1.1 The Meaning of Sustainability in Terms of Sustainable Development

Sustainability is defined in this chapter through the legal content of the principle of sustainable development (SD).¹⁰ Over time this principle has shown its mutable nature in relation to its content, its addressees, and its function in the legal system.¹¹

Its historical evolution has led to the consolidation of three main dimensions in terms of defining SD, namely economic, environmental and social.¹² Balancing these three components remains at the heart of SD from its initial legal formulation in the Brundtland report¹³ and through its later consolidation by both the Rio and Johannesburg UN declarations.¹⁴ The Rio+20 conference reaffirmed the commitment of the international community to these three dimensions.¹⁵ Although only three out of the seventeen Sustainable Development Goals (SDGs) have clearly stated environmental goals (SDG s 13–15), almost all of the objectives include the integration of environmental aspects in their realisation.¹⁶

Hence, at the core of SD is the integration of economic, environmental and social dimensions.¹⁷ Integration is an autonomous principle prescribing a given conduct by states, that is both a duty to incorporate environmental considerations into any social and development plans or policies,¹⁸ and to realise the different SD components jointly.¹⁹ SD is articulated through additional specific principles, namely intergenerational equity, intra-generational equity and sustainable use.²⁰ Intergenerational equity encapsulates entirely the environmental dimension of SD, according to which natural capital must not be dissipated for the benefit of future generations.²¹ Intragenerational equity refers to the integration of social considerations in development including: equity in the distribution of development benefits within nations and between developed and developing countries; and the principle of common but differentiated responsibilities.²² The latter calls for a consideration of the different responsibilities of states for environmental degradation and thus taking into account these development differences when distributing the burden of obligations in environmental treaties.²³ The demand to preserve natural resources for the benefit of future generations while simultaneously meeting the social and developmental needs of the present generation is also closely linked to the principle of sustainable use.²⁴ Sustainable use, explicitly defined in the CBD, at a minimum involves the duty to consider the impact that the exploitation of natural resources has on their availability and benefit to present and future generations.²⁵

In the following sections, the consideration of sustainability in both the text and practice of the CBD, the Ramsar Convention and the WHC is assessed with reference to the four SD components as illustrated above. As we shall see, this division is illustrative of which aspects of SD prevail in each convention. In particular, we will assess the extent to which the environmental dimension is predominant in the cited biodiversity conventions. We will also reach some conclusions as to whether SD coincides with the abovementioned four components or whether new elements emerge.

1.2 The Meaning of Participation

Participation can be seen as a guiding principle of international environmental law.²⁶ Demands for public participation in environmental matters started to emerge in the 1970s in both domestic and international contexts.²⁷ Its most comprehensive formulation is provided by Principle 10 of the Rio Declaration,²⁸ which articulates the three components of public participation in environmental matters, namely access to information, participation in decision-making and access to administrative and judicial remedies. In addition, despite describing those components within a national context, Principle 10 highlights the importance of enabling the participation of all citizens concerned at any governance level,²⁹ including in international arenas.³⁰ Principle 10 has influenced the successive development of international environmental law treaties³¹ and prompted an innovative interpretation and development of existing regimes, for example, on the protection of wetlands of international importance and World Heritage sites analysed below.

Arguably, public participation has found its most accomplished normative development at regional level, in particular with the 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention) and, more recently, with the 2018 Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean.³² The Aarhus Convention distinguishes between the (general) public and the public concerned. The former includes all actors outside the governmental administration,³³ while the latter refers to a more restricted group of subjects that are “affected or likely to be affected by, or have an interest in, environmental decision-making”.³⁴ This distinction is relevant in the context of the treaties we analyse since some provisions and their practice foresee the involvement of specific actors – especially indigenous peoples – to both enhance the protection of biodiversity and achieve decisions in a fair and effective way.

In the context of the CBD, the Ramsar Convention and the WHC, participation has acquired two further meanings. The first refers to the direct participation of specific actors, usually indigenous peoples and local communities,³⁵ in the conservation, management and sustainable use of biodiversity resources and areas protected under these regimes. The second relates to the direct involvement of specific actors in the Conventions’ processes, as with the case of the Working Group on article 8 (j).³⁶ In both cases, the emphasis on indigenous peoples emerges from the practice of the treaties analysed in this chapter, especially the CBD. Not only is participation of other subjects less frequently cited, but in our opinion these have also less legal significance since these forms of participation are expressed in vaguer terms.

For these reasons, the consideration of how participation is regulated in the text and practice of the treaties analysed is assessed with reference to both the public and the public concerned, and by focusing on access to information and participation in decision-making as envisaged in the Aarhus Convention.³⁷

1.3 Outline of the Chapter

In section 2, we explore whether and in which ways the four subprinciples of SD are integrated in the CBD, the Ramsar Convention and the WHC. In section 3, we assess what are the main characteristics of participation in the same conventions. In both cases, conclusions are drawn as to whether the specific conceptions of sustainability and participation somehow differ from the general notions described in the introduction. Finally, in section 4, we illustrate the connections between sustainability and participation that emerge from our analysis.

2.1 Sustainable Use

Sustainable use is one of the three objectives of the CBD and is defined under its article 2 as the “use of components of biological diversity in a way and at a rate that does not lead to the longterm decline of biological diversity, thereby maintaining its potential to meet the needs and aspirations of present and future generations”.⁵⁵ In its definition, sustainable use therefore contains the three components of SD: the economic aspect is represented by use; the environmental points to the limits of the resource base in a longterm perspective; and the social facet is contained in the elements of inter- and intra-generational equity.⁵⁶ These elements emerge from both the text of article 2 and its contextual interpretation in light of other CBD provisions and COP decisions.⁵⁷

A reference to the natural limits of the resource base is, for instance, apparent in the formulation of the ecosystem approach embraced in the CBD and recurrently framed in many COP decisions. In this sense, “[e]cosystems must be managed within the limits of their functioning”⁵⁸ and sustainable management implies the maintenance of the resource base.⁵⁹ Moreover, sustainable use is entrenched with both conservation⁶⁰ and the longterm viability of consumptive uses.⁶¹ According to article 8(i), parties must ensure the “compatibility between present uses and the conservation of biological diversity and the sustainable use of its components”. Furthermore, as emerges from the Addis Ababa Principles and Guidelines for the Sustainable Use of Biodiversity,⁶² “[i]t is possible to use biodiversity components in a manner in which ecological processes, species and genetic variability remain above thresholds needed for longterm viability”.⁶³ In addition, in light of article 10(c) of the CBD, sustainable use includes the “customary use of biological resources” based on the traditional knowledge and cultural practices of indigenous peoples and local communities.⁶⁴

Although the content of the principle may appear complex, the CBD text identifies specific obligations for state parties to realise sustainable use.⁶⁵ These obligations include three subcategories: general duties to adopt positive measures, duties to protect traditional knowledge, and duties to ensure international cooperation. Concerning positive measures, in order to achieve sustainable use and conservation, states shall adopt or revise national strategies, plans and programmes, and incorporate sustainable use and conservation into other plans.⁶⁶ Positive duties also include monitoring obligations, not only in relation to biodiversity components and their status, but also with respect to major threats to biodiversity.⁶⁷ In this respect, the precautionary principle is mentioned in the Addis Ababa guidelines to complement the management practices of states.⁶⁸ The Addis Ababa guidelines also suggest a multilevel approach to sustainable use, meaning that all decision-making authorities should act accordingly to achieve this,⁶⁹ including the private sector.⁷⁰ The obligation to protect traditional knowledge is embodied in article 8(j), which furthermore connects customary sustainable use under article 10(c) to access and utilisation of traditional knowledge and the obligation to encourage benefit-sharing. Cooperation duties are generally stated under article 5 of the CBD and more concretely defined as “technical and scientific cooperation” under article 18(1).

In the Ramsar Convention, sustainable use finds its alter ego in the concept of wise use; the overlapping of these two concepts emerges from several key Ramsar Convention documents.⁷¹ The wise use of wetlands is the cornerstone of this Convention and applies to all the wetlands and water resources located in the territories of contracting parties, regardless of their inclusion in the List of Wetlands of International Importance (Ramsar List).⁷² Its definition was revised in 2005 to be aligned with the language of the CBD and the Millennium Ecosystem Assessment, and now reads: “wise use of wetlands is the maintenance of their ecological character, achieved through the implementation of ecosystem approaches, within the context of SD”.⁷³ This change suggests the will to capture not only the expression, but also the essence of both the concepts of SD and ecosystem approach as emerging from the CBD.

This stance is confirmed in the Fourth Ramsar Strategic Plan 2016–2024, according to which, wise use “has at its heart the conservation and sustainable use of wetlands and their resources, for the benefit of people and nature”.⁷⁴ Hence, wise use can be seen as a dynamic objective, whose realisation lays at the intersection of environmental – the benefit of nature – and economic and societal needs – the benefit of people. The environmental component is predominant in the wise use principle due to its tight connection to the obligation to maintain the ecological character⁷⁵ of (listed) wetlands and the proper functioning of their ecosystems.⁷⁶ In this regard, what matters is the “humaninduced adverse alteration of any ecosystem component, process, and/or ecosystem benefit/service”.⁷⁷

Furthermore, strategic goals 1 and 2 of the Fourth Strategic Plan revolve around maintaining ecological character by “addressing the drivers of wetland loss and degradation” and “effectively conserving and managing the Ramsar Site Network” respectively. The targets corresponding to strategic goal 1 address the potential threats to ecological character deriving from inappropriate water uses (target 2) under the responsibility of either the public or private sectors (targets 2 and 3), other sectorial policies implemented at any governance level (target 1), and those connected to the introduction and expansion of invasive alien species (target 4). Pursuing strategic goal 2 specifically requires the maintenance and restoration of the ecological character of Ramsar sites (target 5) as well as addressing any potential threats that could cause adverse change (target 7). “Wisely using all wetlands” is listed as strategic goal 3 and has six corresponding targets relating to the characterisation of wetlands,⁷⁸ their promotion,⁷⁹ and the adoption of effective management strategies with the involvement of all relevant stakeholders.⁸⁰ In particular, target 10 focuses on the role of indigenous peoples and local communities, valuing traditional knowledge, innovation and practices which are relevant for the wise and customary use of wetlands, and asks for their participation at all relevant levels.

In the case of the WHC, the main reference to sustainable use is contained in the Operational Guidelines. The latter recognise that “properties may support a variety of ongoing and proposed uses that are ecologically and culturally sustainable and which may enhance the quality of life and wellbeing of communities concerned”.⁸¹ The sustainable use of WHC properties is permitted as long as it does not affect their Outstanding Universal Value (OUV)⁸² and it has an equitable character.⁸³

Arguably, sustainable use contributes to creating the OUV of properties in the case of cultural landscapes. These result from the combined work of nature and man,⁸⁴ and are thus essential for OUV maintenance. According to the Operational Guidelines, the recognition of OUV at the inscription of the property in the WHC List⁸⁵ represents “the key reference for the future effective protection and management of the property”.⁸⁶ When a human component in terms of sustainable use is essential to reach the threshold of OUV, the characteristic use has to be sustainably maintained to ensure the persistence of the OUV. For instance, this is the case of the Lapponian area⁸⁷ in Sweden and the winegrowing landscape for Prosecco production area in Italy,⁸⁸ included in the WHC List based on criteria (v).⁸⁹ Sustainable use is also relevant in the case of properties nominated under the natural criterion (vii) to (x). Such use does not affect the “integrity” of these properties since “no area is totally pristine [and all] to some extent involve contact with people”,⁹⁰ but can rather contribute to the uniqueness of natural sites and to their OUV.

2.2 Intergenerational Equity

Intergenerational equity is not fully articulated in the CBD, neither as a principle nor as a set of state parties’ obligations. Rather, the reference either to the needs of future generations or to the longterm consequences of policies is functional to the definition of other subcomponents of SD, such as sustainable use, as shown above,⁹¹ and integration.⁹²

The Ramsar Convention does not refer to intergenerational equity, nor has this principle been addressed as such at COP meetings. An indirect reference was, however, to be found in the 1987 definition of wise use⁹³ through the concept of “sustainable utilisation”.⁹⁴ Nevertheless, this Convention has the potential to contribute to intergenerational equity given its aspiration “to stem the progressive encroachment on and loss of wetlands now and in the future”,⁹⁵ its indefinite validity,⁹⁶ and through the principle of wise (sustainable) use.

Instead, intergenerational equity is at the core of the WHC, being both an objective of this Convention and among the main obligations of contracting parties that have “the duty of ensuring the identification, protection, presentation and transmission to future generations of the cultural and natural heritage” of OUV situated in their territory.⁹⁷ The concept of OUV itself explicitly connects to both intra- and inter-generational equity.⁹⁸ In this context, intergenerational equity can be seen as a principle that guides the actions of state parties and binds them to ensure the permanent and effective protection of nominated properties.⁹⁹

2.3 Intragenerational Equity

As highlighted by Barral, the CBD displays at least three aspects of intra-generational equity: 1) obligations that are subject to national circumstances (“contextual norms”); 2) provisions on capacity building, technology transfer, and financial transfer; and 3) provisions on benefit-sharing.¹⁰⁰ We also explore a fourth aspect that is the recognition of the role of non-state actors, namely indigenous peoples, and local communities, and their knowledge systems.¹⁰¹

First, national circumstances are widely referred to both in the text of the CBD, through the formula “as far as possible and as appropriate” that creates flexibility in the implementation of many obligations,¹⁰² and in CBD COP decisions. The reasons underpinning this differentiation and flexibility lay in the distinction between parties in developed and developing countries.¹⁰³ COP decisions also refer to the need to reduce poverty as well as to the specific development and capacity needs of developing countries.¹⁰⁴

These differentiated needs also underpin article 20 of the CBD, which is the clearest manifestation of the principle of common but differentiated responsibilities therein. This provision provides additional justifications for the special treatment reserved for developing country parties by acknowledging both their dependence on biological resources and their specific environmental situation.¹⁰⁵ Article 20(2) foresees, this being the second aspect of intra-generational equity, the transfer of financial resources from developed countries to developing ones and, on a voluntary basis, to parties with economies in transition in order to enable them implement the CBD. In line with this obligation, under article 20(4) the compliance of developing countries with CBD provisions is conditional upon the effective implementation of financial transfers under the abovementioned article 20(2).¹⁰⁶ Although some authors maintain that this provision subordinates conservation and sustainable use to economic and social development,¹⁰⁷ in our view article 20(4) and, more generally, the financial provisions of the CBD are an attempt to integrate (intra-generational) equity into the implementation of an environmental treaty. To operationalise financial transfers to developing countries, article 21 foresees the creation of a CBD-based multilateral financial mechanism managed by the COP. This mechanism is the Global Environmental Facility (GEF), created in 1992 later becoming the main financial instrument for both the CBD and the United Nations Framework Convention on Climate Change (UNFCCC).¹⁰⁸

The CBD does not limit itself to creating obligations on financial transfers, but also defines, through COP decisions, the main purposes for which developing countries should receive funds both from the GEF and from other donors.¹⁰⁹ Conservation, the implementation of the CBD Programme of Work on Protected Areas (PoWPA) and other conservation strategies, as well as the identification of Indigenous and Community Protected Areas (ICCA s) constitute admissible purposes.¹¹⁰ Another legitimate purpose is the improvement of participation through dedicated funds, in particular of indigenous peoples and local communities, in the implementation of the CBD.¹¹¹ Most recently, funds should target indigenous peoples and local communities directly, in order for them to map ICCA s, ensure conservation, and promote customary sustainable use.¹¹²

Funds should also be directed into enhancing the capacity of developing countries to implement the CBD.¹¹³ Capacity-building represents an autonomous expression of intragenerational equity in the context of the CBD, included in both article 12, which contains research and training obligations for realising conservation and sustainable use with particular regard to developing countries’ needs, and COP decisions.¹¹⁴ Moreover, capacity-building measures need to be directed towards nongovernmental actors, especially indigenous peoples and local communities. In particular, the latter subjects need, first, to formulate their own plans in order to realise conservation and sustainable use and, second, to be prepared to participate in decision-making at all government levels.¹¹⁵

Another manifestation of intragenerational equity within the CBD are in principle the obligations on technology transfer. These require the adoption of both preferential terms for the access to, and transfer of, biotechnologies to developing countries and national measures to ensure that technologies are transferred to those parties, especially developing countries, which provide genetic resources.¹¹⁶ These provisions in practice, however, are considered too ambiguous and not specific enough to produce concrete results.¹¹⁷

The third aspect of intragenerational equity identified by Barral is that of benefitsharing as an expression of the redistributive aspect of equity. Benefit-sharing has both an interstate nature, since it needs to be provided under article 15(7) of the CBD to those countries that allow for the utilisation of their genetic resources, and an intrastate component expressed in article 8(j).¹¹⁸ Notwithstanding the ambiguities of article 8(j),¹¹⁹ this provision obliges parties to encourage the fair and equitable sharing of benefits which arise from the utilisation of traditional knowledge and practices of indigenous peoples and local communities.¹²⁰ Benefitsharing with indigenous peoples and local communities is foreseen not only in the context of the utilisation of traditional knowledge,¹²¹ but also concerning the effects of the creation of protected areas on the territories of indigenous peoples and local communities.¹²²

Finally, the fourth aspect of intragenerational equity is that of recognition, which in the CBD is expressed as both equity in the consideration of the value of traditional knowledge with respect to Western knowledge and equity deriving from the recognition of traditional land tenure of indigenous peoples and local communities.¹²³ The emphasis on the protection of traditional knowledge represents a link with sustainable use since, as emphasised in section 2.1, the retention of traditional knowledge is instrumental for the conservation and sustainable use of biodiversity.¹²⁴

In the Ramsar regime the consideration of national circumstances is included in both the Convention text¹²⁵ and COP resolutions and allows parties to implement Ramsar Convention provisions flexibly.

As for the financial aspect, article 6(6) foresees a scale of budget contributions decided on the basis of “the need for an equitable sharing among the Parties and the situation in developing countries”.¹²⁶ Moreover, parties that have the capacity to provide additional voluntary payments to the budget are requested to do so,¹²⁷ by contributing to the Ramsar Small Grant Fund for Wetland Conservation and Wise Use (SGF)¹²⁸ as well as to other grant programmes¹²⁹ aimed at strengthening wetland management capacities and supporting the implementation of the Convention in developing countries, including through capacity building, training and education. The specific activities eligible for funding are identified in selected COP decisions¹³⁰ and, more recently, through the fundraising priorities listed in the Resource Mobilization Work Plan.¹³¹ Non-party states and other external donors are also invited to contribute to wetland conservation and wise use of wetlands, not only by providing funds,¹³² but also by integrating conservation and wise management consideration in any funded activity in developing countries that can have an impact on wetlands.¹³³

Although the Ramsar Convention text specifically refers to professionals in its article 4(5), training and capacity building aim to address a wider audience at regional and local levels.¹³⁴ Under the Ramsar Convention, the importance of training and capacity building for realisation of intra-generational equity is confirmed by the creation of dedicated mechanisms that promote international cooperation and facilitate the implementation of this treaty.¹³⁵ Cooperation is one of the three pillars¹³⁶ of this convention and is key to its implementation, especially in the case of shared wetlands or water systems.¹³⁷ Intragenerational equity also unfolds through cooperation, when it promotes expertise and information-sharing on wetland management (e.g. knowledge sharing, training, site twinning or networking)¹³⁸ as well as international assistance (e.g. technical and financial) to support wetland conservation and wise use in developing countries.¹³⁹

Promoted by the CBD, the recognition aspect has gained prominence over time and laid the foundation for a more effective participation of local communities and indigenous peoples in wetland conservation and management. The Ramsar COP acknowledges that indigenous peoples and local communities have “longstanding rights, ancestral values, and traditional knowledge and institutions associated with their use of wetlands”¹⁴⁰ and promotes the conservation, integration and exchange of traditional knowledge.¹⁴¹

In the WHC, intragenerational equity is articulated both as an objective¹⁴² – together with intergenerational equity – and as a set of state parties’ obligations that unfold primarily through international cooperation and assistance in the protection¹⁴³ of natural and/or cultural properties.¹⁴⁴ The preamble highlights that often the protection of heritage at a national level is incomplete due to the lack of economic, scientific, and technological resources of the country hosting the property. To overcome these difficulties and in order to preserve irreplaceable heritage, the WHC aims to put in place “an effective system of collective protection of the cultural and natural heritage”, where the international community as a whole can participate in the protection efforts and grant “collective assistance” to complement the action of the state hosting the heritage.¹⁴⁵ Arguably, cooperation and international assistance not only ensure intragenerational equity by supporting the protection efforts of states lacking sufficient means but are essential elements of the WHC.

Indeed, article 4 requires each state party to do all it can to ensure the protection of its properties, “to the utmost of its own resources and … with any international assistance and cooperation, in particular, financial, artistic, scientific and technical”. As corresponding obligations, all the other parties shall, while respecting the sovereignty of the state where the heritage is situated, recognise their responsibility to cooperate in the protection of such heritage¹⁴⁶ and commit to offering assistance upon request of the host state.¹⁴⁷ This is a big difference compared to the CBD and the Ramsar Convention, where cooperation is a default obligation.

International assistance can be requested “to secure the protection, conservation, presentation or rehabilitation” of properties,¹⁴⁸ including for properties listed as “in danger”,¹⁴⁹ for the identification of properties and preliminary investigation¹⁵⁰ as well as for the preparation and update of the Tentative List.¹⁵¹ Assistance granted under the World Heritage Fund¹⁵² can take the form of knowledge and technological transfer¹⁵³ or training of staff and specialists at all levels for the performance of activities useful at the implementation of this Convention.¹⁵⁴ A further reference to intra-generational equity emerges from article 25 that, among the conditions and arrangements for international assistance, requires a substantial contribution of the state benefitting from international assistance, “unless its resources do not permit this”.¹⁵⁵

Finally, similar to the CBD and the Ramsar Convention, article 5 grants state parties room for manoeuver when adopting measures for the implementation of the WHC in line with their national circumstances.¹⁵⁶ This provision lays the basis for inclusive social development, based on a recognition of cultural diversity, inclusivity and equity of all stakeholders.¹⁵⁷ This inclusive dimension is not fully implemented into WHC processes, but progress has been made in this direction.¹⁵⁸

2.4 Integration

Already in its Preamble, the CBD recognises different values of biodiversity, including ecological, social, economic, and cultural factors.¹⁵⁹ As shown in the previous subsections, the CBD embraces the three components of SD and integration is inherent in how these components play out in the architecture of this convention.

Integration also fulfils a more operative function, which aims to guarantee the mainstreaming of biodiversity in national laws and plans that may somehow affect the attainment of CBD objectives. In this sense, under article 6 of the CBD, parties must integrate “the conservation and sustainable use of biological diversity into relevant sectoral and cross-sectoral plans, programmes, and policies”¹⁶⁰ and, under article 10(a) integration must also be realised in “national decision-making”.¹⁶¹

In most cases, mainstreaming implies the integration of biodiversity protection into relevant economic plans and policy measures, as well as through marketbased instruments.¹⁶² This need is expressed in the text of the CBD through its article 11, which establishes the obligation to adopt “economically and socially sound measures” providing incentives for conservation and sustainable use. In addition, COP decisions indicate both specific sectors in which integration must be implemented and a pool of actors, beyond states, that must realise mainstreaming. As for the first aspect, COP decisions mention poverty eradication, monetary and budgetary policies, financial strategies, development cooperation, international trade, agriculture, fisheries, mining, energy, tourism, transportation, and all those policies that provide negative economic incentives to conservation and sustainable use.¹⁶³ Concerning the actors that must realise integration, although CBD parties are the primary addressees of CBD COP decisions, their recommendations are also directed towards international financial institutions, such as the World Bank and the International Monetary Fund, international development agencies, such as the United Nations Development Programme, as well as other relevant stakeholders involved in biodiversity and development processes.¹⁶⁴

In addition, integration not only implies the mainstreaming of biodiversity in decision-making but also includes the consideration of other aspects in the context of biodiversity protection. According to article 8(i) of the CBD, parties must ensure the “compatibility between present uses and the conservation of biological diversity and the sustainable use of its components”, thus stressing the importance of conservation and sustainable use. However, COP decisions mention different issues that need to be integrated in biodiversity conservation plans and policy instruments, including climate change,¹⁶⁵ gender issues,¹⁶⁶ the rights of indigenous peoples and their traditional knowledge,¹⁶⁷ access and benefit-sharing,¹⁶⁸ and programmes on protected areas.¹⁶⁹

CBD COP decisions also suggest ways in which to realise integration, in primis through the ecosystem approach.¹⁷⁰ This approach consists of two main tenets: first, that conservation is also the product of human presence and the consideration of human needs in the management of nature;¹⁷¹ and second, that ecosystems are dynamic functional units where different species and habitats coexist and influence each other.¹⁷² Following these premises, the management of the different natural components, such as land, water and living resources, must be integrated, taking into account the interaction among species, the balance between conservation and sustainable use, and the contribution of specific groups, including indigenous peoples and local communities.¹⁷³ This vision in turn must be integrated into crosssectoral legislation and planning at all levels of decision-making in order to realise SD.¹⁷⁴ The precautionary principle is also sparely mentioned as a way to ensure integration in the context of scientific uncertainty.¹⁷⁵

Finally, a concrete instrument for realising integration is the introduction of impact assessments. Article 14(a) of the CBD requires the establishment of environmental impact assessment procedures for projects that “are likely to have significant adverse effects on biological diversity”. This includes, for instance, “any plan or project with the potential to have effects on protected areas”.¹⁷⁶ Moreover, the COP has adopted specific guidelines for impact assessments to be conducted when developments are planned to take place on, or are likely to impact, sacred sites on land and water traditionally occupied or used by indigenous and local communities.¹⁷⁷ Specific recommendations on the conduct of impact assessment are also made in the context of marine conservation areas.¹⁷⁸

Integration also plays a key role in the Ramsar regime. In the context of article 3(1), it acquires an operative dimension by requiring the inclusion of wetland conservation and wise use considerations in national planning in all the sectors that might have an impact on wetlands.¹⁷⁹ Indeed, the wise use of all wetlands at any relevant governance level (from the basin to the transboundary levels) is favoured by “mainstreaming recognition of ecosystem functions, services and benefits into a wide range of sectors and with a broad array of actors”,¹⁸⁰ including development agencies and multilateral development banks.¹⁸¹ Furthermore, integration can be firmly pursued through “integrated resource management at the appropriate scale”¹⁸² and by incorporating “the traditional knowledge, innovation and practices of indigenous peoples and local communities relevant to the wise use of wetlands and their customary use … in the implementation of the Convention”.¹⁸³

Arguably, integration emerges also from article 4(2) through the obligation to compensate – as far as possible – “for any loss of wetland resources” in the attempt to find a balance between wetland conservation and “urgent national interest” leading to the deletion or restriction of listed sites. Along the same lines, efforts to effectively address the drivers of wetland loss and degradation should ponder wetland monetary and non-monetary values into planning and decision-making to enable an assessment of the environmental functions and benefits wetlands provide to society.¹⁸⁴

The Ramsar COP has extensively highlighted “the vital contribution of wetlands to human wellbeing, livelihoods and human health, as well as to biodiversity”.¹⁸⁵ The Convention text recognises “the interdependence of Man and his environment” and acknowledges the “great economic, cultural, scientific, and recreational value” of wetlands.¹⁸⁶ Based on that, integration finds application in linking the conservation and wise use of wetlands to poverty eradication¹⁸⁷ – in the framework of the Millennium Development Goals¹⁸⁸ – and in the contribution that the fourth Ramsar Strategic Plan provides to the achievement of the SDG s.¹⁸⁹

Integration acquires a transnational character in article 5, which promotes interstate cooperation for the implementation of the Ramsar Convention, especially through the coordination of wetlandrelated policies and regulations. Integration is also realised within other multilateral environmental agreements, like the CBD and the Convention on Migratory Species, through the design of joint working plans that identify issues and areas of activities of common interest and facilitate collaboration to enhance the implementation of the relevant conventions.¹⁹⁰

The protection of world heritage has the potential to integrate the environmental, social and economic components of SD and recent evolution of the regime has moved in this direction.¹⁹¹ Indeed, the Operational Guidelines encourage state parties to mainstream, inter alia, SD principles, the inclusion of indigenous peoples and human rights international standards into their programmes and policies implementing the WHC.¹⁹² Furthermore, the Guidelines recall the responsibility of state parties to “contribute to and comply with sustainable development objectives, including gender equity, in the World Heritage processes and in their heritage conservation and management systems”.¹⁹³ In doing so, they stress the importance of intervening at different levels: both in the governance of the regime and on the ground – at the national and local levels – where it is implemented.¹⁹⁴

A more operational perspective of integration is pursued by article 5(a), which requires states to mainstream heritage protection into “comprehensive planning programmes”. In the WHC, integration can also be read in terms of coordination with other relevant biodiversity conventions, such as the CBD and Ramsar Convention.¹⁹⁵

2.5 Preliminary Conclusion on Sustainability

The analysis above demonstrates that all components of SD can be identified with different degrees in the three biodiversity conventions. For instance, in the Ramsar Convention the environmental and social components of sustainability appear predominant in comparison to the economic component with an emphasis on the wise use and the maintenance of the ecological status of wetlands and their contribution to human wellbeing and poverty eradication. The connection between SD and poverty alleviation is stressed also in the CBD, in line with recent evolutions in the definition of SD at international UN summits. The practice of the three conventions evidences the existence of additional elements in the definitions of the four subprinciples of sustainability that are briefly illustrated below.

One peculiar aspect in the CBD and the Ramsar Convention, which is absent in the general narrative of sustainable use, is the emphasis on the role of preserving the traditional knowledge of indigenous peoples and local communities to realise sustainable and wise use.

In contrast with the CBD and the Ramsar Convention, in the WHC, the inter- and intra-generational components of SD emerge distinctively from the convention text; the former through the objective of the convention, and the latter through the obligations to support other states in the protection of properties situated on their territories through international cooperation and assistance.

Intragenerational equity in the CBD cannot be reduced to the principle of common but differentiated responsibilities and to the transfer of financial resources and technologies. Instead, it also includes the recognition of the special needs and roles of indigenous peoples and local communities. Furthermore, the practice of the CBD indicates that this principle applies both between state parties and in the internal relations of parties with indigenous peoples and local communities.

Finally, integration is mainly displayed through mainstreaming conservation as articulated in the three conventions in other relevant policies and programmes and through the actions of a broad array of actors. In the CBD, integration appears to have some teeth as it foresees specific implementing instruments, including the obligation to conduct impact assessments.

Based on the above, we can conclude that sustainability in these conventions is the product of the interaction of its four main subprinciples. In this sense, even in the environmental treaties analysed in this chapter, the main aim of sustainability is not exclusively to ensure environmental protection, but to combine environmental objectives with economic and social considerations.

3.1 Participation in the Global Governance of Biological Diversity

Article 23(5) CBD allows for the participation of organised groups upon request to the Secretariat as observers in CBD COP meetings, which are the main mechanism to promote the correct interpretation and evolution of the CBD regime.²⁰⁵ Observers cannot cast a vote but may participate and intervene in the meetings of the COP, thus having an influence on both the issues discussed and the decisions taken. Although the criteria for obtaining observer status are formulated very broadly in principle in the text of the CBD, its COP decisions point decisively to the involvement of indigenous peoples and local communities,²⁰⁶ not only as observers but also as members of national delegations.²⁰⁷

To confirm this trend, the CBD COP has created two working groups, in which indigenous peoples’ representatives have played a strong role that is testified by the evolution of the regimes on traditional knowledge in both the CBD and the Nagoya Protocol.²⁰⁸ These groups are the Working Group on Article 8(j)²⁰⁹ and the Ad-Hoc Openended Working Group to elaborate the Nagoya Protocol.²¹⁰ Since their creation, the participation of indigenous peoples and local communities in these groups has been systematically encouraged by the CBD COP.²¹¹ The role of these actors has been both to provide information on access and benefitsharing issues²¹² and to specifically influence the outputs of these working groups, by proposing amendments and concrete formulations of the final texts to be adopted by state parties. To this end, these groups have operated either contextually or before any sessions of the COP.²¹³ Moreover, the presence of indigenous peoples and local communities both in the COP and in the working groups has been facilitated by states through capacitybuilding and training, dedicated funding, and the provision of information with appropriate means of communication and use of local languages.²¹⁴

In the Ramsar Convention, article 7(1) requires state parties to include among their representatives to the COP s “experts on wetlands or waterfowl by reason of knowledge and experience gained in scientific, administrative or other appropriate capacities”, and thus opens up to an inclusive constituency, including local communities and indigenous peoples.²¹⁵ Furthermore, the Rules of Procedure of the Ramsar COP²¹⁶ enable the participation, upon request to the Secretariat, of “any body or agency, national or international, whether governmental or non-governmental, qualified in fields relating to the conservation and sustainable use of wetlands [as observers…] unless at least one third of contracting parties present at the meeting objects”.²¹⁷ Although there is no Working Group enabling the participation of specific actors, in particular indigenous peoples, the efforts of the COP and the Convention Secretariat in acknowledging their key role in conserving and managing wetlands and ensuring their participation de facto has had an impact on the evolution of the Ramsar regime since COP 6 (1996).²¹⁸ Indeed, the Ramsar Bureau can gather useful input for the development of this regime on aspects that are particularly relevant to these actors from local communities and indigenous peoples.²¹⁹ Moreover, local stakeholders do play a role in the implementation of this Convention in terms of “selection, designation, and [especially] management of Ramsar sites”.²²⁰

Inputs from experts or informed actors are deemed important also for the development and implementation of the WHC. Article 8(3) permits representatives of selected intergovernmental or non-governmental organisations promoting the protection, conservation, and restoration of natural and cultural sites,²²¹ as well as others upon state request, to attend “in an advisory capacity” the meetings of the WHC Committee. In addition, article 10(2) enables the WHC Committee to “invite public or private organisations or individuals to participate in its meetings for consultation on particular problems”.

The involvement of indigenous peoples and local communities has been more challenging. The attempt to establish a World Heritage Indigenous Peoples Council of Experts²²² was dismissed by the World Heritage Committee in 2001.²²³ In 2007, the adoption of “Communities” as the fifth strategic objective of the Convention²²⁴ renewed the will to recognise the role of local communities – and indigenous peoples in particular – in the framework of this regime. The WHC Committee amended the relevant paragraphs (40 and 123) of the Operational Guidelines²²⁵ in line with the recommendations formulated in the framework of the 2012 International Expert Workshop on the World Heritage and Indigenous Peoples.²²⁶ Participants to this workshop included representatives of indigenous organisations and communities;²²⁷ arguably, through this venue, they were able to influence the evolution of the WHC regime.

Furthermore, the establishment of the International Indigenous Peoples’ Forum on World Heritage (IIPFWH)²²⁸ in 2017 has systematised the possibility of indigenous peoples’ representatives engaging with the WHC Committee during its meetings by designating delegates to participate in working groups and other processes. The IIPFWH has been shaped according to the examples of similar bodies operating in the context of the CBD and the UNFCCC.²²⁹ This Forum works as a platform that promotes the full respect of indigenous rights in the context of the WHC and its processes. To this end, it engages with the WHC Committee, the WHC Centre, Advisory Bodies and state parties as a “consultative and strategizing body”. Furthermore, it provides support and advice to indigenous peoples regarding WHC processes.²³⁰ Indeed, participation of indigenous peoples – and other relevant stakeholders and rights-holders – in the context of the WHC unfolds through their involvement in specific processes; namely the identification of properties, including through the preparation of national Tentative Lists,²³¹ nomination and designation procedures.²³² Moreover, when evaluating the OUV of proposed natural properties, IUCN “may receive comments from local non-governmental organisations (NGOs), communities, indigenous peoples and other interested parties in the nomination”.²³³ Arguably, the establishment of the IIPFWH will certainly strengthen their role at both global and national levels in the context of the WHC.

3.2 Participation in the Management and Conservation of Biological Diversity at the National Level

Participation in the implementation of the CBD confirms that the subjects involved in participatory processes are a heterogeneous pool of actors that can be framed as public concerned rather than the general public as such. As anticipated, indigenous peoples and local communities²³⁴ are the stakeholders that are both more consistently and more often indicated as the beneficiaries of participatory rights in the context of the CBD compared to other actors or groups. Additional subjects, however, are included in the group of possible beneficiaries, including “all interested parties”²³⁵ and stakeholders,²³⁶ “affected parties” and “endusers”,²³⁷ “women”²³⁸ and “indigenous women”,²³⁹ “youth” and “indigenous youth”,²⁴⁰ the “private sector” and NGO s or “civil society”,²⁴¹ “resource users”,²⁴² and governmental actors such as “cities and local authorities” although in a less consistent way and with less clarity as to the prescriptive content of participation than that seen with indigenous peoples and local communities.²⁴³

The rationale for participation emerging from COP decisions is that the involvement of the actors listed above in decision-making, especially of indigenous peoples and local communities, may be instrumental for the achievement of the three CBD objectives.²⁴⁴ Furthermore, indigenous peoples and local communities are considered as rightholders and interest bearers²⁴⁵ and thus participation is implicitly recognised as a way to protect indigenous peoples’ rights in the context of the CBD. Participation is also marginally seen as a way to reinforce local accountability²⁴⁶ and contribute to poverty reduction.²⁴⁷

The forms in which participation is to be ensured vary greatly, ranging from the formula of “involvement and approval” of indigenous peoples and local communities under article 8 (j) of the CBD to “full and effective participation”²⁴⁸ and “prior and informed consent” in CBD COP decisions. While the content of full and effective participation is not fully described,²⁴⁹ prior and informed consent or approval and involvement are given a more precise meaning in COP decisions and are mainly conceived as prerogatives of indigenous peoples and local communities. In particular, the Mo’otz Kuxtal guidelines provide the following definition: no coercion, engagement sufficiently in advance of any authorisation and with sufficient information on relevant aspects. While consent implies the agreement of the holders of traditional knowledge, which includes “the right not to grant consent or approval”,²⁵⁰ “involvement” is defined as “full and effective participation” in decision-making processes. Furthermore, consent only implies temporary use and if the purpose changes, the terms must be renegotiated.²⁵¹ This is in line with the view that (free) prior informed consent and approval and involvement should constitute a legal contract between indigenous peoples and local communities, on the one hand, and those who access traditional knowledge, on the other.

In this sense, one way of operationalising consent is through the drawing up of mutually agreed terms, which are private contracts between the proponents of any plans or decisions and indigenous peoples and local communities.²⁵² A binding reference is also contained in articles 5(2), 5(5) and 7 of the Nagoya Protocol.

Another important recommendation when considering ways of establishing consent is that any participatory process which aims to reach an agreement with indigenous peoples and local communities must be based on respect, trustbuilding and mutual understanding.²⁵³ These elements require a process of long engagement with the indigenous peoples and local communities concerned, as well as the need to take into account the respect of their community protocols, documents elaborated in autonomy by indigenous peoples and local communities that often contain indications as their willingness to engage with external actors and the modalities to allow for such an engagement.²⁵⁴ Article 12(1) of the Nagoya Protocol creates an obligation for its parties to consider community protocols when implementing the protocol’s provisions on traditional knowledge.

The cases in which consent is required can be grouped into three main kinds of activities: first, when there is access to traditional knowledge;²⁵⁵ and second, when establishing protected areas or recognising ICCA s;²⁵⁶ and third, in line with human rights law, when indigenous peoples and local communities are removed from their lands or the activities planned are likely to affect their lands and natural resources.²⁵⁷ Although the variety of formulations can be inconsistent in some instances, it also reflects the range of possible options in realising participation depending on the subjects involved, the rights affected, and the circumstances at stake. Capacity-building is regarded as a facilitator for any form of participation in the context of the CBD.²⁵⁸

Participation, in its multifarious forms, is foreseen in a range of different decision-making activities,²⁵⁹ including the implementation of article 8(j) of the CBD, conservation and the establishment and management of protected areas, impact assessment, and technology transfer. The implementation of article 8(j) somehow constitutes the red thread between participation at an international level²⁶⁰ and participation at national and local levels, because COP decisions recognise the importance of ensuring the participation of indigenous and local communities at all levels of decision-making.²⁶¹ This kind of participation is also deemed instrumental for integrating biodiversity into poverty eradication and development.²⁶² Although participation in conservation activities is not clear from the text of the CBD,²⁶³ it is thoroughly articulated in COP decisions. One important aspect of the involvement in conservation activities is public participation (especially of indigenous peoples and local communities) in the management and designation of protected areas,²⁶⁴ including the realisation of the ecosystem approach.²⁶⁵ One specific aspect in relation to indigenous peoples and local communities is the mapping and recognition of ICCA s as part of the national network of protected areas.²⁶⁶ Participation in impact assessment is again addressed to the public concerned at large,²⁶⁷ but especially to indigenous peoples and local communities, when developments are planned to take place on their lands or are likely to have an effect on both their lands and the perpetuation of their traditional knowledge.²⁶⁸ Finally, participatory approaches to technology transfer are said to facilitate the transfer of technologies.²⁶⁹

The last point to mention is that participatory rights include access to information, which in the context of the CBD presents two main aspects. The first is the requirement for public authorities to provide information to the public. The second refers to the fact that in the practice of the CBD, the public, and in particular indigenous peoples and local communities, are asked to provide information that is relevant for the attainment of the three objectives of the CBD to states or CBD authorities. The top-down information flow is ensured by a number of decisions requiring state parties to provide information to the public concerned, but especially to indigenous peoples and local communities.²⁷⁰ In addition, there are also some decisions calling for other kinds of authorities or decisionmakers to do the same, such as the executive bodies of the CBD,²⁷¹ as well as developers and managers of protected areas.²⁷² Moreover, access to information is seen as a precondition for participation,²⁷³ as a way to guarantee parity of bargaining power and thus equity,²⁷⁴ and as a means to guarantee the full implementation of the CBD framework.²⁷⁵ Moreover, some decisions list the characteristics of information, which must be prompt, provided sufficiently in advance, complete, transparent, and made available in the language of its main recipients.²⁷⁶ Concerning the bottom-up information flow, it is usually the Secretariat of the CBD who requires indigenous peoples and local communities to submit information on traditional knowledge, benefitsharing, and conservation practices.²⁷⁷ The same bottom-up information flow is requested from other actors, including state parties, in a view to promoting a cooperative approach to information-sharing under article 17(1)²⁷⁸ and relevant COP decisions.²⁷⁹

As mentioned, in the wetland regime the participatory strategy is set up through CEPA, which is periodically updated and goes hand in hand with the Ramsar Strategic Plan. The over-arching goal of the 2016–2024 CEPA Programme is “people taking action for the conservation and wise use of wetlands”, while Goal 5 asks to “develop and support mechanisms to ensure multistakeholder participation in wetland management”.²⁸⁰ In addition, the PEM tool aims to enhance the participation of all sectors and relevant social actors in the management and wise use of wetlands. PEM is intended to facilitate an integrated approach to addressing problems and identifying priorities “by including knowledge from many sources – traditional, scientific, technical and administrative, among others”.²⁸¹ It also aims to improve communication and exchange of information among the different actors and, in so doing, reinforces their mutual trust, helps reducing environmental conflicts as well as promoting continuity and sustainability of management activities.²⁸²

A participatory approach also emerges from the text of the Ramsar Convention. Its article 6(3) requires state parties to inform “those responsible at all levels of wetland management” of COP decisions relating to the conservation, management and wise use of wetlands and their flora and fauna, to enable their contribution to the implementation of this regime. Arguably, the state obligation to provide information is a precondition for the participation of non-state actors in the Ramsar regime. Since there is no explicit characterisation of the responsible actors this provision widens the scope of the Ramsar Convention in terms of the addressees of its obligations. Indeed, COP Resolution VIII.36 on the PEM tool provides a clarification on who these “many social actors” should be: “the public and private sectors, non-governmental organisations and local communities, among others”.²⁸³ The Resolution “promotes active and full participation of local communities and indigenous peoples in the adoption and application of decisions related to the use and sustainable management of wetlands”.²⁸⁴ Participation in wetland management can also strengthen the position of other marginalised actors, namely women²⁸⁵ and the poor,²⁸⁶ and thus contribute to the achievement of other internationally agreed goals and targets.²⁸⁷

This multistakeholder approach is reiterated in the 2016–2024 CEPA Programme, which promotes the development and support of multi-stakeholder participatory mechanisms,²⁸⁸ exemplifies possible levels of participation,²⁸⁹ and identifies potential target groups for CEPA planning and actions to be engaged at local and national levels for their contribution to the conservation and wise use of wetlands. In the civil society subgroup, attention is paid to indigenous peoples and local communities for their knowledge of wetland management and their cultural connection with sites, to women for their central role in the family and in the education of children, as well as to children and youth as the next generations of environmental managers and caretakers.²⁹⁰ While education and awareness raising activities on wetlands values and ecosystem services should be directed at a wider public, effective involvement in decision-making and wetland management concerns specific actors that are directly interested and potentially affected, and can thus be identified as “public concerned”. Indigenous peoples and local communities are certainly part of the latter group, they are recognised as “key stakeholder[s] for conservation and integrated wetland management” and their “active participation” should be promoted, recognised and strengthened.²⁹¹

A decisive turning point for ensuring the participation of indigenous peoples and local communities is represented by Ramsar COP Recommendation 6.3. This reports a lack of appropriate consultative mechanisms and the consequent exclusion of these actors from decision-making,²⁹² acknowledges “their distinct knowledge, experience and aspirations in relation to wetland management”²⁹³ demonstrated by their direct involvement in the field,²⁹⁴ and promotes the development of benefit-sharing mechanisms for the conservation and wise use of wetlands.²⁹⁵ Based on these premises, state parties are requested to encourage their “active and informed participation [and] their direct involvement” in wetland management²⁹⁶ as well as to “recognise the value of the knowledge and skills of local and indigenous people” related to wetland management for their inclusion in wetland policies and programmes.²⁹⁷ To do so, the development of national and local mechanisms that ensure consultation “with a view to reflecting their needs and values, traditional and other knowledge and practices in national wetland policies and programmes, and in the management planning for Ramsar sites and other significant wetlands” is urged.²⁹⁸ The “Guidelines for establishing and strengthening local communities’ and indigenous people’s participation in the management of wetlands” provide practical guidance on how to operationalise these requests and design effective participatory approaches based on lessons learned from case studies.²⁹⁹ The increasing involvement of indigenous peoples and local communities in wetland conservation is thoroughly studied in a dedicated Report,³⁰⁰ which reviews both the Convention’s policy framework and information collected from state parties. The Report highlights the evolution of the Ramsar Convention’s approach with respect to these actors: “from a standard of “recognition” to one of “active involvement””, which now encompasses “communitybased governance as a legitimate option for wetlands”.³⁰¹ According to the Report, the concept of wise use, the CEPA and the guiding principles on the cultural values of wetlands³⁰² fostered this evolution in terms of both policy development and practice.³⁰³

Since Ramsar COP8, participation of indigenous peoples and local communities is also fostered by tracing a connection between cultural values and wetland conservation; this process can be facilitated by referring to a set of twenty seven guiding principles.³⁰⁴ In this context, the term “indigenous peoples” acquires the plural form and key concepts are introduced: the principle of prior and informed consent; the inclusion of cultural and social criteria into environmental assessment; and the protection of traditional rights. The connection between culture and wetland conservation, especially when linked to heritage protection, enables cooperation between the Ramsar Convention and the WHC.

The interrelation between culture and conservation is paradigmatic in the case of the WHC and, again, offers a privileged path for the involvement of indigenous people as public concerned.³⁰⁵ In 2018, the United Nations Educational, Scientific and Cultural Organization (UNESCO) adopted a policy for engaging with indigenous peoples in all areas of its mandate that are relevant for or of potential benefit or risk to them.³⁰⁶ Although designed to support the efforts of the UNESCO Secretariat in mainstreaming the UNDRIP across all UNESCO’s relevant programme areas,³⁰⁷ arguably, this policy has an impact on how state parties to the relevant UNESCO Conventions meet their commitments. A few provisions strengthen the role of indigenous peoples in the development and implementation of the WHC. In particular, “indigenous peoples should be able to take part in the development of policies concerning their culture, cultural expressions and heritage, including through effective participation in relevant consultative bodies and coordination mechanisms”.³⁰⁸ They “have the right to be consulted” on activities concerning their heritage; “transparent collaboration, dialogue, negotiation and consultation” should also be ensured for the future development of such activities.³⁰⁹ Since natural and cultural heritage can be home to or is located within land managed by indigenous peoples, “in such places, [they] have the right to their traditional lands, territories and resources, and are partners in site conservation and protection activities that recognise traditional management system as part of new management approaches”.³¹⁰ Moreover, they should be granted “adequate consultations, the free, prior and informed consent and equitable and effective participation … where nomination, management and policy measures of international designations affect their territories, lands, resources and ways of life”.³¹¹ Where conservation and management refers to their cultural and natural heritage sites, “equitable and inclusive governance arrangements, collaborative management systems and … redress mechanisms” should be ensured.³¹²

In so doing, this policy reinforces and complements the duties emerging from the Operational Guidelines.³¹³ According to the latter, participation in the protection of world heritage properties can be achieved by adopting a “partnership approach, underpinned by inclusive, transparent and accountable decision-making, to nomination, management and monitoring” of relevant sites.³¹⁴ Partners can be individuals or groups, “especially local communities, indigenous peoples, governmental, non-governmental and private organisations and owners” interested or involved in the conservation and management of those sites.³¹⁵ This participatory approach should be reflected in an appropriate management system³¹⁶ tailored to the specificities of each property (type, characteristics, needs, cultural and natural context), based on “a thorough shared understanding of the property, its universal, national and local values and its socio-ecological context by all stakeholders, including local communities and indigenous peoples”, and developed through “inclusive and participatory planning and stakeholder consultations processes”.³¹⁷ Different cultural perspectives can also emerge through the incorporation of traditional practices.³¹⁸ Despite all that, state parties are not required to gather and/or include information from other stakeholders in the periodic reports on the implementation of the WHC.³¹⁹

3.3 Preliminary Conclusion on Participation

As emerged from the analysis above, participation in international biodiversity law is conceived mainly as participation in decision-making and access to information. In addition, participation of the public concerned is encouraged through the involvement of relevant actors in the conservation, sustainable use and management of biodiversity resources and protected sites. This latter participatory dimension is both a call for states, not always enabled in practice, and a result from practice in the field.

Participation in the CBD and Ramsar Convention has similar peculiarities. First, there is a strong emphasis on the public concerned rather than the general public both at the global level and at the implementation level. Nevertheless, in the wetland regime, the general public can also be informed more broadly about the value of wetland ecosystems and the services they provide through the activities of education and awareness raising promoted at national, subnational, and local levels.³²⁰ Second, there is a clear distinction between participation in global³²¹ and national decisionmaking,³²² which is not fully spelled out in the definition of participation in international environmental and human rights law. Third, participation at both levels is mainly directed to indigenous peoples and local communities, as depositaries of knowledge and practices that are relevant for conservation and sustainable use. Importance is also given to their cultural connection with protected sites. Fourth, especially in the case of the CBD, information is conceived as a doubletrack information flow, meaning that it should not only be provided by governmental authorities to the general public or to the public concerned (top-down), but it should also flow back from the public to the CBD, governmental and management authorities (bottom-up). Therefore, information is much more bilateral than as intended in the general definition of participation given in section 1.2 above. This is in line with one of the rationales of participation, that is to improve public decision-making. In the context of the Ramsar Convention, information is not limited to these top-down and bottom-up flows but acquires an additional dimension in the context of the CEPA Programme, the PEM tool, and the Ramsar Regional Initiatives through an interactive process of sharing information, knowledge and skills on wetland conservation and wise use among all stakeholders.

Recent evolutions in the WHC also aim to reinforce the role of indigenous peoples at all levels; from global negotiations to the management of cultural and natural properties. Time will prove if this recognition actually strengthens their participation both in the convention processes and in the protection of properties on site.