Academic journal article Missouri Law Review

The Disaggregated State in Transnational Environmental Regulation

Academic journal article Missouri Law Review

The Disaggregated State in Transnational Environmental Regulation

Article excerpt

I. INTRODUCTION

This Article argues against a positivist view of international environmental law that (i) conceives of states as unitary entities that speak with one voice in pursuit of a single national interest, (1) and that focuses on (ii) authoritative sources of law and (iii) the binding force of these sources of law. Further, this Article argues for a view of transnational law that (i) views the state as disaggregated, rather than unitary, (ii) focuses on informal legal mechanisms that do not have authoritative status and (iii) directs attention towards law's facilitative functions and away from law's binding force. This special issue's theme of transnational administrative law is specifically addressed by looking at a case study of transnational regulation, and an examination of the antecedents for this form of regulation in the administrative structures of Canadian federalism. But first, a point about terminology.

"International environmental law" is typically categorized as a subset of public international law, which is "a body of law created by nation states for nation states, to govern problems that arise between nation states." (2) International environmental law is further typically defined in terms of its authoritative binding sources (3) and the subject matter it regulates, namely the environment. (4) In this Article, I use the term "transnational environmental law" to denote the body of law that regulates environmental matters that lie beyond the capacity of individual states to regulate. This body of law is not necessarily created by states acting as unitary entities, nor does it necessarily regulate such states.

This Article analyzes a particular administrative form of transnational environmental law that arises from interactions among sub-national units and draws on three bodies of literature: transnational network theory, global administrative law, and theories of federalism. These bodies of theoretical writing are drawn upon in order to demonstrate that transnational environmental regulation can involve disaggregated, rather than unitary states, as well as regulatory instruments that have neither an authoritative source nor binding effects; this form of transnational administrative regulation can further be explained in non-positivist and federalist terms. The Article aims to make two main contributions. First, through a discussion of concrete examples, it aims to illustrate and refine the theories it applies. Second, the Article aims to demonstrate that the dominant positivist conception of international environmental law is incomplete. In particular, the Article argues that a non-positivist theory of transnational environmental regulation that draws on transnational network theory, global administrative law, and theories of federalism can account for forms of transnational environmental regulation that the dominant positivist conception of environmental regulation is incapable of adequately explaining.

Before engaging the main arguments of this paper, the theories upon which this Article draws are briefly outlined and the contrast between these theories and a positivist view of international law will be highlighted. The following paragraphs will indicate how the literature on transnational network theory and global administrative law contrast with elements of the positivist view of international law, and how the literature on environmental federalism and non-positivist federalism can be interpreted to contrast with the positivist view.

First, consider transnational network theory, whose proponents argue that relationships among states are increasingly shaped by interactions among actors from various states who work within the legislative, adjudicative and administrative branches of their respective states, and in particular, in regulatory agencies. (5) These emerging regulatory networks displace the form of international cooperation that Professor Kal Raustiala has called "liberal internationalism", which is "[b]ased on multilateral treaties, often coupled with international organizations[. …

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