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I was invited to the launch of David Leary and Balakrishna Pisupati (eds), The Future of International Environmental Law (United Nations University Press, Tokyo, 2010) to offer a commentary on this new and important work.

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Launch of David Leary and Balakrishna Pisupati (eds), The Future of International Environmental Law (United Nations University Press, Tokyo, 2010)

Tuesday 12 October 2010

It is a great pleasure for me to be here this evening to celebrate the publication of The Future of International Environmental Law, by David Leary and Balakrishna Pisupati.

David kindly invited me to offer a commentary on the book, and I am delighted to do so. Authors tend to be fairly trepidatious when reading reviews of their own work, and so David and Balakrishna are to be saluted for their courage in subjecting their book to this very public appraisal. But of course there are only pleasant things that can be say about this terrific collection of essays on the future of international environmental law.

I should emphasise that my remarks about this book are not to substitute for your own reading; this will be no précis or digested read of the kind that John Grace offers each week in The Guardian. While there will be some spoilers there will remain plenty for you to discover yourself within the book’s covers, so I do encourage you, no in fact I demand that you get hold of your own copy [before you leave this evening].

We are at a critical turning point for international environmental law. Many of its core concepts, such as sustainable development and the precautionary principle, have become central features in the discourse of environmental law and policy throughout the world. And we cannot but be impressed by the many detailed and sophisticated environmental treaty regimes that address all manner of environmental issues from wetlands to whales. However at a time in which many environmental crises are worsening rather than improving, it must be asked whether international environmental law can really address the environmental challenges of the twenty-first century.

Is the process of international environmental law-making too cumbersome, politicised and unwieldy to yield the urgent changes to societal and government behaviour that we need to avert global environmental catastrophe? Have we been duped by the promise of international environmental law, dreaming about its potential while being blind to its inherent political limits? Is the treaty-making system, with all its quaint diplomatic and bureaucratic processes, which have not changed a great deal since the emergence of the nation state, really up to dealing with the great environmental challenges of our time? Above all, can international environmental law respond to the existential threat of climate change?

Writing about the disappointing Copenhagen climate conference in 2009, at which the international community failed to agree upon a successor to the 1997 Kyoto Protocol, columnist George Monbiot observed that there are ‘fewer handlebar moustaches, frock coats or pickelhaubes, but otherwise, as the world’s governments try to decide how to carve up the atmosphere, they might have been attending the Conference of Berlin’ in 1884 at which nation states formalised the great colonial scramble for Africa. The British comedian Marcus Brigstocke made the same point but rather less sombrely, parodying the muddle and deadlock at Copenhagen by drawing inspiration from Dr Seuss:

‘The delegates came and the delegates sat / And they talked and they talked till their bums all went flat / Then a delegate said of the country he knew / "We must do something quick but just what should we do?" / So they sat again thinking and there they stayed seated / Sitting and thinking "the planet's been heated" / "I think" said a delegate there from Peru / "That we all must agree on some things we could do / Like reducing emissions at least CO2" / So they nodded and noted then vetoed and voted / And one of them stood up and suddenly quoted / "It's the science you see, that's the thing that must guide us / When the leaders all get here they're certain to chide us" / So they sat again thinking about what to think / Then decided to ponder what colour of ink / To use on the paper when they’d all agreed / To be selfless not greedy McGreedy McGreed / "But how do we choose just what colour to use?" / Said a delegate there who'd been having a snooze / …’ So the delegates stared at the text with red marks on / Ignoring the gales of laughter from [Jeremy] Clarkson / No-one was satisfied nobody won / Except the morons convinced it was really the sun / And they blew it and wasted the greatest of chances / Instead they all frolicked in diplomat dances / And decided decisively right there and then / That the best way to solve it's to meet up again /And decide on a future that's greener and greater / Not with action right now but with something else later.’

The editors of the Future of International Environmental Law is fully alive to such critiques of international environmental law. Indeed they introduce the book by immediately confronting the issue of climate change, noting that it is the greatest threat facing humanity and life on Earth. They acknowledge the apparent disconnect or paradox – despite the proliferation of multilateral environmental agreements, the global environment continues to be degraded. They then pose the provocative question ‘Has international environmental law failed?’ They identify several reasons why we might think so. First, international environmental law has, in a sense, been a victim of its own success as the proliferation of environmental agreements places a strain on the capacity of states to implement them fully and in a coordinated way. Second, there has been insufficient attention given not only to making new environmental treaties, but in making them effective. Third, while international environmental law is now part of the international legal mainstream, it has yet to be fully integrated into all aspects of international law. Fourth, the editors note that international environmental, like all other areas of international law, is tethered to a consent-based, state oriented system that has not been able to respond to the reality of the interconnected global environment. And finally they make what might be thought to be a major concession by lawyers – that law may not always be the solution, and that a more holistic approach is needed. In this regard they encourage us to take a broader perspective, to think of international environmental law as being an element of global environmental governance.

These themes, introduced by the editors at the outset of the volume, are explored in the eleven chapters that follow. Those chapters are structured into three parts; with those in part one drawing lessons from the history of international environmental law, with those in part two looking at the ways in which several regimes are in transition, and those in part three examining several specific new challenges for international environmental law.

Ann Powers in her chapter on climate change and pollution and small island developing states, argues that they face a ‘peril of incalculable dimensions’, and one that a farrago of soft and hard law regimes has so far failed to provide a solution to. Susan Shearing grapples with the global decline in biodiversity during what is often called the Anthropocene era, in which humanity is driving the sixth major extinction event rivalling in rate and magnitude those of the distant past. Shearing highlights the gap between the rhetoric of biodiversity conservation and the reality, which is that there is next to no chance that we will meet the goal, set by the parties to the Convention on Biological Diversity in 2002, to achieve by 2010 a significant reduction of the current rate of biodiversity loss at the global, regional and national level. Whereas Powers and Shearing look to global environmental challenges, Tullio Scovazzi in his chapter fixes upon a smaller scale, an examines the achievements to date in the protection of the Mediterranean Sea. Much as Venetian Francesco de Mosto took us for a visual voyage through the Mediterranean in his TV series on the ABC, Milanese Tullio Scovazzi guides us through the Barcelona Regime for the protection of the Mediterranean marine environment, which is one of the most highly developed regional environmental regimes, addressing the full gamut of problems facing this semi-enclosed sea, from vessel-source pollution, to effective coastal-zone planning. Donna Craig and Michael Jeffrey then draw our attention to a remarkable development in international environmental law, which is the increasing recognition that public participation is critical for sound environmental governance. The Aarhus Convention, although applicable only to Europe, has shown how opening environmental decision-making to public scrutiny and public participation can promote better environmental outcomes. However Craig and Jeffrey caution that we should not expect higher levels of participation always to equate with higher levels of environmental protection. Rounding out Part I of the book is the contribution by Gudmundur Alfredsson, who explores the vexed question of the synergies and tensions between human rights law and environmental law. Alfredsson is optimistic that bringing human rights considerations within environmental law will pay dividends, especially as human rights law possesses well-developed institutions whereby individuals may seek a remedy on the international plane for rights infractions. I confess to harbouring some doubt about this, because of the anthropocentricity of human rights law, and therefore the inherent limits to its capacity to protect non-utilitarian environmental values.

The first chapter in Part II, by Michael B Gerrard and Dionysia-Theodora Avgerinopoulou, examines the current state of international climate change law, including the key features of the 2009 Copenhagen Accord, and they frankly acknowledge the difficulty of reaching a stronger international agreement without United States leadership, leadership that seems an even more remote prospect in the lead-up to the 2010 mid-term elections at which Tea-Party and other climate sceptic candidates are likely to do well, as a result of which the Democrats may lose control of the House and the Senate, thereby preventing the enactment of even very modest federal climate change legislation. To my mind the two most important points Gerrard and Avgerinopoulou make is that if mitigation strategies fail the world will have to turn to adaptation and to geoenineering, areas where there remains very little legal regulation. It is understandable that attention is shifting to ways to ‘fix the sky’, but this creates an enormous moral hazard, giving governments an excuse for inaction. Continuing the theme of regimes in transition, Timo Koivurova and Sebastien Duyck, examine the emerging legal regime to govern the Arctic Ocean. They point out that this is really a new ocean given the remarkable changes that are taking place, with summer sea ice falling to its smallest area in 2007, and with all climate models indicating that the Arctic will be entirely ice-free in summer within decades. The tragedy of the Arctic is climate change induced by the burning of fossil fuels is opening up opportunities for further exploration for fossil fuels, with the US Geological survey estimating that the region holds up to 30% of the world’s undiscovered gas, and 13% of the world’s undiscovered oil. There remain many issues to be resolved, and while the Arctic has no equivalent to the Antarctic Treaty System, perhaps rapid climatic change with catalyse not only environmental change but also political will to establish a far-sighted regime to safeguard the ecology of the region, and to keep its hydrocarbons safely locked away. The third chapter in Part II is by Rosemary Rayfuse, David’s colleague here at UNSW, who explores the enduring tension in the law of the sea between the Grotian freedom of the seas and the demands made by states and by the international community as a whole for restrictions on the use of the sea and its resources. Despite some acknowledgment of the need to deal with the tragedy of the commons resulting from free access to high seas fisheries, the freedom of the seas doctrine remains a central strand in the DNA of the law of the sea, and Rayfuse calls for a fundamental reimagining of a new paradigm where there is integrated and sustainable management of marine biodiversity in areas beyond national jurisdiction.

In Part III of the book, there are three chapters which provide us with glimpses of the future of international environmental law, one in which it will need to deal with scientific and technological developments that just a few years ago were no more than speculative ideas of science-fiction. David Leary and Balakrishna Pisupati in their chapter discuss the environmental risks inherent in the use of nanotechnologies and how these may be addressed through the law. They note that this is essentially an issue of risk-management, and regulation is needed to structure the assessment of this risk, an objective that may be met not only through formal legal instruments but also through standards set by governments and by the international community. Richard L Ottinger and Victor M Tafur assess the risks and benefits associated with the use of bioenergy, that is energy produced from vegetation. Regrettably, while biofuels are often presented as being clean and green, they may be produced in a way that results in significant environmental destruction, as seen most obviously in the illegal logging that takes place in Indonesia for palm-oil plantations. For Ottinger and Tafur the answer to this problem is not to be found in one single existing or new environmental treaty, but rather in a mixture of legal and non-legal standards and programmes, such as certificating and labelling schemes. Michele S Garfinkel and Robert M Friedman look to another emerging environmental issue, the synthesis of life forms in the laboratory, a technology that may have a range of biosecurity and biosafety risks but which, unlike genetically modified organisms, has yet to attract much attention from regulators, let alone from international environmental law.

In their conclusion to the book, the editors encourage us to think about the future of international environmental law as being bound up with the idea of international environmental governance, which goes beyond formal legal institutions and includes a kaleidoscope of management responses from industry standards to command-and-control regulation by governments. The Future of International Environmental Law confirms that international environmental law does indeed have a future, if the significant intellectual contribution made by the editors and authors of this book is taken seriously by governments. This is no starry-eyed compendium that lionises international environmental law, rather it offers a searching and realistic analysis of current and future trends in global environmental law-making by some of the world’s foremost scholars and practitioners in the field. I commend it to you.

Dr Tim Stephens, Faculty of Law, University of Sydney

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