Administrative law principles in multilateral environmental agreements and regional fisheries management organisations.

Abstract

Over the last century it has become clear that many environmental problems require cooperative action and so a multitude of Multilateral Environmental Agreements (MEAs) and Regional Fisheries Management Organizations (RFMOs) have sprung up to tackle issues in various subject areas, from air quality, to biodiversity, to environmental information, to hazardous wastes. Some of these regimes have been in existence for more than 30 to 40 years, and yet the natural world is in a state of crisis in many areas, from climate, to species loss, to disappearing wetlands and increasingly polluted oceans. Some MEAs and RFMOs have enjoyed successes, but others appear to be facing significant effectiveness problems. Environmental issues often do not have simple solutions and there may be various reasons for regulatory failures; the state of the planet can by no means be solely laid at MEAs and RFMOs door. MEAs and RFMOs are very much a necessary part of the solution, but many, if not most, could do better at achieving tangible environmental improvements.

MEAs and RFMOs usually establish an ongoing institutional structure which differs from regime to regime, but which nonetheless contains a common core. At the top sits a governing body in which state parties act collectively to take decisions, supervise subsidiary bodies, and make further rules including progressively deepening commitments. Common also are Secretariats, financial mechanisms, scientific advisory bodies, and non-compliance mechanisms. These arrangements have a raft of benefits, but their legitimacy has also been called into question, particularly in terms of state consent. While in the opinion of this author, legitimacy concerns in MEAs and RFMOs are not as acute as some suggest, supplementary sources of legitimacy could certainly help to bolster MEAs and RFMOs.

Impartiality, transparency, reason-giving, participation, and review are principles familiar from domestic administrative law contexts, where they perform red light (power-constraining, justice) and green light (power-directing, wisdom) functions. If these principles can perform similar functions for MEAs and RFMOs then they could inter alia provide some important process legitimacy, as well as help regimes function better, leading to more effective outcomes. The study of global administrative law in MEAs and RFMOs has been somewhat neglected. This thesis seeks to help fill that gap. First, by conducting primary research and comparative mapping of 30 regimes to see to what extent these principles are already in action in the rules of MEAs and RFMOs, and second by analyzing these findings to see if these principles have the potential to help to improve both the effectiveness and legitimacy of MEAs and RFMOs.