secretary-General, the UN’s most senior administrative official, in order to reflect the seniority of the former post.

Throughout his life, Father Miguel was a friend of civil society. As President of the General Assembly, he initiated the practice of meeting with NGOs during his visit to the UN Human Rights Council in Geneva and he always remained open and willing to support civil society initiatives. Until his death, he served as the President of FUNDECI and on the Advisory Board of International-Lawyers.Org.

Father Miguel was a rare person who possessed the highest degree of integrity while also having the courage to act on his beliefs. He refused to be cowered by power exercised in the name of hegemony and refused to remain silent or passive when the dictates of justice require his voice be heard or that action be taken.