Transnational environmental regulation and the normativisation of global environmental governance standards

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 field 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 law" to reconcile the complementary roles of formal and informal sources of legal rules, and to explain their increasing convergence around a set of good governance principles and standards commonly used in national administrative 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 upon and guided by a discrete set of good governance standards and principles of an administrative law characterincluding transparency, participation, legality, rationality, proportionality, reviewability and accountabilitywhich 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 filling lacunae and addressing deficiencies in such systems, owing, for example, to the transnational character of much of today's trade, informal regulatory systems are increasingly influencing the evolution of formal legal frameworks and, in so doing, are improving the responsiveness, flexibility and accessibility of this new environmental "legal order".Practical implications -At a practical level, viewing the wide range of new forms of environmental regulatory activity through the prism of global administrative law (or global environmental law) brings unity to this diverse field and, in so doing, makes available to all the actors involved in this "community of practice" a wealth of established practice and principle which can help to inform the elaboration and 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 significant role of the wide range of novel forms of environmental regulatory activity lends further credibility and legitimacy to such mechanisms, which often comprise the only truly relevant and applicable environmental controls or truly accessible mode of redress and ac...

Routledge Handbook of International Environmental Law

“…46 Adherence to them is presumably voluntary, although in practice it is often indirectly coerced by a number of internal and external pressures, 47 such as the need to pre-empt or defuse mandatory regulation, maintain competitiveness in the market, meet industry association membership requirements or satisfy the demands of customers and investors. In some cases, adherence and compliance with them is sometimes a condition to enter into supply chain contracts with multinational corporations, 48 or in contracts for project financing and loans by financial institutions. 49 International standard-setting initiatives started to gain salience particularly during the 1990s, in concomitance with parallel domestic trends towards more flexible, cooperative and 'responsive' approaches to regulation, including self-regulatory and voluntary mechanisms.…”