The disaggregated state in transnational environmental regulation.

Author:Kong, Hoi L.

    This Article argues against a positivist view of international environmental law that (i) conceives of states as unitary entities that speak with one voice in pursuit of a single national interest, (1) and that focuses on (ii) authoritative sources of law and (iii) the binding force of these sources of law. Further, this Article argues for a view of transnational law that (i) views the state as disaggregated, rather than unitary, (ii) focuses on informal legal mechanisms that do not have authoritative status and (iii) directs attention towards law's facilitative functions and away from law's binding force. This special issue's theme of transnational administrative law is specifically addressed by looking at a case study of transnational regulation, and an examination of the antecedents for this form of regulation in the administrative structures of Canadian federalism. But first, a point about terminology.

    "International environmental law" is typically categorized as a subset of public international law, which is "a body of law created by nation states for nation states, to govern problems that arise between nation states." (2) International environmental law is further typically defined in terms of its authoritative binding sources (3) and the subject matter it regulates, namely the environment. (4) In this Article, I use the term "transnational environmental law" to denote the body of law that regulates environmental matters that lie beyond the capacity of individual states to regulate. This body of law is not necessarily created by states acting as unitary entities, nor does it necessarily regulate such states.

    This Article analyzes a particular administrative form of transnational environmental law that arises from interactions among sub-national units and draws on three bodies of literature: transnational network theory, global administrative law, and theories of federalism. These bodies of theoretical writing are drawn upon in order to demonstrate that transnational environmental regulation can involve disaggregated, rather than unitary states, as well as regulatory instruments that have neither an authoritative source nor binding effects; this form of transnational administrative regulation can further be explained in non-positivist and federalist terms. The Article aims to make two main contributions. First, through a discussion of concrete examples, it aims to illustrate and refine the theories it applies. Second, the Article aims to demonstrate that the dominant positivist conception of international environmental law is incomplete. In particular, the Article argues that a non-positivist theory of transnational environmental regulation that draws on transnational network theory, global administrative law, and theories of federalism can account for forms of transnational environmental regulation that the dominant positivist conception of environmental regulation is incapable of adequately explaining.

    Before engaging the main arguments of this paper, the theories upon which this Article draws are briefly outlined and the contrast between these theories and a positivist view of international law will be highlighted. The following paragraphs will indicate how the literature on transnational network theory and global administrative law contrast with elements of the positivist view of international law, and how the literature on environmental federalism and non-positivist federalism can be interpreted to contrast with the positivist view.

    First, consider transnational network theory, whose proponents argue that relationships among states are increasingly shaped by interactions among actors from various states who work within the legislative, adjudicative and administrative branches of their respective states, and in particular, in regulatory agencies. (5) These emerging regulatory networks displace the form of international cooperation that Professor Kal Raustiala has called "liberal internationalism", which is "[b]ased on multilateral treaties, often coupled with international organizations[.]" (6) The liberal internationalist vision of international cooperation can be characterized as positivist because it rests on a voluntarist theory, in which international law is understood to emanate from the sovereign will of states. This voluntarist theory presupposes a general positivist conception of law, in which a law is valid only if it represents an exercise of a state's sovereign will. (7) Network theorists challenge the liberal internationalist view of international relations. According to Professor AnneMarie Slaughter, a network conception of international relations sees

    a world of governments, with all the different institutions that perform the basic functions of government--legislation, adjudication, implementation--interacting both with each other domestically and also with their foreign and supranational counterparts. (8) Raustiala points out that these networks, which are comprised of the disaggregated elements of various states, can at times make the implementation of treaties more effective and can facilitate negotiations over treaties. (9) Moreover, Raustiala makes a claim that is particularly pertinent for this paper when he writes that "where treaties are politically or economically precluded" these networks can "provide an alternative mode of cooperation." (10) Therefore, the network theory of transnational regulation, and specifically Raustiala's interpretation of the theory, is a counterpoint to a positivist conception of international law. Instead of focusing exclusively on acts of sovereign will by unitary states or on formal legal artifacts such as treaties, network theory analyzes relationships and interactions among actors within different states and highlights the normative force of interactions among regulators of different states that do not necessarily involve formal international law. (11)

    The writing on global administrative law is the second body of literature upon which this Article draws. As do network theorists, authors writing on global administrative law reject positivist theories which claim that the sovereign will of unitary states is the ultimate source of validity for international law. Professor Benedict Kingsbury argues:

    Instead of neatly separated levels of regulation (private, local, national, inter-state), a congeries of different actors and different layers together form a variegated 'global administrative space' that includes international institutions and transnational networks, as well as domestic administrative bodies that operate within international regimes or cause transboundary regulatory effects. (12) Kingsbury adds to this disaggregated conception of the state a particular view of transnational law. As mentioned above, Raustiala sees networks as complementing and supplementing formal international law, as defined by the liberal internationalist paradigm. (13) Kingsbury goes further. He claims that "global administrative law" consists of "shared sets of norms and norm-guided practices that are in some cases regarded as obligatory, and in many cases are given some weight, even when they are not obviously part of national (state) law or standard inter-state law." (14) Kingsbury's claim rests on a distinctive conception of law, which does not understand the norms and practices that "are not obviously part of national (state) law or standard inter-state law" to be supplements or non-legal alternatives to international law. Kingsbury rather argues that these norms and practices can themselves be a form of law. In order to arrive at this conclusion he draws on Lon L. Fuller's jurisprudence concerning the rule of law. (15)

    According to Kingsbury, a norm or practice in the global administrative law context does not necessarily become law because it emanates from an authoritative source, such as the sovereign wills of states. (16) Instead, Kingsbury argues that a norm or practice becomes law by virtue of the fact that it satisfies the normative requirements of "publicness" and Kingsbury draws on Fuller's conception of the rule of law to make this argument. (17) According to Kingsbury, the norms and practices of global administrative law satisfy the requirements of "publicness" even if they have not been authorized or delegated by states, (18) and Kingsbury sets out an indicative list of principles that gives specific content to this general idea of publicness, in much the same way that Fuller sets out a set of indicia that give specific content to his idea of the rule of law. (19) Kingsbury argues that these principles have the effect of "channeling, managing, shaping and constraining political power." (20)

    Whereas a positivist conception of international law focuses on the binding effects of law, the Fullerian conception upon which Kingsbury draws focuses instead on law's capacity to facilitate the pursuit of the public good by those publics who are affected by global administrative law. (21) The relevant publics include (i) "global administrative public entities (apart from states)[,]" (22) (ii) "states and agencies of a particular state[,]" (23) and (iii) "individuals and other private actors." (24) The practices and norms of the institutions in the Canadian examples and the transnational case study evince this Fullerian conception of law, and the transnational case study provides an example of Kingsbury's conception of global administrative law. These instances of regulation exhibit the facilitative functions of Fuller's jurisprudential theory and do not have the kinds of binding effect that some positivists would understand to be a necessary feature of all law, including international law. (25)

    The third body of literature on which this paper draws is the theoretical writing on environmental and non-positivist federalism. This Article refers to the recent work of Professor Wallace Oates in order to examine the conditions under...

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