THERE are now more opportunities within the provisions of IEL, for non-State actors to engage.
This was called for in Agenda 21, of the UN Conference on Environment and Development (UNCED), held in Rio de Janeiro, Brazil, on June 3-14 1992.
Section III of Agenda 21 provides for the strengthening role of major groups, but is found formally enshrined in numerous treaties, including the 1992 Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention), held in Paris, France, on September 22 1992, which came into force on March 25 1998; the 1992 UN Framework Convention on Climate Change (UNFCCC), held in New York, NY, the US, on May 9 1992, which came into force March 21 1994; and the 1998 UN Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention), held in Aarhus, Denmark, on June 25 1998, and came in force October 30 2001,
More than ever before, environmental and human rights NGOs combine significant professional expertise with stronger financial backing.
Along with more economically powerful corporations, they engage in the processes of law and norm creation on the international stage through lobbying, agenda-setting and petitioning.
However, it must be acknowledged that both corporations and NGOs can, and often do, also influence decision-making that affects the environment through non-formal means.
In this category too, it can be observed that where non-State actors become involved, within the permitted opportunities that are provided for by specific regimes, they tend to reinforce the existing compartmentalisation of International Environmental Law, as they are inevitably operating within the confines of businesses, consumers and, at times, governments themselves.
These can involve corporate actors, NGOs or the two working in tandem on NSMD initiatives.
Examples include the standards of the AccountAbility 1 000 standards; the standards developed by the International Organization for Standardization (ISO); the certification system of the Forest Stewardship Council (FSC); the Carbon Disclosure Project (CDP); the Global Reporting Initiative (GRI); and Walmart’s Sustainability Index.
These approaches represent ad-hoc ‘governance from below’ responses that gained considerable momentum, but are regarded by some as ‘too timid a remedy’ for current global challenges that require robust and orchestrated responses from the majority of States.
However, regardless of their overall potential for impact, NSMD initiatives represent a particular type of leadership which is pertinent to the development of ‘macro’ legal analysis within scholarship relating to Global Environmental Governance.
This is because some of the NSMD schemes showed an understanding that encompassed not only the failings of environmental law, but also the importance of other legal disciplines, such as trade law and corporate law, to environmental outcomes.
For example, the Forest Stewardship Council (FSC) certification scheme recognises that the absence of trade law that would halt trade in certain types of timber and responds with measures that de facto create trade rules for participants of the scheme.
Similarly, it can be argued that the Global Reporting Initiative (GRI), accounting standards for corporations respond to limitations within corporate law relating to national accounting standards and require participants to produce sets of comprehensive environmental accounts.
In the cases of both the FSC certification scheme and the GRI accounting standards, the initiatives look beyond an approach that corresponds with a simple ‘micro’ legal analysis of the environmental law to consider the root causes within other areas of law that are directly associated with the specific harms to the environment concerned.
Clearly non-State actors play vital roles in the development of GEG.
However, much of their activity takes place within the compartmentalised components of GEG and, as such, they often reinforce that compartmentalisation through their practices and through the ‘micro’ legal analysis that they undertake to engage in those processes. By the same token, there are important exceptions to this, such as certain NSMD schemes, which arguably play an important role in leading the international community towards cross-cutting approaches to legal analysis and which bear some of the characteristics of ‘macro’ legal analysis and could be applied within GEG in numerous ways.
Some contend that the international community is at a crucial juncture in the development of GEG. For example, M. Ivanova states that, “…today’s debates on reforming GEG stand at a cross-roads strikingly reminiscent of the one facing the system’s original architects in the lead-up to the 1972 Stockholm Conference”.
The recognition of the need for further reform has been voiced by the leadership of UNEP. Achim Steiner, the former executive director of UNEP, has emphasised the evolving role of the UN and specifically the need for further reforms to ensure that UNEP continues to adapt to the challenges that the international community faces.
Whilst this article has focused on governance at the global level, ‘macro’ legal analysis can be used to identify the legal architecture that plays a part in the relationships between industrial projects and the environment and affected communities.
In that context, ‘macro’ legal analysis might promote an examination of a project with regard to, inter alia, property law, the rights of indigenous groups, corporate law, banking law, investment law, administrative law, tax law, human rights law as well as environmental law.
Although ‘macro’ legal analysis could be applied to a wide variety of challenges within the field of GEG, it could possibly have particular usefulness in helping to address problems that, in part at least, are exacerbated through the shortcomings of extant approaches under the Westphalian System of international law. Climate change is representative of that category as it is a particularly complex problem and an extremely difficult challenge for the international community to confront.
It is, therefore, possible that ‘macro’ legal analysis could prove to be a useful tool to inform the development of the legal and policy approaches that are designed to tackle it.
If ‘macro’ legal analysis can play an important role in the way that we understand and develop GEG, there are major questions regarding the way that we train the lawyers who will become the discipline’s architects and advisers.
Arguably, the skills they require are not the same as the skills that practitioners need to develop.
It can, therefore, be concluded that such an approach is not consistent with the orthodox methods that lawyers commonly adopt and, therefore, can seem to be either counter-intuitive or simply outside of the scope of the role that they should undertake. However, the challenges that GEG present to the international community are extraordinary ones that do not always respond to traditional methods of legal problems-solving. Therefore, it is necessary for the legal community to further the development of logical and evidence-based strategies.
This may include adopting methods such as ‘macro’ legal analysis to carry out functions for which ‘micro’ legal analysis is less well suited.
Questions for Zimbabwe to consider relating to global environmental governance include: How would it be possible to determine what the desired outcome for the environment should be, based on scientific evidence?
How would this type of analysis be linked to other ‘non-legal’ policy considerations in the development of renewed strategies for global environmental governance – GEG?
Dr Tony M. Monda BSc, DVM, DPVM, is currently conducting Veterinary epidemiology, and Agro-economic research in Zimbabwe. E-mail: tonym.MONDA@gmail.com