Book Chapter
Reference
Non-State Actors from the Perspective of International Environmental Law
MBENGUE, Makane Moïse
MBENGUE, Makane Moïse. Non-State Actors from the Perspective of International
Environmental Law. In: D'Aspremont, J. Participants in the International Legal System:
Theoretical Perspectives . New York : Routledge, 2011. p. 372-389
Available at:
http://archive-ouverte.unige.ch/unige:56183
Disclaimer: layout of this document may differ from the published version.
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24 N on-state actors in international environmental law
A Rousseauist perspective
Makane Moïse Mbengue
l Introduction: from the 'social contract' to the 'environmental pact'
Albeit not highlighted by most scholars, Rousseau is one of the main phi- losophers who implicitly or indirectly influenced the early formulation of the environmental protection discourse at the international level, as well as the importance to be given to non-state actors in that discourse. Dealing with the 'Social Compact' in Book I of the Social Contract, Rousseau said:
I suppose men to have reached the point at which the obstacles in the way of their preservation in the state of nature show their power of resistance to be greater than the resourccs at the disposai of each indî- vidual for his maintenance in that state. That primitive condition can then subsist no longer; and the human race would perish unless it changed its 'Ynanner of existence.1
(italics added)
In Rousseau's theory of the state of nature, individuals had to agree on a social compact, i.e. on a contract through which thcy would find a
form of association which will defend and protect with the whole common force the person and goods of each associate, and in which cach, whilc uniting himsclf with ail, may still obey himself alone, and remain as free as before. 2
The social con tract or the social compact was thus the only means through which individuals could safcguard and protect their very existence.
A few centuries later, when the challenge of environmental protection emerged for the first time within the United Nations (UN), the Rousseauist mantra resonated at the Stockholm Conference (1972).
'state of nature' - from which individuals were supposed to be alrea1:ly:
freed - became the 'human environment'. In the realm of the 'htim:an;
environment', individuals, like in the 'state of nature', are an integral
International environment la111 373 of that environment and have the power to 'destroy'3 it and themsclves subsequently. The Declaration adopted at the Stockholm Conference urgcd, in that new situation in which 'the hurnan race u1ould [also] perish unless it changed ils manner of existence' ,4 that:
[mJan is both crcature and moulder of his environment, which gives him physical sustenance and atfords him the opportunity for intellec- tual, moral, social and spiritual growth. ln the long and tortuous evo- lution of the hurr1an race on this planet a stage has been reached when, through the rapid acceleration of science and technology, man has acquired the po111er to transform his environment in countless ways and on an unprecedented scale .. ~
(italics added)
However, this time the solution was not to be found in a 'social con- tract' but rather in an environ,mental pact. Similar to the social con tract, the environmental pact rests on two pillars: a mutual undertaking between individuals and the freedom of those individuals. Principle 1 of the Stock- holm Declaration encompasses these two pillars stating that:
[m]an has the Jundamental right to freedom, cquality and adequate con- ditions of lifc, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environ ment.for present and future generations. 6
(italics added) The environmental pact, thus, redesigns the Rousseauist social con- tract. The social compact centres upon the obligation for individuals to 'obey the general will'7 and allows the 'passage from the state of nature to the civil state'8 where each individual and its property are protected.
The environmental pact is based on the obligation for individuals to protect the environment in order to safeguard 'the natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems'9 for the benefit of present and future generations. The social compact as foreseen by Rousseau pur- portedly guarantees the freedom of each individual in society. The envir- onmental pact aims at securing the fundamental right to frecdom and at making it intrinsically dependent on a healthy environment ('an envir- onment of a quality' in the words of Principle 1 of the Stockholm Declaration).
Ten years aftcr the Stockholm Conference, the premises behind the environmental pact were going to be reinforced at the international level with the adoption of the World Charter for Nature (1982) by the UN General A"îsembly. Reflecting also the Rousseauist rationalization of the social contract, this instrument, more than the Stockholm Declaration,
374 M.M. Mbengue
pinpointed the enormous threat that environmental degradation posing to human existence. It drew attention to the fact that: Was
d~gradation of natural systems owing to e.xcessive consumption and m1suse of natural resources, as well as to fadure to establish an ap priate economic ordcr a'rnong peoples and among States, leads ta th pro- breakdown of the econornic, social and political Jramer.vork of civilization.10 e
(italics added)
The World Charter for Nature went a step further in substantiatin
th~ pill~rs ~~the environmen~al
pact. It~eaffirme~
the idea accordingt~
wh1ch ind1v1duals would gain more freedom in an environmentaI- friendly civilizaüon or community: 'Civilization is rooted in nature which has shaped human culture and influenced all artistic and scient:
ific achievement, and living in harmony vvith nature gives man the best opportunities for the development C?f his creativity, and for rest and recreation'll (italics added).
More specifically, it integrated explicitly the idca of the 'moral exist- ence>J2 deriving from the social contract, by underlining the need to subject the environmental pact to a 'moral code of action': 'Every form of Iife is unique, warranting respect regardless of its worth to man, and, to accord other organisms such recognition, man must be guided by a moral code of action' 13 (italics added). Noteworthy is the pivota! role of individuals or, as Rousseau characterized it, the 'centrifuga! force of people'14 in the devclopment and/ or implementation of such a 'moral code of action'.
The genesis and formulation of the environmcntal pact is therefore much more dependcnt on the action of non-state actors than on the action of the subjects of international Iaw - states and international organizations.
A pioneer illustration of such an assumption is the World Conservation' Strategy (WCS) drafted and adopted as a 'moral code of action' in 1980 by two non-governmental organizations (NGOs), the International Union foi:, Conservation of Nature and Natural Resources (IUCN) and the World Wide Fund for Nature (WWF) in collaboration with a UN subsidi organ, the United Nations Environment Programme (UNEP).15 Th Stockholm Declaration foresaw such dynamics when it stated that '[m]
has a special responsibility to safeguard and vvisely manage the heritage vvildlife and its habitat, which are now gravely imperilled by a combinatio of adverse factors'. 16 The World Charter for Nature went on to set for that:
r
e]ach person bas a duty to act in accordance vvith the provisions of th present Charter; acting individually, in association with others or thro participation in the jJolitical process, each person shall suive to ensure th the objectives and rcquirements of the present Charter are met.17(italics adde
International environ,rnent lau1 375 The vision of the role of non-state actors in the environmental pact gained a new dimension when in 1987 the World Commission on Environ- rnent and Development issued iLs report 'Our Common Future' (the so- called 'Brundtland Report'). Putting aside th_e state perspective, the report stressed that it was not offering 'a dctailed blueprint for action, but instead a pathway by which the peoples of the world may enlarge their spheres of cooperation' .18 And, as if anticipating a debate on the ordinary meaning of the expression 'peoples of the world', the Brundtland Report clarified who werc, first and foremost, the addressees of the environmental pact. It pointed out that the
Commission has becn concerned with people - of all countries and all walks oflife. And it is to people that we address our report. The changes in hurnan attitudes that we call for depcnd on a vast campaign of educa-
tion, debate, and public participation.19
(italics added) However, consequently the role of non-state actors was about to witness new directions, since the Brundtland Report rethought the environmental pact by transposing the latter into a hroader and unprecedented 'con- tract': the sustainable developrnent contract.
2 From the 'environmental pact' to the 'sustainable development contract': the generatious of non-state actors
The social contract as theorized hy Rousseau has as its main function the provision of 'social' and 'economic' welfare. By contrast, the envir- onmental pact is articulated around the very notion of conservation that is 'to ensure Earth's capacity to sustain development and to support all life'.20 ln other words, the object of the environmental pact is 'ecolo- gical' welfare. The sustainable development contract interconnects more effectively the Rousseauist social contract and the environmental pact. It focuses on the necessity of balancing or integrating social con- cerns, economic considerations and environmental preoccupations in a:ny process of development. As such, the sustainable development con- tract appeals to a broader range of non~state actors.21 Therefore, since its inception, the environmental pact has given risc to two generations of non-state actors dealing with environmental protection at the inter- national level.
2.J The 'environment community'
The first generation of non-state actors was more concerned with the con- struction and formulation of the environmental pact per se. A good illus- tration of that trend is the Morges Manifesta (1961), which marks the
376 M.M. Mbeng;ue
birth of the WWF. Refcrring lo the thrcats to wildlife, the undcrscored that:
[t]he emergency must be tackled with vigour and efficiency B
··· Ut success will dcpend not only on the devoted efforts of enthusiasts E wild life but on winning the respect and backing of other interests
whi~~
must not be overlooked or antagonizcd.22
(italics added) The Manifesto shows that the main concern was to build a strong com- munity of non-state actors capable of raising awareness and funds for the sake of environmental protection. Although structured around a different pbraseology, the Greenpeace Declaration of lnterdependence (1976), which fonnally symbolizes the founding of Greenpeace, corroborates this sentiment whcn it professes that:
[t]he Greenpeace Foundation hopes to stimulate practical, intelli- gent actions to stem the tide of planetary destruction. We are 'rainboW people' representing cvcry race, every nation, eve1y living creature. We are pattiots, not of any one nation, state or military alli- ance, but of the cntire Earth ... So let us work together to put an end to the destruction of the Earth by the forces of human greed and ignorance. Through an understanding of the jJrinciples of ecology, we must find new directions .for the evolution of human values and human institutions. 23
(italics added)
~fhe Morges Manifesto a1so demonstrates that, in the early years of the environmental pact, mainly one community of non-state actors was being constituted: the 'environmental community'. 'Other interests' and the actors symbolizing those interests still needed to be taken into account within the environmental pact.
That step would be acbieved almosl forty years later with the legal consecration at the international level of the principle or 'concept'24 of sustainable clevelopment. Thereon, a second generation of non-state actors bas emerged and concentrates on strengthening the environ- mental pact as an integral part of the mechanics of sustainable develop- ment: This is the case of NGOs such as the c:enter for International Environmental Law (CIEL), Conservation International, the Interna- tional Center for Tracte and Sustainable Development (ICTSD) and the International lnstitute for Sustainable Developmcnt (IISD). This is also the case of 'networks' of non-state actors like the Rainforest Alliance and the World Business Council for Sustainable Devclopment (WBCSD).
One may call that generation of non-state actors the 'sustainable devel- opment community'.
International environment lau1 377 2.2 The 'sustainable development community'
c
The cadence in the growth of that new generation of non-state actors was prompted by the H..io Declaration on F,nvironn1ent and Development (1992), which emphasized that '[h]uman beings are al the centre of con- cerns for sustainable deoeloprnent'25 (italics added). Severa} principles of the Rio Declaration make references to non-state actors, but of particular note are Principles 10 and 27.
Principle 10 of the Rio Declaration accentuates the idea according to which '[e]nvironmental issues are best handled with participation of all concerned citizens'2fi (i,talics added). More than ever the Rousseauist approach to the social contract is embodied in an international environ- rnental law instrument.27 lndeed, whereas the World Charter for Nature limited itself to mentioning 'persons' or 'people', the Rio Dcclaration went a step further by acknowledging the action of 'citizens'. Rousseau saw 'citizens' as encompassing all private persons who assented to be subjected to the social contract. As a result, the mere reference to 'citizens' in the Rio Declaration implies that all non-state actors are encouraged or sup- posed to take part in the realization of the objectives of the sustainable development contract. Beyond the interest that each person has in the achievement of sustainable development, it is an act of citizenship to con- tribute to such an achievement.
Drawing consequences from this rationale, Principle 27 of the Rio Dec- laration affords a more proactive role to non-state actors and goes so far as requiring that '[sJtates and people shall cooperate in good faith and in a spirit of partnership in the fulfilment of the principles embodied in this Declaration and in the JUrther development ~f international la1.JJ in the field of sustainablc development'28 (italics added). This is another epistemological difference, for instance, with the World Charter for Nature, which envis- aged cooperation between states and non-state actors only 'to the extent they [i.e. non-state actorsl are able'29 and only in ordcr to 'implement'30 and not to deoelop international environmental law. V\That used to be an obligation of means becamc an obligation of result under the Rio regime.
This being said, the wind of change brought by the Rio Declaration in relation to non-state actors was foreseeable after the release of the Brundt- land Report. Henceforth, some NGOs, like the IUCN and the WWF, anlic- ipated the Rio Conference and proceeded to reframe their actions. In October 1991, thosc two NGOS again in cooperation with UNEP launched Caring for the Earth - A Strategy for Su.stainabl.e Living.31 The document explains that:
Caring for the Earth is intended to be used by those who shape policy and make decisions that affect the course of developrnent and the condition of our environment. This is a much larger group than might at first appear. "While it must include politicians, and executives in the
378 M.M. Mbengue
~ublic and private .i,:ectors at the national ~-~d in.ternationa[ levels, it also zncludes leaders, business people and other czlzzens in comrnunities and ,
. 1 . ' b . "' settle-
Inents every111here. Cartngfor the Eart i zs everyone s uszness:
(italics addect) Most in1portantly, Caring for the Earth was one of the first instruments essentially draftcd by non-state actors calling for a new type of cooperatio in the field of environmental protection. It callcd for the creation of n
'Global Alliance'33 without, nevertheless, depicting the contours of
suc~
an alliance. Fortunately, the idea did not fall on deaf ears.
3 From a 'partnership' to a 'community': the role of non-state actors in the 'environment global partnership'
The Preamblc of the Rio Dcclaration clearly states the 'goal of establishing a new and equitable global partnership through the creation of new levels of cooperation among States, key sectors of societies and people'34 (italics added).
The global partnership or global alliance is, thus, the avenue through which the 'sustainable development community' would effectively contrib- ute to the 'sustainable dcvelopment con tract'. Agenda 21, the programme of action adopted at the Rio Conference on F,nvironment and Develop- ment, devotes in its Section III 'Strengthening the Role of Major Groups', no less than ten chapters (the second longest section of that instrument) to the framing of that global partnership.35 Not a single major non-state actor is omitted. From women to children, from NGOs to the business sector and from indigenous communities to scientific comrnunities, each component of the 'sustainable development community' is recognized as a key actor.
Using the semantics of Rousseau, Agenda 21 advocates the move towards a 'real social partnership'30 and the necd for new forms of participation.
Interestingly enough, Agenda 21 also stresses the importance of granting to all non-state actors similar rights by requiring that 'any policies, defini- -:'.--' tions or rules affecting access to and participation by non-governmental organizations in the work of United Nations institutions or agencies associ- ated with the implementation of Agenda 21 must apply equally to all majcn-"
groups' (italics added) :11 As previously noted, the second generation of non-state actors concerned by sustainable development is not lirnited to the 'environmental community'. It is thcrcfore laudable that Agenda 21'.!', insists on a principle of equality of non-state actors. Once again the Rous- seauist approach to the social contract is embedded in an international instrument dealing vvith environmental protection. Indeed, to build a 'real-j social partnership' Rousseau insisted on the necessity of preserving two main objects, 'liberty' and 'equality'.38
For the time being, the materialization of the 'environment global part..:, nership' at the international level has been subject to three predominant
International environrnent la1v 379 models each of which rcveals, once again, the linkages between the inter- national legal discourse on the environn1cnt and Rousseau's Social Contract.
J.1 The 'Mode! of Suroeillance'
The first model can be qualified as the 'model of surveillance' and apper- tains more to the system of representative democracy as theorized by Rous- seau. At this level, non-state actors participate in the 'sustainable development contract' by adhering or subscribing to rules and prir1ciples of treaty law or of customa1y international Iaw, that is rules and principles generatcd by statcs and international organizations. The perfect illustra- tion of such mode! of partnership is the UN Global Compact (2000). The Global Compact offers, inter alla, to non-state actors - and in particular to the business sector - a framework for the implementation of and com- pliance -with principles and rules of international environmental Iaw.
Three Principles of the Global Compact serve as a basis for committing·
non-state actors to the 'sustainable development con tract'. Principlc 7 states that: 'Businesses should support a precautionary approach to envir- onmental challenges.' Principle 8 reads as follows: 'Businesses should undertake initiatives to promote greater environmental responsibility.' Principle 9 demands that: 'Businesses encourage the developmcnt and dif- fusion of environmentally friendly technologies.'
What inserts the partnership established through the UN Global Compact into the 'model of surveillance' is not the structure of the Global Compact but its function. Indeed, the structure of the Global Compact allows for non-state actors to directly take part to the decision-making process. For instance, one of the main organs of the Global Compact, the Global Compact Board, comprises four constituency groups, i.e. business, civil society, labour and the United Nations. Nevertheless, since the func- tion of the Global Compact is in fine to ensure that non-state actors, particularly the private sector, abide by the principles and rules forn1u- lated by states and international organizations - Rousseau would call them the 'legislators' - the Global Compact is in reality sketched out as a part- nership under the mode! of surveillance. Resolution 60/215 Towards Global Partnerships (2006) of the UN General Assembly confirms this view when underlining the fact:
that cooperation between the United Nations and all relevant part- ncrs, including the privatc sector, shall seroe the purposes and principles ernbodied in the Charter of the [Jnited Nations and can make concrete contribu- tions to the realization of the Millennium Developrnent (rlJals and the other goal5 contained in the Millennium Declaration, as uJell as in the outcontes of major United Nations conferences and surnmits and their reviews. :19
(italics added)
380 M.M. Mbengue
In order to rnellow out the categorization of partnerships like th Global Compact under the 'model of surveillance', a rr1ove towards the recognition of the potential contri?ution of non-state actors to the fonn:
tion of customary international law \vould be needed. This would consist of taking into account the practice as well as the opinio juris of non-state actors who adhere to partnerships fostering compliance with the princi- ples and rules of international environmental law, in the process of identi- fying the customary status of those principles and rules. For exan1ple, since the Global (~ompact requires non-state actors to comply with the pre- cautionary approach/principle, the determination of its status under cus- tomary international law should consider the practice of non-state actors engaged in the (;.lobai (~ompact. This would allow non-state actors to con- tribute ex post facto to the formation of customary international envîron- mental law after those rules and principles have been exclusively enunciated by states and international organizations in treaties or resolu- tions. Such a suggestion goes, of course, beyond the formalistic approach to the sources of international law as reflected by Article 38 of the Statute of the International Court of Justice (ICJ) but allows for the 'sustainable development contract' to be rr1orc enshrined in a semi-democratic per- spective than a system of representative democracy a system that Rous- seau despised.
3.2 The 'model oftransparency'
I'he second model on which the 'environment global partnership' can be based on is governed by a semi-democracy rationale. It is qualified as the 'model of initiation' or the 'model of transparcncy'. Hcre, non-statc actors contribute primarily to the definition of the issues that should be dealt with at the international lcvcl, even if the last word in terms of policy ori- entation might often belong to states or to international organizations. A good exemplification of the second mode! is the global partnership put in place in the context of the Strategic Approach to International Chemicals Management (SAICM) (2006).
The SAI CM emphasizcs the importance of transparency and public par- ticipation of non-state actors in the partnership concerning the manage- ment of chemicals. It sets forth that the involvement of all 'Strategic Approach stakeholders' 'is seen as key to achieving the objectives of the Strategic Approach, as is a tran5parent and open implementation process and public participation in decision-making, fcaturing in particular a strengthened role for women'40 (italics added). The main stakeholders in the Strategic Approach are understood to be governments, regional economic integra- tion organizations, intergovernmental organizations, NGOs and indi- viduals învolved in the management of chemicals. Individual stakeholders includc consumers, disposers, employcrs, fa1mers, produccrs, regulators, researchers, suppliers, transporters and workers.41
International environment law 381 Following the line of thought envisaged in the SAICM, the Interna- tional Conference on Chemicals Management (ICCM) adopted as an AJlnex to its Resolution Il/ 4 on Emerging Policy Issues (2009), an instru- ment entitled 'Modalities' for considering emerging policy issues.42 fhrough that instrument, the JCCM underlined that:
[g]iven that the nature of ernerging policy issues will vary according to the persP,cctives and needs of different stakeholders, the process for nominating emerging policy issues should be an open one in u1hich any Strategic Approach stakeholder is.free to particijJate.4:'1
The Resolution containing the Modalities poses, as a prerequisite for an 'effective dialogue with ail Strategic Approach stakeholders', the nced for an 'open and transparent' partnership.
Now, the question is whether such a 'modcl of transparency' is able to root the 'environment global partnership' in a quasi-perfect system of democracy as foreseen by Rousseau, that is a system in which:
as it becomes necessa1y to issue new [lawsl, the necessity is universally seen. The first n1an to propose them merely says what all have already felt, and there is no question of factions or intrigues or eloquence in order to secure the passage into law of what every one has already decided to do, as soon as he is sure that the rcst will act with him.44 There is no absolute or evident answer to that question. However, should the 'environment global partnership' attain the degrec of legal solidarity and cohesivencss pleaded for by H .. ousseau in the Social Contract, it would then turn into an environm.ent global community. The praise for the emergence of that community has startcd within some fora. As an example, the IUCN World Conservation Congress in its Resolution 4.030 Prornoting transparency to achieve sustainablc fishe1ies (2008) calls for the 'global community' to 'attain transparency with regard to fishery activ- ities information and management decision-making processcs' .15
3.3 The 'model of mutuality'
Whether the environment global partnership will lead to a 'global com- munity' or not, the third model on which the said partncrship can be founded enables it to move in that direction. That model can be desig- nated as the 'rnodel of coordination' or the 'model of mutuality'. It is based on a system of direct democracy through which non-state actors benefit from the sanie power as su~jects of international law in the fürmu- lation and implementation of international environmental law and policy.
The best representation of the 'rr1odel of mutuality' is the public-private partnership.
382 MM Mbengue
Sevcral public-privatc partnerships h.ave arisen in the recent yea .
. . nm
the field of susta1nahle dcvelopment. fhey create a nexus of relatio between multilatcral organizations, governmcnts, civil society and m ns intercstingly, the private sector. For instance, the World Bank/wvW
~~~
ance for Forest Conservation and Sustainable Use, formed in 1998 · 1 good illustration of what a public-private partnership can be in its
si~;l:
forrn.
The Critical Ecosystcm Partnership Fund ( CEPF), founded in 2000 denotes that public-private partnerships may be govcrned by a mor~
complex nexus of non-state actors and sul:!jects of international Iaw. The CEPF is, indeed, a partnership betwcen Conservation International, the French Development Agency, the Global Environment Facility (GEF), the Govcrnment of.Japan, the John D. and Catherine T. MacArthur Founda- tion and the World Bank. This rather complex architecture is similar to the architecture of public-private partnerships established in the field of health protection at the international level such as the Global Alliance for Vaccines and lmmunization ( GAVI). 46 The GA VI partnership en compasses the governments of hoth devcloping and industrialized countries, as weU as the vaccine industries both of industrialized countries (e.g. Novartis Vaccines, GlaxoSrnithK.line) and developing countries (e.g. Bio Farm, Institut Pasteur Dakar, Serum Institute of India I,tcl), civil society organiza- tions, the Bill & Melinda Gales Foundation, the World Health Organiza- tion, UNICEF and the World Bank Group.
Nonetheless, public-private partnerships in the field of the environ- ment are mainly govcrnecl by inforn1al instruments, like Memoranda of Unclerstanding (MoUs) concluclecl between non-state actors, States and international organizations. The World Bank/"'WWF Alliance for Forest Conservation and Sustainable Use was cstablished through an MoU accompanied by an 'Operational Guidance' document. By contrast, the GAVI is, for example, govcrned by more fonnal instruments such as 'Stat- utes' and 'bylaws'.47
Despite the lack of formai agreements or instruments regulating pub- lic-private partnerships dealing with cnvironmental protection, practice reveals how non-state actors influence the flow and content of interna- tional environmental law within those partnerships. As an iilustration, in the course of the World Bank/"'WWF Alliance for Forest Conservation and Sustainable Use (the Alliance), a Forest c:ertification Assessment Guide (FCAG) has been adopted in order to de termine whether systems for cer- tifying the sustainable management of commercial forests meet the Alli- ance criteria.48 Noteworthy is the weight given in the FCAC~ to rules and standards elaborated by non-state actors among the criteria fixed by the Alliance. In particular, the Guide insists on the authority of the Interna-
tional Social and Environmental Accrcditation and Labelling Alliance (ISEAL Alliance) for deterrnining whether systems for certifying the sustainable management of commercial forests are adequate. The ISEAL
International environrnent lav.J 383 .Alliance is a global N(~() dealing with social as well as environmental standards. Its mission, as stated on its website, is 'to create a world where ecological sustainability and social justice are the normal conditions of business' .19
The prevalence of ISEAL Alliance standards in the World Bank/WWF .Alliance for F9rest reveals a change of paradigm for the 'sustainable devel- opment con tract'. Under both the 'model of surveillance' and the 'rnodel of initiation', the prirnacy is still given, at the present tirne, to states and international organizations in the formulation of rules of international environ mental law, as well as in the orientation of international environ- roental policy. Under the 'model of mutuality', rules and standards adopted by non-state actors can shape international environmental law and serve as the main referential within public-private partnerships.
However, at the same time, those nlles and standards forn1ulated by non- state actors may incorporate rules enunciated by subjects of international law in order to gain more legitimacy. The ISEAL Alliance Code of Good Practice for Setting Social and Environmcntal Standards, for instance, incorporates the Code of Good Practice for the Preparation, Adoption and Application of Standards annexed to the World Trade Organization's Technical Barriers to Trade (TBT) Agreement and this 'provides further guidance on applying [ISEAL] rules in the field of environmental and social standard setting' .50
The 'model of mutuality' is a blueprint for the integration of Rous- seau's approach to direct dernocracy in the 'sustainable development con- tract'. As described by Rousseau, 'the Sovereign may commit the charge of the government to the whole people or to the majority of the people, so that more citizens are magistrates than are mere private individuals. This form of government is called democracy'51 (italics in the original). Assum- ing that states (and by implication international organizations) are the 'Sovereigns' of the international legal order, the building of public-pri- vate partnerships through which the 'charge of the government' is con- ferred to non-statc actors sets up another bridge between the 'social contract' and the 'environmental pact'.
However, one shouJd not forget that, behind the democratic aim of the social contract, there is one fundamental objective: the possibility for indi- viduals to 'remain as free as before'.52 At this lcvel, the global environment partnership pursues, or rather should pursue, the same function as the social contract. Non-state actors sho11ld 'remain as free as before' joining the said partnership. This implies 'freedom' and not only 'autonomy' of non-state actors.
4 Conclusion: from 'autonomy' to 'self-regulation'
Autonomy means that non-state actors preserve their power of action in the field of environmental protection, but do not benefit from a power of
384 M.M. Mbengue
regulation, i.e. an autho1ity to shape international environrnental 1 -without the involvement of subjects of international law. One may
thi~~
about the 2009 ,Invcstor Statcmenl on the Urgem Nccd for a Global Agreement on Chmate Change, endorsed by 191 1nstltut1onal investor managing more than $13 ttillion, and produced by NGOs likc the
Institu~
tional lnvestors Croup on Climate Change (IIGCC), the Invcstor Network on Climatc Risk (INCR), the lnvestor Croup on Climate Change/ Australia and New Zcaland (IGCC Australia/New Zealand) in collaboration with a UN agency, the UNEF Finance Initiative (UNEF FI).53
Freedom requires more. It leads to 'self-regulation' by non-state actors.
Chapter 30 of Agenda 21 commends, for example, that '[b]usiness and industry should increase self regulation, guidcd by appropriate codes, char- ters and initiatives '54 (italics added). ITowever, as for the reshaping of their actions, non-state actors did not wait for the international community to engage themselves into a process of self-regulation. As an illustration, already in 1989, Ceres (Investors and Environmentalists for Sustainable Frosperity) adoptcd the Ceres Frinciples, a ten-point code of corporate environmental conduct to be publicly endorscd by companies as part of environmental ethics.55 The Ceres Principles cover issues such as protec- tion of the biosphere, sustainable use of natural resources, energy conser- vation, risk reduction and informing the public. More intercstingly is the development of systerns o_f self-regulation. Within thosc systems, non-state actors rely almost exclusively on standards and rules elaborated by other non-state actors. The Rainforest Alliance gives a perl'ect illustration of a system of self-rcgulation. That Alliance promotes standards for sustainabil- ity that conserve wildlife and wildlands and ensure the wcll-being of workers and their communities. The standards used for the system of cer- tification of farms and forestry cnterprises are those solcly adopted by one network of NGOs, the Sustainable Agriculture Network (SAN) and one NGO, the Forest Stewardship Council (FSC). Systems of self-regulation appcar as sort of 'self-contained rcgimes' independent from the nexus of international environmental law as defined by statcs and international organizations.
Besides these aspects, self-regulation by non-state actors highlights some new trends in the 'sustainable development con tract'. Two of those trends deserve particular attention. The first one relates to the emergence of a global administrative law of sustainability formulated by non-state actors. This factor is a direct consequence of the proliferation and duplication of net- works of non-state actors in the field of sustainablc developrnent. For instance, when a non-state actor takes part in different networks (e.g.
McDonalds Corporation is both a member of Ceres and of Business for Social Responsibility (BSR)), there is a chance that the rules and princi- ples which are enunciated in a particular network might be exported to other networks. Attention should then be paid to preventing one category of non-state actors from having more weight than othet categories of
International environrnent lau1 385 non-state actors in the franling of .the international discourse on sustaina- ble development because of their prcdominant status in the networks of non-state actors. Such .a concern was cchoed by the UN General Assembly in its Resolution 60/215 'Towards Global Partnerships' where it recallcd the nccessity for the lJnited Nations to preserve its 'independence and neutrality' when entering into partnerships vyith non-state actors.56
The second trend refiects the risk
f!f
fragmentation of international environ- rnental law due to self-regulation by non-state actors. Fragmentation of international law is traditionally perceived as resulting from the action of subjects of international law. Neverthcless, the growth in self-regulation by non-state actors leads to the same risk of fragmentation within specific areas of international law. A similar debate is taking place in the area of food safety and health where private standards are competing with inter- national standards elaboratcd by inter-state institutions.57 For example, the International Committce of the World Organization for Animal Health (OIE) notcd at its 76th General Session (2008) that 'commercial stand- ards, established by private companies without direct involvement of gov- ernments, are increasingly coming into play in international trade, and are of great concern for a majority of OIE Members'.58 The Committec adopted a specific Resolution in which it recalled that the 'World Trade Organization, under the Agreement on the Application of Sanitary and Phytosanitary Measures, formally recogniscs the OIE as the reference organisation responsible for establishing international standards relating to animal diseases, including zoonotic diseases' and that:the OIEs current 172 Memhers and the international community at large recognise the ()IE as the organisation responsible for setting standards for animal disease surveillance and animal health and welfare, with the o~jective of providing a scientific basis for safe inter- national trade in animals and animal products and improving animal health and welfare worldwide.59
V\!hich lessons can be drawn fro1n such positions when it cornes to the relationship between, on one band, standards, rulcs and principles formu- lated by non-state actors and, on the other hand, standards, rules and principles framed by states and international organizations in the area of sustainable development? Is there a hierarchy to be acknowledged? ()r should hoth sets of legal rules find application and coexist? States and international organizations themseJves do not give any clear indication as to the answer to that inquiry. If the United States made clear during the last IUCN World Conservation Congress (2008)60 that some issues like climate change and human rights were to be discussed in other interna- tional fora than the IUCN, what should be thought of the 2005 Food and Agriculture Organization (FAO) Guidclincs for the Ecolabelling of Fish and Fishery Products from Marine Capture Fisheries, which consider that
386 M.M. Mbeng·ue
the ISEAL Alliance Code of Good Practice for Setting Social and Envir mental Standards can serve as the normative basis for standard deveIOn~
ment as would the WTO TBT Code of Good Practice for the
Preparati~P
Adoption and Application of Standards?"1 Maybe a balanced soluti n, would be for statcs and international organizations to recall that the
ru~n
embodied in treaties and customary international law must be the bene~~
marks for non-statc actors whcn dealing with issues pertaining to sustain ble development. In other words, regulation issued by non-state actors is a~
complement and nota substitute to inter-state regulation. a 1'hcse trends and challenges for the 'sustainable development contracf were not necessarily anticipated by states and international organizations.
The latter have rather prompted and encouraged the tise and develop- ment of netw"orks of non-state actors in the field of sustainable develop-.
inent because 'human bcings' and not states are primarily at the 'centre of concerns for sustainable development'. They wcre surely not expecting the strong wind of self-regulation and its potential consequences on the 'unity' and coherence of international environmental law, as well as on the redistribution of power among non-state actors. But as Rousseau remarkably recallcd, quoting Montesquieu, 'the rulers establish institu- tions, and aftet\.vards the institutions mould the rulers'.62 Non-state actors have fostered the development of institutions orientated towards the achievement of an environment global partnership. Those institutions, more than ever, have moulded the behaviour of non-state actors with respect to the formulation, implementation and development of interna- tional environmental law.
Notes
l JJ. Rousseau, The Social Contract and Discourses (translated with an introduction by G.D.H. Cole), New York/London: E.P. Dutlon Company Inc.,J.M Dent and Sons Liinited, 1923, p. 13.
2 Ibid., p. 14.
3 M. Reinond-Gouilloud, Du droit de détruire: essai sur le droit de l'environnement, Paris: PUF, 1989.
4 Declaration of the llnited Nations Conference on the lluman Environ ment ( 1972), Pre- an1ble, para. l. The textis reproduced in M.R. Molitor (ed.), lntemationalEnvir- onmental Lœw: Pri·mary Materials, Deventer, Bost.on, .MA: Kluwer Law and Taxat.ion Publishers, 1991, p. 79.
5 A slmilar rationalc was endorsed by the ICJ in the Gabcikovo--Nagymaros case where the Court declared that, ' [ t] hroughout the ages, mankind has, for eco- nomic and ot.her reasons, constantly interfered with nature. In the past, this was often clone without consideration of the cffects upon the environment':
Gabcikovo-1Vagymaros Project (Hungary/Slovakia),judgment, (1997) ICJ Reports 78, para. 140.
6 Declarat-ion of the United Nations Conference on the Hum.an E'nvironment ( 1972), Prin- cip le L 1'he text îs reproduced in Molitor (1991), supra Note 4, p. 80.
7 Rousseau (1923), supra Note 1, p. 18.
8 Ibid., p. 18.
International environment law 387 9 Declaration of the United i.Vations Conference on the Iluman .E.:nvironment ( 1972), Prin-
ciple 2. The text is rcproduced in Molitor (1991), supra Note 4, p. SL
1 O [Jnited Nations General Assembl)•: &solution 7 (XXXVII) World Charter for Nature, Prea1nble. 'fhc text is reproduced in Molitor (1991), supra Note 4, p. 9.
JI Ibid.
12 Rousseau (1923), supra Note l, p. 35.
13 [Jniled Nations General Assetnbly: ,&solution 7 (XXXVII) World Charter for Nature, Preamble. 'fhe text is reproducCd in Molitor (1991), supra Note 4, p. 9.
14 Rousseau (1923), supra Note 1, p. 42.
15 World Conservation Strategy. Living Resource Conservation for Sustainabl.e Develop- ment, IUCN-UNEP-WWF, 1980, onlîne, availablc at: http://data.iucn.org/dbtw- wpd/edocs/WCS-004.pdf (accessed 10 August 2010).
16 Declaration of the {Jnited Nations Conference on the !Iuman Environment ( 1972), Prin- ciple 4. The text is reproduced in Molitor (1991), supra Note 4, p. SI.
17 United Nations General Assembly: &solution 7 (XXXVII) World Charter for Nature, para. 24. The text is rcproduced in Molitor (1991), supra Note 4, p. 12.
18 World Cornmission on Environn1ent and Development, Our Co,mrnon Future.
F'rom One E'arth to One World, 1987, para. 4, online, availablc at http://www.un- documcnts.net./ocf-ov.htrn (accesscd 10 August 2010).
19 Ibid., para. 107.
20 World Conservation ,)'trategy. Living Resource Conservation for Sustainabl.e Develop- tnent, supra Note 15, p. l.
21 See M.M. Mbenguc, 'Les systèmes d'alerte dans la gestion du risque relatif au vivant', in E. Brosset ( ed.), Le rôl.e des acteurs privés en droit international el européen du vivant, Paris: La Documentation françaisc/Bruylant, 2009, pp. 111-38.
22 V\TWF, Morp;es Manifesta, 1961, online, available at: http://asset<;.panda.org/
downloads/ morgesmanifesto.pdf (accessed l 0 August 2010).
23 Greenpeace, Greenpeace Declaration of Interdependence, 1976, online, available at:
h ttp:/ /www.greenpeace.org/intcrnational/ en/ about/ deep-green/ deep-green- special-1 / (accessed 10 August 2010).
24 Gabickovo-Nagym,aros Project, supra Note 5.
25 lJnited Nations Conferencc on Environn1cnt and Develop1nent, Declaration on Environ'ment andDeuelopment, Rio, 1992, Principle 1, onlinc, available at: http://
\'.'Ww.unep.org/Documents.Multilingual/Default.asp?doctunentid==-78&articlcid
=1163(accessed10August2010).
26 Ibid., Principle 10.
27 See also Declaraûon of the United Nations Con:ference on the riuman Environment (1972), Prearnble, para. 7:
To achievc this environn1ental goal will demand the accept.ance of respons- ibility by citizens and communities and by ent.erprîses and institutions at every level, ail sharing equitably in con1mon efforts. Individuals in all walks of life as wcll as organizations in rnany fields, by thcir values and the sum of their actions, will shape the world environment of the future.
(italics added) The text is rcproduced in Molitor (1991), supra Note 4, p. 81.
28 Declaration on Environment and Development, Principle 27, supra Note 25.
29 United Nations General Assembly: &solution 7 (XXXVII) World Charter for Nature, para. 21. crhe text is reproduced in Molitor (1991), supra Note 4, p. li.
30 Ibid., p. 11.
31 Caring for the Earth: A Strategy for Sustainabl.e Living~ IUCN-UNEP-WWF, Gland, 1991, online, available at: http://coombs.anu.edu.au/~vcrn/caring/caring.
html (accessed 10 August 2010).
388 M.M. Mbengue 32 Ibid., p. 3.
33 Ibid., p. 77.
34 Declaration on l!..'nvironment and Development, Prcamble, supra Note 25.
35 N.A. Robinson ( ed.), Agenda 21: Earlh 's Action Plan, IUCN Envîron1nental Policy and Law Paper No. 27, (), New York, London, llotnc: Oceana Publications
!ne., 1993, pp. 492-545. '
36 Agenda 21, Chapter 23.4. The tcxt is reproduced in Robinson (1993), ibid
p.m. ,
37 Agenda 21, Chapter 23.3. 'fhe text is rcproduced in Robinson (1993), ibid,, p. 492.
38 Rousseau (1923), supra Note 1, p. 45.
39 United Nations, General A'isembly, A/RES/60/215 'Towards Global Partnerships, 22 December 2005, Preamble, onlinc, available at: http://www.un.org/Depts/
<lhl/resguide/r60.htm (accessed 10 August 2010).
40 Strategfr Approach to International Chemicals Managemen~ 'Overarching Policy Strategy', SAICM texts and resolutions of the International Confcrence on Chemicals Management, UNEP, 2006, p. 10, para. 2, onlinc, availablc at:
http://www.saicm.org/ documents/ saicm %20tcxts/SAI CM_publication_EN G.
pdf (acccssed 10 August 2010).
41 Ibid., p. 2.
42 Second Session of the International Conferencc on Chenücals Managen1ent (1CCM2), &solution II/4 on Emerging I)olicy Issues, Annex, 'Modalities for consid- ering e1nerging policy issues', 2009, online, available at: http://www.saicm.org/
indcx.php?content=meeting&mid=42&def=l&rnenuid=9 (accessed 10 August 2010).
43 Ibid., para. 1.
44 Rousseau (1923), supra Note 1, p. 90.
45 llJCN, &solutions and Recotnrnendations, &solution 4.030 'l)romoting transparency to achieve sustainabl,e fisheries', World Conservation Congress, Barcelona, 5-14 October 2008, Gland, 2009, p. 32, online, availablc at: http://data.iucn.org/
dbtw-wpd/cdocs/WCC-4th-005.pdf (acccssed 10 August 2010).
46 On the public-private partnerships in the field of health, see M.M. Mbengue, 'Health and International Cooperation', in R. Wolfn1n1 (cd.), The Max Planck Encyclopedia of Public International Law, Oxford: Oxford University Press, forth- coming 201 J, online, available at: http://www.mpepil.com (accessed 20 January 2011).
47 The information on the (;AVI is online, available at: http://www.gavialliance.
org/index.php (accesscd 10 August 2010).
48 World Bank/WWF Global Forest Alliance, Forest Certification Assessment Guide: A Framework for Assessing Credible Forest Certification System/Schemes, Washington, DC, July 2006, online, available at: http://assets.panda.org/downloads/fcagfinal.
pdf (accc."ed 10 August 2010)
49 See online, availablc at: http://www.iscalalliance.org/ content/mission ( accessed 10 August 20 l 0).
50 World Bank/WWF Global Forest Alliance, fàrest Certification Assessment Guide, supra Note 48, p. 6.
51 Rousseau (1923), supra Note 1, p. 56.
52 Rousseau (1923), supra Note l, p. 14.
53 Investor Statement on the Urgent Need for a Global Agreement on Cfrmate Change, 2009, online, available at: http://www.incr.com/investorsuinrnit (accessed 10 August 2010).
54 Agenda 21, Chapter 30. The text is reproduced in Robinson (1993), supra Note 35, p. 508.
International environrnent law 389 55 Ceres is a North Anierican network of invcstors, environmcntal organîzations and other public intcrest groups working wîth companies and investors to address sustainability challenges.
56 Towards GlobalPartnerships, supra Note 39, para. 7.
57 See M.M. Mbengue, 'The Rise of Privatc Voluntary Standards in International Trade: A Brief Survcy of Current. Devclopment<>', Derecho del Co·mercio Internac- ionalDeCITA, (2009), vol. li, pp. 422-8.
58 See, OIE, Resolut.ion XXXII, Implications of priuate standards in international trade of ani·maü and anitnal products, 76th Gcncral Session, 25-30 May 2008, online, available at: http://www.oie.int/ downld/SG/2008/ A_RES0_2008_webpub.pdf (accesscd IO August 2010).
59 Ibid.
60 IUCN, &solutions and Recommendations, United States Statement, World Conserva- tion Congress, supra Note 15.
61 FAO Guidelines for the E'colahe!Ling of Fish and Fishery Products /rom Marine Capture l'ïsheries, Ro1na, 2005, para. 43, online, available at: http://www.fao.org/
docrep/008/a0116t/a0116t00.htrn (accessed 10 August 2010).
62 Rousseau (1923), supra Note l, p. 35.
