Citizenship entitlements beyond borders? Identifying mechanisms of access and redress for affected publics in international environmental law

Global Governance, July-Sept, 2006 by Michael Mason

I argue that although international law is state centric in nature, there is a growing body of international environmental law that allows at least some input from public actors in implementing key substantive and procedural obligations. The evolution of these environmental entitlements is linked to the global diffusion of democratic norms of civic participation, the application of the nondiscrimination principle in both public and private international law, and the cosmopolitan reach of human rights claims. It is at the intersection of individual and nongovernmental organization (NGO) rights with interstate obligations that transnational citizenship entitlements are emerging--notably equal opportunities for access and redress for affected publics. I critically survey relevant multilateral environmental agreements to gauge the significance of rule making bestowing entitlements on publics affected by transboundary and global environmental harm. KEYWORDS: citizenship, international, publics, environmental law.

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Insofar as states have fairly and (reasonably) effectively addressed the general concerns of their constituent populations, there has been little need to question their exclusive determination of citizenship rights, because citizen entitlements and obligations have aligned comfortably with state membership. But this historic correspondence of citizen self-determination with a national government has been upset by the increasing willingness of states to share some sovereign powers in order to address new economic, environmental, and security interdependencies. The "unbundling" of functional governance from fixed territories has seen citizens give up their formal approval of key policy decisions in exchange for a more remote, indirect say in supranational or international decisionmaking bodies. (1) Efforts to address growing transnational flows of ecological harm are at the forefront of these governance transformations, as is evident in the proliferation of multilateral environmental agreements (MEAs) over the past three or four decades. For citizens in countries facing transboundary ecological risks, the incapacity of their home states to reduce these threats unilaterally represents a potential breach of a core citizenship entitlement--the right to protection from injury caused by activities taking place beyond the territorial borders of their home country. Both the authority of a state over its citizens and their identification with it as citizens are deeply unsettled by such a protection failure: their state is exposed as incapable of preventing damage to their lives and vital interests. (2) International cooperation may be the only realistic way for states to seek to prevent an ecological protection failure, yet the indeterminacy of multilateral rule-making processes and outcomes clouds the traditionally clear lines of political accountability running between citizens and their governing representatives.

If we accept that freedom of self-determination--founded on equal opportunities for participation--is at the heart of democratic citizenship, then the need to regulate transboundary (and global) environmental risks creates realms of public concern across and beyond nation-state borders. These communities of shared fate are multiple and dynamic: they expose the political shortfall of the domestic entitlement of citizens to have an influence on decisions significantly affecting their interests, as many such decisions are now taken outside the reach of their home states. Transnational notions of citizenship invoke the right of democratic governance for individuals affected by extraterritorial institutional orders and actors. In the first place, this is a moral appeal that holds all persons to be entitled to equal standing with regard to the defense of their vital interests. Not surprisingly, the most obvious source of such universal moral regard is human rights protection, for violations of basic rights commonly elicit feelings of indignation among distant onlookers as well as among conationals. (3) Some accounts of cosmopolitan obligations have emphasized the central role of human rights in determining participation rights in decisionmaking as well as in determining principles of distributive justice. From this cosmopolitan perspective, safeguarding individual well-being is paramount, and there has been some recognition that this protection may well extend beyond personal integrity and autonomy to encompass vital ecological conditions of existence. (4)

The subject of this article is less the moral justification of a cosmopolitan citizenship than it is the identification of legal norms supporting perhaps its most relevant duty for environmental protection--the prevention of significant harm to foreign affected publics. There is an emerging body of international law that, although state centered in its formulation and implementation, is attuned both to safeguarding collective ecological interests and to allowing at least some input from public actors in administering its constituent environmental obligations. The cosmopolitan scrutiny of sovereign state relations according to democratic criteria of interest representation and communication has so far not examined the existing regulation of sources of transnational environmental harm. (5) Yet it is the intersection of individual rights and responsibilities with (inter)state obligations that offers concrete possibilities for citizen participation in global decisionmaking.