All posts by Rachael L. Johnstone

Donald R Rothwell & Tim Stephens, The International Law of the Sea (London: Bloomsbury, 2016, 2nd ed.)

This second edition of The International Law of the Sea by Rothwell and Stephens replaces the original title from 2010. The law of the sea is one of the most ancient fields of international law and the basic principles can be traced to Grotius. Nevertheless, as is evident from this new edition, the law of the sea can also evolve very quickly, hence the need for a revised volume. Rothwell and Stephens update the original text with insights from recent judicial rulings and developments in State practice. These include the International Court of Justice judgment in Whaling in the Antarctic, advisory opinions of the International Tribunal of the Law of the Sea (ITLOS) on Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area and on illegal, unreported and unregistered fishing (Sub-Regional Fisheries Commission request), ITLOS decisions on the Arctic Sunrise and Delimitation of the maritime boundary between Bangladesh and Myanmar in the Bay of Bengal, and the arbitral decision in the Bay of Bengal Arbitration (Bangladesh/India) case. Rothwell and Stephens also discuss other recent developments, for example, steps to manage biodiversity in the marine environment, through commitment at the Rio+20 meeting and the ongoing negotiations for a third implementing agreement under the UN Convention on the Law of the Sea (UNCLOS) on the conservation and sustainable use of marine biological diversity beyond national jurisdiction.

The book is structured thematically beginning at the State baseline and moving gradually outwards before addressing, inter alia, the rights of landlocked States, rights of passage, resource management, marine scientific research, environmental protection, boundary delimitation, enforcement and dispute settlement. In short, the book covers all the main topics of a standard university law of the sea course. Most chapters take a chronological approach, beginning with the early developments in customary law, codification in the four Geneva Conventions on 1958, evolution of customary law in the period up to the 1980s, the provisions of UNCLOS and later developments.

Rothwell and Stephens are gifted communicators, writing fluently about even the most technical elements of law of the sea. Thus, even the notorious article 76 of UNCLOS on delineation of the limits of the outer continental shelf is presented in an accessible manner (115). The book is eminently readable, one of the clearest expositions of the principles of law of the sea, that one can read from cover to cover and get a holistic sense of the overall principles and structure of this enormous area of law. It is, therefore, an excellent introductory textbook. However, as a textbook, it unsurprisingly lacks the depth and level of critical analysis that one would find in a monograph devoted to specific issues in law of the sea (of which there are hundreds, some of which dealing with a single article of the UNCLOS).

As an instructor, I would recommend this textbook for an undergraduate law of the sea course but would expect students to supplement it with close reading of case law and academic analyses in journal articles. Students may balk at the sight of 500 pages (plus cases and journals!) but the quality of writing is so high that it takes a surprisingly short time to read the book. The law of the sea is simply an enormous branch of international law that cannot be condensed any further. I would also recommend this textbook to scholars from other disciplines seeking to get a basic grasp of law of the sea to support related research. This could include political scientists studying international relations pertaining to ocean governance, natural scientists working on fisheries, ocean geomorphology, climate change and other environmental issues, and business scholars examining marine resource management or shipping.

The main competitors to this book are The International Law of the Sea (Tanaka, 2012), Law of the Sea in a Nutshell (Soh, Juras, Noyes and Franckx, 2010) and the now rather dated The Law of the Sea (Churchill and Lowe, 1999) each of which has its own merits. For sheer readability, however, Rothwell and Stephens have the edge.

 

Little Fish, Big Pond: Icelandic Interests and Influence in Arctic Governance

Introduction

On pretty much any measure of international comparison, Iceland is a little fish. Nevertheless, its geographical location next to the Big Pond that is the Arctic Ocean has put in a position of influence in a region of growing international importance.

In this paper, I will explore Iceland’s influence in the Arctic region based on international relations considerations such as its political alliances; and based on international law: Iceland’s rights and responsibilities.

The paper presents the Arctic Council and Iceland’s role within it before turning to issues that are governed outside of the Arctic Council system, in particular, Arctic fisheries and maritime boundaries. The paper explains Iceland’s approach to Arctic cooperation in light of its published policy documents and explore the tools available to Iceland to defend its interests.

Iceland as a ‘Small State’

Small States seek shelter: usually on a regional basis.[1] They make alliances to advance their objectives and protect themselves from the lions. On hard security issues, Iceland finds this in the folds of NATO. The Arctic Council does not address hard security issues at all – and despite some heated press coverage, Russia is not posing a military threat in the Arctic, to Iceland or anyone else. But Iceland also needs economic and environmental security which it has fostered through Nordic cooperation, EFTA, the EEA and, of increasing importance, the Arctic Council.

International relations provides a number of objective criteria on which to measure a State as ‘small’: population, territory, GDP and military.[2] States may be small by one measure but not by another – for example, having a very large territory but a tiny military; or having a small population but a high GDP.

In a global context, Iceland is very small. Its surface area amounts to less than 0.07% of the Earth’s land; its population less than 0.005% of the World’s; its GDP is under 0.02%. And Iceland has no military as such.

But States are also big or small in a given geopolitical context: the Kingdom of Denmark is a small State in global affairs but not in the Nordic Council. Being ‘small’ or even ‘very small’ is a relative matter rather than an absolute. Therefore although Iceland is a very small State at the international level, within the Arctic Council system, it exerts an influence that belies its small territory, population and economy.

Iceland’s Relative Size in the Arctic Council

‘The Arctic’ has a number of different definitions for different purposes, even within the Arctic Council system itself. For example, the area covered by the sustainable development working group is based on human interests; the protection of the marine environment working group is only concerned with the seas; conservation of arctic flora and fauna is determined by ecosystems. In all cases, Iceland is included in its entirety even if almost all of it sits below the Arctic Circle. By contrast, for the purposes of the Polar Code, agreed through the global International Maritime Organisation (IMO), Iceland is entirely to the South of the protected area: this is based on considerations of the marine conditions – temperature and ice-cover especially.

The Arctic Council consists of the eight States with territory that stretches above the Arctic Circle: Canada, the Kingdom of Denmark, Finland, Iceland, Norway, Russia, Sweden and the United States of America. In addition, there are six permanent participants: these are organisations of indigenous peoples from around the Arctic. Each is transnational in character. Five permanent participants represent peoples that inhabit more than one State: the Aleut International Association, the Arctic Athabaskan Council, Gwich’in Council International, Inuit Circumpolar Council and Saami Council.  The sixth is the Russian Association of Indigenous Peoples of the North and represents over 40 small-numbered indigenous peoples in Northern Russia.

When thinking about small State theory, how ‘small’ is Iceland in the Arctic Council?

Iceland is still very small when territory is considered: it is dwarfed by the Russian and Canadian Arctics. However, when looking at population, Iceland is not far from the average with a population of approximately 330,000 (see Figure 1).

Arctic populations
Figure 1: Arctic populations

However, these figures are based on assuming that the whole of Iceland is ‘Arctic’. This is indeed the position of the Icelandic government and important to securing its legitimate participation in Arctic governance. Foreign Minister Össur Skaphérðinsson stated in his introduction to the Icelandic Arctic Policy statement in 2009 that: “Iceland is the only state that is wholly within the Arctic area, as it is generally understand international affairs or at the Arctic Council.”[3]

The current draft policy, Iceland’s Interests in the Arctic, goes even further and suggests that Iceland is somehow more Arctic than its neighbours – in which the vast majority of the population and the territory (but for the Kingdom of Denmark) lies well south of the 66th parallel.

 

Iceland is unique when we compare it to other nations that are geographically part of the Arctic. Most other countries, aside from Greenland, are predominantly South of the Arctic according to these definitions and their populations live mostly outside of the Arctic.[4]

If we then stop to consider the observers at the Arctic Council, the Iceland once more disappears – over half the World’s population is now represented in some form at the Arctic Council.

Further, it is not just the observer States and intergovernmental fora that make Iceland look little: WWF, observer at the Arctic Council, has a membership in excess of 5 million people. These are not just people who happen by birth to be affiliated to a particular State; these are people who care enough about WWF’s priorities, including its Global Arctic campaign, to pay an annual subscription.

The History of the Arctic Council

So how can Iceland exert its influence at the Arctic Council? And why was it in favour of the great expansion of observers in 2013? To understand this, we need to explore the Arctic Council’s origins and the way it functions today.

In the 1970s and 1980s, the only international interest in the Arctic was how long it would take to fire an intercontinental missile across it. A diligent doctoral student in the 1980s (now a very well-known professor of law of the sea) was told by his supervisor that he was wasting his time writing about the Northern Sea Route!

Iceland invited Gorbachev and Reagan to meet for disarmament talks in Reykjavík in 1986 and although no agreements as such were agreed, it was sufficient – no pun intended – to break the ice.

It was Gorbachev who then came along with the olive branch: the speech at Murmansk in 1987 in which he identified six areas that he saw as ripe for cooperation:

  • A nuclear weapons-free zone in Northern Europe;
  • Reductions and restrictions on naval activity in Northern Europe;
  • Cooperative development of hydrocarbon resources in the Arctic;
  • Scientific cooperation;
  • “Cooperation of the northern countries in environmental protection”; and developing “jointly an integrated comprehensive plan for protecting the natural environment of the North”; and
  • Opening of the Northern Sea Route to international vessels.[5]

Finland seized on this overture and initiated the Rovaniemi Process which in turn led to the Arctic Environmental Protection Strategy (AEPS) in 1991.[6] Pointedly, this initiative was established at a meeting of 8 ministers for the environment, not foreign ministers. The four original working groups, later joined by Sustainable Development and, under the Arctic Council, Arctic Contaminants Action Program (ACAP), are all environmentally oriented.

The transition to the Arctic Council in 1996 was effected through the Ottawa Declaration.[7] This change indicated a much broader range of interests: this was no longer solely a forum for managing shared environmental threats and clean-up activities – it was now, in theory at least, able to address any shared concerns with the explicit exception of military security. According to the Ottawa Declaration, the Arctic Council is established to “provide a means for promoting cooperation, coordination and interaction among the Arctic States, with the involvement of Arctic indigenous communities and other Arctic inhabitants on common Arctic issues, in particular issues of sustainable development and environmental protection in the Arctic.”[8]

But in 1996, the Arctic Council was still a fairly marginal institution and outside concern with the Arctic did not extend much beyond preservation of polar bears. Even in Iceland, there was little awareness of the Arctic as a geopolitical region as such or Iceland’s place within it. Iceland looked South to Europe and West to North American for trade but it did not really look North.

Between 1996 and 2000, the number of permanent participants rose from two to six and in the early 2000s, there was a slow but gradual increase in the number of observers. Iceland took the rotating chairmanship from 2002-2004; this also happened to be the time when international interest in the Arctic took off. By around 2005, the Arctic was gathering more and more attention in international relations, international law, development, economics and environmental scholarship and activism. The battle lines were being drawn between those that wanted it closed off as an international natural park; and those that wanted to exploit its apparently abundant resources (forgetting, perhaps, that Russia had been exploiting Arctic resources since at least the times of Stalin).

From about 2010 onwards, five rising Asian States, Italy and the European Union were seeking a formal place at the Arctic table: observership at the Arctic Council. This was awarded for the six States in 2013 and effectively for the EU at the same time but followed three years of intense lobbying efforts and heated discussions.[9]

 

The Operation of the Arctic Council and Iceland’s Influence within it

How can Iceland, then, maintain its influence in the shadow of these giants? To understand this, we need to examine how the Arctic Council operates.

The Arctic States are the members of the Arctic Council and the associations of indigenous peoples are permanent participants. This is a unique format for an international body. The Arctic States and permanent participants sit together at Arctic Circle meetings and have equal rights to contribute to the agenda and debate.[10] Decisions are made by consensus between the member States and in practice, usually the consensus of the permanent participants as well.[11]

The Arctic Council operates at a number of levels (see Figure 2). At the top is the biennial ministerial meeting, the location of which coincides with the chairmanship (which changes every two years on a rotating basis). The Senior Arctic Officials (SAOs) are the member States’ ambassadors who meet alongside the permanent participants and observers twice yearly. A number of subsidiary bodies exist, principally the six working groups which are essentially scientific bodies that can present findings to the SAOs and ministerial meeting but whose policy recommendations must be endorsed by the Arctic States. The working groups are standing bodies but there are also time–limited Task Forces which address specific issues and now the Expert Group on Black Carbon.

The Arctic Council
Figure 2: The Arctic Council

Observers at the Arctic Council[12] have much less influence than the members or permanent participants; in short, their role is to ‘observe’ and not to talk. To become and remain an observer, an entity must: bow to Arctic States’ sovereignty; recognize and commit to uphold international law, in particular, the law of the sea in the Arctic; respect the rights of indigenous peoples; demonstrate commitment, including financial commitment, to the work of the permanent participants; and show its capacity to contribute to Arctic interests, including scientific research.[13]

Observers’ have limited rights at Arctic Council meetings and are expected to contribute principally through the working groups.[14] Unlike the member States and the permanent participants, observers may not propose items for the agenda or raise points during Arctic Council meetings (ministerial or SAO meetings) although they are permitted to submit written statements.[15] Even at the subsidiary bodies, the observers are sat apart at the ‘children’s table’, behind the main table and they may speak only after the States and permanent participants have had their say and even then at the discretion of the chair.[16] Observers are also reviewed every four years but can be excluded at any time as their observer status only lasts as long as consensus exists amongst the ministers. In other words, it would require only one member State to exclude an observer.[17] This means that observers cannot exert the influence they have in other international fora within the Arctic Council. To maintain their observerships, they must placate all the Arctic States and most of the permanent participants, most of the time. Iceland might be little but in the Arctic Council it wields a great deal more influence than China.

The Arctic Council punches well above its weight for what is structurally no more than a roundtable for discussion with no law-making powers or compliance mechanisms. Nevertheless, there are two very significant limitations on what it can do. The first is financial: it has no regular funding and seeks contributions on an issue-by-issue basis.[18] This requires States – including observer States – being willing to front cash. Secondly, the consensus model means that it requires only one State to object to anything to take it off the table – whether that be the wording in a recommendation or the initiation of a project in the first place. Iceland can veto anything.

The Arctic Council has also successfully insulated itself from international tensions and disputes that have dampened East-West relations over the past few years such as the crises in the Crimea and Syria. While Iceland ties itself in knots internally over the Russian sanction regime, this is entirely curtained off at the Arctic Council meetings. When tensions have occasionally arisen between Canada and Russia, Iceland can sit back and enjoy the show; it is not forced to take a position. Also, Iceland, having no indigenous peoples of its own, can play the honest broker and be a neutral mediator between the permanent participants and States.

Alliances in the Arctic Council are fluid; there is no obvious ‘Nordic block’ as often occurs at the United Nations and Iceland will defend its own interests on an issue by issue basis. The consensus approach – or the ‘veto’ approach if you prefer – means that fixed alliances are not necessary; no State can be forced into a position that it finds unacceptable.

Beyond the Arctic Council

From Iceland’s perspective, as a very small State, the Arctic Council is a very attractive forum in which to advance its interests. Its official policy, to prioritise the Arctic Council as the key forum, mirrors that of Sweden and Finland, because it is here that the States have the most meaningful influence.[19] A very small State has limited bargaining power in bilateral negotiations with much larger countries; but it also has minimal influence in global fora in which it is outweighed – and outspent – by major powers. Even worse is a forum in which Iceland is not represented at all.

The same consensus-based system that allows Iceland to protect its interests in the Arctic Council allows the other seven States to do the same – and allows them each to keep certain things of the agenda to be dealt with elsewhere. The so-called ‘Arctic Five’ have squeezed out Iceland over two issues: Arctic High Seas fisheries; and the delimitation of the outer continental shelf.

The Arctic Five

Iceland has a small Arctic coastline but it is does not itself border the Arctic Ocean per se. Its exclusive economic zone (EEZ) is met by the Norwegian and Greenlandic EEZ’s in the North. Therefore although Iceland is an ‘Arctic Coastal State’ is it is not an ‘Arctic Ocean littoral State’ – i.e. it does not have a coastline or EEZ that borders the Arctic Ocean.

The Arctic Five – Canada, Denmark, Norway, Russia and the USA – meet occasionally outside of the Arctic Council framework, pushing to one side not only the other three Nordic State partners but the permanent participants as well. The basic justification for this is that the Arctic Ocean is a ‘semi-enclosed sea’ – a debatable claim geographically but one that gives those five States a special responsibility under the Convention on the Law of the Sea to manage the area.[20]

This group met in Oslo in 2007, Ilulissat, Greenland in 2008 and Chelsea, Québec in 2010 to discuss the legal framework for the Arctic Ocean. The Ilulissat meeting culminated in a declaration which was a broad reaffirmation of State sovereignty in the Arctic, an endorsement of the law of the sea as the governing framework for the Arctic Ocean and a message to non-Arctic States that a treaty based on the Antarctic model of environmental protection and internationalization would not be accepted in the North.[21]

Iceland registered its objections and emphasized the importance of the Arctic Council as the principal forum; but the Arctic Council cannot have a monopoly on any topic and nothing can prevent States from meeting and negotiating outside of the Arctic Council system.

The Outer Continental Shelf in the Arctic

The sexy issue in the Arctic today is the grand carve-up of the outer continental shelf. Iceland does not have a stake in this game because it does not have an Arctic coastline. In any case, while it might resemble a colonial land-grab with dramatic flag-planting and grand declarations of sovereignty, the system to resolve and allocate rights over the ocean floor is long settled.[22] It is admittedly slow and laborious but in short: Canada, Russia and Denmark or Greenland will sooner or later sit down and resolve their overlapping map submissions through bilateral negotiations. There is no hurry to do this as all the resources of any near-term commercial interest are far from the contested zones.

In respect of Iceland’s continental shelf, the Dragon Area to the North by Jan Mayen is long settled as a joint development zone with Norway. Iceland has three potential areas of outer continental shelf that are being mapped and of these, the Rockall area to the South is contested as four States (the Kingdom of Denmark (Faroe Islands), Iceland, Ireland and the United Kingdom) jostle for exclusive rights; but this is not an Arctic issue (see Figure 3).[23]

Iceland's maritime zones - The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.
Figure 3: Iceland’s maritime zones – The thick black line circling Iceland indicates the boundary of Iceland’s EEZ. The red line to the South indicate Iceland’s maximum potential outer continental shelf around Rockall; the purple, green and yellow lines indicate the submissions of the Kingdom of Denmark (Faroe Islands), the United Kingdom and Ireland respectively.

Arctic Fisheries

Fisheries are more interesting but not an immediate concern. Iceland has exclusive rights over fish stocks within its EEZ but it has to manage shared and straggling stocks and highly migratory species in cooperation with neighbouring States (see Figure 3).[24] For the most part, this goes reasonably well though there is an ongoing sore point over the mackerel which has been gradually shifting Northward and Westward and competing with the cod stocks.

There are very good reasons to keep this out of the Arctic Council framework. The European Union is a key player in this dispute and the last thing any of the Arctic States want to do is give the European Union equal standing at the Arctic Council.

More speculative is the future governance of fisheries in the Arctic High Seas (see Figure 4). [25]

The EEZs and High Seas in the Arctic Ocean
The EEZs and High Seas in the Arctic Ocean

Currently, there are no fishing in the Central Arctic Ocean (the High Seas marked dark blue in Figure 4) as it is too far, and mostly ice-covered, to offer commercially exciting fisheries. Existing fisheries are all safely within the 200 nautical mile EEZ of the coasts. They are managed by the Coastal States and various regional fisheries management organisations (RFMOs). The North East Atlantic Fisheries Commission (NEAFC) NEAFC covers a small corner of the High Seas, but otherwise, the Central Arctic Ocean is an international commons.

The Arctic Five have taken the lead – again under protest from Iceland. High Seas are beyond the jurisdiction of any State and under the UN Convention on the Law of the Sea and the Fish Stocks Agreement, to prevent a ‘free-for-all’ and a tragedy of the commons, States with a ‘real interest’ should work together.[26] The difficulty in the Central Arctic Ocean is that there are currently no fisheries and hence it is very difficult to determine who has a ‘real interest’ in the legal sense.

Where the High Seas are concerned, Iceland’s position is that it has just as much interest in the area as the five littoral States; the Arctic Five disagree and began negotiations amongst themselves. This concluded with a moratorium in July 2015 – a temporary ban on Arctic High Seas fishing until such time as scientific studies had evaluated the available stocks and their resiliency.[27]

A moratorium agreed with the Arctic Five cannot bind other States which is why they invited five other entities to a discussion in Washington DC in December 2015 about future governance of living marine resources in the Central Arctic Ocean. The five littoral States attended, alongside five invited participants: The European Union, China, Japan, South Korea and Iceland: the ‘A5+5’.

Russia had expressed scepticism as to the need to include any other States at this point but nonetheless attended the December talks.[28] This indicates the Arctic Five’s recognition that these are all entities with a ‘real interest’ as they are those most likely to have the potential for fisheries in the Central Arctic Ocean. It is also indicative of a view amongst the Arctic Five that no other State or entity has a ‘real interest’ – at least at this time.

Being left on the second tier alongside distant Asian States might be humbling for Iceland but an ‘Arctic Six’ is simply not going to happen. Iceland does have legal interests in the Central Arctic Ocean: but in law, these are no different to those of the EU or China. This is not an urgent matter as there is no immediate economic potential but Iceland nonetheless can be expected to protest any exclusion and to defend the role of the Arctic Council to prevent precedents being set for Arctic governance without its involvement.

 

Arctic Shipping

The last hot topic in the Arctic that is outside of the Arctic Council system is shipping. Freedom of navigation is a fundamental principle of law of the sea that applies right up to States’ baselines. It is a global right that is managed at global fora, in particular, the International Maritime Organization that developed the Polar Code. Iceland has no special legal or commercial interests in the Arctic shipping. .[29] Iceland’s EEZ has no ice-covered waters so it has no extended authority to protect its marine environment beyond that which applies generally under the Convention on the Law of the Sea.[30] But that will not prevent it examining commercial opportunities should commercial shipping develop.

Iceland’s Arctic Policy

The priorities I have identified are reflected in the development of Iceland’s Arctic policies. Increasing governmental attention to the Arctic can be traced at least to the Icelandic chairmanship of the Arctic Council but this section will look only at the official policy formulations from 2009 onwards.

Former Minister of Foreign Affairs, Össur Skarphéðinsson set the ball rolling in 2009 with the report, Iceland in the Arctic.[31] He followed this up by making the Arctic a key theme of his 2010 report to the Alþingi and then sent them a draft to develop into a formal policy (stefna) which the Parliament then took up and agreed with few changes in 2011.[32]

In May 2015, the new government issued a draft for consultation: Iceland’s Interests in the Arctic: Opportunities and Risks, though this has yet to be finalized and the projected date has been repeatedly put back.[33] The current Minister of Foreign Affairs, Gunnar Bragi Sveinsson, put the Arctic once more at centre stage in his 2016 annual report to Parliament.[34]

In all of these, we see an emphasis on multilateral approaches, the importance of the Arctic Council and the assertion of Iceland as an ‘Arctic coastal State’ that is a challenge to the legitimacy of the Arctic Five.

In Skarphéðinsson’s extensive first report, Iceland in the Arctic, international cooperation is the first priority with particular attention on the Arctic Council. However, the Barents-Euro Arctic Council and the West-Nordic region are also mentioned as important fora. In his 2010 report to Parliament on international affairs, the first region to be addressed is the High North and of the ten Arctic priorities, the first is:

to secure Iceland’s position as a coastal state and a key stakeholder in shaping the future development of the High North. Iceland should be considered a full-fledged coastal state on a par with such countries as the USA, Denmark (for Greenland), Canada, Norway and Russia.[35]

 

This repeats an earlier rebuke to the Arctic Five for their exclusion of Iceland but it is also noteworthy that for all Iceland’s talk of the importance of the Arctic Council, it is not unduly concerned about the exclusion of Finland, Sweden or the indigenous representatives from the Arctic Five talks.[36]

Defence of the Arctic Council comes later (Arctic priority 4) but all the priorities point to Iceland’s need for multilateral Arctic governance and the importance of securing of Iceland’s role within it.[37]

Until such time as the current government agrees a new policy, the official Icelandic Arctic policy remains the 2011 Parliamentary Resolution.[38] It largely follows Össur’s 2010 report though one interesting change is that the Alþingi changed the order, placing the Arctic Council first. However, it also highlights Iceland’s special status as a ‘Coastal State within the Arctic Region’ in priority two.[39]

One surprising aspect of the draft of the latest Arctic policy is that it follows much of the previous approaches but makes very little direct reference, perhaps reflecting a desire of the governing coalition parties to present the Arctic as their project.[40] It was these two coalition parties who held the reins when the Arctic first hit the radar of Icelandic politics and who actively pursued increased cooperation and investment in Arctic relations and research. The draft highlights once more Iceland’s Arctic credentials, now suggesting that Iceland is somehow more Arctic than the other States (in which most of the land and population are far South of the Arctic).[41]

International cooperation is still the top priority, especially through Arctic Council.[42] However, other fora are mentioned and special relations with Greenland and the Faroe Islands are promoted.[43]

The opportunities (tækifæri) identified are very much business-focused: new fisheries, hydrocarbons and shipping; climate change is not presented as wholly negative.[44] This is reminiscent of Berit Kristoffersen’s concept of ‘opportunistic adaptation.’[45]

Indigenous peoples are overlooked in the report almost entirely; mentioned only once in the introduction, their rights and interests are ignored throughout, even in areas where proposed Icelandic activities can have serious impacts.

Most recently, in March 2016, the current Minister for Foreign Affairs, Gunnar Bragi Sveinsson, delivered his annual report to Parliament. The Arctic is once more the first region to be assessed. The 2011 Parliament resolution remains the key policy and there is no mention of development of the new strategy document (i.e. Iceland’s Interests in the Arctic).[46]

Sveinsson seeks an increase in Iceland’s contributions to the Arctic Council’s activities, especially at the level of working groups, task forces and expert groups and points to the need to begin preparations for the Icelandic chairmanship that begins in 2019.[47] The Arctic Council’s operations are explained in a fair degree of detail to Parliament (given the habitual nature of such reports) some detail (given the nature of such reports) in the following pages.[48]

West-Nordic cooperation is also given special attention, indicating an interest in promoting further cooperation with the Faroe Islands and Greenland.[49]  This is a region or sub-region that is not given a great deal of attention in international relations but has the potential to grow in importance. In this context, Iceland is the ‘big State’ and the only one of the three countries to have decolonised from the Kingdom of Denmark (so far). However, the West Nordic Council is significantly limited in its activities in the absence of considerable investment: not easy to come by in three very small and cash-strapped countries.

The Arctic High Seas fisheries issue is not addressed directly in the report and no reference is made to the A5+5 December 2015 meeting in Washington DC. (This may have been a matter of the timing of the drafting of the report or it may indicate that the current foreign ministry no longer wishes to continue to fight this battle.) Nevertheless, within the section on Arctic cooperation, Sveinsson obliquely refers to the dependence on marine resources of the Icelandic economy and the importance for Iceland of ‘actively participating in international cooperation concerning ocean affairs’.[50]

Making Sense of Iceland’s Priorities

The official Icelandic approach does not diverge widely from what might be expected from a very small fish beside a very big ocean. Multilateral cooperation is key and the Arctic Council is the preferred forum as it secures Iceland’s influence. Nevertheless, although Iceland objects to the Arctic Five, it would quite happily accept an Arctic Six – as long as it is in it.  Iceland objects to its own exclusion and does not necessarily take a particularly principled stand in defence of broader multilateral cooperation.

However, Iceland has been open to the expansion of observers at the Arctic Council; some of these courted Iceland generously during the application period. Iceland needs its international partners beyond Arctic States but if Iceland can channel them through the Arctic Council, it prevents them from overpowering it.

Iceland continues to assert its interest and demand involvement in fisheries management. Iceland must be practical here and take part in the A5+5 – even if it would prefer an A6+4. The shelf is not so pressing and will be resolved in time. Iceland sees some commercial opportunities in shipping –but this is a very long game and will be managed through the IMO.

The current government’s approach to the Arctic is rather more commercially oriented that its predecessor as it looks to climate change as an opportunity (as well as a risk factor) and seeks to profit from the resources that the receding ice ostensibly presents. Nevertheless, those resources remain very expensive to access and develop irrespective of the state of the ice.

[1] See, eg, Alyson Bailes, Baldur Þórhallsson, and Rachael Lorna Johnstone, “Scotland as an Independent Small State: Where Would It Seek Shelter?,” Stjórnmál og Stjórnsýsla 9, no. 1 (2013).

[2] Ibid, 3.

[3] Össur Skarphéðinsson, Ísland á norðurslóðum, Inngangur, 2009 (translation by present author).

[4] Ministerial Committee on Arctic Affairs, Hagsmunir Íslands á norðurslóðum: tækifæri og viðsjár (draft), March 2015.

[5] Mikhail Gorbachev, Speech at Murmansk, 1st Oct.1987, available at <https://www.google.is/search?q=murmansk+speech&rlz=1C1LENP_enIS499IS499&oq=murmansk+speech&aqs=chrome..69i57j0l3.1838j0j9&sourceid=chrome&ie=UTF-8> (accessed 4 April 2016).

[6] Arctic Environmental Protection Strategy (AEPS), Declaration of the Ministerial Meeting in Alta, Norway, 13 June 1997, available at <http://library.arcticportal.org/1271/> (accessed 4 April 2016).

[7] Ottawa Declaration on the Establishment of the Arctic Council, 19 September 1996, available at < http://library.arcticportal.org/1270/> (accessed 4 April 2016).

[8] Ibid, para. 1a.

[9] Arctic Council, Kiruna Declaration, 15 May 2013, 6, available at <https://oaarchive.arctic-council.org/handle/11374/93> (accessed 4 April 2016).

[10] Arctic Council, Rules of Procedure, as adopted by the Arctic Council at the First Arctic Council Ministerial Meeting, Iqaluit, Canada, revised by the Arctic Council at the Eighth Arctic Council Ministerial Meeting, Kiruna, Sweden, available at <https://oaarchive.arctic-council.org/handle/11374/940> para 19 (accessed 4 April 2016).

[11] Douglas C Nord, The Arctic Council: Governance within the Far North (Routledge 2016) 38 & 70.

[12] United States of America, Department of State, ‘Arctic Council Structure’ <http://www.state.gov/e/oes/ocns/opa/arc/ac/structure/> (accessed 4 April 2016).

[13] Rules of Procedure, supra note 10, Annex 2.

[14] Ibid, Rule 38

[15] Ibid, Rules 12, 19 & 38.

[16] Arctic Council, Observer Manual for Subsidiary Bodies, as adopted by the Arctic Council at the Eighth Ministerial Meeting, Kiruna, Sweden, revised by the Arctic Council Meeting of the SAOs at Anchorage, Alaska, United States of America, October 2015, available at <https://oaarchive.arctic-council.org/handle/11374/939> para 7.3 (accessed 4 April 2016).

[17] Rules of Procedure, supra note 10, Rule 37 and Annex 2, Rule 5.

[18] See, e.g., Nord, supra note 11, 35 & 72-74.

[19] Parliament of Iceland, Þingsályktun um stefnu Íslands í málefnum norðurslóða (2011) 139th legislative session, 28 March 2011.

[20] United Nations Convention on the Law of the Sea 1982, 10 December 1982, 1833 UNTS 397 (UNCLOS), Part IX.

[21] Ilulissat Declaration, Foreign Ministers of Canada, Denmark, Norway, Russia, and the United States of America, The Ilulissat Declaration, 29 May 2008, available at <http://www.arcticgovernance.org/the-ilulissat-declaration.4872424.html> (accessed 4 April 2016).

[22] UNCLOS, supra note 20, Part VI and Annex II.

[23] Icelandic Ministry of Foreign Affairs, ‘Viðræðum fram haldið um Hatton Rockall-málið’ 24 November 2004, available at <https://www.utanrikisraduneyti.is/frettir/nr/2472> (accessed 4 April 2016).

[24] UNCLOS, supra note 20, Part V.

[25] Ron Macnab, Olav Loken and Arvind Anand, ‘The Law of the Sea and Marine Scientific Research in the Arctic Ocean’ Meridian Newsletter (2007-2008) 3, Figure 2 <http://www.polarcom.gc.ca/uploads/Publications/Meridian%20Newsletter/MeridianFall2007.pdf> (accessed 6 April 2016).

[26] UNCLOS, supra note 20, Part V; United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, 4 August 1995, 2167 UNTS 88, article 8(3).

[27] United States Library of Congress, Global Legal Monitor, ‘Canada; Denmark; Norway; Russia; United States: Fishing Declaration Covering Central Arctic’ 21 July 2015, available at <http://www.loc.gov/law/foreign-news/article/canada-denmark-norway-russia-united-states-fishing-declaration-covering-central-arctic/> (accessed 4 April 2016).

[28] United States Department of State, ‘Meeting on High Seas Fisheries in the Central Arctic Ocean: Chairman’s Statement’ 3 December 2015, available at <http://www.state.gov/e/oes/rls/pr/250352.htm> (accessed 4 April 2016).

[29] IMO, ‘Shipping in Polar Waters’ available at < http://www.imo.org/en/MediaCentre/HotTopics/polar/Pages/default.aspx> (accessed 4 April 2016).

[30] UNCLOS, supra note 20, article 234.

[31] Skarphéðinsson, supra note 3.

[32] Skýrsla Össurar Skarphéðinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2010; Parliament of Iceland, supra note 19.

[33] Ministerial Committee on Arctic Affairs 2015, supra note 4.

[34] Skýrsla Gunnars Braga Sveinssonar utanríkisráðherra um utanríkis- og alþjóðamál, May 2016.

[35] Skarphépinsson 2010, supra note 32, 15-16.

[36] Ibid, 12

[37] Ibid, 16.

[38] Parliament of Iceland, supra note 19.

[39] Ibid, 1.

[40] Ministerial Committee on Arctic Affairs, supra note 4.

[41] See quotation above, supra note 4.

[42] Ministerial Committee on Arctic Affairs, supra note 4, 6-8.

[43] Ibid, 8.

[44] Ibid, Chapters 2 & 3.

[45] Berit Kristoffersen, ‘Opportunistic Adaptation: New Discourses on Oil, Equity, and Environmental Security’ in The Adaptive Challenge of Climate Change, Karen O’Brien and Elin Selboe (Eds) (Cambridge University Press 2015).

[46] Sveinsson 2016, supra note 34, Chapter 2.

[47] Ibid, 12.

[48] Ibid, 13-14.

[49] Ibid, 14.

[50] Ibid, 12.

Richard C. Powell & Klaus Dodds, Polar Geopolitics: Knowledges, Resources and Legal Regimes (Cheltenham: Edward Elgar, 2014)

This edited collection brings together 18 scholars from different disciplines to discuss their latest insights into the Arctic and Antarctic regions. While the Antarctic has always been a distinct conceptual space in the World owing to its isolation from inhabited territories, the formation of the Arctic qua region has developed rapidly in the 21st Century. The editors, Richard Powell and Klaus Dodds, have asked the contributors to develop “critical polar geopolitics”, focusing on knowledges, resources and legal regimes. However, the book does not clearly follow these three priority areas but is in fact structured according to three parts: Global and Regional Frameworks; National Visions; and Indigenous and Northern Geopolitics.

Continue reading Richard C. Powell & Klaus Dodds, Polar Geopolitics: Knowledges, Resources and Legal Regimes (Cheltenham: Edward Elgar, 2014)

Douglas C Nord, The Arctic Council: Governance within the Far North (London: Routledge, 2016)

The Arctic Council: Governance within the Far North by the rather aptly named Douglas Nord is a succinct primer on the history and development of the leading intergovernmental forum in contemporary Arctic international relations. It is well-written and highly focused, making it an accessible read for students and an easy and quick read for busy academics.

Continue reading Douglas C Nord, The Arctic Council: Governance within the Far North (London: Routledge, 2016)

Peter Hough, International Politics of the Arctic: Coming in from the Cold (London: Routledge, 2015 pbk.)

Peter Hough’s contribution to the scholarship of Arctic international relations, International Politics of the Arctic: Coming in from the Cold, has now been made available in paperback. Given that the target audience is likely to consist of students and those with a general interest in the field, the paperback edition (and more accessible price) is most welcome.

Continue reading Peter Hough, International Politics of the Arctic: Coming in from the Cold (London: Routledge, 2015 pbk.)

Kári á Rógvi, West-Nordic Constitutional Judicial Review: A Comparative Study of Scandinavian Judicial Review and Judicial Reasoning (Copenhagen: Djøf Publishing, 2013)

 

 

The book is clearly organised, with a solid theoretical account of constitutional judicial review filling around the first half. Kári defines his study thus:

The term Constitutional Judicial Review implies an action with three components. First, the review is based on a superior legal norm – constitutional – the archetype being a written Constitution. Second, the review is performed by an independent forum – judicial – the archetype being a Supreme Court. Third, an action of evaluation – review – the archetype being (considering) invalidation of a statutory law (37).

 

The second half of the book shows this theory in action in the Courts of the selected legal systems and demonstrates the evolution of constitutional judicial review in the West Nordic countries from something that once seemed at best foreign, and at worst laughable, to a feature, albeit still peripheral, of West Nordic law (326). Kári’s account is no simple recollection of cases but situates the legal developments in their unique historical contexts – something essential to any understanding of law, but especially comparative law. However, he also demonstrates wider scholarly foundations beyond the Nordic systems, in particular, an influence of common law legal theory (not least by virtue of his methodology of study – an examination of case law!).

 

One controversial premise lies at the heart of Kári’s account: that the West-Nordics are “quasi-federal” owing to the influence on their Supreme Courts of the law and judgments of the European Union (EU) (notwithstanding that of the countries studied, only the Danish mainland is inside the EU) and the European Convention of Human Rights and its Court in Strasbourg (46). This view might not be readily accepted – or readily acceptable – to constitutional scholars in the Nordic States, or even be widely admitted by the EU institutions and European Court of Human Rights themselves, but in any case, Kári demonstrates the undeniable influence of the supra-national European Courts on constitutional interpretation in the West-Nordics. If any criticism can be levied at the book itself, they are of a formal nature: in places the editing is wanting and the index is rather thin. The case list is very clear but could have been strengthened by a bibliography of scholars cited, especially given the perfunctory referencing system.

 

Comparative law is much neglected in West-Nordic legal education – as in most legal traditions – though the reasons for this in the West-Nordic schools are perhaps different: one traditionally learns “the laws” (of the realm) rather than “law” (as an academic discipline) (324). This leads to complacency. Law students are not encouraged to question the law: the law “just is”. An excess of critical thinking is frowned upon. But this comparative study – as comparative law more widely – forces the readers to rethink their legal techniques and revisit their pre-judgments. There is nothing natural or inherent about any particular legal process, let alone any specific legal rules. Law is a product of historical developments as Kári’s study shows, and, most importantly, a product of choice. “Law does not just happen.”[1] This is not widely (enough) recognised in the Nordic legal tradition where law is often viewed as something passed down from generation to generation like some great immutable tablets of stone (73). Thus, by studying other systems, one learns not only those systems but one learns one’s own system better. Most importantly, one understands law better. Zweigert and Kötz have long argued: 

It may indeed be that the mere interpretation of positive rules of law in the way traditionally practised by lawyers does not deserve to be called a science at all, whether intellectual or social. Perhaps legal studies only become truly scientific when they rise above the actual rules of any national system, as happens in legal philosophy, legal history, the sociology of law, and comparative law.[2]

 

For that reason alone, Kári’s text should be standard reading for all constitutional scholars in the Nordic States, whether they call their field law or political science. This is nowhere more necessary than in those regimes considering radical constitutional reform, such as Greenland, the Faroe Islands and Iceland (though the latter appears to have quietened its calls for wholesale constitutional revision in recent months). But what Kári shows is that irrespective of grand national debates about formal constitutional amendments, constitutional reform is always going on; it is a continuous process. Indeed, Kári cautions against undue reliance on the legislature to maintain the contemporary relevance and aptness of law instead arguing that democracies need active Courts to bring an end to “uncommonly silly” laws (339-40).

 

Beyond this small corner in the North Atlantic, West-Nordic Constitutional Judicial Review is a welcome contribution to scholars of constitutional comparative law. Most English-language comparative law lumps the Nordic systems in with the Germanic systems – if, indeed, the literature refers to them at all. This may be a result of language barriers and a general want of competence in “skandinavísku” outside the region but this book unlocks that World to the English speaker. With that in mind, it is only a shame that it does not extend to Finland! The Nordic systems, as aptly demonstrated by Kári’s case selection and analysis, are neither simply civil law nor common law but of their own kind and it is time they received this attention.

 

 

Editor’s note:

On 14th February 2015, Kári á Rógvi passed away after a short illness. Kári will be sorely missed by the legal communities in the Nordic Countries, not least in the Faroe Islands where he was a leading light in constitutional reform and Professor of Law at the University of the Faroe Islands. This review was written before these sad events and has not been influenced by them but Kári had an opportunity to read it in draft and was aware of the significance of his original contribution to comparative constitutional law in the Nordic countries. Kári, 41, is survived by his beloved wife, Johanna, and three children, Bragi, Brest and Bryndís. The editorial staff and the reviewer extend their sincere condolences to his family.

 



1 S Vogenauer, ‘Sources of Law and Legal Method’ in M Reimann and R Zimmermann (eds), The Oxford Handbook of Comparative Law (OUP 2008) 877.

2 K Zweigert and H Kötz, An Introduction to Comparative Law (Tony Weir tr, 3rd edn, OUP 1998) 4. 

Marlene Laruelle, Russia’s Arctic Strategies and the Future of the Far North (Armonk, NY: M.E. Sharpe, 2014).

 

 

Nevertheless, in scholarship on the Arctic, Russia is very often the weak link. The reasons for this are principally linguistic. While all other seven Arctic States routinely publish (or at least translate) major research initiatives, laws and policies in English, Russia does not. Nordic scholars can usually make their way around all the Scandinavian languages and Finland publishes all governmental regulations and documents in Swedish (an official language). Most Arctic scholars, the present reviewer included, are ashamedly at a loss in the face of the Russian language.

 

Marlene Laruelle has no such problem. Fortunately for the rest of the World‘s non-Russian speaking Arctic scholars, she has combined her linguistic skills with insightful, sensitive and clearly-expressed analysis in Russia‘s Arctic Strategies and the Future of the Far North. This book is long overdue and has no comparator.

 

The title already gives a clue to the subtlety of Laruelle‘s approach: the use of the plural “strategies” in lieu of the more common “strategy” indicates the complexity of Russian interests in the North and the competition between differing priorities at different times.

 

Russia’s Arctic Strategies and the Future of the Far North begins with a succinct introduction to the Arctic and its many players. Laruelle then devotes a chapter to each of the following topics: 1) Russia’s Arctic policy and its balance between domestic and international agenda; 2) The place of the Russian Arctic in Russian identity; 3) Demographics of the Russian Arctic; 4) the impacts of climate change; 5) Territorial disagreements and their resolution; 6) Military security; 7) Resource management; and 8) the Northern Sea Route. Laruelle concludes with a presentation of “four Russian Arctics”: the Murmansk-Arkhangel’sk Arctic (European transborder region); the Central Arctic (mineral and hydrocarbon rich); the Yakutia-Sakha Arctic; and the Bering Arctic (Chukotka and Kamchatka) (203-201).

 

In each of these chapters, Laruelle explains the historical development of the High North through Soviet times, the disastrous years for the people of the Russian Arctic following the collapse of the Soviet Union, and the renewal of interest in economic development in the 2000s. She is sensitive to the history and contemporary challenges facing the indigenous peoples of the Russian North and the difficult balance of power between indigenous communities and “Russian” leadership. In her examination of demographics, she describes Arctic Russia evocatively as “archipelagic”: there are population centres like islands surrounded by wilderness and almost entirely cut off from one another (48-51). Her historical account of the population shifts from Stalin, through Soviet times, and post-1990 is essential if a reader is to understand fully the challenges facing the contemporary North (51-60). Population blips over the 20th Century and collapse post-1990 (attributable not only to low birth rates but also high mortality rates) create intractable problems for Russian development; but Laruelle also notes that these are not uniform through a geographically enormous and ethnically diverse federal republic (54). The North, especially the Far-Eastern North, has been disproportionately affected by internal migration (Southwards): some regions of the Russian Arctic (e.g., Magadan and Chukotka) lost over half their populations, with entire settlements abandoned (57-58).

 

In the account of climate change, Laruelle explains Russian reluctance to commit to mitigation of climate change in light of the perceived advantages to Russia from increasing temperatures (68; 84-85). These advantages will not be equally shared and will be accompanied by many serious problems, not least the melting of the permafrost on which Arctic infrastructure is built, more extreme weather events, fires, invasion of alien species and the end of some ice-roads (77-80). Perhaps reflecting the American discourse by which she is surrounded, she grants a little too much credibility to the “climate change sceptics” and implies that there is a genuine dispute about the causes of climate change, when in fact, the climate science is quite clear about the anthropological contribution to global warming (69).

 

If there is a weakness in Laruelle’s analysis, it is one that is only likely to be evident to pedantic lawyers: sometimes the word choice is insufficiently precise, especially when dealing with law of the sea. For example, in her discussion of the Northern Sea Route, she talks of “international waters” (170) and the right of transit passage, but the technical term is “international strait”. This is important as “international waters” could also refer to the High Seas where there is complete freedom to sail, fish, and conduct research (in addition to “passage”).[1] She also suggests that some States might “bypass” the UN Convention on the Law of the Sea which seems remarkably unlikely given that it is accepted even by the United States (which is not a party) as defining customary international law in this area (198). Nevertheless, her general account and conclusions are convincing: the Northern Sea Route remains ultimately a Russian route for Russian vessels servicing Russian communities and resource developers. The melting of the ice does not necessarily make the route safer: ice is replaced by hazardous and unpredictable weather conditions (high winds and waves), there is still a major shortage in search and rescue and communication services; and harbour infrastructure (for repairs, safe haven in bad weather, etc.) is limited. Similarly, in analysing the respective rights to the outer continental shelf of Norway and Russia, she uses the term “claims” which international lawyers would avoid (99). (The shelf accedes automatically to the coast; it is not “claimed” like terra nullius.) More misleading is her use of “verdict”, “ruling” and “decision” with reference to the recommendations of the Commission of the Limits of the Continental Shelf (CLCS) (101-102). The CLCS is an advisory body composed of scientists. There are no lawyers on it. It is most pointedly not a judicial or quasi-judicial body and issues only “recommendations” and not “decisions”, “judgments”, “rulings” or “verdicts”. The CLCS will simply not consider a submission if any other State with a potentially overlapping area of shelf objects. The CLCS can advise on the outer limits of the CLCS; but it has no power to decide between competing States as to which a particular area of seabed pertains.

 

The book was published on the cusp of 2013-2014: just weeks before the dramatic events in Ukraine, Russian intervention and the consequences for Russian-European relations, Western investment (following the introduction of sanctions) and the manipulated collapse in the oil price which distorts the immediate prospects for offshore Arctic hydrocarbon development. The representatives at the Arctic Council have so far attempted to play down the impact of the Ukrainian situation but the speed at which Russian international relations have deteriorated is a warning that one should be relaxed, but not entirely complacent, regarding the peacefulness of the High North. Certainly, Professor Laruelle will not run out of research material over the next few years.

 

In conclusion, Russia‘s Arctic Strategies and the Future of the Far North is essential reading for all those working on Arctic international relations, law, politics and economies, as well as those interested in Russian governance more broadly. I expect to see it on graduate school reading lists around the World and recommend it without hesitation to all scholars interested in contemporary developments in the Arctic.

 

 



[1] See also, e.g., 198 (discussing two treaties that “have been ratified by the Arctic Council”). 

Michael Byers, International Law and the Arctic (Cambridge: Cambridge Studies in International and Comparative law, Cambridge University Press, 2013)

The title should not dissuade scholars from disciplines other than law from a close reading of its contents, as it goes well beyond a strict legal analysis to explain the historical and political processes that are inseparable from law in real world relations. In this vein, Byers gives the legal principles practical relevance and makes constructive proposals for resolution of outstanding disagreements, (e.g. on the Beaufort maritime zones, pp. 83-90). He has successfully identified and succinctly outlined the key trends, the most significant of which being the (paradoxical?) site of the frozen Arctic as the first place for tense Cold War relations to thaw and ever-increasing cooperation since Gorbachev’s game-changing Murmansk speech in 1987.

Byers devotes five of eight chapters to territorial, sovereignty and boundary issues in one form or another (land and maritime). His careful exposition fully justifies his thesis – long accepted amongst experts in Arctic affairs but routinely downplayed in popular media – that the Arctic is a site of peace and cooperative international relations.  It is in his chapter on the outer continental shelves that Byers’ remarkable skill in communicating complex concepts to a general audience is most apparent. He succeeds in synthesising the provisions of article 76, their relation to geophysical criteria and their real world application in an accessible manner that remains too rare amongst legal scholars. For example, he distinguishes, in a single paragraph, oceanic ridges, submarine ridges and submarine elevations (p. 104).

The chapter on international environmental law (chapter six) pinpoints the most pertinent issues but some could have been better explained, for example: the (failed) attempt to upgrade the polar bear under CITES[1] which was based on politics, not science (p. 175); his proposal for an agreement to communicate and coordinate submarine traffic (which seems to rather defy point of being covert in the first place!) (p. 190); the discussion of the deep seabed, which might have highlighted the fact that to date no company or State has gone beyond the early exploration stages even in more temperate and accessible zones and does not refer to the 2011 Advisory Opinion of the Seabed Dispute Chamber on the subject (pp. 191-194)[2]; or the vast differences between drilling conditions off Northern Norway as compared to the North American Arctic (pp. 200-213).

Coverage of indigenous peoples (chapter seven) similarly lacks the breadth of his analysis on territorial and maritime delimitation and delineation. While reviewing an interesting collection of historic and current indigenous issues in the Arctic, it does not provide a general legal overview of the fast developing international law in this area, as might be expected from a book with such a title. The UN Declaration on the Rights of Indigenous Peoples[3] is mentioned only in passing (p. 232) but merits a section of its own and the 1989 Convention of the ILO[4] is omitted entirely. Alongside a richer analysis of the collective rights of indigenous peoples (e.g. over territory and resources and to self-government), this chapter could have covered in a more systematic manner the application of general human rights instruments to indigenous persons and at least some of the key jurisprudence in this area.[5]

Security is the title of chapter eight, which covers as well as traditional ‘hard security’, the risks of drug smuggling or illegal immigration (pp. 261-265) which are more a matter of domestic criminal law and do not themselves pose a risk to the State per se. Security can also mean human security, food security and economic security, issues that could have been brought in either here or within the chapter on indigenous peoples. However, it is in the security chapter, that Byers makes one of his most astute observations, and one that has not received sufficient attention until now. This is that the Search and Rescue Agreement[6] negotiated through the Arctic Council did not actually impose any new legal obligations on the States parties that they did not have already under pre-existing treaty obligations. It opens doors to increased cooperation, true, but State to State cooperation does not require a treaty basis. Instead, it is as much (if not more) a statement about the Arctic Council and Arctic cooperation than it is a legal agreement on search and rescue (pp. 278-9). A memorandum of understanding would have been adequate, but would not have had the same gravitas nor cemented the Arctic Council as the pivotal site of decision-making for the High North.

 

Byers does not fear controversy and makes a number of bold statements. I here pick out a few that will no doubt be the subject of lively debate.

Unsurprisingly, Byers continues the argument outlined in Who Owns the Arctic?[7] regarding the North West Passage (NWP) (Chapter five). International Law in the Arctic suggests that this is largely a bilateral dispute, with Canada and the United States as the protagonists, and hence something that can be resolved in bilateral negotiations. But States throughout the World, as well as the European Union, do not recognise the NWP as internal waters, even if they are for the most part happy to sit back and leave the United States to the business of formally objecting. Satisfactory resolution will require at the very least the acquiescence of States far removed from the Arctic. Byers’ (and Canada’s) reliance on Inuit ‘occupation’ of the ice-covered NWP is also problematic: nemo dat quod non habet. In no other case has it been held possible to ‘occupy’ the sea, the UNCLOS[8] excluding the possibility. Canada needs a better argument (e.g., p. 244). Byers’ comparison with Danish/Greenlandic claims for Hans Island based on historic occupation and use differ fundamentally in that the latter concern occupation of land, so the Island of Palmas[9] principles apply. I look forward to Byers’ response to Phil Steinberg’s ‘third-way’ proposal: that the NWP is neither internal water nor strait, but straight-forward territorial water and EEZ.[10] 

Byers explains the position of the permanent participants in the Arctic Council which is indeed unique, innovative and a model for indigenous inclusion in international relations. Representatives of the permanent participants (six indigenous organisations) sit at the table alongside the representatives of the eight Arctic States and are fully involved in all discussions and this can be contrasted with the observers (States) who do not participate directly at the highest level, though are active in working groups. In short, the observers ‘observe’; the participants ‘participate’. Nevertheless, Byers may have exaggerated the point, indicating that the permanent participants effectively enjoy a veto (pp. 229-230). His argument is that owing to the consensus-based decision making at the Arctic Council, a permanent participant need only recruit one of the eight Arctic States to block a decision they do not like. But if a veto-wielding friend is all that is required, then the same could be said of the observer States, or indeed any State or organisation. China could recruit Iceland, or Greenpeace could recruit Sweden to block unwelcome decisions. On the same basis, any State could enjoy a de facto veto at the Security Council by persuading one of the big five to cast a negative vote. While the Inuit Circumpolar Council (ICC) and Saami Council are influential, the other four permanent participants lack the funds to be as active. The relatively muted reaction to the Russian disestablishment of RAIPON[11] from the Senior Arctic Officials and permanent participants indicates they still have a long way to go. Further, the albeit conditional and temporary admission of the EU to the Arctic Council table belies Byers’ argument: the Canadian arm of the ICC expressed an unbending resolve to have them excluded pending satisfactory resolution of the seal ban dispute.

The Arctic Council has from its origins steered clear of hard security matters but Byers believes the time has come for them to open up (p. 253). It seems unlikely that the Arctic Council will deal with any of these issues in the foreseeable future, at least not qua Arctic Council. In other words, even if the eight Arctic States get together to discuss security matters, it is unlikely to be under the Arctic Council banner because of a strong political commitment in the Ottawa Declaration that excludes matters of ‘military security’. Byers proposes discussions on a nuclear-weapons free Arctic, which appear idealistic given American and Russian positions (pp. 256-261) and a general demilitarisation of the area, which is difficult to reconcile with the dependence on military vessels and personnel for search and rescue (pp. 261 and 272). One point that is minor in the Arctic context but nonetheless cannot be left unchallenged is the claim that: ‘the right of self-defense may be exercised pre-emptively’ – a highly contested position that cannot simply be given as an unambiguous statement of law as it appears in this book (p. 266).

Byers also indicates a greater tension between the Arctic States and China than is convincing. The Arctic Council, as Byers notes, required applicants for observer status to recognise: ‘the Arctic States’ right to administer the Arctic Ocean under the Convention on the Law of the Sea’ and suggests that China could never sign up to such a sweeping statement as it implies a power of the Arctic States to govern the entire Arctic Ocean. But this phrasing can reasonably be interpreted as meaning ‘according to’ the Convention on the Law of the Sea, which China has long supported (pp. 254-255), including the provisions of Part VI on continental shelf resources. In any case, it is no longer accurate to talk of ‘permanent observers’ as all observer States in the Arctic Council are now subject to periodic reassessment.

Finally, to a European reader, the book has an unashamedly North American outlook with a disproportionate emphasis on Canada, the United States and Russia, with the five Nordic States receiving markedly less attention. To some extent, this reflects the fact that two of the Nordic States have no Arctic coastline, and Norway has recently settled, after forty years, its maritime boundary dispute with Russia. Byers implicitly justifies this focus given Canada’s and Russia’s enormous territory in the North and related clout, alongside the United States’ enduring superpower status (p. 280). Nevertheless, it leaves the feeling that it could only have been written by a Canadian! A stronger European emphasis might, for example, have permitted an examination of the ongoing mackerel dispute as an example of an immediate impact of climate change on economic – and now even diplomatic – relations in the Arctic. There might have been less of ‘little Norway’ (p. 46) and greater reflection on Norway’s longstanding harmonious relations with its grand neighbour as well as the power of the former’s huge oil revenues. On the other hand, European scholars, such as the present reviewer, benefit from considering a different viewpoint. Further, Byers’ long Canadian experiences enables him to distinguish ‘real’ international statements from domestic political posturing, e.g. on the NWP (pp. 155-156) and on Russian military manoeuvres in international airspace around 80nm from Canadian territorial waters (pp. 251-252).

On more prosaic matters, the inclusion of more maps to demonstrate the geography of the Arctic coastlines and competing maritime claims, for example of the NWP and NSR or the new Barents treaty boundaries would have helped immensely for readers who are not up to speed on Arctic geography. (There is only one map, displaying the purported maritime zones in the Beaufort, p. 61.) The bare text is fine for those already working on Arctic law and politics but one can imagine a newcomer to the Arctic struggling to imagine where exactly certain islands are situated. Rather lost in the introductory section (p. xvi), between acknowledgments and abbreviations, are references to two key maps of the Arctic which would have improved the book had they been included in full.  

This review may appear unduly critical, picking out as it does the more contentious issues and passing over too briefly the excellent analysis of territorial and sovereign rights. However, this should be interpreted instead as a recognition of the book’s cutting edge legal and political analysis of the High North and its potential to provoke a flurry of scholarship. In fact, it is to Byers’ credit that International Law in the Arctic can inspire these reflections, most of which Byers would heartily debate and many of which may simply be proven wrong over time. This book is a unique contribution to the literature on law and international relations in the Arctic. It will be indispensable to teachers and students working on the High North and a great introduction to anyone seeking a quick, comprehensive, and readable introduction. However, International Law and the Arctic is more than a textbook that describes or summarises existing knowledge but provides analysis at the vanguard of Arctic studies which will keep Byers’ colleagues busy for some time.

 


[1] Convention on International Trade in Endangered Species of Wild Fauna and Flora 1973, 993 UNTS 243 (CITES).

[2] International Tribunal for the Law of the Sea: Seabed Disputes Chamber Case No. 17: Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) 1 February 2011 <http://www.itlos.org/index.php?id=109>.

[3] Declaration on the Rights of Indigenous Peoples 2007, UNGA Res 61/295.

[4] C169, Indigenous and Tribal Peoples Convention, 1989.

[5] E.g. International Covenant on Economic, Social and Cultural Rights 1966, 993 UNTS 3 (ICESCR) and International Covenant on Civil and Political Rights 1966, 999 UNTS 171 (ICCPR). Both are mentioned in the context of the right to self-determination, but not the General Comment of the Human Rights Committee on the same, nor the provisions of article 27 ICCPR. The ICESCR gets a nod in relation to economic and social conditions in Canada and Russia but Byers is unclear about the committee monitoring process attached to his treaty (p. 240).

[6] Arctic Council Agreement on Cooperation on Aeronautical and Maritime Search and Rescue in the Arctic 2011, available at <http://www.arctic-council.org/article/2011/5/arctic_council_ministers_sign_agreement>.

[7] Michael Byers, Who owns the Arctic? (Douglas and McIntyre 2009).

[8] UN Convention on the Law of the Sea 1982, 1833 UNTS 397.

[9] Island of Palmas case (Netherlands v United States of America) 1928, Permanent Court of Arbitration, Arbitrator: Huber, 2 RIAA 829.

[10] Philip E Steinberg, ‘Steering between Scylla and Charybdis: The Northwest Passage as Territorial Sea” Ocean Development & International Law 2014 (forthcoming).

[11] See, RAIPON Open Statement to Senior Arctic Officials of the Arctic Council, 14 November 2012, <http://www.raipon.info/Documenty/English/RAIPON_Stat_ment_to_SA%CE_Haparanda.pdf>; and Statement by Senior Arctic Officials and Permanent Participants of the Arctic Council Concerning the Russian Association of Indigenous Peoples of the North (RAIPON),  14 November 2012, <http://indigenouspeoplesissues.com/index.php?option=com_content&view=article&id=16755:russia-statement-by-senior-arctic-officials-and-permanent-participants-of-the-arctic-council-concerning-the-russian-association-of-indigenous-peoples-of-the-north-raipon&catid=26&Itemid=59>. This statement is no longer visible on the Arctic Council’s own website. 

Timo Koivurova, Introduction to International Environmental Law (London: Routledge, 2013)

Koivurova’s approach differs from existing textbooks in international environmental law on at least two grounds. First of all, Koivurova promotes the book as a “popularized presentation” in contrast to some of the weightier tomes on international environmental law that require a thorough training in the broader principles of international law before they can be tackled. Secondly, rather than approaching the different sub-topics of international environmental law in independent chapters, as is done in other textbooks, such as the well-worn Birnie, Boyle and Redgwell[1] or the lighter Beyerlin and Marauhn,[2] not to mention the Oxford and Edward Elgar Handbooks[3] (which compile specialised articles by different authors), Koivurova attempts to provide an overview of the common principles of international environmental law rather than the details of any sub-topic. In this way, he hopes to train the reader in the necessary skills to continue independently to study and analyse the legal instruments and literature pertaining to particular issues.

The text is full of examples which readily illustrate environmental challenges that have been overcome, and how, such as the restoration of the Earth’s ozone layer. These provide hope that solutions too can be found for the difficulties currently facing the Earth and its inhabitants. Of all the issues in international environmental law, by far the most attention is paid to climate change and this is particularly evident in the later chapters. Koivurova justifies this focus on the basis that anthropogenic changes to the Earth’s climate constitute by far the most dangerous environmental threat facing the human population today and remain one of the most difficult to mitigate.  

 

Does Koivurova achieve his aims? Is the text accessible to a reasonably intelligent reader with no legal background and does he provide a fair account of how international environmental law works? On the first point, there is no doubt that international environmental law is a complex subject that it is impossible to approach without a sound knowledge of the fundamentals of public international law, in particular, who creates international law and how. Koivurova provides this in chapter three in a concise account of the subjects and sources of international law and argues – convincingly – that although states remain at the heart of international law, when it comes to the environment, the relevant actors are much broader than in most other fields of international law. Throughout the rest of the text, when discussing legal norms, Koivurova reminds his readers of these basics so that they can understand the legal status (bindingness) of the instruments at hand. This is crucial as any glance at the comments page of a “quality” newspaper article on environmental issues will immediately display a wealth of ignorance as to, for example, the role and powers of the United Nations and the jurisdiction of international courts. Nevertheless, even with its gentle style and lively examples, Introduction to International Environmental Law does not make for light reading and could be difficult to digest without having read a basic introductory textbook to public international law. (Koivurova addresses this in his preliminary note to the reader and recommends some core textbooks in international law.) This is not a fault of the book but rather reflects the complexity of international environmental law; a text that gave a very simplistic account would be no text at all. It is almost impossible to understand the gaps in international environmental law, its slowness, its failures to deal with some of the most pressing global problems, including climate change, without a sound appreciation of how international law works – or does not work.

On its second aim, to provide an overview of international environmental law and to present it as a system, Introduction to International Environmental Law is unique. International environmental law is highly fragmented as Koivurova readily admits, but nevertheless, he attempts to find some coherent threads through it. Other textbooks encourage a reader to dip in and read on the sub-topic that interests her – shared watercourses, marine pollution, atmospheric pollution, biodiversity, etc. – and present each almost as a self-standing subject. Introduction to International Environmental Law leaves a reader with the sense that international environmental law is, after all, a single discipline, albeit incomplete and often highly unsatisfying.

It is always dangerous to conclude a text with a chapter entitled the “future” of anything, but in the “Future of International Environmental Law,” Koivurova allows himself the space to imagine how environmental problems might be resolved, going rather beyond the foreseeable into the realm of the ideal. He discusses the potential for a global environmental organization, a World Environmental Organisation. Such a body might be little more than the development of the existing United Nations Environmental Programme (UNEP) into a fully fledged specialised agency; but Koivurova also explores the potential for a powerful environmental body, analogous to the World Trade Organization, with the power to resolve disputes, even if this latter option would require a sea-change in the current governance priorities of states. He concludes by returning to climate change with a hope that notwithstanding all the pressures pointing towards increased rather than decreased use of fossil fuels, the realities of the consequences of climate change will force human communities to reassess fundamentally their world-view and make the necessary changes before it is too late. Although, I struggle to share Koivurova’s optimism, it is at least heartening to end a text that repeatedly reminds us of the myriad of ways in which we continue to kill ourselves on a positive note.



[1] Patricia Birnie, Alan Boyle and Catherine Redgwell, International Law and the Environment (Oxford UP, 2009)

[2] Ulrich Beyerlin and Thilo Marauhn, International Environmental Law (Hart Publishing, 2011).

[3] Daniel Bodansky, Jutta Burnnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (Oxford UP, 2008); Malgosia Fitzmaurice, David M Ong and Panos Merkouris (eds), Research Handbook on International Environmental Law (Edward Elgar, 2011).

T. Kue Young (senior ed.) and Rajiv Rawat, Winifred Dallmann, Susan Chatwood and Peter Bjerregaard (eds.), Circumpolar Health Atlas (Toronto: University of Toronto Press, 2012)

 

The Atlas contains five sections, each divided into a number of chapters. The first two, “The Circumpolar World” which introduces the Arctic geographically and “Circumpolar Peoples” which outlines the main populations, their histories and cultures, make for a clear, if relatively basic, introduction to the Arctic that would be suitable for anyone wishing to embark on Arctic studies in any field or someone who simply has a general interest in the High North. These chapters are beautifully illustrated with maps, satellite images, portraits, photos of fauna and flora, and shots of industrial activities, traditional and modern. The care that has been taken over the illustrations is remarkable in a book that is basically meant to be about health indicators.

 

Only half way through the book do we come to the “health” data but this is in no way a criticism of the Atlas. Indeed, the book is far more appealing for the inclusion of this guided tour to an area that remains a mystery to so many of the populations of Arctic countries residing south of the 66th parallel.  The information presented is not aimed at statisticians; Health Transitions serves that purpose. Instead, the Atlas is aimed at health workers, administrators, policy-makers, teachers and researchers in the Arctic as well as the general reader (Preface, p. ix). For that reason the information is presented with a minimum of text and a maximum of illustration, including many kinds of graphs and data tables alongside maps. All this is complimented by the use of yet more photographs. I believe there is not a single page beyond the Preface that contains bare text.

 

Three parts focus on health: these are Health Status (considering bare outcomes), Health Determinants (offering explanations for the outcomes) and Health Systems (examining health-care provision). Within Health Status, the editors have chosen to focus on the following: child health, reproductive health, infectious diseases, cancer, cardiovascular disease, diabetes and obesity, accidental or violence-related injuries, and mental health. The stark contrast between the health outcomes of natives and non-natives across the North-American continent and Russia become immediately apparent and remain striking through this whole part. The differences in Scandinavia are considerably less pronounced. (Iceland has no indigenous population). Data is also disaggregated according to sex, which also points to some of the social circumstances behind the results which are examined in the following part. In Health Determinants, the authors consider a number of factors to explain the results, namely: genetics, climate, socio-economic conditions, environment and pollution (including climate changes to the environment), nutrition and activity, and substance abuse. Part five concludes the Atlas by summarizing health-care provisions, with a focus on governance and organization, financing and expenditure, health-care facilities, and health-care education and research in the High North. Most notable is not the well-known difference between public and private health-care provision between different Arctic states but rather the discrepancy between financial inputs (i.e. healthcare spending) and health outputs (i.e. life expectancy) (p 160).

 

An editorial decision was made to dispense with footnotes and detailed referencing to maintain the reader-friendly style of the book but a short bibliography is included. Those seeking more academic information are directed to Health Transitions. However, the absence of an index poses a greater inconvenience and is a rather surprising decision, given that even the most common or garden family atlas, even a child’s atlas, would usually include one.

 

One could cruelly describe the Atlas as a “dumbed-down” version of Health Transitions and in some ways, it is. But it is the better for being so. Too much academic work remains on the shelf, shared only between an elite crew of specialists without ever becoming accessible to the majority of people about whom the subject pertains. The Atlas takes a unique, comparative research project and allows anybody to understand it. The result is a visually stunning and delightful piece of work that mixes serious issues with the ease and pleasure of a coffee-table art book.

 

Many reviews end with a comment regarding to whom one might recommend a book. In this case, not only would I recommend the Atlas in some kind of hypothetical manner but I really will recommend it to everyone working on Arctic issues, as an introduction for students of circumpolar studies or researchers coming to the area for the first time, a quick reference tool for those who need simple but accurate health data, or to more seasoned Arctic scholars just to enjoy the pictures. 

Cédric Viale, Lexicon of Environmental Law; Les définitions du droit de l’environment (Leiden: Martinus-Nijhoff Publishers, 2012)

 

The lexicon is in fact two dictionaries in one: first the entire English text (pp. 1-274), then the French (pp. 275-574). Within the distinct sections, each term in English is followed by the French equivalent and vice versa for easy cross-checking. Viale has chosen two of the five official languages of the United Nations and perhaps the two most important languages in terms of international environmental treaties.

 

The alphabetical entries are followed by thematic lists (e.g. climate, fauna, flora, pollution, sea, etc.). These thematic lists are important for persons working on a particular subject who want to gets to grip quickly with all the relevant terms of art. Some of these are fairly short (e.g. “bromine” with three entries) and others are extensive (e.g. “pollution” running to nearly 5 pages). Individual terms are included under all the themes to which they pertain, for example, “bluefin tuna” is listed under “fauna,” “fish” and “sea”. Indeed, it is with examples like “bluefin tuna” that the wisdom of including both languages becomes apparent. Bluefin tuna, in French, is known (inexplicably to an Anglophone) as “thon rouge.” No doubt, the French find the English term equally perplexing.

 

Viale refers only to binding instruments of global scope, i.e. international treaties, not soft-law instruments such as conference declarations, United Nations General Assembly declarations or regional agreements. This guarantees the accuracy of the entries as they are each the product of carefully negotiated and agreed texts binding on multiple state parties and avoids the risks of error, vagueness or overly progressive definitions which might result from relying on non-binding instruments. Viale further avoids colouring any of the entries with his own interpretation or opinion by referring only to the official text. Nevertheless, it is perhaps a little too careful in this regard as it seems strange to bypass completely the historic Stockholm (1972) and Rio (1992) Declarations.[1] Further, even reliance on binding treaty texts is no guarantee that the text is binding on any given state; additional investigation is necessary for anyone using the text in a particular context to determine whether the convention has been ratified by the state in question (thus confirming that state’s endorsement of the definition). This choice of methodology might have been better explained in the introduction. 

 

Viale’s concern for objectivity means that there are no entries for oft-cited but indeterminate terms of questionable legal status such as “precautionary principle.” No universally accepted definition exists in any international, binding text. Terms such as “monitoring”, “notification” and “environmental impact assessment” are also excluded on similar grounds even if, unlike the precautionary principle, there is sufficient international practice, opinio iuris and jurisprudence to consider them elements of customary international law. Still, to attempt to include a definition of such terms would have changed the very nature of the Lexicon by introducing subjectivity and therefore imperilled its authority as a compilation of agreed international terminology.

 

Lexicon of Environmental Law is a product of meticulous research and will serve well those who work at the coal-face of environmental law, especially those to whom it is explicitly aimed (NGOs, lawyers, diplomats, students). It is impossible to memorise the sea of environmental terminology and undoubtedly useful to have at hand a quick and simple reference guide, rather than having to trawl multiple treaties for definitions and possibly missing some in the process. Law requires precision, even more so, international diplomacy, and this text provides it.

 

 


[1] Stockholm Declaration on the Human Environment (1972) 11 ILM 1416; Rio Declaration on Environment and Development (1992) 31 ILM 876.

 

Jesús Ballesteros, Encarnación Fernández Ruiz-Gálvez, Pedro Talavera (eds.), Globalization and Human Rights: Challenges and Answers from a European Perspective (Ius Gentium: Comparative Perspectives of Law and Justice, Vol. 13, Leiden: Springer, 2012)

 

The book contains three parts on rather distinct themes which are only loosely connected. Part I “Human Rights: Soft Threats” examines threats to human rights, especially in the context of the global recession. The emphasis is on economic, social and cultural rights and the threats posed not by States but by non-State actors and the invisible processes of “globalisation”. Part II “Human Rights: Hard Threats” explores human rights tragedies emerging from the failure of states – from violence and associated poverty. Here the absence of a strong State is a key contributor to human rights violations and the greatest tragedy is the avoidable nature of the failure. Part III: “European Union as a Referent for Peace and development” examines the historic role of the European Union in the maintenance of human rights in Europe and how human dignity has been a core value since its inception.

 

The first chapter, “Globalisation: From Chrematistic Rest to Humanist Wakefulness” provides a theoretical framework for “new paradigms” post-2008 crash. Drawing attention to the value failures that precipitated the crash, it looks beyond for new models of social organisation. These include: a return to the productive economy, over speculation; the “golden rule” of personal relations based on mutual respect for others’ dignity; respect for the natural environment and recognition of the dependence of both the market and human life itself upon it; and a recognition that the crash was the direct result of the fetishisation of money-value over all other values. Citing Susan Strange (“casino capitalism”, pp. 6 & 19) and Druckner (p. 18), Jesús Ballesteros reminds us: “The stock market was no longer in the service of produce, it stopped supporting companies that create employment and sought only the negotiability of everything according to its immediate profitability, universalising risk” (p. 10). This is not perhaps the most novel research (see, e.g., John McMurtry, The Cancer Stage of Capitalism[1] now being prepared for a second post-crisis edition) but it bears repeating nonetheless and it sets the scene for some of the later chapters, in particular, the discussion of disability rights in Chapter Three. No doubt constrained by space, Ballesteros’ emphasis is much more on the globalisation side than the human rights side, but more concrete linkages to the International Covenant on Economic, Social and Cultural Rights of 1966, to which all European Union states are parties, would have been welcome.[2]

 

Francesco Biondo appeals to Rawls’ Law of Peoples in Chapter 2: “Basic Structure and Tax Havens” to argue for international distributive justice and rejects claims that Rawls’ theory applies only or predominantly within an idealised nation-state. Biondo then applies the theory to argue for greater controls over international financial transactions to enhance states’ abilities to redistribute resources equitably and reduce corruption. This is followed by “Human Rights and the Inclusive Society” by Jorge Cardona Llorens. Llorens’ chapter is a commendable review of the trifold barriers to realisation of human rights for people with different capacities, namely, cultural barriers (negative attitudes and stereotypes); a State approach of “protection” rather than “rights” (what this reviewer has criticised elsewhere as the “welfare model”[3]); and physical barriers in a human World designed around assumptions about what a body should be able to do (p. 54). Llorens then examines the Convention on the Rights of Persons with Disabilities in the context of the development of the United Nations human rights instruments and argues that it is not about awarding persons with different capacities new or special rights but about ensuring the fulfilment of all human rights – civil, political, economic, social and cultural – for people with different capacities (p. 71).

 

In the second part on Hard Threats, Chapter Four: “Afghanistan: Why has Violence Replaced Political Power?” and Chapter Five: “Somalia: From the Errors of Colonialism to the Horrors of War” explore the role of foreign influences in fuelling or heightening conflicts in these States. Encarnación Fernández Ruiz-Gálvez reviews the external interferences in Afghanistan from Soviet times until the present as the most significant factor in explaining the current predominance of violence over politics. Ana-Paz Garibo-Peyró explores the origins of current instability in Somalia, from the colonial period through the misuse of aid in the 1990s to the widely criticised experiment with humanitarian intervention under the authority of the Security Council and Chapter Seven of the United Nations Charter. The UN peacekeeping mission led, owing to divergences between the priorities and objectives of the United Nations and the United States (the main contributor to the force), to the peacekeepers being viewed inside Somalia as little more than another party to the conflict. It is not clear that Garibo-Peyró achieves her stated objective to “reflect upon the demand for a change of paradigm concerning fundamental questions of International Law, such as the need to transform national security into human security, the step from humanitarian intervention to the responsibility to protect, and the urgent need to examine the bases in greater detail in order to reconstruct failed States.” Any one of these sub-topics would have been more than enough to tackle in a short chapter but as it is they are only loosely and tangentially addressed.

 

Part Two is concluded by Isabel Trujillo’s examination of the legal, practical and conceptual links between international humanitarian law and international human rights law, “Human Rights and Changes to the International Legal System. Philosophical Reflections on the (Difficult) Coexistence of International Humanitarian Law and International Human Rights Law.” Trujillo reflects on three complex themes: when and where each set of norms apply; to whom they are addressed; and whom they protect. Trujillo quickly demonstrates that each of these themes is much more complex and controversial than a standard international law account would suggest. She concludes with a recognition of the paradox inherent in international humanitarian law which is the direct consequence of the fragmentation of international law: if the purpose of international humanitarian law is to protect persons during times of war, the best way to do that is would be to prevent war altogether. As it is international humanitarian law is international law’s attempt to protect people from international law.

 

The final part returns to the place of the European Union in this discourse. It begins with Chapter Seven: “Europe’s Path to Public Reason” (Francesco Viola), a return to Rawls. Viola’s emphasis is on the European constitution and the shift from an economic and trade union into a full political, social and cultural union, i.e. a union of people, not of abstract entities (p. 161). This is neatly followed by Ernesto J Vidal Gil’s essay, “The Social State Based on the Rule of Law” which in turn argues that the social state is a core value of the European Union and in fact has been since its inception. With this in mind, Vidal Gil returns to some of the themes from Chapter One discussing contemporary threats to the social state in Europe, particularly post 2008.

 

The collection concludes with Chapter Nine: “Peace as a Priority” in which Pedro Talavera defends the European Union as the World’s greatest “peace project” – a moniker which the Norwegian Nobel Committee would presumably endorse. Talavera contrasts the Europe Union’s approach to securing peace through guarantees of human dignity and legal framework (even bureaucracy) with the neoconservative ideology of peace through force: a cross between mutually assured destruction and an “us and them” approach to diplomacy (with “them” identified vaguely as “Islamic terror”). While Talavera has a valid point to make and one witn which I am largely in sympathy, there does seem to be a degree of cherry picking of the finer points of the European integration project contrasted with the more extreme fringes of American neoconservative positions. Talavera concludes by reflecting on the need to put universal human rights back into focus as the foundation of peace, a message that, in light of the challenges identified in chapters one and eight, the European Union has sore need to heed.

 

Understandably for a Spanish-led (and funded) project, the contributors are predominantly Spanish alongside two Italian scholars. This makes it an additional challenge to ensure that the book together lives up to its title of providing a truly “European perspective” and a wider net (or perhaps a different title) would have been welcome. Nevertheless, the essays, although only loosely connected to one another, provide a variety of viewpoints from which to consider the European Union’s role in respecting human rights – within its borders (especially economic, social and cultural rights at a time of draconian budget measures) and beyond (rights to live in peace and to physical security). The final section perhaps portrays a rather idealised view of Europe; certainly, the European Union has brought great political stability and peace but post-2008, at least within the Eurozone, it is also being blamed, rightly or wrongly, for austerity measures which themselves violate human rights. The editors of the collection have opted for breadth over depth so that each short chapter feels like only a snapshot of much deeper research, but this approach allows each scholar to introduce his or her current work and inspires the reader to seek out other publications by the same authors in which they have more space to develop their themes.

 


[1] John McMurtry, The Cancer Stage of Capitalism, Pluto Press, 1998.

[2] See, e.g., Giorgio Baruchello and Rachael Lorna Johnstone, “Rights and Value: Construing the International Covenant on Economic, Social and Cultural Rights as Civil Commons” 5(1) Studies in Social Justice, special edition “Life-Value, The Commons, and Social Justice” 91-125 [2011]. Open Access: http://ojs.uwindsor.ca/ojs/leddy/index.php/SSJ/article/view/3115

[3] Rachael Lorna Johnstone & Aðalheiður Ámundadóttir, “Defending Economic, Social and Cultural Rights in Iceland’s Financial Crisis” 3 Yearbook of Polar Law 455 [2011].

 

Christian Joerges and Ernst-Ulrich Petersmann (eds.), Constitutionalism: Multilevel Trade Governance and International Economic Law (Hart Publishing: Studies in International Trade Law, 2011)

The overarching approach, as pioneered by the two editors, Christian Joerges and Ernst-Ulrich Petersmann, is to examine the practices of States and other international actors (principally the WTO) and explores these within the political and legal theory of constitutionalism. Where this work differs from much of the comparable scholarship on international economic law is the central place reserved for the individual as a key player (and beneficiary) of international economic relations. Much scholarship exists on international trade from States’ perspectives; and much has been devoted to exploring the contradictions and tensions between international economic law, individual rights and sustainable development. Recognizing that “human rights law and international trade law evolved as separate legal regimes” (p. 17) Constitutionalism, Multilevel Trade Governance and International Economic Law makes a positive case for interpreting international economic law and international human rights as complimentary systems that ought to be brought closer together; indeed, to form a single, coherent system of law. It is an implicit response to concerns about the fragmentation of international law and reflects the classical principle of interpretation of treaties as codified in the Vienna Convention in the Law of Treaties 1969 that: “There shall be taken into account, together with the context, any relevant rules of international law applicable in the relations between the parties” (article 31(3)(c)). With this in mind, international economic law is viewed as a tool to serve human interests, as opposed to the interests of States and multi-national corporations. Responding to the High Commissioner for Human Rights’ call for a “human-rights approach to trade,” (p. 22) the book provides both an account of the normative basis that would legitimise such an approach by the WTO and makes proposals for how that process might evolve.

The introductory chapter (Petersmann) provides a theoretical framework for what follows, examining different forms of constitutions and constitutional ideas (democratic constitutionalism, rights-based constitutions, national and international constitutionalism, international constitutional democracy and federal and con-federal constitutions) (p7-8). Petersmann also distinguishes process-based constitutional democracies (most common law models) and substantive rights-based constitutional democracies (the continental approach) which provides the setting for much of what follows (pp. 13, 16).

The later edition contains 4 new chapters exploring conflicts-law as constitutional forum and the role that various doctrines in international private law might play in dispute settlement in international economic law (Christian Joerges); the World Trade Organisation and global administrative law (Richard Stewart and Michelle Ratton Sanchez Badin); the interrelationships between different layers of domestic and international governance as a “Five-Storey House” (Thomas Cottier); and a research agenda on the future developments of international economic law (Petersmann).

Petersmann concludes with four propositions based on the contributions as well as his own research. First, the legitimacy of international economic law pivots on its congruence with international human rights standards (p. 539). Second, there is a need for constitutional constraints on international institutions as there is within domestic States based upon “constitutional pluralism,” meaning that there is a range of acceptable constitutional arrangements and no single system that should be required of all players (p. 540). Third, in order to protect global public goods, such as the atmosphere and climate, a “paradigm shift” is required and this involves moving from a system of industry actors to the centralization of human subjects and Petersmann points to the European Union for leadership to this end (pp. 571-2). Fourth, international constitutionalism is necessary to guarantee global public goods in the same way that domestic constitutions have protected supply of public goods on a national scale. The international constitutional system must be rights-based, participatory and democratic (p. 575).

When the first edition of this text was published in 2006, mainstream commentators were not yet ready to question the bases of the international economic order and the priority of trade liberalism. Two years later, the rapid declines of the Nordic and Mediterranean economies of Iceland, Greece, Italy, Portugal and Spain were met with attacks on human rights and human security. Both the original crisis and the responses of international institutions to the same have led to much soul searching about the principles and priorities of international trade and this volume is a welcome contribution to that debate, sometimes controversial and always challenging. On the other hand, recent events within the Eurozone raise some questions regarding to the extent to which the European Union can be considered a model of international, constitutional, democratic, rights-based governance (compare p. 21) especially if one considers the means by which Iceland (outside of the European Union) has crawled back to economic growth while attempting to protect its most vulnerable residents compared with the demands placed on the Eurozone economies. Something more seems to be needed even within an international organization that positions fundamental individual rights at the heart of its formal constitution. Perhaps the answers are to be found in multilevel trade governance; perhaps they await further research, and one can only hope that the scholars involved in this project continue to devote their considerable talents to challenging the paradoxes and contradictions of the current international structures to develop a regime that remembers it is an instrument for human development, instead of viewing human beings as instruments for its own development.

H. Beale et al., Cases, Materials and Texts on Contract Law, 2nd ed. (Oxford: Hart Publishing, 2010); and T. K. Graziano, Comparative Contract Law: Cases, Materials and Exercises (Basingstoke: Palgrave MacMillan, 2009)

 

This journal is devoted to connections between Northern and Southern Europe, historical, contemporary and future. One of the strongest contemporary connections is that of trade; and trade in the Western world depends on contracts. Today, contract law remains fragmented in Europe, not least as a result of the conservatism of most law schools. As Graziano points out: “In Europe, when one proposes to teach from a European perspective which no longer focuses on the solutions of a single country, one becomes the target of a tide of criticism: curricula of law schools are already crammed; hardly any time would be left to devote attention to foreign or European trends” (23). Yet notwithstanding this resistance, commonalities in European contract law are emerging; pragmatism triumphs over convention.

Cases, Materials and Text on Contract Law, (Beale, Fauvarque-Cosson, Rugers, Tallon and Vogenauer) is a new edition of a 2002 treatise, part of the Ius Commune Casebooks for the Common Law of Europe series produced by the Leuven Centre for a Common Law of Europe.[1] This second edition has not come too soon, given the advances made within the European Union towards harmonizing contract law within the area. This is not part of some devious European agenda towards a “federal Europe” (whatever that means) but a practical approach to easing the trade barriers that continue to exist when citizens of one state are not only used to one particular set of rules that differs from those of their trading partners, but lack the training to even understand those foreign rules. The authors’ aims are explicitly to rectify this situation; to ease the challenges facing law students who will be facing ever more internationalized careers. This, for countries as small as Iceland, cannot be overstated.[2] Mention must also be made of the affordable price of what is a huge piece of work.

Cases, Materials and Text takes a rules-based approach to comparative law; looking at defined rules of law and results of cases to illustrate points of law. The authors acknowledge that they do not take a deeper psychological approach, for example, investigation of the so-called mentalités of legal practitioners in different systems, but make the reasonable justification that such an analysis, whilst interesting intellectually and necessary to the comparative careerists, is not going to give the ordinary scholar the skills she needs to operate practically with foreign law (vii). The text is supplemented with a web-site (currently still under construction) that will include links to the full text of the original materials.[3]

The text’s greatest strength is also its significant weakness as an undergraduate textbook. At over 1300 pages, including extracts from civil codes, legislation, judgments and commentary (albeit the latter being clearly explained and to the point), it is too much to be handled as a regular classroom text in the standard 6 or 8 ECTS course. Thus, an instructor must decide whether to opt for deep consideration of a few select subjects and chapters (admittedly, made easy given the logical ordering of the book) or a superficial review of the broader field. Thus we are again reminded that most law schools are unwilling to devote more than a few credits of a 5 year legal education to foreign and comparative studies, notwithstanding the international environment in which their graduates must work.

Graziano’s Comparative Contract Law, also at a student-accessible price, is less daunting to the usual undergraduate student. Its contents are much slimmer than its competitor: fewer subject areas and much less depth. However, Graziano has also stepped away from the somewhat discredited “legal families” approach (13), taking materials not only from what are considered the 3 parent systems that form the bulk of Cases, Materials and Text,[4] but also Greece, Italy, Serbia, Spain and Switzerland, alongside China and the United States of America. Nordicum-Mediterranean, which forgoes the usual focus on central Europe to concentrate on more neglected Northern and Southern Europe, must welcome this.

While Beale and his colleagues take for granted the interest of their readers, Graziano sells his project, devoting chapter two to an explanation of why comparative law is needed now in the face of hostility in law schools and quite possibly amongst the students that he expects will be obliged to study the book’s contents. Thus before being thrust into the nitty gritty, Graziano attempts to convince the student that non scholæ, sed vitæ discimus. Whereas Cases, Materials and Text relies on the companion website to provide the original language of the selected excerpts, these are included in Comparative Contract Law. This is helpful for multilingual teachers and students, especially those whose first language is not English and who may find it easier to read the original texts in German, Greek or even Chinese.  

Graziano also includes questions at the start of each section. These are similar to the kind of questions one might find in any reader on domestic contract law. They also make for fine tutorial problems: problems for the students to ponder and come prepared to discuss in class with the instructor. While any teacher of contract law (comparative or otherwise) should be able to come up with similar questions, by including them in the book, before the substantive discussion, the inexpert reader’s attention is drawn as she reads on to consider what aspects of the cases are most important and to find her own answers: not wait passively to be “told” by the book.

Where Graziano disappoints is in the oft-neglected reference sections. This text needs a much better index (it is only one page and a half, compared to the 31 page index of Cases, Materials and Text) as well as comprehensive tables of cases (there is none at all in Graziano).

As a textbook, Cases, Materials and Text on Contract Law is too demanding; as a research tool for anyone working in contract law, it is indispensable and should be held by every current or aspiring professor of contract law as well as every law library in Europe. Graziano’s text is more suitable to the classroom and it can only be hoped that law schools will look forwards instead of backwards and recognize as Graziano does that: “this body of literature [in comparative law] will be consulted only by lawyers who have been introduced to an international comparative approach during their education. Only those who have become accustomed to working with foreign legal orders during their education will be ready and will show a sufficient degree of openness to have recourse to these resources in their daily work, and to take into account the solutions and tendencies revealed in the area of European private law” (22).

You wait eight years for a good book on comparative contract law and two come along at once.


[2] See, Rachael Lorna Johnstone, “Iceland’s Renaissance: Time for Comparative Law” 5 Lögfræðingur [2011] forthcoming.

[4] As well as English, French and German law, Cases, Materials and Text on Contract Law deals extensively with Dutch law.

G. Alfredsson, T. Koivurova (eds. in chief), D. Leary, N. Loukacheva (spec. eds.), The Yearbook of Polar Law (Leiden: Martinus Nijhoff Publishers, 2010)

 

The symposium is now an established annual affair with the first three held in Akureyri and the fourth scheduled in September 2011 in Nuuk, Greenland. Although the symposia continue to provide rich fodder for the yearbook, submissions are encouraged from all scholars in pertinent areas of research. Submissions are subject to double-blind peer review.

 

The Yearbook has attracted some of the best known experts in their respective areas. A subjective selection of the most noted will always be unfair in such a distinguished field, but scholars of international law will recognise, besides the editors, established experts Malgosia Fitzmaurice, Nigel Bankes and  Asbjørn Eide.

 

The Yearbook of Polar Law responds to the growing strategic and economic importance of the Arctic and Antarctic regions. The Arctic is changing rapidly, not only geophysically in response to climate shifts but also geopolitically as human technology and security issues give it new social  meanings. Where the Yearbook departs from other Arctic and Antarctic scholarly publications is that it approaches the challenges of the polar regions principally from a legal standpoint. Nevertheless, studies in these areas require almost invariably an interdisciplinary approach: one cannot assess continental shelf claims under the Law of the Sea Convention without a basic grasp of geography; climate change governance without scientific evidence; nor indigenous peoples’ self-determination claims without anthropological and historical knowledge.

 

In contrast to the Polar Law Textbook which is intended as an introduction to Polar Law, the Yearbook is aimed at academics and policy makers already established in their respective areas of expertise.

 

The second volume includes a new “recent developments” section as well as relevant book reviews. What it lacks that was valuable in the first is an overall review of the symposium and the conclusions and recommendations of its participants. That overall review provided an excellent – and gentle – introduction to the sometimes highly technical and specialist papers that follow, in the manner of an introductory chapter in an edited collection of essays. In it, key general issues were identified, including climate change; human rights; new commercial activities at the Poles; shipping challenges; threats to native species; environmental governance; peace, security and dispute settlement. Then specific pressing issues were highlighted: management and protection of at-risk species; a more proactive approach by the International Maritime Organization in identified areas; the need, if any, for new laws, treaties and processes; and living marine resources management. States were advised of areas requiring immediate attention, such as: implementation of existing law; mitigation of, and adaptation to, climate change in cooperation with indigenous peoples of the North. Long-term issues were noted:  namely, climate change and environmental governance. Finally recommendations from the symposium’s participants were recorded, aimed towards academics vis á vis needed research and states vis á vis needed action. This summary gives context to the rest of the articles and allows the reader to go on to read any one of the individual contributions with the bigger picture in mind.     

 

While all the articles in the two published volumes could easily have found homes in alternative fora – specialist journals on the law of the sea, environmental law, natural resource law, dispute settlement, human rights, arctic studies as well as general international law and social science volumes – the Yearbook of Polar Law is, as its title indicates, the first journal to draw together all these fields with a specific focus on the Polar Regions. By tying together all these related fields in one publication, it gives scholars, policy makers and stakeholders the opportunity to form a more holistic view of the challenges facing the Polar Regions.

 

At 156 Euros per volume, the Yearbook is presumably aimed at institutional subscribers: law school libraries, governmental institutions and research facilities; principally those focussed on the Arctic and Antarctic. This is a little unfortunate as these perspectives from the Poles are informative not only to specialist researchers at the World’s ends, but for people all over the World facing challenges such as climate change, resource management, territorial disputes and indigenous claims. One can only hope that, price notwithstanding, the Yearbook’s contents will nevertheless reach the wide audience that they merit.

Natalia Loukacheva (ed.), Polar Law Textbook (Copenhagen: Nordic Council of Ministers, 2010)

In conjunction with the programme and with the financial support of the Nordic Council of Ministers, the programme director, Natalia Loukacheva, solicited and collated these articles from leading academics, practitioners, politicians and indigenous peoples working in associated disciplines to compile the first ever “textbook” in Polar Law. The four designated aims of the textbook are to promote interdisciplinary education; to disseminate current research and developments; to improve Nordic and Arctic cooperation; to facilitate long-distance education on Polar Law and to encourage Nordic and Arctic collaboration in education (Summary).

 

Polar Law as a concept requires some working definition, even if it is constantly evolving and taking on new fields of inquiry as it matures. This definition is provided by Loukacheva in the introduction who advises us that, “broadly speaking, ‘polar law’ is a developing field of law that deals with the international and domestic legal regimes that are applicable to the Arctic or the Antarctic or both” while also taking into account the normative force of “soft-law” instruments (13).

One immediate question that springs to mind is “why polar law?” What is special about the polar regions that justifies such specialized attention? And despite some superficial similarities between the Arctic and the Antarctic, geologically, politically, sociologically and economically they are, if one will pardon the expression, “poles apart.” Loukacheva raises these questions in her introduction, drawing attention to the most significant differences between the two regions as well as areas of common concern and lessons that one region might have for the other.

On reading the textbook, it becomes apparent that these areas are of ever increasing strategic and political importance and facing challenges of governance and deployment that have serious consequences in much more temperate climates. The focus on polar law suggests a preference for legal regulation to solve problems, but in reality, the approaches taken are all interdisciplinary to greater or lesser extents. Only the chapters on the law of the sea and on human rights and indigenous peoples rely principally on legal sources and even in these chapters, the law is explained in social and environmental context. In other words, whilst to some extent it is assumed that law is one useful tool to address the relevant issues, it is nowhere assumed that law is the only tool, nor even the preferred one.

Although marketed as a “textbook”, the essays do not provide a superficial account of the issues they each address. Instead, the book is packed with information, providing knowledge and analysis that will serve well scholars, scientists and policy-makers in, inter alia, international law, international relations, development, governance, natural resources law and climate change, whether or not they seek a specific focus on the polar regions. Where it shares a “textbook” approach is in the inclusion at the end of each chapter of suggested material for further reading (useful to researchers at all levels) and a pedagogically-focussed list of questions for reflection by the reader.

The content is weighted towards the Arctic, which can be understood to the extent that there is a necessary focus on the social sciences (e.g., economics, Arctic governance) and emphasis is rightly put on indigenous peoples (4 of 11 chapters). The human issues pertaining to the Arctic have no equivalent in Antarctica. There would be scope, however, for further development of Antarctic issues in a future volume, such as questions of governance of the South Pole, legal and political claims to territory, potential exploitation of non-living resources, and other economic interests.

The textbook taps into the most contemporary information available, containing numerous references to developments in 2010. However, the effort to publish the state of the art developments in polar law have come with some editorial costs that might be rectified in a second edition, or a future second volume with new essays dealing with yet to be identified topics. First of all, a non-specialist approaching this textbook may feel at times bombarded by acronyms and it can become difficult to keep these all in focus. Furthermore, the acronyms are not consistently used by different authors, for example, the Law of the Sea Convention is abbreviated to LOSC (45) and later as UNCLOS (214). The inclusion of a simple table of acronyms could make it much simpler for authors to use the same acronyms and for readers to check these quickly when memory fails. The styles of the questions also vary between chapters, with some being answerable by reflection of the contained text alone and others requiring further research. There are formatting inconsistencies, with most chapters listing questions at the end of the text, but chapter six including these after subsections within chapters, and some typographical and layout errors. Ultimately, however, the technical detractions of the textbook should not detract from its innovative content.

Finally mention should be made of the open-access nature of the project and the willingness to make this content available to as wide an audience as possible without the barrier of cost. The book is available for purchase in hard copy, but can be downloaded in its entirety in pdf form free of charge, something that cash-strapped students and universities in developed and developing countries alike will no doubt embrace enthusiastically.

* Online pdf version: 

 http://www.norden.org/en/publications/publications/2010-538

 

Ian Carter, Anna Elisabetta Galeotti & Valeria Ottonelli (eds.), Eguale Rispetto (Milan: Bruno Mondadori, 2008)

Amartya Sen asked two questions: (i) Why equality?; and (ii) Equality as to what? He believed that the answer to the first will necessarily entail an answer to the second. (XI) However, to this reviewer, conspicuous by its absence is the question “Is each human being owed equal respect?”In fact, each of the essays gives the impression of presupposing that respect for other persons ought to be equal and then striving to find justifications for that outcome. In other words, there are no essays that argue that, in fact, we do not owe one another equal respect.

The project is one of philosophy, principally, political and moral philosophy and as such, it is predominantly a theoretical one, being light on concrete application, notwithstanding the editors’ questions. Whilst illuminating the concept of equal respect as well as its importance in human interaction, the collection does not attempt to argue that equal respect is the only or principal guiding value; we are not advised as to the circumstances in which other values may prevail over our duties of equal respect.
It is deeply unfair, of course, to criticize a collection of essays for what it does not achieve rather than recognize its merits as an excellent and nuanced contribution to contemporary philosophical discourse. Thus, the reviewer will now turn to some of the articles to demonstrate what to her seemed to be the most interesting ideas and conclusions contained within their pages.
However, before beginning that task, it is necessary to clearly distinguish – as accomplished clearly in the book, in particular by Stephen Darwall and Anna Elisabetta Galeotti – between “recognition respect” and “appraisal respect.” The former indicates equal respect for each human being solely on the basis of their humanity – it is on this that the book concentrates. Appraisal respect, as the name suggests, is the respect we give to others based on their attributes, be they moral virtue, musical virtuosity, athleticism or erudition. Clearly, appraisal respect is not owed equally to everyone as everyone carries such attributes in unequal measure. Moreover, one can merit appraisal respect in one area but not in another. Noone would question Mozart’s musical talent and the due respect on that ground without respecting his personal life as one displaying moral virtual and one rather doubts he was a gifted ball player.
Beginning with Strozzi’s depiction of Mark 12: 13-17 (“Render unto Caesar…”), Darwall takes a tour of respect as recognition, illustrating the “second person standpoint” as a fundamental component. (1-23) Galeotti expands upon this theme to suggest that recognition respect and appraisal respect have closer links than first appear and argues that even recognition respect can be suspended by unspeakable crimes, justifying punishment according to law, though never torture. (The subject of the death penalty was left, disappointingly, unaddressed.) (24-53, especially at 35-36) This is because respect is not so much felt or given as done. We manifest respect through our behaviour; hence can suspend it in appropriate circumstances.
Ian Carter tackles the question of why equal respect. Given that recognition respect is based on the moral agency and personal autonomy of individuals, why should we not vary our respect based on the evident variations in capacity for the exercise of personal autonomy according to individual characteristics? (54-77, especially at 57-8, 61) Carter answers by rejecting Bernard Williams’ demand that we take the other person’s internal point of view and argues instead that recognition respect must be opaque; we must refuse to look inside the other person and assess them, thus coming to a conclusion closer to a Rawlsian position. (66-70) Carter also reverses Sen’s assumptions and argues instead that one cannot answer the question “Equality as to what?” until we have some answer to the question “Why equality?” that is, we have some justification for equality. (56)
Carla Bagnoli returns to Kant and the significance of dignity and its basis, autonomy, as the foundation of equal respect, and throws some light on the related questions: what is individual autonomy and why does it have moral value? (78-100)
Hillel Steiner, Luca Beltrametti and Lester H. Hunt all address in various modes the requirements of equal respect in economic affairs. Steiner persuades us that, despite neoclassical arguments, free trade can be exploitative. (101-112) Using an example of fair trade bananas, he demonstrates that buying at lower cost is a form of exploitation as the purchaser is benefiting from earlier exploitation – and lack of respect – that has put the producer at a long-term economic disadvantage, thus forcing him to sell at a price lower than he would have absent the earlier exploitation. (108-10) He successfully answers the question “Why pay more?” but he also turns that question around and asks the reader: “Why pay less if it means being unjust?” (107)
Beltrametti considers paternalism in economic affairs and begins from B. New’s position that market imperfection is a necessary, but not a sufficient condition to justify paternalism. (113-127) Paternalism may represent a failure to treat its beneficiaries as “ends in themselves” but there are some examples where this is not so. New defines paternalism as A: an interference with the decisional autonomy of the beneficiary; B: with the intention of improving that person’s wellbeing; and C: without the consent of the beneficiary. (114) Beltrametti then distinguishes authoritarian paternalism (which is coercive) from libertarian paternalism (which changes the weights of ones’ reasons for action, such as introducing “default” options in public and private law) (115-117) and finds that the latter is not necessarily more acceptable (or respectful of its beneficiaries) even though it veils itself with the illusion of choice. (122) He adds two more which do not strictly fit with New’s definition, namely Ulysses’ paternalism (which is consensual) and donation paternalism (which requires consent of recipient). (118-120)
Hunt takes us on a disturbing tour of Auschwitz to rebut Robert Nozick’s conclusions in Anarchy, State and Utopia. (128-147) In a complete reversal of respect, Hunt describes the treatment of Jews in the labour camps of Auschwitz, reduced in the eyes of their exploiters to the ultimate “consumable resource.” Each lost 3-4 kg per week and could usually survive for about 3 months before being overcome by starvation, disease or deliberate disposal. Each body was literally consumed, with fat and proteins being converted into labour (like coal or wood burnt for energy) and even in death, body parts were consumed for gold, mattress stuffing and soap. The value of each person was reduced completely to an economic resource. (130-132) In fact, Hunt claims that the labour camps were inefficient even on their own sordid terms; they were poor factories with low output. Furthermore, there was a clear “net-loss” (Kaldor-Hicks) – the persons robbed of their own bodies lost more than was gained by the operators. Nonetheless, this economic analysis seems hardly adequate to explain why we find it so morally horrifying. Nozick’s utility analysis does not explain why it would still be wrong even if it had been economically efficient. Thus, concludes Hunt, there must be some deontological explanation beneath or beyond the economic analysis. (133) Hunt turns to Kant, reminding us that human life has a dignity and not a price; (134) thus we cannot dispose of one Jewish worker and replace him with another of greater “worth” (fatter, fitter, stronger, healthier). (135) Auschwitz’ factories represent the extreme of treating persons as means and not ends in themselves. (136) The second part of Hunt’s article, only loosely connected to the first, discusses the justifications for taxation in democratic states and ultimately concludes that although taxation might be a form of paternalistic coercion (respectful of taxpayers and their ends), in fact, it usually slides into exploitative coercion (like robbery) owing to the clumsiness of states as well as their occasional lack of moral rectitude. (143)
Valeria Ottonelli takes us on a tour of the difficulties of translating the theory of equal respect and formal equality into the realities of the public sphere. (148-173) Examining three concepts – democracy, justification and equal respect – she argues that equal respect mandates democratic governance.
Peter Jones makes an interesting and rather rare foray into the implications of equal respect internationally.(174-200) Despite the fiction that remains the basis of international law, the Westphalian model is no longer a fact of contemporary international relations: states are not independent boxes and certainly not equally independent. (178) Hence, states are not in equal positions to “tolerate” one another as it can only make sense to say that A tolerates B if A has some power to intervene in B and chooses not to exercise it. (177) Furthermore, tolerance or intervention is not a question of a cost-benefit analysis or a perspective of self-interest. (179) Jones argues against intervention as a matter of respect for individuals, rather than respect for “peoples” in some kind of artificial personification of “the state” (186) (defined by Rawls rather than by the Montivideo Convention[2]). (182-184) Some people (persons) may indeed prefer a system that is not liberal-democratic. We can still maintain that a liberal-democratic system is better – even for them – but that is not adequate reason to intervene. (192) In the end, Jones’ conclusion is in line with contemporary international law, which permits humanitarian intervention only in extreme situations.[3] Jones is perhaps over-optimistic about the extent of individuals’ consent to be governed – in liberal-democracies or otherwise – but this paper is theoretical, not practical and thus can be excused.
Elisabeth Telfer completes the book with her essay on humour and equal respect, focusing on ways in which humour can be used to undermine equal respect. (201-213)
On reflection on all the chapters considered together, it becomes less convincing that the collection justifies equal respect at all. Instead, each chapter can be considered as an explanation of and justification for a standard of “equal minimum respect.” Accepting Galeotti’s conclusion that recognition respect and appraisal respect are not of a different nature but rather shades of the same thing, each of the essays can be read as a justification of a presumption of respect at level x for each person qua person, which amount can be increased on the basis of appraisal (x + a) or can be reduced on the basis of exceptionally immoral or anti-social behaviour (x – b). However, x – b can never fall below a basic threshold (y) for example, to justify torture, non-consensual medical experimentation, or to treat human bodies as consumable economic resources. y is the level of equal minimum respect.
It has not been possible in this short review to give equal consideration to each of the commendable essays in this collection but it is hoped that this review will encourage readers to take a closer look at the book and, for those not fluent in Italian, to seek out further work by these accomplished scholars.

[1] All translations are the reviewer’s own.

[2] Montevideo Convention on the Rights and Duties of States, Dec. 26, 1933, Art. 1.

[3] Cf: United Nations Charter, Art. 2(4) (principle of non-intervention in sovereign states) and Convention on the Prevention and Punishment of the Crime of Genocide, 9th December 1948, 78 U.N.T.S. 277, Art. 1 (requiring states “to prevent and to punish” genocide and indicating, therefore, international intervention). See also, Case concerning the application of the convention on the prevention and punishment of the crime of genocide (Bosnia and Herzegovina v Serbia and Montenegro) Judgment of 26th February 2007, 2007 ICJ Rep. 1.