Tag Archives: environmental law

Günther Handl and Kristoffer Svendsen (eds.), Managing the Risk of Offshore Oil and Gas Accidents: The International Legal Dimension (Cheltenham: E. Elgar, 2020)

Book review (editorial review), , , , , , , , , , , , , , , , ,

Managing the Risk of Offshore Oil and Gas Accidents: The International Legal Dimension is a book from the Edward Elgar’s New Horizons in Environmental and Energy Law Series. It is structured around the assessment of domestic and regional legal concepts regarding safety, liability and compensation for harm, and is divided in three Parts containing topics consisting of one or several Chapters.

Part I is on prevention and reduction of harm. Without restricting itself only to the offshore industry, Topic/Chapter 1 acknowledges the deficiencies of risk management by considering State and stakeholder involvement in corporate governance and concludes that transparency is one of the most important factors for improving it.

Topic 2 is on regulating the safety of offshore oil and gas operations. Chapter 2.1 is on promoting uniformity in international governance. This is achieved by discussing the prescriptive (Malaysia, Venezuela, Saudi Arabia) and performance-based regulatory approaches, and the tendency of moving towards hybrid control (USA, Norway, UK, Australia). The reasons for the latter – that government agencies are not well-suited to inspect the quality of the industry even though obliged to ‘audit the auditor’s auditor’ – are established in Chapter 2.2 using as role model the ongoing changes in the USA following the Deepwater Horizon (DWH) accident. Although international law has no provisions on promoting uniform health and safety standards and that the hybrid system allows for easy harmonisation, it is also possible in States promoting prescriptive regulation.

Topic/Chapter 3 discusses the need to amend treaty law on contingency planning and response (CPR) regarding transboundary pollution through reviewing the vertical levels of governance: treaty (UNCLOS and OPRC), regional (Arctic) and bilateral (Norwegian-Russian) legislation.

Unlike it, Topic 4 is on national and regional CPR – Chapter 4.1 reviews the amendments and implementation of EU law after DWH accident; Chapter 4.2 is on MOSPA  and the 1994 Russian-Norwegian Agreement in the Barents Sea; Chapter 4.3 is on national and interstate CPR of the Arctic by the USA, Canada and Greenland; Chapter 4.4 is chiefly on the Mediterranean, although also referring to the other marine areas – in Europe, the Arab peninsula, Africa, the Pacific, the North East Atlantic and the Caribbean.

The approaches in Topic 4 differ in depth of research. While some might be used for referencing (the regional agreements in Chapter 4.4), others describe the peculiarities of national governance (Greenland in Chapter 4.3). However, all are quite detailed in considering the impact on stakeholders and their authors agree on: the insufficiency in harmonisation, the extant high fragmentation, and the low levels of joint decision-making, thus urging continued cooperation.

Topic/Chapter 5 is on cooperation in marine delimitation and exploitation of transboundary deposits agreements (unitisation treaties, framework agreements and joint development agreements) for avoiding transboundary accidents. The review of several regional and bilateral agreements shows that it is impossible to categorise them. However, diversity also offers a range of options to choose from in order to meet States’ specific objectives.

Part II is on liability and compensation of loss. Chapter 6, describing the 2009 Montara and 2010 DWH accidents, shows the necessity of introducing a treaty law on transboundary losses. States prefer to channel liability to the operator which, unfortunately, is not a panacea, and additional measures for ameliorating the situation are proposed.

Topic 7 is on the most contentious losses that may occur following a pollution accident. Chapter 7.1 is on pure economic loss criticising the method for calculating DWH claims and an alternative is offered. Chapter 7.2 is on pure environmental damage. Unlike pure economic loss, it relates to collective rights and is also difficult to calculate. Treaty law is unclear about who is to be liable. However, certain US and EU laws could be used as a model in amending it.

Since the US are the place of greatest concern for risk managers in the offshore petroleum industry, Topic/Chapter 8 considers when punitive damages are granted. The conclusion is that that they are not quite popular among judges.

Topic/Chapter 9 is on liability insurance in the upstream operations – of the contractors, for well control, rigs and offshore vessels – and the issues of subrogation and business interruption insurance as developed by the London insurance market under English law. And although in 2015 the legislation was amended, the parties are still to be aware that renegotiating the standard terms might affect them negatively.

Part III is on claims processing. While Topic/Chapter 10 is on the role the CLC/FUND Conventions have in resolving pollution claims from carriage of petroleum by sea, Chapter 11.1 is on DWH litigation and Chapter 11.2 on compensation following the Montara accident. The CLC/FUND Conventions are unrelated to seabed petroleum extraction, whose solutions on liability may be completely different. The DWH proceedings describe the consolidation of claims and the distribution of the fund established by BP. Regardless of the procedural and substantive flaws, the settlement of claims has been substantially successful and its experience could be instructive for future oil spills. Unlike DWH, Montara looks from a broader perspective – against whom and where the transboundary and national victims could claim. Thus, the difficulties which the transboundary claimants have encountered when they brought their claim in the Australian court against the operator have been recognised.

Topic/Chapter 12 is on the development of mass tort litigation in Europe. After pinpointing the differences between the continental and US common law systems, the shared features of several European class action cases are discussed – the role of State institutions, preference for individual litigation, and the European (national and supranational) procedural laws. Thus, the authors show what amendments have been undertaken in order to make class litigation more attractive in Europe.

There is no way to disagree with the editors that this book seeks to provide a comprehensive analysis of the transnational dimension of the petroleum activities by looking at harm prevention and post-accident management of risk.  The lack of references in the table of contents for a particular law does not mean that scholarship has not considered it in detail or that its review has not been spread throughout the Chapters (e.g., MOSPA or the US law). Also, the missing acknowledgement of relevant existing legislation, such as the one pertaining to Danish-Canadian relations,[1] shaping as well the Greenlandic obligations due to its colonial past, does not decrease the quality of its research. In addition, the review of recent caselaw and the list of major accidents in Chapter 9 make it a good reference for legal academia at large. Furthermore, by encompassing different levels of governance, the book stresses that States and international organisations need to be more proactive in finding common solutions to the existing problems.

[1] Agreement for Cooperation between Denmark and Canada Relating to the Marine  Environment (Copenhagen, 26.08.1983)

Silvana Bartoletto, Energy Transitions in the Mediterranean (Cheltenham: E. Elgar, 2020)

Book review (editorial review), , , , ,

Economic historian Bartoletto has written a short overview of energy use in the Mediterranean. Her primary interest is in showing how energy transitions happen and where the states in and around the Mediterranean are relative to the transition from hydrocarbons to renewable sources. The book includes discussion of the entire Mediterranean rather than just parts of it, which allows some comparison of strategies and challenges. The region has states like Algeria with huge oil and gas resources, states with new-found off-shore fields like Israel, and places with little or no hydrocarbon resources like Malta.

The book has five chapters and a conclusion. Most of data end with 2016, though some of the discussions includes information as late as 2018. Chapter 1 compares the countries on their economies and energy use. That data helps inform later chapters. Chapter 2 considers energy price dynamics, production and trade. The ups and downs of conflict, oil prices, and various political events drive the discussion and set up the third chapter on energy security concerns of the different countries. Chapter 4 on energy transitions and energy efficiency is the core of the book. It defines the concept and looks at past transitions in the region. Transitions have phases, as countries switch from older fuels to newer ones. Technological innovation slowly improves the performance of the new technology and associated technological systems change as well. That leads to more economic productivity (though not necessarily environmental health). Chapter 5 looks at renewables and CO2 emissions, again in a comparative perspective. The conclusion notes that strong energy demand in the region will naturally have an impact on environmental policies elsewhere to limit climate change everywhere. The author summarizes how some of the Mediterranean countries are responding.

The volume would have been enhanced if more attention had been paid to specific policies, including more indirect ones, used by the Mediterranean. For example, the author notes increased emissions in Malta, but did not note that one reason for this was to allow more (less polluting) cars into Malta. There is no mention of the serious security discussion there about whether to close the oil-based Marsa power plant in favour of getting power from Italy. The plant was closed in 2017/18, but power cuts to the line (happening after the book was written) have caused it to be reopened. It has a very intensive demand for energy due to five desalinization plants. Yet that country has an energy and reduced greenhouse gasses plan that is being executed: An LNG gasification plant is now in operation and, like other parts of the Mediterranean, many households use solar energy and food waste.

The book is easy to read and understand. The Mediterranean as a case region makes good sense. The region offers developing countries, energy-rich and poor countries, and highly technological ones.

Franziska Ehnert, Climate Policy in Denmark, Germany, Estonia and Poland, Ideas, Discourses and Institutions (Northampton: Edward Elgar, 2019)

Book review (editorial review), , , , , , , ,

The book of Franziska Ehnert, entitled Climate Policy in Denmark, Germany, Estonia and Poland, Ideas, Discourses and Institutions approaches climate change in terms of interaction of institutional, policy and discourse aspects that form the path from reality to political priority, policy and solution. This topic is part of current political debates that began in the 1980s, despite climate scepticism or climate change denial, and despite the resistance to the transformation of lifestyles and infrastructures. Environmental movements succeeded in bringing science and policy together, to sustain a climate change critique of the status quo and to promote ecologist alternative values and solutions via environmental policy.

Climate policy analyses are paramount to assess the manner in which the “ministerial administrations” implement or change a policy to answer environmental issues, redefine problems and maintain the adequacy and efficiency of climate change policy.

Considering that previous studies have shown the tension between the expert public officials and the politicians, the research conducted by Franziska Ehnert argues that “policy change will be better understood by studying the actors formulating these policies, namely ministerial administrations. It captures, not merely party politics and interest group politics, but the departmental politics of policy change. The book therefore focuses on the coordinative discourses within governmental institutions (…) among the actors participating in the construction of a policy, which stand in contrast to the communicative discourses through which politicians communicate and justify their policies vis-à-vis the public”. (p. 5)

Thus, the investigation follows the factors and aspects involved in the continuation or change of a policy; how is policy shaped, how coordinative discourses, policy frames, institutional contexts and particular identities relate and evolve; and how can one assess the reframing of values, the redefinition of interests or the reinterpretation of the guiding ideas.

Methodologically the study combines ontological, epistemological and methodological characteristics of the positivist and interpretative research paradigms in a comparative research with qualitative and quantitative dimensions based on the singularities and not on the similarities of the cases. Literature reviews, document analyses and expert interviews are also combined. Moreover, state and non-state actors are taken into consideration via expert interviews. Interpretation plays an important role as well following the data-generation stage: meaning-focused methods are used to analyse empirical data (p. 15). The investigation has as its own particularity the fact that the researchers acknowledge the characteristics of the cases only in the process of data generation, which increases objectivity. The countries compared are similar enough as regards institutional democracy, rule of law and market economy, and, as EU members, they share similar political commitments to EU climate and energy policy. Having under investigation older and younger democracies, varied indicators such as historical backgrounds, territory, economic, political, military and financial power or population size, differences in policy styles and discourses are to be expected.

The analytic framework introduced in the second chapter investigates the causes and means for the continuation of policies, provided that ideas and narratives shape and do not merely reflect the field of action. Political power has an important dimension in the power of ideas. The agents have an activity expressing the “following of the rules” and the “reproduction of the institution”, but also one that indicates the meta-level of discourse, for they think about and outside their institutions too. In terms of “ideal types”, the entrepreneurial-style bureaucrats are more likely to perform as “policy brokers”, while servant-style bureaucrats are more likely to “refrain from mediation and brokerage” and be, more likely, policy followers. (pp. 21-31)

In contrast, the following chapters approach the empirical data and associated analyses and interpretations concerning the making of climate policy in two Western European countries (Denmark and Germany) and in two Central Eastern European countries (Estonia and Poland). The researcher finds that Denmark is performing an important role in climate policy (“a small, green state”) due to a consensus-seeking policy style, a coordination apparatus among cabinet committees, and extensive specialization of the ministerial administration on climate policy. (p. 36)

These aspects, next to the policy ideals, objectives and instruments that are investigated, indicate a multitude of actors sustaining and opposing climate policy, but at the same time a resulting strong societal support for climate policy arising from this polyphonic conversation. However, Denmark is not and does not aim to be a “green Leviathan”, but a green democracy and market economy, with a policy orientation towards consensus, openness and inclusiveness. (p. 61)

The coordinative and consensus-seeking discourses are the most important in this respect. In the case of Germany, the size of the country induces different consequences to the similar reality of the multitude of actors involved in the climate policy “conversation”. Political acceptance might be the result of the “early participation of stakeholders in policy deliberation” in improving policy implementation. In this respect, even if lobbying may be seen as a risk factor, it could be also a democratic-openness enhancement factor. (p. 94) The main climate policy discourse in Germany has become that of increased “participation and transparency in policy deliberation processes”, calling more attention to institutional policy aiming at a more consensus-seeking attitude.

The “small state” discourse is central to Estonian identity, influencing both politics and policies. The EU was the agenda setter in Estonian climate policy and in Estonian energy efficiency policy. Fighting the communist heritage of authoritarian rule, a paradoxical weakness of the culture of coordination, the institutional fragmentation, the limited resources, the poor interministerial  consultations, the weak citizen participation and the low professionalization of the environmental NGOs, the situation was improved slightly by the planning for the European Structural Funds (2014-2020), by the design and continuation of the National Development Plan of the Energy Sector until 2030, and by the academic expertise, making the discourse of the technocrats and departmental politics officials prevalent, to the detriment of other actors. (pp. 120-123)

Central to Polish identity is the idea of catching up with Western development and requirements. On the one hand, the “relationships between state and society were fluid and fragmented” and, on the other, we have the communist heritage of authoritarian rule “undermining parliamentary independence” and weakening the institutionalized character of the “informal practices of interministerial and public consultations” (p. 151) Environmental NGOs are professionalized in Poland, but they remain marginalized. Their discourse attempted to sustain a core idea of ecological modernization, which has gained more adepts with the support of the Ministry of Economy, academic experts and environmental NGOs (keeping the white certificate system in the EEA).

The volume advances a very interesting methodology approaching the climate policies in the EU and it emphasizes an important and original evolving perspective in assessing climate policy. Both environment issues and political “landscapes” are changing, inducing more debate over competing ideas and ideals, values, facts and interests. As a consequence, discursiveness becomes more important in the lives of the institutions, states and societies. At the same time, interpretive analysis emphasizes potential improvement on scientific arguments and agendas as a result of the improvement of the deliberation processes on climate change.

Simon Marsden, Protecting the Third Pole: Transplanting international law (Cheltenham: Edward Elgar, 2019)

Book review (editorial review), ,

Protecting the Third Pole: Transplanting international law is Simon Marsden’s third and final book in an Edward Elgar series analysing the current and prospective regional and sub-regional legal framework and governance in Asia. Building on his two previous volumes, Transboundary Environmental Governance in Asia, co-authored with Elizabeth Brandon (2015), and Environmental Regimes in Asian Subregions (2017), Marsden offers a sharp and in-depth look at international environmental law and the law of international watercourses to protect the Himalayas.

While it might not be obvious at first why a review of Protecting the Third Pole might find its way into the present volume of Nordicum-Mediterraneum, Marsden’s comparison between the legal regimes in place in the first (the Arctic), the second (Antarctica) and the third pole (Himalaya-Hindu Kush mountain range and the Tibetan Plateau) seems to be a perfect match for this journal at a time where the academic focus on the polar regions is rapidly increasing. Whereas the three poles experience different ecological, social and legal realities, there are good management practices that could be learnt, and transplanting or adapting the legal framework of one pole to another can help developing better ecological governance in the region. The Third Pole, with its ice fields containing the largest reserve of fresh water outside the polar regions, is the source of ten major river systems that provide irrigation, power and drinking water for over 1.3 billion people in Asia.

Throughout his book, Marsden explores what legal frameworks can potentially guide the development of a comprehensive regime to protect the environment of the Third Pole. Following an introduction where the author sets his main methodological approach and discusses the environmental significance of the region, the second chapter gives a comparative law overview by focusing on legal transplants. The first part of this chapter centres around more theoretical questions linked to the overall feasibility of legal transplants and norms diffusion. The author lays down several approaches to international legal transplants while also stressing that contextual awareness is key from any transplant to be successful; in that this does not differ from the introduction of domestic law within the context of any other State.  Towards the end of the chapter Marsden analyses the potential to transplant the governance models of certain legal institutions (e.g. intergovernmental organisation) elsewhere. Marsden analyses the Arctic Council (AC) and the South Asian Association for Regional Cooperation (SAARC) and asks whether the institutional arrangements of the AC and its focus on collaborative knowledge exchange (e.g. the negotiations of the Agreement on Enhancing International Arctic Scientific Cooperation)  and environmental protection (e.g. EIA guidelines) could be transplanted to the Third Pole through SAARC. He concludes that the mix of hard and soft law arrangements negotiated under the auspices of the AC demonstrates that there is no best single to protect the Third Pole.

Having laid robust theoretical underpinnings, the book examines the development of global protected areas in international law under the Wetlands Convention, the World Heritage Convention and the European Landscape Convention in chapter 3. Marsden suggests the possibility of the European Landscape Convention to be transplanted to the Third Pole as it could both enhance cooperation and enable public participation, and it would strengthen the provisions of the World Heritage Convention regarding landscapes. Mindful as always in his analysis, Marsden is conscious that there might be a greater possibility in some Third Pole States where the political climate is more incline to changes. Chapter 4 on connecting area and species protection considers the European Nature Convention and the Antarctic Environmental Protocol as clear candidates for connection area and species protection via the Ecosystem Approach (EA) for the integrated management of land, water and living resources and promote conservation and sustainable use in an equitable way.

In chapter 5, Marsden studies the applicable customary international related to environmental impact assessment (EIA) in light of several decisions by the International Court of Justice. As most scholars working in this field, the author highlights that while the procedural requirements of EIA have become customary, the lack of substantive process obligations limits the effectiveness of EIA as a customary norm. He thus recommends looking at the Espoo Convention on Transboundary Environmental Impact Assessment and its subsequent Kiev Strategic Environmental Assessment Protocol as potential legal transplant for the Third Pole. Given the practicalities and global contextual application of the Espoo Convention and the Kiev Protocol, this proposal seems like the most feasible for now. In the rest of the chapter, Marsden uses polar EIA mechanisms such as the EIA guidelines developed by the Arctic Council (soft law) and the three-level detailed regulations for EIA in the Antarctic described  Annex I of the Environmental Protocol to the Antarctic Treaty (hard law) to advocate for the creation of contextualised Third Pole EIA Guidelines or for an EIA treaty. Chapter 6 and 7 respectively analyse the evolution of protection regimes for international rivers (i.e. the 1997 ICJ Gabcikovo-Nagymaros Dams case, the UN Watercourse Convention, the UNECE Water Convention and the Mekong Agreement) and transfrontier mountains through the Alpine and Carpathian mountain regimes. In concluding his chapters, Marsden emphasizes the importance of creating cross-border solutions to protect the environment and make a genuine contribution to sustainable development – especially when it comes to energy production.

In sum, Marsden offers three potential solutions to answer the question of what international legal frameworks can help guide the development of a comprehensive regime to protect the the Third Pole environment. His first suggestion is to transplant existing international law that originated in either a European or a polar context to Asia’s Third Pole. The second suggestion is the transplant of a framework treaty based on the Alpine or Carpathian regimes. The European focus of option one and two might hinder their viability, and he recommends further research to test them. For the third option, Marsden suggests developing a new treaty involving all relevant regional stakeholders and public participation. With Protecting the Third Pole, Simon Marsden once again manages to publish an excellent contribution to the fields of international environmental and polar legal studies. His detailed, rigorous and comparative examination of relevant customary international law and treaty obligations helps better understand the connections between all the different environmental regimes at play. Protecting the Third Pole not only manages to describe the current legal regimes in place at the poles, it also distils complex legal theory and approaches into understandable analyses and conclusions. Marsden’s book will certainly delight environmental lawyers and is a must-read for any legal or policy scholars working on environmental issues.

Ulrik Pram Gad and Jeppe Stransbjerg (eds.) The Politics of Sustainability: Reconfiguring identity, space and time (London: Routledge, 2019)

Book review (editorial review), , , ,

In The Politics of Sustainability, Ulrik Pram Gad and Jeppe Strandsberg brought together well-known Arctic social-scientists to rethink and establish new ways of understanding sustainability. In doing so, this edited volume provides a constructive alternative to the way the basic and evasive political understanding of sustainability is used to promote one narrative – what is important to sustain, when and where – over others. The idea of sustainability helps structure these narratives about future political decisions. As the editors rightly highlight, differences over what should be sustained remain key to the struggles over rights and resources in the Arctic.  These struggles vary depending on the context, yet patterns emerge as the Arctic becomes more integrated and institutionalized. The reconfiguration of sustainability through different lenses divides the book along three main lines (identity, space, and time). These three analytical frameworks are then neatly woven together to understand the complex and constant rearticulating of sustainability as a tool of governance.

The reconfiguration of identities is done through discerning the referent object of sustainability or, in other words, what deserves to be sustained. Individual or collective actors leverage political legitimacy and shape the discourse to sustain their own agenda. By analysing different sectors, such as fisheries in Greenland (Rikke Becker Jacobsen) and mining in Greenland and Nunavut (Marc Jacobsen), and the outside global vision of environmental sustainability in the Arctic petroleum development debate (Gerhardt at al.) highlight that the relationships sovereignty and power in affirming what needs to be sustained. Gerhardt et al. concludes that while Greenpeace has been able to bring the narrative of the pristine Arctic to the fore, their actions also triggered a backlash in targeted States where other types of sustainability (e.g. a fundamental commitment to securing the political sustainability of the nation state) are being prioritized. Another excellent example can be found in Ingrid Medby’s chapter where she provides a nuanced analysis of sustainability as a discursive legitimation of authority rather than a concrete praxis. In her study of Norway, Iceland and Canada, she demonstrates that a country’s ‘Arctic identity’ can be embedded within pre-existing national identity and imagined future narratives. In this way, speaking of Arctic sustainability is about sustaining a present object, or some its aspects (environment, cultures, economies), within a framed temporal dimension which in turn helps foster a broader national narrative.

The second dimension of this book is a reconceptualization of sustainability through space and the existence of a spatial dimension of the referent object in relation to a one specific environment. Sustainability is then articulated in terms of “scales”. In this spatial context, local and national geographical scales are being contrasted against the environmental scale of regional ecosystems and the global climate. As Gad and Stransbjerg argue in the conclusion, choosing one spatial scale often means prioritizing one dimension of sustainability over another. Temporality makes up the third dimension of this edited volume. The idea here is more to outline different ways of claiming responsibility and authority in the Arctic in relation to the sustainability of communities and ecologies. Sustainability narratives are again viewed as discursive tools to empower certain types of actors to act towards a sustainable future. As pointed out in the book, “sustainability narratives need to organize time to be able to credibility claim the environments which makes their preferred referent object sustainable.”

The Politics of Sustainability is dense and does not shy away from high-level theoretical discussions. It is a true tour de force that dissects every aspect of sustainability from a multiple of different angles. Written by well-established scholars atop of their fields in the broad world of polar research, this multidisciplinary edited collection not only achieves what its title suggests (i.e. a conceptual rethinking of sustainability a political concept) but, also provides one of the most complete academic analysis of Arctic governance under the umbrella of sustainability and sustainable development. As several researchers point out in their chapter (Keil; Wilson Rowe; Dodds and Nuttall), in mainstream political discourses sustainability is often conceived as a balancing act between social and economic development and environmental protection. However, there is a postcolonial critique of sustainability as a balancing act that needs to be added within this multi-layered framing to escape colonial ideas of indigeneity. Arctic sustainability is much more intricate than merely achieving balance between “ways of life” of Indigenous communities and what States want to do in the region.  Along these lines, the book manages to distil and explain challenging and complex critical Arctic geopolitical researches in a way that is both understandable and highly impressive. Each chapter are kept short, but they all surely deserve a stand-alone glowing review. In spite of a hefty price tag, The Politics of Sustainability will without doubt be of use to social scientists and researchers involved in Arctic research as well as advanced graduate students.

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

Book review

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)

Book review (editorial review), , , , , , , ,

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)

Book review (editorial review)

 

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.