Right to Participation

Recent international instruments, such as Agenda 21, the Desertification Convention and the Beijing Declaration, make clear that participatory partnerships involving both state and non-state actors are developing rapidly as a means for facilitating more equitable access and use of natural resources. One of the first major international documents to make public participation a central developmental objective, including the achievement of equitable socio-economic development, was the 1986 United Nations General Assembly "Declaration on the Right to Development." Its preamble states, inter alia:

"Recognizing that development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits arising therefrom..."

Article 1 of the Declaration, which defines the "right to development," recognizes universal public participation as essential for the expression of the right. It asserts that

"The right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in, contribute to, and enjoy social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized."

The role of public participation as a necessary means for achieving sustainable development was first clearly identified in 1987 in Our Common Future ("OCF"), the Brundtland Commission's report. It found that

" In the specific context of the development and environment crisis of the 1980s, which current national and international political and economic institutions have not and perhaps cannot overcome, the pursuit of sustainable development requires: [inter alia]...a political system that secures effective citizen participation in decision making."

The Brundtland Commission identified "effective participation" as a sine qua non for realizing sustainable development. It refers particularly to the significance of participation in promoting sustainable development by specific groups of the public, namely indigenous people and NGOs.

Although the UNCED and related texts do not referred to "participation" as a right, they indicate that it is vital for achieving sustainable development. They also acknowledge that international law regarding sustainable development has a central role in promoting participation on all levels. Principle 27 of the Rio Declaration, for example, provides that

"States and people shall cooperate in good faith in a spirit of partnership in the fulfilment of the Principles embodied in this Declaration and in the further development of international law in the field of sustainable development."

The preamble to the Rio Declarationcalls for establishment of a "new and equitable global partnership" which will be realized through new levels of co-operation among states and with non-state actors, namely "...key sectors of societies and people."This new form of co-operation is the right to participation. Early manifestations of this right to participate at national levels are recognized in major international human rights instruments, foremost being Article 25 of the ICCPR and Article 21 of the UNDHR. More recently, participation has become intimately linked with achieving objectives in international environmental law, as well as in international instruments concerning economic development.

Identifying participation as a precondition for sustainable development implies that neither environmental nor developmental strategies are likely to be sustainable unless all affected actors, both state and non-state, and particularly those with special dependencies on the resources at issue, are involved in decision-making . The debate over conservation and utilization of biologically diverse resources provides a useful example of how this understanding works. At the level of non-state actors, participation leading to sustainable development requires that affected groups, such as local communities inhabiting and utilizing biologically rich areas must play an active role in the shaping and implementation of laws for protecting species and ecosystems in the area, and in benefiting from the use of these resources. At the inter-state level, it means that conservation of biodiversity in the developing countries or "the South" is no longer just another aspect of industrialized country aid to the developing world. Rather, the biodiversity- rich South must be assured of greater symmetry with the technologically and financially wealthy industrialized "North" over the conservation and utilzation of biodiverse resources which are "a common concern of mankind".

Publicists such as Kiss and Shelton have discussed participation by affected groups in environmental and development decision-making as a right: "Public participation is based on the right of those who may be affected to have a say in the determination of their environmental future."

International instruments concerning indigenous peoples have been much more direct in referring to participation as a right. In these texts, participation is expressed as a key to the realization of other rights and values. For example, the ILO's 1989 Convention on Indigenous and Tribal Peoples recognizes "[t]he rights of the peoples concerned to the natural resources pertaining to their lands...[T]hese rights include the right of these peoples to participate in the use, management and conservation of these resources." The 1994 draft UN Declaration on Indigenous Peoples likewise recognizes a right of indigenous peoples to participate "...in the political, economic, social and cultural life of the State...[Article 4],...if they so choose, at all levels of decision-making in matters which may affect their rights, lives and destinies [Article 19]... if they so choose, through procedures determined by them, in devising legislative or administrative measures that may affect them...[Article 20].

Treating the right to participation as a means for facilitating the realization of other human rights is a norm reiterated in the 1994 Draft Principles on Human Rights and the Environment. It avers that

"All persons have the right to active, free and meaningful participation in planning and decision- making and processes that may have an impact on the environment and development. This includes a right to a prior assessment of the environmental, developmental and human rights consequences of proposed actions."

The IUCN Draft Covenant on Environment and Development also refers to the right to public participation as a facilitating right. The IUCN draft states that "All persons...have...the right to participate in relevant decision-making processes."

The Inter-state Context

When referring to "participation," international instruments often mention the term in both an inter-state (between national) governments context and at an intra-state level (between national governments and non-state actors). At the inter-state level, "participation", or "participatory partnership," generally refers to two concepts which have been supported primarily by Southern (developing country) governments. These are: 1) equitable sharing of benefits, and 2) common but differentiated responsibilities, two terms that will be discussed in the section on principles (below). For now, it is useful to note that conceptually these concepts give substance to the meaning of the right to participate at the inter-state level.

International instruments acknowledge the need for active co-operationamong governments. The co-operation envisaged is for both developing and industrialized countries to combat transboundary environmental and socio-economic threats. These are matters that are largely supra-national in scope and that can be controlled effectively only at the international level. They include global warming, ozone depletion, over-fishing, deforestation, marine pollution, narcotics and contraband armaments traffic, illegal trade in endangered species, unregulated financial transfers, etc. Finding effective solutions for these issues will depend on a substantial degree of co-operation between states. In this context, as suggested in the CBD, CCC, and other contemporary international agreements for conservation and sustainable development, inter-state co-operation entails a "participatory partnership" between the North and the South.

In his writings on the right to development, Chowdhury suggested that co-operation is now a manifestation of inter-state participatory partnership. He saw this as the way to transform the inferior-superior relationship between the South and the North to one based on the "principle of equality":

"The principle of equality -- substantive and participatory -- intends to bring about a just balance between the diverging and converging interests, particularly between the developed and developing countries...[S]ince all states are legally equal, they have the right to participate fully and effectively in the international decision-making process for the solution of the economic, financial and monetary problems as a matter of participatory equality."

Multilateral development institutions such as the UNDP reflect this shifting terminology and are an indicator of evolving relations between industrialized and developing countries. The UNDP has stopped using the terms "donor" and "recipient" country in its lexicon. Instead, it now employs "principal contributor" and "project country" respectively. The idea is to stress that both types of countries are in an equal and mutually dependent and supportive partnership that is required for sustainable development.

For developing countries, participation in this context implies the creation of an international "level playing field". It requires developing countries to be considered as active partners with the industrialized states, rather than mere recipients and implementors of decisions made by others in determining, implementing, and benefiting from international legal, political and economic norms and activities.

This understanding of participation at the inter-state level is encapsulated in the texts of several recent international legal materials. It has contributed to the refinement of the developing countries' agenda, during the past three decades. A notable landmark in this effort was focused on efforts to establish a New International Economic Order ("NIEO"). Another is the Kuala Lumpur Declaration which is a developing country position on priorities for the Rio Conference in 1992. In that declaration, the G-77 countries called for inclusion in UNCED documents of the concepts of "common but differentiated responsibilities," "technology transfer," and "equitable sharing of benefits" as necessary if "participatory partnerships" for achieving sustainable development are going to be successfully forged.

Non-state/Intra-state Context

Since the UNCED, there has been widespread agreement in both the North and the South that active "participation" by affected groups is necessary and desirable if international legal objectives dealing with conservation and sustainable development are going to ever be met. This agreement is evident in official UNCED documents and related follow-up instruments, such as a 1994 resolution ( See 15 Traffic Bulletin 65 (1995))of the Conference of the Parties to the Convention on International Trade in Endangered Species of Wild Fauna and Flora ("CITES"), that recognize a role for participation by non-state actors.

The emergence and legitimation of non-state actors as participants on the international law scene is an important development. It provides recognition of the right of citizens to participate, and in some instance provide valuable professioanal assistance to, official decision-making processes. It is also an acknowledgment by public/governmental authorities that participation by members of the general public generates goodwill and support for development inititiatives, and is often a prerequisite for the successful creation and implementation of socio-economic and environmental objectives.

The participation of "stakeholders", "affected groups", and other non-state actors is now well- recognized in UNCED and post-UNCED international legal materials dealing with the environment and socio-economic development. The instruments reflect the emergence of two broad dimensions to the concept of "public participation."

First, people should be accorded the opportunity to participate in official socio-economic development decision-making processes and activities that will directly affect and impact on their lives and well-being.Initiatives that fail to include affected groups in decision-making and project implementation may be discredited and even fail. The acclaimed Merck-INBioagreement between a transnational pharmaceutical company and a Costa Rican national scientific institute for the collection, and processing of resources of biological diversity with the aim of developing marketable commercial products provides a valuable example. The text of the agreement does not take into consideration the rights and interests of local communities from which the resources are derived, and fails to include the participation of these communities in the implementation structure of the agreement. As a result, the parties to the agreement have been subjected to public criticism.

Second, in order to participate fully, the public must be provided with (or at least have access to) adequate information concerning the decisions and activities of government. Kiss refers to this aspect of participation as "obtaining information."

"Obtaining information is a prerequisite for the major role played by the public, which participates in decision-making, especially in environmental impact or other permitting procedures."

By including diverse groups as necessary participants for achieving sustainable development, Agenda 21 and the other UNCED materialschallenged longstand assumptions regarding the role of government as the only legitimate player in developing and implementing international standards and legal rights and obligations. Recognition of a place for non-state actors in the drafting and amending of international legal instruments for environmental protection and sustainable development is one of the major developments to come out of the UNCED.

This broadening of the type of particpants recognized as necessary for achieving sustainable development has transformed international law making. Public participation in the design and implementation of international objectives in the fields of environmental conservation and sustainable development has become standard in both hard law- and soft law-making. In the Desertification Convention ("DC"), for example, participation is included among the objectives and obligations, (albeit with the usual qualifiers). Article 3, which contains the Convention's "Principles" provides that

"In order to achieve the objectives of this Convention and to implement its provisions, the Parties shall be guided inter alia, by the following: (a) the Parties should ensure that decisions ...are taken with the participation of populations and local communities...."

In Article 5 "Obligations of affected country Parties," signatories to the Convention commit themselves to:

"...undertake to...promote awareness and facilitate the participation of local populations, particularly women and youth with the support of non-governmental organisations, in efforts to combat desertification..."

In Article 9 "Action Programmes," they promise that:

"In carrying out their obligations....affected country Parties....shall, as appropriate, prepare, make public and implement national action programmes...Such programmes shall be updated through a continuing participatory process..."

The juxtaposition of participation with meeting environmental needs of affected groups such as women, the poor, indigenous communities and future generations in the Vienna Declaration, is a recent phenomenon in human rights law. The absence of references to environmental needs as late as the mid-1980s in human rights documents such as the 1986 Declaration on the Right to Development indicates that concern for the environment only recently has become a noted issue in these related areas of the law. In this sense the emerging international legal principle of inter/intra-generational equity clarifies the parameters of the right to participation by articulating that participation mandates the input of affected groups in both decision-making and in receipt of the benefits resulting from that decision-making.

"Participation" in its inter-state and non-state dimensions is also directly linked with intergenerational equity because its application facilitates greater symmetry in determining the utilization and distribution of resources. As noted by the ILA:

"Reconstituting the international legal order and thereby securing environmental justice will require substantial support from key actors of society...Peoples which take an active part in their own development have to be given a legal standing."

Proceed to Part IV

For more information, contact: Owen J. Lynch (olynch@ciel.org).