Accountability or ‘Good Decisions’?
The Competing Goals of Civil Society Participation in International
Governance
JENS STEFFEK and MARIA PAOLA FERRETTI
Draft
Published in Global Society 23(1) January 2009, 37-57.
Abstract
Civil society participation in international and European governance is often promoted as a
remedy to its much-lamented democratic deficit. We argue in this paper that this claim needs
refinement because civil society participation may serve two quite different purposes: It may
either enhance the democratic accountability of intergovernmental organisations and regimes,
or the epistemic quality of rules and decisions made within them. Comparing the EU
(European Union) and World Trade Organisation (WTO) in the field of biotechnology
regulation we find that many participatory procedures officially are geared towards the
epistemic quality of regulatory decisions. In practice, however, these procedures provide little
space for epistemic deliberation. Nevertheless, they often lead to enhanced transparency and
hence improve the accountability of governance. We also find evidence confirming findings
from the literature that the different roles assigned to civil society organisations as
‘watchdogs’ and ‘deliberators’ are at times hard to reconcile. Our conclusion is that we need
to acknowledge potential trade-offs between the two democratising functions of civil society
participation and should be careful not to exaggerate our demands on civil society
organisations.
1
INTRODUCTION
Since the 1990s the democratic legitimacy of traditional forms of international governance
has been questioned. The crisis of executive multilateralism, shorthand for cooperation among
diplomats and government-appointed experts, is traced back to a lack of inclusiveness,
participation, and public accountability1. One of the possible remedies suggested in the debate
about the democratic deficit of international governance is an enhanced participation of civil
society in international organisations (IOs) and European Union (EU) bodies2. There has been
a remarkable semantic shift, especially in the EU context, from traditional notions of
representative democracy towards notions of decentralised and participatory forms of
governance that rely heavily on the participation of organised civil society3. Moreover, for
global institutions such as the United Nations (UN)4, the International Monetary Fund (IMF)5,
and the World Trade Organisation (WTO)6, civil society participation has been suggested as a
strategy for gaining democratic credentials.
In fact, many IOs have committed themselves to civil society participation, at least
rhetorically. It is not always clear, however, which concrete benefits are actually expected
from such participatory practices. In a trenchant criticism of the so-called Cardoso Report on
the United Nations and Civil Society7, Peter Willetts argues that the panel members who
drafted it did not have a clear idea of what they expected from civil society. This, as Willetts
correctly points out, has led them to suggest incoherent proposals for political reform8. This
episode can illustrate that there is need for reflection on, and clarification of, the potential
benefits of civil society participation. We ought to be more precise about what exactly we
expect civil society to contribute to the democratic quality of governance beyond the state,
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and we should also explore empirically the conditions under which organised civil society
may be able to perform the respective functions. In this paper, we therefore reflect on the
question of whether, how, and under what conditions civil society participation can contribute
to the democratic quality of European and global governance9.
In this article, we distinguish public accountability of governance and quality of
decisions as two major goals of participatory procedures, and we call the two underlying
arguments for participation the accountability claim, and the epistemic claim, respectively. In
the next, largely theoretical section we outline these two claims, trace their roots in political
theory, and explain the differences between them. In the third section we turn to the empirical
record. The aim is to identify the goals of existing participatory procedures and to assess the
extent to which they are achieved in practice. We draw our evidence from a comparative
study of the regulation of biotechnologies at the European and global level. At both levels of
policy-making, we find empirically that some participatory procedures are geared officially
towards the epistemic quality of regulatory decisions, while others are explicitly intended to
render governance mechanisms more accountable. However, many procedures designed to
improve the epistemic quality of decisions under present circumstances fall short of reaching
this goal as epistemic engagement is very demanding in terms of participatory rights.
Nevertheless, these procedures may still promote public accountability.
In addition, our evidence is suggesting that the different roles assigned to civil society
organisations (CSOs) are at times hard to reconcile. With regard to producing accountability,
civil society would need to be an independent watchdog, not hesitating to contest political
projects or decisions in public. With regard to enhancing the epistemic quality of decisions,
representatives of civil society would need to act as deliberators within the institutions of
governance. Our research on biotechnology regulation confirms earlier suggestions from the
literature that CSOs may face a trade-off between working within governance arrangements
and contesting them in public. Given these problems we conclude that our initial distinction
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can enhance our understanding of participatory processes and help us to identify the
conditions under which the envisaged goals of participation may be realised. If policy-makers
aim to improve European and global governance through civil society participation they will
need to define what exactly new or revised participatory institutions are supposed to achieve.
Moreover, academics and policy-makers alike should acknowledge that expecting CSOs to
act simultaneously as watchdogs and deliberators may put them in an awkward position,
requiring them to strike a delicate balance between constructive engagement and critical
detachment.
THE RATIONALE FOR PARTICIPATION
Contemporary political theory has devoted great efforts to advocating greater involvement of
citizens in governance and participation in different areas of social and political life. In
particular, practices are advanced that can combine the advantages of citizen participation
with procedures of deliberative decision-making. Such deliberative-participatory practices can
take on many forms such as deliberative polling10, focus groups11, citizens’ juries12, science
shops13 or electronic participation14. Given the potential benefits of enhanced participation
and deliberation, this combination has also been suggested as a strategy for democratising the
institutions of international governance. By international governance we mean the more or
less formalised procedures of political decision-making beyond the state that are geared
towards resolving problems arising from international interdependence.
In its traditional form, which has been labelled executive multilateralism15,
international governance has been state-centric, elite-driven and technocratic. It featured a
pronounced democratic deficit in which parliamentary oversight, citizen participation and
public accountability were particularly underdeveloped. Intergovernmental multilateralism,
therefore, is regarded “… as a social construction of the 20th century, which is becoming
increasingly problematic. The view that agreement by states, according to institutionalized
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rules, guarantees legitimacy relies on a deeply statist normative theory. … Demands for
multilateral organizations to become more accountable to civil society rather than simply to
states have proliferated”16. In addition, especially in the realm of functional regulation,
international institutions are accused of passing on decisions to experts and forgetting their
political nature, thus further weakening the link with the people that are affected by those
decisions17. The specific threat to the democratic self-governance of citizens that international
governance poses may therefore be defined as a combination of intergovernmentalism and
technocracy.
In recent years, enhanced public participation has been promoted as a way of reestablishing the link between citizens and internationalised policy-making18. In that debate, it
has been argued that civil society organisations may serve as a connective tissue between
citizens and international institutions of policy-making, providing both input from citizens,
and accountability towards citizens. The conception of civil society to be found in much of
that literature comes close to the following: “Civil society is composed of those more or less
spontaneously emergent associations, organizations, and movements that, attuned to how
societal problems resonate in the private life spheres, distill and transmit such reactions in
amplified form to the public sphere”19. It is this notion of transnational civil society as an
essentially organised sphere of social action that we adopt in this essay. We therefore place
less emphasis on direct citizen participation in international politics, although it has been
suggested by some political theorists, and there are some rare instances of it in current
political practice20.
Accountability claims
What reasons are there for advocating civil society participation in public policy-making? We
deem it useful to distinguish between two types of claims that are typically made in this
debate. The first claim we refer to as the accountability claim. Democratic accountability
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requires that citizens are able to scrutinise political decision-making processes and to hold
decision-makers to account for their choices. “At its heart, the idea of public accountability
seems to express a belief that persons with public responsibilities should be answerable to ‘the
people’ for the performance of their duties”21. The concept of accountability pertains to the
post hoc evaluation of governance outcomes, and, unlike democratic input, it is essentially
retrospective22. An observable lack of public accountability thus conceived is generally
regarded as a key symptom of the democratic deficit of international governance 23.
International governance is characterised by a spread of decision-making competence over
various levels of policy-making, from regional to global in scope. In addition, it relies heavily
on networks that are based on informal relations among political actors24. Due to the publicprivate mix and its networked character, the origins of political choices are often obscure, and
responsibility is at times hard to establish25. As a consequence, the idea of being held to
account in front of an external body, or to citizens that can investigate the actions taken, ask
for reasons and impose sanctions, is more difficult to realise in this context26.
What exactly can organised civil society contribute to a democratisation of
international governance in this respect? First of all, CSOs make negotiations more
transparent, monitor the consequences of international political decisions for citizens, and
pressure international organisations to disclose their documents27. By means of shaming and
campaigning, organised civil society contributes to the creation of a global public sphere in
which political choices are exposed to public scrutiny. Public campaigns raise awareness, thus
enabling citizens to arrive at informed opinions about public governance28. Although CSOs
cannot directly punish decision-makers for flawed choices they can mobilise public resistance
against them, thus targeting their reputation. In this specific and limited sense, public
contestation is an integral part of a process of publicly holding governments and international
organisations to account. Contestations force them to justify their choices and can help
pushing politics from the routine mode into the crisis mode29. In sum, accountability is a key
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element of democratic control over internationalised decision-making. There are of course
other important forms of control over decision makers, such as constitutional constraints on
their freedom of action, but in the absence of accountability it would be difficult to conceive a
possibility for people to evaluate such actions ex post30.
Epistemic claims
The claim that we refer to as epistemic is stronger and more specific than the generic claim
that public institutions should be accountable to their constituency and publicly justify their
choices. Instead, it pertains to the specific content of the decisions taken, and their problemsolving potential. Technical problems are increasingly at the core of internationalised political
decisions. Public health, nuclear safety, biotechnologies, climate change are but some
examples of policy fields in which it is not possible to make sound political choices without
grounding them in technical and scientific expertise. Many domains of political decisionmaking rely for their functioning on continual input from expert knowledge. No matter
whether those specialised actors are natural scientists, legal experts, or economists, lay people
are progressively removed from the core decision-making, which requires highly technical
skills. This tendency is visible within states but also in international policy-making.
On the one hand, the use of expertise itself often becomes the grounds on which to
confer authority for political decisions31. On the other hand, scientific expertise is also
increasingly contested32. Indeed, experts often fail to provide reliable policy advice because of
the incompleteness of their knowledge that may be due either to the inherent uncertainty of
the subject under regulation, or persistent disagreement among experts. Furthermore, the
failure of experts to give effective guidance on occasions such as the Chernobyl disaster and
the BSE (Bovine Spongiform Encephalopathy) scandal have raised questions about the
reliability of scientific expertise and its independence from industry lobbies and interest
groups. Because of a disenchantment with scientific expertise33 some came to argue that lay
7
people can contribute to produce better regulation and therefore should be involved in
decision-making. In order to have good rules, we should bring the experiences, reasons and
perspectives that policy makers and government-appointed experts would not otherwise
consider into the decision-making process34. In this perspective, people may either contribute
by making explicit relevant social and ethical concerns, or by bringing to the forum arguments
derived from local knowledge and everyday experience that specialised actors would
otherwise ignore.
Thus the epistemic claim, which is particularly prominent in the literature on
internationalised risk regulation, is that by considering a broad range of additional
information, public procedures will be capable of delivering better rules – justified and
effective. For this reason public participation has been regarded as a necessary ingredient of a
sound decision-making process. In this context, in principle, it is not relevant whether the
perspectives and arguments brought to the deliberative forum are presented by individuals or
associations. Indeed, what is important is to ensure a plurality of perspectives and expertise.
In practice, however, it is usually CSOs of different sectors of the population which contribute
them to the forum.
Some theorists, in particular those emanating from a deliberative model of democratic
theory, have come to argue that public participation can simultaneously achieve democratic
accountability and a high quality of decisions35. Deliberation is understood here as “an
unconstrained exchange of arguments that involves practical reasoning and always potentially
leads to a transformation of preferences”36. A deliberative procedure therefore is an
institutional ideal to which real world procedures of decision-making should conform as much
as possible. Public deliberation is conceptualised as a cooperative learning exercise that
prepares the ground for political decisions that will be accepted as legitimate because they are
the outcome of a cooperative process. Under ideal conditions, governance by good arguments
is both epistemically sound and an expression of democratic self-governance. We do not wish
8
to challenge theories of deliberative democracy on theoretical grounds here. We are rather
concerned with the current practice of public participation in real world politics and the
possibilities of realising the democratising potential(s) inherent in it. We seek to sound out the
empirical grounding of the optimistic but largely abstract proposals for a deliberative reform
of international governance. We thus echo McGrew and Robotti who find that “[i]nterestingly
few studies have sought to explore how deliberative practices have become institutionalized
in global governance arrangements and what this might tell us about the conditions for, and
limits to, deliberative designs”37. The key point is that public institutions must be designed in
such a way as to make deliberation possible, as described by Gutmann and Thompson among
others38.
To date, however, most international negotiation processes do not even remotely
provide ideal conditions for deliberation39. We argue that when faced with these definitely
non-ideal conditions of real world governance, it may be useful to keep accountability and
epistemic claims analytically distinct, and to ask whether any existing participatory procedure
is able to achieve both goals at the same time. Our considerations are hence pragmatic in
nature. In the following section, we present evidence from two case studies in order to
illustrate the usefulness of our theoretical distinction. We shall analyse participatory
procedures at the European and global level in the field of biotechnology regulation. The aim
is to assess critically the extent to which they provide CSOs with opportunities for fostering
public accountability and enhancing the epistemic quality of decisions in deliberative settings.
As we shall demonstrate, the very design of these participatory procedures already poses
some important constraints that limit the scope of participation.
CIVIL SOCIETY AND THE INTERNATIONAL REGULATION OF BIOTECHNOLOGIES
The policy field that we have chosen for this empirical enquiry is the regulation of
biotechnology in general, and of genetically modified organisms (GMOs) in particular. This is
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an appropriate topic as the issue involves the regulation of risk, which makes the epistemic
dimension paramount. Moreover, it has mobilised wide parts of civil society, such as
environmentalist CSOs, but also industry. The regulation of agri-biotechnologies has also
caused international tension, not least because of the different weight given to public opinion
and citizen preferences in it40. The notorious EC Biotech dispute in the World Trade
Organisation (WTO) testified to this potential41. In the following paragraphs we shall
scrutinise existing mechanisms for citizen participation in regulatory policy-making
concerning biotechnologies. We shall first discuss access points at the European level and
then turn to the global political setting.
Participation at the European Commission and European Food Safety Authority (EFSA): the
limits of epistemic engagement
Observers have remarked that in recent decades the European Union institutions, despite the
recurring criticism of being affected by a democratic deficit, have increasingly strengthened
the representation of citizens’ interests, providing more institutional spaces for public
participation42. GMO regulation in particular has been influenced by the emphasis on
consumer affairs under the Prodi Commission and the new focus on food safety and
precaution generated in the aftermath of the BSE crisis. A number of key Commission
documents43 envisage more inclusive decision-making processes and “make a strong
commitment to more input-oriented, communicative approaches, that is, more citizen
participation as a key for making EU policy on biotechnology more effective”44. In particular,
the regulatory framework for GMOs inaugurated at the beginning of this decade includes
consumer interests and ethical concerns as legitimate considerations that should be included
in the process of authorisation of GM products in the EU market45. The EU institutional
setting provides civil society with a quite remarkable number of access points for influencing
10
regulation, mainly through representation within expert advisory bodies, through ad hoc
consultations, and Internet pages open to public comment.
Since 1990 the European Commission has adopted institutional strategies as a way of
channelling societal disagreement over GMOs into participatory practices. The Deliberate
Release Directive (22/90) mandated public disclosure of notifications for both GMO field
trials and product authorisation, thereby ensuring the possibility to scrutinise and challenge
the work of the national competent authorities (CAs). Indeed the 1990s were characterised by
a highly controversial climate in which GMO rejection from part of the public was at the core
of boycotts, court hearings, and national bans on products that had already obtained EU wide
authorisation46. Under the 2001 revision of the Deliberate Release Directive (18/2001/EC)
and the subsequent Directive 1829/2003/EC (regulating GM food and feed) requirements of
public participation were strengthened. National competent authorities are required to consult
the public on each notification for release into the environment, so as to grant CSOs and
individual citizens the opportunity to express their opinion, which should be given due
consideration. Risk assessment and risk management remain two distinct tasks, in which the
former is mainly conceived as a scientific and epistemic enterprise and the latter as a
genuinely political task, yet public participation should be granted at both levels.
Under this new regulatory framework, GMO products are licensed through quite
complicated and stringent procedures that involve the Members States, the applicant
company, the European Commission, the Council of Ministers, and the European Food Safety
Agency (EFSA)47. The absolute novelty is that for the first time the lay public as well as
CSOs can take part in authorisation procedures of individual products. This means that
alongside the twice-yearly stakeholder consultative platform, the annual stakeholder
colloquium, and the periodical scientific colloquia and public consultations organised by the
EFSA, the public has the opportunity of intervening directly in the authorisation procedure of
any product submitted to the EU national authorities.
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How does this procedure work in practice? When an application dossier is notified by
the applicant company to a national competent authority, all interested parties are invited to
contribute with facts and evidence in order to express their opinion on the submitted
document and, when they judge it opportune, to rebut the arguments presented by the
applicant on the basis of facts, evidence and argument. Civil society is consulted through the
Internet. In the 30 days following the publication of both the summary notification and of the
assessment report by the competent national authority, the general public is invited to send
comments, through a website (http://gmoinfo.jrc.it, hereafter Gmoinfo) provided by the Joint
Research Centre of the EC (based in Ispra, Italy) with the support of DG Environment (for
products to be authorised under Directive18/2001/EC) and provided by DG SANCO for
products to be authorised under Directive 1829/2003/EC.
The competent authority should act as a neutral arbiter between the parties, appraise
the evidence and pronounce a verdict. In this system it is not expected, as in idealised
deliberative practices, that actors are open to change their preferences through new
information, dialogue and mutual learning48. It is rather a court-like situation, in which every
party defends its own case, and the verdict establishes winners and losers, without space for
mediation and conciliation49. The underlying principle is that the best argument wins, but only
the competent agency is to decide what counts as the best argument – by following the basic
rules of logic, but also the guidelines legally established for the process of risk assessment.
This practice therefore provides little space for learning and persuasion through deliberation
as envisaged in deliberative democratic theory.
In addition, there are major asymmetries among the participants involved. In practice,
the agenda is shaped by whoever prepares the document or proposal to be submitted to
appraisal by the interested parties. In the case of GMOs, the dossier application is produced
by the applicant company, following a standard format requested by the EC. The rationale is
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to ensure ex-ante accountability and to put the strains of justification on the applicant.
However, this also puts the company in a position of advantage compared to other parties.
The data contained in dossier applications is based on studies commissioned by the applicant
company. Paradoxically, it is the applicant company that is in the best position to put its
products to test. This is primarily because big GMO companies can attract scientists of
excellence and employ vast resources. However, being in charge of the presentation of data
and materials, the company can conceal unfavourable evidence and information.
The EFSA and the national authorities are in the position to request additional
information on the dossier application, or to object to the information provided. However,
time constraints and the right to protect commercial secrets often prevent a thorough
investigation of the company’s dossier. The EFSA even can decide to conduct additional tests
on the product, but it relies predominantly on the applicant’s sources of information. The
recent case of Monsanto’s genetically modified maize MON 863, in which there was a wide
scientific disagreement concerning the evidence provided by a study commissioned by the
applicant company, exemplifies this problem well. Both those who were persuaded of the
statistical interpretation produced by the study, and its critics, had only the evidence and data
produced by Monsanto to rely on. This provides us with an indication of the conspicuous
influence that a company has on the authorisation procedure.
Participation in the authorisation procedure
The procedure under examination here, along with giving publicity to the documents
produced in the assessment procedure, has the ambition of involving the general public in the
decision-making, being open to inputs from below. However, it is very difficult to see how
lay people could make meaningful contributions to decision-making under Directive
18/2001/EC. Within the time limit of 30 days set by the directive the public has to find the
means and resources to challenge the opinions of the competent authority and the claims of
the applicant company. Given the highly technical character of the dossier, reacting in such
13
short periods of time would require either particular expertise at hand, or financial resources
to fund that expertise.
Looking at the various summary notification information formats for products
(SNIFs) published by Gmoinfo and people’s reactions to them, comments written by lay
people have decreased in number from an average of twenty one per summary report in 2003
to an average of four in 2004. Over time, comments have increasingly become technical, and
considerations of an ethical nature, or based on common sense, have almost disappeared50.
Not surprisingly, the Gmoinfo forum therefore has been progressively colonised by
specialised non-profit organisations. These organisations are necessary to facilitate public
participation as only they can overcome the obstacles to public engagement, namely the
difficulty in collecting the necessary information from the various institutions involved
(national authorities, DG Environment, DG SANCO, EFSA), to translate the technicalities of
the official documents into a language widely accessible, and to voice citizens’ dissatisfaction
with the ways in which the institutionalised spaces for participation are managed.
This progressive technicalisation of the Gmoinfo website may also be due to the limits
set by Directive 18/2001/EC to the contributions that can be brought to the discussion forum.
Indeed some comments on the first SNIFs read like this one: “Are you crazy? As if nature is
not beautiful enough” (SNIF C/NL/04/02). Another comment, submitted in the authorisation
procedure for a new variety of carnations, asked rhetorically whether there were no more
urgent tasks that scientist should address than modifying the colour of a flower. The Dutch
competent agency, which was in charge of the respective notification, commented that all
these concerns fall outside the standards set by Directive 18/2001/EC. In fact, the objection
that most comments written by lay people fall outside the scope of the directive - and
therefore are not pertinent - is quite recurrent in the assessment reports produced by the
national authorities51.
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Admitting the public into fora that were previously reserved for expert deliberations
(as for risk assessment) requires an expertisation of the public. This participatory mechanism
is not designed to capture what people take to be a risk, their ethical concerns and
methodological perplexities, unless expressed under the guise of technical matters. On the one
hand, the fact that arguments explicitly based on ethical or political preferences are not
considered valid in the discussion is consistent with the distinction between risk assessment
and risk management, which presupposes a de-politicisation of the assessment procedure. On
the other hand, restriction of the participatory forum to technical discussion has given way to
expert interventions that in the most recent dossiers have taken the form of actual scientific
counter-expertise52.
The same pattern is observable in the ad hoc consultations open by the ESFA, for
example consultation on the new guidelines for risk assessment, in which the general public is
represented by specialised CSOs or by independent experts rather than by lay people. This
does not come as a surprise, since it is unimaginable to think that lay people have the time and
energy to spend in acquiring the competences and the knowledge to participate meaningfully
in such technical debates. However, the role of CSOs acquires a multifaceted dimension.
Several CSOs play the game of epistemic participation and present themselves as reliable
interlocutors of the institutions. On the other hand, through their webpages and press
campaign, they are highly critical of those same institutions and of the possibility of actually
working together53. On a hotly contested topic such as GMOs, taking side pro or contra
GMOs seems inevitable. Most CSOs active in this field build their relation with the public by
exposing the alleged partiality of European institutions towards the biotech industry and what
they regard generally as an excessively liberal approach to GMOs, and by fighting the GMO
industry through boycotts and press campaigns.
In sum, although the procedures in place at the European level provide civil society
with access to authorisation procedures their input is often marginalised, due to the
15
institutional defects and shortcomings described here. The findings confirm other studies54
that have highlighted the very limited achievements of public interest CSOs in channelling
their concerns directly into the procedures of European decision-making. This makes
alternative strategies, such as street protest and awareness campaigns, and legal action more
attractive for CSOs than participation within the institutional practices. The interesting, and
somewhat paradoxical, finding is that while the European setting fails to facilitate meaningful
civil society input in the epistemic dimension, it nevertheless manages to achieve better
visibility of governance.
In fact, the real virtue of the transparency created by the authorisation procedure is that
it favours public accountability. The fate of the request by Monsanto for authorisation of its
maize MON 863 illustrates this. In 2002, the biotech company submitted an application for
the registration of MON 863 to the competent German authorities. The application dossier
included a 90-day sub-chronic study on rodents prepared by a third party and commissioned
by Monsanto, subsequently updated to fulfil the requirements of the European authorities55.
During the review of the dossier assessment, some worries expressed by an
independent French research organisation (Criigen) about the evidence found by the rat study
were reported by the French newspaper Le Monde. These worries were echoed immediately
by the media in other European states. The British newspaper The Independent revealed that a
Monsanto internal scientific report contained data on kidney malformations and damages to
the immune system observed in rats fed with the crop. A massive mobilisation of public
opinion and environmental CSOs followed. The debate over the safety of MON 863 was
exacerbated by Monsanto’s refusal to make public the study results in full detail, on the
grounds of commercial secrecy. Greenpeace therefore initiated a Court action against
Monsanto, and the Administrative Court of Münster, Germany, in June 2005 ordered the
public release of the study56. This decision re-opened the debate over the product safety and
the reliability of the regulatory procedures, since MON 863 had to be authorised for the
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European market (Decision 2005/608/ CE), because the time laid down by the legislation for
reaching a decision among Member States had elapsed. The MON 863 case hence clearly
indicates that participatory procedures can lead to enhanced accountability even when they
fail to bring about deliberation among the parties involved.
Biotechnology regulation at the global level: WTO and Codex Alimentarius
The WTO has made some progress with regard to civil society participation over the last ten
years when compared with its predecessor, the 1947 General Agreement on Tariffs and Trade
(GATT). The organisation now officially acknowledges civil society actors as significant and
legitimate interlocutors. It has devised some guidelines on how to relate to non-state actors,
even if these still remain rudimentary57. The WTO conceives of itself as an intergovernmental
forum in which direct involvement of CSOs would not be appropriate. It considers “the role
NGOs can play to increase the awareness of the public in respect of WTO activities and agree
in this regard to improve transparency and develop communication with NGOs” 58. The task
assigned to them is to “… contribute to the accuracy and richness of the public debate” while
“… there is currently a broadly held view that it would not be possible for NGOs to be
directly involved in the work of the WTO or its meetings”59. In other words, the WTO expects
external accountability and controversial public debate, rather than direct input into its
decision-making process.
Thus, a notable evolution has taken place with respect to external transparency since
access to official WTO documents has been liberalised and its website makes them public in a
quite user-friendly way. This disclosure of the organisation’s documentary record is
contrasted, however, by the extremely limited access of observers to its policy-making
process. Conversation between civil society and government representatives takes place
mainly in the form of outreach activities, such as public symposia, but not within the WTO
committees. It needs to be stressed that such discussions remain detached from the WTO’s
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regular policy-making process. There is no way in which non-state actors could enter a
regular dialogue with policy-makers on concrete regulatory proposals, or exchange views
with the assembly of national delegates as a whole. Except for the possibility of observing the
Plenary Meetings of Ministerial Conferences, intergovernmental and non-state areas remain
clearly separated. Two WTO committees are concerned with the GMO issue – the Committee
on the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS
Committee) and the Committee on the Agreement on Technical Barriers to Trade (TBT
Committee). Yet to none of these committees do non-state actors have any access. In this
respect, CSOs and other exponents of a global civil society clearly are at the margins of WTO
although one could argue that their expertise could be beneficial there. The WTO remains a
club-like organisation60 in which problems of external accountability and control remain
paramount.
These adverse conditions quite obviously have repercussions on the strategies by
which CSOs try to influence WTO policy-making. Many CSOs do not seek any direct
discussion with WTO policy-makers61. Rather, they concentrate on awareness-building, thus
addressing the public, and on campaigning, addressing the WTO. CSO activists do not see
themselves in a position to transport the concerns of civil society into the WTO, but they are
only able to enhance public knowledge about the WTO62. In sum, there is very little empirical
evidence of a dialogue taking place between the WTO and organised civil society, and
certainly very little that would amount to deliberation and could enhance the epistemic quality
of decisions. CSOs at the WTO act primarily as watchdogs, and perceive themselves as such.
Nevertheless, there is a forum in which non-state actors might have a chance directly
to influence the regulatory process concerning GMOs at the global level ─ the CodexAlimentarius Commission (CAC), sponsored jointly by the World Health Organization
(WHO) and the UN Food and Agriculture Organization (FAO). Its task is to produce
internationally recognised food standards to protect the health of consumers, but also to
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facilitate international trade in foodstuffs and harmonise national regulatory approaches in this
field. Codex standards are an important benchmark referred to in Article 3 of the WTO
Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).
Countries that wish to maintain a cautionary approach towards food and health issues (and
thus GMOs) face the pressure to conform to global standards that are also used by the WTO
Appellate Body (the juridical branch of its dispute settlement system) as reference points
when food safety rules are subject of a trade dispute.
Given the importance of global standards, CSO presence in the CAC and its various
committees may potentially be a safeguard against the dominance of purely scientific risk
assessment in the negotiation of such standards. In the CAC, CSOs also enjoy participatory
rights that enable them to observe the negotiation process and make their own positions
heard63. Their role as deliberators is officially acknowledged by CAC in the Codex Strategic
Framework 2003–2007. It states that “the participation of all members and relevant
intergovernmental and non governmental organizations is critical to sound decision-making
and ensuring that Codex standards and related texts take account of the full range of interest
and viewpoints”64. Thus, the official aim of participation here is an epistemic one in that a
wide range of interests and expertise is conducive to the quality and acceptability of the
regulatory decisions reached. “Given the strong public interest in food safety and regulatory
issues, the involvement and input of consumers and non governmental groups at the
international and national levels is essential to build public confidence in international
standards and assure the strong public input, acceptance and support for Codex standards,
guidelines and recommendations as a basis for domestic regulation and trade.” 65 CAC hence
appears to be a policy arena that due to its focus on risk, standards and technical expertise is
particularly suitable for deliberative and inclusive modes of decision-making. In this context,
representatives of civil society may have a role to play in contributing to a high quality of
19
decisions through a strong public input and the anticipation is that this will also enhance the
support for the resulting standards.
Thus, the CAC potentially provides a deliberative forum for interaction between state
representatives and organised civil society concerned with the epistemic quality of
decisions66. Potentially this is because it has been argued that, currently, the CAC has some
defects with regard to deliberative equality. There is, first of all, an imbalance between
heavily represented industry associations and public interest and consumer CSOs67. In
addition, the responsiveness of governmental delegates towards civil society’s concerns is a
cause for concern68. In sum, there is some deliberative potential but deliberative equality is
jeopardised here by the very limited resources that CSOs command when compared to
industry lobbyists.
As the CAC is only an advisory body it does not issue binding political decisions but
technical recommendations. The resulting standards can function only indirectly, when, for
example, the dispute settlement body (DSB) of WTO adopts them as reference points in
determining the legality of restrictions to international trade in GMOs. A remarkable feature
of the WTO with regard to biotechnology regulation is its strengthened dispute settlement
body. The aim of the DSB is to resolve conflicts among WTO member states which arise
from violations of multilateral trade agreements or uncertainty regarding their interpretation.
Unlike the hearings of other international judicial bodies, such as the International Court of
Justice, the deliberations of the DSB are usually closed to the public69. The access point for
non-state actors, expert individuals and organisations, is the possibility of submitting amicus
curiae briefs to the appellate body (the judicial branch of the system whose decisions can be
overruled politically only by a unanimous vote and hence with the consent of the winning
party). This, at least in theory, allows CSOs to make their arguments heard by the panellists
and has led some to speak of a fruitful site of entry into the WTO by civil society70. The
20
practice is contested and some would argue that the influence of amici briefs is overstated71.
However, it may prove to be an inroad into the cloistered bodies of the WTO.
In the field of GMO products, a WTO dispute was initiated by the United States in
May 2003, supported by Argentina and Canada. In this so-called EC Biotech case72, the
claimants argued that the European authorisation system of GMOs was in violation of several
WTO agreements. Additionally, the national safeguard measures of Austria, France, Greece,
Germany and Luxembourg were challenged73. In this case, three amicus curiae briefs were
submitted to the DSB. Two came from public interest NGOs, and one from independent
researchers74. They all tried to put forward some arguments that they found under-represented
in the submissions by the parties to the dispute. The DSB, as in past cases, accepted the briefs
but emphasised that they did not substantially influence its decision 75. Interestingly, however,
in the EC Biotech case an unusual move for enhancing the publicity about the panel
proceedings took place. In February 2006 the confidential interim report of the panel was
leaked and crucial passages were posted on several NGO websites. The panellists criticised
the violation of confidentiality but were not able to establish where the leak occurred. They
incorporated this criticism in their final report on the case76.
“It should be noted, in addition, that the Institute for Agriculture and Trade Policy and
Friends of the Earth submitted amicus curiae (friend-of-the-court) briefs, requesting the
Panel to accept and consider their briefs. The Panel acknowledged receipt of these briefs,
shared them with the Parties and Third Parties, and accepted them as such. In the light of
this, it is surprising and disturbing that the same NGOs which claimed to act as amici, or
friends, of the Panel when seeking to convince the Panel to accept their unsolicited briefs
subsequently found it appropriate to disclose, on their own websites, interim findings and
conclusions of the Panel which were clearly designated as confidential.”77
21
In this case, the participating CSOs had decided to go public once it was sure that their
substantial input into the deliberative process was being dismissed. The subsequent criticism
by the panellists exemplifies the problems that CSOs may face when they seek simultaneously
to contribute through argument to small-group deliberation and to enhance the public
visibility of governance. In practice, there seem to be trade-offs between the two strategies.
We shall elaborate on this issue below.
Deficits of procedures and limited achievements
The task of this comparison of participatory procedures at the European and global level was
not to deliver new insights into international biotechnology regulation. Rather, we used this
overview to hammer out the different goals of participation as stated by the international
organisations involved. Quite clearly, in the European case the procedures are geared towards
the epistemic quality of regulatory decisions, with a view to involving additional (counter)expertise. Accordingly, civil society is directly involved in procedures of risk-assessment
with the official task of contributing to the epistemic quality of decisions reached there.
However, the procedures in place were not found to be particularly conducive to epistemic
engagement. Concerns that are not formulated in scientific terminology and style of argument
are marginalised. This is not the result of the ill will of the authorities but rather as a
consequence of the legal framework in which the consultative exercise takes place. Although
the procedure was officially designed to improve the epistemic quality of decisions in the end
it provides for more transparency in the sense that it gives the public access to the evaluation
of GMO-products, as the Monsanto episode shows.
At the global level, we found that participatory practices at the WTO are geared
principally towards enhanced external accountability. Organised civil society has adapted to it
and is mainly trying to raise public awareness and to expose secretive decision-making to
public scrutiny. While progress has been registered with regard to public access to WTO
22
documents, access to policy-making processes is, in effect, denied. These limitations hamper
the pursuit of public accountability. In addition, two ‘pockets of participation’ have been
found that in theory might enable CSOs to contribute directly to individual decisions. In the
CAC, CSOs are able to voice their concerns but they face well-organised industry interests
that are in fact overrepresented. The dispute settlement process at WTO provides another
niche for potential epistemic contributions by civil society. Yet to date there is no evidence
that statements in the form of amicus curiae briefs have influenced the decision-making
process. In the Biotech case the panel explicitly denied it. Hence, there is little to support the
claim that these procedures are gateways towards a deliberative-democratic reform of global
governance.
Implications for participating CSOs
The case of the amicus curiae briefs at WTO also suggested that, for CSOs, there might be
difficulties in trying to act simultaneously as ‘deliberators’ and as ‘watchdogs’. Working
effectively as an interlocutor in such an expert community requires a high degree of mutual
trust and confidentiality which is jeopardised by public campaigning. When CSOs wish to
take part in the dispute settlement process they need to abide by the rules. Acting as a
watchdog, in contrast, requires them to make information public and to expose the procedure
to public scrutiny. By making the Biotech interim report public, CSOs compromised their
chances of having their amicus curiae briefs considered by WTO panellists in the future. The
row over the leaked interim report in the EC Biotech case thus highlights the potential
incompatibility between the creation of public accountability through naming and shaming
and simultaneous attempts to contribute directly to decision-making processes. Under certain
conditions there seems to be a clear trade-off between CSOs acting as watchdogs, and CSOs
acting as knowledgeable participants in deliberative settings. In other words, the choice of any
one strategy has repercussions on the ability of CSOs to perform the other.
23
Such empirical findings seem to confirm the relevance of our initial theoretical
distinction regarding the twofold role of civil society in democratising global governance and
the trade-offs that have been described as the ‘participation trap’. The issue is familiar from
the literature on CSOs and social movements in the domestic context78. Over time, and as new
participatory opportunities arise, CSOs often move from public contestation to collaboration
in the institutions of governance79. Quite similar developments seem to be underway at the
international level. The close collaboration of CSOs with international organisations almost
inevitably leads to a professionalisation of these advocacy groups, as shown in the case of the
UN80, and the EU81. Some even see corporatist arrangements on the rise as international
organisations pick their privileged partners among CSOs82. While privileged access provides
CSOs with precious opportunities for direct debate and attempts at persuasion, it creates a
disincentive to engage in the public shaming and radical critique of international institutions83.
Compromising with public authorities also threatens a CSO’s credibility as a passionate
advocate of its constituency’s cause84. In fact, close collaboration and concomitant
professionalisation “have affected the work of NGOs in that they increasingly subordinate
their aims to pragmatic politics instead of proposing radical alternatives. … Such criticism has
been particularly strong in the environmental and developmental sectors. Moreover, the
formalisation of relations might also reduce NGO creativity, and NGOs increasingly adapt to
official politics”85. Thus, CSOs that cooperate closely in small-scale deliberative settings in
international organisations may in the end lose independence and the ability publicly to
challenge states and intergovernmental organisations86.
Our empirical research certainly corroborates these findings. This is not to say that
switching between the two roles is impossible for CSOs. Especially large and professionalised
groups that provide important information or expertise to IOs87 may be in the position to work
within such bodies while pursuing public campaigns on the same issue. The role-conflict
becomes irresolvable, however, for CSOs that contest the institutions of public governance as
24
a whole, as evidenced in the ‘50 Years is Enough’ campaign against the World Bank and the
IMF, or the protest against the WTO. These organisations or social movements cannot consult
credibly with the IOs that they claim should be dismantled. These findings can be related back
to the theoretical literature on civil society and democracy. In a seminal article, Hendriks
argues that organised civil society has a dual role to play in conceptions of deliberative
democracy88. In what she calls micro-conceptions, civil society is directly involved in
decision-making procedures. In macro-conceptions, civil society is supposed to contest
political decisions and political power in public, thus acting as a counterweight to the state. As
our research has shown, this core distinction, which was developed originally in the domestic
political context, seems equally applicable and useful in the context of international politics
and risk regulation.
CONCLUSION
In this paper we have distinguished two normatively important functions of civil society
participation in international governance. Firstly, participation may enhance the democratic
accountability of international organisations, in the sense that it may help citizens to regain
control over international governance and to hold decision-makers publicly to account. In this
context, CSOs act as watchdogs and creators of a public sphere. They monitor political
developments and act as transmitters and translators of highly specialised information, thus
creating a link with the global citizenry. They may also provide the global audience with
critical counter-expertise to challenge IOs and governments. Public criticism and contestation
of policies thus creates public accountability, urging decision-makers to explain and justify
their choices. Secondly, civil society participation may improve the quality of decisions by
introducing views and arguments from the global constituency that otherwise would be
neglected. In this case they act as deliberators who seek to persuade IO staff and
governmental delegates, usually in smaller settings of the committee type.
25
In the second half of this paper we have applied this analytical distinction to the case
of participatory institutions in biotechnology regulation at the European and global level. The
empirical investigation has shown that not all procedures established by IOs deliver the
expected benefits. The EC seeks epistemic benefits but imposes restraints that, in effect,
exclude non-scientific arguments and expertise, which, paradoxically, appear to be the crucial
asset of civil society. Interestingly, the EC procedures that fail to provide for epistemic
engagement inadvertently enhance public accountability because decision-making processes
are exposed to public scrutiny here. The WTO seeks public accountability and debate but the
closure of its intergovernmental decision-making process still precludes such external
scrutiny. At the global level, we identified two additional access point of the epistemic type ─
standard-setting in the Codex Alimentarius Commission and interventions in the WTO
dispute settlement process. However, in Codex there are asymmetries between business and
general-interest CSOs, along with a lack of responsiveness on the governmental side. In WTO
dispute settlement, the arguments provided by CSOs have been, in effect, pushed aside, as our
study of the Biotech case has shown.
Two more general conclusions follow. Firstly, if policy-makers aim to improve
European and global governance through civil society participation they need to define what
exactly new or revised participatory institutions are supposed to achieve. Participatory
procedures intended to maximise epistemic gains need to be sheltered against status
asymmetries and the marginalisation of civil society views. No limits on the admissible type
of arguments should be set. If this is not the case, participatory procedures may still contribute
to public accountability and control, but we should stress that this is a different goal.
Secondly, academic theorists and policy-makers alike should acknowledge more openly the
limits of CSO involvement. Expecting CSOs to function simultaneously as watchdogs and
deliberators may be exaggerated. There are trade-offs between the two tasks that would
require them to strike a delicate balance between cooperation and critical detachment.
26
1 Michael Zürn, “Global Governance and Legitimacy Problems”, Government and Opposition, Vol. 39, No. 2 (2004), pp. 260–287.
2 See Rodger A. Payne and Nayef Samhat, Democratizing Global Politics: Discourse, Norms, International Regimes, and Political
Community (Albany, NY: State University of New York Press, 2004).
Jan Art Scholte, “Civil Society and Democratically Accountable Global Governance”, Government and Opposition, Vol. 39, No. 2
(2004), pp. 211–233; Stijn Smismans, Law, Legitimacy and European Governance: Functional Participation in Social Regulation
(Oxford: Oxford University Press, 2004).
3 Paul Magnette, “Democracy in the European Union: Why and How Combine Representation and Participation?”, in S. Smismans
(ed.), Civil Society And Legitimate European Governance (Cheltenham: Edward Elgar, 2006).
4 Chadwick Alger, “The Emerging Roles of NGOs in the UN System: From Article 71 to a People's Millennium Assembly”, Global
Governance, Vol. 8, No. 1 (2002), pp. 93–117.
5 Jan Art Scholte, “The IMF and Civil Society: An Interim Progress Report”, in M. Edwards and J. Gaventa (eds.), Global Citizen
Action (Boulder, CO: Lynne Rienner, 2001), pp. 87–104.
6 Steve Charnovitz, “Participation of Nongovernmental Organizations in the World Trade Organization”, University of Pennsylvania
Journal of International Economic Law, Vol. 17, No. 1 (1996), pp. 331–357; Daniel C. Esty, “The World Trade Organization's
Legitimacy Crisis”, World Trade Review, Vol. 1, No. 1 (2002), pp. 7–22.
7 The official title of the document known as the Cardoso report is “We the Peoples: Civil Society, the United Nations and
Global Governance: Report of the Panel of Eminent Persons on United Nations–Civil Society Relations”, UN Doc. A/58/817, 11
June 2004. The panel that drafted it was chaired by Fernando Henrique Cardoso, the former president of Brazil.
8 Peter Willetts, “The Cardoso Report on the UN and Civil Society: Functionalism, Global Corporatism or Global Democracy?”,
Global Governance, Vol. 12, No. 3 (2006), pp. 305–324.
9 For useful discussions of this question see also Gabriele Abels, “Citizen Involvement in Public Policy-Making: does it improve
democratic legitimacy and accountability? The Case of PTA.”, Interdisciplinary Information Sciences, Vol. 13, No. 1 (2007), pp.
103–117: 103); Beate Kohler-Koch, “ The Organization of Interests and Democracy in the European Union”, in Beate Kohler-Koch
and Berthold Rittberger (eds.), Debating the Democratic Legitimacy of the European Union (Lanham, MD: Rowman & Littlefield,
2007); Scholte, Civil Society and Democratically Accountable Global Governance, op. cit.
10 Bruce Ackerman and James S. Fishkin, Deliberation Day (New Haven, CT: Yale University Press, 2004).
11 Gregor Dürrenberger et al., “Integrated Assessment Focus Groups: Bridging the Gap between Science and Policy?”, Science and
Public Policy, Vol. 26, No. 5 (1999), pp. 341–349.
12 Colin Finney, “Implementing a Citizen-based Deliberative Process on the Internet: the Buckinghamshire Health Authority
Electronic Citizen Jury in the UK”, Science and Public Policy, Vol. 27, No. 1 (2000), pp. 45–64.
13 Corinna Fischer et al., “Science Shops in Europe: the Public as Stakeholder”, Science and Public Policy, Vol. 31, No. 3 (2004),
pp. 199–211.
14 Gene Rowe and J.G. Gammack, “Promises and Perils of Electronic Public Engagement”, Science and Public Policy, Vol. 31, No.
1 (2004), pp. 39–54.
15 Zürn, op. cit.
16 Robert O. Keohane, “The Contingent Legitimacy of Multilateralism”, GARNET Working Paper 09/06 (University of Warwick,
2006), p. 3.
17 Sheila Jasanoff, “Contested Boundaries in Policy-relevant Science”, Social Studies of Science, Vol. 17, No. 2 (1987), pp. 231–256;
Simon Joss and Sergio Bellucci (eds.), Participatory Technology Assessment. European Perspectives (London: Centre for the Study
of Democracy, University of Westminster, 2002).
18 For example, Charnovitz, op. cit.; Daniel C. Esty, “Non-governmental Organizations at the World Trade Organization:
Cooperation, Competition, or Exclusion”, Journal of International Economic Law, Vol. 1, No. 1 (1998), pp. 123–147; Daniel C. Esty,
The World Trade Organization's Legitimacy Crisis, op. cit.; Joseph S. Nye, “Globalization's Democratic Deficit. How to Make
27
International Institutions More Accountable”, Foreign Affairs, Vol. 80, No. 4 (2001), pp. 2–6; Scholte, Civil Society and
Democratically Accountable Global Governance, op. cit.
19 Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, (Cambridge, MA:
MIT Press, 1996), p. 367.
20 See section on the European setting below.
21 Michael W. Dowdle, “Public Accountability: Conceptual, Historical, and Epistemic Mappings”, in M. W. Dowdle (ed.), Public
Accountability: Designs, Dilemmas and Experiences (Cambridge: Cambridge University Press, 2006), p. 3.
22 Mark Bovens, “Analyzing and Assessing Public Accountability: A Conceptual Framework”, European Governance Papers
(EUROGOV), No. C-06-01 (2006).
23 David Held and Mathias Koenig-Archibugi., “Introduction”, in D. Held and M. Koenig-Archibugi (eds.), Global Governance and
Public Accountability (Oxford: Blackwell, 2005), pp. 1–7.
24 Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004).
25 Christopher Lord, A Democratic Audit of the European Union (Basingstoke: Palgrave Macmillan, 2004), p. 195.
26 Richard Mulgan, “Accountability: An Ever Expanding Concept?”, Public Administration, Vol. 78, No. 3 (2000), pp. 555–573.
27 Scholte, Civil Society and Democratically Accountable Global Governance, cit. op., pp. 219/20.
28 Marlies Glasius, “Expertise in the Cause of Justice: Global Civil Society Influence on the Statute for an International Criminal
Court”, in M. Glasius, M. Kaldor and H. Anheier (eds.), Global Civil Society (Oxford: Oxford University Press, 2002), p. 150.
29 Bernhard Peters, Die Integration moderner Gesellschaften (Frankfurt/Main: Suhrkamp, 1993), p. 348.
30 John Uhr, “Redesigning Accountability”, Australian Quarterly, Vol. 65, No. 2 (1993), p.1–16.
31 Thomas F. Gieryn, “The Boundaries of Science”, in S. Jasanoff et al. (eds.), Handbook of Science and Technology Studies
(London: Sage, 1995).
32 Angela Liberatore and Silvio Funtowicz, “‘Democratising’ Expertise and ‘Expertising’ Democracy: What Does This Mean and
Why Bother?”, Science and Public Policy, Vol. 30, No. 3 (2003), pp. 146–150.
33 Ulrich Beck, World Risk Society (Cambridge: Polity, 1999).
34 Brian Wynne, Risk Management and Hazardous Waste (New York: Springer, 1987).
35 Amy Gutmann and Dennis Thompson, Democracy and Disagreement: Why Moral Conflict Cannot Be Avoided in Politics, and
What should Be Done About It (Cambridge: The Belknap Press of Harvard University Press, 1996).
36 Maeve Cooke, “Five Arguments for Deliberative Democracy”, Comparative Political Studies, Vol. 48. No. 5 (2000), p. 948.
37 Anthony McGrew and Paola Robotti, Why Adapting? Just Adopt It! The Role of Deliberation in the Governance of International
Accounting Standards, paper presented at the Annual Convention of the International Studies Association, San Diego, 2006, p. 8.
38 Gutmann and Thompson, op. cit.
39 Jaye Ellis, “International Regimes and the Legitimacy of Rules. A Discourse-Ethical Approach”, Alternatives, Vol. 27, No. 3
(2002), p. 292;
Nicole Deitelhoff and Harald Müller, „Theoretical Paradise – Empirically Lost? Arguing with Habermas”, Review of International
Studies, Vol. 31, No. 1, pp.167–179.
40 Thomas Bernauer, Genes, Trade and Regulation: The Seeds of Conflict in Food Biotechnology (Princeton: Princeton University
Press, 2003).
41 In 2003 three exporters (from United States, Canada and Argentina) of agricultural and food products containing GMOs, filed
complaints under the WTO dispute settlement mechanism against the EC’s alleged moratorium on the approval of GMOs during the
period of October 1998 to August 2003, as well as against some of the EC Member states’ national ban on GMOs and GM foods. In
2006, the World Trade Organization (WTO) panel on the EC-Biotech dispute issued its official report, European Communities —
Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293, Panel Report circulated
on Sep. 29, 2006, http://www.wto.org/english/news_e/news06_e/291r_e.htm (accessed 18 July 2008). Several legal, social and
ethical concerns linked this dispute remain to be addressed.
42 David Vogel, The New Politics of Risk Regulation in Europe (London: London School of Economics and Political Science, 2001);
Susana Borras, “Legitimate Governance of Risk at the EU Level? The Case of Genetically Modified Organisms”, Technological
Forecasting and Social Change, Vol. 73, No.1 (2006), pp. 61–75.
28
43 See “White Paper on Food Safety”, COM (1999) 719 Final; “Science, Society and the Citizen in Europe. Working Document”
SEC(2000)1973; Report of the working group “Democratising expertise and establishing scientific reference systems”, 2 July 2001,
available at http://ec.europa.eu/governance/areas/group2/report_en.pdf (accessed 14 July 2008).
44 Gabriele Abels, “The Long and Winding Road from Asilomar to Brussels: Science, Politics and the Public in Biotechnology
Regulation”, Science as Culture, Vol. 14, No. 4 (2005), p. 348.
45 Mark A. Pollack and Gregory C. Shaffer, “Biotechnology: the Next Transatlantic Trade War?”, The Washington Quarterly, Vol.
23, No. 4 (2000), pp. 41–54.
46 Les Levidow et al., “European Union Regulation of Agri-biotechnology: Precautionary Links between Science, Expertise and
Policy”, Science and Public Policy, Vol. 32, No. 4 (2005), pp. 261–276.
47 The EFSA is an independent scientific body, established by European Parliament and Council Regulation 178/2002/EC of 28
January 2002. Its task is to meet the demand for sound and independent scientific advice to the Commission. In particular the
EFSA’s scientific GMO Panel deals with questions of genetically modified organisms as defined in Directive 18/2001/EC
(regulating deliberate release of GMOs into the environment) and 1829/2003/EC (regulating GM food and feed).
48 Jon Elster, „Deliberation and Constitution Making”, in J. Elster (ed.) Deliberative Democracy (Cambridge: Cambridge University
Press, 1998); James Fishkin, Democracy and Deliberation: New Directions for Democratic Reform (New Haven, CT: Yale
University Press, 1991).
49 Thomas O. McGarity, “Public Participation in Risk Regulation”, RISK: Health, Safety & Environment, Vol. 1 (1990), pp. 103–
130.
50 Consiglio dei Diritti Genetici, Analisi delle osservazioni del pubblico alle notifiche presentate secondo la direttiva 2001/18/CE
(Rome 2005).
51
for example C/NL/04/01, insect resistant cotton, events 281-24-263 and 3006-210-23.
52 Alphons Bora has called this a structural coupling of science and law, which has produced a techno-scientific normative system
that rigidly defines the legitimate objects of discussion, the specific definition of risk and its societal acceptability; Alfons Bora,
„Grenzen der Partizipation? Risikoentscheidungen und Öffentlichkeitsbeteiligung im Recht“, Zeitschrift für Rechtssoziologie, Vol.
15, No. 2 (1994), pp. 126–152.
53 Friends of the Earth Europe, Throwing Caution to the Wind. A Review of the EFSA and its Work on Genetically Modified Foods
and Crops (http://www.foeeurope.org/GMOs/publications/EFSAreport.pdf, 2004, accessed on 21.10.2007).
54 Andreas Dür and Dirk De Bièvre, “Inclusion without Influence? NGOs in European Trade Policy”, Journal of Public Policy, Vol.
27, No. 1 (2007), pp. 79–101; Dawid Friedrich, “Democratic Aspiration Meets Political Reality: Participation of Organized Civil
Society in Selected European Policy Processes”, in J. Steffek et al. (eds.), Civil Society Participation in European and Global
Governance: A Cure for the Democratic Deficit? (Basingstoke: Palgrave Macmillan, 2007), pp. 140-165.
Pierre-Benoit Joly and Gérald Assouline, Assessing Debate and Participative Technology in Europe, Final Report (Grenoble: INRA,
2001).
55 13 Week Dietary Subchronic Comparison Study with MON 863 Corn in Rats Preceded by a 1-Week Baseline Food Consumption
Determination with PMI Certified Rodent Diet #5002 (OECD Protocol 408), Covance Study No. 6103-293, issued 17 December
2002.
56 Oberverwaltungsgericht für das Land Nordrhein-Westfalen, 8. Senat, Beschluss vom 20.Juni 2005, Az: 8 B 940/05.
57 The WTO guidelines for relations with non-state actors were established by a 1996 General Council decision, see WTO Doc.
WT/L/162, 23 July 1996, paragraph VI.
58 Ibid.
59 Ibid.
60 Robert O. Keohane and Joseph S. Nye, “The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy”, in
R. B. Porter, S. Pierre, A. Subramanian and A. B. Zampetti (eds.), Efficiency, Equity, and Legitimacy (Washington, D.C.: Brookings
Institution Press, 2001), pp. 264–294.
61 Marc Williams and Lucy Ford, “The World Trade Organization, Social Movements and Global Environmental Management”,
Environmental Politics, Vol. 8, No. 1 (1999), pp. 268–289.
29
62
Jens Steffek and Ulrike Ehling, “Civil Society Participation at the Margins: the Case of WTO”, in J. Steffek, C. Kissling and P.
Nanz (eds.), Civil Society Participation in European and Global Governance: a Cure for the Democratic Deficit? (Basingstoke:
Palgrave Macmillan), pp. 95–115.
63 Jona Razzaque, “Transparency and Participation of Civil Society in International Institutions Related to Biotechnology”, in S.
Thoyer and B. Martimort-Asso (eds.), Participation for Sustainability in Trade (Aldershot: Ashgate, 2007), pp. 137–160.
64 See Codex Alimentarius Commission, Strategic Framework 2003–2007, paragraph 16, available at
http://www.fao.org/DOCREP/004/Y2361e/y2361e00.htm (accessed 8 February 2007).
65 Ibid., paragraph 17.
66 Michael A. Livermore, “Authority and Legitimacy in Global Governance: Deliberation, Institutional Differentiation, and the
Codex Alimentarius”, New York University Law Review, Vol. 81, No. 2 (2006), p. 781.
67 Leslie Sklair, “Democracy and the Transnational Capitalist Class”, Annals of the American Academy of Political and Social
Science, Vol. 581, No. 1 (2002), p. 150;
Razzaque, op. cit., pp. 154/55.
68 Thorsten Hüller and Matthias L. Maier, “Fixing the Codex? Global Food-Safety Governance under Review”, in C. Joerges and E.U. Petersmann (eds.), Constitutionalism, Multilevel Trade Governance and Social Regulation (Oxford: Hart Publishing, 2006), p.
280.
69 In 2005, hearings were opened to the public for the first time in the Continued suspension of obligations in the EC Hormones
dispute. Seats for a closed circuit broadcast of the panels’ hearings in a separate viewing room were granted to the public and WTO
members, see the Communication from the chairman, WTO Doc. WT/DS320/8 and WT/DS321/8, 2 August 2005. So far, however,
this has not become a general practice.
70 Robyn Eckersley, “A Green Public Sphere in the WTO?: The Amicus Curiae Interventions in the Transatlantic Biotech Dispute”,
European Journal of International Relations, Vol. 13, No. 3 (2007), pp. 329–356.
71 Petros C. Mavroidis, “Amicus Curiae Briefs before the WTO: Much Ado About Nothing”, in A. v. Bogdandy, P. C. Mavroidis and
Y. Mény (eds.), European Integration and International Coordination. Studies in Transnational Economic Law in Honour of Claus
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72 Laurence Boisson de Chazournes and Makane M. Mbengue, “GMOs and Trade: Issues at Stake in the EC Biotech Dispute”,
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73 See European Communities – Measures Affecting the Approval and Marketing of Biotech Products, WTO Docs. WT/DS291
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74 For the briefs, see http://www.trade-environment.org/page/theme/tewto/biotechcase.htm (accessed 10 July 2008).
75 The panellists stated that “in rendering our decision, we did not find it necessary to take the amicus curiae briefs into account.”
Source: WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R, paragraph 7.11.
76 See WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R, paragraphs 6.183-6.196
77 WTO Doc. WT/DS291/R, WT/DS292/R, WT/DS293/R, paragraph 6.196.
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80 Kerstin Martens, NGOs and the United Nations: Institutionalization, Professionalization and Adaptation (Basingstoke: Palgrave
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81 Sabine Saurugger, “The Professionalisation of Interest Representation: a Problem for the Participation of Civil Society in EU
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82 Marina S. Ottaway, “Corporatism Goes Global”, Global Governance, Vol. 7, No. 3 (2001), pp. 265–293.
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85 Kerstin Martens, “Non-governmental Organisations as Corporatist Mediator? An Analysis of NGOs in the UNESCO System”,
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86 Justin Greenwood and Darren Halpin, The Public Governance of Interest Groups in the European Union: Does Regulating
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87 Kal Raustiala, “States, NGOs, and International Environmental Institutions”, International Studies Quarterly, Vol. 41, No. 4
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88 Carolyn Hendriks, “Integrated Deliberation: Reconciling Civil Society's Dual Role in Deliberative Democracy”, Political Studies,
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