Global environmental governance:Part Two …problem of fragmentation


THE legal compartmentalisation, sometimes known as ‘fragmentation’, that is evident within public international law as a whole, also exists within the different subsets of international law and is clearly evident within the international environmental law (IEL).  

It manifests in the large number of individual International Environmental Laws treaties and has led to concern over ‘treaty congestion’. As a result of some of the negative manifestations of the compartmentalised nature of public international law and its associated institutions, the term ‘fragmentation’ is frequently used pejoratively.  

In recent years, however, a growing corpus of academics and practitioners have argued that ‘fragmentation’ within public international law should not necessarily be regarded in a negative way. 

It can be argued that problems related to fragmentation within public international law are not completely intractable as the Vienna Convention on the Law of Treaties (VCLT) can assist, a certain degree of convergence may take place with the potential for overlap management. 

The compartmentalised nature of the wide variety of legal and institutional law, ultimately make up Global Environmental Governance (GEG). When considering Global Environmental Governance (GEG), lawyers are faced with a wide range of issues to contend with. 

Naturally there is considerable focus upon the potential and limitations of the international environmental law (IEL).  

However, by the same token, there has been an increased awareness of the effects that other areas of law have upon the environment; for example, company law, trade law, banking law, investment law, human rights law and constitutional law can all have significant, albeit indirect, impacts upon IEL

At the same time, there has been a renewed focus on the fragmented manner in which institutions have developed at the international level and the manner in which they sometimes create, or respond to, competing priorities within the international community.

 Additionally, the future of existing international institutions that are charged with administering or developing environmental law treaties has been questioned.  

For example, the future of the UN Environment Assembly (UNEA) raised significant issues related to the role and authority that it would ultimately assume.

According to legal experts, the fluid range of what are sometimes disconnected factors, means that it can be difficult to define with precision the constituent elements of ‘global environmental governance’.  

Consequently, it can be hard to identify effective and efficient strategies for reform. Amongst other challenges, lawyers working in this field face the task of creating coherent and balanced strategies for the development of the legal and institutional architecture that is required to meet the exigencies of environmental governance in the future.  

The diverse range of factors that are integral to Global Environmental Governance (GEG) raises questions about the type of legal examination that has sufficient breadth and clarity to produce such strategies; for both to evaluate existing GEG and to develop coherent strategies for its further development. 

Lawyers argue that existing approaches to legal analysis within the field tend to correspond with the type of legal analysis prevalent in other fields of legal scholarship, which are usually characterised by the examination of very specific aspects of law.  

This approach often provides only part of the picture where GEG is concerned.  

The ways in which both ‘State’ and ‘non-State’ actors have generally compartmentalised the multifarious components of global environmental governance to correspond to the approach that lawyers often adopt in their analyses of the issues.

The potential negative effects of adopting an analysis that does not take into account all of the relevant legal and quasi-legal components that can affect the outcomes of GEG can have potential implications for training lawyers in the future. 

Legal training should include a grounding in the wide range of legal disciplines that impact GEG, including an understanding of the roles of relevant international institutions as well as the different types of quasi-legal initiatives undertaken by non-State actors. 

Such training would sensitise aspiring scholars and policy advisers to many of the legal factors that are integral to determining environmental outcomes 

‘Macro’ legal analysis entails the consideration of a range of different areas of law and associated institutions; it assists in building a broader understanding of the causes of environmental degradation from a legal standpoint.  

As such, it has the potential to place a fresh perspective on some of the ‘root causes’ or ‘drivers’ of environmental degradation that, in themselves, are ensconced within legal regimes.

By studying the effect of a range of different legal regimes operating in unison, it is possible to understand the ways in which they affect, support or contradict each other and in some instances, simply cancel each other out. 

Our understanding of the law is largely based on ‘micro’ legal analyses and how that colours our understanding of global environmental governance and its potential development and the extent to which they correspond with the compartmentalisation of environmental law and associated institutions in practice. 

Both ‘micro’ and ‘macro’ legal analyses have their strengths and weaknesses. As ‘micro’ legal analysis is required to develop the type of understanding of law that is required for legal practice, it has understandably dominated and become deeply embedded at all levels.  

However, a healthy balance should be sought between ‘micro’ and ‘macro’ legal analysis. Naturally, ‘macro’ legal analysis would not provide the same level of detail as ‘micro’ legal analysis, but on the other hand, ‘micro’ legal analysis will inevitably not provide the more synoptic insights that ‘macro’ legal analysis could offer.  

The two forms of analysis should, therefore, inform and strengthen each other in a mutually reinforcing relationship that ultimately would have the capacity to provide the best possible guidance for law and policymakers.

The roles of non-State actors within GEG is heavily debated owing to the question of whether their involvement supports or undermines the roles and authority of State actors while the actions and initiatives of non-State actors within these categories support and reinforce that compartmentalisation of the law or operate in a manner that looks further by taking into account other laws which do not relate to the environment but which ultimately impact it. 

But it must be borne in mind that, for centuries, monarchs granted Charters to non-State organisations to carry out a variety of different objectives. 

This tendency has continued in the field of environmental protection and other areas of governance. For example, the Royal Society for the Protection of Birds (RSPB) is an NGO that developed in the 19th Century in Britain and which regularly assists the UK Government with specialised knowledge and research.

Also, the US Agency for International Development (USAID), the branch of the US Government that provides civilian aid in foreign countries, has a policy of working with and through non-governmental organisations (NGOs).  

Another example is TRAFFIC, which is mandated to produce a comprehensive analytical report of the Elephant Trade Information System (ETIS) data for the Convention on Trade in Endangered Species (CITES) of Wild Fauna and Flora held in Washington, on March 3 1972, which came in force on October 7 1977.  

Where non-State actors fill gaps in expertise or undertake specific tasks within specific international environmental law regimes, their work corresponds to the compartmentalised nature of those regimes and have a tendency to reinforce them.  

There are those instances in which NGOs and corporate actors engage in influencing the processes that develop both hard and soft International Environmental Law under the auspices of those regimes themselves. 

Dr Tony M. Monda BSc, DVM, DPVM, is currently conducting veterinary epidemiology,and agro-economic research in Zimbabwe.


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