Role-players in the international environmental process

3.1 The overall picture

The 2007 Conference of the Parties of the UN Framework Convention on Climate Change had more than 10 000 participants. The word ‘participants’ is used advis-edly because, when the present author served on the United States negotiating team in the late 1990s, a joke was that, out of the many thousands of people attending climate change conferences, only about a hundred actually did anything; and by the phrase, ‘did anything’, was meant ‘participated actively in the negotiations’. Many of the rest of the people at the meetings were, in our view, merely ‘hangers-on’; what they did while there – if anything – was something of a mystery.

41 See the 1972 London Convention, supra note 19; and the its 1996 Protocol (Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, London, 17 November 1996, in force 24 March 2006, 36 International Legal Materials (2006) 1) which is in the process of replac-ing, not amendreplac-ing, the parent Convention.

42 Brundtland, Our Common Future, supra note 34, at 43.

43 Agenda 21, UN Conference on Environment and Development, Rio de Janeiro, 13 June 1992, UN Doc.

A/CONF.151/26/Rev.1 (1992), available at <http://www.un.org/esa/dsd/agenda21/>.

Our sense of self-importance, however, reflected a narrow view of the international legal process – that intergovernmental negotiations are at the center of the conference universe and that we, as government negotiators, were masters of that domain. Both assumptions are, of course, wrong. In fact, international conferences (much less the international environmental process more generally) are multi-ring circuses. They are trade shows, public relations and educational arenas, and quasi-academic confer-ences. Intergovernmental negotiations occupy only a single ring. Moreover, even within that ring, government negotiators do not operate freely, being subject to a tight set of constraints emanating from a wide array of actors.

3.2 States

As the term ‘inter-national’ suggests, international environmental law operates large-ly as a system of law between states. Although it aims ultimatelarge-ly to change the private behavior that is responsible for most environmental problems, its rules apply prima-rily to states, and few of these rules create rights or duties for companies, individuals or other non-state actors.

Understanding state behavior is, of course, complex, but a useful starting point is to think of states – like individuals – as being rational actors, seeking to advance their own (state) interests. Thus, in transboundary pollution cases, downstream states typically favor strong action because they are the ones suffering the ill effects, while upstream states have an interest in continuing to pollute because the environmental damage is an externality. Similarly, with respect to global pollution problems, states have an interest in undertaking collective action, yet each individual state has an interest in free-riding, so long as it can do so without incurring a penalty.

The assumption that states have identifiable, stable interests that they pursue ration-ally is incomplete in two ways, however. Firstly, states are motivated not only by self-interest but also by normative considerations about what might be the right or proper course; that is, they respond to what social scientists have termed a ‘logic of appropriateness’ as well as a ‘logic of consequences’.⁴⁴ Secondly, states are complex entities with many constituent parts, often with very different interests and beliefs of their own. As a result, it cannot be assumed that national interests are a given.

Instead, interests may often be contested and contingent, being the outcome of do-mestic political processes which involve complex interactions between different sub-state actors: rival agencies within executive branches; checks and balances between the executive, legislative and judicial branches; lobbying by business and mental groups; and public opinion more generally. A state’s position on an environ-mental issue such as climate change, the treatment of genetically-modified organ-isms, or whaling, emerges from the complex interaction of these sub-state actors

44 James G. March and Johan P. Olsen, Rediscovering Institutions: The Organizational Basis of Politics (The Free Press, 1989).

– environmental groups raising concerns and creating a demand for public regula-tion, businesses lobbying officials in the different branches and levels of government, and government actors themselves interacting within strata of bureaucratic politics.

3.3 International institutions

In addition to states, international institutions play important roles within the inter-national environmental process. Although interinter-national environmental law lacks an institution with general governance functions, like the World Trade Organization,⁴⁵ a multitude of institutions play significant roles, some global and others regional or bilateral; some focused on a particular issue area such as forestry or whaling and oth-ers with a broader mandate; some scientific in orientation and othoth-ers focused on capacity-building or policy-development more generally.

In analyzing international institutions, they can be arrayed along a spectrum, based on their degree of autonomy from states. At one extreme, some international institu-tions serve merely as intergovernmental forums; while others operate as autonomous actors. International law uses the concept of ‘legal personality’ to denote the point along this spectrum at which an international institution is considered sufficiently autonomous to be said to have a separate legal existence and to be able to act in its own right for certain legal purposes – asserting claims, entering into treaties, and exercising other implied powers that are necessary for it to fulfill its functions.

The international institution with the broadest competence over environmental is-sues is the United Nations Environment Programme (UNEP). In contrast to UN specialized agencies such as the World Health Organization,⁴⁶ UNEP lacks a separate treaty basis and instead derives its authority from the UN General Assembly (which created it). UNEP is a comparatively small institution, with a small budget. It plays a largely informational and catalytic role, helping to spur the negotiation of treaties on biological diversity, hazardous wastes, and ozone depletion, and providing secre-tariat services.

Perhaps the most distinctive types of international environmental institutions are those established by individual multilateral environmental agreements. Virtually every treaty creates a conference of the parties (CoP) which meets on a regular basis and is open to all parties. The decision-making authority and procedures of CoPs will vary from treaty to treaty. Although none has general legislative authority, some have limited authority (usually by a two-thirds or three-quarters majority vote) to adopt new rules that bind all of the treaty parties except those that file a specific objection. In addition, multilateral environmental agreements also typically provide for a permanent secretariat – in some instances, an existing institution such as UNEP

45 See <http://www.wto.org>.

46 See <http://www.who.int>.

and in other instances a new one – and some establish specialized bodies to provide scientific advice or to consider issues relating to implementation and compliance.

3.4 Non-governmental organizations (NGOs)

Generally, non-governmental actors exercise influence in one of two ways: either by persuading government decision-makers; or by changing their calculus of costs and benefits. Sometimes, NGOs might exercise influence by providing information, policy analysis, and scientific and technical expertise. The Red List of Threatened Animals of the World Conservation Union (IUCN),⁴⁷ which is a sui generis organi-zation composed of both government agencies and non-governmental groups, for example, is an important source of scientific information about which animal species are declining, threatened with extinction or vulnerable.

Environmental NGOs also seek to exert influence by claiming to represent the ‘pub-lic’ interest, rather than private interests. At times, these claims may be dubious; but, even so, significant segments of populations appear to accept the image of NGOs as disinterested defenders of the environment, thereby furnishing the NGOs with le-gitimacy. Organizations with large memberships also claim to represent their mem-bers, who may represent significant portions of populations. Finally, a few of the larger NGOs do have considerable financial resources at their disposal.

Most commonly, NGOs exercise their influence with respect to national govern-ments. They lobby their government to support a policy internationally or to imple-ment its international obligations domestically, or they work in alliance with NGOs in other countries to influence foreign states. NGOs seek to influence national gov-ernments not only at home, through the domestic political process, but also within international forums. Most major multilateral environmental negotiation sessions are now attended by numerous NGOs, which monitor their own governments’ posi-tions and statements to guard against potential backsliding; and also work closely with sympathetic delegations from other countries. In some issue areas where NGO influence is high, such as whaling, a state may invite a few of its NGOs to participate on its national delegation as observers.

Typically, NGOs take part in international institutions as observers rather than as full participants. In a few cases, however, NGOs have attained quasi-official status internationally. The aforementioned IUCN is the most prominent such example. It initiated the negotiations toward the CITES, prepared the first draft of the agree-ment, and continues to be a key source of information about which species should be protected. Further, it now serves as host of the Ramsar Wetlands Convention⁴⁸ secretariat.

47 See <http://www.iucn.org> generally; and <http://www.iucnredlist.org/> specifically.

48 Convention on Wetlands of International Importance especially as Waterfowl Habitat, Ramsar, 2

Febru-Finally, NGOs may try to influence businesses through publicity and consumer pres-sure. In some cases, NGOs have relied on public confrontation. A prominent exam-ple was the Greenpeace campaign against the sinking of the Brent Spar oil platform by Shell.⁴⁹ Increasingly, however, NGOs have sought to work in cooperation with industry to develop voluntary codes of conduct. A leading sectoral example of this is the Forest Stewardship Council (FSC),⁵⁰ which NGOs initiated in response to the failure at the 1992 Rio Conference to adopt a binding forest agreement.

3.5 The business sector

Businesses can play two roles in the international environmental process. Firstly, the business sector can be the object of international regulation – not directly, since in-ternational law applies only to states, but indirectly as the ultimate regulatory target.

Secondly, the business sector can be a subject, actively seeking to shape the develop-ment and impledevelop-mentation of international environdevelop-mental law in either positive or negative ways.

Sometimes companies adopt environmental measures proactively, even before gov-ernment regulations are adopted. For example, a number of major companies, in-cluding British Petroleum, General Electric, and DuPont, have adopted their own, voluntary greenhouse gas emissions targets. Some apparently do so because they believe that a green image will help them in the marketplace; the thinking being that consumers will reward them through their purchasing decisions. Others may believe that regulation is inevitable and that beginning to adjust now will lower their costs over the long run, or that their actions might help shape the governmental regula-tions which eventually ensue. Finally, some may reflect the environmental values of the company’s leadership. The environmental initiatives of Wal-Mart, for example, seem to be attributable in part to a desire to counteract criticisms of the company’s labour practices, thereby improving its image in the marketplace; and in part to the environmental values of the Walton family.