Vol. 14 No. 3 (March 2004)
PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW (2nd ed.),
by Philippe Sands. New York:
Cambridge University Press, 2003.
1116pp. Cloth $170.00. ISBN: 0-521-81794-3. Paperback $60.00. ISBN: 0-521-52106-8.
Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor
of Political Science, University of California, Davis. Email: gawsmith@ucdavis.edu
This is the most important book on international environmental
law ever published. It will
change forever the way we think about the subject. I suspect it will have a major impact
on the way we teach the subject. And
it should and may change the way people write about the subject. To substantiate these claims a little
history is in order.
International law has always been a difficult subject to
understand and to teach. There
has long been, for example, and there remains for many, a question about
whether it is really law at all. Skepticism
is even greater when it comes to outcomes. Clear instances of when international law has made a difference
in the world are few and far between. At the extreme, realists take the view that, if international
law has any play at all it is only in the small interstices in international
affairs left to it when powerful sovereign states, especially hegemons,
have defined and pursued their self interests. Sands writes, overall, with an optimistic
tone in this book, although he does caution early that "it remains to be
seen whether a diminishing conception of sovereignty in the face of a more
assertive international judiciary, together with a more inclusive, accessible
and diverse international legal order, leads to any greater protection of
the environment"(p.12).
In an effort to give substance to the subject, texts invariably
begin with what usually turns out to be an arcane discussion of the sources
of international law as recognized in Article 38(1) of the Statute of the
International Court of Justice: treaties, international custom, general
principles of law, and a variety of subsidiary sources, including decisions
by tribunals and the writings of jurists.
But the relevance and import of this for international environmental
law is limited. Although there
is some need to invoke custom and general principles and to traverse historical
ground that reaches back to the eighteenth century-and Sands does this better
than most in Part 1 of this book (see esp. pp.26-30)-it is accepted that
most of the international environmental law we all care about, want to know
about, and hope will succeed is predominantly treaty law.
In most texts, the major focus is on the recent body of
treaty law that grew apace before, during and after the United Nations Conference
on the Human Environment held in Stockholm in 1972. Sands goes over this ground, too. His book has a series of nine chapters
(chs.6-14) in Part 2 that cover most of the major substantive sub-topics
of international environmental law (the atmosphere, the oceans, biological
diversity, hazardous substances and wastes, for example) and take the analysis
in each case up to the disappointment of the World Summit on Sustainable
Development in Johannesburg in late 2002, when, in contrast to what happened
at Stockholm, and in Rio de Janeiro in 1992, no major new treaties were
negotiated. But the processes of treaty making seen
at Stockholm and Rio had important precursors in the practice of international
conferencing that began amongst the international scientific and technical
communities in the late nineteenth century and then became very much more
frequent with the creation of the United Nations. Under the auspices of the UN and related institutions, the
practice was extended to subjects ranging far beyond scientific concerns
and interests. Together with conferencing, which is what
gives non-governmental organizations their visibility in and influence on
the process of international law making, the creation of international organizations
within the United Nations system is usually identified as the factor that
has had more to do with the current content and effective reach of international
environmental law than any others.
But while this much is generally understood, and has been
for some time (Caldwell 1996), the comparable growth of conferencing activity
and international institution building in and around the European Community
has not had the attention it deserves.
Sands makes a major and, in my view, transforming contribution, here,
not only by including a chapter in his book about environmental law in the
European Community (ch.15), but also by weaving evidence and discussion
of European environmental law making and implementation practices into the
entire body of his work. This
becomes particularly compelling in Part 3, where Sands reviews a number
of key procedural and institutional techniques for implementing the environmental
law principles he enunciates in Part 2.
These include environmental impact assessment (ch.16), information
generation and dissemination strategies (ch.17), liability rules (ch.18),
institutional capacity building (ch.20), and the adoption of environmentally
sensitive trade and investment practices (chs.19 and 21).
Indeed, now that Sands has published this book, everyone
is bound to ask why other texts have paid so little attention to European
or, more broadly, non-American practice and jurisprudence, and why, for
that matter, they have proceeded on the assumption that the most relevant
legal materials are those associated, and there are not many, with the International
Court of Justice (and its predecessor), and the courts of the United States,
where the number of interesting decisions is larger but their international
reach is questionable.
In fairness, the paucity of legal materials for the study
of international environmental law was so marked as recently as 1994 that
the first major text to tackle the subject at length relied heavily on hypotheticals
(Guruswamy, Palmer and Weston 1994). In part, this also reflected a strong, ingrained (and far from
vanished) predisposition in legal pedagogy to teach by having students work
their way through hypothetical problems. But the larger problem in 1994 was that the stock of legal
materials arising out of the day to day practice of international environmental
law was very, very small. And
there was at that date, of course, no widespread access to or appreciation
of the teaching value of the Internet and the World Wide Web. Instead of using real sovereign states
and their real interests to animate their problems, Guruswamy, Palmer and
Weston invented countries with names like Vinland, Tierrasol and Ratak. Students had to imagine how the texts
of various real and arguably relevant international treaties and other legal
instruments might impinge on the behavior and decision making of these imaginary
states. The exercises are not
without merit, but they are also no substitute for the real thing.
By 1998, when a new text appeared and came to dominate
the market (and now in its second edition as Hunter, Salzman and Zaelke
2002), it was possible to make the study of international environmental
law very much more realistic. It was also possible to give students access,
through the Internet, to a larger number and wider variety of primary and
secondary materials than ever before.
This 1998 book was the first to have a companion web site.
The focus remained, however, very much on cultivating an understanding
of international environmental law as seen through American eyes.
Sands has ended this tradition. In his book, the United States is not neglected, at least not
entirely. The table of cases
at the front of the book lists eighteen decisions by national courts, and
four of these are decisions handed down in American courts. But Sands also includes decisions from
courts in Australia, Belgium, India, Italy and the United Kingdom. In this and other respects he has internationalized,
if you will, a subject that has long borne a deep American imprint.
And international environmental law scholarship and teaching, I am
quite sure, and thanks in no small measure to modern information technology,
will never be the same again.
Sands, in what I think will go down as one of the great
innovations in the writing of international law texts, includes eighty-eight
carefully indexed pages at the front of his book-before the main body of
the text begins-in which he details the astonishing breadth and diversity
of the international legal materials upon which he has drawn and with which
students of international environmental law need to be conversant and prepared
to read and interpret. They,
of course, include materials originating from the International Court of
Justice and its predecessor. But
they also include materials generated by the International Tribunal for
the Law of the Sea (before which, as a practicing barrister, Sands has appeared
as an active litigant), a wide variety of international tribunals, GATT
and WTO panels, the World Bank Administrative Tribunal, the European Court
of Justice, the Court of First Instance, the European Patent Office, the
European Court of Human Rights, and the Inter-American Commission on Human
Rights.
It is impossible, in other words, to come away from this
book without a very clear and strong sense-no matter the disappointment
of Johannesburg-that international environmental law is alive and well,
is being practiced ingeniously and effectively in a wide variety of legal
fora, at many levels of the international system, and has
a great future. Above all else,
these conclusions are a tribute to Sands' astonishing scholarship (in which,
it must be said, he had a great deal of collaborative help) and to his clear
vision and philosophy, which he is willing to share. Scholarly work on this subject will never be the same again.
REFERENCES:
Caldwell, Lynton
K. 1996. INTERNATIONAL ENVIRONMENTAL POLICY: FROM THE TWENTIETH TO THE
TWENTY-FIRST CENTURY. Durham,
NC: Duke University Press.
Guruswamy, Lakshman
D., Geoffrey W.R. Palmer and Burns H. Weston. 1994. INTERNATIONAL ENVIRONMENTAL LAW AND WORLD
ORDER: A PROBLEM-ORIENTED CASEBOOK.
St. Paul, MN: West Publishing.
Hunter, David,
James Salzman and Durwood Zaelke.
2002. INTERNATIONAL
ENVIRONMENTAL LAW AND POLICY, 2nd ed.
New York: Foundation Press.
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Copyright 2004 by the author, Geoffrey Wandesforde-Smith