ABS

Benefit-sharing and insights from deliberative democracy

Louisa Parks

A clear finding from research about benefit-sharing agreements, including research underway within the Benelex project, is that effective fair and equitable benefit-sharing must be understood as a process rather than an event. Previous blogposts have explored links between benefit-sharing and free, prior and informed consent (FPIC) and consultation procedures, not least in relation to gender equality. Given the important roles played by these consent and consultation processes in securing fair and equitable benefit-sharing, this blogpost will explore some ideas from the literature on deliberative democracy that could inform their design, and ensure they unfold in inclusive and consensus-oriented ways. A short introduction to deliberative democracy follows, after which reflections are made on how considerations raised in the literature on deliberative democracy might inform decision-making at the local level, including during consultation with external actors. Finally, the blog closes by suggesting how deliberative decision-making may unfold at the international level and the advantages this may bring.

1: Introduction to field of deliberative democracy.

The big idea of deliberative democracy is to change the way in which collective decisions are made in many governmental arenas. Rather than representing the aggregation of interests, with the majority view taking the upper hand and imposing a preference on minorities, deliberation is posited as a method by which consensus can be reached through informed debates among equals. If decisions are based on wide-ranging input and consensus is reached, the theory states, then the legitimacy of the decisions taken should also increase. The beginnings of deliberative democracy are often attributed to Jürgen Habermas’ work on the public sphere and the ‘ideal speech situation’ allowing ‘communicative action’. In an ideal speech situation, Habermas suggests, citizens can discuss with one another freely, unfettered by distortions created by unequal power relations. Unequal power relations may be created by social understandings of (for example) gender or ethnicity, or assumptions made on the basis of educational background, social class and other characteristics. In an ideal speech forum, those involved will eventually come to a decision that may not match the initial preference of any one person or group of people, but will rather reflect a consensus decision based on the exchange of opinion and information. Decisions taken in this manner should be more conducive to satisfying social justice concerns, and should be more widely accepted since they respond to points made by all participants and allow participants to understand others’ points of view. Importantly, even where the consensus does not reflect an individual’s ideal outcome, they will have come to accept the consensus decision through rational persuasion. In other words, deliberation gives a better chance of changing a participant’s mind.

This is of course an ideal scenario that does not reflect reality. Real-life experiments with deliberative democracy as well as further theoretical work have highlighted that achieving an equal, undistorted forum for deliberation is nigh on impossible. The presence of power in exchanges between citizens cannot be entirely extinguished given the deep set nature of some forms of power. Language, accent, education, appearance, gender – a number of sources can trigger assumptions about speakers, including their perceived right to speak, which may affect the weight given to their opinions. For example, in a deliberative forum discussing the potential effects of a nearby power station on local children’s health, participants may be constituted of local residents. The voice of a local resident with a degree in the healthcare field may be considered to have more weight than a local mother without a university degree. Ideally, deliberation must take place between individuals who hold no assumptions about one another for unbiased rational decisions to be taken. In reality, we all make assumptions about other individuals, even where those assumptions are based on little information, for example an accent, clothing or gender. Similar assumptions may also apply to participants’ judgements of any experts called on to present information to participants in a deliberative forum. The expert may not be perceived as trustworthy: for example, if a government official is requested to provide information to a deliberative forum then questions about the impartiality of the evidence presented may arise. Power, in other words, is also expressed through information, or the selective (or false) presentation of information. These arguments about power recall points raised about the role of environmental impact assessment processes where information is produced by interested companies.

Deliberative democracy and decision-making processes

Integrating deliberative democracy into decision-making procedures poses a host of challenges. Arguments against the use of deliberative democracy in the real world draw on the entrenched nature of barriers to the creation of power-free spaces as described above. In particular, so-called deliberative fora that must approve policies or laws within set deadlines are seen as attempts to avoid conflict and ‘rubber-stamp’ a decision rather than produce any new form of democratic input, and as incapable of representing the multiple differences within a group. The time needed for quality deliberation in this view is not suited to decisions that need to be made quickly. Others argue that acknowledging the presence of power and making concerted efforts to address power dynamics can at least make deliberative fora more sensitive and therefore generally more conducive to rational and reasoned debates. In this view, consensus is not the necessary outcome of a deliberative debate, which may in any case allow differences to be understood. Deliberation should not be tied to any particular decision, but be an ongoing method for understanding that may underpin better decisions where these become necessary.

Experiments with deliberative democracy in the real world are relatively widespread, including around contentious environmental questions. Participatory budgeting is one such example, where citizens are involved in deliberative debates set up by local authorities to decide on the fairest ways to spend available funds. Other examples of attempts to bring deliberation into local decision-making have involved environmental policy decisions. For example in Italy the locations of new waste incinerators have been decided using deliberative forums. Deliberation has also on occasion been drawn on by political parties for policy development (for example the UK Labour party).

In line with the arguments against deliberative democracy that underline entrenched power relations, the inefficiency of deliberation for pressing decisions and the impression of unity amongst a groups with different opinions that may be the outcome of a forced consensus, empirical studies on deliberation used in these more established types of decision-making processes underscores these problems.  While theorists of deliberative democracy have often claimed that citizens will change their minds – be transformed – through deliberation, empirical research has found this lacking. Talpin, for example, finds that participatory budgeting changes the outlooks and attitudes of participants less than expected by theorists, echoing the view of our assumptions about others (and about the world in general) being entrenched. In a power- and prejudice-free deliberation, we should be able to change our minds. On the British Labour party experiment the view of deliberation as lip service to participation is found in an empirical study, as the deliberative exercise was not clearly linked to subsequent policy decisions. The reality of establishing mechanisms for deliberative participation in long-standing types of decision-making thus bear out the shortcomings of the approach.

Where deliberation is used in more innovative ways, however, instead of in a context of established decision-making processes, the outlook according to empirical research is more positive, notably around experiences of deliberative fora in social movements. Deliberation in social movements grew from practices begun in movements in Latin America. In more recent years, movement deliberation has been understood as more than just a horizontal decision-making strategy, but as a way of practicing the model of democracy that social justice movements call for. The social forums developed by the global justice movement, first organised as the World Social Forum in Porto Alegre in 2001 to parallel the World Economic Forum held in Davos on an annual basis, are a case in point. Social forums were later taken up at local, national and regional levels across the world before declining towards the end of the first decade of the 21st century, and have been described as sites of deliberative democracy and debate. With the advent of the global financial crisis, deliberation in social movements was also practiced in the ‘Indignados’ and Occupy  movements that took root in Europe and North America in particular from 2011. Here, for example, a system of hand signals designed to address power relations and assist the flow of debate was developed. These experiments in deliberation were not aimed at any sort of traditional decision-making procedure. Rather, they were practiced as autonomous democratic spaces, allowing participants a taste of deliberative democracy in their everyday life. For this reason, these movements have been understood as failing to achieve any specific goals. The view of movements as spaces for prefigurative democracy instead points to a long-term experiment in deliberation fully cognizant of the existence and difficulties associated with entrenched power relations.

While injecting existing decision-making procedures with deliberative elements has thus proved difficult in reality, some deliberative experiments that are decoupled from decision-making as a compulsory outcome have been seen more positively. The challenge therefore lies in combining decision-making efficiency (not a prominent feature of deliberation in social movements, where this phenomenon has been labelled the ‘tyranny of structurelessness’) with conditions for a version of deliberation capable of beginning to address power (entailing a version of democracy as ‘an endless meeting’).

Deliberation and environmental governance at the local level

The theory of deliberative democracy, as well as insights from empirical studies and practical applications, thus provide some interesting points for consideration in procedural elements linked to benefit-sharing. Specifically, the need for inclusive and participatory approaches has been underlined as crucial to meaningful consultations, notably with reference to free, prior and informed consent (FPIC) and environmental impact assessment (EIA) processes. Similar needs have also been underlined for communities themselves when developing community protocols or other community-based management projects.

Like any other group, the communities that are the target recipients of fair and equitable benefit-sharing are characterized by various power asymmetries between members, and by a range of different opinions and preferences about the form that benefits should take. Community-based discussions to define benefits in light of the communities’ beliefs and interests are therefore seen as an important part of the process of benefit-sharing if it is to be fair and equitable. Community protocols are one way of recording the outcomes of such discussions, and are strengthened by their recognition under the Nagoya Protocol on access and benefit-sharing to the Convention on Biological Diversity. These protocols see communities of various descriptions work towards documenting a range of issues they consider important including customary law, understandings of the environment, and traditional knowledge. Discussions within communities may also be informed by ideas from the field of deliberative democracy. In particular, lessons from deliberation in social movements may be useful. As discussed briefly above, deliberation in social movements has been found to be of higher quality since it is not geared to a single decision, nor time limited. Since community protocols (or other forms of specifying a community’s interests and wishes) do not require any single, uniform decision to be taken, there is no need to create a single consensus. Rather, deliberation could allow the interests and wishes of different sections of a community to be recorded, and consensus over the different forms of benefits sought to be agreed.

With regards to the timing of community deliberation, the literature underlines the importance of decoupling deliberations from time-constrained decisions. This is a core problem for many communities, since discussions are unlikely to take place in the absence of a clearly perceived trigger. Until an external actor, for example a mining company or a research laboratory, takes an interest in some resource that a community may own or have special knowledge of, there is no stimulus to have the kinds of discussions that may bolster a truly fair and equitable benefit-sharing process.

When a community is faced with an external actor wishing to engage over some natural resource, the understandings of the community’s wishes and interests brought to the fore by intra-community deliberations may guarantee better quality negotiations. By describing shared ideas about a community’s core interests, communities may be empowered not only in terms of holding a clear description of wishes, but also because the fora for deliberation are established. These will allow continued deliberation to deal with new information and developments, and to communicate the necessary timings and methods to those they engage with.

Another important point to consider about intra-community deliberation is the need for such processes to be owned and driven by the community (however defined) itself. Where a model for deliberation is imposed (or perceived as imposed) from outside a community, for example by an NGO, that model may be rejected and in any case will be unlikely to address the group’s particularities. It may in many cases be difficult to reconcile the principles of deliberation with existing customary decision-making processes. This in turn means that those organisations that seek to foster, for example, community protocol processes must strike a delicate balance – facilitating rather than imposing, supporting rather than driving. For these organisations too, work on deliberative democracy may be of some use in informing of the pitfalls, as well as potential ways forward, in supporting communities.

In practical terms, once a community is presented with a wish or need to engage with an external actor, direct participation in deliberation is likely to be compromised. Negotiations with an external actor are likely to require the appointment of community representatives, injecting some element of representative democracy into the deliberative model. In larger communities, this may also be necessary before any external actor appears on the scene: whereas smaller communities may be able to take part in deliberations in line with the idea of direct democracy (where all members express themselves), larger communities may not be able to achieve this. Even in smaller communities, the time required for deliberation may be a luxury unavailable to all members. Combining elements of representative democracy and deliberative democracy is thus a likely necessity, yet the quality of deliberation will always compromised. Combining deliberation with a degree of efficiency to feed in to decision-making processes results in such trade-offs, reducing direct participation to some degree.

To innovate in combinations of representative, direct and deliberative democracy, an essential component is thus the external actor. To inject deliberation into processes involving external actors (for example EIA and FPIC), a commitment to the principles of deliberation by the external actor is required. Principally, the external actor must acknowledge that the balance of power lies with them, and commit to constructing a ‘level playing field’. Specifically, the external actor holds the balance of power in terms of resources of all kinds. They are likely to have access to more funds, and to have the means to interpret and even create the information necessary to inform consultation processes. It is thus likely that external actors must accept the presence of facilitators and independently gathered information. Again, while the legal and policy literature on these processes has made some reference to this, empirical work on deliberative experiments can provide a plethora of insights on the advantages and dangers of relying on third actors to administrate deliberation. Returning to the example of deliberation in movements, a great deal of work has analysed how these experiments have dealt with power imbalances between participants and make suggestions for improvements which could be heeded in these scenarios. Concretely, the establishment of a funding source to support deliberation within communities and between communities and external actors, would also be of use. How such a fund could be made genuinely independent presents another conundrum however.

Despite the fact that perfectly equal and inclusive deliberation is nigh on impossible, the lessons of research on deliberative democracy does provide suggestions that could markedly improve on benefit-sharing processes (including EIA and FPIC) as they have taken place to date. Where it is possible to combine elements of deliberative, direct and representative democracy into customary decision-making processes the prospect of benefits eventually secured being fair and equitable within a community increase. Even where this is not possible, commitment to addressing the power imbalances underlined in deliberative theory on the part of external actors could still improve processes, for example by allowing independent facilitation. The tantalizing prospect, where all actors are committed to genuine deliberation, is that even scenarios where community consent is withheld will be accepted and respected. Where consent is obtained, deliberative processes could also allow nuanced outcomes, taking into account the specific needs and wishes of different elements within communities. How this could be achieved is a matter for experts in international law. A starting point that could provide impetus would be research showing the quality of existing processes. In this vein, a practical source is the ‘discourse quality index’. The latter details a method for assigning a score to a discussion based on judgements of a number of different criteria (based on deliberative theory) which together give an indication of the quality of deliberation, including the ability of participants to take part freely in a debate, the ways in which speakers justify their claims, and respect for other participants. The results of such a study could galvanize attempts to improve existing processes.

Future possibilities: opening up spaces for deliberation at levels beyond the local?

The goals of consensus and understanding through deliberation among actors that are aware of power asymmetries are also interesting beyond the local level. What might decision-making based on deliberation look like at the international level, for example, where UN treaty bodies develop the governance approaches – such as benefit-sharing – that are to be applied in local realities?

If we consider a line of thought sometimes applied to the European Union, the presence of a range of NGOs and representatives of local communities and indigenous peoples at international fora such as the Convention on Biological Diversity (CBD) may already be said to increase deliberation. This is understood to occur where collective claims-making creates ‘mini publics’ amongst concerned citizens, who thus increase their deliberation over international decisions. Their deliberation is then in some fashion represented through NGO and community representatives at international fora, where those representatives make their points of view heard in different ways. In addition, it is hoped that the presence of these actors representing the ‘voice of the people’ will cause international fora to consider their democratic credentials, and as a result listen to and be influenced. The expertise and information held by NGO and community representatives also bolsters their position in this scenario. While reproducing some kind of representative democratic model is not possible for these bodies, the idea is that the presence of citizens’ groups may contribute to a more deliberative atmosphere. Of course, this depends very much on the body in question. While the CBD is considered an arena that is particularly inclusive of non-state actors  – and of local and indigenous groups specifically in its Ad Hoc Working Group on Article 8(j) – other arenas are considered less inclusive (though there is little literature that explicitly considers the CBD from a deliberative quality perspective). While states continue to dominate proceedings, the possibilities of moving decision-making logics away from State-controlled mandates and ‘red lines’ appear limited.

Increasing the roles of non-state actors is seen as one possible way of moving in this direction however. Slaughter focuses on one of the most closed international fora – the G20. In light of public contestation, he argues, the body can only regain legitimacy through accountability. Given the emergence of a global culture of public participation evidenced by the growth of non-state actors engaging in global governance, he considers these as functioning as a link between nationally-based citizens and international organisations of more informal fora like the G20. This essentially echoes the work on the European Union, but of course the ‘chains’ of accountability between individual and international organization become longer here.

This brings the focus back, once again, on to non-state actors. Whether seeking to support local communities, or to represent diffuse interests in global governance processes, these groups appear crucial to linking the local to the global. How far they can be expected to take on the burdens of forming deliberative publics, and how far this is desirable, is a case for debate. The legitimacy of non-state actors is widely debated – how can they really claim to represent a certain community, or even an intangible constituency (for example forests or oceans) when they are not subject to any model of democracy? The field of non-state actors is wide, and their interests and motives equally so. Their internal organisational forms may equally vary from the most hierarchical and exclusive to the most horizontal and inclusive. The representatives that attend international meetings may not vary, they may not be accountable to those they represent, their continued international careers may see them co-opted or moving away from mandates. Just as power relationships within communities are imperfect, so they are within non-state actors. Rotating representatives and ensuring the handover of expertise in internally democratic organisations is highlighted as necessary to address these imbalances in the literature on direct democracy. Yet this is difficult to reconcile with the need for personal trust relationships and perceived expertise highlighted in many guides on effective lobbying. Yet if combinations of these elements can be achieved, there may be some increase in the quality of deliberation in international processes.

Outlook

The scope for theoretical and empirical work on deliberative democracy to inform debates on how to build inclusive processes around benefit-sharing and consent is clear. This blog post has sketched an overview of deliberative democracy and pointed to some of the many difficulties around the implementation of deliberative principles at the intra-community, community-external actor and international levels. Though deliberative principles are likely to be compromised in building systems that allow timely decisions, their introduction may improve current processes linked to fair and equitable benefit-sharing. More inter-disciplinary conversations between scholars of international law and the political sciences will be needed to elaborate on these ideas. As benefit-sharing is a complex and fuzzy area in international law, inputs from a range of disciplines are needed to lend detail to its local applications – in particular given the power imbalances faced by local and indigenous communities when faced with global governance processes. The Benelex project includes inter-disciplinary work that aims to take a step towards such a holistic, interdisciplinary approach to the application of international law.

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