This problem addresses the differing perspectives and motivations of non-governmental organizations (“NGOs”) and governments (“Governments”) as they strive formally to represent the public in international environmental matters. The method of approach is borrowed from economics (mostly public choice or game theory, but unless you are eager to bone up on your mathematics we shall spare you a more formal introduction to the methodologies). You might want to look at the article Hazard & Kunreuther, Protecting the Environment: Finding the Balance Between Delaney and Free Play, 18 University of Pennsylvania Journal of International Economic Law 487 (1997). This article employs a bit of agency and informational analysis in an institutional setting to look at environmental risks under different institutional arrangements. The point in looking at the article is simply to inform yourself about how a non-mathematical treatment of these kind of issues might look.
We cast the problem in the following terms. The average member of the public (“John Q. Public”) may be concerned about the environment in a general sense, but is not well informed and has a variety of competing concerns. John Q. Public works in an industry “threatened” by international trade (meaning the foreigners are so much more efficient producers of his industry’s products that they can supply them more cheaply to Cascadia’s consumers). In economist’s terms, John Q. Public is a “principal” suffering from a lack of information. We stipulate that there will be permanent assymetries of information concerning the environment because of a lack of time, education, or inclination, so John Q. Public will never be able to match the access to information of “agents” representing him as the principal on environmental matters.
We envision three “agents” competing to represent John Q. Public in the environmental area. In economist’s terms, the problem with agents is that they formally represent principals but in fact have their own motivations. Thus, there is always a risk that agents will take actions formally on a principal’s behalf which in fact serve the agent’s own personal ends. In theory principals may monitor agents to ensure their faithful representation of principal interests. There are two problems with the monitoring idea. First, monitoring is a relatively high cost proposition in terms of John Q. Public’s time and effort. Ultimately, you might spend so much time monitoring that it would be cheaper to do something yourself in lieu of appointing an agent. Second, monitoring assumes development of information. We start with the assumption that, because of assymetries of information, John Q. Public’s agent for the environment will always be better informed on the pros and cons of environmental matters than he. Thus, monitoring is ultimately ineffective in this case.
We now turn to which agents might represent John Q. Public. The first agent is an environmental NGO entitled “Orangesegment.” Orangesegment is an organization of dedicated political activists, scientists and economists nobly and single-mindedly pursuing preservation of the environment. Orangesegment is well-informed about the environment, but suffers as an agent from the motivational conflict that the environment is all it cares about. Orangesegment (or at least its more vocal members) seems to lie just this side of deep ecology on the spectrum of environmental organizations. John Q. Public is not a member of Orangesegment, but he listens to their message on environmental matters like any other member of his media-cocooned society.
The second agent is Government, which we stipulate controls the country (“Cascadia”) where John Q. Public lives. Government is well-informed about the environment given expertise in its environmental regulatory agency, but presumably suffers as an agent from the motivational conflict that it wishes to continue to represent John Q. Public (the incumbent effect) at the same time that it must satisfy competing demands (unlike Orangesegment, Government is not singleminded in its pursuit of the environment). As a loyal citizen of Cascadia, John Q. Public thinks that Government sometimes does stupid things but normally has his best interests at heart.
The third agent is Cascadia’s society for the prevention of cruelty to animals (“CSPCA”). CSPCA is an organization of dedicated animal lovers, veterinarians and little old lady voters nobly and single-mindedly pursuing the humane treatment of animals. CSPCA is well-informed about pets and, to a lesser extent, about the whole animal kingdom from a conservationist point of view. However, its main concern is for domestic animals. In environmental terms, CSPCA is probably best understood as a sentimentalist’s more traditional conservation organization (at least for land mammals). Incidentally, John Q. Public owns a cat named Minette and is a member of CSPCA.
A question has arisen concerning a new draft international convention to save the whales (“Cetacean II”). The original international convention to save the whales (“Cetacean I”) entered international law years ago and represented the standard mish-mash environmental treaty under which nations undertook a obligation to study the alarming decline in the worldwide whale population without really agreeing to any binding obligations. Cascadia was a member to Cetacean I despite the fact that it lost its whaling industry with the demise of the sailing ship.
The country of Asiana is also a signatory to Cetacean I, but has both an active whaling fleet and a population with a taste for whale meat as a traditional delicacy of Asiana cuisine (so highly thought of that consuming whale meat is the culturally significant high point of traditional Asiana wedding banquets). Asiana, which enjoys mutually beneficial trade and security arrangements with Cascadia, is hesitant about Cetacean II precisely because it goes beyond Cetacean I to propose a ban on the taking of whales. Traditionalists decry Cetacean II’s absolute ban on whale hunting as anti-family values, reasoning that disturbing Asiana’s traditional wedding customs strikes yet another blow against a crucial social institution under pressure. Incidentally, Asiana is one of the countries exporting to Cascadia goods in competition with the industry in which John Q. Public works.
Orangesegment is engaged in an all-out lobbying and protest campaign in support of Cetacean II, which is in an advanced stage of negotiations. Cascadia’s Government might favor Cetacean II in the abstract, but is hesitant to push Asiana too hard (because of concerns how that might affect the trade and security arrangements). CSPCA as a conservationist organization is ambivalent about Cetacean II, both because its true focus is on land animal pets and because whale meat is a major component of catfood. In fact, its little-old-lady board of directors is launching a letter-writing campaign for CSPCA’s members to support “save the kittie[s’ food]” by keeping Cascadia out of Cetacean II. Thus, the three potential agents represent three levels of engagement pro and con in the adoption fight for Cetacean II.
Analyze the dynamics of Orangesegment, Government and CSPCA competing as agent to represent John Q. Public as principal to resolve the issue whether Cascadia should become, or pressure other countries to become, a party to Cetacean II (i.e., abandon the taking of whales). Is the resolution really driven by information assymetries or by the competing agents’ own “motives” even when they agitate to act for John Q. Public? What is the position of NGOs versus Governments, which traditionally enjoy a legal monoploy representing their citizens in international legal affairs (i.e., deciding whether or not to enter into a treaty)? Should a Governments’ position invariably take precedence over an NGOs’ position and, if so, why?
Is the right approach in general terms to think about all of these actors as John Q. Public’s agents, or is Cascadia as state the true principal rather than John Q. Public as individual? How would you relate the distinction in structural terms to the international law system to distinguish the traditional view of international law as law between states as opposed to current views of individuals with direct human rights or similar claims? How do you apply substantive international law like views of legal personality on top of the agency/informational access analysis to the three actors? What are the underlying assumptions of the three actors about the international law system, in terms of legal, governmental and democratic elements? We shall approach these questions via role-playing exercise in class.
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