The Emergence of Global Environmental Governance Law

Global environmental governance (GEG) is a normative institutional regulatory intervention and social construct that aims to influence how people interact with the environment in the global. It entails a pluralistic, dynamic, multilevel (national, regional, international), multi-actor (state and non-state actors) process of change which idealistically aims to optimise environmental benefits and use, while at the same time seeking to equally protect environmental capital for the benefit and use of present and future generations. Law is an important part of and plays a critical role in GEG. Law is the constitution of GEG; law legitimises GEG; law creates GEG actors and allows them to govern; law provides the authority to these actors to govern; law prescribes how to govern and what to govern; and law provides the minimum legal thresholds for what is deemed acceptable or unacceptable societal behaviour vis-à-vis the environment. Law therefore ultimately fulfils a distinct constitutive, legitimizing, prescriptive, proscriptive, instrumentalist, and guiding function in and of GEG. Environmental law could arguably be considered the primary body of rules in GEG. Yet, in tandem with the globalisation (or transnationalisation) of law alongside a continuously disaggregating GEG effort, numerous other types of legal rules are assuming increased importance in the GEG paradigm. These include, for example, investment law, international organisational law, administrative law, trade law and humanitarian law, among others, and a host of reflexive, informal, non-state (yet law-like) rules such as the Equator Principles, at all levels of governance. The hypothesis of this paper is that ‘traditional’ (national, regional and international) environmental law alone cannot continue to fulfil all the functions that law must fulfil in GEG. While environmental law will no doubt remain the predominant body of law in GEG, the emergence of a more coherent body of GEG instead requires an extended view of law in the global. This paper proposes that global environmental governance law (GEGL) is a more suitable phenomenological conception that could cater for the diverse needs of disaggregated GEG. GEGL is an emerging amorphous body of law and it could include any sub-discipline of law to the extent that it is relevant to facilitating GEG or to achieve the objective of GEG. GEGL thus transcends and recasts the traditional disciplinary boundaries within and of law; the traditional geographical delineation of national, regional and international levels with respect to law; and the traditional sources of law into global rhetoric. It also necessitates rethinking the regulatory link between law and the objectives of law in the global environmental regulatory domain. In light of the foregoing, this paper: Explains ‘the global’ and its implications for environmental law and governance; Describes the disaggregated global architecture of GEG in the context of the global; Investigates the role of law in GEG; Investigates the globalisation of (environmental) law and the rise of GEGL; Proposes broad conceptual parameters for GEGL; and Describes what it understands under GEGL