When it comes to trade and investment policy, environmental democracy is still an emerging idea — an aspiration for some, a foreign concept for others, and a reality for almost no one.
What is environmental democracy? It’s the concept that when governments make laws and policies that affect human rights or the environment, they must notify the public about the potential impacts of those policies and involve the public in the decision-making process. Public participation helps to ensure that marginalized people provide knowledge, input, and expertise into decision-making processes. Broad participation also helps to ensure those who are affected by government decisions have a voice in the process.
As the UN explains, “according space to civil society is not optional.” Everyone has the right to have access to information and participate in public affairs.
When governments negotiate trade and investment agreements, however, they do so under a cloak of secrecy. Agreements negotiated in private negotiations and without public scrutiny overtly impede the public’s access to information regarding or participate in decisions that may affect their human rights or the environment. Many agreements contain provisions for investor-state dispute settlement (ISDS), which gives corporations the right to sue governments when public interest laws may impose additional costs on a company. Once a case is underway, the process of ISDS also obstructs the rights of access to information, participation, and justice. Details of ISDS proceedings are often withheld from the public, and when a government chooses to settle a case outside of court, the terms of the settlement are often kept secret. Further, ISDS procedures do not allow third parties to intervene as full parties in arbitration proceedings, even when the outcome of the case will affect their lives and livelihoods.
Yet many policymakers fail to see trade and investment as a human rights and environmental issue, let alone understand how to implement environmental democracy in practice.
Ensuring environmental democracy in trade and investment is a challenge at both the domestic and international level. The process to create a multilateral investment court is a perfect example:
After public outcry about ISDS, the European Union proposed the multilateral investment court as an alternative — one that would simply rebrand ISDS under a new, friendlier name. In spite of broad opposition, the European Commission failed to properly consult the public on their new proposal, falsely giving the seal of approval to a system with which many fundamentally disagree. And, in the process, the Commission violated a number of EU policies requiring public participation.
Now, discussions about the court are taking place at an international level in UNCITRAL, a UN body that establishes rules around international trade. And yet again, we are struggling to ensure that the public has adequate access to information about the process and the ability to participate.
As Public Citizen has pointed out, arbitration lawyers dominate the UNCITRAL working group while civil society groups are not easily admitted. CIEL has worked with UNCITRAL to highlight the shortfalls of their public participation and information policies compared to international best practice. To meet international standards, we recommend that UNCITRAL draft clear criteria on admitting NGO observers, as well as how these observers can access information and participate in UNCITRAL processes. A recent UN report echoes the importance of these guarantees for all international forums.
Elaborating further on the rights to participation and information may help both support and pressure domestic and international policymakers to uphold environmental democracy in their own decision-making processes.
One promising process is taking place right now, as the UN drafts guidelines on how states can promote public participation in policy decisions. We have encouraged the UN to explicitly address the lack of public participation in trade and investment decision-making in these guidelines.
Until the bodies that protect environmental democracy address the failures of trade and investment policymaking head on, and until trade and investment decision-makers embrace the rules of environmental democracy, we will continue to see governments address these issues in silos. And as a result, trade and investment policy will continue to unilaterally benefit large multinational corporations, to the detriment of the broader public.
By Layla Hughes, Senior Attorney
Originally posted on July 2, 2018