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