Published 28 June, 2023. Writer: Nicola Sharman.
In this blog, Nicola Sharman considers the basis of civil society participation in international institutions dealing with global environmental issues. She makes the case for drawing a clearer separation between participation mechanisms designed as functional exercises on the one hand, and those aimed at fulfilling democratic principles on the other.
This blog builds on an article – ’Objectives of Public Participation in International Environmental Decision-Making’ – authored by Nicola and recently published open access in International & Comparative Law Quarterly. It can be read here.
Rationales for Civil Society Participation in Environmental Governance
International conferences that aim to address serious global environmental issues, such as biodiversity and climate change, are now generating unprecedented public attention. It has become a feature of the most high-profile conferences to attract large numbers of civil society activists. However, the ability of civil society to participate as ‘insiders’ in institutional decision-making processes is still significantly limited, prompting frequent calls for greater institutionalised participation opportunities.
Principle 10 of the 1992 Rio Declaration states that ‘environmental issues are best handled with the participation of all concerned citizens, at the relevant level’. This principle provides the legal basis of demands for enhanced opportunities for the public and NGOs to participate in the decision-making processes of international environmental institutions. Its value can be divided into three arguments:
- Normative (democratic) arguments are based on fulfilling democratic principles and the public’s right to have a say in political decisions that affect them.
- Substantive (functional) arguments are based on ensuring that decision-makers are provided with knowledge and information about the public interest to ensure that their decisions are well-informed.
- Instrumental arguments are based on fostering a sense of stakeholder ownership to ensure that policy objectives and decisions will be supported by the public.
Implications for Participation Process Design
The different rationales for public participation are often put forward simultaneously by civil society advocates themselves. But, doing so fails to recognise that they have different implications for exactly whose participation should be facilitated, how, when, and to what extent. In this sense, they are conflicting:
- Normative goals require entirely inclusive participation of all affected persons, from the agenda-setting stage of the decision-making process onwards. They imply a strong preference for facilitating direct participation of civil society rather than NGOs.
- Substantive goals require functional participation only of those who have knowledge, information or expertise of value to share with decision-makers. This may be deemed useful only at certain stages of the process and would encourage participation of NGOs who may be able to consolidate and communicate information more effectively.
- Instrumental goals require participation of those with the most significant political influence to inhibit or implement pre-determined policies, at stages of the process where their buy-in would be needed to move a policy forward. This is more likely to rely on participation of certain large NGOs with significant power and resources.
The Unique Challenges of the International Context
The tension between these claimed objectives of public participation are particularly clear at international level. This is because of the unique role that challenges of scale and legitimacy play, which can affect perceptions of the importance and feasibility of pursuing each objective.
Concern about the democratic legitimacy of international institutions, which has been steadily growing over the past three decades, supports the argument for striving towards implementation of democratic, in other words normative, approaches. Others are sceptical about implementing democratic standards at the international level, particularly given the complexity of many global environmental problems such as climate change. Such critics argue that, instead, it is more worthwhile to focus on improving the quality of decisions with a functional characterisation of public participation. Meanwhile, incumbent state and non-state powers are more likely to support instrumental objectives that would further their own policy preferences.
The danger of being unable to bridge these understandings is that many will feel let down by participation processes that are not designed according to their expectations. This risks undermining the perceived value of public participation altogether and could be feeding into rising arguments for more technocratic decision-making.
The Legal Basis for Participation
Law has the potential to act as the reference point for clarifying the role of public and NGO participation in international environmental forums. Thus, it is important to understand what its current legal basis is.
The 1992 Rio Declaration, sustainable development instruments, and the NGO access provisions of most multilateral environmental agreements (MEAs), convey a primarily functional purpose. While not explicitly defined as such, the framing of public participation opportunities as contributing to furthering substantive environmentalist goals implies this. NGOs are typically only accredited as observers to treaty-based institutions if they are ‘qualified’ in relevant matters.
Nevertheless, there are glimmers of normative arguments in the law at the intersection between protection of the environment and human rights. The Aarhus Convention and the Escazú Agreement, both regional treaties pertaining to European and Central Asian countries and Latin America and the Caribbean respectively, characterise public participation in environmental matters as a human right. Both treaties are mostly aimed at domestic implementation, but do also oblige their parties to promote public participation in international forums.
The requirement of a rights-based approach becomes diluted in respect of this international duty, due to the specific language used in accompanying guidelines to the Aarhus Convention, and the specific provision of the Escazú Agreement itself. However, the Escazú Agreement has expanded the geographical reach of countries that should theoretically endorse rights-based approaches to public participation in general. Moreover, the recent UN General Assembly resolution recognising the substantive human right to a clean, healthy and sustainable environment recognises public participation as an ancillary human right.
The Case for Distinguishing Functional and Democratic Participation Processes
Debates regarding the appropriate role for public participation are arguably becoming more polarised as international institutions struggle to make progress in addressing global crises. Moreover, the varied perceptions by different actors of its purpose seem to remain disconnected from the underlying legal basis for existing opportunities.
But it would be a mistake to assume that institutional decision-making processes and their participation mechanisms are, or have to be, linear in nature and that we must choose only one approach. The reality is that these processes are complex journeys with multiple moving components, and decision-makers use multiple sources of information at various points.
Separate processes for participation should therefore be designated and distinguished with a very clear either functional or democratic purpose, which could interact but feed into decision-making separately. Given existing processes are already oriented towards functional purposes, this would likely involve establishing new democratic spaces, which would not replace but could complement existing processes. In this regard, there is already research exploring the potential of models of deliberative democracy, which are understood to be particularly well-suited to addressing complex environmental issues, to be scaled up to international level.
An example would be the scaling up of citizens’ climate assemblies, which some local and national governments have begun to experiment with in recent years (e.g. in the UK, Scotland, France, Denmark and Germany). This idea was trialled by an informal initiative called the Global Assembly at COP26 of the United Nations Framework Convention on Climate Change, which brought together 100 members of the public selected by a lottery system to deliberate on how to address the climate crisis. An evaluation of the process highlighted a number of challenges, such as how to take into account embedded power structures, ensure appropriate representativeness, and encourage high-quality deliberation. But it is argued that the idea has promise, and the impact of such a model could be improved through formal institutionalisation into the UNFCCC process.
In the meantime, NGOs and other civil society actors who claim moral authority based on their democratic value have a role to play in furthering this agenda by recognising the limits of their democratic potential within decision-making processes that are designed with a primarily substantive objective in mind, and advocating for establishing separate democratic processes for their engagement.
Nicola Sharman is an Early Stage Researcher at the University of Eastern Finland.
Photo by UNFCCC: Indigenous groups meet at UNFCCC COP27 in Sharm El-Sheikh on 17 November 2022.