Institutional Resources. The first ‘wave’ of ‘access to justice’ reforms in the 1970s focussed on providing legal aid to those unable to afford legal services. Such reforms were undertaken, as the high cost of legal services was perceived to be one of the greatest obstacles to access to justices in many countries.46 For even where a satisfactory legal framework is in place, potential litigants may only initiate public interest suits where they possess the necessary institutional and financial resources, more often than not lacking in the majority of countries. Legal aid programs in Western countries such as Australia and the UK are usually directed towards areas of private law, and any support for environmental public interest suits has been the exception rather than the rule. Not surprisingly, governments have been generally reluctant to fund such legal actions given they are often directed at their own regulatory agencies.47 In the United States environmental public interest law firms have been funded largely by membership organisations including the Conservation Law Firm, the Environmental Defense Fund, the Sierra Club Legal Defense Fund and the Natural Resources Defense Council. Most of these membership-based organisations started out as fledgling, volunteer groups, but by the 1990s had evolved into influential national organisations with considerable membership bases and organisational incomes.48 In developing countries, the necessary political and economic conditions for such organisations generally do not exist, yet in many instances environmental public interest groups in such countries have been able to obtain funding from foreign aid agencies, in addition to using volunteer assistance. The issue of institutional resources is also relevant to the ability of the judiciary to perform the functions discussed above. In the institution building model developed by Xxxxx and Xxxxx and applied by Xxxx to judicial institutions, the internal resources of an institution are a significant 45 Xxxxxxxx, "Public Interest Environmental Law- Commentary and Analysis," p303. 46 Xxxxxxxxxxx and Xxxxx, "Access to Justice: The Worldwide Movement to Make Rights Effective," p10. 47 Xxxxxxxx, "Public Interest Environmental Law- Commentary and Analysis," p311. 48 For example, in 1992 the National Resources Defense Council had an income of $18 million and a membership base of 170,000. A significant role has also been played by smaller public interest law firms, including environmental law ‘clinics’...
Institutional Resources enforcement power, managerial skills and authority With respect to the resources that IOs have available, two perspectives have evolved as to which matter most. These are known as the enforcement and man- agerial perspectives. According to Xxxxxxxxx and Xxxxxx (1998: 681), they ‘reflect different visions of how the international system works, the possibilities for gov- ernance with international law, and the policy tools that are available and should be used to handle implementation problems’. In recent years, a third perspective has become more prominent which stresses the authority and legitimacy of IOs and is known as the normative perspective (see Table 1.1). The enforcement approach suggests that implementation of, and compliance with, international agreements is best ensured through coercive means. Accord- ing to Downs et al. (1996: 385), who are major proponents of the approach, a ‘punishment strategy is sufficient to enforce a treaty when each side knows that if it cheats it will suffer enough from the punishment that the net benefit will not be positive’. Drawing on insights from political economy, game theory and collective action theory, the enforcement perspective rests on a consequentialist logic. States are rational actors that weigh the costs and benefits of entering into an international agreement, adhering to it and taking action in accordance with it. Whether states are willing to comply and implement particular aspects of the international agreement hinges on the incentive structure. They are more likely to stick to their commitments, pass domestic laws or establish institutions if the benefits outweigh the costs but more prone to remain inactive and stray from the terms of the agreement if the likelihood of this being detected is minimal. The enforcement approach would lead us to expect that IOs can influence and ensure implementation, if they have coercive measures at their disposal. Two such tools are particularly crucial: monitoring and sanctioning (Downs et al.
