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New Zealand Journal of Environmental Law |
Last Updated: 12 February 2023
55
Global Environmental Governance and the Role of Civil Society Groups
Anja Gerdung*
Civil society groups, foremost non-governmental organisations, have largely increased their activity and influence on global issues in the course of globalisation. Despite this, up to now, global and transnational environmental problems have mainly been approached by means of public international law and thus, states have been the decisive forces within this arena. Arguably, this approach has not always been an effective response to transnational environmental degradation. This article argues that civil society groups can contribute substantially to the development of environmental law, though they have not yet been adequately integrated into the international legal process to make it more effective. It suggests further, that the potential of these groups, outside the formal legal mechanisms, has not been fully realised. As an alternative to the traditional legal approach, the global environmental governance framework allows for the integration of a variety of concepts in order to effect environmental protection, including ‘bottom up’ approaches initiated by civil society. The article advocates for such a multi-layered approach; an approach that takes greater account of the capacity these societal forces have and further, promises more effective protection of the environment.
1. INTRODUCTION
The world faces grave environmental problems that are no longer simply confined within state borders or certain regions, like for example the pollution of rivers, but may be global in nature, such as global warming, i.e. transmigrating political
*Postgraduate student in the Master of Law (LLM) Programme 2004, University of Auckland, New Zealand; DAAD (German Academic Exchange Council) scholar; First State Examination in Law (Martin Luther University, Halle-Wittenberg, Germany). The author is grateful to Associate Professor Dr Klaus Bosselmann for his helpful comments on an earlier version of this article.
borders. Global problems require adequate, thus global, approaches. Development during the last decades has not only served to reveal such environmental problems but also, due to technological development and political changes, allowed new actors, such as transnational corporations and transnational non-governmental organisations, to enter the global arena. How have these new actors been perceived and how have they influenced environmental law and policy? Are present legal channels sufficient to allow these actors to exercise their capacities and functions within global environmental governance? Are there approaches other than legal approaches that these actors can adopt, which better enhance global environmental protection? Approaches of whatever kind are driven by purposes that are underpinned by certain values. This is where a civil ethic comes into play, the importance of which, for good governance, has been confirmed by the Commission on Global Governance (CGG).1 How do global civic ethics influence the role that civil society can take in global environmental governance?
To answer these questions, I will firstly define global environmental governance. Against this backdrop, I then examine the current role of global civil society before turning to its emerging or rather potential role within global environmental governance.
2. WHAT IS “GLOBAL ENVIRONMENTAL GOVERNANCE”?
2.1 Recent Factual Developments Concerning Global Problems and the Role of the State
Development in the aftermath of World War II has accommodated a significant rise in economic transactions. This has lead not only to increased international economic interdependence but also to a dramatic decline in the state of the global environment. By the time of the first environmental conference in Stockholm 1972, it was exclusively states that were involved in tackling international environmental issues, but this was attempted in a piecemeal way by using multilateral agreements (MEAs) to address single problems. The ever-increasing expansion of economic transactions however lead to a build-up of trans-national corporations (TNCs) which, due to their widespread flexibility, can operate to a significant degree independently of the restrictions of national laws. This process, which has been further promoted by intense technological progression that made transport and communication faster and easier, is frequently named “globalisation”. Globalisation has, beyond the oft-perceived confinement to
economic terms, been defined as a ‘dynamic, not necessarily global, process of de-nationalisation in societal, factual and legal terms which leads to a change in the role of the state’.2 This change is not only influenced by TNCs; the rise of the “information age” has also promoted the ability of individuals to communicate globally by means like e-mail networks and other digital telecommunication systems (telephony and facsimile conditions etc.) and thus provided the opportunity for interest groups to get connected and collaborate across boundaries with ease. The global spread of news, not only between individuals but also via huge, not state-controlled media enterprises, has provided the opportunity for private individuals to receive information from sources with different perspectives and thus, generally, improved the basis for informed opinions.
Non-governmental organisations (NGOs) that formerly operated on a national level had to trans-nationalise for two reasons. Firstly, they had to promote their status as pressure groups on the international level as well as nationally since global problems need, inter alia, solutions on a global scale. Secondly, they had to follow the enterprise development of becoming internationally active in order to retain their influence on TNCs.3 This development experienced tremendous intensification as a result of changes in political systems since 1989. The increased interconnectedness caused a growing awareness of the societal and environmental situations in other parts of the world and thus may have increased the feeling of interdependence and solidarity. This, coupled with the increased participation of individuals in politics via interest groups, lead to the question of whether there is a global civil society or even global citizenship.4
Thus, there is increasing activity by private actors in the international sphere. The legal ramifications and form of this change has been perceived differently by legal commentators and other entities.
2.2 Conceptual Perception of these Changes
Undisputedly, recent changes in international environmental law have afforded an opportunity for participation by NGOs to an extent that has been called
e.g. Nigel Dower and John Williams (eds), Global Citizenship (Edinburgh University Press, Edinburgh 2002); Gordon Laxer and Sandra Halperin (eds), Global Civil Society and Its Limits (Palgrave Macmillan, New York 2003); Stefan Hobe, “Global Legal Challenges to Statehood: The Increasingly Important Role of Nongovernmental Organizations”, 5 Ind J of Global Legal Stud 191 (1997).
“historically unparalleled”.5 This has led to suggestions that the role of the sovereign nation-state and the state system is in decline, or even dissolving, and that, by corollary, this has been accompanied by a rise of governance by a global civil society. Others have suggested that the changes in NGO participation do not reduce but strengthen the regulatory powers of the state in international environmental affairs.6 Nation-states will certainly remain the major actors in international law for the foreseeable future.7 Nonetheless, NGOs are now significant players in the formulation, implementation and enforcement of international environmental law even if their power in this respect has been characterised as not significant.8 Also, their influence, in non-legal terms, has increased.
Some socio-political theories have tried to find patterns to explain this change in international relations with a view to re-considering the principle of state sovereignty and answering the question as to whether a new world order is arising. From the variety of theories that include clearly defined theories as well as overlapping schemes, only the following ones shall briefly be mentioned:
This theory is based on the belief that global politics are best understood by studying the nature of relations among states.9 Therefore, the rise of influential non-state actors is generally ignored. This theory is insufficient to explain contemporary developments. The Regime Theory, though being based on Realism goes further by acknowledging the role of non-state actors. It regards regimes as “a multidimensional concept of networks and multilateral legal and political processes that do not substitute the nation-state, but broaden the picture of
Harvard Envtl. L. Rev. 537-86 (1997), 538.
international relations and thus the international legal community.”10 This indicates that communication and interaction can take place both formally and informally, within and outside of international institutions.11 The type of regimes that are formed, depend upon the subject matter.
This approach accepts that the autonomous state cannot perform all the tasks necessary for achieving a good life, which is why the state places greater emphasis on international cooperation, governed to a significant extent by the rule of law, to serve their common interest. It also recognises the importance of non-State actors like NGOs and individuals to international governance. However, the state is at the core of this approach as well, assuming that they are active agents of change, with the capacity to reach and implement cooperative agreements.12 Accordingly, the tackling of environmental problems by means other than law and high politics might be acknowledged but not be granted due emphasis within this approach.With all these approaches, the state remains at the centre of thinking and thus full regard might not be given to the growing and practically influential self-regulatory and other informal activities undertaken by non-state actors suggested by globalisation. These developments have been considered to put the state into a rather reactive position and to weaken its dominance.13 Accordingly, this has repercussions on state-created law. These developments may be better understood within the wider concept of global governance.
Governance arises as a matter of public concern whenever the members of social groups find that they are interdependent. The concept of global governance has been emerging since it was first articulated in the publication of the Report of the Commission on Global Governance Our Global Neighbourhood 1995.
(a) Definition of Global Governance
(i) Definition of Global Governance by the Commission on Global Governance The Commission has defined global governance as follows:
“Governance is the sum of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative actions may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.
[...] At the global level, governance has been viewed primarily as intergovernmental relationships, but it must now be understood as also involving non-governmental organizations (NGOs), citizens’ movements, multinational corporations, and the global capital market. Interacting with these are the global mass media of dramatically enlarged influence.”14
The Commission was initiated by Willy Brandt, in 1989, after the fall of the Berlin Wall, by inviting several politicians who had served in commissions dealing with global issues, (such as for example the World Commission on Environment and Development) to start a process of looking at the future of the world in a more integral way.15 The idea was for a Commission to develop a common vision of the way forward for the world in making the transition from the cold war in order to manage humanity’s affairs in the twenty-first century and to give hope to present and future generations.16 This idea was fully endorsed by the then Secretary-General of the United Nations Organisation (UNO).17
The report produced by the Commission emphasised that global governance is not global government, as this might lead to an even less democratic world than was perceived to be present at that time, by reinforcing the role of states and governments rather than the rights of people.18 This was not meant to suggest a world ruled by anarchy but to stress the need for balance. That balance was to ensure that the management of global affairs was responsive to the interests of all people, guided by basic human values working towards a sustainable future, and would make global organisation conform to the reality of global diversity. It is conceivable that given the remarks on “The Earth’s Resources”, the Commission was aware of the dramatic risks posed by environmental degradation.
The clear anthropocentric emphasis revealed by the report is not surprising however, given the aims pursued by the Commission and the novelty of politicians (who were not focussing on environmental matters)19 attempting to deal with the issue of governing global problems in such a comprehensive way. In the aftermath of the formal dissolution of the politically and economically opposite Eastern block, the report aimed at setting out recommendations for promoting the political, social and economic security of the planet (Chapter Three), at managing economic interdependence (Chapter Four), reforming the United Nations in ways that also offered a larger role to people through the organisations of international civil society (Chapter Five) and at extending the rule of law on the global stage (Chapter Six).
The Commission has qualified the concept of global governance as being neither a single model nor form or to have a single structure or set of structures.
“It is a broad, dynamic, and complex process of interactive decision-making that is constantly evolving and responding to changing circumstances.”
It furthermore stressed that the systemic nature of the issues of human survival and prosperity required
“global governance to promote systemic approaches in dealing with them.”20
(ii) Other Definitions; Common Ground of an Understanding of Global Governance?
Scholars have, on the whole, responded positively to the concept set out by the Commission even if there have been differing interpretations of it. Governance has been described, inter alia, as being based on the “capacity to exercise power without the legal competence to command”.21 Scholars see global governance against a background of ‘globalisation’. The term globalisation is not restricted, as was initially the case, to only describing the tendency of internationalisation of corporations. Instead, more recent views regard globalisation as a phenomenon of broadening common interests and thus actions beyond the focus of single states and outside their influence,22 a process that is demonstrated by the interactions on a global scale in many non-economic societal and political areas.
The single state does not have sufficient mechanisms to (fully) control such trans-national actions; in legal terms, more issues have been transferred to the private sector (e.g. communication and postal services). That means a denationalisation of societal matters, a de facto loss of state control in different areas and also some loss of legal control due to transfer of formerly public functions to non-state actors.23 Despite that development, the state is still regarded as remaining the central actor in the international system.24 The term “governance without government” does not exclude governments from taking part in multidimensional actions. This wording merely means that there is no central world government. The CGG agrees with this concept.
Thus, global governance is not seen as a structure in itself but as an approach to explain complex problem solving strategies that include horizontal and vertical dimensions and actor relationships. Hence, the essential element of global governance is the plurality of actors that are active in and mechanisms that are applied to issues of common global interest. At its core, is a functional approach that pays less regard to formal but rather to substantial, issue-related competences and capacities, irrespective of the legal nature of an entity. This allows issues to be dealt with by the most efficient and effective interactions or where there is at least a high interest to do so and where there is the most controlling and influencing capacity. In that sense, the Commission has regarded “the very essence of global governance” to be “the capacity of the international community to ensure compliance with the rules of society”.25 Even if the Commission put some emphasis on intergovernmental organisations, it recognised that an efficient dealing with problems may require that tasks be given to entities below the inter-state level, i.e. non-governmental institutions within all spheres i.e., global, regional and local.26 Accordingly, the Commission stresses the significance of cooperative networks of institutions and processes.
This leads to the realisation that global governance cannot be confined to legal enforcement but requires the examination of how best to pursue common goals and expectations. This makes global environmental governance different to international environmental law. The latter has been defined as the branch of international law that comprises those international juridical norms whose purpose is to protect the environment.27 These norms are usually comprised as
multilateral environmental agreements (MEAs) between states, states being, in essence, the major subjects of public international law.
(b) Participants and Tools of Global Governance
“There is no single model or form of global governance, nor is there a single structure or set of structures [...]. It must take an integrated approach [...and...] promote systemic approaches in dealing with them. Effective global decision- making thus needs to build upon and influence decisions taken locally, nationally, and regionally, and to draw on the skills and resources of a diversity of people and institutions at many levels. It must build partnerships–networks of institutions and processes that enable global actors to pool information, knowledge, and capacities and to develop joint policies and practices on issues of common concern.”28
This reveals that the range of actors cannot be confined to states nor the range of methods to law-making since private entities by their lobby work in international organisations, their standard-setting activities, their transactions and so forth, also influence the development of the environment. Thus, the range of actors is to be drawn widely and not to be restrained by notions of hierarchy. Global governance embraces national and international, state, sub-state and private societal, as well as hybrid actors. The mechanisms include law, decentralised decision-making, principles, market instruments and so on.
(c) “Global Environmental Governance”
As revealed by the examination above, global governance is a concept to explain how, where and in what cooperative frameworks issues of common interest are dealt with. This relates to all areas that arise in the interaction between participants of society and concern their basis of existence. Such issues include economic, political, social, cultural and environmental questions.
The Commission on Global Governance stated that the quality of global governance would, inter alia, depend on the broad acceptance of a global civic ethic:
“Global values must be the cornerstone of global governance.”29
It emphasised that
“[R]ights need to be joined with responsibilities.”30
and that
“Although bound to respond to specific requirements of different issue areas, governance must take an integrated approach to questions of human survival and prosperity.”31
The concept of environmental governance is therefore increasingly shaped by the ethically determined concept of ‘sustainable development’. This, concept was ‘invented’ by the International Union for Conservation of Nature and Natural Resources (IUCN, the World Conservation Union) in collaboration with the World Wide Fund for Nature (WWF) and the UN Environmental Programme (UNEP),32 and developed within the framework of the World Conservation Strategy. However, it was authoritatively defined and brought to the attention of the world in 1987 by the World Commission on Environment and Development (WCED, commonly referred to as “Brundtland Commission”33) in its report Our Common Future. Sustainable development was defined as
“development that meets the needs of the present without comprising the ability of future generations to meet their own needs.”34
The problem inherent in this phrasing is that it neither defines “sustainability” nor “development” and that it perceives the “environment” in a static manner.35 This leads to controversies about the precise meaning of sustainable development which are broadly dividable into the “anthropocentric” and the “non- anthropocentric” view.
It comprises, as understood by the Brundtland Commission, two components of justice, namely intra-generational and intergenerational equity. The former refers to equity, in terms of distribution of natural resources, between the rich and the poor of one generation, the latter to such between present and future generations. It is common understanding that the concept requires the integration of environmental conservation and economic and social development.36
According to the anthropocentric view, being based on human welfare and thus regarding the environment as of instrumental value,37 sustainable development is only reached where it coincides with and serves human social and economic needs. Some international documents like the Stockholm38 and the Rio39 Declarations base the concept of sustainable development to a significant extent on an anthropocentric ethic. This becomes clear from their wording and their overarching emphasis on the survival of humankind.
The non-anthropocentric views hold that the non-human environment has value irrespective of human needs i.e., intrinsic value.40 Under the eco-centric school of thought this is based on the principle that all life is interdependent and that human beings are part of a wider whole.41 Therefore, it adds a third dimension to the concept of sustainable development, namely interspecies justice. This understanding is set out in the World Charter for Nature. The Charter was drafted by the IUCN and adopted by the UN General Assembly in 1982.42 It states that
“[e]very form of life is unique and warrants respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action.”43
Therefore, there is a need to respect the intrinsic value of nature independently from its utility to mankind. This concept is, for example, also recognised by the 1979 Berne Convention on the Conservation of European Wildlife and Natural Habitats,44 by the 1992 Convention on Biological Diversity,45 and by the IUCN- ICEL46 Draft International Covenant on Environment and Development.47
Environmental Law and Ethics (Macmillan Press, London 1999), 50.
Clearly, under that view, the aim of human survival remains anthropocentric, though mankind is not viewed as apart from or above the natural universe, but as a linked and interdependent part of it.48 Because of this interdependency, all parts of the natural web need to be protected and conserved.
The International Court of Justice in the case Gabcíkovo-Nagymaros Project (Hungary/Slovakia)49 took the view that sustainable development was a ‘concept’ central to determining and reconciling the conflicting interests of the parties. In his separate opinion, Vice-President Weeramantry took a significantly stronger view by considering ‘sustainable development’ a ‘principle of international environmental law’ which will assist in the delicate task of balancing two considerations of enormous importance to the contemporary international scene and, potentially, of even greater importance to the future, namely development and environment.50 He based his findings on the examination of the employment of this principle in a wide range of ‘modern’, ancient, indigenous, and legal documents derived from all levels – local, national, regional and international.
However, many international documents make clear from their wording that they base the concept of sustainable development on an anthropocentric ethic. This becomes clear from the reference to intra-generational and intergenerational justice, as ensuring the survival of mankind. A deficiency of the intergenerational element is the “identity problem”.51 The main crux, however, is that over- exploitation may not be stopped by considering future generations, but rather merely be slowed down.52 The eco-centric ethics, by advocating the respective approach which best conforms to nature and avoids damage to it, avoids this problem.53 In practical terms, these ethics may not be uncombinable.54
2.3 Conclusion
The concept of global governance embraces new structures of interaction aimed at handling a certain issue area in all its interrelations and is thus best equipped to explain the factual changes.
3. THE STATUS QUO: FOCUS ON THE ROLE OF CIVIL SOCIETY IN INTERNATIONAL ENVIRONMENTAL LAW
As already expressed by the Commission on Global Governance, this concept has been viewed primarily as including intergovernmental relationships but must now be understood to also include, inter alia, NGOs and citizen’s movements. To what extent however, have the latter been included and in particular, what has been the quality of their participation. Has the current practice reflected “the many [formal and informal] ways individuals and institutions, public and private, manage their common affairs” as the Commission’s definition set it out?
Since the rise of environmental awareness in the 1960s, international and global environmental problems have largely, not to say almost exclusively, been ‘managed’ by formal arrangements between and among states and international, intergovernmental organisations (IGOs), hence by means of public international law.
International environmental law has been defined as the branch of international law that comprises those international juridical norms whose purpose is to protect the environment.55 It is mainly implemented through MEAs between states that are mostly supported, facilitated and administered under the auspices of the United Nations Environment Program (UNEP) or other UN agencies or international organisations. International environmental law comprises several principles, such as the precautionary principle, the polluter- pays principle, but also the sovereign right to exploit natural resources. Notably, Judge Weeramantry in his separate opinion in the Gabcíkovo-Nagymaros Project (Hungary/Slovakia) case of 1997, referring to the employment of the “principle” of sustainable development in a large number of international, regional and national agreements, as well as to ancient wisdom, clearly pointed out that the principle of ‘sustainable development’ has achieved the status of a modern principle or norm of customary international law and thus, it is likely to play a major role in determining important environmental disputes of the future. He
stated that, ‘inescapable logical necessity’, made it necessary to reconcile the competing interests and needs of the law of development and the environment.56 Missing in international environmental law however is a universal document that sets forth in general terms, the environmental rights and obligations of states and by corollary (as is the nature of public international law) of individuals. Although the Rio Declaration sets out a range of principles, these are not binding. Instead, environmental problems have been dealt with in a piecemeal fashion by MEAs. However, non-state entities have recently increased their influence on the creation and monitoring of the implementation of international environmental law. The law is one of the formal channels through which they can hope to exert their influence but this is not the only means of exerting that influence within
the sphere of global governance.
3.1 Definition of Civil Society Groups
The idea of ‘global civil society’ refers to the effect of non-state organisations on state and international actions.57 There is a vast diversity of such non-state groups, associations, organisations, networks and movements that range from large-scale charities with hundreds of staff to trans-national networks with no expenditures run by volunteers, campaign groups pursuing single issues and professional service providers, to protest groups. No uniform definition has been agreed in relation to these groups.
‘Civil society’ is regarded by Ronnie Lipschutz, for example, to include those political, cultural and social organisations of modern societies that have not been established or mandated by the state or created as part of the institutionalised political system of the state but are nevertheless engaged in a variety of political activities, and thus comprise social movements, public interest groups and corporations.58 Paul Wapner understands civil society also as “that domain of associational life situated above the individual and below the state [...] made up of complex networks based on interest, ideology, family and cultural affinity through which people pursue various aims [...] the host of these [networks] together constitutes civil society.”59 Civil society organisations have
also been defined as associations independent of the state and the market in which citizens can organize to pursue purposes that are important to them, individually and collectively.60 Despite the different definitions, each of these authors would probably subsume within the term, examples of so-called citizen initiatives. Citizen initiatives entail citizens of a smaller mostly local area taking collective action, e.g. collecting signatures, protesting, holding public lectures or directly communicating with the political and economic decision-makers to pursue a goal of importance to them and for their closer environment. An example would be to stop a project to build a motorway just next to their village that threatened to destroy the local forest.
The civil society concept has been acknowledged to make sense not only in national societies but also in the analysis of global affairs,61 which extends this idea into the trans-national realm. The definition of ‘global civil society’ is likewise debatable. As there is no uniform definition, Wendy Schoener suggested that it might best be imagined as “temporary, issue-based networks of organisations and citizens that try to influence states”. A criticism of this definition is that it excludes self-regulatory interests i.e., those that take part without the intention of influencing the state but just with a merely functional or communicative end purpose. Lipschutz defines global civil society as “an arrangement parallel to political interaction among states which is focused on the self-conscious constructions of networks of knowledge and action, by decentred, local actors, that cross the reified boundaries of space as though they were not there”. With a view to environmental issues, he perceives global civil society as “a proto-society composed of local, national, and global institutions, corporations, and non-governmental organisations, many of which are engaged in activities related to the global environment”.62 Such groups derive their legitimacy from the common interest they pursue.
There is some uncertainty as to the difference between the terms ‘civil society groups/organisations’ and ‘non-governmental organisation’ which appear to be used synonymously.63 Non-governmental organisations (NGOs) have no uniform definition either as the following paragraphs reveal.
3.2 Non-Governmental Organisations
Article 71 of the UN Charter authorised the Economic and Social Council (ECOSOC) to regulate the consultative relationships between the UN system and non-governmental actors. This, of course, required a definition of this group.ECOSOC has defined an ‘international NGO’ as
“a non-profit entity whose members are citizens or associations of citizens of one or more countries and whose activities are determined by the collective will of its members in response to the needs of the members or of one or more communities with which the NGO cooperates.”64
This definition is very close to the one given for ‘civil society organisations’. The latter did not express a view on the inclusion or exclusion of state-designated members. However, for the purposes of consultation, ECOSOC included intermediary or rather hybrid organisations that admit members from state entities as well:
“[non-governmental organization...] including organizations which accept members designated by government authorities, provided that such membership does not interfere with the free expression of views of the organization.“65
Only NGOs which largely comply with the fundamental principles66 of the UN are considered for consultative status. Groups that advocate violence are excluded. However, even the UN Secretary General noted that the application of the criteria and the assignment to a category required greater transparency.67
The Union of International Associations (UIA), being an NGO itself providing information on international organizations, has set out a definition of those organisations that are the object of its work:68
(a) the aims must be genuinely international in character with the intention to cover operations in at least three countries;
(b) as to members, there must be individual or collective participation, with full voting rights from at least three countries. Membership must be open to any appropriately qualified individual or entity in the organisation’s area of operations. Voting power must be such that no one national group can control the organisation.
(c) The NGO’s constitution must provide a formal structure giving members the right periodically to elect a governing body and officers; there must be a permanent headquarters and provisions for continuity of operations;
(d) officers and headquarters should rotate at designated intervals among various member countries
(e) substantial budget contribution must come from at least three countries; there must be no attempt to make profits for distribution to members (effectively, this criterion excludes business enterprises)
(f) the international NGO must be independent and elect their own officers, even if it is connected with another organisation
Thus, fundamentally, the UIA applies the same criteria to international NGOs as ECOSOC but expressly excludes business entities. Both the UIA and ECOSOC criteria, by including the ‘international’ requirement, exclude “grassroots” and other national NGOs. In addition, UIA by including criteria concerning constitutional and internal governance structure can exclude even some ‘expert’ NGOs. These more loosely organised groups and activist networks however, have a considerable role to play in global environmental governance.
There is no agreement amongst scholars upon a definition for NGOs. Bas Arts defines a global NGO as “[...] a promotional pressure group which seeks to influence political decision-making on certain issues at global level.”69With that, he distinguishes “pressure groups” from “protest groups”. The latter carry out advocacy and lobbying inside political arenas, by participating or intervening, to directly affect policy and decision-making, the former work from the outside.70 This definition however, creates uncertainties with regards to ‘expert’ NGOs that do not lobby and groups which fulfil both types of activity, for example, Greenpeace.
Sonja Riedinger, with a view to international environmental law and a broad examination of other authoritative definitions, defines NGOs as
‘a permanent non-profit-making association of individuals or groups of individuals not established by inter-governmental agreement, the activities of which are determined by the associative goal and the collective will of its members. Members may be designated by governments if the free formation of opinion of individuals or groups of individuals is ensured within the organisation.’71
This definition, also excludes business, but includes national NGOs and hybrid organisations.
Thus, even if there is no commonly applied definition, some common features of the required elements can be extracted from the different concepts:
(a) According to a negative definition, NGOs are not established by states through a governmental agreement under international law. This still leaves space to include state entities such as hybrid institutions, like the International Union on the Conservation of Nature, that comprise government representatives as well as civic persons and scientific communities. The UN also considers such institutions to be NGOs as long as the element of governmental participation does not lead to dominant political or financial influence.
Of course, there may be some financial contribution or support by governments, but these would have to be declared in the records of the NGO.72 There have been concerns that the dependence of some NGOs on financial support from state entities/organisations might result in significant government influence over the NGO. Not all NGOs are big enough however to raise a sufficient amount of money from their members or by their activities, however significant their contributions to issues are. This may particularly be the case for NGOs from developing countries. Thus, there is a fine line to be drawn between accepting government funding and avoiding undue government influence within the NGO.
(b) To be ‘international’, the scope of activity of a NGO must be trans-national and cover at least three countries. The NGO Committee of ECOSOC (by
virtue of Resolution 1296/31) requires NGOs to, where possible, operate in different regions and be international in structure.
(c) Non-governmental organisations must have a non-governmental purpose.
It is clear that CSGs/NGOs are one organised form of parts of civil society. However, there seems to be no clear distinction between CSGs and NGOs. For the context of this paper therefore they will be used synonymously. Civil society groups seem to allow a looser form of organisation. Therefore, when the slight difference between them and NGOs is of importance, they will be referred to as CSGs.Naturally, the focus of this paper will be CSGs/NGOs which pursue interests related to the global environment. Organisations which represent specific sectors of business could fall within this definition of CSGs/NGOs and it may well be that some wish to advocate sustainable development per se but many do not. This is a complex and intricate issue. For this reason, I shall leave umbrella organisations of business interests out of the definition used in this paper.73
For the purpose of this paper, I am applying the following understanding of an NGO: it is a permanent non-profit organisation of individuals or groups of individuals operating independently from government influence to pursue common interests with regard to the environment; members designated by governments may be included and funding from governments may be received provided that this does not influence the independent opinion-shaping and activity of the organisation.
Thus, under this definition, different types of NGOs are embraced: national (e.g. the BUND in Germany) and international ones (e.g. Greenpeace International), grassroots, i.e. local groups (e.g. organised against a certain local development), expert bodies (e.g. ICSU), advocacy and lobby networks and pressure groups (e.g. FoEI), and hybrids (e.g. IUCN).
3.3 Legal Status of NGOs and Formal Participation in the Activities of International Governmental Organisations
The legal status of NGOs is of significance to their role in international environmental law. The modes of interaction between state and non-state actors
may be particularly important to achieving compliance with soft law norms because a participatory process enhances the legitimacy and authority of the norms adopted.74
Generally, NGOs have no legal personality under international law and thus are not the subjects of international law. This is based on the argument that NGOs are created by private, natural or legal persons under national law and not through a legal act by states at an international law level, as IGOs are. A subject of international law is an entity that is in possession of rights and duties established under international law and capable of exerting and maintaining its rights by bringing international claims.75 Whether an entity actually possesses those rights and duties must be determined by reference to international law itself. However, this issue must be distinguished from the question as to whether NGOs have legal status.76 The legal status, i.e. recognition that is accorded to NGOs by states or rather IGOs, differs depending on the internal procedural rules or practices of those IGOs and thus, is determined by ‘secondary international law’, mostly the convention texts themselves or the rules of procedure adopted pursuant to them. The status concerns the role of NGOs in MEA bodies.
NGOs have been attributed to play a role in the negotiating process leading up to MEAs, e.g. regarding the 2001 Convention on Persistent Organic Pollutants.77 In this frame they are mostly allowed to make contributions but without having any negotiating role.78
Also the Conferences of the Parties often allow for participation of NGOs, according to their founding texts or rules of procedure.
The ECOSOC, according to Art 71 UN Charter was to make suitable arrangements for consultation with non-governmental organisations that are concerned with matters within its competence.
By Resolution 1996/31 (that was drafted in cooperation with the NGOs concerned79 to update Res. 1296 (XLIV)80) the Council divided NGOs into three different categories that depended upon their involvement with the activities of the Council.81 The categories involve differing rights of participation. Only NGOs approved for the first category (“general consultative status”)82 have the right to submit topics for consideration on the provisional agenda and written statements of up to 2,000 words and may speak on such items, other oral contributions are subject to the approval of the Council.83 NGOs on the second level may submit written statements of up to 500 words. NGOs on the “Roster” may only make written submissions upon invitation.84 Such statements shall then be circulated by the Secretariat.85 The right to speak is limited for the second category to certain sub-organs and is subject to obtaining the necessary permission. Only NGOs in the first and second category may send observers to sessions of ECOSOC and its sub-organs. However, they do not have voting rights and in terms of procedural power, are subordinate to states. In order to obtain such status, an international NGO must be of representative character or of recognised international standing within the particular field of its competence86; it shall represent a substantial proportion and express the views of major sections of the population or of the organised persons within the particular field of competence, covering, where possible, a number of countries in different regions of the world. National NGOs may only be admitted after consultations with the Member State where they are based. NGOs in the third category may attend only such meetings that are concerned with matters within their field of competence. So, altogether the status is of rather limited extent and, despite the emphasis of the need to take into account the full diversity of NGOs at, inter alia, the national level87, it rather seems to exclude the participation of such by the criteria set.
At the UN Conference on Environment and Development (UNCED, also referred to as the “Earth Summit”) in Rio, June 1992, there was an unprecedented and enhanced participation of NGOs. They were significantly involved in the
80 Of 23 May 1968.
work of the Preparatory Committees where they, inter alia, prepared a report for the Conference providing an overview of agreements, including compliance issues. Some 1500 NGOs were accredited to attend formal (and some informal) meetings. However, the nature of participation during the Conference was somewhat restricted and was evaluated rather negatively by the NGO community. They had to face two obstacles: the expense and lack of funds, and the secrecy of official UNCED negotiations. These NGOs were however committed to providing visions on how to build more ecological societies and as a result, committed to organising themselves to gain a more effective role in the international decision-making process.88 Compared to the large number of 8,000 NGOs that attended the parallel “Global Forum” of NGOs, the number admitted to the Conference sessions was relatively minor, and the organisers of the Conference have been criticised for allowing so few NGOs to participate. In spite of that, they did exert some influence on the Conference by participating in the Preparatory Committee Meetings, lobbying, commenting upon and criticising official proceedings, providing an important forum for meetings and working groups and, at times, even protesting against the Conference proceedings.89
Under a number of treaty regimes, environmental NGOs are granted observer status at the Conference of the Parties and some are even allowed to participate further by assisting the treaty secretariat. Examples are articles 11, 12 of the Convention on International Trade in Endangered Species (CITES), article 4 of the International Convention for the Regulation of Whaling, article 11.5. of the Montreal Protocol and article 23(5) of the Convention on Biological Diversity that provides for observer status and cooperation in the development of methods of sustainable use of biological resources.90Thus, NGOs are, at most, admitted as participant observers in the work of representative or expert IGO legislative organs. However, in that position, they have the opportunity to infuse alternative perspectives, provide new information to the organisations and, to an extent, provide a direct public contribution to state policy formulation.
There have been calls to enhance the legal status of NGOs. This might be done by extending their consultative, observer or other relationships with international
organisations or institutions. Alternatively NGOs, by virtue of ‘secondary international law’, could be granted equal footing with such organisations, with regards to legislative and compliance control activities. The idea behind a call to enhance the status of NGOs is that the ‘voice of the public’ or ‘of science’ should be given more weight to counterbalance the often tactical approach of states. However, such an extension of rights would depend upon the agreement of those entities that comprise such international institutions, namely states. It may be unlikely that states would in general significantly expand the influence of potential ‘opponents’. Even if the dramatic increase in NGO involvement within the international arena over the last decade may be taken as proof to the contrary, it must be acknowledged that states are often reluctant to pay genuine, significant regard to NGOs that are not hybrid, i.e. do not include governments as members, such as the IUCN, unless their claims coincide with state interest. Some NGOs actually oppose the extension of their legal status fearing that this would limit their scope for innovative approaches91 and render them less flexible due to the necessity for stronger cooperation with states. As legal entities they would arguably be more constrained in their activities.92
Another avenue for enhanced legal status would be to grant NGOs legal standing. On the international level however, there are no signs of this occurring yet and claims suggesting the opposite have been denied recently.93 Further- reaching ideas suggest the concept of guardianship, according to which certain NGOs could function as guardians for particular environmental media, for example for the High Seas or for forests; the representation in this frame would also be carried out in judicial disputes.94 It might be more realistic for NGOs to become amici curiae more frequently.
Altogether, significantly better legal rights or enhanced official status of NGOs within IGOs are unlikely in the short run.95
3.4 The Role of NGOs in the Enforcement of International Environmental Law
Apart from the direct role in MEA bodies, NGOs have also acquired an implicit role in the compliance mechanisms set up under different MEAs. They perform monitoring, information gathering and other functions related to compliance with binding and non-binding norms. NGOs may be able to participate in dispute settlement procedures, most likely as amicus curiae, but there, due to the lack of legal standing, the role NGOs play in the direct enforcement of environmental standards is weak on the international level.
NGOs are engaged in public interest litigation before national and supranational courts. In Greenpeace v Commission, the applicants sought to challenge a decision of the Commission of the European Communities, to give Spain financial assistance for two power stations, before the European Court of Justice. Greenpeace were denied legal standing before the Court96 because this would have strengthened the influence of these entities as ‘private attorney- generals’ in the interpretation and development of international environmental law.97
There are not many cases where NGOs have acted as amici curiae. This might partially be caused by the fact that there is no particular court for environmental matters. Environmental matters are mostly dealt with in connection with other areas in issue, for example as ‘trade barriers’ within the framework of the GATT98 or within national disputes before the ICJ, that have some relevance to environmental regimes. The ICJ, however, has not yet extensively dealt with environmental issues.99 However, the WWF has occasionally intervened in cases against projects of grave negative environmental impact, e.g. in the Gabikovo-Nagymaros dam dispute between Hungary and Slovakia where it proposed environmentally friendly solutions.
Moreover, even if the case should arise, the ICJ has no means to enforce a decision. The only way to ensure a decision is complied with is by exerting political pressure. Political pressure can very well be shaped or rather influenced by NGOs. NGOs can lobby international organisations, use their power to create public pressure to shape domestic political agendas to promote compliance with environmental standards.
Despite their lack of legal rights, NGOs often work as “watchdogs” over the compliance of States with their legal obligations. They exert political pressure, mostly at national level, by mobilising public opinion, exposing environmental harm and setting environmental agendas.100 Where appropriate, they work through recourse to national administrative or judicial proceedings, thus exercising a kind of ‘guardian’ role for the environment.101
3.5 Other Types of Influence on International Environmental Law
Other, more innovative practices to ensure enforcement or rather consistency with environmentally sound practice have been developed by NGOs, outside their direct collaboration with IGOs. In connection with the problem of third world debts, the WWF proposed a new form of debt relief in return for environmental protection, namely ‘debt-for-nature swaps’: NGOs purchase, relatively cheaply, a portion of the debt of a developing country. The debt instrument, funded by the NGO with hard currency, is converted into the debtor country currency and the debt service is applied to purchase land threatened by development or to finance conservation programs. The World Wide Fund for Nature, for example, used this instrument to fund a national Ecuadorian NGO. Conservation International purchased Bolivian debts to the amount of $650,000 and cancelled the debt in return for the country’s promise to protect 3.7 million acres of rain forest in the Beni Biosphere reserve.102 A sovereign state has the right under international law to exploit the nation’s natural resources. This ‘debt- for-nature’ concept circumvents the traditional manner of exploitation of the country’s resources.103 The efforts in this regard appear to have strengthened local environmental protection.104 This mechanism is an indirect way of enforcing international environmental law, functioning outside formal enforcement operations. Some of these operations are done in collaboration with intergovernmental organisations like UNEP but the principal partners of the WWF are other international NGOs. Noteworthy is its special organ, the International Council.105 Together with the IUCN, it annually drafts a common
strategy, and takes decisions in common with IUCN directed scientific aspects. The WWF was also strongly involved in the elaboration and implementation of the World Conservation Strategy of the IUCN.
In some instances, NGOs participate in official country delegations. This was the case, for example, with the Environmental Protocol to the Antarctic Treaty.106 However, there is no systematic pattern for this practice.107
‘Grassroots’ organisations can also play a role in international law. Even if they do not exercise direct influence at the international level, particularly at state conferences, they can perform functions at the local level or provide necessary data on local/regional circumstances that will contribute towards the realisation of goals set within international environmental law. In the Desertification Convention,108 such organisations have been awarded a direct role, by article 5, to promote awareness and to facilitate the participation of local populations.
National NGOs may indirectly affect the implementation of international environmental law. Their domestic political influence may concern governmental positions in international conferences by shaping public opinion. Other influential avenues may be the integration into an international NGO, such is the case with the national sections of Greenpeace International or with the members of Friends of the Earth International (the BUND in Germany),109 or via collaboration with scientific and other expert groups. National NGOs often consist of regional/ local subgroups so that the ‘grassroots’ level may exert some influence via this avenue as well.
Essentially, NGOs that may have direct influence by virtue of their relations to inter-state organisations and act as observers or otherwise at international conferences and treaty negotiations are international NGOs which are often networks of national NGOs. A good example is Greenpeace International that consists of subgroups coordinated under the ‘Stichting Greenpeace Council’. Finance is provided by donations and member fees.110 It has consultative status with ECOSOC and IMO. A further example, though unique due to its hybrid character, is the IUCN which is a non-governmental organisation composed of conservation groups, states, and public law entities such as universities and research institutes.
The IUCN has been in charge of drafting a number of treaties and has played a significant role in the elaboration of some major international conventions, such as the Washington Convention on Trade in Endangered Species (CITES). In addition, the IUCN proved highly influential in the drafting of the World Charter for Nature 1982. Even though its scope is limited to living natural resources, the World Charter has formulated general principles of conduct for States and individuals. The IUCN pressed for the UN adoption of the World Charter. Most importantly, the IUCN released the World Conservation Strategy in 1995, an influential text in international environmental law.111 The Strategy encourages the integration of conservation issues into development policies as the latter are dependent on the conservation of renewable resources in the long term. It states the principal requirement to resolve major problems like depletion of agricultural land, climate modification and reduction of genetic heritage. It sets forth a series of legal measures on the conservation of, inter alia, the global commons, as well as regional strategies on the conservation of living resources. For these purposes, the IUCN publishes annually a list of endangered species, the description of those species and highlights protected areas. Each month the IUCN publishes a bulletin that includes priority ecological problems, its activities and particularly, the implementation by different states of the World Strategy. It undertakes further informative activities such as providing a library of documents and secondary sources concerning environmental law. The IUCN has played an outstanding role in the development of international environmental law.
Other NGOs are active in drafting documents for further international consideration. The International Law Association (ILA) in 1966 drafted the Helsinki Rules on the Uses of the Waters of International Rivers, which provided the basis for several treaties on international waterways.112
In some instances, NGOs serve as secretariats for intergovernmental treaties, like the IUCN for the Ramsar Convention on Wetlands of International Importance. Other NGO bodies serve as experts in treaty administration, for example the Scientific Committee on Antarctic Research of the International Council of Scientific Union (ICSU) with respect to the Antarctic Treaty system. There has also been collaboration with IGOs in their informative and operative functions, e.g. with NGOs collecting data, disseminating information, providing their technical expertise, or just volunteers for development projects. The World Commission on Environment and Development (Brundtland Commission) recognised in its report Our Common Future that scientific groups and NGOs have played a major part in the environmental movement from its
earliest beginnings: the former were the first to point out evidence of significant environmental risks and changes resulting from the growing intensity of human activities while the latter pioneered the creation of public awareness and political pressures that stimulated governments to act. During and since the time of the Stockholm Conference, these groups have played an indispensable role in identifying risks, assessing environmental impacts and designing and implementing measures to deal with them, and in maintaining the high degree of public and political interest required as a basis for action.113 Major national reports on the ‘State of the Environment’ have been published by some NGOs (in Malaysia, India, and the United States, for instance),114 as well as reports on the status of and prospects for the global environment and natural resource base. The Commission estimated this contribution as ‘significant’.115
NGOs may undertake to support countries lacking facilities, with assistance in translating treaty texts, preparing commentaries for legislative and administrative bodies, assisting in the preparation and implementation of legislation and providing background information to legislators.116
Thus, NGOs significantly participate in the activities of international governmental institutions and outside the state realm.
3.6 Effectiveness, Efficiency and Criticism
The effectiveness of NGOs varies significantly according to their depth of research, skills in political advocacy, means of exercising pressure, seriousness of their purpose and the width of their focus.117 Their involvement in the activities of international and regional organisations as a result of having been accorded consultative status, making presentations and lobbying has increased their effectiveness and may influence the negotiation processes.
Of particular influence is the provision of draft legal conventions as was demonstrated by CITES and the World Charter for Nature 1982, both drafted by the IUCN. One of the latest works is the Draft International Covenant on Environment and Development, which was developed in collaboration with the International Council of Environmental Law (ICEL)118. This Draft Covenant
was launched in 1995 at the United Nations’ Congress on Public International Law. The updated version reflects new international agreements and includes comments on the draft. It is a framework treaty that employs a holistic approach to the closely interrelated fields of environmental protection and development in order to set out fundamental principles and obligations with a view to all areas related to the environment and development. The IUCN and the ICEL had consulted the drafters of the “Earth Charter” to ensure consistency among the principles set forth in both texts.119 Recognition of the ethical principles set out in the Earth Charter by the IUCN is a significant step since, by virtue of the hybrid character of the IUCN, this recognition is also afforded by governments (which are still the major actors to create international environmental law). The revision work also had the indirect support of the UN that provided the Treaty Signature Room at the United Nations Headquarters in New York for convening the chairmanship of the revision meeting. An umbrella agreement such as the Draft Covenant would facilitate the process leading to sustainable development. The efficiency of this influence is increased where NGOs coordinate their policies and actions for their participation in IGO meetings. This provides for a more comprehensive, coherent and focused presentation and advocacy of their views. European NGOs for example have ‘networked’ their activities since 1974 through the European Environment Bureau (EEB) which is the coalition to distribute information to the members and to allow for concerted action.120 In general terms, it has been noted that high civic literacy, i.e. those citizens capable
of informed political participation, contribute most to social improvements.121 However, NGOs are also subject to considerable criticism. The NGOs of
‘the North’ are alleged to have ignored their interdependence with the issues of ‘the South’. The large number of NGOs from developed countries leads to an imbalance in the representation of the differing interests. This is a problem that is based in the ‘digital divide’. Since the Internet is a very efficient tool for communication and thus collaboration, the infrastructure deficiencies of ‘the South’ have left the integration into the trans-national political community, of the southern-based NGOs behind.122 The same applies to the opportunities of intercontinental travel. The growing number of NGOs in developing countries together with the calls for increased financial and technical assistance for them,
as well as closer collaboration and coordination with other NGOs might help to redress this problem.
NGOs have been recognised as being only restrictively subject to democracy and accountability.123 However, their increased involvement in international decision-making requires a structured organisation. As seen above, IGOs require NGOs to have a democratic structure and to be accountable to their members. Certainly, with grassroots movements, this is often not the case but it might not be necessary. Such organisations derive their legitimacy from the pursued common interest but also are small enough to keep in direct contact with their members; such groups are not allowed direct participation with IGOs anyway. Scholars have criticised the fact that the global level had been overemphasised at the expense of the local or national as viable arenas of action.124 In relation to ‘civic literacy’, GCS activists have been criticised as underestimating the organisational nexus between national political arenas and the outcomes associated with them. By doing so, they risk helping to undermine potential achievements at this level. 125
3.7 Conclusion
The current legal treatment of NGOs differs in the specific issue areas of the environment since these have been dealt with in an ad hoc, non-comprehensive manner by means of numerous, largely unrelated MEAs.126 Further, the contributions of NGOs are limited, at most, to the provision of information and some consultative status without full, effective participatory rights. This limits the realisation of NGOs’ possibly wider potential. The facilitating UN agencies have severely restricted NGO participation in their discussions and decision- making and have failed to distribute information on their own activities and to demonstrate accountability to the public.127 This has been regarded as a consequence of the state focus on international law. This focus places significant limitations on the effectiveness of environmental protection, as has been experienced in the past: governments in concreto often rather pursue short-term economic development,128 the obligations they agree to subject themselves to
are often imprecise and rather refer to more general principles; those may be harder to translate into concrete action and thus more difficult to monitor in accomplishment;129 in addition, international law lacks (legal) enforceability. Also, thinking in terms of state lines and thus interests is a legitimate consequence of global political geography but it may impair the recognition of transnational solutions.130 Last but not least the international legal process is facing long negotiation periods and a lack of co-ordination.131 This leads to overlap, gaps and inconsistencies.132
The Brundtland Commission suggested that governments should be accompanied by non-governmental support to strengthen their cooperation with(in) IGOs:
“Special provisions should be made for expanded and more meaningful participation by major non-governmental organizations at future sessions.”133
The Commission called for governments to strengthen procedures for official consultation and more meaningful participation by NGOs in all relevant intergovernmental organisations in order to make use of the efficient and effective alternative that NGOs can often provide to public agencies. NGOs can help deliver programmes and projects, reach target groups that public agencies cannot, co-operate with other NGOs and thus provide the necessary capabilities in planning, monitoring, evaluating and carrying out of projects.134 The Commission also stressed that in many countries, governments needed to recognise and extend NGOs’ right to know and have access to information on the environment and natural resources; their right to be consulted and to participate in decision making concerning activities likely to have a significant effect on their environment; and their right to legal remedies and redress when health or the environment have been or may be seriously affected.135 Further, the Commission recommended that development assistance agencies, especially the UN Development Programme and the World Bank, should draw upon NGOs in executing programmes and projects. It furthermore suggested that, inter alia, NGOs help
in the area of dispute settlement procedures by establishing special panels or rosters of experts with experience in various forms of dispute settlement and special competence on the legal and substantive aspects of environmental protection, natural resources management and sustainable development.
Current environmental issues are not clearly defined problems that can be solved with fixed solutions, because problems are interdependent in a complex way as is now acknowledged with the linkage of environment and development.136There are attempts to make international law, particularly treaties, and the treaty making process more flexible by, inter alia, restricting the consensus principle and allowing treaty provisions to be binding on non-parties. It is proposed that this would occur if the provision is necessary to protect a high- ranking common public interest, if it has been set out by a big state conference under participation of as many non-state actors as possible, and if states that are to be bound had the chance to participate.137 However, this process, as we saw earlier, has not allowed for genuine participation of NGOs nor, as yet, lead to general improvement of the environment’s state. Whilst there have been some efforts to involve NGOs in international environmental law, a closer look appears to suggest that the outstanding efforts of collaboration have been with the IUCN, which is a hybrid organisation, and with less political scientific expert bodies, but not with other NGOs.
Even if a specific environmental problem is approached within a framework regime,138 this is restricted to state action. Environmental regimes, established to respond to particular and specific environmental problems, have been understood as specific systems of binding and non-binding norms and regulations, which evolve from interstate agreements and the activities of IGOs.139 This, and the fact that the main instrument of international environmental policy is treaties,140 indicate the focus on state action. The problems of state-centric solutions to environmental problems, however widely they include other actors, have been acknowledged. The inherent limits of public international law pose severe restraints: the non-intervention principle makes enforcement and compliance review difficult; MEAs are based on consensus which is often reachable only at the ‘lowest common denominator’, national delegations are only accountable to the current sovereign and therefore may envisage rather short-term solutions.
This is exacerbated by practical problems. Identifiable principles of international environmental law like the ‘polluter pays’ principle may not achieve their full effect. The international law approach to environmental decision-making relies upon the assumption that polluters can be identified, and perhaps made responsible for their actions. The ‘polluter pays’ principle overlooks the fact that economic structures, which some have suggested to be the cause for environmental degradation, are not juridical persons with intentions and capabilities.141
Also, practical problems arise due simply to the limited co-ordination between legal environmental instruments at the international level. For all kinds of environmental media, separate bodies have been established. Even if most of them work under the umbrella of the UN system, they do not effectively coordinate or even cooperate with regards to their agendas. To ease this problem, the Brundtland Commission gathered 22 directors of UN agencies to coordinate their programmes for environmentally sustainable development. This resulted in the establishment of the UN Environmental Programme. Many other instruments remain uncoordinated however, operating under the auspices of various other institutions. As a result, even industrialised countries seem to be overwhelmed by the overload in negotiation and implementation.142 Overload and the lack of time leads to insufficient scrutiny, weak law and implementation that fails to fulfil its promise. This problem has been worsened by the constant need to re-assess and amend existing law and the fact that the fast pace of modernisation may render attempts to regulate existing practices obsolete (which is a result of the slow process of international law-making).143
Although much has been made of NGO involvement with international organisations, and the role of NGOs as advisers to governments and IGOs has increased, there is no radical change in IGOs’ work. NGOs have therefore been assessed, by some, as having had a minimal impact on the negotiations of MEAs.144
In summary, NGOs are clearly of significance for the furtherance of environmental protection but this is not adequately acknowledged in international law. Due to the state-centric nature of international law,145 there is no real prospect
141 Evans, supra 12, 224-225.
(United Nations University Press, Tokyo, New York, Paris 2001), 231.
of significant changes in the short term. The gap between the actual variety of functions and successes of NGOs and their recognition in international law could be more persuasively closed if their contributions would be seen in the context of global governance. The limitations outlined above are not present in the global governance perspective to international activities addressing environmental problems.
Finally, international law concerns, per definitionem, the international relations between states, and as a consequence can affect the attitudes and actions that cause environmental problems, namely the activities of individuals and companies, only indirectly. The effectiveness of international law takes a relatively long time to become effective, starting from the growing awareness of a problem, continuing through the negotiation of international agreements,146 the entry into force147 through domestic implementation and finally compliance with the national law. It would be more efficient, and perhaps also more effective, to approach the last level directly. This however, cannot be achieved by international law. Thus, more attention must be given to developing local capacity.148 NGOs can play an innovative role in correcting the failure of governments and the market to effectively tackle long-term, large-scale problems.
4. THE EMERGING ROLE OF NGOS AND CIVIL SOCIETY ORGANISATIONS IN
GLOBAL ENVIRONMENTAL GOVERNANCE
Within the concept of global governance, understood as ‘the many ways in which actors interact’, legal solutions play a significant role, however they are just one part of a more holistic approach. This perspective is able to accommodate the variety of actors and mechanisms, informal and direct activities that are a major part of NGOs’ activities. Informal approaches are effective and often are the background of the success of NGOs; better legal rights or enhanced official status may not be what is most needed in this respect.149
As acknowledged by the Brundtland Commission, sustainable development requires a change in attitudes and a different way of thinking. Such changes
cannot be prescribed from above, since they are determined by values held by individual human beings. Thus, a ‘bottom-up approach’ is required, especially with a view to sustainable development. NGOs might provide the ‘ethical service’ of articulating and ‘translating’ such values into practical solutions. Such a role however, is not fully acknowledged by other actors in the global arena. NGO activities are based on their sets of values and respective goals.
4.1 Informal Activities in Relation to IGOs
The activities of NGOs are underpinned by the shared objectives and values. This also applies to those, in relation to IGOs, informal tactics (i.e. outside the realm of legal rights) that include oral statements, circulation of NGO documents to some of the main committees of the General Assembly, contribution to hearings of special committees and to working groups, drafting proposals, as well as freely offering assistance, their expertise and diplomatic skills. The effectiveness is greatly driven by the clear vision about objectives.150
4.2 Informal Approaches outside IGOs
The informal approaches, taken outside the work of governments and IGOs, include the raising of the public’s awareness of environmental problems on the global scale and in particular situations. One very famous example is the action taken by Greenpeace when Shell wanted to dispose its oil platform ‘Brent Spar’ in the North Sea. Shell was entitled to do so in legal terms but because of the expected negative environmental effects, Greenpeace launched a boycott of the company. In Germany for example, this call lead to a decline in Shell’s sales of 30 % within weeks. Since this action, the enterprise has consulted the NGO in planning the decommissioning of other rigs.151
In the long term, less spectacular actions might also shape public opinion. The educational activities of NGOs can help to promote real long-term effects, namely the change of attitudes towards consumption and production. These goals are underpinned by environmental ethics.
The Commission on Global Governance strongly emphasised the necessity of a global civic ethic to guide action within the global neighbourhood, and leadership infused with that ethic is vital in ensuring the quality of global
19, 27.
governance.152 However, ethics are not imposed by the state or any other artificial power or construct; 153 they are the essence of human values and principles. Their articulation and ‘translation’ into ‘ethically guided’ action however, often needs to be done in an organised way. This could be provided by CSGs/ NGOs. What is the potential role for NGOs within that concept and how has it started to emerge?
4.3 The Emerging Role of NGOs in the Implementation of Sustainable Development
Sustainable development can be implemented in many ways. The law is an important part but there are cases that have proven that massive public education, raising awareness and thus ensuring ‘compliance’ with sustainable behaviour may prove more effective for environmental protection than the law.154 A prerequisite is information, dialogue and education. This can very well be fostered by NGOs and other civil society groups. It is necessary then, to implement the concept into the many groups of civil society. Also, public pressure is essential for any new, sustainable policy, i.e. to transfer the change in values from the people to the legitimised. NGOs and CSGs have always lived up to the function of exercising such pressure.
As early as 1972, the Stockholm Declaration formulated at UNCHE, acknowledged (even if with a clear anthropocentric wording) that in order to defend and improve the human environment for present and future generations, a responsibility by citizens and communities and by enterprises and institutions at every level is needed, all sharing equitably in common efforts.155 Both the scientific community, acting as information brokers, and non-governmental communities played a vital role in UNCHE.156 In addition, principle 19 recognised that education in environmental matters was regarded as essential, even if the focus of this was rather directed to the Food and Agriculture Organisation.157
31. Further see M. C. Mehta v Union of India and Others [1991] INSC 313; [1992] 1 SCC 358.
The Report of the World Commission on Environment and Development158 was the first to recognise the insufficiency of the state-centric system to find solutions for “common concerns”. Therefore, the report called for the closer involvement of all ‘stakeholders’, including civil society in its organised form159 in order to reach ‘sustainable development’.It pointed out that the transition to sustainable development, i.e. to reverse unsustainable development at the national and international level, would require a range of complex and politically difficult choices. The scientific community, private and community groups and NGOs could play a central role in the immense effort required to inform the public and to secure its support.160 This would require a substantial strengthening of their capacities since many of these bodies are national or local in nature. This again could be achieved by strengthening NGOs’ association with their counterparts in other countries and of their participation in international programs and consultations. NGOs in developing countries were in particular need of international support. They needed moral support as well as professional and financial assistance, in order to carry out their roles effectively.161 Thus, one important feature identified by the Commission is the build-up and strengthening of networks of local and regional NGOs. This could be provided for by international bodies and coalitions that link together NGOs in the different continents as well as those that work on particular environmental issues. The Environment Liaison Centre (ELC) in Nairobi, with more than 230 NGO member groups (the majority from developing countries) and contact to more than 7,000 others is a prime example of this approach and provides a global network for information exchange and joint actions.162 Capacity building for leadership and cooperation among a wide variety of organisations, operating in their respective constituencies, were regarded as being increasingly important.
The Commission acknowledged that NGOs work on behalf of the world community and needed substantially increased financial support to expand their services that, in the Commission’s view, represented an indispensable and cost- effective investment.163 Therefore, it recommended that NGOs be accorded high
priority by governments, foundations, and other private and public sources of funding.164
During a public hearing held by the Commission, the Commissioner for the Environment of the (then) European Economic Community165 made a statement that, by implication, points to a further service that NGOs may supply:
“[T]o achieve the goals of sustainable development, good environment, and decent standards of life for all involves very large changes in attitude.”
(Stanley Clinton-Davis)166
These changes could be brought forward and integrated by, primarily, national and local NGOs as they have contact to target groups. It is not so easy for public agencies to identify and establish contact with these target groups. Also, a change in attitudes is determined by values, which again can only be ‘formed’ by and with a view to human beings and less by economic or political institutions.
To strengthen the role of NGOs, Agenda 21, the non-binding Action Plan agreed upon at the Rio Conference,167 called upon all international organisations, in consultation with NGOs, to take measures to increase the participation of NGOs in policy and decision-making. Thus, Agenda 21 is very cognisant of the important and emerging functions of NGOs. It also enables them to exercise an important function in the implementation of Agenda 21. The Rio Declaration introduced new principles including, inter alia, public participation.Outside the official conference meetings the NGO ‘society’ held a parallel forum which has become ‘common practice’ now with large international conferences. This ‘Global Forum’ drafted 32 alternative treaties to the ones that were on the agenda of the official UNCED delegates, and an ‘Earth Charter’ setting out overarching values for environmental governance. The latter was, initially, to be adopted by the state parties as a comprehensive agreement to guide the further development of international environmental law. Instead, the State parties adopted the Rio Declaration, which despite setting out some general principles does not include this wide range of uniform values that provide guidance for further legal development. However, at least, the Declaration acknowledged that sustainable development required the reduction and
elimination of unsustainable patterns of production and consumption (Principle
8) and that states and people shall cooperate to this end (Principle 27). Perhaps even more importantly, Principle 10 provides that environmental issues are best handled with the participation of all concerned citizens, at the relevant level. This may be viewed as legitimising the importance of public participation in environmental decision-making and reaffirming the right of access to information.168
Agenda 21, clearly called for a strengthening of the role of NGOs as “Partners for Sustainable Development” (Chapter 27). Importantly, the agenda acknowledged that to effectively reach the aim of “environmentally sound and sustainable development” less formal approaches would be needed in addition to the traditional patterns of international law. This is visible in the requirement to make NGOs “social partners” (article 27.6.) for sustainable development. These requirements included, in addition to the claimed expanded and enhanced involvement of NGOs in IGO activities, the necessity for partnerships and dialogue between local NGOs and local authorities in activities aimed at sustainable development and making the best use of NGOs capacities, especially in the fields of education, public awareness, poverty alleviation, environmental protection and rehabilitation (article 27.10. (a)-(d)). Noteworthy, in legal terms, is that article 27.13 requires governments to ensure the right of NGOs to protect the public interest through legal action.
Thus, the significance of both the formal and informal actions of NGOs in the international arena is clearly recognised. Following from this it would be inconsequent to ignore the efforts undertaken by the huge number of NGOs at the ‘Global Forum’ in expressing their collective will by promulgating alternative treaties, the Earth Charter being the principal document.169 However, the crux is that Agenda 21 and the provisions that emerged from the official UN Conferences, guided by the Rio Declaration, which regards ‘human beings at the centre of concerns for sustainable development’ (Principle 1), define ‘sustainable development’ in anthropocentric terms. The disappointment of NGOs regarding the commitments in the UNCED documents and the establishment of an overarching instrument for further environmental governance lead to concrete activity by the non-governmental community. The 32 alternative treaties and the Earth Charter, drafted by NGOs, are now circulated to NGOs globally for adoption and implementation.
The Commission reinforced the notion that rights do not go along without responsibilities and
“[...] therefore urge[d] the international community to unite in support of a global ethic of common rights and shared responsibilities.[...] [S]uch an ethic [...] would provide the moral foundation for constructing a more effective system of global governance.”170
The Rio Earth Charter inspired the Earth Charter that was approved by the Earth Charter Commission, comprising such prominent members as Mikhail Gorbachev171 and Maurice Strong,172 in 2000173. It is a comprehensive synthesis of values, principles, and aspirations that reflect the international consultations conducted over several years, and are also based upon contemporary science, international law, and the insights of philosophy and religion.174 This ethical framework for sustainable development suggests a code of conduct with a view to man’s interdependent existence with the environment, as well as the recognition of intrinsic values. The Earth Charter thus pursues ecologically sustainable development. It is the first international document to implement eco-centric thinking into decision-making at national and international level.175 Taking a holistic view of the interlinked causes that impact upon the Earth’s ecosystems it calls for radical changes in human behaviour in the sense of interdependence and shared responsibility, as well as for a fundamental re-orientation of national and international affairs.176 It includes participatory processes involving civil society.Actually, the state parties to the UNCED were supposed to confirm a more overtly ecological ‘Earth Charter’. The Rio Declaration that was adopted instead, also refers to sustainable development, however, merely with a view to directing the behaviour of states. Principle 8 requires that “[t]o achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption [...]”. (Even though this also clearly includes an anthropocentric notion with the reference to man’s well-being, one may notice from the division of sustainable development and human life quality, that the latter is not the sole aim of sustainable
176 Taylor, supra 88, 327-328.
development. The Earth Charter seeks to encourage the educational implementation of the expressed values and principles177 and seeks dissemination, endorsement, and implementation of such by civil society, business, and government.
A number of the principles included in the Earth Charter are frequently referred to in international treaties and other binding documents, e.g. the principle of sustainable development and the precautionary principle. The importance of ethics for sustainable development is recognised and visible in Article 5 of the Plan of Implementation of the Johannesburg Declaration on Sustainable Development. President Mbeki of South Africa in his opening speech at the Johannesburg Conference referred to the principles of the Earth Charter. The acknowledgement of major principles included in both the Earth Charter and intergovernmental documents may make it more likely for the whole of the Earth Charter to find recognition in time. This might not happen explicitly but by continual reference to it, which may drive it down the “soft law avenue”.178 Another way that the Earth Charter could become a soft law instrument could be its conversion into a UN Draft Earth Charter, either together with the IUCN Draft International Covenant on Environment and Development or as a freestanding document.179 The IUCN has expressly stated in the Foreword to the second edition of the Draft International Covenant that the drafters of the “Earth Charter” have been consulted “to ensure consistency among the principles set forth in both texts”. The draft has apparently already been used by public authorities as a checklist for national legislation fostering sustainable development.180 Also UNESCO has adopted a resolution recognising the Earth Charter as an important ethical framework for sustainable development, the principles, objectives, and contents of which coincide with UNESCO’s Medium- Term Strategy for 2002-2007 (which includes ‘Education for Sustainable Development’).181
The Earth Charter defines ethics for sustainable development. Civil society is a crucial addressee of these ethical guidelines. The fact that NGOs are needed for the realisation of these ethics through dissemination, endorsement, and
Worldviews 62, 72.
educational promotion has been acknowledged; not only did they draft the Earth Charter after an extensive consultation process but they will also adopt it, incorporate it within their agendas, make it public and encourage public dialogue within civil society and local governments. This process aims at changing individual attitudes and leading to concrete action through providing guidelines for local projects that have an ecological impact, and through influencing individual behaviour by raising awareness, informing about more sustainable alternatives to environmentally disadvantageous activities, etc.
Another idea invigorated by the perception of man’s interdependence with nature, and underlying the justice principles of sustainable development, as contained in the Earth Charter, is that of guardian- or trusteeship. This idea, in legal terms, is generally defined to mean a person who is entitled to exercise and enforce the rights of those who are not capable of doing it themselves. In international law, this concept is known with regards to states being the trustee of the ‘global commons’. This concept influences the way in which respective decisions are reached.182 The acknowledgment of global environmental protection as a “common concern of humanity” redirects the focus from individual sovereign rights and interests to global concerns and responsibilities. The full effectiveness of this concept requires that the whole environment, not only the commons, must, where necessary, be given greater priority than national self-interests.183 Judge Weeramantry regarded the principle of trusteeship of earth resources as one of the concepts which modern environmental law can profit from.184As already emphasised by the CGG, there are no rights without responsibilities.185 The ecological ethics suggest – in a wider sense of this concept
– that all humanity, not just political and legal authorities should also act as guardians. This may lead, for example, to individual property or behaviour being subject to this role.186
With a view to NGOs, the guardianship idea could be used to establish those organisations that have the appropriate focus, such as Greenpeace or the WWF, as the ‘legal voice’ for important habitats etc.187 Their task would be to monitor
Environmental Law for a Sustainable Society 123, 142.
184 Supra 56, 110.
the factual circumstances pertaining to conventions already in place as many of them do not have a compliance review process.188 By this function, the guardian could reveal gaps in the law, make recommendations and suggest alternatives. Further, it could act as an intervenor-counsel in international disputes.189 This is connected with the issue of legal standing for NGOs.
4.4 Conclusion
While states will remain the primary actors in international negotiations, environmental and development issues are global in scope, and depend, inter alia, upon the actions of individuals, private organisations and corporations, and thus transcend states.190 In practice, NGOs can help to assess the local impacts of projects and to support their design and implementation. The importance of local level is repeatedly emphasised.191 Also, NGOs have the capacity to build international support for actions, inter alia, by gaining the interest of the media.192 At the local level, NGOs have the opportunity and capacity to contact private individuals, to lobby local authorities in their decision-making and to direct attention to local activities that cause harm to the local environment.
5. CONCLUSION
Civil society has an important role to play within global environmental governance. Their creativity, flexibility, entrepreneurial nature and capacity for vision and long-term thinking often set NGOs apart from governmental bodies.193 NGOs have considerable influence on international policy and law-making, though they are not genuinely integrated as equal partners. Even if their participation were to be enhanced by expanding their rights in international decision-making processes and providing for a genuine consideration of their expertise etc. this may make the law more effective and international decision- making more legitimate but, alone, may not bring with it the sufficient change
needed to prevent further severe environmental degradation.194 This requires a change in attitudes on all levels, importantly including the ‘bottom’. The pivotal position that NGOs can play to support this change cannot be adequately accommodated by the law. As an alternative, the concept of global governance, including the law as one column but also integrating other avenues to approach global problems, is able to accommodate the variety of functions that civil society groups can fulfil.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2004/3.html