Democracy and Deliberation in the UNFCCC
By Tuomas Palosaari, Lecturer
Democracy and the International System
People living in democracies have ways to influence and follow public decision-making that affects their lives. International decision-making is problematic in this regard. The ‘chain of legitimacy’ imagined as extending from the people to the public decision-makers is convoluted when applied to international decision-making. In democracies the state’s foreign policy is usually led by the executive. While the executive generally consists in politicians elected by the people, the mandate of the executive to act at the international level is markedly open. International politics are distant from the daily life of the lay person and difficult to follow due to limited transparency and media publicity. Consequently, it can be hard to hold the political leaders accountable for many of their international actions.
For the longest time this was rather unproblematic, as international agreements used to focus on inter-state matters such as the arrangement of diplomatic relations. Modern international law and governance, however, covers all sorts of areas that have traditionally belonged to the domestic control of states. The private spheres of people are thus increasingly affected by decisions made at the international level.
To balance the power of the executive, many democracies subject international obligations to parliamentary and judicial scrutiny. The parliament may have the right to be informed or consulted in international matters. Parliaments often have to approve and implement international obligations before they can become binding in the domestic legal system. Some legal systems subject treaties or implementing acts to ex ante or ex post constitutional review.
But only legally binding commitments are generally scrutinized. The number of new treaties has been decreasing in recent decades. Instead, we are witnessing the proliferation of informal processes and actor-networks, as well as legally non-binding instruments. The traditional approach to domestic scrutiny is thus leaving much of international governance cut off from democratic checks. This includes climate change governance, which largely operates through legally non-binding decisions by the Conference of the Parties (COP) under the United Nations Framework Convention on Climate Change (UNFCCC).
In light of this, is there a way to strengthen the metaphorical chain of legitimacy? Are there other ways to amplify the connection between international decision-making and the people?
Parliaments and International Decision-Making
Existing parliamentary rights to be informed and consulted in international matters could be used to develop a more robust deliberative process between the parliament and the government. Effective deliberation would go beyond the existing processes while respecting the principles of the separation of powers as laid out by the respective constitution. The government could deliberate, for example, with a parliamentary committee focused on foreign matters before and during international negotiations to fine-tune national positions to changing negotiation circumstances. However, time is limited during negotiations, so the emphasis would have to be on deliberating before the start of negotiations. The deliberative process should only be initiated in important matters, as there is no point in discussing minor details such as conference modalities.
Parliamentarians could have more influential roles in national delegations. At present, parliamentarians usually act as observers. Parliamentarians could be given a more strategic role in a delegation to allow input from the parliament and better flow of information back to it. An actual negotiating role, however, would not necessarily be ideal. Technical negotiations are often conducted by diplomats and experts who have the benefit of time to get deeply acquainted with the issues at hand. Also, if the parliamentarians would act as negotiators, they would be restricted by the confidentiality of the negotiations and political accountability for controversial discussions just as their executive compatriots are, which could be more harmful than helpful in engaging the parliament at large.
Parliamentary approval could be extended to at least the most important informal international instruments. Sometimes parliaments debate and vote on statements regarding major non-binding instruments. Such process was initiated for example by parliaments in Estonia and Germany on the Global Compact for Safe, Orderly and Regular Migration. Yet, a widespread practice of parliamentary approval among states could lead to further retreat to informality in international governance. This is because one reason for the existence of informality at the international level is specifically to eschew the formalities of international law-making, including domestic scrutiny and accountability.
Thus, individual states may enhance the democratic legitimacy of international decision-making through different domestic measures. Yet, with the central problem being the club-of-executives form of international governance, predominant focus should be on bettering international decision-making itself.
Consensus and Deliberation in the UNFCCC
At the international level, legitimacy debates often revolve around input and output approaches. For example, in relation to climate change governance, literature regularly suggests expanding the participatory rights of civil society actors to legitimize the processes by allowing more input by affected groups. In output approaches, the success of the climate regime is often measured by its ability to address climate change and its impacts, the idea being that the better the performance of the system, the more acceptable it should be to states themselves or the people.
From a democratic perspective, input and output are procedurally coupled. The decision-makers must piece together the preferences of the people before they can create effective policies and laws. What matters, then, is the extent to which said preferences are genuinely considered by the decision-makers and can affect the resulting decisions. The decision-makers must listen and know before they can act and succeed.
While cooperating, states are regularly understood as trying to maximize their own interests. To the extent states yield on these interests, it is suggested to be the result of compromising, bargaining, or even coercion by other states. In other words, states are understood as acting on the premises of instrumental rationality.
The prevalence of consensus decision-making in international environmental regimes implies more considerate decision-making. For example, the UNFCCC COP must decide by consensus because states have not adopted draft rule 42 of the Rules of Procedure which would enable majority voting. Consensus requires deliberation, and the COP can thus be analysed as a ‘laboratory’ of deliberative decision-making at the international level.
Deliberation has received increased attention in democracy literature over the recent decades. Deliberative democracy is a form of decision-making in which deliberation, not voting, is central to democracy and its legitimacy. What is usually considered necessary for democratic deliberation is balanced representation of public opinions, availability of necessary information, and genuine consideration of different opinions and opportunity to express them.
These features reflect core principles of ‘communicative action’as outlined by Habermas in his landmark theory of communicative action. Habermas defined communicative action as cooperative action aimed at reaching a mutual understanding. In communicative action only the force of the better argument can be exercised, which excludes coercion. As such, communicative action is defined by reasoned argumentation and consensus.
Claiming consensus does not always mean that a genuine consensus has been reached. For example, the result of COP28 was framed ‘UAE consensus’ although small island developing states (SIDS) were not even in the room when the final decisions were adopted. If SIDS were satisfied with the resulting decisions is irrelevant, since consensus is equally about an adequate procedure as it is about factual existence of a shared understanding. Decision-making in the COP seems to allow for political manoeuvring around the concept of consensus, even gavelling a decision at the face of explicit opposition.
Yet, an imperfect “consensus” (an antinomy par excellence) reached through compromising is not necessarily a bad result, at least if done in good faith. In practice, decision-making is always deficient in some way. The deliberators may not simply have the necessary skills and capacities as well as available information to reach a genuine reasoned consensus. International decision-making must also account for the fact that the participants may not be able to act authentically, as they are not simply acting in their personal capacities but representing the state institution.
In this context, striving for consensus necessitates enhancing the processes of participation and representation in international decision-making.
Civil Society Participation and the Strive for Substantive Representation
When analysed as a deliberative setting, international decision-making is a contingent form of elite deliberation. This means limited participation of affected groups, but also deficient representation of the public in general, as a congregation of state executives can hardly be regarded as democratically representative of the world population, particularly with majority of people living in autocracies. Hence, international decision-making cannot be deliberatively democratic. However, it carries the potential of being more substantively representative and thus more democratic.
In contrast, in ideal deliberative democratic decision-making people affected by the decision or the underlying issue would have the opportunity to participate personally in the deliberations. Hence, so-called citizens’ assemblies are often proposed as a solution to engage ordinary people in political decision-making.
Citizen’s assemblies of affected individuals as a form of international decision-making would be faced with the difficulty of first defining the ‘affected’ and then the practical impossibility of enabling all affected persons to deliberate with each other. Genuine deliberation itself is only possible when the number of participants is limited enough. If there are too many participants, deliberation quickly turns into speech-making without much of interactivity.
Even if the citizens’ assembly members would be randomly chosen from the world populace, the representativeness of the extremely reduced group could be contested due to the massive scale of cultures and experiences that should be represented. Compared with already existing civil society participation, citizens’ assemblies would only really make sense if they were given actual decision-making power. That, however, is not a likely development at least in the near future.
But the elite-nature of international decision-making necessitates input from the civil society. The increased stakeholder engagement before the annual climate negotiations is an encouraging development in this regard. Civil society participation, however, does not automatically ensure sufficient input. Only some organizations have the capacity and resources to be present at climate negotiations and influence the decision-makers. Civil society organizations are often advocacy groups and do not necessarily represent all affected groups, even less the whole political unit of the world populace. Also, civil society actors may not be organized in a democratic manner themselves.
Hence, decision-makers themselves must be open to rationalize what the consequences of their decisions or inaction would be. Particular attention should be given to groups who do not have a voice at the international level. It is not enough for states to premise their actions merely on abstract state-institutional preferences. They need to adjust their positions to respond to the wider preferences of the people.
This is why a vibrant civil society is so essential. If the decision-makers are not open to input and genuine deliberation, what claim do they have to being more democratically legitimate than, say, a technocratic congregation of experts would be, other than that some of them are elected to their positions by their nationals? For example, at times it is argued that international efforts to tackle climate change should be led by experts instead of politicians. Lafont calls such a form of decision-making the ‘expertocratic shortcut’ to democracy, which, despite its potential quality benefits, carries the risk of alienation and reactance among citizens. Non-binding instruments in particular may allow smooth technocratic governance but can also be seen as endemic to the global elite governance that has created populist backlashes in many countries. To retain its claim to legitimacy over a proper ‘expertocracy’ (or even technocracy), and to mitigate its tension with democratic principles, international decision-making must allow meaningful input from the civil society and experts and ensure that it is used to produce effective decisions.
At the face of paralyzing complexity of facts, values, and personalities, international decision-making can only then pursue the ideal of genuine deliberation. The ideal is a ‘limit’ that is approached through individual and shared efforts. Different deliberative standards can be used as a ‘democratic-striving’ guideline in this regard to maximize the quality of international decision-making and to induce the maximum practicable rationality into the resulting decisions.
In the current executive-led international system, people are largely dependent on entrusting the state-elite to come up with effective decisions and factually representing their interests. Yet this system is not entirely bad if considered from the perspective of reducing complexity, particularly the sheer number of affected people and their individual experiences.
At minimum, existing proceedings must be made more public and transparent. This way critical individuals could observe if their perspectives are included, genuinely considered, and, if backed by good arguments, hopefully impactful on the decisions, and thus determine if there are grounds to feel substantively represented.