THE ART AND CRAFT OF INTERNATIONAL ENVIRONMENTAL LAW, by Daniel Bodansky. Cambridge, MA: Harvard University Press, 2011. 376pp. Paper, $23.95. ISBN: 9780674061798.
INTERNATIONAL ENVIRONMENTAL LAW, by Ulrich Beyerlin and Thilo Marauhn. Oxford and Portland, OR: Hart Publishing, 2011. 484pp. Paper, $64.00. ISBN: 9781841139241.Reviewed by Geoffrey Wandesforde-Smith, Department of Political Science, University of California, Davis. Email: gawsmith [at] ucdavis.edu.
pp. 454-464
It is in some ways rather late in the day to be writing a review of The Art and Craft of International Environmental Law (Bodansky, 2011), one of the two books prompting this essay. The book has already been extensively reviewed elsewhere, notably by Nowlan (2010) and Ben-David (2011). These were detailed and on balance positive evaluations in prestigious law journals of the original 2010 hardcover edition of the Bodansky book. The book later garnered the Harold and Margaret Sprout Award of the International Studies Association (ISA) in 2011 as the best book published in the previous year on international environmental affairs.
Further, there is a fascinating and extended exchange with the author about the book in the widely respected Opinio Juris blog (Bodansky et al., 2010), drawing in the views of other international environmental law and policy experts. Widespread text adoptions of the Bodansky book have already occurred, and are favorably reported on the jacket of the newer, but not revised, paperback edition of the book.
Elizabeth DeSombre at Wellesley College says of the book, for example, that it is “clear and compelling,” that it “renders the most complex legal and political theory comprehensible,” and that it was “the perfect book for my advanced undergraduate course in international environmental law.” Philippe Sands, the unofficial dean of international environmental law, certainly in Europe, and one of its most learned court practitioners also finds the book “clear and compelling,” and says that it is written with “an elegance for which scholars, activists and policymakers should be very grateful.”
And as if this were not enough, towards the end of 2012, the Santa Clara Journal of International Law will devote the entirety of one of the issues of volume 10 of that journal to a symposium discussion of Bodansky and of the questions he raises, both about the future practice of international environmental diplomacy and the likely effectiveness of international environmental law in the face of such daunting challenges as climate change, biodiversity conservation, and the protection globally, and especially on the high seas outside of national jurisdictions, of ocean ecosystems and their most commercially valuable resource, fisheries (Anton, 2012). [*455]
The Bodansky book, it would seem, is already legendary. Is there more to be said?
Well, the answer is yes. The Bodansky book, in contrast to the new Beyerlin and Marauhn (2011) text, also under consideration here, was released too early to capitalize explicitly on the convening of the United Nations Conference on Sustainable Development (UNCSD) in Rio de Janeiro in June 2012, the so-called Rio+20 conference or summit. Beyerlin and Marauhn, on the other hand, do say they hope to catch the crest of what they expect will be a wave of interest in “the current global environmental crisis” (p.v) generated by Rio+20. Their prefatory note, dated June 2011, observes that preparations for Rio+20 are already under way and solemnly reminds scholars of their responsibility “to actively engage (sic) in the [ensuing] global discourse” (p.v), presumably with a good text ready to hand.
But although neither of these books, in common with their principal competitors (Sands, 2003; Kiss and Shelton, 2004; Hunter, Salzman and Zaelke, 2007; Birnie, Boyle and Redgwell, 2009), is in a position to reflect on what actually happened at Rio+20, they will both now become, along with all the others, fodder for the profound reassessment of the nature and significance of international environmental law and policy that is bound to follow the Rio+20 assembly and its outcomes. Because the hard fact is that, although Rio+20 was supposed to be just the latest mammoth manifestation, with more than 40,000 attendees, of an approach to international environmental law making that has a long pedigree (Sand, 2004) and has hitherto enjoyed pretty much unquestioned support among all major writers on the subject, what happened at Rio+20 was by most accounts deeply disappointing (ISDRS Newsletter, 2012: 44-64).
This latest Rio summit – a previous world environment conference was held there in 1992 – was meant to reaffirm the utility and efficacy in the environmental case of international law and policy development through large scale global conferencing, under the auspices of the United Nations (Kaufmann, 1988). Rio+20 was, in fact, the fourth more or less decennial iteration of a process for advancing global environmental cooperation that had its first outing, and probably its finest hour, at the Stockholm Conference on the Human Environment in 1972 and was then repeated, with some modifications and refinements, including a marked shift of focus away from a clear emphasis on environmental protection and towards the much more ambiguous, even unattainable, and perhaps undesirable (Anton, 2011; Craig, 2012) goal of sustainable development, at Rio in 1992, at Johannesburg in 2002, and this year in Rio, again.
The basic model for these summits was not without its critics (Brenton, 1994; Fomerand, 1996; Speth, 2004) and truth to tell it may have started to lose its edge quite some time ago, probably when it proved impossible to summon the political momentum to mount a decennial summit in 1982 to review and build upon progress since the Stockholm Conference and the UN General Assembly then contented itself, that [*456] year, (Bodansky, 2011: 30) with adopting a World Charter for Nature (Sands and Galizzi, 2004: 11-16), a motherhood and apple pie declaration that quickly disappeared into the dustbin of environmental history and is ignored in all of the leading texts noted earlier.
The summitry model was, however, one that yielded over the decades a substantial number of accomplishments, even if only counted by treaties concluded and entered into force, and, perhaps because of this path dependency, and because there is no immediately obvious alternative process for negotiating international agreements on truly global problems, like climate change, biodiversity conservation, and ocean resources governance, decennial environmental summitry persisted without much scrutiny of its underlying premises. In both of the two books under review, here, there is some descriptive history of the process of negotiation before, during, and after global environmental summit meetings as it has evolved since 1972 (Bodansky, 2011: 18-35; Beyerlin and Marauhn, 2011: 7-29), but, as in most of the major texts on this subject, the discussion is cursory, at best, and there is very little provided in the way of critical perspective.
Because Rio+20 was such a disappointment, we might say another disappointment, because the outcomes from Johannesburg in 2002 did not earn many plaudits either, this neglect of premises and history in our understanding of international environmental law and policy will start to be repaired. Indeed, there is already nascent a post Rio+20 literature, seeking to explain not only what happened but also why the underlying model of UN summitry, or conferencing, produced the results that it did (Chasek et al., 2012; Robinson, 2012; Yang, 2012). It is still early days, obviously, but two things about this literature, which I am sure is eventually going to be substantial, are already quite clear.
One is that there are lots of proximate causes for a disappointing outcome to the UNCSD summit in Rio de Janeiro, this past June. They include, in no particular order and without assigning explanatory weights to the factors in the analysis, the indecisiveness and inconclusiveness of the Rio+20 preparatory meetings; the backdrop of world economic recession; the poor attendance of heads of government in comparison to previous conferences; the mishandling or in some accounts the man-handling of the final negotiations on a conference outcome document by the Brazilian hosts; the continued intractability of framing hard law (global treaty) responses to outstanding substantive issues, such as forests and biodiversity conservation, oceans and fisheries management, and climate change; and perhaps the impending bankruptcy and possible jettisoning of the sustainable development paradigm that has underlain the search for cooperation between North and South on environmental issues for the last four decades (Chasek, Downie and Brown, 2010: ch. 1).
Beyond all this, however, there is a growing suspicion (Hurrell and Sengupta, 2012) that disappointment at Rio+20 signals, or is at least symptomatic of, a marked transformation of international relations – the working out of some very basic [*457] changes in the international system and the sources of world order the likes of which we have not seen since the collapse of old style Communism in the former Soviet Union and Eastern Europe (the end of history?), and certainly not since the rise to global prominence and major power status in the present century of an economically vibrant China, a country with a vigorous political presence in resource-rich developing countries all around the world, countries from which China extracts many of the means of production and items of consumption it does not itself possess (Gettleman, 2012), and a country increasingly surrounded on the world stage by a penumbra of shifting political and negotiating coalitions in which the United States has, at best, a subdued voice.
Let us assume, arguendo, that the Rio+20 outcomes were disappointing, that this may portend among other things a basic realignment in the international system around the newly emerging environmental policy interests of China, of the other rapidly developing economies, like India, Brazil, and South Africa, and of the still developing countries, and that, going forward, much will be changed in global negotiations over international environmental law and policy as a consequence of these rapidly evolving realignments in the international order.
That is admittedly a lot of givens. And Hurrell and Sengupta (2012) do warn against casually swapping the assumption that America has been and ought to be the chief driver of progress in international environmental cooperation – an assumption explicitly acknowledged in Bodansky’s (2011: xi) admission that his own perspective is “U.S.-centric,” but also undergirding other major texts — for an assumption that the U.S. no longer has much power and influence in international environmental affairs and may be losing its ability to exercise world leadership.
But, if these assumptions sketch an emerging and increasingly fragmented reality in international relations (Ovodenko, 2012), where does that leave the contributions made in the two books under review?
This question goes to the heart, I think, of the differences between the two books and it provides important clues about how as readers we should assess them.
Bodansky writes like an old pro. It is an explicit part of the attraction of his book, exploited quite fairly by Bodansky himself and by his publisher, that it draws from his practical experience in the U.S. Department of State, particularly in relation to the climate change negotiations, as well as his academic experience, from which he took leave to be a diplomat and State Department counselor, teaching and researching in international environmental law at Washington, Georgia, and now the Sandra Day O’Connor College of Law at Arizona State.
Bodansky was a senior U.S. adviser and negotiator at the fifth and sixth Conferences of the Parties (COPs) for the UN Framework Convention on Climate Change in 1999 and 2000. He was the head of the U.S. delegation to the Intergovernmental Panel on Climate Change (IGPCC) Working Group III plenary on climate change mitigation in [*458] 2001. And, earlier, he had worked in the State Department’s Office of the Legal Adviser between 1985 and 1989, dealing with issues of human rights and refugees and, later, matters related to the prevention of pollution in the oceans.
The accolades already bestowed on Bodansky’s book are, thus, reminiscent in some ways of the praise earlier bestowed on Ambassador Richard Elliot Benedick’s Ozone Diplomacy: New Directions for Safeguarding the Planet (1998), a book that was also published by Harvard University Press and also widely adopted as a text, at least for a decade, for “advanced undergraduate courses,” among others. Readers liked Benedick’s insider perspective on the everyday practicalities of environmental diplomacy and his ability to talk plainly about the political realities of forging agreements and making complex technical and economic commitments about exotic matters like ozone depletion that could be kept, even if they were less than ideal.
Bodansky was never an ambassador but his book has a similar practical diplomat appeal. His experiences surely make him more than a detached academic observer of bargaining and negotiation processes that occur far from the eyes of most teachers and researchers, and students, in most of the universities and law schools in the United States, and elsewhere. So, it is more than mere window dressing on the part of his publisher to say that Bodansky has a fair claim to be a seasoned observer of the processes he describes and analyzes. It is indicative of one of the real pedagogical values of his book, and it is an asset that would have gone a long way to leavening the tone of aspirational high-mindedness that often permeates Beyerlin and Marauhn’s work.
So, as a sometime participant in the processes he describes Bodansky is quite confident and comfortable saying that he is, first and foremost, a realist and a pragmatist, and that he wants his readers to make appropriately incrementalist assessments of what happens when international environmental agreements are drafted and debated and put into final form, if that is, in fact, the outcome. If there is a transformation of the international system under way, along the lines suggested by Hurrell and Sengupta (2012), and if it is substantially reshaping both the form and substance of international environmental negotiations as both they and Ovodenko (2012) surmise, then I venture to say that this will not signal to Bodansky any need to substantially revise either his view of how the world works or of how it can be improved. That view is encapsulated in a concluding statement in his book that has already been widely quoted but is worth repeating, here.
“In the end, international environmental law aims to find, not the optimal outcome, but rather the skillful compromise that bridges the gap between competing positions and advances the ball, even if only a little. This view . . . is admittedly more prosaic than heroic. It counsels us to resist the tempting oversimplification. It accepts that international environmental law, like politics, is the art of the possible – and seeks to find the ‘sweet spot,’ which goes as far as possible but not beyond. Above all, it sees the discipline of [*459] international environmental law, not as a panacea, but rather as an art and a craft” (Bodansky, 2011, p.271).Beyerlin and Marauhn are not much into sweet spots. Their basic view is that international environmental law and policy should, in the face of grave and worsening threats, go where the scientific evidence points, and that the job of the people who get caught up in the process of negotiating agreements, like the English troops with Henry V before Harfleur, is to stiffen their sinews, summon up their blood, disguise their fairer natures (Shakespeare, 1599: Henry V, Act III, Scene 1, Line 1) and wherever and whenever possible abjure the skillful compromise in favor of the right choice.
This is, I think, and not surprisingly so given that the authors are professors of public law at German universities, a distinctly European view. It is a view that often comes through in the tough negotiating positions that the European Union has taken on environmental issues in recent decades (Vogler, 1999). And it is, let it be said, a view that some find appealing (Wilkinson, 2011).
It is also a more than slightly technocratic view and its natural inclination towards didacticism is emphasized, perhaps unselfconsciously, by the way Beyerlin and Marauhn have put their book together. Their approach is to lay everything out themselves for the reader: to frame the parts and chapters of the book so that all of the essential topics covered in other texts are covered in theirs, too; to write the bulk of the text of each chapter so that, except for places where quotations from legal instruments and sometimes other documents are briefly interspersed, the law is only ever encountered by the reader indirectly; and to hew fairly closely to the law itself, not venturing too far into works of ethics, philosophy, economics, or political science.
This is not the only way environmental law books are put together in Europe (Holder and Lee, 2007), or elsewhere (Hunter, Salzman and Zaelke, 2007; Goble and Freyfogle, 2010), but it is their approach.
Of course, if one is compiling a text on international environmental law for undergraduates, and I assume they are the primary but not the only audience Beyerlin and Marauhn and their publisher have in mind, then the effort to make the text essentially self-contained is understandable, perhaps even laudable. But it does also mean that readers of the book, whether they are undergraduates or others, will have limited engagement with primary sources and will perhaps be heavily reliant in many cases and possibly, if they do not spend a lot of time in the library checking the footnotes in their textbook, totally dependent on the authors for understanding what those primary sources actually say, what different meanings they might have, and what significance should be assigned to them.
Readers, in other words, are going to take away from the book not just a passing familiarity with the paraphrased corpus of international environmental law but a fairly heavy dose of interpretation. So, one of the most important questions to ask about Beyerlin and Marauhn’s book is not [*460] what’s in it – the content by design is comparable to that of all the other international environmental law books on the market and cited here – but how it tries to make sense of the topics it covers.
Let me take as just one example the chapter of the book dealing with flora, fauna, and biological diversity (Beyerlin and Marauhn, 2011: ch. 14), and more specifically the discussion it contains of the Convention on International Trade in Endangered Species (CITES), adopted in 1973. CITES tries to preserve and protect species, first, by assessing the extent of their endangerment, second, by assigning them to one of three lists, or appendices, of species covered by the convention, and then by having signatory states regulate trade in covered species or their parts through an import and export licensing scheme. “The decisive question,” Beyerlin and Marauhn write, that therefore arises about CITES “is how species are included in and deleted from any of the Appendices” (p.185). That is a debatable proposition, as anyone familiar with the literature on CITES and Gettleman’s (2012) recent dispatches from Africa might agree, but let’s leave it stand for now.
Beyerlin and Marauhn then go on to consider examples of how CITES works, and the impact it has, by paying particular attention to the history of the African elephant, which has been on the agenda of the convention and its principal decision making body, the CITES Conference of the Parties (COP) since 1976. They note that the species was first listed in Appendix III, the least restrictive, was then moved to Appendix II, and then, when this proved “inadequate” in the face of global demand for ivory, and after several states imposed a ban on the commercial import of ivory, was moved to Appendix I in 1989.
The impacts were twofold. Elephant populations quickly recovered but “this…in turn caused problems for rural populations in Botswana, Namibia and Zimbabwe” who “could not even draw economic benefits from their huge elephant population.” And their “governments were then left with tons of ivory resulting from lawful management of the elephant population or from ivory confiscated from poachers” (p.187).
At this point, Beyerlin and Marauhn, without much further analysis or explanation, conclude that CITES is too “rigid,” by which I think they mean that the process for moving species from one Appendix to another is perhaps too slow and cumbersome in their minds to accommodate either to fluctuations in market demand or to what they clearly consider to be the legitimate demands of people in range states to make economic use of their elephants. This is notwithstanding the fact that, as they note, some African range states were given the benefit in recent years of a split listing between Appendix I and Appendix II, some ivory trade with China and Japan was partially sanctioned, and work was started on ivory trade action plans.
Despite this prima facie evidence of flexibility, Beyerlin and Marauhn nonetheless allude to the rigidity of CITES again when they write that “The concept of ‘sustainable use’ probably contributes much better and more effectively [presumably than what they [*461] elsewhere call pure conservation] to the management of the species, providing incentives for the local population and authorities to preserve species which may serve as a source of income” (p. 87). But then, since sustainable use is not sanctioned by the plain text of CITES but is legal under the terms of the more recent Convention on Biological Diversity (CBD) that most parties to CITES have also signed, they wonder whether “it may be argued that the concept of ‘sustainable use’ overarches” what they now call “the overly rigid system of CITES, since the CBD does not compete with CITES but co-determines the implementation of CITES” (pp.187-188).
The point I want to make, here, is not that Beyerlin and Marauhn offer their readers an incomplete or inaccurate account of how CITES works or what it accomplishes (although that case could be made, both in the case of African elephants and more broadly), but rather that they are using their account of how the world works to express preferences the origins and standing of which are only superficially explored for their readers. In the case of CITES, they would clearly like their readers to take away the view that CITES is a rigid, even overly rigid, way of trying to protect endangered species and that the way it works unfairly discriminates against the legitimate income-based expectations of Africans, for which there is no apparent redress except to amend or ingeniously to reinterpret the letter of the law in CITES. Bodansky (2011: 38-39, 256) would argue, and I would agree, that the situation is both less clear cut and more malleable than that. But that issue aside, the problem of unexplored preferences arises again at the end of Beyerlin and Marauhn’s chapter on wildlife.
Casting their eyes across the international legal instruments they have reviewed dealing with flora and fauna, Beyerlin and Marauhn write that three conclusions can be drawn. One is that too much of the emphasis that seemed important in the 1970s on the conservation of species and habitats still lingers. The relevant treaties “have been developed further and adapted…but their regulatory approach has remained the same” (p.209).
Secondly, they want to underline that the move away from “pure conservation towards sustainable use” is a good thing, because it makes international environmental law “much more economy-oriented, taking into account and building upon economic incentives and economic rationales of governmental and other (non-state) actors,” such that “there is at least a degree of plausibility that economic instruments may be viable means to achieve sustainable management of resources.” And, third, that the international community has only just begun to address urgent issues of wildlife and habitat conservation “systematically,” and that the “promising” way towards real progress lies in insisting upon and pursuing “an integrated approach” (p.209).
So, 1970s-style regulation is both suspect and passé. The accommodation of market (neo-liberal) approaches to conservation is a good thing. And the history that has yielded such a woefully unsystematic and un-integrated set of legal and policy instruments for conservation up to this point in time [*462] needs (somehow) to be erased or overridden in the interest of developing a more contemporary set of more perfectly integrated and optimized tools.
This sounds to me less like an agenda for understanding international environmental law than a project for critiquing it through some lens of modernity, a lens that is impatient with the messiness Bodansky finds so delightful in the world and intolerant of a “normative system of international environmental law [that] is still far from perfect and shows severe gaps” (p.439). “Notwithstanding the increasing awareness of the urgent need for global environmental cooperation,” Beyerlin and Marauhn write, “states are still far from constituting a solidarity-driven community acting in concert as faithfully and intensively as needed” (p.440).
But there is not, as far as I can tell, and I venture to say that Bodansky would agree, an ineffable imperative in the international system driving states towards solidarity, or moving them as a community of the faithful, towards historically un-rooted, systematically conceived, and ideally integrated and optimized solutions to the world’s admittedly pressing (and for many depressing) environmental problems. And, if there were, it would have been a principal object of the course on international environmental law that I taught to undergraduates for nigh on twenty years to show my students how to be deeply suspicious of it.
REFERENCES:
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[*463] Bodansky, Daniel. 2011. The Art and Craft of International Environmental Law. Cambridge, MA: Harvard University Press.
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Vogler, John. 1999. “The European Union as an Actor in International Environmental Politics,” Environmental Politics 8(3): 24-48.
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Copyright 2012 by the author, Geoffrey Wandesforde-Smith
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