Academic

Alkoby on International Environmental Lawmaking

By Lawrence Solum

Asher Alkoby (Ryerson University) has posted Global Networks and International Environmental Lawmaking: A Discourse Approach (Chicago Journal of International Law, Vol. 8, No. 2, 2008) on SSRN. Here is the abstract:

The concept of networks is gaining currency in the study of global politics and international law. The term usually refers to a loose organization of nonstate actors characterized by voluntary, reciprocal, and horizontal patterns of communication and exchange. This Article explores the direct and indirect participation of global networks in international environmental decisionmaking fora, as a matter of both practice and aspiration. While in agreement with the view that global networks improve the democratic quality of international environmental institutions, this Article advances a particular conception of democratic governance, one that is more useful for understanding the role of networks in international rule creation and enforcement, as well as for assessing their operational effectiveness. Under the proposed discourse approach, the essence of democracy is deliberation rather than voting, preference aggregation, or self-government. The interaction of civil society in the public sphere, the realm of network activity, is likely to produce norms that will be legitimate in the eyes of their addressees because such interaction is typically nonhierarchical and unconstrained by power imbalances. The institutional discursive framework, in turn, is where the communicative appeal of the ideas that networks seek to advance can be tested. In the area of international environmental governance, much of this discursive activity takes place within intergovernmental institutions, which have been gradually opening up to the input provided by networks of nonstate actors.

The Article's discussion begins by outlining the discourse approach and explaining why it is arguably superior to the alternatives, especially in the global context where preference aggregation is not a viable option. The Article then turns to examine the involvement of environmental and business networks in the climate debate, demonstrating how patterns of discursive interaction may be observed both within each network and in the ways in which these networks attempt to channel their respective agendas into the institutional deliberation. Finally, this Article argues that the proposed conceptual schema is also useful in responding to commentators who are critical of global networks' involvement in environmental lawmaking. These critics claim that global networks are not legitimate international actors because they answer to no one in their power wielding political activity. Under a discourse approach, the legitimacy of networks both environmental and business lies in their ability to infuse the institutional debate with different policy perspectives and arguments, out of which well-informed, consensual decisions may be reached. The Article concludes by pointing to some of the implications flowing from a discourse approach for institutional design.

Full post as published by Legal Theory Blog on March 10, 2008 (boomark / email).