view of the concept of energy security and enunciates ... the international and national sphere, these non-legally ... trading, Joint Implementation and the Clean ...
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Book Reviews Energy Security: Managing Risk in a Dynamic Legal and Regulatory Environment, edited by Barry Barton et al., published by Oxford University Press, 2004, 506pp, £79.50, hardback. This is a timely book. Energy security concerns have waxed and waned in the public’s attention. During the 1960s a series of devastating oil tanker spills triggered the negotiation of the MARPOL Conventions, followed in the 1970s by OPEC’s assertion of control over petroleum pricing and the consequential Western hysteria over impending energy supply shortages. Recently, the spike in international oil prices, the threat of terrorist sabotage of energy infrastructure in the Middle East, and the shadow that global warming has cast over our fossil fuel-driven economies, have all made energy security again a pivotal policy concern of governments worldwide. Energy Security offers many excellent analyses of the regulatory and policy challenges involved in energy security in an increasingly deregulated, global energy market. Taking an interdisciplinary and comparative law approach, the editors cover a smorgasbord of themes and practices across numerous jurisdictions. They define ‘energy security’ as ‘a condition in which a nation, and all, or most, of its citizens and businesses have access to sufficient energy resources at reasonable prices for the foreseeable future free from serious risk of major disruption of service’ (at 5). From this perspective, the contributors see
many threats to energy security, ranging from climate change and a higher societal awareness of environmental constraints, to traditional problems associated with potential supply disruptions, price fluctuation, and threats to infrastructure safety. The nature and severity of these concerns varies somewhat depending on the type of energy (oil, gas, coal, electricity, nuclear, and renewable energies). In terms of structure, Part I of this weighty tome begins with an overview of the concept of energy security and enunciates the salient issues and themes of the book. There follow several thematic chapters, which include analyses of energy security claims from an environmental perspective and a broader geopolitical analysis of energy security. The four principal energy security issues identified are: security of supply, security of demand, reliability of energy supply, and physical security of energy installations and personnel. Part II canvasses a wide variety of international, regional and national approaches to energy security, looking at the divergent experiences of individual countries such as New Zealand, Canada and Germany. The approach used in most of the chapters is to introduce the economic and historical context of each jurisdiction’s energy security concerns, followed by a specific analysis of the legal provisions concerning each of the main energy sectors. This involves review of regulation, organization, and planning for energy security and related purposes. Quite often, energy security law is shaped by the conflicting forces of market liberalization, environmental protection and competition policy. Part III comprises two final chapters, the
penultimate contrasting the various national and regional approaches and analyzing cross-sectoral issues, whilst the concluding chapter assesses future trends in energy security policy and regulation. The contributors show, in various ways, how law plays a cardinal role in energy security policy. Principally, it structures and facilities energy markets through the protection of property and contractual rights, and enables environmental and consumer policy concerns to be incorporated into energy markets. Energy planning, price controls, subsidies and restrictions on energy exports are some of the traditional legal techniques used. More recently, the break up of state-owned monopolies in favour of competitive electricity and gas markets in many countries (e.g. New Zealand and Britain) has been made possible by legislative change and regulation. Hammer’s chapter highlights the crucial role of law in creating investment incentives in a liberalized energy market. Law has also been necessary to advance consumers’ needs (e.g. citizen entitlements to supply) and environmental concerns (e.g. environmental taxes and energy efficiency labelling). The book reminds us that ‘poor regulatory design can be a cause of energy insecurity’ (at 460), and the case studies reveal various examples of where the legal framework could be improved – such as constitutional restrictions on private investment in energy infrastructure, as used in some Latin American countries. In the discussion of the role of law, it would have been helpful if the contributors had given more attention to other sources and structures of
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governance, such as the environmental codes of conduct and standards developed by energy companies. Governments do not hold a monopoly on law-making. For example, in the international oil exploration and production industry, the guidelines and standards of the International Association of Oil and Gas Producers (OGP) and the American Petroleum Institute are particularly influential. The OGP’s environmental guidelines regarding onshore oil operations (exploration, production and decommissioning) have been quite useful in emerging economies that lack any suitable system of environmental law per se. In both the international and national sphere, these non-legally binding standards have the potential to ‘harden’ into binding law. For example, Texaco’s procedures for the exploratory drilling of the Dao Ruang site in Thailand in 1993, conducted according to the company’s Worldwide Exploration and Production Environmental Practices, were used by the Thai Government as a model for drafting the Ministerial Regulations concerning Petroleum Environmental Management. Beyond the book’s focus on energy security, the contributors raise wider questions about modern economic and environmental governance. Energy security involves theories about the roles of the state and market, and this book captures many of the tensions between market liberalization and state intervention. Market deregulation is applauded for enabling more investment in energy supply, and promoting efficiency and consumer choice through market competition. Yet the inability of markets to capture adequately the externalities of climate change and other environmental hazards creates countervailing pressures for a reassertion of state intervention through environmental regulation. Market signals of scarcity do not seem to recognize global climate constraints and the need for greater investment in
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renewable energy. How the ‘uneasy relationship between the[se] two policy factors’ (at 470) could be resolved should have been explored more thoroughly by the contributors. The Kyoto Protocol’s flexible economic mechanisms – emissions trading, Joint Implementation and the Clean Development Mechanism – are examples of the sort of policy instruments that may enable this tension to be managed. At a national level, there are innovations such as the tradable renewable energy certificates in Australia and the UK. Disappointingly, only Lucas’ chapter on the Canadian experience discusses the Kyoto Protocol context to energy security in any detail. Overall, this book provides a significant contribution to scholarship on energy security policy and law. Its interdisciplinary and crossjurisdictional focus makes it relevant to an international audience. Energy Security will likely become staple reading for students, academics and policy-makers in the field of energy matters for quite some years to come. Professor Benjamin J. Richardson Osgoode Hall Law School, Toronto
Environment and Statecraft: The Strategy of Environmental Treaty-making, Scott Barrett, published by Oxford University Press, 2003, 427pp, £27.50, hardback. Despite the flurry of international environmental treaty-making since the early 1970s – presently there are well over 300 multilateral and bilateral treaties – the global environment according to most criteria has hardly improved. The mass of environmental treaties may have slowed and moderated the worst
excesses, but not halted the overall negative trajectory. In a global chessboard of competing State powers, coupled with the amorphous influence of trans-national corporations and other non-State economic entities, international environmental agreements barely seem able to change behaviour. Those treaties that enjoy broad international participation tend to do so because they do not require much from States and lack enforcement machinery. Conversely, the more ambitious environmental treaties, which contain tough environmental standards and credible compliance sanctions, attract few States. Most academic literature on the subject of reform is long on rhetoric and morality, but short on practicalities. In this context, Professor Scott Barrett’s Environment and Statecraft is a hugely important book. He explains why international treaties are needed to protect the shared environment, and why some treaties succeed while others fail. Taking an instrumental and economic approach to the problem of international environmental cooperation, Barrett offers a hopeful thesis, revealing the structural weaknesses of those many treaties that have failed and unearthing the key ingredients of the few that work. Drawing from a variety of different cases, Barrett argues that the successful treaties strategically manipulate incentives, and make it in the interests of sovereign States to protect rather than harm the environment. In doing so, Environment and Statecraft propounds a theory of how States can cooperate in protecting their shared environmental resources, whether it is southern blue fin tuna, the Aral Sea, or the global climate. The book’s key assumption is that treaties must be self-enforcing – namely, individually rational, collectively rational and fair. Barrett argues that every nation wishes to avoid paying to protect the environment. But each also recognizes that,
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if every nation took this stance, the general outcome would be worse. Therefore, effective treaties are ones that can strategically manipulate the incentives States have to exploit the environment, combining both carrots (e.g. technology transfer and financial assistance) and sticks (e.g. reciprocity and trade restrictions). Barrett’s theory integrates a number of disciplines, including economics, negotiation analysis, and game theory, but he goes beyond existing literature on these topics by looking at their application to specific environmental problems, notably his concluding chapter on the Kyoto Protocol. There are many reasons why environmental agreements fail. One reason is that large economic and geographical asymmetries among countries complicate the negotiations to achieve an equitable share of the burden of environmental protection. Also, due to the public good nature of the global environment, which implies non-excludable environmental benefits for all countries, countries may prefer to free-ride, i.e., to profit from the cleaner environment provided by countries participating in agreements, without paying the costs. The lack of a supra-national authority capable of enforcing international environmental laws is a further cause of failure. Yet, despite these and other obstacles, Barrett finds examples of effective international environmental cooperation. Among the most successful environmental treaties cited are the 1911 North Pacific Fur Seal Treaty and the 1987 Montreal Protocol to protect the ozone layer. What is so special about these agreements? According to Barrett, they worked (i.e., saved seals or reduced ozone depleting chemicals) because each contained mechanisms that were able to deter noncompliance and non-participation. Only a handful of countries have not ratified the Montreal Protocol
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(they include Afghanistan and Iraq, who have had other preoccupations). The Protocol offered a range of financial and technological benefits that helped attract record international participation, which was coupled with trade sanctions against products containing or made by using CFCs, as well as introducing mechanisms for withdrawing financial assistance should States step out of line. In the case of the North Pacific Fur Seal Treaty, it reversed a precipitous decline in the population of fur seals caused by over-hunting. It achieved this by banning hunting at sea, where the seals were common property and therefore overexploited: seals could then be taken only on the territory of individual governments, which acquired an interest in protecting them. That produced an overall gain (more seals), which could be distributed to make all nations better off, and thus give them an incentive to abide by their agreement. However, Barrett cautions that there is no single blueprint for international environmental treaty-making. The conditions that allow one treaty to succeed may be wholly absent for another. Thus, Barrett points out that in the case of the Montreal Protocol, the costs of implementing the Protocol were relatively low and the benefits from complying – notably the avoidance of skin cancers and eye cataracts – were enormous. For the Kyoto Protocol, however, Barrett sees the balance between costs and benefits as much less promising. Whilst the small island States of the South Pacific have much to fear from rising sea levels, agriculture in Canada and Russia (also big producers of fossil fuels) may benefit from a predicted warmer and wetter climate. Rejecting the Montreal Protocol as a model for the Kyoto Protocol, Barrett argues that the climate regime should follow the environmental standards and technology
approach taken in the MARPOL oil pollution and shipping treaties. Barrett argues that the Kyoto Protocol offers weak incentives for participation and compliance, and he tries to solve this problem by suggesting an alternative climate regime based on common incentives for climate-friendly technology research and development (R&D). In particular, Barrett advances the idea of a cooperative funding of basic R&D with respect to energy-saving, climate friendly technologies on the one hand, and the implementation of various standards directed towards the international adoption and diffusion of new technologies on the other. He concludes, therefore, that the UN Framework Convention on Climate Change be extended through the negotiation of a new standards protocol and a cooperative R&D protocol. Not all of Barrett’s conclusions seem so plausible. For example, his suggestion that regional environmental problems are easier to remedy than global environmental problems unfortunately does not appear congruent with the evidence. Many of the most inept and hopeless environmental treaties are regional ones, such as the ASEAN Agreement on the Conservation of Nature and Natural Resources (1985) and the Apia Convention on Conservation of Nature in the South Pacific (1976). Possibly, the more global in character an environmental problem has, the more publicity and resources can be generated towards reaching agreements to solve such problems. Overall, Barrett’s lucidity and analysis of international environmental cooperation and treaty-making make this book one of the most significant in its field in recent years. It should be staple reading for all international environmental scholars and policy-makers. Professor Benjamin J. Richardson Osgoode Hall Law School, Toronto
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Exploitation of Natural Resources in the Twenty-First Century, edited by Malgosia Fitzmaurice and Milena Szuniewicz, published by Kluwer Law International, 2003, 298pp, £88.00, hardback. Natural resources management and exploitation constitute areas where calls for sustainable development are becoming more and more vocal. Mismanagement and pollution entail long-term consequences. There is a need to reverse these trends and put in place preventative and precautionary approaches for ensuring environmental protection. Another key concept in this field is sustainable development, which aims to reconcile economic development, environmental protection and social development. This book, edited by Malgosia Fitzmaurice and Milena Szuniewicz, adopts a practical approach. It outlines the programme of sustainable development in concrete fields of economic and environmental co-operation. The book contains ten contributions, which shed light on and illustrate how the newly developed concept of sustainable development has been forged and has found its place. This is quite a remarkable achievement, since sustainable development suffers from uncertainty as a legal concept and is still best seen as an aspiration (see Nigel Haigh’s contribution). In addition, it has thus far proved resistant to codification attempts. At best, a generally applicable formulation of the principle seems only achievable through a non-binding instrument, with the exception of the issue of shared resources, which, in the opinion of the International Law Commission, is ready for a binding instrument (see Gerhard Hafner’s contribution).
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Through its ‘evanescent’ status in the legal field, the concept of sustainable development has made a foray into a number of areas and activities, through new mechanisms and procedures. It has gained a place of its own at the World Bank, both from institutional and operational standpoints (see David Freestone’s contribution). It has slowly but surely penetrated the field of energy law and policy. An important issue in this regard is the fact that climate change obligations have to be fulfilled and enforced through market mechanisms; this raises their compatibility with World Trade Organisation requirements (see the particularly interesting contribution of Thomas Wälde). It is progressively integrated within offshore Joint Developments Agreements (see David M. Ong’s contribution) and within management arrangements for shared stocks of marine fish (see David Owen’s contribution). The book also contains three chapters dedicated to fresh water management. Each shows how sustainability finds its way through effective co-operative schemes (see the contribution of Joseph W. Dellapenna, Paulo Caneals de Castro and Malgosia Fitzmaurice). In addition, there are numerous international bodies whose jurisdiction includes the resolution of claims dealing with sustainable development. The UN Compensation Commission is one of them and has had to deal with the law applicable to environmental damage claims (see Olufemi Elias’s contribution). In sum, Exploitation of Natural Resources in the Twenty-First Century provides the reader with a wealth of information and practice, indicating that, from an aspirational status, the concept of sustainable development is progressively gaining a positive law status. The book also constitutes a significant contribution to the environmental literature in bringing
together ‘sectoral’ studies that are usually not gathered together. Laurence Boisson de Chazournes Professor and Head of the Department of Public International Law and International Organization Faculty of Law University of Geneva
International Environmental Law and Policy for the Twenty-First Century, Ved P. Nanda and George Pring, published by Transnational Publishers Inc., 2003, 512pp, £100.99, hardback. This manual from Nanda and Pring provides a very comprehensive and up-to-date resource for students and practitioners, and anyone else interested in current international environmental law issues. The authors were well aware of the nature of the ‘challenge’, given the broad scope and the lack of a universally accepted legal definition of ‘environment’. However, they have successfully delivered a user-friendly and jargon-free volume, which does not patronize the reader, while offering a vast amount of balanced information, data and extensive references to follow up on particular areas of interest for the reader. The book focuses on international environmental treaties, but it also provides a fair amount of coverage of regional agreements and bilateral conventions, where relevant, such as in the chapters on nature conservation and freshwater resources. The structure of this book helps approach the increasingly complex field of international environmental law by starting with a full coverage of fundamental and procedural ‘substantive principles’ underpinning this area of law (Part I),
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before moving into the evolution of international environmental law and institutions (Part II). It then concentrates on a number of ‘key issues’, or thematic areas, ranging from the more ‘traditional’ ones such as nature conservation, environmental impact assessment, or air pollution, to more recent international environmental law issues such as biotechnology or the interface between international trade and the environment (Part III). By highlighting linkages and making connections between underlying principles and values, and the regulation of substantive areas, the authors put the former in context and help to understand the driving forces behind treaties and conventions. One such example is the relationship between the 1992 Convention on Biological Diversity and its basis on state sovereignty. This is further explained in the context of the international negotiations on the convention text and the main positions and claims by developing countries regarding the aims of biodiversity conservation, sustainable use and fair and equitable sharing of benefits derived from those resources. For each policy area covered in this book, the authors present: a summary of its evolution; its context in terms of international environmental law and customary international law, where relevant; the main obligations for the parties to the convention; and an assessment in terms of compliance, enforcement issues and overall effectiveness of the particular legal regime. The authors do not present overviews of legal regimes in a vacuum; rather they provide a context for each and every ‘key issue’ covered in Part III of this book. By including critical information on the historical, political, and economic context of each relevant area of international environmental policy and law, and their evolution, Nanda and Pring help the reader to
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draw links across different sections of the book, while making us interested in learning more about each substantive area. The footnotes and references help the reader to find up-to-date sources of information to go more in-depth into particular topics, or to learn more about different views on the same subject. The book closes with a concluding chapter aptly entitled ‘the unfinished agenda’, which focuses on the challenge to deliver on the commitments and plans agreed in Rio in 1992, and reinforced in Johannesburg at the 2002 World Summit on Sustainable Development. The authors stress the need to manage environmental agreements at the regional and global level, many of which have overlapping mandates and objectives. They raise the need to coordinate efforts and consider the possibility of clustering treaties to make them more manageable. In the end, the final message points towards increasing effectiveness and delivering on key values and principles by focusing on awareness, information, participation and global inclusion, if we are to meet the challenges of sustainable development. Carolina Lasén Diaz Co-Secretary, Committee on the Environment, Agriculture and Local and Regional Affairs, Parliamentary Assembly, Council of Europe
The Antarctic Environmental Protocol and its Domestic Legal Implementation, K. Bastmeijer, published by Kluwer Law International, 2003, 517pp, £116.00, hardback. As a result of their great scientific and commercial potentials, increasing
attention is being paid to extreme environments, such as the deep seabed and Antarctica. Engaging in studies on whether international norms provide for adequate protection and management of these environments, and assessing their implementation, is therefore a worthwhile exercise. In this respect, within the International Environmental Law and Policy Series of Kluwer Law International, The Antarctic Environmental Protocol and its Domestic Legal Implementation presents an in-depth analysis of the framework for environmental protection of Antarctica, established under the 1991 Madrid Protocol as well as of its implementation. With his analysis, led through desk research and interviews with those involved in Antarctic matters, Bastmeijer intends to assess whether selected contracting parties to the Protocol adequately incorporate the Protocol’s key provisions into their domestic legal systems, and whether the complex array of domestic legislation provides for comprehensive protection of the natural reserve of Antarctica. Bastmeijer does not aim to be exhaustive, but rather limits his analysis to key thematic issues, including environmental impact assessment (EIA), the process for authorizing activities, and supervision and enforcement. Out of the 29 contracting parties to the Protocol, the author selects four representative parties, namely the Netherlands, New Zealand, South Africa and the UK, based on various criteria, including their status as claimant or non-claimant State, the character and intensity of their Antarctic activities, and the stage of integration of the Protocol’s provisions into their legislation. For each thematic issue, the author identifies minimum requirements for adequate implementation of the Protocol, and assesses the selected contracting parties’ legislation against these requirements.
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The book, which is structured in three parts, includes an annex of references to domestic Antarctic legislation and other Antarctic-related official documents, as well as an index. Following a brief introduction to the Antarctic Treaty System and the book’s scope and objective, Part I comprises two chapters addressing general concepts and practical issues related to environmental protection in Antarctica and domestic implementation of the Madrid Protocol. This section of the book, which provides the necessary background for understanding gaps in the international framework and differences in legislation and implementation, is brief, well-structured and efficient. Unfortunately, Part II, which presents an in-depth analysis of the domestic legal implementation of the Protocol, loses in efficiency what it gains in quality of legal analysis and level of detail. Part II is organized in four thematic chapters on: the scope of domestic legislation, including the geographical area, values that are protected, and jurisdiction over expeditions; EIA; authorization of activities; and supervision and enforcement. While the choice of issues to be addressed is relevant and justified, the structure of each chapter, which separates the theoretical analysis of the Protocol from the analysis of domestic legislation, makes this section of the book very repetitive and a tedious read at times. This is all the more disappointing since Bastmeijer raises interesting questions, in particular with regard to gaps and overlaps of jurisdiction, and EIAs, including their content, the level of impact required to engage in assessments, the issue of cumulative impacts, public participation in the process and monitoring. Discrepancies in the role of the precautionary principle when authorizing activities are also highlighted. However, the study may have benefited from further analysis of liability-related
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issues and practical impediments to proper implementation, regarding enforcement, for example. Part III, composed of a solitary chapter, draws on the author’s indepth analysis to assess whether the Protocol and its domestic implementation provide for the adequate protection of Antarctica, and presents recommendations for better joint management of the area. Bastmeijer notes a high level of performance in terms of incorporation of the Protocol’s provisions into domestic legal systems, with some parties having adopted stricter measures than those provided for in the Protocol. However, noting a jurisdictional vacuum, the lack of uniform and objective application of the Protocol’s provisions on EIA, the lack of strong normative systems to regulate human activities, as well as weaknesses related to supervision and enforcement, Bastmeijer concludes that the complex web of domestic legislation will not adequately protect the natural reserve of Antarctica, and stresses the need to move beyond the primacy of domestic legal systems towards joint management of the natural reserve of Antarctica. Some recommendations to that effect relate to strengthening the common view on several issues, such as jurisdictional scope, the level and scope of EIAs, and the role of the precautionary principle. Recommendations to support the application of domestic law in accordance with international policy address, inter alia, the need to improve access to information and involvement of independent experts and the public. Some recommendations are also made regarding supervision and enforcement. Bastmeijer concludes by proposing the adoption of an Antarctic conservation strategy to address those issues and ensure that Antarctica is managed in the interest of mankind. Can Bastmeijer stimulate discussion on the domestic legal imple-
mentation of the Protocol and can the book assist in developing new initiatives to improve implementation, as it aims to do? The answer is yes, in spite of the book’s structural weaknesses, including its separation of theoretical analyses of the Protocol’s provisions and those of domestic measures, which makes the book very repetitive and tedious at times. Bastmeijer’s thorough analysis, which is extremely well-researched and referenced, certainly provides a wealth of information to stimulate debate on Antarctica’s legal environmental framework. While the suggestion to develop an Antarctic conservation strategy provides a good starting point for discussions, one should not forget that many gaps in the system have been intended to preserve claimant States’ sensitivities and that greater political will is a necessary prerequisite for effective action. Unfortunately, the book will not only be useful for researchers and officials involved in Antarctica to strengthen cooperation, but also for those wishing to exploit gaps in the system. Charlotte Salpin PhD Candidate, Université Panthéon-Assas Paris II
The Earthscan Reader on International Trade & Sustainable Development, edited by Kevin P. Gallagher and Jacob Werksman, published by Earthscan, 2002, 320pp, £22.95, paperback. The compiler of literature on international trade and sustainable development who aims to reach a general audience does so at his peril – the agenda is vast, the issues are highly technical, and the policy landscape shifts often, albeit irregularly. Gallagher and Werksman are,
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therefore, to be congratulated for editing a volume that is comprehensive, accessible, and will enjoy a relatively long shelf life. International economic law has become such a specialized area of international law that a lawyer seeking to engage effectively in this area must not only have grounding in the applicable law, but also in the relevant economic concepts and principles. This distinguishes international economic law from many other areas of public international law, where expertise in legal principles generally suffices. This is all the more so for those lawyers who work on the interface between international trade and sustainable development, where at least a basic understanding of the linkages between international economics with environment and development policies is needed. The interface between environment, development, and economics penetrates much of the World Trade Organization’s (WTO) agenda, despite remaining one of the least understood and contentious relationships. In the current political environment, in which WTO negotiations oscillate between stagnation and sudden lurches, the deeply important linkages between trade and sustainable development can easily be forgotten. And yet, over the past decade, important progress has been made. The jurisprudence has evolved rapidly and profoundly, so that the basic legal contours of the relationship have been established. Indeed, much of the antagonism that was triggered by the infamous Tuna Dolphin Case in 1991 has receded. More profoundly, there is a greater recognition of the need to address these issues in an integrated fashion. As the editors indicate in their introduction: One thing is clear, it is completely legitimate for nations to pursue trade, environment and development goals in tandem. However, as the authors in
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this volume reveal, the devil is in the detail: the challenge ahead lies in our ability to design policies and regulations that allow each of these goals to be mutually reinforced.
Nonetheless, the area remains coloured by disagreements over many of the underlying economic principles, political stalemate within the WTO and beyond, and uneven power relations between international institutions for environment and development and the WTO. This rich volume is divided into two parts: one section is on ‘economic perspectives’, and the second is on ‘legal perspectives’. A useful introduction by the editors draws out key messages from the contributions and makes a plea for an integrated approach. The part on ‘economic perspectives’ contains pieces on important economic concepts, such as the relationship between foreign direct investment and environmental standards, market failures, competitiveness, and the environmental ‘Kuznets Curve’. The part on ‘legal perspectives’ contains pieces on the legality of trade measures based on ‘production and processing methods’ (PPMs), the Agreement on Sanitary and Phytosanitary Measures, fisheries subsidies, agriculture, investment, and intellectual property rights. All of these represent important, but difficult, problems in the trade and sustainable development interface. The authors of the individual pieces come from a variety of geographic regions and have different substantive views, which makes the volume very interesting. Indeed, this book usefully challenges some pervasive popular myths. Some of the economics chapters challenge the notion of a ‘race to the bottom’ brought on by lax environmental standards – although Lyuba Zarsky then points out that globalization can create disincentives for high environmental standards, and that this should be addressed by increased global environmental cooperation.
Eric Neumayer’s chapter contains another important message to the environmental policy community, which challenges another sacred cow – that a hard look should be taken at the use and design of trade measures in MEAs. These measures are not always universally successful and the reasons for this are complex. Several legal myths are also challenged. Steve Charnovitz convincingly debunks the view that PPMs-based measures are not accepted under WTO law. David Downes argues that intellectual property rights can protect indigenous knowledge, which suggests that the relationship between the CBD and the Agreement on Trade Related Aspects of Intellectual Property Rights is not necessarily one of conflict. In the context of the failure to address investment issues through a Multilateral Investment Agreement, and more recently in the WTO, Konrad von Moltke argues for an international agreement on investment to create the right balance between rights and obligations. Inevitably, a reviewer of such a volume will have quarrels with some of the choices made by the editors. For example, the division of the book between economic and legal perspectives is somewhat artificial, and does not work perfectly for all the pieces. This reviewer would have preferred to see a more robust legal analysis of the relationship between MEAs and the WTO. It might have also been beneficial to have more material on the development dimension, such as the problematic issue of special but differentiated treatment, or the special needs of least developed countries. Finally, some more analysis aimed at actors involved in institutions and processes outside the WTO would have been helpful in regard to trade issues that arise in those contexts. However, these are quibbles, which do not overshadow my view that the overall
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selection of articles is admirable and reflects both wisdom and care. The editors of this volume have opted for contributions that address the fundamentals in the complex relationship between international trade and sustainable development. By adopting this strategy, the editors have ensured that the relevance of the book’s contents will transcend the rather unpredictable political timetable of the WTO. Many of the authors, and the pieces themselves, are well known to experts in the field. Even for those active in the field, the book’s contents are useful touchstones that merit returning to over and over again. Not only will lawyers benefit from those chapters addressing legal issues, but also the chapters written by economists are all accessible to the non-specialist. Indeed, those actors involved in efforts to conclude the daunting Doha Development Round by the end of 2005 would do well to have this important book at hand to help address the sustainable development agenda – especially in the early hours of the morning before the negotiating deadline, as has become an unfortunate feature of negotiations in this area. Richard Tarasofsky Head, Sustainable Development Programme, Chatham House
Transboundary Damage in International Law, Xue Hanqin, published by Cambridge University Press, 2003, 368pp, £55.00, hardback. Professor Xue Hanqin’s Transboundary Damage in International Law addresses one of the most neglected
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aspects of international environmental law. Certainly it is a subject that has endured plenty of scholarship (for example, P. Okowa’s State Responsibility for Transboundary Air Pollution in International Law (Oxford University Press, 2000)), but, like many environmental law causes, the discussions of scholars have vastly exceeded actual legal practice. This is a worrying disjuncture, for the Chernobyl disaster and the Amoco Cadiz oil spill are just a few of many sad instances of environmental catastrophes that have crossed national borders (in addition to those disasters that have not). Professor Xue’s book, however, is not just another rant about the urgent need to make States responsible for their transboundary harms. She offers an extraordinarily detailed commentary on the ‘nature and scope of the current law on international liability for transboundary damage, why it has so evolved, and how it will continue to develop in the future’ (at 2). She is well qualified to offer this doctrinal exegesis: Professor Xue is China’s Director-General of the Law and Treaty Department, Ministry of Foreign Affairs, and a professor of law at the Beijing Foreign Affairs College. State responsibility is the principle by which States may be held accountable in inter-State claims under international law. Its foundation lies mostly in the breach of obligations undertaken by States imposed on them by international law. A breach of an international obligation gives rise to liability to compensate and make reparation to injured parties. According to Professor Xue, ‘by allocating damage, liability rules are intended to serve several objectives, among which are punishment and deterrence of a wrongdoing and regulation of conduct’ (at 283). International law has never developed a satisfactory, comprehensive response to the problem of transboundary environmental damage. The problem is
partly due to normative difficulties in defining when States should be responsible for such damage. But, more decisive has been the intransigence of governments to make themselves accountable for environmental harm. States, by and large, have been loath to bring their environmental disputes to international courts and tribunals for resolution according to international law. They prefer to deal with such conflicts through furtive diplomatic channels rather than risk a more unfavourable and publicly embarrassing outcome at the hands of judges or arbitrators. Professor Xue carefully discusses a range of conceptual and technical problems to the definition of State responsibility for international environmental harms. A central, underlying conundrum is that international law does not generally prohibit States from engaging in polluting activities per se. The doctrine of State sovereignty allows governments to determine their own development policies, and there are no firm international rules that dictate when the environmental impacts of those policies give rise to valid compensation claims. This is only one of many problems. For example, are States responsible only if they demonstrate ‘fault’, or is a standard of strict liability applicable? And who can bring claims for environmental harm to areas beyond national territorial jurisdiction, such as the high seas or the global atmosphere? There also arise complications in proving causation; the link of causality between a culpable act and the damage suffered must be established. This can be difficult when pollution involves numerous parties (e.g. acid rain in Europe) and where the noxious effects of a pollutant may not be felt for years or decades (e.g. the Chernobyl catastrophe). Further, how is ecological damage to be measured? No attempt has been made in international law to develop generic remedies specifically adapted
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to the peculiar forms of environmental damage. Although law school courses on international environmental law ritualistically cite the famous Trail Smelter Case of the 1940s between Canada and the USA, there has been a paucity of case law since then. The defining statement of the Stockholm Declaration of 1972, which picked up the Trail Smelter decision, provides that: ‘States have . . . the sovereign right to exploit their own resources pursuant to their own environmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’ (Principle 21). Since then, the International Court of Justice has rarely had a chance to consider transboundary environmental damage (e.g. Nuclear Tests Cases, and the GabcikovoNagymaros dam litigation). If we turn to treaty practice, only exceptionally do international agreements explicitly provide for the allocation of responsibility for environmental damage and its compensation. Relevant treaties include the Convention on International Liability for Damage Caused by Space Objects (1972) and the Convention on Third Party Liability in the Field of Nuclear Energy (1960). However, a proposal to include a State responsibility clause for environmental damage was dropped in the negotiations of the Convention on Biological Diversity (1992) CBD, and the Rio Declaration on Environment and Development (1992) avoids the problem neatly by stating: ‘States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction’
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(Principle 13). The UN’s International Law Commission has devoted many years to the codification and progressive development of customary international law rules on State responsibility, but many governments have been unwilling to do much with the Commission’s Draft Articles on State Responsibility. Professor Xue acknowledges these dilemmas in her generally careful, methodical study. She discusses a distinction in international law between the treatment of accidental and non-accidental damage, as well as the distinction between damage to the global commons and damage to the territory of other States. Her most valuable discussion is in chapter 8, which analyzes liability rules using three criteria – normativity, equity and efficiency. Of particular interest to her is the question whether strict (rather than fault-based) liability should be imposed on States for transboundary damage as a general principle of international law. She is unable to give a definitive answer, as ultimately she believes that while such a standard offers stronger protection to the environment, the international consensus for such a norm is lacking. Professor Xue is also interested in discerning ‘in which direction [the law on transboundary damage] will develop and why’ (at 269). She does not, however, clearly articulate an argument on these aspects, although she argues for the development of some general principles of international law, rather than leaving the matter to be addressed incompletely in an ad hoc manner, through individual treaties. Professor Xue identifies several emerging norms being forged internationally to address transboundary pollution and other harms. These norms include the precautionary principle and the principle of common but differentiated responsibility. However, disappointingly, these norms
receive far too little attention in her book, and can also hardly be regarded as ‘new’, as both have been around for over a decade. They could easily have warranted a chapter on their own. The precautionary principle, which behoves us to acknowledge that scientific uncertainty should not be an excuse for postponing action to avoid serious or irreversible damage, is included in several international legal instruments, such as the UN Framework Convention on Climate Change, the UNCLOS Implementing Agreement on Straddling Fish Stocks and Highly Migratory Fish Stocks (1995), and the Cartagena Protocol on Biosafety (2000). The principle of common but differentiated responsibility has also emerged as a vital norm governing North–South cooperation to prevent and correct international environmental harms. The principle requires that richer developed countries take the lead in repairing environmental harm, and it has been acknowledged in the CBD and the Kyoto Protocol (1997). Through these principles there is a concerted move away from rules that govern recovery and compensation, to the prevention of environmental risks. Professor Xue refers briefly to these concepts (at 322–325), but does not explore their impact on international environmental liability regimes. For example, the precautionary principle is highly relevant to evolving standards of strict liability for ultra-hazardous activities, and common but differentiated responsibility has direct bearing on who should pay for collective damage to the global commons. Despite these lacunae, Professor Xue has provided, in general, a very good exposition of the international rules and compensation procedures that apply to transboundary environmental disputes. She offers a refreshing analysis of
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the theoretical bases for international liability for international harms. Her book is well written and thoroughly referenced. It is one of the better works on this sub-
Book Reviews
ject, and should become of use to a wide audience, including scholars, graduate students, international lawyers, and jurists.
Professor Benjamin J. Richardson Osgoode Hall Law School, Toronto
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