Controversial Developments in the Field of Public Participation in the International Environmental Law Process

The protection and preservation of the environment is certainly one of the areas in which the traditional regulatory power of nation states faces challenges more difficult than in others. Since environmental issues can hardly be confined within the national borders of one state, domestic legislation, as such, may never tackle appropriately transboundary issues and, even more so, global environmental problems, such as climate change. Furthermore, domestic regulatory constraints in this field may be easily circumvented, particularly in the current context of globalization, by transferring polluting activities to states with lower standards of environmental protection. Such considerations account for the fact that, since its inception, environmental law has always had a primarily international vocation. Through international environmental law, states create and undertake obligations in relation to issues that may have, not only a transboundary impact (for example in the use, management and protection of international rivers and lakes) but that also a global relevance, that is with regard to the atmosphere, or biodiversity. This internationalization of the individual states’ regulatory powers has attracted the attention of those actors that for a long time have not been involved in international law making and enforcement, and whose interests are most directly affected by environmental policies. On the one hand, one finds the socalled PINGOs (public interest NGOs), who are supposed to represent the civil society at large, that is, individuals and communities, present and future, who may fall victim of sudden environmental harmful occurrences, as well as of the progressive deterioration, or exhaustion, of natural resources essential to vital human needs. On the other hand, one finds the so-called BINGOs (business interest NGOs) representing precisely the business community, particularly industry, whose activity may be the object of possible regulation. They have claimed a standing with a view to minimizing the impact on their activities of possible regulatory measures in this field. As a result of a process which started virtually with the beginning of the environmental law process itself, at the last UN World Summit in the field of the environment, the Johannesburg World Summit on Sustainable Development (WSSD), the issue of environmental governance was addressed by giving an increased role to the ‘private sector’, made up of both civil society and the business community. It may be recalled that Secretary-General Kofi Anan, in his opening speech stated that ‘[a]ction starts with Governments . . . [b]ut Governments cannot do alone. Civil society groups have a critical role, as partners, advocates and watchdogs. So do commercial enterprises. Without the private sector, sustainable development will remain only a distant dream’. This chapter will focus on the status of NGOs in the field of international environmental law against the background of some recent controversial elements of international practice. In doing so, the substantive issue will not be addressed as to whether representation of civil society by NGOs is effective and genuine. For, given the NGOs’ low degree of regulatory democratic legitimization, due basically to self-election, their credibility and legitimacy may be tested only by the quality of their action, their expertise and factual transparency. Firstly, brief consideration will be given to the most significant indications deriving for states from international instruments to the effect that public participation in environmental law making at the domestic level should be promoted as a requirement for the achievement of sustainable development. Secondly, the issue will be addressed of the ground on which to find the basis for public participation in environmental forums at the international level. To that end, the research draws mainly from the basic indications deriving from Rio and from the latest d...