Global Networks and International Environmental Lawmaking: A Discourse Approach

I. THE RISE OF GLOBAL NETWORKS The concept of "networks" is gaining currency in the study of global politics and international law. The term usually refers to a loose organization of nonstate actors characterized by "voluntary, reciprocal, and horizontal patterns of communication and exchange."1 A network operating globally may include individuals (activists, scientists, or government actors), nongovernmental organizations ("NGOs"), social movements, and intergovernmental organizations ("IGOs"). Network members interact with each other, with states, and with other IGOs to promote their political agendas both within and outside institutions of global governance. Much of this network activity takes place outside of state and intergovernmental structures. There are an increasing number of international environmental standard-setting initiatives taken without any participation on the part of the state, much less state primacy.2 The focus of this Article, however, is the direct and indirect participation of global networks in international environmental decisionmaking fora, as a matter of both practice and aspiration. The discussion below is limited to two forms of networks involved in international environmental lawmaking, in which NGOs are key members-networks of environmental nongovernmental organizations ("ENGOs") and business and industry nongovernmental organizations ("BINGOs"). The rise of global networks is closely linked to the "democratic deficit"3 in global governance because individuals and private organizations increasingly perceive themselves as excluded from policy decisionmaking that affects their interests. This participatory gap in global governance stands at the center of much scholarly debate across disciplines. It is often claimed that the involvement of global networks in international lawmaking improves the democratic quality of political arrangements because it gives people more control over the ways their lives will be governed-something that nondemocratic governments refuse to provide and democratic governments are increasingly unable to provide.4 In attempting to explain the motivation for global network activity, international relations scholars have looked at the domestic opportunity structure and its impact on transnational activism, or, in other words, the local institutional conditions under which network members operate and the network's points of access to the domestic political system. These scholars have documented how domestic groups in repressive regimes try to bypass their governments and to seek allies to bring pressure on their governments from the outside by linking with international NGOs and transnational networks of activists.5 In repressive regimes, the lack of domestic political opportunity to influence policymaking is what brings collective actors to seek allies transnationally. Their allies in democratic regimes cooperate with them in an effort to bring about change in the repressive target-state by coercive means (mostly through tactics of public shaming and economic pressure). But this still does not explain what motivates nonstate actors in democracies to initiate collective action. If the domestic political opportunity exists, as it does in democracies, and domestic actors can find channels of influence in their own countries, why would they resort to transnational action and act through global networks? A possible answer is that easy access to the political system might be a precondition to, but does not guarantee, policy outcomes. And so when local NGOs in democracies find it difficult to reach the desired policy changes domestically, they seek global channels of influence to achieve their goals. A related explanation, which stands at the center of international law discourse on public participation, concerns the consequences of globalization on the national policymaking capacity of democratic governments.6 International lawyers have identified a growing shift in the decisionmaking authority from states to international institutions, which creates a "democratic deficit" in international law. …