Non-Governmental Actors in International Climate Change Law

The Case of Arctic Indigenous Peoples

Marzia Scopelliti

• Publisher: Routledge
• Year: 2021
• ISBN:
  9781000387124
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Focusing on how to improve the participation of non-governmental actors in the making of international climate change laws, this book is a conversation on the relevance of a human rights-based approach to international climate change law-making.

The book considers a possible reform of the United Nations Framework Convention on Climate Change institutional arrangement, inspired by the practice and model of participation of Arctic Indigenous Peoples in the Arctic Council. Different non-State entities play a fundamental role in the development and enforcement of the climate change regime by enhancing the knowledge base of decision-making, keeping States in line with their commitments, and engaging in private initiatives aimed at mitigating the impacts of global warming. Albeit non-governmental and subnational actors increasingly work alongside States in the making of a climate change regime, the category of observers through which they participatein intergovernmental negotiations only gives them limited rights and their participationin international norm-making has at times been impaired. The relevance of a human rights-based approach consists in recognising the status of individuals and groups as rights-holders under human rights law, a paradigm that was first established by Arctic Indigenous Peoples when claiming their participatory rights in the Arctic Council, the main forum of governance of the Arctic region. This book argues that, in the absence of a globally binding treaty regulating procedural rights in intergovernmental negotiations, the emerging relationship between human rights and climate change could serve as a legal basis for the enhancement of non-governmental actors' procedural rights, establishing the right to participation as a right in itself and which can benefit the governance of climate change.

Due to the relevance of the addressed subject, the book is destined to a broad readership and will be of use to academic researchers, law practitioners, policy-makers and non-governmental organisations' representatives.

1 Introduction

1.1 Background

The right to public participation emerged in the field of international environmental law to ensure access to information, participation in decision-making processes and access to justice in environmental matters to every person.¹ Considered today as an expression of environmental democracy, it was first established in 1992 by Principle 10 of the United Nations Rio Declaration on Environment and Development and was subsequently incorporated in regional conventions² and established by international and European case law. To date, the Aarhus Convention is the regional treaty that has contributed the most to the application and respect of procedural rights in both their domestic and international dimension. Twenty years after the adoption of this convention, and coinciding with the adoption of the Escazú Agreement in Latin America and the Caribbean States, a number of academic works have assessed the status of its implementation across its contracting States. On the contrary, just a handful of publications have explored the significance of the Aarhus Convention for participation in international environmental processes and whether procedural rights, particularly the right to participation in environmental decision-making, have been consistently secured in international fora.³

1 The focus of attention of this work will be the second pillar of the right to public participation: participation in (international) environmental decision-making.

2 Since the adoption of the Rio Declaration on Environment and Development in 1992, public participation has been repeatedly recognised in successive UN conferences on sustainable development and implemented by the UNECE Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention, 1998). In March 2018, the Ninth Meeting of the Negotiating Committee of the Regional Agreement on Principle 10 adopted the Escazú Regional Agreement for Latin American and the Caribbean States. The agreement will remain open for signature from September 2018 to September 2020.

3 See, J. EBBESSON, “Principle 10: Public Participation”, in J. E. VIÑUALES (ed.) The Rio Declaration on Environment and Development. Oxford: Oxford University Press, 2015, pp. 288–309; S. DUYCK, “Promoting the Principles of the Aarhus Convention in International Forums: The Case of the UN Climate Change Regime”, Review of European Community & International Environmental Law, Vol. 22, No. 4, 2015, pp. 123–137.

In the absence of a globally binding treaty regulating procedural rights in international environmental decision-making process, the participation of the public has been channelled in most multilateral environmental agreements (MEAs) through institutional arrangements in which non-governmental actors participate as observers. Under this category, non-governmental organisations usually take part in intergovernmental negotiations with no voting rights and with rather limited possibilities for intervention but have nonetheless provided vital insights to discussions on highly complex environmental problems.

In the context of climate change, the contribution of non-governmental entities has been acknowledged as fundamental for the development and implementation of an international climate change regime.⁴ As recalled in the UNFCCC Guidelines for the participation of NGO-representatives: “[NGO] involvement allows vital experience, expertise, information and perspectives from civil society to be brought into the process to generate new insights and approaches.”⁵ Over the years, the UNFCCC system has worked – and continues to work – towards the incorporation of non-governmental actors in the creation of a climate change regime but their participation in the law-making process has at times been impaired, based on the assumption that international law-making remains a prerogative of sovereign nation states.⁶ In other words, States remain the gatekeepers of the international climate change law-making process and there is no coherent and systematic approach to the exercise of procedural rights by non-governmental actors.

4 As detailed in Chapter 3, the UNFCCC recognises as observers nine main constituencies. The latter are the reference groups of this research when it relates to NGOs and civil society organisations.

5 UNFCCC, Guidelines for the participation of representatives of non-governmental organisations at meetings of the bodies of the United Nations Framework Convention on Climate Change, Bonn, 2017. Available at: https://unfccc.int/files/parties_and_observers/ngo/application/pdf/guidelines_for_the_participation_of_ngos.pdf (Last access, 05 October 2018).

6 Several authors have reported on the exclusion of accredited observers from critical phases of climate negotiations, particularly during the Conference of the Parties (COP) 15 Copenhagen, but also in Paris at COP21. See, e.g., M. DOELLE, “The Paris Agreement: Historic Breakthrough or High Stakes Experiment?”, Climate Law, Vol. 6, 2016, pp. 1–20 and W. J. WILSON, “Legal Foundations for NGO Participation in Climate Treaty Negotiations”, Sustainable Development Law and Policy, Vol. 10, No. 2, 2010, p. 54.

1.2 Objectives

Against this background, this book studies how to improve the participation of non-governmental actors in the context of international climate change norm-making in order to remedy a situation in which – although private and subnational actors increasingly work alongside States in the making of international climate regime – they are not fully recognised in this normative capacity. Albeit timely and interesting, a comprehensive assessment of procedural rights in international climate change law-making would exceed the scope of this publication. Therefore, even if access to information is often a prerequisite for meaningful participation and access to justice serves the restoration of States’ obligations, this book will only focus on participation in environmental decision-making processes. Looking at how this right articulates and has been secured to date in intergovernmental negotiations on climate change, the volume will consider whether and how the emerging human rights-climate change nexus could be used as a legal basis for the enhancement of non-governmental actors’ participation in climate change law-making. The possibility to strike a better balance between the vital contribution that non-governmental actors provide to climate change governance and their actual law-making capacity, may be built on rights-based claims since a human rights language has been introduced for the first time in the Paris Agreement of 2015. To this end, the book builds a case study on Arctic Indigenous Peoples (IPs) and proposes to use their practice and rights-based advocacy as a relevant model for improving the participation of those non-governmental actors that already participate as observers to international climate change law-making.

1.3 Structure of the book

The book opens with Part I, which sets the context of the study by looking at how the right to public participation have emerged and consolidated in international environmental law. Following this introduction, Chapter 2 traces back the inception of the principle of public participation in international environmental governance and considers why the participation of non-governmental actors is relevant to this process. Notwithstanding its widespread recognition and implementation through regional conventions, human rights instruments and jurisprudence, this chapter concludes that the application of such a principle at the international level is non-uniform and ambiguous, and the international law-making process is still formally dominated by nation states. The author also discusses here the legitimacy of non-governmental actors and how they contribute to redressing the democratic deficit inherent to international (environmental) law-making. Chapter 3 looks at how the second pillar of the principle of public participation – participation in decision-making – has been incorporated in the regime that governs climate change. The analysis of the construction of the climate change regime presented in this section shows that, although the UNFCCC system has progressively incorporated several non-governmental entities, their participation lacks adequate systematisation and remains subject to States’ interests.

In making a case for the enhancement of non-governmental actors’ participatory rights in climate governance, Part II outlines a case study on Arctic indigenous peoples. Their practice is analysed in Chapter 4 from three main perspectives. First, from an institutional point of view, the formal recognition and integration of Arctic IPs within the most relevant intergovernmental regional forum – the Arctic Council – provides an example of inclusive governance regimes. Second, the recognition of Arctic IPs as Permanent Participants in the Arctic Council has allowed them to perform an important epistemic function, contributing with their traditional knowledge and experience to international environmental law-making. This, in turn, have proved critical to the initiation, negotiation and adoption of several MEAs. Third, a rights-based perspective is introduced to explore how the indigenous peoples of the Arctic, through the NGOs representing them at different scales but also within the wider international indigenous climate movement, have been able to promote a human rights agenda in the context of climate change, drawing upon advocacy and litigation.

The Inuit Petition to the Inter-American Commission on Human Rights (IACHR) has translated the human rights dimension of climate change into a legal argument.⁷ The petition is analysed along with other climate change litigation cases in Chapter 5. The latter introduces climate litigation as a transnational and bottom-up approach to climate change governance, thus as an argument in support of a more open climate decision-making process or, alternatively, as an instrument to uphold procedural rights.

7 There are at least two ways in which climate change is related to human rights. First, rising temperatures are likely to impede the enjoyment of basic human rights, the right to health and life, among others. Second, the implementation of mitigation and adaptation projects has the potential to further impinge on human rights.

Towards the end of the book, Chapter 6 traces back the emergence of a human rights-based approach to climate change, particularly looking at the work of the different United Nations (UN) bodies on the subject, as well as providing a hermeneutical analysis of the Paris Agreement, where a reference to States’ human rights obligations in the context of climate change was introduced for the first time. Finally, considering the possible affirmation of a human right to a healthy environment, this chapter exposes the advantages and limits of the interplay between human rights and international climate change law for the promotion of public participation.

The concluding remarks provide a practical proposal for the improvements of non-governmental participation in international climate change law-making.

Bibliography

1. Doelle, M. “The Paris Agreement: Historic Breakthrough or High Stakes Experiment?”, Climate Law, Vol. 6, 2016, pp. 1–20.
2. Duyck, S. “Promoting the Principles of the Aarhus Convention in International Forums: The Case of the UN Climate Change Regime”, Review of European Community & International Environmental Law, Vol. 22, No. 4, 2015, pp. 123–137.
3. Ebbesson, J. “Principle 10. Public Participation”, in J. E. Viñuales (ed.) The Rio Declaration on Environment and Development. Oxford: Oxford University Press, 2015, pp. 288–309.
4. Wilson, W. J. “Legal Foundations for NGO Participation in Climate Treaty Negotiations”, Sustainable Development Law and Policy, Vol. 10, No. 2, 2010, 54, 69.

Part I

Setting the context

2 International environmental governance and non-governmental actors

2.1 The principle of public participation in international environmental governance: evolution and application in international contexts

Public participation is today widely recognised as a core feature of environmental governance and sustainable development.¹ The principle of public participation was first enunciated during the United Nations Conference on Environment and Development (UNCED) of 1992, which established the premises for the participation of the public in environmental issues and the so-called ‘environmental d...