International Institutions and Global Environmental Governance

Abstract

Global environmental governance serves to address two inter-related governance issues: common interest problems and the South-North context. Addressing common interest problems, including the protection of the environment, requires cooperative action, common rules and standards, and continuous decision-making among relevant actors. (1) The South-North context, under the influence of the principle of common but differentiated responsibilities, moreover, largely accounts for the complexity of the institutional framework within which global environmental governance unfolds. In terms of the South-North context, most of the rules and standards are adopted within MEAs (2) but other institutions, in particular, funds managed by the World Bank, such as the Global Environment Facility, administer part of their implementation in the South. (3) International institutions involved in global environmental governance both participate in the development of common rules and standards and in decision-making in individual situations. (4) The latter, in particular, through determining the eligibility for funding of projects to be executed in developing and economy in transition states and through compliance procedures. It is, moreover, noteworthy that most of the rules, standards, and decisions adopted within the framework of global environmental governance are legally not binding, even if they affect the rights and duties of states and other actors. For example, by recommending that trade in certain products be restricted. Both CITES (i.e., Convention on International Trade in Endangered Species of Wild Fauna and Flora) notifications and decisions of noncompliance taken within the framework of the Montreal Protocol on the Protection of the Ozone Layer provide relevant illustrations. A CITES notification, for instance, led the Court of Justice of the European Communities to conclude that importing goods that had been the object of such a notification was illegal in the European Union, with consequences for the traders involved. (5) In engaging in global environmental governance, international institutions through normative development and decision-making in individual situations have moved beyond the interstate paradigm, central to the traditional doctrine of international law. In so doing a body of law has emerged that shares characteristics with national public law, and administrative law in particular, (6) rather than national private law, a body of law with which traditional interstate law shares many traits. (7) As a result contemporary IEL, but also international law in general, can be characterized as a legal system that is undergoing systemic change and in which two normative patterns exist side by side and interact with each other: what I have referred to elsewhere as the interstate normative pattern and the common interest normative pattern. (8) In the interstate, or traditional, pattern of international law formal state consent plays a pivotal role; it brings into being rules and standards of international law and legitimizes those rules and standards or their application in individual situations. (9) In the common interest pattern, states no longer formally consent to many, if not most, of the rules and standards developed and their application in individual situations. Instead, in the case of global environmental governance, states formally consent to the treaties that establish the relevant treaty based bodies and UN specialized agencies. I suggest that, by implication, state consent at most can be regarded as states consenting to a process of normative development, the outcome of which is unknown when that consent is given. In the process, state consent has lost the function of legitimizing the rules and standards that result from the process of normative development and their application in individual situations. As a result, other sources of legitimacy have to be identified. One source of legitimacy, I suggest, is to be found in ensuring the accountability of international institutions and more particularly by focusing on the legitimacy of the decision-making processes and procedures used by these institutions. …