The Transnationalisation of Environmental Law

The Transnationalisation of Environmental Law ABSTRACT This article outlines a critical approach to the emerging discourse of transnational environmental law. It highlights how transboundary activities and organisational structures increasingly shape environmental law, and how legal discourse interprets these developments. In particular, the article unpacks the manifold transnational regulatory structures and explains their interactions with state-made environmental law. It also discusses the legal quality and constitutional issues of transnational norms and analyses the added scientific value of the concept of transnational environmental law. We argue that transnational norms governing the use of public goods are generally not binding on third parties. Accordingly, they have to be ‘re-embedded’ into well-established political and legal processes. In other words, these norms and mechanisms have to be complemented, endorsed or limited by formal legal structures to become a legitimate part of environmental law. 1. Introduction In the course of globalisation, law is increasingly shaped by informal organisational structures. Transboundary problems are no longer only handled at the international level (‘high politics between diplomats’), but increasingly by a variety of actors which cooperate across national borders. The latter encompass inter alia close networks of economic actors, experts, or specialist agencies. Norms emerging out of these interactions are increasingly referred to as transnational law.1 The concept of transnational law raises problems however, especially in the area of environmental law. While many examples of transnational law address the regulation of private cross-border relations, environmental law is primarily concerned with protecting public goods. Therefore, legal interests, positions, and rights of third parties are regularly involved, which are traditionally decided upon with sovereign authority by political institutions or state courts.2 While this definitely holds true for civil law systems such as France or Germany, it is also the case in common law systems where both legal and administrative decision-making is much more embedded into an adversarial style procedure.3 In the context of governing public goods, the notion that non-state norms have acquired a high degree of mandatory force, which is what the term ‘transnational law’ suggests, is especially surprising. Accordingly, many scholars perceive ‘transnational environmental law’ as a genuine subject for legal studies.4 However, it remains to be seen whether and to what extent those rules referred to as transnational environmental law really have mandatory force outside existing institutional contexts. We would deem it more instructive, both in practical and theoretical terms, to study the interaction of those emerging norms with the classical set of state laws and legal decision-making procedures.5 This is where the thesis of the ‘transnationalisation of environmental law’ becomes relevant. It states that transnational rules and decisions often exert no direct effect, but do so mainly after they have been adopted by and integrated into national and international environmental law.6 Nevertheless, transnational regulatory mechanisms can emerge where there are not yet binding international rules. Transnational law could therefore prove to be significant in shaping globalisation if its informal norms take practical shape before international rules have a chance to be developed. This article aims to outline a critical approach to the internationally emerging discourse on transnational environmental law and to confront it with the thesis of the transnationalisation of environmental law. For this purpose, following a conceptual analysis, ‘transnational law’ and the ‘transnationalisation of law’ are defined (Section 2). We then go on to present various types of transnational rules and decision-making structures in the field of environmental protection and the sustainable use of resources (Section 3). By elucidating the connections and interplay between national and international law, transnational rules and decision-making structures are introduced as elements of the global regulatory framing of public goods. Here, the extent is shown in detail to which the integration of informal regulations into positive environmental law leads to the latter’s transnationalisation (Section 4). This finding is followed by an inquiry into the legal quality as well as the constitutional practice vis-à-vis these sets of informal norms that emerge out of cross-border interaction (Section 5). The article ends by summarising its key arguments and looking at future prospects (Section 6). 2. Transnational and Transnationalized Law Transnational law is a hot topic these days. Legal research institutes, master programmes and academic journals draw on its prominence (since 2012, there is even a journal titled Transnational Environmental Law published by Cambridge University Press).7 However, the term is used to denote highly different phenomena, developments and theories. The following section provides a brief conceptual history and our own reading of the transnational law concept. 2.1 Conceptual History The concept ‘transnational’ was probably first used in the USA during the First World War, when conflicts between groups of different ethnic origins became evident. With the concept, the journalist Randolph Bourne advocated a counter-model to the then common notion of a national unifying ‘melting pot’.8 In his opinion, refugees and migrants should, on the one hand, maintain their traditional ties and, on the other hand, seek ways of reconciling their differing perceptions and values. The goal was to combine cultural diversity with a cosmopolitan vision and to achieve some kind of international understanding from below. In German law in the 1930s, the term was applied to internationally uniform legal norms by authors such as Gutzwiller and Rabel.9 In the 1950s, it was the international lawyer Phillip Jessup who particularly popularised the concept of transnational law.10 In his view, the term comprehensively encompassed any national and international law regulating cross-border issues, including rules with cross-border relevance generated by private actors.11 In the 1990s, the term was then again taken up by a number of authors to describe new legal phenomena in the context of globalisation.12 In particular, Anne-Marie Slaughter emphasised the emergence of transnational administrative and judicial cooperation.13 As a result, ‘transnational law’ received considerable attention and developed into a broadly confined subject matter providing a specific new perspective on various existing and developing legal phenomena.14 The various approaches to transnational law have in common that they stress the importance of non-state actors or of administrative networks for the transboundary design, application, and enforcement of norms. This decentralisation allows attention to be paid to local concerns as well as new phenomena but also leads to arbitrary and conflicting ideas about transnational law. Often, the different approaches only share the assumption that in the course of globalisation state-based law is complemented by other legal and regulatory formations which should be included into the study of law. Two main groups of ‘transnationalists’ can be distinguished. For one, the concept of transnational law mainly focuses on private cross-border regulatory processes.15 For the other group, the term also includes sovereign or semi-private cross-border regulatory processes that emerge during the cooperation of actors below the intergovernmental level. Examples are institutionalised administrative and judicial cross-border networks, associations of semi-governmental organisations, arbitration courts that have become independent from their international legal basis, public–private-partnerships or informal networks of judges, parliamentarians, officials or scientists.16 Some also take EU law as well as various institutions and regulations under the umbrella of international organisations to be transnational law.17 Overall, transnational law is ‘not a singular neatly delineated concept’.18 Rather, it is a phenomenon where ‘conventional boundaries erode’.19 Eventually the concept of transnational law is used in different contexts to describe highly varied regulatory phenomena.20 Neither in the German nor in the Anglo-Saxon debate is it apparent that the scholars involved follow a common, coherent, or in any way unified theory.21 At the same time, developments (or partial aspects) related to transnational law are discussed by using other expressions and terms, eg supranational law, global law, regulatory governance, interlegality, etc.22 Accordingly, Gregory Shaffer refers to the literature on transnational law as ‘a jungle without a map’.23 2.2 The Concept from the Perspective of Public Law In order to avoid conceptual vagueness and to promote methodological clarity and doctrinal coherence with regard to the concept of transnational law, we need to study in greater detail those phenomena usually associated with it. Qualifying all legal norms applicable to transboundary contexts as transnational law, as Philip Jessup did, widened the concept of transnational law and was useful to open the scope of attention to all kinds of legal phenomena crossing national borders; a closer examination of different forms of norms’ cross-border effects, however, requires higher conceptual clarity. Given the close linkage and complex interplay between private and public-law norms in global regulatory processes, the alternative of focusing on purely private legal norms only seems to us too narrow a view.24 Rather, there are shifting overlaps. For example, private law-making may be initiated and endorsed by public international organisations, such is the case of voluntary self-commitments of private companies within the framework of the UN Global Compact.25 Other examples are how NGOs are significantly involved in the drafting of guidelines in the field of toxic substance control by public authorities of different countries26 or how private actors in the shipping sector establish standards to reach the goals of the Paris Agreement.27 Furthermore, there is cross-border cooperation of a primarily public-law nature, such as the informal coordination of authorities on the consistent implementation of environmental and planning legislation.28 According to our understanding transnational law would have to be understood as those norms, procedures and decisions that regulate social life in binding fashion but neither emanate from national nor international sources of law. They would rather be established by private, civil society or administrative actors outside of parliamentary or governmental competencies. To us, however, it seems prima facie questionable whether there can be transnational law in this sense in the field of environmental policy at all.29 In our view, transnational norms are instead rules and principles which, by themselves, exert no authoritative binding force. The transnationalisation of law therefore means that national or international law primarily refers to transnational norms, procedures or decisions. Formal state-based law could then authorise those norms, procedures, or decisions and give them legal or factual efficacy by either accepting them, changing them, or reducing their scope according to its own norms and practices. 3. Types of Transnational Governance in Environmental Law The following section will map the broad range of transnational governance structures. It will be organised around our aim to shift away attention from the somewhat static concept of transnational environmental law to a process of transnationalisation of national or international environmental law by norms emanating from actions outside of parliamentary or governmental powers. Our map will thus not include those international or supranational institutions and organisations that have been assigned formal legislative powers directly from states or indirectly from international organisations (eg the EU Commission). The following section provides an overview of the transnational regulatory structures that can typically be distinguished in the area of environmental law. Here, a rough sliding-scale-classification of standards, procedures and decisions is developed, which emerges in actor constellations that are purely corporate and economic (sub-Section 3.1), civil societal and scientific (sub-Section 3.2), and primarily public (sub-Section 3.3). However, because of numerous hybrid forms, it is often not possible to distinguish sharply between these different types.30 In any case, it becomes clear that many of the informal organisational structures referred to as transnational, have developed particularly in the field of environmental protection.31 3.1 Companies and Economic Associations In the course of globalisation, social processes increasingly create transboundary effects and are thus subjected to multiple legal orders. This holds particularly true for economic processes. Different environmental rules and standards may complicate ordering and solving the respective environmental problems and corresponding conflicts. In this respect, a central challenge is to bridge different levels of legal protection of the environment. Where international law is absent, this task is to some extent being taken over by non-state economic actors.32 The respective actors’ actions are determined by the character of their economic and legal ties. Transboundary transactions may either take place between economically and legally independent actors or between more or less closely connected groups of companies (eg between a parent company and its subsidiaries, or between individual subsidiaries or branches).33 These relationships may be substantially influenced and directed by self-imposed and, in some cases, third-party environmental standards or codes of conduct.34 All along the value chain, corporate standards may unfold their regulatory, organisational, and governance potentials in three ways. Firstly, companies or groups of companies can organise and direct production in their branches or subsidiaries in third countries by requiring them to apply comparatively high environmental standards, ie they ‘export’ their own or other private standards, or the legal environmental requirements applicable in their home country.35 Secondly, they can make use of their market power and purchase goods and services from other companies whom they require to respect certain environmental and/or social standards. Thirdly, the trade or exchange process within the company or between trade partners can also be made subject to certain normative considerations so that, for instance, remuneration or the transport of goods depends on achieving certain social or environmental standards. There are many reasons why companies orient their market behaviour towards sustainability in the sense of corporate social responsibility.36 Motivations can include inter alia increasing resource efficiency (eg through energy audits), opening up new markets, improving public perception, avoiding liability or averting state regulation.37 However, some of these strategies and actions are part of public image campaigns rather than providing any substantive environmental improvements. Not without reason, they are often criticized as ‘greenwashing’.38 Here, states should more actively engage in controlling and defining procedural and material minimum standards. For example, product labels can be awarded by governments which can reduce existing information gaps between consumers and producers.39 Adopting environmental rules, codes and standards that unfold transboundary effects are not only established by individual companies, but also by corporate associations. A well-known and firmly established example is the Responsible Care initiative of the International Council of Chemical Associations.40 This programme was initially developed in the US in response to the Bhopal disaster, which resulted in the deaths of several thousand people after an incident in a plant of a subsidiary of Union Carbide in 1984. The aim of the programme was to develop internal rules as well as to create organisational structures and resources to support member organisations in achieving specific environmental objectives.41 The guiding principles of the programme, which may vary depending on the respective national or regional chemical association, particularly concern obligations in the close vicinity of chemical facilities. The Responsible Care programme tries to establish management practices in member organisations that help to avoid, and manage, incidents appropriately.42 Similar initiatives by economic associations emerged in a large number and variety, including, eg self-commitments by the tourism industry to protect Antarctica.43 In some cases, these self-commitments transcend individual sectors, such as the Business Charter on Sustainable Development of the International Chamber of Commerce in Paris or the CERES-principles.44 These are 10 principles, which were developed by the non-profit organisation Coalition for Environmentally Responsible Economies and which are meant to be publicly endorsed by corporations as a code of conduct. 3.2 Standardisation Organisations and Expert Commissions Sustainability and environmental standards are also initiated and developed by a large number of societal actors who do not predominantly pursue profit-making interests. These actors include standard-setting organisations under private law, civil societal actors (eg environmental or consumer groups and associations), and academics or representatives of certain professions (eg engineers or doctors). 3.2.1 Standardisation organisations The International Standardization Organization (ISO) with its standard for the certification of corporate environmental management (ISO 14001 et seq) is a very well-known and influential example of a transnational standard-setting body.45 This international body is in part composed of representatives of public bodies and in part of representatives of private standardisation organisations of the Member States. The latter, eg the German Institute for Standardisation (DIN), are usually bound by agreements with states or international organisations. While in its early days, the ISO focused mainly on very technical standardisation questions, it has increasingly turned to more politically charged regulatory matters.46 In addition to the above mentioned environmental management systems, in 2010 the ISO developed the ISO 26000 guide to social responsibility, which includes among other things a chapter on environmental protection.47 The aim of this guide is not to certify organisations according to detailed material standards, but to provide guidance, for example, by pointing out best practices in terms of responsibility for transparent procedures, human rights and sustainable development. Different from corporate standards or standards of economic associations are those transnational sector-specific production standards that have been developed along with stakeholders from outside the business sector. Unlike typical environmental management systems, such as the ISO 14000 series or Responsible Care, they concern not only procedural aspects (like organisational structures and process sequences), but also include detailed substantial production requirements. These sustainability standards are particularly common when it comes to the use of natural resources in agriculture, forestry, aquaculture and fisheries. A prominent example is the Forest Stewardship Council.48 In this organisation, representatives of companies, trade unions and environmental groups cooperate closely with each other according to the three pillars of sustainability (ecology, social equity, and economy). In addition to material sustainability standards, it also developed procedures for independent certification and monitoring.49 These multi-stakeholder initiatives can be seen as an attempt by the actors involved to put the above mentioned biased and often untrustworthy corporate initiatives on a broader social and professional foundation. This can increase or expand the quality, geographical reach, and the overall effect of standards. Additionally, the inclusion of non-profit actors as well as the introduction of transparent procedures and control mechanisms can also improve the credibility of these initiatives.50 Moreover, from the point of view of the parties involved, a competitive disadvantage or losses resulting from additional production costs can be offset or reduced by increased consumer willingness to pay a premium for more sustainable or more socially acceptable production, by acquiring certification from a credible and verified ‘green label’ third party organisation,51 or by including competing companies into the labelling programmes. 3.2.2 Expert commissions In addition to the normative aspects of the sustainable use of natural resources, the establishment of environmentally sound standards also has a cognitive dimension.52 As opposed to most other legal fields, environmental law has given scientists and experts a leading role in the development of standards.53 In many cases, it is scientists or experts who identify, interpret and offer solutions to environmental problems. This applies in particular to transnational environmental problems. Because environmental research often transcends national borders, scientists and experts are often part of cross-border networks. For specific topics or environmental questions, global discourses of scientists and experts have emerged, in which practical problems are discussed and processed. In this respect, for quite some time, increasing interconnectedness between scientist communities can be observed.54 Three types of transnational scientific networking can be distinguished. First, some networks emerge in response to public sector (national or international) initiatives. Although they originate in state action, these scientific networks are characterized by a high degree of autonomy, both in terms of their task as objective advisors to states and their composition of comparatively independent scientists. Such networks include, for example, institutionalized groupings like the Intergovernmental Panel on Climate Change (IPCC), the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES), the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) or ad hoc groups of experts specialized in specific areas that are convened for specific legislative procedures or implementation processes.55 Secondly, expert networks also include so-called hybrid organisations such as the World Nature Conservation Organization (IUCN). As a hybrid, this body allows national authorities to network, so that it is strongly anchored in public structures. Additionally, it involves a large number of local and globally active nature conservation associations and thousands of scientists and experts. The IUCN addresses a wide range of environmental issues. It supports and funds research as well as projects on the ground, and organises political and legal processes by bringing together governments, NGOs, international organisations and corporate actors to develop environmental concepts and strategies, best practices, legislation and treaties, eg about protected areas56 or sustainable land use.57 The third category, which can be addressed as transnational scientific networking, includes those numerous networks that ultimately rest on autonomously created initiatives by scientists, engineers or other professions, often reflecting and reinforcing rules of appropriate behaviour for specific practices. An important global crystallisation point for many different private initiatives is the International Council for Science, which convenes, inter alia, an interdisciplinary Committee on Problems of the Environment. For the field of environmental law, one could also mention the Environmental Law Network International or the European Environmental Law Forum.58 These networks and panels have in common that they allow experts to come to a shared understanding and a common interpretation of environmental problems. Additionally, they develop scientific criteria and methodological standards for their analysis (hence, they are often called ‘epistemic communities’).59 To do so, they collect, compile, interpret, process and prepare data for national or international regulatory processes, or publish the data themselves.60 These networks and commissions develop model rules, codes of conducts and standards, and exchange best practices. Through their collaboration and cross-border consultations, such networks contribute significantly to the design and consolidation of standards without direct binding effect and promote a global dissemination of normative requirements.61 3.3 Transnational Administrative and Judicial Networks Cross-border networks of public actors can also produce rules or decisions which, like law, guide behaviour and establish expectations transnationally.62 However, they differ from conventional legal norms since they are not formally enacted by decisions of the legislature or state representatives. According to the different functions of norm development, norm implementation, and conflict resolution, one can distinguish different forms of transnational management of environmental issues.63 3.3.1 Standardisation through networks of government agencies In close proximity to epistemic communities, but with a stronger anchoring in the public sector, are the networks of transnational administrators that have been established, often under the auspices of international organisations. These are mainly composed of representatives of national specialised authorities.64 Since they are only rarely influenced by politics and are only controlled at arm’s length, with certain reservations they can be classified as non-governmental.65 One example is the Cooperative Chemicals Assessment Program (CoCAP—the current successor project of the High Production Volume Initiative), organised by the Organization for Economic Cooperation and Development (OECD). Within this framework, a network of national specialist authorities which collects and publishes information on hazardous substances has been established, taking into account self-imposed rules on test procedures and laboratory best practice.66 Also in the area of chemicals regulation, the classification and labelling of hazardous substances by transnational authorities was harmonised by the Globally Harmonized System (GHS).67 The basic organisational structure of this harmonisation project showed a relatively high degree of institutionalisation given that it was a network of national authorities and international organisations.68 The Codex Alimentarius Commission, an organisation established by the World Health Organization (WHO) and the World Food Organization (FAO), is one of the administrative networks with highly formalised structures. It develops international standards for foodstuffs (in particular lists of prohibited and permitted additives), but also standards for organic farming and the use of genetic engineering.69 The organisational structure and internal procedures of the Commission are a good example of the integration of scientific expertise and political decision-making: While the Commission’s working groups often include scientific experts, especially when performing risk assessments, politically relevant questions of risk management are, however, decided by the representatives of state authorities.70 Close cross-border administrative cooperation is not limited to the management of global environmental problems but may also include issues of a local or regional nature. For example, the cross-border environmental protection of transboundary rivers is one of the oldest reasons for transnational administration.71 In this context, one could currently point to the EU Water Framework Directive as an example. It provides for cross-border cooperation within the framework of functional watersheds—a field of environmental law—where a nascent principle of ‘policy-making not according to jurisdictions … but according to functional spaces’ can be observed.72 However, it should be noted that this cooperation for the protection of rivers had largely already been transferred into formal legal structures by existing international organisations of the respective neighbouring countries, such as the International Commission for the Protection of the Rhine (ICPR).73 Still, as a result of the inclusion of river basins, ie inflows into international waters, the membership of the International Coordination Groups of the Water Framework Directive (ICG WFD) grew beyond the scope of the agreements under international law.74 3.3.2 Harmonised administrative processes and best practices In addition to standard setting when it comes to maintaining shared natural resources, transnational efforts are also being made to ensure a uniform application and enforcement of existing environmental standards. In a grey zone between these two areas, cooperation also includes the identification and exchange of best practices, which has become an important instrument for the cross-border coordination of administrative practices.75 As said, this is not a question of transnational standardisation in a narrow sense but of norm application. However, the transition between them is rather fluid, since the coordination via best practices or the agreement on guidelines for the implementation of requirements under EU or international law includes aspects that flesh out norms and thereby shape law. The way in which the cooperative transnational implementation of international obligations can be achieved becomes apparent when one considers the example of city networks in the field of climate protection.76 In the past decade, cities were identified as major institutional actors who can contribute significantly to environmental protection, in particular to global climate protection.77 One reason for this is that a significant proportion of global anthropogenic greenhouse gases are emitted in cities and urban areas.78 Additional motivation comes in the fact that cities as densely populated areas are particularly affected by climate change (especially as a result of sea level rise, climate induced migration and severe overheating in summer).79 There are examples of cities from all around the world that act within the framework of their respective competencies to protect the climate. Individual actions, climate programmes as well as legislation deal with, among other things, climate-friendly urban and traffic development, waste disposal services, energy-efficient construction planning and regulation, and the use of renewable energies.80 In addition, cities active in climate protection are increasingly networking transnationally with regard to their protection and adaptation efforts. These include, in particular, the activities of the World Mayors Council on Climate Change, the C40 Cities Climate Leadership Group and the Local Governments for Sustainability Initiative (ICLEI).81 Within the framework of these networks, possibilities for urban climate protection are identified and the exchange of best practices is organised. The resulting resolutions and normative guidelines are often implemented in political strategies, action programmes or legislation at the city level, but to achieve their goals cities are also active at higher political levels, in particular at the international level.82 In parallel to this public-transnational networking, private transnational initiatives emerge in the field. They play a key role in the ecological certification of entire cities or individual subsectors, eg port development (‘green ports’).83 Because of their regulatory, administrative, and financial powers, they are crucial actors and addressees of transnational best practices in the area of climate protection. One such step in this direction is that they can now register their climate actions in the Non-State Actor Zone for Climate Action platform for the achievement of the climate protection targets laid down in the Paris Accords.84 The transnational implementation and control of environmental requirements can also take advantage of transnational administrative networks. The highest degree of institutionalisation can be found in the network for the Implementation and Enforcement of Environmental Law (IMPEL).85 This network consists of the environmental authorities of the EU Member States, EU candidate countries, the Member States of the European Economic Area (EEA) and the European Free Trade Area (EFTA). IMPEL was founded in 1992 with the aim of reducing implementation deficits in EU environmental law. Some key goals are the development of a common problem-consciousness, the development of institutional capacities, mutual peer review, exchange of information and experience about the implementation of law, cooperation in the implementation of international law, and improvements in the practicability and enforceability of EU environmental law.86 Transnational instruments also contribute to the extraterritorial implementation of German and EU environmental law. This becomes particularly evident in the case of the import of biomass, which plays a decisive role in the envisaged energy transition in German environmental policy (Energiewende).87 Since the cultivation of energy crops in emerging and developing countries often creates social and ecological problems, sustainability criteria and corresponding certification schemes were required. In doing so, sustainability criteria as defined in Article 17 of the Directive on the promotion of renewable energies 2009/28/EC must be taken into account along the entire value chain.88 In particular, the production must consider displacement effects as well as the protection of biodiversity and minimum social standards. Certification also fulfils a function as a transnational control of implementation, and is typically carried out by private auditors subject to recognised standards.89 3.4 Transnational Arbitration In addition to the development of general norms and the cooperation of authorities in applying law, transnational structures also play a role when it comes to the judicial resolution of conflicts through transnational arbitration in cases of conflict between states and foreign private actors. The tendency to employ such arbitration panels can also be read as a transnationalisation of law, because the arbitration procedure does not derive its legitimation from the affected states (or their democratic governments) and has cross-border legal consequences. Usually, the International Centre for the Settlement of Investment Disputes (ICSID) established by the World Bank, the Arbitration Institute of the Stockholm Chamber of Commerce, or (more rarely) specifically established arbitration courts provide the arbitration opportunities.90 Their jurisdiction and procedures are governed by international law, but their staffing is in many cases ad hoc and determined by the non-state conflict parties. Negotiations are generally not public (although many decisions are now available on the internet).91 Private arbitrators come to binding decisions on cross-border issues and have a decisive influence on the development of law, in particular the concept of property and the protection of legitimate expectations. In this context, the arbitration proceedings about the protection of international investment are of particular relevance, and they are also relevant in the debate about currently highly disputed free trade agreements.92 There is the worry that dynamic environmental regulation, which responds flexibly to new challenges, can be restricted since it is taken to be an intervention into investor rights and an obstacle to trade. Corporate actors might get the guaranteed right to shift their costs onto the environment, if they have to be compensated for state counter-measures. Particularly in conjunction with strict austerity policies, this leads to an effective prevention of environmental regulation that could react to industrial developments with a strong negative impact on the environment.93 Besides, the status-quo-oriented protection of investors’ rights may contravene the polluter-pays principle and lead to an unjust distribution of environmental costs within society. While the examples of transnational environmental governance are impressive both in variety and their state of development, there are also serious shortcomings as regards their coordination and public policy orientation. To address these shortcomings it is necessary to look closer at their interactions with state-made environmental law. 4. Interaction with Traditional Environmental Law In accordance with the concept of law presented here, this article is not primarily concerned with transnational law as a given entity, but rather with the transnationalisation of environmental law and environmental policy as a process. However, this comparatively modest approach concerns environmental law in a broader and more concrete way: it allows for inquiry into the interplay between transnational governance structures and traditional environmental law. In this respect, it is important to clarify how the individual, often highly diverse organisational structures fit together.94 It is especially necessary to outline how transnational norms can be recognised, limited or corrected by national and international law.95 4.1 The Transnationalisation of Standard Setting The interplay of state regulation with transnational standards and auditing schemes can take on many different shapes. Thus, product-related legislation can lead to the development of private cross-border control structures which ensure compliance with legal requirements by monitoring products or the sustainability of their production. Once these private structures of control are established, they can also be used to implement corporate standards—if state legislation is meant to be forestalled. Such private standards can, in turn, become a model for product regulation or be considered as ‘state of the art’ in the interpretation of indefinite legal concepts or for the amendment of annexes to international treaties to be revised on a regular basis. This is evident, for example, in the context of Directive 2002/95/EC on the restriction of hazardous substances, which led to the worldwide amendment of hazardous materials management in corporate standards and incorporated some additional substances in response to private standardisation.96 4.2 The Transnationalisation of Administration In addition to the development of standards, transnational impact also becomes apparent in the enforcement and control of legal compliance by the executive. Technical norms or professional standards are in many cases necessary to enable cooperation. This becomes manifest, for instance, in the case of the cooperative assessment of chemicals. The standards for good laboratory practices developed by networks of authorities and meant for testing and evaluating chemicals are, in principle, non-binding transnational standards.97 Data sets that do not comply with these rules are not internationally compatible, so they would become worthless for the OECD Chemical Assessment Programme (CoCAP). The application of these standards is therefore sanctioned by ‘factual’ consequences that are equivalent to legal consequences.98 Another example of the transnationalisation of administration are private monitoring structures that can be used to ensure comparable standards for environmental protection or sustainable production even outside their home legal systems. Thus, private certification systems, which are supposed to ensure cross-border sustainable production, are becoming increasingly important as an integral part of state environmental policy. This connection most likely has the longest tradition in the area of organic farming. In this field, the first private standards were developed in the 1920s by Demeter in Germany.99 From the early 1990s onwards, these standards were joined by the requirements of the EC Organic Farming regulation, which established principles and regulations for agricultural production and took up some requirements propagated by environmental associations.100 In the meantime, the International Federation of Organic Agriculture Movements (IFOAM) based in Bonn had become a catalyst for the transnationalisation of private standards.101 The EU Eco-Regulation thus far has focussed on imported foodstuff from non-EU countries and their production rules being equivalent to EU regulations. Now a control system must be established that is equally effective and, among other things, follows the requirements of ISO Guide 65. At present, however, a reform of the EU Eco-Regulation is under discussion, one which would require imported products to comply directly with EU rules.102 In this case, the control of EU regulations, which continues to focus mainly on production and not product standards, will be transferred to an even greater extent to transnational certification bodies, called ‘control bodies’. The transnationalisation of the control of ecological requirements is by no means limited to the area of food production. Rather, as mentioned above, it also plays an important role in the sustainable production of energy, where the state subsidy of bioenergy production, based on imported renewable raw materials, such as palm oil, is made dependent on transnationally standardised sustainability criteria.103 Initial signs point to a kind of emerging regulatory network between transnational sustainability standards and Union law due to the opening up of procurement legislation for previously extraneous criteria in sustainable public procurement.104 The relationship between transnational standards and law is different here compared to the case of bioenergy and organic farming, where transnational standards are used to define certain requirements or their equivalence. The European Court of Justice made it clear that procurement standards are not intended to refer to specific eco- or fair-trade labels.105 Instead, criteria of sustainable procurement should be made public so that competing standards can also be considered. This promotes competition between different sustainability standards. Article 43 (1) lit. (c) of the EU Directive on public procurement determines that only such publicly accessible labels may be used as an award criterion in a tender, and they must be developed in an open, transparent and participatory process, involving all relevant groups of stakeholders.106 Transnational norms and regulatory structures also play an increasing role in conflict resolution, whether by state courts, transnational arbitration, or international chambers. An important factor in this development is that transnational actors, eg internationally active environmental associations, multinational corporations or foreign natural persons, are increasingly involved in administrative and judicial proceedings. This is in no small part due to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).107 The arbitration courts in world trade law are associated with the WTO, an international organisation founded by a treaty under international law. In this way, they are to be regarded as part of the international legal system. However, they have broad powers in the resolution of conflicts in world trade, showing tendencies towards autonomous action. Many of their decisions on provisions of the General Agreement on Tariffs and Trade (GATT) or the Technical Barriers to Trade (TBT) Agreement also touch upon environmental issues, for instance, when environmental regulation acts as a trade barrier.108 In world trade law, the application of production standards is by no means unproblematic, as indicated by the cases of turtle-friendly shrimps fishing and dolphin-friendly tuna fishing decided by WTO arbitration panels.109 In principle, these panels decide on the basis of international treaties, such as the GATT, the Agreement on TBT, or the Agreement on Sanitary and Phytosanitary Measures (SPS). However, these treaties often also invoke ‘international standards’ and in practice, this opens up the possibility of including transnational standards into adjudication. The food standards of the Codex Alimentarius Commission are, for instance, recognised as international standards and are therefore binding under world trade law according to Articles 2.4 and 2.5 TBT as well as Articles 3.1 and 3.2 SPS: compliance with the standards by the contracting states results in the assumption that there is no unlawful barrier to trade. As an indication for the transnationalisation of conflict resolution, one can also point to the increasing networking and transnational dialogue between courts and judges respectively. Such a judicial transnationalisation can especially be observed with regard to the adjudication of international treaties in recent years. International courts frequently refer to the jurisprudence of other international courts and bodies in other matters under international law.110 This applies in particular to cases dealing with similar situations or problems.111 As well, in applying and interpreting international law, national courts increasingly refer to interpretations of the same international norms by courts of other states.112 Although this initially occurred only ad hoc and in isolated cases, now an increasing institutionalisation can be observed.113 In the area of environmental law, the European Forum of Judges for the Environment should be recognised as such a transnational network. Its explicit objective is ‘… to promote the enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law, by exchanging judicial decisions and by sharing experience in the area of training in environmental law’.114 By its own account, the Forum organises the exchange of experience, provides education, and also prepares statements on legislative procedures at EU level. 4.3 The Involvement of Transnational Parties and Experts Transnational bodies are also increasingly involved in judicial decision-making processes. One recent example is when the International Tribunal for the Law of the Sea categorised the IUCN, in spite of its hybrid structure, as an intergovernmental organisation in the legal proceedings on questions of state responsibility for seabed mining and on illegal, unregulated and unannounced fishery.115 This indicates that private or hybrid organisations are sometimes treated as public institutions, so that their norms are incorporated into state decisions without the need for an explicit discussion of transnationalisation issues. In the first proceeding, IUCN representatives participated in the hearing; in the second proceeding, the IUCN provided the court with a written statement, thus significantly representing environmental interests before an international court. 5. Evaluation In the cross-border realm, an apparently irreversible plurality of normative orders seems to emerge.116 Some scholars even talk of a post-Westphalian constellation or a new medievalism.117 Assuming a wide concept of law and regulation, transnational normative developments let the law certainly appear as ‘fragmented and polycentric’ as well as devoid of internal hierarchy.118 However, while it is certainly fascinating for social scientists and legal theorists to diagnose major transformations from this perspective, it should also be considered why the system of positive law emanating from sovereign states came into being. In the context of the Westphalian peace, it was a reaction to the dysfunction of fragmented legal orders after a long period of religious wars.119 In other words, so as not to fall back into a less refined and less rational state of legal development, the consequences of acknowledging and accepting the change to a pluralist conception of law should be well considered. Basically, the definition of law is itself a value question. Even if transnational standards of corporate and other non-state actors exert great influence, their acceptance as law or authoritative rulemaking would have to be earned. We argue that only actors that can credibly claim their competence to care for public goods earn the authority to set rules that can be considered binding upon third parties. Usually this will be actors from the public sector. Even considering the obvious relevancy of the practical impact of transnational norms and control mechanisms, their legal classification and evaluation remains unclear. First of all, it is therefore important to consider whether the transnational standards customary in the field of environmental protection are themselves legally binding (sub-Section 5.1). Furthermore, elements of the legitimacy of transnational norms are to be discussed and correlated (sub-Section 5.2). 5.1 Transnational Law as Law? Many advocates of transnational law base their investigations on a broad, sociological concept of law.120 Frequently, phenomena are regarded as law which either bind only the parties of a private law treaty on a contractual basis or which address the public but are not endowed with binding force. In her recent article on the transnationalisation of law and environmental regulation, Heyvaert defines laws as ‘authoritative organizational norms that regulate conduct’.121 However, the author concedes that in terms of their scope of application private environmental standard setters depend ‘entirely on the successful uptake of the standards’.122 This implies that transnational norms created by commercial organisations or experts are rather examples of non-binding persuasion than of binding authority. While norms which depend on persuasion have to convince their users by their inherent quality or by their coordinative function, authoritative norms are considered as binding irrespective of their content as long as they do not violate constitutional rights. In our view, not distinguishing between persuasion and authority leads to a slipping standard for what is considered as law, and what is merely a corporate agreement, professional best practice rule, or an administrative guideline. From a sociological point of view, this may be just a matter of definition to be determined by pragmatic questions of inquiry.123 Judges or civil servants, on the other hand, need a clear rule of recognition to distinguish authoritatively legal norms from social norms as part of fact-pleading.124 Legal pluralism usually has few clear answers to such practical legal problems that arise from the strategical use of norms to promote corporate or other particular interests. This raises questions such as, how should civil servants or judges deal with, for example, corporate standards of the automotive industry. Do those officials seriously have to take standards into account as law, even given the fact that the corporations responsible for those norms have tried to evade obligations of EU or US environmental law by forming a cartel to collude on diesel emissions? The creeping acceptance of more and more non-state norms as law is not something that can be observed as happening somewhere ‘out there’, but has to do with the criteria of what we accept as law. Corporate interests play an important role in this gradual conceptual drift. Even authors more inclined to legal pluralism concede that ‘the cracks in the institutional wall between the public and the private spheres have mostly favoured large transnational firms … most controversially in litigation on the basis of investment treaty provisions’.125 To mischaracterise contractual or organisational rules of associations as law is of little significance as long as it concerns classical subject matters under private law. Due to private autonomy, private individuals and economic actors can choose and shape their horizontal legal relationships as they please, but these rules exert no claim of validity beyond the contractual arrangement itself. Otherwise, they would have to be classified as an inadmissible contract at the expense of third parties.126 But if such privately established transnational rules for the protection of the environment were qualified as generally applicable law, they would no longer serve only the self-restraint of companies—rather, they would also have an effect on the rights of third parties. However, this is incompatible with the function of environmental law which is concerned with the use and preservation of public goods that no one can dispose of exclusively. Rules created by private autonomy must be subordinate to the mandatory norms of sovereign environmental law.127 However, the non-binding nature of private regulation for the use of public goods does not, of course, preclude the punctual inclusion of privately established norms into the legal order by sovereign acts of recognition, such as static references in law.128 The question of transnational rules’ legal quality takes on a different shape when we turn to the public sector. Administrative networks or publicly appointed expert committees develop rules to fulfil public tasks within the framework of sovereign legal relations. This corresponds to the public nature of environmental law, which is designed to protect the basic foundations of human life, which also happen to be primarily public goods. If individual fundamental rights are affected by transnational regulations of a public character—as is commonly the case in environmental law—the respective requirements for legitimation rise. However, in current practice, transnational administrative networks or expert committees regularly do not claim that the rules they develop are legally binding. Rather, these norms are usually understood as recommendations or guidelines, which may also be left unapplied—at least, if such disregard can be justified by circumstances of the individual case or other explicit reasoning. To this extent, respective rules can currently not be qualified as a law. The contribution of a legal pluralist approach to transnationalised environmental law lies in the attempt to take transnational norms into account from a legal point of view, rather than just considering them as mere facts.129 The relevance as well as the potential of transnational governance arrangements has largely been neglected in legal scholarship. On this backdrop, it is a valuable insight that pluralists recognise the challenge that global environmental problems pose to the territorial organisation of the legal system and how transnational norms may overcome these limitations.130 Transnational norms can also have advantages over state made environmental law in terms of flexibility and adequacy to solve problems. However, to reap the benefits of transnational norms and governance structures it is not necessary to acknowledge them as law. Instead, it will be necessary to further shape and manage the intersections between non-binding, but persuasive transnational norms and authoritative, but often indefinite law. 5.2 Legitimation The great impact that transnational norms and regulatory structures tend to have on environmental law raises the question of their legitimacy.131 In the following, it will therefore first be clarified whether and to what extent transnational norms and their reception require legitimation at all (sub-Section 5.2.1). Furthermore, forms of independent legitimation at the transnational level need to be addressed (sub-Section 5.2.2). Finally, it is to be shown how transnational and state elements of legitimation can complement each other in a reasonable way (sub-Section 5.2.3). 5.2.1 The need of legitimation The influence of transnational norms on EU and German environmental law is often viewed as unproblematic, as far as it is an issue of legal inquiry at all. Probably the most important argument in this context is that the reception of domestic informal norms in national law as well as their impact on it has a long tradition and that related issues are therefore largely solved. Moreover, in the field of public networks of authorities, reference is made to legitimation chains, which, despite their complexity, distance and transnational involvement, are traced back to the democratic sovereign.132 In fact, phenomena comparable to transnationalisation in the national and EU context have for a long time figured under the terms of ‘reflexive environmental law’, the ‘cooperative state’ or ‘regulated self-regulation’.133 From a historical perspective, social actors have always been regarded as important norm producers, eg religious communities such as the Catholic Church, city leagues such as the Hanseatic League, or the medieval guilds. Within modern legislative states of a Western European orientation, citizens and economic actors as well have always created societal norms. Thus, guilds, cooperatives and associations directly establish rules or agree on, for instance, general terms and conditions, statutes, collective agreements as well as technical norms and standards.134 In the process of transnationalisation, these processes of rule-making outside of governmental or parliamentary responsibility merely extend into the cross-border realm given intensified cross-border social relations and the absence of comprehensive state regulation.135 Nevertheless, the challenges posed by the transnationalisation of environmental law significantly transcend these phenomena, that have already been discussed extensively in legal studies.136 Transnationalisation indeed has reversed the relationship between state law and societal norms; while in the domestic realm societal norms were valid within the framework of state-imposed law, in the post-national constellation state legal orders are embedded in the context of transnational norms. This is due to the fact that transnational norms address cross-border issues and thus include reference to a number of legal orders. This restricts the possibilities to adopt standards individually to the values and requirements of each single legal order. In cross-border form and without the culturally and politically largely unified national or EU context, there is the danger that social or administrative regulation as a regulatory process becomes detached and autonomous.137 At that point it is no longer possible to uphold the constitutional claim that norm development is controlled by a sovereign. While in the national constellation, it was still possible to successively uphold the impression that the sovereign either tolerated societal norm development or may have otherwise indirectly influenced and exercised control or, if necessary, even claimed the respective competences for itself. In addition, technical regulations, functional self-regulation or corporate self-commitments in the national context had to fundamentally orient themselves towards constitutional values such as sustainability, health protection and due process. In this regard, in the national or EU context, private self-regulation took place under the proviso of sovereign intervention. In comparison, transnational norms or regulatory arrangements are no longer embedded in a uniform legal order but must link themselves to diverse orders. In some cases, the need to legitimise transnational norms is also contested by the argument that the regulatory problems being addressed are usually matters without political relevance. They tend to be purely technical problems that can be solved without resorting to value decisions.138 According to this logic, the special ‘neutrality’ of transnational standards has often been promoted, particularly from a functionalist perspective.139 While, there are examples of such standards which follow a logic of technical viability and compatibility, more often than not environmental standards are also based on more or less obvious value decisions. In practice, however, this often means that the underlying value decisions of such standards are either ignored or dealt with by cost–benefit analyses which claim to be objective and universal. However, the value-neutrality and objectivity of such analyses is highly controversial: in fact, here, environmental norms may conform to a certain welfare economic point of view, but are at odds with other legal–ethical approaches.140 They particularly do not conform with certain legal traditions, which consider human dignity as inviolable (unantastbar) or regard human or even non-human living beings as having an inherent, absolute value.141 This results in the prohibition of weighing certain human rights with each other (Abwägungsverbot), which makes it appear for example problematic to economically offset the ‘value’ of statistical human life against projected economic losses.142 If this reservation is not taken into account when it comes to calculating limits or prohibiting substances, it is questionable whether this is compatible, eg with the values of the German Basic Law or other constitutions in a deontological tradition.143 5.2.2 Transnational forms of legitimation To assess the legitimacy of transnational governance arrangements, recourse to state-derived legitimacy, as is characteristic of national or EU norms, is helpful only to a limited extent. It is therefore often complemented or even replaced by independent forms of transnational legitimation which is intended to compensate for democratic deficits resulting from a lack of detailed authorisation and effective control by the state legislator.144 However, the question is open, if these forms of legitimation can compensate for the democratic deficit of the transnationalisation of environmental law. Some have argued from a functionalist perspective that this deficit can also be compensated by the effectiveness and efficiency of transnational standards in solving problems. The German political scientist Fritz Scharpf refers here to the notion of output legitimation.145 Transnational standards, for example, appear to be without an attractive alternative when it comes to regulating cross-border and global issues, since corresponding international treaties or parliamentary laws are in practice often rigid, cumbersome and ineffective regulatory instruments and often represent only parts of the global population. Others have suggested other ways and means to compensate for the lack of legitimacy in the transnational context. Rule- and decision-making should contribute to strengthen the ‘publicness’ of institutions and organisations exercising public authority in the transboundary context.146 Depending on the case, this could, for example, include the development of governance principles that guide the process of the internal constitutionalisation of these entities or by furthering their democratisation through increasingly including stakeholders in their decision-making.147 Another surrogate for the lack of democratic legitimacy is the direct involvement of different affected groups in the establishment of standards or decisions of transnational bodies.148 However, participation can only compensate rudimentarily for democratic processes. Often participatory patterns only reflect the prevailing power relations in society and do not provide for democratic equality. The human and temporal resources for participation are distributed too unequally to achieve balanced results in the case of majority decisions. For this very reason, transnational bodies usually take consensual decisions, which helps to increase the likelihood that arguments are exchanged until all participants are convinced or at least a viable compromise is found.149 Nevertheless, the unequal distribution of resources remains a problem in the case of consensual decisions, as single veto players can exert disproportional power by obstructing decision-making. 5.2.3 The relationship between state and transnational legitimation Following these arguments, an independent transnational legitimation of norms is not sufficient. Rather, democratic states, in which transnational norms are received and applied, must to some degree continue to exercise control over the creation and effects of transnational norms and decisions, and in particular the levels of protection they provide.150 Even for states that do not have a democratic constitution, a particular kind of legitimacy has often been assumed for legislation or other binding decisions. This legitimacy is traditionally based on the Hobbesian idea of trading legal obedience for protection, which would also have to comprise protection of the natural basis of life.151 An example from EU procurement legislation are the above-mentioned requirements for the establishment of standards, to which public procurement may point with the help of labels. Also in the context of the so-called ‘new approach’, the European Union plays an active pioneering role in shaping the interplay between private and public law.152 In the field of product safety, this approach results in the inclusion of private standards and conformity checks into public regulation. This is particularly relevant for environmental law in the area of the Ecodesign Directive 2009/125/EC.153 In the Directive’s Annex VIII, to which Article 15(1) and Article 17 refer, nine criteria are listed for legitimate and effective mechanisms of self-regulation, some examples of which are open participation, representativeness, added value vis-à-vis legal requirements and effective monitoring. State legal protection could also provide important legal impulses for the verification of pre-conditions for legitimate transnational standards. There are, however, only very few examples for cases in which German or EU courts examined this question in more detail.154 The fact that state political and legal institutions regain influence on transnational regulation also includes the option to reject certain transnational developments altogether. Thus, for example, many critics of the recently negotiated free trade agreement between the EU and Canada rejected some transnational forms of arbitration agreed upon. Here, a new ‘nationalization’ of partially privatised state functions might become manifest, since publicly appointed judges are meant to be responsible for the adjudication of investor–state disputes. In fact, widespread public criticism led to subsequent amendments to the Comprehensive Economic and Trade Agreement (CETA) in February 2016. Instead of arbitration courts, provisions now establish permanent tribunals with appellate bodies, which are staffed by public judges and whose procedures ought to be transparent and comprehensible.155 Overall, one can note that the legitimation of transnational norms suffers from clear deficits. It would be desirable for legislators and jurisprudence to become more active to establish minimum standards for legitimating procedures in the generation of transnational norms. 6. Summary and Outlook Law is increasingly shaped and influenced by informal cross-border regulatory activities and organisational structures—a development which has often been addressed as ‘transnational law’. In contrast, we argue that transnational norms emerging outside established processes of law-making lack legal force, particularly when they aim at providing and preserving public goods. However, it has also become apparent that such cross-border regulatory formations—irrespective of their legal quality—strongly influence the classical set of environmental laws and decision-making procedures and have considerable political and legal importance. The concept of the transnational has some merits here, in particular in terms of understanding of how legal orders interact globally. From a legal point of view, practical and theoretical questions arise out of the interplay between informal rules and state law, primarily regarding the legitimacy of transnational regulation. Ideally, this complex interplay can function as a regulatory network, which serves to embed transnational norms into democratic political institutions, thereby providing some form of derivative legitimacy.156 However, the focus on transnational environmental law also points to the disciplinary interfaces of environmental law.157 Over the differentiation between non-state and state regulatory structures, it should not be forgotten that there are other, disciplinary boundaries, mainly between environmental law and the social and natural sciences. The question of legitimacy therefore should not be reduced to formal structures of democratic rule-making, but also involve other resources of acceptability. At the international and domestic as well as the transnational level, different aspects of legitimation, such as scientifically informed decision-making, have to be systematically integrated. Only then can the regulatory potential of transnational rulemaking and implementation be brought back under public control to achieve politically and legally desired objectives, while counteracting undesirable developments. Without such ‘re-embedding’, normative developments risk being captured by particularist interests or single-issue agendas. Taking into account the perspective of transnationalisation of environmental law can thus provide a critical point of view, opening options to reclaim global environmental issues as public goods. We would like to thank two anonymous reviewers, Gerd Winter, Wolfgang Köck, Ellen Sabo, Julia Auer and Eva-Charlotte Holst for their helpful comments. All remaining limitations and flaws are in the responsibility of the authors. Footnotes 1 One important starting point of the more recent debate being Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World-Society’ in Gunther Teubner (ed), Global Law Without a State (Dartmouth Publishing 1996); see also Peer Zumbansen, ‘Transnational Law, Evolving’ in Jan Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar 2006), and Craig Scott, ‘“Transnational Law” as Proto-Concept: Three Conceptions’ (2009) 10 German LJ 859, 876; for a more recent list of references see Gregory Shaffer, ‘Theorizing Transnational Legal Ordering’ (2016) 12 Ann Rev L & Soc Sci 231. See also, Karl Heinz Ladeur, ‘Theory of Governance’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010); Veerle Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 TEL 205. 2 Anne Röthel, ‘Lex mercatoria, lex sportiva, lex technica – Private Rechtsetzung jenseits des Nationalstaates?’ (2007) 62 JZ 755, 759–60. 3 Robert A Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press 2003) 207–28. 4 Zumbansen (n 1). 5 Burkhard Eberlein and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’ (2014) 8 Regulation & Governance 1, 1. 6 cf eg Lars Viellechner, Transnationalisierung des Rechts (Velbrück Wissenschaft 2013) 176ff. 7 By now, four journals use the term ‘transnational’ in their title: Columbia Journal of Transnational Law, Vanderbilt Journal of Transnational Law, Journal of Transnational Law and Policy as well as Transnational Law and Contemporary Problems. Furthermore, a plethora of research institutes followed this trend, see among others Andreas Maurer, Lex Maritima (Mohr Siebeck 2012) 13. 8 Randolph. Bourne, ‘Trans-National America’ (1916) 118 Atlantic Monthly 86; cf also Paul Enríquez, ‘Deconstructing Transnationalism: Conceptualizing Metanationalism as a Putative Model of Evolving Jurisprudence’ (2010) 43 Vanderbilt J of Transnational L 1265, 1269. 9 Gralf-Peter Calliess and Andreas Maurer, ‘Transnationales Recht - eine Einleitung’ in Gralf-Peter Calliess (ed), Transnationales Recht - Stand und Perspektiven (Mohr Siebeck 2014); cf also Jan Kropholler, Internationales Einheitsrecht - Allgemeine Lehren (Mohr Siebeck 1975) 7 including further references. 10 Gregory Shaffer and Carlos Coye, ‘From International Law to Jessup′s Transnational Law, from Transnational Law to Transnational Legal Orders’ (2017) UC Irvine School of Law Research Paper <https://ssrn.com/abstract=2895159> accessed 12 December 2017. 11 Philip Jessup, Transnational Law (Yale University Press 1956) 2. 12 Harold Hongju Koh, ‘The 1994 Roscoe Pound Lecture: Transnational Legal Process’ (1996) 75 Nebraska L Rev 181; Harold Hongju Koh, ‘Why Transnational Law Matters’ (2006) 24 Penn State International L Rev 745; in the German discussion Gunther Teubner triggered this development, Gunther Teubner, ‘Globale Bukowina. Zur Emergenz eines transnationalen Rechtspluralismus’ (1996) Juristische Rundschau 255. 13 Anne-Marie Slaughter, A New World Order (Princeton University Press 2005). 14 Thijs Etty and Veerle Heyvaert, ‘Introducing Transnational Environmental Law’ (2012) 1 TEL 1, 2. 15 Gunther Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in Karl Heinz Ladeur (ed), Globalization and Public Governance (Ashgate Publishing 2004) 71. 16 For most of those examples see Slaughter (n 13). See also Marco Schäferhoff, Sabine Campe and Christopher Kaan, ‘Transnational Public-Private Partnerships in International Relations: Making Sense of Concepts, Research Frameworks and Results’ (2009) 11 International Studies Rev 451. 17 Etty and Heyvaert (n 14) 3. 18 ibid 6. Etty and Heyvaert talk specifically about transnational environmental law. 19 ibid 4. 20 cf Shaffer (n 1) 232. 21 Peer Zumbansen, ‘Transnational Legal Pluralism’ (2010) 10 Transnational Legal Theory 141. 22 Mathias Reimann, ‘Beyond National Systems: A Comparative Law for the International Age’ (2001) 75 Tulane L Rev 1103; Paul Berman, Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (CUP 2014); Kanishka Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignity: The Emergence of Global Regulatory Governance’ (1999) 6 Indiana J of Legal Studies 425. See also Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Law in Context, 2nd edn, CUP 2002) 472ff; William Twining, Globalisation and Legal Theory (Law in Context, CUP 2000) 174–245; Benedict Kingsbury, Nico Krisch and Richard Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law & Contemporary Problems 15. 23 Shaffer (n 1) 232. 24 Olaf Dilling, Martin Herberg and Gerd Winter, Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011); Shaffer (n 1) 244, with further references. 25 For further examples, addressed as the ‘orchestration’ of contributions to transnational governance by international organizations, see Kenneth Abbott and others, International Organizations as Orchestrators (CUP 2015). 26 Michael Warning, Transnational Public Governance: Networks, Law and Legitimacy (Transformations of the State, Palgrave Macmillan UK 2009) 203. 27 Joanne Scott and others, ‘The Promise and Limits of Private Standards in Reducing Greenhouse Gas Emissions from Shipping’ (2017) 29 JEL 231. 28 Martin Kment, Grenzüberschreitedes Verwaltungshandeln: Transnationale Elemente Deutschen Verwaltungsrechts (Jus Publicum, Mohr Siebeck 2010) esp. 267ff. 29 For more details, see (3.1) below. 30 cf the instructive ‘governance triangle’ with its locating of different transnational regulatory initiatives in Kenneth Abbott and Duncan Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State’ in Walter Mattli and Ngaire Woods (eds), The Politics of Global Regulation (Princeton University Press 2009). 31 The significance of transnational environmental regulation is also reflected in the growing number of scientific publications in this field. This allowed the specialised legal journal Transnational Environmental Law (Cambridge University Press) to emerge in 2012. 32 Olaf Dilling, Martin Herberg and Gerd Winter, Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008); Jürgen Friedrich, ‘Codes of Conduct’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010) 3–27; Gerald Moore, ‘The Code of Conduct for Responsible Fisheries’ in Ellen Hey (ed), Developments in International Fisheries Law (Brill 1999); David Weissbrodt and Muria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regards to Human Rights’ (2003) 97 AJIL 901. 33 cf ibid 3. 34 Jürgen Friedrich, ‘Environment, Private Standard-Setting’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012); Martin Herberg, Globalisierung und private Selbstregulierung: Umweltschutz in multinationalen Unternehmen (Staatlichkeit im Wandel, Campus 2007); Helen Keller, ‘Codes of Conduct and their Implementation: the Question of Legitimacy’ in Rüdiger Wolfrum and Volker Roeben (eds), Legitimacy in International Law (Springer-Verlag 2008) 219ff. 35 For corporate codes of conduct and the extraterritorial auditing of subsidiaries, see Herberg (n 34) 101ff. 36 For further relevant questions, see Gerd Winter, ‘Transnationale Regulierung’ (2009) Aus Politik und Zeitgeschichte 9, 10. 37 Olaf Dilling, ‘Proactive Compliance? – Repercussions of National Product Regulation in Standards of Transnational Business Networks’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 118–19. 38 Olaf Dilling, ‘From Compliance to Rulemaking: How Global Corporate Norms Emerge from Interplay with States and Stakeholders’ (2012) 13 German LJ 381 (404). 39 Nick Feinstein, ‘Learning from Past Mistakes: Future Regulation to Prevent Greenwashing’ (2013) 40 B C Envtl Aff L Rev 229. 40 Aseem Prakash, ‘Responsible Care: An Assessment’ (2000) Business & Society 183. 41 Ivan Montiel, ‘Responsible Care’ in Thomas Hale and David Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 328–29. 42 See ICCA, Responsible Care <https://www.icca-chem.org/responsible-care/> accessed 21 October 2015. 43 See the visitor, decontamination, and wildlife watching guidelines of the International Association for Antarctic Tour Operators, IAATO, Guidelines and Resources <https://iaato.org/guidelines-and-resources> accessed 9 May 2017. 44 cf Lee Thomas, ‘The Business Charter for Sustainable Development: Action Beyond UNCED’ (1992) 1 RECIEL 325, 352ff. 45 Oren Perez, ‘Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law’ (2003) 10 Indiana J of Global Legal Studies 25; Winter (n 36). 46 Dilling (n 38) 381; Coline Ruwet, ‘Towards a Democratization of Standards Development? Internal Dynamics of ISO in the Context of Globalization’ (2011) 5 New Global Studies 1. 47 Kernaghan Webb, ‘ISO 26000 Social Responsibility Standard as “proto law” and a New form of Global Custom: Positioning ISO 26000 in the Emerging Transnational Regulatory Governance Rule Instrument Architecture’ (2015) 6 Transnational Legal Theory 466. 48 Philipp Pattberg, ‘Forest Stewardship Council’ in Thomas Hale and David Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 265ff. 49 Errol Meidinger, ‘Multi-Interest Self-Governance through Global Product Certification Programs’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 259. 50 Keller (n 34), 219ff; see also Elisa Morgera, Corporate Accountability in International Environmental Law (OUP 2009). 51 Meidinger (n 49). 52 Till Markus, ‘Changing the Base: Legal Implications of Scientific Criteria and Methodological Standards on what Constitutes Good Marine Environmental Status’ (2013) 2 TEL 145. 53 Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edn, CUP 2012) 87–88. 54 Transnational networks of experts are in fact not a new phenomenon, see Christian Tietje, ‘History of Transnational Administrative Networks’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 23–37. 55 See Markus (n 52) 145–64. 56 See, for instance, IUCN, Guidelines for Applying Protected Area Management Categories (2013). 57 IUCN, World Soil Erosion and Conservation (1993); IUCN, Legal and Institutional Frameworks for Sustainable Soils - A Preliminary Report (2002); IUCN, Drafting Legislation for Sustainable Soils: A Guide (2004). 58 See, ELNI <http://www.elni.org/> accessed 16 May 2017; see also, EELF <http://www.eelf.info/> accessed 16 May 2017. 59 Peter Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1; Markus (n 52). 60 Sands and Peel (n 53) 88. 61 Martin Herberg, ‘Global Governance Networks in Action: the Development of Toxicological Test Methods at the OECD’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011). 62 cf the debate about the shift in the meaning of the conflict of laws towards substantial standards, Christoph Möllers, ‘Internationales Verwaltungsrecht’ in Christoph Möllers, Andreas Voßkuhle and Christian Walter (eds), Internationales Verwaltungsrecht Eine Analyse anhand von Referenzgebieten (Mohr Siebeck 2007). 63 Olaf Dilling, Martin Herberg and Gerd Winter, ‘Introduction: Exploring Transnational Administrative Rule-Making’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011), at 5–6. 64 cf generally Christoph Möllers, ‘Transnationale Behördenkooperation: Verfassungs- und völkerrechtliche Probleme transnationaler administrativer Standardsetzung’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 351. 65 Winter (n 36) 11. 66 Warning T (n 26). 67 Gerd Winter, ‘Transnational Administrative Comitology: The Global Harmonisation of Chemicals Classification and Labelling’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 111–50. 68 ibid 135. 69 See FAO and WHO, Codex Alimentarius: International Food Standards <http://www.fao.org/fao-who-codexalimentarius/en/> accessed 16 May 2017. 70 Alexia Herwig, ‘The Contribution of Global Administrative Law to Enhancing the Legitimacy of the Codex Alimentarius Commission’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 188 f. 71 See, for the emergence of the first international agencies that managed international shipping routes like the Rhine or Danube and were meant to prevent shipping accidents, Tietje (n 54) 27. 72 Sandra Lavenex, Dirk Lehmkuhl and Nicole Wichmann, ‘Die Nachbarschaftspolitiken der Europäischen Union: zwischen Hegemonie und erweiterter Governance’ in Ingeborg Trömmel (ed), Die Europäische Union: Governance und Policy-Making (Springer-Verlag 2008) 379. The same can increasingly be said about the EU’s marine environment and fishing policy, see Nina Maier and Till Markus, ‘Dividing the Common Pond: Regionalizing EU Ocean Governance’ (2013) 67 Marine Pollution Bulletin 66. 73 cf Christina Leb, ‘One Step at a Time: International Law and the Duty to Cooperate in the Management of Shared Water Resources’ (2015) 40 Water International 21, 26. 74 Insa Theesfeld and Christian Schleyer, ‘Germany's Light Version of Integrated Water Resources Management’ (2013) 23 Environmental Policy and Governance 130, 137. 75 Hollin Dickerson, ‘Best Practices’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010). 76 See eg Michéle Finck, ‘Above and Below the Surface: The Status of Sub-National Authorities in EU Climate Change Regulation’ (2014) 26 JEL 443. 77 WBGU, Humanity on the Move: Unlocking the Transformative Power of Cities (2016); OECD, Competetive Cities and Climate Change (2008); OECD, Cities, Climate Change and Multilevel Governance (OECD Environment Working Papers, 2009). 78 In 2011, for instance, globally 75% of final energy was consumed in cities, IIASA, Progress Report 2009 (2010). It is projected that by 2050 the share of the world population living in urban areas will increase to about 69% (of then 9 billion people), which will consequently also increase the share of urban emissions, WBGU (n 77) 58. 79 Harriet Bulkeley, Cities and Climate Change (Routledge 2013) 28ff. 80 Kristine Kern and Gotelind Alber, ‘Governing Climate Change in Cities: Modes of Urban Climate Governance in Multi-Level Systems’, Competitive Cities and Climate Change (2008); WBGU (n 77) 267–69; Anna-Lisa Müller, Green Creative City (UVK 2013). 81 Harriet Bulkeley, ‘Cities and the Governing of Climate Change’ (2010) 35 Annual Review of Environment and Resources 229–53. 82 Liliana Andonova, Michele Betsill and Harriet Bulkeley, ‘Transnational Climate Governance' (2009) 9 Global Environmental Politics 52; Sofie Bouteligier, Cities, Networks, and Global Environment Governance: Spaces of Innovation, Places of Leadership (Routledge 2013). 83 See, eg the certification by the ‘Port Environmental Review System (PERS)’, which was developed by the Sea Ports Organization and is implemented by Lloyd’s Register. See, ESPO <http://www.ecoports.com/> accessed 12 December 2017. 84 UNFCCCC, Decision 1/CP.21, paras 117, 133–136; Sander Chan, Clara Brandi and Steffen Bauer, ‘Aligning Transnational Climate Action with International Climate Governance: The Road from Paris’ (2016) 25 RECIEL 238. 85 Miroslav Angelov and Liam Cashman, ‘Environmental Inspections and Environmental Compliance Assurance Networks in the Context of European Union Environment Policy’ in Michael Faure, Peter De Smedt and An Stas (eds), Environmental Enforcement Networks: Concepts, Implementation and Effectiveness (Edward Elgar 2015); Martin Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2nd edn, Routledge 2015) 546ff. 86 See the network’s webpage, IMPEL <https://www.impel.eu/about-impel/> accessed 12 December 2017. 87 BMU and BMELV, Nationaler Biomasseaktionsplan für Deutschland: Beitrag der Biomasse für eine nachhaltige Energieversorgung (2010) 2. 88 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, [2009] OJ L140/16. 89 Andrea Schmeichel, Towards Sustainability of Biomass Importation. An Assessment of the EU Renewable Energy Directive (Europa Law Publishing 2014) 181ff. 90 Seminal Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (International Courts and Tribunals Series, OUP 2014). 91 cf Markus Krajewski, ‘Umweltschutz und internationales Investitionsschutzrecht am Beispiel der Vattenfall-Klagen und des Transatlantischen Handels- und Investitionsabkommens (TTIP)’ (2014) Zeitschrift für Umweltrecht 396, 398. 92 ibid 401; it is feared that imminent compensation payments for damages will prevent states from implementing certain environmental protection measures. See, for instance, Gus Van Harten, Investment Treaty Arbitration and Public Law (OUP 2007); Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (CUP 2009). 93 Usually called ‘chill effect’, Krajewski (n 91) 398. 94 cf the social scientific resaerch into the transnational aspect of economic governance, Eberlein and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’. 95 See, critically Gunther Teubner and Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2006) 25 Michigan J of Intl L 999. 96 Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment [2011] OJ L174/88. For the transnational interaction, Dilling (n 46). 97 Warning (n 26) 78. 98 ibid. 99 Otto Schmid, ‘Development of Standards for Organic Farming’ in William Lockeretz (ed), Organic Farming – An International History (CABI 2007) 153. 100 ibid 156. 101 ibid (CABI 2007) 154–55. 102 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on organic production and labelling of organic products’ COM (2014) 180 final of 24 March 2014. On 13 October 2015, the Parliament opted for more stringent controls of the supply chain and for higher requirements for imports under the ecolabel, See <http://www.consilium.europa.eu/en/press/press-releases/2017/06/28/rules-organic-farming/> accessed 3 January 2018. 103 Schmeichel (n 89). 104 Hans Vedder, Competition Law and Environmental Protection in Europe: Towards Sustainability? (Europa Law Publishing 2003). 105 Case C-368/10, Commission v Netherlands (Max Havelaar), EU:C:2012:284. 106 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65. 107 Andreas Fischer-Lescano, ‘Transnationales Verwaltungsrecht’ (2008) 35 JZ 373. 108 Katia Bodard, ‘WTO Legal Constraints and Opportunities for National Environmental Product Regulations’ in Marc Pallemaerts (ed), EU and WTO Law: How Tight is the Legal Straitjacket for Environmental Product Regulation? (VUB 2006) 119. 109 US-Restrictions on Imports of Tuna, Panel-Report of 16.8.1991, ILM 30 (1991) 1598 ff; US-Import Prohibition of Certain Shrimp and Shrimp Products, Panel-Report of 15.5.1998, WT/DS 58/R; Appellate Body Report of 12.10.1998, WT/DS 58/AB/R; cf also the recent WTO tuna decision regarding transnational environmental standards, Carola Glinski, ‘Private Norms as International Standards? – Regime Collisions in Tuna-Dolphin II’ (2012) 3 European J of Risk Regulation 545 including further evidence. 110 For the prevailing interpretation of especially art 31 Ans 3 lit c Vienna Convention on the Law of Treaties, see Campbell McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(C) ot the Vienna Convention’ (2005) 54 ICLQ 279. 111 See also Gráinne de Búrca, ‘After the EU Charter of Rights: The Court of Justice as a Human Rights Adjudicator’ (2013) 20 Maastricht J of European and Comparative L 168. 112 In this regard, Roberts invokes the notion of ‘comparative international law’. See Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57. 113 Slaughter (n 13) 65ff; Erik Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 J of Legal Studies 547. 114 EUFJE <http://www.eufje.org/index.php/en/> accessed 12 December 2017. 115 ITLOS, Order 2010/3, 18 May 2010; Seabed Activities Advisory Opinion, margs 7 and 11; ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, Case No 21, margs 17, 26. 116 Twining (n 22) 224; Berman (n 22); Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney L Rev 375; Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford Constitutional Theory, OUP 2010). 117 William Twining, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law & Society Review 199. 118 Heyvaert (n 1) 221. 119 David Saunders, ‘Hegemon History: Pufendorf's Shifting Perspectives on France and French Power’ in Olaf Asbach and Peter Schroder (eds), War, the State and International Law in Seventeenth-Century Europe (Ashgate Publishing Ltd 2010) 211–30. 120 See, for instance, Andreas Fischer-Lescano and Lars Viellechner, ‘Globaler Rechtspluralismus’ (2010) Aus Politik und Zeitgeschichte 20. 121 Emphasis added by the authors, Heyvaert (n 1) 208–9. 122 ibid 211. 123 ibid. 124 HLA Hart, The Concept of Law (Clarendon Law Series, OUP 2012) 123 f. 125 Heyvaert (n 1) 231. 126 See the Roman law principle: Pacta tertiis nec nocent nec prosunt. 127 In this regard, the collision between public law and other ‘functional legal regimes’, repeatedly addressed in the debate, occurs to an only limited extent, see Teubner and Fischer-Lescano (n 95). 128 cf Dilling, Herberg and Winter (n 32) 7. 129 See the thorough discussion of the different responses to transnational norms, Heyvaert (n 1) 221–35. 130 Ibid 211–13. 131 Viellechner (n 6). See also, Lars Viellechner, ‘Responsive Legal Pluralism: The Emergence of Transnational Conflicts Law’ (2015) 6 Transnational Legal Theory 312, 312–32. See also Lars Viellechner, ‘Constitutionalism as a Cipher: On the Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law’ (2012) 4 Göttingen J of Intl L 599. 132 Warning (n 26). 133 For instance, Eric Orts, ‘Reflexive Environmental Law’ (1995) 89 Northwestern ULR 1229, 1227ff; Julia Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self Regulation in a “Post-Regulatory” World’ (2001) 54 CLP 103, 103ff; François Ost, ‘A Game without Rules? The Ecological Self-Organization of Firms’ in Gunther Teubner, Lindsay Farmer and Declan Murphy (eds), Environmental Law and Ecological Responsibility (Wiley 1994), 352ff. 134 Sally Merry, ‘Legal Pluralism’ (1988) 22 L & Society Rev 869, 869ff; see also Tamanaha (n 117). 135 Winter (n 36) 9–15; Gunther Teubner, ‘Des Königs viele Leiber. Die Selbstdekonstruktion der Hierarchie des Rechts’ (1996) Soziale Systeme 229, 229. For the trajectory of transnational social movements and their legal relevance, see among others Alan Boyle and Christine Chinkin, The Making of International Law (Foundations of Public International Law, OUP 2007) 41–43. 136 Winter (n 36) 10. 137 cf the related diagnosis of a ‘disaggregation of the state’ in Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government & Opposition 159. 138 For a differentiated account, see Stefan Oeter, ‘The Openness of International Organizations for Transnational Public Rule-Making’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011), 239ff. 139 With further references Thomas Risse, ‘Transnational governance and legitimacy’ in Arthur Benz and Ioannis Papadopoulos (eds), Governance and Democracy: Comparing National, European and International Experiences (Routledge 2006) 179 (191). 140 See Douglas Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press 2010). 141 Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge University Press 2016) 151. 142 For the German position on Abwägungsverbot generally, see Kai Möller, ‘Abwägungsverbote im Verfassungsrecht’ (2007) Der Staat 109, 109; but see also the criticism of cost–benefit-analysis in the USA, Frank Ackermann and Lisa Heinzerling, ‘Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection’ (2002) 150 U of Penn L Rev 1553; Kysar (n 140). 143 For this issue from an American perspective, see Kysar (n 140); on the difference between deontological and consequentialist approaches to the weighing of rights, Larry Alexander and Michael Moore, ‘Deontological Ethics’ in Edward Zalta (ed), The Stanford Encyclopedia of Philosophy (2016), <https://plato.stanford.edu/archives/win2016/entries/ethics-deontological/> accessed 11 January 2018. 144 See, for instance, Gerd Winter, ‘Zur Architektur globaler Governance des Klimaschutzes’ (2012) 72 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 105. 145 Fritz Scharpf, Demokratietheorie zwischen Utopie und Anpassung (Universitätsverlag Konstanz 1970). 146 For example, Armin von Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’ (2010) 9 German LJ 1909; Anuscheh Fahrat, ‘Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities’ (2009) 9 German LJ 1453. Regarding the increasing need for legitimacy in the context of international adjudication see von Bogdandy and Venzke (n 90). 147 Thomas Risse, ‘Transnational governance and legitimacy’ in Arthur Benz and Ioannis Papadopoulos (eds), Governance and Democracy: Comparing National, European and International Experiences (Routledge 2006) 179 (192). 148 Errol Meidinger, ‘Multi-Interest Self-Governance through Global Product Certification Programs’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008). 149 cf the relevant suggestions in Walter Baber and Robert Bartlett, Consensus and Global Environmental Governance: Deliberative Democracy in Nature's Regime (MIT Press 2015). 150 For the interplay of different elements of legitimation, see Hans-Heinrich Trute, ‘Die demokratische Legitimation der Verwaltung’ in Wolfgang Hoffmann-Riem, Eberhard Schmidt-Aßmann and Andreas Voßkuhle (eds), Grundlagen des Verwaltungsrechts Band I: Methoden, Maßstäbe, Aufgaben, Organisation (CH Beck 2012) marg 56ff. 151 Christian Calliess, Rechtsstaat und Umweltstaat (Mohr Siebeck 2001) 88. 152 Harm Schepel, ‘Private Regulators in Law‘ in Joost Pauwelyn, Ramses Wessel and Jan Wouters (eds), Informal International Lawmaking (OUP 2012) 356 (359). 153 Directive 2009/125/EG of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products, [2009] OJ L285/10. 154 See, for instance, the highest court ruling about mobile phone transmitters, German Supreme Court, BGH 8 ZR 74/5, adjudication of 15.3.2006; German Federal Constitutional Court, BVerfG 1BvR 1676/01, adjudication of 28.2.2002. 155 See section 8.27 CETA-Agreement. 156 Gráinne de Búrca, Robert Keohane and Charles. Sabel, ‘New Modes of Pluralist Global Governance’ (2013) 45 NYU J of Intl L and Politics 386, 386ff; Gerd Winter, Multilevel Governance of Global Environmental Change: Perspectives from Science, Sociology and the Law (CUP 2006); Twining (n 22) 224ff; Berman (n 22); Matthias Knauff, Der Regelungsverbund: Recht und Soft Law im Mehrebenensystem (Mohr Siebeck 2010); see also—however more sceptical in terms of democratic control—Ladeur (n 1). 157 Etty and Heyvaert (n 14) 6. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Environmental Law Oxford University Press

The Transnationalisation of Environmental Law

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0952-8873
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Abstract

ABSTRACT This article outlines a critical approach to the emerging discourse of transnational environmental law. It highlights how transboundary activities and organisational structures increasingly shape environmental law, and how legal discourse interprets these developments. In particular, the article unpacks the manifold transnational regulatory structures and explains their interactions with state-made environmental law. It also discusses the legal quality and constitutional issues of transnational norms and analyses the added scientific value of the concept of transnational environmental law. We argue that transnational norms governing the use of public goods are generally not binding on third parties. Accordingly, they have to be ‘re-embedded’ into well-established political and legal processes. In other words, these norms and mechanisms have to be complemented, endorsed or limited by formal legal structures to become a legitimate part of environmental law. 1. Introduction In the course of globalisation, law is increasingly shaped by informal organisational structures. Transboundary problems are no longer only handled at the international level (‘high politics between diplomats’), but increasingly by a variety of actors which cooperate across national borders. The latter encompass inter alia close networks of economic actors, experts, or specialist agencies. Norms emerging out of these interactions are increasingly referred to as transnational law.1 The concept of transnational law raises problems however, especially in the area of environmental law. While many examples of transnational law address the regulation of private cross-border relations, environmental law is primarily concerned with protecting public goods. Therefore, legal interests, positions, and rights of third parties are regularly involved, which are traditionally decided upon with sovereign authority by political institutions or state courts.2 While this definitely holds true for civil law systems such as France or Germany, it is also the case in common law systems where both legal and administrative decision-making is much more embedded into an adversarial style procedure.3 In the context of governing public goods, the notion that non-state norms have acquired a high degree of mandatory force, which is what the term ‘transnational law’ suggests, is especially surprising. Accordingly, many scholars perceive ‘transnational environmental law’ as a genuine subject for legal studies.4 However, it remains to be seen whether and to what extent those rules referred to as transnational environmental law really have mandatory force outside existing institutional contexts. We would deem it more instructive, both in practical and theoretical terms, to study the interaction of those emerging norms with the classical set of state laws and legal decision-making procedures.5 This is where the thesis of the ‘transnationalisation of environmental law’ becomes relevant. It states that transnational rules and decisions often exert no direct effect, but do so mainly after they have been adopted by and integrated into national and international environmental law.6 Nevertheless, transnational regulatory mechanisms can emerge where there are not yet binding international rules. Transnational law could therefore prove to be significant in shaping globalisation if its informal norms take practical shape before international rules have a chance to be developed. This article aims to outline a critical approach to the internationally emerging discourse on transnational environmental law and to confront it with the thesis of the transnationalisation of environmental law. For this purpose, following a conceptual analysis, ‘transnational law’ and the ‘transnationalisation of law’ are defined (Section 2). We then go on to present various types of transnational rules and decision-making structures in the field of environmental protection and the sustainable use of resources (Section 3). By elucidating the connections and interplay between national and international law, transnational rules and decision-making structures are introduced as elements of the global regulatory framing of public goods. Here, the extent is shown in detail to which the integration of informal regulations into positive environmental law leads to the latter’s transnationalisation (Section 4). This finding is followed by an inquiry into the legal quality as well as the constitutional practice vis-à-vis these sets of informal norms that emerge out of cross-border interaction (Section 5). The article ends by summarising its key arguments and looking at future prospects (Section 6). 2. Transnational and Transnationalized Law Transnational law is a hot topic these days. Legal research institutes, master programmes and academic journals draw on its prominence (since 2012, there is even a journal titled Transnational Environmental Law published by Cambridge University Press).7 However, the term is used to denote highly different phenomena, developments and theories. The following section provides a brief conceptual history and our own reading of the transnational law concept. 2.1 Conceptual History The concept ‘transnational’ was probably first used in the USA during the First World War, when conflicts between groups of different ethnic origins became evident. With the concept, the journalist Randolph Bourne advocated a counter-model to the then common notion of a national unifying ‘melting pot’.8 In his opinion, refugees and migrants should, on the one hand, maintain their traditional ties and, on the other hand, seek ways of reconciling their differing perceptions and values. The goal was to combine cultural diversity with a cosmopolitan vision and to achieve some kind of international understanding from below. In German law in the 1930s, the term was applied to internationally uniform legal norms by authors such as Gutzwiller and Rabel.9 In the 1950s, it was the international lawyer Phillip Jessup who particularly popularised the concept of transnational law.10 In his view, the term comprehensively encompassed any national and international law regulating cross-border issues, including rules with cross-border relevance generated by private actors.11 In the 1990s, the term was then again taken up by a number of authors to describe new legal phenomena in the context of globalisation.12 In particular, Anne-Marie Slaughter emphasised the emergence of transnational administrative and judicial cooperation.13 As a result, ‘transnational law’ received considerable attention and developed into a broadly confined subject matter providing a specific new perspective on various existing and developing legal phenomena.14 The various approaches to transnational law have in common that they stress the importance of non-state actors or of administrative networks for the transboundary design, application, and enforcement of norms. This decentralisation allows attention to be paid to local concerns as well as new phenomena but also leads to arbitrary and conflicting ideas about transnational law. Often, the different approaches only share the assumption that in the course of globalisation state-based law is complemented by other legal and regulatory formations which should be included into the study of law. Two main groups of ‘transnationalists’ can be distinguished. For one, the concept of transnational law mainly focuses on private cross-border regulatory processes.15 For the other group, the term also includes sovereign or semi-private cross-border regulatory processes that emerge during the cooperation of actors below the intergovernmental level. Examples are institutionalised administrative and judicial cross-border networks, associations of semi-governmental organisations, arbitration courts that have become independent from their international legal basis, public–private-partnerships or informal networks of judges, parliamentarians, officials or scientists.16 Some also take EU law as well as various institutions and regulations under the umbrella of international organisations to be transnational law.17 Overall, transnational law is ‘not a singular neatly delineated concept’.18 Rather, it is a phenomenon where ‘conventional boundaries erode’.19 Eventually the concept of transnational law is used in different contexts to describe highly varied regulatory phenomena.20 Neither in the German nor in the Anglo-Saxon debate is it apparent that the scholars involved follow a common, coherent, or in any way unified theory.21 At the same time, developments (or partial aspects) related to transnational law are discussed by using other expressions and terms, eg supranational law, global law, regulatory governance, interlegality, etc.22 Accordingly, Gregory Shaffer refers to the literature on transnational law as ‘a jungle without a map’.23 2.2 The Concept from the Perspective of Public Law In order to avoid conceptual vagueness and to promote methodological clarity and doctrinal coherence with regard to the concept of transnational law, we need to study in greater detail those phenomena usually associated with it. Qualifying all legal norms applicable to transboundary contexts as transnational law, as Philip Jessup did, widened the concept of transnational law and was useful to open the scope of attention to all kinds of legal phenomena crossing national borders; a closer examination of different forms of norms’ cross-border effects, however, requires higher conceptual clarity. Given the close linkage and complex interplay between private and public-law norms in global regulatory processes, the alternative of focusing on purely private legal norms only seems to us too narrow a view.24 Rather, there are shifting overlaps. For example, private law-making may be initiated and endorsed by public international organisations, such is the case of voluntary self-commitments of private companies within the framework of the UN Global Compact.25 Other examples are how NGOs are significantly involved in the drafting of guidelines in the field of toxic substance control by public authorities of different countries26 or how private actors in the shipping sector establish standards to reach the goals of the Paris Agreement.27 Furthermore, there is cross-border cooperation of a primarily public-law nature, such as the informal coordination of authorities on the consistent implementation of environmental and planning legislation.28 According to our understanding transnational law would have to be understood as those norms, procedures and decisions that regulate social life in binding fashion but neither emanate from national nor international sources of law. They would rather be established by private, civil society or administrative actors outside of parliamentary or governmental competencies. To us, however, it seems prima facie questionable whether there can be transnational law in this sense in the field of environmental policy at all.29 In our view, transnational norms are instead rules and principles which, by themselves, exert no authoritative binding force. The transnationalisation of law therefore means that national or international law primarily refers to transnational norms, procedures or decisions. Formal state-based law could then authorise those norms, procedures, or decisions and give them legal or factual efficacy by either accepting them, changing them, or reducing their scope according to its own norms and practices. 3. Types of Transnational Governance in Environmental Law The following section will map the broad range of transnational governance structures. It will be organised around our aim to shift away attention from the somewhat static concept of transnational environmental law to a process of transnationalisation of national or international environmental law by norms emanating from actions outside of parliamentary or governmental powers. Our map will thus not include those international or supranational institutions and organisations that have been assigned formal legislative powers directly from states or indirectly from international organisations (eg the EU Commission). The following section provides an overview of the transnational regulatory structures that can typically be distinguished in the area of environmental law. Here, a rough sliding-scale-classification of standards, procedures and decisions is developed, which emerges in actor constellations that are purely corporate and economic (sub-Section 3.1), civil societal and scientific (sub-Section 3.2), and primarily public (sub-Section 3.3). However, because of numerous hybrid forms, it is often not possible to distinguish sharply between these different types.30 In any case, it becomes clear that many of the informal organisational structures referred to as transnational, have developed particularly in the field of environmental protection.31 3.1 Companies and Economic Associations In the course of globalisation, social processes increasingly create transboundary effects and are thus subjected to multiple legal orders. This holds particularly true for economic processes. Different environmental rules and standards may complicate ordering and solving the respective environmental problems and corresponding conflicts. In this respect, a central challenge is to bridge different levels of legal protection of the environment. Where international law is absent, this task is to some extent being taken over by non-state economic actors.32 The respective actors’ actions are determined by the character of their economic and legal ties. Transboundary transactions may either take place between economically and legally independent actors or between more or less closely connected groups of companies (eg between a parent company and its subsidiaries, or between individual subsidiaries or branches).33 These relationships may be substantially influenced and directed by self-imposed and, in some cases, third-party environmental standards or codes of conduct.34 All along the value chain, corporate standards may unfold their regulatory, organisational, and governance potentials in three ways. Firstly, companies or groups of companies can organise and direct production in their branches or subsidiaries in third countries by requiring them to apply comparatively high environmental standards, ie they ‘export’ their own or other private standards, or the legal environmental requirements applicable in their home country.35 Secondly, they can make use of their market power and purchase goods and services from other companies whom they require to respect certain environmental and/or social standards. Thirdly, the trade or exchange process within the company or between trade partners can also be made subject to certain normative considerations so that, for instance, remuneration or the transport of goods depends on achieving certain social or environmental standards. There are many reasons why companies orient their market behaviour towards sustainability in the sense of corporate social responsibility.36 Motivations can include inter alia increasing resource efficiency (eg through energy audits), opening up new markets, improving public perception, avoiding liability or averting state regulation.37 However, some of these strategies and actions are part of public image campaigns rather than providing any substantive environmental improvements. Not without reason, they are often criticized as ‘greenwashing’.38 Here, states should more actively engage in controlling and defining procedural and material minimum standards. For example, product labels can be awarded by governments which can reduce existing information gaps between consumers and producers.39 Adopting environmental rules, codes and standards that unfold transboundary effects are not only established by individual companies, but also by corporate associations. A well-known and firmly established example is the Responsible Care initiative of the International Council of Chemical Associations.40 This programme was initially developed in the US in response to the Bhopal disaster, which resulted in the deaths of several thousand people after an incident in a plant of a subsidiary of Union Carbide in 1984. The aim of the programme was to develop internal rules as well as to create organisational structures and resources to support member organisations in achieving specific environmental objectives.41 The guiding principles of the programme, which may vary depending on the respective national or regional chemical association, particularly concern obligations in the close vicinity of chemical facilities. The Responsible Care programme tries to establish management practices in member organisations that help to avoid, and manage, incidents appropriately.42 Similar initiatives by economic associations emerged in a large number and variety, including, eg self-commitments by the tourism industry to protect Antarctica.43 In some cases, these self-commitments transcend individual sectors, such as the Business Charter on Sustainable Development of the International Chamber of Commerce in Paris or the CERES-principles.44 These are 10 principles, which were developed by the non-profit organisation Coalition for Environmentally Responsible Economies and which are meant to be publicly endorsed by corporations as a code of conduct. 3.2 Standardisation Organisations and Expert Commissions Sustainability and environmental standards are also initiated and developed by a large number of societal actors who do not predominantly pursue profit-making interests. These actors include standard-setting organisations under private law, civil societal actors (eg environmental or consumer groups and associations), and academics or representatives of certain professions (eg engineers or doctors). 3.2.1 Standardisation organisations The International Standardization Organization (ISO) with its standard for the certification of corporate environmental management (ISO 14001 et seq) is a very well-known and influential example of a transnational standard-setting body.45 This international body is in part composed of representatives of public bodies and in part of representatives of private standardisation organisations of the Member States. The latter, eg the German Institute for Standardisation (DIN), are usually bound by agreements with states or international organisations. While in its early days, the ISO focused mainly on very technical standardisation questions, it has increasingly turned to more politically charged regulatory matters.46 In addition to the above mentioned environmental management systems, in 2010 the ISO developed the ISO 26000 guide to social responsibility, which includes among other things a chapter on environmental protection.47 The aim of this guide is not to certify organisations according to detailed material standards, but to provide guidance, for example, by pointing out best practices in terms of responsibility for transparent procedures, human rights and sustainable development. Different from corporate standards or standards of economic associations are those transnational sector-specific production standards that have been developed along with stakeholders from outside the business sector. Unlike typical environmental management systems, such as the ISO 14000 series or Responsible Care, they concern not only procedural aspects (like organisational structures and process sequences), but also include detailed substantial production requirements. These sustainability standards are particularly common when it comes to the use of natural resources in agriculture, forestry, aquaculture and fisheries. A prominent example is the Forest Stewardship Council.48 In this organisation, representatives of companies, trade unions and environmental groups cooperate closely with each other according to the three pillars of sustainability (ecology, social equity, and economy). In addition to material sustainability standards, it also developed procedures for independent certification and monitoring.49 These multi-stakeholder initiatives can be seen as an attempt by the actors involved to put the above mentioned biased and often untrustworthy corporate initiatives on a broader social and professional foundation. This can increase or expand the quality, geographical reach, and the overall effect of standards. Additionally, the inclusion of non-profit actors as well as the introduction of transparent procedures and control mechanisms can also improve the credibility of these initiatives.50 Moreover, from the point of view of the parties involved, a competitive disadvantage or losses resulting from additional production costs can be offset or reduced by increased consumer willingness to pay a premium for more sustainable or more socially acceptable production, by acquiring certification from a credible and verified ‘green label’ third party organisation,51 or by including competing companies into the labelling programmes. 3.2.2 Expert commissions In addition to the normative aspects of the sustainable use of natural resources, the establishment of environmentally sound standards also has a cognitive dimension.52 As opposed to most other legal fields, environmental law has given scientists and experts a leading role in the development of standards.53 In many cases, it is scientists or experts who identify, interpret and offer solutions to environmental problems. This applies in particular to transnational environmental problems. Because environmental research often transcends national borders, scientists and experts are often part of cross-border networks. For specific topics or environmental questions, global discourses of scientists and experts have emerged, in which practical problems are discussed and processed. In this respect, for quite some time, increasing interconnectedness between scientist communities can be observed.54 Three types of transnational scientific networking can be distinguished. First, some networks emerge in response to public sector (national or international) initiatives. Although they originate in state action, these scientific networks are characterized by a high degree of autonomy, both in terms of their task as objective advisors to states and their composition of comparatively independent scientists. Such networks include, for example, institutionalized groupings like the Intergovernmental Panel on Climate Change (IPCC), the Intergovernmental Platform on Biodiversity and Ecosystem Services (IPBES), the Joint Group of Experts on the Scientific Aspects of Marine Environmental Protection (GESAMP) or ad hoc groups of experts specialized in specific areas that are convened for specific legislative procedures or implementation processes.55 Secondly, expert networks also include so-called hybrid organisations such as the World Nature Conservation Organization (IUCN). As a hybrid, this body allows national authorities to network, so that it is strongly anchored in public structures. Additionally, it involves a large number of local and globally active nature conservation associations and thousands of scientists and experts. The IUCN addresses a wide range of environmental issues. It supports and funds research as well as projects on the ground, and organises political and legal processes by bringing together governments, NGOs, international organisations and corporate actors to develop environmental concepts and strategies, best practices, legislation and treaties, eg about protected areas56 or sustainable land use.57 The third category, which can be addressed as transnational scientific networking, includes those numerous networks that ultimately rest on autonomously created initiatives by scientists, engineers or other professions, often reflecting and reinforcing rules of appropriate behaviour for specific practices. An important global crystallisation point for many different private initiatives is the International Council for Science, which convenes, inter alia, an interdisciplinary Committee on Problems of the Environment. For the field of environmental law, one could also mention the Environmental Law Network International or the European Environmental Law Forum.58 These networks and panels have in common that they allow experts to come to a shared understanding and a common interpretation of environmental problems. Additionally, they develop scientific criteria and methodological standards for their analysis (hence, they are often called ‘epistemic communities’).59 To do so, they collect, compile, interpret, process and prepare data for national or international regulatory processes, or publish the data themselves.60 These networks and commissions develop model rules, codes of conducts and standards, and exchange best practices. Through their collaboration and cross-border consultations, such networks contribute significantly to the design and consolidation of standards without direct binding effect and promote a global dissemination of normative requirements.61 3.3 Transnational Administrative and Judicial Networks Cross-border networks of public actors can also produce rules or decisions which, like law, guide behaviour and establish expectations transnationally.62 However, they differ from conventional legal norms since they are not formally enacted by decisions of the legislature or state representatives. According to the different functions of norm development, norm implementation, and conflict resolution, one can distinguish different forms of transnational management of environmental issues.63 3.3.1 Standardisation through networks of government agencies In close proximity to epistemic communities, but with a stronger anchoring in the public sector, are the networks of transnational administrators that have been established, often under the auspices of international organisations. These are mainly composed of representatives of national specialised authorities.64 Since they are only rarely influenced by politics and are only controlled at arm’s length, with certain reservations they can be classified as non-governmental.65 One example is the Cooperative Chemicals Assessment Program (CoCAP—the current successor project of the High Production Volume Initiative), organised by the Organization for Economic Cooperation and Development (OECD). Within this framework, a network of national specialist authorities which collects and publishes information on hazardous substances has been established, taking into account self-imposed rules on test procedures and laboratory best practice.66 Also in the area of chemicals regulation, the classification and labelling of hazardous substances by transnational authorities was harmonised by the Globally Harmonized System (GHS).67 The basic organisational structure of this harmonisation project showed a relatively high degree of institutionalisation given that it was a network of national authorities and international organisations.68 The Codex Alimentarius Commission, an organisation established by the World Health Organization (WHO) and the World Food Organization (FAO), is one of the administrative networks with highly formalised structures. It develops international standards for foodstuffs (in particular lists of prohibited and permitted additives), but also standards for organic farming and the use of genetic engineering.69 The organisational structure and internal procedures of the Commission are a good example of the integration of scientific expertise and political decision-making: While the Commission’s working groups often include scientific experts, especially when performing risk assessments, politically relevant questions of risk management are, however, decided by the representatives of state authorities.70 Close cross-border administrative cooperation is not limited to the management of global environmental problems but may also include issues of a local or regional nature. For example, the cross-border environmental protection of transboundary rivers is one of the oldest reasons for transnational administration.71 In this context, one could currently point to the EU Water Framework Directive as an example. It provides for cross-border cooperation within the framework of functional watersheds—a field of environmental law—where a nascent principle of ‘policy-making not according to jurisdictions … but according to functional spaces’ can be observed.72 However, it should be noted that this cooperation for the protection of rivers had largely already been transferred into formal legal structures by existing international organisations of the respective neighbouring countries, such as the International Commission for the Protection of the Rhine (ICPR).73 Still, as a result of the inclusion of river basins, ie inflows into international waters, the membership of the International Coordination Groups of the Water Framework Directive (ICG WFD) grew beyond the scope of the agreements under international law.74 3.3.2 Harmonised administrative processes and best practices In addition to standard setting when it comes to maintaining shared natural resources, transnational efforts are also being made to ensure a uniform application and enforcement of existing environmental standards. In a grey zone between these two areas, cooperation also includes the identification and exchange of best practices, which has become an important instrument for the cross-border coordination of administrative practices.75 As said, this is not a question of transnational standardisation in a narrow sense but of norm application. However, the transition between them is rather fluid, since the coordination via best practices or the agreement on guidelines for the implementation of requirements under EU or international law includes aspects that flesh out norms and thereby shape law. The way in which the cooperative transnational implementation of international obligations can be achieved becomes apparent when one considers the example of city networks in the field of climate protection.76 In the past decade, cities were identified as major institutional actors who can contribute significantly to environmental protection, in particular to global climate protection.77 One reason for this is that a significant proportion of global anthropogenic greenhouse gases are emitted in cities and urban areas.78 Additional motivation comes in the fact that cities as densely populated areas are particularly affected by climate change (especially as a result of sea level rise, climate induced migration and severe overheating in summer).79 There are examples of cities from all around the world that act within the framework of their respective competencies to protect the climate. Individual actions, climate programmes as well as legislation deal with, among other things, climate-friendly urban and traffic development, waste disposal services, energy-efficient construction planning and regulation, and the use of renewable energies.80 In addition, cities active in climate protection are increasingly networking transnationally with regard to their protection and adaptation efforts. These include, in particular, the activities of the World Mayors Council on Climate Change, the C40 Cities Climate Leadership Group and the Local Governments for Sustainability Initiative (ICLEI).81 Within the framework of these networks, possibilities for urban climate protection are identified and the exchange of best practices is organised. The resulting resolutions and normative guidelines are often implemented in political strategies, action programmes or legislation at the city level, but to achieve their goals cities are also active at higher political levels, in particular at the international level.82 In parallel to this public-transnational networking, private transnational initiatives emerge in the field. They play a key role in the ecological certification of entire cities or individual subsectors, eg port development (‘green ports’).83 Because of their regulatory, administrative, and financial powers, they are crucial actors and addressees of transnational best practices in the area of climate protection. One such step in this direction is that they can now register their climate actions in the Non-State Actor Zone for Climate Action platform for the achievement of the climate protection targets laid down in the Paris Accords.84 The transnational implementation and control of environmental requirements can also take advantage of transnational administrative networks. The highest degree of institutionalisation can be found in the network for the Implementation and Enforcement of Environmental Law (IMPEL).85 This network consists of the environmental authorities of the EU Member States, EU candidate countries, the Member States of the European Economic Area (EEA) and the European Free Trade Area (EFTA). IMPEL was founded in 1992 with the aim of reducing implementation deficits in EU environmental law. Some key goals are the development of a common problem-consciousness, the development of institutional capacities, mutual peer review, exchange of information and experience about the implementation of law, cooperation in the implementation of international law, and improvements in the practicability and enforceability of EU environmental law.86 Transnational instruments also contribute to the extraterritorial implementation of German and EU environmental law. This becomes particularly evident in the case of the import of biomass, which plays a decisive role in the envisaged energy transition in German environmental policy (Energiewende).87 Since the cultivation of energy crops in emerging and developing countries often creates social and ecological problems, sustainability criteria and corresponding certification schemes were required. In doing so, sustainability criteria as defined in Article 17 of the Directive on the promotion of renewable energies 2009/28/EC must be taken into account along the entire value chain.88 In particular, the production must consider displacement effects as well as the protection of biodiversity and minimum social standards. Certification also fulfils a function as a transnational control of implementation, and is typically carried out by private auditors subject to recognised standards.89 3.4 Transnational Arbitration In addition to the development of general norms and the cooperation of authorities in applying law, transnational structures also play a role when it comes to the judicial resolution of conflicts through transnational arbitration in cases of conflict between states and foreign private actors. The tendency to employ such arbitration panels can also be read as a transnationalisation of law, because the arbitration procedure does not derive its legitimation from the affected states (or their democratic governments) and has cross-border legal consequences. Usually, the International Centre for the Settlement of Investment Disputes (ICSID) established by the World Bank, the Arbitration Institute of the Stockholm Chamber of Commerce, or (more rarely) specifically established arbitration courts provide the arbitration opportunities.90 Their jurisdiction and procedures are governed by international law, but their staffing is in many cases ad hoc and determined by the non-state conflict parties. Negotiations are generally not public (although many decisions are now available on the internet).91 Private arbitrators come to binding decisions on cross-border issues and have a decisive influence on the development of law, in particular the concept of property and the protection of legitimate expectations. In this context, the arbitration proceedings about the protection of international investment are of particular relevance, and they are also relevant in the debate about currently highly disputed free trade agreements.92 There is the worry that dynamic environmental regulation, which responds flexibly to new challenges, can be restricted since it is taken to be an intervention into investor rights and an obstacle to trade. Corporate actors might get the guaranteed right to shift their costs onto the environment, if they have to be compensated for state counter-measures. Particularly in conjunction with strict austerity policies, this leads to an effective prevention of environmental regulation that could react to industrial developments with a strong negative impact on the environment.93 Besides, the status-quo-oriented protection of investors’ rights may contravene the polluter-pays principle and lead to an unjust distribution of environmental costs within society. While the examples of transnational environmental governance are impressive both in variety and their state of development, there are also serious shortcomings as regards their coordination and public policy orientation. To address these shortcomings it is necessary to look closer at their interactions with state-made environmental law. 4. Interaction with Traditional Environmental Law In accordance with the concept of law presented here, this article is not primarily concerned with transnational law as a given entity, but rather with the transnationalisation of environmental law and environmental policy as a process. However, this comparatively modest approach concerns environmental law in a broader and more concrete way: it allows for inquiry into the interplay between transnational governance structures and traditional environmental law. In this respect, it is important to clarify how the individual, often highly diverse organisational structures fit together.94 It is especially necessary to outline how transnational norms can be recognised, limited or corrected by national and international law.95 4.1 The Transnationalisation of Standard Setting The interplay of state regulation with transnational standards and auditing schemes can take on many different shapes. Thus, product-related legislation can lead to the development of private cross-border control structures which ensure compliance with legal requirements by monitoring products or the sustainability of their production. Once these private structures of control are established, they can also be used to implement corporate standards—if state legislation is meant to be forestalled. Such private standards can, in turn, become a model for product regulation or be considered as ‘state of the art’ in the interpretation of indefinite legal concepts or for the amendment of annexes to international treaties to be revised on a regular basis. This is evident, for example, in the context of Directive 2002/95/EC on the restriction of hazardous substances, which led to the worldwide amendment of hazardous materials management in corporate standards and incorporated some additional substances in response to private standardisation.96 4.2 The Transnationalisation of Administration In addition to the development of standards, transnational impact also becomes apparent in the enforcement and control of legal compliance by the executive. Technical norms or professional standards are in many cases necessary to enable cooperation. This becomes manifest, for instance, in the case of the cooperative assessment of chemicals. The standards for good laboratory practices developed by networks of authorities and meant for testing and evaluating chemicals are, in principle, non-binding transnational standards.97 Data sets that do not comply with these rules are not internationally compatible, so they would become worthless for the OECD Chemical Assessment Programme (CoCAP). The application of these standards is therefore sanctioned by ‘factual’ consequences that are equivalent to legal consequences.98 Another example of the transnationalisation of administration are private monitoring structures that can be used to ensure comparable standards for environmental protection or sustainable production even outside their home legal systems. Thus, private certification systems, which are supposed to ensure cross-border sustainable production, are becoming increasingly important as an integral part of state environmental policy. This connection most likely has the longest tradition in the area of organic farming. In this field, the first private standards were developed in the 1920s by Demeter in Germany.99 From the early 1990s onwards, these standards were joined by the requirements of the EC Organic Farming regulation, which established principles and regulations for agricultural production and took up some requirements propagated by environmental associations.100 In the meantime, the International Federation of Organic Agriculture Movements (IFOAM) based in Bonn had become a catalyst for the transnationalisation of private standards.101 The EU Eco-Regulation thus far has focussed on imported foodstuff from non-EU countries and their production rules being equivalent to EU regulations. Now a control system must be established that is equally effective and, among other things, follows the requirements of ISO Guide 65. At present, however, a reform of the EU Eco-Regulation is under discussion, one which would require imported products to comply directly with EU rules.102 In this case, the control of EU regulations, which continues to focus mainly on production and not product standards, will be transferred to an even greater extent to transnational certification bodies, called ‘control bodies’. The transnationalisation of the control of ecological requirements is by no means limited to the area of food production. Rather, as mentioned above, it also plays an important role in the sustainable production of energy, where the state subsidy of bioenergy production, based on imported renewable raw materials, such as palm oil, is made dependent on transnationally standardised sustainability criteria.103 Initial signs point to a kind of emerging regulatory network between transnational sustainability standards and Union law due to the opening up of procurement legislation for previously extraneous criteria in sustainable public procurement.104 The relationship between transnational standards and law is different here compared to the case of bioenergy and organic farming, where transnational standards are used to define certain requirements or their equivalence. The European Court of Justice made it clear that procurement standards are not intended to refer to specific eco- or fair-trade labels.105 Instead, criteria of sustainable procurement should be made public so that competing standards can also be considered. This promotes competition between different sustainability standards. Article 43 (1) lit. (c) of the EU Directive on public procurement determines that only such publicly accessible labels may be used as an award criterion in a tender, and they must be developed in an open, transparent and participatory process, involving all relevant groups of stakeholders.106 Transnational norms and regulatory structures also play an increasing role in conflict resolution, whether by state courts, transnational arbitration, or international chambers. An important factor in this development is that transnational actors, eg internationally active environmental associations, multinational corporations or foreign natural persons, are increasingly involved in administrative and judicial proceedings. This is in no small part due to the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).107 The arbitration courts in world trade law are associated with the WTO, an international organisation founded by a treaty under international law. In this way, they are to be regarded as part of the international legal system. However, they have broad powers in the resolution of conflicts in world trade, showing tendencies towards autonomous action. Many of their decisions on provisions of the General Agreement on Tariffs and Trade (GATT) or the Technical Barriers to Trade (TBT) Agreement also touch upon environmental issues, for instance, when environmental regulation acts as a trade barrier.108 In world trade law, the application of production standards is by no means unproblematic, as indicated by the cases of turtle-friendly shrimps fishing and dolphin-friendly tuna fishing decided by WTO arbitration panels.109 In principle, these panels decide on the basis of international treaties, such as the GATT, the Agreement on TBT, or the Agreement on Sanitary and Phytosanitary Measures (SPS). However, these treaties often also invoke ‘international standards’ and in practice, this opens up the possibility of including transnational standards into adjudication. The food standards of the Codex Alimentarius Commission are, for instance, recognised as international standards and are therefore binding under world trade law according to Articles 2.4 and 2.5 TBT as well as Articles 3.1 and 3.2 SPS: compliance with the standards by the contracting states results in the assumption that there is no unlawful barrier to trade. As an indication for the transnationalisation of conflict resolution, one can also point to the increasing networking and transnational dialogue between courts and judges respectively. Such a judicial transnationalisation can especially be observed with regard to the adjudication of international treaties in recent years. International courts frequently refer to the jurisprudence of other international courts and bodies in other matters under international law.110 This applies in particular to cases dealing with similar situations or problems.111 As well, in applying and interpreting international law, national courts increasingly refer to interpretations of the same international norms by courts of other states.112 Although this initially occurred only ad hoc and in isolated cases, now an increasing institutionalisation can be observed.113 In the area of environmental law, the European Forum of Judges for the Environment should be recognised as such a transnational network. Its explicit objective is ‘… to promote the enforcement of national, European and international environmental law by contributing to a better knowledge by judges of environmental law, by exchanging judicial decisions and by sharing experience in the area of training in environmental law’.114 By its own account, the Forum organises the exchange of experience, provides education, and also prepares statements on legislative procedures at EU level. 4.3 The Involvement of Transnational Parties and Experts Transnational bodies are also increasingly involved in judicial decision-making processes. One recent example is when the International Tribunal for the Law of the Sea categorised the IUCN, in spite of its hybrid structure, as an intergovernmental organisation in the legal proceedings on questions of state responsibility for seabed mining and on illegal, unregulated and unannounced fishery.115 This indicates that private or hybrid organisations are sometimes treated as public institutions, so that their norms are incorporated into state decisions without the need for an explicit discussion of transnationalisation issues. In the first proceeding, IUCN representatives participated in the hearing; in the second proceeding, the IUCN provided the court with a written statement, thus significantly representing environmental interests before an international court. 5. Evaluation In the cross-border realm, an apparently irreversible plurality of normative orders seems to emerge.116 Some scholars even talk of a post-Westphalian constellation or a new medievalism.117 Assuming a wide concept of law and regulation, transnational normative developments let the law certainly appear as ‘fragmented and polycentric’ as well as devoid of internal hierarchy.118 However, while it is certainly fascinating for social scientists and legal theorists to diagnose major transformations from this perspective, it should also be considered why the system of positive law emanating from sovereign states came into being. In the context of the Westphalian peace, it was a reaction to the dysfunction of fragmented legal orders after a long period of religious wars.119 In other words, so as not to fall back into a less refined and less rational state of legal development, the consequences of acknowledging and accepting the change to a pluralist conception of law should be well considered. Basically, the definition of law is itself a value question. Even if transnational standards of corporate and other non-state actors exert great influence, their acceptance as law or authoritative rulemaking would have to be earned. We argue that only actors that can credibly claim their competence to care for public goods earn the authority to set rules that can be considered binding upon third parties. Usually this will be actors from the public sector. Even considering the obvious relevancy of the practical impact of transnational norms and control mechanisms, their legal classification and evaluation remains unclear. First of all, it is therefore important to consider whether the transnational standards customary in the field of environmental protection are themselves legally binding (sub-Section 5.1). Furthermore, elements of the legitimacy of transnational norms are to be discussed and correlated (sub-Section 5.2). 5.1 Transnational Law as Law? Many advocates of transnational law base their investigations on a broad, sociological concept of law.120 Frequently, phenomena are regarded as law which either bind only the parties of a private law treaty on a contractual basis or which address the public but are not endowed with binding force. In her recent article on the transnationalisation of law and environmental regulation, Heyvaert defines laws as ‘authoritative organizational norms that regulate conduct’.121 However, the author concedes that in terms of their scope of application private environmental standard setters depend ‘entirely on the successful uptake of the standards’.122 This implies that transnational norms created by commercial organisations or experts are rather examples of non-binding persuasion than of binding authority. While norms which depend on persuasion have to convince their users by their inherent quality or by their coordinative function, authoritative norms are considered as binding irrespective of their content as long as they do not violate constitutional rights. In our view, not distinguishing between persuasion and authority leads to a slipping standard for what is considered as law, and what is merely a corporate agreement, professional best practice rule, or an administrative guideline. From a sociological point of view, this may be just a matter of definition to be determined by pragmatic questions of inquiry.123 Judges or civil servants, on the other hand, need a clear rule of recognition to distinguish authoritatively legal norms from social norms as part of fact-pleading.124 Legal pluralism usually has few clear answers to such practical legal problems that arise from the strategical use of norms to promote corporate or other particular interests. This raises questions such as, how should civil servants or judges deal with, for example, corporate standards of the automotive industry. Do those officials seriously have to take standards into account as law, even given the fact that the corporations responsible for those norms have tried to evade obligations of EU or US environmental law by forming a cartel to collude on diesel emissions? The creeping acceptance of more and more non-state norms as law is not something that can be observed as happening somewhere ‘out there’, but has to do with the criteria of what we accept as law. Corporate interests play an important role in this gradual conceptual drift. Even authors more inclined to legal pluralism concede that ‘the cracks in the institutional wall between the public and the private spheres have mostly favoured large transnational firms … most controversially in litigation on the basis of investment treaty provisions’.125 To mischaracterise contractual or organisational rules of associations as law is of little significance as long as it concerns classical subject matters under private law. Due to private autonomy, private individuals and economic actors can choose and shape their horizontal legal relationships as they please, but these rules exert no claim of validity beyond the contractual arrangement itself. Otherwise, they would have to be classified as an inadmissible contract at the expense of third parties.126 But if such privately established transnational rules for the protection of the environment were qualified as generally applicable law, they would no longer serve only the self-restraint of companies—rather, they would also have an effect on the rights of third parties. However, this is incompatible with the function of environmental law which is concerned with the use and preservation of public goods that no one can dispose of exclusively. Rules created by private autonomy must be subordinate to the mandatory norms of sovereign environmental law.127 However, the non-binding nature of private regulation for the use of public goods does not, of course, preclude the punctual inclusion of privately established norms into the legal order by sovereign acts of recognition, such as static references in law.128 The question of transnational rules’ legal quality takes on a different shape when we turn to the public sector. Administrative networks or publicly appointed expert committees develop rules to fulfil public tasks within the framework of sovereign legal relations. This corresponds to the public nature of environmental law, which is designed to protect the basic foundations of human life, which also happen to be primarily public goods. If individual fundamental rights are affected by transnational regulations of a public character—as is commonly the case in environmental law—the respective requirements for legitimation rise. However, in current practice, transnational administrative networks or expert committees regularly do not claim that the rules they develop are legally binding. Rather, these norms are usually understood as recommendations or guidelines, which may also be left unapplied—at least, if such disregard can be justified by circumstances of the individual case or other explicit reasoning. To this extent, respective rules can currently not be qualified as a law. The contribution of a legal pluralist approach to transnationalised environmental law lies in the attempt to take transnational norms into account from a legal point of view, rather than just considering them as mere facts.129 The relevance as well as the potential of transnational governance arrangements has largely been neglected in legal scholarship. On this backdrop, it is a valuable insight that pluralists recognise the challenge that global environmental problems pose to the territorial organisation of the legal system and how transnational norms may overcome these limitations.130 Transnational norms can also have advantages over state made environmental law in terms of flexibility and adequacy to solve problems. However, to reap the benefits of transnational norms and governance structures it is not necessary to acknowledge them as law. Instead, it will be necessary to further shape and manage the intersections between non-binding, but persuasive transnational norms and authoritative, but often indefinite law. 5.2 Legitimation The great impact that transnational norms and regulatory structures tend to have on environmental law raises the question of their legitimacy.131 In the following, it will therefore first be clarified whether and to what extent transnational norms and their reception require legitimation at all (sub-Section 5.2.1). Furthermore, forms of independent legitimation at the transnational level need to be addressed (sub-Section 5.2.2). Finally, it is to be shown how transnational and state elements of legitimation can complement each other in a reasonable way (sub-Section 5.2.3). 5.2.1 The need of legitimation The influence of transnational norms on EU and German environmental law is often viewed as unproblematic, as far as it is an issue of legal inquiry at all. Probably the most important argument in this context is that the reception of domestic informal norms in national law as well as their impact on it has a long tradition and that related issues are therefore largely solved. Moreover, in the field of public networks of authorities, reference is made to legitimation chains, which, despite their complexity, distance and transnational involvement, are traced back to the democratic sovereign.132 In fact, phenomena comparable to transnationalisation in the national and EU context have for a long time figured under the terms of ‘reflexive environmental law’, the ‘cooperative state’ or ‘regulated self-regulation’.133 From a historical perspective, social actors have always been regarded as important norm producers, eg religious communities such as the Catholic Church, city leagues such as the Hanseatic League, or the medieval guilds. Within modern legislative states of a Western European orientation, citizens and economic actors as well have always created societal norms. Thus, guilds, cooperatives and associations directly establish rules or agree on, for instance, general terms and conditions, statutes, collective agreements as well as technical norms and standards.134 In the process of transnationalisation, these processes of rule-making outside of governmental or parliamentary responsibility merely extend into the cross-border realm given intensified cross-border social relations and the absence of comprehensive state regulation.135 Nevertheless, the challenges posed by the transnationalisation of environmental law significantly transcend these phenomena, that have already been discussed extensively in legal studies.136 Transnationalisation indeed has reversed the relationship between state law and societal norms; while in the domestic realm societal norms were valid within the framework of state-imposed law, in the post-national constellation state legal orders are embedded in the context of transnational norms. This is due to the fact that transnational norms address cross-border issues and thus include reference to a number of legal orders. This restricts the possibilities to adopt standards individually to the values and requirements of each single legal order. In cross-border form and without the culturally and politically largely unified national or EU context, there is the danger that social or administrative regulation as a regulatory process becomes detached and autonomous.137 At that point it is no longer possible to uphold the constitutional claim that norm development is controlled by a sovereign. While in the national constellation, it was still possible to successively uphold the impression that the sovereign either tolerated societal norm development or may have otherwise indirectly influenced and exercised control or, if necessary, even claimed the respective competences for itself. In addition, technical regulations, functional self-regulation or corporate self-commitments in the national context had to fundamentally orient themselves towards constitutional values such as sustainability, health protection and due process. In this regard, in the national or EU context, private self-regulation took place under the proviso of sovereign intervention. In comparison, transnational norms or regulatory arrangements are no longer embedded in a uniform legal order but must link themselves to diverse orders. In some cases, the need to legitimise transnational norms is also contested by the argument that the regulatory problems being addressed are usually matters without political relevance. They tend to be purely technical problems that can be solved without resorting to value decisions.138 According to this logic, the special ‘neutrality’ of transnational standards has often been promoted, particularly from a functionalist perspective.139 While, there are examples of such standards which follow a logic of technical viability and compatibility, more often than not environmental standards are also based on more or less obvious value decisions. In practice, however, this often means that the underlying value decisions of such standards are either ignored or dealt with by cost–benefit analyses which claim to be objective and universal. However, the value-neutrality and objectivity of such analyses is highly controversial: in fact, here, environmental norms may conform to a certain welfare economic point of view, but are at odds with other legal–ethical approaches.140 They particularly do not conform with certain legal traditions, which consider human dignity as inviolable (unantastbar) or regard human or even non-human living beings as having an inherent, absolute value.141 This results in the prohibition of weighing certain human rights with each other (Abwägungsverbot), which makes it appear for example problematic to economically offset the ‘value’ of statistical human life against projected economic losses.142 If this reservation is not taken into account when it comes to calculating limits or prohibiting substances, it is questionable whether this is compatible, eg with the values of the German Basic Law or other constitutions in a deontological tradition.143 5.2.2 Transnational forms of legitimation To assess the legitimacy of transnational governance arrangements, recourse to state-derived legitimacy, as is characteristic of national or EU norms, is helpful only to a limited extent. It is therefore often complemented or even replaced by independent forms of transnational legitimation which is intended to compensate for democratic deficits resulting from a lack of detailed authorisation and effective control by the state legislator.144 However, the question is open, if these forms of legitimation can compensate for the democratic deficit of the transnationalisation of environmental law. Some have argued from a functionalist perspective that this deficit can also be compensated by the effectiveness and efficiency of transnational standards in solving problems. The German political scientist Fritz Scharpf refers here to the notion of output legitimation.145 Transnational standards, for example, appear to be without an attractive alternative when it comes to regulating cross-border and global issues, since corresponding international treaties or parliamentary laws are in practice often rigid, cumbersome and ineffective regulatory instruments and often represent only parts of the global population. Others have suggested other ways and means to compensate for the lack of legitimacy in the transnational context. Rule- and decision-making should contribute to strengthen the ‘publicness’ of institutions and organisations exercising public authority in the transboundary context.146 Depending on the case, this could, for example, include the development of governance principles that guide the process of the internal constitutionalisation of these entities or by furthering their democratisation through increasingly including stakeholders in their decision-making.147 Another surrogate for the lack of democratic legitimacy is the direct involvement of different affected groups in the establishment of standards or decisions of transnational bodies.148 However, participation can only compensate rudimentarily for democratic processes. Often participatory patterns only reflect the prevailing power relations in society and do not provide for democratic equality. The human and temporal resources for participation are distributed too unequally to achieve balanced results in the case of majority decisions. For this very reason, transnational bodies usually take consensual decisions, which helps to increase the likelihood that arguments are exchanged until all participants are convinced or at least a viable compromise is found.149 Nevertheless, the unequal distribution of resources remains a problem in the case of consensual decisions, as single veto players can exert disproportional power by obstructing decision-making. 5.2.3 The relationship between state and transnational legitimation Following these arguments, an independent transnational legitimation of norms is not sufficient. Rather, democratic states, in which transnational norms are received and applied, must to some degree continue to exercise control over the creation and effects of transnational norms and decisions, and in particular the levels of protection they provide.150 Even for states that do not have a democratic constitution, a particular kind of legitimacy has often been assumed for legislation or other binding decisions. This legitimacy is traditionally based on the Hobbesian idea of trading legal obedience for protection, which would also have to comprise protection of the natural basis of life.151 An example from EU procurement legislation are the above-mentioned requirements for the establishment of standards, to which public procurement may point with the help of labels. Also in the context of the so-called ‘new approach’, the European Union plays an active pioneering role in shaping the interplay between private and public law.152 In the field of product safety, this approach results in the inclusion of private standards and conformity checks into public regulation. This is particularly relevant for environmental law in the area of the Ecodesign Directive 2009/125/EC.153 In the Directive’s Annex VIII, to which Article 15(1) and Article 17 refer, nine criteria are listed for legitimate and effective mechanisms of self-regulation, some examples of which are open participation, representativeness, added value vis-à-vis legal requirements and effective monitoring. State legal protection could also provide important legal impulses for the verification of pre-conditions for legitimate transnational standards. There are, however, only very few examples for cases in which German or EU courts examined this question in more detail.154 The fact that state political and legal institutions regain influence on transnational regulation also includes the option to reject certain transnational developments altogether. Thus, for example, many critics of the recently negotiated free trade agreement between the EU and Canada rejected some transnational forms of arbitration agreed upon. Here, a new ‘nationalization’ of partially privatised state functions might become manifest, since publicly appointed judges are meant to be responsible for the adjudication of investor–state disputes. In fact, widespread public criticism led to subsequent amendments to the Comprehensive Economic and Trade Agreement (CETA) in February 2016. Instead of arbitration courts, provisions now establish permanent tribunals with appellate bodies, which are staffed by public judges and whose procedures ought to be transparent and comprehensible.155 Overall, one can note that the legitimation of transnational norms suffers from clear deficits. It would be desirable for legislators and jurisprudence to become more active to establish minimum standards for legitimating procedures in the generation of transnational norms. 6. Summary and Outlook Law is increasingly shaped and influenced by informal cross-border regulatory activities and organisational structures—a development which has often been addressed as ‘transnational law’. In contrast, we argue that transnational norms emerging outside established processes of law-making lack legal force, particularly when they aim at providing and preserving public goods. However, it has also become apparent that such cross-border regulatory formations—irrespective of their legal quality—strongly influence the classical set of environmental laws and decision-making procedures and have considerable political and legal importance. The concept of the transnational has some merits here, in particular in terms of understanding of how legal orders interact globally. From a legal point of view, practical and theoretical questions arise out of the interplay between informal rules and state law, primarily regarding the legitimacy of transnational regulation. Ideally, this complex interplay can function as a regulatory network, which serves to embed transnational norms into democratic political institutions, thereby providing some form of derivative legitimacy.156 However, the focus on transnational environmental law also points to the disciplinary interfaces of environmental law.157 Over the differentiation between non-state and state regulatory structures, it should not be forgotten that there are other, disciplinary boundaries, mainly between environmental law and the social and natural sciences. The question of legitimacy therefore should not be reduced to formal structures of democratic rule-making, but also involve other resources of acceptability. At the international and domestic as well as the transnational level, different aspects of legitimation, such as scientifically informed decision-making, have to be systematically integrated. Only then can the regulatory potential of transnational rulemaking and implementation be brought back under public control to achieve politically and legally desired objectives, while counteracting undesirable developments. Without such ‘re-embedding’, normative developments risk being captured by particularist interests or single-issue agendas. Taking into account the perspective of transnationalisation of environmental law can thus provide a critical point of view, opening options to reclaim global environmental issues as public goods. We would like to thank two anonymous reviewers, Gerd Winter, Wolfgang Köck, Ellen Sabo, Julia Auer and Eva-Charlotte Holst for their helpful comments. All remaining limitations and flaws are in the responsibility of the authors. Footnotes 1 One important starting point of the more recent debate being Gunther Teubner, ‘Global Bukowina: Legal Pluralism in the World-Society’ in Gunther Teubner (ed), Global Law Without a State (Dartmouth Publishing 1996); see also Peer Zumbansen, ‘Transnational Law, Evolving’ in Jan Smits (ed), Elgar Encyclopedia of Comparative Law (2nd edn, Edward Elgar 2006), and Craig Scott, ‘“Transnational Law” as Proto-Concept: Three Conceptions’ (2009) 10 German LJ 859, 876; for a more recent list of references see Gregory Shaffer, ‘Theorizing Transnational Legal Ordering’ (2016) 12 Ann Rev L & Soc Sci 231. See also, Karl Heinz Ladeur, ‘Theory of Governance’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010); Veerle Heyvaert, ‘The Transnationalization of Law: Rethinking Law through Transnational Environmental Regulation’ (2017) 6 TEL 205. 2 Anne Röthel, ‘Lex mercatoria, lex sportiva, lex technica – Private Rechtsetzung jenseits des Nationalstaates?’ (2007) 62 JZ 755, 759–60. 3 Robert A Kagan, Adversarial Legalism: The American Way of Law (Harvard University Press 2003) 207–28. 4 Zumbansen (n 1). 5 Burkhard Eberlein and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’ (2014) 8 Regulation & Governance 1, 1. 6 cf eg Lars Viellechner, Transnationalisierung des Rechts (Velbrück Wissenschaft 2013) 176ff. 7 By now, four journals use the term ‘transnational’ in their title: Columbia Journal of Transnational Law, Vanderbilt Journal of Transnational Law, Journal of Transnational Law and Policy as well as Transnational Law and Contemporary Problems. Furthermore, a plethora of research institutes followed this trend, see among others Andreas Maurer, Lex Maritima (Mohr Siebeck 2012) 13. 8 Randolph. Bourne, ‘Trans-National America’ (1916) 118 Atlantic Monthly 86; cf also Paul Enríquez, ‘Deconstructing Transnationalism: Conceptualizing Metanationalism as a Putative Model of Evolving Jurisprudence’ (2010) 43 Vanderbilt J of Transnational L 1265, 1269. 9 Gralf-Peter Calliess and Andreas Maurer, ‘Transnationales Recht - eine Einleitung’ in Gralf-Peter Calliess (ed), Transnationales Recht - Stand und Perspektiven (Mohr Siebeck 2014); cf also Jan Kropholler, Internationales Einheitsrecht - Allgemeine Lehren (Mohr Siebeck 1975) 7 including further references. 10 Gregory Shaffer and Carlos Coye, ‘From International Law to Jessup′s Transnational Law, from Transnational Law to Transnational Legal Orders’ (2017) UC Irvine School of Law Research Paper <https://ssrn.com/abstract=2895159> accessed 12 December 2017. 11 Philip Jessup, Transnational Law (Yale University Press 1956) 2. 12 Harold Hongju Koh, ‘The 1994 Roscoe Pound Lecture: Transnational Legal Process’ (1996) 75 Nebraska L Rev 181; Harold Hongju Koh, ‘Why Transnational Law Matters’ (2006) 24 Penn State International L Rev 745; in the German discussion Gunther Teubner triggered this development, Gunther Teubner, ‘Globale Bukowina. Zur Emergenz eines transnationalen Rechtspluralismus’ (1996) Juristische Rundschau 255. 13 Anne-Marie Slaughter, A New World Order (Princeton University Press 2005). 14 Thijs Etty and Veerle Heyvaert, ‘Introducing Transnational Environmental Law’ (2012) 1 TEL 1, 2. 15 Gunther Teubner, ‘Global Private Regimes: Neo-Spontaneous Law and Dual Constitution of Autonomous Sectors?’ in Karl Heinz Ladeur (ed), Globalization and Public Governance (Ashgate Publishing 2004) 71. 16 For most of those examples see Slaughter (n 13). See also Marco Schäferhoff, Sabine Campe and Christopher Kaan, ‘Transnational Public-Private Partnerships in International Relations: Making Sense of Concepts, Research Frameworks and Results’ (2009) 11 International Studies Rev 451. 17 Etty and Heyvaert (n 14) 3. 18 ibid 6. Etty and Heyvaert talk specifically about transnational environmental law. 19 ibid 4. 20 cf Shaffer (n 1) 232. 21 Peer Zumbansen, ‘Transnational Legal Pluralism’ (2010) 10 Transnational Legal Theory 141. 22 Mathias Reimann, ‘Beyond National Systems: A Comparative Law for the International Age’ (2001) 75 Tulane L Rev 1103; Paul Berman, Global Legal Pluralism: A Jurisprudence Of Law Beyond Borders (CUP 2014); Kanishka Jayasuriya, ‘Globalization, Law, and the Transformation of Sovereignity: The Emergence of Global Regulatory Governance’ (1999) 6 Indiana J of Legal Studies 425. See also Boaventura de Sousa Santos, Toward a New Legal Common Sense: Law, Globalization, and Emancipation (Law in Context, 2nd edn, CUP 2002) 472ff; William Twining, Globalisation and Legal Theory (Law in Context, CUP 2000) 174–245; Benedict Kingsbury, Nico Krisch and Richard Stewart, ‘The Emergence of Global Administrative Law’ (2005) 68 Law & Contemporary Problems 15. 23 Shaffer (n 1) 232. 24 Olaf Dilling, Martin Herberg and Gerd Winter, Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011); Shaffer (n 1) 244, with further references. 25 For further examples, addressed as the ‘orchestration’ of contributions to transnational governance by international organizations, see Kenneth Abbott and others, International Organizations as Orchestrators (CUP 2015). 26 Michael Warning, Transnational Public Governance: Networks, Law and Legitimacy (Transformations of the State, Palgrave Macmillan UK 2009) 203. 27 Joanne Scott and others, ‘The Promise and Limits of Private Standards in Reducing Greenhouse Gas Emissions from Shipping’ (2017) 29 JEL 231. 28 Martin Kment, Grenzüberschreitedes Verwaltungshandeln: Transnationale Elemente Deutschen Verwaltungsrechts (Jus Publicum, Mohr Siebeck 2010) esp. 267ff. 29 For more details, see (3.1) below. 30 cf the instructive ‘governance triangle’ with its locating of different transnational regulatory initiatives in Kenneth Abbott and Duncan Snidal, ‘The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State’ in Walter Mattli and Ngaire Woods (eds), The Politics of Global Regulation (Princeton University Press 2009). 31 The significance of transnational environmental regulation is also reflected in the growing number of scientific publications in this field. This allowed the specialised legal journal Transnational Environmental Law (Cambridge University Press) to emerge in 2012. 32 Olaf Dilling, Martin Herberg and Gerd Winter, Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008); Jürgen Friedrich, ‘Codes of Conduct’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010) 3–27; Gerald Moore, ‘The Code of Conduct for Responsible Fisheries’ in Ellen Hey (ed), Developments in International Fisheries Law (Brill 1999); David Weissbrodt and Muria Kruger, ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regards to Human Rights’ (2003) 97 AJIL 901. 33 cf ibid 3. 34 Jürgen Friedrich, ‘Environment, Private Standard-Setting’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (OUP 2012); Martin Herberg, Globalisierung und private Selbstregulierung: Umweltschutz in multinationalen Unternehmen (Staatlichkeit im Wandel, Campus 2007); Helen Keller, ‘Codes of Conduct and their Implementation: the Question of Legitimacy’ in Rüdiger Wolfrum and Volker Roeben (eds), Legitimacy in International Law (Springer-Verlag 2008) 219ff. 35 For corporate codes of conduct and the extraterritorial auditing of subsidiaries, see Herberg (n 34) 101ff. 36 For further relevant questions, see Gerd Winter, ‘Transnationale Regulierung’ (2009) Aus Politik und Zeitgeschichte 9, 10. 37 Olaf Dilling, ‘Proactive Compliance? – Repercussions of National Product Regulation in Standards of Transnational Business Networks’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 118–19. 38 Olaf Dilling, ‘From Compliance to Rulemaking: How Global Corporate Norms Emerge from Interplay with States and Stakeholders’ (2012) 13 German LJ 381 (404). 39 Nick Feinstein, ‘Learning from Past Mistakes: Future Regulation to Prevent Greenwashing’ (2013) 40 B C Envtl Aff L Rev 229. 40 Aseem Prakash, ‘Responsible Care: An Assessment’ (2000) Business & Society 183. 41 Ivan Montiel, ‘Responsible Care’ in Thomas Hale and David Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 328–29. 42 See ICCA, Responsible Care <https://www.icca-chem.org/responsible-care/> accessed 21 October 2015. 43 See the visitor, decontamination, and wildlife watching guidelines of the International Association for Antarctic Tour Operators, IAATO, Guidelines and Resources <https://iaato.org/guidelines-and-resources> accessed 9 May 2017. 44 cf Lee Thomas, ‘The Business Charter for Sustainable Development: Action Beyond UNCED’ (1992) 1 RECIEL 325, 352ff. 45 Oren Perez, ‘Normative Creativity and Global Legal Pluralism: Reflections on the Democratic Critique of Transnational Law’ (2003) 10 Indiana J of Global Legal Studies 25; Winter (n 36). 46 Dilling (n 38) 381; Coline Ruwet, ‘Towards a Democratization of Standards Development? Internal Dynamics of ISO in the Context of Globalization’ (2011) 5 New Global Studies 1. 47 Kernaghan Webb, ‘ISO 26000 Social Responsibility Standard as “proto law” and a New form of Global Custom: Positioning ISO 26000 in the Emerging Transnational Regulatory Governance Rule Instrument Architecture’ (2015) 6 Transnational Legal Theory 466. 48 Philipp Pattberg, ‘Forest Stewardship Council’ in Thomas Hale and David Held (eds), The Handbook of Transnational Governance: Institutions and Innovations (Wiley 2011) 265ff. 49 Errol Meidinger, ‘Multi-Interest Self-Governance through Global Product Certification Programs’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008) 259. 50 Keller (n 34), 219ff; see also Elisa Morgera, Corporate Accountability in International Environmental Law (OUP 2009). 51 Meidinger (n 49). 52 Till Markus, ‘Changing the Base: Legal Implications of Scientific Criteria and Methodological Standards on what Constitutes Good Marine Environmental Status’ (2013) 2 TEL 145. 53 Philippe Sands and Jacqueline Peel, Principles of International Environmental Law (3rd edn, CUP 2012) 87–88. 54 Transnational networks of experts are in fact not a new phenomenon, see Christian Tietje, ‘History of Transnational Administrative Networks’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 23–37. 55 See Markus (n 52) 145–64. 56 See, for instance, IUCN, Guidelines for Applying Protected Area Management Categories (2013). 57 IUCN, World Soil Erosion and Conservation (1993); IUCN, Legal and Institutional Frameworks for Sustainable Soils - A Preliminary Report (2002); IUCN, Drafting Legislation for Sustainable Soils: A Guide (2004). 58 See, ELNI <http://www.elni.org/> accessed 16 May 2017; see also, EELF <http://www.eelf.info/> accessed 16 May 2017. 59 Peter Haas, ‘Introduction: Epistemic Communities and International Policy Coordination’ (1992) 46 International Organization 1; Markus (n 52). 60 Sands and Peel (n 53) 88. 61 Martin Herberg, ‘Global Governance Networks in Action: the Development of Toxicological Test Methods at the OECD’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011). 62 cf the debate about the shift in the meaning of the conflict of laws towards substantial standards, Christoph Möllers, ‘Internationales Verwaltungsrecht’ in Christoph Möllers, Andreas Voßkuhle and Christian Walter (eds), Internationales Verwaltungsrecht Eine Analyse anhand von Referenzgebieten (Mohr Siebeck 2007). 63 Olaf Dilling, Martin Herberg and Gerd Winter, ‘Introduction: Exploring Transnational Administrative Rule-Making’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011), at 5–6. 64 cf generally Christoph Möllers, ‘Transnationale Behördenkooperation: Verfassungs- und völkerrechtliche Probleme transnationaler administrativer Standardsetzung’ (2005) 65 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 351. 65 Winter (n 36) 11. 66 Warning T (n 26). 67 Gerd Winter, ‘Transnational Administrative Comitology: The Global Harmonisation of Chemicals Classification and Labelling’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 111–50. 68 ibid 135. 69 See FAO and WHO, Codex Alimentarius: International Food Standards <http://www.fao.org/fao-who-codexalimentarius/en/> accessed 16 May 2017. 70 Alexia Herwig, ‘The Contribution of Global Administrative Law to Enhancing the Legitimacy of the Codex Alimentarius Commission’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making (Hart Publishing 2011) 188 f. 71 See, for the emergence of the first international agencies that managed international shipping routes like the Rhine or Danube and were meant to prevent shipping accidents, Tietje (n 54) 27. 72 Sandra Lavenex, Dirk Lehmkuhl and Nicole Wichmann, ‘Die Nachbarschaftspolitiken der Europäischen Union: zwischen Hegemonie und erweiterter Governance’ in Ingeborg Trömmel (ed), Die Europäische Union: Governance und Policy-Making (Springer-Verlag 2008) 379. The same can increasingly be said about the EU’s marine environment and fishing policy, see Nina Maier and Till Markus, ‘Dividing the Common Pond: Regionalizing EU Ocean Governance’ (2013) 67 Marine Pollution Bulletin 66. 73 cf Christina Leb, ‘One Step at a Time: International Law and the Duty to Cooperate in the Management of Shared Water Resources’ (2015) 40 Water International 21, 26. 74 Insa Theesfeld and Christian Schleyer, ‘Germany's Light Version of Integrated Water Resources Management’ (2013) 23 Environmental Policy and Governance 130, 137. 75 Hollin Dickerson, ‘Best Practices’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2010). 76 See eg Michéle Finck, ‘Above and Below the Surface: The Status of Sub-National Authorities in EU Climate Change Regulation’ (2014) 26 JEL 443. 77 WBGU, Humanity on the Move: Unlocking the Transformative Power of Cities (2016); OECD, Competetive Cities and Climate Change (2008); OECD, Cities, Climate Change and Multilevel Governance (OECD Environment Working Papers, 2009). 78 In 2011, for instance, globally 75% of final energy was consumed in cities, IIASA, Progress Report 2009 (2010). It is projected that by 2050 the share of the world population living in urban areas will increase to about 69% (of then 9 billion people), which will consequently also increase the share of urban emissions, WBGU (n 77) 58. 79 Harriet Bulkeley, Cities and Climate Change (Routledge 2013) 28ff. 80 Kristine Kern and Gotelind Alber, ‘Governing Climate Change in Cities: Modes of Urban Climate Governance in Multi-Level Systems’, Competitive Cities and Climate Change (2008); WBGU (n 77) 267–69; Anna-Lisa Müller, Green Creative City (UVK 2013). 81 Harriet Bulkeley, ‘Cities and the Governing of Climate Change’ (2010) 35 Annual Review of Environment and Resources 229–53. 82 Liliana Andonova, Michele Betsill and Harriet Bulkeley, ‘Transnational Climate Governance' (2009) 9 Global Environmental Politics 52; Sofie Bouteligier, Cities, Networks, and Global Environment Governance: Spaces of Innovation, Places of Leadership (Routledge 2013). 83 See, eg the certification by the ‘Port Environmental Review System (PERS)’, which was developed by the Sea Ports Organization and is implemented by Lloyd’s Register. See, ESPO <http://www.ecoports.com/> accessed 12 December 2017. 84 UNFCCCC, Decision 1/CP.21, paras 117, 133–136; Sander Chan, Clara Brandi and Steffen Bauer, ‘Aligning Transnational Climate Action with International Climate Governance: The Road from Paris’ (2016) 25 RECIEL 238. 85 Miroslav Angelov and Liam Cashman, ‘Environmental Inspections and Environmental Compliance Assurance Networks in the Context of European Union Environment Policy’ in Michael Faure, Peter De Smedt and An Stas (eds), Environmental Enforcement Networks: Concepts, Implementation and Effectiveness (Edward Elgar 2015); Martin Hedemann-Robinson, Enforcement of European Union Environmental Law: Legal Issues and Challenges (2nd edn, Routledge 2015) 546ff. 86 See the network’s webpage, IMPEL <https://www.impel.eu/about-impel/> accessed 12 December 2017. 87 BMU and BMELV, Nationaler Biomasseaktionsplan für Deutschland: Beitrag der Biomasse für eine nachhaltige Energieversorgung (2010) 2. 88 Directive 2009/28/EC of the European Parliament and of the Council of 23 April 2009 on the promotion of the use of energy from renewable sources and amending and subsequently repealing Directives 2001/77/EC and 2003/30/EC, [2009] OJ L140/16. 89 Andrea Schmeichel, Towards Sustainability of Biomass Importation. An Assessment of the EU Renewable Energy Directive (Europa Law Publishing 2014) 181ff. 90 Seminal Armin von Bogdandy and Ingo Venzke, In Whose Name? A Public Law Theory of International Adjudication (International Courts and Tribunals Series, OUP 2014). 91 cf Markus Krajewski, ‘Umweltschutz und internationales Investitionsschutzrecht am Beispiel der Vattenfall-Klagen und des Transatlantischen Handels- und Investitionsabkommens (TTIP)’ (2014) Zeitschrift für Umweltrecht 396, 398. 92 ibid 401; it is feared that imminent compensation payments for damages will prevent states from implementing certain environmental protection measures. See, for instance, Gus Van Harten, Investment Treaty Arbitration and Public Law (OUP 2007); Kyla Tienhaara, The Expropriation of Environmental Governance: Protecting Foreign Investors at the Expense of Public Policy (CUP 2009). 93 Usually called ‘chill effect’, Krajewski (n 91) 398. 94 cf the social scientific resaerch into the transnational aspect of economic governance, Eberlein and others, ‘Transnational Business Governance Interactions: Conceptualization and Framework for Analysis’. 95 See, critically Gunther Teubner and Andreas Fischer-Lescano, ‘Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law’ (2006) 25 Michigan J of Intl L 999. 96 Directive 2011/65/EU of the European Parliament and of the Council of 8 June 2011 on the restriction of the use of certain hazardous substances in electrical and electronic equipment [2011] OJ L174/88. For the transnational interaction, Dilling (n 46). 97 Warning (n 26) 78. 98 ibid. 99 Otto Schmid, ‘Development of Standards for Organic Farming’ in William Lockeretz (ed), Organic Farming – An International History (CABI 2007) 153. 100 ibid 156. 101 ibid (CABI 2007) 154–55. 102 Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on organic production and labelling of organic products’ COM (2014) 180 final of 24 March 2014. On 13 October 2015, the Parliament opted for more stringent controls of the supply chain and for higher requirements for imports under the ecolabel, See <http://www.consilium.europa.eu/en/press/press-releases/2017/06/28/rules-organic-farming/> accessed 3 January 2018. 103 Schmeichel (n 89). 104 Hans Vedder, Competition Law and Environmental Protection in Europe: Towards Sustainability? (Europa Law Publishing 2003). 105 Case C-368/10, Commission v Netherlands (Max Havelaar), EU:C:2012:284. 106 Directive 2014/24/EU of the European Parliament and of the Council of 26 February 2014 on public procurement and repealing Directive 2004/18/EC [2014] OJ L94/65. 107 Andreas Fischer-Lescano, ‘Transnationales Verwaltungsrecht’ (2008) 35 JZ 373. 108 Katia Bodard, ‘WTO Legal Constraints and Opportunities for National Environmental Product Regulations’ in Marc Pallemaerts (ed), EU and WTO Law: How Tight is the Legal Straitjacket for Environmental Product Regulation? (VUB 2006) 119. 109 US-Restrictions on Imports of Tuna, Panel-Report of 16.8.1991, ILM 30 (1991) 1598 ff; US-Import Prohibition of Certain Shrimp and Shrimp Products, Panel-Report of 15.5.1998, WT/DS 58/R; Appellate Body Report of 12.10.1998, WT/DS 58/AB/R; cf also the recent WTO tuna decision regarding transnational environmental standards, Carola Glinski, ‘Private Norms as International Standards? – Regime Collisions in Tuna-Dolphin II’ (2012) 3 European J of Risk Regulation 545 including further evidence. 110 For the prevailing interpretation of especially art 31 Ans 3 lit c Vienna Convention on the Law of Treaties, see Campbell McLachlan, ‘The Principle of Systematic Integration and Article 31(3)(C) ot the Vienna Convention’ (2005) 54 ICLQ 279. 111 See also Gráinne de Búrca, ‘After the EU Charter of Rights: The Court of Justice as a Human Rights Adjudicator’ (2013) 20 Maastricht J of European and Comparative L 168. 112 In this regard, Roberts invokes the notion of ‘comparative international law’. See Anthea Roberts, ‘Comparative International Law? The Role of National Courts in Creating and Enforcing International Law’ (2011) 60 ICLQ 57. 113 Slaughter (n 13) 65ff; Erik Voeten, ‘Borrowing and Nonborrowing among International Courts’ (2010) 39 J of Legal Studies 547. 114 EUFJE <http://www.eufje.org/index.php/en/> accessed 12 December 2017. 115 ITLOS, Order 2010/3, 18 May 2010; Seabed Activities Advisory Opinion, margs 7 and 11; ITLOS, Request for an advisory opinion submitted by the Sub-Regional Fisheries Commission (SRFC), Advisory Opinion, Case No 21, margs 17, 26. 116 Twining (n 22) 224; Berman (n 22); Brian Tamanaha, ‘Understanding Legal Pluralism: Past to Present, Local to Global’ (2008) 30 Sydney L Rev 375; Nico Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (Oxford Constitutional Theory, OUP 2010). 117 William Twining, ‘A Post-Westphalian Conception of Law’ (2003) 37 Law & Society Review 199. 118 Heyvaert (n 1) 221. 119 David Saunders, ‘Hegemon History: Pufendorf's Shifting Perspectives on France and French Power’ in Olaf Asbach and Peter Schroder (eds), War, the State and International Law in Seventeenth-Century Europe (Ashgate Publishing Ltd 2010) 211–30. 120 See, for instance, Andreas Fischer-Lescano and Lars Viellechner, ‘Globaler Rechtspluralismus’ (2010) Aus Politik und Zeitgeschichte 20. 121 Emphasis added by the authors, Heyvaert (n 1) 208–9. 122 ibid 211. 123 ibid. 124 HLA Hart, The Concept of Law (Clarendon Law Series, OUP 2012) 123 f. 125 Heyvaert (n 1) 231. 126 See the Roman law principle: Pacta tertiis nec nocent nec prosunt. 127 In this regard, the collision between public law and other ‘functional legal regimes’, repeatedly addressed in the debate, occurs to an only limited extent, see Teubner and Fischer-Lescano (n 95). 128 cf Dilling, Herberg and Winter (n 32) 7. 129 See the thorough discussion of the different responses to transnational norms, Heyvaert (n 1) 221–35. 130 Ibid 211–13. 131 Viellechner (n 6). See also, Lars Viellechner, ‘Responsive Legal Pluralism: The Emergence of Transnational Conflicts Law’ (2015) 6 Transnational Legal Theory 312, 312–32. See also Lars Viellechner, ‘Constitutionalism as a Cipher: On the Convergence of Constitutionalist and Pluralist Approaches to the Globalization of Law’ (2012) 4 Göttingen J of Intl L 599. 132 Warning (n 26). 133 For instance, Eric Orts, ‘Reflexive Environmental Law’ (1995) 89 Northwestern ULR 1229, 1227ff; Julia Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self Regulation in a “Post-Regulatory” World’ (2001) 54 CLP 103, 103ff; François Ost, ‘A Game without Rules? The Ecological Self-Organization of Firms’ in Gunther Teubner, Lindsay Farmer and Declan Murphy (eds), Environmental Law and Ecological Responsibility (Wiley 1994), 352ff. 134 Sally Merry, ‘Legal Pluralism’ (1988) 22 L & Society Rev 869, 869ff; see also Tamanaha (n 117). 135 Winter (n 36) 9–15; Gunther Teubner, ‘Des Königs viele Leiber. Die Selbstdekonstruktion der Hierarchie des Rechts’ (1996) Soziale Systeme 229, 229. For the trajectory of transnational social movements and their legal relevance, see among others Alan Boyle and Christine Chinkin, The Making of International Law (Foundations of Public International Law, OUP 2007) 41–43. 136 Winter (n 36) 10. 137 cf the related diagnosis of a ‘disaggregation of the state’ in Anne-Marie Slaughter, ‘Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks’ (2004) 39 Government & Opposition 159. 138 For a differentiated account, see Stefan Oeter, ‘The Openness of International Organizations for Transnational Public Rule-Making’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Transnational Administrative Rule-Making: Performance, Legal Effects and Legitimacy (Hart Publishing 2011), 239ff. 139 With further references Thomas Risse, ‘Transnational governance and legitimacy’ in Arthur Benz and Ioannis Papadopoulos (eds), Governance and Democracy: Comparing National, European and International Experiences (Routledge 2006) 179 (191). 140 See Douglas Kysar, Regulating from Nowhere: Environmental Law and the Search for Objectivity (Yale University Press 2010). 141 Jacob Weinrib, Dimensions of Dignity: The Theory and Practice of Modern Constitutional Law (Cambridge University Press 2016) 151. 142 For the German position on Abwägungsverbot generally, see Kai Möller, ‘Abwägungsverbote im Verfassungsrecht’ (2007) Der Staat 109, 109; but see also the criticism of cost–benefit-analysis in the USA, Frank Ackermann and Lisa Heinzerling, ‘Pricing the Priceless: Cost-Benefit Analysis of Environmental Protection’ (2002) 150 U of Penn L Rev 1553; Kysar (n 140). 143 For this issue from an American perspective, see Kysar (n 140); on the difference between deontological and consequentialist approaches to the weighing of rights, Larry Alexander and Michael Moore, ‘Deontological Ethics’ in Edward Zalta (ed), The Stanford Encyclopedia of Philosophy (2016), <https://plato.stanford.edu/archives/win2016/entries/ethics-deontological/> accessed 11 January 2018. 144 See, for instance, Gerd Winter, ‘Zur Architektur globaler Governance des Klimaschutzes’ (2012) 72 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 105. 145 Fritz Scharpf, Demokratietheorie zwischen Utopie und Anpassung (Universitätsverlag Konstanz 1970). 146 For example, Armin von Bogdandy, ‘General Principles of International Public Authority: Sketching a Research Field’ (2010) 9 German LJ 1909; Anuscheh Fahrat, ‘Regulating Minority Issues through Standard-Setting and Mediation: The Case of the High Commissioner on National Minorities’ (2009) 9 German LJ 1453. Regarding the increasing need for legitimacy in the context of international adjudication see von Bogdandy and Venzke (n 90). 147 Thomas Risse, ‘Transnational governance and legitimacy’ in Arthur Benz and Ioannis Papadopoulos (eds), Governance and Democracy: Comparing National, European and International Experiences (Routledge 2006) 179 (192). 148 Errol Meidinger, ‘Multi-Interest Self-Governance through Global Product Certification Programs’ in Olaf Dilling, Martin Herberg and Gerd Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (Hart Publishing 2008). 149 cf the relevant suggestions in Walter Baber and Robert Bartlett, Consensus and Global Environmental Governance: Deliberative Democracy in Nature's Regime (MIT Press 2015). 150 For the interplay of different elements of legitimation, see Hans-Heinrich Trute, ‘Die demokratische Legitimation der Verwaltung’ in Wolfgang Hoffmann-Riem, Eberhard Schmidt-Aßmann and Andreas Voßkuhle (eds), Grundlagen des Verwaltungsrechts Band I: Methoden, Maßstäbe, Aufgaben, Organisation (CH Beck 2012) marg 56ff. 151 Christian Calliess, Rechtsstaat und Umweltstaat (Mohr Siebeck 2001) 88. 152 Harm Schepel, ‘Private Regulators in Law‘ in Joost Pauwelyn, Ramses Wessel and Jan Wouters (eds), Informal International Lawmaking (OUP 2012) 356 (359). 153 Directive 2009/125/EG of the European Parliament and of the Council of 21 October 2009 establishing a framework for the setting of ecodesign requirements for energy-related products, [2009] OJ L285/10. 154 See, for instance, the highest court ruling about mobile phone transmitters, German Supreme Court, BGH 8 ZR 74/5, adjudication of 15.3.2006; German Federal Constitutional Court, BVerfG 1BvR 1676/01, adjudication of 28.2.2002. 155 See section 8.27 CETA-Agreement. 156 Gráinne de Búrca, Robert Keohane and Charles. Sabel, ‘New Modes of Pluralist Global Governance’ (2013) 45 NYU J of Intl L and Politics 386, 386ff; Gerd Winter, Multilevel Governance of Global Environmental Change: Perspectives from Science, Sociology and the Law (CUP 2006); Twining (n 22) 224ff; Berman (n 22); Matthias Knauff, Der Regelungsverbund: Recht und Soft Law im Mehrebenensystem (Mohr Siebeck 2010); see also—however more sceptical in terms of democratic control—Ladeur (n 1). 157 Etty and Heyvaert (n 14) 6. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Environmental LawOxford University Press

Published: Mar 2, 2018

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