Transnational environmental regulation and the normativisation of global environmental governance standards. The promise of order from chaos?

Author:Owen McIntyre
Position:School of Law, University College Cork, Cork, Ireland
Pages:92-112
Transnational environmental
regulation and the normativisation
of global environmental
governance standards
The promise of order from chaos?
Owen McIntyre
School of Law, University College Cork, Cork, Ireland
Abstract
Purpose This paper aims to propose a legal characterisation of the recent proliferation, across the
broad range of global environmental good governance initiatives and practices, of a diverse mix of
regulatory environmental standards, many of which are informal in origin insofar as they are neither
State-driven nor State-centred. It examines the novel conception of legal order posited by Twinning and
Walker, to determine whether it encompasses the myriad rules and standards emerging in the eld of
environmental governance.
Design/methodology/approach Surveying the rapidly developing montage of formal and informal
rules and standards associated with global environmental governance, this paper uses the analytical
framework provided by scholars of global administrative lawto reconcile the complementary roles of
formal and informal sources of legalrules, and to explain their increasing convergence around a set of good
governanceprinciples and standards commonly used in nationaladministrative law systems.
Findings The paper concludes that the emerging regulatory framework for global environmental
governance comprises an almost endless variety of forms of novel transnational regulatory activity,
many succeeding in having a profound impact on environmental outcomes. Yet all appear to be founded
uponandguidedbyadiscretesetofgoodgovernance standards and principles of an administrative law
character including transparency, participation, legality, rationality, proportionality, reviewability
and accountability which serve to enhance the credibility and legitimacy of each regulatory
mechanism.
Research limitations/implications It appears that new and informal forms of environmental
regulatory activity enjoy a complex symbiotic relationship with formal systems of environmental law. In
addition to lling lacunae and addressing deciencies in such systems, owing, for example, to the
transnationalcharacter of much of todays trade, informal regulatorysystems are increasingly inuencing the
evolution of formal legal frameworks and, in so doing, are improving the responsiveness, exibility and
accessibilityof this new environmental legal order.
Practical implications At a practical level, viewing the wide range of new forms of environmental
regulatory activitythrough the prism of global administrative law (or global environmentallaw) brings unity
to this diverseeld and, in so doing, makes available to all the actors involved in this community of practice
a wealth of established practiceand principle which can help to inform the elaborationand interpretation of
rules and standards of environmental governance through a process of cross fertilisation of ideas and
approaches.
Social implications Recognition of the legal character and signicant roleof the wide range of novel
forms of environmental regulatory activity lends further credibility and legitimacy to such mechanisms,
which often comprise the onlytruly relevant and applicable environmental controls or trulyaccessible mode
of redress and accountability. The challenges of realising sustainability are immense and, as one leading
commentatorhas noted, all normative means are useful to this end.
Originality/value This paper attempts to characterise the legal natureof the range of novel forms of
environmental regulationwhich (can) play such an important role inmodifying the behaviour of many of the
JPPEL
10,2
92
Received25 January 2018
Revised6 May 2018
Accepted9 May 2018
Journalof Property, Planning and
EnvironmentalLaw
Vol.10 No. 2, 2018
pp. 92-112
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-01-2018-0003
The current issue and full text archive of this journal is available on Emerald Insight at:
www.emeraldinsight.com/2514-9407.htm
key environmental actors globally actors who have largely been unaffected by more formal legal
frameworks. For this reason, it seeks to encourage a fundamental shift in the way we think about
environmentallaw and legal authority.
Keywords Standards, Globalization, Environmental governance, Global administrative law,
Informal law, Non-State actors
Paper type Research paper
Introduction
To illustrate the potential signicanceof the various non-traditional forms of environmental
(and social) codes and standards which have proliferated in recent years, many of them
voluntary and informal in nature, it is useful to consider two unrelated developments in
early 2016 affecting the global palm oil industry. Palm oil is a highly lucrative commodity
used in approximately 40-50 per cent of modern household products, ranging from
confectionary and prepared foods to biofuels, cosmetics and cleaning agents. The palm oil
industry has a notoriouslypoor environmental and social record and, as oil palm is grown in
tropical climates, it has been particularly linked to large-scale rainforest clearance, habitat
loss and biodiversity degradation,infamously impacting upon orangutan populationsin the
wild, as well as to indigenousrights abuses[1].
Firstly, in March 2016, Unilever, one of the worlds leading consumer goods rms,
cancelled its contracts with IOI Group, a Malaysia-based palm oil producer and trader,
which had been suspended a few days previously by the Roundtable on Sustainable Palm
Oil (RSPO) after a year-long investigation found that the company had contributed to
deforestation in West Kalimantan, Indonesia[2]. Established in 2004, the RSPO is a not-for-
prot organisation which unitesall stakeholders in the palm oil industry, including palm oil
producers, processors or traders, consumer goods manufacturers, retailers, banks and
investors and environmentaland social NGOs, with the aim of environmentally and socially
transforming the palm oil industry[3]. Unilever,which annually purchases nearly 3 per cent
of total global palm oil production, is a founding member of the RSPO, and its decision to
suspend IOI Groups contracts resulted from the suppliers breach of Unilevers2016
Sustainable Palm Oil Policy[4], as established by the RSPO investigation. Consistent with
the commonly accepted precepts of good governance, the IOI Group has been offered an
opportunity to appeal Unileversdecision as well as to develop proposals on how to address
and remediate the problems found and to demonstrate its commitment to sustainable palm
oil development meetingthe highest environmental and social standards.
Secondly, in May 2016, the Ofce of the Compliance Advisor Ombudsman (CAO), the
independent accountability mechanism of the International Finance Corporation (IFC),
the private-sector lending arm of the World Bank Group, published the results of a
compliance investigationinto IFCs investments in Delta Wilmar Ltd., a palm oil renery in
Ukraine. Delta Wilmar is owned by Wilmar International, a Singapore-based company
which describes itself as Asias leading agribusiness group[5]. The complaint that gave
rise to this investigation was brought by local communities, once again in Indonesia, and
related to unresolvedland disputes with a subsidiary company of WilmarInternational. The
CAO made a nding non-compliance in respect to IFCs obligation to supervise the
environmental and social risks associatedwith the renerys palm oil supply chain[6]. Such
a decision is likely to havea signicant impact upon the company, and others in the palm oil
industry, either owing to reputational damage in the marketplace, by restricting access to
multilateral development bank(MDB) project nance, or as a learning experience for senior
executives chargedwith environmental and social performance.
Promise of
order from
chaos
93

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