Transparency and Business in International Environmental Law.
Workshop. Institut de Hautes Études Geneva and Universität Basil. Thun, Switzerland, Jan. 18-21, 2012.
PowerPoint PRESENTATION HERE: Transparency And Business In International Environmental Law 1-18-12
ASSOCIATED PAPER: Backer, Larry Catá, Transparency and Business in International Environmental Law (January 12, 2012).
Abstract: This article considers the role of transparency in corporate governance, focusing on the regulatory forms in international environmental law and policy. It is divided into five sections. After this Introduction, Section II considers conventional sources of international environmental law for its transparency effects on the environmental impacts of business activity, looking at both hard law and soft law frameworks. While there is a substantial and growing body of public international hard and soft law frameworks in environmental governance, much of that is focused on the role of states and the information and participation rights of affected communities in the political and regulatory processes that have environmental impacts. Section III then critically examines transparency in international and transnational regulatory and governance regimes outside of environmental governance frameworks. The focus is on regulatory regimes that might have an impact on environmentally related transparency involving business activities. Section III.A considers public sources of transparency regulation, focusing specifically on recent efforts at transnational regulation of economic actors. It concentrates on two examples—the OECD framework and the recently endorsed Guiding Principles of Business and Human Rights. Section III.B examines transparency at the intersection of domestic and international law, focusing on the projection of domestic law outward from the state. It concentrates on the environmental transparency effects of extraterritoriality, of the incorporation of international norms within domestic legal orders, and the internationalization of domestic rule frameworks. Section IV then considers transparency and governance beyond the state. For that purpose three distinct regimes are identified and examined. Section IV.A examines hybrid governance efforts—the ISO and Global Compact systems. Section IV.B considers private non-corporate governance regimes, principally the GRI and product certification programs. Lastly, Section IV.C analyzes private corporate governance transparency regimes that include elements of environmental disclosure. Section V then examines transparency inaction under these potential transparency enhancing governance frameworks. Section V.A analyzes the potential and tensions in transparency are examined more closely in the context of environmental disclosure by BP during the time of the Deepwater Horizon explosion and oil spill of 2010, which also suggests both the possibilities and limits of domestic and international law, in its transparency aspects. Section V.B examines transparency in environmental activities within the overall disclosure and sustainability reporting of a large multinational corporation—Wal-mart Stores, Inc. Section VI then analyzes the results. Section VI.A considers environmental disclosure within the context of regulatory incoherence and its effect on the utility of transparency as both a means of conveying information to corporate insiders and outside stakeholders and as a means of permitting engagement and participation in corporate decision-making affecting stakeholders. Section VI.B ends with an analysis of these disclosure structures in the context of the framework developed in Section I with particular attention on the limits of transparency as both norm making and technique within the principles of property.