1 February, 2010Issue 11.2ScienceWorld Politics

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Compromises and Solutions

Joel Krupa

foerDaniel Bodansky
Art and Craft of International Environmental Law
Harvard University Press, 2010
376 Pages
ISBN 978-0674035430

We are all familiar with the grim statistics quantifying humankind’s impact on the planet. From the radical alteration of the virgin rainforests of South America to the falling aquifer levels and melting mountain glaciers near densely populated areas of Southeast Asia, the list of worsening environmental conditions seems endless. Many believe that global ecosystems are spiraling toward total and irreversible collapse.

Faced with these apocalyptic prospects, Daniel Bodansky, a distinguished professor of international law at the University of Georgia and a renowned authority on the legal implications of anthropogenic climate change and greenhouse gas emissions, prefers to respond with cool-headed legal analysis rather than the righteous indignation that colours most modern environmental thought. In Art and Craft of International Environmental Law, Bodansky marshals a wide range of global empirical evidence to argue that environmental law issues are, above all, inextricably linked to ongoing political dilemmas. In doing so, he deflects attention from the apocalyptic rhetoric that tends to dominate environmental discourse to the legal contexts of effective environmental stewardship.

What are the ends of environmental policy and which problems deserve vital attention? What means should be used to achieve these ends? These are some of the difficult questions that Bodansky attempts to find comprehensive answers to in The Art and Craft of International Environmental Law. But the question which Bodansky’s book wrestles with most persistently—and which is one of the central issues of the contemporary environmental movement—is whether the faith in international environmental law is itself justified or misplaced.

Bodansky says it is justified. In opposition to those who claim that a shift toward an integrated and environmentally friendly economy would be prohibitively expensive, Bodansky contends that the technologies, policy instruments, and human expertise needed to tackle the problems are readily available and economically viable for governments and corporations worldwide.

Global consensus building, multilateral environmental agreements, and progressive co-operation are essential for reaching any sort of practicable solution to hot-button issues like climate change and biodiversity preservation. Unlike the vast majority of other legal subfields, complex environmental legalities transcend borders and must span vast differences in cultural values, economic policy, and political systems of thought. Yet in relatively few words, Bodansky succeeds in elucidating the myriad rules and processes that comprise international environmental law.

Bodansky is also aware, however, of the trickiness of adapting these laws in an inherently reactionary and unadventurous field like law. His discipline is plagued, he argues, by a patchwork of cases, many of which are non-binding, (in contrast to binding cases, which must be adhered to by affected countries). Furthermore, these cases provide few compliance enforcement mechanisms, in addition to carrying little weight for lack of sufficient precedent. The admittedly prosaic nature of law makes jurisprudence particularly susceptible to a systemic lethargy. For this reason, Bodansky insists that the legal community’s historical aversion to change must be overturned, even if only by an incremental and gradual process.

Although they believe that existing systems are flawed, proponents of environmental law will also concede that the industrial revolutions have resulted in numerous societal benefits, including strengthened environmental regulations, ecologically minded “Green” political entities, and citizen groups advocating for causes like biodiversity preservation and animal welfare. These optimists, many of whom wield considerable leverage in policy-making, point to isolated cases of unified environmental law advancement, such as the near-universal phasing out of ozone-depleting chlorofluorocarbons with the adoption of the Montreal Protocol.

Of course, critics of the current international legal regime abound, and Bodansky does not shy away from addressing the concerns of even the most radical of them. These increasingly outspoken activists, including prominent academics, community activists, and independent thinkers, believe that the existing structures need to be drastically altered or abandoned altogether. They claim that legal paradigms lead inexorably to exacerbated pollution issues, resource depletion, and eventually to complete environmental collapse. Indeed, the bulk of empirical evidence seems to corroborate this viewpoint.

But regardless of the many difficulties facing environmental law, one fact is clear: the art and craft of international environmental law must play a critical role in shaping our collective future. Any seasoned negotiator will tell you that most environmental agreements require more art than science, as negotiators diligently wrestle with national agendas, differing ideologies, and over-sized egos. As the world considers the disappointing results of the much-anticipated Copenhagen Summit and continues to revise other key global environmental agreements, it will be interesting to see if countries will choose to sacrifice short-term gains to fulfill their long-term legal and moral environmental obligations. The difficulties of matching soft law (i.e., non-binding legal instruments that simply provide direction rather than enforcement-heavy compliance) with scientific realities is a persistent difficulty yet to be solved. Unfortunately, most of the past environmental agreements have merely proposed guidelines rather than provided concrete frameworks for right action.

Corrective measures will be difficult and will require sacrifice. Politicians, in particular, must look beyond the next electoral cycle; business people must grapple with challenging concepts like inter-generational equity; and everyday consumers must re-think the effects that their purchases have on the biosphere as a whole. All of these changes must be complemented and encouraged by sound legislation and progressive environmental law.

Within these contexts, The Art and Craft of International Environmental Law provides a refreshingly open-minded perspective on the contentious debates surrounding environmental law and policy. Despite the justified concerns of dissidents, it would be unwise simply to write off environmental law as ineffective. Environmental law is like a living organism, one constantly seeking to adapt itself and to assert its importance. Bodansky is candid in his appraisal of the situation and realistic in his estimation of the role that environmental law will play in any solution. Unique in its accessibility to the layman, The Art and Craft of International Environmental Law makes for an engrossing and timely read.

Joel Krupa is reading for the MSc in Environmental Policy, at Mansfield College, Oxford. He is writing a thesis on solar energy potential in the Middle East.