Non-State Actors and the Legitimacy of International Environmental Law

Abstract

A review of the current involvement of non-state entities in international environmental legal processes reveals a paradox: their increasing power is not supported by a recognized legal status, and despite their significant influence on the formulation, implementation and enforcement of international environmental norms they have no legal personality under international law. The first section of the article briefly reviews the involvement of non-state actors in international environmental institutions today and uses the climate change regime to illustrate the problematic treatment of non-state actors in these institutions. It then considers the benefits their involvement accrues, from a liberal perspective, and some of the problems their participation in global governance raises. 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. The article then critiques the normative underpinnings of the case liberal scholars make for non-state actor participation in the international legal system. It shows how a state-centric view of the international system has led some scholars to rely on a flawed analogy of the international system with national democratic structures, and brought others to imagine a two-level consent for international norms, which leaves the legitimizing effect of individuals on international law at the national level. In search for a more accurate account of international lawmaking, and in order to better explain the developments the international system is undergoing, the final part of the article turns to International Relations (IR) theory, which provides us with useful analytical tools in this preliminary attempt to reconceptualize the basic definitions in international law. After a brief review of the leading IR theories and their limited utility to the issue at hand, section IV of the article outlines an alternative conceptual framework for the emerging global civil society, drawing upon social constructivism, "international society" theories, and the jurisprudential insights provided by an "interactional" approach to international lawmaking. This new framework offers a fresh look at the international system, by taking into account all the relevant actors in it and suggesting a horizontal understanding of legitimacy in the international system. It views non-state actors as key players in international lawmaking processes, not as a "participating public" in an imaginary democracy, but rather as full parties to a process of norms generation, which takes place in a horizontal legal system. This effort to rethink international lawmaking is not a mere theoretical exercise - it has far reaching practical implications. State-sovereignty concerns currently prevent non-state actors from becoming fully involved in the international lawmaking process, and their participation in international institutions today is mostly decided on an ad-hoc basis, at the discretion of politicians. Once international law is freed from the conception that sovereignty is the only status that justifies recognition of an actor in the international system, the invaluable potential contribution of non-state actors to the legitimacy of international environmental law can be fully realized.