Disinfectants, Nudes, and Other Adventures

Colorado Environmental Law Journal Colorado Environmental Law Journal

Volume 13Number 1

Article 4

Disinfectants, Nudes, and Other Adventures Disinfectants, Nudes, and Other Adventures

Timothy E. Wirth

Disinfectants, Nudes, and Other * Adventures

Timothy E. Wirth**

I. INTRODUCTION

Thank you, President Hoffman. David Getches asked me if I would come and talk about the role of nongovernmental organizations (NGOs) and I am pleased to see so many of you here. Thank you very much for coming. It is also very impressive to hear Betsy Hoffman's description of what the University of Colorado is doing in its environmental program, its interdisciplinary nature, and the law school's important role.

The title of my talk is Disinfectants, Nudes, and Other Adventures.

I will explain as we go along what it means.

There has been a lot of discussion of this extremely interesting topic, NGOs and the cartography of governance. But most of the things written have been, of necessity, essentially descriptive in nature. This is because it is a new and complicated topic. I recommend to you a new

piece written by Hilary French' who is the director of the Global Governance Project of Worldwatch Institute, a think tank in Washington. She described the evolution of environmental governance and focused particularly on the 1992 Earth Summit in Rio de Janeiro.

Probably the best piece on the subject is written by Jessica Matthews and is found in Foreign Affairs.2 Jessica is now president of the Carnegie Endowment for International Peace and is an extraordinarily talented and able person. Her clear and interesting piece reminds us of the advent of the nation-state and the disappearance of a world that looked very different. Prior to the Treaty of Westphalia of 1648 and prior to the arrival of nation-states, we had a world that looked something like it does today. There were a variety of overlapping jurisdictions and one wondered who was in control. Was it the church? Was it the feudal fiefdoms? Was it the guild system? Was it the large landowners? Were the small private armies that overlapped each other in a set of uneasy alliances throughout Europe in charge?

People were trying to break through this confusion and figure out how to govern, and along came the nation-state. This dramatically changed the face of Europe and the way we think about politics. It moved the way that we organize ourselves away from a horizontal arrangement into more of a vertical structure in which hierarchies began to develop. The boss was on top and armies were responsive to their boss. Political systems began to support economic systems. Gradually, it became more efficient for sovereign states to assume responsibility for interactions with other sovereign states. What happened within a sovereign state was the business of that state. This was a relatively simple, straightforward, and quite rational world; far different from the world now emerging.

Today, we have a world that is transforming itself into something that looks more like what we had before 1648. For example, the NGOs of this era resemble the guilds of the seventeenth century. Like the guilds, they have acquired expertise, power, and credibility. They can grant their seals of approval and endorse various kinds of activities. Their communications run horizontally rather than vertically. And the spread of information within these networks-the guilds of yesterday and civil society today---creates a political power for these institutions.

Then, as today, a whole series of new threats were emerging and somehow had to be ordered. Today, the new threats spill across national

boundaries and transcend the capability of individual states to address them. Drug lords in Central and Eastern Europe or in South America have nothing to do with nation-states except to try to buy them for their own ends. Terrorist groups do their foul work in Sri Lanka, Northern Ireland, Colombia, and across the Middle East. Crime networks cut across state lines for their own purposes in much the same way that environmentalists, pressing environmental issues that affect the global commons, cut across those traditional sovereign lines. So the new world that is emerging reflects a new kind of chaos, like the world of 350 years ago. The challenge today is to figure out, once more, how to sort through a changing world order.

Betsy, in her kind introduction, pointed out that I had an assignment at the State Department as the Undersecretary for Global Affairs. It was a new job put together by President Clinton and Vice President Gore. They were concerned with the new threats to national security and how to give greater weight, within the structure of the State Department, to a new set of crosscutting, transnational challenges-narcotics, human rights, refugees, population, environmental issues, and so on. These matters were lumped together under what my friends called the "Undersecretary for Impossible Problems."

While the issues were not new, addressing them systematically and institutionally in the nation's diplomatic structure certainly was. At the Secretary's weekly staff meetings, I can remember explaining to skeptical Foreign Service officers that there was a whole new set of issues they had to think about, and that the new actors in international affairs needed to be brought into the policymaking process. In trying to put some order in how we at the State Department would organize ourselves, I use two columns to explain the State Department's point of view. On one side was the traditional State Department, built around the traditional interactions between states-foreign ministry to foreign ministry. But global issues were not only new and emerging, they also required interaction with a whole new set of actors-businesses, nongovernmental organizations, and other elements of civil society. The old way of doing business was highly vertical and concentrated, like a stovepipe. Most information and communication was classified and controlled by Foreign Service officers.

Under the new era unfolding, the closed system is increasingly obsolete. Bilateral relations among countries will always persist, but global issues are opening up the system-and challenging it. The Internet helps illustrate the point. Until only the last couple of years, the State Department didn't have everybody on the Internet because of the problems of classification. How can you be sure there is a wall between the necessary classified military and political information on the one hand, and the

massive amount of information and communication that now occurs unfettered on the Internet? But firewalls alone cannot explain the State Department's inertia. Like many institutions, I am not sure that the Deinformation and new partment fully comprehended how profoundly actors in international relations were changing the underpinnings of diplomacy.

Until recently, officers in the State Department were experts in a particular field or geographic region. There were Europe experts, Asia experts, and Middle East experts. That was the kind of expertise Foreign Service officers were expected to have to get hired and promoted. Today it's a very different kind of a structure. The people who are going to be successful as foreign service officers look more like Secretary Colin Powell-managers who are able to deal with a variety of ambiguous situations and to manage public issues. The old State Department was very nonpolitical and not engaged in the issues of the greater political world. The new State Department, by necessity, must be very political. Not in a partisan sense, but in terms of engaging the constituencies that support the institution and in terms of engaging the flow of information that is necessary to manage major international issues.

When I came into the State Department in 1993, Secretary Warren Christopher asked me to set up the new office of global affairs. I thought we ought to hear from all the affected constituents so I put together a daylong conference at the State Department and sent invitations out to about six hundred NGOs around the greater Washington area representing a wide variety of interests and activities. We were going to think conceptually about what this new office would do. We would meet together, break out into small groups, and then come back together at the end of the day. The Department has heavy security and you can't move around in the building without a badge. So when I presented the invitation list to the building officials and told them that I had invited six hundred NGO representatives to a conference in the department's auditorium they looked at me and said, "What? You know we've never done that before." And I said, "Well, that's alright, we can manage it. They can meet here and then break up into rooms on the first floor."

But it was easier said than done. The Department didn't want a large group coming into the building through the main entrance, so we opened up a seldom-used side door. This entrance led into a long chute, which ended at a security check. After coming through, one NGO said, "I felt like a scruffy cow, coming through a cattle chute, and being disinfected."

With that as background, I want to say that we're in a time of enormous change, with all kinds of new problems. We are looking for new

forms of government and governance to try to handle this. Let's think about how we might clump together the activities of NGOs. I suggest that we divide them into four categories and ask how well they have done in each of those four areas: (1) domestic; (2) international; (3) soft laws; and (4) the nether side. Lets look briefly at each of those four categories.

II. DOMESTIC

On the domestic side, NGOs have played a number of roles in the United States. We have learned how to engage, involve, and make nongovernmental institutions a part of what we are doing and where we are going. By nongovernmental institutions I am talking largely about nonbusiness institutions. We could also ask how the business community is responding to and engaging these problems of governance. The business linkages with the environmental community are becoming interesting and in many ways they are very progressive in moving outside channels where governments have traditionally operated. That is probably worth another conference.

As advocates, the environmental NGOs are bringing to government decision making an expertise and motivation to act that governments often lack. A good example is the matter of persistent organic pollutants (POPs). These chemical compounds are now pervasive in the environment. POPs cross borders, are in the oceans and the atmosphere, and are found at the North Pole. We weren't able to measure these compounds in the environment fifteen years ago but today we can. Complicated methods of measuring minute quantities and the new computer revolution have allowed us to know more about these compounds.

The movement concerning POPs has resulted in a major treaty, the Stockholm Convention on Persistent Organic Pollutants.3 The Convention addresses how we deal internationally with DDT and other chemicals that are pervasive in the environment and whose build-up is harmful to human health. The POPs treaty bans outright eight pesticides, establishes a long-term goal of eliminating DDT use, prohibits PCB (polychlorinated biphenyl) production, and aims to assist developing counties in eliminating POPs.

Where did this concern and the motivation to act come from? I believe it can be traced to a book written by three interesting people in the United States. Theo Colborn, who is from Western Colorado and is now

senior scientist with World Wildlife Fund (WWF), was a pharmacist who traveled around the Western Slope substituting for two or three weeks at a time for other pharmacists who were on vacation. She began to see different kinds of recurring problems among her clients and became interested in why kids became ill with particular diseases. She began to study this and went on to get a Ph.D. Today she is a respected researcher on the impacts of chemicals on children's health. Theo wrote a book called Our Stolen Future4 with Dianne Dumanoski and John Peterson Myers. Dianne is a fine journalist with the Boston Globe who got breast cancer and, wondering where that had come from, started researching environmental pollutants and their impact on health. The third author is Pete Myers, a bird biologist and Director of the W. Alton Jones Foundation. Pete had begun to see various changes in behavior of birds and wondered about the causes. The book documents the health and environmental threats created by man-made chemical contaminants that interfere with hormones in humans and wildlife and explores the scientific discovery of endocrine disruption.

Understandably, Our Stolen Future alienated the Chemical Manufacturers Association, and served to create a debate. Suddenly POPs were on the map, not because of governments or industry, but because these three individuals used the power of their organizations-an NGO (the World Wildlife Fund) a newspaper, and a private foundation-and promoted the issue. This is an excellent example of how advocates outside government, with a set of ideas and clear direction, were able to organize themselves and change policy dramatically. Their ability to change policy was a result of their capacity to bring the information together and advocate effectively.

I will give you another example of the ways in which NGOs operate. As Undersecretary, I was asked to go to New York and speak to the Securities Officers Association, which is made up of representatives of businesses concerned about the security of their personnel around the world. The group was focused on issues-like the threat of terrorismthat affect how they operate in a rapidly changing world, but they also wanted to understand the protests that some businesses were facing from environmentalists. They wondered whether to build alliances with the environmental NGOs or if they should work through the government to deal with environmental groups. When you see the security guards who are in most buildings in this country, they represent an enormous new security apparatus and it is an entire industry that I had not imagined existed.

One environmental issue after another has become part of public policy because a group of people came together with a similar point of view on a particular issue. David Getches did that by establishing, twenty-five years ago, the first real advocacy group related to Indian law. It has grown and changed the law because of the dedication of a few people pressing the issues. We have accepted the advocacy role of NGOs in almost all political operations. Nowadays, it's a matter of form to engage NGOs. No politician can survive without having town meetings and without communicating with various interest groups. Those interest groups include more than just the economic interest groups that were consulted twenty-five years ago. Increasingly, grassroots organizations come in with their particular points of view and when they are lashed up with similar groups around the country they can exert a tremendous force. So, domestically NGOs have a very real and well understood role.

III. INTERNATIONAL

How does the evolution of NGOs domestically compare to what is going on internationally? International treaties and international organizations traditionally have been viewed as affairs of sovereign nations. An international treaty is based on two nations getting together and focusing on their own general, political, and military purposes. But, as in the domestic world, a new set of players is beginning to pursue new issues such as persistent organic pollutants, climate change, and forestry and fishery practices. They are trying to place those issues on the agenda, but this creates a tension with traditional vertical national sovereignty. Official negotiators are used to dealing with political and military issues, but as the world gets smaller, we are going to see more and more NGO involvement, even in these matters.

In environmental matters, the NGO role is increasing as we come to understand the importance of the global commons and the set of global environmental issues for which traditional sovereignty does not suffice. Traditional sovereignty doesn't work on the oceans, the atmosphere, fisheries, in whaling conventions, or in persistent organic pollutants. These problems don't recognize where one sovereign state ends and another one begins. So it is the framework of the global commons that forces this debate. We have begun to deal with it better.

Probably the first great success in this area was the Montreal Protocol,5 the agreement on chlorofluorocarbons. When it became clear in the 1980s that the ozone layer was being eaten away by freon and other substances, we reached an international agreement. The scientific community had recognized that there was a problem and those scientific efforts might have been obscured, and perhaps unrecognized, by political leaders were it not for an incredible network of international environmental organizations that publicized and prioritized the issues of ozone depletion. The industry quickly came on board, recognizing the validity of the science and the political power of the issue. This was not partisan politics, but political persuasion, that moved governments to understand the importance of getting on the right side of a new environmental issue, and that this would be good politics. All of this was done in the conservative times of the Reagan and Bush administrations. By raising national awareness, NGOs got our government to put its shoulder behind the issue. The Montreal Protocol is a good example of NGO activity using science and publicity to engage a national government and, in turn, promote international action.

Arctic whaling is another good example of NGOs' international influence. Governments finally agreed to create an Arctic, and now an Antarctic, reserve where whaling is not allowed and great international sanctions are imposed by the International Whaling Commission. Although there are constant efforts to break the agreement by the major whaling nations, the agreement has generally been a success.

There are other examples of international NGO activism. The most interesting one is the emerging climate issue. How are we going to deal with all of the competing economic and political complications? I believe that ultimately we must obtain some kind of agreement on the value of carbon. Until we agree on the valuation of carbon we are going to be stuck in collateral debates as we are today. Where will this be played out? I can guarantee you it's not going to be resolved in the Department of Commerce. The work on this enormously complex problem will not be done in the halls of government, but it will be figured out by economists working together with groups of environmentalists and industry representatives, who will then take their analysis to their governments. The stakes are huge and the coalitions of businesses being brought together on this are also enormous. This is the most serious global problem we have.

So in the international area we can cite example after example of the emerging role of NGOs. There is a major role for NGOs in these international activities, where the politics are even more interesting and more complicated than they are with domestic issues. The mixture of science, economics, and politics gets especially fascinating. Young, well-trained lawyers as well as economists are going to be absolutely essential as managers of these very complicated issues.

IV. SOFT LAW

The third point that I would like to make is that NGO activity in these new global issues has created a kind of soft law. We do not usually have formal agreements or other international laws that are enforceable by sanctions. Violators don't get taken to court and don't have economic penalties imposed against them. There is no set of sanctions that makes soft law work. International guidelines, for instance, can come from nonbinding resolutions of the General Assembly of the United Nations (UN), but the UN doesn't have the capability to follow up and to get everyone to comply. However, there is a general agreement and recommended practices are established. Let me give you a few examples.

On the environment, there is a group called the Global Reporting Initiative. It is led by an extremely talented and multifaceted young man named Robert Massie. Bobby went to Princeton, earned a theology degree at Yale, and a Ph.D. from Harvard Business School. He wrote an award winning book on the impact of international sanctions on the change in the policies in South Africa. He also has a congregation in Somerville, Massachusetts, where he preaches every Sunday, and he ran for Lieutenant Governor in Massachusetts in 1996 and 1998. He has decided that he wants to bring his skills to bear in trying to get the world to reach an agreement on the reporting that companies should do on how they impact the environment. So he put together the Global Reporting Initiative, starting with a number of companies in this country. General Motors got on board early. He got eight or ten other companies to agree to participate and then he took it global. He now has seventy-five major global corporations working on it. This is a totally voluntary effort and there are no sanctions involved. Slowly but surely, they are establishing standards for emissions into the atmosphere, for energy use for their products, and are dealing with other complicated and intriguing questions.

Recognizing that information is power, we at the United Nations Foundation have supported this kind of activity. It is an interesting way to try to help NGOs and the business community to come together, and

we can hook them up with the United Nations. The Secretary-General has developed a program called the Global Compact to try to provide specific standards that can be agreed to voluntarily by businesses around the world with regard to environmental and human rights activity. This is part of the new soft law. Nothing is enforceable; it is a set of guidelines. But it will have force if it is something that people rally behind.

Just yesterday, I was on a telephone conference call with Bill Gates and several journalists. We were discussing how our two foundations could develop a balanced program on AIDS. The issue was how to assure that the pressure to treat people already sick with AIDS does not overwhelm the international AIDS debate. Politicians tend to respond to constituents who are sick because people who are well don't generally speak out. If we focus on treating sick people and develop antiretrovirals and other medicines, we are still not solving the problem of people contracting AIDS in increasing numbers. We must also get upstream on the prevention side. When the richest man in the world lays out what he thinks the guidelines ought to be for a balanced program related to AIDS, his statements and perspective becomes a kind of soft law.

A third example of soft law being made is the World Commission on Dams. Over the years there has been a great deal of difficulty trying to determine when and where we should build a dam and when and where we should not. The best examples of questionable projects are dams in Nepal and India, the huge dams the World Bank funded in Brazil, and Three Gorges in China. We can also cite several projects in the United States. Mega-economic projects may yield mega-economic returns or may yield negative returns. How do we anticipate and avoid negative consequences?

A few years ago a leading economist from India put together a group to consider what the standards ought to be for building dams. He developed an informal public policy network, including construction experts, economists, and political people, to put together recommendations. The report of the World Commission on Dams just came out.6 The World Bank thought the effort was a great idea in the abstract but now that it has the report, the Bank must face many tough questions that it has avoided in the past. Again, a new kind of soft law is being developed, without formality or sanctions. It is a way of giving people a sense of what is and is not acceptable behavior.

V. THE NETHER SIDE

Finally, we look at the nether side of the role of NGOs. This is the fun political side. The environmental NGOs are learning to be aggressive in keeping governments accountable. Again, governments would be happy to do business in the traditional fashion, with representatives from certain interests who shut the door, cut the deal, and go home. Going into Seattle, the World Bank and the forces behind World Trade Organization (WTO), particularly the U.S. Treasury, were pushing a process called Multilateral Agreement on Investments (MAI). This was to assure that there would be no barriers to cross flow capital-impediments to investments going from one place to another. It would prevent, for instance, a country from determining that a particular kind of a timber investment would have to take into account environmental values, or a particular kind of energy investment would have to factor in the impacts on the environment. These would constitute nontariff barriers to trade and the MAI would effectively provide that only economic matters could be considered. The documents for this got leaked in the preparations for the Seattle meeting.

There were some interesting conceptual and thoughtful discussions leading up to Seattle that came out of the international labor movement and the international environmental community in an effort to understand what the proposed agreement meant. Organized labor and the environmental community put a huge amount of pressure on the Seattle meeting, developed some very thoughtful position papers, and brought a large number of demonstrators to Seattle. Unhappily, their constructive concerns were taken over by a few people who hijacked the Seattle meetings; Seattle was shut down and much of what could have been an enormously constructive dialogue got lost in the panache of a few violent people.

Since Seattle was shut down, the more violent left has been able to shut down an increasing number of these international discussions and we have lost much of the ability to bring people together in these international fora. The positive side of it is that the WTO finally got the message that there are some other issues that they have to think about.

Another example of the nether side involves the engagement of Monsanto and environmental groups over genetically modified organisms (GMOs). Monsanto had dramatically overstepped the bounds of legitimate political advocacy, and were pushing GMOs into markets that did not want them, and consumer and environmental groups reacted. In December 1996, at a large international gathering in Rome, Secretary of Agriculture Glickman and I were speaking on agricultural policy on behalf of the U.S. government. Included was a heated debate focusing on

how to deal with trade and hunger issues related to agriculture. GMOs had not been part of the debate nor anywhere on the scene. We were sitting at a table at the front of an auditorium filled with press who were asking questions. As we were laying out the U.S. position, three women suddenly appeared behind us without a stitch on-nude! The cameramen were having a field day. The three women that came in got the world's attention about GMOs, and in a very graphic way. They and their colleagues were handing out materials about GMOs and the actions of a United States company, Monsanto. Neither Glickman nor I knew which way to look-all we knew was that every camera was focused on the three women standing behind us. And we knew that every story and photo about the conference would be about the protestors and their position. This was the nether side-constructive and hilarious. Secretary Glickman and I were laughing, but the protest got the world's attention and focused the United States on the need for negotiations about GMOs. The result? Gerber, for example, has stated that it would not have any genetically modified organisms in any of its baby food. They did not call for evidence; they just made the decision that they didn't want to take it on politically.

VI. GOVERNMENTAL RESPONSE

Finally, how are governments absorbing all of this? The United States is doing pretty well. Politicians and most levels of government now understand how to deal constructively with the nongovernmental movement, and they have become a constructive, useful, and permanent part of the American political landscape.

Internationally, governments are not doing as well. Foreign ministries, traditionally the most conservative of all the ministries, appear to have the most awkward time dealing with these new players. The British training in the Foreign Service starts with the cardinal rule: "do no harm," and most foreign services around the world follow the British model of organization. What is the best way to do no harm? Do nothing. The UN is a prize assignment, the capstone of a career, and to arrive there and represent one's country at the United Nations, a foreign service officer usually has to spend twenty to twenty-five years working his or her way up in a very conservative agency. So by the time most arrive at the UN, they have done well by being very cautious. So it is an institution that is really hard for NGOs to penetrate. Fortunately, this is changing, and a newer breed of younger more aggressive diplomats are being sent to New York-in part because these jobs are more complex and the new constituencies (NGOs) are often more contentious. Also, the UN

has some truly great leadership there with Secretary-General Kofi Annan. Mr. Donald Holland also has taken on significant responsibilities. Dr. Gro Bruntland is at the World Health Organization and Klaus Topfer at the United Nations Environment Programme. The UN now has some terrific leadership to push change down from the top. With NGO activity pushing change up from the bottom, change is rapidly coming.

VII. CONCLUSION

The intellectual, political, and economic challenges of all this are enormous. Who will meet them? Where are the young people who will be the new leaders? It is disturbing to me to see the sharp drop-off of young people who say that they want to become engaged in their government or to go to work in public service. We need to figure out how to describe to young people what a career in public service can be. What will you do if you work for the Environmental Protection Agency, or the Department of Justice, or the State Department? You are not going to be performing a lot of traditional functions. You are not going to be engaged in traditional bureaucratic behavior for the next twenty-five years. You will be trying to manage huge issues whether you are in government or in an NGO.

Today, there is another side of public service too-in NGOs. They are indispensable and-like government-their effectiveness depends on the quality of the people in them. That is what's fascinating and what presents a wonderful challenge. For schools like the University of Colorado Law School and others, the challenge is to reach out to young people and communicate that this is the world that can be theirs, that they are not going to make a fortune doing it, but I can guarantee that becoming involved in this is as fascinating as anything that you can ever do. And where else are you going to get a chance to try to save the world?

Thank you all very much.

--- FOOTNOTES ---

Part of the Environmental Law Commons

* Based on the keynote address delivered on April 7, 2001 at the University of Colo-

rado School of Law, for the symposium, A Cartography of Governance: Exploring the Province of Environmental NGOs presented by the Colorado Journal of International Environmental Law and Policy.

** Senator Wirth currently serves as president of the United Nations Foundation. Prior to his current position, Wirth was Undersecretary of State for Global Affairs and Counselor of the Department of State. He also served as both a Senator and Congressman for the State of Colorado. While in the Senate, his committee assignments included Armed Services, Energy and Natural Resources, Budget and Banking, Housing, and Urban Affairs. As Congressman, he was Chair of the Subcommittee on Telecommunications, Consumer Protection and Finance, and the Energy and Commerce Committee. He was national co-chair of the Clinton-Gore presidential campaign in 1992. Wirth has a B.A. and a M.A. from Harvard, and a Ph.D. from Stanford University.

1. HILARY F. FRENCH, VANISHING BORDERS: PROTECTING THE PLANET IN THE AGE

OF GLOBALIZATION ch. 10 (2000).

2. Jessica T. Matthews, Power Shift, 76 FOREIGN AFF., Jan. 11, 1997 at 50.

3. United Nations Environment Programme (UNEP): Stockholm Convention on

Persistent Organic Pollutants, May 22, 2001, 40 I.L.M. 532.

4. THEO COLBORN ET AL., OUR STOLEN FUTURE (New York, Dutton 1996).

5. Montreal Protocol on Substances that Deplete the Ozone Layer, Sept. 16, 1987,

26 I.L.M. 1541.

6. World Commission on Dams, Dams and Development: A New Framework for the World Commission on Dams, at

Decision-Making, The Report of http://www.dams.org/report/ (Nov. 16, 2000).