International Enviornmental Law and Asian Values: Legal Norms and Cultural Influences.

Vol. 15 No.3 (March 2005), pp.255-259

INTERNATIONAL ENVIRONMENTAL LAW AND ASIAN VALUES: LEGAL NORMS AND CULTURAL INFLUENCES, by Roda Mushkat. Vancouver, BC: University of British Columbia Press, 2004. 241pp. Hardcover. CDN$ 103.93 / US$ 85.00. ISBN: 0774810564.

Reviewed by Geoffrey Wandesforde-Smith, Emeritus Professor of Political Science, University of California, Davis. Email: gawsmith@ucdavis.edu

At the core of this book by Roda Mushkat – or at the core, at least, of the idea of writing a book such as this – is an important and intriguing question. Is there something about the values held by people who live in Asia, and by their governments, that prevents them from taking commitments to environmental law and policy as seriously as many people who do not live in Asia think they should?

Among other things, if there is some substance to this allegation, we should have no great expectation that there will be clear and steady progress in Asia toward meeting the goals and targets of the international environmental treaties Asian nations have signed with some considerable frequency and apparent enthusiasm since the early 1970s. In two appendices Mushkat catalogs the memberships held by some twenty-seven Asian countries in major international conventions and regional multi-lateral agreements. Do these signify real commitments, however, or are they just window dressing? In the final analysis, Mushkat wants her book to be reassuring on this score. But her attachment to ponderous and even convoluted legal language tends to obscure rather than clarify the way she poses and deals with a set of issues that are really better understood, I think, than she leads us to believe. Let us first think about the subject in terms closer to home.

We know from our own immediate experience in the United States, as well as from a long and complex history of environmental policy law in this country, that values seem to make a difference at several levels. At the moment, for example, President George W. Bush clearly has a set of values, both personal and political, that do not lead him to attach as high a priority to environmental policy as some of his predecessors. And, to the extent that he does want to pursue solutions to environmental and resource management problems, whether at home or abroad, the President seems to favor environmental policy instruments that have not, up to this point in time, been central to national efforts to deal effectively with environmental challenges. In the international arena the result, according to DeSombre (2005), is an understandable but not altogether attractive policy of unilateralism, which contrasts markedly with the leadership role the United States played for the previous thirty years.

History also teaches important lessons about values and their relationship to environmental policy law choices. In the Asian context, for example, one readily imagines that religious values [*256] might have an important role in the way people and their governments define and pursue their responsibilities for nature (Passmore 1980). In Asia, certainly, but also in Africa, Australasia, and the Americas, the values people attach to nature and the ways they understand themselves in terms of their relationships to nature have been profoundly influenced since the eighteenth century by science, as well as by the willingness of policy makers to value science as a positive basis for their decision making (Dunlap 1999; Dauvergne 2001; Mulligan and Hill 2001; Beinart 2003).

The evidence is equally clear that over many decades economic values and public opinion on resource and environmental questions shape laws and policies and influence their effects. One thinks, for example, of the resource disposition policy that shaped American public land laws and grew out of an earlier willingness to value natural resources chiefly for the contributions they could make to internal improvement and national economic development (Andrews 1999). And, one recalls that American environmental law and policy would not be what they are today without the widespread transformation of material values and environmental public attitudes that took shape in a context of rising affluence after the end of World War II, and which was a dominant force in domestic politics in the late 1960s and early 1970s (Lacey 1991).

Many scholars, then, are used to the idea that environmental laws and policies, whether international or domestic, have been shaped by values. This has been true over long periods of time and across most regions of the world. But the story is a complex and changing one, not least because the values involved are diverse – personal, political, religious, scientific, economic, and material, for example – but also because they are conflicting. Indeed, the idea that diverse and conflicting values create cross-cutting pressures in society is one of the oldest and firmest in political science. Certainly, for most historians and social scientists the general expectation is that the influence of particular values on law and policy waxes and wanes. And this is an important reason why the language of law and policy also changes, adapting, as the saying goes, to the felt necessities of the times (Holmes 1881).

Against this background Mushkat seems oddly fixated, first, on the language of current legal agreements and, second, on specifying a priori the technical terms and conditions under which current legal agreements and commitments can be implemented. The oddly inflexible, and I would even say contrived, tone pervading the book is set in the Foreword by Ved Nanda, a distinguished professor of international law at the University of Denver and, by Mushkat’s acknowledgment, a prime mover in bringing this book to press. “[C]ommon sense dictates,” Nanda admonishes, “that geopolitical or cultural considerations should not determine either the content of international environmental law norms or their domestic implementation” (p.ix). This is a tough row to hoe, it seems to me. As any legal scholar worth his or her salt ought to know, circumstances, including circumstances that attach to and stem from values, alter cases.

Mushkat, nevertheless, gamely proceeds to set up her problem with Nanda’s [*257] stricture in mind. She argues that in a region like Asia, where the general impression is that people and governments are “deeply wedded to the concept of economic growth at all costs” and are “unwilling to seriously contemplate [sic] trade-offs involving other strategic goals,” there is not likely to be much interest in compromising national policy objectives for the sake of “constraints emanating from the global arena” (p.127). Mushkat’s problem, thus, resolves itself into asking whether people and governments in Asia have any reasonable excuses for not promptly and fully achieving the environmental policy goals to which they have committed themselves by signing treaties. Stated in these bald terms, the answer has to be that of course they do. And one wonders why it takes Mushkat two hundred and forty pages, ninety of which are solidly packed footnotes at the end of the book, to be comfortable with this conclusion.

The central problem with the book is that we do not learn nearly as much about Asian values as we should, if, in fact, there are such things as Asian values and if, in fact and in important respects, those particular Asian values that relate to the environment are at odds with those held in the rest of the world. An important part of the difficulty Mushkat has in being convincing is her treatment of the word “Asian.” She resolves the term into Asia Pacific, defining this operationally as that collection of twenty-seven Asian countries mentioned earlier. But the rationale and methodology by which she does this is far from clear, and so her definition of what is Asian (and, therefore, what is not) is at best convenient and may at worst be random. In another part of her book, Mushkat hints very briefly, and in passing, that there may be, for example, religious values that shape the way Asians and their governments make environmental policy choices. But there is very little substance to her discussion of these values in Chapters 3 and 4 of the book, which is where we would expect to find it. Her treatment reiterates some general points made by Judge Weeramantry in the Gabcikovo-Nagymaros dam case before the International Court of Justice (1997), but it could not be called a probing or critical examination of exactly how a specific set or variety of Asian cultural or religious values cuts against the grain of international legal norms.

At the end of the book we are told that this study “provides sufficient evidence to argue that globally shaped norms that are seemingly at variance with culturally entrenched short-term economic imperatives are generally accepted by the politico-bureaucratic establishment in the Asia Pacific region” (p.127). The problem the establishment has with international environmental law, then, is less a problem of values than one of resources for implementation. Within countries, at what Mushkat calls the micro-level, where the implementation rubber hits the road, cultural variables manifest themselves in a variety of constraining factors. The inadequacy of domestic laws is cited as one of these, as are understaffed and under-funded institutions, lack of judicial enforcement, weak application of good government principles, and a varying degree of receptiveness to rights-based arguments. “These factors,” writes Mushkat, “reflect institutional structures (which may range from simple to complex), institutional [*258] capabilities (which may range from modest to substantial), and nature (sic) of political culture (which may range from rigid to flexible)” (p.128).

It is one thing, however, to identify variables such as these and to assert their probable relevance to implementation shortfalls. It is another thing to make a convincing demonstration of that relevance. And I would argue that in this book Mushkat has accomplished the first but not the second of these tasks. The key to understanding the real contribution and significance of this book lies in its serious internal imbalance. The discussion of Asian values and environmental protection occupies sixteen pages (Ch.3). The discussion of whether there is anything distinctive about the Asian approach to environmental norms occupies just seven pages (Ch.4). But the discussion of factors affecting the domestic implementation of international legal norms is forty-six pages long (Ch. 5), supplemented by three appendices and a legion of footnotes. This is by far the longest chapter in the book, and it makes what can only be called a dismal catalog of serious discrepancies between what environmental law in Asia requires on its face and what actually gets done. It is the compilation of this catalog that constitutes the heart of Mushkat’s book. It does, indeed, add up to an interesting empirical story, and it is a story which Mushkat to her great credit presents as one that cries out for explanation. Unfortunately, INTERNATIONAL ENVIRONMENTAL LAW AND ASIAN VALUES is not that explanation. It is not even the beginning of that explanation. Nonetheless, it is, perhaps, the end of an interesting and provocative preface to such an explanation.

REFERENCES:

Andrews, Richard N.L. 1999. MANAGING THE ENVIRONMENT, MANAGING OURSELVES: A HISTORY OF AMERICAN ENVIRONMENTAL POLICY. New Haven, CT: Yale University Press. Chs. 2-5.

Beinart, William. 2003. THE RISE OF CONSERVATION IN SOUTH AFRICA: SETTLERS, LIVESTOCK, AND THE ENVIRONMENT 1770-1950. New York: Oxford University Press.

Dauvergne, Peter. 2001. LOGGERS AND DEGRADATION IN THE ASIA-PACIFIC: CORPORATIONS AND ENVIRONMENTAL MANAGEMENT. New York: Cambridge University Press.

DeSombre, Elizabeth R. 2005. “Understanding United States Unilateralism.” In THE GLOBAL ENVIRONMENT: INSTITUTIONS, LAW, AND POLICY, Regina S. Axelrod, David Leonard Downie, and Norman J. Vig (eds). Washington DC: CQ Press. Pp. 181-199.

Dunlap, Thomas R. 1999. NATURE AND THE ENGLISH DIASPORA: ENVIRONMENT AND HISTORY IN THE UNITED STATES, CANADA, AUSTRALIA, AND NEW ZEALAND. New York: Cambridge University Press. [*259]

Holmes, Oliver Wendell. 1881. THE COMMON LAW. Boston: Little, Brown.

Lacey, Michael J. (ed). 1991. GOVERNMENT AND ENVIRONMENTAL POLITICS: ESSAYS ON HISTORICAL DEVELOPMENTS SINCE WORLD WAR II. Baltimore, MD: Johns Hopkins University Press.

Mulligan, Martin, and Stuart Hill. 2001. ECOLOGICAL PIONEERS: A SOCIAL HISTORY OF AUSTRALIAN ECOLOGICAL THOUGHT AND ACTION. New York: Cambridge University Press.

Passmore, John A. 1980. MAN’S RESPONSIBILITY FOR NATURE: ECOLOGICAL PROBLEMS AND WESTERN TRADITIONS (2d. rev’d. ed.). London: Duckworth.

CASE REFERENCE:

Case Concerning the Gabcikovo-Nagymaros Project (HUNGARY v. SLOVAKIA). 1997. (25 Sept. 1997) ICJ Reports 7.

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