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The Use of ‘Macro’ Legal Analysis in the Understanding and Development of Global Environmental Governance

Published online by Cambridge University Press:  07 November 2016

Stephen J. Turner
Stephen J. Turner*
Affiliation:
Lincoln University, Law School, Lincoln (United Kingdom). Email: stturner@lincoln.ac.uk.
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Abstract

This article examines the manner in which ‘macro’ legal analysis can potentially assist in overcoming some of the issues that are faced in the understanding and development of global environmental governance (GEG). It argues that the analysis of law through separate and distinct disciplines – such as environmental law, trade law, corporate law, and human rights law – results in what this article refers to as ‘micro’ legal analysis. As such, it contends that this can have the effect of creating obstacles in the development of coherent and effective legal and policy choices related to the protection of the environment. It illustrates these arguments with examples of practical problems that have arisen from the separation of legal issues in practice and provides the theoretical underpinnings, based on the critique of international lawyers, for the application of ‘macro’ legal analysis. In other words, it argues for a form of analysis that would consider the entire range of relevant legal disciplines in a unitary process. It then provides a methodology for the development and application of ‘macro’ legal analysis in relation to environmental issues. Finally, it considers the potential that this approach could have within the field of GEG and comments on the implications that it could have for the way in which lawyers are trained in the future.

Keywords

Global environmental governanceMacro legal analysisMicro legal analysisInternational environmental lawNon-state actorsLegal training

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Type
Articles
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Transnational Environmental Law , Volume 6 , Issue 2 , July 2017 , pp. 237 - 257
Copyright
© Cambridge University Press 2016 

1. INTRODUCTION

There has long been concern over progress made in the field of international environmental law (IEL)Footnote 1 and global environmental governance (GEG) generally.Footnote 2 As the international community examines this progress, there are questions relating to the adequacy of the types of legal analysis that are used to understand the way in which law and governance can affect outcomes for the environment. These questions are important, as the form of legal analysis that is carried out is crucial for the process of understanding the strengths and weaknesses of existing approaches to law and governance, and can play a decisive part in the way in which GEG is developed in the future.

When considering GEG, lawyers are faced with a wide range of issues to contend with. Naturally there is considerable focus upon the potential and limitations of IEL. However, by the same token, there has been an increased awareness of the effects that other areas of law have upon the environment; for example, company law, trade law, banking law, investment law, human rights law, and constitutional law can all have significant, albeit indirect, impacts upon it.Footnote 3

At the same time, there has been a renewed focus on the fragmented manner in which institutions have developed at the international level and the manner in which they sometimes create, or respond to, competing priorities within the international community.Footnote 4 Additionally, the future of existing international institutions that are charged with administering or developing environmental law treaties has been questioned. For example, the future of the newly founded United Nations Environment Assembly (UNEA) raises significant issues related to the role and authority that it will ultimately assume.Footnote 5 Alongside these considerations, some sections of civil society have been active in developing alternative methods of governance that include non-legally binding environmental controls, such as certification schemes and quality standards.Footnote 6

This fluid range of what are sometimes disconnected factors means that it can be difficult to define with precision the constituent elements of ‘global environmental governance’. Consequently, it can be hard to identify effective and efficient strategies for reform. Among other challenges, lawyers working in this field face the task of creating coherent and balanced strategies for the development of the legal and institutional architecture that is required to meet the exigencies of environmental governance in the future. However, the diverse range of factors that are integral to GEG, as identified above, raises questions about the type of legal examination that has sufficient breadth and clarity to produce such strategies.

Accordingly, this article enquires into the type of legal analysis that is required both to evaluate existing GEG and to develop coherent strategies for its further development. It argues that existing approaches to legal analysis in the field tend to correspond with the type of legal analysis prevalent in other fields of legal scholarship, which are usually characterized by the examination of very specific aspects of law, and which this article refers to as ‘micro’ legal analysis. This approach often provides only part of the picture where GEG is concerned. This article therefore considers the merits of using ‘macro’ legal analysis to complement existing approaches, in particular to assist in providing a broader, synoptic understanding of the law, institutions and initiatives that can be said to constitute GEG. It argues that such an approach would aid in providing coherent options for reform by taking into account the multifarious ranges of law and quasi-legal initiatives that can affect outcomes for the environment.

The article is structured as follows. It prefaces the central analysis with a discussion of the use of the terms ‘global environmental governance’, ‘micro’ legal analysis and ‘macro’ legal analysis. From that foundation it summarizes the ways in which both ‘state’ and ‘non-state’ actors have generally compartmentalized the component parts of GEG, and how this corresponds with the approach that lawyers often adopt in their analyses of the issues. As such, it considers the potential negative effects of adopting an analysis that does not take into account all of the relevant legal and quasi-legal components that can affect the outcomes of GEG. This leads to the central tenet of the article, which provides theoretical arguments in support of the development of ‘macro’ legal analysis in this context, and outlines a methodology for its use. The article concludes by commenting on some of the challenges related to the use of ‘macro’ legal analysis in the field of GEG and the potential implications it has for training lawyers in the future.

2. USE OF TERMINOLOGY

The term ‘global environmental governance’ is very widely used and has been coopted to serve a variety of purposes. Conversely, the terms ‘macro’ and ‘micro’ legal analysis are very rarely used within the context of environmental law or GEG. This section will consider these terms in turn to clarify their meaning and the manner in which they are used in this article.

2.1. Global Environmental Governance

The term ‘governance’ is thought to be derived from the Greek verb kubernan, which can be translated as ‘pilot’, ‘steer’ or ‘direct’, and which was transposed into Latin as gubernare.Footnote 7 Part of the complexity of the term can be inferred from the way in which it has been used since the 1990s. For example, it is used in different academic disciplines including economics,Footnote 8 political science,Footnote 9 business and finance,Footnote 10 as well as law.Footnote 11 Moreover, it is also used to describe certain forms of regulatory oversight within industry; thus the terms ‘corporate’Footnote 12 and ‘financial’Footnote 13 governance have become part of common parlance within the commercial world.

In the field of environmental protection, the terms ‘environmental governance’ and ‘global environmental governance’ are used for a variety of purposes, which also leads to ambiguity.Footnote 14 The term ‘global environmental governance’ has been used to describe the different regimes of IEL along with the functioning of associated international institutions including those of the United Nations (UN).Footnote 15 However, it has also been used in a broader sense to encompass the analysis of transnational regimesFootnote 16 which include non-legally binding rules designed by non-state actors alone, or in partnership with state actors, with the purpose of achieving specific standards of environmental protection.Footnote 17

With regard to the review of existing structures, the term ‘global environmental governance’ is often used when discussing potential reform of UN institutions.Footnote 18 As such, it has been viewed as a term linked with change and one that can be used by policy makers when considering potential solutions for global environmental problems.Footnote 19 Levi-Faur states that the concept of governance can be approached as a structure, a process, a mechanism, a strategy, and possibly in other ways too;Footnote 20 therefore, it is extremely difficult to provide a single definition.Footnote 21 Additionally, it is now common for the rules and institutional arrangements that relate to specific sectors of environmental protection to be discussed in terms of ‘governance’: for example, the term is now commonly prefixed by the words ‘earth’,Footnote 22 ‘forest’,Footnote 23 ‘climate’,Footnote 24 ‘groundwater’,Footnote 25 ‘fisheries’,Footnote 26 ‘biodiversity’,Footnote 27 ‘energy’,Footnote 28 and ‘ocean’,Footnote 29 among others.

This article does not put forward a single definition of GEG but provides an explanation of the way in which it is used for the purposes of this discussion. As such, it uses the term in its broadest sense to embrace three components. Primarily, it refers to the state-centred systems of national and international law that relate directly to environmental protection – that is, environmental law and IEL respectively. Secondarily, it refers to those state-centred systems of national and international law which are not directed primarily towards the protection of the environment but which nonetheless have an impact upon it. Finally, it includes non-legally binding regulatory initiatives by non-state actors (sometimes in partnership with state actors) that develop norms and practices with a view to protecting the environment, with which individuals, businesses and communities may consider that they are obliged to comply for a variety of reasons.

2.2. ‘Micro’ and ‘Macro’ Legal Analysis

There have been only scant references to the terms ‘micro’ and ‘macro’ legal (or level) analysis in the context of environmental law and GEG. The few references that are found tend to be highly context-specific and do not correspond with an overall theory or with the type of approach that is discussed in this article. For example, Abraham refers to ‘macro’ legal analysis in the context of a specific report relating to environmental jurisprudence in India.Footnote 30 Fisher, writing in relation to water governance, refers to ‘macro’ legal systems as the ‘statements of value, objective, outcome, or principles’,Footnote 31 on the one hand, and ‘micro’ legal systems, as the ‘standards for individual conduct, behaviour or decision-making’,Footnote 32 on the other.

References to ‘micro’ and ‘macro’ forms of legal analysis appear to be most common in comparative legal research. In that context, the comparison of entire legal systems (‘macro’ level analysis or ‘macro’ comparison) on the one hand can be distinguished from the comparison of aspects of legal systems, such as individual pieces of legislation (‘micro’ level analysis or ‘micro’ comparison) on the other.Footnote 33 The terms have also been used in the context of the analysis of legal cultures, where the ‘micro’ level might refer to a local court or prosecutor’s office and the ‘macro’ level to common law traditions as applied in different nations.Footnote 34 Another example relates to international investment law, where it has been used to denote the distinction between systemic ‘micro’ and ‘macro’ legal cultural issues.Footnote 35 What is clear is that these terms have helped linguistically to relativize the scope and depth of legal analysis in relation to a range of subject areas. As such, they have proven to be useful and highly adaptable.

For the comparative legal scholar, ‘macro’ legal analysis often involves discovering and analyzing relationships between laws in different jurisdictions.Footnote 36 However, this article uses the term ‘macro’ legal analysis to describe the process of discovering and analyzing the full range of laws, legal institutions and quasi-legal initiatives that have an influence upon environmental outcomes, with a view to understanding those components in their entirety (see Section 4 below). Therefore, in this context a distinction exists between types of analysis that focus on individual legal regimes (‘micro’ legal analysis) and those which take into account the aggregate of the legal and quasi-legal components of GEG (‘macro’ legal analysis).

This article argues that as ‘macro’ legal analysis entails the consideration of a range of different areas of law and associated institutions, it assists in building a broader understanding of the causes of environmental degradation from a legal standpoint. As such, it has the potential to place a fresh perspective on some of the ‘root causes’ or ‘drivers’ of environmental degradation that in themselves are ensconced within legal regimes.Footnote 37 By studying the effect of a variety of legal regimes operating in unison it is possible to understand the ways in which they affect, support, or contradict each other and, in some instances, simply cancel each other out. To explain the backdrop against which this argument must be appreciated, the next section discusses why established approaches to our understanding of the law are based largely on ‘micro’ legal analyses and how that colours our understanding of GEG and its potential development.

3. THE COMPARTMENTALIZATION OF LAW AND LEGAL ANALYSIS

This section questions the compartmentalization that has occurred within legal practice, national law, public international law, IEL and GEG generally. It identifies the relationship between legal compartmentalization and legal analysis and questions some of the prevailing assumptions in relation to the way that we understand, consider and develop legal analysis as an input towards strategies for the future of GEG.

Firstly, at the national level, law is compartmentalized into different categories such as property law, corporate law, tax law, constitutional law, and criminal law. This subject-specific approach is also reflected in the specialized nature of the courts and institutions that handle legal issues in both the public and private law arenas. Although there was a time when legal practitioners could be expected to have the skills and capacity to deal with a wide variety of types of legal problem,Footnote 38 the current culture demands that they specialize.Footnote 39 This has proved effective as it allows lawyers to focus on specific areas of law to meet the individual needs of their clients. It could be said that Ricardo’s theory of comparative advantage is borne out in the legal sector.Footnote 40

Secondly, the legal compartmentalization that has occurred at the national level is mirrored in public international law, which is not only treated as a discipline separate from national law, but is made up of numerous compartmentalized sub-disciplines.Footnote 41 It has evolved through various institutions being tasked to achieve discrete goals relating to aspects of concern to the international community. As Jouannet states:

[these sub-disciplines exist] to achieve specific economic and social objectives designed to satisfy isolated or restricted needs and to accomplish precise material results; so much so that the international legal order naturally tends to hive off into subsystems so as to better regulate the specific characteristics of the various social and economic activities that are now ascribed to it.Footnote 42

Examples of sub-disciplines include the World Trade Organization (WTO) with the objective of developing ‘free trade’, the UN Environment Programme (UNEP) and the UNEA charged with coordinating the work of the international community in relation to the environment, and the UN Development Programme (UNDP), which primarily has the objective of assisting with coordination of the social and economic development of developing countries. As each of these branches of international governance has developed its own specific objectives and subsets of international law, commentators have made the point that this sometimes leads to competing priorities between international institutions.Footnote 43

A good example of the manner in which this can affect GEG is found in the General Agreement on Tariffs and Trade (GATT),Footnote 44 which includes provisions designed to discourage protectionism through trade barriers. Potentially, environmental laws can amount to trade barriers and therefore under the GATT states are required to ensure that any environmental measures do not fall foul of the ‘trade disciplines’.Footnote 45 However, while the GATT is designed to achieve the objective of trade liberalization, it has not been designed to concurrently ensure that specific environmental standards are achieved and maintained by its members. In his 1994 book Greening the GATT, Daniel Esty made the following observation:

Fundamentally, the GATT is asymmetrical; its rules only permit a decision that particular environmental standards ‘excessively’ intrude on trade prerogatives. The GATT provides no comparable process for declaring a nation’s economic activities (and related trade) to be environmentally ‘inadequate’ – and therefore an unfair basis for trade. Thus, the GATT fails to satisfactorily accommodate environmental protection in defining the ground rules for trade.Footnote 46

While, clearly, efforts have been made by the WTO to take environmental issues into account over the last two decades, the overall objectives of the regime have not changed and this has fuelled continued concern.Footnote 47

Similarly, in the field of international investment law, agreements that relate, inter alia, to taxes and royalty payments or labour legislation, and which can encompass provisions related to environmental regulation,Footnote 48 have led to concerns that they prioritize the interests of investors over those of host states or environmental protection.Footnote 49 This is arguably symptomatic of the ‘competition’ of priorities built into the architecture of existing international law and GEG. As Gupta put it, ‘[t]he incoherence in the policy world reflects the conflicting visions, paradigms, norms and policy instruments chosen by society to deal with specific problems’.Footnote 50

Thirdly, the compartmentalization which is sometimes known as ‘fragmentation’, and which is evident within public international law as a whole, also exists within the different subsets of international law and is clearly evident within IEL. It manifests itself in the large number of individual IEL treaty regimes and has led to concern over ‘treaty congestion’.Footnote 51 In addition, individual treaty regimes can overlap or conflict not only with each other but also with other branches of public international law.Footnote 52 For example, the International Treaty on Plant and Genetic Resources for Food and Agriculture (ITPGRFA),Footnote 53 the Convention on Biological Diversity (CBD),Footnote 54 and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)Footnote 55 contain a number of overlapping and inconsistent provisions related to the intellectual property rights associated with genetic resources.Footnote 56 This situation can create concern, confusion and uncertainty, quite apart from a counter-productive duplication of effort and attrition between institutions.Footnote 57

It must be noted generally that as a result of some of the negative manifestations of the compartmentalized nature of the different aspects of public international law and its associated institutions, the term ‘fragmentation’ is frequently used pejoratively. However, in recent years, a growing corpus of academics and practitioners has argued that ‘fragmentation’ within public international law should not necessarily be regarded in a negative way.Footnote 58 It certainly can be argued that problems related to such fragmentation are not completely intractable as the Vienna Convention on the Law of Treaties (VCLT)Footnote 59 can assist, a certain degree of convergence may take place,Footnote 60 and there is the potential for overlap management.Footnote 61

It is not the purpose of this article to provide an assessment of the fragmented nature of public international law and its institutions. Fragmentation within public international law here simply serves as an example of the compartmentalized nature of the wide variety of legal and institutional components that ultimately make up GEG.

Instead, the key premise of this article is that legal compartmentalization is reflected in the way in which lawyers traditionally conduct their legal analysis. Legal work predominantly focuses on discrete disciplines such as property law, corporate law, criminal law, public international law or specific branches and subsets of international law.Footnote 62 At both the national and international levels it can be observed that there is a general trend for legal analysis to be compartmentalized in a manner which corresponds with the way in which the law functions in practice. This has led, as a matter of course, to ‘micro’ legal analysis, as it requires academic lawyers to specialize in and analyze individual disciplines or sub-disciplines.Footnote 63 Consequently, research that cuts across and includes aspects of a wide variety of legal disciplines in a coherent and integrated manner is inevitably less common. This has an effect on how GEG is analyzed: lawyers will naturally tend to approach the subject through the lens of a compartmentalized area of expertise rather than taking into account the full range of component legal disciplines of which it consists.

4. NON-STATE ACTORS AND THE COMPARTMENTALIZATION OF LAW AND LEGAL ANALYSIS

It is at this juncture that non-state actors will be considered, owing to the important role that they undertake in the development of GEG and the relationship that this has with associated legal analysis. In this context, the term ‘non-state actors’ refers to corporations and non-governmental organizations (NGOs). Their involvement with GEG includes the following broad categories: (i) ‘governance’ roles in the protection of the environment (sometimes referred to as ‘delegated authority’Footnote 64 ); (ii) influencing the development of IEL;Footnote 65 and (iii) developing non-legally binding environmental standards, sometimes referred to as ‘non-state market driven’ (NSMD) initiatives,Footnote 66 which are often said to fall under the more general heading of ‘transnational environmental regimes’.Footnote 67 These different types of interaction have not developed in a coordinated manner and are not always easily classified; as such, the distinctions between them are often blurred. It can also be noted that the roles of non-state actors in GEG are heavily debated owing to the question of whether their involvement supports or undermines the roles and authority of state actors.Footnote 68

The primary focus in this section is to consider the main characteristics of the three above-mentioned categories of involvement with GEG, with a view to understanding the extent to which they correspond with the compartmentalization of environmental law and its associated institutions in practice. It therefore considers whether the actions and initiatives of non-state actors within these categories support and reinforce that compartmentalization of the law, or whether they operate in a manner that looks further by taking into account other law which does not relate to the environment but which ultimately has an impact upon it. It then considers the relationship that these forms of involvement with GEG have with the types of legal analysis with which this article is concerned.

The first category relates to those initiatives in which NGOs are prompted directly or indirectly by governments to undertake specific governance roles. It must be borne in mind that for centuries monarchs granted charters to non-state organizations to carry out a variety of purposes.Footnote 69 This tendency has continued in the field of environmental protection and other areas of governance. For example, the Royal Society for the Protection of Birds (RSPB)Footnote 70 is an NGO that developed in the 19th century in Britain and which regularly assists the UK government with specialized knowledge and research.Footnote 71 The United States Agency for International Development (USAID), the branch of the US government that works in providing civilian aid in foreign countries, has a policy of working with and through NGOs.Footnote 72 Another example is TRAFFIC,Footnote 73 which is mandated to produce a comprehensive analytical report of the Elephant Trade Information System (ETIS) data for the secretariat of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).Footnote 74 However, sometimes it is the lack of impetus from governments rather than their leadership that provokes NGOs to take on such tasks. For example, the underfunding of international organizations such as UNEP leaves critical roles that certain NGOs such as the World Resources Institute (WRI)Footnote 75 and GreenpeaceFootnote 76 have looked to fill by carrying out functions such as environmental monitoring and policy verification.Footnote 77

What can be observed for the purpose of this analysis is that where non-state actors fill gaps in expertise or undertake specific tasks within specific international environmental law regimes, their work corresponds with the compartmentalized nature of those regimes and will have a tendency to reinforce it.

The second category relates to those instances in which NGOs and corporate actors engage in influencing the processes that develop both hard and soft IEL under the auspices of those regimes themselves.Footnote 78 There are now more opportunities within the provisions of IEL for non-state actors to engage. This was called for in Agenda 21,Footnote 79 but is found to be formally enshrined in numerous treaties, including the Convention for the Protection of the Marine Environment of the North-East Atlantic (OSPAR Convention),Footnote 80 the United Nations Framework Convention on Climate Change (UNFCCC),Footnote 81 and the United Nations Economic Commission for Europe (UNECE) Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention).Footnote 82 More than ever before, environmental and human rights NGOs combine significant professional expertise with stronger financial backing. Along with more economically powerful corporations, they engage in the processes of law and norm creation on the international stage through lobbying, agenda setting and petitioning.Footnote 83

In this category, too, it can be observed that where non-state actors become involved, within the permitted opportunities provided for by specific regimes, they tend to reinforce the existing compartmentalization of IEL as they inevitably operate within the confines of those regimes.

The third category of involvement relates to non-state actor initiatives to develop non-legally binding environmental standards with a view to influencing the conduct of businesses, consumers and, at times, governments themselves.Footnote 84 These can involve corporate actors, NGOs or the two working in tandem on NSMD initiatives. Examples include the AccountAbility 1000 standards,Footnote 85 the standards developed by the International Organization for Standardization (ISO),Footnote 86 the Forest Stewardship Council (FSC) certification system,Footnote 87 and the accountability and engagement systems of the Carbon Disclosure Project (CDP),Footnote 88 the Global Reporting Initiative (GRI)Footnote 89 and Walmart’s Sustainability Index.Footnote 90

These approaches represent ad hoc ‘governance from below’ responses, which are gaining considerable momentum but are regarded by some as ‘too timid a remedy’Footnote 91 for global challenges that may require robust and orchestrated responses from the majority of states. However, regardless of their overall potential for impact, some NSMD initiatives represent a particular type of leadership, which is pertinent to the development of ‘macro’ legal analysis in scholarship relating to GEG. This is because some of the NSMD schemes show an understanding that encompasses not only the failings of environmental law but also the importance of other legal disciplines, such as trade law and corporate law, to environmental outcomes. For example, the FSC certification scheme recognizes the absence of trade law that would halt trade in certain types of timber, and responds with measures that de facto create trade rules for participants in the scheme.Footnote 92 Similarly, it can be argued that the GRI accounting standards for corporations respond to limitations within corporate law relating to national accounting standards and require participants to produce sets of comprehensive environmental accounts.Footnote 93

In the cases of both the FSC certification scheme and the GRI accounting standards, the initiatives look beyond an approach that corresponds with a simple ‘micro’ legal analysis of the environmental law to consider the root causes within other areas of law that are directly associated with the specific harm to the environment concerned. While the approaches of the FSC and the GRI cannot be said to amount to the type of ‘macro’ legal analysis that this article puts forward, they could be regarded as precursors to that type of approach.

It is clear that non-state actors play vital roles in the development of GEG. However, much of their activity takes place within the compartmentalized components of GEG and, as such, they often reinforce that compartmentalization through their practices and through the ‘micro’ legal analysis that they undertake to engage in those processes. By the same token, there are important exceptions to this, such as certain NSMD schemes which arguably play an important role in leading the international community towards cross-cutting approaches to legal analysis, and which bear some of the characteristics of the type of ‘macro’ legal analysis this article advocates.

5. THEORETICAL ARGUMENTS RELATING TO THE USE OF ‘MACRO’ LEGAL ANALYSIS

Having discussed the compartmentalized nature of both the law itself and legal analysis related to the constituent elements of GEG, it is necessary to consider the type of legal analysis that would assist lawyers and policy makers in developing better informed strategies for GEG in the future. This section reviews theoretical arguments for renewed approaches to legal analysis and the development of GEG. These arguments assist in developing a set of criteria for the design of ‘macro’ legal analysis which could enhance our understanding and development of GEG.

The first critique relates to the exclusionary nature of contemporary public international law. For decades, some international lawyers have complained that international law creates a system of governance that addresses states without directly addressing the range of other actors involved in decision making and who may influence decisions and outcomes in the international sphere. For example, in 1989, Sands commented on the traditional form of public international law by stating that:

[t]he traditional model poses two fundamental problems. First, states have generally proved unwilling to exercise their right of ‘guardian-ship’ over the global environment. Second, the notion of sovereignty which underlies the current regime poses insurmountable obstacles when the problems to be addressed are transnational in scope.Footnote 94

In the same article he later asserted that:

[u]ntil international law moves away from the view that international society comprises a community of states, and comes to encompass the persons (both legal and natural) within those states, it will not be able to provide even the most elementary framework for the protection of the environment.Footnote 95

A reading of that analysis today possibly belies certain achievements in the protection of the environment which have been made possible as a result of the existing system of international law. However, the fact that the international community, with its continued reliance on a state-centred form of international law, still struggles to effectively address the impact that non-state as well as state actors have upon the environment is a testament to its continued validity.Footnote 96 As such, it can be argued that if the international community is to develop a system of law at the international level that responds directly to the rights, duties and responsibilities of both state and non-state actors, a form of ‘macro’ legal analysis, which takes into account all relevant law and quasi-legal rules, could greatly assist.

Secondly, there is increasing interest in the multifaceted manner in which solutions to environmental issues can be found. These include not only the direct measures that states implement in terms of conservation and pollution control, but in addressing a range of ancillary laws and rules which do not have the appearance of being directly related to the environment, but which can ultimately act as the ‘drivers’ and ‘root causes’ of environmental degradation. For example, Daniel Bodansky states that:

[i]f international environmental law is to address not merely the surface manifestations but the root causes of environmental degradation, then our understanding of what constitutes an environmental issue must grow to encompass economic, social, and trade policy. Indeed, if, as some claim, everything is interconnected, then everything becomes an environmental problem. For now, however, this kind of integration is still more of an aspiration than a reality.Footnote 97

While Bodansky still recognizes the ‘considerable sense’ in treating IEL as a discrete field of study,Footnote 98 the admission that it frequently focuses on the symptoms of environmental degradation as opposed to the ‘root causes’ indicates a need to pursue a wider approach. This suggests that we need a type of legal analysis broad enough in scope but incisive enough in method to identify and highlight the underlying causes of environmental degradation within the global legal architecture, and then to assess them in their entirety.

Thirdly, there has been considerable focus on the issue of ‘fragmentation’ in international law,Footnote 99 both academically and institutionally.Footnote 100 In response, Koskenniemi has suggested that the international community is bound by regimes which are often at odds or even competing with each other. He states that what is required is ‘cosmopolitanism’, which he describes as:

a professional sensibility that feels at home in all regimes, yet is imprisoned in none of them. This would be what cosmopolitanism can be today: the ability to break out and connect, participate in the politics of regime definition by narrating regimes anew, giving voice to those not represented in the regime’s institutions.Footnote 101

It can be argued that to achieve the type of ‘cosmopolitanism’ that Koskenniemi suggests, a specific type of analysis, combined with a corresponding form of training that encompasses the diversity of regimes, would need to be developed. ‘Macro’ legal analysis could assist in achieving this as it could lead to a professional sensibility that takes into account all relevant legal and quasi-legal regimes. Additionally, in the short term ‘macro’ legal analysis could assist in generating strategies to resolve some of the current challenges of fragmentation in international law.

Fourthly, the comments made in this section relating to the type of legal analysis needed to assist in the development of effective strategies for GEG have some clear parallels with the concern raised by Fisher and co-authors that legal scholarship relating to environmental law commonly disregards a wide range of factors, both legal and non-legal, that ultimately affect it.Footnote 102 They stress that, notwithstanding the methodological challenges involved, the failure to include relevant factors within legal scholarship can lead to ‘intellectual blind spots’.Footnote 103 While their analysis focuses on scholarship in the field of environmental law and not legal analysis relating to the understanding and development of GEG per se, there are clear overlaps with the argument developed in this article.

Therefore, it is argued that a carefully designed form of ‘macro’ legal analysis could assist in addressing some of the problems in the development of GEG that have been identified through key theoretical arguments of recent years. As such, it would have the potential to contribute to the process of identifying solutions that overcome the dysfunctions within the existing forms of GEG and assist in laying the foundations for coherently designed reform options.

Finally, the approach of seeking to incorporate all relevant factors within an overall analysis also has significant parallels with the approach adopted by the Earth System Governance Project, based in Lund (Sweden),Footnote 104 a project which has brought many experts together to focus on five particular analytical problems concerned with GEG. These are: (i) the overall architecture of earth system governance; (ii) agency beyond the state and of the state; (iii) the adaptiveness of governance mechanisms and processes as well as (iv) their accountability and legitimacy; and (v) modes of allocation and access in earth system governance.Footnote 105

What is important for the purposes of this discussion is that the Earth System Governance Project tackles GEG from a perspective that stresses the importance of including expertise from a range of social sciences in addition to that of natural science. As such, it is arguably symptomatic of a move towards analytical frameworks which encompass a wide range of relevant factors in the development of recommendations for reform. It is argued that the logic of adopting a broad approach to the analysis of issues relating to GEG could be adopted within analysis of the law through a carefully designed form of ‘macro’ legal analysis.

6. A METHODOLOGY FOR THE USE OF ‘MACRO’ LEGAL ANALYSIS

In order for ‘macro’ legal analysis to provide a broader understanding and inform the future development of GEG, it is suggested that the methodology needs three core elements.

The first is that it should encompass the different legal disciplines that are applicable to, or have the potential to affect, the aspect of the environment concerned.Footnote 106 It would be necessary to analyze not only national and international environmental law but also other potentially relevant areas of law, such as trade, corporate, banking, and tax law. Additionally, that analysis would need to take place alongside assessments of the associated initiatives by non-state actors, which create governance structures such as accountability mechanisms and certification schemes.Footnote 107

The second is that in addressing the various legal disciplines applicable to the environmental issue or which have the potential to affect it, the elements of the law that are found to comprise the ‘root causes’ or ‘drivers’Footnote 108 of environmental harm need to be properly identified. This may require an analysis which challenges underlying assumptions relating to the purposes of aspects of the law, and the way in which it and its associated institutions operate.Footnote 109

The third is that in considering the reform of law and associated institutions, the working relationships between different regimes need to be taken into account so that overall efficiencies in terms of cost and administration can be accomplished.Footnote 110 This means that in the process of redesigning legal architecture, there should be both an overarching environmental goal that can be integrated into the objectives of all institutions and appropriately constructed regimes to ensure that the institutions operate in a streamlined manner.Footnote 111 Increasingly, calls are made for ‘greater attention to cross-scale issues in efforts to govern the environment’Footnote 112 and ‘more collaborative forms of governance’Footnote 113 that engage effectively with the range of institutions that can have an impact upon environmental governance.Footnote 114

Taking the aforementioned elements into account, it is suggested that the main components of such a methodology should be based on the following stages:

•Stage 1 – An analysis of the desired outcome for the environmental issue concerned, based on scientific evidence.Footnote 115 There is a growing demand for law and policy relating to GEG to be aligned with what have become known as ‘planetary boundaries’.Footnote 116 Rockström and colleagues have defined such boundaries in relation to climate change, biodiversity loss, the nitrogen cycle, the phosphorous cycle, stratospheric ozone depletion, ocean acidification, global freshwater use, land-use change, atmospheric aerosol loading, and chemical pollution. They suggest that if specific thresholds within those spheres are crossed, the results could lead to extreme negative consequences for humanity. Some authors also refer to these thresholds as ‘earth system boundaries’.Footnote 117

•Stage 2 – The identification of all legal provisions (national or international) that can have an influence (both positive and negative) on the environmental issue concerned.Footnote 118

•Stage 3 – An overview analysis of all legal aspects (national or international) that can have an influence (both positive and negative) on the environmental issue with a view to understanding, inter alia, their rationale and the extent to which they contain ‘root causes’ or ‘drivers’ of environmental degradation.Footnote 119

•Stage 4 – An analysis of all non-legally binding governance initiatives relating to the environmental issue, such as codes of conduct, eco-labelling schemes, certification schemes and corporate reporting schemes. This analysis should include an examination of the lacunae or problematical features in the law that their existence attempts to redress.Footnote 120

•Stage 5 – An analysis of the possible legal reforms that would be required to ‘streamline’ each of the legal disciplines concerned to ensure that they predispose all of the actors involved to the accomplishment of the ‘environmental outcomes’ identified in stage 1. This should include the reforms needed to respond effectively to the problematical features or lacunae in the law identified in stages 3 and 4 above.

•Stage 6 – An assessment of the steps, including institutional reform, that would be required to accomplish the aims in stage 5 over specific timescales.

7. CHALLENGES IN THE APPLICATION OF ‘MACRO’ LEGAL ANALYSIS

The type of ‘macro’ legal analysis that is proposed here raises numerous challenges.Footnote 121 Two of the broader issues will be considered. These are, firstly, the relationship that ‘macro’ legal analysis should have with ‘micro’ legal analysis; and, secondly, the type application that it could have to different aspects of GEG.

Both ‘micro’ and ‘macro’ legal analysis have their strengths and weaknesses. As ‘micro’ legal analysis is required to develop the type of understanding of law that is required for legal practice, it has understandably dominated and become deeply embedded at all levels.Footnote 122 However, for research relating to GEG at least, a healthy balance should be sought between ‘micro’ and ‘macro’ legal analysis. Naturally, ‘macro’ legal analysis would not provide the same level of detail as ‘micro’ legal analysis but, on the other hand, ‘micro’ legal analysis will inevitably not provide the more synoptic insights that ‘macro’ legal analysis could offer. It is therefore argued that the two forms of analysis should inform and strengthen each other in a mutually reinforcing relationship that ultimately would have the capacity to provide the best possible guidance for law and policy makers.

‘Macro’ legal analysis could be applied within GEG in numerous ways. If, as some assert, international lawyers should see themselves as ‘architects of global governance’,Footnote 123 then ‘macro’ legal analysis may assist in equipping them to carry out that role. Some contend that the international community is at a crucial juncture in the development of GEG. For example, Ivanova states that ‘[t]today’s debates on reforming [GEG] stand at a cross-roads strikingly reminiscent of the one facing the system’s original architects in the lead-up to the 1972 Stockholm Conference’.Footnote 124 It is certainly the case that recognition of the need for further reform has been voiced by the leadership of UNEP: Achim Steiner, the former Executive Director of UNEP, has emphasized the evolving role of the UN and specifically the need for further reform to ensure that UNEP continues to adapt to the challenges that the international community faces.Footnote 125 The type of perspective that ‘macro’ legal analysis provides could possibly assist in these processes.

While this article has focused on governance at the global level, ‘macro’ legal analysis can also be applied at the project level. It can be used to identify the legal architecture that plays a part in the relationships between industrial projects and the environment and affected communities. In that context, ‘macro’ legal analysis might promote an examination of a project with regard to, inter alia, property law, the rights of indigenous groups, corporate law, banking law, investment law, administrative law, tax law, human rights law, as well as environmental law.Footnote 126

Finally, although ‘macro’ legal analysis could be applied to a wide variety of challenges in the field of GEG, it could possibly have particular usefulness in helping to address those problems that, in part at least, are exacerbated through the shortcomings of extant approaches under the Westphalian system of international law. Climate change is representative of that category as it is a particularly complex problem and an extremely difficult challenge for the international community to confront. It is therefore possible that ‘macro’ legal analysis could prove to be a useful tool to inform the development of the legal and policy approaches that are designed to tackle it.

8. CONCLUSION

This article has sought to make the central argument that ‘macro’ legal analysis can assist in our understanding and development of the legal and quasi-legal components of GEG. It has made the case that this form of analysis has the potential to provide an important perspective and understanding for lawyers and policy makers to draw upon in developing reform options. Owing to the broad perspective that it can provide, such analyses could potentially prove equally useful to those from other disciplines such as the political sciences, economics and ecology.

However, the assertions made in this article have wider implications. If ‘macro’ legal analysis can play an important role in the way in which we understand and develop GEG, there are major questions regarding the way in which we train the lawyers who will become the discipline’s architects and advisers. Arguably, the skills they require are not the same as the ‘micro’-level skills that practitioners need to develop.

It can therefore be concluded that, at the master’s degree and PhD levels at least, legal training should include a grounding in the wide range of legal disciplines that impact upon GEG, including an understanding of the roles of relevant international institutions and the different types of quasi-legal initiative undertaken by non-state actors. Such training would not only sensitize aspiring scholars and policy advisers to many of the legal factors that are integral in determining environmental outcomes but would also provide them with a foundation to develop research in GEG, using a ‘macro’ legal analytical approach.

Such an approach is not consistent with the orthodox methods that lawyers commonly adopt and therefore could seem to be either counter-intuitive or simply outside the scope of the role that they should undertake. However, the challenges that GEG present to the international community are of an extraordinary nature and do not always respond to traditional methods of legal problem solving. Therefore, it is necessary for the legal community to further the development of logical and evidence-based strategies. This may include adopting methods such as ‘macro’ legal analysis to carry out functions for which ‘micro’ legal analysis is less well suited.

Footnotes

The author would like to thank Duncan French, Christy Shucksmith and two anonymous TEL reviewers for helpful comments on earlier drafts of this article. All views expressed in this article and all errors remain those of the author.

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118 Such areas of law may, for example, include company law, tax law, investment law, banking law, trade law, environmental law and international environmental law.

119 E.g., if it was clear that company law had an impact, it may be pertinent to analyze the specific aspect of corporate law, such as ‘directors’ duties’, that was having an effect on the outcome for the aspect of the environment concerned: see, e.g., Sjåfell, B. & Richardson, B., ‘The Future of Company Law and Sustainability’, in Sjåfell & Richardson, n. 3 above, pp. 312–340 Google Scholar, at 330–1.

120 E.g., the initiatives of the GRI, n. 89 above, and FSC, n. 87 above.

121 Questions for further thought include: How would it be possible to determine what the desired outcome for the environment should be, based on scientific evidence? How would this type of analysis be linked to other ‘non-legal’ policy considerations in the development of renewed strategies for global environmental governance?

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