Soft Law and the Elusive Quest for Sustainable Global Governance

Leiden Journal of International Law

Volumn 19, Issue 3, 2006, Pages 829-846

  Sindico, Francesco ^a  

^a UNIVERSITAT JAUME I   (Spain)

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EID: 85010161467     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156506003608     Document Type: Review

References (56)

1. See the definition of sustainable development in Report of the World Commission on Environment and Development, UN Doc. A/42/427 (1997), Ch. 2.1, at 54” ‘Sustainable development is development that meets the needs of the present without compromising the ability of future generations tomeet their own needs.’
2. RioDeclaration on Environment and Development,UNDoc. A/CONF.151/6/Rev.1 (1992), (1992) 31 ILM 874.
3. Report of theWorld Summit on Sustainable Development, UN Doc. A/CONF.199/20 (2002).
4. The book builds on a project of the University of Toronto on ‘Strengthening Canada's Environmental Community through International Regime Reform’ and on papers and presentations presented at its second annualconference,with thesametitle as thisbook,heldon8-9Nov.2001attheMunkCentre forInternational Studies.
5. Thevarious authors comefromawiderangeof geographical,professionalanddisciplinarybackgrounds such as international law, political science, international relations, and sociology. On the one hand, the majority of the authors are Canadian; however, there are several authors from developing countries who enrich the discussion with their view from a Southern perspective on how to achieve sustainable development. On the other hand, the simultaneous presence in the book of practitioners, members of academia and civil society, and corporate representatives makes the book a truly useful and multidisciplinary contribution on sustainable global governance.
6. K.W. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’, (2000) 54 International Organization 421, at 422.
7. If consumers worldwide start getting acquainted with voluntary standards and agree with the objective behind them (environmental protection, human rights protection, etc.), then consumers will reward those MNCsthat have followed the voluntary standard. Therefore it can be said that one of the reasonswhysoft law and voluntary standards have increased inthe last decades is becausemarket-driven forces are thought to be a better solution tospecific problems (environment, labour standards) thanstrict governmental regulation.On this issue see, in relation to the climate change regime, K. Campbell, ‘From Rio toKyoto” TheUse ofVoluntary Agreements to Implement the Climate Change Convention’, (1998) 7 (2) Review of European Community and International Environmental Law 159.
8. An exception could be provided by the UN Forum on Forests, which has the sole purpose of examining global forest issues. However, it is a temporary forum and does not have a long-termmandate. Furthermore, forest-related issues are present in many multilateral environmental agreements, such as the Convention on Biological Diversity or the UN Framework Convention on Climate Change, and the problem is that in many cases there is a low level of co-ordination between the different regimes. Despite the absence of a global forest convention, there are some international treaties that deal with specific forestry issues, such as, for example, the 1994 International Tropical Timber Agreement, (1994) 33 ILM 1014. According to Art. 1(a), one of the main objectives of the agreement is ‘to provide an effective framework for consultation, international co-operation and policy development among all members with regard to all relevant aspects of the world timber economy that trade in tropical timber.’ In relation to this specific forestry regime see a recent article by L. Flejzor, ‘Reforming the International Tropical Timber Agreement’, (2005) 14 (1) Review of European Community and International Environmental Law 19.
9. Report of the United Nations Conference on Environment and Development, UN Doc. A/CONF.151/26 (Vol. III) (1992), Annex III.
10. See D. Humphreys, ‘The Elusive Quest for a Global Forest Convention’, (2005) 14 (1) Review of European Community and International Environmental Law 1.
11. See http//www.fsc.org/en/.
12. Social labelling exists in many industries, such as garments, leather products, coffee, tea, and carpets. The main labelling programmes in the carpet field are Rugmark (http//www.rugmark.org/), Kaleen (http//www.kaleenint.com/), and Care & Fair (http//www.care-fair.org/).
13. However,inmostcasesreactiontonon-complianceinMEAsismeanttobesoftbecauseveryoftencountriesdo not complybecause they do nothave the capacity or the technology to enforce environmentalmeasures. This is especially true for developing countries. Therefore, response to non-compliance is not hard (i.e. sanctions) but implies capacity-building and technology transfer programmes.Aco-operative and non-confrontational approach is, therefore, present in most international environmental regimes.
14. The biosafety and climate change regimes constitute good examples of this trend from hard to soft law. In fact, the United States, absent from both the Cartagena Biosafety Protocol and the Kyoto Protocol to the UN FrameworkConvention onClimateChange, fosters a number of voluntary standards in the area of both food safety and energy efficiency.
15. Nike andNestlé have been among the twoMNCs that have beenmost targeted in the last years by consumer boycotts.Their effectshave been studied byB.D.Gelb,'MoreBoycotts Ahead?SomeImplications-Consumer Boycotts’, (1996) 38 (2) Business Horizons 70.
16. Consumers were getting more critical and stopped buying products from companies that were proven to have a negative environmental record. This has led oil companies such as British Petroleum and Shell to get involved, for example, in efforts to curb negative climate change effects. For an overview of the BP climate change programme see http//www.bp.com/subsection.do?categoryId=4451& contentId=3072030, while Shell's action on climate change can be found at http//www.shell.com/home/Framework?siteId=royal-en. The importance of oil companies in the climate change regime has been underlined by J. Birger Skjaerseth, ‘Major Oil Companies in Climate Policy” Strategies and Compliance’, in O. Schram Stokke, J. Hovi, and G. Ulfstein (eds.), Implementing the Climate Regime. International Compliance (2005), 187.
17. On the one hand the UN Global Compact laid down 10 principles in the areas of human rights, labour, environment, and anti-corruption. Its main goal is to develop a network of MNCs and NGOs that will foster these principles in business activities around the world. For more detailed information see the UN Global Compact webpage at http//www.unglobalcompact.org/Portal/Default.asp?. On the other hand, the OECD Guidelines are recommendations addressed by governments to multinational enterprises operating in or from adhering countries. They provide voluntary principles and standards for responsible business conduct in avariety of areas includingemploymentandindustrial relations,humanrights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition, and taxation. The guidelines are available at www.oecd.org/dataoecd/56/36/1922428.pdf.
18. First Nations is the name given to the indigenous groups living in British Columbia.
19. This has been the case, for example, in the collaboration between Amnesty International and Transparency International with Shell; see Kirton and Trebilcock, p. 224.
20. See the debate on flexibility in section 3.2, infra.
21. See the importance of shared values in the debate on soft law and legitimacy in section 3.3, infra.
22. Zemanek maintained that soft law instruments are ‘tools for shaping the future development of the law, either by building opinio juris for custom or by shaping a consensus for future multilateral conventions’, and they ‘will represent one element in the respective law-creating process’. In sum, ‘they are evidence of a step in a norm-creating process'; see K. Zemanek, ‘Is the Term “Soft Law” Convenient?’, in G. Hafner et al. (eds.), Liber Amicorum Professor Ignaz Seidl-Hohenveldern (1998), 843, at 858-9.
23. See J. Klabbers, ‘Institutional Ambivalence by Design” Soft Organizations in International Law’, (2001) 70 (3) Nordic Journal of International Law 403, at 405” ‘Over the last few decades, international co-operation has increasingly been organized through mechanisms thatwere deliberately kept at the fringes of international law, or even outside of it altogether.’
24. The OECD Guidelines forMultinational Enterprises are an example. See note 17, ‘Institutional Ambivalence by Design” Soft Organizations in International Law’.
25. In the 2005 G8 Summit in Gleneagles, Scotland the focus was on Africa and climate change. See Gleneagles Plan of Action-Climate Change, Clean Energy and Sustainable Development (2005), available at http//www.g8.gc.ca/menu-en.asp.
26. If framework treaties aremeant to be soft, other regimes can be considered soft because they are not able to work as efficiently as they should.Within the book Foster underlines the weakness of the UN (p. 206) and Vosko does the same in relation to the ILO (pp. 148-9).
27. See the work on the ILO and precarious employment by L. Vosko, pp. 134-52.
28. 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity, (2000) 39 ILM 1027.
29. 1997 Kyoto Protocol to the United Nations Framework Convention on Climate Change, (1998) 37 ILM 22.
30. Many authors agree that both the biodiversity regime and the climate change regime need to strengthen themselves further through the improvement of their compliance system and dispute settlement system; see among others J. Brunné e, ‘The Kyoto Protocol” Testing Ground for Compliance Theories?’, (2003) 63 (2) Heidelberg Journal of International Law 255, and J.Werksman, ‘Compliance and the Kyoto Protocol” Building a Backbone into a “Flexible” Regime’, (1998) 9 Yearbook of International Environmental Law 9.
31. Klabbers, The OECD Guidelines forMultinational Enterprises are an example. note 23, at 421 (emphasis added).
32. See section 2.4., The OECD Guidelines forMultinational Enterprises are an example.
33. Klabbers, section 2.4., section 2.4., The OECD Guidelines forMultinational Enterprises are an example… note 23, at 421.
34. section 2.4., section 2.4., The OECD Guidelines forMultinational Enterprises are an example., at 421” ‘This [i.e. formal institutions’ activities would bemore effective], however, is partly illusory, and may be difficult to accept for other reasons, relating to such things as legitimacy.’
35. See Zemanek, section 2.4., section 2.4., section 2.4., The OECD Guidelines forMultinational Enterprises are an example… note 22, at 843-62.
36. section 2.4., section 2.4., section 2.4., The OECD Guidelines forMultinational Enterprises are an example., at 856 (emphasis added).
37. section 2.4., section 2.4., section 2.4., section 2.4., The OECD Guidelines forMultinational Enterprises are an example.
38. Following the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of NuclearWeapons, the protection of the environment is a commonvalue of the international community and, therefore, we can conclude that a norm whose objective is the protection of the environment is legitimate. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep. 679, para. 29.
39. See S. Charnovitz, ‘Two Centuries of Participation” NGOs and International Governance’, (1997) 18 Michigan Journal of International Law 183, and J. Gupta, ‘The Role of Non-state Actors in International Environmental Affairs’, (2003) 63 (2) Heidelberg Journal of International Law 459.
40. Onthe accountabilityofNGOsseeE.B.Bluemel, ‘OvercomingNGOAccountabilityConcerns inInternational Governance’, (2005) 31 Brooklyn Journal of International Law 139.
41. This would imply that the private sector may well decide, for example, the level of risk under which the consumption of genetically modified organisms is to be considered safe forhumanhealth and not dangerous for the environment.
42. See section 2.4, This would imply that the private sector may well decide, for example, the level of risk under which the consumption of genetically modified organisms is to be considered safe forhumanhealth and not dangerous for the environment. This has led the anti-globalizationmovement to create its own forum, theWorld Social Forum (p. 210), in which it debates alternative strategies to improve global sustainable governance.
43. However, in some cases the Conference of the Parties (COPs) of international organizations adopts a quasilegislative power. In those cases in which acts are adopted by the COPs by majority and not by consensus, legitimacy concerns may arise. On this point see J. Brunné e, ‘COPing with Consent” Law Making under Multilateral Environmental Agreements’, (2002) 15 LJIL 1; E. Hey, ‘Sustainable Development, Normative Development and the Legitimacy of DecisionMaking’, (2003) 34 Netherlands Year Book of International Law 3; and R. R. Churchill and G. Ulfstein, ‘Autonomous Institutional Arrangements inMultilateral Environmental Agreements” A Little-Noticed Phenomenon in International Law,’ (2000) 94 AJIL 623.
44. However, this does not imply that theWTO lives in clinical isolation from the rest of international law. On this point seeWTOAppellateReport,United States-Standards forReformulated and Conventional Gasoline, adopted 20May 1996, AB-1996-1, WT/DS2/9, at 621. What I want to underline here is that the WTO should not be considered to be the perfect forum to deal with environmental and labour-related issues just because it has a stronger legal regime than MEAs or the ILO.
45. See J. Cameron, ‘Dispute Settlement and Conflicting Trade and Environment Regimes’, in A. Fijalkowski and J. Cameron, Trade and the Environment” Bridging the Gap (1998), 16; R. Pratap, ‘Trade and Environment” Trends in InternationalDispute Settlement’, (2002) 42 Indian Journal of International Law451;A.Gonza’ lez-Calatayud and G.Marceau, ‘The Relationship between the Dispute-SettlementMechanisms ofMEAs and Those of the WTO’, (2002) 11 (3) Review of European Community and International Environmental Law 275; E.U. Petersmann, ‘InternationalTrade Lawand International Environmental Law-Prevention and Settlement of International Disputes in GATT’, (1993) 27 Journal ofWorld Trade 43.
46. WTO Agreement on Technical Barriers to Trade (1994), preamble and Art. 3.
47. See also H.Ward, ‘Trade and Environment Issues in Voluntary Eco-labelling and Life Cycle Analysis’, (1997) 6 (2) Review of European Community and International Environmental Law 139, at 143.
48. However, sustainable development is present as one of the goals of the multilateral trade regime in the preamble of theMarrakech Agreement Establishing theWTO (1994).
49. See section 3.1, This has led the anti-globalizationmovement to create its own forum, theWorld Social Forum (p. 210), in which it debates alternative strategies to improve global sustainable governance.
50. See section 4.1, section 3.1, This has led the anti-globalizationmovement to create its own forum, theWorld Social Forum (p. 210), in which it debates alternative strategies to improve global sustainable governance.
51. See T. Hock, ‘The Role of Eco-Labels in International Trade” Can Timber Certification Be Implemented as a Means to Slowing Deforestation?’, (2001) 12 (2) Colorado Journal of International Environmental Law and Policy 347, at 363-5.
52. On the relationship between the Cartagena Biosafety Protocol and the WTO see P. W. B. Phillips and W. A. Kerr, ‘Alternative Paradigms” The WTO Versus the Biosafety Protocol for Trade in Genetically Modified Organisms’, (2000) 34 Journal ofWorld Trade 63; A. H. Qureshi, ‘The Cartagena Protocol on Biosafety and the WTO” Co-existence or Incoherence?’, (2000) 49 International and Comparative Law Quarterly 835; S. Safrin, ‘Treaties in Collision?” The Biosafety Protocol and theWorld TradeOrganizationAgreements’, (2002) 96AJIL 606.
53. On the current dispute before theWTO see L. Boisson de Chazournes and M. Moë se Mbengue, ‘GMOs and Trade” Issues at Stake in the EC BiotechDispute’, (2004) 13 (3) Review of European Community and International Environmental Law 289;D.Winickoff et al., ‘Adjudicating theGMFoodWars” Science, Risk, and Democracy in World Trade Law’, (2005) 30 (1) Yale Journal of International Law 81; F. Sindico, ‘The GMO Dispute before the WTO” Legal Implications for the Trade and Environment Debate’, (2005) 11 FEEM Nota di Lavoro, available at http//ssrn.com/abstract=655061.
54. See http//www.fao.org/ag/cgrfa/itpgr.htm#text.
55. General Agreement on Tariffs and Trade (1947), Art. XX (b)” ‘Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party ofmeasures… necessary to protect human, animal or plant life or health.’
56. Thanks to the help of a public relations firm (p. 244).