On the Power of Formation

“Formation” may be defined as “an act of giving form or shape”. In international environmental governance, matters of form and shape are constitutive. Whether the formation of a global environmental organisation (GEO) is needed is a question that implicates the most important elements of existing environmental governance at the international level. In this post, a revitalised case for such an organisation is presented. The post argues that a global environmental organisation may be needed because such a body would contribute three primary components to international environmental governance: (1) enhance inclusive participation, (2) resolve dangerous policy conflicts within the UN system, and (3) capitalise on existing political momentum. At its root, the impetus for a global environmental organisation is based on a scientific assessment of existing ecological conditions and a call for invigorated political leadership. The revitalised case comes at a time when the post-pandemic political momentum offers an opportunity to expand established arguments about the advantages of using a GEO to address interlinked global environmental challenges.

Debate in Context

Recognising that ecosystems supersede political boundaries, advocates for a global environmental organisation build upon arguments that have driven the formation of many international environmental organisations and multilateral environmental agreements (MEAs) so far. Many major global environmental challenges, like climate change, biodiversity loss and pollution of the marine environment, have MEAs specifically negotiated to address their governance. It is therefore a weak argument to merely note the need for international cooperation. Instead, advocates for a global environmental organisation pursue the point further by observing, for example, that “planetary eco-boundaries” continue to be crossed despite the proliferation of relevant MEAs (Rabb et al., p. 34).

Complementary to this ecological rationale is an argument based on a call for invigorated political leadership on environmental protection within the UN system. On this front, arguments centre on the relative weakness of existing global environmental authorities, especially the United Nations Environment Programme (UNEP). For some onlookers, such existing mechanisms “do not have the equivalent power and influence to the analogous institutions that govern the social and economic commons, such as the World Health Organisation (WHO), International Monetary Fund (IMF), or World Trade Organisation (WTO)” (Rabb et al., p. 28).

At the same time, however, there are some legal scholars who do not believe a global environmental organisation is necessary. Such scholars argue, for example, that existing Secretariats and Conferences, such as the United Nations Framework Convention on Climate Change (UNFCCC) and its annual Conference of the Parties (COPs), are the rightful locus of power within global environmental governance today. Sceptics may point out that “if international agreements are weak it is because states want them to be weak”, and that largely “this is a political challenge, not a legal one” (Boyle et al., p. 13). Critics thus argue that the issue is not the deficiencies in the legal organisation of UN efforts but rather the lack of political investment in the legal efforts themselves. A new GEO, sceptics argue, is thus unlikely to meaningfully improve ecological or political conditions.

Yet, instead of shying away from political ambition, advocates for a GEO lean into the politically charged nature of the circumstances to creatively use existing the political momentum and envision powerful upgrades to existing governance models. Importantly, proponents note that it is despite the overwhelming proliferation of MEAs that a global environmental organisation is needed. Ultimately, then, advocates return to the force of their arguments based on two key pillars: a scientific assessment of declining ecological conditions and a call for invigorated political leadership. With the contours of the debate strongly in focus, it is possible to envision three primary contributions such an organisation could make today to environmental governance at an international level.

Inclusive Participation              

First, a global environmental organisation could contribute to international environmental governance a more robust participatory locus for non-State actors seeking greater involvement in policy strategy, enactment, and enforcement. For example, while UNEP was upgraded to universal membership in 2012, a global environmental organisation could go further, encouraging broader participation from subnational governments, NGOs, and corporations.

Recent UN agendas, including the 2015 Sustainable Development Goals and the 2030 Agenda (see e.g., paras. 28, 39, 60, 67), “unequivocally acknowledge that global environmental problems cannot be solved without the cooperation of business and industry, whose commitment to tackling climate change, mercury pollution or the spread of plastic litter may matter more than that of states” (Boyle et al., p. 59). Further, NGOs have long played legitimate roles in the negotiation and formation of policy strategy, and they increasingly represent diverse stakeholders otherwise underrepresented, including Indigenous communities  and vulnerable communities.

While any details would be best decided during formational discussions, it is worth pointing out possible membership structures. For example, the International Labour Organization’s tripartite constituency sees its governing body composed of government agency representatives, worker representatives, and employer representatives. One could envision a parallel membership structure for a GEO, where non-national stakeholders receive formal participation opportunities through a pairing with government agencies. Achieving the right balance of representation is critical, though it need not be an insurmountable task. The time taken to crystalise a UN vision on environmental representation would be time well served. One could envision opportunities for Indigenous communities, NGOs, and even youth delegations. In any case, such examples reflect an increasingly prominent impetus to incorporate non-national stakeholders into the highest levels of governance. It is reasonable to view a GEO as the appropriate forum for the formal enshrinement of such involvement.

Resolving Policy Conflicts

Second, a global environmental organisation could serve a critical resolutive function in international environmental governance. The resolution of policy conflicts has long been a function of global environmental authorities such as UNEP. However, the next decades of international environmental governance are likely to be defined by policy conflicts between MEAs that not only threaten the integrity of the MEAs themselves but also the long-term likelihood of mitigating dangerous ecological crises. While any GEO must “respect the autonomous legal status of MEAs”, it can do so while performing a resolutive function (Desai, p. 151).

For example, the UNFCCC’s Paris Agreement and the Convention on Biological Diversity (CBD) seem positioned to be in a conflict of policy with potentially dangerous consequences for both agreements and ecological integrity. For example, of the 400 scenarios in the IPCC’s climate pathways database with a 50% or better chance of meeting Paris’ temperature targets, 344 scenarios assume the “successful and large-scale deployment” of negative emissions technologies (p. 4). Yet, at the same time, the CBD has articulated, and reaffirmed in 2016, a moratorium on geoengineering which “may affect biodiversity”. Some view the CBD’s moratorium as “an important message for those who are now promoting [geoengineering] as a shortcut” to meeting the Paris Agreement’s goals.

Whether negative emissions technologies will perform a substantial role in meeting governance targets depends deeply on the overall balance of planetary interventions the international community is willing to endorse. One can imagine a resolution to the conflict between the UNFCCC and the CBD in the form of an analysis of which policy position is likely to, overall, achieve the diverse objectives of these MEAs. Such a task could rightfully be a contribution for a GEO to spearhead and would not require removing existing activities from any MEA. By performing this resolutive function, a GEO could obtain legitimacy, by its effort, towards becoming a foremost environmental governance body.

Capitalising on Existing Political Momentum

Finally, a global environmental organisation could channel existing political momentum on environment into a momentous embodiment of political willpower. Opinion polls increasingly demonstrate strong support for political action amongst local and subnational communities, yet national governments have consistently prioritised economic policy goals over environmental ones.

In this regard, a GEO could capitalise on the political momentum currently arising from a range of stakeholders. For example, the UNFCCC process has arguably become the locus of power within global environmental decision making, with wide expression of “high expectations that COP26 [would] be a transformative summit for our planet”. Indeed, even during a pandemic, over 100,000 people marched during Glasgow’s COP26 summit, indicating massive public support for global environmental governance efforts. Most recently, almost 50,000 people formally attended COP27, making it the most well-attended COP in the UNFCCC’s history. The formation of a GEO could itself mark a momentous embodiment of this political momentum, capitalising on the sociological legitimacy that accompanies a ceremony of formation.

However, one of the most powerful counterarguments – perhaps the most powerful counterargument – for the creation of a GEO is that such a formation remains politically unrealistic. For example, countries including the US, Russia, the G-77 and China have expressed hesitance about such an organisation. Further, the historical struggle to empower UNEP indicates a potentially insurmountable political reluctance to the formation of a GEO.

Nonetheless, powerful arguments bolster the case for optimism and creativity on this front. First, arguments from necessity frequently characterise efforts to motivate environmental governance. Here, the necessity impetus remains strong. The international legal community must ask itself: if it remains politically unrealistic to form a GEO, what reason have we to believe that existing political willpower is sufficient to ensure the achievement of even existing objectives within international environmental governance? Insofar as confronting ecological crises today may be primarily a political problem, it is arguably inconsistent to believe that we can both accept the unrealistic nature of a GEO and still believe existing mechanisms garner sufficient political support to achieve their goals. If such a dearth of willpower truly pervades, the consequences are far more dire than merely for prospects of a GEO.

Yet, despite the compelling nature of the argument from necessity, it frequently falls on tired ears. In this regard, other arguments are needed. Here, the argument from necessity finds an encouraging counterpart in a second argument from strategy. If politics truly is environmental governance’s primary hindrance, it may be the case that advocates for a GEO should view its formation not only as a mechanism for the proliferation of legal instruments but – perhaps even more importantly – as a mechanism for the political force such an organisation may accumulate over time. In this author’s mind, the counterargument that the formation of a GEO remains politically unrealistic remains an extremely powerful counterargument. However, perhaps the counterargument’s strength can serve as the basis for an insight: it may be fruitful to primarily emphasise the cultivation of political power beyond formal legal embodiments.

The international environmental regulatory field already abounds with media-based MEA regulatory regimes, which arguably purport to speak for environmental governance issues in each medium. A GEO may not, then, be most valuable insofar as it would seek to replicate existing mechanisms. Instead, it is most valuable for its interdisciplinary, interpolitical, and intersociological dimensions. These dimensions may prove powerful accompaniments to expressly legal mechanisms within international environmental governance. In other words, advocates for a GEO may consider accepting the force of the counterargument and reckoning with it on its own terms. In this regard, advocates can use the two points above—inclusion participation and the resolution of policy conflict -to bolster the political case. For example, one feature of greater inclusive participation is the bolstered element of sociological legitimacy that may accompany a greater diversity of representation. Enhanced sociological legitimacy may accrue if a GEO could become a central gathering place for the participation of groups often formally excluded from expressly legal regulation, such as youth collectives and other non-National entities. Ultimately, it may be not only reasonable but necessary to believe in the creative capacity and imaginative force of the international environmental community. In creativity and political momentum may exist a valuable strategy for invigorated international environmental governance.

Conclusion

In conclusion, this post has provided a revitalised case that a global environmental organisation may be an important component in mitigating negative ecological trends and strengthening the UN system. While this post has not considered all aspects of the topic, including the role of international courts in environmental governance and the detailed history of UN Specialised Agencies, this post has further articulated the legal basis and political justification for why a global environmental organisation may be needed within international environmental governance, especially from an organisational perspective within the UN system.

This blogpost is based on a paper written by the winner of the Environmental Law Writing Competition 2.0 organised by E&U For The Climate, SES Study Association for European Studies and EU-reka Study Association for European Law.