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State and NonState Actors in the Climate
Change Regime:
The Power of Legitimacy among Actors in International Environmental Institutions
Asher Alkoby
A thesis submitted in conformity with the requirernents
for the degree of Master of Laws
Graduate Department of Faculty of Law
University of Toronto
O Copyright by Asher Alkoby 2001
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Abstract
State and Nonetate Actors in the Clirnate Change Regime:
The Power of Legitimacy among Actors in International Environmental Institut ions
Asher Alkoby Master of Laws Degree
Faculty of Law University of Toronto
2001
Non-state actors have become increasingly involved in the formulation,
implementation and enforcement of international environmental law, but their
influence is not yet reflected in the design of environmental regimes. This thesis
outlines a normative framework for the emerging global civil society, based on a
horizontal understanding of legitimacy in international lawmaking. m e r cnticizing
the case liberal scholars make in favour of non-state actors participation in
international lawmaking, which is based on notions of vertical legitimacy, 1 suggest
an alternative understanding of legitimacy between and among state and non-state
actors, drawing upon social constructivism, "international society" theories, and the
jurisprudential insights provided by the "interactional theory" of international law.
While the institutional design of the climate change regime represents a shifi away
fiom a formalistic conception of international law, a state-centric view of
international law continues to constrain the creativeness of its institutional design, and
threatens to impede its successful implementation.
Acknowledgements
This thesis was written under the supervision of Professor Jutta Brunnée, to whom 1
am gratefid for her guidance, patience, encouragement and inspiration. 1 would also
like to thank the FacuIty of Law at the University of Toronto for its assistance, and to
Professor David Dyzenhaus, for taking the t h e to review the thesis.
1 thank my devoted editor and tiiend Sarah, for the off and online support, to my
beloved Ronit, for the long-distance moral (and other) support, and to al1 my fnends
and family, especially my mother, and my sister Judith, for al1 their love and fielp.
Table of Contents
l . Introduction ............................................................................................ 1
Il . Participation of Non-State Actors in lnternational Environmental
Institutions ............................................................................................ 13
1 . Defining Non-Governmental Organizations ............................................. 13 2 . The Involvement of NGOs in International Environmental ........................
.................................................................................................. Institutions 16
III . The Liberal Case for Non-State Actor Participation in International
Environmental Institutions ................... ......................................... 21
1 . Benefits of NGO Participation ................................................................... 21 1.1 Instrumental Benefits ......................................................................... 21 1.2 Democratic Benefits ............................................................................ 23
............ 2 . Democratic Liberalism. Legitimacy and the 'Domestic Analogy' 25 2.1 The Domestic Analogy Debate ................... ................................ 29 2.2 Franck's Legitimacy Tbeory ... .................. ......................................... 33 2.3 Otber Liberal Theories: Fernando Teson and Harold Koh .............. 42 2.4 The Liberal Case: Summing U p ......................................................... 45
3 . The Problems with NGO Participation ................... .. ............................ 46
4 . Participation of For-Profit Entities ............................................................ 50
IV . The Constructivist Case for Non-State Actor Participation in
International Environmental Institutions ........................................... 55
1 . Social Constructivism and Global Politics ................................... ........ 55 2 . Constructivism. international Society and the Public Sphere .................. 63 3 . Constructivist Understanding of International Law ................................. 77
V . Participation of Non-State Actors in The Climate Change Regime . 86
1 . The Evolution of the CIimate Cbange Regime .......................................... 88 ................................................. 1.1 Building an Epistemie Community 88 .......................... 1.2 Developing Shared Understandings .............. ........... 91 1.3 The Kyoto Protocol: Development and Key Elerneats ...................... 99
2 . Non-State Actors in the Lawmaking Process .......................................... 105 2.1 Non-GovernmentaI Organîzations ....................................... 105 2.2 The Involvement of For-Profit Entities ........... ....... .......................... 108
3 . Non-State Actors and the Application of the Kyoto Protocol ................. 113 3.1 Operationalizing the Kyoto Mechanisms .................................. 114
3.2 Dispute Resolution Procedures Relating to the Kyoto ......................... Mechanisms ....................................................................................... 126
3.3 Dispute Resolution Procedures Relating to Compliance ............... 130 3.4 Kyoto's Application Pbase: Concluding Observations ................... 134
VI1 . Appendix: List of Abbreviations ............... ...................................... 143
VIII . Bibliography ................... ................... ............................................ 144
1. Introduction
The traditional conception of international law is that of a system regulating the
relations between sovereign states. The Peace of Westphalia established this
international legal order based on independent, equal, and temtorially defined states,
which did not assign importance to entities within or outside the states.' Persons, in
corporate as well as in human form, had no forma1 status in international law.* The
focus of this paper is the shifi away fiom this state-centric paradigm, evidenced by the
rise of global civil society in international environmental lamaking processes among
~ t h e r s . ~
Anthony D'Amato made the following prediction over a decade ago:
"[Ilf the nineteenth century was characterized by State v. State, and the
twentieth century by individuai v. State, the twenty-first century rnight see
international law becoming addressed to the claims of individuai v.
individual. Transboundary international legal claims involving individuals
only, but invoking public international law, might be the direction in which
we are headed.'A
' See E.B. Weiss, "The Rise or the Fall of International Law?" (2000) 69 Fordham L. Rev. 345, at 346. W. R. Slomanson, Fundamental Perspectives on international Luw, (Balmot: Wadswoth fi'hornas
Learning, 2000), at 17 1. Contemporary writings in international law assume a more inclusive approach in defining the international system (see for example R. Higgins, Problems and Process: International Law und How We Use It, (Oxford: Clarendon Press, 1994), at 48-55), but structurally, international law remains constrained by the statist paradigm. See M. Janis, "International Law?" (1991) 32 Harv. Int'l L.J.363.
The term "global civil society" usually dendes interest groups, NGOs and other non-profit entities. See D. Otto, "Nongovernmental Organizations in United Nations System: The Emerging Role of international Civil Society" (19%) 18 Human Rights Q. 107 [hcreinafter "Civil SocietyV'J, at note 2. For the reasons that will be discussed throughout this paper, I will use a more inclusive definition, containing not only non-profit NGOs but also to profit-seeking entities, including business-NGOs (who promote the commercial interests of their constituencies) and multinational corporations. See below, sections II. 1, 111.4, and V.2. ' A.A. D'Amato, International Law: Process and Prospect (Irvington, NY: Transnational Publishers, 1987), at 199.
By contrast, 1 argue that while the international political and economic system is
indeed changing in the ways descnbed by D'Amato, international law is not
foIIowing suit as yet. Nongovemmental organizations (NGOs), business corporations
and other non-state entities have become increasingly involved in the formulation,
implementation and enforcement of international noms, but their influence, which is
primarily achieved by informal means, is not yet fully reflected in the design of
international environrnental institutions. My aim in this thesis is to outline a
normative hmework for the emerging global civil society, based on a horizontal
understanding of legitimacy in international lawmaking. International environrnental
institutions, 1 argue, will become more legitimate, and thus more efficient, if the
noms they produce will be generated in a continuous, mutually generative process of
interaction between al1 relevant actors - both lawgivers and the subjects of the
regulation - at the international level.
The explosion of non-state actor activity in recent years is attnbuted to three
economic and political factors, commonly termed "globalization,"5 which have led to
the decline of the modem sovereign stateS6 First, the collapse of the bipolar
international political structure in the pst-Cold War era has shifted the concern of
States fiom security issues to matters of global commons.' States increasingly
cooperate to solve shared problems, which can only be addressed by collective action.
See W.H. Reinicke & J.M. Witte, "lnterdependence., Globalization and Sovereignty: The Role of Non-Binding International Legal Accords" in Cornmitment and Cornpliance: The Role of Non-Biding N o m in the International Legal System (Dinah Shelton ed.) (Oxford: Oxford University Press, 2000) fhereinafter "Cornmitment and Compliance'l at 75. The authors make a distinction between interdependence (between public entities) and "globalization" (which is the intadependtnce of private entities). lnterdependence can be understood as a precursor for globalization, without k ing identical to it. (ibid. at 77-78). 6 R. Falk, "Towards Obsolescence: Sovereignty in the Age of Globalization" (1 995) 17 Harv. Int'l L. R. 34.
See J.O. McGinnis, "The Decline of the Western Nation State and the Rise of the Regimc of International Federalism" (1 996) Cardozo L. Rev. 903, at 904-909.
There is no better example of global interdependence than the shared interest in
protecting the environment. Transboundary environmental degradation affects al1 of
us, whether it is depletion of the ozone layer, climate change, species extinction, or
desertification. Second, the increasing interdependence of financial markets makes
the production of goods in different locations mund the globe increasingly viable.
Matenals can be processed in one country, parts made in a different country, and their
assembly in yet another country.' Third, the growing fragmentation within states is
resulting in the formation of new cross-border social ties. Nationalism is in decline
and groups and individuals within states operate and find their affiliation beyond
national borders. This fragmentation presents a difficult challenge: "[wjhile states are
relinquishing elements of sovereignty to transnational non-state actors, the strong
sense of community that bound the citizens of the state together does not extend to the
transnational groups. New community bonds need to be forged.'"
Most importantly, the catalyst for al1 three developments, and for the proliferntion of
non-state actors in the global playing field, is the information revolution and the
corresponding improvements in communication, which allow for the emergence of
transnational networks based on common agendas.'' Under these conditions of
interdependent interactions, the international system can no longer maintain clear
boundaries between domestic and international law."
Weiss, supra note 1 , at 348. Weiss, ibid. at 348-349.
'O M.E. Keck & K. Sikkink, Activists Beyond Borders - Advocacy NenuorAs in International Polirics (lthaca and London: Connell University Press, 1998). " See Weiss, supra note 1, at 354-357. See also J.K. Garnble & C. Ku, "International Law - New Actors and New Technologies: Center Stage for NGOs?" (2000) 3 1 Law & Pol' y Int'l Bus. 22 1 .
There is a growing body of litetahire on the participation of non-state actors in
international law, with attempts to provide a normative framework for their
involvement in international institutions.'* But a comprehensive theoretical enquiry,
examining the character of the international system, and addressing issues such as the
evolution of noms at the international level; the way in which they influence actors'
behaviour; and the potential effects of creating (or empowenng) multiple sources of
legal influence, is still lacking. My aim is to help lay the groundwork for such a
theoretical enquiry.
Thomas Franck has argued that international law has reached its pst-ontological
era." Lawyers no longer need to defend the very existence of international law, he
daims, and the question to be asked is not whether international law is l m , but rather
is it effective, enforceable, understooà, and most importantly - is it fair.14 It may be
true that the very existence of international law can no longer be ignored, considering
the levels of maturity and complexity it has reached, but many international relations
(IR) theorists would still dismiss it as irrelevant. The fact is, that the two most
influential IR theories remain hostile towards international law. ~eorealists, '~ like
12 See e.g. K. Raustiala, "The 'Participatory Revolution' in International Environmental Law" (1997) 21 Haw. Envtl. L. Rev. 537 [hereinafier "Participatory Revolution"]; K. Newroî, "Legal Consequences of Globalization: The Status of Non-Govemmental Organization unda International Law" (1999) 6 Ind. J. Global Legal Stud. 579; R. Wolfe, "Rendering unto Caesar: How Lcgal Pluralism and Regime Theory Help in Understanding 'Multiple Centres of Power"' in Who is Afmid of the Sme? Canada in a World of Multiple Centres ofPower (G. Smith & D. Wolfish eds.) (Toronto: University of Toronto Press, forthcoming 2001). (hereinafler "Legal Pluralism"]. In hwnan rights law sec J. Mertus, "Considering Non-state Actors in the New Millennium: Towards Expanded Participation in Norm $meration and Norm Application" (2000). 32 N.Y.U J. Int'l L. k Pol'y. 537.
T. M. Franck, Fairness in international Law and insrirutions (Oxford: Clanndon Press, 1995) [hereinafier "Fuimess"], at 6. " Ibid- '' K. Waltz, Theory of International Politics (New York: Random Hwse, 1979); J.M. Grieco, "Anarchy and the Limits of Cooperation: A Realist Critique of the New- Liberal Institutionalism" (1988) 42 Int'l Org. 485.
their predecessors, the classical realist~, '~ still hold the position that international law
is at best bbepiphenomenal."i7 They argue that legal noms do not really "matter;" al1
that matters is the politics of power in the international realrn, where states are
constantly pursuing their national self-interest. ~eol ibera ls '~ also ascribe minor
relevance to legal rules and treat them at best as "prices in the market."'9 They focus
on international cooperation, recognize the importance of international regimes, and
study the principles, norms, rules and decision-making procedures in international
institutions. Rational pursuit of self-interest is the leading explanation of state
behaviour, while norms have an indirect influence of altenng the costs of defection
and incentives for c ~ r n ~ l i a n c e . ~ ~
Thus, the question scholars continue to grapple with is "Does international taw
matter?" and if it does, to what extent and ho^?^' Indeed, the question of the role of
law in international relations has great relevance to the issue at hand, since if legal
noms do "matter," tracing the way noms are generated in the international sphere
and the way they influence states' conduct could help us understand the d e s played
by non-state actors in this process and determine what thek place should be in the
new world order.
l6 H.J. Morgenthau, Politics Among Nations: The Struggle for Power and Peace, (New York: Knopf, 1 978) at 3- 15; G. F. Kennan, Americun DipIomacy (Chicago: University of Chicago Press, 1984) at 95. " "[W'jhich is a nice way of saying it is stupid" says D. Bederman, "Constructivism, Positivism, and Empincism in International Law" (2001) 89 Geo. L.J. 469, at 473. '* R. Keohane, Afrer Hegemony: Cooperation and Discord in the World Political Economy ((Princeton, N.J.: Princeton University Press, 1984) [hereinafter "A* Hegemony"]; S.D. Krasner, Sovereignty: Organized Hypocrisy (Princeton, N.J.: Princeton University Press, 1W9); 0. Young, International Cooperation: Building Regimes for Natural Resources and the Environment (Ithaca: Comell University Press, 1 989). 19 B. Kingsbury, 'The Concept of Cornpliance as a Function of Competing Conceptions of International Law" (1998) 19 Mich. I. Int'l L. 345, at 352.
See A.C. Arend, "Do k g a l Rules Matter? International Law and International folitics", (1998) 38 Va. J. Int'l L. 107, 109-122. '' For useful reviews of the different international taw and IR theories, see H. H. Koh, "Why do Nations Obey International Law?" (1 997) 1 O6 Yale L.J. 2599. [hereinafter "Why Do Nations Obey"]; A. Slaughter Burley, "International Law and International Relations Theory: A Dual Agenda" (1993) 87 Am. J. Int'l L. 205. See also Kingsbury, supra note 19.
NGOs, the most prevalent non-state actors, have become significantly infiuential in
international environmental lawmaking processes. They initiate international action to
address environmental concerns; influence the negotiating process of treaties and
other legal instruments, and monitor state compliance with international norrns. Yet
they are usually not afforded legal status under international law, thus their roles are
not secured in institutional arrangements. TheUr important contribution is exposed to
the whim of political officiais, who, in principle, are fke to utilize them when they
see fit.
Most of the writings about non-state actor participation in the international system
corne fiom vanous scholars that may be labelled "democratic liberais." They are
generally supportive of an increasing involvernent of NGOs in international
institutions, arguing that it could contribute to the perceived Iegitimacy of
international law. The involvement of NGOs in the lawrnalcing process, however, is
likened to "public participation" in domestic democracies, which affords them a
resbicted role in the international arena.
My hypothesis is that the limited role afforded by liberal scholars to non-state actors
stems fiom a problematic understanding of the international system and of how
legitimacy of norrns works in it. Liberals identiQ a "democratic deficit" in
international la^.^^ The abovementioned political and economic developments
encompassed in "globalization" have resulted in a shifi of the decision-making
fZ D. Bodansky, ''The Legitimacy of Internat ional Governancc: A Chailenge for International Environmental Law?" (1999) 93 Am. J. Int'l L. 596 [heteinaftcr "Legitimacy"] and R. Keohane, & J.S Nye, "Between Centralization and Fragmentation: The Club Mode1 of Multilateral Coopcration and Problem of Democratic Legitimacy, (2001) John F. Kennedy School of Government Faculty Research Working Papers Series. (Available at <htt~://www.~~ers.ssm.com/~~r.taf?ab~t i&262 1 75>; last visited 20/09/2001).
authority fiom the national to the international level, which places the issue of
legitimacy of international institutions at the centre of the international law discourse.
This is especially evident in international environmental law, where concems about
the global comrnons are increasingly addressed by a growing number of international
legal instruments. These instruments establish international institutions ("regimes"),
which poses a considerable decision-making authority. Regimes are extensively
involved in regdatory activity that has direct effect on the lives of individuals. The
problem is that these international institutions are not sufficiently "democratic:"
decisions are being made by unelected state delegates, without active participation of
the afXected public.
Various proposals are made by liberals to address this democratic deficit. Their
objective is to infuse democratic standards wherever power resides. The first and
most common type of proposal is a cal1 to "democratize" the international lawmaking
process by allowing NGOs and other non-state actors to become more involved in
international fora.23 The more radical variants of these proposals suggest a refom of
international law, and promote various forms of new global govemance.24 A third
approach relies on the n o m of democratic entitlement. It posits that ensuring that
See e.g. Bodansky, Legitimacy, ibid., Raustiala, Participatory Revolution, supra note 12, Keohane & N ye, ibid. '' For reviews of different proposals see H. Suganami, The Domestic Andogy and World Order Proposais (Cambridge: Cambridge University Press, 1 989) [hereinatkr "me Domestic Analogy"]; J. Crawford & S. Marks, ""The Global Dcmocracy Deficit: an Essay in International Law and its Limits" in Re-lmagining Political Community: Studies in Cosmopolitan Dernocrac (D. Archibugi, D. Held & M. Kohler eds.) (Stanford: Stanford University Press, 1998) [hereinafter "Re-Imagining*~, at 82-85. See also P. Allott, Eunomia: A New Order for A New world (Oxford: Oxford University Press, 1990); R. Falk, Reviralùing International Law (Ames: Iowa University Press, 1989) [hereinafter "Revitalizing"). Franck, Fairness, supra note 13, at 478484.
those who speak in global discourse are democratically elected would advance the
legitimacy of international institutions?'
1 argue that the latter proposal is politically unfeasible and arguably has a neo-
colonialist ring to it, because it assumes the supenority of the liberal democratic state
over other foms of govement. 1 also show why the first two types of proposais are
il1 suited to address the legitimacy deficit in the international system. Importing
models of legitimacy fiom hierarchical democratic legal structures into the horizontal
international setting creates a mistaken analogy between two fùndarnentally distinct
systems. But this rejection of a "domestic analogy" is initially based upon a
superficial observation. It builds on the assumption that in the absence of a political
community and legitimate authority at the international level, legitimacy of
international institutions must work in a different way than it does in domestic
systems. This proposition deserves closer examination.
Thomas Franck's theory of international law contributes to Our understanding of the
character of the international system, by emphasizing the importance of legitimacy
and fairness to the lawmaking process. However, his analysis of how legitimacy
works in international law lacks important elements of normative individuality, and
his positivist approach to law reinforces a statist conception of the system.
A more challenging understanding of the international system may be found in a
relatively new approach to IR theory: social constnrctivism. Constmctivists s e the
identities and interests of States as constructed by social interaction, and thus as
25 See T.M. Franck, "The Emerging Right to Democratic Governance", (1992) 86 Am. J. Int'l L. 46 [hereinafier "Democratic Governance"].
endogenous rather than exogenous. By contrast to neorealist and nediberal IR
theorists, constructivists attribute influential role to noms, including legal
However, many constructivists tend to employ a formalistic and positivist conception
of law, and as a result, like the liberal approaches 1 will review, examine international
law through a domestic law pnsm. By tuming to the insights provided by the IR
theonsts of the "English School," who may be regarded as the historic forerumer of
the constnictivist project, 1 find a more compelling normative ffamework of
international relations; one that conceives of the international system as an
international society, compnsed of individuals rather than tat tes.^^
But even if one accepts the actor-structure of the international society as suggested by
the English School theorists, there is still the issue of explainhg how these actors
interact and how legal noms are produced and legitimized in this social structure.
Whiie the English School's study of international histonc societies provides an
explanation of how identities of actors in the international society are fonned, it does
not capture the dynamic nature of societies. Such an explanation can be found in the
alternative, horizontal understanding of law suggested by the "interactional theory" of
international ~ a w . * ~
Brunnée and Toope show what is missing in the current constnictivist account of
international relations. They argue that constmctivists do not provide an explanation
For a usefut review of the consmictivist approach sec J. Brunnée & S. J. Toope, lnternational Law and Constructivism: Elements of an Interactional Theory of International Law" (2000) 39 Colum. J , Transn'l L. 19 [hereinafter "Intetactional Theory"], at 25-37. '' For a review of the English School see T. Dunne, "International Society: Theaetical Promises Fuifilied?" (1995) 30 Cooperation and Conflict l25. '' Brunnée & Toope, lnternational Theory. See also J. Brunnée & S.J. Toope, "Interactional Law" (2001) 3 Int'l L. Forum 186, and J. Brunnée & S.J. Toope, "Changing Nile Basin Regime: Does Law Matter?'(forthcoming in Harv. J. tnt'l L 2002) [hereinafter "Nile Basin Regime"].
of how legal norms operate in shaping and re-shaping actors' identities and interests
in the international system, due to their vertical understandings of the operation of
legal r ~ l e s ? ~ Drawing on constructivism, and following the legal theory of Lon
Fuller, Brunnée and Toope argue that legal norms are most persuasive when they are
created through processes of munial constr~ction.~~ Their interactional theory views
law not as an imposition of authority but rather as a continuous process, where actors
shape the identity of noms and institutions, and these noms and institutions, in turn,
shape the identities of actors. Legitimacy of noms, then, derives to a significant
degree from the active participation of actors in their generation, and depends on
intemal characteristics of fair process and conpuence with social noms and
practices.3' If generated in a process of social interaction, a nom would have the
quality of seljlbindingness: actors would have a sense of commitment to follow the
nom.
This horizontal understanding of law allows for the recognition of non-state actors as
essential sources of influence on the lawmaking process. If the mutual constitution
process is part of what generates the legitimacy of international nom and institutions,
then integrating private entities into the lawmaking process would contribute to the
legitimation process.
The case study 1 will use to examine my hypothesis is the evolving climate change
regirne, which was established by the United Nations Framework Convention on
29 Brunnée & Toope, Interactional Theory, ibid. at 33.43.68. 'O fbid. at 5 1 . " Ibid. at 53.
Climate Change ( U W C C C ) ~ ~ and the Kyoto Rotocol to that onv vent ion.'^ Although
it is too soon to conduct an empirical analysis of this regime, the study of its
formation and what it has established thus far is instructive. First, this study suggests
that the evolution of the climate change regime and its emerging institutional
structures is compatible with the interactional understanding of the lawmaking
process.34 Second, because it provides an illustrative example of non-state actors
participation in international environmental lawmaking, by introducing new kinds of
actors to the system, and by presenting an opporhinity to extend the roles played by
non-state actors beyond the early lawmaking stages. This opportunity has not been
fùlly exploited by States thus far in designing the various instruments for the
application of the Kyoto Protocol.
The papa is organized as follows. Section II reviews the involvement of non-state
actors in international environmental institutions today and the benefits their
involvement accrues, fiom a liberal perspective. Section Ill: is a theoretical
exploration of the liberal case for non-state actors participation and its normative
underpimings. This approach provides a usehl point of departure because of its
emphasis on the concept of legitimacy. Some of the problems with NGO participation
in global governance will also be considered. Special attention is given to the
involvement of business entities in international environmental institutions, by raising
the question of whether they should be treated differently than non-profit NGOs.
Next, section IV outlines an alternative fiamework for non-state actors' participation
" United Nations Framework Convenrion on Climate Change, 9 May l992,3l I.L.M. 849 (hereinafter "UNFCCC or "the Convention'). " The Kyoto Protoc01 to the United Nations Framework Convention on CIimate Change, 10 December 1 997,37 I.L.M. 22 [hereinafier "the Kyoto Protocol" or "the Pr~ocol"). 34 To the extent that rationalist critics has named it "the archetype o f the transformationalist design strategy". See G. W. Downs, et al., 'The Transformational Model of International Regime Design: A Triumph o f Hope or Experience?" (2000) 38 Colum. J. Transnat'l L. 465.
in international environmental institutions, by using a constnictivist approach,
supplemented by the normative premises of the English School of IR theory and the
jurisprudential insights of the interactional theory. The fifth section illustrates my
argument by introducing the climate change regime. It suggests that while the
institutional design of this regime represents a shifi away fiom a formalistic
conception of lawmaking, a state-centric view of international relations continues to
constrain the creativeness of its institutional design, and threatens to impede its
successfil implementation.
II. Participation of Non-State Actors in International Environmental
Institutions
1. Defining Non-Governmental Organizations
The term 'non-state actors' refers to a wide range of public and private actors,
including intergovernrnental organizations, international organizations, NGOs, and
any individual or group of ind iv id~a ls .~~ Ka1 Raustiala defines huo categories of
private non-state actors in contemporary international environmental law: the
regulated parties (mostIy business finns) and the beneficiaries of the regulation
(which are claimed to be represented by environmental NGOS).'~ 1 am interested in
both categories, as both are relevant for the case study at hand. But as we will shortly
see, it is not always easy to tell between the two.
Defining NGOs is indeed "'not an exercise for the intellectually squeamish."" There
could be various typological approaches to define and classify international NGOS.'*
The term in itself holds nothing but a negative r n e a n i x ~ ~ , ~ ~ and depending on how we
choose to define this concept, it can be understood as including or excluding business
associations, business corporations, political parties and movements, national
institutions, employees unions, and so fort.. A review of the legal instruments
refemng to NGOs reveals no agreed upon definition of the term in international law!'
Article 71 of the United Nations Charter does not define the term NGO, stating that
'' About the relation between these terms sce L. Gordenker & T. Weiss, "Pluralising Global Governance: Analytical Approaches and Dimensionsw, (1995) 16 Third World Q. 357, at 358-359. 36 Raustiala, Participatory Revolution, supra note 12, at 557. 37 P. I. Simmons, "Leaming to live with NGOs", (1998) 112 Foreign Policy 82, at 83.
See Otto, Civil Society, supra note 3, at 1 10-1 1 1. 39 Dianne Otto believes that this ncgative language "revea![s] a defensive approach of states towards NGOs and their insistence that that status of an NGO is peripheral to that of a state." Ibid. at 109. 'O For a review of several attempts to define the term see Gambie & Ku, supra note 1 1, at 227-229, and S. Charnovitz, "Two Centuries of Participation: N W s and International Governance" (1997) 18 Mich. J. Int'l L. 183. at 185-188.
"The Economic and Social Council may make suitable arrangements for consultation
194 l with NGOs.. . A UN report fiom 1994, which introduced proposed rules to regulate
the participation of NGOs in UN conferences, suggested the following definition:
"An NGO is a non-profit entity whose members are citizens or
associations of citizens of one or more countries and whose
activities are deterrnined 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 c o ~ ~ e r a t e s . ' ~ ~
This formulation excludes entities with a profit-making aim. However, the resultant
resolution by the U+N.'s Economic and Social Council makes no mention of the non-
profit requirement when establishing the eligibility cntena for NGOS." Article 12 of
the resolution merely States that an NGO is an organization that is not established by a
governrnental entity or an intergovernmental agreement."
The Council of Europe has also made an attempt to regulate NGO activities in the
European Convention on the Recognition of the Legal Personality of International
Non-Governmental ~ r ~ a n i z a t i o n s . According to Article 1 of the convention, NGOs
4 1 Charter of the United Nations, 26 June 1945, Can T.S. 1945 No. 7. " General review of Arrangements for Consultations with Non-Governmental Organizations: Report of the Secretary General, UN. ESCOR, Open-Ended Working Group on the Review of Arrangements for Consultations with Non-Governmental Organizations, I n Sess. Prov. Agen& 3, U.N. Doc. E/AC.70/1994/5. For a detailed discussion of this report see Otto, Civil Society, supra note 3. 43 Consultative Relationship between the United Nations and Non-Governmental Organizations, 49th plenary meeting, U.N. Doc. E/RES/19%/3 1 (25 Jul y 1996) u fbid. The main eligibility requirements are that the NGO is concemed with matters falling within the competence of the Economic and Social Council and its subsidiary bodies (article 1)- that its aims and purposes are consistent with the work of the U.N (articles 2, 8); that is has a recognized standing within the particular field of its competence or of a representative character (article 9); and that it has a representative and democratic structure (articles 10-12). A similar approach is taken by the Organization of American States, Guidelines for the Participation of Civil Society Organizations in OAS Activities CP/RES. 759 (1217/99), where a "civil society organization" is defined as "any national or international institution, organization, or entity made up of natural or juridical pcrsons of a nongovernmental nature". The guidelines make no non-profit requirement. It is only stated in article 4 is that the aims and purposes NGOs pursue "musr be consistent with the spirit, aims, and principles established in the Charter o f the OAS." '' Available at <htm://con ventions.coe. int/rreatv/en/Treaties/titml! f 24.htm> (last visited 20/09/200 1).
are associations, foundations and private institutions, which "have a non-profit aim of
international utility." The meaning of the phrase "international utility" is implied in
the Preamble to the convention, where the work of NGOs is recognized as k ing "of
value to the international community, particularly in the scientific, cultural, charitable,
philanthropie, health and education fields.. ." The convention's Explanatory ~ e ~ o r t ~ ~
points out that the element of international utility "also makes it easier to
circumscribe the concept of 'non-pro fit making' aim.'*'
While NGOs are traditionally perceived by scholars as non-profit organizationsP8
recent commentary recognizes the growing part of the business sector in global
govername, and the need to consider its potential role in international ~awmakin~.'~
Thus, although the comrnon cunency remains the term NGO, some cornmentators
suggest replacing it with the broader concept of 'civil s o ~ i e t ~ . ' ~ ~ 1 will begin by
discussing NGOs, the most prevalent fonns of non-state actors in international
relations, which stand at the centre of the current discourse. For the purpose of this
analysis 1 will first define NGOs as private environmental organizations engaged in
legal, political or social actions to promote different goals and objectives in the
'" Available at ~http:/lconventions~coeoeintrrCeat~/enIReotml/1 24.htrn> (last visited 20/09/2001). 47 Ibid. Article 9. '13 See for example J. J. Lador-Lederer, Intemarional Non-Governmental 0rganizorion.s and Eeonomic Entities : A Study in Autonornous Organizaiion and lus Genrium, Leyden, (A. W . Sythoff, 1963) at 60. ' 9 Raustiala, Participatory Revolution, supra note 12, at 540-541 (includes trade and business associations in the tcm NGO); C. Giorgetti, "The Role of Non-Govemmental Organizations in the Climate Change Negotiations" (1998) 9 Colo. J. Int'l Envtl. L. & Pol'y 1 15 [hereinafter "The Role of NGOs"] and C. Giorgetti, "From Rio to Kyoto: A Study of the lnvolvemcnt of Non-Govcrnmental Organizations in the Negotiations on Climate Change" (1999) 7 N.Y.U. EnvtI. L.J. 201 [hereinafter "Frorn Rio to Kyoto"] at 202 (making a distinction between "BNGOs" and "Non-BNGOs" or "ENGOs"); P. J. Spiro, "New Players on the International Stage" (1997) 2 Hofstra L. & Pol'y Symp. 19 [hereinafter 'New Players"], at 25-3 1 (defines NGOs as organizations of non-profit orientation, but supports the inclusion of business corporations - as a separate category - in international decision making processes). For another approach see W. Schoener, L'Non-Governmental Organizations and Global Activism: Legal and lnfonnal Approaches" (1997) 4 Ind. J. Global Legal Stud. 537, at 538, who seems to accept the U.N report definition.
Chamovitz, supra note 40, at 188 and Gamble & Ku, supra note 1 1, at 228-229.
transnational realrn. The non-profit element will be further discussed in the following
section, in light of the benefits of NGOs are said to bnng to the lawmaking processes.
2. The Involvement of NGOs in International Environmental Institutions
In the past three decades, notably since the Stockholm Declaration of 1972," NGOs
have played crucial roles in international environmental decision-making processes.'2
They lack legal status in international law, and therefore are ofien forced to operate
on the margins of the political process," but still manage to have significant influence
on the formation, maintenance and enforcement of international environmental
treatiesS4
By providing scientific expertise and by exercising their increasing political power,
NGOs act to shape the global environmental agenda. Lack of information and
scientific uncertainty often become bamers to global efforts to combat environmental
degradation." This is why in recent years, NGOs have had the opportunity to play an
important role in the processes that led to many of the conferences where
-
Stock~~ofm Dechrariott on the Human Environmenr, 16 June 1972, 1 1 I.L.M. 1416 [hereinafter "Stockholm Declaration"]. 52 S. Chamovitz, ibid. at 261-65. The first inclusive regime, exceptional at the time, was the CITES Convention in 1973. Raustiala notes that "The major regimes of the 1980s and 1990s - ozone depletion, transboundary air pollution, hazardous wastcs, climate change, and biodiversity - are more complex and more demanding then most of the earlier resource regimes." That may explain the increasing utilization of NGOs in these regimes. Raustiala, Participatory Revolution, supra note 12, at 568. 53 Tolbert rightly points out, that the informai status of NGOs has both a negative and a positive side: they are at the mercy of international organizations and governments, which may restrict thcir level of participation, but they also get to define their own role in a creative and effective manner, unconstrained by the law. D. Tolbert, "Global Clirnate Change and the Role of International Non- Govenmental Organizations", in R. Churchill & D. Freestone eds., international Law and Global Cfimare Change (London; Boston: Graham & TrornadM. Nijhoff, 1991) 95 , at 98-104. El See Tolbert, ibid. Simmons, supra note 37, at 64. H. French, 'The Role of Non-State Actors", in. J. Werksman ed., Greening Internationul insrirurions (London: FieldEarthscan, 1 9%), at 3-7; C. Giorgetti, From Rio to Kyoto, supra note 49, at 238-243, Raustiala, Participatory Revolution, supra note 12, a! 558-565; See also D. Wirth, "Public Participation in lnternational Processes: Environmental Case Studies at the National and International Levels" (1996) 7 Colo. J. Int'l Envtl. L. & Pol'y 1 hereinafter "Public Participation"). '' Garnble & Ku, supro note Il. at 237; Raustiala, Panieipatory Revolution. supra note 12, at 558-559.
international environmental treaties were negotiated and signed. They make their
knowledge and resources available to govenunent oficials and intergovernrnental
organizations, thereby advocating, promoting and at times even initiating multilateral
environmental convention^.'^ NGOs also act to correct mistakes by pointing out
errors and inconsistencies in proposais of new convention^.^' The United Nations
often uses NGOs as consultants through the United Nations Economic and Social
Council (ECOSOC),'~ and has a list of hundreds of accredited NGOs for that purpose.
By providing policy information, research and scientific evaluations NGOs help to
reduce costs of policy development for governments~9 and mobilize public opinion
by bringing credibility to the issue at band?
In addition to issue-identification and advocacy of international action in response to
environmental concerns, NGOs are also very active in the negotiation processes of
TWO examples are The Convention on International Trade in Endangered Species of Wild Fauna and Ffora, 3 March 1973, 27 UST 1087 (CITES), and the United Nations Convention on Biological DiversiSi, 5 June 1992, 31 1.L.M. 818. See J. McCormick, "lnternational Nongovernmental Organizations: Prospects fot a Global Environment Movement". in D. Sheldon & M. Karnieniecki eds., Environmental Politics in the International Arena: parties, organizations, and policy (Albany: State of New York University Press, 1993) 135. This is not only s o in environmental treaties but in other fields of international law as well. The Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personal Mines, 3 December 1997, 36 1.L.M 1507 (the "Ottawa Convention"), is a exemplary case where NGOs managed to initiate a treaty making process by building public support world wide, lobbying, and mobilizing political forces that led to the signing of the treaty. See Garnble & Ku, supra note 1 1, at 249-253; See also K. Anderson, "The Ottawa Convention Banning Landmines, the Role of International Non-govemmental Organizations and the ldea of lnternational Civil Society*' (2000) 1 l Euro. J. Int'l L. 91 and R. Falk & A. Strauss, "On the Creation of a Global Peoples Assernbly: Legitimacy and Power of Popular Sovereignty" (2000) 36 Stan. J. Int'l L. 191, at 199-201. About participation of NGOs in the preparation and development of humanitarian treaties, see Newrot, supra note 12, at 59 1. 57 Raustiala, Participatory Revolution, supra note 12, at 599.
Pursuant to the resolution discussed earlier, see supra notes 41-42 and accompanying text. See also N. Lindborg, "Nongovernmental Organizations: Their Past, Present, and Future Role in lnternational Environmental Negotiations", in L.E. Susskind, E.J. Dolin, J.W. Breslin eds., International Environmental Treaty Making (Cambridge: PON Books 1992) 1, at 2. Most intergovernmental organizations, however, d o not have similar written policies or guidelines. See Wirth, Public Participation, supra note 54, at 29. 59 Raustiala, Participatory Revolution, supra note 12, at 560.
Lindborg, supra note 58, at 5. (Demonstrates how in the case of stratosphcrïc ozone depletion, NGOs used the media to publicize scientific data to initiate a very efficient boycott of products in the U.S. and at a later stage mobilized public and government support to take action that lead to the creation of the Montreal P rotocol on Substances zhat Deplete the Ozone Layer, 16 Scpternber 1987, 26 I.L.M. 1541 [hereinafter "Montreal Protocol"].
international environmental treaties. The forma1 participation of NGOs in
international environmental conferences is presently decided on an ad hoc basis, at
the discretion of States, and therefore still limited. Recent conventions extend an
observer status to NGOs, pennitting them to submit papers and documents into the
record or to delegates, suggest draft for convention provisions, and to address the
various session^.^' In al1 the major international conferences in recent years, one can
witness an increasing participation of NGOS? The ratio of NGO participants and
governments oficials at the June 1992 United Nations Conference on Environment
and Development in Rio de Janeiro, for example, was approximately one to one.63
However, NGO influence on the nom-creating process extends well beyond these
functions." This is especially evident in the advanced stages of conferences where
states tend to adopt less inclusive approaches for NGO participation, in order to
ensure secrecy of deliberation~.~~ This is when NGOs shift their efforts to the
informa1 leve1,6~ and use various methods of lobbying; cornmunicating their positions
in independent daily publications; using creative forms of protest and "shaming" of
States; and influencing the views and behaviours of states by appealing to
international decision makers d i r e ~ t l ~ . ~ ' NGO representatives sometimes serve as
'' The permitting provisions in the legal instruments have almost idmtical language. See Montreal Protocol, art. 11; UNFCCC, Art. 7(2XI); United Nations Convention on Biological Divefsity, supra note 58, Art. 23; The Convention on the Control of Transboundary Movements of Hazardous Wastes and rheir Disposai, 22 March 1989, 28 I.L.M. 649, Art. 15(6). For earlitr conventions see Raustiala, Participatory Revolution, supra note 12, at 545. The degree of participation allowed varies and depends on the specific rules of procedure in each convention. See Lindborg, supra note 58, at 12, for differcnt approaches taken by several conventions. 62 P. Waak, "Shaping a Sustainable Planet: The Role of Non-Governmmtal Organizations" (1995) 6 Colo. J. Envtl. L. & Pol'y 345. 63 D. Tarlock, "The Role of Non-Governmcnîal Organizations in the Developmmt of International Environmental Law" (1 992), 68 Chi-Kent L. Rcv. 6 1, at 63. a For informal tactics of NGOs in international conferences see Schoener, supra note 48, at 550. 65 Raustiala, Participatory Revolution, supra note 12, at 570. 66 Giorgetti, From Rio to Kyoto, supra note 49, at 240 67 Nowrot, supra note 12, at 594.
members of govemental delegations, and not necessarily their 'home' delegations6*
This enables them to directly influence the negotiations even when their participation
in the conference as independent actors is limitedF9 Other important means of
influence are the close relations that NGOs usually have with the media and the
growing use of the 1nternet7'
NGO involvement in the international legal system does not cease once a treaty is
agreed upon and signed. Aside fiom working to ensure ratification of the treaties by
govemments on the domestic level:' NGOs are involved in the monitoring and
enforcing of states' obligations. Here too, most of the activity is informal. Powerfirl
environmental-protection NGOs use various methods, sometimes launching
campaigns that breach national laws in order to force national govemments or
business corporations to comply with international conventions. One method is
monitoring results and then publicly 'shaming' countries into cornpliance." Another
type of measure is controlling the behaviour of sbtes and corporations through
national courts.73 in some cases, NGOs have the status of observers in conferences of
parties (COPs), which gives them the possibility not only to contribute to at the
lawmaking stage, as discussed earlier, but also to provide the information they
possess about breaches of states' obligations, which could trigger the regime's non-
'' See A. Chayes & A.H. Chayes, The New Sovereignty: Compliance with International Regdatory Agreements. (Cambridge: Harvard University Press, 1993, at 259-269; Nowrot, ibid. at 593; Lindborg, supra note 58, at 12. 69 Such was the case in the United Nations Convention on the Law of the Sea. See Gamble & Ku, supra note I l , at 248. Governments sometirnes use NGOs as "fire alanns", asking them to oversee delegations, thereby reducing the costs of monitoring delegates. Raustiala, Participatory Revolution, supra note 12, at 562. 'O See Gamble & Ku, ibid. On the impact of the communication revolution on the globalization of international environmental law, see J. Dunoff, "From Green to Global: Towards a Transformation of International Environmental Law" (1 995) 19 Harv. Envtl. L. Rev. 24 1, at 295-300. " Raustiala, Participatory Revolution, supra note 12, at 563. " Lindborg, supra note 58, at 6. 73 See generally M. Ehthe, "Cornpliance Control beyond Diplomacy - The Role of Non-Govemmental Actors" (1997) 27 Envtl. Pol'y & L. 293, and in detail, D. R. Hodas, "Standing and Climate Change: Can Anyone Complain about the Weather?" (2000) 15 J. Land Use & Envtl. L. 45 1.
compliance procedure.74 This is important because most international environmental
treaties rely upon self-reporting by States, which rnay distort information, or in the
worst case, fail to report at all. NGOs provide much more accurate data than that
reported by member States. Still, as NGOs have no legal standing in international
tribunals or dispute settlement bodies, they cannot have direct influence on
compliance procedures, which is why their enforcement capacity is very limited?
It seems then, that the status of non-state actors in the international environmental
legal process is a paradoxical one. Their increasing power is not reflected in a
recognized legal status, and in spite of their significant influence on the building and
design of international environmental regimes they have no legal personality under
international law. "[Tlhe niles goveming public participation in international armas"
says David Wirth, "lack unifomity, are arbitrarily applied, or both."76 AS a resulf
NGOs find alternative, informa1 ways to influence the formation of international
environrnental noms and to a limited extent, to promote compliance with these
noms. The question facing policymakers is, then, to what extent non-state entities
should be formally involved in the international environmental legal process, and
whether or not their activities should be institutionalized. A first step towards
answering this question would be to analyze the nature of NGO activities, the benefits
it generates, and their effects on the lawrnaking process and the international system
as a whole.
74 Bothe, ibid. at 2%. NGOs have not yet been granted standing in non-compliance procedures under rnultilateral agreements. In the Montreal Protocol, however, NGOs may participate as observers in the Multifateral Consultative Procedure (MCP), provided that two thirds of the Parties assent to their participation. See E. P. Barratt-Brown, "Building a Monitoring and Cornpliance Regime Under the Montreal Protocol" (1991) 16 Yale J. Int'l L. 519, at 564. See also, on the monitoring rolcs of NGOs in the ClTES and the Basel Convention, G. Handl, "Cornpliance Control Mechanisms and International Environmental Obligations" 5 Tul. J. Int'l & Cornp. L. at 43. '' Raustiala, Panicipatory Revolution, supra note 12, at 560; Bothe. M. 76 Wirth, Public Panicipation, supra note 54, at 37.
III. The Liberal Case for Non-State Actor Participation in International
Environmental Institutions
The following discussion suggests that some advocates of NGO participation
inappropriately import notions of national democracy to the international arena,
thereby allowing for a limited role for non-state actors in international fora. It also
shows how even the existing rationales favouring NGO involvement in international
institutions may be applied to for-profit associations and business corporations.
1. Benefits of NGO Participation
The arguments in favour of non-state actors' involvement in international institutions
are of two kinds, which 1 will cal1 instrumental benefits and democratic benefits. The
daim behind both is that NGOs contribute to the process of efficient international
lawmaking, and a state-cenûic view of international law underlies both arguments,
although less apparently so in the case of democratic benefits arguments. The
democratic liberal approach stands at the centre of my enquiry, since it provides
valuable insights into international lawmaking by illuminating the notion of
legitimacy, constrained as it is by principles of positivist legal theory.
1. I Instrumental Benefits
The first type of benefit fiom the various roles played by NGOs in international
environmental institutions is their ability to promote environmental protection and
sustainable development goals. They do this by addressing and emphasizing certain
issues, positions, interests or concerns that govemments do not always represent. 77
Tarlock explains why this is so:
"First, in the formulation of standards of performance, P G O s ] can
art iculate powerfûl universal, single-purpose standards. The y need not
trade off environmental to other objectives because they are not b o n d by
the need of political leaders, elected and non-elected, to offend powerfiil
constituencies. Second, for the same reason, there is littfe incentive to
subordinate science to other considerations. Third, NGOs c m often work
with local environmental groups, who lack both resources and political
legitimac y, to support environmental initiatives. "78
However, it is not just the environment that can profit fiom NGO activities, but also
govemments, which is why they are increasingly receptive to the notion of NGO
participation. The interests of govenunents are served when NGOs deliver technical
expertise to interested parties, facilitate negotiations by providing data and competing
ideas, help secure ratification and implementation of treaties on the domestic level,
and monitor compliance of sbtes' obligations. By playing these roles, NGOs are
essentiaily being utilized by govemments to their benefits, mainly by minimizing
research and implementation expenditures.
This approach seems to provide a very limited role for non-state actors in the
international system, pnmanly because it is based upon a view that takes states for
granted as the basic units of the international ~ ~ s t e r n . ' ~ The utilization of NGOs
77 See D. A. Wirth, "Re-examining Decision-Making Processes in International Environmental Law", (1 994) Iowa L. Rev. 769 [hereinaftcr "Re-examining"], at 777. 78 Tarlock, supra note 63, at 65-66. See afso J. Peel, "Giving the Public a Voice in the Protection of the Global Environment: Avenues for Participation by NGOs in Dispute Resolution at the European Court of Justice and World Trade Otganization" (2001) 12 Colo. J. Int'l L. & Pol'y, 47, a! 71 -72. 79 The following linc of reasoning would fit the theories of compliance suggested by the institutionalist school in IR theory. See generally S.D. Krasner ed. International Regimes, (Ithaca, NY: Cmell
depends on decisions of states, and state consent - guided by self-interest - is the
reason for cooperation of govemments with NGOs. International institutions are
treated as instruments designed by states to carry out their national self-interests and
NGOs are considered entities whose activities have to be devised to fit the broader
undertakings of states. Following this logic, one can conclude that there is no place
for institutionalization of the role of non-state actors in international structures, nor
for encouraging their increased involvement. As long as they prove to be beneficial to
govemments, their role would be secured; the more beneficial they are, the more
involved they wili become.
1.2 Democraric Benem
The case for integrating NGOs in the international community extends beyond the
instrumental argument. The second advantage of non-state actors' participation,
which seems to hold greater explanatory power, is the argument that their
involvement enhances the legitimacy of international environmental regimes, and
advances the e f i i ency of the regirnes as a r e s u ~ t . ~ ~ Whereas, in the past, the authority
and Iegitimacy of rules and institutions derived fiom the notion of consent,
democracy is claimed to be the pnmaxy basis of govemrnental legitimacy today?
Bodansky aptly defines legitimacy in this context as:
University Press, 1983) [hereinafter "Internationai Regimes"] and Keohane, After Hegemony, supra note 18.
Bodansky, Legitimacy, supra note 22, at. 600. See also K. W. Abbot, "'Economic' issues and Political Participation: The Evolving Boundanes of International Federalism" (19%) 18 Cardcwro L. Rev. 971, at 109-109. K. Raustiala, "Sovereignty and Multilateralisrn" (2000) 1 Chi. J. Int'l L. 401; T. M. Franck, The Power of Legitimacy Among Nations (New York: Oxford University Press, 1990). bhereinaflrr "Legitimacy"]. at 288. ' Bodansky, Legitimacy, supra note 22, at 600.
"a quality that leads people (or states) to accept authority - independent of
coercion, self-interest, or rational persuasion - because of a general sense
that the authority is j~s t i f i ed . '~~
This justification of authority can be found in demwratic states, where the public
holds elites accountable for their actions through elections, and where the legislation
process allows for pathways of public participation and ensures tran~parenc~." At the
international level, however, ideas of democracy seem utopiaq8" as there as yet no
political community at the international level; no global "dern~s."~%s "democratic
d e f i ~ i t " ~ ~ is now becoming evident in environmental law, which is shif'ting fiom the
national level to the international realm, and increasingly govem the conduct of non-
state actors (not only relations between sbtes), rnaking traditional conceptions of state
consent as the source of legitimacy inadequate?' Thus, the cure for this illness is
"public participation."
A similar approach is taken in the recently signed Aarhus Convention, which seeks to
secure public participation in environmental dec i~ ion-makin~ .~~ Each party to this
convention is to "guarantee the rights of access to information, public participation in
decision-making, and access to information in environmental r n a t t e r ~ . ' ~ ~ Article 3(7)
of the convention states that "[elach party shall promote the application of the
Ibid. 83 Keohane, & Nye, supra note 22, at 14.
Ibid. at 1 1. Bodansky, Legitimacy, supra note 22, at 600.
86 J. Ebbesson, 'The notion of Public Participation in International Environmentai Law" [1997J Y.B. Int'l Envtl. L. 51. See also generally Wirth, Re-examining, supra note 77. '' A related yet distinct reason for the legitimacy deficit in international environmental regimes is the increasing use of non-consensual mechanisms. See Bodansky, Legitimacy, m p note 22, at 607-6 10, and also R. Churchill & G. Ulfstein, "Autonomous Institutional Arrangements in Multilateral Environmental Agreements: A Little Noticed Phenomenon in International Law" (2001) 94 Am. J. Int'l L. 623, a t 636-643. 88 The Convention on Access to Information, Public Participation in Decision-Making, a d Access to Justice in Environmental Matters, 25 June l998,38 I.L.M. 5 1 7. 89 Ibid. Art. 1.
principles of this convention in international environmental decision-making
processes and within the fiamework of international organizations in matters relating
to the environment." It is therefore considered as "an important step in the
democratization of environmental decision-making.'7g0
The argument is, therefore, that the democratic deficit in international environmental
law can be redressed by an increase in the involvernent of the interested public in the
decision-making process, which would contribute to popular legitimacy of
international environmental regimes, and advance their effectiveness as a resultgl
Transparency, access to information and participation in the law-making process are
crucial to the effectiveness of global institution^.^^ NGOs are perceived as "the voice
of the voicele~s"~~, because they serve as a link "between the abstract deliberations of
govemments and the practical needs and wishes of their citizns"." This recent
discourse around NGOs and the notion of "democratic legitimacy" deserves closer
examination.
2. Democratic Liberalism, Legitimacy and the CDomestic Analogy9
In his note about the "participatory revoiution" in international environmental law,
Ka1 Raustiala argues that NGO participation in the international lawmaking process
90 S.T. McAtlister, "The Convention on Access to Information, Public Participation in Decision- Making, and Access to Justice in Environmental Matters" [1998] Colo. J. Int'l Envtl. L. Y.B. 187, at 187. 9' See Raustiala, Participatory Revolution, supra note 12, at 585-586. And see also S. Anderson & J. Wettestad, "The Effectiveness of international Resourccs Cooperation: Some preliminary Notes on Institutional Design" (1993) 13 Int'l Challenges 6 1. 92 Spiro, "New Global Communities: Nongovernmental Organizations in International Decision- Making Institutions" (1995) 18 Washington Q. 45, at 5 1. 93 Raustiala, Participatory Revolution, supra note 12, at 567. Although it is arguable that the prominent NGOs today represent only a small segment of the global population. See ibid. and also Peel, supra note 36, at 72-73. '' Gamble & Ku, supra note 11, at 238 (quoting Cynthia Price Cohen). See also Lindborg, supra note 58, at 5-6.
yields political, technical, and informational benefits for states, as well as normative
benefits, which help explain the structure and pattern of NGO a~cess .~ ' He uses an
analogy of international environmental lawmaking and American administrative law
to show that NGO participation does not undermine the regulatory power of states but
rather strengthens it. Raustiala envisions the emergence of a new public international
law, modelled on the Arnerican expenence, where the legitimacy of regulation by the
federal govemment (or the international community of states) can be enhanced by
participation of the public (or the international NGOS) .~~ His use of a 'domestic
a n a ~ o ~ ~ ' ~ ' is therefore readily apparent, and is being applied despite the
fùndamentally different nature of the national and the international structures.
Daniel Bodansb, who examines three possible sources of democratic legitimacy of
international environmental regimes, also imports domestic notions of democratic
legitimacy to the international lawmaking process.gB He maintains that democracy,
public participation and expert decision-making may enhance the legitimacy of
international environmental in~titutions.~ Participation can contribute to popular
legitimacy by giving stakeholders a sense of ownership in the process, while
restricted participation can provoke di~satisfaction.'~ Although it has some
limitations, public participation could provide a measure of accountability to the
95 Raustiala, Participatory Revolution, supra note 12. % Ibid. at 584. 97 Which he describes as a reproduction of democratic procedures at the international level ("As the locus of regulatory activity has incrcasingly shiftcd 'upwards,' the actors and procedural rules that facil itate effective and fair regulation domesticali y have followed"). Ibid. at 585.
Bodansky, Legitimacy, supra note 22. Although by themselves they do not provide a firm basis for it. See ibid. at 61 1-623.
'O0 Ibid, at 617. (one example he gives: concerns about the level of participation of developing countries in the Intergovernmental Panel on Climate Change (IPCC) has led to the establishment of an ad hoc working group to encourage greater involvement).
public, says Bodansky, an$ thus might serve the same legitimating functions as is it
does domestically. 'O'
A more complex understanding of legitimacy is suggested by IR scholars Keohane
and Nye, who discuss ways to address the questions raised by the pluralization of
world politics and the increasing spread of democratic noms. 'O2 They acknowledge
the fact that:
"internationaI institutions lack the key feature that makes democracy
possible and that, in democracies, facilitates accountability: an
acknowledged public, operating within a politicai cornmunity in which
there is a general consensus on what makes public decisions legitimte."'"
But elections, they contend, are not the only way to assure accountability. Three types
of mechanimis can strengthen electoral accountability at the international level.lw
First is ensuring sufficient transparency of state delegates' actions so that the public
can judge whether the govemment is canying out its mandate properly. Second is
increasing domestic democratic accountability. And finally, better domestic
legislative control over policy measures at the international level could fiirther
democratic accountability. There are also important non-electoral dimensions to
accountability according to Keohane and ~ ~ e . ' " The public should be given the
'O' fbid. at 6 19. See also Wirth, Re-examining, supra note 77. at 776. "At a high level of generality", he argues, "the analogy between international procedures, in which diplornats and dher technical experts ordinarily represent govemments, and domestic administrative law is a good one, at least in the field of environment." He bases his conclusion on "theories of facilitating accountability to the public, infonned decision-making by public authorities, and govemmental ef'ficiency." While acknowledging that a care is required when making analogies from the municipal to the international level, he claims that there is no principied reason to avoid such analogy in environmental policy making. As 1 would argue in the discussion below, such principled reason does exist. 'O2 Keohane & Nye, supra note 22. 'O3 Ibid. at 12. '04 Ibid. 'OS ~bià. at 1 2- 15.
ability to exercise its voice in the long intervals between elections as well, and to
criticize govemmental policies. Furthemore, transnational networks and epistemic
cornrn~nities '~~ may hold elites accountable through cntical discourse rather than
election~.'~' Third, market forces could have a significant effect, since 'closed'
govemrnents would find it difficult to attract capital and foreign investors. Aside
fiom the procedural means of enhancing legitimacy, Keohane and Nye argue, one
must consider the substantive outputs of international regimes: the overall
accomplishment of international institutions over time can be appreciated as well as
the forming of supportive coalitions. 'O8
Keohane and Nye are aware of the problematic nature of the analogy to domestic
structures. They argue that "the vast différences in political context between domestic
and international govemance suggest the need for a more appropriate measure for
judging democratic legitimacy than the so called democratic deficit based on the
domestic analogy."'" One of their suggestions to enhance democratic legitimacy is to
allow a variety of non-state entities, both profit and non-profit, to participate in the
work of international organizations. ' l 0
'O6 An epistemic community is "a specific of community of experts, sharing a belief in a common set of cause-and effect telationships as well as common values to which policies governing these relationships will be applied." These experts contri bute to the devclopment of a shared knowledge which enables States to take action in response to cotiective problems. See P. Haas, "Do Regimes Matter? Epistemic Communities and Mediterranean Pollution Control" (1989) 43 int'l Org. 377 [hereinafter "Epistemic Communities'~ at 384 note 20. See also infa notes 333-342 and accompanying text. 'O7 My argument is, however, that these transnational actors play a central role in the international lawmaking process; they do not merely confer legitirnacy by sounding their criticism, as suggested here. See below, section IV. 'OS Keohane & Nye, supra note 22, at 15-16. It should be noted, howcver, that using effcctiveness as one of the means to determine legitimacy of govemments secms to create a circular argument: If legitimacy helps to ensure effectiveness, how could effectiveness be a part of the definition of legitimacy? 'O9 Ibid. at 16. ' Io Ibid.
2.1 The Domestic Analogy Debate
The use of the term "domestic analogy" can be traced back to the 1930s in the
writings of C.A.W Manning, who was one of the first critics of its wide application
by liberal IR scholars."' The first to give it a more specific definition, however, was
Hedley Bull, who wrote in 1966, that the 'domestic analogy' is:
". . .the argument fiom the experience of individual men in domestic society
to the experience of states, according to which the need of individual men to
stand in awe of a cornmon power in order to live in peace is a ground for
holding that states must do the sarne. The conditions of an orderly social life,
on this view, are the sarne among states as they are within them: they require
that the institutions of domestic society be reproduced on a universal scale. ' "
Suganami provides a thorough review of the typical applications of the domestic
analogy in international reform ~iterature."~ He is more interested, however, in the
practical benefits of the various applications than with their "theoretical c ~ ~ e n c ~ . " ' ' ~
Nevertheless, Suganami suggests a usefûl typology of domestic analogies. He
analyzes Bull's description of the domestic analogy, and concludes that it is not as
narrowly defined as one might think."' The analogy is not being used only to support
an idea of a world government, which can be found in 'cosmopolitan' world order
proposais. It can also be found in approaches favouring the transfer of domestic
principles to the international system white leaving the sovereign state stnicture
intact. Suganami provides the following working definition:
- - - - - - -
) II See Suganami, supra note 24, at 10. I l 2 H. Bull, Ybciety and Anarchy in International Relations" (1966) in K. Alderson & A. Hurreli cds., Hedley Bull on Intemotional Socieiy (London: McMiilan, 2000), at 8 1. I l3 Suganami, supra note 24. "' See T. Nardin, "Book Review: The Domestic Analogy and World Otder Proposais. By Hidemi Suganami" (1991) 85 Am. J. Int'l L. 571. I l 5 Suganami, supra note 24, at 28-39.
"The 'domestic analogy' is preswnptive reasoning that holds that there are
certain similari ties between domestic and international phenornena; that, in
particular, the conditions of order within states are similar to those of order
between them; and that therefore those institutions which sustain order
domestically should be reproduced at the international level."' l6
Bull, a strong opponent of the domestic analogy, has argued that the assumption
underlying it is wrong, because "anarchy among states is tolerable to a degree to
which arnong individuals it is not."'" He claimed that there are characteristics of the
nation-state that preclude a similar process at the international level. First, the state is
not in a constant pursuit of secunty like the individual in the Hobbesian state of
nature. Each state is provided with particular territory where life can flourish. Second,
states in the international sbte of nature are free fiom al1 kinds of vulnerability that
individuals in the pure sbte of nature are subject (an armed attack of one state rarely
results in physical extinction). Third, states are not equalIy vulnerable to extemal
attacks. And fourth, states are much more economically self-sufficient than
individuals and can survive without a high degree of cooperation. These fundamental
differences have led Bull to state that anarchy is the central fact of the international
system and the starting place for theorizing about it. There is no legislature and no
supreme executive at the international level. No authority exists to which one state
can him for justice in its affairs with its neighbours. Anarchy is, therefore, simply the
absence of a higher goveming authority, and that is the essence of the uniqueness of
international relations."' But it is not only a govemment that is absent, but also a
"' Ibid. at 1 . By 'institutions' Suganami refers not only to l e p l institutions o f a state, but also rules, practices and conventional techniques of a society which are not expressecl in the form of law (ibid, at 29-30) Thetefore, while the notion of public participation as a means of enhancing legitimacy of democratic governance is not a l ep l device, it would still qualify as a forrn of domestic analogy according to Suganami. '" Ibid. at 88. Il8 Ibid. and see also H. Bull, The Anarchical Society: Study of Order in World Politics (London: Mc Mil lan Press Ltd., 1 977) [hereinafkr "The Anarchical Society"].
governed community: "The argument here is that international society does not
display the level of solidarity required to sustain adherence to institutions of a kind
that are comrnon within domestic societies."' I9
Ironically, the same arguments used by liberal scholars to highlight the 'democratic
deficit' in international governance (no authority; no "demos") are employed here by
critics of the domestic analogy. While the first consider the distinctive nature of the
international system as a 'deficit' which can be conected by fürther 'democratizing' of
the lawmaking processes, the latter daim that the unique characteristics of the
international system require the development of new structures for international
cooperation.
It would be wrong, of course to, reject the notion of domestic analogy altogether.
Some institutions and conceptions in the municipal sphere could indeed correspond to
the international system, and applying them in global institutions could prove to be
beneficial.'" However, when employing such analogy, one must be mindhil of the
unique features of the international system, its relevant actors, and the issue-area
involved. Therefore, proponents of a domestic analogy in a given context rnust show
which "similanties between domestic and international phenomena" exist to vindicate
the "reproduction" of " those institutions which sustain order domestically." ' *'
"' K. Alderson, "Beyond the Linguistic Analogy: Nonn and Action in International Politics" (2000) tnstitute of International Relations, The University of British Columbia, working paper no.3 1. (Available at <httv://www.iir.ubc.ca~Ddfflles/wcbwp3 1 .de; last visited 2O/Og/îOO 1 ) at I . in this paper, Alderson argues that a problematic analogy i s facing not only libcrals but constmctivists as well. The 'linguistic analogy* according to Alderson is the tenàency to view the n o m s of international society as akin to the rules of language. This assumption is misleading in his view because it attributes to international institutions a durability and capacity thcy do n d poses. 120 "Analogy" o f treaties and contracts, principlts of adjudication at the domestic and the intcmûtional s tem, for example, can undoubtedly be found usefiil. l'ln the words of Sugamani's definition, supra note I 16.
Keohane and Nye are right to daim that the domestic analogy in the 'democratic
deficit' context is il1 suited to international politics.'22 O n the empirical level, an
observer of recent international lawmaking processes would have to agree that the
conception of roles played by NGOs in international environmental institutions as
"public participation" is far too narrow. As the previous subsection has shown, non-
state actors are currently involved in international treaty making in far more complex
and diverse ways than what is perceived as public participation in democratic states.
Their fùnctions extend beyond sounding "the voice of the voiceless" or restraining
the power of an elected government As the climate change regime der non strate^,'^^
environmental NGOs, which fonnerly functioned as watchdogs of the international
lawrnaking process and as guardians of global environmental concerns, are no longer
the only non-state actors in the intemational system, and their roles extend well
beyond that. International NGOs operate not only as n o m entrepreneurs; they play
active roles in the generation, application, and monitoring compliance with legal
norms. They are now sl~aring the international stage with states and a growing
number of international organizations and business entities.
The 'problem' with the arguments of democratic liberals is their limited
understanding of normative individuality in the international sphere, and its potential
contribution to international legitimacy. It would be wrong to perceive the notion of
international legitimacy in the same way it is perceived at the state level, where a
democratic process is taken as a prescription for legitimate govement . In a
horizontal international system, where there is no 'government' in the sense of - - - - - -
'12 Alderson goes even further by saying ". . .l will not argue for this daim here, but simply declare it - the democratic deficit cannot be overcorne by any organization that proposes to organize at the level of the whole plane! .... The lirnits of democratic polity and the size of the economically efïicient common market are not necessari l y coextensive." (Alderson, supra note 1 1 9, at 1 16). IZ3 See below, section V.
legitimate authority, and no 'demos' in the sense of a homogeneous political
comrnunity, the basis for justified authority should not be established by impoting
models of legitimacy fiom hierarchical democratic legal stmctures.
Nevertheless, liberal theories of international law deserve closer attention. The
reviewed proponents of NGOs' involvement do not provide a complete account of the
nature of the international system, nor how legitimacy works in it. The following part
will explore a possible theoretical reinforcement of the liberal standpoint. If the
liberal project can indeed demonstrate that legitimacy works at the international level
the same way it does at the domestic level, perhaps the "public participation" analogy
is well placed afier al]. Professor Thomas M. Franck's legal theory, which puts the
legitimacy of international rules and institutions at the centre of the debate, is a useful
point of departure.
2.2 Franck's LegitUnacy Tireory
Some of the most influential writings regarding the nature of international law corne
fiom what is denoted the 'democratic liberalisrn' strand,'" which employs an
interesting conception of legitimacy of international noms and institutions. In his
book The Power of Legitimacy among Nations, Thomas Franck suggests that the key
to understanding Louis Henkin's often cited quote "almost ail nations observe aIrnost
al1 principles of international law and almost al1 of their obIigations almost al1 of the
time,"'2s lies in the concept of legitimacy. Franck defines legitimacy as:
The term used by G. J. Simpson, "lmagined Consent: Dernocratic Liberalism in International Legaf Theory" (19941 Aus. Y.B. Int'l L. 103 [hereinafter "Imagined Consent"]. Koh refcrs to the "Kantian thread" in this respect, where he places Franck as well as the "liberal international thread." See Koh, W h y Do Nations Obey, supra note 21.
L. Henkin, How Nations Behaue Law and Foreign Policy (New York, Published for the Council on Foreign Relations by Columbia University Press, 1979). at 47.
"the property o f a rule or de-making institution which itself exerts a
pull towards comp1iance on those addressed normatively because those
addressed believe that the mle or institution has corne into being and
operates in accordance with generall y accepted principles of right
pr~~ess,'~'26
Four factors affect legitimacy and create this "compliance pull," in Franck's view.
First is the determinacy of a mle. A relatively clear rule, he says, is more likely to
have a real impact on conduct, whereas a rule which has no readily accessible
meaning makes it harder for the addressed to know what is expected, which rnakes it
easier to justify non-cornpliance. Second is the symbolic validation of the nile,
achieved when the rule has attributes, which signal its significance and reinforce its
legitimacy (such as ntual, pedigree, continuity). A mle also needs coherent
application to exert compliance pull. It must be applied consistently, and distinctions
must be based on underlying general principles related to the purpose of the ~ 1 e . l ~ '
The fourth indicator of legitirnacy, according to Franck, is adherence of the rule to
'right process,' i.e. its relation to a pyramid of secondary rules goveming the creation,
interpretation and application of rules, as accepted by the community of states.
Franck's influential book has attracted a lot of praise but also a great deal of
crit ici~rn. '~~ His cntics claim that he does not provide us with an understanding of
how legitimacy works in international Iaw. The first three variables affecting
legitimacy, namely deteminacy, symbolic validation and coherence, relate to what
constitutes a legitimate rule, not to the justified authonty of an institution or a
Iz6 Franck, Legjtimacy, supra note 80, at 24. 12' Ibid. at 152. Iz8 See e.g. N. Berman, The Paradoxes of Legitimacy: Case Studies in International kgal Modernism" (1991) 32 Harv. Int'l L.J. 583; M. Koskenniemi, "Book Review", (1992) 86 Am. J. Int'l L. 175; F.R. Teson, "Book Review" (1992) 37 McGill L. J. 666; D. Georgiev, Letter, (1989) 83 Am. J. Int'l L. 554; J. Alvarez, 'The Quest for Legitimacy: An Examination of The Power of Legitimacy Among Nations by Thomas M. Franck, (1991) 24 N.Y.U.J. Int'l L. & Pol. 199.
regime.lz9 The fourth factor, adherence, refers to legal legitimacy; structural
validation of norms. When rules belong to a system of normative hierarchy, states
begin to comply with them as part of their desire to exercise their "community-
bestowed stateh~md."'~~ Essentially, his answer to the question "Why do states obey
powerless n~les?"'~' is "because they perceive the nile and its institutional penumbra
to have a high degree of legitimacy."'32 However, this still does not explain why
states would obey d e s that satisfy these requirements (i-e. the four characteristics of
legitimacy) and not others. I J 3
The statist paradigm endorsed by Franck is the reason for this problem in his analysis
of the legitimacy concept. Nathaniel Berman succinctly depicts Franck's incomplete
theonzing of the international system in the following passage:
"...Franck does not give theoretical significance to studies of the sources of
international legitimacy that expand the social psychologicai inquiry beyond
states in at l e s t three directions: first, "horizontally" to the anay of ways in
which beliefs and actions are f o r d within the various kinds of complex
foreign policy bureaucracies; second, "upwards" to entities such as
multinational corporations and international and supranational organizations;
and third, "downwards", to the legitirnation of international d e s through
their invocation by, and influence on, the struggles of ''infianational" entities
such as individuals struggling for human rights and "peoples" for self-
detenninati~n."'~~
-- ..
'29 See Bodansky, Legitimacy, supra note 22, at 60 1 note 29. "O Franck, Legitimacy, supra note 80, at 190. "' Ibid. at 3. 13' Ibià, at 25. 13' See O. Okafor, "1s there a Legitimacy Deficit in International Legal Scholarship and Practice?" ( 1 997) 13 Int'l lnsights 91, at 97. "' Berrnan, supm note 128, at 593. See also Simpson, Imagineci Consent, supra note 124.
Indeed, Franck's approach does not acknowledge the potential legitimating effect of
individuals as subjects of international law. ïhis gap is evident in a later essay, where
Franck demonstrates how his legitimacy theory can be applied to the "right to
democratic govemance" He traces the emergence of two notions in
international law: "Increasingly, governments recognize that their legitimacy depends
on meeting a normative expectation of the community of states. This recognition has
led to the emergence of a community expectation: that those who seek the validation
of their empowennent patently govem with the consent of the govemed."'36 By
examining the degree to which the democratic entitlement exhibits the four indicators
of legitimacy, one can detennine whether this nonn has matured and is perceived as
legitimate. Franck shows how international institutions begin to adopt this norm and
develop mechanisms to secure the holding of periodic national elections. The notion
of democratic will, he daims, is now the basis for legitimacy in international law."'
But the consent of the govemed individual, according to Franck, is to be given at the
national level. This is not another form of domestic analogy; Franck does not suggest
here that international lawyers should seek to borrow democratic structures of
govemance fiom liberal states. As Simpson points out, Franck "merges two ideas of
consent and imagines a world in which states themselves consent to a new norm of
international law that demands the consent of the citizens for state legitima~~.""~ In
this, Franck neglects the direct influence that individuals and international
organizations have on the legitimacy and viability of intemational law.
"' Franck, Demoçratic Govemance, supra note 25. This essay was reproduced in ch. 4 in his book Fairness, supra note 13. For a critique questioning the legitimacy of this nonn sec Simpson, ibid. and also D. Otto, "Challenging the "New World Order": International Law, Global Dcmocracy and the Possibtlities for Women", (1993) 3 Transnat'l L. & Contemp. Probs. 371. 136 Franck, Democratic Govemance, supra note 25, at 46. '" Ibid. at 46-49. 13* Simpson, lmagined Consent, supra note 124, at 1 20.
The absence of normative individuality in Franck's analysis has yet another
problematic ramification. Fernando Teson has argued that Franck's definition of
legitimacy is flawed because it focuses on the right process by which niles are
generated, while principles of justice play no role in determinhg the legitimacy of
international rules and principles.'39 Franck distinguishes between the "secular
community" of states, and the utopian "moral community." Since a moral community
of states does not exist as of yet, there is no possibility to apply notions of justice in
the international level the same way it may work at the national level among
individuals. This agnostic view of justice is a result of the state-centric stance taken
by ~ranck.'" As Teson points out, "the operational problem is that justice seems to
hold among individuals, while international law addresses states and
governrnents."'4 '
Franck's legal approach continued to evolve in his next major work, Faimess in
Internotional Law and ~nstit~~tionr,'" where he first introduces the substantive
dimension to his legitimacy analysis. Here he argues that the faimess of international
law should be judged first by the degree to which the rules satisfy the participants'
expectations for distributive justice, and by the extent to which niles are created,
interpreted and applied with what is perceived by the participants as right process:'43
"Thus the perception that a rule or system is distributively fair, like the
perception of its legitimacy, also encourages voluntaIy compliance. Unli ke
'39 The Kantian critique on this issue cornes fiom F. R. Teson, 'The Kantian Theory of lntcmational Law" ( 1 992) 92 Colurn. L. Rev. 53 [hereinafter "Kantian theory"], at 95. '* See Koskenniemi, supra note 128, at 177. 14' Teson, supra note 128, at 668.
Franck, Fairness, supro note 13. "' Franck, ibid. at 7.
legitimacy, however, distributive justice is rooted in the moral values of
the community in which the legai system ~~erates."'~
We can now consider the normative dimension, so it seems, because a global
community is emerging, not merely a "secular" one, where there is an agreement over
what constitutes "right process", but also where there is "some shared ineducibIe
core of beliefs as to what the search for fairness itself enta il^."'^^ Franck was
criticized for the ambiguous nature of the faimess concept,'" for his "thin" version of
"~ornrnunity",'~~ and for the continuing dichotomy between "process faimess" and
9 , 148 "moral faimess . Some of these issues, as well as the reliance on constmctivist
insights that can be found in Franck's recent book'" will be fiirther discussed in
section IV of this paper. What is important to emphasize at this point is that
throughout his most current analysis of international law, Franck continues to uphold
a statist view of the international system, and pays no heed to the role of non-state
actors in the "fairness discourse" he describes. This is why the concluding chapter of
his book, which is titled bbForums of Faimess," comes as a surprise.'50 International
institutions, Franck says, are "facing imminent breakdown caused by widespread
'" Ibid. at 8. Ibid. at 1 4- 1 5.
146 See G.J. Simpson, "Book Review: 1s lntemational Law fair? Thomas M. Franck, Faimess in International Law and Institutions", (1996) 17 Mich. J. Int'l L. 615 [hereinafier "Book Review"], at 640 ("...Professor Franck appears quite non-selfconscious about appealing to Our intuitions about justice or dominant standards of faimess. Nowhere is there a discussion of the mythic foundations of justice-talk or the ideological content of ideas like faimess"). 147 See Brunnée & Toope, lnteractional Theory, supra note 26, at 62-63 note 190 ("Although he adverts to the need for "shated values", the community he describes is largely contractarian or transactional, k i n g grounded in John Rawls' version of deontological liberalism"). 148 See Okafor, supra note 133, at 97 ("... by what alchemy is justice to be isolated fiom voluntary compliance-pull (i.e. legitimacy)? 1s not another view of legitimacy plausible which exposes ~ui ty/ just ice as critical aspects of legitimacy?"). " T. M. Franck, The Empowered Selj Law and Society in the Age of lndividualism (Oxford University press, New York: 1999) [hereinafter "Empowered Self'] (arguing that personal identities are now constnicted around "multiple layers of freely selected affinitits" and transnational communities of shared interest).
Franck. Fairness, supra note 13, at 478-484.
dissatisfaction with both what they do and how they do it.""' The way to address this
legitimacy deficit, he claims, is to rethink and "open-up" the process, without causing
r* 152 a "radical shock to what is as yet a state-centered system . His suggestion is to
reform the UN system into a two-chamber forum in which one will be constituted of
State representatives as at present, and the other will be directly elected globally.
Allocation of seats will be based on population size. When explaining the need for a
representative Assembly, Franck provides the following insight:
'The point, quite simply, is that faimess discourse requires faimess in the
selection of participants. At present, the term 'global discourse' suggests a
conversation between nations. That limited view, however, is wrong. Not
only is it inaccurate, overlooking the many actors - multinational
corporations, churches, service organizations, gender- and ethnoculturally
specific groups, scientific networks, and a myriad others - who are already
part of this discourse. In addition, and centraliy, the mental model's
wrongness lies in its unfairnes~.""~
Franck believes, however, that his "modest proposal," which he calls "a mere peg" on
which to fix a more general idea, can not be implernented in the foreseeable future.
His most recent work is not another account of international legal theory, but a study
in law and ~ociety."~ This book examines the emancipation of the individual in
national and international law and the changing social attitudes towards personal
choice in constiîuting identity. When discussing the right to democracy, which he
considers to be the most important manifestation of the age of individualism, Franck
States what he now believes to be the operational solution for the democratic deficit in
international law:
'" Ibid. at 483. 15* Ibid. Is3 Ibid. at 484. ISJ Franck, Empowered Serf; supra noie 149.
"That global forums and institutions, despite this evident 'dernocratic
deficit,' remain alrnost exclusively the domain of States attest to the
continuing potency of the Vattelian idea .... A textbook solution to this
would be world govemance through directly elected representatives. Since
this is not about to happen, a second best approach is to ensure that those
who speak in global discourse themselves represent democratically elected
governments. s5
Thus, promoting the nght to democratic (domestic) goveniance would ensure the
legitimacy of international institutions. Conceptually, this proposal is appealing, since
it does not purport to 'democratize' the international system, thereby creating a
mistaken analogy with domestic structures of govemance.Is6 Rather it offers a f o m
of "secondary democratic ~e~itirnation."'" Interestingly, Franck chooses not to
follow the third option of "opening-up" the faimess discourse suggested by Raustiala,
Bodansky, Keohane and Nye, and others, who borrow notions of public participation
in democratic States to show how legitimacy could work better at the international
IeveI. Is8
1 would argue that both solutions considered by Franck (world governance and
democratic entitlernent), as ways of creating an inclusive discourse with a powerfiil
legitimating effect, are probiematic. The cosmopolitan visions of world govemance
have been considered in detail elsewhere and will be fûrther considered below. ISg The
I s 5 Ibid. at 26 1. '% Which is the course taken by the 'panicipatory rcvolutionarics' discusscd earlier. Is7 fbid. at 262. And see also supra note 135 and accompanying tcxt.
Bodansky criticizes Franck's approach on this point precisely. arguing that ll[d)espite initially defining legitimacy in terms of 'right process,' virtually none of his analysis focuses on such procedural issues as transparency, deliberation, elections, voting and so forth." Bodansky, Legitimacy, supra note 22, note 29. Is9 See section IV.2.
democratic entitlement nom has also raised many objections.'" Of relevance to the
issue at hand is what Gerry Simpson calls the political legitimacy of the noms. Some
countries, he argues, are only democratic by name and this nom has not really been
entrenched in their legal structure. Furthemore, for some cultures, notions of
electoral democracies are alien and other (non-'democratic') foms of participation
may be found there.16' But even if such a western liberal version of a "happy and
global coincidence between the govemed and the government"'62 were to exist, this
still would not make international institutions legitimate. If, as Franck himself has
argued, it is important to open-up the "faimess discourse" as to reflect the various
discursive interests of participants in the international system, promoting and
enforcing the democratic entitlement n o m would not serve this purpose. It would
move us back to the two-level discourse on international issues, where relevant actors
could only take part in democratic processes at the national Ievel, leaving the
international arena to state delegates. This was evidently insufficient and has brought
about the proliferation of non-State actors that we are witnessing in international
lawmaking processes. The fact is that the largest number of NGOs, transnational
activists and multinational corporations acting in the international realm corne fiom
liberal democratic States. This suggests that a legitimacy deficit exists even when
"those who speak in global discourse themselves represent democraticaIly elected
governments." 16'
To conclude, Professor Franck's theory of international law contributes to our
understanding of law's normative underpinnings, by placing the concept of legitimacy
160 See Simpson, lmagined Consent, supra note 1 24, and Otto, supra note 1 35. 161 Simpson, ibid. at 123- 124,
ibid. a; 120. Franck, Fairness, supra note 1 3, at 1 26.
at the centre of the discussion, and by emphasizing the importance of the discursive
process in the making, interpreting and implementation of international noms.
However, his essentially positivist approach to law reinforces a state-cenlric view of
the international system. Although he acknowledges the fact that the exclusive role of
States in global forums is being cha~len~ed,'" and that non-state actors are gaining
increasing influence in the international lawmaking process,'65 this is done almost as
an afierthought and with no discussion of the implications that these developments
have or any set-ious consideration of possible structural changes that they may
necessitate.
2.3 Other Liberal Theorîes: Fernando Tesùn and H a d d Kok
Two scholars in liberal thought, who consciously seek to fil1 the gaps in Franck's
theory by adding elements of normative individuality, are Fernando Teson and Harold
Koh. Teson's Kantian theory purports to provide us with a liberal alternative to
Franck's approach, without its said flaws. He draws on the Kantian tradition to argue
that the individual should be the normative unit in international law and that justice is
mandated in the international legal system.'" This view leads to the conception of an
international civil society comprised of individual actors. "Respect for States," says
Teson, "is merely derivative of respect for persons. In this way, the notion of state
sovereignty is redefined: the sovereignty of the state is dependent upon the state's
domestic legitimacy; and therefore the principles of international justice must be
congruent with the principles of intemal justice."'" Since his focus is on domestic
legitimacy, Teson suggests mechanisms of public participation that are mainly at the
Ici4 See ibid. at 481. 16' Ibid, and also Franck, Ernpowered selj; supra note 149, at 88-90. 166 Teson, Kantian Thewy, supra note 139, at 54. The Kantian thesis was furthcr dcveloped in his book, F.R. Teson, A Phifosophy of InrernarionaI Law, (Westview Press: Boulder CO, 1998). 16' Teson. Kantian Theory, supra note 139, Ibid.
state level, while democratic States remain the subjects of international law.'" His
normative vision of a legitimate international system, then, amounts to a community
of representative democratic states.'" Individuals' role would be to restrain States'
power by the use of free press.170 D i a ~ e Otto rightfully points out, that "[tlhis is a
more diffused and individualized understanding of the importance of civil society
than that traditionally associated with the idea of NGOs and more recently assumed
by the new social movements."17' Thus, although Tesbn adds an important intemal
aspect of morality to des-legitimacy, he too seems to uphold a notion of legitimacy
which implicitiy prioritises the state, and assumes that adherence of states to
democratic noms would necessarily generate legitimacy at the international level.
A more significant contribution to this discussion cornes fiom Harold Koh, who
outlines a theory of "transnational legal process" that l a d s to compliance of states'
behaviour with international ~ a w . " ~ Koh argues that Franck's theory fails to explain
why states are more likely to obey decisions which have been reached by a discursive
process of legitimacy and justice. Claiming that a state complies with noms which
are perceived to be "fair" does not explain how this "perception" is internalized into
the domestic system. The missing element in Franck's theory, argues Koh, is the
process of interaction, interpretation and intemalization of international noms in
dornestic legal systems.'73 Through the use of case studies, Koh describes a dynamic
and constitutive process in which "as transnational actors interacf they create patterns
16' See Otto, Civil Society, supra note 3, at 130. 169 Simpson, Imagined Consent, supra note 124, at 122. "O Ibid. at 1 17. 17' Ibid. at 13 1 . "' See H.H. Kohl "Transnational Legal Rocess" (1996) 75 Neb. L. Rev. 181 [hereinafter "Transnational Legal Process]; Koh, Why Do Nations Obey, supra note 21, at 2645-2659. See also H.H. Koh, "Bringing International Law Home" (1998) 35 Hous. L. Rev. 623 [hereinafter "Bringing International Law Home"]. 17' Koh, Why Do Nations Obey, supra note 21, at 2645.
of behaviour and generate norrns of extemal conduct which they in tum
intemalize."'" What is more, "evenhürlly, repeated participation in the process will
help to reconstitute the interests and even the identities of the participants in the
process."'7s This use of 'bconstructivist lingo** is not accidental. Koh draws greatly
upon constructivist IR theory, but argues that the transnational process is missing in
its analyses. He distinguishes himself fiom international legal process theorists, who
are engaged in the "horizontal jawboning" of inter-state interaction, and focuses on
the "vertical domestication" of incorporating noms in national legal systems.'76 The
distance fiom this viewpoint to a vision of an inclusive lawmaking process is short:
"If transnational actors obey international law as a result of repeated
interaction with other actors in the transnational legal procas, a h t step is
to empower more actors to participate. It is here that expanding the role of
intergovernmental organizations, nongovernrnental organizations, private
business entities, and "transnational moral en t r ep rend deserves careful
s t ~ d ~ " ' ~ ~
By beginning to identiQ the relevant actors in the process of norm generation,
interpretation and application, Koh has pinpointed the "missing link" in both liberal
and constr~t ivis t"~ accounts of the international system. However, while his interest
lies in the vertical process'79 of non-state actors' involvement in noms intemalization,
m y concem is how to "expand the social psychological inquhy'"80 beyond States in
- --
"' Koh, Transnational Legal Proces, supra note 172, at 204. 175 Koh, Why Do Nations Obey, supra note 2 1, at 2646. 17' Koh, Bringing International Law Home, supra note 172, at 626427. 17' Koh, W h y Do Nations Obey, supra note 21, at 2656. See also Koh, Bringing International Law Home, supra note i 72, at 646-655 (suggesting six key agents in the transnational process: transnational noms entrepreneurs, govemmental norm sponsors, transnational issue nctworks, interpretive communities and law-ûeclaring fora, bureaucratie compliance procedures, and issue lin kitges), 17' On the prevalent state-centric approach in constructivism, see below section TV. "' Which Bennan calls the "downwards" direction of enquiry. See supra note 128 and accompanying text.
Ibid.
the "upward" direction, namely to international non-state entities who are actively
involved in international environmental regimes, and whose activities have no direct
karing on domestic policies. While I agree that the transnational legal process
described by Koh depicts important aspects of international lawmaking and
implementation of global laws in the domestic level, 1 contend that he too overlooks
another fom of interaction that can be witnessed between actors in international
regimes; an interaction that aims not only to generate noms and internalize thm
domestically, but also to regulate the relationship among actors in the regime. As the
fifth section of this paper will show, the climate change regime can be expected to
generate derivative legal relationships between and among State and non-State
entities. The potential role of multinational corporations in this regime would not
(only) be to interact, interpret and intemalize the generated norms, but to live and
operate within the legal sphere created by these noms. Domestic policies will
undoubtedly have a crucial influence on the operation and success of the regime, but
alongside these policies, much of the implementation will remain at the international
level.
2.4 The Liberal Case: Summing Up
The iiberal case for NGO involvement in international institutions suffers fiom
significant shortcomings. The theme underlying each of the approaches 1 have
discussed is a statist view of the international system. It has led some theorists to rely
upon a flawed analogy of the international system with democratic domestic
structures. It has led others to imagine a two-level consent for international norms,
which leaves the legitimating effect of individuals at the national level. Harold Koh,
on the other hand, develops a theory unconstrained by state-centic views when trying
to identim the transnational actors in global govemance. His current account of the
relevant actors and their possible roies in international regimes, however, is
incomplete. An examination of the Kyoto proçess demonstrates some of the aspects
of non-state actors' participation that are not considered by Koh.
While I accept Keohane and Nye's assertion that "[tlhe development of appropriate
theory for judging global institutions will be an important part of the development of
global governance,"18' the place to find such theories rnay not be where most
commentators (inchding Keohane and Nye) look for it. Liberal theories tend to
borrow notions fiom democratic structures, or use variations in domestic goveniance
to explain international behaviour without sufficient normative grounds. As I will
argue in section IV, constructivist IR theory provides a helpfùl explanatory
fkamework for an alternative understanding of international relations.
Before engaging with the constructivist insights, however, it is necessary to review
some of the problems that are raised with respect to NGO participation in
international Iawrnaking. Such concems should be taken into account when designing
a framework for non-state actors' integration in international regimes. Second, the
increasing roles played by business entities of vanous forrns in international
institutions deserve consideration.
3. The Problems with NGO Participation
The notion of integrating NGO activities in institutional structures is far fiom being
accepted, in spite of the wide recognition of the increasing influence of NGOs on the
"' Keohane & Nye, supra note 22, at 16.
international lawmaking process. The main objection to NGO integration in
intemational institutions cornes fiom those who daim that their sources of legitimacy
are complex and open to questioning.'82 Anderson, for example, argues that NGOs
cannot confer legitirnacy on international organizations because they are unelected
elite organizations, which are often without connection to broader segments of civil
s ~ c i e t y . ' ~ ~ Charnovitz sumarizes some of the other concems raised by those who
object to integrating NGOs in international institutions:
First, the vast number of NGOs makes deeper participation impractical.
Second, because rnany NGOs are fiom industrial countnes, they a m p l e
certain views-for example, on human rights or the environment-that may
not be reflective of the views of developing countries. NGOs fiom
developing countries may also be less well-financed than their industrial
country counterparts and therefore less able to participate effectively. Third,
and more fiindamentally, some governent oEcials argue that NGO
involvement in international organizations is unnecessary because NGOs can
seek influence through theù owii govemments."l'"
These concems, as well as other~,"~ have prompted suggestions to develop a legal
fi-amework goveming NGO activities in order to regulate their activities.lB6 The cal1
to incorporate NGOs and other non-state actors in international institutions in order to
ensure their participation in the decision-making process is therefore justified also by
Is2 See Spiro, New Players, supra note 49, at 53. 183 Anderson, supra note 56, at 1 17- 1 i â. I M Charnovitz, supra note 40, at 275-276. ''' See for example Simmons, supra note 37 (pointing out the possible damage that could be entailed by such unregulated groups, and claiming that "cven legitimate, well established groups sornetimes seize on issues that seem designed to promote their own image and fundraising efforts than to advance the public interest"). See also Anderson, supra note 56, at 1 12-1 19. " Koh, Why Do Nations Oky, s u p note 21, at 600-601 ; Nowrot, supra note 12, at 635436; Tarlock, supra note 63, at 75; French, supra note 53, at 252; Spiro, New Players, supra note 49, at 31. But see Tolben, supra note 53, at 95.
the need to ensure their accountabi~ity.'~~ The third problem mentioned in the above
quote, conceming the ability of NGOs to influence international decision making at
the national level, is based on the assumption that al1 States have responsive
democratic govements, where such influence is feasible, but that is not always the
case. Furthemore, many NGOs seek to promote global interests. It would not make
sense for them to operate only at the national l e v e ~ . ' ~ ~
Interestingly, there is no clear divide between advocates and opponents of NGO
involvement on this issue. The calls for r e g u î a ~ g NGO activities come fiom both
sides, although for different reasons. The greatest concem of some NGO advocates is
that the institutionalization of NGO activities might jeopardise their independence.
Allowing NGOs to take part in forma1 deliberations and decision-making processes
may change their confrontational behavioural patterns, and, as a result, they may lose
the qualities that have made them most influentia~.'~~ Yet alliances with govemrnental
powers increase the chance of promoting shared objectives at the international level.
On the other side, those who object to the increasing involvement of NGOs in
lawmaking processes wish to limit the influence and access of NGOs by denying
their freedom fmm bureaucratic c~nstraints. '~ For them, regulating NGO activities is
a way to limit their influence, not increase it.
- - - -
ln' More extrerne suggestions include confem'ng full voting right on NGOs (Lindborg, supra note 58). and extension of democracy to the intemational arma by creating an internationally etectcd global assembly (See Falk & Strauss, supra note 56). See also infra notes 288-297 and accompanying tcxt. la' Charnovitz, supra note 40, at 276-277. In9 Another reason for the CO-opting is the increasing reliance o f NGOs on govemment fitnds. See Simmons, supra note 37, at 94. '* Ibid. at 94-95.
There seems to be evidence of a trend towards more cooperative behaviour of NGOs
in regard to states and 0 t h ~ ~ 0 s . ' ~ ' But this does not necessarily make their
contribution less valuable. Ingo Take provides several explanations for this trend
based on a comparative study of environrnental NGO activities in four countries.'"
First, he says, in most environmental issue-areas, there is a shift of ernphasis fiom the
phases of problem-identification and agenda-setting (which cal1 for confiontational
behaviour) towards efforts to ensure binding guidelines for action (which necessitates
cooperative patterns of behaviour such as negotiation, consultation and lobbying).
The second explanation for the shift towards a cooperative behaviour is that states
have opened up to certain social actors, who try to expand the use of these new
channels of influence. The third explanation is the increased degree of organization
among non-state actors (separately and in the form of coalitions) which delivers
'output' tbat facilitates cooperation. Take concludes that foming strategic alliances
has a positive influence:
"An increasingly co-operative stance on the part of NGOs need not lead to
the kind CO-option by state or international actors which is feared in various
quarters, and thus to a decrease in the importance of NWs. It may just as
easily smooth the path to new strategies for exerting influence, and thus open
up additional oppominities for infl~ence."'~'
Therefore, one might argue that cooperation strategies are not necessarily less
successful than protest-based activities. We may conclude by saying that despite the
growing concem over the potential negative influence of NGOs on the international
19' 1. Take, "NGOs as Strategic Actors in International Politics" Paper prepared for the Workshop on 'Environmental Protest in Comparative Perspective' at the 27" Joint Sessions of ECPR Workshops in Mannheim, 26-31 March 1999 (Available at ~ h t t ~ : / / w w w . e s s e x . a c . u k / e c ~ r / i o i n t s e s s i o n ~ /w2 l / take.df>; last visited 20/09/200 1). 19' Ibid. at 22-23. 19' Ibid at 23.
legal system, and the view of their increasing politicai power as a challenge to state
sovereignty, there seems to be general acceptance that they are here to stay. Simmons
represents the critical view of NGO involvement in international fora by stating: ". . .
there is no real way to keep them out. Instead, the real challenge is figuring out how
to incorporate NGOs into the international system in a way that takes account of their
diversity and scope, their various strength and weaknesses, and their capacity to
disrupt as well as create."Ig4
4. Participation of For-Profit Entities
As was discussed earlier, there is controversy as to whether the term NGO should
include profit-seeking entities.lgS The argument against their inclusion states that
business enterprises or associations of business corporations are motivated by
economic self-interest and their participation in treaty-making would impede progress
in issues such as human rights or en~i ronment . '~~ NGOs, on the other han& are free
fiom profit-making constraints, and serve to promote the public interest by
representing the beneficianes of the prescribed international environmental noms.197
This argument is flawed for a number of reasons, but before discussing them, it is
important to note that in practice, an artificial distinction seems to be made between
the involvement of business associations and that of business corporations.
Transnational corporations are powerfiil actors in the international realm today, yet
194 Simmons, supra note 37, at 82. 19' See above, section II. 1 . '" Lindborg, supra note 58, at 3. 197 Nowrot, supra note 12, at 6 16-61 7.
they are not aflorded a legal status in international ~aw. '~ ' For many years, while the
international cornmunity has moved towards greater regulation of international
business, direct participation of the regdatecl entities was not allowed.'" In the
climate change negotiations however, business-NGOs, compnsed of national and
transnational corporations, have k e n as active as environmental-NGOs. They work to
promote a specific industrial activity, and represent different points of view and
different business ~ e c t o r s ? ~ The cunent discourse on the issue of private actors'
participation in international law generally relates to business-NGOs in the
international system, and ignores corporations as s~ch. '~ ' Can the exclusion of
corporations fiom international lawmaking be justified?
Consider, for example, the Global Climate Coalition (GCC), a business association
that has participated in the debate on global warming and the climate change
negotiations fiom its early days. The GCC has 42 board members and 1 7 general
members, al1 of which are business firms fiom the coal, oil and energy industry (such
as Exxon, Mobil, Texaco and others). This particular business-NGO has an obvious
profit-onented goal: promoting the economic interests of its members by protecting
I9'See D.E. Artz & 1.1. Lukashuk, "Participants in lntemational Legal Relation", in C. Ku & P.F. Diehl eds., International Law: Classic and Contemporary Readings (London: Lynne Rienner Publishers, 1998) 157, at 166-169. '* This could have negative effects on the outcome of the negotiations, according to Jonathan Charney. In the üNCLOS III negotiations, the international community limited its own access to industry information that would have been available had it allowed for the participation of the industry in the negotiations. In turn, the industry reacted by applying pressure on local govemments in order to undennine the negotiations. J. 1. Chamey, "Transnational Corporations and Developing Public lntemational Law" Cl9831 Duke L.J. 748, at 754. 'O0 Giorgetti, The Role of NGOs, supra note 49, at 130-1 36 and From Rio to Kyoto, supra note 49, at 220-232; Oberthür S. & Ott. H , The Kyoto Profocol - Injümarion Policy for the 21" Cenrury. (Berlin: Springer, 1999) [hereinafier Kyoto ProtocoiJ at 31-32. and see below, section V.2. 'O' In his study of the history of NGOs participation in international govemance, Charnovitz includcs associations of businesses in the t m NGO, but excluded "profit-seeking entities thcmselves", meaning multinational corporations (Charnovitz, supra note 40, at 185-189). At the same timt he admits that it woutd make no sense to draw a line baween a business NGO such as ICC (International Chamber of Commerce) and a corporation such as ITT, since " I T ï for example cwld creatc an international NGO of ITï employees and suppliers", which would then be eligible to participate (ibid. at 276).
their carbon-emitting activities. How is this NGO different fiom a single oil Company
who may wish to participate in the negotiating process of the treaty?*02
A distinction between direct for-profit goals (of corporations), and indirect profit-
seeking orientation (of business associations) is thus hard to defend. If there is a
difference between the agenda of the GCC as opposed to one its members would
promote, it justifies permitting the individual portic@ation of the GCC members in
negotiations; not just the GCC as a group. It could be argued that direct participation
of corporations would guarantee a better representation of business interests, since it
"would allow them to speak with authority, to share their familiarity with the details
of the specific problem, and thereby to gain additional benefit~."~~' In the climate
change negotiations, however, business entities chose to cooperate and forrn
associations in their efforts to influence the international environmental agenda?"
Given the acceptance of business-NGO participation in the international
environmental decision-making process~Os one can argue that there is no intrïnsic
reason for discriminating against purely economic entities, such as transnational
corporations.
'O2 The wording of the permitting provision in the Climate Change Convention (article 7(2)(1)), for example, does not exclude the possibility of allowing business corporations into the proccss. It refers to "non-governmental bodies", and since this term has no exclusive definition in the Convention, theoretically it could also include business corporations. However, see the latest Note by the Secretariat: Admission of observas: intergovemmental and non-governmentat organizations, stating that in prepanng the list of eligible NGOs, ''the secretariat has taken due account of the provisions of Article 7, paragraph 6, of the Convention and of the established practice whcreby non-governmcntal organizations are required to furnish proof of their non-profit (tax-exempt) status in a State Member of the United Nations". U.N. Doc. FCCUCP/2000/2 6"' ses. Item 2 (e) of the provisional agenda. 'O3 Charney, supra note 199, at 783. 2m Probably because thcy believed that a unified front could get better results. See Giorgetti, From Rio to Kyoto, supra note 49, at 220-232. 'O5 See below, section 111.2.
Distinguishing environmental NGOs fiom business NGOs is problematic for other
reasons. First, business entities are not necessady anti-en~ironment-~'~ Business-
NGOs have diverse views on environmental issues and some of them support
environmental protection policies since they are compatible with their profit-seeking
~ t r a t e ~ i e s . ~ ' ~ Furthemore, if one accepts the liberal analysis discussed above, the case
for the inclusion of NGOs in the international legal system rests not only upon
environrnental considerations, in the narrow sense. It is meant to redress the
democratic deficit caused mainly by the shift fiom "green to global" in environmental
l a ~ m a k i n ~ . * ' ~ If the international environmental legal process is not sufficiently
democratic, because it lacks the transparency and accountability secured by the
administrative process at the national level, then it would be inconsistent to argue that
"public participation" means allowing NGOs to be involved while excluding business
entities fiom the democratic process in which they are involved domestically, but not
globally. Business-NGOs should therefore have the same opportunity to influence
decision-making processes as environmental-NGOs, by providing the perspective of
the relevant industry. In other words, after making a case for public participation
based on notions of democratic legitimacy, it would be dificult to justim restrictive
eligibility criteria for NGOs based on their profit-making orientation.
But as 1 have argued above, the liberal analysis mises senous difficulties. My aim is
to formulate an expanded definition of a global civil society based on an alternative
'06 Agenda 2 1 (action plan for sustainable development) was one of the major achievements of the Rio conference. It acknowledges the importance of non-state actors to the protection of the global environment. lnteresting to note the reference in para. 30 to business community as one of the major groups in the protection o f the globat environment. Report of the United Nations Confcrence on Environment and Development, U.N. GAOR, 4 p Sess. Agenda Item 21. 12 U.N. Doc. ACONFI I 5 1 /26 ( 1 992) 'O7 See below, section V.2.
See Dunoff, supra note 70.
approach, which would seek to accommodate al1 the relevant actors that interact in
international fora. The climate change regime illustrates how actors such as
(environmental and business) NGOs and business corporations are becoming
involved in the creation and implementation of international noms, all at the global
level. The final section of my paper will demonstrate how the patterns of non-state
actors' involvement go beyond the bounds of 'public participation'. 1 will also argue
that business entities should be a part of the process, but not because they represent a
public interest. They represent thernselves, and they should be given the opportunity
to participate because their contribution to the discursive process is vital to the
success of the regime.
IV. The Constructivist Case for NonState Actor Participation in
lnternational Environmental Institutions
1. Social Constructivism and Global Politics
The school of thought called "social c o n s t n i c t i ~ s m ' ~ ~ ~ is not yet a complete theory,
but rather an approach to the empirical study of international Whereas
both neorealism and neoliberalism draw upon nineteenth century utilitarianism, the
classical roots of constructivism can be found in the writings of social theorists such
as Max Weber and Emile ~urkheim?' ' and in theories of speech and language.*" The
growing body of constructivist literature is now infking the debate over the character
of the international system with exciting new insights.
The debate between neorealists and neoliberals has been based on at least one shared
premise - that states are in constant pursuit of material self interests, while behaving
" r a t i ~ n a l l ~ . ' ~ ' ~ ~eorealists*'~ consider the international structure to be a "self-help"
system, where states as unitary actors engage in a power stniggle to serve their
'O9 The term was first featured in this context in Nicholas Onuf s work in 1989, although the emergence of social constructivism can be traced back to the writings of the sociologist Anthony Giddens's about "structuration theory." N.G. Onuf, World of our Making: Rules and Rule in Social Theory (Columbia, SC.: University of South Carolina Press, 1989); A. Giddens, Central Problems in Social Theoy: Action. Srrucrure, and Contradiction in Social Analysis (Berkeley: University of California Press, 1979). There are many variants of constructivisrn, which will not be explored here. See J. G. Ruggie, "What Makes the WorId Hang Together? Ne-utilitarianism and the Social Constmctivist Challenge" (1998) 52 Int'l Org. 855, at 880-882. For another categorization sec R. Pettman, Cornmonseme Comtmctivism or the Making of World A'airs (Amonk, N.Y.: M.E. Sharp, 2 0 ) , at 1 1-25. 2'0 Ruggie loçates the proponents of constructivism in the theoretical debates of social science, ibid. at 856-862. See also J.T. Checkel, "Review Article: The Constructivist Turn in lnternational Relations Theory" (1 998) 50 Worlds Politics 324, at 325. 2" Ruggie, supra note 187, at 857. 2'2 See T. Risse, "'Let's Argue!': Communicative Action in World Politics" (2000) 54 Int'l Org. 1. "' R. Keohane, "International Organizations: Two Approacheç," (1998) 32 Int'l Stud. Q. 379 piereinafter T w o Apprmchs"]. " The prefix distinguishes this strand fiom ciassic realists fiom Hobbes to Morgenthau, who attributed
power politics mainly to human nature. Neorealists on the other hand base their view of the international character on its anarchical nature. See A. Wendt, "Anarchy is what States Make of it: The Social Construction of Power Politics" (1 992) 4 6 Int'l Org. 391 [hereinaficr "Anarchy"], at 395. This is what Nye calls "the pursuit of power as a means," as opposcd to pursuing power as an end. J. Nye, "Neorealism and Neoliberalism" (1 998) 40 World Politics 235, at 24 1.
interests. States must be constantly aware of the motives and capabilities of their
neighbours and try to outdo them. The outcome of such struggle in any given
situation reflects the differences in the distribution of power. Alexander Wendt
identifies three key features of neorealism in the writings of Kenneth Waltz, perhaps
the most influential scholar of the contemporary KR realist strand.'15 The first is the
analogy to neoclassical micro-economic theory. The international system is likened to
a market where states compte in a constant pursuit of their interests. A derivative
feature is materialism: the structure of the international system defined as the
distribution of material capabilities under anarchy. Thirdly, Waltz focuses on the
structure of the system rather than the actions of the states comprising it. Theories of
interaction between states are therefore completely neglected; only the systemic
dimension is e ~ ~ l o r e d . ' ' ~ Neorealists do not contend that cooperation in such
competitive system is not likely to occur, but that cooperation will take place only if it
would serve states' self interests, or if they are forced to cooperate (in which case they
may act against their self interest). The resulting institutional structure would
necessarily reflect the will and wants of the more powerfûl ~tates.~" It follows, then,
that international rules and institutions have little effect on state behaviour, they have
no independent causal force. States would follow international noms as long as they
serve their best interest andlor reflect the distribution of power in the system. When
the balance of power shifts, or when the n o m s no longer advance its interests, the
state would 'defect' fiom cooperation.
''' A. Wendt, Social Theory oflnfernaiional Politics, (Cambridge: Cambridge University Press, 1999) hereinafter "Socid Theory"] at 1 5- 1 7. Il6 See ibid and Walîz, supra note 15. ''' See Nye, supra note 214, at 238.
While neorealists "assume that states know what to do, but have to be coerced,"
neoliberals assume "that states know what to do, but lack information about each
other.'"" They accept the description of the international systern as anarchy, but
predict processes whereby cwperative behaviour can be generated, by explaining
why international institutions are constnicted by states. The primary explanation is
that institutions reduce forms of uncertainty and alter transaction costs by providing
information and stabilizing e ~ ~ e c t a t i o n s . ~ ' ~ Neoliberals analyze the effect of noms
and institutions on states' behaviour in instrumental terms. There would be no need
for international institutions (and the nonns and organizations that comprise them) if
cooperation could have been achieved without costs. But this is rarely the case. In
global politics, "sovereignty and state autonomy mean that transaction costs are never
negligible since it is dificult to communicate, to monitor performance, and especially
enforce compliance with This explains the increasing number of
international institutions in different issue-areas. Institutions reduce the cos& of
transactions that are consistent with the principles of the regime. They do this by
including arrangements to share information and monitor compliance, enhance
compliance with international agreements by reducing incentives to cheat and value
reputa tion of states. They facilitate linkages among issue areas and within regimes
and between regimes.221
According to the neoliberal theonsts, then, while the pursuit of interests is the
principal explanation of state behaviour, noms have the power to change behaviour,
by altering the costs and benefits of cooperation. From this view of the international
'" Wolfe, Legal Pluralism, supra note 12, at 393. '19 Keohane, Two Approaches, supra note 213, at 386. See also Kingsbury, supra note 19. at 35 1-352. U0 Keohane, ibid. at 387. "' Keohane, After Hegemony, supra note 1 8, at 244-245.
system a "regime theory" emerged, which studies the "principles, noms, niles and
decision making procedures around which actor expectations converge in a given
issue area.'lu2 Regirne theorists try to show why cooperation works in some cases and
not in others. They use various models of rational choice theory, drawing on game
theory, economics and other disciplines, to suggest institutional structure designs
which would maximize ~oo~era t ion .~ '~
Constructivists challenge two concepts upon which the rationalist (both neorealist and
neoliberal) approaches are based: matenalism and methodologicel individua~ism.~~
The first assumption of constmctivist theories states that people act towards objects
and other actors on the basis of the meanings that such objects have for The
international system, just as reality itself, is a product of s h e d hurnan perception and
social action.226 Notions such as sovereignty, state, nation, and power, are "real" only
by virtue of Our collective understandings, which give these concepts their meanings.
"The distribution of power," says Wendt, "may always affect states' calculations, but
how it does so depends on the intersubjective understandings and expectations, on the
'distribution of knowledge' that constitute their conceptions of self and ~ther ."~~ '
Actors in the international system make reality by endowing certain actions and
'" S.D. Krasner, "Structural Causes and Regime Consequences: Regime as lntervening Variables," in International Regimes, supra note 79, 1, at 2. See also Keohane. After Hegemony, supra note 18. On the emergence of regime theory see F. Kratochwil & J.G. Ruggie, "lntcmational Organizations: a State of the Art on an Art of the State" (1 986) 40 Int'l Org. 753. '*' See Koh, Why Do Nations Obey, supra note 2 1, at 2632-2633. "' Checkel, supra note 2 10, at 324-325. "* Wendt, Anarchy, supra note 214, at 396-397. 226 As was argued by sociologists many years before. See P. Berger & T. Luckmann, The Social Construction of ReaIty (New York: Anchor Books, 1966). '" Wendt, Anarchy, supra note 214. at 397. Therefae, material h e f i t s such as wealth o r power have value only because we give them a meaning. Checkel gives a clear examplc: "Consider nuclear weapons - the ultimate material capability. Constructivists argue that it is n d such weapons themselves that matter. After all, the United States worries very little about the large quantity of nuclear weapons held by the British; however, the possibility that North Korea might come into possession of even one or two generates tremendous concern." Checkel, supra note 21 0, a! 325.
things with meanings. These meanings can become structures that enable actors to act
and understand each other, but also constrain their actions."'
The second assumption explains how such shared understandings emerge in the
international system: the social context constitutes the way actors define their
interests through continuous interaction with structures. Constmctivists question the
agent-centred view of rationalist theories, and describe a process of "mutual
constitution" whereby state interests emerge frorn, and are endogenous to, interaction
with stnict~res.'~~ niey reject the rationalist assumption, which treats state interests
as given and argue that continued social interactions between actors (through
communication and discourse) shape the identities of statesTO Identities are the basis
of interests; actors do not have a ready-made "portfolio" of interests independent of
social context. Their interests are constantly defined in an interactional pmcess.2"
This distinction between casual and constitutive explanations is crucial to the
understanding of the nature of anarchy in the international system. Neorealists and
neoliberals use the "logic of consequentialism" to explain how actors behaveF2
States are instrumentally rational actors who act strategically to realize and maximize
their interests, by making rational choices. From this, it is easy to accept a description
of a 'sel f-help ' sy stem (neorealisrn) or of egoistic-based cooperation (neolikrals).
But rationalist theones do not explain how the interests were defined in the first place,
228 Wendt, &id. 229 Checkel, supra note 210, at 325; Wendt, Anarchy, supra note 214, at 403; and sec also A. Wendt, "The Agent-Structure Problem in International Relations Thcory" (1 987) 4 1 int'l Otg. 340.
Ruggie, supra note 209, at 879. Wenàt, Anarchy, supra note 214, at 398.
U2 J.G. March & J.P. Olsen, "The Institutional Dynamics of International Political Ordcrs" (2000) 52 Int'l Org. 943. Wendt makes a similar distinction baween "naturai selection" and "cultural selection." See Wendt, k i a I Theory, supra note 2 15, at 32 1-325.
or how a change in identities and corresponding interests takes place.233
Constnictivists, on the other hand, rely on the "logic of appropriateness" to explain
how shared ideas constitute the identity of actor~?'~ What guides the behaviour of
states is socially shared understandings (including noms), by doing what is
normatively appropriate. Noms and other social knowledge do not cause a state to act
in a certain way, rather they provide the reasons for a state to do so, and are
nevertheless seen as crucial in the process of identity and interests formation by
leading constnictivist t h e o r i s t ~ . ~ ~ ~ From this, a more complex understanding of the
international system arises: self-help, or material egoism, is not a constitutive feature
of anarchy, nor is it predetermined; it emerges fiom processes in which anarchy plays
only a permissive role:
"Self-help security systerns evoive fiom cycles of interaction in which each
party acts in ways that the other feels are threatening to the self, creating
expectaîions that the other is not to be t r ~ s t e d . ' ~ ~
Thus, if we accept that anarchy is not a given, since "anarchy is what states make of
it," we can explain the possibility of transfonning the self-help structure and creating
collective identitie~.'~~
The acceptance of the social constmctivist ontology has led many IR scholars to
commence empincal studies in order to show when, how and why social construction
- -
a' See Ruggie, supra note 209, at 863,867. March & Olsen, supra note 232. Ruggie, supra note 209, at 869.
236 Wendt, Anarchy, supra note 2 14, at 406. Wendt, ibid. See also A. Wendt, "Collective identity Formation and the intemational State" (1994)
88 Am. Political Science Rev. 384 [hereinafier "Collective idcntity"].
occurs in international relations.23g They study t h effect of social structures such as
epistemic communities, intergovemrnental organizations, and social movements on
the evolution of shared understandings that shape the identities of actors in the
international rea~rn.~~' However, the task of building a theory has only begun. As
Jeffrey Checkel notes, while constructivists have "succeeded in broadening the
theoretical contours of IR," by "demonstrating that their sociological approach l a d s
to new and meaningfül interpretations of international politics," they are still faced
with the challenge of developing a comprehensive t h e ~ r ~ . * ~ Nevertheless, existing
constmctivist literature can already provide international lawyers with usefùl
theoretical insights for their study of international institutions. The prospects for
interdisciplinary research are especially evident hem, mainly because constnictivism
emphasizes the effect that norms (including legal norms) have on states' behaviour."'
Defining the international structure as a "society," rather than a "state-system," holds
the promise of postulating a more inclusive vision of the lawrnaking process, where
non-state actors could fit. However, constmctivist scholars pay little attention to the
Some examples are P.J. Katzenstein ed., The Culture of National Security: Noms and Identity in World Politics (New York: Columbia University Press, 19%); A. Klotz, Noms in International Relations: The Sinrggle againsi Apartheid (Ithaca, N.Y: Cornell University Press, 1995); J.G. Ruggie, "Territoriality and Beyond: Problematizing Modcmity in International Relations" (1993) 47 Int'l Org. 1 39; M. Finnemore, National Interests in International Society (lthaca, N .Y .: CorneIl Univmity Press, 1996); and E. Adler, "lmagined (Security) Communities: Cognitive Regions in International Relations" (1997) 26 MiHennium: J. Int'l Stud. 249. 239 See (respectively) Haas, Epistemic Communities, supra note 106; M . Finnemore, "International Otganizations as Teachers of Norrns: The United Nations Education, Scientific and Cultural Organization and Science Policy" (1993) 47 Int'l Org. 565; K. Sikkink, "Human Rights, Principled Issue-Networks, and Sovereignty in Latin America" (1 993) 47 Int'l Org. 4 1 1. ''O Checkel, supra note 2 10, at 324. "' Constructivist insights are already being used by international lawyers to rtconccptualize basic definitions of international law. See Brunnée & Toope, Interactional Theory, supra n d e 26; Koh, Why Nations Obey, supra note 21, and F.V. Kratochwil, "How do N o m s Matter?" in M. B y m ed., The Role of Law in International Politics: Essoys in Internaiional Relations and International Law (Oxford; New York: Oxford University Press, 2000), at 38.
role of non-state actors in the international realm.242 For example, Alexander Wendt,
one of the prominent constructivists, is a self-proclaimed statist. While
acknowledging the possibility that "non-state actors are ôecoming more important
than states as initiators of change," he contends, "system change uItimately happens
through states."" He further argues:
"My premise is that since states are the dominant fonn of subjectivity in
contemporary world politics this rneans that they should be the primary unit
of anaiysis for thinking about the global regdation of viofence" (emphasis
addecl).'"
The focus of Wendt's inquiry is therefore issues of arms control, which are regulated
and implemented primarily through states' g ~ v e r n m e n t s . ~ ~ ~ One might argue, that the
statist paradigm rnay not fit the structure of cooperative institutions, characterized by
a high degree of interdependence. Individual governrnents cannot handle economic
and environmental concems alone. Managing the global economy and tackling cross-
border environmental challenges makes international CO-operation and CO-ordination a
necessity. But such CO-operation is necessary not only between governments.
Individual citizens and business corporations are both responsible for much of the
'*' See Brunnée & Toope. lnteractional Theory, supra note 26, at 33, 70; Wolfe, Legal Pluralism, supra note t 2; and also R. Wolfe, "See you in Geneva? Democracy, the Rule of Law and the WTO" (2001) Paper prepared for the presentation to the Annual Meeting of the Intemational Studies Association, Chicago, February 2001. [hereinafter 'The Rule of Law"] (Available at <http://~silver. aueensu.cds~s/Workinfla~erdfiles/s~s wv 16.odD; last visited 2010912001).
Wendt, Social Theory? -supra note 215, at 9. See also Wendt, Anarchy, supra note 2 14, at 424; Wendt, Collective Identity, supra note 237, at 385, and A. Wendt, "On the Via Media: a Responsc to the Critics" (2000) 26 Review of International Studies, 165, [hereinaftcr "Responsc'~ at 174 ("For ail their faults, states are the onty democratically-accountable institutions we have today to provide security and political order. Perhaps other, better institutions can one &y be developed, but until then we would do well not to tear states down tw quickly"). 244 Wendt, Social Theory, supra note 2 15, at 9. '*' Although social movements may play a crucial role as n o m entrepreneurs in this area as well, as in the Ottawa Convention for banning landmines. See e.g. Anderson, supra note 56. Stitl, application of states' commitmcnts in such treaties is indeed preformed primarily by governments.
activity that creates environmental degradation and for attempts to remedy it. Even
Wendt accepts that:
"[ilt is true that knowledge always is more usefil for some purposes than for
others, and knowledge gained fiom an analysis of States and organized
violence might do little to empower non-state actors interested in trade or
human rights. But that simply means that state-centered IR theory can only
be o n e element of a larger progressive agenda in world politics, not that it
cannot be an elernent at all." 246
As the final section of my paper will demonstrate, the distinct nature of international
environmental lawmaking calls for generating insights that could help in building a
global civil society IR theory within this progressive agenda that Wendt refers to, one
that is fkeed fiom state-centric constraints.
2. Constructivism, International Society and the Public Spbere
The origins of the sociological tum in IR theory can be traced back to the writings of
the English "international society" ~chool.'~' This school of thought is said to have
anticipated constnictivist concerns; but its limited influence on IR theory is attributed
to its historical rnethod~lo~~."~ Within the English School tradition, international
society is regarded as a " m e society" sharing a comrnon culture and expanding
--
'a Wendt, supra note 215, at 10. 247 Ruggie, supra note 209, at 862; Koh, Why Do Nations Obey, supra note 21, at 2634. Central figures o f this school are W. Manning, Martin Wight, Hedley Bull, Alan James, John Vincent, and Adam Watson. A new generation of writers scems to be reviving this research tradition, partly due to the initiative to 'reconvene' the English School, by Barry Buzan, Richard Little and Ole Wacver. Sec this "movement's" website at <http://www.ukc.ac.uWpolitics/englishsch (last visitcd 20/09/2001). 2'8 See B. Buzan, "From International Systern to International Society: Structural Realism and Regime Theory Meet the English Schwl" (1993) 47 Int'l O r g 327. Ruggie believes that one of this school's major aims "was to resist the influence o f American scientific modes of analysis and l e s to firm up its own theoretical basis." Ruggie, supra note 209, at 862.
through the centuries?49 As Harold Koh notes, international society scholars "see
noms, values, and social structure of international society as helping to fonn the
identity of actors who operate within it. Nations thus obey international rules not just
because of sophisticated calculations about how compliance or non-compliance will
affect their interests, but because a repeated habit of compliance remakes their
interests so that they corne to value rule c ~ r n ~ l i a n c e . " ~ ~ ~
Hedley Bull gives the following definition for the concept of international society:
"A society of states (or internationai society) exists when a group of States,
conscious of certain common interests and common values, forrn a society in
the sense h t they conceive themselves to be bound by a common set of
rules in their relations with one another, and share in the working of common
institution^."^^'
As this definition suggests, the actor structure of the international society according to
the leading English School theorist is state-centric as ~ e l l . ~ ~ ~ Like Wendt, Bull was
preoccupied with inter-state violence and promoting peace between states; not
complex modes of transnational cooperation. He was largely concemed with
elaborating limited niles of CO-existence between states. Bull could not fit into any of
the debates and academic categories of IR theory, and was "caught in an uncertain
position between realists and liberals."*" As we have seen, Bull spoke in Hobbesian
"state of nature" terrns when charactenzing the distinctiveness of the international
219 G. Wight and B. Porter eds., lnrernarional Theory: Three Traditions - Martin Wight (London: Leicester Univ. Press, 199 1 ), at 39. 250 Koh, Why Do Nations Oky , mpra note 21, at 2643. 25 1 Bull, The Anarchical Sociefy, supra note 1 1 8, at 1 3. ZSZ See also H. Bull, 'The State's Positive Role in World Affaits" (1979) reprinted in Aiderson & Hurrell, supra note 112, at 139. Interestingly, Bull's essay is citcd by Wendt in his response to his critics, arguing that i f this reification of the state "helps to reproducc a state-centric world, then in my view this is a good thing." Wendt, Responx, supra note 243, at 174. 253 Alderson & Hurrell, mpra note 1 12, at 20.
system, and argued that order would be based on power, hierarchy and c~erc ion .*~~
The distinctive institutions of the international society, he wrote, are international law,
diplomacy and the system balance of But unlike realists, he suggested that
political power would rest on shared understandings and mutually recognized
interests. According to Bull, shared noms interact with, and give meaning to,
material forces and structures in an international society. As Alderson and Hurrell
note: "power rernains central to the analysis of international relations, but power is a
social attrib~te."~'~ Bull's concept of international society, then, rests on three
elements: power, shared interests and cornmon values. His vision of the international
society can be categorized as pluralist. The question he grappled with, argue Alderson
and Humll, is not how to "provide a stable and universal peace," but rather how to
"mitigate the inevitable conflicts that would arise fiom the existence of a multiplicity
of s~vereignties.'~~'
In contrast to this pluralist view stands the Grotian conception of international
society, which Bull characterited as s~lidarist.*~* Alderson and Hurrell give the
following description of this approach:
"Solidarism involves an idea of international society in which the interests of
the whole form the central focus rather than the independence of the States of
which it is made up; in which the domestic analogy is at least partially
accepteci; and in which international society is about more than the provision
Supra notes 1 17-1 18 and accornpanying text. 255 See H. Bull, The Anarchical Society, supra note 1 18, at 1 62- 17 1, and also H. Bull, "Society and Anarchy in international relations" (1966) reprintcd in Alderson & Hurrell, supra note 1 1 2,77. 256 Alderson & Hunell, s u p note 1 12, at 24. 257 Ibid. at 8.
H. Bull, T h e Grotian Conception of International Society" (1966) reprinted in Alderson & Hurrell, supra note 112, at 99; and later in H. Bull, "The Importance of the Grotian Conception in the Study of International Relations," in Hugo Grotius clnd International Relations (H. Bull, B. Kingsbury and A. Roberts eds.) (Oxford: Clarendon Press, 1990) at 65.
of the necessary fiamework of the minimalist goal of CO-existence between
s t a t e~ . "~*~
The other important element of the Grotian heritage was depicted by Bull himself
"[vhe members of the international society in the view of Grotius are not
merely states or the rulers of states but include groups other than states and,
indeed, individual humans beings. International society for Grotius is not just
the society of states, it is the great society of al1 manki~d."*~~
In other words, this is a vision of a world society, which rests on comrnon interests
and identities held by individuals across the system. As Buzan indicates, the political
structure of a potential world society is ambiguous: it could result in hierarchy (world
govenunent), international anarchy, or pnmal anarchy at the individual leveL2''
Bull was initially sceptical of this ambitious version of international society. He
believed that "although the solidarity exhibited by the international society may
increase in the future, just as it may decrease, it can still be argued that in the
twentieth century the Grotian conception has proved premature."262 But as Alderson
and Hurrell show, Bull's later writings reveal a "shift of balance." He seemed to have
accepted that the pluralist conception is no longer adequate in the changing reality of
growing economic and environmental interdependence, and in view of the emerging
"cosmopolitan moral con~ciousness."~~~
' 5 9 Alderson & Hurrell, supra note 112, at 9. See also Otto, Civil Society, at 132-135, and M. Kahler, "From the National to the Cosmopolitan Sphere" in Re-lmagining, supra note 24,231, at 241. 260 Bull, "The Importance of the Grotian Conception in the Study of International Relations," supra note, 258 at 83. 26 1 Buzan, supra note 248 at 339. "' Bull, "The Grotian Conception of International Society." supra note 258, at 1 17.
Alderson & Hurrell, supra note 112, at 11-14.
The distinction Buzan makes between the two ways in which international society
cornes into existence is instructive. He uses insights frorn sociology to explain a
'civilizational model' (Gemeinschaft) - ccommunity involving historical bonds of
common sentiments, experience and identity, and a ' fiuictional mode1 ' (GeseZZschaft)
- society as a rational long-tenn construction-process of a society, based on
contrac tual relations.264
The fiinctional mode], endorsed by Bull, envisages a rather narrow, conditional
community, claims Buzan. But "[u]nless there is some sense of common iden tity...
society cannot e ~ i s t . ' " ~ ~ On the other hand, even though historically speaking, shared-
culture societies have proven to be more resilient, "the functional process is vital to
understanding what happens when an international society expands beyond its
original cultural d~main ." '~~ The civilizational model is associated with another
member of the English Schwl, Martin ~ i ~ h t . ' ~ '
The parallels between these models and the two forrns of society discussed above are
readily apparent. An international society could develop out of a purely functional
model, while world society could only emerge if there are suficient civilizational
elements of a shared culture. The notions of international society and world society
are not contradictory but rather interrelated and even complementary. For an
international society to emerge, there needs to be a basic, primitive level of a "world"
--
'a Buan, supra note 248, at 333. 265 Ibid. at 336. 2as Ibià. 267 Especialty in M. Wight, Systems of States (Leicester: Leicester University Press, 1977), and see Buzan, ibid. at 333-334.
shared culture, and a world society cannot emerge unless it is supported by a stable
poli tical framework (i .e. the state ~ ~ s t e r n ) . ~ ~ ~
Buzan concludes that regime theory is an important development of the fùnctional
(Gesellschafr) dimension of contemporary international society. States bind
themselves to a "dense network of overlapping regimes" in pursuit of increased
security, and management of a wide range of econornic and environmental issues?69
These regimes make the states and the societies within them more open to each other
and promote high levels of international c o ~ ~ e r a t i o n . ~ ~ ~ The problem with regime
theory, however, is that "purely rationalist (and positivist) conceptions of regirne
leave out element of comrnunity that is expressed in the international law that
htndarnentally constitutes the system of sovereign states.'"" This missing element
can be found, according to Buzan, in the English School's research agenda.
While 1 agree that the solidarist-Grotian conception of international society could be
an important supplement to regime theory, 1 also contend that it is an insufficient one,
for it does not provide us with a complete normative framework of international
relations. It overlooks the dynamic nature of the evolution of the international society,
as of al1 societies. Identities and interests of actors are subject to change, and are
being shaped and re-shaped in the process of mutual constitution.
Since neoliberals, and most regime theorist among them, treat actors' identities and
interests as given, they cannot explain how interests were defined in the fint place, or
268 Ibid. at 339-340. fbid. at 349.
''O Ibid. at 35 1 . 17' Ibid. at 350.
how a change in identities and correspondhg interests takes place. The English
School's emphasis on the historic analysis of international societies may provide an
explanation as to how actors' identities were formed in the first place, but cannot
explain how they change. Thus, international society SC holars could trace the
foundations of a culture-specific intemtional society (e.g. modern Europe), but may
not be able to show how it could be expanded globally in a rnulticultural world.
Social constnictivism could enrich the static theoretical hmework suggested by the
English Schwl, by providing analytical tools to understand how social practices may
transform actors' identities in the intemtional system. These valuable tools should be
employed to gradually transform the current pluralist, functional, state-centric
structure of the intemational society towards a solidarist global society. A
constructivist approach could help structure processes by which actors interact in a
manner likely to produce the conditions in which intersubjective understandings in
the international society can be positively transformed.
One important contribution of the constructivist project thus far is the elaboration of
the "social leaming" concept.2n I am especially interested in how constnictivists
borrow the concept of "public sphere" fiom Jürgen Habermas in order to explain how
actors develop common understandings and shared i d e a ~ . ' ~ ~ If one distinctive
institution of the international society is diplomacy, where states' delegates interact in
good will and mutual tn~st,"~ the public sphere may be regarded as several
272 See J.T. Checkel, "Why Comply? Social Leaming and European ldentity Change" (2001) 55 Int'l Org. 553.
Risse, supra note 2 1 2. 274 According to Hedley Bull; see supra note 255 and accornpanying text.
overlapping fora, where non-state as well as state actors engage in discursive
practices in search of normative fiameworks for collective action problems.
As mentioned earlier, rationalist theorists use the "logic of consequentialism" to
conceptualize cost-benefit strategies of actors, based on h e d preferences.
Constructivists suggest a different rationality. the "logic of appropriateness," which
emphasizes a rule-guided behaviour of human actors and the constitutive effect of
social Thomas Risse uses insights fiom IR scholars to demonstrate a
distinct mode of social interaction, based on Habermas' communicative action theory.
The logic of appropriateness, says Risse, captures only one dimension of behavioural
influence. It suggests that actors comply with a n o m that they have fùlly internalized
and now take for granted ("good people do XI'). It does not explain, however, the
intemalization process itself; namely how actors choose to adopt a certain n o m in the
first place, or change an existing one ("what is the right thing to do?").'" Therefore,
he suggests adding a second social leaming mechanism to the constmctivist research
agenda: the "logic of arguing:"
"Arguing implies that actors try to challenge the validity claims inherent in
any casual or normative statement and to seek a communicative consensus
about their understanding of a situation as well as justification for the
principles and noms guiding their action.**277
What regime theorists cal1 '%ommunication" is primanly information exchange as a
part of the bargaining process, with the aim of maximizing, optimizing or satisfjmg
given preferences. A more advanced form of communication is what Risse calls
'" Supra notes 232-232 and accompanying tcxt. 276 Risse, supra note 2 12, at 6. "' Ibid at 7.
"rhetoncal action:" actors may use sophisticated arguments to justfi their own
preferences in order to convince others to change their views, beliefs, and even
identities, but are not prepared to be persuaded thernselves?'* In a pure arguing
mode, however, every participant in the discourse is open to persuasion, witb a goal
of reaching a reasoned consensus. Interests and identities are no longer fixed, but
subject to challenges and, thus, to change. "Successful arguing," concludes Risse,
"means that the 'better argument' cames the &y, while one's (material) bargaining
power becomes less relevant. "279
The Habermasian mode1 is based on several cmcial preconditions, which are missing
in global politics. The first is the existence of a b'common lifeworld," consisting of a
shared culture, a common system of rules and shared social identity.280 The second
condition is that al1 interested parties are equal: relationships of power, force or
coercion are absent. Thirdly, al1 parties ought to have equal access to the discourse?"
Risse argues that the high degree of international institutionalization in the fonn of
regimes or organizations in certain issue-areas may already provide sorne form of
"common lifeworld." Moreover, the lack of "ideal speech situation" in international
relations does not mean that argumentative behaviour cannot be observed. Power
balance is indeed a part of every discursive practice, but since several modes of social
action can be witnessed in reality, actors may use a combination of the three
rationalities (e.g. act strategically and discursively at the same Thus, when
powerfil actors change positions and act against their instrumental interests, or when
Ibid. at 8-9. 279 Ibid. at 9. ''O Ibid. at 1 O, 14. 28 1 Ibid. 10-1 1.
Risse uses two empirical studies to trace argumentative behaviour in international discourse (ibid. at 23-33).
less powerfid actors (e.g. NGOs) manage to persuade others to change îheir minds,
this could be an indication that an argumentative persuasion has o~curred.~"
While power relations are inevitable in international politics, and a cornmon lifeworld
is di fficult to establish, the third condition for argumentative persuasion, equal
participation, can be satisfied by the creation of a public sphere. A public debate is
more Iikely to invoke identity-related issues, thereby increasing the chance for
identity change to occur; it has a "civilizing" effect on actors, since overly egoistic
arguments are considered illegitimate in a public debate; and it has an empowering
effect on matenally less privileged actors (e.g. small countries and NGOs), when they
are perceived to have greater moral authonty in the eyes of the public than powerful
a c t o r ~ . * ~ ~ In sum. an ideal arguing process is more likely to occur in the public sphere.
Like Risse, Jaye Ellis views international regimes as nascent public spheres, which
are independent fiom the states that constitute it:
"The discourse that takes place in and around regimes can contribute to the
articulation of points of view, priorities and values which are, to some extent,
independent of and distinct fkom those produced by state bureaucracies.. . The regime rnay thus provide the basis for the construction of sometbing
&in to a public sphere in the international realm.'"85
- --
283 hic!. at 19. '" Ibid. at 22. 285 J. Ellis, "The Regime as a Locus of Legitimacy" (1 997) 13 Int'l Insights 1 1 1, at 121. Ellis uses principles of regime theory together with Habermas' communicative appaach to normative vaiidity to suggest that regimes are becoming alternate locus of international law's legitimacy. It stems, howevcr, that her vision of the systern's structure leaves little space for institutiorialized participation of non- state actors. Non-state actors' involvement i s informal, and the ultimate goal is "democratizing" the process (ibid. 1 2 1, 1 26).
Thus, international society may be conceived as a "regime of r q i m e ~ , " ~ ~ ~ comprised
of many overlapping public spheres in different issue-areas. If made "public" (in the
Habermasian sense), regimes can serve as social structures h t enable challenges and
counterchallenges to validity claims made by actors towards solving problems by
reaching a reasoned consensus. In this sense, international regimes can do more than
strengthen the hnctional (Geselschafi) elements of the international society, as
suggested by Barry Buzan; they can advance the constitution of shared interests and
identities, and perhaps in the long-tem, of a global community. As section II of this
paper has shown, international regimes have not yet become "public spheres." Equal
access to various international forums in and outside of regimes is still limited to
sovereign states. States are generally reluctant to afford legal status to non-state
entities and most of the influence exerted by non-state actors in the international
realm is a result of their informal activities.
If we imagine an mis, describing the evolutionary development of the international
system, we can locate a cluster of historical (civilizational) international societies at
the point of orighZg7 The next significant point is the establishment of the
Westphalian state-system in 1648. Further along the axis, increasing levels of
fiinctional state cooperation are observed, in the form of international regimes or
organizations. Assuming that the final destination point is a world society, with a
common culture - where can we locate the cunent international system?
286 See Buzan, supra note 248, at 350. '13' TWO notable examples explored by Martin Wight are classical Grcece and early-modem Europe. See Wight, supra note 267, and Buzan, at 333.
Richard Falk believes we are now in a "Grotian moment.77288 "The prime world order
imperative," he writes, ". . .is ecological in the broadest sense of interdependence amid
s~arcity."'~~ But the state system, which prevailed since the Peace of Westphalia, has
proven inadequate to deal with the problems facing humankind in the era of
gtobalization. "Under these circumstances, a new normative order will alrnost
certainly not evolve fiom the primary agency of the state. The state appears to have
lost its creativity and autonomy as a political for~n."*~~ Falk claims that two main
features mark this paradigm shifk increased central guidance and increased roles for
"non-temtorial" actors in the international realm, in the form of grassroots
~r~aniza t ions .~~ ' These features indicate that we are heading towards a centrally
guided non-temtorial order. Thus, Falk describes a system in transition, heading
towards a "negative utopia," unless a global refonn will precede it, which "could
bring about a rearrangement of power, wealth and authority more beneficial than
anything the world has heretofore k n ~ w n . ~ ~ *
Thomas Franck explores the societal factors that brought about this shift. He
describes the emergence of individualism as an alternative to national and territorial
self-definition:
"The individualist challenge actually consists of two related claims: fust, that
each individual is entitled to choose an identity reflecting personal
preference; and, second, that in composing that identity, each may select
more than one allegiance."
- - -- - --
'as R. Falk, "The Groatian Moment: Unfulfilled Promise, ( 1 997) 13 ïnt'l lnsights 3. [hereinafter "Grotian Moment"]. 24.
Harmless Fantasy, Missed Opportunity?" See also R. Falk, Revitaliring, supra note
'O9 Falk, Revifaf~ing, supro note 24, at 26. '" Falk, Grotian Moment, supra note 288, at 29. '" Falk, Revitalking, supra note 24, at 3, and see Falk & Strauss, supra note 56. 292 Falk, Revitalking, supra note 24, at 6.
The second claim is the novel one, says Franck: the notion that identity is not
accidental or commanded; it is a self-chosen personal attribute. Individuals are now
able to choose multiple components of identities and choose their affinitie~.~'~ The
realities of social interaction create many transnational factions of overlapping
communities around subjectively chosen identities, which f o m what we might term a
"community of corn~nunities*"~~ in the world, heading towards the creation of a
global civil society.
Franck's conclusion does not have the same sense of urgency we find in Falk's
writings. He sees the emergence of the right of democracy as the most important
manifestation of the age of individualism, and it may constitute the building blocks of
a "universal constitutional democracy." However, as we have seen earlier, his
proposals regarding a possible change of structure are not thoroughly considered in
his works. In contrast, Falk's most recent proposal is to establish and empower a
Global Peoples Assembly, which could lead the way to a global parliamentary system
where social, political and even cultural diaerences might corne to be settled in a
peaceful and fair a way as the world's more successfùl democratic s~ciet ies .~~ '
Similar "global democracy" or "cosmopolitan" theones are a b o ~ n d i n ~ ? ~ ~ A complete
evaluation of these proposals is of course beyond the scope of this paper. My sense is,
however, that instead of trying to find ways to democratize a system that does not
meet the basic definitional requirement of a dernocracy (yet), one might look for
293 Franck, Empowered Serjl supra note 1 49, at 100. 294 Ibid. 295 Falk & Strauss, supra note 56. '% For the theoretical foundations of cosmopolitan theories, see D. Held, "Cosrnopolitan Democracy" in Re-Imagining, supra note 24, at 1 1 . For a revicw of various proposals sec Suganami, The Domestic Analogy, supra note 24, and Crawford & Marks, supra note 24, at 82-85.
alternative means to enhance its legitimacy. Moreover, as Bodansky notes, the use of
the term "utopia" in this context is somewhat misleading, since it implies that a world
governent is a good thing.29' It is not clear whether this f o m of centralized global
power would be desirable, even if we arrived at a point where a global political
community did exit.
Retuming to the question 1 posed earlier, it is safe to say that the international society
stands at an important landmark in our imaginary axis. Whether or not it will end up
at the "world society" destination is unclear. What can be stated, however, is that the
political, economic and environmental interdependence and the hgrnentation of the
state-system have created a new reality, where states are no longer the sole actors at
the global level. This changing reality necessitates a change of structure. The
instrument providing this structure - internationa1 law - seems to be Iagging behind.
1 will therefore turn to discuss an alternative to the positivist underpinnings of
international law discussed in section III, fiom which the state-centric structure of
international regimes originates. 1 have explored the advantages of equal access on
the effectiveness of discursive practices in intemational regirnes. Using a
constnictivist framework to recognize the normative influence non-state actors have
on the international system requires a closer look at how norms are created in a
constnictivist model. Conceiving the international system as a social construct could
improve our understanding of the legitimacy of international institutions, and of how
non-state actors contribute to the legitimation process. In other words, understanding
how legitimacy works begins with explaining how norms matter.
297 Bodansky, Legitirnacy, supra note 22, at 623.
3. Constructivist Understanding of International Law
"International law," says Phillip AIlott, "has been the primitive law of an unsocial
international society. Itself a by-product of that socialization, it has contributed to
holding back the developrnent of international society as a s o ~ i e t y . * * ~ ~ His vision of
international law as a dynamic process, an instrument for the self-creation of a
society, is greatly influenced by the works of Myres McDougal and his collab~rators~
later to be known as the "'New Haven School" of intemational ~ a w . * ~ ~ The legal
approach 1 will shortly discuss, on the other hand, does not treat law as a mere
instrument, but as a process "shaped fùndamentally by intemal requirements of
legality that condition the legitirnacy of law's normative efforts."3m
Brunnée and Toope try to bridge the enterprises of constructivism and international
law by outlining an alternative understanding of legal noxmativity, which they cal1
"interactional theory." The constructivist turn in IR theory, they daim, has opened up
the field of factors influencing state behaviour to normative considerations. However,
"[aJs constnictivists themselves recognize, sornething is rnissing fkom the
equation. That "sornething" is a coherent expIanation of how norms shape
identities and persuade actors to alter their behaviour, and of the differences
arnongst types of
The few constnictivists who do engage in this type of normative enquiry fail to
exploit the opportunity fblly due to another form of domestic analogy: an implicit
positivist understanding of law. IR scholars, following most international lawyers,
298 Allott, supra note 24, at 4 1 8. 299 Ibid. at xxvii-xix. 300 Bmnnée & Toope, Interactional Theory, supra note 26, at 24-25. 'O' Zbid. at 33.
view law through the distorting prisrn of domestic legal systems, where positivist
conceptions still prevail. Law is viewed as a hierarchically ordered imposition of
social control, and legal noms are impositions of authority, which are rooted in
force.302
Brunnée and Toope suggest an alternative, horizontal understanding of law, following
Lon Fuller's legal theory of procedural morality. Fuller rejects the positivist view of
law as normative hierarchy with a pedigree of rules (sources of law). For Fuller, law
is primarily meant to guide behsviour of humans; it is not an exexcise in social
control. He argued that human activity is necessarily goal-oriented or purposive, in
the sense that people engage in a particular activity because it helps them to achieve
sorne end. One such purposive activity is the process of lawmaking:
"[Llaw is the enterprise of subjecting human conduct to the govmance of
rules. Unlike most modern theones of law, this view treats law as an activity
and regards a legal system as the product of a sustained purposive effort.'jo3
Fuller's theory implies that nothing can count as law unless it is capable of performing
law's essential fbnction of guiding behaviour. And to be capable of performing this
function, a system of rules must satise pnnciples of intemal rn~rali ty. '~ These are
'O2 Ibid. at 3843. They review the writings of two scholars, Friedrich Kratochwil and Nicholas Onuf, who try to "relate international law to a sophisticated understanding of n o m evolution and n o m influence," in order to show that even sympathetic readcrs of international law unconsciously adopt positivist assumptions. For Kratochwil, the ideal forrn of constructivist lawmaking is adversarial processes, where authoritative judicial prunouncements are generated through rhetorical persuasion. Brunnée and Toope argue that by this, Kratochwil undervalues alternative forms of lcgal influence, especially in the international realm, where compulsory adjudication is very limited. Onuf treats law as a hierarchical ordering system and adopts an authoritarian vision of law, wherc legal niles arc generated through the hierarchy of noms. For Kratochwil and Onuf, as wtl l as other constmctivist scholars, d a i m Brunnée and Toope, law is "a unidirectional imposition of a national authority (implicit judge or rule of recognition)." Ibid. at 43. 'O3 L.L. Fuller, The Morality o f h , Rev. Ed. (New Haven: Yale University Press, 1%9), at 106. '04 These principles are the following: (1) the niles must be expressed in general terms; (2) the rules must be publicly promulgated; (3) the rules must be prospective in effect; (4) the rules m u a bc expressed in understandable tenns; (5) the niles must be consistent with one anothcr; (6) the rules must not require conduct beyond the powers of the affectcd parties; (7) the rufes m u a not bc changed so
not merely procedural requirements, because they are internal to law in the sense that
they are built into the legitimacy conditions for the very existence of
In their extensive analysis of Fuller's theory and its recent revival," Brunnée and
Toope tease out the implications of his interactional understanding of law.'07 Three of
them are of interest to me:
Lawmaking as a contirtuum - Since law is an "activity" rather than an "act,"
it should be viewed as a "continuing challenge rather then as a finished
project."308 rom this it follows that there is no specific point where the
lawmaking process begins or ends.
a Law can exist by degree - Since lawrnaking is conceived as a continuum,
there is no clear distinction between "law," "part-law," or even "non-law."
The internal morality test mentioned above is a way to measure the legality of
the rule, not establish it.'09 Thus, we can think for example of a nom k i n g
generated in the process of interaction as a "law in constniction," or what is
known in international law as "soft law."
0 Law is generated in a reciproca~process - law is not grounded in the will of
the sovereign, but rather a construction dependent upon mutual generative
activity and acceptance of the governing and the govemed. Reciprocity is
tiequently that the subject canna rely on them; and (8) the niles must be administcred in a manncr consistent with their wording. See Fuller, ibid. at 39. 'O5 In this Fuller's mode1 differs from Franck's f w r indicators of legi timacy, where these rcquiremcnts are used as elements of 'process faimess' and shaild be distinguished from its substantive, of moral faimess. See above, notes 126128 and accompanying text, and Brunnde & Toope, lnteractional Theory, supra note 26, at 53. '06 Mainly in the collection W.J. Witteveem & W.V. Burg eds., Rediscovering Fulloc Essqs on Implicit Law and Insrincrional Design (Amsterdam: Amsterdam University Press, 1 999) [hercinafter "Rediscovering Ful/er" J I 307 Brunnée & Twpe, lnteractional ïheory, supra note 26, at 43-64. 'O8 Ibid. at 46. '09 Ibid. at 47-48.
essential also amongst the governed and amongst the goveming."O From this
constant social interaction between al1 relevant actors, patterns of expectations
are created between them. It is through this rhetorical practice, and
communication which produces shared understandings, that legal noms can
emergeS3 '
In sum, an interactional theory of law views legal norms as most persuasive and
"aüthoritative" when they are created through processes of mutual construction,
namely through "institutionally shaped rhetorical practices" which create commonly
shared understandings."* However, the legitimacy of legal norms does not derive
only fiom the fact that they are constituted through an inclusive process of
interaction," since ''proeess can never be the whole story of normative infl~ence."~"
1 have argued above, that international law liberal scholars fail to give a convincing
account of how legitimacy ~ o r k s . ~ ' ~ Brunnée and Twpe M e r our understanding of
the concept of legitimacy by arguing:
"Adherence to an interna1 morality helps to render law more legitimate in the
eyes of those to whom rules are directed. In addition, modest substantive
cornmitments to extemal moraiity evidence an underlying congmence with
commonly shared understandings in society, which also tends to support the
legitimacy of mle~.''~"
- -
"O See G. J. Postema, "1 mplicit Law" in Rediscovering Fuller, supra note 306, at 239-260. 311 This is what Brunnée and Toope tenn the "congruence thesis," following Gerald Posterna. Brunnée & Toope, supra note 26. at 48-5 1.
Ibid. at 51. The term "rhetorical practice" should not k confused with the definition Risse gives it. As mentioned earlier, he considers "rhetoric" to be a situation whereby not al1 actors are open to persuasion. See supra note 278 and accompanying text.
'3 Ibid. at 53, note 142 (quoting Andrcw Hurrcll). "' See Section 111.2. 315 Brunnée & Toope, Interactional Theory, supra note 26, at 53.
And later they add:
"Legitirnacy is rooted in a 'thick' acceptance of the need for emerging
n o m , an acceptance promoted by reference to past practice, contemporary
aspirations and the deployrnent of reasoning by ana10&*~'~
Ian Hurd suggests a firther insight on the concept of international legitimacy. If one
accepts the constnictivist account of how actors' interests in the international system
are formed, and of the constitutive influence that n o m s have on actors' identities and
interests, this description of how legitimacy works is especially instructive:
"The operative process in legitirnation is the intemalkation by the actor of an
external standard. Intemalization takes place when the actor's sense of its
own interests is partly constituted by a force outside itself, that is, by the
standards, laws, d e s , and n o m present in the community, existing at the
intersubjective Ievel. A rule will become legitimate to a specific individual,
and therefore become behaviouraily significant, when the individual
intmalizes its content and reconceives his or her interests according to the
m1e.6J17
Thus, the process of mutual constitution of agent and structure is what generates
legitimacy. By demonstrating how legitimacy matters in international institutions and
the international system as a whole, Hurd postulates the concept of "after anarchy" in
international relation^?'^ What is distinctive about the anarchical international
system, daims Hurd, is not the absence of coercive govemment, but the lack of
'16 Ibid. at 66. '" 1. Hurd, "Legitirnacy and Authority in International Politics", (1999) 53 Int'l Org. 379, at 388.
Ibid. at 404. "Afier" anarchy, because authoritative institutions can be found in the international system. 'The term anarchy seems inappropriate f a a system of decentralized authority governed by rules that actors conform to out o f an interna1 sense o f rightness." Ibtd. at 40 1 .
legitirnate authority. Borrowing fiom Helen ~ilner:'~ Hurd argues that "'authority" in
this context is not a Leviathan, but the authoritative power of a ruie (or organization):
"Where an actor intemalizes a d e because it perceives it as legitimate, that
rule takes on the quality of king authoritative over the actor. The rule is then
in some sense hie~~chically superior to the actor, and partly detenninate of
the actor's behaviour, by virtue of contributing to the constitution of the
actor's definition of its inter est^.""^^
Hurd accepts a possible charge that his arguments revive an aspect of the domestic
anal^^^.'^' If one recognizes that the basis for social order in rnany domestic systems
is legitimate authority and not coercion or self-interest (and an interactional theorist
would), then the absence of centralized international govexmnent is not a valid
argument against a possible application of the domestic analogy.
Therefore, the complex role of norms as the ernbodiment and constitution of social
relations advances our understanding of how legitimacy works in international
relations. This conception of legitimacy may indeed apply similarly to domestic social
spheres as we11.)~~ This analogy can only be applied to a certain extent, however. As 1
have shown above, it would be wrong to argue that non-state actors in international
institutions could have the same legitimating effect that they have in democratic
lawmaking processes. The problematic elements of the analogy are the very issue it
''' H. Milner, "The Assurnption of Anarchy in International Relations: A Critique" (1991) 17 Rev. Int'l Stud. 67, at 73-74.
Hurd, supra note 3 17, at 400. '2' ibid. at 4O4-405. Jz2 Indeed, even Fuller's interactional theory refmed originally to domestic lcgal systcms. Brunnée and Toope apply his insights to the international realm although he himself did not do the same. Thcy believe he was wrong. They argue that "[iJt is not only international law that displays traits of horizontality. With all systems of legal norrnativity, cven state systcms of law, law is constnicted through rhetorical activity producing increasingly influcntial mutual expectations or shared understandings of actors." See Brunnée & Toope, Interactional Theory, supra note 26, at 65.
purports to address (the 'democratic deficit') and the solution suggested for it ('public
participation'). Accepting the proposition that the means of social control in the
international, as well the dornestic system, ought to be "legitimate authority" is one
thing; claiming that measures that are used to secure democratic processes and
enhance the legitimacy of norms and institutions at the national level should be
duplicated to international structures is another. My point is, that prescriptions for
enhancing legitimacy in democratic states cannot simply be applied at the
international level, since international law cannot be measured against standards of
democratic legitimacy. Instead, "horizontal legitimacy" should be sought arnongst
those involved in the lawmaking processes, and that could be achieved when actors
internalize the relevant external standards.323
The relevance of this conception of legitimacy, as suggested by constmctivist scholars
and their interactional colleagues, to the issue at hand, requires further clarification. If
law is not viewed as hierarchically ordered imposition of social control emanating
fiom a sovereign (or any form of centralized authority), but rather as a continuous,
mutually generative process, where actors shape the content of norms and institutions,
and these norms and institutions, in tum, shape the identities of the actors themselves,
then we should expect to find other authors of law beside s tate~. '~~ In other words,
discarding the positivist conception of law allows for the recognition of new
lawmaking entities, other than sovereign states.
In Fuller's model, which he himself did not apply to the realm of international law,
the relevant actors in the lawmaking process can be easily categonzed. Gerald
323 For the term "horizontal legitimacy** 1 am indebted to Professor Jutta Brunnée. 324 See Wolfe, Legal Pluralisrn, supra note 12, at 391, and Wolfe, The Rule of Law, supra note 242, at 12.
Posterna identifies three contexts of interaction in Fuller's t h e o ~ y . ~ ~ The first is
horizontal interaction between "equal" parties. This refers to the relationships
between citizens in a political community. The second context in which interaction
takes place is a vertical one, where lawgivers or law-applying authorities relate to the
subjects of law. In the third, interaction takes place between and among authorities or
officiais thernselves. In domestic legal systems, such categories are relatively distinct,
At the international level, especially under environmental regimes where non-state
actors become directly affected by the lawmaking activities, it is not always clear
whether a horizontal interaction is taking place, or a vertical one. The boundaries of
these circles of interaction are becoming increasingly b1uned and al1 actors can have
more than one capacity. Potentially, every participant in the Iawrnaking process, be it
a state, an individual, a NGO or a business corporation, could also be a subject of
reguiati~n?26
The interactional understanding of the international society, the role of law in this
society, and the concept of legitimacy, can therefore be summed up in the following
wa y:
1. The relations between international actors are based upon communication and
discourse.
2. This social interaction constnicts the identity of actors.
3. Identities of actors, once shaped, generate their interests.
4. Noms are generated through continuing interaction and patterns of social
practice out of which shared understandings evolve.
325 Postema, supra note 3 10, at 259-260. ''15 Not in the sense that a governmcnt ought to be law-abiding, which is truc with respect to evary domestic legal systcm, of course.
5 . Legitimacy of norms derives fiom the active participation of actors in their
generation, and depends on intemal characteristics of fair process and
congruence with existing social noms and practices.
6. Legitimate rules are self-binding and do not depend for there existence only
upon enforcement, since their creators have a sense of moral cornmitment to
foilow the noms.
Embfacing this interactional approach allows for the recognition of a more inclusive
vision of international lawmaking, k d fiom the positivist underpinnings of much of
the current constructivist thought. The following analysis examines the example of
the Kyoto process through a constnictivist lens, supplemented by interactional
jurisprudential insights. It dernonstrates how the constructivist view of international
relations finds resonance in the evolution of the climate change regime. It a h
suggests that non-sbte actors' participation in the continuing interactional process is
not just conceivable, but necessary to ensure the legitimacy of this international
regime.
V. Participation of Non-State Actors in The Climate Change Regime
This section will use a concrete case study to illustrate why treating fundarnentally
different systems (the global and the national) as if they were alike is not only
conceptually questionable, but also unwise fiom a practical perspective. 1 will do so
by showing how non-state actors have become key players in the design of the
climate change regime, and by exploring the opportunities presented by this regime to
extend their involvement beyond the treaty-making stage, where it is currently
concentrated.
Since law is an inevitably incomplete construction, lawmaking and law application
cannot be viewed as separate. The division made in this section between "lawmaking"
and "application" of the Kyoto Protocol is for practical purposes only. It is usehl to
juxtapose the high level of non-state actors' involvement in the continuous
lawmaking process, and the relatively low level of participation that is anticipated in
the friture. While States increasingly allow non-state entities to take active (however
informal) part in lawmaking processes, they are still reluctant to let them participate
in and influence the application phase - the interpretation, implementation and
enforcement of international law. Non-state actors have had an important role in the
early stages of the formation of the climate change regime, and helped to shape the
noms and the emerging shared understandings, since they were included in the
lawmaking fora and had various means of informal influence on the decisions being
made. An analysis of the emerging structure of the Kyoto application phase, mmely,
the fùture lawmaking processes, reveals a highly restrictive approach towards non-
state actors participation; they will generally be excluded fiom the various Iawmaking
fora.
This stands in contrast to the fact that the climate change regirne, as other
international environmental regimes today, is based on the "Convention-Protocol"
rnodel, which treats lawmaking as a progressive a~ t iv i t y . ' ~~ Under this model,
participating States first negotiate a fiamework convention, consisting of an initial set
of principles, procedural provisions and information sharing mechanisms, and only
later develop a more substantive set of binding commitrnents, usually in the fonn of
protocols. This model allows for work to proceed in an incremental manner, and for
the lawmaking process to begin before there is full consensus as to whether a problem
exists; what the nature and scope of the problem is; and what the appropriate response
measures are.328 Furthemore, the fkamework convention "can produce positive
feedback loops,"329 by establishing institutions where actors interact. This process-
onented model reflects the 4'jurisgenerative" nature of international law: a law that is
not created only by signing treaties, but one that emerges fiom a complex system of
law creation, dari fication, interpretation and implernenta tien."'
Thus, the convention-protocol model, upon which the climate change regime was
stmctured, seems to fit well into the interactional account, which views law not as
imposition of authonty but as a mutual, generative activity aimed at developing
shared understandings between and among lawmakers and subjects of the legislation.
However, while these formalistic conceptions of lawmaking are gradually being
'" See E.B. Weiss, "International Environmental Law: Conternporary Issues and the Emergence of a New World Order" (1993) 81 Geo. L.J. 675, 687-688. Sec also W. Lang, "1s the Ozone Depletion Regime a Model of an Ernerging Regime on Global Warrning?" (1991) 9 U.C.L.A. J. Envtl. L. & Pol'y 161. For a critical rcview of this model, see Downs at el., supra note 34, at 471488. 328 See D. Bodansky, "The United Nations Convention on Climatc Change: A Commentary" (1993) 18 Yale I. Int'l L. 45 1 [hereinafter "Commentary'.], at 494. 329 lbid. at 495. 330 S.D. Muphy, "Biotechnology and International L w " (2001) 42 Harv. Int'l L.J. 47, at 97.
transformed, the state-centric structures seem to remain intact, perhaps ôecause states
fear that they might lose control over the process.
1. The Evolution of the Climate Cbange Regime
It would not be an overstatement to say that the anthropogenic changes to the earth's
climate, caused by emissions of greenhouse gases (GHGs) are among the greatest
challenges facing the international cornmunity today. For many years, there was a
great deal of uncertainty arnong the scientific community around the issue of climate
change.33' The first major step in response to the growing concem was taken in 1988,
following a scientific conference heid in Villach, Austria, where the
Intergovernmental Panel on Climate Change @)CC) was established under the
auspices of the United Nations Environment Programme and the World
Meteorological ~rganization. '~~ During the same year, the issue was raised for the
first time in the U.N.'s General Assembly, by the initiative of western governments
and environrnentalist activists. The resolution adopted refers to the climate as a
"common concern of mankind." This marked the first acknowledgment of the
existence of a problem that needs to be addressed.
1. I Building an EprSemic Cummunity
Three working groups of the IPCC were set up to study the science of clirnate change,
the scienti fic-technical analyses of impacts, adaptations and mitigation of climate
change, and the economic and social dimensions of climate change. The reports of the
-- -
"' Scientists were even split between ''wamers" and "coolers." Sec D. Bodansky, Commentary, supra note 328, at 460. More about the history of the climatc change regime sce Grubb et al., î7re Kyoto Protucol: A Guide and Assesment (United Kingdom: The Royal lnstitute o f Intemational Affairs, 1999) [hereinafter "Kyoto Protocol"] at 3-26; Oberthür & Ott, Kyoto Protmol, supra note 200, at 3- 12.
Oberthür & Ott, ibid. at 3.
working groups are reviewed by hundreds of experts fiom al1 over the ~orld. '~ ' The
first report, which provided the scientific basis for the UNFCCC negotiations, was
completed in 1990. It concluded that it was "certain" h t "missions resulting fiom
human induced activities are substantially increasing the atmospheric concentrations
of greenhouse gases ..." These increases would enhance the greenhouse effect,
"resulting in an additional warming of the earth's surface.'d34 The following IPCC
assessments, in 1995 and 2001, were concluded after the adoption of the UNFCCC
and provided key input to the negotiations in the following meetings of the ~ 0 ~ s . ~ ' ~
The predicted increase in global average temperatures, according to the PCC, will
have various irreversible impacts. These include the melting of polar ice caps; rising
sea levels (which will endanger coastal areas and low-lying island states); changes in
amounts and timing of precipitation; upsurges of tropical diseases such as malaria and
cholera, and changes in ocean cunents and increased intensity of stonns and other
extreme weather events. Fragile ecosystems of mountains and wetlands will also be in
danger. Wildlife and wildlife habitat could be affected and many species will fail to
adapt and will become extinct. Desertification and flooding are also likely to increase,
which would result in famine and massive migration.336
333 The experts are appointed by govemrnents, intergovemmental and nongovcmmental organizations. See Oberthür & Ott, ibid. at 3-4. 334 J.T. Houghton et al. eds., Climate Change: The IPCC Scienrific Assessrnent (Cambridge University Press,, IWO), at xi. 33s J.T. Houghton et al. cds., Climute Change 1995: me Science of Climare Change (Cambridge University Press, 1995); J.T. Houghton a al. eds., Climare Change 2001: The Scientifc Bais , (Cambridge University Press, 200 1 ). 'j6 See Presentation o f Robert T. Watson (Chair of IPCC) at the Sixth Conferencc of the Parties to the UNFCCC (1311 112000) (Available online at ~http:l lwww.i~cc.ch/Dress/~~oD6.htm~; las! visited 20/0912001). Watson gives a useful summary of the implications of climate change for water resources, agricultural productivity and food secunty, natural ecosystems, human htalth and sea level rise.
The PCC's work was crucial to the development of a scientific common consensus
that global warming is occuning and that it could have serious impacts. Its diverse
membership had the authoritative legitimacy necessary to foster the beginning of the
UNFCCC negotiating process.337 By identifying the problem, definhg its scope and
recommending the ways to address it, the IPCC served as "a specific comrnunity of
experts, sharing a belief in a common set of cause-and effect relationships as well as
common values to which policies goveming these relationships will be applied.'"38
This has been tenned in literature on sociology as an "epistemic community." Regime
theorists, who viewed regimes as institutions rather than a collection of rules,
recognized the advanbges of fonning epistemic communities in various issue-areas,
bnnging state governrnents to coordinate their practices under the influence of the
epistemic ~ornmunity.''~ From an institutionalist perspective, the main purpose of
fonning an epistemic community is the knowledge it produces, which facilitates
cooperative (but rationalist) behaviour. But a comrnunity of experts can do more than
provide information. The climate change issue is an example of a collective problem
around which the level of uncertainty is so high, that actors may not have a clear idea
of their seIf-interests. The likelihood of reaching consensus, generating binding norms
and complying with them is increased when states share beliefs about the nature of
the problem and of the need to address it.'" Such community c m therefore be
regarded as an important step towards transfonning a regime into an effective and
superior institution:
- - - - - -
'." Oberthiir & Ott, Kyoto Profocol, supra note 200, at 10; Gnibb d al., Kyoto ProtucoI, supra note 331, at 4-5. "* See Haas, Epistanic Cornmunities, supra note 106, at 384 note 20. '39 See J. Brunnée & S. loope, Environmental Security and Frcshwater Resources: Ecosystm Regime Building" (1997) 91 AM. J. Int'l L. 26 [hereinafter "Ecosystem Regime"], at 34. '40 See P.M. Haas, "Choosing to Comply: Theorizing fiom International Relations and Comparative Politics," in Cornmitment and Compliance, supra note 5 43, at 62-63.
"If a comrnon perspective can be fieely developed among the relevant actors,
and if this in tum leads to convergent policies, then the subsequent legal
regime will be stronger, and will contain more complete and more precise
d e s . It would more likely to promote state compliaace, attract public
support, and adapt effectively over time."34'
Thus, the IPCC's work not only gradually removed the uncertainty and scepticism
fiom the climate change agenda, but also contributed to the perceived legitimacy of
the emerging legal regime in the eyes of actors?" Even before the opinions on the
science of global warming fully converged, the threat of hurnan induced clirnate
change brought 150 nations from around the world to adopt the UNFCCC in 1992.
1.2 Developing Shared Understandings
The main objective of the UNFCCC is to stabilize greenhouse gas emissions)"
which are recognized in the Preamble to the Convention as having negative impact on
the climate system, which is a b4common concem of mankind.''3u The phrashg of the
objective is ambiguous enough to allow for different interpretati~ns.~~' The Preamble
also contains a number of concepts fiequently used in international environmental
treaties, such as the pnnciples of sovereignty,)16 inter-generational equity,347 and
341 Murphy, supra note 330, at 123. 342 When criticizing the "transformational approach" to international environmental lawmaking, Downs and his colleagues discuss the highly inclusive nature of these regintes. They argue that incorpwating al1 relevant actors into the regime (even the reluctant ones, who have no interest in addressing the problem) is not necessarily conducive to the effectivencss of a regime. In this context, they ask: ". . .even if the diffision of the IPCC's new information about the dangers [ofJ cfimate change was an important element in changing the interests of kcy States, would not those States have heard the news anyway had they not k e n mernbers of the regime?" (Downs et al. supra note 34, at 491). Viewcd from a constructivist perspective, however, one might argue that the IPPC's assesçments did more than inform the parties. It helped shaping the identities and interests of al1 actors in a truth-secking behaviour and enabled the international discourse bctwan the participating actors. This is why the inclusive approach is useful. "3 UNFCCC, Art. 2. 3u Ibid. The Preamble.
Bodansky, Commentary, supra note 328, at 499-500. 346 The Preamble, para. 9. 347 Ibid. para 23.
"differential responsibilities and respective capabilities" of co~n t r i e s?~~ Some of
these concepts are restated in Article 3, in a set of principles that reflects the
emergence of a fiamework of shared understandings. Despite its non-binding nature,
this Article was a remarkable achievement of the negotiating parties, who decided on
the "ru1es of the game" before they were able to reach a reasoned consensus regarding
the exact way in which the global waming issue would be dealt with, and the specific
responsibilities of each
The concept of inter-generational equity deals with the faimess between current and
future members of a community and emphasizes the need to achieve a reasonable
balance between satisfjhg the present needs of the community while setting aside
enough to provide for needs of the The parties to the Convention have
agreed to "protect the ciimate system for the benefit of present and future generations
of humankind, on the basis of equity."3s' Recognizing the neeà to provide for future
generations is particularly important in issues such as global waming, because many
of its sever effects will only be felt many decades fiom now.
The protection of the climate should be in accordance with the "cornmon but
dtflerentiated resportsibiiiiies and respective capabililies " of the parties to the
on vent ion.'^^ This reflects a possible development of another shared idea. As
industrialized States developed their economies over the past 150 years, they treated
Ibid. para. 6. 349 See A.E. Boyle, "Some Reflections on the Relations of Treaties and Soft Law" (1999) 48 Int'l Comp. L. Q. 90 1 , at 906-909. 3 50 Sec E.B. Weiss, In Fairness ro Future Generations: International Law, Comrnon Purrirnony anà Inrergenerutional Eguiry (Dobbs Ferry, N.Y.: Transnationat Publishers, 1989). '*' UNFCCC, Art. 3(1). "' This principle was firsi aniculated in Principle 7 of the Rio Declaration ("...In vicw of the different contributions to global environmental degradation, States have common but differentiated responsibilities").
the atmosphere as a free and unlimited resource, and they continue to generate the
greatest quantity of greenhouse gases. Developing countries are now attempting to
industrialize at a time when the atmosphere is no longer considered as f k e and
unlimited. Thus, while al1 states should act to prevent global warming, developed
countries "should take the lead in combating climate change and the adverse effects
t h e r e o ~ " ~ ~ ~
Article 3(2) of the Convention gives full consideration to the "specific needs and
special circumstances of devdoping country Parties, especially those that are
particularly vulnerable." The latter refers to low-lying islands and the pnmary fossil
fiel exporter^.^^^
The third principle is a well-established concept in international environmental law,
the precoutionary p=in~ip le . '~~ Ascertainhg scientific findings is a dificult task,
because our know ledge of ecological and environmental processes is fi-equently
rudimentary at best, and is based on an evolving foundation of scientific research. As
articulated in the Rio Declaration, the precautionary principle states that lack of
conclusive scientific evidence does not justifi inaction, particularly when the
consequences of inaction may be devastating or when the costs of action are
negligible.3s6
''' Ibid. For more about the leadership principle and the implication for the implementation o f the Kyoto Process, see OberthSLr & Ott, Kyoto Pmtocol, supra note 200, at 30 1-3 1 1 . ' ~ 4 See Gnibb et al., Kyoto Pmtocol, supra note 33 1, at 38. 355 See D. Bodansky, "Scientific Unccrtainty and the Precautionary Principle" (1991) 33 Environment 4. 3M The Rio Declaration, Principle 15. See also G . Handl, "Environmental Sccurity and Global Change: The Challenges to International h w ' * (1 990) 1 Y .B. lnt'l Envt'l L. 20-33.
Article 3(4) to the Convention States that the Parties "have a right to7 and should,
promote sustainable developrnent." Sustainable devefopment is development that
addresses environmental concems without comprornising the ability to rneet the
economic needs of present and future generations. Although this is a widely accepted
definition, there is no agreement as to what it may mean in practical or even
theoretical The fuial part of the Principles Article deals with a related issue:
the relationship between environmental measures and tr~tde.~'~
Preambles to conventions are traditionally conceived as non-binding, political
declarations of intentions, in light of which the interpretation and implementation of
the convention and subsequent instruments will proceed. The legal status of
"principles," however, is less c~ear.)'~ As the US. maintained on this matter, if the
purpose of a principles article is to provide an interpretation context, then it should be
included in the ~rearnble.~" If the principles are themselves commitments, they
should be designated in the Convention as such. While the U.S. position was rejected,
a chapeau was added to the Article, stating that the principles should "guide" the
parties, and that they will be considered inter alia, meaning, other principles than
those mentioned in the article may be taken into acco~nt.'~' Nonetheless, the
importance of the principles Article should not be undervalued. As will be shown
later on, the instruments and noms that were adopted by the Parties had to be
"' See D. Hodas, "The Rio Environmenta! Treaties Colloquium: The Climate Change Convention and Evolving Legal Models of Sustainable Development" (1995) 13 Pace Envtl. L. Rev. 75. On the negotiating history see Bodansky, Legitimacy, supra note 22, at 504-505. ''13 UNFCCC, Art. 3(5). 359 Krasner defines &nciplcs in a regimt as "bcliefs of fact, causation, and rectitude," whereas rights are "standards of behaviour defined in tenns of rights and obligations" and rules are "specific prescriptions or prescription for action." Sec S.D. Krasner, "Structural Causes and Regimes Consequences: Regimes as Intervening Variables" in International Regimes, supra note 79, 1, at 2. The question remains, however, what happens when a principle in included in the operative text of a treaty does it have any legally binding implication. 360 See Bodansky, Comrnentary, supra note 328, at 501-502 36' Ibïd..
compatible with these principles.362 This vague language used by other provisions of
the UNFCCC was even terrned as "constructively ambiguous," allowing for fùrther
negotiation on contentious issues.363
In accordance with the principle of "common but differentiated responsibilities,"
Article 4 creates differentiated obligations for developed and developing countries. A
number of general commitments apply to al1 the parties to the Convention. Article
4(1) requires each party to develop, periodically update, and publish national
inventories of GHGs and removals by sinks? Each party also has to formulate and
implement programs to mitigate and a&pt to climate change, and must comrnunicate
this information to the COP for r e ~ i e w . ~ ~ ' Parties are iùrther required to cooperate in
preparing for adaptation to the impacts of climate change, and to take climate change
considerations into account in their relevant social, economic, and environmental
policies and actions.366
Other commitments refer only to parties included in Annex 1 to the Convention
(indusû-ialized counûies and countries with economies in transition). Annex 1 parties
undertook general commitments to adopt national policies and measures on the
mitigation of climate change, "with the aim of retuming" to their 1990 level of
362 AS Bodansky writes, borrowing fiom Ronald Dworkin, principtes serve a function "different fiom those of either preambles or commitments: unlike preambular paragraphs, principles mibody legal standards, but the standards they contain are more general than commitments and do not spccify yanicuiar actions." Ibid. at 501. See also Boyle. s u p note 349, at 907-908.
D. Bodansky, "The Emerging Climate Change Rcgime" (1995) 20 Ann. Rev. Encrgy & Env't 425, at 429. 3u Art. 4(1 Ha). A sink i s "any process, activity or mechanism which removes a greenhouse gas, an aercsol or a precursor of a greenhouse gas fiom the atmosphere." Ibid. Art. 1 (8). '6s Art 4(l) (b). The costs of such reports for developing countries, howcver, will bc borne by developed countries. See Ibid. Art. 4(3).
Art. 4( 1 )(e),(f)-
emissions by the end of that de~ade. '~~ As Bodansky points out, Article 4(2) uses a
highly ambiguous language to set a quasi-target with quasi-timetables.368
The UNFCCC was widely criticized for achieving too little.369 It contained a
collection of binding but also non-binding or semi-binding provisions, without
significant substantive commitments, with no enforcement rnechani~m,"~ or
implementation details. Some consider the Convention a treaty containing both "hard
law" and "*sofi ~ a w . " ~ ~ ' There are several explanations for the adoption of soft law
instruments by states. First, &tes may use non-binding noms to avoid domestic
legislative barriers; they take instant effect since they are not subject to national
ratifi~ation.~~' This does not apply to the W C C C , which had to enter into force
upon ratification, acceptance, approval or accession by fifty states. The second
advantage of sofi law nonns is that states may accept them more readily because they
retain their sovereignty and have full control over the level of cornmitment that will
be attached to the in~tnunent.~" Thus, when consensus between al1 participants
cannot be reached, soft noms may be adopted as a precursor to a legally binding
instrument, where speci fic binding commitments will appear, while keeping a
maximum number of countries in the picture. Thirdly, soft law may be found more
367 Ibid. Art. 4.2. 368 Bodansky, Commentary, supra note 328, at 5 16. 369 See e.g. C. Flavin, 'The Legacy of Rio" in State of the World 1997: A Worldwatch Institutc Report on Progress Toward a Sustainable Society (Lester Brown et al. eds.) (World Watch Institute, 1996); P. Sands, "The United Nations Convention on Climate Changes* (1992) 1 Rev. Eur. Community & Int'l Envtl. L. 270. For a debate about the nature of soft law and its cffect on states* behaviour, sec D. Shelton, "Introduction: Law, Non-Law and the Problem of 'Soft Law'" in Commitment and Compliance, supra note 5 , 2 1, at 23-25. ''O Article 13 directs the COP to "consider the establishment of multilateral consultative process" fot guestions regarding irnplementation. This issue will be considered wparately below, in subsection 3.5. ' See Boyle, supra note 349, at 902. There is no one acceptable definition of soft law. In this contact,
I take it to mean gencral n o m s or principlcs, as oppostd to rulcs. Sce ibid. 901-902. While the UNFCCC can not be considered a "soft law' instrument, one must examine each of the individual comrnitments and provisions to determine whether they may considercd "soft" or "hard" law. "* See A. Kiss, "The Environment and Natural Resoutccs: Commcntary and Conclusions" in Commitment and Compliance, supra note 5, at 238. 373 Ibid. See also Boyle, supra note 349, at 903.
appropriate to tackle the issue area at hand, where contracthg parties are at difkent
stages of development (and that requires country-specific actions), or where scientific
knowledge and its evolution are major factors?"
These explanations emphasize the flexibility of soft law rules, which "enable the
international cornmunity to progress and address problems new to international co-
~~erat ion."~" An interactional fhmework suggests a more nuanced understanding of
this flexibility . The concept of normative continuity posits a lawmaking process
where the distinction between formally 'hard law' and 'soft law' becomes less
crucial. Al1 norrns can shape the identities and interests of actors, even noms that are
not "legal" in the formal sense. Since the bindingness of law is self-bindingness and
the influence of noms is not dependent only upon fomal criteria or enforcement, soft
lawmaking is a part of the process of muhial constitution of actors and
Thus, the interactional perspective suggests that principles such as common concem
to human kind, precaution, intergenerational equity, common but differentiated
responsibilities and sustainable development could be more than precursors to future
commitments; they may help shape the interaction between states in the following
negotiations and delineate the boundaries of which types of arguments can be
legitimately made. While it is t w early in the process to validate this proposition, the
evolution of the climate change regime thus far seems to confinn it.
374 Ibid. Interestingly, Kiss suggests that sofl law instruments c m also "allow international institutions and non-state actors to participate in the processes of creating and msuring cornpliancc with environmental rules" (ibid). This is based on the assumption (and the currcnt practice), that non-state actors cannot have the sameformal footing in international institutions, and soft lawmaking is a way to utilize their skills and compctence. 375 Kiss, ibid. at 239. 376 See supra note 309 and accompanying text.
There is some evidence that suggests that the principles of the UNFCCC did shape the
legal framework and the implementation mechanisms that were later adopted by the
Parties to the Kyoto Protocol. Moreover, attempts to undermine these pnnciples are
very few. One example is the pnnciple of common but differentiated responsibilities,
which has taken root to the extent that the entire design of the UNFCCC and its
subsequent legal instrument was built upon The only objection to the 'developed
countries first' approach was voiced by the U.S. during the negotiations at the
following COPs, demanding that developing couniries take on obligations to limit
their GHG emissions. But the U.S. could not advance this argument successfully,
since the rnajority of the countries adhere to the said principle. As Oberthür and Ott
note, "this demand was considered ethically questionable and was successfully
rejected by developing c~untries."~'~ Later in the process, the U.S. President
specifically complained that China, the second largest emitter of GHGs, "was entirely
exempted fiom the requirements of the Kyoto P r o t o ~ o l . ' ~ ~ ~ But the basic notion of
equity, which is the central theme of the above-mentioned pnnciples, has become a
common understanding arnong most of the participating countries, so the U.S.
position could not find support. Since industrialized countries account for most of the
GHGs that have already accumulated in the atrnosphere, it is wideiy accepted that
they must take the lead in addressing the problem.)EO In the future, this approach
could be re-evaluated by the Parties if there is a change of circumstances that question
the legitimacy of the present reasoned c~nsensus.'~'
377 See inf+a notes 387-390 and accompanying text. 378 Oberthür & Ott, Kyoto Protocol, supra notc 200, at 225. 379 See E. Eckholm, "China Said to Sharply Reduce Carbon Dioxide Emissions" New York Times, June 15 2001. 380 See Oberthiir & Ott, Kyoto Promoi, supra notc 200.225. 381 Some predict a change of emission patterns in the next few decades which may justifi a diffwent burden sharing agreement. But while only a few years ago many studies projectcd that China would emerge as the world's largest emitter of GHGs by 2020, recent studies show that the latest
1.3 The Kyofo Profocol: Development and Key Eietnenîs
The UNFCCC created a process-based institution. The institutions and procedures it
established are designed to facilitate constant development of the regime. The
supreme decision-making body is the COP, where the Parties interact in a continuous
dialogue. The COP is responsible for reviewing the irnplementation of the
Convention; promoting the development of methodologies for GHG inventories; for
assessing the effectiveness of the Convention; and fulfilling any other fbnctions
required for achieving the objectives of the onv vent ion.'" The COP may also
establish subsidiary bodies, make recommendations, take decisions and adopt
protocols or amendments. It is therefore not merely a diplornatic conference of
Parties' delegates in the usual sense, but an entity with legislative powers, which
adopts decisions regarding the operation of the regime.383
The flrst COP was held in Berlin in 1995. One important achievement of this COP
was the establishment of the Berlin Mandate, whereby Parties decided to begin a
process of strengthening the commitments of Article 4(2) to the UNFCCC by setting
quantified emission limitations and reduction objectives (QELROs) within specific
t i rnefrarne~.~~~ Negotiations on the form and content of a legally binding instrument
continued at COP-2, which was held in 1996, and produced the Geneva Ministerial
developments have put off that day by ycars or even decades. See Oberthür & Ott, ibid. and Eckhom, m ru note 379. 4' 38 UNFCCC. Art. 7. 383 Churchill & Ul fstein, Supra note 87, show how multilateral environmental agreements increasingl y create autonomous institutional arrangements in the form of COPs, with far reaching legislative
'";N"bCCC Confernicc of the Parties, 1' Sgs , UN Doc. FCCUCPII 995/7/Add. 1. Decision VCP. 1. (June 6, 1995).
Declaration. The Parties stated that they intended to adopt a legally binding
instrument by COP-3, to be held the following year.385
A protocol to the UNFCCC was indeed agreed upon in December 1997, when the
Parties convened in Kyoto, Japan. The Kyoto Protocol builds on the Convention's
principles and added new detailed commitments of the Parties by setting binding
targets and timetab~es."~ Thirty-eight industrialized countries plus the European
Union, al1 listed in Annex B to the Protocol, agreed to an overall reduction of their
ernissions of six G H G S ~ ~ ' by 5.2% between 2008 and 2012, the badine year k ing
1990.~~' The Rotocol specifies different quantified emission limitations and reduction
commimients (QELRCs) for each of the Annex B c o ~ n t r i e s ~ * ~ and contains no
emission limitations for developing countries.
The Protocol allows flexibility in implementation at both the international and the
national levels. At the national level, each country can design its own policies and
rneasures (PAMs) in order meet its comrnit~nents.'~~ At the international level,
industrialized counaries can achieve cost-effective GHG emission reductions by
'13' Note that the Parties did not formally adopt the Geneva DecIaration; only "took note" of it. See Giorgetti. From Rio to Kyoto, supra note 49, at 210. 386 UNFCCC. Art. 3.1.
Listed in Annex A to the Protocol, and including CO2 (carbon dioxide, the main anthropogenic greenhouse gas), Methane (CHI), Nitrous oxide WtO), Hydro fluorocarbons (HFCs), Per fluorocarbons (PFCs) and Sulphur hexafluoride (SF6). 388 The Kyoto Protocol, ibid. Art. 3.1. 389 The quantified emission limitations range fiom +IO% (New Zealand) to -8% (the European Union). The United States has to reduce its emissions by 7%. Canada and Japan by 6%. See ibid Annex B. note, that parties are allowed to achieve their QELRCs individually or jointly. Article 4 cstablishes the "joint fulfillment of commitments" rule, also referred to as the "bubble", where any grwp of Anncx B Parties can fulfill their commitments under the Protocol in coopcration. The combined assigned amounts may be distributcd through intemal agreement and notified to the Protocol authorities. The "bubble" provision was initially designed to meet the needs of the EU, but this instrument is now open to al1 parties. It provides an attractive alternative for the yet undefined ernissions trading system. See Oberthiir, & Ott, Kyoto Protocol, supra note 200, at 14 1 - 150.
While Art. 2 lists possible PAMs, it does not requirc industrialized countries to pursue any of the specific measures.
means of three instruments, fiequently referred to as "flexible mechanisms," which, in
essence, permit Parties to alter their assigned amounts by transboundary trading of
emission allowances and credits arising fiom emission reductions.
The first of the market-based instruments, established in Article 6 of the Protocol, is
the joint implementation (JI) mechanism, which allows Annex B countries to eam
emission reduction units by investing in emission reduction projects in other Annex B
countries to help meet their commitment~.'~' This enables industrialized countries to
improve the cost-effectiveness of emission reductions, because the abatement costs in
ônother country may be lower than the domestic ones. Article 6 does not contain mles
or guidelines for the certification and tracking of Ji projects, but States that such mles
may be further elaborated by the Conference of the Parties serving as the Meeting of
the Parties to the Protocol (coP/MoP).'~~
The Clean Development Mechanism (CDM) is another form of JI, which involves
non-Annex B Parties (i.e. developing countries) as we11.'~' Under the Article 12 of the
Protocol, industrialized countries may invest in climate change mitigation projects in
developing countries and use a portion of the achieved reductions toward meeting
their QERLCs. A share of the proceeds for these projects will be used to finance
adaptation to climate change in particularly vulnerable developing countries, and
cover the administrative expenses of the CDM.'~* The CDM will be supervised and
operated by an executive board but the COPMOP is the CDM's highest aut l~ori t~ ."~~
"' The Kyoto Protocol, Art. 6,3.10 and 3.1 1. 392 Ibid. Art. 6.2- The COPhlOP is the supreme goveming body of the Prdocol and will convene for the first time once the Protocol enters into force. Sce ibid. Art. 13. 393 Ibid. Art. 12. 394 Ibid. Art. 12(8). 395 Ibid. Art. 12(4).
The COP/MOP is to develop the rules and guidelines for the operation of the
mec h a n i ~ r n . ~ ~ ~
Article 17 establishes the third implementation instrument provided by the Protocol-
the international emissions trading mechanism Whereas in the JI and CDM
mechanisms credits are generated from emission reductions, ET allows Annex B
countries to trade unused emission units that were assigned to them initially. If a
country Gan cut its emissions cheaply, it would have an incentive to reduce them far
below its assigned amount and seIl the excess pennits to other countries where the
reductions are more costly. Such trading, however, should be "supplemental to
dornestic actions" to meet the QERLCS.)~* This provision is meant to prevent
countries fiom "buying" themselves out of their obligations. The COP is authorized to
decide upon the principles, niles and guidelines for this rne~hanisrn.'~~
The Kyoto Protocol is silent on the issue of how to ensure compliance of states with
their commitments. Article 18 of the Protocol that States that "a Meeting of the Parties
to the Protocol is to approve procedures and mechanisms to determine and address
cases of non-compliance, including through the development of an indicative list of
consequences, taking into account the type, cause, degree and fiequency of non-
compliance". The last part of the article also states "any procedures and mechanisms
under this article entailing binding consequences shall be adopted by means of an
amendment to this Protocol."
'% Ibid. Art. 1 î(7). ''' Ibid. Art. 17,3.10 and 3.1 1. 398 Ibid. Ari. 17. 399 The COP, and not the COP/MOP. Thetefore, the rules for opcrating the IET can be cstablished before the entry into force of the Protocol. This is a technical differcnce, however, since the COP has been developing the rules and guidelines for the mechanisrns, which will thcn be approved by the COPIMOP when needed.
1 O3
During COP-3 in Kyoto, the Parties could not reach an agreement on the guidelines
for the operation of each of the three mechanisrns, or the compliance mechanisrn, and
that agreement was left to be elaborated in future talks.- In subsequent meetings of
the COP, the Parties continued the negotiations over many controversial issues that
the Kyoto Protocol had failed to resolve, including rules relating to the mechanisms, a
regime for monitoring Parties' compliance with their comrnitments, and accounting
methods for national emissions and emission reductions. A particularly contentious
issue has been the crediting method for removing carbon fiom the atmosphere
through the use of sinks.
COP-4 met in November 1998 to set out a schedule for reaching an agreement on the
operation of the Kyoto Protocol. This meeting produced the document known as the
Buenos Aires Plan of Action, where the Parties agreed to a COP-6 deadline for
resolving a package of issues. But the COP-6 talks held in The Hague in November
2000 collapsed. The Parties failed to reach consensus on a number of key issues, and
made no significant progress in advancing the text of the various draft decisions. It
was agreed to suspend COP-6 and reconvene it in Bonn, Germany, with the aim of
completing the work on the negotiating texta' Two important developments had
occurred before the second part of the COP-6 talks took place. First was the
publishing of the Third Assessrnent Report (TAR) of the PCC, which indicates that
the climate change problem is even worse than previously t h o ~ ~ h t . ~ ' However,
growing scientific certainty of the severe impacts of human induced clhate change
Sce FCCC Con ference o f the Parties 3d Sess. UN Doc. FCCUCP/1997/L.7 (1 0 Dec. 1 997). 40' See M. Gmbb & F. Yamin, "Climatic Collapse at The Hague: What happeneci, why, and where do we go fiom here?" (2001) 77 Int'l Aff. 261; and also Summary of the Sixth Conference of the Parties to the Framework Convention on Climate Change: 13-25 November 2000. 12 (163) Earth Negotiations Bulletin, lISD (27.1 1.2000). (Available online at <htt~:l/www.iisd.ca/vol 12lenb12 163e.hmb; last visited îO/O9/2OO 1).
See Watson, supra note 336.
had no efTect on the interna1 politics of the world's greatest polluter: the second major
development occurred following the U.S. presidenbal elections in November 2000,
when the new administration declared its opposition to the Kyoto Protocol, stating
that it has "no interest in implementing that t reat~. '~ ' In response, the European
Union opened a round of shuttle diplomacya and environmental NGOs launched a
political campaign against the Bush administrati~n,~~ but the U.S. position remained
unchanged. The only viable alternative was to work towards bringing the Protocol
into force without US. ratification. This would require ratification by at least 55
Annex 1 countries, accounting for at least 55% of the GHG emissions for the year
1990.- Since the U.S. was responsible for approximately 36% of the global C02
emissions Chat year,407 reaching the required minimum seemed almost irnposssible?
Against ail odds, and these ominous predictions, COP-6 part II, which took place in
July 2001, was a considerable success. The high level segment of the conference
produced the "Bonn Agreement," a political cornmitment that aims to facilitate the
ratification of the Kyoto Protocol, by making decisions on key outstanding issues."
Decisions were adopted on a number of the main issues and progress was made on the
text of many decisions. However, work on the detailed rules and guidelines for the
operation of the mechanisms and the cornpliance regime of the Protocol was not
'O3 See "US Blow to Kyoto Hopes", BBC News 28/03/2001. (Available online at ~http://news.bbc. co.uWhilen~lishlscittech1newsid l247OOO/lî475 1 8.stm>; last visited 20/09/2001). '04 See D. Jehl, "U.S. Rebuffs European Plea Not to Abandon Climatc Pact", New York Times 02/04/200 1 . 'O5 Greenpeace, for example, gave the top 100 U.S. companies one week to declare their opposition to President Bush's rejection of the Kyoto Protocol, or "facc the consequences fiom conccrned consumers, institutions and organizations around the world. S a <http://www.greenptaceusa. org/climatcb (last visited 02/05/2001).
See Kyoto Protocol, Art. 25. 'O7 Oberthür & Ott, Kyoro Prvfocol, supra note 200, at 15. 4os See Sumrnary of the Resumed Sixth Conference of the Parties t o the Framework Convention on Climate Change: 16-27 July 200 1. 12 (167) Earth Negotiatims Bulletin, llSD (30.07.2001), ("ENB"), at 13. (Available online at c htt~://www.iisd.ca/linkanes/volI Uenbl2 176e.htmb; last visited 2O/O9/2OO 1 ). 4a9 The Agreement, titled "Care Elernents for the Implementation of the Buenos Aires Plan of Action," was later incorporated as an Annex in Implementation of the Buenos Aires Plan of Action, Dccision 5lCP.6, UN Doc. FCCUCP/îOOl/L.7 (24 July 2001). [hercinafier "Bonn Agreement"].
completed, partly because of differences in interpretation of the Bonn Agreement
provisions.4'0 The Parties will attempt to arrive at an agreement on the tex& at COP-7,
to be held in Morocco, in October 2001.
An attempt to assess whether the constructivist approach can fmd confirmation in the
evolution of the climate change regime requires a comprehensive and complex
empirical study, which is beyond the scope of the present inquiry. The story 1 have
told so far, however, has a constructivist ring to it, and clear fmtprints of the
interactional account can be observed in the ongoing development of this regime. The
following discussion will explore the role non-state actors have played in this
development .
2. Non-State Actors in the Lawmaking Process
2.1 Non-Governmental Oeanizations
The United Nations Conference on Environment and Development (UNCED)~" at
Rio de Janeiro in 1992 was a defining moment for non-state actors' involvement in
the international stem.^'^ NOOS were actively involved in the preparatory process,
serving as experts in working groups,"' thereby contributing to the d r a h g of texts
that were forwarded to the Rio Conference. NGO representatives were also rnembers
of the PCC, which provided the authoritative scientific assessment of clirnate change
and its impacts, thereby creating the necessary consensus to promote action by the
S a ENB, supra note 408 and sce also supra note 447. About the cornpliance mechanism, sec infra section 3.5. "' Rio Dedaration on Environment and Development, June 14 1992, 31 I.L.M. 874. ('We Rio Declaration").
French, supra note 53, at 254; For a study of NGOs involvement in the climate change regime, see Giurgctti, The Role of NGOç, supra note 49, and From Rio to Kyoto, supra note 49. '13 French, supra note 53, at 254.
international c o r n r n ~ n i t y . ~ ~ ~ At the Rio Conference itself, îome NGO representatives
served as members of officia1 delegations, and many others lobbied delegates,
attended the forma1 and informa1 meetings and presented documents in the sessions,
where they won the right to participate as ob~enters.~" As was the case during the
Stockholm Conference in 1972, NGOs organized a parallel conference to the Earth
Summit in Rio, named the "Global Forum," which was the centre of NGO activity
outside the official gathering.416 The Rio Conference resulted in the adoption of two
international conventions: the UNFCCC and the Convention on Biological Diversity.
The influence of NGOs on the climate change negotiations was made possible
because of the relatively open approach taken by the international community towards
their participation. This approach is also reflected in the UNFCCC text, which
addresses the role of NGOs in Articles 4.1 (i), 7.2(1) and 7.6. These provisions
establish the niles for admission of NGOs to the proceedings, recognize the
importance of NGOs for public awareness of climate change, and state that the COP
shall utilize their services and cwperation in the issue of supervision of the
implementation of the onv vent ion.^" This allowed NGOs to play an important role in
the meeting of the COP leading to signing of the Kyoto Protocol.
- -- -
See Oberthiir & Ott, Kyoio Protocol, supra note 200, at 3-4, and also Tolbert, supra note 53, at 98- 101.
1,500 NGOs were accredited to attend the meetings. Sec Giorgetti, From Rio to Kyoto, supra note 49, at 205.
Lindborg calls such parallel conferences "theatrical cxercises", which are nonetheless important because they serve to increase public awareness and NGOs networking. Lindborg, supra note 58, at 1 1 , 16-17. '" Another important document that was agreed upon in the Rio Conference, Agenda 21, which also recognized the importance of non--te actors to environmental policy. Sec also supra note 206.
One of the powerful instruments in the meetings of the COP was the publication of
daily newsletters such as ECO~'' and the Earth Negotiation ~ u l l e t i n ? ~ They serveci
as an important source of information on the delikrations, revealing the cumnt state
of the negotiating process and helped "prevent the obscure language of international
diplomacy from shielding govemments from accountability for their actions.'*20
Some of the most influential environrnental groups were the Climate Action Network
(CAN) (a coalition of environmental NGOs), World Wildlife Fund (WWF) (an
independent conservation organization), and other large environmental organizations
such as Greenpeace, the Sierra Club, Ozone Action, and the World Watch ~nstitute."'
The extent of NGO involvement in the formation of the Kyoto process has been
explored in detail e ~ s e w h e r e . ~ ~ ~ Their active participation in the building of
international environmental regimes did start with the UNFCCC, as we saw in the
earlier discussion of the Earth Summit. However, NGO activity did reach new levels
in subsequent W C C negotiations. They were actively involved in the meeting of
the COPs, thereby infiuencing the decisions taken by the Parties and the regime's
development. Nonetheless, their contribution to the discursive lamaking process
was not secured by sufficient institutional arrangements. As in other international
environmental institutions, a paradox is evident: the formal status of non-state actors
does not reflect their increasing influence.
'18 Published by the Climate Action Network (Available at ~hn~://www.climatenetwork.or&cd>; last visited 20/09/200 1). '19 Published by the International Institutc on Sustainable Development (IISD). (Available at the llSD website: <htt~://www. i isd.ca/;> last visited 2O/O9/2OO 1). Whereas ECO is more of an opcnl y critical review of negotiations, this publication has virtually becorne a de-facto official source of information, and links to it have even been incorporated into the ofticial UNFCCC's COP websites. Sec for examplc the resumed COP-6 website, at chttp://unfccc.int/coD6 Z/index.htmb (last Msited 20/09/2001). "O This would be true especially with regard to ECO. See French, supra note 53, at 255. '" For a study of the involvement of NGOs in the Climate Change negotiations see Giorgetti, the Role of NGOs, supra note 49, and From Rio to Kyoto, supra note 49. See also Oberthiir & Ott, Kyoto Protocol, supra note 200.29-32- '" Giorgetti, ibid.
2.2 me Involvement of For-Profit Ent i~es
The more innovative feature of non-state actors' involvement in the climate change
context is the inclusion of new players in the international environmental arena:
business entities. The business sector had an equal influence on the negotiation
process leading to Kyoto, equal to that of environmental NGOs. At times, business-
NGOs outnumbered the environmental NGOs at the con fer en ce^.^^' Many of them
used the same methods of action in their atternpts first to thwart the chances of
reaching an agreement and then to influence the form and content of the
c~mmitmentr.~" But ever since the climate change debate gained momentum, one
can observe a diversity of views held by different segments of the industry. The
business community was divided into 'grey' industry groups, which were concerned
with the economic impacts of the forming agreement,425 and the 'light green' groups,
representing renewable energies, cogeneration, natural gas and other energy efficient
Insurance companies comprise another example of a 'green' sector, aligned with
progressive industry forces on the issue of clirnate change. Their involvement stems
from the fact that they are expected to suffer major financial losses in a changing
-
Giorgetti, From Rio to Kyoto, ibid. at 220. 424 The corporate comrnunity in the U.S was particularly active in Congressional lobbying and starting advertising carnpaigns against Kyoto. Sce Grubb at al., Kyoto Protucol, supra note 33 1, at 26 1. '*' One influential conservathe group of business entities, representing the coal and oil companies, was the Global Clirnate Coalition (GCC), which initiated and financed economic studies about the impacts and cos& of GHG emission reductions, and hclped the OPEC countries delegations drafling interventions. See Oberthür & Ott, Kyoto Pmtocol, supra note 200, at. 3 1. Other major m m k r ç of the 'Carbon Club' include the World Business Council for Sustainable I)evelopmcnt (WBCSD) and the American Petroleum Institute (API). Giorgetti, From Rio to Kyoto, supra ncûe 49, at 22 1, and OberhTir & Ott, ibid. at 31. 426 This sector is represented in the U.S. primarily by United States Business Council for Sustainable Energy (USBCSE), and in Europe by the European business Council for a Sustainable Energy Future (es). Sec Giorgetti, ibid. at 224.
climate."' Thus, the business sector has not presented a united front to oppose GHG
emissions reduction goals by the developed countries.
There is aIso increased cooperation between environmental-NGOs and different
industry sectors in the climate change debate. While some environmental-NGOs
consider such cooperation useless, others initiate continuing dialogues with business
corporations and associations."* The 'green' industry sector has close ties with
environmental-NGOs, as their views on many of the issues are quite similar.
Environmental-NGOs also make significant efforts to draw the 'grey' industrial sector
into the discourse, by disseminating information on economic issues linked to climate
change into business corporations in various roundtables and conferences, attempting
to find common grounds for collaboration?
An attempt to institutionalize the business cornmunity's input into the process by
establishing a Business Consultative Mechanism was made by the New Zealand
delegation during COP- 1. A report was prepared by the UNFCCC's Subsidiary Body
for Scientific and Technological Advice (SBSTA) working group, but the parties have
not yet adopted a decision on the matter:30 nius, activities of the business entities
also remain mainly informal.
'" Although they tend to be l e s active in the negotiating proctss. See Giorgctti, ibià. at 223. '" Giorgetti documents these "inter-gtoup relations" betwnn Sierra Club and car manufacturers, Greenpeace and the insurance industry, WWF and the building, transportation and heavy industry sectors, and between Ozone Action and the toun'st industry. (ibid. at 235-238). 429 Wd. "O See Annex to Mechanisms for Non-Goverrimental Organizations Consultations, Wotkshop on consultative mechanisms for non-govemmental aganization inputs to the United Nations Framework Convention on Climate Change: Report on the Business and lndustry Working Group. U.N. Doc. FCCUSBSTAA 9%111, (20/06/1996).
Trying to fit the involvement of business entities into a constructivist fiamework
raises some difficulties. The interactional approach to the process of lawmaking
assumes that al1 participating actors are in "arguing mode," where they are prepared
to be persuaded and try to "convince each other to change their causal or principled
beliefs in order to reach a reasoned consensus about validity c~airns."~' While this
could be true for entities such as States and environmental gmups, how can we say the
same for purely rational actors like business entities, whose only desire tends to be to
realize their individual preferences? One's first instinct is that attributhg "tmth-
seeking" behaviour to profit-seeking actors is an absurd idea.
Still, there could be a way to accommodate rational actors in a constructivist
fkmework of interactional lawmaking. First, rational actors must be intefested in
correcting false information and cognitions about the costs and the benefits of their
behaviour. They should be willing to receive new infonnation and be open to
persuasion. Thomas Risse gives an extreme example:
"It is entirely possibIe that a slave convinces his or her master that the latter is
economically and socially better off if the former is fieed fiom and employed
by the master as a paid ~orker.'*~*
Furthetmore, as Risse argues, the two rationalities of actors' behaviour (the logic of
consequentialism and the logic of appropriateness) are not mutually exclusive, and in
many cases actors act strategically and discursively at the same tirne?' So the
empirical question should not be whether actors behave strategically or
argumentatively, but which mode captures more of the action in a given situation.
"' Risse, supra note 212, at 9. Ibid. at 12.
'j3 See supra notes 282-283 and accompanying tcxt.
Several observable facts regarding business entity involvement in the Kyoto process
indicate that rational actors involved in lawmaking sometimes use argumentative
modes of behaviour. The increasing scientific findings have made the business
entities realize that climate change is an issue of great concem that should be
addres~ed."~ In recent years, even some of the hard-line segments of the cop ra t e
community have changed their perspective on global warming. This was partly a
result of interaction with environmental groups and a response the to political reality.
Eileen CIaussen gives some instructive examples for this interesting shift in the
American industry sector."* Ford Motor Company and Daimler Chrysler a ~ o u n c e d
in 1999 that they were resigning fiom the GCC, a business NGO that has consistently
questioned the science of climate change. A large group of companies became
afiliated with the Pew Center on Global Climate Change, and developed a joint
statement that accepts the science of c lha t e change.436 They have decided to set their
own emission reductions goals. Dupont, for example, established a goal of reducing
its GHG emissions to 65% below 1990 levels by 2010. As Claussen remarks, this is
indeed a stunning target, compared to the 7% reduction target that the Kyoto Protocol
sets for the U.S? These multinational corporations also acknowledge the importance
of the Kyoto Protocol as a first step of the international community to tackie climate
434 See Grubb et al. Kyoto Protocol, supra note 33 1, at 257-258. Sec also Giorgctti ibid. at 225 (noting the influence that the lPCC Second Assessrnent Report in 1995 had on the induçtry's vocal sccpticisrn r e ~ d i n g the scientific uncertainty of climate change). " E. Claussen, "Responding to Global Warming Problern: Clirnatc Change: Presmt and Future*' (2001) 27 Ecology L.Q. 1373, at 1375- 1377.
These are multinational corporations and household names such as American Electric Powcr, Boeing, British Petroleurn, Arnoco, Lockhccd Martin, Shell International, Sunoco, Toyota, United Technologies, and Whirlpool. Ibid. at 1376. '37 Ibid.
change, and they believe that climate change mitigation and economic growth are not
necessarily contradictory t em~."~
One might argue, of course, that the measures taken by GHG-emitting firms are also
economically driven: they believe that environmental awareness "sells," because it
contributes to the public image of the fim. Nonetheless, it is important that an
argumentative discourse is taking place, even by egoistic actorsTg Moreover, the
"civilizing" effect that a public discourse has on actors makes it alrnost impossible to
raise selfish arguments. Thus, "'even actors such as profit-seeking multinational
corporations must justiQ their actions on the basis of some comrnon goods or shared
v a ~ u e s . ' ~ Furthemore, developments in industry outlook on the issue of climate
change, the variety of opinions within the business sector on the matter, and the
pnvate sector's increasing interaction with environmental-NGOs throughout the
process, validate the argument made earlier in this papa: defining only non-business
entities as eligible NGOs is erroneous since economic concems may be considered as
legitimate interests in international relations, and also because the association of non-
profit NGOs with environmental protection, and the business sector with anti-
environmental policies, is far too ~ i m ~ l i s t i c . ~ ' Such a full correlation camot be found
in the complex set of players' interests and motivations in the international
environmental arena.
43 8 See Statement of the Business Environmental Leadership Council in the Pcw centcr website at ~htt~: / /www.~ewcl imate.or~lc/ index~cfm. (last visited 20/09/2001). An even more striking example comes from the European continent. A European NGO, Germany's Federation of Chernical Industry (which includes firms li ke BASF A.G. and Bayer A.G.), has calied upon the US to support the Kyoto Protocol and rejoin the process. See E.D. Andrews, "Fnistrated Europeans Set to Battle U.S. on Clirnate", The New York Times, 16 Jul y ZOO 1 . 439 See supra notes 432-433 and accompanying tcxt. UQ Risse, supra note 212, at 22.
See supra notes 426-428 and accompanying text.
The evolving climate change regime, then, might seem like an almost ideal "public
sphere," where states are sharing the international stage with both environmental
NGOs and a growing number of business entities. These members of the fonning
global civil society are engaged in "argumentative behaviour": non-state actors
interact with one another and with states, as each contribute to the construction of
shared understandings, and representing a variety of interests. Without the significant
contribution of non-state actors to the formation of the Kyoto Protocol, this ambitious
international agreement would not have looked the sarne. However, non-state actors'
equal access to the public discourse is not yet secured by sufficient institutional
arrangements. This is even more evident in the emerging structures for the
implementation and enforcement of the Kyoto Protocol, to which 1 now turn.
3. Non-State Actors and the Application of the Kyoto Protocol
A successfiil application of the Kyoto Protocol is heavily dependent upon the
participation of non-state entities. The term "application" in this context connotes two
related, but distinct, functions of non-state actors. First is the potential involvement of
business enterprises (and possibly NGOs as well) in the operation of the Protocol's
market-based mechanisms. Another issue is the participation of NGOs as rnonitors of
state obligations under the agreement and initiators of the non-compliance procedure.
A derivative question is whether non-state entities will have standing in any of the
fùture possible dispute resolution tribunals under the Kyoto rotoc col,^^ where issues
involving compliance, trade and investment will be resolved.
u 2 It shouid be noted that the common use of the term implementation =fers to domestic actions taken by govemrnents to rneet their commitments under international agreements. The rolc of non-state actors in this "intemalkation" process of international n o m s is unquestionable (howevcr undcr- explored, as Harold Koh points out. See supra notes 172-1 77 and accompanying text). My concern is
3.1 Operationafizing the Kyoto Mechankms
Kyoto's market-based m e c h a n i ~ r n s ~ ~ are aimed at achieving the environmental goals
of the climate change regime through the use of economic dynamics . As Jonathan
Wiener explains, "[tlhe costs of reducing GHG emissions varies significantly fiom
place to place. Yet the global environmental benefits are independent of where
emissions are r e d u ~ e d . ~ ' nius, the rnechanisms are intended to provide over-
complying countries financial incentives to do so. Industrialized countries may
achieve their QELRCs by transferring or acquiring emission reduction units (ERUs)
under Article 6; by acquiring certified ernission reductions (CERs) under Article 12;
or by transferring or acquiring parts of assigned arnounts (PAAs) under Article 17U6
If designed properly, these mechanisms could contribute to the success of the Kyoto
Protocol by affecting Parties' cornpliance, both as an incentive to comply and as tools
to respond to cases of n o n - c ~ m ~ l i a n c e . ~ ~
the active and direct involvement of these groups in the international institutional structure. However, these issues are closely linked. As we will see below, the involvement of non-state actors in the operation of the mechanisms depends upon the govemmental implementation of obligations.
This part will consider the JI, CDM and IET mechanisms. Article 4 establishes another flexible instrument, Joint Fulfillment, which would only involve an inter-state agreement, so it has no bearing on the present discussion. About the involvement of private entities in the Kyoto mechanisms, see generall y L. B. Campbell, "Emission Trading, Joint lmplernentation and the Clean Development Mechanisms: The RoIe of the Private Sector and other State Actors in irnplementation" in W.B. Chambers ed. Global Climate Governance: Inter-linkuges between the Kyoto Protocol and other Mulrilateral Regimes (Shibuyaku: UN University lnstitute of Advanced Studics, 1998), at 7. *4* See S. Barrett, "The Politicai Economy of the Kyoto Protocol" (1998) 14 Oxford Rev. of Eco. Pol'y 21. us J. Wiener, "Global Trade in GHG Control: Market Merits and Critics' Cmcms'* (1997) Reçources 129. (Available at ~httv://www.~.orp;/resources articles/files/hncontrol.htm>; last visited 20/09/200 1 ).. «6 A Party transfemng ERUs or PAAs will be narned hereinafier a "seller" and a Party acquiring ERUs, PAAs or CERs will be named a "buyer." 447 See 1. Werksman, "Cornpliance and the Kyoto Protocol: Building a Backbone into a "Flexible** Regime" [1998] Yearbook of Int'l Envl. L. 48, at 75-77, 81, and also Brunnée,. J. "A Fine Balance: Facilitation and Enforcement in the Design of a Cornpliance Regime for the Kyoto Protocol" (2000) 13 Tul. Envtl L.J. 223, at 236. The most recent drafi dccisions regarding the operation of the mechanisms and procedures on cornpliance seem t a view the participation in these mtchanisrns as a pnvilege rather than as a right (as Werksman suggests, ibid). In the Bonn Agreement it was decidcd that the cligibility to participate in the mechanisms by a Party included in Annex 1 shall bc dependent on its compliance with methodological and reporting requirements under Articles 5 and 7. Furthcrmote, only Partics that have accepted the agreement on compliance supplementing the Kyoto Protocol shall be entitled to transfer a acquire credits generated by the use of the mechanisms. This issue has not been resolved
In designing the procedures to operate the mechanisms, problems of overuse or
misuse should be avoided to the extent possible. For instance, precaution is called for
to prevent a situation where Parties would "but their way out" of their commitments,
because they may find that achieving a significant portion of their QELRCs through
purchasing allowances and offsets fiom other Parties would be cheaper than reducing
their emission levels d o m e ~ t i c a l l ~ . ~ Another concern is that in the case of Ji or IET,
some countries would oversell emission rightsU9 This could lead to non-cornpliance
of the buyer, the seller, or bath?'
There are several ways to cope with, or at least reduce, these uncertainties. First and
foremost, it can be established that any trade of emission rights is to be supplemental
yet. See the Annexes to the Drafi Decisions incorporated in Preparation for the First Session of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (Decision 8ICP.4). Work Programme on Mechanisms (Decisions 7KP.4 AND 14/CP.4), UN Doc. FCCUCP/2001/CRP.I 1 (26.07.01) [hereinafier "the Mechanisms hW]. The rccmt drafk decision text of the procedures on cornpliance lists the suspension of the eligibility to participate in the mechanisms as one of the consequences to bc applied by the Enforcement Branch of the Protocol's Cornpliance Cornmittee in cases on non-complianct. See Annex to Preparation for the First Session of the Conference of the Parties Serving as the Meeting of the Parties to the Kyoto Protocol (Decision 8/CP.4), Procedures and Mechanisms on Compliance under the Kyoto Protocol, UN Doc. FCCC/CP/ZOO 1 /CRP. 1 URev. 1. (26.07.0 1 ), especially Section XV. Paragraph 5(c).
See D.M. Dnesen, "Free Lunch or Cheap fix?: The Ernission Trading ldea and the Climate Change Convention" (1998) 26 B.C. Envt'l Aff. L. Rev. 1. This would be in addition to the "hot air" problem created by the Protocol itself, whereby Russia and the Uhaine have been granted the right to emit at their 1990 Icvels in the cornmitment period of 2008-2012. Since they an unlikely to rctum to that emission level by that date (due to the economic decline), they will bc able to seIl the surplus emission reductions under the IET mechanism. See H. Ott, "Global Climate" [1999] 9 Y.B. Int'l Envt'l L. 183. at 185, and also C. Batruch, "'Hot Air' as Precedent for Developing Countrics? Equity Considerations" (1998-1999) 17 UCLA J. Envt'l L. & Pol'y 4552-55. 449 Overselling occurs when a country that is a Party to the Mocol selis allowances that it wwld ultimately need to cover its emissions and thus will be unable to mcet its cornmitment under the Protocol. This is l e s a concem in the CDM, whae credits have kcn ccrtificd. Sec R. Nordhaus et al., "International Emissions Trading Rulcs as a Cornpliancc Tool: What is Neccssary, Effective, and Workable?" (2000) 30 Envt'l L. Rcp. 10837. ' 5 0 Depending on the liability rule to be applied. For a detailed discussion of the various Iiability rules see Nordhaus et al., ibid. and R. Baron, "An Assessrnent of Liability Rules for International Emission Trading" OECD and IEA Information Papcr (1999) availablc at <htt~://www.oecd.orn/env/ docs/cc/cornenver>ocieas1t(2000)6.~f, (last visited 2O/O9/2ûû 1). Sec also Wer ksman, supra note 447, at 84-89.
to domestic actions for meeting the QELRCS:'' Other means of addressing these
concerns include setting eligibility criteria for participants~52 limiting trade to
certified a - p s t allowances; limiting trade to emission credits that were actually
generated fiom abatement rneasures only; or requiring Parties to maintain a
"compliance reserve" to make up for possible deficits at the end of the cornmitment
period.4s3 At the same tirne, such measures will have to be balanced against the
concems that bamers to market entry will raise transaction costs and reduce the
volume of trade.454
The use of al1 three mechanisms is optional. Annex B Parties retain complete
sovereignty in selecting domestic policy instruments to achieve their assigned
targets4" Thus, the fom of domestic legislation to implement Protocol obligations
could be quite vaned. Ultimately, the level of private actor participation4s6 will
depend both on the national implementation policies and on the international rules,
guidelines and modalities to be adopted by the COP or the COPlMOP for defining
and operating the Kyoto mechanisrns.
''' This was stipulated in Article 17, but a concrete ceiling for trade was n d agreed upon, as this is an especiai 1 y contentious issue. The EU'S proposal for quantitative limitations was rejected again in COP- 6 Part II. The Bonn Agreement (supra note 409) rnerely States that "the use of the mechanisrns shall be supplemental to domestic action and domestic action shall thus constitute a significant element of the effort made by each Party included in Annex 1 to meet its quantified emission limitation and reduction commitments under Article 3, paragraph 1 ." See also Oberthür & Ott, Kyoto Pmtmol, supra note 200, 197-20 1.
As stipulated in the Mechanisms Dra& supra note 447. ''' Sec Werksman, supra note 447, at 79; Baron, supra note 450, a! 28-29. The "rrtscrve compliancc" approach was adopted by the ministerial segment in COP-6 Part II and includtd in the Bonn Agreement (supra note 409). S u klow subsection 4.
Waksman, ibid. at $0. ''' Kpto Protocol, Art. 2. '% Meaning, the direct participation of the private sectors in the international stmctures (with a difference fiom an indirect involvement, to be govemed by distinct legal structures (e.g. national law, private international arbitration).
One might argue, from an instnimental perspective, that a more open and flexible
approach would increase the volume of traded allowances and necessitate direct
private sector participation in the opefation of the mechanisrns. Countries would have
a vested interest in the successfül fulfillment of private participants' obligations, since
the more extensive the trade, the greater the nsk of non-cornpliance by the trading
Parties. A more cautious approach would reduce the volume of trade, and the risk of
non-compliance as a consequence. Under this scenario, a lower level of scmtiny over
pnvate participants' actions is required, and their integration in the regimes'
institutions would not be as crucial. However, such approach may thwart the cost-
effectiveness of the measures taken to achieve the environmental goals under the
Protocol. This issue is fiirther examined below with regard to each of the
mec hanisms.
3.1 .1 The Joint Implernentation Mechanism
As pointed out earlier?" JI and CDM are very similar. The underlying concept
behind both Articles 6 and 12 is a mobilization of pnvate investment for carrying out
climate change mitigation projects.458 The Protocol clearly envisages the participation
of the private sector in the JI and CDM provisions~5g
There are at least two possible models of JI, which could have bearing on the f o m of
private sector participation. One is a multilateral model, where JI projects are
operated under the supervision of international entities esîablished under the Protocol.
Second is a bilateral model, according to which Parties could enter into agreements
457 Text accompanying notes 39 1-396. 458 Obethür & Ott, Kyoto Protocol, supra note 200, at t 73. 459 See Kyoto Protocol, Art. 6.3 and 12.9.
relating to projects, and decide independently how to carry them out, how to verify
emission reductions and share the b e n e f ~ t s . ~ ~
Article 6 regulates the transfer of "emission reduction units [ERUsj resulting fiom
projects" among developed countries. This mechanism was primarily designed to
encourage industrialized countries to carry out projects in countnes with economies in
transition (CEIT), and receive credits for ka' A JI project would involve contractuai
relations between the project Company and its business partners; beniveen the private
project participants; between pnvate participants and the host country; between the
governments of the participating countries; and between the goveniments and
international organizations involved in the project, including the Protocol's
authori t i e ~ ? ~
JI projects are different than other international investment agreements. In a JI
project, countries must ensure that the private participants fùlfill their obligations
under their agreement, since a breach of this agreement could lead to non-cornpliance
of the investing country. Therefore, creating rules to govem the transactions and
ensure adherence to the rules may not suffice.&) Some suggest reducing the risk of
(60 See Oberthür & Ott, Kyoto Protocol, supra note 200, at 15 1 - 163. They rightl y note that the wording of Art. 6 leans towards a bilateral option: therc is no referenct t o certification of cmission reduction units, because unlike the case of CDM, ERUs are subtracted fiom the transferring Party's assigned amounts. That is a strong cnough incentive for verification and docs not rcquire multilateral supervision (ibid. at 1 60). Note that the wording of Art. 6.3 also indicatcs that the Parties cnvisiontd a bilateral model. But this is not the approach taken in m e n t negotiations.
Namely, Russia and other countries which were formaly a part of the Soviet block. Sec F. Missfeldt, "Flexibility Mechanisms: Which Path to Takc aftcr Kyoto?" (1998) 7 RECIEL 128 at 133. About the negotiating history of Art. 6 sec Oberthür & Ott, Kyoto, supra note 200, at 1 5 1 - 158. &' I.B. Wori ka & T. Walde, "Contractual Architecture of the Kyoto Protocol: From Sofl and Nard Laws to Concrete Commitments" (2000) 15 J. Land Use & Envt'l L. 489, and sec gennally Werksman, supra note 447, a t 53-58. 443 This means that any surplus in emission reductions and any credits acquircd by JI activitics would be transferred to an account, and in the case of excessive miss ions bcyond the assigned amount the difference could be met FFom this account. See H.E. Ott, "Opcrationalizing the 'Joint Impkmentation*.
project failure by establishing an bbemission budget9- or "compliance reserve." The
Parties to the Protocol recently adopted the compliance reserve option with regard to
IET under Article 17, but not JI? However, the ERUs are not likely to become
k l y tradable. Following the Bonn Agreement, the JI Guidelines Draft is now
leaning towards the creation of a more centralized version of JI than was anticipated,
in order to secure credibility and viability of the mechanisrn. This structure would
entai1 interaction of actors of diverse legal character: state-Parties, national and
international organizations, as well as profit and non-profit private entities. The
complexity of JI projects raises difficult questions of responsibility under
international law, since various conflicts may arise under the JI m e ~ h a n i s m . ~ The
Parties have agreed upon establishing a Supervisory Committee to supervise, inter
alia, the venfication of ERUs generated by Article 6 project acti~ities,~' assisted by
an "independent entity.'*' Therefore, the "fungibilty" of ERUs is conditioned on a
project-by-project review by a qualified entity. As in the case of CDM, this is said to
reduce the risk of transfming invalid ERUS.&'
It could be argued, then, that since govemments are about to adopt a variant of the
muftilateral approach to design the JI mechanism, the possibility of non-compliance is
reduced, and the need to supervise the private participants in the project is lessened as
- -- -- - -
Organizational and Institutional Aspects of a New lnsbument in International Climate Policy*' (1998) 8 Global Envt'l Challenge, 1 1, at 26.
See Ott, ibid. and aiso D.J. Dudek, Emission Budgets: Creating Rewards, Lowering Cos& and Ensuring Results (Springfield Virginia: Proceedings Climate Change Analysis Workhop, 1996).
See Bonn Agreement, supra note 409, Section VI para. 4. and the JI Guidelines Draft, supra note 471, para 38 (stating explicitly that the provisions relating to Article 17 shall not apply to transfcr of ERUs). mi Ott, supra note 463, at 26.
See Bonn Agreement, supra note 409, Section VI para. 2(3), and the Mechanisms Draft, supra note 447, Annex to Draft Decision X P . 6 (Article 6), Guidelines for the Implernentation of Article 6 of the K oto Protocol [hereinafler "JI Guidelines Draft"] pariicularly sections C and E. Jbid. section E. 469 See in detail Nordhaus et al, supra n d e 449.
a resutt. Any conflict ansing between a private entity and a govement or another
private entity with respect to a specific Ji project couid be resolved in accordance
with foreign investment rules. Confiicts between two States or between one of the
states and the Protocol's authorities could be resolved in a separate, intemal tribunal.
Since the outcomes of conflicts would not have significant implications on the
cornpliance of the host country or the investing country, such separation does not
seem problematic. Nonetheless, the possible tepercussions on the effectiveness of the
regime as a whole ought to be considered. As Ott points out:
"Conflict resolution between private parties . . .entail[s] a certain risk that the
interests of the participating counîries will be violated. The private litigation
will in general not take specific JI-interest, into account. I f a project is
potentidly jeopardized because of confiicts between private parties,
governrnents may want to exercise greater influence in the outcome of the
c o n f l i ~ t . ' ~ ~ ~
What approach are the Parties to the Protocol taking with respect to private entities'
participation? Article 6.3 states:
"A Party included in Annex 1 may authorize le@ entities to participate,
under its responsibiliiy, in actions leading the generation, transfet or
acquisition under this Article of emission reduction units" (ernphasis
adde~l).~' '
Thus, Article 6 holds that since only the state-Parties to the Protocol are legally
responsible for its implementation, private entities will be accountable to their home
470 On, supra note 463, at 27. 47' See also .i1 Guidelines Drafk, supra note 467. Para 26 states that "A Party that authorizes lcgal entities to participatc in Article 6 projects shall remain responsible for the fùlfillmcnt of its obligations under the Kyoto Protocol and shall ensure that such participation is consistent with this annex. Legal entities may only participatc in those activities under Article 6 in which the authorizing Party is eligible to participatc at that tirne."
governments only; not the Protocol's autbonties. Viewing the emerging Ji procedures
as a whole, this approach seems highly problematic. An alternative would be to
resolve JI-related disputes involving pnvate entities in an arbitral tribunal established
under the Protocol. This would prevent possible fragmentations of the regime and
conflicting interpretations of the law. However, States are usually reluctant to afford
pnvate entities standing in international tribunals, since they are not considered
subjects of international la^.^" Again, the state-centnc view constrains the possible
creativeness of institutional design.
3.1.2 The Clean Development Mechanism
Article 12 regulates activities in developing countries (i-e. non-Annex I parties)
"resulting in certified emission reductions." The CERS can be used by Annex 1
countries to meet "part of their quantified emission limitation and reduction
9 9 473 commitments under article 3 . The operation of the CDM mechanism was
stipulated in the Protocol quite elaborately. Article 12 establishes an Executive Body
(EB) that would approve projects and decide on crediting by verimng emission
redu~tions."~~ The registration, monitoring and verification procedures under CDM
projects will be undertaken by "operational entities" with the appropriate ~ a ~ a c i t y ? ~ ~
As in the proposed JI model, this will necessarily create direct legal relations between
472 See P. R. Kalas & A. Herwig, "Dispute Resolution under the Kyoto Rotoco1"(2001) 27 Ecology L.Q. 53, at 103- 104. 473 Art 12.3(b). 474 There are a few variations of the multilateral approach, including a fonn of multilateral fund. Sec Oberthilr & Ott, ibid. For a discussion of the different CDM modcls, sec R. Stewart et al. The Ctean Dewlopment Mechanism: Building Internarional Public-Pnvute Partnerships Under the Kyoto Protocot - Technical, Financial and Institutional Issues (2000), at 19-24. (Available onlinc at ~h~v:l/www.unctad.ora/en/subsites/etrade/resear.hmi~; (last visited 20/09/2001). Sce also G ~ b b et al, su ru note 33 1 , at 232-237. 47PArt. 12.5. These entities could be intngovernmental organiufions w privarejim. Sec OberthUr Bt Ott, Kyoto Prorocol, at 175. And also Mechanisms Dr& Annex to Draft Decision KP.6 (Article 12), MoQlities and Procedures for a clean development Mechanism as defincd in Article 12 of the Kyoto Protocol [hereinafter "CDM Modalities Drafi"], Appendix A.
the involved business entities and the CDM international institutions. The COP/MOP
and the will have to decide how to exercise their institutional authority over
private entities that are outside the Protocol, but will participate in the operation of the
rnechanis~d'~ Stewart et al. list a few of the possible disputes that may anse in the
implementation of the CDM:
" - Disputes between, on the one hand, certi-g entities and, on the other
hand, investors, project sponsors, project host countries, or environmental
NGOs, over decisions by cati fjmg entities regarding project registration and
CER certification. In addition, the EB may want to exercise the authority to
review such decisions.
- Disputes between al1 of the entities descrïbed in the previous paragraph as
wetl as CER buyers, over veriijmg entities' decisions concerning the validity
of CERs previously certified. In addition, the EB may want to exercise the
authority to review such decisions.
- Disputes over bookkeeping and auditing decisions about the ownership and
amount of CERs.
- Disputes regarding the retention or accreditation of private entities by
CDM authorities, as well those relating to dismissal or revocation of
accreditation.
- Disputes between investors, project sponsors and credit buyers, on the one
hand, and host countrîes, on the other, over host country regdatory or other
decisions chat allegedly have fiustrated project activities and their ability to
earn credi t ~ . ' * ~ '
To what extent do the Parties consider these complex issues in the Protocol and the
CDM Modalities Draft? Unlike the case of JI, nowhere does the Kyoto Rotocol
stipulate that activities of legal entities participating in CDM pmjects are to be
476 Which are the CDM authcwïties according to Art. 12.4. 4'7 See Stewart et al., supra note 474, at 84. *'' Ibid.
regulated only at the national ~evel!'~ The wording of Article 12.9 implies a different
approach than that taken in Article 6:
"Participation under the clean development mechanism, including in
activities mentioned in paragraph 3(a) above and in the acquisition of
certifieci emission reductions, may involve private and/or public entities, and
is to be subject to whatever guidance may be provided by the executive
board of the clean development mechanism."
The CDM Modalities Draft makes no attempt to regulate private entity involvement.
Al1 the instructions, rules and guidelines are directed at the Parties, the EB or the
operational entities. The only reference to possible conflicts between CDM
components involves "project participants" (Le. state-Parties) and the operational
entitie~.~" The CDM Modalities Draft does provide, however, a basis for a
transparent procedure, where decisions are made public, and in some cases, input
from "stakeholders" is taken into a c ~ o u n t . ~ ~ '
In sum, much of the detailed rules and procedures for operating the CDM are yet to
be decided by the Parties. The existing CDM Modalities Draft is incomplete, but its
wording already indicates that the only actors that will be directly involved in the
institutional design of the CDM are the Parties to the Protocol, the EB, and the
operational entities.
479 Although there is no doubt that private entities will be the actual 'executers' of the project, the terni "Project participants" is a t m used to denote state-Parties only.
Regarding the validation and certification of reductions, and the issuance of CERS. Only state- Parties or members of the EB are granted the right to requcst a rcview of the operational mtity's decision on this issue by the EB- See CDM Modalities Draft, supra note 475, section G para 39, section J para 63. "' See below, subsection 5.
3.1 -3 The International Emission Trading Mechanism
IET involves trading of surplus GHG emissions, of countries that stay below their
allowed emissions, with countries that exceed their ernission levels in the
cornmitment period. This would allow the Parties involved in the transfers to achieve
their GHG emission objectives while minimizing the overall cost of reduction. The
concems mentioned earlier regarding supplementarity and the risk of overselling
PAAs are especially relevant in the operation of IET and were addressed in the Bonn
Agreement. First, the Parties agreed to set a rule that would reinforce the
supplementarity requirment in Article 1 7 by holding
"[tlhat the use of the mechanismç shall be supplemental to domestic action
and domestic action shall thus constitute a significant element of the effort
made by each Party included in Annex 1 to meet its quantified ernission
limitation and reduction cornmitments under Article 3, paragraph 1 .'"*
Second, the Parties agreed to set a "cornmitment period reserve," to be maintained in
the national registry of any Annex 1 Party. This reserve should not drop below 90% of
the Party's assigned or 100% of five times its most recently reviewed inventory,
whichever is ~owest?~
Article 17 does not specifjr who is eligible to -de. There are three possible scenarios
regarding private sector activity in the operation of an international trading system.
First, is that govements would be able to allocate parts of their assigned amounts to
business finns, which could then trade them fieely with States and other private
'13' Bonn Agreement, supra note 409, Section VI para l(5). "' See ibid. Section VI para 4( 1). and the Mechanism Draft, supro note 447, Annex to Draft Decision - ICP.6 (Article 17), Modalities, mlts and guidelines for cmission trading [hercinafier "IET Modalities Drafq, para 6.
entities (sel1 unused units or purchase in order to meet their obligations)? This is
said to be the most cost-effective option of implementing an IET program.' but it
would also create serious problems of monitoring and enforcement, since it would
complicate the system and significantly increase the number of trading entitiesmq6
The second scenario is that the trade of PAAs would be possible only between
govemments, while private actors could trade only on the domestic level (in countries
where a national trading system has been established)? A third option would be a
two-stage approach, where each country that has employed a national trading system
could allow international trade among private entities through the use of brokers
appointed by the govemments.488
The nature of potential disputes under the IET would depend on both the trading
mode1 and the liability mles that will be adopted under the u roto col?'^ Broadly
speaking, disputes could arise regarding monitoring assessments, bookkeeping
detenninations, and nontompliance issues. These disputes could anse between and
among state-Parties, private entities, possibly NGOs, and the Kyoto autho~ities.~~'
See Oberthür & Ott, Kyoto Protocol, supra note 200, at 195-196. Even when there is no national trading system, but carbon tax, govemments may still allow acquired credits to be offset against the tax base. See Grub et al, Kyoto Protocol, supra note 33 1, at 196. 'O5 See R. W. Hahn & R. N. Stavins, "What Has Kyoto Wrought? The Real Architecture of lnternational Tradable Permit Markets", (1 999) Resourcts for the Future, at 5-6. 486 Obcrthiir & Ott, Kyoto Pmiocol, supra note 200, at 1%. a7 This is what the formulation of Art. 17 suggests. Sec Oberthür & Ott, ibid. "' See Z. Zhang & A. Nentjes, "lnternational tradable carbon permits as a strong f m of Joint Implementation", in: Skea, Jim ed., Pollution as property: Tradable pennits, tradable quotas and Joint Jmplementation (Cheltenham, 1997). Sce Also Grubb a al, supra note 33 1, at 207-208 (refers to two variations of this - case by case approval of transactions, or an intergovernmental agreement establishing a mutual automatic recognition of trades). 489 For the possible liability rules under 1ET see M. Grubb, "International Emissions Trading under the Kyoto Protocol: Core Issues in Implementation" (1998) 7 RECIEL 140; 2. X. Zhang, "International Greenhouse Gas Emissions Trading: Who Should Be Liablc for the Non-Cornpliance by SeIlers?" (1999) 3 1 Ecological Economics 323; Werksman, supra note 447, at 85-89. 490 Kalas & Herwig, supra note 472, at 96- 1 10.
While it is not yet clear which of the IET models the Parties will adopt, the current
negotiating text repeats the rule we have encountered above with respect to JI. Legal
entities may be authorized by a Party to transfer andor acquire PAAS, but the Party
would remain responsible for the fidfillment of its obligations under the Protocol?'
Thus, private entities cannot be held directly accountable to the Protocol authorities
under Article 17. Their accountability can only be expressed through that of the state
Party in which they are incorporated. Some believe that in light of this restriction, the
only applicable mode1 would be the third one referred to a b ~ v e ? ~ ~
3.2 Dispute Resolutioa Procedures Relan'ng to the Kyoto Meciranisnrs
Article 14 of the UNFCCC, dealing with dispute resolutions, stipulates that Parties
(namely only states) shall first try to settle the dispute through negotiations. As a
second step, the dispute may be submitted to the International Court of Justice (ICJ),
arbitration, or conciliation in accordance with procedures to be adopted in the form of
an annex to the convention."' Settling disputes in the ICJ is clearly an insufficient
option, since submission of disputes to the ICJ is voluntary, restricted to states only,
and far too ad versa ria^.^^^ Private international arbitration is a more attractive
alternative, but resolving disputes this way might result in lack of unifonn decision-
making and fragmentation of the regirnem4'' An intemal, professional tribunal seems
like a preferable option, provided that it would have compulsory junsdiction."'
- - -
49 1 See IET Modalities Draft, supra note 483, para 5. 492 See Kalas & Herwig, supra note 472, at 59. 493 Article 19 of the Kyoto Protocol stipulates that the provisions of the UNFCCC on the settlernent of disputes will apply, mutatis mutondis, to the Protocol. 494 See Kalas & Hcrwig, supra note 472, at 64-65. 49s Since parties can select for themselves the substantive law to resolve their disputes. Sec ibid. at 65- 66. 4" But as noted, this would entail an amendment to the Convention, in the form of an anncx.
The study of non-state actors' involvernent in the Kyoto mechanisms has only
t ~ e ~ u n . ~ " It seems to focus on practical considerations relating to the regime's
effectiveness when providing concrete models for dispute resolution involving non-
state actors in the regime. Recent suggestions draw from other international
institutions with progressive approaches to private entities' i nv~ lve rnen t .~~~
Hermann Ott supports entrusting the resolution of conflicts on JI with an intemal
tribunal established under the Protocol, preferably the JI SupeMsory ~ommi t t ee :~ It
could address questions which concem al1 Parties to the regime; is not confïned to a
rule-bound decision; could take into account political, economic and social factors;
and would enable Parties to adjust themselves to the JI mechanism as needed. More
importantly, the highly technical nature of plausible JI disputes requires a body of
experts in technical and economic issues.
Richard Stewart and his colleagues propose the establishment of a dispute settlement
procedure as part of the CDM, along the lines of the GATTtWTO dispute resolution
process. This would promote "consistency and conformity in the development and
application of the law goveming the matters in
- - -- - - -
497 See generally, on the h e w o r k of governing Iaw, Werksman, supra note 447, at 53-56. First attempts to analyse the ways in which private entitics would fit into the Kyoto's cornpliance regimc: Kalas & Herwig, supra note 472, at 59; B. Frischmann, "Using the Multi-Laycred Nature of International Emissions Trading and of International-Domestic Legal System to Escape a Multi-State Cornpliance Dilemma" (2001) 13 Geo. Int'l Envtl. L. Rev. 463. See also Ott, supra note 463, at 27-28, and Stewart et al, supra note 474, at 8687. "' For example, the North Americon Free Trade Agreement Between the Govemment of Canada anà the Gomment of Mexico and the Govemment of the United States, 17 k e m b e r 1992. Can. T.S. 1994 No.2, 32 I.L.M. 289. Chapter 11 provides a private investor - State dispute provision. Sec Frischmann. ibid. at 502-506- 499 Ott, supra note 463, at 28-29. 'O0 Stewarf et ai., supra note 474, at 87. This is donc briefly, as a possible solution that ought to k considerd At the same time, thcy Say that disputes involving private cntities may be resolved through contractual arrangements or by reference to domestic law. While this rnay guarantee Icgal ccrtainty between the parties to the contract, it is not clear how the risk of rcgime fragmentation is avoided, accarding to Stewart and his colleaguts.
Bren Frischmann suggests a complex dispute resolution model for ET, which
involves a citizen-state arbitration mechanism. His model entails the following steps.
First, states should adopt a buyer-liability mle. This means that in the case of
overselhg emission rights, the PAAs that were purchased by a state-Party would
become invalid and discounted from this Party's account. An "international
monitoring institution" would assess substantive cornpliance by states, and would
devalue emission permits according to the degree of the state's noncompliance. The
domestic enforcement oficials of the purchasing state would then impose domestic
penalties accordingly. Finally, the penalized domestic entity could pursue remedies
against foreign permit issuers or against the foreign state whose permit has been
devalued, in a citizen-state arbitration mechani~rn .~~~
An attempt to build a comprehensive dispute settlement model for al1 three
mechanisms is offered by Kalas and Herwig, who suggest a three-tier dispute
settlement system under the Kyoto Protocol, in which:
( 1 ) disputes involving bookkeeping, project registration, certification and
verification of CERS and emissions monitoring will be resolved in an
administrative body established under the Protocol;
(2) disputes conceming non-cornpliance between states will be brought before the
Non-Cornpliance Procedure (NCP) body as envisaged in the Protocol;
(3) disputes that may arise between pnvate entities, or between private entities
and states on financial issues, will be resolved in private international
'O' Frischmann, supra note 497, at 499-506.
arbitration panels or a panel to be established, in the forrn of the International
Centre of the Settlement of Investrnent Disputes (ICSID).~O*
It seems then, that first atternpts to suggest dispute resolution models under the Kyoto
Protocol consider the possible integration of private entities pragmatically and on its
merits, rather than remaining constrained by the current state-cenûic structure of other
institutional designs. These proposed models are based on considerations
incorporating the advantages and disadvantages of pnvate entities' involvement in the
operation of the flexible mechanisms. They al1 envisage a direct and active
participation of non-state actors in the operation of the Kyoto mechanisms, and
suggest vanous forms of a 'Kyoto tribunal,' in which non-state actors are afforded
legal standing, with a view of ensuring an efficient and reliable dispute settlement
procedure. As we have seen, the Parties to the Protocol seem to be taking a different
approach. The Protocol's provisions, as well as the emerging d e s and guidelines for
the operation of the mechanisms, create a clear separation between inter-state
cooperation in the trade system of allowances and pivate sectors' involvement in
such trade. Private legal entities can participate in actions leading to the generation or
transfer of emission allowances, but their involvement remains under the
responsibility of their home governrnents. As a msult, disputes relating to the
mechanism that involve pnvate entities are to be resolved in the traditional settlement
procedures; not in an international public forum, alongside with States.
'O2 Kalas & Herwig, supra note 472, at 128- 130.
3.3 Dispute Resolution Procedures Relan'ng to Cornpliance
There are clear linkages between the Kyoto mechanisms and the compliance regime
of the rotoc col.^^^ The mechanisms were included in the Protocol in order to facilitate
the achievement of the emission reduction goals, namely to reduce the risk of non-
c~m~l i ance .~* As noted above, Paxty eligibility to participate in the mechanisms by a
Party will likely be contingent upon its compliance with the reporthg requirements
under the Protocol. Furthemore, one of the consequences of non-cornpliance by a
state-Party could be the suspension of eligibility to participate in the mechanis~ns.~~~
Thus, both types of disputes (mechanism-related disputes and a cornpliance disputes)
are very much interrelated and would involve cornmon factual and legal questions.
While it is not clear yet how the issues relating to the operation of the rnechanism will
be resolved, the UNFCCC and the Protocol stipulate a specific institutional
arrangement for addressing issues of non-cornpliance under the Protocol.
As noted earlier, Article 14 of the UNFCCC provides a selection of dispute settlement
procedures. A dispute settlement body is regarded as a usefbl option for resolving
disputes ansing out of the operation of the mechanisms, but it currently applies to
state-Parties only.s06 In addition to dispute settlement under Article 14, the UNFCCC
and the Kyoto Protocol stipulate three distinct sets of rules and procedures that
provide the means to address cases of non-cornpliance: indepth expert review OR);
a multilateral consultative process (MCP); and a non-compliance procedure (NCP).'''
50' Sec in dctail, Wcrksman, ibid. at 74-99. 5 0 4 See Brunnée, supra note 447, at 236 and Werksman, ibid- at 74-75. 'Os See supra note 447. 'O6 See the vanous proposais in the pevious subsection. 507 LMFCCC, Art. 13, and the Kyoto Protocol, Art. 7,8 , 16 and 18.
The IDR is the first step in assessing a Party's compliance with its commitments. It
provides a "thorough and comprehensive technical assessrnent of al1 aspects of the
implementation" by a ~ a r t y . ~ ~ * The review teams are to submit their reports to the
COPMOP, out of which potential questions of implementation are identified and
considered by the COP/MOP. The COP/MOP may take decisions on the matter
required for the implementation of the P r o t o ~ o 1 . ~ ~ Article 13 of the UNFCCC
anticipates the establishment of the MCP for resolving questions regarding
implementation.s10 The MCP is to address these issues in a "facilitative, cooperative
nonconfrontational, transparent and timely marner,'' on a "non-judicial" basis.'" The
mandate of the consultative entity would "revolve around clarification and resolution
of questions and provision of advice."I2 Finally, Article 18 of the Kyoto Protocol
requires the COP/MOP to "approve appropriate and effective procedures and
rnechanisms to determine and to address cases of non-cornpliance with the provisions
of this Protocol, including through the development of an indicative list of
consequences, taking into account the cause, type, degree and frequency of non-
~ o m ~ i i a n c e . " ~ "
In the meetings of the COP following the adoption of the Kyoto Protocol, the Parties
negotiated over the design of the compliance regime. "There seems to be general
agreement among parties," writes Brunnée, "that the Kyoto Protocol compliance
system must seek to promote irnplementation and prevent non-compliance.. .
However, views diverge significantly with respect to the extent and manner in which
- - - - --
U#L Kyoto Protocol, Art. 8.3. Ibid, Art 8.6.
' 'O This was reiterated in Article 16 of the Kyoto Praocol. Ad Hoc Group on Article 13, UN FCCC. UN Doc. FCCC/AGl3/1998/2 (1998) decision IOlCP.4.
annex. See also Brunnée, supra note 447, at 241-242 and Werksman, supra note 447, at 68-69. Brunnée, ibid. 24 1 . Kyoto Protocol, Art. 18..
9 3 5 14 facilitative approaches are to be applied. The most recent draft decision regarding
compliance, which includes the relevant elements of the Bonn Agreement, outlines a
progressive approach in this regard."'
The NCP draft establishes a Compliance Committee that would function through a
plenary, a bureau, and two branches: the facilitative branch and the enforcement
b r a n ~ h . ~ ' ~ The Draft stipulates the higgering mechanisn of the NCP procedure. The
Committee shall receive "questions of implementation" fiom IDR experts, fiom any
Party to the Protocol with respect to itself, or fiom any Party with respect to another
Party, supporied by corroborating information?' After reviewing the "question," the
Committee is to allocate it to the appropriate bran~h.~'*
The facilitative branch is meant to promote Parties' compliance with their
cornmitment., taking into account Parties' common but differentiated responsibilities
and respective ~a~ab i l i t i e s? '~ The enforcement branch will be responsible for
determining non-compliance by a Party and for applying the consequences of non-
compliance set out in the NCP. These include a deduction fiom the Parties' future
emission allocations;520 development of a compliance action plan; and suspension of
- - - --
Brunnée, supra note 447, at 246. Preparation for the Fim Session of the Conference of the Parties Serving as Meeting of the Parties
to the Kyoto Protocol (Decision 8/CP.4), Procedures and Mechanisms on Compliance unda the Kyoto Protocol, Annex to Draft Decision -/CMP.l, Procedures and mechanisms on cornpliance under the Kyoto Protocol [hereinafter "NCP DraW'J. Since many of the controvcrsial issues wcre resolved in the Bonn Agreement, and since the NCP Draft has no brackcted tcxt in it, this DraA reflects in great part the procedure that will cventually bc adopted by the Parties. "* NCP Draft, ibid. section II. Ibid. section VI.
''' Ibid. section VlI. Ibid. section IV para. 4. These deductions will be made fiom the sccond commitment pend (namcly aftcr the year 2012).
The number of tonnes to be deducted i s equal to 1.3 times the amount in tonnes of cxcess ernissions. See ibid. section XV para. 5.
the eligibility to trade under Article 17 of the rotoc col.^^' The overall approach seems
to be assisting Parties and bnnging them into compliance by non-confiontational
means rather than coercion and adversarial mechanisms.
NGOs could have an important role in the enforcement of the Kyoto Protocol, both in
the implementation of the mechanisms and the compliance system as a whole. They
can help ensure that real reductions in emissions take place as a result of JI and ET,
that the CDM projects achieve their dual objective of sustainable development, and
assist developing countries to acquire proper technologies and projects that would
help them achieve their sustainable development goals.s22 But aside h m these
instrumental functions, NGO access to the NCP procedure, which is an integral part
of the discursive process of lamaking, would contribute to the legitimacy of the
noms that would be constructed and reconstructed in the compliance ~ystern.'*~
However, the place for non-state actors in the emerging NCP seems fairly limited.
They will not be able to submit questions of irnplementation to the Compliance
Comrnittee, 524 and while decisions made by the two branches of the Comrnittee are to
be made public.2s NGOs are not afforded a way to submit their reservations to the
NCP authorities.
-- -
52i Ibid. 5ZZ See Campbell, supra note 443, at 1 1 . The business industry can also play a significant role in the compliance rcgime, by providing technical guidance and technology transfer. Sec Kingsbury, Compliance, at 367. '*' Sec below, subsection 4. '*' AS notcd above, the Compliance Cornmittee will accept only "questions of implementation" indicated in reports of expert review teams under Article 8, or submitted by a Party with respect to itself or another Party. See supra note 5 17. '" See NCP Draft, supra note 5 1 5, section VI 1 para 6; section VI1 para 7.
In the mechanisms procedures a slightly different approach is taken. The JI
Guidelines Draft allows "stakeholder~"~~~ to submit their comments on project design
documents to the independent e ~ ~ t i t ~ . ~ ~ ' The CDM Modalities Drafi holds, for
example, that before validating a project activity, the operational entity must confirm
that cornments by stakeholders have been invited." The operational entity must also
receive comments fiom stakeholders and NGOs prior to validating a proposed project
a~ t iv i ty . '~~ However, here too, only Parties to the Rotocol can request a review of the
operational entity's decision by the enforcement bran~h.'~*
3.4 Kyofo 's Applcation Phase: Concluding Obsewaîions
We have seen earlier, that the stov of the evolution of climate change regime is
arguably a "consûuctivist story." The climate change regime was not formed by a
single incident of treaty signing, and the noms it produced were not generated by a
forma1 way of state consent to predictable rules. It is an ongoing process of discursive
activity, where the evolving normative fiamework for combating global warming
helps to define the identities of the actors and guide them towards a cooperative
behaviour. The epistemic community in the fom of, inter dia, the IPCC has grouped
together people with technical and scientific expertise, who learned about the
collective problem and developed common knowledge that bad great influence on the
526 Defincd as "the public, including individuals, groups or communities affectcd or likcly to affected by the project." See JI Guidelines Draft, supra note 47 1, section A para I(d). '*' ibid. section E para 29. 528 CDM Modalities Dra& supra note 475, section G para 35(b). 529 Ibid. section G para 38(c). This seems like an analogous form of "public participation" promotcd by democratic libcralism (sec discussion above, section III). Arguably, from a liberal perspective, non- state actors do not need to take part in the implementation of international law, since the public intmst is already reflected in the lawmaking proccss. This was argued in anotha contcxt, of the involvernent of NGOs in the WTO dispute setdement procedure. See D. E. Esty, "Linkages and Governance: NGOç at the World Trade ûrganization" (1998) 19 U. Pa. J. Int'i Econ. L. 709, at 726. 5JO Ibid. section G para 39, section 3 para 63.
constitution of states' positions on the matter. The "soft laws" that were adopted
under the UWCCC had a similar effect. They created what can be termed a
"discursive framework," which enabled, but also constrained, the arguments that
actors could make during the process of delikration. These noms where not al1
"binding" in the fonnal sense but they may have become self-binding; they influenced
actors' conduct by providing the collective understanding of the normative
fiamework.
However, evaluating the application phase of the Kyoto process is obviously
premature, since Protocol hasn't entered into force yet, and the parties to the Protocol
have not yet agreed upon the rules and guidelines for its application. Nonetheless,
several observations can be made at this point, based on the foregoing discussion of
the emerging rules and guidelines for operationalizing the mechanisms and the design
of the compliance regime.
While the design of the NCP and dispute resolution for the Kyoto Protocol can be
built upon the experience gained in other environmental and diflerent issue-area
regimes, the operation of the flexible mechanisms is an almost unparalleled
phenornenon in international agreements. It would create an international trade
market that needs to be both reliable and attractive to investors because its success or
failure could have direct implications on the achievement of the regime's goals. Here
is yet another paradox in the design of the Kyoto process: on the one hand, the
Protocol itself recognizes the importance of market forces, by introducing the
mechanisms as an optional implementation measure; on the other hand, the very
forces which drive this market, namely private entities, are excluded fiom the
regime's trade market. The way things seem now, there will only be indirect
participation of business entities in the trade; investors and trading entities will be
accountable to their home govemments, not to the Kyoto authorities. Whether this
exclusion would result in an economically inefficient market, is one issue, which was
not explored here.'" From an interactional perspective, however, this exclusion
means that relevant actors are kept out of the ongoing lawmaking process, and this
could have direct implications on the legitimacy of the regime, and its effectiveness as
a result. Here, again, "lawmaking" is not merely the fomal legislation process but
also the contractual noms that trading parties woufd generate in the trade market,
which will be applied and interpreted later on in the process, in the dispute resolution
and NCP tribunals.
The design of an international 'Kyoto tribunal,' in which disputes relating to the
mechanisms will be resolved, should take into account the unique characteristics of
the regime. When designing a cornpliance system, an adversarial process may not be
appropriate. Adjudication and arbitration are designed to provide a dispute resolution
procedure for bilateral legal conflicts. Therefore, they might not fit an institutional
fkamework of a multilateral regime, where the emphasis should be placed on avoiding
disputes and encouraging conciliation. But as Werksman argues, where high political
and economic stakes are concerned (as in the case of the climate change regime),
compulsory and binding arbitration may be wa~~anted.'~* Nonetheless, in order to
facilitate "argumentation" in the sense refened to earlier in this paper, even between
- - - -
53' FOC a detailed discussion of this matter, see Hahn & Stavins, supra note 405. They make the following interesting staternent tegarding the instrument choice of PAMs given to states in the fVotocoi: ".. a fully cost-effective international emission trading program is not compatible with the notion of domestic sovereignty regarding instrument choicc." Ibid. at 16. ''* Werksman. supra note 447, at 62-63.
and among business entities, an attempt should be made to develop a process that
would be as non-confrontational as possible.
The emerging NCP of the Kyoto Protocol seems to be following the footsteps of other
international environmental regimes (noîably the Montreal Protocol), where a
significant weight is placed on facilitative elements. The spectmm of consequences of
non-cornpliance provided by the NCP Draft, ranging fiom facilitation to enforcement,
amounts to no more than %oW penalties?33 This is another important feature of the
making of international law that fits nicely into the constnictivist account of
international relations. The idea that compliance should be managed rather than
enforced is based upon the view that the commitments taken by states in international
treaties reflect collective understandings that they have already intemalized and that
they are willing to f o l l o ~ . ~ ~ ~ The reasons states fail to comply with international
nonns are either because the nonns are too arnbiguous, or because they requin a
rapid change of values and interests which is premature, or because they lack the
capacity to implement the noms.'" Therefore, sanctions imposed in an adversarial
procedure are not likely to advance compliance. instead, focus should be placed on
facilitating compliance rather than detecting non-cornpliance for the purpose of
identifying a breach of obligations?6
Since there is no clear separation between lawmaking and law application, and
because the construction of noms is an ongoing process, the NCP plays an important
533 For more about "soft enforcement" sec Boyle, supro note 349, at 909-912. See Chayes & Chayes, supra note 68, at 1-28 and Brunnée & Toope, Ecosystem Rcgimc, supra
note 339, at 44-47. See also Koh, M y Do Nations Obey, supra note 21, at 2635-2641. For a critique o f this approach, see Downs et al., supra note 34. 535 Chayes & Chayes, ibid. at 9-17. 536 Brunnée and Toope, Ecosystem Regime, supra note 339, at 45.
rote in the shaping and reshaping of norms. From a constnictivist viewpoint, "the
discursive interpretation, elabration, application and enforcement of international
rules, accompanied through mostly verbal interchange, is at the heart of the
cornpliance prwess.'J37 Thus, the continuation of the normative dialogue between
actors, as postulated in the NCP Dra& is highiy desirable. However, as we have seen
above, only states would have access to the NCP.
Non-state actors were able to contribute to the successful development of the climate
change regime so far because of the willingness of states to allow it, and because
infonnally influencing the lawmaking process was a practical alternative. Now, as the
Kyoto process is approaching its implementation phase, non-state actors' influence on
the discursive activity of norms generation will depend upon the willingness of states
to afford them legal status, since informal means of influence in the implementation
phase will be highly limited here.
The above discussion of the emerging rules and guidelines relating to the operation of
the Kyoto mechanisms, the dispute resolution procedures relating to the mechanisms,
as well as the NCP, revealed a highly restrictive approach towards non-state actors'
involvement in the application of the Kyoto Protocol. Keeping the mechanisms-
related activities of states and non-state actors separate, and denying access of non-
state actors to the NCP institutions, could thwart their important contribution to the
lawmaking process that was witnessed in the earlier stages of the regime's evolution.
537 Kingsbury, supra note 19, at 359.
VI. Conclusion
Kai Alderson characterizes the current phase of the "nom debate" in IR theory as
"ecle~ticism."~" The approach 1 have outlined in this paper seerns to fit this
description. My search for a normative hmework for non-state actors participation in
international law began with a critique of the dernomatic liberal strand in legal theory
and has brought me into the realm IR theory. 1 have used some of the insights
provided by structural realism about the distinctiveness of the international system in
order to question the "domestic analogy" employed by liberals. 1 acknowledged the
importance of rational choice theories in the design of environmental regimes,
evidenced by the Kyoto mechanisms. These provide states and non-state actors with
material incentives to comply and becoxne involved with cIirnate change mitigation
activities, and are a clear application of a cost-benefit analysis). 1 have drawn on
social constructivism to explain how actors interact in a social constnict and how such
interaction shapes and reshapes the identities and interests of actors. In order to defme
"actors" in the international society, 1 have tumed to the English School of IR theory,
particularly its Grotian vein, which provides the missing element in IR discourse:
normative individuality. Finally, after engaging with this interdisciplinary analysis, 1
have found helpfùl conceptions of law, which advance a horizontal understanding of
legitimacy in international law, in interactional legal theory.
There is a growing body of interdisciplinary literature, which tries to find bridges
between IR theory and international la^?'^ Within iR theory, however, there are very
''13 Alderson, supra note 1 19, at 5. What he describes is new intcrpretations that takc partial accounts of constnictivist arguments but as a whole remain true to rationalist analysis. I use the in its brader scnse. 539 Such an attempt is Brunnée and Toope's project discussed earlicr. Sec Brunnée and Toope, Interactional Theory, and also Brunnée and Toope, Nilc Basin Regimc, supra note 28. For a comprehensive review of many other interdisciplinary studies and a bibliography see A.M. Slaughter et
few atternpts to reconcile the different approaches. What 1 suggest is that the diversity
of theories and insights in international law and international relations scholarship
should not be adopted in an al1 or nothing rnanner, but in a way that exploits the k s t
of what each theory has to offér in trying to solve a given problem. This is what
Jeffery Checkel has termed a "problem-driven" approach, as opposed to a "method-
driven" approac h.s40
The "problem" this paper has sought to address is the paradox of non-state actors'
position in contemporary international environmental law. Non-state actors are
visible; they are infiuential; and they are relevant, since they are directly affected by
international regulation, but their formal status remains unclear: they have yet to be
regarded as "subjects" of international law. They are conceived of as objects of the
regulation, and as such, their participation is limited at best to what is termed "public
participation" in democratic systems.
The case study 1 have used illustrated this paradoxical position. The Kyoto process
demonstrates how global environmental law is transfonning into a multiplayer game,
where different actors - not only States - interact and exchange information, represent
various views and perspectives, create shared understandings and design international
regimes that better reflect the interests of al1 the affected groups. However, this
interaction with non-state actors was made possible because the approach taken by
govenunents was relatively open and inclusive. This has made infonnal means of
influence available to NGOs, who skillfully took advantage of them. Now, as the
al., "International Law and International Relations Theory: A new Generation of lnterdisciplinary Scholarship" (1998) 92 Am. J. Int'l L. 367. '40 Sce J. T. Checkel, "International Law and Domcstic Politics: Bridging the Rationalist-Constnictivist Divide" (1997) 3 Eur. J. Int'l Relations, 473. See also Keohane, Two Approachcs, supra note 213.
application phase of the Protocol is approaching, states seern to change their attitude.
One explanation for this change of attitude could be that involving non-state entities
in the implementation of the Kyoto Protocol would require their fomal integration in
the institutional structures, such as standing in international public law tribunals.
Fornial integration could mean that states would 1ose their control over the level of
influence exerted by non-state actors, which is perhaps why they display a reluctance
towards this end.
While 1 contend that the potential contribution of non-state actors to the legitimacy of
international law necessitates a change of stmcture, in order to accommodate them in
the institutional arrangements, 1 try to avoid an extreme position. Cosmopolitan
democracy theories are at best premature: there is no apparent "world society"
proposal that can be applied in the foreseeable future. Moreover, when 1 argue that
non-state actors ought to be integrated into the institutional arrangements established
under the climate change regime, I am not suggesting that they should have the same
status as that of states in every sense. Given the problems with NGO participation
discussed above (section III.3), it does not seem appropriate to afford them equal
voting rights in COPs, for example, at this stage. What this change of structure would
entail, however, is an opening up of the discourse through which law is created,
interpreted and applied. This could include, for example, affording non-state actors
access to various international decision-making fora (e.g., in the context of Kyoto, to
the NCP authorities and to the interna1 tribunals that would resolve disputes relating
to the mechanisms). The place for non-state actors in the climate change regime
deserves closer study, which was not the purpose of my enquiry. The nomative
fiamework 1 have outlined, however, suggests that such a study ought to be fked
from state-centric constraints.
VII. Appendix: List of Abbreviations
C A .
CDM
CERS
CO2
COP
COP/MOP
EB
ECOSOC
ERUs
EU
GCC
GHGs
ICJ
ICSID
IDR
IET
IPCC
IR
n MCP
NCP
NGO
PAAs
PAMs
QELRCs
QELROs
SBSTA
TAR
UNFCCC
UNCED
WWF
Climate Action Network
Clean Development Mechanism
Certified Emission Reduc tions
Carbon Dioxide
Conference of the Parties (to the tTNFCCC)
Conference of the Parties serving as the Meeting of the Parties (to the
Kyoto Protocol)
Executive Body
United Nations Economic and Social Council
Emission Reduction Units
European Union
Global Climate Coalition
Greenhouse Gases
International Court of Justice
Centre of the Settlement of investment Disputes
In-Depth Review
International Emission Trading
Intergovernrnental Panel on Climate Change
International Relations
Join Implementation
Multilateral Consultative Process
Non-Compliance Procedure
Nongovemmental Organization
Parts of Assigned Amounts
Policies and Measures
Quantified Emission Limitation and Reduction Commitments
Quantified Emission Limitation and Reduction Objectives
Subsidiary Body for Scientific and Technological AdMce
Third Assessment Report (of the IPCC)
United Nations Convention on Climate Change
United Nations Conference on Environment and Development
World Wildlife Fund
VIII. Bi bliograph y
Legislation: Treaties and Dedarations
Charter of the United Nations, 26 June 1 945, Can T.S. 1 945 No. 7.
Montreal Protocol on Substances that Deplete the Ozone Layer, 16 Septemkr 1987,
26 I.L.M. 154 1.
N o r = American Free Trade Agreement Between the Government of Canada and the
Government of Mexico and the Govemment of the United States, 17 December 1992,
Can. T.S. 1994 No.2,32 I.L.M. 289.
Rio Declaration on Environment and Datelopment, June 14 1992, 3 1 I.L.M. 874.
Stockholm Declaration on the Human Environment, 16 June l972,ll I.L.M. 14 16.
The Convention on Access to Information, Public Participation in Decision-Muking,
and ACCW to Justice in Environmental Matters, 25 June 1 998, 3 8 I.L.M. 5 1 7.
The Convention on the Control of Transboundary Movements of Hazardous Wastes
and their Disposal, 22 March 1989,28 I.L.M. 649.
m e Convention on the Prohibition of the Use, Stockpiling, Production and Transfer
of Anti-Personal Miries, 3 December 1997,36 1.L.M 1507.
The Kyoto Protocol to the United Nations Framework Convention on Climate
Change, 10 Decernber 1997,37 I.L.M. 22.
United Nations Convention on Biological Diversiîy, 5 June 1992, 3 1 I.L.M. 8 1 8.
United Nations Frumework Convention on Climate Change, 9 M a y 1 992, 3 1 1 .L.M.
849.
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