Having made a case for fair procedures, Chap. 4 now turns to the question of what procedural fairness requires in the UNFCCC by considering who should participate in its decisions. Procedural justice is often understood as requiring that all those who are affected by the outcome of a decision should have some say in the decision making process (the All Affected Principle). Yet, there are many objections to this approach, there are also many other principles of fair participation to consider, and it is not immediately apparent that this principle should be applied in the UNFCCC. Furthermore, increasing the number of participants in a decision is often detrimental to the ability to reach agreement on an issue. In this chapter, I discuss the merit of the All Affected Principle and consider how fair participation can be achieved in the UNFCCC. I analyse several alternative principles for fair inclusion in the decisions of the UNFCCC and argue that fair processes are those provide representation to states on a global scale. I then consider what procedural rules are required in order to achieve this in the UNFCCC.
The decisions made in the UNFCCC affect people in a profound way on a worldwide scale. Climate change is a global phenomenon, which means that decisions concerning the mitigation of climate change have implications for people everywhere. Other decisions, such as those governing adaptation measures, or the distribution of climate finance, may not affect people globally, but still affect large numbers of people in a considerable way. It’s often thought that people who are affected by a decision should have some say in the way that it is made. For this reason, the UNFCCC has traditionally sought a high level of participation in its decisions, both through the universal participation of its member states, as well as through the involvement of many civil society actors.1
The COP represents the main decision-making forum of the UNFCCC. Currently, decisions in the UNFCCC are formally adopted by its constituent member states when consensus is reached. This gives an equal say in the UNFCCC’s decisions to each member state. Member state delegations are in privileged in the sense that they are the sole actors that have a right to oppose a decision, or to have a vote. Delegations are also privileged in the sense that they have other procedural rights, such as the right to make formal interventions in COP negotiations. Many other, ‘non-state’ actors (NSAs) also participate in these decisions, although they do not hold the same rights as states. These actors participate in these decisions in more informal ways, influencing decisions by providing information and assistance to state delegations, as well as making interventions on the request of the COP Chair.2 The fact that these actors open a window into the COP from the wider world and provide a voice that otherwise goes unrepresented gives the UNFCCC added legitimacy. The value that these actors bring to discussions has led the UNFCCC to adopt an inclusive policy towards participation in COP negotiations.3 The list of observer organisations, which have the right to access the COP negotiation forum and informally participate in its decisions, has increased exponentially since the early 1990s. At COP15 in Copenhagen there were 37,000 registered participants, including 10,500 government delegates, 13,500 observers from civil society, and 3,000 journalists (Dimitrov 2010).
But the procedural deadlock experienced in the UNFCCC since 1992 raises questions about the suitability of this approach. The number of actors that participate in multilateral decisions has important implications for how easy it is to make decisions and reach agreement. The more actors that there are in a decision-making process, the harder it is to aggregate interests and come to an agreement. More views are on the table, and more voices demand to be heard. This has led some to claim that open-ended institutional membership combined with decision-making by consensus has contributed to the stalemate within the UNFCCC. A number of commentators have suggested that the UN’s principles of unanimity and inclusiveness contribute to deadlock in the negotiations of the UNFCCC.4
In response to this, some have sought to make decisions amongst smaller, more exclusive groups for decisions in the UNFCCC. Whilst this avoids the procedural problems associated with making decisions in large groups, it also comes under heavy criticism for its lack of procedural fairness. During the closing stages of COP15 in Copenhagen, delegates from four countries met in private to negotiate an agreement outside the main negotiation forum.5 This group later declared that a global deal had been achieved, sparking outrage from the broader COP delegation who hadn’t been informed of the agreement and were unaware of the discussions that had taken place (Rapp et al. 2010). Subsequently, Venezuela, Cuba, Nicaragua and Bolivia later renounced the agreement on the grounds that they had been excluded from important meetings (Bodansky and Rajamani 2013, p. 12). Similarly, the UNFCCC Climate Change Conference in Bangkok (2009) also drew heavy criticism after media representatives and other NSAs were excluded from participating in the negotiation sessions (Vidal 2009).
Whilst this raises questions about whether or not participation in COP negotiations should be limited on the grounds that it over-burdens decisions, there are also reasons for thinking that participation should be limited where actors are affected by the outcomes of these decisions to different degrees. At the 1997 COP negotiations in Kyoto, all of the UNFCCC constituent states participated in decisions concerning the negotiation outcome document, even though only a subset of these actors were actually subject to its provisions. This suggests that participation may important for those who aren’t formally bound by a decision, but are the nonetheless significantly affected by it. These concerns extend beyond state delegations; they also relate to NSAs.
The decisions made within the UNFCCC clearly have considerable implications, not just for those who participate in the COP, but also for people globally. This raises questions about who should participate in the decisions of the UNFCCC as a matter of fairness, and how this should be balanced against the need to make decisions effectively. Much of the literature on democracy and multilateralism advocates greater participation of those who are externally affected by the outcomes of international institutions, through increased accountability, representation, or transparency in the processes that bring these outcomes about.6 This is also something that’s been embedded in the formal rules of other multilateral environmental agreements.7 Those who advocate democratic inclusion in this way typically make two important assumptions. First, fairness demands that those who are affected by the outcomes of an institution are included in its decision-making processes (the so-called ‘All Affected Principle’). Second, deciding who should participate is a matter of what’s feasible in practice. Whilst some suggest that the demands of democratic inclusion require ideal responses to global governance such as electoral accountability on a global scale (Falk and Strauss 2000), others suggest that such approaches are unachievable in the current system of world politics, and that greater inclusion should be achieved through democratic processes that are neither accountable nor directly representative (Dryzek and Stevenson 2011, 2012a).
In this chapter, I question the former of these assumptions. I argue that those who are affected by the outcome of a decision do not, by virtue of the fact that they are affected, have a right to a say in the way that it is made. I claim instead that a more accurate understanding of procedural fairness is that those who are coerced by the outcomes of a decision, as well as those in whose name a decision is made, should be included in its decision-making processes. I go on to argue that those whose interests are affected by a decision should have a right to be heard in a decision, although this does not entail a right to participate in the sense of having a say in the way that it’s made. With this in mind, the next section considers how we might start to think about fair participation in general contexts. In what follows, I consider some of the most frequently discussed principles for thinking about how to determine a democratic constituency.8
4.1.1 In One’s Name
One common way of determining the demos is to say that participation is required if a decision is made in an actor’s name (Beerbohm 2012). That is to say, if a decision is made on an actor’s behalf, or if a decision is attributed to an actor, then that actor should have some say in the way that the decision is made. This carries strong intuitive appeal. People typically think that it only makes sense to attribute a decision to an actor if that person has had some say in the decision-making process. In a domestic context people have a right to participate in a decision-making process if a law is made in their name, regardless of whether they are actually affected by it in any real sense.
For sure, an agent may claim to act on behalf of an individual, in the sense that it takes the individuals interests into account and make the best decision for them, without actually giving that individual a say in the way that the decision is made. But it’s wrong to say that it’s fair to make a decision on someone’s behalf whilst excluding that person from the decision-making process. The fact that a decision is made in someone’s name means that, in some sense, that person should authorise and accept that decision. Carrying out a decision in someone’s name without giving him or her a say in how it is made contradicts this.
It is difficult to think of cases where this doesn’t seem to be an appropriate principle of fairness. If a decision is made in someone’s name, then it often seems unfair if that actor is not included in the decision. It might be fair to make a decision on an actor’s behalf if, for example, that actor has elected someone to make a decision for them. Alternatively, it might seem reasonable to make a decision in someone’s name if he or she is incapable of making decisions that represent his or her best interests. But these are exceptional cases. In the first instance, the fact that an actor endorses a representative agent to make a decision is an act of participation itself, and doesn’t contradict our idea of what’s fair. In the second case people can act on behalf of someone else if that person’s particularly poor at making decisions. Provided that someone possesses some minimum capability to make a decision, there’s no reason for excluding him or her from a decision. Assuming that the majority of the actors in a multilateral context are capable of making good decisions that represent their best interests, this second point isn’t problematic for our idea of what’s fair either. So the idea that people should be able to participate in decisions that are made in their name seems like plausible principle of justice for democratic inclusion and should govern at least some of our thoughts about who should participate in the decisions of the UNFCCC.
So who does the UNFCCC make decisions on behalf of? The UNFCCC aims to have universal membership amongst states globally. The COP of the UNFCCC makes decisions in the name of its member states. That is, the COP is a decision-making group that consists of the delegations of the UNFCCC signatory states. In this respect, we might think that fairness requires that these member states should have a say in the way that the UNFCCC makes its decisions. But this clearly isn’t the whole story here. If fairness requires that those in whose name a decision is made should have a say in the UNFCCC, then surely this extends to those who make decisions within the UNFCCC as well. States act on behalf of many types of actors aside from just those in their constituencies. Many states aren’t democratic accountable. In light of the many repressive and authoritarian regimes that exist in the world, it becomes hard to justify the claim that every state acts on behalf of its constituent citizens. So it’s also important to think about how to give those in whose name the UNFCCC acts, but who are not included in its decisions. This is something that I take up in the final section of this chapter where I make several proposals for the reform of the UNFCCC. For the moment, its sufficient to recognise that this principle should play some part in our thinking of fair participation in the UNFCCC. Acknowledging this, I now turn to several other claims for fairness.
4.1.2 The All Affected Principle
The most prominent claim for fair participation is that all those who are affected by the outcome of a decision should have some say in how it is made.9 This is known as the All Affected Principle (AAP),10 and it has gained considerable traction in multilateral environmental politics, where it has become a defining feature of many international environmental agreements.11
At first glance, the AAP appears an appealing candidate for determining who should participate in decisions as a matter of fairness. Assuming that interests are important, and that people are generally the best representatives of their own interests, then it seems reasonable that agents should have some say in the decisions that affect them.12 The AAP also fits with many of our intuitions about who should participate in a decision. If a government is deciding whether or not to build infrastructure that results in the forced relocation of an indigenous group, then it’s important that this group has a say in the decision-making process. Likewise, people feel that a local community should have some say in whether or not a large supermarket is built in a local town, or whether a polluting power plant is built nearby, or whether the Government licenses shale gas extraction.
But on further thought, the AAP doesn’t seem so appropriate in each and every situation and there are many who argue against this principle.13 Before considering why we might reject the AAP on theoretical grounds, it’s worth pointing out some of the considerable problems that arise with implementing this principle in practice. Foremost, whilst the AAP implies that all those who are affected by a decision should have some say in the way that it’s made, it says nothing about what it means to be affected, nor what sort of say this entails. There are many conflicting accounts of what it means to be affected in a way would warrants inclusion in a decision and what form this inclusion should take. I might claim that a decision to destroy an area of natural beauty in another part of the world affects me in some way, even though I’m not actually affected by the decision in any physical sense. I might argue that I have a strong claim to a say in the way that the decision is made, or I might only claim that my views about this matter should be respected in the decision. Whatever one thinks about the merit of the AAP in theory, a more refined account of what affectedness means is clearly needed before it can be adopted as a principle for policy reform.
Assuming that people can reach some understanding about what it means to be affected in a way that’s relevant for participation, in certain situations a second problem arises. For some decisions, the decision-making process itself determines which actors are actually affected by its outcome.14 If a decision is made about where to site a noisy wind turbine, then the outcome of the decision determines who is actually affected by the noise of this turbine. But the identification of those who are actually affected by this decision can’t be determined until the decision is made. Adopting an actually affected interpretation of the AAP appears incoherent here, because the decision determines who is affected. In addition to this, the actually affected view takes the status quo as the baseline from which to judge whether an actor is affected by a decision. But, as Robert Goodin rightly argues, if a decision-making body chooses one option from a set of many, then an actor can be affected in the sense that he or she would have been in a different situation, had that option not been chosen (Goodin 2007, p. 53). If an employer is deciding whom to employ from a group of several potential candidates, then each candidate is affected by her decision, even though the situation of those who are not chosen will not actually change.
As such, Goodin argues that the AAP should apply to all those who are potentially affected by the outcome of a decision. But the problem is that, for some decisions, adopting a potentially affected stance means incorporating vast numbers of actors into the decision, many of whom are unlikely to actually be affected by the outcome of the decision. In the example of the wind turbine, this would mean that, out of all the possible option sets for its location, all those who are potentially affected by the noise of the turbine should participate in the decision about where to site the turbine. However, this seems an overly demanding condition for participation, especially in light of the practical issues that are likely to arise in meeting this requirement. In response, David Miller argues that a group only has a justifiable claim for inclusion if their interests would be significantly affected by its decisions whichever way those decisions go (Miller 2009). Yet this only resolves the problem in some situations. There are still some decisions that potentially affect very large numbers of actors, each of whom are potentially affected in a significant way.
This leaves the AAP in a tricky bind. It is necessary to decide whether the AAP implies that all those who are actually affected, or all those who are potentially affected should participate in a decision, or if the AAP should be abandoned altogether when potentiality arises. The problem is that the AAP is silent on these issues and whilst these matters may not be irresolvable, they do involve some difficult decisions about how this principle can be achieved in practice.
A third problem with the AAP is much more of a concern for its overall plausibility as a principle of justice. This is that the AAP is counterintuitive in many everyday situations. For example, in the course of everyday life, many decisions have implications for other actors, yet people do not think that those who are affected by these decisions have any claim to inclusion in the way that they are made.15 One might argue that, whilst merely being affected is not sufficient for inclusion, if you are significantly affected by a decision then you should have a say in how it is made. Yet on further inspection this doesn’t seem a suitable approach either. Taking Robert Nozick’s famous example, several suitors are significantly affected by the outcome of a bride’s decision, yet people do not think that they should have a claim to participate in that decision (Nozick 1974, p. 269). In response to this, one might argue that the AAP is an appropriate principle in situations of public decision-making, rather than in private affairs. People often feel that some decisions should remain in the hands of certain actors, regardless of how these decisions affect people. If a bride is choosing whom to marry, or if a university is deciding whom to offer a place to, then people feel that these actors should have a prerogative to make their own decision.
But there are also examples where agents are significantly affected by public decisions yet those actors do not have a right to participate in the decisions. Government decisions about immigration policy, the taxation of imported goods, or domestic environmental policies are all cases in which outside actors are significantly affected whilst lacking a legitimate claim to inclusion.
One reason that the AAP diverges from our everyday intuitions is that in many cases people can avoid being affected by the outcomes of a decision. Our intuitions about who should be included in a decision-making process often seem to depend on whether an actor can take action to avoid being affected by the outcome of a decision.16 If a company purchases energy from a renewable energy supplier, then it is affected by the supplier’s decision to raise the price of energy. But it seems strange to demand that the company should have a say in the supplier’s decision as a matter of fairness. Likewise the supplier is affected if the company sources its energy from elsewhere, yet it doesn’t seem a pressing matter of fairness. Regardless of what can be said about the practicality of implementing the AAP, it seems that it only appears to fit with our everyday intuitions in cases of unavoidability. This suggests that it’s necessary to consider a different criterion for inclusion that takes this feature into account, rather than rely on affectedness itself.
These problems present the AAP with different challenges. The first two problems are not irresolvable in themselves. Whilst it’s necessary to have a more nuanced understanding of what it means to be affected and what it means to participate in a decision, this is not to say that the AAP is inappropriate for procedural justice. Likewise, the issue of potentiality can be resolved through further refinement of what the AAP actually requires. In many cases we’re likely to have some initial idea of who’ll be affected by a decision, and those who are likely to be affected could be included in a decision, without having to include absolutely everyone for every single decision.
But the third problem is much more troublesome. It’s necessary to find a more accurate account of what it means to be affected in a way that provides a legitimate claim to inclusion in a decision-making process, as well as a more thorough explanation of why affectedness might warrant inclusion in the first place. In what follows, I present two potential interpretations of affectedness that might fulfil this requirement: being subject to the law, and coercion. After considering each of these interpretations, I argue that the notion of coercion fits much more accurately with our everyday intuitions about who should participate in a decision.
4.1.3 Subject to the Law
One form of affectedness that might fit better with our everyday intuitions is to be subject to an authority or power. The All Subjected Principle is a revised version of the AAP, which specifies that those who are subject to an authority should have some say in the way that its decisions are made.17 There are different interpretations of what ‘being subject to an authority’ implies here. This can mean, for example, being subject to a law, or rule (what I call, the ‘direct version of the All Subjected Principle’).18 But those who advocate the All Subjected Principle do not always refer to it in terms of subjection to the law. Nancy Fraser takes the view that an actor is subject to a governance arrangement if the arrangement subjects the actor to socioeconomic forces that are beyond his or her control (what I call, the ‘indirect version of the All Subjected Principle’), rather than to the law per se (Fraser 2008, p. 96). This takes into account those who are effectively subject to the rules of an authority, whether or not they are actually subject to those rules in a formal sense.
In respect to the direct version, the All Subjected Principle seems quite intuitive here. There are many situations in which people feel that those who are subject to the law should have a say in the way that it is made. Within a domestic constituency, people typically feel that those who are subject to a law should have a say in the way that its made. There might be a good case for adopting the All Subjected Principle as a principle of procedural justice because participation legitimises the law to those who are subject to it. By participating in a decision, those who are subject to the law provide some form of consent (albeit tacit) to the law itself, giving the law legitimate authority, as well as providing those who are subject to the law a reason for complying with it.19 The All Subjected Principle also fits with our intuitions about accountability. People typically feel that those who govern should be held to account by those who are governed. The direct version of the All Subjected Principle meets this requirement, by providing those who are governed by the law some control over those who make it.
But on further reflection, there are two problems with the direct version of the All Subjected Principle. First, being subject to the law requires a common set of rules, or a common authority that agents are subject to. That is, agents are only subject to the law when there is an established framework that subjects a unified community of actors to binding rules. Within a domestic state, there is a group of citizens with a common identity and a sovereign authority that can impose legal measures. But in many cases there is no such common community or sovereign power. It is well documented that there is no global sovereign power capable of coordinating state action and enforcing compliance at the state level, nor is there any common community of citizens on whom the law can be placed (Miller 2010a). At the same time, it’s often necessary to implement policies that govern behaviour at the global level, even if there is no common community on whom a legal framework can be imposed. This point does not mean that the direct version of the All Subjected Principle should be rejected, but rather that it should be supplemented in certain circumstances. That is to say, even if the All Subjected Principle is a sufficient principle of inclusion, it is not a necessary condition for inclusion here.
Second, there are at least some decisions that affect actors in significant ways without necessarily subjecting them to a law or rule. People often think that these actors have an entitlement to participate in some of the decisions that affect them, regardless of whether they are subject to the law. Multilateral institutions implement rules that have significant implications for many actors, few of whom are actually subject to these rules. If a state imposes a law on domestic manufacturers, then this might have significant implications for foreign suppliers. If these suppliers are sufficiently affected by this law, then they might feel that they are entitled to a say in the way that it is made, or at that our interpretation of the All Subjected Principle is insufficiently narrow here. It seems that direct version of the All Subjected Principle fails to capture all of our intuitions regarding who should participate in a decision-making process.
In response to these problems, one might adopt a broader notion of subjection along the lines that Fraser advocates. At the same time, adopting Fraser’s indirect version of the All Subjected Principle is not without its problems. It opens the door to including a lot of actors who may only be subject to a governance structure in spurious, or tenuous ways. One might claim that foreign suppliers are owed some form of participation if they are sufficiently subject to a domestic policy. Yet this claim seems much less plausible for those who supply raw materials, transport needs, and accountancy services to these foreign suppliers also fall under this umbrella.
Adopting this notion of subjection also raises questions about why being ‘subject’ to an authority is important in the first place. If we care about the impacts of a decision or authority, then why are we concerned with who is subject to that authority, rather than who is actually affected by that decision, or burdened by its implications? Unless subjection means ‘acting in our name and issuing laws in that capacity’ (the direct version) then the All Subjected Principle is an inaccurate way of capturing what’s really important. There are other notions of affectedness that are more appropriate for our intuitions about who should participate in a decision-making process.
On closer inspection then, the All Subjected Principle appears less convincing as an appropriate principle of procedural justice. It is too ambiguous and it is not clear what it is about being subject to a rule that warrants participation in a decision-making process. Whilst the All Subjected Principle does fit with our intuitions in certain situations, procedural justice needs a more refined notion of affectedness.