ARTICLES

Normative Issues in Global EnvironmentalGovernance: Connecting Climate Change,Water and Forests

Joyeeta Gupta

Accepted: 13 May 2014

� Springer Science+Business Media Dordrecht 2014

Abstract Glocal (global to local) environmental governance lags behind the sci-

ence regarding the seriousness of the combined environmental and developmental

challenges. Governance regimes have developed differently in different issue areas

and are often inconsistent and contradictory; furthermore governance innovations in

each area lead to new challenges. The combined effect of issue-based, plural, and

fragmented governance raises key normative questions in environmental gover-

nance. Hence, this overview paper aims to address the following questions: How can

the global community move towards a more normatively consistent global archi-

tecture for sustainable development? In order to address this question, I first examine

the key normative issues and the nature of governance in the area of climate change,

water and forests. In doing so I also look at the implications of each for food

production, safety and security. The paper concludes that (a) there are strong nor-

mative and architectural inconsistencies between the fragmented and plural issue-

specific regimes; (b) that such inconsistencies are inevitable in an ‘anarchic’ inter-

national order; (c) that some degree of normative coherence can be strived at through

the adoption of global constitutionalism and rule of law; and (d) that the present

discussion on global sustainable development goals is a first step towards creating a

normatively consistent global architecture for sustainable development.

J. Gupta (&)

Environment and Development in the Global South, Department of Geography, Planning and

International Development Studies, Amsterdam Institute for Social Science Research, University of

Amsterdam, Plantage Muidergracht 14, 1018 TV Amsterdam, The Netherlands

e-mail: j.gupta@uva.nl

J. Gupta

UNESCO-IHE Institute for Water Education, Delft, The Netherlands

J. Gupta

Fruitlaan 6, 2292 BB Wateringen, The Netherlands

123

J Agric Environ Ethics

DOI 10.1007/s10806-014-9509-8

Keywords Power politics � Norms � Distributional problems � Rule of law

Introduction

Globalization and liberalization have increased global wealth but possibly at the

cost of enhancing resource use, resource pollution and global change beyond

acceptable limits. These unacceptable limits are referred to in the literature as

tipping points or planetary boundaries (Rockstrom et al. 2009). Cumulative

knowledge of social problems has also led to a global awareness that human dignity

is affected if basic needs are not met leading to a call for social floors (Raworth

2012) and human rights. At the same time, globalization and liberalization have

changed the rules of the governance game and have affected who gets access to

resources. In many cases, this has led to ‘land grabbing’ and ‘water grabbing’. ‘The

nationalization of resources’—e.g. through the establishment of ‘national parks’ has

sometimes dislocated local people and sometimes traditional activities have been

‘criminalized’. At global level, countries participate in negotiations only if it suits

their interests and this has led to a situation in which some countries do not

participate and assume responsibility for their own actions, often at a cost for others.

As a consequence, the glocal (global to local) governance process is both unable to

address these problems at a speed commensurate with the urgency of the problem,

as well as take on the normative dimensions in glocal governance processes. The

combined effect of not addressing global environmental problems and inequitable

governance tends to further disenfranchise the weakest (individuals and countries)

in society.

Given this introduction, the paper addresses the question: How can we move

towards a more normatively consistent global architecture for Sustainable Devel-

opment? In order to address this question examined in the concluding section, I first

examine the key normative issues and the nature of governance in the area of

climate change, water and forests. In doing so I also look at the implications of each

for food production and security. Section ‘‘Discussion’’ brings the different sections

together to argue for a comprehensive normative framework for global sustainable

development governance. Clearly space limitations do not allow me to also discuss

energy and food governance in detail, but where possible I have integrated some

elements of these as well into the other sections.

There has been plenty of literature in these disparate fields. However, few papers

try and link these fields together. The additional value of this paper is that it takes a

meta level perspective combining knowledge from the three fields that are normally

dealt with through sectoral or issue-specific expertise, and is in line with the new

call for taking a ‘nexus’ approach to understanding the links between different

issues. Although the new literature on the nexus approach tends to focus more on

trade-offs and relationships at the level of strategies and instruments, there has been

relatively little work undertaken in relation to the normative underpinnings.

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Climate Change

Introduction

The climate change problem is caused by the net increase in emissions of

greenhouse gases into the atmosphere. These gases are emitted by different sectors

in society, namely, the energy, industry, households, agriculture and land use sectors

(IPCC-3 2007). In other words, the emissions of these gases are closely linked to the

development patterns of a country. The accumulation of these gases in the

atmosphere leads to the enhanced global warming effect (IPCC-1 2007). This effect

can lead to rising sea levels, changing hydrological patterns, melting glaciers and

ice covered regions and possibly extreme weather events (IPCC-2 2007). These

impacts can affect the way society develops. These elements have been reconfirmed

by the latest fifth assessment reports of the Intergovernmental Panel on Climate

Change (IPCC).

The problem of climate change has a two-way relationship with food production

and security. Climate change, through changing hydrological patterns, weather

conditions and triggering extreme weather events such as increased droughts, floods

and altered growing seasons, can affect the production and availability of food, and

access to such food through influencing the location of food production, as well as

the prices of food commodities (IPCC-2 2007).At the same time, food production

processes can lead to increased greenhouse gases: wet rice cultivation and animal

husbandry emit high levels of methane, a greenhouse gas; the production of

fertilizers and pesticides in this sector also leads to greenhouse gas emissions; while

the food industry uses a lot of energy which in turn leads to emissions.

Normative Issues

The climate change problem raises two types of normative issues: glocal rich-poor

normative issues, and normative issues in relation to the process of negotiation

between countries and actors.

At a very broad level, the climate change issue is a North–South/rich-poor issue

for a number of reasons (Gupta and van der Grijp 2010). In terms of who is

responsible for causing the problem and over a period of time, the answer is very

clearly those who have been richer for longer have substantially caused significantly

more of the problem than those who have been relatively poorer. This implies that

the developed countries of the North have had a longer and more significant record

of emitting greenhouse gas emissions than the developing countries (Dellink et al.

2009). This implies that the richer people in each society have had a significantly

higher contribution to the climate change problem than the poorer people in those

very societies. While it is true that some of the poorer countries have become richer

over time (e.g. China), this has a lower impact on their cumulative emissions over a

period of time, and a substantial proportion of their emissions is related to the

consumption patterns in the rich countries (Metz 2010), and furthermore, the

number of poor within these countries is also significant. This complicates the

North–South story, but the rich-poor dimension still remains important.

Normative Issues in Global Environmental Governance

123

Second, in determining global ‘boundaries’ to the problem, there is also a rich-

poor dimension. For many of the rich, adapting to climate change and coping with

the residual damages of climate change may be easier than for the poor. The

survival of many of the small island states is threatened by climate change. The

issue of determining what level of greenhouse gas emissions would lead to

‘dangerous’ climate change was avoided by the IPCC during the first decade of its

existence, and eventually it suggested that if global average temperature rise

exceeds 2 �C in relation to pre-industrial times this could lead to dangerous and

irreversible effects (IPCC-2 2007). However, this level is seen as too high by many

small island states and the more vulnerable countries and they have continued to ask

that there should be research into ways of achieving lower global average

temperature rise.

Third, the emissions of greenhouse gases are closely linked to the economic

growth of countries. While in theory, it is possible to decouple greenhouse gas

emissions from economic growth, this cannot be taken as a natural consequence of

becoming richer. There are increasing indications that the so-called inverted U

curve (the environment- Kuznets curve), the curve that reflects the fact that as

countries become richer they will invest in environmental protection, does not hold

for global pollutants and problems like climate change. This leads to the conclusion

that there is a kind of ‘n’ curve associated with greenhouse gas emissions—

countries emit more as they become richer because the volume of their demand

keeps increasing and there is no automatic link between economic growth and

reducing greenhouse gas emissions (Caviglia-Harris et al. 2009; UNDP 2011).

Fourth, in general the impacts of climate change will be more difficult to deal

with for the poorer countries and people because of their lower resilience and

adaptive capacity (IPCC-2 2007).

Fifth, the bulk of the current and near-future impacts of greenhouse gas emissions

are primarily caused by the past emissions of primarily the rich countries. The

increasing emissions of the developing countries are likely to contribute to climate

change very much more into the future.

Finally, assuming that the global community is committed to addressing the

climate change problem, then the global budget for emitting greenhouse gases

would most likely be exhausted by 2032 (UNDP 2007) leaving not much room for

the developing countries to grow. This refers to the controversial issue of the right to

development of developing countries which has been on the agenda of the UN

General Assembly since the end of colonization and this right was officially

recognized in 1986 (UNGA 1986).

The problem thus has very clear North–South overtones. The North consists of

some 40 countries, the South of about 150 countries. While some in the South are

becoming richer, and some in the North poorer, the basic rich-poor story remains

valid, even if the membership of the group changes. Such North–South overtones

can also be found within regions (e.g. the European Union) and within countries

(e.g. within the US or China).

The second normative issue is with respect to negotiation procedures. The global

level is anarchic and states may participate in international treaty negotiation

processes and they may opt out. It is very difficult to force especially the large and

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powerful states to participate in a process if the good-will to do so is eroded. This is

so, despite the fact that they may actually be contributing significantly to causing a

problem. Within negotiations too there are a number of procedural challenges, but

for the purpose of this paper I will not dwell on those.

Third, the normative challenge reflects the conflict between neo-liberal market-

based approaches and the sustainable development discourse which brings some

environmental and social concerns to the agenda.

The Governance Process

Having discussed the normative challenges, I now turn to analyse the evolution of

the climate change regime and how it has dealt with these normative challenges

(Gupta 2010, Gupta 2014a, b). This post-industrialization problem reached the

global agenda in 1979 at the first World Climate Conference. A decade was spent in

bringing the issue to the attention of the global policymakers and in 1990 the United

Nations initiated a process leading to the adoption of the United Nations Framework

Convention on Climate Change (1992).

This process had a relatively high degree of awareness of the normative

challenges involved. The Convention itself clearly divided the world into developed

(Annex I which includes Annex II) and developing countries (Non-Annex I). It

called on the developed countries to lead by stabilizing their greenhouse gas

emissions, to help developing countries with technologies and resources to avoid

taking the same greenhouse gas intensive path that the developed countries had

taken in the past, and to make room for the legitimate growth aspirations of the

developing countries. The difference in terms of wealth between the Annex II

countries and the rest of Annex I—the countries with economies in transition—was

taken into account by not insisting that these latter countries also had to play a role

in technology and financial transfers to the developing world. The Convention also

embodied a fairly high normative content in that it included five principles including

one on dealing with the climate change problem using the ‘precautionary’ approach,

and allocating responsibilities to countries in line with their common but

differentiated responsibilities and respective capabilities.

However, the ultimate wording of the Climate Convention with respect to the

targets of the developed countries was very weak (Bodansky 1993), and the

assistance to be provided was also vaguely worded. Ironically the application of the

precautionary principle was made subject to the cost-effectiveness principle and the

Convention called simultaneously for an open economic system and sustainable

development! The principles of not causing harm to other states and the polluter

pays principle were excluded and the very idea of principles was made contentious

through the inclusion of a footnote that casts doubts on the title of the paragraph

(Gupta 1997).

In order to rectify some aspects, the Kyoto Protocol (KP 1997) adopted legally

binding targets for the period 2008–2012 for the developed countries and promoted

the use of market mechanisms to help with the cost-effective implementation of

achieving these targets. Unfortunately, the largest emitter of greenhouse gases, the

US did not participate in this latter Protocol. The design of the Kyoto Protocol was

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also problematic in that its targets fell short of what was needed: some developed

countries were allowed to increase their emissions; countries were allowed to offset

their domestic increase in emissions by project investments in the developing world

(e.g. The Clean Development Mechanism (CDM)); the fund that was created to fund

adaptation projects was financed primarily from a levy on North–South cooperation

within the context of the CDM; and the creation of the emissions trading instrument

implicitly introduced the norm of ‘grandfathering’ (he who emits first gets rights to

emit) into the discussion.

There were high hopes that it would be possible for countries to negotiate a

follow-up agreement for the period beyond 2012. These hopes have since

dissipated. There are conditional pledge and review targets for the developed

countries, but the departure of the US has inspired the departure of Canada, Russia,

Japan and New Zealand from the post-Kyoto agreement. There are also hopes that a

separate new agreement may emerge by 2015 which will include targets for all

countries and will enter into force by 2020, but the question of why developing

countries should take on targets when the US has not done so for the last 22 years

remains a critical normative issue! There is also no guarantee that the US will take

on targets in the future, even if the developing countries do so. In the meanwhile, the

key source of resources for the adaptation fund which came into operation in 2008

was the funding from the CDM—an instrument that promotes developed country

investments in developing countries in return for emission credits. With the

incentive to invest in this Mechanism dropping as a result of the low level of targets

for the post 2012 period, the resources for the Adaptation Fund may also fall.

Inferences

As a consequence of the low emission reduction targets in the climate change

regime, the regime is not on track to address the problem at a speed rapid enough to

deal with it (UNEP 2012). Since 1992, when a long-term objective was articulated

in the Climate Convention about dealing with the problem before it becomes

dangerous for humanity, there have been discussions on this issue, and it was only in

Cancun in 2009 that the negotiators agreed to establish goals in keeping with this

target and also to consider the need for and possibility of a 1.5 �C goal. The latter

was needed to appease the small island states. However, a ‘safe landing corridor’ to

achieve this target is unlikely to be in sight if the US does not actively commit to

substantial reductions and thus lead the way for developing countries to commit to

reducing the rate of growth of their emissions. This implies that the Earth is already

committed to a certain degree of warming with all its attendant effects. There are

many countries and individuals that have marginally, if at all, contributed to the

climate change problem; however, they face the brunt of the impacts, especially as

their resilience is also quite low. However, the climate change regime did not

initially agree to finance adaptation as these did not lead to global benefits

(Bodansky 1993). Subsequently, it agreed to finance some adaptation related

research and plans. In 1997, there was agreement to set up an Adaptation Fund,

which came into effect in 2008 and is funded primarily by the CDM—as a tax on

North–South cooperation. There are other voluntary sources of funding, in fact there

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is a proliferation of funds, but the funding in these remains limited. Thus, resources

for adaptation remain very limited. Another continuing problem is how to prove that

an impact is the result of climate change and not climate variability.

Furthermore, what is very clear is that although the developed countries had

accepted the principle of common but differentiated responsibilities and respective

capabilities, the US has consistently challenged the legitimacy of this concept by

continuously refusing to accept quantitative targets that limit its greenhouse gas

emissions since the 1990s. This refusal has had two impacts—it has reduced the

willingness of other developed countries to take on far reaching targets, has kept the

market price of carbon credits low as the demand for these credits has not grown as

it should have and thus has had a reduced impact on the decarbonisation of society.

The second impact is that it has fuelled the continuous North–South distrust in

the climate change regime. When the Climate Convention was being negotiated, it

stated that it was important to make room for the emissions of developing countries

to grow as these countries developed. A primary implicit argument of the US in

refusing to reduce its emissions, beyond questioning its own responsibility, is its

argument that developments and emissions growth in the South will render its own

efforts negligible. The US thus questions the right of the developing countries to

grow. All this is possible, because the international negotiation arena allows

powerful countries to get away with taking on limited responsibilities; because the

negotiation arena is open to various uncontrolled power games. As long as the

climate change problem is not kept within reasonable limits, the impacts on food

production and security will not be addressed.

Water

Introduction

Let me now turn to discuss normative issues in global water governance. For many

people the water problem is essentially a local or fluvial problem. However, I would

argue that the water problem also has serious global ramifications because local

water challenges add up to cumulative global problems, because the hydrological

system is one system, because there are global drivers affecting the hydrological

system—such as climate change, trade and population growth, and because there are

increasing transboundary challenges world-wide (Pahl-Wostl et al. 2008).

There is probably no such thing as a single consolidated water problem. At the

global level, water-related problems include (a) who has access to water and

sanitation services and who is responsible for providing such services, (b) water

withdrawals and the need to curb these withdrawals through demand and supply

side management, (c) growing water pollution, (d) the impacts on water ecosystems,

and (e) the transboundary sharing of water issues (UNEP 2012; Vorosmarty et al.

2010).

Water also has a two-way relationship with food production and security. The

impacts of climate change mostly operate through the hydrological system

(changing weather and precipitation patterns, salt water intrusion, and extreme

Normative Issues in Global Environmental Governance

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weather events such as droughts and floods). Changed water availability will have

serious effects on agricultural production, which uses 70–80 % of fresh water,

which in turn, will lead to rising market prices of food which might affect food

security. At the same time, food production, animal husbandry, fodder and biofuel

production will also affect global fresh water supplies from surface and groundwater

resources thereby also affecting the hydrological cycle (WWDR 2012). As the

world economy and population may increase substantially by 2050 (European

Commission 2012), the demand for water through the rising demand for these

products will call for a restructured system of production and consumption.

Normative Issues

The normative issues with respect to water are how is water defined (as an economic

good/political good/public good/human right/human security issue or national

security issue), and how access to water resources is shared and how responsibil-

ities, risks and rights are allocated between peoples and countries (Gupta and Lebel

2010).

Today a little less than a billion people do not have access to potable drinking

water, and almost 2 billion do not have access to good sanitation services.

Traditional water rights are being curtailed in a vast number of countries through

modern legislation that either does not recognize these rights or does not even

know of the existence of these rights. Sometimes, these rights are implicitly

curtailed through the use of modern concepts which call for optimizing water use,

modern technologies like dams and interbasin water transfers and sometimes

through encouraging private sector participation in water management. Where

water is a scarce resource used by different actors and sectors in society, the

choice of allocation rule may change the politics of access. Thus customary

ownership of water may become challenged if the allocation rule is that users

have to pay for water thus privileging those who can pay above those who cannot.

This can be countered by the human right to water as a corner-stone of the

allocation rule.

When it comes to transboundary issues, a number of new kinds of normative

questions arise. Where should national boundaries be drawn with respect to

international rivers and aquifers? How is water to be shared between countries?

Is the information regarding hydrological data a national security secret or

transparent and available for discussions regarding the sharing of these waters?

How can past historical rights be balanced with the needs of the present and the

future? How are responsibilities and risks with respect to water management,

water pollution, and water technologies to be shared between states? Who is

responsible for floods? What is the impact of privatization on water? What are

the implications of climate change for water management? How much water is

to be left for ecosystems? Who decides this? Although many water managers

think this can be answered through optimization equations, they often forget that

underlying these equations are normative assumptions, many of which are highly

contentious.

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The Governance Process

The governance process on water is dispersed through many different UN agencies,

treaty negotiation bodies, non-state actors and hybrid agencies. For hundreds of

years, there have been transboundary agreements dealing with water (TFDD 2008).

Access to water and sanitation services has been on the international agenda since

1977 at the first world water conference in Mar del Plata (UN Water Conference

1977), and soon thereafter a decade on water and sanitation was announced. The UN

human rights treaties on the rights of women (CEDAW 1979) and children (African

Charter 1999) tried to create a limited right to water services. In 2000, the

Millennium Development Declaration (2000) addressed basic needs issues includ-

ing water but the target aimed only at halving the number of people without access

to water and sanitation services. Subsequently in 2002, the UN Committee on

Economic, Social and Cultural Rights’ General Comment No 15 on the Right to

Water argued that a right to water and sanitation services could be read into the

existing legal documentation, but it took several conferences before the UN General

Assembly (2010) finally adopted a Declaration on the Human Right to Water and

Sanitation (accepted by 122 nations) and the UN Human Rights Council (2010) also

adopted a resolution to this effect. The issue now is to wait and see how this right is

actually implemented in practice.

Access to water and sanitation in essence only refers to the access to a minimum

amount for the purpose of personal use. It has no impact on the existing traditional

rights to water use. In general, this is not regulated at global but national level.

However, what is increasingly clear is that global paradigms, ideas, concepts,

instruments and mechanisms exported through international processes such as

through aid agencies can lead to a situation in which local rights are both neglected

as well as respected. Let me explain. For example, the notion of integrated water

resource management and water as an economic good (Dublin Declaration 1992)

has led to a situation in which states try to reorganize their existing water

management. In this process, the state may change existing water rights either

deliberately or accidentally—when it does not know of or recognize customary

water rights (cf. Agyenim 2011). At the same time, international processes have also

led to the recognition of the rights of indigenous peoples and have also forced states

to at least give some degree of importance to the rights of these groups of people.

International consensus on the human right to water and sanitation puts pressure on

states to meet these rights (UNGA 2010; Gupta et al. 2010). This creates a situation

of legal pluralism—when there are multiple rules applying to a single jurisdiction.

At the global level, the UN Convention on the Law of International Watercourses

(Watercourses Convention 1997) has discussed in considerable detail the criteria for

sharing watercourses between states (e.g. natural factors such as geographical or

ecological conditions; social and economic needs; the effects of the use of

watercourses by one state on another state; existing and potential uses; the effects of

the use of water; and the availability of alternatives), that states should not harm

each other, and the procedures for dispute resolution (McCaffrey 2001). This

Convention is not yet in force, but will enter into force this year. In the meanwhile,

hundreds of bilateral and regional water agreements determine how water is to be

Normative Issues in Global Environmental Governance

123

shared between states and there are many regional conflicts (Kalpakian 2004). Some

of these agreements were made by only some of the riparians and may affect the

rights of the others. For example, the agreements between Egypt and Sudan on

water sharing affects the rights of the rest of the riparian states to the waters of the

Nile and has been an enduring source of dispute between these countries over the

last 50 years (Sanchez and Gupta 2011). To the extent that these treaties are unable

to address water sharing problems to the satisfaction of the riparian states there is

fear and speculation about the possibility of water wars.

The role of liberalization and privatization at the global level through trade rules

and investment rules have also led to the opening up of the water sector in many

countries to private sector participation. Such processes may lead to a viable

professionalization of the water services in these countries, but equally such

processes may not be able to provide water services at affordable costs to the people

in these countries and may instead lead to water monopolization by large companies

(Barlow and Clarke 2002). At the same time, contracts are secretive and where such

contracts do not satisfy local populations, this may also lead to a breach of these

contracts and secretive arbitration proceedings.

In terms of the negotiation dimension, it has been very difficult to ensure that

countries ratify the Watercourses Convention—the international equity elements in

this Convention are clearly seen as too far-reaching for most countries. An

alternative Convention that focuses more on environmental than on equity aspects—

the UNECE Water Convention has now also been opened up for global

participation. At fluvial level, it is difficult to convince individual countries to

participate equitably in water sharing (e.g. Egypt in the case of the Nile, and China

in the case of the Mekong).

Inferences

On the one hand, globalization has aimed to make access to water and sanitation

services an issue of global importance with an implied shared responsibility of all

actors to commit to providing these services. While the Millennium Development

Goals aimed at halving the number of people without access to these resources, the

adoption of the human right to water and sanitation has further strengthened this

commitment. The onus, however, is primarily on national actors—both state and

non-state actors. However, the increasing privatization and commercialization of

water services as well as large infrastructure such as dams may bring the issue of

water management into the confidential sphere of contract management, and this

may have a negative impact on the actual achievement of these human rights and

customary rules of access.

In terms of transboundary water sharing, the situation may become worse as a

consequence of the impacts of increasing consumption, population growth and

climate change. To the extent that river management is already a matter of dispute

between countries whether in terms of boundaries (e.g. Costa Rica and Nicaragua),

water sharing (e.g. the Nile), or management of the river (e.g. the Mekong), these

may become further exacerbated by climate change and some argue for climate-

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proofing water treaties (Cooley and Gleick 2011). This issue may remain on the

global agenda for decades!

Thus, the key global norms of the human right to water and sanitation, equitable

utilization and the no-harm principle have been adopted in different legal

instruments, but are not yet implemented globally. The impact of climate change

on water regimes has not been taken into account in any regime. There remain

challenges in bringing countries together to promote the equitable and optimal

management of transboundary river resources. The management of these waters is

critical to creating an appropriate environment for food production and security.

Forests

Introduction

Forests cover four billion hectares of land, about 30 per cent of the global land area

(FAO 2011). About 40 million hectares of forests are being deforested every year

since 2000. Although primarily located within national territories, forests have

become very much a matter of international debate. Forests are seen as providing

ecosystem services (MA 2005)—habitats to the world’s land based creatures;

provisioning services such as food, fuel and fibre; regulating services such as

controlling water flows and forest climates; supporting services such as crop

pollination; and cultural services that provide residents and neighbouring commu-

nities with spiritual and recreation services. Deforestation and forest degradation are

issues of glocal concern. Part of the reasons for such deforestation is global demand

for and trade in food, fibre, fuel, timber, and minerals. International debt has often

led countries to exploit their forests to generate the resources needed to pay back

their debt. Another global challenge to forests is climate change (Gupta et al.

2013a).

Climate change affects forests through increasing the risk of forest fires and

reducing the availability of water. Deforestation and forest degradation contribute to

greenhouse gas emissions and climate change: estimates vary around the IPCC

assessment of about 17 per cent of annual global emissions (IPCC-1 2007). Forests

provide food—which includes fruits, nuts, honey, medicine, and bushmeat; they

provide habitats for bees that pollinate fields in nearby areas. However, defores-

tation can also provide the land for economically profitable large-scale food, feed

and bio-fuel production; this is the most significant driver behind deforestation

world-wide today.

Normative Issues

A number of normative issues are relevant when it comes to managing forests. One

can divide these into how to define forests, who has access to forests, how can forest

lands be allocated between peoples and uses, and how can the risks associated with

changing land use and the responsibilities for forest management be equitably

shared between peoples.

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The access issue relates to the access of local forest dwellers, indigenous peoples

and other communities to live in and access forest-based services. These rights have

primarily been mostly customary in nature. Increasingly local dwellers have found

that their rights are either not recognized or that their traditional customary access to

forest lands have been marginalized or even ‘criminalized’ over time. This has often

gone hand-in-hand with national and international policy-making which has sought

to, on the one hand, promote agriculture, animal husbandry and mining through

encroaching on forest lands by promoting concessions, and on the other hand,

promote forest conservation through instruments such as protected areas (PAs) and

payment for ecosystem services. Furthermore, at a more abstract level the question

is can other governments claim to have a stake and mandate to regulate forest

policies within another country’s jurisdiction?

The Governance Process

Like water, and unlike climate change, the forest governance process is highly

dispersed through many UN agencies and many non-UN bodies. Forest governance

has been indirect through a focus on species protection (CITES 1973), heritage

protection (WHC 1972), wetland protection (Ramsar 1971/1975), biodiversity in

general (CBD 1992) and the protection of carbon sinks (UNFCCC 1992). Direct

forest governance has tried to combat deforestation (ITTA 1983 in UNCTAD 2006;

the EU Forest Law Enforcement Governance and Trade—Voluntary Partnership

Agreements) through promoting trade in timber from sustainably managed legally

harvested forests and environmental exclusions in WTO rules. However, these

governance processes have scarcely been able to counter the pressure to deforest

that has been driven by a combination of local through to global demand for forest-

related products. Various UN agencies and the World Bank have also drawn up

plans to combat deforestation.

There are also increasing numbers of governance arrangements that focus on the

rights of indigenous peoples (e.g. ILO 107, 169; UNPFII 1982/2000) and the need to

manage forests in a sustainable manner (Forest Principles 1992). Although under the

climate change regime, there were possibilities to include market mechanisms to

promote afforestation and reforestation via the CDM, these possibilities have

scarcely been explored partly because of the difficulties in actually dealing with

both environmental integrity issues and the relevant social aspects (Hunt 2009;

Streck and Scholz 2006); Haupt and von Lupke 2012). A new instrument being

developed called REDD (Reducing Emissions from Deforestation and Forest

Degradation) aims to preserve forests by compensating the relevant people for their

efforts to protect the forests. The question, however, is should this instrument be

used to offset greenhouse gas emissions from the developed world, and will the right

people be compensated adequately for their part in forest conservation (Gupta

2012)?

In 2007, after years of efforts at promoting a legally binding instrument, finally a

‘non-legally binding instrument on all types of forests’ and a ‘multi-year

programme of work’ was adopted with targets for 2015. Countries remained

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unwilling to accept a legally binding regime. Two years later a Forest Fund was

discussed.

Inferences

While it is clear that there is a strong motivation to protect forests at the global level,

there is lack of coherence between forest governance approaches and the

agricultural, trade and investment governance processes; and forest governance

itself tends to be highly incremental (Brown 2001; Humphreys 2006/1996). At

national level, in most developing countries, local customary and indigenous

peoples’ rights to forests are often not known or recognized by the states and states

tend to redistribute these rights to other social actors depending on what sectors they

wish to prioritize. Whether they focus on forest protection or on changing land use,

both decisions may lead to ignoring the rights of local people. This follows in a long

tradition of colonial and post-colonial societies of ignoring local rights. Forest

protection has led to nationalization in Vietnam, Indonesia, and Cameroon and to

the adoption of the concept of state patrimony in Peru which vests ownership of the

forests in the state. There has been a process to re-recognize local rights in these

countries, but the process is slow. For example, the Indonesian government

recognizes the rights of indigenous peoples, but these peoples are not given formal

ownership papers. The government has been warned by the UN Committee on the

Elimination of Racial Discrimination (2009) to more effectively take indigenous

peoples rights into account. With the rise of recognition of indigenous peoples’

rights and decentralization, there is increasing recognition of at least the rights of

local indigenous peoples, if not of local communities (Lima et al. 2013).

However, as forest management becomes more sophisticated, there is increasing

recognition of ‘bundles’ of rights–rights to use, control and/or alienate forest lands.

This might mean that local people are allowed to use forest products and services,

but not sell these products, services or the land itself. These ownership rights in

combination with spatial planning tools can empower some while disempowering

others. For example, in Vietnam, those who own planted forests can transfer, rent,

inherit, gift and mortgage those lands but those who own natural forests have no

such rights and can also not get access to bank loans (Bigot et al. 2013). Local

communities in Cameroon have suddenly found their access to forests severely

curtailed (Singer 2008). Tools like concessions can empower the richer investors in

comparison to the poorer ones, often by displacing existing local communities

(Singer 2008). Sometimes existing customary rights are ‘criminalized’ and these

communities may be treated as criminals. The use of economic instruments such as

payment for ecosystem services (Farrell 2012), debt-for-nature swaps and REDD

may often lead to very low level payments, if at all, to the local communities. Tools

like certification also marginalize smaller companies at the cost of larger

companies; and where there is payment there is always risk of elite capture (Topa

et al. 2009; Singer 2008; Kuijper et al. 2013).

At the same time, there are a number of issues at the national level. The question

of who is responsible for protecting the forests is critical. Southern actors question

the imposition of forest preservation rules on them by Northern countries that have

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already engaged in large-scale deforestation in the past. Many in the South feel that

they have conserved their forests for long and now need the forest lands for

alternative land use options which are likely to lead to greater economic benefits.

This argument runs in many ways parallel to the right to develop argument. The

forest transition curve shows how industrialized societies have dealt with forests in

their history—they have transited from an initial phase which protected virgin

forests, through a forest frontier phase and an forest and agricultural mosaic stage

where forests are deforested primarily to make space for agriculture to the final

phase of forest stabilization (Rudel et al. 2005; Angelsen 2007; Meyfroidt and

Lambin 2011). This curve shows that it is not unlikely that developing countries

may also follow such a path in their development process. Policy processes and the

drivers of deforestation will however have an influence on this process—so the

forest transition curve is not a prediction of how things will go (Gupta et al. 2013b).

However, it does show that for many developing countries, the right to develop may

imply greater land use change as they try to enhance economic growth.

The globalization of forests has increased the stakes involved and has intensified

the struggle to control forests through a wide variety of policies and instruments.

Forest protection activities may exacerbate the marginalization of small farmers and

migrant communities. With the adoption of a number of market based instruments

to protect forests or to promote agricultural, bio-fuel and mining expansion, there

may be a process of forest land commodification. This might further exacerbate the

claims of local people to use their lands (Savaresi 2012). However, agriculture

remains one of the key drivers of deforestation. As long as we need to feed large

numbers of people, cattle and generate biofuel, there will be competition with land

for forests.

Discussion

Interlinkages and Inconsistencies

This paper has argued that climate change, water and forests are not only

intertwining subjects, they are also closely linked to food production and food

security. It has not discussed food governance itself—which is itself a vast area of

fragmented policy processes (Gupta 2004). Normative challenges in the three issue

areas are common in that they focus on boundary issues (how to define forests, how

to draw boundaries on aquifers and transboundary fresh water resources, how to

draw boundaries on national emissions—to which country are emissions from

production processes for consumption elsewhere to be allocated); and normative

concerns such as how responsibilities, rights and risks are to be distributed between

countries and actors. While the climate change regime is a relatively speaking

highly centralized regime that orchestrates action outside the regime; the water

regime is a densely regulated regime but these regulations are highly fragmented in

that they do not cover all issues comprehensively, and they are highly plural in that

there are different sets of norms and rules covering the same jurisdiction; and the

forest regime is also highly fragmented and plural. Furthermore, while climate

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change is a rich-poor problem from global through to local level, water and forests

are less obviously a rich-poor challenge at global level, but such issues do become

very dominant at transboundary level in water and at national level for forests. A

key normative challenge that cuts through all three issues is whether a neo-liberal

market framing or a sustainable development framing can help deal with the

challenge of climate change, deforestation, and poor water governance and their

relationship with food production and security. One way to resolve the tension

between sustainable development and the neo-liberal growth paradigm is to set

normative standards within which the neo-liberal paradigm can function. The

following sub-sections try to map out what such common normative standards could

be and how they could play a role in a global constitution.

Towards an Inventory of Common Norms

Clearly all societies wish to develop. The right to develop is a key global norm

encapsulated in the 1986 United Nations General Assembly Resolution of 1986.

However, the notion of tipping points, planetary boundaries and the Anthropocene

(see ‘‘Introduction’’) are leading to an implicit if not explicit norm that human

society needs to live within ecosystemic standards if it wants to sustain its

development process. This is being articulated as the discourse on the green

economy. At the same time, since the post war era social justice arguments have led

to the adoption of notions of human rights to protect human dignity and are

increasingly encapsulated in the concept of inclusive development or growth.

Inclusive development is seen as necessary not just for moral reasons of engaging

the poorest (Sachs 2004; Dag Hammarskjold Foundation 2012), but because of legal

(human rights), economic (market considerations and economic agency (Pouw and

McGregor 2014), security (human survival); and democratic reasons (Fraser 2001;

Oosthoek and Gillis 2013). These are the three cornerstones of the sustainable

development concept.

Certain norms have emerged at global level in different fora that in combination

with each other could possibly provide a strong normative framework for a global

governance architecture on sustainable development. The Rio Declaration on

Environment and Development (1992) provided a list of 27 key norms. Some of

these norms have been adopted in international environmental treaties and are on

their way to becoming elements of customary international law. These include the

principle of sustainable development, the precautionary principle and the principle

that although countries are sovereign they should not cause harm to others.

Six sets of norms of inclusive development can also be differentiated at glocal

level (Gupta 2014a, b). These include political, social and economic human rights

including the new human right to water and sanitation and the discussions on the

relation between human rights and climate change, as well as the rights of

indigenous peoples to their land, water, and ecosystem resources; inclusive

participation; equity principles (in the Rio Declaration, the Climate and Biodiversity

Conventions, and have been further elaborated in the UN Watercourses Conven-

tion); the principles of liability and compensation for harm caused; the norms on aid

effectiveness (ownership, harmonization, alignment, result based management,

Normative Issues in Global Environmental Governance

123

mutual accountability and new aid instruments) which have been adopted by the

OECD countries; and a range of voluntary guidelines regarding responsible land,

forest and fish tenure and guidelines for responsible fisheries.

Combining these different norms that have been developed in different fields is

not easy. The first challenge is that they have been adopted by different groups of

countries or actors in different contexts and historical settings. The second challenge

is that very often actors don’t want consistency—and this often leads them to

engage in rule or norm shopping. A special forthcoming issue on legal pluralism and

aquatic governance shows how riddled the field is with legal pluralism (i.e. different

norms applying to the same jurisdiction) (Bavinck and Gupta (eds.), forthcoming).

For example, while some legal documents see indigenous peoples rights as group

rights, there is no instrument that allows redress of group rights; while some legal

documents call on states to demarcate the actual boundaries of the legal rights of

these people, only 20 countries have agreed to this agreement and so the right is still

to be institutionalized. At the same time, trying to promote coherence between

different water, energy and environmental regimes is very complex.

Attempts to achieve coherence have been tried through coordination mechanisms

(UN Water, UN Energy, UN Environmental Management Group), coherence policy,

integration (integrated water resource management), and mainstreaming strategies.

These strategies have mostly failed as sectoral institutions have fixed hierarchies

and entrenched procedures and rules and cannot deal with cross-sectoral turf battles.

The nexus concept which aims to bring the sectors/issues closer in a system of

mutual respect for each other’s goals and priorities is the new idea that is hoped to

help forge new institutional cooperation. However, even if this works, this may not

deal with the need for some common normative rules.

Towards the Rule of Law and Constitutionalism

None of the above difficulties should be seen as implying that it will be impossible

to combine these norms into a global constitutional framework. The concept of rule

of law can be traced back several hundred years. It emerged as a reaction to the all-

powerful omnipotent king. It was the idea that even rulers should be subject to rules.

Parallel ideas developed in different countries and were encapsulated in the idea of

the concepts of the ‘Rechtstaat’, ‘Etat de Droit’ and ‘Rule of Law’. The

interpretation of this concept extends from a minimalist protection of procedural

rules to a maximalist interpretation of promoting substantive justice. Today, the rule

of law concept is seen as critical at national level. Countries wishing to join the

European Union have to accept this concept and the acqui communitaire of the

European Union. The United States of America actively markets this concept to

other countries world-wide. For a while, development assistance to developing

countries was made conditional to the existence of good governance in these

countries, where good governance included the rule of law. This however, created

the problem that where countries had poor governance, they were not assisted, and

these were precisely the countries that needed help. However, there are very few

authors that will deny its significance at the national level as a way to promote

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123

sustainable development and peace in societies. Many countries are in fact actively

promoting good governance and the rule of law at national level.

And yet, there is lack of consensus on whether this concept is relevant to the

international level, and whether all international bodies should function in

accordance with good governance principles. This includes the argument of whose

norms will be constitutionalized, whether there is something such as universal

norms, whether the individualistic rights based approach contradicts community

approaches, whether the rule of law will be used to promote the status quo as

opposed to structural change and equity, and whether powerful countries would be

willing to subject themselves to common universal norms (Koskenniemi 2009). For

many, the international arena is anarchic where nation states compete and cooperate

with each other based primarily on their national interests and there is no ‘greater

good’ that should drive this discussion. This has meant that countries can opt in and

opt out of global cooperative regimes. The classic current example of this is in the

climate change regime, where 10 years after the US refused to accept the Kyoto

Protocol to the United Nations Framework Convention on Climate Change of 1997,

Canada, Russia, Japan and New Zealand have decided to opt out of the follow-up

phase. This, despite the fact, that the severity of the problem continues to be

emphasized by the scientific community, and there is growing global anxiety about

the consequences of this problem on global water and food systems, let alone on

global ecosystems. Countries are clearly motivated by short-term national political

interests as opposed to global integrated interests leading to an ad hoc network of

rules that are often contradictory and motivated by the interests of hegemons (cf.

Simpson 2000). At the same time, it is the poorest and most vulnerable who suffer

as a consequence of current climate, water and forest governance. However, given

that all humanity lives on one earth and that we are reaching planetary tipping points

while millions of people still do not have access to basic resources, it may be time to

reconsider the way global politics is conducted.

The call for global constitutionalism (Biermann et al. 2012) is justified by the

scale of the sustainability challenge facing humanity, the need for predictable rules

to order production, trade, distribution, consumption and disposal patterns, to create

some minimal degree of coherence in a world of incoherent policy processes, and

can be seen as an argument of pre-emptive geo-political pragmatism. If there are

new rising powers, this is the moment to create new rules for global cooperation that

take into account the vision of both the new and old powers as well as the rest of the

global community (Gupta 2014a, b).

The Current SDG Debate as a First Step Towards Constitutionalism

There is some degree of political consensus for global rule of law as clearly the

European Union and the G77 and China have regularly called for it. The former

Secretary General of the UN has identified the need for it. There are already global

movements on various aspects of this concept. The momentum for such a

constitutionalism idea is clearly building up.

While debates on norms are more contentious than debates on goals, the adoption

of the Millennium Development Goals could be seen as a first step towards

Normative Issues in Global Environmental Governance

123

establishing a global community with common goals. The shift to the current

discussions on Sustainable Development Goals both further institutionalizes the

idea of combining social and environmental aspects with economic ones, as well as

is debating on the articulation of a common set of goals to steer the global

community. Implicit behind these goals are certain values. It is uncertain how the

negotiations will mature as they move towards their deadline for completion, but

what is clear is that the global debate and discourse on our common future has

begun.

Conclusion

This overview paper has reviewed the climate, water and forest governance areas in

relation to food governance and concludes that (a) there are strong normative and

architectural inconsistencies between the fragmented and plural issue-specific

regimes; (b) that such inconsistencies are inevitable in an ‘anarchic’ international

order; (c) that some degree of normative coherence can be strived at through the

adoption of global constitutionalism and rule of law; and (d) that the present

discussion on global sustainable development goals is a first step towards creating a

normatively consistent global architecture for sustainable development.

Acknowledgments The author acknowledges with gratitude the comments of the special issue editors

Thomas Potthast and Simon Meisch and the two anonymous reviewers.

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