1 Introduction

Since the 1980s, the concept of sustainability, or sustainable development,¹ has dominated global, supranational and national contexts. In 2015, in its 2030 Agenda for Sustainable Development, the United Nations General Assembly (UNGA) approved no less than 17 sustainable development goals (SDG s), ranging from the elimination of poverty (goal 1) to creating partnerships for sustainable development (goal 17).² The decision aimed to ‘foster the organisational operationalisation and integration of sustainability and, therefore, to address the current and forthcoming stakeholder needs and ensure a better and sustainable future for all, balancing the economic, social and environmental development’.³ In the current climate emergency, achieving sustainability and the SDG s, enabling the world to transition into a future in harmony with nature,⁴ seems more pressing than ever. If sustainability addresses our common future, the required transformation to achieve sustainability will not be realised without the proper engagement of all relevant members of society. In fact, as principle 10 of the Rio Declaration, and many subsequent instruments adopted since then⁵ have emphasised: ‘Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.’⁶ But how exactly can participation result in more sustainable future(s) for all? On the basis of which legal rules and processes?

Thoughts and legal conceptualisations of sustainability, or what is perceived as sustainability, such as rules tackling the protection and conservation of exhaustible natural resources, have been around possibly since the early antiquity.⁷ Many historical resource conservation or nature protection schemes around the globe – national or international – aimed to preserve exhaustible natural resources for future use.⁸ In Western Europe, the motivation of a society to agree on those schemes was often led by economic reasons, i.e. utilitarian. Preservation schemes aiming at the protection of nature for its own good have only been recorded from the 20th century onwards. Sometimes, preservation schemes included the recognition of local stakeholders, such as neighbours or indigenous populations, yet, often without truly including their views in the law- or decision-making processes.

These early manifestations of the connection between sustainability and participation experienced a powerful transformation with the international establishment of the principle of ‘sustainable development’ in 1987.⁹ Only then was ‘sustainable’, ‘sustained’, ‘sustainability’ or ‘sustainable development’ introduced as distinct legal and political notion, with a distinct meaning comprising three pillars: economic development, environmental protection and the protection of current and future generations.¹⁰ Numerous supranational and national legal instruments refer to the concept of sustainability or sustainable development today.¹¹ Several national and international judicial decisions have taken into account the criterion of sustainability or sustainable development in the assessment of varying claims.¹²

In many of these legal instruments, the participation of civil society in national and supranational decision-making is presented as one of the major means in achieving sustainability or sustainable development.¹³ The report ‘Our Common Future’, prepared in 1987 by the Norwegian Prime Minister Gro Harlem Brundtland for the United Nations Conference on Environment and Development, is central for this connection. It emphasised that sustainable development can best be achieved when political systems ensure effective participation in public decisions and a democratic co-determination at the international level.¹⁴ As the report stated, only participation of the public affected, as well as of further stakeholders, would ensure the recognition of the common interests that sustainability was to protect.¹⁵ Ultimately, the report suggested, public projects of high-level impact on the environment should be subjected to public approval and, possibly, referenda.¹⁶

In a similar vein, many national and international regulations referring to sustainability today include references to the participation of stakeholders or the public.¹⁷ In (national and international) environmental law, in particular, this turn towards participation marks the so-called ‘turn to human rights’.¹⁸ It focuses on the rights of individuals to information, participation and access to justice in environmental decision-making. These so-called procedural environmental rights¹⁹ have been recognised in two important regional conventions, the Aarhus Convention and the Escazú Agreement. Both have had a major influence on environmental decision-making processes within their regional scope of application. In Europe, it is fair to conclude that the Aarhus Convention has transformed national and European administrative decision-making processes, not only in the field of the environment. Participation has also gained particular relevance in the climate change context. We find allusions to participation in the United Nations Framework Convention on Climate Change.²⁰ The Paris Agreement regards participation as a central element in achieving the 1.5–2 degree temperature goal.²¹ In addition, the growing body of climate litigation can be regarded as supporting participation in the climate change context.²² Other fields of law, such as international finance, or international biodiversity, also refer to participation as a means of achieving sustainability, or sustainable development.

Finally, participation in sustainability contexts does not only refer to human participation. A growing body of legislation and litigation, in particular in South America, as well as in India, New Zealand and the Philippines, evidences that the non-human world must also be included in rules and regulations about sustainability.²³

However, contrary to their usage in other disciplines, such as the social and political sciences,²⁴ in law the relationship between sustainability or sustainable development and participation in law has remained sketchy. Which sustainability must be achieved by participation? And by which kinds of participation? Which procedures must be observed? Who must or should be considered to participate? The questions result, as the meaning of both ‘sustainability’ and ‘participation’ are commonly perceived to be unclear. A considerable body of scholars have highlighted that sustainable development, or sustainability does not amount to a legal principle. It merely describes an evolving international norm.²⁵ Moreover, the lack of clarity on the term sustainability or ‘sustainable development’ as a legal concept, has led legal scholars to question the practicality and usefulness of the concept in addressing current global ecological challenges and crises.²⁶ Legal accounts of participation and, in particular, its role as a means to achieve sustainability or sustainable development have remained equally opaque. Participation is sometimes discussed as an alternative²⁷ and on other occasions as a manifestation of sustainability or sustainable development.²⁸ Furthermore, the discussion is mostly focussed on environmental matters – disregarding both the fact that sustainability has also an economic or financial aspect and that societies from the global South have different approaches to both concepts due to different needs and historical contingencies.

2 Main Aim and Research Question of This Book

The main question addressed in this book is whether, and if so, how sustainability can be achieved through participation in the multi-level governance structures of international, supranational and national law. Though it may seem straight forward, the answer to this question is neither trivial nor obvious. An answer first requires a clarification of the concept of sustainability, in the relevant fields of law looked at in this book. Elements of the concept of sustainability exist as separate principles, such as the principle of sovereignty over natural resources,²⁹ sustainable use, resource management or the responsibility for future generations.³⁰ Sustainability may also find expression in specific obligations and prohibitions (such as to refrain from fishing during particular months of the year). Do they always express the same standard of sustainability within the same legal order and across legal orders? Second, and most importantly, authors need to clarify whether and how participation can serve as a means of achieving sustainability. How can sustainability be achieved through participation? More specifically, by which kinds of participation or by whom? How do the concepts of sustainability and participation interconnect at all? What specific participatory rights are essential in furthering the aim of sustainability? Does the term ‘sustainability through participation’ describe specific substantive or procedural rules, standards, principles and programmes? If so, how are those standards enforced?

This book addresses the foregoing questions both in environmental and in economic law, i.e. the two core fields of law featured in the Brundtland report.³¹ Spanning such diverse fields of law, this book further investigates whether there are common legal conceptions, which both concepts of sustainability and participation express, across legal subject areas and jurisdictional boundaries.

3 Aim, Approach and Methodology of the Book

Taking an exclusive legal perspective, the book primarily assesses the legal conceptualisations of participation, which have, have not, or perhaps ought to have been formulated to achieve sustainability in the multi-level-governance structures of international, supranational and national law. The book simultaneously looks at and compares the particular rights, obligations or other legal manifestations (principles, soft law, procedural obligations, etc.) commonly associated with or leading to sustainability through participation in the above-mentioned governance structures.

In doing so, the book seeks to clarify, whether and how sustainability may indeed be achieved through participation. In specifically addressing participation as a means of sustainability, the book provides a valuable addition to the existing literature on the legal ramifications of sustainability and participation.

The book follows an inductive, functional-comparative and multi-level approach. First and foremost, an inductive, bottom-up view on sustainability and participation allows authors to perceive the specific interconnections of sustainability and participation. In particular, this approach aids in understanding how individual norms or even judgments in various subject areas and jurisdictions seek to realise set objectives. A functional-comparative³² approach enables authors to examine the specific legal characteristics, rights, obligations and further legal conceptualisations of participation in sustainable development across various fields of law.

A multi-level perspective on sustainability and participation, is emphasised in the book for various reasons. First, sustainability or sustainable development can only be assessed by taking into account the multiple jurisdictional layers, in which the above stated objectives ultimately become relevant. Conceptualisations of sustainability appeared for the first time in national jurisdictions, namely, to ensure the conservation of exhaustible natural resources like wood, wild animals, minerals, or coal. Ultimately, they inspired the establishment and the spread of sustainable development at the international level. Until recently, standards for sustainability and participation have mostly been set at the international and European levels. Nevertheless, modern versions of sustainability and participation found in national constitutions and administrative law conceptualisations across the world, could impact on the further reform of established views on sustainability and participation at the international and regional levels. Finally, special attention needs to be drawn to the EU. This is because the EU is one of the most coherent and economically integrated economic regional organisations in the world and the standards developed by and within the EU contribute to a certain view on sustainability and participation. Such views are then reflected at the level of the member states.

The inductive, functional, multi-level analysis of sustainability and participation provided by this book shall, ultimately provide what we call the legal answer to sustainability through participation. It shall:

1. clarify why participation can or cannot function as a means to achieve sustainability or sustainable development, and in which areas of law;

2. identify potential legal obligations of the state, the authorities or of private actors possibly resulting from the pledge of sustainability through participation, and finally;

3. compare the different approaches and conceptualisations of participation in sustainability, across multiple levels of law and legal governance, and subject areas. To this end, the book encourages further theoretical reflection on participation and sustainability, and particularly the interconnections between them.

Against the foregoing backdrop, the proposed book enriches and makes a valuable contribution to the existing literature on sustainable development and participation. There is currently no publication, which tackles participation as a means to further sustainable development from a legal perspective, in the multi-level environment of international, European and national law.³³ Authors have not yet dwelled on the question posed by this book; whether and how sustainability is, can and should be achieved through participation. Additionally, the book addresses the interconnection between the two concepts of sustainability and participation in a variety of areas of economic and environmental law. The present book tackles novel and thus far neglected areas of law, where the combination of sustainability and participation appears truly problematic.³⁴ Finally, the book takes a legal analytical perspective (inductive and functional-comparative) to address the question of sustainability through participation.³⁵ It therefore hopes to give some definite answers on whether, sustainability and participation, and which of their various legal concretions either reinforce or conflict with one another.

4 Overview and Outline of the Contributions in the Book

The first part of the book introduces the overall theme of this work and its fundamental context. Birgit Peters draws some conclusions about the international historical dimension of sustainability and participation. Amongst others, she shows in further detail how the Brundtland report regarded participation as one of the key processes in achieving sustainable development.³⁶ After uncovering the key characteristics of sustainability and participation in that report, she turns to the international historical dimension of sustainability, showing that sustainability slowly developed from rules aiming at resource protection for future (human) use, to more eco-centred institutional arrangements concerned with nature, species and area protection. She concludes that the particular understanding of sustainability through participation established in the Brundtland Report has no international precedent.

The following chapter by Louis Kotzé and Paola Villavicencio-Calzadilla then refers to other-than-human³⁷ participation as a part of sustainability in the Anthropocene. The authors contextualise how sustainability must consider other than human conceptualisations in order to be true to the preservation of the environment for coming generations. They outline that participation of the non-human world in decisions concerning the environment is key for achieving sustainability. They discuss the participation of nature from the angle of representation and guardianship, drawing on a comparative approach, with examples from Latin America.

The second part of the book is concluded by the complimentary chapters of Eva Lohse and Daniele Brombal who illustrate national conceptualisations of sustainability and participation in Europe, Latin America, Africa and Asia, in particular, China. Eva Lohse tries a macro-comparison: sustainability is used in legal orders with different backgrounds with varying foci. Domestic law is directly applicable and therefore the gateway for inter- and supranational provisions and their effective implementation. Yet, the ‘green’ leg, i.e. environmental protection and responsibility for future generations, is central with economic, social or cultural elements added into the balancing process. Participatory instruments are frequently linked to the ecological leg, but sometimes also to indigenous rights. They seem to be most effective if attributed to local communities, municipalities or indigenous groups. Lohse highlights the potential of rights-based approaches found in several jurisdictions. Daniele Brombal complements this macro-comparison with a detailed description of public participation in China’s environmental impact assessment. He shows that public participation is seen as a means to support sustainable decision-making, but at the same time, political and social developments and enforcement gaps might hinder the realisation of its full potential. By this, he gives a vivid account on the possibilities and difficulties of public participation in an authoritarian regime that until recently was not too much concerned about the protection of the environment or sustainable development. Nevertheless, he also demonstrates that participation is used as a means of legitimising decisions. Moreover, environmental impact assessment as a corner stone of the green leg of sustainability can look back at more than 20 years of existence.

The third part of the book then tackles the European perspective on sustainability and participation. Since the introduction of environmental law as a policy field for the Union in 1972, the EU has passed extensive legislation in the field of the environment. In addition, the EU acceded to the Aarhus Convention, the leading international agreement establishing binding standards on participation in environmental decision-making, which lead to the fact that the directly applicable individual rights contained in that agreement are applicable at the level of primary union law (i.e. the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)). Moreover, since the Lisbon Treaty, sustainability is an essential crosscutting principle influencing this, and other policy areas of the EU.³⁸ EU environmental law is also the only area of European law where member states are allowed to adopt stricter standards at the national levels.³⁹

The contribution of Magnus Noll-Ehlers and Giacomo Gattarina provides an introductory overview over the role and importance of sustainability and participation in EU Law. The authors explain the complex web of international and supranational rules that have developed in this area. Additionally, they turn to important findings of the international treaty body and judiciary organs, like the Aarhus Compliance Committee (ACC) and the Court of Justice of the European Union (CJEU) and elaborate on the further clarification that those judicial organs have contributed, mostly on participation, at the level of EU law.

The concurring contribution by Cristina Fraenkel-Haeberle complements this overview by drawing attention to the national implementation of this framework, concentrating, amongst others, on the varying approaches that national jurisdictions have taken in addressing the complexities at the national level. She focuses on the three approaches known for the implementation of EU rules at the national level: minimal implementation, gold plating and spill over. She illustrates how these three approaches have played out and been used by member states in the area of European environmental law: In particular, the implementation of procedural environmental provisions of the Aarhus Convention has led to the broadening of transparency and participatory legislation at the level of the member states.⁴⁰

The following chapters in part three address sustainability and participation in – until today – neglected areas of law, such as in state aid (Julius Buckler), the law of public finance (Matthias Valta) and in EU competition law (Matthias Uffer).

Julius Buckler vividly illustrates how sustainability and participation are concepts alien to state aid law, which primarily concerns subsidies of member states to companies and enterprises. Nonetheless, the concepts are tightly interwoven within this field of European law. He shows this firstly, by highlighting that sustainability may be recognised as an objective justifying the granting of state aid, turning to renewable energy as an example. Secondly, he illustrates that participation plays an important role when considering the rights of third parties in individual State aid procedures. There is a certain potential for participatory procedures under the Aarhus regulation.⁴¹ It would, nonetheless, require that the relevant Commission decision was in breach of EU environmental rules.

Matthias Valta adds a comparative perspective on sustainability and (less) participation in relation to government debt. His chapter takes the reverse approach to most other authors: he asks the seemingly heretical question whether less participation in public finance leads to more sustainability. Exploring the approaches to limitations on debt in Germany and Portugal (within the EU framework) he reaches a first definition of sustainability as the capacity to incur and pay back debt on the capital market,⁴² and further rather critically reflects the missed opportunity to a greening of the economy and the connection to inter-generational justice, thereby introducing a further aspect of sustainability. He then draws the attention to various ways of participation – indirect on parliamentary level as well as direct in the form of referenda and municipal participatory budgets – in order to demonstrate that only in an ideal world more participation leads to more financial sustainability.

Matthias Uffer shows in his appraisal of EU competition law, how competition law can realise all three dimensions of sustainability, the environmental, economic and social. Uffer also illustrates that competition law has long strived for purity, leaving it ‘relatively unresponsive to expectations emanating from public interests’. Still, he argues, certain environmental effects should also be taken into account at the level of competition law, such as CO2 emissions or prohibitions concerning waste disposal or the trade in chemicals. He adds, participation can play a role in competition law, as it furthers the participation of market actors. In addition, competition law is usually adopted by national parliaments, and thus in a democratic and therefore participatory process. The main part of his chapter then muses on which rules of EC competition law are the most apt and open to interpretations furthering environmental sustainability. He identifies four paths through which this could be done: by enforcing art 101 and 102 TFEU, by declaring art. 101 TFEU inapplicable to conduct which serves sustainability objectives, by defining environmental benefits as ‘efficiencies’ under art 101(3) TFEU and fourthly, by discontinuing certain investigations. He concludes that participation was relevant in furthering the functioning of those solutions.

The fourth and final part of the book will then draw to the conceptualisations of sustainability and participation at the level of international law, and thus regard the modern home of sustainability. This part will feature an introductory chapter by Angela Schwerdtfeger, who turns to the human rights dimension of sustainability and participation. She illustrates that public participation is rooted in the human rights dimension of environmental protection and an element of realising the human right to a clean healthy and sustainable environment. At the level of rights, sustainable development was a symbiosis between the right to development and the right to an adequate environment. The function of participation, however, depended on the underlying context and legal instrument, by which it was guaranteed. Whereas the Aarhus Convention underlines the procedural character of participation, the newly adopted Escazú agreement promoted participation as a self-standing, individual right.

In the following chapter, Federica Cittadino and Emma Mittrotta discuss the distinct and particular role that sustainability has assumed in international biodiversity law. They examine the rules of the Convention on Biological Diversity (CBD), the Convention on Wetlands of International Importance (Ramsar Convention) and the Convention for the Protection of World and Natural Heritage. In their description of sustainability, they rely on an integrative approach (economic, environmental, social) modelled after the Brundtland report and also focus on issues of inter- and intragenerational justice. They address participation as a guiding principle of international law, which is included in several international treaties and agreements on environmental law. Cittadino and Mittrotta analyse whether the two terms (and similar notions like ‘wise use’ in the Ramsar Convention) are used consistently in the three conventions on biodiversity – highlighting that all conventions follow more or less a three-pronged approach of ‘sustainable development’ that includes the eradication of poverty and is not limited to the conservation of nature or the environment. The underscore that all conventions contain participatory elements, however mostly in the form of access to information and involvement in decision-making. Both the CBD and the Ramsar Convention lay their focus on indigenous and local communities – a fact that is also observed in other chapters. Participation is used as an important tool to reach conservation and sustainable management of biodiversity, therefore putting obligations and responsibility not only on state-actors but also on individuals and communities.

Omondi R. Owino considers the role and importance of sustainability and participation in the ever more important area of international climate change law. He draws on the concept of hybrid multilateralism to achieve climate sustainability, which he understands as the participation of non-state and sub-national actors as complementors to state party climate commitments. He draws on the example of international cooperative initiatives to flesh out participation and its causal effect for sustainability in climate governance. He highlights that participation in climate governance also suffers from congestion, over-saturation and asymmetries and thus needs further coordination and ordering to be effective. Hence, decision-making processes under the Paris Agreement still need further adaptation to counter some of these problems.

In a consecutive chapter, Violeta Radovich draws attention towards the not so apparent rules on sustainability and participation in the law of the high seas. Again, the main focus lies on participation of indigenous and local communities. She highlights the presumably added value of involvement of those non-state actors for conservation and sustainable use of the high seas in an ocean-centred system of governance in an international climate change regime, claiming a shift to eco-centrism. The chapter is thereby linked to other chapters,⁴³ which also describe a shift to more eco-centric approaches, earth law and a growing responsibility of indigenous and local communities. She discusses the draft BBNJ Treaty (UNCLOS binding legal instrument for the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction), which specifically includes rules on participation of indigenous and local communities, from the perspective of whether those rules fulfil general criteria for effective participation (like inclusiveness, influence on the final decision, and accountability of decision-makers). The important criteria for meaningful participation in environmental decision-making – and this is the focus of sustainable ocean governance – is that it goes beyond mere consultation and allows for co-decision-making. She regards them to be partially fulfilled in the draft BBNJ Treaty.

The following chapter by Michael Riegner explores the increasing importance of sustainability and participation in the law of the World Bank. He illustrates, amongst others, how sustainability and participation have shaped the self-conception and perception of the World Bank from the mid-1980s and served as conditionalities on recipient states. In addition, sustainability and participation have become standards, which may also be invoked by non-state actors against the World Bank. He however cautions that the established framework of sustainability and participation, which can be derived from the practices of the bank, contains its own deficits, in particular, as it is built on a functional and managerial logic which is unable to unleash the emancipatory potential of both concepts.

Finally, Paolo Turrini explores the growing importance of sustainability and participation in international investment law, and the consequences of the lack of substantive rules of participation in this area of international law. He points to the possibility that current investment law and policy might hamper sustainable development. He outlines that hitherto, sustainability and participation have been addressed as a multitude of differing rules concerning social standards, labour rights, health, environmental protection and a variety of participatory standards. However, those rules and standards remain generally unconnected such that the potential of sustainability and participation cannot be fully realised.

The book concludes with a chapter by Margherita Paola Poto. She highlights that sustainability and participation are very much rooted in the Western tradition of environmental law, and anthropocentric at their core. In order to become meaningful concepts to address the current environmental crises, they need to be rethought and recaptured as part of a multilevel and polycentric governance model, which includes indigenous epistemologies and kinship perspectives. This could counter-balance the current perception of sustainability and participation and contribute to a more holistic understanding of environmental law centered around the “concept of ecology and health of rights of the planet and its inhabitants, and of collective duties to respect both”⁴⁴.