Legal Foundations for NGO Participation in Climate Treaty Negotiations

• Author: Winfield J. Wilson
• Position: J.D./M.P.P. candidate, May 2011, at American University Washington College of Law & School of Public Affairs
• Pages: 54-54

54WINTER 2010

LEGAL FOUNDATIONS FOR NGO PARTICIPATION IN

CLIMATE TREATY NEGOTIATIONS

by Winf‌ield J. Wilson*

During t he Copenhagen climate change negotiations in

December 2009,1 as th e talks concluded tensely for

governme nt r epresentatives, 2 coal itions of environ-

mental groups were di sappointed because their efforts to play

a part icipatory role had been frustrated.3 The silencing of the

nongovernmental organization (“NGO”) perspective runs coun-

ter to establi shed international principles of broad participation

in multilateral environmental agreement s (“MEAs”) ,4 and is

particularly troubling in light of th e global challenge c limate

change poses to humanity.

At the beginning of the second of two weeks of the negotia-

tions, as pressure mounted for the talks to produce a meaningful

and binding treaty, logistics and site-management broke down

at th e conference center and the UN suspended obs erver reg-

istration, leaving thousands literally standi ng in the cold.5 On

a broa der level, t he lockout p rompted NGO leaders to i nvoke

internationa l principles on public invo lvement in MEAs in a

letter to political leaders, which cited the 1992 Rio Declaration

and the UN Commission on Sustainable Development’s Agenda

21 language that “non-governmental organizations play a vital

role in the shaping and implementation of participatory democ-

racy.”6 More pointedly, NGOs considered the lockout a Danish

violation of the Aarhus Convention,7 which provides for public

participation in MEA decision-making a s vital for accountab le

governance and effective environmental protection.8

NGOs could c laim a violation of the Aarhus Convention’s

Articles 6, 7, or 8, on public participation in environmental deci-

sion-making.9 The challenge for NGOs, however, is tha t only

Parties are bound b y these arti cles and can enforce them , and

NGOs are not Parties.10

While the Convention provides negotiation a nd arbitration

between Parties as enforcement mechanisms, add itional mea-

sures for compliance have been further outline d in subsequent

Convention Decisions made during Meetings of the Parties at

Lucca, Italy an d Almaty, Kazakhstan.11 Notably under these

Convention Decisions, members of the public including NGOs

may submit formal communications to the Compliance Commit-

tee and allege a v iolation, subject to some procedural require-

ments.12 Based on the L ucca and Almaty Decision s, NGOs

could petition for a compliance action against Denmark for the

administrative actions that led to the exclusi on of observers at

the conference cente r in Copenh agen. Ultimately, however,

compliance rests with the Parties when they decide whether to

take action at Meetings of the Parties, although they do take into

account the reports from t he Compliance Committee.13 Even

though N GOs would not be able to force Denma rk to comply

with the Convention, such an action could create publicity and

ongoing pressure on future hosts of th e United Nations Frame-

work Convention on Climate Change (“UNFCCC”).

However, invocation of participatory requirements of the

Aarhus Convention is also limited in geographic scope, as only

some European and Eurasian countries are Parties, and does not

include many of th e largest n ations and g reenhouse gas emit-

ters, for example , the United Stat es or China.14 Not ably, the

next Conf erence of the Parties (“COP”) of the UNFCCC is in

Mexico, also not a party to Aarhus, leaving open the possibility

of exclusion of NGOs from that meeting.15

The UNFCC C h as draft rules of proc edure that could

serve as the basis for greater public participation, but it has not

adopted them, even though it, in effect, operates under them.16

These draft ru les do include provisions o n public participation,

but a re not n early as inclusive and ambitious as the goa ls set

out in the Aarhus Convention.17 The draft rules, which allow

for observers to attend and participate without any voting privi-

leges,18 should be adopted by the UN FCCC as a f‌irst step to

ensuring NGO participation.

In order to be more comprehensive and consistent with the

Rio Declaration, Agend a 21, an d the Aa rhus Convention, the

UNFCCC should further create procedures providing the oppor-

tunity for meaningful public participatio n at all climate meet-

ings, regardless of location. At a minimum, the UNFCCC should

write and adopt new rules that specif‌ically address the logistics

of observer participation at every meeting. Ideally , aff‌irmative

rights to petit ion for public pa rticipation, which embrace the

principles of M EAs and create a progressive and democratic

process, will also be created.19 The universal problem of climate

change impacts every person on the globe and climate negotia-

tions must provide legal protectio n for pub lic participation to

ensure an inclusive and effective solution.

Endnotes: Legal Foundations for NGO Participation in

Climate Treaty Negotiations continued on page 69

* Winf‌ield J. Wilson is a J.D./M.P.P. candidate, May 2011, at American Univer-

sity Washington College of Law & School of Public Affairs.