Tag Archives: environmental law

Jordi Jaria i Manzano, Nathalie Chalifour and Louis J. Kotzé (eds.), Energy, Governance and Sustainability (Cheltenham: Edward Elgar, 2017)

In 2014, the International Union for Conservation of Nature’s (IUCN) Academy of Environmental Law organized its annual colloquium themed “Energy for a Fair Society on a Safe Planet”, and the present edited collection was subsequently published as a selection of research by legal experts from across the globe on the future of energy governance and the role of law. As a result of the changing climate, energy transition and environmental justice have been at the forefront of both the debate about energy security and environmental concerns. By focusing on the law, this timely book provides a sharp insight and novel ideas for rethinking sustainable energy governance. On a structural level, the book is divided in three parts (foundations, experiences, and governance gaps) and fourteen chapters giving different perspectives on the issue at stake.

The book does contain interesting parts, and it neatly weaves together legal theory, human rights, environmental justice and their application to create new cutting-edge energy policies. In Foundations (section I), the theoretical, legal and conceptual frameworks are laid out in a way that highlights legal innovations for renewable energy development from constitutional law and transnational developments through international agreements to environmental justice and innovative financing techniques. Of particular interest in this section, Klaus Bosselmann’s chapter about the legal concept of Energiewende (German for “energy transition”) might help scholars and practitioners think anew and be more proactive when it comes to pushing for social changes. His radical ecocentric approach tries to bridge the gap between legal scholarship and legal activism. In this chapter, he posits that rather than looking at sustainability from a legal viewpoint, environmental lawyers should look at the law from the perspective of sustainability. To him, shifting to and legislating in favour of renewable energy is both a matter of consciousness and ethics: are human societies sufficiently concerned and aware of their impacts on the environment to make a conscious choice to change?

As the title may suggest, Experiences (section II) discusses and analyzes case studies of energy governance in several jurisdictions. For example, Daya-Winterbottom gives a fascinating overview of the complex legal development and challenges for renewable energy investment in New Zealand. Through a careful analysis of New Zealand case law, the author shows that New Zealand has not yet developed a coherent environmental policy regarding renewable energy and climate change despite having plenty of renewable energy sources accessible (hydro and geothermal energy as well as wind and tidal energy). This lack of a coherent policy has led the courts to step in, strengthen and sometimes weaken the legal framework for renewable energy development and climate change mitigation. Although in terms of climate change the judiciary might have rendered climate litigation untenable, the courts have also played an important role in balancing the protection of the environment alongside developing wind energy projects.

Albeit brief Governance Gaps (section III) might be the most interesting section, and the book might have gained in having expanded this section a little further. Prior to this section, the book comes across as western-centric mainly focusing on energy governance in European and other countries in the Northern hemisphere. The final two chapters of this book highlight global energy governance and the impact of environmental changes on developing countries. Eloamaka Carol Okonkwo’s chapter might be one of the most interesting in the entire book as she focuses on the negative impacts of oil and gas exploration and extraction on local communities living on the Niger River’s delta. She highlights the urgent need to protect environmentally displaced persons that have been affected by environmental pollution. Okonkwo calls for the development of a new legal framework in both Nigerian and international law. She further emphasizes the need to implement both regional and international instruments and guidelines to provide for normative protection to displaced communities. In the meantime, oil companies should be challenged for infringing fundamental human rights such as cultural rights and the right to a healthy environment. Okonkwo also suggests that challenging the government for encouraging such behaviour might also help.

As mentioned above, a volume of this nature is indeed timely. Although the book does a great job at giving a broad range of experiences and research, it is safe to say that the book’s omission of the Arctic region might be a shortcoming when discussing energy transition and governance on a world scale. Communities across the globe are diversifying their energy sources with cleaner, lower-cost, renewable options while also developing non-renewable forms of energy. While each region comes with its own set of local preconditions and challenges, energy transition and sustainable energy governance development are also present in regions such as the Arctic. Shifting the focus of research to less-talked-about regions might help changing the narrative around energy development and facilitate investment in these regions.

This criticism aside, the book provides a rather comprehensive overview on the possibility for new forms of energy governance that could lead to fairer, safer and more sustainable societies. New solutions do exist and new forms of energy governance are on the rise. Governments and legislators should be pushed to make the energy transition happen and to regulate in favour of renewable energy and sustainability. As Anaïs Guerry (chapter 10) points out, energy transition should be understood as a cultural change as well as a radical change in the way we legislate and govern. More local production paired with citizens taking back control of the means of energy production might help bring about the radical – and much needed – change in energy governance. Social theories of taking back control of the means of production are not new ideas, but applying them in the context of energy transition and governance provides keys to better understand the issue. The book is quite technical at times and its in-depths perspectives and high-quality legal research might not be for newcomers to the field of environmental law. However, Energy, Governance and Sustainability will without doubts be of interest to legal practitioners, lawyers and policymakers as well as legal scholars well-versed in energy, natural resource and environmental law. Its affordable paperback version might also be an excellent addition to graduate and postgraduate environmental law students’ reading list.

Timo Koivurova, QIN Tianbao, Sébastien Duyck & Tapio Nykänen (eds.), Arctic Law and Governance: The Role of China and Finland (London: Hart Publishing, 2017)

This edited collection of essays is the product of a two-year project to assess and compare Chinese approaches to the Arctic with Finnish and/or EU approaches. These three entities are quite distinctive in population, politics and power and hence are not an obvious triumvirate. Nevertheless, the books’ chapters draw out interesting points of comparison. China is a relative newcomer to international relations and economic development in the Arctic. Backed by both military and economic clout, it triggers concerns amongst Arctic inhabitants and other stakeholders regarding its ambitions. Such worries are not helped by China’s closed political decision-making and limited official statements on its Arctic policies. This project, therefore, aims at increasing knowledge and understanding of China’s interests and expectations in the region.

The introduction to the book provides a good summary of the analyses that follow in the self-standing chapters which are themselves grouped into three Parts: Chinese Perspectives; Comparison between Finland and China; and Comparison between the EU and China. As a collection of essays, the book does not have a single or overarching thesis as such but a number of common themes are identified in the introductory and concluding chapters (by the 4 editors). One repeated them is climate change and pollution. Climate change is not coming to the Arctic: it is already here. China is the World’s biggest fossil fuel consumer and responsible for 29% of global greenhouse gas emissions (the EU, 11%). However, black carbon – a short term climate forcer – in the Arctic comes mostly from Europe. Europe is also a more significant source of the persistent organic pollutants (POPS) that end up in the Arctic (7). Another theme is economic development: even if the rights to exploit natural resources lie with the Arctic States and the peoples within them, the viability of doing so pivots on demand – and that demand is predominantly Chinese and European (8.)

The chapters go a long way to making up for China’s decision not to publish a comprehensive Arctic strategy or make regular and clear statements about its Arctic plans. China is not necessarily to be blamed for this: China is a lot more significant in the Arctic than the Arctic is for China, even if the book demonstrates that Chinese interest (and interests) in the Arctic have grown swiftly in recent years.

QIN Tianbao and LI Miaomiao’s chapter, “Strengthening China’s Role in the Arctic Council” calls for an official Chinese Arctic strategy but is itself rather more candid than an official State policy document is likely to be and as a result, probably more useful. The two authors make a rather bold proposal that China become a fully-fledged member of the Arctic Council (42), which will raise a few eyebrows amongst the more territorially sensitive of the Arctic States. Let’s just say that an official, published Chinese Arctic strategy is the more likely of the two scenarios in the near-term!

Ren Shidan turns to Chinese Arctic research and points to, amongst other things, frustration with Russia regarding access (53). She argues for freedom of research in the Arctic and rejects arguments that Chinese research is a foil for long-term plans to strip the region of resources. However, her concerns regarding Norway’s interpretation of the Svalbard Treaty (concerns shared by a number of European states) turn the chapter back to resource development (55-57).

Julia Jalo and Tapio Nykänen identify Chinese priorities in the Arctic based on World Affairs (a government-controlled magazine and unofficial mouthpiece). Only nine articles on the Arctic have been published since 2004 (indicating that the Arctic is still a relatively peripheral zone in Chinese politics). However, eight of these articles were published in 2008 or later, peaking when Chinese sought and accepted its seat as an observer at the Arctic Council in 2013, suggesting that interest is growing. The authors recognise that China is often viewed as a ‘threat’ in the Arctic, especially by those taking a classical realist approach, but they conclude that either China is indeed playing down its real intentions or that (more likely in their view) China is genuinely concerned about climate change and other environmental problems in the Arctic. In either case, they agree with QIN Tianbao and LI Miaomiao that a published strategy would help to clarify the situation.

Xiaoyi Jiang and Xiaoguang Zhou then consider maritime sovereignty and rights in the Arctic, looking in particular at the potential of the Northern Sea Route as an alternative to (or at least a supplement to) the Malacca route – even if they also note that Chinese shipping companies are adopting a ‘wait-and-see’ approach (96). They comment that China “has virtually no influence on the decision-making process at ministerial meetings” (of the Arctic Council)(90) and, like the other Chinese contributors, note that China is trying to be viewed as a partner in the Arctic rather than a threat (95).

Part II brings us to Finland with Lassi Heininen’s assessment of Finland, the EU and China and the asymmetry between them. Climate change – and China’s potential to take a lead role – is once again a key theme (107). Heininen sees common interests in shipping (Finland builds; China ships) (109); scientific research; resource governance and international cooperation (129). However, Finland and China also have shared interests in resource development in the Arctic (Finland produces; China buys) (118-120).

Tapio Nykänen presents the other chapter in this Part, using critical geopolitics to explore how the Arctic is framed in Chinese and Finnish Discourses. He agrees with the other writers that China is trying to build trust in the Arctic, seeking to present itself as a constructive partner (137). He analyses China’s position as a self-declared ‘near-Arctic state’, pointing out that geographically, it is extremely far from the Arctic Circle but arguing that instead it is geocritically close (140). Nykänen recognises China’s contributions to Arctic science but sees a political undercurrent to this: science is a ‘door’ through which China can claim a legitimate interest in Arctic governance (140).

Chapter Eight (Timo Koivurova, Waliul Hasanat, Piotr Graczyk and Tuuli Kuusama) is based on interviews with participants in the Arctic Council system, Chinese officials and scholars. It produces original, qualitative research on China’s position within the Arctic Council and identifies issues that would be unlikely to be uncovered by looking only at official publications. For example, the authors report that some Chinese officials are unhappy with the Nuuk criteria on observers (169)). They also identify a problem in the delegations which both lack continuity and do not always match the mandates of the working groups (175-177).

On fisheries, Sébastien Duyck sees shared interests in China and the EU – both being major fisheries jurisdictions and being outsiders seeking to ensure that their industries are considered in any new regime for the Central Arctic Ocean (Chapter IX). China, Duyck points out, is a ‘developing country’ and positions itself as a ‘leader’ of the G77 (196). Its policies on fisheries differ from the EU, being more defensive of High Seas freedoms and rational use, compared to a more conservationist (or even preservationist) orientated EU (197-198).

Adam Stepien considers China’s and the EU’s respective engagement with indigenous peoples. China maintains the questionable position that it has no indigenous peoples inside of China (222).  On the one hand, this means that China is not unnecessarily concerned with establishing precedents that could complicate matters at home (cf its position on international straits and Arctic shipping) but on the other hand, means that it has no experience and limited understanding of the stakes for indigenous people. China talks the talk (for example supporting indigenous rights in the UN – as long as it is clear that they don’t apply to or in China! (223)) but its engagement is uncoordinated and inconsistent (216). Environmental impacts are once more brought to the fore as Stepien explains that European and Chinese emissions are a major threat to indigenous communities (210-211). The EU, recognising the Sámi as the only indigenous people within the EU itself, has a more proactive stance on Arctic indigenous peoples and is, in theory, supportive of indigenous rights (218). That does not mean, however, that the EU always gets things right.

Nengye Liu and Kamrul Hossain address navigation in the Arctic and highlight the dependence of China’s economic strategy on shipping (243). The Northern Sea Route (less so the Northwest Passage) holds the promise of faster, cheaper shipping untroubled by the politics of alternative routes but, for now, this is still only a promise. While the shipping companies take things cautiously, the government has published the first Chinese guidelines on Arctic shipping (244). Like Xiaoyi Jiang and Xiaoguang Zhou, they note that China did not get involved in the development of the Polar Code and wonder if Chinese delegates to the IMO could take a more active role (247). They also suggest that China work alongside Japan and South Korea to promote (and defend) its shipping interests at the Arctic Council (249).

The concluding chapter by the four editors draws together the main findings of the contributions, reiterating the centrality of climate change and the consequent expectations of a natural resources boom (253-254). They note the resistance of the Arctic Eight to (too much) non-Arctic State involvement and how the Arctic Council system keeps the most powerful outsiders – like the EU and China – relatively subdued (261). Like most recent academic work on the Arctic, the final conclusion is that the answers are there and can be reached peacefully. International law has the answer to most questions; and for the others, it has processes by which to find, peacefully, those answers.

Although a number of writers call for a Chinese Arctic policy or strategy, this book gives us much more than any state policy every could. The original research and analysis by both Chinese and European scholars helps readers understand the dragon and, hopefully, fear it less. Nevertheless, there are subtle differences in approaches, with the Chinese authors tending to play down China’s resource ambitions and emphasise science and environmental concerns with some of the European contributors implying that China’s scientific contributions are driven by those very resource ambitions. I would wholeheartedly recommend this collection to anyone working on international law, international relations or economic development in the Arctic. Well edited, it is an accessible read for students as well as more seasoned academics. Even were the Chinese government to respond to the call to publish a formal strategy, it will not replace the excellent scholarship in this book.

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.