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Journal of Environmental Policy & Planning

ISSN: 1523-908X (Print) 1522-7200 (Online) Journal homepage: http://www.tandfonline.com/loi/cjoe20

The Power of Legitimation: The Role of ExpertNetworks in Global Environmental Governance

Mathieu Rousselin

To cite this article: Mathieu Rousselin (2015): The Power of Legitimation: The Role of ExpertNetworks in Global Environmental Governance, Journal of Environmental Policy & Planning,DOI: 10.1080/1523908X.2015.1065719

To link to this article: http://dx.doi.org/10.1080/1523908X.2015.1065719

Published online: 17 Jul 2015.

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The Power of Legitimation: The Role of Expert Networks in

Global Environmental Governance

MATHIEU ROUSSELIN

Centre for Global Cooperation Research of the University of Duisburg-Essen, Dortmund,Germany

ABSTRACT As part of the debate on the legitimacy of governance networks in globalenvironmental politics, this article investigates the conditions under which policy sol-utions can be transferred worldwide as a result of a particular type of interaction withintransnational expert networks and technical committees. To this end, the article hypoth-esises that policy solutions can be legitimised in governance networks meeting four cumu-lative criteria: participation, flexibility, horizontality and inclusiveness. This hypothesis isthen tested by means of two heuristic case studies dedicated to the worldwide transfer ofenvironmental standards via United Nations specialized agencies. The empirical workpartly strengthens the validity of the hypothesis but also underscores the limits of legitima-tion strategies in the face of strong heterogeneity of interests. In such cases, environmentalpolicy networks may adopt fairly “vertical” features and resort to classical bargaining andconstraint strategies whereby compromises are exchanged and power asymmetries aremobilised.

KEY WORDS: Network governance, policy networks, expert knowledge, argu-mentative strategies, environmental regulation

Over the past decades, a large body of scientific literature has accumulated onalternative forms of policy-making whereby legislative and regulatory outcomesare jointly produced by a variety of stakeholders rather than unilaterallyimposed by the state. Such ‘new modes of governance’ often associate non-stateactors, particularly corporate interests, with decision-making processes whichdo not necessarily aim at producing binding legislation and emphasize flexiblepartnerships and voluntary information-sharing (Heritier, 2003). These net-worked forms of governance are deemed innovative to the extent that theydiffer from both the hierarchy and the market, which are governance modeswhere policy solutions are either provided by a dominant actor relying on

Correspondence Address: Mathieu Rousselin, Centre for Global Cooperation Research of theUniversity of Duisburg-Essen, Jagdhausstraße 5, D-44225 Dortmund, Germany. Email:rousselin.mathieu@gmail.com

Journal of Environmental Policy & Planning, 2015

http://dx.doi.org/10.1080/1523908X.2015.1065719

# 2015 Taylor & Francis

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power asymmetries or where these solutions emerge without state intentionality,possibly even in the absence of institutional relationship between actors, as a by-product of trade and market integration (Powell, 1990).

Network governance has emerged as a particularly fruitful conceptual frame-work for researchers working on global environmental politics. Indeed, by inte-grating a variety of actors both public and private sharing in common a highdegree of technical expertise, it has been argued that international environmentalnetworks such as expert groups or transnational bureaucracies greatly enhancepolicy-learning and solution-finding (Dedeurwaerdere, 2007; Warning, 2006).Haas (2004a) suggests thinking of such environmental networks as epistemic com-munities which, because they already share a number of common beliefs and pro-fessional norms, are better able to come to a technical consensus on the causes ofcomplex environmental risks or hazards. Arguably, these governance networksare subsequently better able to formulate broadly acceptable policy solutionsunder situations of uncertainty and of bounded rationality, which are situationsconducive to policy-making processes ‘where power listens to truth’ (Haas,2004b).

In this context, a hotly debated issue in the literature is the extent to whichnetwork governance may increase the legitimacy of policy solutions (Backstrand,2006; Hogl, Kvarda, Nordbeck, & Pregernig, 2012; Skogstad, 2003). Research hashighlighted that governance solutions jointly developed within transnationalexpert networks are not only technically more effective but also appear to be per-ceived as more legitimate by the actors—Raines (2003), for instance, discovered astrong correlation between the perceived legitimacy of the ISO 14000 environ-mental standard and the degree of involvement of delegates in the negotiationprocess. Relatedly, Newig and Fritsch (2009) identified a positive correlationbetween communicative processes and the environmental output of policydecisions. Comparing monocentric and polycentric governance systems, theyfound out that this correlation becomes even stronger as the number of stake-holders increases. Interestingly, Newig, Gunther, and Pahl-Wostl (2010) suggestthat deliberation and socialization within environmental governance networksfoster individual and collective learning even in cases where the interests of theindividual network members diverge. This stream of research investigating thelegitimacy of network governance is particularly promising because scholarshave shown that legitimate governance solutions are likely to be better acceptedand, hence, domestically implemented than less legitimate ones (Checkel, 2000;Mayntz, 2010; Risse, 2004).

This paper picks up on the debate on the legitimacy of network forms of gov-ernance in global environmental politics and investigates the conditions underwhich particular governance solutions can be legitimized via expert groups ortechnical committees. The first section reviews some of the reasons for whichmost researchers are deeply dissatisfied with (albeit concomitantly highlyreliant on) the concept of legitimacy and suggests distinguishing between legiti-macy as a property of the governance solution and legitimation as a processwhereby a variety of actors may come to think of a particular governance solutionas being legitimate as a result of their institutional interaction. On this basis, theexistence of a potentially generalizable relation between certain properties ofpolicy networks and the successful provision of environmental regulation ishypothesized and subsequently investigated by means of two heuristic case

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studies dedicated to the worldwide diffusion of a set of environmental standardsvia United Nations specialized agencies.

Legitimacy and Network Governance

Although legitimacy has become a topical theme in political science and inter-national relations, many scholars remain wary of the concept—a situationsummed up by Steffek (2004, p. 485) when he underlines that ‘currently there ishardly an essay on international or global governance that does not at leastmention the issue of legitimacy’ before cautiously adding that ‘the frequentappeal to such an elusive and contested concept calls for critical reflection’. Thecauses for this scholarly wariness are legion and usually start with the fact thatthe concept remains largely undefined—in the words of Suchman (1995, p. 572),‘many researchers employ the term legitimacy, but few define it’. Other scholarscriticize the casual use of a concept which has multiple and contradictory mean-ings: ‘passing references far outnumber systematic treatments [. . .] Existing scho-larship on legitimacy draws on diverse disciplinary literatures in political scienceand philosophy, law, and sociology, which has produced confusion over its mean-ings and dynamics’ (Bernstein, 2005, p. 140). This pithy statement is worsened bythe bitter recognition that, concomitantly, ‘political scientists have found them-selves unable to live comfortably with, or wholly without, this concept’ (Clark,2003, p. 79).

In his survey article of legitimacy discourses within the EU, Føllesdal (2006,pp. 445–454) identifies four fundamentally distinct concepts of legitimacy refer-ring to at least six different objects of legitimacy. Given these difficulties, onemay come to sympathize with the recommendation of Kratochwil (2006) toabandon hopes of finding a simple definition and to apprehend legitimacyinstead in its relations with other concepts located within a semantic field (suchas ‘authority’). Building upon this connection between legitimacy and politicalauthority, Bekkers, Dijkstra, Edwards, and Fenger (2007) come to equate legiti-macy with representative democracy and focus their investigations on theextent to which new modes of governance strengthen or weaken the ‘democraticlegitimacy’ of public policies. Attempting the daunting task of defining theconcept, Scharpf (1999) proposes an often-cited distinction between two typesof legitimacy, which he labels input legitimacy (or ‘government by the people’)and output legitimacy (or ‘government for the people’). In essence, the inputdimension refers to the institutional procedures and practices ensuring thatdecision-making processes are responsive to the needs and preferences of the citi-zens-voters whereas the output dimension apprehends legitimacy as the extent towhich policies constitute effective solutions to collective problems of the governed(Scharpf, 2003). Yet, this distinction is itself subject to fair criticism, whether fromscholars who advocate a different understanding of legitimacy altogether (such asWalker (2001) who analytically distinguishes between performance, regime andpolity legitimacy) or from scholars who at the very least consider that theinput/output dichotomy ignores important aspects of legitimacy such as thetransparency, accountability and reactivity of governance institutions (allaspects which are often summed up under the term throughput legitimacy—see, for instance, Schmidt, 2010, pp. 20–25).

To navigate more or less safely through this conceptual minefield, I operate abasic distinction between legitimacy as a property of the governance solution itself

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(rule, standard or policy) and legitimation as a deliberative-argumentative processwhereby a variety of actors grouped within an institution may come to think of aparticular governance solution as being legitimate as a result of their interaction.This distinction recalls earlier contributions in which the type of environmentalpolicy solution to be transferred influences the outcome of the diffusion or conver-gence process (Holzinger & Knill, 2005; Kern, Jorgens, & Janicke, 2000).

In the conceptual model underpinning this research (Rousselin, 2014), legiti-macy becomes one of the three properties of the governance solution under dis-cussion within expert networks. The other two properties are the effectivenessof the governance solution (the extent to which a rule or standard solves a particu-lar environmental policy problem, at a given domestic cost for the actors involved)and its incentive structure (the set of rewards and sanctions associated with thegovernance solution). Taken together, these three properties influence the success-ful outcome of the transfer process, that is to say the likelihood that a given gov-ernance solution is being transferred worldwide via international organizationsand transnational expert networks. Building upon Lavenex and Schimmelfennig(2009, pp. 800–801), the successful provision of environmental governancerefers to the selection, adoption and application of a particular rule, standard orpolicy.

The Legitimacy of Governance Solutions

Echoing previous work on the transfer of the European acquis beyond EUmember states (Lavenex & Schimmelfennig, 2009, p. 804), I suggest defining legiti-macy as the degree to which a rule, standard or policy is considered as ‘normal’and hence normatively accepted by actors. In order to do so, I suggest operationa-lizing legitimacy on the basis of two criteria, the first of which is the resonance ofthe rule, standard or policy (Schimmelfennig & Sedelmeier, 2005, p. 20), under-stood in terms of compatibility with the structures and practices in place withinthe institution where the governance solution is being discussed. The second cri-teria is the universality or singularity of the problem-solving mechanism (Rousselin,2012), meaning the extent to which the governance solution discussed aims atsolving a policy problem common to most institution members in a general andpotentially universal way. By contrast, a governance solution would be deemedsingular rather than potentially universal if the problem-solving mechanism is tai-lored to the needs of the actor that first developed it. The underlying idea is that,the more general and universal the rule, standard or policy, the less it can be sus-pected of serving the particular interests of the country where it was first devel-oped.

The Legitimation of Governance Solutions

By contrast, legitimation is a process whereby a governance solution comes to beregarded as legitimate as a result of a particular type of institutional interaction. Toproduce this outcome, the institutional interaction ought to meet as closely aspossible the conditions of an ‘ideal speech condition’ where all competentparties willing to join a discussion may do so freely and equally, and where allarguments can be formulated and contested equally freely. Under such conditions,the habermasian theory of communicative action considers that the collectiveacceptance of a settlement stems from a process of argumentation (as opposed

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to a process of bargaining—Muller, 2004; Ulbert & Risse, 2005) which encouragesparticipation on the basis of reason-giving and which fosters deliberation betweenparticipants who are ‘open to being persuaded by the better argument’ (Risse,2000, p. 7).

In institutional terms, the logical framework for deliberative practices of argu-mentation is the network (Schimmelfennig & Sedelmeier, 2005). Indeed, argumen-tative rationality requires the existence of a ‘common lifeworld’ betweenparticipants, which is unlikely to emerge spontaneously out of the market. Bythe same token, social interaction ought to be based on the power of the betterargument and not on the power of the strongest participant, which means thatdeliberative-argumentative processes of legitimation are unlikely to occur underhierarchical governance modes. Following Lavenex and Schimmelfennig (2009,p. 795), I therefore suggest that governance solutions can be legitimized as aresult of social interaction within a policy network that meets four cumulative cri-teria: horizontality, participatory nature, flexibility and inclusiveness. These cri-teria are conditions which I deem necessary for the network to be conducive tothe legitimation of the rules or standards under discussion. In cases where thesecriteria are not met, the successful transfer of an environmental standard cannotbe explained by the prior legitimation of that standard—instead, alternative expla-natory models, emphasizing for instance power asymmetries or lesson-drawing,need to be invoked.

The requirement of horizontality refers to the absence of formal hierarchieswithin the institutional setting. Stated otherwise, legitimation can be expectedto occur within a governance network that guarantees the formal equality of allmembers. Clearly, this does not preclude the existence of power asymmetrieswithin the network; yet, the requirement of horizontality means that actors haveequal institutional rights and that no actor or group of actors can impose a settle-ment upon another party without the latter’s explicit consent. This requirement ismeant to ensure that governance solutions are genuinely pulled-in by all willingnetwork members rather than pushed-out by some members upon others.

The participatory nature of a network can be apprehended by assessing thedegree of involvement of the institution members both in formal and in effectiveterms. Formally, institution members must be permitted to attend all activities;effectively, institution members must be able, if they so wish, to attend all activitiesbefore an institution may qualify as a policy network. This implies that legitima-tion can only occur if network members have unrestricted access to all relevantmeetings and, cumulatively, if network members have the necessary resources(e.g. appropriate staffing, access to information and technical expertise toprocess the information collected) to effectively defend their interests and maketheir voices heard within the network.

The requirement of flexibility means that the governance solution under dis-cussion can be amended by network members as a result of their ongoing insti-tutional interaction. This requirement therefore differentiates networks fromhierarchical governance, where a single, non-negotiable policy option is proposedto institution members, which are left with the binary choice to adopt or not toadopt. By contrast, networks are considered more flexible forms of institutionalinteraction because new governance solutions may be jointly negotiated. Alterna-tively, networks may also use existing national or international policy solutions asa basis for their negotiation, which may subsequently be redefined to take intoconsideration the interests and preferences of individual network members.

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Finally, the inclusiveness of a network can be assessed by looking at its mem-bership base. To meet this criterion, networks ought to be open to a variety of sta-keholders based on their technical expertise rather than on their political orideological affiliations: national representatives and intergovernmental orregional organizations; state delegations and non-state actors; both public andprivate interests, with ideally a fair balance between the various advocacygroups, so as to avoid the under-representation of one interest group withregard to others. This is particularly important in the field of global environmentalgovernance, since the corporate sector is often better equipped to take part in gov-ernance networks than environmental activists or consumer associations.1

Methodology

The following sections explore the hypothesized existence of a ‘potentially gener-alizable relation’ between certain properties of policy networks and the successfuladoption of environmental regulation on the basis of two heuristic case studies.Such studies have the benefit of

stimulat[ing] the imagination towards discerning important general pro-blems and possible theoretical solutions [. . .] [They] tie directly into theorybuilding, and therefore are less concerned with overall concrete configur-ations than with potentially generalizable relations between aspects ofthem; they also tie into theory building [. . .] because the potentially gen-eralizable relations do not just turn up but are deliberately thought out.(Eckstein, 1975, p. 104)

In order to investigate this potentially generalizable relation, two expert networksfrom United Nations specialized agencies were selected for their long-standingand broadly acknowledged ability to produce agreement over environmentalregulation: the World Forum for Harmonization of Vehicle Regulations (the so-called WP29) and the Marine Environmental Protection Committee (MEPC).The research strategy adopted is therefore ‘backward-looking’ (Scharpf, 1997,pp. 25–27) because it does not aim at the confirmation or disconfirmation of asingle-factor explanatory hypothesis—rather, its aim is to explain a particularpolicy choice (i.e. the adoption or non-adoption of a governance solution) startingfrom the relationship whose generalizability is hypothesized.

The qualitative data are composed of primary legislation and of official docu-ments (in particular institutional reports and minutes) as well as of technicalopinion pieces published in the specialized literature pertaining to the fields inwhich the cases are located. The textual material was collected throughout 2013and early 2014 using publicly available databases via institutional websites.2

The data were manually coded on the basis of themes derived from the conceptualframework laid down in the previous section: problem-solving/adoption costs(categorized under the theme ‘effectiveness’); resonance/universality-singularity(categorized under the theme ‘legitimacy’); horizontality/participatory nature/flexibility/inclusiveness (categorized under the theme ‘legitimation’) andrewards/sanctions/incentives/constraint (categorized under the theme ‘power’).

By way of a caveat, the usual limitations inherent to qualitative research haveto be acknowledged at this stage. In particular, attempting to generalize from sucha limited number of cases will undeniably prove challenging, if doable at all.However, since this research takes place at an early stage in the process of

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theory consolidation, this seems an appropriate methodological decision. Inaddition, in-depth individual case studies allow the researcher to remain opento the flurry of potentially intervening parameters—such as the historicalpathway, the current political context, public opinion or the prevailing insti-tutional culture, all of which were highly relevant to understand the cases at hand.

The World Forum for Harmonization of Vehicle Regulations

Set up in 1947 by the United Nations Economic and Social Council (ECOSOC) asone of five regional commissions, the United Nations Economic Commission forEurope (UNECE) defines itself as a ‘multilateral platform’ bringing together 56member states from Europe, Central Asia together with the USA with the aimof ‘set[ting] out norms, standards and conventions to facilitate internationalcooperation within and outside the region’ (UNECE website). According to theUNECE’s Terms of Reference, all UN member states irrespective of theirgeographical location may participate in the UNECE’s activities. Accreditednon-governmental organizations with general and special consultative status toECOSOC may also send observers to attend public UNECE meetings and may cir-culate written statements and suggestions ‘on matters within their competence’(rule 52). UNECE may also consult with NGOs ‘on matters in which the Commis-sion regards these organizations as having special competence or knowledge’(rule 53). So far, around 70 non-governmental organizations take part inUNECE activities, almost all of which are international professional organizationsand industrial advocacy groups.

In 1952, the UNECE established the Working Party on the Construction ofVehicles (WP29) as ‘a body of technical experts’ (MEMA, 2009) working on regu-lations dealing with vehicle safety, energy efficiency, theft-resistance and environ-mental protection. The WP29 was the driving force behind the adoption of the1958 and 1998 agreements which established ‘UNECE regulations’ for countriesworking under the type approval system of mutual recognition and ‘Global Tech-nical Regulations’ (GTRs) for countries which have a different approval systemsuch as self-certification. Ever since its creation, the WP29 has been a particularlyhorizontal and inclusive policy network, open both to non-European governmentseager to follow regulatory trends in more advanced economies and to non-govern-mental organizations, provided that they are accredited under the consultativestatus with ECOSOC, and that they find a contracting state acting as ‘TechnicalSponsor’ and that they benefit from an acknowledged expertise in the rule areaunder consideration.3 The WP29 is assisted by six permanent subsidiary bodiesknown as groups of rapporteurs (later renamed ‘working parties’) and hostsmore than 30 informal working groups of technical experts with a limited time-mandate (about 2 years) within which the WP29 ‘often solicits specialized exper-tise from industry, academia, and private research organizations’ (WP29website).4 Without considering meetings of informal groups, more than 1600 del-egates participate in the 15 expert meetings every year, representing 54 full days ofwork (Ramos, 2011). The WP29 is also a fairly transparent structure, to the extentthat all working documents, reports and agendas are available online via theUNECE website. In order to acknowledge the global character of the WP29’swork both in terms of regulatory scope and of the geographical origin of stake-holders, a Japanese proposal to rename the WP29 was adopted in 2000 and the

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working party became the global forum for the harmonization of vehicle regu-lations.

UNECE Regulations under the 1958 Agreement

In response to a proposal by Germany, the 1958 Agreement established uniformstandards regarding safety- and energy-related, environmental and anti-theftrequirements. Importantly, the 1958 Agreement initiated a cooperative systembased on the reciprocal acceptance of type approvals by contracting parties(mutual recognition). The 1958 Agreement currently encompasses 50 contractingparties5 and 127 UN Regulations which provide uniform testing, performance andadministrative requirements on the basis of which the competent approval auth-orities in each contracting party can certify products for use in motor vehicles.6

UN Regulations under the 1958 Agreement are adopted by a large majority of con-tracting parties (two-thirds) and are not binding. They usually enter into force forall contracting parties that did not explicitly notify their objection six months aftertheir adoption, unless a blocking minority of a third of the contracting partiesobject. Despite their voluntary nature, UN Regulations ‘are tightly woven intothe regulatory systems of most Contracting Parties to the 1958 Agreement suchthat the integration of UN regulation language into local legislation is generallyassured’ (WP29 website). By the end of 2008, for instance, the EU had adopted105 of the 127 UN regulations into Community law, Japan had imported 35 ofthem and Russia was the most diligent contracting party having adopted 123regulations out of 127 (Ramos, 2011). In addition, a number of countries (suchas Brazil, Argentina and Chile) are de facto using the UN Regulations as theirnational legislation without having signed the 1958 Agreement, so as not toenter the mutual recognition system.

GTR Under the 1998 Agreement

A number of key manufacturing countries and automotive stakeholders werereluctant to join the 1958 Agreement either because they did not want to be partof the mutual recognition system or because their domestic approval systemwas based on self-certification rather than on type approval.7 To accommodatethe needs of these countries, the 1998 Agreement established a process wherebyGTRs are jointly developed within the framework of WP29. This Agreementbrings together 33 contracting parties8 and 13 GTRs have been listed as of mid-2013. GTRs offer guidelines for processes rather than for products: they primarilyfocus on performance-oriented test procedures and rarely set performancerequirements or prescribe limit values for test results. The text of the 1998 Agree-ment stresses the need for transparent procedures (art. 1) and foresees a processwhich is highly inclusive and participatory, though not always strictly horizontal,for the development of new GTRs (or for the amendment of older ones). For star-ters, all national or regional regulations that are potentially candidates for harmo-nization are to be listed in a ‘Compendium of Candidates’, which serves as a basisfor future GTRs. Any contracting party to the 1998 Agreement may submit arequest to the Executive Committee (composed of all contracting states); the regu-lation is effectively added to the Compendium if supported by at least a third ofthe contracting parties including the vote of either Japan, the European Union or theUnited States (art. 5 and art. 7 of Annex B). Pieces of legislation listed in the Com-

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pendium are then reviewed with regard to both UN Regulations and if applicablevoluntary international standards (especially those of the ISO). If the decision tocreate or amend a GTR is maintained, the draft GTR needs to be formallyendorsed by the Executive Committee on the basis of unanimity and is then sub-sequently listed in the Global Registry. Even then, contracting parties remains freeto adopt or not to adopt a GTR or even to adopt an amended version of an estab-lished GTR in their domestic legislation (Preamble, art. 7). Finally, GTRs them-selves allow for flexibility, for instance, by specifying ‘alternative non-globallevels of stringency or performance, and appropriate test procedures’ so as toaccommodate the specific needs of developing countries with weaker regulatorycapacities (art. 4).

Over time, the UNECE Regulations and GTRs have led to an increased con-vergence in automotive requirements which can largely be attributed to the modusoperandi of the WP29. The formal equality of partners is strictly respected andseveral safeguard clauses ensure the consent of parties at all stages (esp. forGTRs). Member states go at great length to guarantee the inclusiveness and parti-cipatory character of the WP29.9 However, the technical nature of the issues dis-cussed and the requirements of the accreditation procedure tend to favour theinclusion of private interests over that of environmentalists and consumer associ-ations. Although discussions within the WP29 are frequently conducted on thebasis of an initial regulatory proposal which is close or identical to standards pre-vailing within the EU, substantial efforts are made to accommodate the specificneeds of participants, which routinely results in concessions and amendments.10

The flexibility of the WP29 can also be observed in other matters where non-EUcountries benefitting from an acknowledged regulatory expertise play a leadingrole in worldwide regulatory harmonization (such as Japan on the regulation ofelectric and hybrid vehicles).11

The Marine Environmental Protection Committee

Established in 1959, the International Maritime Organization (IMO) is a special-ized agency of the United Nations with a mandate to improve the safety andsecurity of international shipping as well as to prevent marine pollution fromships. The IMO is governed by an Assembly composed of all 170 MemberStates which adopts technical resolutions, recommendations and the organiz-ation’s budget during its biennial meeting. Decisions are taken on the basis ofunanimity and member states are responsible to enforce the obligations theysigned up to. Composed of 40 member states,12 the IMO Council prepares thebudget and the work programme to be adopted by the Assembly. The bunch ofthe technical work on maritime issues is then conducted within five committeesand nine sub-committees. An interesting feature of the IMO is the long-standingtradition of cooperation with industry and NGOs, which is foreseen in the 1948convention13 and therefore predates the revised rules for the participation ofNGOs in meetings of the United Nations bodies (1996).

The MEPC is one of the two most important committees together with theMaritime Safety Committee. Composed of all member states, the MEPC has com-petence for issues concerning the prevention and control of pollution from ships.The MEPC usually has a heavy agenda, meets only three weeks every two yearsand may not constitute more than three working groups and two drafting groupsper session. The MEPC is also the theatre of an ongoing regulatory struggle

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between coastal states keen to protect their marine environment and flag stateseager to avoid costly environmental regulations on ship owners (De La Fayette,2001a, p. 148, 2001b, p. 165). In the MEPC, the participation of non-state actorsis strong and includes dozens of industry organizations as well as four environ-mental NGOs.14 Non-state delegations regularly submit and comment documentsand have the same participatory rights as member states,15 in particular to attendand make oral presentations during both plenary and working group sessions.The MEPC therefore offers an illustration of these horizontal, participatory, flex-ible and inclusive networks mentioned in Section 1. It should, however, benoted that such a governance mode presents major disadvantages in terms ofrapidity and reactivity of decision-making processes: over a dozen years werefor instance necessary for the discussion on anti-fouling paints and more than adecade on ballast waters.

Since maritime transportation is a fairly cheap and comparatively flexiblecommercial solution, about 62% of the world’s petroleum production (2.4billion tons) is being shipped annually (Rodrigue, 2013). Until recently, most oiltankers were of ‘single-hull’ design, meaning that a single plate separated thecargo from the seawater. Consequently, any damage to this plate meant that thevessel’s content risked being spilled into the open sea, wreaking havoc onmarine environments. Double-hull designs, by placing a second internal plate ata sufficient distance from the outer shell, were known to provide an effectiveway of addressing this risk (Committee on Oil Pollution Act 1998, pp. 115–141).Due to extra steel requirements, the additional production costs for double-hulled vessel are 16–18% superior to comparable single-hulled designs (Brown& Savage, 1996, pp. 168–171). Double-hulled tankers are also slightly moreexpensive in terms of operation costs. These extra costs are passed on customers,for whom hiring a double-hulled tanker is about 20% more expensive than asingle-hulled vessel (Washington Times, 2009).

The Unilateral Ban Decision from the USA

In 1989, the Valdez dumped 37,000 tons of oil into Prince William Sound, dama-ging at least 1800 km of coastline and killing more than 1000 sea otters and35,000 birds.16 Over 10,000 workers were mobilized for clean-up operations,costing Exxon Mobil the sum 4.3 billion dollars. This was the largest spill in USwaters and occurred moreover in a protected environment reputed for its scenicbeauty and for its wildlife and fisheries. As a result, the Exxon-Valdez attracteda great deal of media attention and forced the US administration to unilaterallyimpose double-hull requirements on all tankers cruising in US waters under theOil Pollution Act (OPA90). There is anecdotal evidence that Europeans werevery vocal against the unilateral provisions of OPA90 (Tyler, 2007) which under-mined the IMO’s regulatory monopoly and threatened to hamper global tradeby imposing different requirements in US waters than those prevailing in therest of the world.

To close what would otherwise become a regulatory gap, the IMO was forcedto take action and to impose double-hull requirements in a 1992 amendment to theInternational Convention for the Prevention of Pollution from Ships (MARPOL).Nevertheless, member states could only agree on a watered-down version ofthe OPA90 both in terms of phase-out schedule and in terms of the tonnage ofships subject to double-hulling or to phase-out. In addition, the new regulations

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13F and 13G provided a number of exceptions, for instance permitting flag statesto continue allowing middle-sized single-hulled tankers to carry heavy grade oiluntil they reach 25 years of age. Similarly, flag states could also allow largertankers equipped either with a double bottom or with double sides to operateand carry heavy grade oil until their 25th anniversary. Finally, single-hull oiltankers complying with initial MARPOL requirements regarding segregatedballast tanks could be allowed to operate until 2026. These differences presenteda very real danger for the EU, of which it was acutely aware.17 Yet, due to theopposition of flag states within the IMO, the EU was not in a position to obtainstricter international regulation.

The EU Takes the Ban onto the IMO

The argument ceased to be theoretical when the EU faced two major spills within afew years’ time. In December 1999, the 24-year-old Maltese-registered Erika, atanker with segregated ballast tanks carrying heavy fuel oil, split into two andspilt about 10,000 tons into the sea, affecting 400 km of the French Atlantic coastand killing approximately 63,000 sea birds. Less than three years later, the 26year-old, Liberian-owned, Bahamas-registered Prestige tanker sank off theNorth-Eastern Spanish coast and lost 63,000 tons of heavy fuel oil. The spill hadmajor economic consequences, for instance, leading to the establishment of fish-eries exclusion zones in Galicia which banned fishing from 90% of the coastline.These spills caused a major public outcry and tremendously increased the politicalpressure on the IMO. In 2000, the French parliament initiated a cross-party inves-tigation committee which pledged to ban ‘floating (dust)bins’ and ‘garbage ships’and explicitly called upon the French Government to use its upcoming EU Presi-dency in the second half of the year 2000 to push the issue forward (AssembleeNationale, 2000).

Still under the Portuguese Presidency, the Commission issued a Communi-cation on the Safety of the Seaborne Oil Trade (COM(2000)142) which named,blamed and shamed the IMO,18 threatened to unilaterally close the regulatorygap with the USA19 and stressed the need for accession countries to adoptand implement the EU acquis in maritime safety matters (Malta and Cypruswere both known for being sizeable flag countries). Yet, in accordance withthe founding text of the Community’s policy on maritime safety,20 the EUagreed to discuss the issue at the IMO first. Towards mid-2000, selected EUmember states21 submitted a proposal at the IMO to speed up the phase-outof single-hulled oil tankers. In a surprisingly short amount of time for standardIMO procedures,22 the MARPOL convention was duly amended to phase out theso-called category 1 ships by 2007 at the latest and categories 2 and 3 ships nolater than 2015. EU member states had initially requested an even tighter sche-dule which major maritime states successfully opposed in MEPC arguing thatthe shipping industry could not handle the rapid decommissioning and replace-ment of a large fraction of the fleet in a shorter period of time (De la Fayette,2001b, pp. 196–197). Shortly after the IMO had adopted the revision of regu-lation 13G, the EU adopted its own carbon-copied Regulation 417/2002 and sub-sequently established the European Maritime Safety Agency under Regulation1406/2002.23 Finally, only two weeks before the Prestige spill, the EU passedRegulation 2099/2002 which reaffirmed the IMO’s prominent role and whichestablished the Committee on Safe Seas (COSS) and the Prevention of Pollution

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from Ships to facilitate the incorporation of international rules into the Commu-nity legislation.

Nevertheless, the sinking of the Prestige led to a spectacular change in theEU’s strategy. Recalling that 90% of the EU’s oil is arriving by sea, the Commissionin its communication COM(2002)681 pledged for an inversion of the calendar. In afirst move, the EU adopted Regulation 1726/2003 mirroring the OPA90 (see EC/DGET, 2004, p. 23) and then announced its willingness to transfer its domesticregime beyond its borders, including bilaterally towards the countries of its neigh-bourhood if need be.24 This significantly strengthened the EU’s bargaining pos-ition when it subsequently took the matter to the IMO, to the extent that thefailure to agree would mean that the EU would implement a tighter phase-outschedule anyway—and thereby further weaken the IMO’s regulatory monopoly.Reluctant flag states were unable to withstand the pressure from an overwhelm-ing majority of IMO members backed up by the threat of secession by two largemaritime blocks (EU and the USA). As a result, the regulation 13G of theMARPOL was further amended in December 2003 (for an entry into force inApril 2005) leading to the phase-out of category 1 ships by 2005 and of categories2 and 3 ships by 2010 at the latest.

Conclusion

This concluding section sums up the main contributions that this paper makes tothe literature on global environmental governance and identifies venues for futureresearch.

First, this research strengthens the validity of the hypothesized relationbetween the legitimation of environmental governance solutions within transna-tional expert networks and their subsequent worldwide transfer via internationalorganizations. At the same time, the empirical work also reveals that not all of thefour cumulative criteria conducive to legitimation within policy networks areequally necessary. Particularly in the case of the WP29, the requirements of partici-pation and flexibility are entirely met whereas minor infringements can be ident-ified on the requirements of horizontality and inclusiveness. This logically calls foradditional research on a larger number of cases (if possible within settings thatallow variation in one criterion while keeping the other three constant) so as tomeasure the relative importance of each of these criteria.

Second, this research also underscores the limits of legitimation strategies inthe face of strong heterogeneity of interests on the part of individual networkmembers. Under such circumstances, policy networks tend to resort to more clas-sical bargaining and constraint strategies whereby compromises are exchangedand power asymmetries are mobilized. In this sense, the material from the IMOcase presented in this paper provides additional evidence that network govern-ance may take overtly asymmetrical forms (Koppenjan, Kars, & van der Voort,2009) and lead to settlements which are adopted ‘under the shadow of hierarchy’(Heritier & Lehmkuhl, 2008). More work is now needed to achieve a finer under-standing of the interplay between vertical power politics and horizontal, exper-tise-based policy networks in the field of environmental governance.

Third and somehow more philosophically, one may wonder whether theshadow of hierarchy and the impossibility to fully rule out the threat of verticalpolitics are not indicative of a fundamental flaw in the theory of communicativeaction, a theory which underpins large segments of the literature on networked

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environmental governance. Going beyond the requirement of formal equality ofpartners, researchers could investigate whether networks, as a form of social inter-action, do not necessarily yield a certain degree of structural asymmetry amongparticipants, as a result of which some positions end up being more favourableand some arguments more likely to be legitimized than others. Going wellbeyond the scope of this article, future research endeavours along these linescould rely on Foucault’s writings to reflect on networks as ‘subjectivity-producingmachines’ (or as instruments of governmentality).

Acknowledgements

I would like to thank Tobias Debiel, Rainer Baumann, Abou Jeng, Jessica Schmidt,Kai Koddenbrock and Michael Kaeding for their precious comments on earlierversions.

Disclosure statement

No potential conflict of interest was reported by the author.

Funding

This research was conducted during a research stay at the Centre for Global Cooperation Research ofthe University of Duisburg-Essen and benefitted from the kind financial support of the Swiss NationalScience Foundation.

Notes

1. It should be noted that the criteria of inclusiveness may come at the expense of the efficientinternal functioning of the network. Indeed, highly inclusive policy networks with severalhundred technical experts, ministry officials, industry representatives and civil societymembers are unlikely to be working environments propitious to swift problem-solving anddecision-taking—or even to learning and socialization effects for that matter. Some criteria aretherefore needed to restrict participation, such as an acknowledged technical expertise; member-ship in a legally constituted, duly registered association whose founding statutes attest that it hasa stake in the issues debated within the policy network. For an overview of such criteria on thebasis of which inclusiveness could be managed, see Hanf and Scharpf (1978).

2. The reliance on institutional sources is a potential source of bias in the data collection process thathas to be acknowledged—in particular due to strategic preference disclosure and withholdingfrom sensitive information. This potential bias was addressed by weighing the information gath-ered from primary institutional sources against information presented in the specialized literatureand in technical opinion pieces.

3. These restrictions mean that NGO participation in UNECE meetings is de facto restricted to repre-sentatives from the private sector. As noted by MEMA (2009), ‘Through this consultative status,vehicle and engine manufacturers, automotive suppliers, aftermarket service providers, oil andgas companies, and their industry representatives participate intimately in the research, develop-ment and validation of WP.29 regulations.’

4. In total, 55 NGOs and 151 technical experts are registered in the WP29 database – see the WP29website: http://www.globalautoregs.com/participants.

5. These include the 28 EU member states and the EU as a regional economic integration organiz-ation, countries from the Western Balkans, Eastern and Central Asian countries (includingRussia), two Mediterranean partners (Turkey and Tunisia) as well as a series of non-Europeancountries: Japan, Australia, New Zealand, South Korea, Malaysia, Thailand and South Africa.

6. As of 2013, the mutual recognition of type approvals applies to automotive parts, systems andequipment but excludes whole vehicles. To further facilitate international trade, the WP29

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established in 2010 an informal working group on the International Whole Vehicle Type Approval(IWVTA), with longer terms of reference (2010–2016). Source: UNECE (2012, p. 11).

7. Under self-certification, car manufacturers ‘certify’ that the automotive parts, systems and equip-ment comply with federal legislation but no prior verification is operated by a state agency. TheUSA and Canada operate under such a regime.

8. Most parties to the 1998 Agreement are also parties to the 1958 Agreement. The most notableparties to the 1998 Agreement which have not signed up to the 1958 Agreement are the USA,Canada, China and India.

9. For instance, a series of reforms was adopted in 2012 to further involve third countries in the 1958Agreement: Contracting Parties are now allowed to issue domestic type approvals pursuant toearlier versions of the UNECE Regulations (which is in principle not possible under the current1958 Agreement); to facilitate the participation of all countries in the decision-making process,countries no longer need to be physically present in Geneva during meetings. Source: Commis-sion Staff Working Document (2013), Progress Report on the 2012 activities of the World Forum for Har-monisation of Vehicle Regulations, SWD(2013) 276 final.

10. Examples abound in minutes and summary of meetings. To take but one single example from anEU report:

A new GTR on hydrogen vehicle safety has nearly been completed. It takes on boardelements from existing legislation in the EU, Japan, China, Korea and the USA. Whilstbeing supported by significant research efforts of all Contracting Parties, it reflects anunprecedented harmonisation effort. Challenges in connection to the different compli-ance systems found, namely type-approval (EU, Japan, and China) and self-certification(Korea, USA) have been reconciled and concessions have been made by all partiesinvolved. (Commission Staff Working Document (2012), Progress Report on the 2011 activi-ties of The World Forum for Harmonisation of Vehicle Regulations, SWD(2012)71 final)

11. In March 2011, WP29, for instance, adopted guidelines concerning alert sounds for electric andhybrid vehicles ‘that are closely based on the Japanese guidelines’—see Informal documentWP29-155–42.

12. These are composed of 10 states with the largest interest in providing international shipping ser-vices; 10 States with the largest interest in international seaborne trade; and 20 States with specialinterests in maritime transport or navigation and/or ensuring the representation of all major geo-graphic areas of the world.

13. This Convention stipulates in its art. 62: ‘The Organization may, on matters within its scope, makesuitable arrangements for consultation and cooperation with non-governmental internationalorganizations.’

14. World Wide Fund for Nature, Greenpeace International, Friends of the Earth International, Inter-national Union for the Conservation of Nature and Natural Resources (IUCN). The first threeNGOs usually send large delegations of five or six representatives at the MEPC meetings,IUCN usually sends one observer. Another NGO, the Advisory Committee on Protection of theSea, occasionally sends one member (De La Fayette, 2001b, p. 166).

15. With one single exception: NGOs may not initiate new proposals whereas states can. In practice,this means NGOs usually lobby a state to do so.

16. Spill-related figures in this article are taken from the International Tanker Owners Pollution Fed-eration Database and website.

17. See for instance:

The differences between the American system and the international system will meanthat, as from 2005, single hull oil tankers banned from US waters on account of their age willbegin to operate in other parts of the world, including the European Union (EU), and will increasethe risk of pollution in the areas concerned. [The Commission] therefore believes that anappropriate EU response is required, to take effect before 2005, an important deadlinesince it is the date from which single-hull oil tankers banned from US waters will start to be

used in European waters. (European Union website, http://europa.eu/legislation_summaries/transport/waterborne_transport/l24231_en.htm)

18. ‘It has become clear that the normal framework for international action on maritime safety underthe auspices of the International Maritime Organization (IMO) falls short of what is needed to

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tackle the causes of such disasters effectively’ (p. 4). In earlier documents, the EU was more sym-pathetic towards the IMO and did not hold it liable for possible systemic deficiencies—see forinstance:

Most observers of the maritime world agree with the view that existing internationalsafety standards are for the most part an adequate framework and therefore the continu-ing high level of risk of casualties in the shipping industry is not primarily determinedby the absence of adequate international rules, but rather by laxity in their applicationand enforcement. COM (93) 66 final, p. 10.

19. ‘It is proposed to generalize the ban on single hull oil tankers according to a timetable similar tothat applied by the USA.’ (p. 5)

20. A common policy on safe seas. Communication from the Commission COM(93) 66 final. On theIMO’s monopoly on regulatory initiative and the auxiliary role of the EU, see for instance:

This global dimension should continue to determine the approach of the Community, itsMember States and its maritime industries, which must take the initiatives required toensure that the IMO can continue to realize its worldwide objectives as to the levels ofstandards, their effective implementation and enforcement and within timescaleswhich meet the concerns of both flag and coastal States and their populations. (p. 12)

21. Belgium, France, Germany in IMO Doc. MEPC/45/7/3 and Spain in IMO Doc. MEPC 45/7/5.

22. The amendments were adopted in April 2001 and entered into force in September 2002.

23. Legally set up in August 2002, the EMSA was not yet up and running when the Prestige sank. Inaddition, as far as ship safety is concerned, the EMSA plays an implementation but not a regulat-ory function, which is left up to the IMO. The EMSA’s mission is merely to ‘monitor the work’ ofthe IMO.

24. Contrary to the USA, which could protect its coast via a unilateral ban, the European geographystrongly undermined the effectiveness of a unilateral EU ban, since most EU coastal states wouldstill be affected in case oil spill caused by oil tankers departing from or aiming at Russian orSouthern Mediterranean terminals. The extension of the ban to neighbouring countries was there-fore of crucial importance to make credible the threat of EU unilateral action. In a Press ReleaseIP/03/1421, DG TREN indicated after the adoption of the EU regulation and prior to the IMOmeeting:

The EU is therefore now focusing on the international arena. Pending a decision which isacceptable to the EU in December and given that the new international rules will notenter into force until 16 months after their adoption, the Commission will continue toconclude urgent bilateral agreements with the countries closest to the EU, in particularRussia and the Mediterranean partners, which also share our concerns about better pro-tection for coastlines and improving maritime safety.

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