Legitimating non-state actor engagement in global climate governance

Abstract

Our study examines how international organizations seek to legitimate non-state actor engagement to elite audiences, using the secretariat of the UN Framework Convention on Climate Change as an illustrative case. We employ the prism of legitimation, a process whereby international organizations justify their institutional designs, decision-making procedures and policy outcomes with a view to enhancing legitimacy. We unpack legitimation along two vectors: normative and operational. Normative legitimation seeks to justify a particular norm, while operational legitimation explains how the organization meets a norm—or why it fails to do so. The latter constitutes a blind spot in existing literature. Based on a qualitative analysis of official documents and interviews with climate secretariat officials, we present two findings. First, the secretariat has sought to justify the need for non-state actor engagement by accentuating its significance for procedural and performance legitimacy. Second, in response to contestation over its engagement practices, the secretariat advances operational claims. It has underscored multiple constraints to its agency, the tension between ever-rising audience demands and a finite supply of engagement opportunities, and a unique organizational environment. Our analysis highlights the need to recognize the complex operational realities international organizations face when making normative demands or gauging the appropriateness of global governance.

Global governance is no longer the preserve of states and international organizations (IOs). The opening up of IOs to a diverse array of non-state actors (NSAs)¹ has been observed across issue areas.² That said, NSA participation in global governance remains contentious. While some scholars commend its democratic potential and contribution to tackling global challenges, others note its perverse effects such as undermining decision-making efficiency.³ Its operationalization is also contested, inter alia for inequalities in participation⁴ and the accountability of powerful non-governmental and corporate actors.⁵ With the participatory norm becoming broadly accepted in contemporary global governance, it is imperative that IOs explain any failures to adequately implement it. As stated by Tallberg and colleagues, ‘whereas before, arguments were needed to justify the involvement of non-governmental actors in governance processes, now we face a reversal, so the pressure is there to justify the exclusion of non-state actors’.⁶

In this article, we focus our attention on one of the world's largest and most important IOs, in which the engagement of NSAs has become highly contested:⁷ the United Nations Framework Convention on Climate Change (UNFCCC). The UNFCCC was created at the 1992 Earth Summit in Rio de Janeiro to address anthropogenic climate change. More than three decades later, it remains the central institution in global climate governance. Its centrality, combined with the ever growing list of issues discussed in its framework⁸ and the increasing awareness of climate change as a planetary crisis threatening the survival of humankind,⁹ has subjected the UNFCCC to unprecedented levels of scrutiny. The UNFCCC is made up of two distinct actors that are often conflated—the 198 member state parties to the UNFCCC and the secretariat that helps them to implement their collective decisions. Our study focuses on the secretariat and examines its rhetorical response to contestation over the organization's NSA engagement.

We embed our analysis in the broad literature on IO legitimation, defined as a process whereby IOs attempt to ‘justify their identities, interests, practices, or institutional designs’.¹⁰ We unpack IO legitimation along two vectors: normative and operational. Whereas normative legitimation seeks to justify a norm, operational legitimation explains how an IO meets a norm or why it fails to do so. We argue that operational legitimation is a blind spot in the current literature, which focuses on the invocation of norms rather than how they are implemented in practice. Also, upon expanding the analysis to the operational dimension, we find that factors motivating IOs to engage in legitimation, as elaborated by Lenz and Söderbaum in their ‘agents, audiences and environments’ (AAE) framework,¹¹ equally shape the substance of IO operational claim-making. Empirically, we rely on a purpose-built corpus of UNFCCC texts throughout the organization's history that discuss its NSA engagement. We supplement that with interviews with secretariat officials, to go beyond public discourse and behind the curtain of an organization whose subservience to member states limits its ability to act and speak freely.

The article is organized as follows. We start by situating our research with a view to accenting its central contributions. We follow this with a general discussion about how NSA engagement relates to IO legitimacy and a brief contextualization about the need for and controversies around NSA engagement in the UNFCCC. Then, we explain our data collection and analysis. In the empirical sections, we first show how the UNFCCC secretariat addressed questions over the normativity of NSA engagement, before presenting how it responded to criticism of the way it is operationalized in practice. We conclude by discussing the main findings and implications.

Situating the research

Our research on IO legitimation of NSA engagement lies at the intersection of two strands of scholarship: the role of NSAs in global governance, and IO legitimation. While building on the increasingly granular debates on these topics, our analysis differs in notable ways. First, we go beyond the debates on whether and how NSA engagement contributes to global governance, and we direct attention towards IO justifications on this matter. NSA engagement in global governance, albeit generally advocated by the policy and academic communities,¹² has met with contestation. Detractors argue that the inclusion of NSAs does not necessarily improve procedural correctness but may further complicate global governance processes.¹³ Advocates, while highlighting the benefits of granting access to NSAs, recognize the need to address outstanding issues that have discounted the democratizing potential of such practice.¹⁴ Seen this way, both advocates and detractors voice concerns over IOs' engagement with NSAs, along different vectors, hence the need for IOs to legitimate.

Second, we shift the focus of IO legitimacy research from legitimacy beliefs to the processes of legitimation. Recent scholarship has provided rich insights on elites' legitimacy beliefs towards global IOs.¹⁵ It has further compared these beliefs with those held by citizens and investigated how elites can shape citizens' legitimacy beliefs.¹⁶ This article builds on this body of research but departs from it by shifting the analytical focus from the holders of legitimacy beliefs to the object of these beliefs, namely IOs. In this regard, we follow Lenz and Söderbaum in moving the discussion ‘beyond the focus on the normative demands voiced by relevant audiences’ towards ‘a procedurally oriented view that examines how IOs actively build their legitimacy’.¹⁷

Third, we problematize the ‘assumed coherence of IOs’¹⁸ and draw attention to their complex nature and positioning. IOs can be conceptualized as collectives of their member states and as IO bureaucracies comprising international civil servants and experts.¹⁹ The distinction between the two is highly significant, with implications for (the study of) IO legitimation. Member states are the principals who create IO bureaucracies to act as their agents. An IO bureaucracy's capacity for autonomous action is contingent on member states, who set mandates to define the scope for action, provide necessary resources and scrutinize its action.²⁰ This gives rise to a dynamic that can inhibit IO bureaucracies' capacity to act and speak freely. Therefore, political and resource constraints are factors that IO bureaucracies might be expected to invoke to justify perceived faults and flaws. The UNFCCC secretariat represents an acute case of subservience to member states, effectively operating ‘in a straitjacket’.²¹ This makes it a particularly interesting case for studying IO legitimation.

Fourth, we highlight a blind spot in existing IO legitimation literature: a lack of attention to IOs' claims that explain their (contested) operationalization of norms. In our view, current research on IO legitimation tends to focus on legitimacy claims that foreground the congruence between IO governance and prevailing norms. This is shown by how scholars define IO legitimation. For example, Lenz and Söderbaum construe IO discursive legitimation as essentially entailing ‘the making of public legitimacy claims’, which are public propositions that ‘an IO conforms to or embodies a specific norm’.²² Similarly, Schmidtke and colleagues understand IO legitimation as ‘generalizable norm-based justifications of an IO's authority’.²³ Such an understanding is widely shared.²⁴ Without denying the centrality of normative justifications in IO legitimation discourse, we contend that operational claims,²⁵ which explain IOs' (non-)implementation of norms, are just as relevant. In addition to justifying the appropriateness of a norm, IOs need to explain how they actually implement the norm and why they sometimes fail to measure up to it. As seen in our study, an IO may account for the discrepancy between actual practices and normative benchmarks by advancing claims that stress the constraints to its agency, the tension between audience demands and organizational supply, and the unique environment in which it operates. To capture these claims, we distinguish between two vectors of IO legitimation: normative and operational, with the former discussing the appropriateness of an IO governance norm and the latter that of its operationalization (see table 1).

NSA engagement and IO legitimacy

NSA engagement is widely considered as strengthening IO legitimacy, commonly understood as ‘beliefs of audiences that an IO's authority is appropriately exercised’.²⁶ This is not only because NSAs are part of IO audiences that grant or withdraw legitimacy. More substantively, NSAs can be ‘policy experts, service providers, compliance watchdogs and stakeholder representatives’.²⁷ A case in point is the role of NSAs in global health governance. Here, they have become increasingly important, complementing the work of the World Health Organization by acting as advocates for global health issues, providing significant funding, contributing technical expertise for the development of evidence-based policies and practices, and assisting in the implementation of community-based health programmes and delivery of healthcare services.

NSA engagement, if done properly, can boost the two ideal types of IO legitimacy: procedural and performance. Procedural legitimacy concerns the input side, which focuses on the quality of IO policy processes and is commonly assessed against normative ideals such as participation, deliberation, transparency and accountability.²⁸ By contrast, performance legitimacy concerns output, which directs attention to the effectiveness of IO rules and policies and is often based on an IO's ability to solve problems and deliver material benefits.²⁹

NSA engagement can boost IO procedural legitimacy. IOs are often criticized on the procedural side. The argument is that IOs ‘are too removed from individual citizens, lack transparency in their decision making, and are not subject to accountability mechanisms—all features that clash with democratic norms’.³⁰ A common solution on the part of IOs is to grant access to NSAs.³¹ Procedural fairness prescribes the inclusion of all those affected in decision-making. Arbitrarily excluding NSAs can foment discontent and entrench a sense of disenfranchisement. Also, the inclusion of NSAs can strengthen transparency and accountability. NSAs have a strong incentive to push IOs to open up the policy process. This allows NSAs to monitor IOs and hold them accountable.³²

Equally, NSA engagement can bolster IO performance by contributing to policy development, implementation and monitoring. NSAs can provide valuable information and expertise that IOs cannot sufficiently or effectively generate from within.³³ Including NSAs in the policy process is thus a cost-efficient way to tap into that knowledge reservoir for developing better policy. Just as importantly, NSAs can contribute to IO policy implementation.³⁴ Moreover, NSAs often exert pressure on states and monitor their compliance with international agreements, thus boosting IOs' policy effectiveness.

Its significance for IO legitimacy notwithstanding, NSA engagement in global governance is far from a friction-free matter. The arguments about NSA engagement strengthening IO legitimacy can be easily countered. With regard to the democratizing potential of NSAs, NSAs themselves are ‘undemocratic, unelected, and unaccountable’.³⁵ Some NSAs represent parochial interests³⁶ and some are under-resourced and under-represented.³⁷ The claim about NSA engagement enhancing IO performance is also debatable. NSAs have explicit interests, some of which may not align with the pursuit of the greater common good. Using their access to intergovernmental negotiations and policy-making, some NSAs, such as corporate lobbyists, try to further their narrow interests at the expense of other groups, leading to the development of suboptimal policy.³⁸

Another problem is that potential trade-offs exist between NSA engagement on the procedural and performance fronts. The involvement of NSAs is key to the democratic quality of IO policy-making, but can also ‘increase transaction costs of global governance’ because it may ‘reduce the potential for achieving consensus and solving problems in a timely manner’.³⁹ Also, bringing NSAs into formal global governance can potentially undermine their ‘contestatory potential’.⁴⁰ To the extent that NSAs want to exercise influence over the development and implementation of IO rules and policies, they may opt for a more cooperative approach by ‘working within the system’,⁴¹ thus becoming less likely to voice criticism and act as watchdogs of transparency and accountability (an argument more applicable to some NSAs than to others).

That said, with participatory governance becoming increasingly accepted and mainstreamed in contemporary global governance, contestation over the normativity of NSA engagement is in decline.⁴² Many of the counterarguments outlined above do not contest NSA engagement as a proper practice, but call into question how IOs implement it. That is, the bone of contention is not so much whether IOs should engage NSAs (though that debate still exists) but rather, the proper way to do it. Therefore, we can disentangle two types of contestation: one concerns the normativity of NSA engagement and the other whether it is implemented properly. In response to the first type of contestation, IOs need to explain why NSA engagement is desirable or appropriate, which we consider as normative legitimation. Such accounts are intended mainly for audiences voicing concerns about the negative, unintended consequences of NSA engagement. To address the second type of contestation, IOs need to justify why their actual NSA engagement practices, notably those contested elements, are the way they are, and why some audience demands cannot be met. These operational claims primarily target audiences pushing for more NSA engagement.

NSA engagement in the UNFCCC

NSA engagement is of particular import for the UNFCCC, for at least two reasons. The growing edifice of global climate governance notwithstanding, the UNFCCC remains the focal point. Its singular importance, coupled with the issue salience of climate change, has made the UNFCCC a centre of gravity for NSAs. Rising interest among NSAs is confirmed by the linear increase in the number and diversity of NSAs (wanting to be) admitted as observers⁴³ so that they can apply to attend formal UNFCCC sessions, especially the annual Conferences of the Parties (COPs). Participating in COPs gives NSAs opportunities to interact with party delegates and other NSAs, to follow the negotiations, deliver statements to plenary meetings, and organize exhibits, side events, media briefings and demonstrations. Apart from COPs, there are other participation channels throughout the year. NSAs can make submissions in response to parties' calls, attend intersessional and regional meetings, join workshops and technical meetings, and interact with presiding officers and the secretariat.

Beyond their inputs to intergovernmental negotiations, NSAs have increasingly been viewed as indispensable for implementing global climate policy, especially since the adoption of the Paris Agreement at COP21 in December 2015. The ‘new logic’ of nationally determined contributions—or commitments—under the Paris Agreement⁴⁴ has created an ‘emissions gap’ whereby government pledges fall short of what is needed to achieve the goals set out in the agreement. NSAs such as cities and businesses are major carbon emitters and are thus key to plugging this gap. Equally important, the Paris Agreement ushered in a new context for NSA engagement. It formally recognized the contribution of ‘non-party stakeholders’ (i.e. NSAs) and institutionalized the ‘action agenda’—a space dedicated to showcasing and scaling up real-world climate action, and a hub for NSA engagement.⁴⁵ Relatedly, around the time of the Paris Agreement, the impetus for the UNFCCC secretariat's NSA engagement shifted from being ‘demand-led’, with NSAs ‘really pushing to become more involved and in a way [to which] the secretariat was happy to acquiesce’, to ‘supply-led’, to the extent that the secretariat saw the value of harnessing NSA action to demonstrate ‘this groundswell of support and critical mass, [thereby] pushing governments to greater action’.⁴⁶

One recent example of the ways in which the UNFCCC has cooperated with NSAs to enhance its legitimacy and governance capacity is through the latter's involvement in the Global Stocktake (GST). The GST is a process established by the Paris Agreement to periodically take stock of collective progress in achieving the agreement's goals. NSAs were invited to provide inputs throughout the process and were heavily involved in the technical dialogues that assessed progress and identified opportunities for enhanced implementation. Their participation contributed to the GST's aspiration to be ‘open, inclusive [and] transparent’⁴⁷ and also fed in valuable knowledge and expertise.⁴⁸

Given NSAs' rising interest and importance in the UNFCCC, engaging them is widely considered both desirable and necessary. This has indeed translated into a ‘high degree of access, inclusion, and participation’ of NSAs in the UNFCCC,⁴⁹ especially compared with other intergovernmental IOs. That said, NSA engagement in the UNFCCC remains a lightning rod for controversy.⁵⁰ There has been sustained contestation over the issue between parties, between parties and NGOs, and between NGO constituencies.⁵¹ Some parties are reticent, worried that the participation of NSAs impinges on the intergovernmental nature of the UNFCCC and undermines its decision-making efficiency;⁵² other parties and NGOs lament the paucity of participation opportunities and the persistence of representational deficits.⁵³ Furthermore, there has been considerable tension between different NGO groups, especially between environmental NGOs and business NGOs.⁵⁴ Sustained controversy, punctuated by episodes of intense contestation (e.g. in the wake of COP15 in Copenhagen and COP26 in Glasgow), has compelled the secretariat to legitimate its NSA engagement.

Data collection and analysis

Our analysis rests upon a purpose-built corpus of UNFCCC texts and interviews with top-level secretariat officials.⁵⁵ We collected 123 relevant documents, dating back to 1997, from the UNFCCC archives on the agenda item which deals with NSA participation in the negotiation process.⁵⁶ Documents relating to NSA engagement that were excluded from our analysis include those relating to new initiatives designed to encourage NSAs to implement climate action, including the Global Climate Action agenda, the Marrakech Partnership and the Race to Zero campaign. These fall outside the intergovernmental core of the organization and, as such, are subject to lower levels of contestation.

Additionally, between December 2022 and September 2023 we conducted interviews with five top-level secretariat officials. Given the subservient nature of the secretariat and the resultant limitations on its public position-taking, these interviews were designed to probe the results of our document analysis by asking questions about the underlying motivations and dynamics driving the secretariat's engagement with NSAs. Interviewees had between six and 24 years of experience with the secretariat; they included two individuals in senior leadership positions,⁵⁷ two officials with responsibility for managing NSA participation and one with responsibility for managing the negotiation process.

With respect to our data analysis, it is important to clarify three points. First, in line with our distinction between the UNFCCC as an intergovernmental platform and an IO bureaucracy, our analysis distinguishes between three types of UNFCCC documentation: 1) submissions by parties and NSAs that state their positions and demands; 2) negotiated texts or decisions issued in the name of the UNFCCC that reflect the collective will of parties; and 3) texts authored by the secretariat that represent the position of the secretariat as an international bureaucracy. We rely only on the secretariat-authored texts for extracting and studying legitimacy claims, while submissions from parties and NSAs, alongside synthesis reports published by the secretariat, are used for identifying demands of these two types of elite audiences.

Second, our analysis focuses on the time-frame after 2009, when COP15 was held in Copenhagen, although it refers, where appropriate, to discussion before that. This focus is justified by the significance of COP15 for the discussion over observer engagement in the UNFCCC. In the early years of the UNFCCC, observer engagement was not high on the agenda for the organization and parties, because observers played a more limited role in the intergovernmental regime.⁵⁸ Our interviewees who were active during the early years of the UNFCCC had little to say on this issue,⁵⁹ which was considered a logistical matter until it became a question of political sensitivity around the time of COP15.⁶⁰ The Copenhagen conference in 2009 saw an unprecedented number of civil society groups registering to participate, yet many were left ‘out in the cold’,⁶¹ resulting in a barrage of criticism being directed towards the secretariat. In its wake, the issue of NSA engagement was cast into sharp relief.

Third, our analysis gives particular attention to documentation relating to three key events on NSA engagement organized by the secretariat since 2009. Specifically, the secretariat launched a review process of observer engagement after the COPs in Copenhagen (2009) and Glasgow (2021) and organized a workshop in 2017 to discuss ways for enhancing observer engagement following the adoption of the Paris Agreement in December 2015. For these events, both parties and observers were invited to make submissions, identify problems and propose solutions. The secretariat synthesized submissions received, responded to key issues and concerns raised, and assessed the feasibility of proposals made. These texts are particularly useful for studying the demands of parties and NSAs and the responses of the secretariat. The documentary and interview data we collected, together with the rich literature about NSA participation in global climate governance and personal experience within the UNFCCC,⁶² have allowed us to develop a holistic yet textured understanding of the politics of (de)legitimation around NSA engagement in global climate governance.

The empirical analysis follows our distinction between normative and operational legitimation. Substantively, we consider it normative legitimation when the secretariat stresses the general need for NSA engagement, often by highlighting and idealizing its value to the UNFCCC process. By contrast, operational legitimation refers to the secretariat's efforts to account for its actual NSA engagement practice, not least those heavily contested aspects (e.g. limited participation opportunities).

On the need for NSA engagement: ‘key to procedural and performance legitimacy’

The UNFCCC secretariat recognizes the important roles of NSAs in global climate governance. At the same time, the UNFCCC is an intergovernmental regime. In other words, it is ‘party-driven’. Parties decide how and to what extent to engage NSAs. Some parties, not least those that already work closely with NSAs in their domestic policy processes, stress the value of greater NSA participation in the UNFCCC; others express concerns over the perverse effects on the negotiation and implementation of international climate policy.⁶³ Although the secretariat ‘tried to make things more liberal’,⁶⁴ strengthening NSA participation has been impeded by a small number of ‘parties who were actively worried about it’.⁶⁵

After gridlock developed in multilateral negotiations at Copenhagen, some parties openly questioned the value of inviting observers to the UNFCCC.⁶⁶ Even among those parties in favour of greater NSA participation, some noted the need to balance participation and transparency against concerns over efficiency and effectiveness. In a written submission for the 2010 review process, Belgium, on behalf of the European Union, stressed that it wished ‘to reaffirm its support for a maximum of transparency of the UNFCCC process, while preserving its effectiveness’.⁶⁷

In response, the secretariat consistently highlighted the value of NSA engagement, not least for the democratic credentials of the UNFCCC. For example, when commenting on the COP16 draft decisions whereby parties agreed to further engage civil society in national climate decision-making and in the UNFCCC, the head of the secretariat was quoted as saying, ‘Faster and more effective action on climate change requires governments to welcome the fresh ideas and active participation of all sides of civil society … This underlines the commitment of the negotiations to remain open, transparent and engaged.’⁶⁸ This excerpt is illustrative of how the secretariat makes the case for NSA participation. Civil society's ‘fresh ideas’ and ‘active participation’ are important for developing effective climate policies, and thereby bolster policy effectiveness. Perhaps more importantly, encouraging further NSA participation reinforces the secretariat's commitment to democratic standards such as openness, transparency and deliberation. It should be noted that such framing has been fairly consistent in the secretariat's rhetoric. A 2004 note from the secretariat on promoting civil society participation stated:

The participation of NGOs is a fundamental element of the Convention process. It helps to bring transparency to the workings of a complex intergovernmental process, facilitates inputs from geographically diverse sources and from a wide spectrum of expertise and perspectives, improves popular understanding of the issues, and promotes accountability to the societies served.⁶⁹

The latest review process initiated by the secretariat in 2022 was again premised on an explicit recognition of the significance of NSA engagement for legitimacy. In the concept note prepared for the review process, the secretariat stated emphatically:

Observers bring a wealth of knowledge and expertise to assist Parties in implementing the Convention, Kyoto Protocol and Paris Agreement. Their engagement not only contributes to the acceleration of system transformation towards a 1.5-degree climate resilient world, but it also brings legitimacy to the intergovernmental process.⁷⁰

In addition to questions over the value of NSA engagement in intergovernmental negotiations, certain parties were wary of the impact of NSA action on the implementation of climate policy. That is, the wide range of climate commitments and initiatives from NSAs may undermine the centrality of intergovernmental climate governance under the auspices of the UNFCCC. To illustrate this point, in the lead-up to COP21 in Paris when there was a strong emphasis on galvanizing the groundswell of climate actions, Brazil, China, India and South Africa expressed reservations in a joint statement, stating that initiatives pursued outside the UNFCCC ‘must not distract us here in our efforts to address the challenge of climate change multilaterally under the Convention’.⁷¹ This statement is in line with the four countries' conservative preference in NSA engagement, ‘opting for a model of global governance in which national governments serve as essential gatekeepers to global institutions, and [intergovernmental organizations] remain the preferred venue for negotiation and implementation of international agreements’.⁷²

To counteract these views, the secretariat consistently framed non-state climate action as a complement to the efforts made by parties and as indispensable to the effectiveness of the climate regime. As was stated by the head of the secretariat in 2016: ‘There are many non-Party stakeholders who are already advancing climate action, and its acceleration is required at all levels in all countries and across all issues relating to the implementation of the Convention and the Paris Agreement.’⁷³ Underlining the relevance of NSA engagement to effectiveness is also present in the rhetoric the secretariat used to mobilize non-state climate action. As stated by its chief in 2021, ‘We must re-engage with observers and Non-Party Stakeholders in a unity of purpose … Everyone has a role to play and everyone must be involved.’⁷⁴

On NSA engagement practice: ‘multiple constraints, rising demand, unique environment’

As the number and diversity of observers in the UNFCCC have evolved, so has the practice for engaging them. Despite substantial progress, many issues remain. Leveraging insights from the recent review process and from the synthesis reports prepared by the secretariat on the review process in 2011 and the post-Paris Agreement workshop in 2017, we focus on three major issues frequently identified in NGO submissions and focus group meetings with NGOs: limited access, representational deficits and conflicts of interest.

The first issue concerns the registration quota for observers to attend formal UNFCCC sessions. As discussed earlier, there has been an ever-growing demand among NSAs to attend the COPs. Despite a linear increase in the number of observer participants at the COPs, some NGO groups have repeatedly experienced difficulties in obtaining enough conference badges for their members, resulting in the widespread perception that the secretariat is limiting space for observer participation.⁷⁵ This is complicated further by a lack of predictability over observers' quotas (as they depend on the size of the venue and party delegations), which impedes their planning and preparation.

The second issue relates to the representational deficits and structural inequalities in observer participation. Of particular relevance is the marginalization and disenfranchisement of groups that are disproportionately affected by climate change yet struggle to gain access to the policy process.⁷⁶ Frequently cited examples are Indigenous Peoples, women, farmers and youth, who are both under-resourced and under-represented.⁷⁷ Also, NSA participation remains grossly imbalanced geographically, with observers from the global South being disproportionately under-represented.

A third and particularly contentious issue centres around ‘conflicts of interest’. Observers have been divided on whether the secretariat should differentiate its NSA engagement—specifically, on whether the secretariat should engage business NGOs, most notably those representing fossil interests, in the same way as public-interest NGOs, such as environmental NGOs. The private sector, as defined in the Paris Agreement, is included in the category of non-party stakeholders. Its contributions in terms of emission reductions, finance and technology are widely recognized as indispensable for effective climate action. For some, engagement with businesses and industries is not just about procedural correctness, but also policy effectiveness. For others, this is problematic. The argument underpinning their opposition is that fossil fuel producers and other emissions-intensive industries seek to promote an agenda that is diametrically opposed to the goals of the UNFCCC. In participating in the UNFCCC, they try to unduly influence global climate decision-making.⁷⁸

In response to controversies over these issues, the secretariat has consistently advanced three arguments. First, it invokes a number of constraints to its agency to explain why it is not always able to uphold the participatory norm. Second, it highlights a tension between the linear rise in audience demands and the finite supply of participation opportunities for NSAs. Third, it notes that its engagement practices align with the UN environment in which it is situated, while also emphasizing its unique size and scale within this context.

When considering the drivers of IO legitimation, Lenz and Söderbaum propose three analytical dimensions in their AAE framework. They show convincingly that IO legitimation strategies are shaped by normative pressures originating from IO agents, audiences and environments.⁷⁹ Our analysis of the UNFCCC secretariat's operational legitimacy claims reveal that these three pillars are also relevant for unpacking the substance of IO legitimation. As shown in table 2, each of the three arguments identified is associated with one pillar of the AAE framework.

Multiple constraints

A central claim invokes a variety of constraints to the secretariat's agency which impede its ability to meaningfully engage observers. The first category is resource constraints. The secretariat was keen to note how the increasing number of observers overburdened its limited resources. As its chief stated in 2018, ‘The large number of admitted [observer] organizations has significant resource implications for the secretariat, which are not fully reflected in the current budget’.⁸⁰ As such, the secretariat often communicated to parties on the need for more resources to ‘enable it to facilitate the meaningful participation of NGO observers’, and to flag to parties those demands with budgetary implications.⁸¹ It further attributed the failure to fully address some issues relating to observer participation to the lack of resources. For example, according to the secretariat, large-scale IT deployment to unlock the potential of virtual participation was not possible due to ‘budgetary and resource constraints’.⁸² Officials we interviewed who are still active in the secretariat also refer to resource constraints and the challenge these pose when catering to large numbers of NSAs and managing the diversity between them.⁸³

A second constraint noted in the secretariat's communications relates to its lack of political authority. As noted earlier, the UNFCCC secretariat is an acute case of an organization having to conduct its affairs ‘in a straitjacket’.⁸⁴ This clearly applies to its observer engagement. In this regard, its mandate for agency comes from the Convention and subsequent climate treaties, draft Rules of Procedure, and negotiated decisions,⁸⁵ all of which are, or need to be, agreed upon by parties.⁸⁶ Currently, the secretariat provides inputs to parties on the issue, requests guidance from them on how to proceed, and implements the relevant conclusions. In other words, the secretariat has no decision-making authority on issues relating to NSA engagement in the intergovernmental negotiations. Thus, it is not surprising that the secretariat often noted this significant constraint, notably in response to audience demands that are unlikely to be met in the intergovernmental, consensus-driven negotiation process, such as requests for funding for the participation of developing country observers and greater decision-making rights for Indigenous Peoples.⁸⁷ Secretariat officials were highly sensitive to the limitations to their agency imposed by the intergovernmental nature of the process. As one interviewee noted, ‘the role of the secretariat is to support the Parties for the Parties' process, mainly. So, we rarely push the boundaries of observer engagement unless they are saying, observers are important, tell us what more we can do.’⁸⁸

A third constraint concerns the physical capacity of COP conference venues. It started to figure in the secretariat's communications in the wake of the oversubscribed and poorly managed COP15 at Copenhagen. Since COP16, held in 2010 in Cancún, Mexico, a registration quota system has been introduced, resulting in the capping of quotas for observers (based on the capacity of the conference venue and the size of party delegations). It is now common, in secretariat-authored documents, to find references to the need to take into account ‘the total capacity of the premises and the safety and security of all participants’, as a way to justify the regulation of observer participation through the quota system,⁸⁹ and more generally, limited participation opportunities.⁹⁰

Rising demand, limited supply

Apart from emphasizing constraints to its agency, the secretariat has consistently accentuated the ever-growing audience demand for participation, based primarily on two sets of statistics: the cumulative number of observers that have been admitted to the UNFCCC⁹¹ and the number of registration requests among admitted observers for the COPs.⁹² In particular, the secretariat has noted that the increasing number of observers and their structural diversity present inherent challenges for meaningful observer engagement.

While the number of observers increased slowly but steadily during the UNFCCC's early years, admissions leapt by almost one-third for the much-hyped 2009 Copenhagen conference. Facing heavy criticism over the mishandling of civil society groups at COP15, the secretariat pointed to the surge in observer participation. As it reflected in a report that fed into the 2010 post-mortem on observer engagement: ‘The interest of civil society in the UNFCCC process reached unprecedented levels at COP15’.⁹³ This message was elaborated in a note by the secretariat's chief in 2010:

Interest from civil society reached unprecedented levels during the COP and CMP sessions in Copenhagen, and this involvement is expected to continue. As this engagement from civil society in the UNFCCC process grows, it will also present challenges for the process.⁹⁴

Admissions continued to increase over time, with another large jump in numbers occurring ahead of COP26 in Glasgow—from 2,527 cumulative admitted observers at COP25 to 3,047 at COP26. In response to intense disappointment among NSAs with ‘limited access to engagement opportunities’ in Glasgow, the secretariat again underscored ‘the linear increase in observer participation’.⁹⁵ The essential point is that engagement opportunities, be they badges to attend the COPs, access to meeting rooms, side-event or speaking slots, or time spent in dialogue with party delegates, are a finite commodity. With the volume of observers increasing, ‘the sliver of the engagement opportunities … gets smaller, causing frustrations among observers’.⁹⁶ As the secretariat stated in a 2023 report:

Although the total number of observer participants is rising, the quota for many organizations is decreasing because of the increase in the number of admitted observer organizations. This is creating the perception that the UNFCCC is restricting space for observer participation.⁹⁷

In addition, audiences have become considerably more diverse. The ‘diversification of the type of observer organization and the purpose of participation’, from the secretariat's perspective, further compounds the challenges in engaging NSAs.⁹⁸ Seen this way, a lack of meaningful NSA participation is not a procedural fault, but results from the imperative for a highly inclusive IO to manage the tension between rising demand and limited supply.

Broad alignment, unique context

The third set of justifications centres around the organizational environment in which the UNFCCC operates. It unfolds mainly along two lines. First, the secretariat emphasized that observer engagement in the UNFCCC broadly aligns with the prevailing practice in the UN system. For example, it noted that the UNFCCC's guidelines for NGO participation ‘are in line with the guidelines for participation and practices governing the participation of NGOs at sessions of other organizations’ in the UN system.⁹⁹ In some instances, it went further to highlight the UNFCCC's leadership in NSA engagement.¹⁰⁰

Second, the secretariat invoked the UNFCCC's uniqueness to justify its inability to allow greater NSA participation. As requested by parties, the secretariat regularly reviews NSA engagement practices in other UN bodies and IOs.¹⁰¹ In their submissions, observers also brought attention to practices of other IOs that allow more meaningful NSA engagement.¹⁰² This inevitably creates isomorphic pressure for the UNFCCC to open up further. In response, the secretariat cautioned that ‘the differing contexts (unparalleled size of COPs, the convention articles not referring to civil society, etc.) have often prevented the simple copying of practices elsewhere into the UNFCCC process’.¹⁰³ In particular, it pointed to the huge volume and diversity of observers involved in the UNFCCC. As stressed in the concept note prepared for the review process in 2022, ‘scale and diversity characterize the observer landscape of UNFCCC—no other annual meetings of UN processes attract as many observers as UNFCCC’.¹⁰⁴

Conclusion

Engaging NSAs is a key component of IO governance. In this study, we analyse how IOs justify their NSA engagement to elite audiences, using the UNFCCC as an illustrative case. Leveraging a framework that disentangles IO normative and operational legitimation, we have identified the main arguments that underpin the UNFCCC secretariat's discourse.

Normatively, the secretariat articulated the case for NSA participation in the intergovernmental regime by accentuating its relevance for procedural and performance legitimacy. Operationally, in response to criticism of its actual NSA engagement practices, the secretariat advanced claims foregrounding factors that have increasingly impeded its ability to enhance NSA engagement, namely multiple forms of constraints and the need to manage rising audience demands against a finite supply of engagement opportunities and a unique organizational environment drawing in the largest and most diverse set of NSA participants in the UN system.

Another notable aspect that has emerged from our analysis is that the secretariat has been extremely careful with its rhetoric, effectively avoiding saying anything that may be seen as taking sides or overstepping its mandate. Its exercise of extreme caution was evident on the issue of ‘conflicts of interest’. We found, in our data, instances where the secretariat referenced the issue, yet they amounted to little more than a summary of the divergent views of NGOs. On the one hand, this attests to the secretariat's effort to be impartial and apolitical when facing competing audience demands. On the other, it reflects its limited agentic power. Having been reprimanded in the past by member states for voicing an opinion on a substantive issue over which intergovernmental consensus had not been reached,¹⁰⁵ the secretariat seeks to ensure that any information it publishes is free from political or policy-sensitive implications. This may frustrate audiences that have actively been mobilizing against anti-climate corporate interests, but it befits the characterization of the secretariat ‘making a living in a straitjacket’.¹⁰⁶

In terms of conceptual contribution, our research clearly shows that IO legitimation entails two core elements: the justification of a norm and an explanation of how the IO meets the norm or why it fails to do so. By investigating how the UNFCCC secretariat justifies its NSA engagement, especially at the operational level, we expose and explore the blind spot with respect to operational claims. To further assess and ascertain the added value of the normative/operational distinction in IO legitimation, we invite future research to apply our framework to other cases, examining the legitimation of NSA engagement by other IOs or that of other norms (e.g. transparency or accountability).

Equally, our analysis shows that central dimensions for studying the origins of IO legitimation, as elaborated in the AAE framework, are also relevant for unpacking its substance. The three operational claims found in our study—one focusing on the constraints to IO agency, one on the tension between an ever-growing audience demand and a limited supply of engagement opportunities, and one on the unique organizational environment—unfold broadly along the three dimensions of the AAE framework.

Further, our study yields practically meaningful insights for IO policy-makers. The operational claims we have identified reflect the complex realities facing many IOs, particularly those in which member states predominate and IO bureaucracies are left with very limited autonomy. But unlike normative claims that IOs readily invoke in public communications,¹⁰⁷ operational claims, as seen in the UNFCCC case, are found mostly in highly technical texts that are of little interest to the public. In our view, such realities need to be more actively communicated, not only to elite audiences but also to the public. This may help to clarify what can be realistically demanded or expected of IOs, and more generally, to narrow the salient ‘elite–citizen gap’ in terms of their legitimacy beliefs towards IOs.¹⁰⁸

In the UNFCCC case, our interview analysis reveals that the majority of contestation in this area comes not from elite audiences with extensive experience in the process, but from those with less or little experience, who are flocking to the COPs in growing numbers. To legitimate more effectively vis-à-vis NSAs, the secretariat needs to differentiate between these two audiences and better understand their different motivations, viewpoints, concerns and challenges when trying to participate in the intergovernmental process. It should pay special attention to those that lack familiarity with the conditions of participation and the intergovernmental nature of the process. Efforts have been made to this effect with the most recent review process, which aimed to create a ‘shared understanding’ and a ‘trusting relationship’ with different NSAs.¹⁰⁹ But a practitioner account reflects that it was precisely this failure to distinguish between the two audiences that undermined the effectiveness of the process.¹¹⁰ It is likely that the intense political constraints faced by the secretariat make it reticent to speak out and bolster legitimacy with the broader public, yet this may be exactly what is needed if current trends of contestation and criticism continue.

Footnotes

Author notes