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New Zealand Journal of Environmental Law |
Last Updated: 19 January 2023
41
The Role of NGOs in Multi-lateral
Environmental Agreement Compliance
Fionna J Cumming*
In the wake of the Rio+20 United Nations Conference on Sustainable Development, the public is looking beyond states towards civil society for meaningful responses to the global environmental crisis. Non-governmental organisations (NGOs) play a major role in many aspects of international environmental governance, including setting international norms and being actively involved in the creation of inter- state environmental law. This article explores opportunities for greater public participation in promoting state compliance with international environmental obligations in multi-lateral environmental agreements. Possibilities cover a range of confrontational and non-confrontational means. The ground-breaking non-compliance procedure (NCP) set out in the Aarhus Convention provides a precedent framework for the practical realisation of public participation in the enforcement of multi-lateral environmental agreements. A greater role for NGOs means further efforts need to be made to address issues of legitimacy and accountability. Despite these difficulties, significant opportunities exist to achieve greater state compliance with international environmental obligations through meaningful public participation.
*LLB (Victoria University of Wellington). The author is an enrolled barrister and solicitor of the High Court of New Zealand (2005) and an enrolled solicitor of the Senior Courts of England and Wales (2010). This article was written while she was studying towards a Master of Laws (Environmental Law specialisation) at the University of Auckland. She wishes to thank Professor Klaus Bosselmann for his guidance and advice. All errors are her own and the opinions expressed in this article do not reflect any institution with which she is affiliated.
1. INTRODUCTION
The outcome of the Rio+20 United Nations Conference on Sustainable Development (Rio+20) held in June 20121 was widely regarded by political leaders and nongovernmental organisations (NGOs) as disappointing.2 The outcome document of Rio+20 commits to a set of sustainable development goals, but these aspirations remain lofty and lack definite timescales.3
With the global environmental crisis worsening, this is no time for disappointing outcomes. It is, therefore, unsurprising that the public is looking beyond states and towards civil society to step in to the place of governments in promoting effective implementation of strong sustainable development principles.4 Now, more than ever, is a crucial time to look at ways to tap in to the resources and imagination of civil society in promoting implementation in international environmental law.
It is against this background that this article considers a specific area where NGO activity is growing: in the compliance and enforcement of multi lateral environmental agreements (MEAs). International environmental law has responded in large part to the global environmental crisis by creating a significant body of MEAs,5 placing state parties to these agreements under various environmental obligations. Many of these agreements contain promising pledges and relate to key aspects of global environmental protection, including climate change, management of hazardous substances and chemicals, prevention and control of pollution, desertification, management and conservation of natural resources, biodiversity, wildlife, and environmental and human safety and health.6
Traditionally, states are viewed as the subjects of international law, and MEAs are between and among states. Individuals and the public receive the benefits of these agreements indirectly via the state.7 However, the major problem faced is that compliance with MEA obligations by states is generally considered to be weak. Where enforcement provisions exist, compelling compliance with MEA obligations by way of coercive means is limited to inter state dispute mechanisms which are rarely resorted to.
The failure to comply with MEA obligations can be seen in a wider context of state failure to put ecological concerns over economic growth. While sustainability may be on the agenda for many states, it is losing out in a balancing act where the scales are tilted in favour of economic and social issues.8 Civil society is seen as the “true driver” of strong sustainability models, which place ecological considerations above economic gain.9
This article acknowledges that nonstate actors, including NGOs, play an important role in many aspects of international environmental law, such as contributing to lawmaking efforts, and raising public awareness. It is outside the scope of the article to consider all aspects of the NGO effort, and for this reason, it focuses its enquiry on the increasing role for NGOs in MEA compliance and enforcement.
In making this enquiry, part 2 of this article considers the failings of state responsibility within a framework of international environmental governance. Part 3 considers what constitutes an NGO and the current legal status of NGOs in international law. An overview of the existing framework for international public participation is provided in part 4, and parts 5 and 6 provide a summary of existing public participation in nonconfrontational and confrontational compliance mechanisms. The article concludes by presenting the case for an increasing role for NGOs in MEA compliance and enforcement, and offers an outlook on future options.
(Ashgate, Aldershot, 2008) at 73–74, 193.
2. TOWARDS INTERNATIONAL ENVIRONMENTAL GOVERNANCE
2.1 Background
For the purposes of this article, an MEA is simply defined as “a legally binding instrument between two or more nation states that deals with an aspect of the environment”.10 MEAs establish mutually agreed international obligations which state parties have promised each other they will meet.11 Rules and obligations under MEAs have proliferated over the last 20 years. However, compliance with MEAs remains poor,12 and many MEAs lack meaningful enforcement mechanisms.13 Where dispute settlement mechanisms are present, they are rarely used, and no global environmental enforcement body (such as a dedicated International Court for the Environment) exists to enforce MEA obligations. Arguably, states are able to “choose” whether to comply with MEA obligations.14
The perceived lack of effective compliance and enforcement by states with international legal obligations has led to frustration and disenchantment among the public and public interest environmental groups, such as NGOs. This is increasingly apparent following Rio+20. NGOs did not support the outcome of the conference15 and demanded that the words “in full participation with civil society” be removed from the opening paragraph of the outcome document.16 The outcome of Rio+20 combined with the perceived failings in MEAs as effective tools of binding obligations has led a respected environmental journalist to opine that “giving up on global agreements or, more accurately,
on the prospect that they will substantially alter our relationship with the natural world, is almost a relief ”.17
As noted above, the public is looking beyond states and towards civil society to step in to the place of governments in leading action towards effective international environmental protection.18 NGOs and other nonstate actors have been playing an increasingly important role in international environmental governance since the United Nations Conference on Environment and Development in 1992 (the Rio Earth Summit).19 There is a growing awareness that environmental defence and protection is primarily a public interest and cannot be adequately dealt with through the frame of private state interests.20
2.2 Theoretical Premise
“International environmental governance” is a term principally developed through international relations theory.21 In a legal context it could be described as a move beyond positivism, towards a realist appreciation of law as a social institution.22 This approach does not see the law as an end in itself: it is an actionoriented model that focuses on legal and political processes in which a wide range of actors or “participants” take part.23 In international environmental governance, the principal actors are seen as states, regional and universal international organisations, NGOs and individuals.
Reviewing public participation in the compliance and enforcement of states’ obligations with MEAs within a theoretical model of international environmental governance has several advantages. The traditional, positivist stance has its roots in the Westphalia interstate system, and recognises the subjects of international law as states, international organisations and a limited number of historic legal subjects.24 Moving beyond a positivist conception of law allows us to focus not only on the existence and wording of international
environmental agreements, but rather allows us to consider their operation in practice. Put simply, it is not sufficient to simply note that an MEA places obligations on state parties; instead the enquiry will extend to the actual effect of these obligations: the actors, processes, and actions taken.
Further, using an actionoriented model to approach this study provides a framework through which we can look beyond traditional actors (being states and international organisations) to a multiactor governance system.25
This article acknowledges that nonstate actors play major roles in many aspects of international environmental governance, including setting norms and the creation of international environmental law.26 However, a full enquiry into all aspects of this contribution is outside the article’s scope. Instead, this discussion is concerned with a specific aspect of the role of non-state actors in international environmental governance: the role that NGOs might play in the compliance and enforcement of MEA obligations. Within the framework of international environmental governance, both forprofit and nonprofit actors, individuals and other elements of civil society are no longer merely tolerated but are actively involved in aspects of international environmental law, including compliance and enforcement.27
3. INTER-STATE COMPLIANCE AND ENFORCEMENT
3.1 Compliance and Enforcement
Compliance and enforcement are not, of course, the same. Black’s Law Dictionary defines “enforcement” as the “act or process of compelling compliance with a law, mandate, command, decree, or agreement”.28 As such, in this context it must be noted that the term “enforcement” implies a degree of coercion or a repressive approach against a state to compel compliance with international environmental obligations. Classic enforcement of an international environmental obligation may take the form of an arbitral decision, or a judgment of the International Court of Justice (ICJ ) or other international tribunal.
While Black’s Law Dictionary does not define “compliance” as a term, it is noteworthy that enforcement is described essentially as a tool to compel compliance. Enforcement is therefore a subset of or a means to achieve
of NGOs?” in PierreMarie Dupuy and Luisa Vierucci (eds) NGOs in International Law: Efficiency in Flexibility? (E Elgar, Cheltenham, 2008) 1 at 2.
26 At 244.
compliance. Compliance suggests a meeting of legal obligations, whether they are general or specific, by any means, whether voluntary or coercive. Put simply, compliance can mean simply the fulfilment by a party of its obligations under an MEA,29 or “an actor’s behaviour that conforms to a treaty’s explicit rules”.30
Historically, in the absence of central authorities or international institu tions, the enforcement of international law was a bilateral action taken by the aggrieved state.31 Our understanding of enforcement has broadened, both from the perspective of the range of actors (from states to international organisations, and nonstate actors) and also in terms of the proliferation of reporting, review and compliance procedures, and dispute resolution options.32
3.2 Compliance Theories
There are two broad sets of theories surrounding compliance issues in international law, developed through interdisciplinary debate between international relations theorists and international lawyers.33
(1) Rationalist theories
The rationalist approach, based on theories of political economy, has tradi tionally dominated debates about compliance with international obligations. Based on the dominant political theory of rational liberalism, states are viewed as autonomous, self-interested, rational actors that calculate the benefits of compliance and act accordingly. This theory leads to an emphasis on formal means of compliance and enforcement, such as sanctions or awards imposed through judicial or arbitral action.34
(2) Voluntary compliance
Recent thought provides an alternative to rationalist theories by placing a greater emphasis on “social conscience” as a motivating factor in voluntary
32 At 4–5.
33 At 9.
34 At 10.
state compliance. Moving beyond a traditional emphasis on rational selfinterest and power balances allows for a greater focus on the motivating influence of international norms in shaping state behaviour and compliance.35 It may be that formal legal obligation is not as significant a factor in explaining state compliance as previously thought.36 International norms, even when non binding, may strongly influence state behaviour,37 and compliance with new nonbinding norms can quickly lead to the formation of customary international law.38 The increasing recognition of voluntary compliance models has led to greater emphasis being placed on the active management of MEA compliance, which calls for a cooperative approach.39
The purpose of this article is to consider the role of NGOs in MEA com pliance and enforcement efforts. It is clear that both theories of compliance summarised above are relevant to this investigation. Developments in recognising voluntary compliance are part of the move towards international environmental governance, with a focus on law as a social institution operating within a wider governance structure. State parties are likely to comply with the terms of MEAs because they have voluntarily ratified or acceded to the treaty, and have general or specific intentions to comply with its terms. Viewing law as a social institution reminds us that not all relationships in business, neighbourhoods, or in families are formalised, but are still generally followed as they are governed by informal social norms and voluntary arrangements.40 This means that voluntary compliance has significant force behind it. Civil society, including individuals and NGOs, has a role to play in building on this natural “compliance pull”, as they can both build capacity for compliance by way of cooperative efforts, and also by exerting normative pressure on states.41 However, there are limitations to voluntary compliance. Some parties may find it preferable to violate an MEA if the benefits of non-compliance outweigh the costs. This is particularly the case given the current institutional bias of states towards economic growth, discussed in the introduction to this article. Other reasons for non-compliance include financial, administrative or technological incapacities, rather than a lack of intention to comply.42 Alternatively, state noncompliance may be inadvertent: the state party may
37 At 62.
38 At 63.
41 At 70.
42 Mitchell, above n 30, at 12.
be unaware of its noncompliance, due to a lack of adequate reporting, or by failures in policy, uncertainty or unforeseen circumstances.43
Noncompliance by preference may arise when the sociopolitical or economic benefits of complying with an MEA are outweighed by the benefits of noncompliance.44 A state’s interests may be furthered by signature, but not compliance: particularly if compliance by other parties is in the interests of that state.45 An example of this may be identified in the bluefin tuna dispute which pitted Australia and New Zealand against Japan over harvesting limits for southern bluefin tuna.46 The three countries entered into an MEA to set harvest limits for this threatened species. However, Japan unilaterally increased catch levels under the guise of a scientific fishing programme which effectively meant it took more than its share under the MEA.47 It could be argued that the socio-political and economic incentives to fish a higher than agreed yield of southern bluefin tuna meant that Japan ceased voluntarily complying with the MEA it had signed. In this case, the International Tribunal for the Law of the Sea (ITLOS) found it did not have jurisdiction to decide the complaint, and therefore no sanctions were imposed.48 However, deliberate noncompliance of this nature highlights that while sanctions are not always needed to ensure cooperation, they may be required in instances where strong incentives exist for noncompliance.49
3.3 Failings in Inter-state Compliance and Enforcement
Until the 1970s, states were considered not only as the primary but the sole actors in international environmental law.50 States have remained the primary actors in their roles as authors, addressees and guardians of international environmental law.51 State sovereignty has held pride of place in the resolution of international disputes since the 1700s,52 and despite developments in various
43 At 13.
51 At 247–249.
52 Gillroy, above n 47, at 18.
MEAs including the Aarhus Convention53 (discussed below) states have a key role in initiating and deciding noncompliance procedures.54
As noted above, there is widespread agreement that traditional enforcement of international environmental obligations, with a sole focus on state respon sibility, is not comprehensively effective.55 In addition, there is increasing awareness that the global environmental crisis is not (and cannot) be adequately confronted by states alone:56
In the twenty-first century, a wide range of complex global challenges will require unprecedented levels of global cooperation. However, most of the international institutions we inherited from the last century were designed only to promote cooperation among states in the context of a very different world in the wake of World War II. Sixty-five years later, many of today’s biggest challenges can no longer be managed or solved by states alone, but instead require the resources, ingenuity, and connectivity of diverse societal actors.
Recent decades have also emphasised that environmental problems are often not confined within state boundaries.57 Major environmental problems including climate change, seabed mining, transboundary pollution, movement of hazardous goods, and population control affect the entire biosphere and are of global concern.58 As Judge Weeramantry has pointed out:59
We have entered an era of international law in which international law subserves not only the interests of individual States, but looks beyond them and their parochial concerns to the greater interests of humanity and planetary welfare. In addressing such problems, which transcend the individual rights and obligations of the litigating States, international law will need to look beyond procedural rules fashioned for purely inter partes litigation.
International environmental governance represents a move away from a statecentric, sovereigntybased view toward the recognition of interests that
55 At 248.
transcend national boundaries, and are common to humanity.60 As concepts such as “common property”, the “common heritage of mankind” and issues of “common concern”61 become more acceptable in international law, disputes involving these common interests will arguably need to become open and multi lateral in nature.62
4. PUBLIC PARTICIPATION
Protecting the environment and the goal of sustainable development will only be achieved with active cooperation of a wide range of state and nonstate actors.63 So who are the “nonstate actors”?
The Rio+20 outcome document states that sustainable development requires the meaningful involvement and active participation of “major groups”. Major groups are listed as: women, children and youth, indigenous peoples, NGOs, local authorities, workers and trade unions, business and industry, the scientific and technological community, and farmers, as well as other stakeholders, including local communities, volunteer groups and foundations, migrants and families, as well as older persons and persons with disabilities.64 All of these groups, as well as individuals, make up and contribute to civic society.
This article is concerned with public participation generally, but focuses particularly on the role of NGOs. The reason for this is because current legal scholarship emphasises the role of NGOs with great significance in international environmental governance. For this reason, it is worth considering in greater depth what the term “NGO” covers.
4.1 Defining NGOs
NGOs are our best defence against complacency, our bravest campaigners for honesty and our boldest crusaders for change.65
61 At 564.
62 At 565.
There is no one internationally accepted definition of “NGO”.66 De facto, NGOs represent a very large spectrum and the role, motivating purpose, objectives, size, capacity and institutional sophistication between NGOs is vast.67
The United Nations Economic and Social Council (ECOSOC) defines NGOs broadly for the purposes of its consultative arrangements as “[a]ny international organization which is not established by intergovernmental agree ment”.68 National organisations may be accredited in exceptional cases after consultation with the member state concerned.69 ECOSOC lists over 3400 NGOs as holding consultative status.70
The Aarhus Convention defines the “public” as “one or more natural or legal persons, and, in accordance with national legislation or practice, their associations, organisations or groups”.71 It goes on to provide a narrower definition of the “public concerned” for application in its provisions relating to decisions on specific activities72 and access to justice,73 being “the public affected or likely to be affected by, or having an interest in, the environmental decision-making; for the purposes of this definition, non-governmental organi- zations promoting environmental protection and meeting any requirements under national law shall be deemed to have an interest”.74
What is clear from the above definitions is that they include both for- profit and non-profit NGOs. Non-profit entities are usually identified with civil society, and in the context of this discussion, hold an overall aim or objective of environmental defence or protection. For-profit actors represent business or commercial interests.75 This distinction may also be referred to as PINGOs ( public interest NGOs, representing society at large) and BINGOs (business oriented NGOs, representing industry and business).76
While international environmental governance has been influenced by both non-profit and for-profit NGOS,77 non-profit organisations (or PINGOs) are likely to play a larger role in MEA compliance and enforcement efforts. The
74 Art 2(4).
aim of for-profit or commercially oriented NGOs engaging in environmental issues is likely to be the minimisation of the environmental impact of their activities, but it may also be to lobby against regulatory measures taken on environmental grounds which may adversely affect their commercial interests.78 Public interest NGOs (and individuals promoting an environmental objective) are more likely to promote an aim of environmental defence and protection, and are therefore the most relevant feature of civic society in the consideration of MEA compliance and enforcement measures.
4.2 Base Criteria
Astrid Epiney has considered basic criteria to clarify and define what might constitute an NGO in the context of MEA compliance.79 This may be summarised as follows:
(1) Independence from states and governments
Under Epiney’s analysis, the crucial factor in this criterion is that NGOs are able to express independent views. Independence is also emphasised as a “major attribute of nongovernmental organizations and is the precondition of real participation” in Agenda 21.80 As in the case of organisations such as the International Union for Conservation of Nature (IUCN), this criterion does not necessarily imply that NGOs cannot receive funding from states or governments, provided the main objective (independence of views) is maintained. This criterion also distinguishes NGOs from organisations established by intergovernmental agreements.
(2) Recognised public objective
NGOs must pursue a recognisable aim, most likely reflected in specific competencies of the organisation. In the context of this study, the most likely aim for environmental NGOs is environmental protection, or specific aspects of environmental protection.
(3) Permanence
Epiney also expresses the view that an NGO must have a “certain stability” from a perspective of time, arguing that an NGO must orient its activities towards longterm goals.81
80 Agenda 21 A/Conf.151/26 (1992), para 27.1.
81 Epiney, above n 19, at 322.
This appears to be the most difficult criterion. Epiney indicates that organi- sations set up spontaneously to pursue an isolated political or other aim should be excluded from the base NGO definition. However, the use of faster, accessible electronic technology means the NGO community is now able to form and dissolve networks concerning specific topical issues quickly.82 In the context of environmental groups, organisations may form specifically to pursue a shortterm goal, such as the protection of a particular land or resource from development. If the aim of the organisation is successful, it would fall away. However, it is difficult to see why the organisation (for the duration of its existence) would not qualify for recognition as an NGO.
(4) Non-profit
Epiney also considers it useful to exclude entities with an exclusive or primary focus on commercial objectives, on the grounds that such organisations would not pursue independent compliance with international environmental law.
As noted above, these criteria provide a “base” standard to clarify what may constitute an NGO, within the paradigm of an investigation into NGO involvement in compliance with MEAs. Further criteria may become relevant depending on the nature and extent of participation in the compliance process. Epiney goes on to suggest that within the broad and diverse range of NGOs, certain characteristics may distinguish between classes of NGOs. These qualities are fairly selfevident and include aims and types of activities (research or political activities, or protest actions), membership characteristics ( private or government members, developing or industrial countries), governance structure, scope (regional, national, or international) and funding.83 The effectiveness of NGOs is likely to depend on these qualities.84
4.3 The Legal Status of NGOs
The international environmental law framework supports recognition of NGOs at the domestic level in environmental compliance and enforcement. NGOs are recognised as domestic creatures in various international documents, including the soft law documents mentioned below, and hard law documents such as the Aarhus Convention.
Whether NGOs may have international legal standing is a considerably more vexed issue. Public participation of NGOs at the international level is
weaker and less defined than that at the domestic level.85 What is clear is that the need to address international problems has led to the creation of trans national NGOs86 such as Greenpeace International (with over 3 million financial supporters),87 as well as networks of public interest NGO and professional groups such as the Environmental Law Alliance Worldwide.88 What is unclear is what status these groups might hold (if any) in international law.
Christine Bakker and Luisa Vierucci summarise four main viewpoints in the debate over the international legal status of NGOs.89 At the end of the scale is the traditional, positivist view of international law, which does not recognise legal personality other than for states and international organisations.90 Bakker and Vierucci consider this point of view at odds with the decision of the ICJ in its advisory opinion concerning the Reparations for injuries case.91 In this case, the Court considered the international legal personality of the United Nations and commented that “the subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights and their nature depends upon the needs of the community”.92
At the other end of the scale is an open, liberal attitude towards NGOs as subjects of international law.93 This attitude attempts to come to terms with the de facto contribution of public participation to international lawmaking and implementation. An open attitude towards recognition of NGOs has been encouraged by developments in the human rights field towards recognition that international rights and obligations are conferred on individuals and nonstate actors as well as states.94
A key concept that emerges at this end of the scale is the transcendence of the widespread and uncritical acceptance of the positivist “subject versus
<www.greenpeace.org/international/en/about/howisgreenpeacestructured/reports> at 3, 39.
object” focus of international law.95 Traditionally, subjects of international law are those seen as bearing rights and obligations, and objects are the rest.96 The alternative view is that discussed in part 2.2 above, and sees international environmental law as a dynamic decisionmaking process in which diverse actors participate.97
In between these two polar views are two distinct “in between” positions. The first represents a cautious recognition of NGOs within the traditional international legal framework.98 This position sees states as the principal subjects of international law; however, it also sees nonstate actors (including NGOs) as part of the formal international legal order.99 The second view is described as a “functional” position, because it recognises nonstate actors and NGOs within the international legal order; however, unlike the position above, it does not place them in the traditional international legal framework. This position avoids creating a fixed category for NGOs as subjects of international law, and prefers instead to make assessments on a casebycase basis.
5. THE EXISTING LEGAL FRAMEWORK FOR PUBLIC PARTICIPATION
5.1 Soft Law Documents
International environmental governance has seen a proliferation of soft law texts, including (but not limited to) major international treaties. There are many possible reasons for this;100 however, for the purposes of this discussion, two key facts are relevant. The first is that soft law documents may set key norms and international standards, which influence binding MEAs. The second is that soft law texts have the flexible advantage, as non-binding documents, that nonstate actors and NGOs can sign the instrument and may participate in compliance mechanisms.101
(Clarendon Press, Oxford, 1997) at 49; Kalas, above n 7.
The Rio Declaration of the UN Conference on Environment and Development (the Rio Declaration)102 was adopted by consensus by more than 178 governments at the Rio Earth Summit.103 Though it is a soft law document, it is hardly possible to overstate the importance of the Rio Declaration. It has been described as the most significant universally endorsed statement of rights and obligations of states towards the environment to date.104 It uses mainly obligatory language and sets norms and standards for future law creation.105
Principle 10 of the Rio Declaration ( principle 10) concerns public partici pation and reads as follows:
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.
As noted above, the Rio Declaration is hugely significant as it represents the closest we have to a consensus on international norms for environmental protection.106 The commitment to implement the Rio Declaration was affirmed in the outcome document of Rio+20;107 however, an express reference to give further effect to principle 10 at the global, regional and national level was removed from the “zero draft” of the outcome document.108
105 At 112–113.
106 At 113.
Agenda 21109 was also adopted at the Rio Earth Summit in 1992 and sets out a programme of action under the Rio Declaration.110 The preamble to Agenda 21 encourages the “broadest public participation and the active involvement of the nongovernmental organizations and other groups”.111 Chapter 27 is titled “Strengthening the Role of NonGovernmental Organizations: Partners for Sustainable Development” and calls on a wide range of NGOs (classified as a major group) as partners in the implementation of Agenda 21.112 It sets as an objective the promotion of the “participation of nongovernmental organi zations in the conception, establishment and evaluation of official mechanisms and formal procedures designed to review the implementation of Agenda 21 at all levels”.113
The Rio Declaration and Agenda 21 were reaffirmed a decade later at the World Summit on Sustainable Development (WSSD) held in Johannesburg in 2002.114 Informally called “Rio+10”, the WSSD acknowledged the increasing role of the public sector (including non-profit and for-profit organisations) in the implementation of sustainable development.115 In his opening speech, UN Secretary-General Kofi Annan stated that “[a]ction starts with Governments ... [b]ut Governments cannot do it alone. Civil society groups have a critical role, as partners, advocates and watchdogs. So do commercial enterprises. Without the private sector, sustainable development will remain only a distant dream.”116 WSSD has also been identified as representing a key shift in emphasis
from public participation in the making of domestic and international environmental law, to the idea of partnership in the implementation of international environmental principles.117 Over 300 voluntary multistakeholder partnerships aimed at implementing sustainable development are contained in
109 Agenda 21 A/Conf.151/26 (1992) [Agenda 21].
<www.un.org/events/wssd>. 115 Tanzi, above n 57, at 136.
the Commission for Sustainable Development (CSD) Secretariat Partnerships Database.118
The general shift from lawmaking to a focus on lawimplementation is evident in the outcomes of WSSD.119 This is most evident in the Johannesburg Plan of Implementation (JPOI) which provides that states must:120
[e]nsure access, at the national level, to environmental information and judicial and administrative proceedings in environmental matters, as well as public participation in decisionmaking, so as to further principle 10 of the Rio Declaration on Environment and Development [...].
The outcome document of Rio+20 reaffirms commitment to full implementation of the Rio Declaration, Agenda 21 and the JPOI.121 The document commits to “reinvigorating the global partnership for sustainable development” launched at the Rio Earth Summit and recognises “the need to impart new momentum to our cooperative pursuit of sustainable development, and commit to work together with major groups and other stakeholders in addressing implementation gaps”.122
The outcome document contains a section on “engaging major groups and other stakeholders”,123 which acknowledges that broad public participation, access to information, and judicial and administrative proceedings are essential to the promotion of sustainable development.124 The outcome document also notes the “valuable contributions” made by NGOs in promoting sustainable development through experience, expertise and capacity, especially in the area of analysis, sharing of information and knowledge, promotion of dialogue and support of implementation.125
A further outcome of Rio+20 is the future establishment of a “universal intergovernmental high level political forum” to replace the CSD.126 The
specific purpose of the new forum is to “follow up on the implementation of sustainable development”,127 including the implementation of sustainable development commitments contained in Agenda 21 and JPOI.128
Paragraph 85(h) of the outcome document states that the new forum “could” promote such implementation through enhancing public participation at the international level, to make better use of NGO expertise, “while retaining the intergovernmental nature of discussions”.
5.2 Hard Law Documents
As noted above, the Rio Declaration is intended to form the basis for future lawmaking efforts, and against this background it is unsurprising that the public participation and access to information requirements set out in principle 10 above have been put into effect (to varying degrees) in legally binding obligations in various MEAs, and are finding their way into national constitutions and statutes.129 The Aarhus Convention is the most comprehensive multilateral scheme for giving effect to principle 10 of the Rio Declaration, and is discussed below.130 Other examples include the UNECE Protocol on Strategic Environmental Assessment, which provides that “each party shall ensure early, timely and effective opportunities for public participation, when all options are open, in the strategic environmental assessment of plans and programmes”.131 The 2003 African Convention on the Conservation of Nature and Natural Resources (revised version) contains an article guaranteeing access to information, public participation in environmental decisionmaking, and access to justice in environmental matters.132
5.3 Aarhus Convention
The Aarhus Convention leads the way in the promotion of principle 10, and has been described as the “cutting edge” of public participation standards133 and “the most ambitious venture in environmental democracy”.134
The Aarhus Convention is regional insofar as it was adopted within the UNECE.135 For this reason, participants include European Union states and former Soviet states; however, it is open to any state to join and therefore has potentially a global reach.136 Kofi Annan has stated that although “regional in scope, the significance of the Aarhus Convention is global. ... [I]t is the most ambitious venture in the area of environmental democracy so far undertaken under the auspices of the United Nations.”137
The Aarhus Convention covers the three pillars of public participation guaranteed in principle 10:138
(1) access to environmental information;
(2) public participation in decisionmaking; and
(3) access to justice.
Aspects of the Aarhus Convention are discussed in detail with regard to non confrontational and confrontational compliance mechanisms below.
6. NON-CONFRONTATIONAL MECHANISMS
6.1 Non-confrontational Mechanisms
Nonconfrontational means of public participation in MEA compliance and enforcement efforts require the cooperation and the consent of state parties.139 Nonconfrontational means are closely associated with the model of voluntary compliance set out in part 3.2 above, which recognises that most state parties have a general intention to comply with MEA obligations, and emphasises the importance of identifying the causes behind noncompliance.
Nonconfrontational means can be divided into three main areas: informal means; compliance assistance; and compliance control (including MEA non compliance procedures). These are discussed in turn below.
NGOs have historically played a major role in international environmental governance in the areas of politics, publicity and education. This is the arena that NGOs “normally inhabit”,140 and for this reason they could be referred to as the “traditional” roles of NGOs in international environmental governance. The independent information provided by NGOs, often in the form of reports, can be hugely influential in setting the domestic and international environmental agendas.141
In the specific context of MEA compliance, the independent information generated by NGO activities may raise awareness of state noncompliance with MEA obligations. In other words, NGOs can raise public awareness of issues of noncompliance and effectively “embarrass” governments into compliance. Another aspect falling into this category is the role that nonstate actors, including individuals and NGOs, can play in influencing whether a state exerts diplomatic pressure or takes other interstate action to enforce MEAs. Whether formal enforcement action is taken is not only a legal decision: it is primarily a political decision.142 An example of this is public pressure placed on the New Zealand and Australian governments to take action against Japan for perceived violations of the 1982 whaling moratorium.143 In weighing up whether to pursue formal judicial or arbitral proceedings against Japan, a key factor in Australia’s
motivation was the significant interest in the issue among the Australian public, to the point where litigation against Japan was included as part of 2007 federal preelection political party platforms.144
A further aspect of this traditional “publicity” role is that NGOs and members of the public may attend judicial proceedings relating to environmental obligations, and “report back” or publicise the proceedings and outcome.
Compliance assistance is often used where the cause of noncompliance relates to the capacity of state parties to meet MEA obligations.145 Forms of compliance assistance therefore focus on strengthening the capacity of the state party to meet obligations, and may include financial, technical and institutional assistance.146
NGOs may become involved in the provision of compliance assistance through international organisations such as UNEP, or independently by engaging their own resources.147 A current example of compliance assistance is the Pacific Oceanscape initiative, in which Pacific Island nations are collaborating with regional intergovernmental agencies and international NGOs (including Conservation International) to join their exclusive economic zones (EEZs) into a single large spatially managed ocean reserve.148
Compliance control refers to means established in a formal or institutional way that contribute to controlling the compliance of state parties to MEA obligations. Means of compliance control are often governed by international bodies established under the relevant MEA.149
In the context of this discussion, the most significant form of compliance control is formal procedures established under MEAs to address instances of cases of MEA noncompliance: known as noncompliance procedures (NCPs).150 NCPs are discussed in detail below.
Sea, International Dispute Settlement and International Environmental Law” [2009] AUYrBkIntLaw 5; (2009) 28 Australian Year Book of International Law 131 at 153.
146 At 326.
147 At 326.
Other forms of compliance control include the following:
(i) Monitoring and reporting
Many MEAs place monitoring and reporting requirements on state parties. NGOs can contribute to this process indirectly by providing expert advice and information to state parties, or directly, by providing expert advice and information (where permitted). Alternatively, NGOs could contribute where possible by providing independent, alternative information or data to complement or contradict official reports — particularly where official reports are incomplete or inaccurate.151 In this respect, the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)152 example is particularly relevant, in that NGOs ( particularly Traffic International) have formed close relationships with the CITES Secretariat.153 The CITES Secretariat accepts data via the World Conservation Monitoring Centre, a collaboration between UNEP, IUCN and the Worldwide Fund for Nature (WWF).154 Traffic International’s work identifying trade routes, underlying causes and demand, and investigating wildlife smuggling has contributed to the effective implementation of CITES.155
(ii) Inspections
Although not common, there are examples of NGOs contributing to inspections under MEAs. An example can be found in the undercover operations conducted by WWF and Traffic International in cooperation with the CITES Secretariat to help enforce provisions of CITES within the territories of state parties.156
6.2 Non-compliance Procedures
NCPs are designed essentially to manage state noncompliance with MEA obligations in a nonconfrontational and cooperative way.157 For this reason, they may be referred to as “nonjudicial” or “quasijudicial”.158 Many NCPs
are based on provisions set out in the Montreal Protocol;159 however, they vary significantly particularly in the level of permitted public participation.
Despite significant variations, MEA NCPs contain common elements. Cesare Pitea, a leading commentator on NGO involvement in NCPs, identifies the following three features that are typically present in these procedures.160 The first is that NCPs have been established principally to overcome the widely acknowledged difficulties in seeking compliance with MEAs through judicial or arbitral means, discussed in part 3.3 above. Second, NCPs typically provide that the Conference of the Parties (or Meeting of the Parties) for the given MEA sets up a dedicated committee for the execution of the NCP. This is often called the “Implementation” or “Compliance Committee”.161 For the avoidance of confusion, in this article such committees are always referred to as “Compliance Committees”. Third, Compliance Committees consider individual cases of noncompliance by parties. In some cases Compliance Committees may also undertake the general task of monitoring compliance through general reporting and review procedures.162
Significant MEAs that contain NCPs include the Montreal Protocol,163 the Kyoto Protocol164 and the Basel Convention.165 The NCP model that currently allows for the greatest level of public participation is the Aarhus Convention.166 In a finding of noncompliance by a Compliance Committee, direct action is rarely envisaged.167 Instead, action is aimed at pressuring the non complying party to voluntarily comply, and may take the form of providing recommendations, advice and other compliance assistance to noncomplying
161 At 182.
parties;168 assisting with voluntary compliance plans;169 issuing declarations or cautions to noncomplying parties;170 or the suspension of certain rights or privileges under the relevant MEA.171
Of particular note, in instances where a party to the Kyoto Protocol has exceeded its assigned emission amount, the Compliance Committee may apply a range of punitive measures including suspending eligibility to make emission transfers.172 The Compliance Committee under the Kyoto Protocol has suspended Greece, Croatia and Bulgaria from participating in mechanisms under the Protocol.173 This can be seen either as a sanction or as a model of “incentives and disincentives”.174
In the past, trade restrictions have been applied as sanctions for non compliance with the Montreal Protocol.175 However, as it currently stands, the majority of complaints dealt with by the Montreal Compliance Committee relate to instances of noncompliance by developing states. As such, the typical outcome of the Montreal NCP at present is to provide compliance assistance.176 Ultimately, as for all NCPs referred to in this article, the intended purpose of consequences for noncompliance (as, arguably for judicial and arbitral settlement of international disputes) is to put the noncomplying party back on the “right path”, rather than to impose punitive consequences.177
6.3 Public Participation in NCPs
Pitea points out that the majority of MEA NCPs do not contain explicit provisions on public participation.178 Only three MEAs have NCPs that
176 At 115–116.
formally recognise a role for NGOs in their institutional mechanism: the Aarhus Convention, the Water and Health Protocol,179 and the Alpine Convention.180 The role played by NGOs under many NCPs is, therefore, informal, and may vary depending on the developing practice of the relevant Compliance Committee. The lack of a formal, explicitly recognised role for NGOs in various NCPs does not necessarily mean that NGOs and nonstate actors cannot participate, and this is discussed further below.
Depending on the specific MEA, NCPs allow for varying levels of public participation. There are two main avenues of participation:181
(1) public participation in Compliance Committees; and
(2) “trigger” mechanisms.
I would suggest that there is a third possible option for NGOs to participate in NCPs: by providing information to Compliance Committees. Formal references to this role in NCPs under MEAs are extremely rare, and exist only under the Kyoto NCP182 which provides that “competent intergovernmental and nongovernmental organisations may submit relevant factual and technical information to the relevant branch”.183 The Basel NCP expressly acknowledges a party’s right to consider and use “relevant and appropriate” information provided by civil society.184
While some MEAs allow public attendance at meetings, the majority do not.185 Where public access is allowed, nonstate actors and NGOs may monitor the working of the Compliance Committee they attend,186 and report the workings back to the public at large. Where access is not allowed, NGO participation is limited to scrutinising Compliance Committee reports and documents.187 The Compliance Committee associated with the Montreal Protocol NCP does not allow public attendance at meetings. The general rule is that confidentiality
185 Pitea, above n 12, at 184.
186 At 183.
187 At 184.
applies and requests for attendance by NGOs have been refused.188 Meetings are generally open to the public as observers under the Aarhus Convention;189 however, Compliance Committee meetings may be closed if it is deemed necessary to ensure the confidentiality of information.190
A step up from this is allowing nonstate actors to join Compliance Committees as observers. In these cases, NGOs may influence the Compliance Committee’s agenda, and will have access to documents and reports. Observer status is rarely formally regulated. It falls to the practice of the Compliance Committee in question. Under the Aarhus Convention, NGOs may be represented at a meeting of the parties as observers provided they are “qualified in the fields to which [the] Convention relates”, and have informed the Secretariat that they wish to be represented at the meeting, unless onethird of parties present in the meeting object.191
Lack of formal recognition does not mean that parties cannot nominate individuals from NGOs to Compliance Committees, either in a personal capacity or as a state party representative.192 Under the Aarhus Convention NCP, qualified NGOs may nominate candidates for election as full Compliance Committee members.193
The rights of individuals and NGOs to initiate NCPs remain exceptional.194 The majority of NCPs only permit triggering by state parties, either as a self trigger or a partytoparty trigger, or by the secretariat of the relevant MEA. Nonstate actors are not entitled to trigger NCPs under the Basel,195 Montreal196 and Kyoto197 Conventions.
In the Aarhus Convention NCP, the public is able to issue communications which trigger the NCP.198 Each party is granted a 12month grace period from the date the Convention enters into force for that party before public
188 At 190.
192 Pitea, above n 12, at 188–189. 193 Aarhus NCP, Part VIII at para 30.
communications can be issued against it.199 Further, parties have until the expiry of the grace period to opt out of the public NCP process for up to four years.200 The Aarhus Compliance Committee must consider domestic remedies,201 and may refuse to consider a communication from the public if it determines the communication is anonymous,202 an abuse of the right to make such communications,203 manifestly unreasonable,204 or incompatible with the
Convention.205
7. CONFRONTATIONAL MECHANISMS
Currently, the primary avenues for legal enforcement by NGOs in environmental matters are still domestic tribunals,206 and NGOs often intervene at domestic level when locus standi is granted to them.207 Where granted standing, NGOs and individuals may take action before domestic courts to enforce international environmental obligations against state parties.208
Common law countries including the UK, the US and New Zealand have recognised standing rights for NGOs, although on the basis that the NGO litigant must show an interest in the issue beyond environmental concern.209 The Stichting Greenpeace Council case is a wellknown illustration of this issue.210 In 1998 the European Court of Justice (ECJ) upheld a decision of the Court of First Instance finding that Greenpeace International had no standing to challenge a decision of the European Commission to provide financial assistance to construct two power stations in the Canary Islands.211 Greenpeace International argued that NGOs should be granted locus standi in instances where the primary objective of the litigant is environmental protection, and where one or more of their members are individually concerned by the
contested decision, or where they can demonstrate a specific interest.212 The ECJ rejected the appeal on the basis that Greenpeace International was not “individually concerned” by the matter at hand.213 Where standing is granted, research has demonstrated that NGOs have high levels of success in public interest enforcement actions.214
There are limitations to using domestic legal systems to address envi ronmental protection. Domestic courts and tribunals are inadequate for addressing transnational environmental disasters.215 Bearing in mind the current dominance of state sovereignty (discussed at part 3.3 above), resolving interstate disputes through dispute resolution relies on both the consent and cooperation of the states involved.216 With this in mind, NGO participation in international disputes is often limited to indirect intervention by way of amicus curiae submissions, discussed below.
Amicus curiae (friend of the court) submissions are a type of intervention in judicial or quasijudicial proceedings whereby a third party (not represented in the litigation) presents information or a view to the court or tribunal.217 For instance, an amicus curiae intervention may be sought by the court or tribunal if the matter at hand is particularly technical and third party expertise is required. Amicus curiae participation may be granted to individuals, organisations, or governments, and contributions may be either oral or written, depending on the rules of the adjudication body.218 Amicus curiae may be used to explain the bigger consequences of the case to the judge and put legal arguments or facts before them that may not otherwise have been presented by the parties.219
218 At 165.
219 Linda A Malone and Scott Pasternack “Defending the Environment: Civil Society Strategies to Enforce International Environmental Law” in Durwood Zaelke and others (eds) Making Law Work: Environmental Compliance & Sustainable Development (Cameron May, London, 2005) 621 at 623.
Amicus curiae interventions originated in common law jurisdictions and have been extended to civil law jurisdictions, and also from national to international courts and tribunals.220
At present, the international judicial and arbitral dispute system is effectively closed to nonstate participants, with some notable exceptions (discussed below). Only states may be parties to or intervene directly in cases before the ICJ, including cases heard by the Environmental Chamber of the Court.221
ITLOS is unusual in this regard. In disputes relating to the exploitation or exploration of the seabed, the Seabed Disputes Chamber of ITLOS may allow cases brought by public and private companies, and individuals.222 On a theoretical level, this is a promising concession towards recognising non state actors as potential claimants. However, on a practical level, “external” organisations without any interests other than general environmental concern remain excluded.223 Further, ITLOS is potentially open to nonstate actors in cases submitted pursuant to an agreement conferring jurisdiction accepted by all parties to the dispute.224 Unsurprisingly, a state party has never sought to have a case resolved in this way.225
NGOs have access to various international courts and tribunals dealing with human rights protection. For instance, the European Court of Human Rights (ECHR) allows individuals, NGOs, or private parties to submit claims directly,226 provided the applicant claims to be “the victim of a violation by one of the High Contracting Parties of the Rights set forth in the Convention or the protocols thereto”.227 Beyond Europe there are examples of judicial and quasi judicial human rights bodies allowing standing to NGOs regardless of proof of a direct violation of their rights.228 For instance, the African Court on Human
and Peoples’ Rights (AfCHPR) may exercise discretion and allow NGOs to bring cases provided the NGO is “relevant” to the case and holds observer status before the African Commission on Human and Peoples’ Rights.229 The AfCHPR is also unusual in that it is able to grant an actio popularis power, which could permit NGOs to represent “the public interest” before a judge.230
Developments concerning NGO standing in the human rights arena provide some hope for similar developments in international environmental public interest litigation. But at this stage, hope is all that is at hand: despite active enforcement efforts by public interest NGOs before domestic tribunals (where granted standing), there are limited opportunities for NGOs to appear before international courts and tribunals dealing with MEA compliance and enforcement issues.
8. THE CASE FOR AN INCREASED ROLE
8.1 Issues and Challenges
As noted above in part 5.1.3, much emphasis has been placed on implementing international environmental obligations since WSSD. However, despite this, there is widespread agreement that states are failing to comply with MEA obligations, for reasons of incapacity, inadvertence, or by choice. The failure of Rio+20 to pin down solid government commitments on the scale needed to halt current rates of environmental degradation confirms that states are unwilling to compromise economic growth, even in the face of largescale ecological crisis.231 It becomes difficult to see how these institutions in their current mindset are capable of governing responsibly, at least from an ecological perspective, and it becomes imperative that we tap into civil society to go beyond the limitations of government.232
This may sound easy in principle; however, shifting focus from elected state governments to unelected civil society raises issues of legitimacy. Further, the
229 At 159.
232 At 93.
lack of clarity surrounding the status of NGOs in international law presents practical issues for realising this ambition.
Growing public participation in international law has been described as a process of “democratisation” of international law.233 Ironically, it can also be viewed as “undemocratic”234 as, unlike states, actors in civil society such as NGOs and individuals are neither elected nor otherwise accountable to the public:235
International decisionmaking is traditionally based on the model of one nationone vote, which respects national sovereignty. Integrating NGOs into the system as full voting partners challenges this tradition. Difficult questions arise, such as who do NGOs represent, how are they held accountable and how votes be allocated to the tens of thousands of NGOs clamouring to be part of the debate? Furthermore, how should input be weighed against the input of the nation state?
For these reasons, it has been argued that NGOs lack the ability to confer general legitimacy.236 This lack of legitimacy is closely related to uncertainties regarding the legal status of NGOs in international law, discussed in part 4.3 above.
While the lack of current clarity about the international status of NGOs offers some flexibility, it also creates legal uncertainty.237 The concerns regarding legitimacy and status highlight the need for a higher level of formalisation in NGO activity in international law generally. Bakker and Vierucci’s “sliding scale” of viewpoints in the debate over the international legal status of NGOs summarised in part 4.3 above provides us with a range of available positions on this point. In the context of this particular study, with its focus on NGO participation in MEA compliance and enforcement, what seems clear is that the “higher” the level of confrontation involved, the greater the need to pin down NGO accreditation.238 It seems inevitable that formalisation
233 Reisman, above n 23, at 15–30.
234 At 21–22.
of NGO status and activities will occur alongside advances in compliance and enforcement roles.239
It is notable that international NGOs are taking voluntary measures to promote greater transparency and accountability in their activities. In particular, the INGO Accountability Charter is a crosssectoral code covering practices for international NGOs including transparency, governance, ethical fundraising and professional management.240
However, voluntary measures to promote NGO legitimacy, such as the INGO Accountability Charter, are unlikely to be sufficient for higher levels of confrontational activity. Luisa Vierucci suggests that the form and degree of formalisation required (for NGOs’ participation in international adjudication) could vary depending on (i) the degree of intrusiveness of the participation; and (ii) the type of jurisdiction.241 The greatest degree of confrontation or “intrusion” envisaged for NGOs in this article is the potential opening up of locus standi rights in international environmental disputes. Such interventions would require NGO formalisation and accreditation at the highest international level. The ECOSOC consultative status process is a useful starting point for developments in formal international NGO accreditation,242 as it requires NGOs to disclose charters, bylaws, financial statements, annual reports and sample publications to allow evaluation of their structure and accountability (including financial accountability).243
8.2 The Case for Increased Participation
Despite the difficulties discussed above, the case for increased NGO par ticipation in MEA compliance and enforcement is overwhelming. NGOs are in a unique position to represent and defend public interest causes.244 They are able to look to longer-term rights, unlike states who are primarily influenced by shortterm economic goals.245 NGOs also have the advantage that, if representing a public interest objective, they could be capable of defending broad categories of persons in the same action.246
243 At 573.
8.3 An Increased Role in Non-confrontational Mechanisms
The key strength of NGOs, as seen through the explanation of their “traditional” role in part 6.1.1 above, is their ability to access and generate credible independent information. NGOs will continue to contribute to the domestic and international environmental agendas, draw public attention to aspects of noncompliance, and provide compliance assistance to states without capacity and resources to comply with MEAs.
In particular, the CITES model discussed at part 6.1.3 above provides a precedent for NGO involvement in data generation, reporting, and inspection procedures. This could be incorporated into other MEA compliance regimes: for instance, it has been suggested that NGOs could serve as accredited international observers on whaling vessels, or as monitors of marine protected areas and whale sanctuaries.247
There is great potential to increase levels of public participation in MEA NCPs, and the Aarhus Convention provides a framework for others to do this. A significant argument in favour of developing NGO involvement in NCPs is that it strengthens the representation of public interests:248 to this end, public participation in MEA NCPs could be seen as an acknowledgement of the public interest nature of environmental disputes.249 The focus is not on a private harm between two parties: there is an underlying acknowledgement that non compliance with the MEA harms the wider public function of protection and preservation of the global environment, and that the continued degradation of the global environment will harm humanity as a whole.250
Despite this, increasing public participation in NCPs will not be easy: many states remain reluctant to allow higher levels of public involvement in NCPs. In particular, states are resistant to permit NGOs to trigger NCPs: as noted in part
6.3.2 above, formal public participation in the triggering process was rejected under the Basel, Montreal and Kyoto NCPs. At the heart of states’ hesitancy is the concern that allowing nonstate actors a “quasiprosecutorial” role to trigger NCPs undermines the nonconfrontational nature of these procedures.251
250 At 564.
251 Pitea, above n 12, at 183; Pitea, above n 158, at 215.
A further concern rests on a classic “floodgates” argument: that allowing non- state actors to trigger participation would lead to an overloading of the various Compliance Committee agendas, and significantly increase compliance costs associated with MEAs.252 Other arguments against NGO involvement in NCPs include the claim that NGOs could misuse NCPs to pursue political agendas and fail to keep information confidential when required.253 To date, these fears have not proven justified in the Aarhus Compliance Committee.254 Instead, it has been found that when NGOs are granted a larger formal role in NCPs, the duty has been discharged with diligence and efficiency.255 Despite this, many states still oppose an increased role for NGOs in NCPs.256 The US has clearly stated its objection to the public participation provisions in the Aarhus NCP.257 Despite this opposition, it is clear that NGOs have access to independent information and expertise, and may have the potential to identify instances of noncompliance that may otherwise go unnoticed. NGOs may contribute technical data that may assist in identifying the causes of noncompliance. Furthermore, NGOs are less constrained than states by issues of “diplomatic appropriateness” and may raise sensitive or potentially embarrassing instances of noncompliance otherwise ignored (at least formally) by other state parties.258 NGOs motivated by public interests are more likely to report in to an NCP than states, which may be motivated only to use resources and threaten diplomacy with another state when their own “private” or jurisdictional interests are threatened. Therefore, allowing NGOs to participate in NCPs is likely to lead to higher levels of reporting in against acts or omissions of noncompliance by states: at the time of writing, the public has filed 69 communications under the Aarhus NCP since 2004,259 whereas only one complaint has been filed by a party,260 and no referrals have been made by the Secretariat.261 The majority of the communications have been found admissible and have been resolved
efficiently.262
256 At 197–198.
8.4 An Increased Role in Confrontational Mechanisms
As noted above, amicus curiae submissions originally developed as a means to provide impartial assistance to the court or tribunal in technical cases.263 This begs the question whether amicus curiae is the most appropriate form of intervention for NGOs.
On the one hand, as noted above, NGOs offer a source of independent information, and therefore may be uniquely able to provide the court or tribunal with technical support. However, NGOs are likely to hold firm views and as such may not be seen as “impartial” judicial advisers. Increasing use of amicus interventions by NGOs highlights the need to resolve issues of NGO independence and legitimacy (as discussed in part 8.1 above).264
Despite the above concerns, there is a good case for an increasing use of amicus interventions by NGOs in environmental litigation, where issues of public interest are perennially present. An amicus curiae brief presented by an NGO may provide an opportunity for otherwise unrepresented public interests to be heard by the judge.265 Joseph Weiler has argued in favour of the participation of NGOs in amicus curiae submissions, without strict regulation:266
... for lawyers, and particularly judges one of whose primary tasks is to preserve and guarantee the integrity of a legal process, the notion of excluding voices affected by one’s decision and not hearing arguments by them runs counter not only to the ethic of open and public process but to the very principles of natural justice [...]. To reject, imperiously, with no explanation, applications to submit amici briefs is indeed a privilege of emperors, not of courts.
Amicus briefs therefore, like NCPs discussed above, offer a means of acknowledging wider public interest concerns in environmental disputes. Public participation in the judicial process by way of amicus intervention may contribute to the sensitisation of public interest, as well as the development of international jurisprudence.267
263 Vierucci, above n 217, at 164.
264 At 166.
265 At 166.
The proliferation of international courts and tribunals within the last 20 years,268 coupled with developments in public participation at the international level, has led one commentator to call for the reassessment of the relationship between international judicial bodies and NGOs.269
Not all NGOs would be interested, or have the capacity or resources, to become involved in international litigation. Some NGOs prefer to stay “outside the system”, to offer indirect judicial interventions (such as amicus curiae, discussed above), or influence a state party who may be engaged in litigation. Some NGOs believe that direct involvement as parties to international disputes will limit their ability to lobby and restrict other activities.270
Despite these issues, there is a case for a reconsideration of standing rights before international courts and tribunals in environmental protection cases. The main reason why a reassessment of the relationship between international judicial bodies and NGOs should be made is the increasing awareness that environmental disputes are rarely entirely “private” in nature, nor contained within national boundaries. As noted in part 3.3 above, international envi ronmental disputes concern aspects of common concern that may affect humanity as a whole. Engaging civil society in such disputes, particularly NGOs, acknowledges the public interest objectives of environmental litigation. NGOs can transcend state boundaries in that they are not bound by borders but by common values, knowledge and interests.271
Formal interstate enforcement of MEA obligations remains extremely rare. Governments are unwilling to bring action against other states in breach of MEA obligations, and a procedure for nonstate actors to bring claims could allow greater compliance.272 It has been suggested that the greatest contribution of NGOs to governance may be to introduce perspectives of diverse societal actors, precisely because these views are different to those advanced by powerful states.273 These views will sometimes reflect long-term interests of states otherwise constrained by shortterm political and economic factors.274
In addition, allowing some flexibility in standing rules would provide for a more correct use of amicus curiae briefs. There is some concern that amicus
270 At 161.
n 247, at fn 91.
curiae interventions may be misused as a means to “get around” the lack of standing granted to NGOs acting on public interest grounds.275
9. CONCLUSION
The international law framework, consisting largely of soft documents, detailed in part 5 above, provides a basis upon which we can increase and build the existing role of NGOs in MEA compliance. In particular, the Aarhus Convention provides a practical model for other regions to implement principle 10.276
Allowing NGOs to trigger MEA NCPs clearly has potential to greatly increase effective MEA compliance.277 However, the significance of public triggering is not limited to this: allowing the public to trigger the Aarhus NCP, and allowing state parties to trigger the Montreal NCP without needing to show injury, has been likened to an actio popularis action.278 In short, these procedures not only have the potential but are taking international environmental law beyond a traditional positivist paradigm, narrowly focused on addressing interstate harm, towards a model that acknowledges the common interests at stake.
To this end, public participation in NCPs represents a growth in the capacity for NGOs to act as guardians in international environmental law.279 The substantive issues dealt with in MEAs are explicitly or implicitly of common concern to humankind,280 and therefore compliance with MEAs is not only based on interstate reciprocity: it is owed erga omnes partes.281 Developments in NGO participation in nonconfrontational and confrontational mechanisms can be seen as part of an increasing acknowledgement of this reality, and may lead to a developing recognition of the underlying need for actio popularis claims where a significant public interest objective is at stake.
Highlevel institutional change will be required to fully realise a shift towards a multiactor system of international environmental governance. The creation of a new forum ultimately intended to replace the CSD as an outcome of Rio+20 appears at first blush to be an inadequate response. Meaningful institutional change could be considered as part of discussions leading to a global agreement on public participation, which NGO groups called for at
281 At 104.
Rio+20.282 Negotiating such an agreement could provide an opportunity to clarify the legal status of NGOs in international law, and resolve some of the challenges highlighted in part 8.1 above. Building on lessons regarding failures in interstate enforcement of MEA obligations, this process could also open up a debate as to whether a new International Court for the Environment could be open to allowing non-state actors to file complaints against alleged violations of environmental rights.283
282 Statement of NGOs, above n 15. 283 Stephens, above n 221, at 58.
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