IN the field of environmental protection, the terms ‘environmental governance’ and ‘global environmental governance’ are used for a variety of purposes, which can lead to ambiguity.
The term ‘global environmental governance’ (GEG) has been used to describe the different regimes of International Environmental Law (IEL), along with the functioning of associated international institutions, including those of the UN.
These include the World Trade Organisation (WTO), with the objective of developing ‘free trade’; the United Nations Environment Programme (UNEP) and the United Nations Environment Assembly (UNEA), charged with the co-ordination of the work of the international community in relation to the environment; and the UN Development Programme (UNDP), which primarily has the objective of assisting with the co-ordination of social and economic development of developing countries.
Each of these branches of international governance developed their own specific objectives and sub-sets of international law.
Non-State actors, which refer to corporations and NGOs, undertake important roles in the development of GEG and the relationship that this has with associated legal analysis.
Their involvement with GEG includes the broad categories of:
‘Governance’ roles in the protection of the environment (sometimes referred to as ‘delegated authority);
Influencing the development of international environmental laws (IEL);
Developing non-legally binding environmental standards (sometimes referred to as ‘non-State market-driven’ (NSMD) initiatives that are often said to fall under the more general heading of ‘transnational environmental regimes’.
These different types of interactions, however, have not developed in a co-ordinated manner and are not always easily classified.
As such, the distinctions between them are often blurred.
It can also be noted that the roles of non-State actors within GEG are heavily debated owing to the question of whether their involvement supports or undermines the roles and authority of State actors.
‘Non-State actors’, which refer to corporations and NGOs, undertake important role in the development of GEG and the relationship that this has with associated legal analysis.
Alongside these non-State actors, some sections of civil society have also been active in developing alternative methods of governance that include non-legally binding environmental controls, such as certification schemes and quality standards
It has become common for the rules and institutional arrangements that relate to specific sectors of environmental protection to be discussed in terms of ‘governance’ and is now commonly prefixed by the words ‘earth’, ‘forest’, ‘climate’, ‘groundwater’, ‘fisheries’, ‘biodiversity’, ‘energy’ and ‘ocean’, amongst others.
Since the 1990s, it is also used in different academic disciplines, including economics, political science, business and finance, as well as law.
Moreover, it is used to describe certain forms of regulatory oversight within industry; thus the terms ‘corporate’ and ‘financial’ governance have become part of common phraseology within the commercial world.
Today, the term ‘global environmental governance’ is often used when discussing potential reform of UN institutions.
As such, it has been viewed as a term linked with change and one that can be used by policymakers when considering potential solutions for global environmental problems.
Additionally, it is now common for the rules and institutional arrangements that relate to specific sectors of environmental protection to be discussed in terms of ‘governance’, which, used in its broadest sense, embraces three components:
It refers to the State-centred systems of national and international law that relate directly to environmental protection, that is, ‘environmental law’ and ‘international environmental law’ (IEL), respectively;
It refers to those State-centred systems of national and international law which are not primarily directed towards the protection of the environment but which, nonetheless, have an impact upon it;
It includes non-legally binding regulatory initiatives by non-State actors (sometimes in partnership with State actors) that develop norms and practices with a view to protecting the environment, which individuals, businesses and communities may consider they are obliged to comply with for a variety of reasons.
While legal practitioners were once expected to have the skills and capacity to deal with a wide variety of different types of legal problems, the current culture demands that they specialise.
This has proved effective as it allows lawyers to focus on specific areas of law to meet particular needs.
However, the legal compartmentalisation that occurred at the national level is mirrored in public international law.
Public international law is not only treated as a separate discipline to national law but is made up of numerous compartmentalised sub-disciplines.
It has evolved through different institutions being tasked to achieve discrete goals relating to aspects of concern to the international community.
Examples of these sub-systems include the UN Environment Programme (UNEP), the UN Environment Assembly (UNEA) and WTO — each has developed specific objectives and sub-sets of international law.
This sometimes leads to competing priorities between international institutions.
In addition, individual treaty regimes can overlap or conflict, not only with each other but also with other branches of public international law.
For example, the International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA), the Convention on Biological diversity (CBD) and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) contain a number of overlapping and inconsistent provisions related to the intellectual property rights associated with genetic resources.
This situation can create concern, confusion and uncertainty, quite apart from a counter-productive duplication of effort and attrition between institutions.
A good example of the manner in which this can impact global environmental governance is found in the General Agreement on Tariffs and Trade (GATT).
It includes provisions designed to discourage protectionism through trade barriers.
Potentially, environmental laws can amount to trade barriers and, therefore, under the GATT, States are required to ensure that any environmental measures do not fall foul of the ‘trade disciplines’.
However, while the GATT is designed to achieve the objective of trade liberalisation, it has not been designed to concurrently ensure that specific environmental standards are achieved and maintained by its members.
Daniel Esty made the observation in his 1994 book Greening the GATT, that: “… its rules only permit a decision that particular environmental standards ‘excessively’ intrude on trade prerogatives.
The GATT provides no comparable process for declaring a nation’s economic activities (and related trade) to be environmentally ‘inadequate’ – and, therefore, an unfair basis for trade.
Thus, the GATT fails to satisfactorily accommodate environmental protection in defining the ground rules for trade.”
Over the last decades, while the WTO made efforts to take environmental issues into account, the overall objectives of the regime have not changed and this has fuelled continued concern.
Similarly, within the field of international investment law, agreements that relate inter-alia to taxes and royalty payments or labour legislation – which can encompass provisions related to environmental regulation, have led to concerns that they prioritise the interests of investors over those of host States or environmental protection.
African leaders and experts often reiterate this sentiment which they endorsed during the UN Economic Commission for Africa (ECA), Conference of African Ministers of Finance, in Addis Ababa, Ethiopia.
It was jointly organised by the Commission and the AU to address Africa’s climate change challenges.
The African experts argued that Africa contributes little to global warming, and that emissions coming from the activities of multi-national companies should not be blamed on the beneficiaries of such investments but on the host countries.
Dr Tony Monda BSc, DVM, DPVM, is currently conducting Veterinary Epidemiology, and Agro-economic research in Zimbabwe.
For views and comments, email: tonym.MONDA@gmail.com