Global Environmental Protection in the 21st Century

In the past three decades, protecting the global environment has emerged as one of the major challenges in international relations. No fewer than ten global environmental treaties have been negotiated as well as literally hundreds of regional and bilateral agreements. Governments have also endorsed dozens of comprehensive action plans, most notably the 400-page Agenda 21, which set forth a blueprint for implementing sustainable development. The result is an increasingly complex and rich body of international environmental law and policy. At least on paper, this provides a broad framework for moving toward a more environmentally sustainable future.

Unfortunately, this rich body of treaties, action plans, and other instruments has not reversed global environmental decline. Virtually every major environmental indicator is worse today than it was at the time of the 1992 UN Conference on Environment and Development (UNCED or the Earth Summit) held in Rio de Janeiro. Climate change has caused the warmest decade in recorded history, the ozone layer continues to deteriorate, species extinction is at the highest rate since the end of the dinosaur era, fish populations are crashing, and toxic chemicals are accumulating in every part of the planet and in every living organism, including humans.

This essay looks first at the promise of the Earth Summit and then proceeds to analyze several critical areas where implementation has fallen short—and where U.S. leadership can make a difference in the next century.

The Promise of Rio

The 1992 Rio Earth Summit was heralded as the turning point for global environmental policy. More than one hundred countries came to the Rio summit, which sought to merge two critical international concerns—environmental protection and economic development—that had been evolving on different tracks during the 1970s and 1980s. For developing countries, the merger of environment and development was a major improvement over earlier environmental conferences and provided hope for increased North-South cooperation. In addition, the cold war had recently ended, and the rise of a one-superpower world meant that East-West conflicts would not dominate this conference, as they had earlier international environmental efforts.

On paper, at least, the Earth Summit did provide a potential vision for moving toward sustainable development—that is, toward both greater environmental protection and greater economic justice. The Earth Summit yielded two legally binding treaties: the Framework Convention on Climate Change and the Convention on Biological Diversity. Also a product of the Summit were a set of nonbinding general principles known as the Rio Declaration, a set of nonbinding principles on forest management, and the blueprint for sustainable development entitled Agenda 21.

The assembled governments also established the Commission on Sustainable Development (CSD) to integrate environment and development into the UN system while providing a forum to monitor the implementation of summit commitments.

Looking for U.S. Leadership

More than any other country, the United States is responsible for the existing gulf between Rio’s rhetoric of international environmental consciousness and the post-Rio environmental reality. Not only is the U.S. the world’s only remaining economic and political superpower, it’s also the largest polluter and the largest user of most important resources. Although the United States is often in the vanguard in recognizing global environmental threats and in calling for a multilateral response, it often lags in changing its own behavior. Once considered the leader in environmental regulation, the United States now lags well behind Germany and other European countries in adopting new and innovative regulatory approaches such as ecological taxes, extended product responsibility, and the precautionary principle on avoiding probable environmental damage.

Although a leader in previous environmental conferences and negotiations, the United States (under then-President George Bush) almost single-handedly undermined the Earth Summit. Just days before the Rio summit opened, for example, the United States announced that it would not sign the Biodiversity Convention, despite provisionally adopting the draft version at the end of the negotiation session two weeks before. Instead, the United States emphasized the need to conserve the world’s forests and offered what was considered a small, $150-million aid package to protect forests in developing countries. Southern leaders immediately labeled this gesture as “greenwash,” viewing U.S. support for forest conservation as a cynical effort to shift the focus from the North’s responsibility to control industrial pollution to the South’s responsibility to conserve forests as carbon sinks. Malaysia’s Ambassador Ranji Sathia responded, “The [$150 million] does not impress us. They are just trying to divert attention from their failing elsewhere—for example, in the watering down of the climate change convention and their refusal to sign the biodiversity treaty.”

Filling the Environmental Policy Gaps

Despite the many environmental regimes and action plans negotiated in the past quarter century, important gaps still exist in the international environmental policy framework. The framework has not developed in any systematic or strategic way. Rather it is a collection of numerous treaties, each addressing relatively discrete global or regional environmental issues. Superimposed over these binding treaties are a set of broader, nonbinding declarations or resolutions, such as the Stockholm and Rio declarations. No binding set of general environmental principles currently exists. Moreover, some new or particularly complicated environmental issues still await international attention, compounding the policy gaps.

Developing a Binding Framework of Environmental Principles. The lack of an overarching binding framework has many implications for the future effectiveness of international environmental policies. In trade and environment disputes, for example, environmental concerns are at a disadvantage, because the set of rules for international environmental protection is not as clear as the WTO’s trade rules. Binding environmental principles could help to achieve more balanced integration between environmental protection and other social goals like trade. Such principles could also provide a substantive basis for coordinating the activities of the many international institutions that currently claim a role in environmental policy. Finally, binding principles could help in establishing minimum environmental standards—both for private sector activities and for governments—by assisting in the harmonization of domestic environmental laws.

Despite the potential importance of binding principles, the United States has consistently opposed the development of any general environmental covenant. It argues that any covenant negotiated today would not sufficiently protect the global environment, because developing countries would defend their sovereign right to develop. The negotiation of a binding covenant may indeed magnify the overall influence of developing countries, because they do not generally have the financial and human resources to participate effectively in the contemporaneous negotiations of many separate environmental treaties and instruments. In fact, it may be exactly those fears of negotiating on a level playing field that drives U.S. opposition to a covenant rather than a fear that the resulting principles would be too weak.

Instead of pursuing a binding covenant, the United States seems intent on weakening some of the key proposed principles. For example, the United States is one of the few remaining countries still opposing the precautionary principle (which holds that a lack of scientific certainty should not be used to prevent cost-effective action to address potentially irreversible environmental threats). The U.S. approach to environmental regulation requires that there be proven environmental damage before control measures are taken.

Washington stands virtually alone in rejecting the precautionary principle—a guideline with significant implications for many global environmental issues. Based in part on the precautionary principle, Europe is championing a much stronger regulatory approach to biosafety issues such as the release of genetically modified organisms (GMOs). To make matters worse, the U.S. has been threatening to challenge Europe’s precautionary approach to GMOs in the World Trade Organization, basing its argument on the lack of definitive science for justifying GMO trade restrictions.

Getting the Rules Right Regarding the Climate Regime. Climate change may be the single most significant environmental issue of the next few decades. In the Kyoto Protocol, industrialized countries committed to reduce their net greenhouse gas emissions an average of 5% from 1990 levels by 2012. In addition, the parties also established an international trading system in carbon emissions. Tons of carbon emissions will soon trade like other commodities throughout the world. To incorporate as many countries as possible, the Kyoto Protocol was necessarily general, leaving many critical issues for future negotiations. By the end of 2000 the Conference of the Parties to the Protocol must address such issues as how to count the carbon sequestered by forests, landfills, and agricultural practices in calculating a country’s net greenhouse gas emissions; how to facilitate the trading of carbon emission credits between countries; and how to monitor and enforce such a trading system. Given America’s position as the world’s supreme carbon emitter and energy user, U.S. leadership in getting these rules right will be critical if the climate regime is to have any hope of responding effectively to the threat of climate change.

Imposing Liability and Providing Compensation. Few international environmental regimes have addressed the question of liability and compensation for harm caused to the environment. The Montreal Protocol, widely viewed as the model for all international environmental treaties, effectively banned the production and use of most ozone-depleting substances. But it did not hold those responsible for ozone depletion legally accountable, nor did it provide for compensating persons or countries that have suffered from ozone depletion. Even where liability issues have been generally acknowledged in international law—e.g., concerning damage caused by transboundary shipments of hazardous wastes—the parties have been deadlocked in trying to operationalize the concept of liability. The U.S. has often opposed international liability in these contexts, ostensibly out of concern that minimum levels of due process and fairness may be hard to ensure in international forums. However, America’s disproportionate responsibility for many global environmental threats and its vulnerability to liability claims also help explain U.S. opposition.

Emphasizing Environmental Restoration. Given how far we have come in damaging the global environment, international environmental efforts in the future will have to be focused more on environmental restoration than protection. Although more expensive and less effective than protecting resources in the first place, restoration may sometimes be the only choice left. Environmental restoration is now a dynamic part of domestic environmental management and will undoubtedly begin to inform future global environmental negotiations. In this country, for example, the increasing trend toward removal of dams, reintroduction of endangered species, and large-scale restoration projects—like the attempt to recover the Florida Everglades—portends a future focus of international cooperation.

As an example, international aid agencies are discussing whether to undertake a massive effort to restore coastal mangroves and interior watersheds in Central America. Many mangrove forests have disappeared as a result of shrimp aquaculture, and the region’s watersheds have been deforested for export timber. As a result, Hurricane Mitch struck with greater devastation. In the hurricane’s wake, political pressure has been building in the region for governments to restore these important ecosystems—so fundamental for the region’s environmental sustainability.

Addressing Persistent Chemicals. In June 1998, negotiations began in Montreal to establish a global convention to eliminate or manage twelve of the world’s worst chemical contaminants, including dioxins, PCBs, DDT, and other pesticides. These chemicals persist in the environment and accumulate in human and animal tissues. Many of them have been linked to cancer and to adverse affects on human endocrine systems. Although most countries concur on how to regulate the twelve chemicals currently identified in the agreement, major differences exist about how to add new chemicals to the list of globally regulated or prohibited substances. Also critical to any global accord will be the decision about whether countries that are the source of existing stockpiles of phased-out chemicals should be responsible for their disposal. The document (to be completed by 2000) has been closely monitored by the chemical industry, which is pressing the United States to narrow the agreement’s purview.

Water Shortages. Most experts agree that access to fresh water may be the most important natural resource issue for the next century. Human health, the environment, and even a country’s national security depend on access to adequate water supplies. But according to a recent UN Freshwater Assessment, humans are already using “about half” of the 12,500 cubic kilometers of water that is readily available. With world population expected to double in the next 50 years and with water consumption historically increasing at twice the rate of population, our global water situation is bleak. To make matters worse, water is allocated unevenly around the globe. Today, 460 million people or 8% of the world’s population live in countries already facing serious water shortages. Regional water shortages may thus exacerbate international conflicts and threaten national security if international management efforts are not successful. A 1997 UN convention on transnational water uses provides a beginning framework for managing these regional disputes, but long-term financial and political leadership from the United States and other powerful countries will be required for the convention to be successful.

Consumption Levels. The Earth Summit recognized explicitly that achieving sustainability would require addressing both population and consumption. Two years after the Earth Summit, the world’s governments came together at the Cairo Population Summit to negotiate a comprehensive plan to curb population growth, but the North has yet to allow any meaningful dialogue on consumption. The United States, in particular, has blocked international efforts to address consumption levels. Domestically, the U.S. lacks any comprehensive effort to “green” consumption and lags well behind Europe, for example, in adopting green taxes, ecolabeling procedures, “take-back” legislation (requiring industries to take back and dispose of their by-products at the end of their useful life), or other policies aimed at greening consumption. In the next century, no serious effort at achieving sustainable development will be able to avoid tackling the issue of Northern consumption levels and patterns.

Basel Convention on Transboundary Movements of Hazardous Wastes

The Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal was adopted in 1989 and entered into force in May 1992. This global environmental treaty regulates the transboundary movement of hazardous wastes and obliges its parties to ensure that such wastes are managed and disposed of in an environmentally sound manner. It also protects the right of states to ban entry of foreign waste into their territories. The United States signed the Basel Convention on March 22, 1989, but has not yet ratified it.

Convention on Biological Diversity

The Convention on Biological Diversity was signed by over 150 governments at the Rio Earth Summit in 1992 and entered into force in 1993. It has become the centerpiece of international efforts to conserve the planet’s biological diversity, ensure the sustainable use of biological resources, protect ecosystems and natural habitats, and promote the fair and equitable sharing of the benefits arising from the utilization of genetic resources. The convention was signed on June 4, 1993, but the United States has failed to ratified it.

Convention on Climate Change
Over 150 states signed the United Nations Framework Convention on Climate Change in June 1992 at the Rio Earth Summit, recognizing climate change as “a common concern of humankind.” The convention aimed to reduce emission levels of greenhouse gases to 1990 levels by the year 2000 but failed to set binding goals. The United States signed the treaty on June 12, 1992, ratified it on October 15, 1992, and entered it into force in the United States on March 21, 1994.

Kyoto Protocol to the United Nations Convention on Climate Change
The agreement sets, for the first time, legally binding limits on the heat-trapping greenhouse gases that cause global warming. Under the protocol, 38 industrialized countries agreed to reduce their overall emissions to about 5% below 1990 levels by 2012, and a range of specific reduction requirements was set for other countries. The U.S. signed the protocol on November 12, 1998, but has not yet ratified it.

Convention to Combat Desertification
The Convention to Combat Desertification in Those Countries Experiencing Serious Drought and/or Desertification, Especially in Africa (CCD) promotes an integrated approach to managing the problems posed by dry-land ecosystems and encourages developed nations to support such efforts internationally. The convention came into effect in 1996 and has over 120 parties. The United States has signed but not ratified the convention.

Convention on International Trade in Endangered Species (CITES)
CITES establishes international controls on global trade in endangered or threatened species of animals and plants. For example, CITES prohibits all commercial trade in wildlife species threatened with extinction. CITES was ratified by the United States on January 14, 1974, and implemented as the Endangered Species Act. More than 125 countries are members.

Montreal Protocol on Substances that Deplete the Ozone Layer
The Montreal Protocol—and subsequent revisions—is the primary international regime for controlling the production and consumption of ozone-depleting substances such as CFCs, halons, and methyl bromide. As of June 1994, 136 states, including virtually all major industrialized countries and most developing countries, had become parties to the protocol. The United States signed the protocol on September 16, 1987, and ratified it on April 21, 1988. The protocol and its subsequent revisions modified the original 1985 Vienna Convention for the Protection of the Ozone Layer.

International Environmental Law Principles

These principles have been adopted, as indicated, from either the Rio Declaration on Environment and Development or the IUCN Draft Covenant on Environment and Development.

Common Concern
The global environment is a common concern of humanity. (IUCN Covenant, Principle 13)
Notification and Consultation
States shall provide prior and timely notification and relevant information to potentially affected States on activities that may have a significant adverse transboundary environmental effect and shall consult with those States at an early stage and in good faith. (Rio Declaration, Principle 19)

Common but Differentiated Responsibilities
In view of the different contributions to global environmental degradation, States have common but differentiated responsibilities. (Rio Declaration, Principle 7)
Peaceful Resolution of Disputes
States shall resolve all their environmental disputes peacefully and by appropriate means in accordance with the Charter of the United Nations. (Rio Declaration, Principle 26)

Duty Not to Cause Environmental Harm
States have the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction. (Rio Declaration, Principle 2)
The Polluter Pays Principle
National authorities should promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution. (Rio Declaration, Principle 16)

Environmental Impact Assessment
Environmental impact assessment shall be undertaken for proposed activities that are likely to have a significant adverse impact on the environment and are subject to a decision of a competent national authority. (Rio Declaration, Principle 17)
The Precautionary Principle
Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. (Rio Declaration, Principle 15)

Global Partnership
States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem. (Rio Declaration, Principle 7)
Public Participation
Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. (Rio Declaration, Principle 10)

Integration
In order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it. (Rio Declaration, Principle 4)
Right to Development
The right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations. (Rio Declaration, Principle 3)

Nonrelocation of Harm
States should effectively cooperate to discourage or prevent the relocation and transfer to other States of any activities and substances that cause severe environmental degradation or are found to be harmful to human health. (Rio Declaration, Principle 14)
State Sovereignty
States have the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies. (Rio Declaration, Principle 2)

Improving the UN Architecture

No single institution legislates or manages international environmental problems. Scores of official and semiofficial organizations and agencies have at least some environmental mandate. In the future, global environmental governance will continue to involve an array of multilateral, national, and intergovernmental organizations together with citizen groups and treaties. This is as it should be, given that the concept of sustainable development embraces so many different disciplines and issues. But as Professor Dan Esty, a leading international environmental lawyer, has observed: “The difficulty with existing international institutions that address environmental issues . . . is that they have been given narrow mandates, small budgets and limited support. No one organization has the authority or political strength to serve as a central clearinghouse or coordinator.”

The UN Environment Program (UNEP) is widely considered the primary international environmental agency. Its mission is to “facilitate international cooperation in the environmental field; to keep the world environmental situation under review so that problems of international significance receive appropriate consideration by governments; and to promote the acquisition, assessment, and exchange of environmental knowledge.”

In recent years, financial and political support of UNEP has lagged, and most observers question whether it can effectively champion environmental issues within the UN system.

Partly in response to UNEP’s weaknesses and partly because of the many different international institutions that exercise at least some environmental authority, governments created the UN Commission on Sustainable Development (CSD) at the 1992 Earth Summit to coordinate and integrate environmental and economic issues within the United Nations. Unfortunately the CSD’s role is limited to providing a political forum for discussion, without any operational mandate or authority. The result is that international environmental governance is still spread across too many institutions with diffuse, conflicting, or weak authorities.

Given these problems in the UN architecture for international environmental governance, there may be no escaping the need for broad institutional reform. Several important leaders have called for such reform. In a 1997 speech to the UN General Assembly, German Chancellor Helmut Kohl suggested amending the UN Charter to include sustainable development as one of the two overall purposes of the UN and to establish a global environmental umbrella organization, with UNEP as a major pillar. In addition, Brazil, South Africa, Singapore, and New Zealand have also proposed a new, stronger UN environmental body.

Other specific proposals have been advanced, including the creation of an environmental organization with powers analogous to that of the World Trade Organization. Such an organization could consolidate the different environmental secretariats and UNEP, creating one organization responsible for ensuring the implementation and enforcement of environmental treaties. If a binding set of principles existed, a World Environmental Organization could also resolve environmental disputes more efficiently than can the current processes.

Less ambitious, and perhaps more realistic in the short term, would be to strengthen the growing number of regional environmental institutions that are being established to manage shared natural resources. For example, the International Joint Commission between the U.S. and Canada, which primarily aims at managing the Great Lakes, has been highly regarded as a model for the environmental management of shared watersheds. Regional fisheries management organizations are also emerging in many areas of the world and have been given potentially strong enforcement powers under recently negotiated global fisheries agreements.

Integrating Environmental Protection into the Global Economy

The concept of sustainable development requires the integration of environmental concerns into the fields of international trade, investment, and finance. Since the Earth Summit, environmentalists have made significant advances. Environmental issues are now legitimate concerns for discussion at such organizations as the World Bank and the WTO. Indeed most of the international financial institutions, e.g., the World Bank, have adopted new environmental policies and increased their environmental staffs. Even the IMF has created an environmental unit (albeit thus far with only one person).

Despite these policy and staffing advances, the successful practical integration of the environment and the global economy lags far behind. The approach of the international financial institutions (IFIs) continues to emphasize mitigating environmental impacts from poorly designed and inappropriate projects, rather than finding ways to proactively promote environmentally sustainable development. More importantly, the IFIs and trade institutions have not fundamentally reconsidered their general approach to building a global economy in light of the constraints implied by the concept of sustainable development. As a result, these institutions have failed to reduce significantly their adverse impact on the global environment.

Global Financial Architecture and the Environment. In light of the role that foreign capital flight played in precipitating the Asian and Russian economic crises, an increasing number of people have begun to question the dominant global economic prescription offered by the IMF and the World Bank. This prescription has long been promoted by the U.S. Department of Treasury as a critical component of U.S. foreign economic policy aimed primarily at maintaining stability on Wall Street by protecting foreign (i.e. U.S.) capital investments in developing countries. As these capital investments have increasingly become short-term and speculative, the social utility of protecting capital flows is increasingly questionable. Speculative, “hot flows” of capital are not intended for long-term productive investments. Protecting the rights of countries to impose capital controls, particularly on short-term investments, may be critical for ensuring both long-term stability and increased benefits from natural resources for local people.

Over the past decade, environmentalists have also shown that the IFIs frequently saddle developing countries with loan conditions that increase the pressures on natural resource exploitation with devastating environmental consequences. Among other things, these structural adjustment policies (SAPs) significantly increase the rate of forest harvesting, mining, and fishery harvests. While these SAPs are increasing natural resource exploitation, many governments are also being directed to reduce public spending, including funds for environmental protection and natural resource management.

To make matters worse, large structural adjustment loan packages heap additional debt onto already heavily indebted countries. Due in large part to civil society pressure in the past few years, some limited debt relief may be on the way for the world’s poorest countries. But the United States must take a much greater leadership role in prodding the World Bank and the IMF to make broader and deeper cuts in developing country debt. Such a step could help alleviate the pressures on low-income countries to exploit their environments in order to service their foreign debts.

Greening International Trade. Shortly after the 1992 Earth Summit, the United States, Canada, and Mexico signed the North American Free Trade Agreement (NAFTA). Negotiated by the outgoing Bush administration, NAFTA originally avoided addressing the environmental or labor aspects of free trade. Pressure from environmentalists ultimately led to negotiation of an environmental side agreement, which ostensibly reflected the Clinton administration’s increased commitment to integrating the goals of environmental protection and trade liberalization. Following closely on NAFTA, the Clinton administration also promised to green the WTO in a 1993 speech by Vice President Al Gore. Unfortunately, this would later prove to be the high-water mark of the Clinton administration’s commitment to integrating trade and the environment.

Despite occasional promises to the contrary, free trade has become the paramount value driving most U.S. international relations under the Clinton administration. Lost is the balanced goal of integrating environment and trade as pronounced at the Earth Summit and subsequently in the environmental side agreement to NAFTA. A case in point is the administration’s effort to railroad the so-called fast-track trade bill through Congress in 1997. The president’s proposal largely ignored environmental issues and was thus universally opposed by all environmental groups (even those who had previously supported NAFTA). Nor has the United States shown any leadership in promoting sound environmental policies at the WTO. Although the WTO did create a Committee on Trade and the Environment shortly after Vice President Gore’s 1993 speech, that committee has been largely ineffectual in catalyzing any meaningful trade and environment policy.

Ultimately, the problem may be that liberalizing trade and investment is too often viewed as a positive goal in its own right. Lost is any critical analysis of whether such liberalization always leads to improvements in human welfare and quality of life. Goals such as environmental protection, human rights, and social equity—which are arguably more closely linked to human welfare than is liberalized trade—have been relegated to the back seat during the drive toward free trade. Only by honestly evaluating the environmental and social impact of liberalizing trade and investment, sector by sector, can we determine whether expansion or contraction of the world trade system is more likely to lead to a sustainable future. Thus the United States should support calls by environmentalists for a thorough analysis of the impacts of current trade policies on environmental sustainability before supporting any expansion of liberalized trade and investment policies.

Respecting Global Environment Agreements. IFIs and trade institutions also need to do a better job of mainstreaming concerns about the environment into their day-to-day operations. This general issue is highlighted by the way in which these institutions relate to the multilateral environmental agreements (for example, the climate change regime or the Montreal Protocol with respect to ozone depletion). The IFIs have yet to prohibit funding projects that exacerbate the very same problems that these global environmental regimes are meant to address.

The U.S. Overseas Private Investment Corporation (OPIC) has recently adopted a hopeful approach, announcing that it would not finance any projects that are inconsistent with certain international environmental obligations—for example, projects that use ozone-depleting substances controlled by the Montreal Protocol, projects that manufacture certain toxic chemicals, or projects affecting sites listed under the UNESCO World Heritage Convention. Yet OPIC continues to finance projects that have a significant negative impact on the climate system. Similarly, the WTO still struggles with how to dovetail international trade law with international environmental agreements—although in a recent decision, a WTO dispute panel did agree that international environmental agreements should be taken into account when deciding an international trade dispute.

Balancing Investment Rights with Privileges. In promoting broad investment agreements, such as the proposed Multilateral Agreement on Investment (MAI), the United States and other Organization for Economic Cooperation and Development (OECD) countries are trying to formalize into international law a reduction in the power of national and local governments to control the environmental and social impacts of foreign investment. Adoption of “free trade” in investment capital would mean that companies would enjoy all of the benefits of free capital flow and repatriation of profits while accepting none of the environmental and social responsibility inherent in the goal of sustainable development. Sovereign nations should be able to retain the right to regulate how foreign investors operate in their territory and to determine the extent to which local people should be given preferential treatment with respect to local resources. Although this may in some cases lead to reduced environmental protection, ensuring that local people benefit from natural resource exploitation is not only fair but, in the long run, will likely lead to more sustainable development.

Although transnational corporations often operate in developing countries with higher environmental standards than do local companies, transnationals typically follow lower standards than they practice at home. Adhering to lower standards in developing countries raises serious questions of equity and competitiveness. To minimize the impact of lower standards abroad, the United States should ban the export of domestically prohibited technologies and goods and should impose minimum environmental standards on U.S. corporations operating abroad. The United States should also provide fair and equal judicial access to foreign citizens and communities harmed by environmental damage caused by U.S. corporate activities.

Greening Technology Transfers. The markets for environmental investments are large and increasing; for example, investments for global pollution control are expected to reach $300-600 billion per year by 2000; investments in energy efficiency projects are expected to total another $250 billion in the next 20 years. Many of these opportunities for environmental investments are being created or stimulated by international and domestic law. For example, the Kyoto Protocol under the climate change regime now requires a reduction in net greenhouse gas emissions in industrial countries, which may in turn create a massive new market for renewable and efficient energy technologies. Transferring these green technologies to developing countries should be a priority of both U.S. and international finance lending. Such lending should be earmarked for shifting societies to appropriate, nonpolluting technologies and not simply for improving the efficiencies of fundamentally unsustainable technologies, such as coal-fired power plants or nuclear reactors.

Emphasizing the Individual to Protect the Global Environment

Perhaps the most promising development for protecting the global environment since the Earth Summit is the rise of a global environmental movement. The number of environmental nongovernmental organizations (NGOs) addressing international issues, particularly in developing countries, has exploded in recent years, as has their capacity to build networks, gather and analyze technical information, and gain the attention of key policymakers. Virtually every country has at least one environmental NGO, many of which actively seek to collaborate with their colleagues from other countries.

Today’s communication technology has also increased the effectiveness of the global environmental community considerably. The Internet, in particular, provides a vast opportunity for forming and maintaining global networks, sharing information and experiences, and coordinating international lobbying efforts. In this regard, the most important developments are not in the formation of permanent federations or groups of formal networks but in the ability of temporary networks and campaigns to form, adapt, and dissolve readily. This dynamic process allows for concentrated efforts through new and changing alliances that focus on specific issues. It allows coordinated action in many different countries around the same issue, with little need for expensive infrastructure or costly planning meetings. Success often depends as much on internal diplomacy—the ability to maintain the interest of a large number of NGOs through the use of information technology—as on any external communication strategy. In the Internet world, NGOs may have a slight advantage over corporations in that the informality of the NGO community helps in conducting business through the Internet, and trust can build quickly among NGOs with shared goals and vision.

Protecting Unrestricted Citizen Access to the Internet. Effective Internet use by citizen movements has not gone unnoticed by those who benefit from isolating civil society. Given recent pronouncements by several countries,—including Russia and Vietnam—about restricting or monitoring international Internet communication, and given the ongoing discussions by U.S. law enforcement agencies about obtaining the capabilities to monitor Internet messages, maintaining unrestricted access to the Internet must be a high priority for the global environmental movement.

Democratizing International Environmental Law. Traditionally only nation-states have had the right to participate in the making, interpretation, and implementation of international law. This model is being challenged with respect to international environmental law, however, as many nonstate actors assume more prominent roles. Nowadays nonstate actors—for example, transnational corporations and NGOs—gather their own information, make their own alliances, and expect to participate fully in international affairs. To be sure, the primary impact of NGOs is indirect—through pressuring national governments—but in recent years NGOs have also begun to participate directly in international environmental negotiations. For example, the U.S. delegations to international meetings now routinely include both environmental NGO and industry representatives as unofficial observers. Given that environmental NGOs are generally more likely to insist on environmental protection than are government representatives, this trend toward the democratization of international environmental law will generally work to the environment’s advantage.

A few forums also now exist that give citizens a more direct role in enforcing stronger environmental policies. Prodded by NGOs and donor governments, for example, the World Bank created an inspection panel in 1993. The creation of this panel marked the first time in history that people harmed by an international institution could seek an investigation into that institution’s activities without first involving their government. Although the panel process has become highly politicized, in almost every instance claimants have received some relief and have triggered important discussions and debate about reforms at the highest level of the World Bank. The Asia Development Bank and Inter-American Development Bank now offer similar mechanisms for citizen-based enforcement. The International Finance Corporation (which is part of the World Bank) recently created an ombudsman’s office to hear citizen complaints, and it is also considering creating an inspection panel. Another recent citizen forum is the petition process of the NAFTA Commission on Environmental Cooperation, through which citizens can question the effectiveness of any NAFTA country’s environmental enforcement efforts. All these citizen forums need to be strengthened and others created to expand the role of citizens in protecting the global environment.

Democratizing International Environmental Law. Traditionally only nation-states have had the right to participate in the making, interpretation, and implementation of international law. This model is being challenged with respect to international environmental law, however, as many nonstate actors assume more prominent roles. Nowadays nonstate actors—for example, transnational corporations and NGOs—gather their own information, make their own alliances, and expect to participate fully in international affairs. To be sure, the primary impact of NGOs is indirect—through pressuring national governments—but in recent years NGOs have also begun to participate directly in international environmental negotiations. For example, the U.S. delegations to international meetings now routinely include both environmental NGO and industry representatives as unofficial observers. Given that environmental NGOs are generally more likely to insist on environmental protection than are government representatives, this trend toward the democratization of international environmental law will generally work to the environment’s advantage.

A few forums also now exist that give citizens a more direct role in enforcing stronger environmental policies. Prodded by NGOs and donor governments, for example, the World Bank created an inspection panel in 1993. The creation of this panel marked the first time in history that people harmed by an international institution could seek an investigation into that institution’s activities without first involving their government. Although the panel process has become highly politicized, in almost every instance claimants have received some relief and have triggered important discussions and debate about reforms at the highest level of the World Bank. The Asia Development Bank and Inter-American Development Bank now offer similar mechanisms for citizen-based enforcement. The International Finance Corporation (which is part of the World Bank) recently created an ombudsman’s office to hear citizen complaints, and it is also considering creating an inspection panel. Another recent citizen forum is the petition process of the NAFTA Commission on Environmental Cooperation, through which citizens can question the effectiveness of any NAFTA country’s environmental enforcement efforts. All these citizen forums need to be strengthened and others created to expand the role of citizens in protecting the global environment.

Per capita CO2
Emissions 1995
(metric tons)

Source: World Resources Institute, World Resources 1998-1999: A Guide to the Global Environment (New York: Oxford University Press, 1998).

The expansion of citizen rights within the international system will come at a cost, however. As nation-states relinquish their monopoly on international policymaking, corporations (not just individuals or civil society organizations) will also gain greater access and power. Already the influence of corporations on formal international governance structures is apparent. Corporations that contribute large sums of money to the so-called “host” committees for international meetings, such as the recent NATO Summit in Washington or the upcoming Seattle Ministerial of the WTO, are promised special access to the delegates. UNEP has also sought contributions from both environmental groups and industry to help pay for the negotiations of a binding treaty on persistent organic pollutants. Environmental groups will not be able to compete with the chemical industry in a treaty negotiation if financial contributions become the currency for access and political influence.

Developing Minimum and Uniform International Administrative Procedures. Transparent and accountable procedures in international affairs can temper rising corporate influence. Campaigns to press for increased access to information and to attain citizen rights to participate in international institutions are ongoing simultaneously at many different international institutions. Thus, for example, efforts to ensure minimum levels of transparency and access to information are currently being waged at the WTO, the IMF, the United Nations Development Programme (UNDP), and the multilateral development banks.

U.S. Energy Consumption and Population
Figures as Percentages of the World Totals

x
1970
1995
2010(est.)

U.S. Energy Consumption*
32.7
24.8
21.0

U.S. Population**
5.5
4.6
4.3

Sources: *U.S. Department of Energy, Energy Information Administration, International Energy Outlook 1997 (Washington, DC: Energy Information Administration 1997).
**United Nations Department of International Economic and Social Affairs, World Population Prospects (New York:
UN 1994).

Conclusion

A minimum level of citizen-based rights to information, participation, and independent review should be provided at all international institutions. Currently no minimum procedures or standards exist, and civil society ends up duplicating its efforts for improving governance at every institution. To avoid repeating the same battles with each regulatory body, governments should negotiate one international “administrative procedures” treaty covering all the relevant institutions. Models currently exist that can be used for the development of such a treaty—for example, Europe’s Convention on Public Participation in Environmental Decisionmaking.

As the United States has been a leader in promoting greater transparency and participation at individual international organizations, it should also promote harmonization of minimum standards for international governance through an administrative procedures treaty.

Integrating Human Rights and the Environment. Human rights laws may also present important opportunities for gaining better environmental protection. Intuitively, people support the fundamental human right to enjoy minimum amounts of air and water free of contamination; to grow crops in a stable climate system on land protected from harmful ultraviolet radiation; in short, to live and raise their children in an environment conducive to human life and health.

Regardless of whether the human right to a healthy environment is recognized, however, the relationship between environmental protection and human rights is a natural one. Environmental damage is often worse in countries and in areas where human rights abuses are greatest, particularly where outside forces are driving the exploitation of valuable natural resources—for example, gold or oil—over the objections of local communities. Repression is often the only way to force this type of “development,” particularly when little or no benefit is obvious for the local community. Leading environmental activists such as Chico Mendes and Ken Saro Wiwa have been killed and many others have been beaten for raising their voices. In many of these instances, the international human rights movement offers the best hope for protection from internal oppression.

In hindsight, we can now see that the UN Conference on Environment and Development held in Rio de Janiero never effectively addressed the speed and scale of the global economy. Although UNCED raised questions about unsustainable levels of consumption and emphasized the goal of sustainable development over economic growth, the conference did not herald a significant shift away from the global preoccupation with economic growth. Indeed, at least until the economic crises in Asia, Russia, and Brazil, the 1990s witnessed an unprecedented and uninterrupted drive toward a global economy, with virtually no recognition of the goal of sustainable development.

Globalization is being supported by international policies and institutions that attempt to remove regulatory barriers to the flow of goods, services, and capital. No set of governments or institutions is managing the global economic tide, which is strong and unpredictable. At least with respect to environmental protection, international organizations (both economic institutions and environment and development bodies) lack both the authority and the will to manage the global market for sustainable development. Moreover, agreements such as the MAI—designed to facilitate global markets—will undermine national efforts to impose environmental protections.

As we have discussed, scenarios for imposing environmental controls on global markets involve greatly strengthening current global environmental policy and institutional frameworks. Global economic regimes could even be greened from the inside if leading economic powers made sustainable development a priority. Human rights, too, may provide a mechanism for checking the environmental excesses of the global market economy, although complicated and technical environmental problems are generally more conducive to complex management regimes than to a black-and-white system of minimum rights. Yet whatever mix of these approaches is used to nudge the global economy toward more sustainable development, it will have little chance of success until the United States takes a leadership role in pursuing global environmental protection above unbridled economic growth.