The Governance of Transnational Environmental Harm

Michael Mason

Special Issue

Einführung

The Governance of Transnational
Environmental Harm: Addressing New
Modes of Accountability/Responsibility

•
Michael Mason

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Einführung

The globalization of environmental degradation, witnessed by transboundary
pollution and ecological damage to the global commons, has exposed the nega-
tive effects produced when actors displace environmental costs beyond national
borders and onto future generations. These new pathways of actual and poten-
tial harm have provoked regulatory responses at various jurisdictional scales,
raising public expectations in many countries that responsibility for the condi-
tion of the biosphere is a legitimate object for global governance. Jedoch, In-
vironmental governance regimes, featuring various articulations of state and pri-
vate authority, have struggled to keep up with the complex, diffuse impacts of
modern technologies. There is an emerging literature examining the idea of “ac-
countability deªcits” in which global governance priorities fail to correspond
with the interests of those directly affected by social and ecological harm.1 These
deªcits are typically identiªed on the basis of accountability/responsibility
norms associated with nation states, but important analytical objections have
been made about treating global accountability issues as analogous to those fac-
ing domestic political systems.2

This issue of Global Environmental Politics explores various conceptual per-
spectives on accountability and responsibility for transnational harm, and ex-
amines their application to different actor groups and environmental gover-
nance regimes. As more than one contributor to this issue points out, there has
been a relative dearth of critical thinking about accountability and responsibil-

1. Sehen, Zum Beispiel, Mason 2005; and Newell and Wheeler 2006.
2. Grant and Keohane 2005, 33–34; and Keohane 2006, 77–78.

Globale Umweltpolitik 8:3, August 2008
© 2008 vom Massachusetts Institute of Technology

Michael Mason

• 9

ity for transnational environmental harm. In part this can be attributed to the
underdevelopment of these concepts outside national political communities.
These are concepts, schließlich, which are often contested even when used within
states in conditions where there is a territorial congruence between producers of
harm, affected parties and regulatory authorities. Transnational relations upset
this territorial, state-centered understanding of responsibility/accountability. In
using the term “transnational harm,” I am referring to the ways in which envi-
ronmental harm (deªned in relation to publicly justiªable needs or interests) Ist
experienced as a result of material transactions across borders entailing inputs
(e.g. extraction of resources and ecological services) and/or outputs (e.g. wastes
and other pollutants) associated with production and consumption processes.3
The term “transnational” denotes both the cross-border (and potentially
global) scope of these interactions, as well as the fact that nonstate actors are in-
beteiligt, at least to some degree, as producers or recipients of harm.

Informed by the research articles in the issue, I address in this Introduc-
tion the analytical challenge of applying accountability and responsibility no-
tions to the realm of transnational and global environmental politics. The main
theoretical objection to such a move is that the domestic categories of account-
ability/ responsibility normally invoked are not relevant at the global level or, bei
the very least, in need of signiªcant revision in order to have any explanatory
value. My argument is that, while there are good reasons to be cautious about
understanding transnational accountability and responsibility in terms of con-
cepts normally applied to national political communities, it is also necessary to
avoid treating these organizational scales as mutually exclusive. In der Tat, bei-
tempts to seek direct (individual) accountability for transnational environmen-
tal harm include the political rescaling of responsibility norms in a way that
binary couplings such as “national/ international” and “state/private” are pur-
posely dissolved.

Rescaling Accountability/Responsibility for Environmental Harm

While there are multiple deªnitions of accountability, with responsibility an
even more indeterminate notion, this special issue narrows the application of
these concepts to the governance of cross-border environmental harm. Speciªc-
ally, it brings together social science researchers engaged in work on the politics
of accountability and responsibility in global environmental governance. Gov-
ernments, international organizations, corporations and NGOs actively con-
struct and contest accountability and responsibility norms. How and on what
basis are these claims made across territorial borders? What are the political
conditions favoring the emergence and uptake of such norms in environmental
governance? The scholarship featured in this issue addresses, ªrst, new inºec-
tions of environmental responsibility from considerations of international
Eigenkapital (Okereke) and precaution (Pellizzoni and Ylönen). It then examines,

3. This deªnition largely follows Elliott 2006, 346–347.

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10 •

The Governance of Transnational Environmental Harm

within the organizational arena, new governance models of accountability, spe-
ciªcally transnational environmental partnerships (Bäckstrand) and transna-
tional standards schemes (Chan and Pattberg); and the issue ends, in the infor-
mal realm of civil regulation, with the accountability politics of civil society
groups as they challenge various actors on the issue of climate change (Newell).
The contributors to this special issue were invited to use the lens of ac-
countability/ responsibility to examine the relevance of these concepts to the
governance of transnational environmental harm. No precise deªnitions were
prescribed, but there are clear family resemblances in the notions adopted by
contributors. In this issue, environmental responsibility has a wider compass of
meaning than accountability. Conventionally, the regulation of transboundary
and global environmental damage has centered on legal norms of state responsi-
bility, which are anchored by the general obligation on states to ensure that ac-
tivities under their jurisdiction or control do not cause damage to other states or
to areas beyond state jurisdiction. This is both a principle of customary interna-
tional law and informs a wide range of multilateral environmental agreements.
Natürlich, international environmental norms are also shaped by other stan-
dards of responsibility; Zum Beispiel, the key principle of common but differen-
tiated responsibility is expressly framed by equity concerns.4 Furthermore, Dort
are signiªcant areas of global environmental governance where states have fa-
vored the use of private responsibility rules, such as international civil liability
regimes covering the transportation of hazardous goods. In their contribution
to this issue on the precautionary principle, Pellizzoni and Ylönen identify a
broadening scope of responsibility norms in environmental governance, noting
new “hybrid” forms of moral agency and complex chains for assessing and as-
signing responsibility.

Within global environmental governance, we can also observe new discur-
sive and institutional framings of accountability. These framings entail attribu-
tions of responsibility against particular actors featuring answerability and redress
as core elements—that these agents are “held to account” for their (In)Aktionen
according to set standards, and that they may justiªably be subject to sanctions
for breaching these standards.5 As traditionally understood within national po-
litical communities, public accountability denotes the capacity of citizens and
their representatives to exercise effective oversight and constraint on the exercise
of state power.6 The meanings of answerability and redress are both widened and
complicated when directed at transnational environmental harm. The diverse
and diffuse ecological effects of a bewildering range of modern technologies
present signiªcant information demands on individuals and communities seek-
ing answerability from harm producers. For transnational environmental ef-
fects, where the distances between responsible actions and (threatened or re-

4. Okereke, this issue.
5. Bäckstrand, this issue; and Chan and Pattberg, this issue.
6. Mulgan 2000, 555–57; and Flinders 2001, 9-15.

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Michael Mason

• 11

ceived) harm are far-reaching and even planetary-wide, these informational
obstacles can be particularly onerous. Darüber hinaus, even assuming that foreign
sources of signiªcant harm can be pinpointed, those affected typically lack the
means to directly sanction the producers of harmful activities in their source
country.

The nature of transnational ecological harm undermines the credibility of
state-centered accountability regimes. Governments seem unable to prevent ex-
ternally generated threats to the well-being of their populations, while their dip-
lomatic efforts to hold responsible actors to account through international
treaty negotiations clash with the geopolitical interests of other states. The prin-
ciple of state sovereignty limits inter-governmental collective action. The exclu-
sive political authority of states over their populations is a foundation for public
international law. But this same principle, with its associated rules of voluntary
consent to international regulation and non-interference by other states in do-
mestic affairs, blunts the effectiveness of many efforts to reduce transnational
harm. Darüber hinaus, multilateral rule-making processes give rise to inter-govern-
mental institutions where chains of public accountability are more remote and
indirect than within domestic political systems. The preference at this scale is
for delegated models of accountability, where international organizations are en-
trusted with selected governance functions by participating states. Das, Wie-
immer, has sparked criticism from those who view accountability as intrinsically par-
ticipatory, where those directly affected by holders of power are privileged as
accountability claimants.

For Grant and Keohane,7 the failure to distinguish between the delegate/
participatory framings has sown confusion in the analysis of accountability in
world politics. It has given rise to conºicting political judgments on inter-
governmental bodies like the World Bank, the International Monetary Fund and
the World Trade Organization. Under the participatory model of accountability,
these organizations have been charged with having a pronounced democratic
deªcit because they do not allow the direct participation of nonstate parties af-
fected by, or concerned with, their policies.8 From the perspective of the delega-
tion model, Jedoch, there is accountability to national publics through execu-
tive mechanisms of supervisory and ªscal control exercised by member states.9
In der Tat, Grant and Keohane add, the institution at the global level of the partici-
patory model of public accountability founders on the absence of a coherent
and well-deªned global public:

Having the right to participate in politics as an affected party is ambiguous
at the global level. . . In the absence of a public whose boundaries are de-
ªned by participation in a polity, it is very difªcult to specify either who
should be entitled to participate or how they would do so.10

7. Grant and Keohane 2005, 30–33.
8. Dahl 1999; and Nye 2001.
9. Nielson and Tierney 2003; and Lamy 2006.
10. Grant and Keohane 2005, 33.

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12 •

The Governance of Transnational Environmental Harm

While they concede that fragmentary global publics are emerging in issue-areas
such as human rights and environmental protection, they are neither represen-
tative nor large enough to constitute coherent political subjects comparable to
national publics.11

This interpretation presumes a necessary correspondence between publics
and representative political authorities. It is possible to conceptualize publics in
non-territorial terms as collective spaces of deliberation addressing shared
rights and responsibilities. By this understanding, in the arena of environmental
governance, publics are political subjects directing accountability claims at
those responsible for causing them signiªcant environmental harm or risk.
Rather than territorial (state-centered) terms of reference, the geographical
scope of this environmental responsibility is set in principle by open and inclu-
sive discourse on the perceived harm or risk. Transnational or global publics are
composed of individuals who may not necessarily be co-nationals, but who
may forge a common political identity on the basis of their joint exposure to
cross-border environmental harm. Public accountability is advanced insofar
as producers of harm can be called upon to justify their actions to affected
publics and can be sanctioned in some way for causing signiªcant involuntary
harm.12

It is important to stress, obwohl, that the governance of transnational envi-
ronmental harm involves more than simply the temporal and spatial extension
of domestic responsibility and accountability norms. In the ªrst place, state-
centered and private sector modes of accountability for harm typically focus on
agents reporting, explaining and justifying their actions ex-post, in situations in
which there are claims that these actions have caused particular damage. Ac-
countability mechanisms are thus an exercise in the attribution of responsibility
after involuntary damage has taken place. Pellizzoni and Ylönen highlight in
their paper this dominant “liability model” of responsibility, and argue that it
struggles to cope with systemic social and ecological injury when cause-lines are
scrambled by uncertainty and spatial-temporal distance. In der Tat, many transna-
tional or global environmental problems involve the imputation of responsibil-
ity to actors before harm has been received (e.g. climate change accountability
of new investments in coal-burning power stations) oder, for so-called high-
consequence risks (e.g. nuclear accidents), where the probability of future harm
may be remote but its potential magnitude is severe. Environmental activists are
frequently at the forefront of such responsibility claims, as they routinely charge
political and market-based accountability regimes with ignoring or downplay-
ing transnational ecological risks. As Newell acknowledges in his paper, diese
are ex-ante accountability claims insofar as they attempt to create expectations
and commitments that would prevent future harm.13

It is the impact of nonstate actors in global environmental politics—

11. A diagnosis shared by Brunkhorst 2002 and Ruggie 2004.
12. Mason 2005; and Bohman 2007.
13. Newell, this issue; see also Boström and Garsten 2008.

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Michael Mason

• 13

notably non-governmental organizations (NGOs) and transnational corpora-
tions—that adds further complexity to the rescaling of responsibility for trans-
national harm. The contributors in this issue focusing on the institutionaliza-
tion of accountability practices within forestry and climate change governance
ªnd it academically productive to differentiate accountability “logics” or “ideal-
typical regimes” according to public, market-based and social spheres of ac-
tion.14 Methodologically, this approach favors the study of particular issue areas
or transnational governance forms in order to pinpoint the speciªc blend of ac-
countability standards and mechanisms in play. Not surprising, this invites the
identiªcation of “hybrid” accountabilities when different logics of responsibil-
ity are pulled together. These hybrid forms may be consensual, as with the trans-
national public-private partnerships discussed by Bäckstrand, or confronta-
tional, to take the examples cited by Newell of the creative use of legal strategies
to hold private actors to account for environmental damage.

Theoretical Perspectives on Accountability/Responsibility

In a recent review of global accountability politics, Weisband and Ebrahim
identify as a common analytical problem “the rift between how accountability
is imagined and how it actually operates . . . [für] deªnitions and framings of ac-
countability tend to be driven by normative agendas rather than by empirical
realities.”15 This analytical challenge is seen to hold whether accountability is
being considered at the level of single organizations or for more complex gover-
nance networks. For Weisband and Ebrahim, the unexamined normative
agenda is most often that of a practitioner-led, technocratic approach, welche
adopts a formal framing of accountability as the means by which the lead actors
(“principals”) hold power-wielders (“agents”) accountable, in accordance with
a set of standards and with the possibility of imposing sanctions for perceived
wrongdoing.16 They claim that this principal-agent view of accountability is gener-
ally served by positivist logic, whereby the “truth” about behavior can be
revealed with sufªcient information about actors’ incentives and constraints.
Relevant research topics informed by this approach, daher, include the for-
mulation of transferable accountability standards, the design of effective moni-
toring mechanisms, and identiªcation of the penalties needed to deter non-
compliant behavior.17

The methodological individualism of the principal-agent perspective be-
trays its theoretical debt to rational choice analysis. Accountability is cast as a
question of strategic interactions between principals and agents, oriented to suc-
cessful control or inºuence of the situation in which they ªnd themselves.18 A
familiar objection to this approach is that it operates with a truncated notion of

14. Bäckstrand, this issue; and Chan and Pattberg, this issue.
15. Weisbrand and Ebrahim 2007, 12.
16. Ebenda., 4–5. For example Keohane 2003; and Mulgan 2003.
17. Weisbrand and Ebrahim 2007, 14.
18. Keohane 2006, 76–77.

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14 •

The Governance of Transnational Environmental Harm

political action; speciªcally, that it neglects the reasons actors employ when jus-
tifying their actions before others, as well as the wider material and symbolic
contexts of accountability relations.19 Attention to this broader political culture
is of course doubly important when examining public accountability for cross-
border harm because, in their political efforts to be accepted as principals, Re-
gional and transnational publics are likely to seek assistance or inspiration from
a diverse range of civil society actors located in different countries.

In focusing on accountability/responsibility norms and practices outside
formal relationships of authority, the contributors to this issue have a wider
purview than the principal-agent view of accountability. Broadly, their papers
are informed by, and engage with, three theoretical perspectives in global envi-
ronmental politics—the global governance approach, constructivism and criti-
cal political economy. These approaches, at least as employed by the authors
Hier, are all postpositivist in the sense that they acknowledge the normative and
power-laden character of research on accountability and responsibility for envi-
ronmental harm.

The global governance perspective is typically concerned with new align-
ments of authority in transnational and global politics.20 Bäckstrand captures
this transition with the term “complex multilateralism,” referring to new trans-
national governance collaborations between private and public actors. Likewise,
Chan and Pattberg highlight the incursion of private standard-setting (the envi-
ronmental certiªcation of the Forest Stewardship Council) in global forest gov-
ernance. Work on accountability from the global governance approach has cen-
tered on the challenges to legitimate rule-making posed by governing bodies
that are self-organized as “horizontal” networks of nonstate actors, und welches
escape traditional hierarchical or “vertical” chains of
responsibility to
(inter)governmental political authorities. In such circumstances, new norms of
“good governance” are seen to arise from institutional experimentation and
competing political interests.21

Important theoretical insights on accountability are offered to the global
governance approach by the articles in this issue on climate change partnerships
and private environmental rule-making. Bäckstrand’s ªnely nuanced survey of
the forms of accountability adopted in different climate governance networks
corrects the tendency in much global governance literature to bid farewell to the
state. Many of these partnerships operate, she notes, “in the shadow of the state”
insofar as states and international organizations delegate rule setting and imple-
mentation, while they are also prone to “old” forms of political bargaining.
Chan and Pattberg propose a speciªc model of institutional change in account-
ability regimes. This framework is employed to explain the evolution of the ac-
countability structure of the Forest Stewardship Council—both its internal (oder-

19. Green and Shapiro 1994; and Okereke, this issue.
20. Biermann 2006 provides an incisive survey of global governance research.
21. Risse 2006; and Gulbrandsen 2008.

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Michael Mason

• 15

ganizational) accountability and its governance aspirations to promote the
external accountability of forestry governance to affected publics. Signiªcantly,
Chan and Pattberg explicitly consider the political drivers of accountability re-
gime change, giving more explanatory weight to crises of legitimacy and ideo-
logical shifts than is usual in the global governance perspective.

Constructivist perspectives afford even greater emphasis to understanding
how discourses and practices of accountability/responsibility are socially consti-
tuted and contested. This entails examining how accountability/responsibility
norms are bound up with the validation of particular forms of knowledge, Wie
speciªc practices and interests are legitimated, and what effects these discursive
moves have on existing relations of power.22 Afªnities have been established
here with the genealogical method of the French poststructuralist Michel
Foucault, especially his work on “governmentality,” deªned as the technologies
and knowledges of modern government. Within scholarship on environmental
politics and responsibility, Foucauldian analysis has been employed critically to
interrogate “environmentality” (das ist, environmental governmentality), nota-
bly how rationalities and practices of ecological regulation reinforce conªgura-
tions of power. Zum Beispiel, Luke views the resource managerialism and conser-
vationist ethics of sustainable development governance as legitimating a
political economy of neoliberal globalization.23 Meanwhile, Agrawal delineates
the same process for colonial and postcolonial environmentality in India,
showing how regulation prescribed new subjectivities of ecological responsibil-
ity.24 Insofar as technologies of government foster particular norms of account-
ability and responsibility for cross-border harm, this type of research alerts us to
the analytical need to observe carefully the political subjectivities in play: diese
are far more than principal-agent identities.

Constructivist arguments thus broaden the empirical domain of studies of
accountability and responsibility to map relevant political discourses and tech-
niques of control. Jedoch, the same analytical contextualism that allows open-
ness to “actual” accountability effects can obscure the relationships of power
transcending these immediate practices.25 Informed by sociological institution-
alism, the contribution of Pellizzoni and Ylönen to this issue afªrms the rele-
vance of cultural framing in the allocation of responsibility under conditions of
uncertainty, but endorses a “social connection model” of responsibility to cap-
ture the structural genesis of much transnational environmental harm and risk.
Ähnlich, Okereke draws on constructivist literature to examine the uptake of
North-South equity norms in international environmental regimes, yet ªnds
this perspective limiting for addressing the power-oriented question of why cer-
tain norms of responsibility are privileged over others in transnational and
global political arenas.

22. Weisbrand and Ebrahim 2007 endorse such an approach.
23. Luke 1999.
24. Agrawal 2005.
25. Bleiker 2008.

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16 •

The Governance of Transnational Environmental Harm

Commentators informed by critical political economy invest particular civil
society groupings with political legitimacy in their role in seeking greater envi-
ronmental accountability and responsibility from wielders of power—particu-
larly economic power. Democratic accountability claims made on behalf of
transnational affected publics are seen as implicated in the conºictual social re-
lations which underpin global capitalism. Daher, it is argued, there is a norma-
tive need to differentiate between those NGOs and activist networks that,
through their campaigning, seek a technical-managerial response to transna-
tional ecological harm and those, like the “global justice” movement, that ex-
pressly oppose the neoliberal power regime and its international sponsors (e.g.
World Bank, World Trade Organization). The former, it is claimed, pursue lib-
eral accountability strategies that aim for modest realignments of business or
(inter)governmental practice. Im Gegensatz, the latter are seen to employ “critical”
accountability strategies, challenging actors fundamentally over systemic abuses
of economic and political power.26

In der Tat, on this basis critical political economists have questioned the le-
gitimacy of “liberal” environmental NGOs to be considered as representatives
of affected publics, whilst transnational activists networks engaged in conten-
tious interaction with major powerholders are deemed to be more attuned to
the interests of environmental victims.27 In this issue, Jedoch, Newell counsels
against blanket appraisals of accountability gains in terms of liberal or radical
positioning. Groups like the Pew Center and the Climate Group, who construc-
tively engage with businesses on climate change accountability, are credited in
his paper with having signiªcant inºuence on the environmental performance
of the ªrms that they liaise with. Okereke also addresses the legitimacy of com-
peting responsibility norms, though his focus is on the stand-off between the
market-based morality of neoliberal states and the radical distributional aspira-
tions of many developing countries: he invokes neo-Gramscian concepts to ar-
gue that the “responsibility deªcit” of global environmental cooperation has
much to do with the co-optation of environmental equity norms for neoliberal
ends. Zusamenfassend, the prevailing global economic structure, with its enduring ideo-
logical hegemony, severely limits the possibility of alternative ways of construct-
ing environmental responsibility.

The theoretical perspectives outlined above have competing explanatory
and methodological priorities for addressing accountability and responsibility
for environmental harm. Their units of analysis encompass strategizing behav-
ior between principals and agents (rational choice theory), governance net-
works and regimes (global governance approach), accountability/responsibility
discourses and practices (constructivism), and processes of capital accumula-
tion and legitimation (critical political economy). In part these reºect the
inºuence of divergent (inter)disciplinary domains (glossed over here) with their

26. Newell 2001; and this issue.
27. Sehen, Zum Beispiel, Ford 2003.

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Michael Mason

• 17

own analytical traditions and optics. There remains for intellectual discussion
the question of how much their particular insights can be integrated; for exam-
Bitte, Keohane claims that his version of principal-agent theory is compatible
with constructivism,28 though Foucauldian scholars would likely dispute this.
Ähnlich, governance theorists and critical political economy scholars share a
preoccupation with accountability deªcits, but offer divergent political analyses
of their genesis and scope. While there are valid scientiªc reasons to follow each
of their emerging research programs on transnational accountability and re-
sponsibility, there remains a signiªcant philosophical disjuncture between the
(neo)positivism of principal agent theory and the postpositivism of the three
other perspectives.

The Emergence and Uptake of Environmental Accountability/
Responsibility Norms

All accountability relations presuppose obligations to act in ways that are con-
sistent with standards of appropriate behavior (norms). That is the source of
their legitimacy. Accountability obligations may be disputed within countries,
but this usually occurs against a background of well-established responsibility
norms rooted in national political cultures. With transnational accountability
Ansprüche, the researcher often has to make sense of novel claim-making and pro-
tracted political struggles to legitimize new standards of behavior operable
across territorial borders.29 As Okereke notes in this issue, norms perform multi-
ple functions—constituting collective identities, regulating actions and express-
ing rights and responsibilities. The institutional frameworks that stabilize these
functions in domestic political contexts (e.g. citizenship rules and practices, na-
tional identities) are of course not oriented to the transnational integration of
norms.

Empirical evidence of accountability and responsibility norms is always
indirect. The methodology for gaining access to these norms entails analyzing
relevant discourses of justiªcation and application of the norm. In the case of
accountability for cross-border environmental harm, the empirical task is to
identify political agency and communication featuring relevant responsibility
norms. There are testable hypotheses put forward by scholars to explain the “life
cycle” of norms, including whether, and how, these norms become institution-
alized in speciªc sets of rules and organizations.30 As noted above, the contribu-
tions to this special issue by no means subscribe to a uniform conceptual ap-
proach: Jedoch, they all address, more or less explicitly, two explanatory claims
evident in recent research on the development and diffusion of environmental
norms—that, other things being equal, (ich) a necessary condition for the effec-

28. Keohane 2006, 76–77.
29. Grant and Keohane 2005, 29–30; and Weisbrand and Ebrahim 2007, 7.
30. Finnemore and Sikkink 1998; and Bernstein 2001.

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18 •

The Governance of Transnational Environmental Harm

tive emergence of new responsibility norms is a recognition of a legitimation
deªcit in environmental governance, Und (ii) a necessary condition for the effec-
tive uptake of new norms is that they “ªt” with existing norms in their area of
application.

The Emergence of Environmental Accountability/Responsibility Norms

Pellizzoni posits, “each shift in the dominant approach to responsibility corre-
sponds to the recognition of a decline in the social perception of institutional
and corporate authoritativeness and trustworthiness, and an attempt to recover
them.”31 According to his co-authored article in this special issue, advocates of
the precautionary principle fuel this “crisis of legitimacy” of environmental gov-
ernance. Citing regulatory failures over, Zum Beispiel, asbestos and BSE, advo-
cates question the capacity of existing institutions to manage risks (of substan-
tial harm) under conditions of uncertainty. Precautionary norms thus meet
social demands to reduce the risk of false negatives (Type II errors) in environ-
mental regulation, partly by democratizing risk assessment and management
processes in order to include relevant information from affected publics as well
as experts.32 That regulatory authorities at different scales have adopted the pre-
cautionary principle attests to its growing political currency, but Pellizzoni and
Ylönen caution that the social effects are wider still, for precautionary norms
create expectations for enlarging obligations of responsibility towards global
publics and future generations.

Other contributors to this issue share the legitimation deªcit diagnosis.
For Newell, a core motivation of climate change activists promoting new ac-
countability norms is their shared perception that there are “governance gaps”
and “accountability deªcits” in international climate change regulation, espe-
cially with regard to market actors. Chan and Pattberg similarly claim that new
responsibility norms can be triggered by an “accountability crisis” in existing
governance institutions, with the loss of legitimacy attributed to states and/or
corporations. Their model of institutional change in accountability regimes pro-
poses four factors that induce accountability crises. These are changes in the
number and type of actors, problem-solving failures, issue framing and ideolog-
ical change. This model synthesizes explanatory claims from a variety of sources
and invites further research to test its general validity on the emergence of new
accountability/responsibility norms and rules.

It should be noted, Jedoch, that the remaining contributors are more cir-
cumspect regarding the signiªcance of legitimation deªcits for norm emergence.
Okereke treats the “responsibility deªcit” of global environmental governance
as more of an outcome of, than a condition for, the development of interna-
tional equity norms. This ªnding reºects in part his focus on state-centered

31. Pellizzoni 2004, 260.
32. Pellizzoni and Ylönen, this issue; see also Whiteside 2006, 117–143.

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Michael Mason

• 19

norm development, where the relevant norm promoters are diplomatic repre-
sentatives or international organizations; but it is also shaped by the greater ex-
planatory weight he accords to neoliberal ideology and rule-making. In her ex-
amination of transnational climate partnerships, Bäckstrand ªnds the diagnosis
of a global “regulatory deªcit” too broad to account for the emergence of a di-
verse range of accountability rules and mechanisms. The researcher, she sug-
gests, needs instead to trace the complex dispersal of accountability norms
among different actors and institutional networks.

The Uptake of Environmental Accountability/Responsibility Norms

Constructivists have proposed that a necessary condition for the effective uptake
of transnational environmental norms—whether their diffusion is through
global civil society or legal institutionalization—is their “ªt” with existing
norms in their area of application. For civil society activists and networks, es ist
argued, environmental accountability claims in transnational campaigns
achieve more salience when they correspond with widely shared values about
harm prevention and fair treatment.33 Legal institutionalization most obviously
refers to the embodiment of new norms in multilateral agreements. Here the
stable comity and slow evolution of international legal orders militates against
novel or radical normative proposals, unless they achieve a critical mass of sup-
port.34 However, as shown convincingly by Bernstein, these immediate path
dependencies are themselves skewed by underlying political or economic op-
portunity structures. New environmental norms are more likely to achieve insti-
tutional uptake, he claims, when they resonate with the dominant norm-
complex of “liberal environmentalism,” which favors individualistic notions of
harm prevention alongside public participation entitlements framed by state
authority structures.35 There is an overlap here with the notion of a dominant
cooperative scheme employed by Pellizzoni and Ylönen in this issue, vor allem
their argument that the “troublesome career” of precautionary norms arises in
large part because of their mismatch with the traditional “liability model” of re-
sponsibility.

In explaining norm uptake, the global governance approach places less
emphasis than constructivist perspectives on the relationship of new norms to
existing norms. Um sicher zu sein, in their article, Chan and Pattberg accord sig-
niªcance to the “appropriateness of relations” in explaining the currency of par-
ticular accountability rules, but they stress the close interrelationship of norm
emergence and norm institutionalization (within broader changes in gover-
nance systems) rather than a discrete life cycle of norm development. Bäck-
strand’s paper also reºects this analytical preference for looking ªrst at institu-

33. Keck and Sikkink 1998, 201–217.
34. Finnemore and Sikkink 1998: 901.
35. Bernstein 2001.

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20 •

The Governance of Transnational Environmental Harm

tional structures of accountability in which norms are already embedded.
Insofar as she highlights a particular norm set (procedural fairness norms), their
differential articulation and uptake in climate change partnerships is given a
functional explanation—adaptation to arena-speciªc logics of action which
cover more than existing norms (e.g. strategic modes of action). This is a sugges-
tive line of inquiry which deserves further discussion.

Okereke’s article examines most fully the “ªtness” thesis of norm uptake,
including Bernstein’s socio-evolutionary take on this claim. He surveys the
spread of two equity norms—common heritage of mankind and common but
differentiated responsibility—in international environmental regimes. He ªnds
support for a strong variant of the thesis that “ªtness” with neoliberal material
and ideational structures is of greater explanatory signiªcance for norm institu-
tionalization than other factors proposed by constructivists (the source and
force of norm articulation, the nature of the issue area, and the “moral temper”
of the international community). The explanatory emphasis that Okereke gives
to the neoliberal character of the current global economic order leads him to
make use of neo-Gramscian concepts. He concludes that the “ªtness” account
of norm institutionalization needs to be anchored more systematically in a criti-
cal political economy perspective.

Newell registers a similar theoretical concern in his paper, which is thrown
into relief by his preoccupation with external pressures on corporations to
adopt particular environmental norms. By not effectively addressing climate
ändern, private corporations are seen by many civil society actors to be exercis-
ing power without environmental responsibility. This perception drives the lat-
ter to promote new norms of corporate accountability: Newell observes wide
support for these accountability norms within global civil society, evident in
calls for an International Corporate Accountability Convention,36 but not yet
borne out by institutionalization. The mismatch between norm emergence and
institutional uptake is partly rooted, he claims, in the constitutional authority
ascribed in international law to the rights of capital, such that corporations are
protected from public accountability for the harmful consequences of their pro-
duktion, trade and investment activities overseas. Noch, as Newell details in his
discussion of “civil regulation,” existing private accountability norms (e.g. tort
liability, shareholder answerability) can nevertheless be utilized to further dem-
ocratic accountability for transnational environmental harm. Mit anderen Worten,
there is more space for maneuver in the politics of norm development than the
“ªtness” thesis might otherwise predict.

Abschluss

Whether for analytical or political purposes, the framing of accountability prac-
tices as “national,” “transnational” or “global” has normative implications. Das

36. On this campaign see Clapp 2005.

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Michael Mason

• 21

does not mean that researchers should reject these spatial constructs, for the rel-
evant analytic narrative is how different actors use these constructs to promote
and institutionalize responsibility norms. It would include, Zum Beispiel, Wie
actors deploy a “rhetoric of scale” to advance particular material interests and
cultural identities.37 Accountability claims for transnational and global environ-
mental harm express scalar tensions over standards of appropriate behavior. Ar-
guably the clearest such tension on cross-border accountability is between its
territorial expressions as favored by states (e.g. multilateral environmental
Vereinbarungen) and its nonterritorial framing by civil society actors (e.g. the shared
subjectivities of environmental victims). The researcher needs to treat these spa-
tial moves as constitutive of the power relations of environmental accountabil-
ity and responsibility.

Während, as indicated above, the research articles in this issue do not share a
common theoretical framework, they are all acknowledge the admixture of ter-
ritorial and nonterritorial categories present in new attributions of responsibil-
ity for transnational environmental harm. International environmental policy
scholarship has long recognized the inºuence of domestic institutions and ac-
tors on cooperation between states, while research on civil society networks has
highlighted how national political and economic actors can face accountability
claims from, or on behalf of, non-nationals.38 Such interactions are discussed in
the contributions here, ºeshed out both conceptually and empirically. The ac-
tors and issues examined are of course not comprehensive, but it is clear that ac-
countability/responsibility norms for transnational environmental harm have
widespread discursive and organizational currency. They are a signiªcant part of
the normative underpinning of global environmental governance and, in their
ongoing, uneasy encounter with the material and ideational structures of liber-
alism, they may yet assist in achieving a more durable, ecologically rational
compromise with the latter.39

This outcome depends on changes in wider regimes of responsibility
beyond the realm of global environmental governance. Insbesondere, it de-
pends on whether a cosmopolitan “constitutionalization” of international law
is emerging that supports responsibility norms in a way consistent with the
moral principle that all actors causing signiªcant environmental harm should
be accountable to injured or threatened parties whatever the nationality or resi-
dence of the latter. There is certainly evidence for this in, Zum Beispiel, the trans-
national diffusion of a “rule-of-law”—principles, norms and rules of legitimate
governance—that extends beyond compliance with international law to encom-
pass universal discourses of transparency, legal equality, human rights and pub-
lic participation. Rule-of-law entails transnational legal obligations which fall
on holders of authority alongside, or in place of, state-centered obligations; für

37. Herod and Wright 2002, Part II.
38. Schreurs and Economy 1997; and Keck and Sikkink 1998.
39. Bernstein and Ivanova 2007.

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22 •

The Governance of Transnational Environmental Harm

Beispiel, the emergence of an “individualization of responsibility” for human
rights violations, whereby individuals face direct accountability for their actions
regardless of immunities that might otherwise be claimed under state responsi-
bility rules.40 The universality of harm prevention obligations in environmental
governance is arguably less secure, and the global rule-making and enforcement
institutions are weak, but the normative linkages with the human rights sphere
certainly warrant further investigation.

Against this progressive development of responsibility norms, we must
reckon with two countervailing tendencies—a restrictive neoliberal application
of the rule-of-law doctrine and an instrumentalist use of international law. Der
ªrst trend is recognized by several of the contributors to this issue, employing
Stephen Gill’s notion of “new constitutionalism” to identify a global account-
ability regime in which market contract and private property interests are given
priority in international law (e.g. investment treaties, trade law), thus marginal-
izing environmental responsibility norms.41 The second tendency is associated
most obviously with the controversial interpretation of key rules of interna-
tional law by the Bush administration in its “ªght against terrorism.” US uni-
lateralist moves are portrayed as undermining both established international
rules of state responsibility and emerging global norms of individual account-
ability. Außerdem, they are seen as fostering a broader instrumentalization of
international law, encouraging states to exploit legal multilateralism to promote
their own interests.42 The global prospects for environmental accountability/
responsibility norms will be enhanced inasmuch as the constitutionalization of
international law takes a cosmopolitan rather than a neoliberal or instrumental-
ist direction.

Verweise

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Michael Mason

• 23

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