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From accuracy to accountability: subjecting global indicators to the rule of law

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This paper presents a double genealogy of indicators as instruments of governance. These have their roots both in the use of statistical tools for normative purposes by states and in the development of indicators within firms as preferred instruments of ‘new management’. The paper argues that social indicators not only convey information, but are genuine tools of global governance and that, for this reason, their legitimacy depends not only on their accuracy, but also on their accountability. If indicators are intended to produce or effectively produce regulatory effects, they should be subjected to the rule of law and to judicial review. The essay ends by formulating four main principles that these indicators should comply with.

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Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355 TO DOWNLOAD THE FILE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4235700 When we speak of “the environment,” people often think of the material world that is around humans, but not humans, as though environmental protection is a big nature reserve project. The relation between humans and non-humans is most often expressed as a matter of protection and force by the first over the latter and not in a way that strengthens coexistence of the different parts of the society. It is therefore more helpful to speak of “ecology,” because its root is the ancient Greek word “οἶκος“ (oikos), which simultaneously could mean the house, the family or the family’s property. Using our abstract concepts such as sustainable development, and our abstract tools, such as the law, our family is building and protecting our own house, not a nature reserve that is somewhere else. Seen this way, the remaining challenge is to see the house as the house of our family of humans; the common house of all of our family, not my house in the wealthy suburbs and yours in the impoverished city. While industrial environmental problems may have originally been seen as local water or air problems, solved by sending the waste or pollution to someone else’s house, global challenges like climate disruption have reminded us that we were really just sending the pollution and dumping the waste in another room of our own house all along. The example of emerging economies is noteworthy. The environmental crisis more severely affects what falls under the umbrella of the Global South. It is precisely here that we need to look at innovative answers to global challenges. The aim of this edited collection is to bring to the table a different perspective on environmental law and governance by including the voices of the countries that due to their location or to their status as emerging economies are, sadly, too often excluded from the discussion. International environmental law rose to prominence thanks to an effort of forward looking scholars and writers such as from a wide array of disciplines acknowledging an urgent need of developing a “consciousness that mankind might be imposing, by its growing population and industrial and technological developments, an intolerable burden on the capacity of its environment to sustain either its existing activities or their growth” . Still, a consciousness which limits economic growth and activities clashes with basic tenants of human development such as poverty alleviation efforts and jobs creation especially in countries object of economic exploitation. Global unity in the environmental realm and in other fields throughout history has been only reached when the very own survival of the humans and more recently also of the nonhumans one are at risk. We are again reminded of the weakness of this approach with COVID-19. Our handling of the pandemic clarifies that even if, as a consequence of environmental degradation, something happens in the Global South the connections with the Global North could not be put on hold. Physical borders are no longer able to contain environmental harms and this should push us to further reflect on the fact that we are part of a single family and single house. Our relationship to our material house may be informed by descriptive natural sciences, but to live with other persons in those material conditions of the home, we need to understand human social practices. Communication, history, customs, and religions are all social practices that must be understood in order to enable our successful co-habitation. So is law. Law in this sense is one set of human social practices, invented by ourselves to serve our needs, including our need to negotiate our relationship to the material nature of the family house in which we all live. And within the law, there are many different models for how we establish the rules and implement the rules. The fact that the rules are limited by the material of our common house does not mean the rules are determined by the material of the house. The rules are determined by its inhabitants. We establish the social practices in many ways, including through legal practices. However, these rules are established and implemented by the most unsustainable super-predator – humans - with no attention for other species’ habitat and sustainability adaptation strategies. Not all humans are the same some part of our material house is in fact able to respect and protect the ecosystem. Indigenous people, while representing a small share of global population, has a deep and intimate connection with the ecosystem which places at the centre non-humans. Rules of Indigenous people’s house mirrors the one of the nature and social rules are crafted based on the need of protecting habitat and biodiversity. Legal tools exist or are under shaping for strengthening the contribution of local communities to the protection of our common house. Heuristically and by analogy, we can borrow, as in the case of indigenous people, some ideas for our social rules from the material rules of nature that we observe. For example, We define an indicator in biology as an organism that the presence, or lack thereof, provides a clear signal about the environmental conditions. Depending on the organism, its appearance can signal both a healthy ecosystem or an unhealthy one. These indicators can reveal information about many factors in an environment, including pollution levels, salinity, temperature and nutrient or food availability. There are many examples of indicator species. Indicator species can be anything from bacteria to more complex organisms such as plants and animals. While everything has evolved to live within certain thresholds, so all organisms are indicators of something; many are considered particularly sensitive and provide a good indication of the initial changes in environmental conditions. TO DOWNLOAD THE FILE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4235700 Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355
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Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355 TO DOWNLOAD THE FILE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4235698 “Globalization” is a word with many meanings. Some people say globalization is responsible for having lifted millions of people out of poverty over the past decades. Other people say that globalization is neocolonialism. All will agree that the processes that accompany globalization have had tremendous impacts on the environment. Commodification of the environment along with environmental degradation have led to an almost universal awareness of the negative effects of such crises as disrupted climate. The conservation and restoration of the environment, as well as the protection of biodiversity are essential for human life, including its economic components. The international community has responded to the challenge by shifting away from the Brundtland Commission’s intergenerational concept of “development which meets the needs of current generations without compromising the ability of future generations to meet their own needs” to equating “development” with economic development under the New York Convention. and reserving a third and separate pillar for economics over and against social concern and the environment. However promising the concepts “sustainable development” and “sustainability” may have been, they have become overused and meaningless. Like worn-out coins, they became just placeholders. To re-inscribe meaning in the metal of sustainable development, the authors in this book examine environmental problems caused, facilitated or exacerbated by globalization, as seen from the perspectives of the Global South and emerging economies. Investments, trade and technological advances are key driving forces of transition in these countries. The economic development component (also known as “green-growth” policies) may be preferred by globalizing forces, which also regard it as most suitable to cope with climate disruption, for example. With the globalization of economics comes some aspects of the globalization of law. The globalization of environmental law that is currently under formation in the Global South addresses the integration of the ecological and economic components by analyzing the contribution of emerging and developing economies. Sometimes, environmental law is part of the solutions; sometimes environmental law is part of the problems. In this book, the terms “Global South” and “emerging economies” are included as alternative conceptualizations to the “developed” and “developing” countries. But this alternative conceptualization itself is a divide that enables globalization. The Global South is no longer a passive actor in the environmental global discourse, but is proactively and assertively shaping, advancing and furthering environmental law. In these countries, environmental degradation is a new form of “poverty” that curtails and undermines the right to development and, in extreme cases, the right to life. Therefore, in these countries we must look for innovative strategies and approaches to mitigate environmental crises. By the year 2100, the Global South will be 82.2% of global population with tremendous effects on the perception and framing of the priorities of the international community. Not only because of population but also due to economic, social and cultural development, the Global South merits attention. In the chapters of this book, the perspectives of the Global South and emerging economies are presented by lawyers from Brazil, Ethiopia, India, Mongolia, Nigeria, and St. Vincent and the Grenadines, as well as from the European states of France, Georgia, Germany and Slovakia. The authors are natives of either emerging economies or of the Global South, or work extensively in those regions. All of the book’s themes are mentioned in the title: globalization, environmental law, sustainable development, the Global South, implementation and challenges. Within the term “sustainable development” we find the word “development.” As regards globalization, this word indicates that the world is still divided between developing and developed countries. If one allows this differentiation, then the implication is that the world is described only in terms of economy. However, the exclusive focus on the economy is too shortsighted, because without a healthy environment, an economy can hardly thrive. Moreover, as Indian public interest environmental lawyer M.C. Mehta has insisted, “Only when the environment is degraded or the people ripped from their connection with the Earth, can they truly be considered poor.” Consequently, the concept of development must be expanded to include topics other than the economy, and to feature these other topics and thus answer questions such as how a system can function if responsible states are not required to carry the burdens of degradation. Topics include investment in clean industries, trade in green goods and agricultural products, intellectual property rights, traditional knowledge, technology transfer, emerging technologies such as big data, climate disruption, energy security, food security, conservation of biodiversity, environmental restoration, development aid and trade facilitation. As a political, economic, social and legal organizing strategy, globalization tends toward a one-world system. Important questions to answer are: Whose world will that one world system resemble? Will it look like the Global South, the Global North, or a third way? If the one world is to be the Global North, what is the carrying capacity of the planet for the necessarily greater demand on limited resources that the Northern lifestyle will require upon achieving globalization? Proponents of globalization would credit it with “lifting” people out of poverty. One must ask whether that can be true for the short term or the long term. Even within the northern economy of the United States, the divide between the wealthy and the poor grows at an increasing rate. The processes that accompany globalization have undeniably taken a tremendous toll on the environment. As an economic strategy, the commodification of the environment has caused degradation resulting in such unintended results as global climate disruption. This, in turn, has an inevitable impact on people’s health and thus on the value of a country’s development. Environmental degradation is a new form of “poverty” that curtails and undermines the right to development and, in some cases, even the right to life. The pressure on developing countries and emerging economies to conserve resources and support sustainable development is therefore evident. Although they are no longer passive actors, and are proactively and assertively shaping the environmental law that is part of the global fabric, the rationale for doing so widely differs from that of the Global North. So far, the approach of multilateral development banks is to use and transplant institutions from the Global North in order to strengthen market forces, which continues a dependency relationship that smacks of neocolonialism. More recently, those banks have considered environmental protection. Too little attention is paid to local circumstances and to the different ethical underpinnings of development in these countries. The main question that this book attempts to answer is how to include the contributions of the Global South in the sustainable development paradigm that proved to be so far ineffective. Reaching a balance between the Global North and South in globalized environmental law is of utmost priority for the international community. If environmental law is to be globalized, will it just be a tool of enablement for a globalized Northern economy until, in the not too distant future, all of earth’s resources are exhausted? If not, then globalized environmental law requires a different path than that taken by previous globalized environmental exploitation. For a globalized environmental law to be just and to sustain life in a truly global sense, it must benefit the developing and emerging economies, and benefit from those economies. Otherwise, states and cultures of the Global North are only attempting to fix environmental problems with the same rationale and instruments that in fact created the very same problems. Implementation is another theme of the book. Experience demonstrates many times over that if “environmental law” is presented in the context of how it is experienced in the Northern Hemisphere, a student of law from the Global South is likely to say “we have constitutional provisions, legislation and regulations too, but they are not implemented.” Thus it is that we present this book. This edited collection reviews first the difficulties in transplanting and implementing legal norms aimed at the management of environmental risks in the Global South. The methods of the authors span from pure theory to original data collection in the field, with most contributions falling somewhere between. The book is organized into three parts. Each part’s theme is presented by the authors largely through the concrete context of a representative country. In addition, a theme that is woven through every chapter is to ask how law can enable sustainable development, given the limited carrying capacity of the earth. Although it might otherwise be just, we know that it would be unsustainable if the Global South were to repeat the industrial economic practices that cause the environmental degradation. The book first covers the effects and impacts of the Global North on the Global South. It then moves the analysis to how the Global North shapes international law and the reactions and criticisms that have arisen from Global South countries. The final part addresses the proposed alternatives from the Global South to environmental law globalized from the North. TO DOWNLOAD THE FILE: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4235698 Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355
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Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355 Cover, Table of Contents, Forewords, Introduction and Acknowledgements can be downloaded at the following website: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3997259 Entire Book Available in Open Access: https://www.taylorfrancis.com/books/oa-edit/10.4324/9781003160236/globalization-environmental-law-sustainable-development-global-south-kirk-junker-paolo-davide-farah Kirk W. Junker and Paolo Davide Farah, GLOBALIZATION, ENVIRONMENTAL LAW AND SUSTAINABLE DEVELOPMENT IN THE GLOBAL SOUTH: CHALLENGES FOR IMPLEMENTATION, Routledge Publishing (London/New-York), Routledge Explorations in Environmental Studies, ISBN 9780367749132, November 2021, pp. 348. Cover, Table of Contents, Forewords, Introduction and Acknowledgements can be downloaded at the following website: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3997259 This volume examines the impact of globalization on international environmental law and the implementation of sustainable development in the Global South. Comprising contributions from lawyers from the Global South or who have experience in the Global South, this volume is organized into three parts, with a thematic inquiry woven through every chapter to ask how law can enable economies that can be sustained, given the limited carrying capacity of the earth. Part I describes and characterizes the status quo of environmental and economic problems in the Global South during the process of globalization. Some of those problems include redistribution of environmental burden on the public through over-reliance on the state in emerging economies and the transition to public-private partnerships, as well as extreme uncontrolled economic expansion. Building on Part I, Part II takes an international perspective by presenting some tools that are in place during the process of globalization that lead to friction and interfaces between developed and developing economies in environmental law. Recognizing the impossibility of a globalized Northern economy, the authors in Part III present some alternatives through framework ideas of human and civil rights, environmental rights, and indigenous persons’ rights, as well as concrete and specific legal tools to strengthen justice and rule of law institutions. The book gives new perspectives to familiar approaches through concrete examples by professional practitioners and theoretical discourse by academic researchers, and can thereby form the basis for changes in practices, as well as further discussions and comparisons. This book will be of great interest to students and scholars of environmental law, sustainable development, and globalization and international relations, as well as legal professionals and practitioners. Keywords: Globalization, Global South, Environment, Energy, Sustainable Development, Paris Agreement, Environmental Risks, Litigation Remedies, Governance, Extractive Industries, Mongolia, Nigeria, Uganda, Ethiopia, East Africa, South Africa, India, China, Brazil, European Union, Caribbean Small Islands Kirk W. Junker and Paolo Davide Farah, GLOBALIZATION, ENVIRONMENTAL LAW AND SUSTAINABLE DEVELOPMENT IN THE GLOBAL SOUTH: CHALLENGES FOR IMPLEMENTATION, Routledge Publishing (London/New-York), Routledge Explorations in Environmental Studies, ISBN 9780367749132, November 2021, pp. 348. Cover, Table of Contents, Forewords, Introduction and Acknowledgements can be downloaded at the following website: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3997259 Entire Book Available in Open Access: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4354355
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The use of indicators is a prominent feature of contemporary global governance. Indicators are produced by organizations ranging from public actors such as the World Bank or the US State Department, to NGOs such as Freedom House, to hybrid entities such as the Global Fund, to private sector political risk rating agencies. They are used to compare and rank states for purposes as varied as deciding how to allocate foreign aid or investment and whether states have complied with their treaty obligations. This article defines the concept of an "indicator," describes how indicators have recently been used in global governance, and identifies various ways in which the use of indicators has the potential to alter the nature of global governance. Particular attention is paid to how reliance on indicators affects the authority and contestability of decisions. The United Nations Human Development Index and the World Bank Doing Business indicators are analyzed as case studies.
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This paper, a distillation of findings from the NYU Global Administrative Law Research Project, considers the emergence and the need for further development of administrative law mechanisms to promote greater accountability in decision making and rulemaking in the rapidly proliferating variety of global regulatory structures. These include formal international organizations (such as the WTO, the Security Council, World Bank, the Climate Change regime, etc), informal intergovernmental networks of domestic regulatory officials (such as the Basel Committee of national bank regulators), domestic authorities implementing global regulatory law, hybrid public-private and purely private transnational regulatory regimes. The subjects of such global regulatory systems include individuals, firms and other economic actors, states, and occasionally NGOs. These regimes and subjects, we argue, are part of a single global administrative space distinct from the domains of international law and domestic administrative law. We define global administrative law as the principles, procedures, and review mechanisms that are emerging to govern decision making and regulatory rulemaking by these bodies. We identify a number of structural mechanisms that have arisen to develop and apply global administrative law, including domestic courts and legislatures reviewing domestic implementation of global standards and national officials’ participation in global administrative decisions, and new mechanisms developed at the global level for governance of international and transnational regulatory bodies. We examine the sources and content of the various doctrinal principles and requirements that have been developed and enforced by these mechanisms (such as transparency, participation, reasoned decision making, review, and substantive standards such as proportionality), and their sources. We next consider the normative foundations of global administrative law, including intra-regime control, liberal notions of protection of the rights of individuals and of economic actors, protection of the rights of states, and securing democracy with respect to global regulation. We examine these normative foundations in relation to three conceptions of international ordering -- pluralist, solidarist, and cosmopolitan -- and in relation to North-South differences. We then consider different strategies for constructing global administrative law, including bottom-up approaches that seek to extend domestic administrative law to global regulatory decisions and top-down approaches that develop new administrative law mechanisms at the global level. We also examine the positive political theory of global administrative law. We conclude that the field of global administrative law is an important emerging phenomenon, distinct from international law and from domestic administrative law, that deserves systematic study and development.