Vol. 13 No. 7 (July 2003)

 

THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW by Joseph F. C. DiMento.  Austin: University of Texas Press, 2003. 248 pp.  Cloth $55.00.  ISBN: 0-292-71620-6. Paper $21.95.  ISBN: 0-292-71624-9.

 

Reviewed by Ken Conca, Department of Government and Politics, University of Maryland.

 

The conundrum of international environmental law is easy to grasp but difficult to evaluate. On the one hand, the environment is an area of perhaps unrivaled international legal development since the seminal 1972 U.N. Conference on the Human Environment was held in Stockholm, Sweden. Hundreds of international agreements, some fifty broadly multilateral conventions and protocols on issues ranging from climate change to persistent organic pollutants, important developments in case law on transboundary controversies, the emergence of important soft-law principles, such as the so-called “precautionary principle” or the idea of shared but differentiated responsibility—all attest to the dynamic, progressive character of international environmental law.

 

Yet international environmental law is also a realm replete with doubts about efficacy and significance, spawning a large body of scholarship on questions of implementation, compliance, and effectiveness. Are environmental treaties effective in enhancing environmental quality, or are they merely symbolic, aspirational statements? Given the decentralized sources of many environmental problems, how do we assess compliance? Do international environmental agreements, many of which are regulatory in character, have meaning in the context of an increasingly deregulatory global political economy?

 

Joseph F. C. DiMento’s THE GLOBAL ENVIRONMENT AND INTERNATIONAL LAW approaches this conundrum of dynamism and doubt with an expansive notion of what constitutes international environmental law. Although recognizing that international treaties take pride of place in an international system marked by a weakly coupled political community, the text also pays attention to customary law, court-derived law in both the domestic and international spheres, and “soft law,” which is defined here as “principles aimed at structuring later actions of members of the international community” (p.35).  More controversially, the author also extends the definition of international law to include “institutional developments,” in the sense that soft-law principles often emanate from organizational settings such as the World Bank or the U.N. Environment Program.

 

Written for an audience of non-specialists and suitable for upper-level undergraduate courses in international law, environmental studies, or international relations, the book has several useful features. Foremost among these is that it places the targets of international environmental law at the center of analysis. Scholars approaching the question from both law and political science tend to frame the study of international environmental law in terms of the rights and responsibilities among sovereign states—be it the right to control resources within one’s borders or the responsibility not to cause significant, avoidable harm outside one’s borders. Yet in terms of the desired outcomes, the state is more commonly a means to an end than the direct target of environmental law; states are meant to create incentives and disincentives to shape the behavior of others. As DiMento points out, those “others” are in fact quite a heterogeneous lot, including firms, individuals, multinational corporations, municipalities, and so on.

 

Another useful facet of the text is its emphasis on the highly variable performance of international environmental legal instruments. To illustrate this point, contrasting outcomes are presented in five short case studies—on stratospheric ozone depletion, climate change, the Black Sea environmental program, the international trade in hazardous waste, and trade-environment problems in the context of the North American Free Trade Agreement. The author uses the range of outcomes in these cases to derive a list of keys to effective law: scientific consensus, clear objectives, a capable secretariat or other organizational catalyst, openness to stakeholders during the negotiating process, and mechanisms that promote compliance. Although no rationale for this particular selection of cases is presented, they do provide a useful distribution of outcomes that support these conclusions. It might also have been useful to include one or two dramatic failures, such as the collapse of the forest talks at the 1992 Earth Summit. The author’s list of key features provide a reasonable summary of the necessary conditions for effectiveness, but the extent to which they are sufficient in the face of an unfavorable external political-economic context is less clear.

 

The text concludes with several recommendations for strengthening international environmental law. Some of these suggestions are not particularly new or controversial: Lawmaking processes should become more participatory so as to cut across cultural barriers and give a wider range of actors a stake in the resulting agreements. Treaty secretariats should be designed with professionalism, efficiency, and inter-agreement coordination in mind. Agreements should use economic incentives to enhance participation and compliance. Yet the author does not shy away from more controversial recommendations. While conceding the conventional wisdom that non-governmental organizations have an important role to play, DiMento also presents an extensive caution against delegating to them the representative responsibilities of states. The enduring need for regulatory mechanisms is also underscored, including trade-related mechanisms that have become controversial in the context of the World Trade Organization and aggressive trade liberalization efforts. Perhaps the most innovative recommendation is for strengthened emphasis on civil liability—a notion that raises complex questions of standing and sovereignty, yet a potentially important tool in an increasingly densely interconnected global economy.

 

If there are faults to be found with this useful text, they lie primarily in what is not discussed. The brief discussion of sovereignty issues skirts the extraordinarily contentious debate over how to balance states’ sovereign rights with their international responsibilities. Despite two decades of growing understanding about the seriousness of global environmental problems, the reservation of states’ rights articulated in the declaration of the 1972 Stockholm Conference was rearticulated in essentially verbatim fashion two decades later at the Rio Earth Summit. There is also no discussion of some of the more innovative, even post-sovereign, approaches to international environmental law: civil-societal initiatives such as the Earth Charter that seek to push the envelope of soft-law principles, heterogeneous global stakeholder initiatives such as the World Commission on Dams, or cross-sectoral partnerships such as the alliance between Greenpeace and the insurance industry on global warming. Such initiatives may stretch some of the more conventional notions of what constitutes international law, but would fit comfortably within a text that emphasizes dynamic institutional developments and the leading character of soft law.

 

Perhaps the most important unanswered question is whether the progressive (if often erratic) development of international environmental law documented in this book can endure in an increasingly unfavorable structural context. The author is sensitive to the fragmented and profoundly political context within which international environmental law develops: “If making domestic law is like making sausage, making international law is like making sausage stew” (p.43).  While being careful to present a range of interpretations, ultimately he sees a glass that is more full than empty: “In general in international environmental lawmaking there is a growing expectation that multinational negotiations should be transparent..., accessible, responsible, and equitable” (p.6).  Can the dynamic development of an international legal framework for environmental protection endure in a world political economy marked increasingly by globalization, deregulation, and American unilateralism? Or will we look back on the era documented in this text as a missed opportunity to rein in our destructive tendencies? Unlike its counterpart a decade earlier in Rio de Janeiro, the recently completed World Summit on Sustainable Development in Johannesburg yielded not a single significant new international agreement and very little in the way of tangible commitments. It may be that the progressive dynamism of international environmental law has been outstripped by a very different sort of dynamism in its political and economic context.

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Copyright 2003 by the author, Ken Conca.