Jan 11 2017

Consensus and Global Environmental Governance: Deliberative Democracy in Nature’s Regime

Reviewed by Yasmin Zaerpoor, Massachusetts Institute of Technology

 An engaging argument for pursuing ecologically sustainable and democratically legitimate earth systems governance through democratic deliberation.

 Consensus and Global Environmental Governance

 

by Walter F. Baber and Robert V. Bartlett Consensus and Global Environmental Governance: Deliberative Democracy in Nature’s Regime, MIT Press, 2015, 272 pp

Consensus and Global Environmental Governance: Deliberative Democracy in Nature’s Regime is part of the MIT Press Earth System Governance book series. The series identifies normative discourses about global environmental governance. Following Deliberative Environmental Politics (2005) and Global Democracy and Sustainable Jurisprudence (2009), Baber and Bartlett’s third book examines the application of deliberative democratic theory to the practice of environmental politics. In Global Democracy and Sustainable Jurisprudence the authors argued that the democratic deficit and inefficacy of international environmental law can be addressed through a system of juristic democracy. In this system, environmental law backed by nation-states would be replaced by global common law derived from the rulings of numerous global citizen juries on hypothetical legal cases. Consensus and Global Environmental Governance highlights the practical difficulties and implications of using a deliberative approach to consensus-building.

Baber and Bartlett present convincing arguments regarding the merits of a more democratic process of global environmental policymaking in the first half of the book (Ch. 1–5). Chief among these are that a more democratic process would (i) ensure public support and stronger political will (something that has been missing from past negotiated climate agreements), (ii) lead to a much-needed shift in values and (iii) ensure more environmentally just outcomes. They point to several conditions that must be met for rules to be effective (Ch. 1) and advocate for deliberative techniques (such as juristic deliberation) to ensure “ecologically sustainable and democratically legitimate environmental governance” (Ch. 2). International law and negotiations, they argue, have been ineffective due to poor implementation and regulation marked by a democratic deficit (Ch. 3).

Baber and Bartlett anchor themselves squarely on the side of deliberative democracy in the broader academic debate. They address common criticisms: deliberation may (i) push conflict aside rather than resolve it; (ii) exacerbate existing inequalities and lead to unfair outcomes; (iii) discriminate against political perspectives held by minorities; (iv) be overly technical in nature, thereby inadvertently excluding historically disadvantaged groups; and (v) fail to affect policymaking, thereby further disenfranchising politically marginalized groups (Ch. 4). Like other deliberative democracy advocates, they respond to these complaints by emphasizing the importance of the design and implementation of the process of deliberation and by countering with a critique of the alternative (i.e., aggregative democracy).

The obvious challenge of a deliberative approach to international policymaking is that it becomes unwieldy. Baber and Bartlett propose a system of juristic deliberation in which citizen juries from around the world would be convened to adjudicate hypothetical environmental disputes. When transnational consensus is reached on a specific issue, the results of the deliberation would then be made available to “international tribunals for citation as a general principle of law in support of their resolution of specific environmental disputes” (p. 168). In this way, they argue, we would gain more insight into shared global values and identify similar approaches to disputes across cultures. In theory, this should enable policymakers to develop a new system of environmental policies built on normative consensus.

The authors use research on trial juries to support their call for citizen juries (Ch. 6), continue to develop their vision of juristic democracy in the second half of the book (Ch. 7–9) and conclude with a defense against charges that consensus may not be possible or desirable (Ch. 10). The book includes an example case (Appendix B) of a hypothetical water-warming dispute between three countries (Arroya, Panterra and Meerland). Baber and Bartlett describe the results of testing this case with twelve citizen panels from the United States, Germany, Russia, Sweden and the United Kingdom (Appendix A).

Their overarching argument is that democratic deliberation can be used at every step of global environmental governance and policymaking to build and identify normative, political and social consensus. Juristic deliberation can be used to spot “widely supported normative principles and general propositions of law” (i.e., normative consensus), whereas classic deliberative techniques (e.g., deliberative polling, consensus conferences, planning cells, etc.) can only be used to engage the public in choosing among alternative policy paradigms (i.e., identify political consensus). In the final step, policies are implemented through stakeholder partnerships to help ensure social consensus.

Although Baber and Bartlett argue persuasively that deliberative democracy has the potential to increase the political legitimacy of environmental governance and lead to more ecologically sustainable policies, the real challenge lies in convincing nation-states that the costs (including the political costs) associated with such deep engagement with the public will be offset in the long run.


Jan 11 2017

Environmental Litigation in China: A Study in Political Ambivalence

Reviewed by Jessica Gordon, Massachusetts Institute of Technology

The emergence of and reactions to environmental litigation in China.

Environmental Litigation in China

 

by Rachel Stern Environmental Litigation in China: A Study in Political Ambivalence, Cambridge University Press, 2013, 314 pp.

What happens when tons of industrial waste are dumped in a Chinese river? Rachel Stern’s insightful book Environmental Litigation in China: A Study in Political Ambivalence explores the shifting conditions under which the Chinese legal system is being used to address pollution issues. While the book is written in clear and accessible prose, it complicates common narratives around the Chinese legal system and exposes its many contradictions. The first half of the book provides a nuanced picture of environmental litigation including exploring specific pollution cases with different approaches and outcomes and is fascinating as it reveals the strengths, limitations and creativity within environmental litigation. The second half of the book analyzes the issue from the perspectives of judges, lawyers and NGOs. While the voices of state actors are notably absent, given the limitations of research in China this is understandable. Stern rallies a range of evidence to support her argument.

She demonstrates how actors are reacting to a state that sees the advantages of using the law to control pollution, but also recognizes how the law could undermine the state itself. Stern terms these conflicting state signals political ambivalence and analyzes how they provide space for bottom-up experimentation and incremental change. It is, however, also clear that the legal system alone will not be enough to address the variety of forces that allow pollution to continue.

The book focuses on the Hu period and should be taken as a slice in time. The legal landscape is changing as the new environmental law makes it easier for some groups to sue polluting industries. The first public interest case under the new law in 2016 was successful. Most cases, though, are still not making it to the court. The book would be a great choice for an undergraduate or graduate course on environmental politics. It is also likely to engage anyone interested in the intersection of law and the environment.


Oct 8 2016

Water and the Law: Towards Sustainability. The IUCN Academy of Environmental Law Series

Reviewed by Andrea Beck, Massachusetts Institute of Technology

 An edited collection examining the interlinkages between law and sustainable water management

Water and the law

 

Edited by Michael Kidd, Loretta Feris, Tumai Murombo and Alejandro Iza Water and the Law: Towards Sustainability. The IUCN Academy of Environmental Law Series, Edward Elgar, 2014, 416 pp.

Water resources are increasingly threatened in many parts of the world due to mismanagement, overuse and climate change. To help address the global water crisis, Water and the Law explores the multifaceted connections between legal instruments and sustainable water management. The fifteen chapters of this edited volume are partly the result of a colloquium held in South Africa in 2011 by the IUCN Academy of Environmental Law. They are framed around two central questions: How can law contribute to the sustainability of water itself? And how can legal regulation of water contribute to the sustainability of human life and biodiversity?

To analyze these questions, the book proceeds in three parts. The first focuses on international and transboundary water law. It discusses the evolution of transboundary water cooperation within the international system of state sovereignty, and reviews a number of global and regional instruments for the governance of surface water and groundwater, such as the UN Watercourses Convention, the UNECE Water Convention, the SADC Revised Protocol on Shared Watercourses, and the International Law Commission’s draft articles on the Law of Transboundary Aquifers. The book’s emphasis lies in the second part, which focuses on domestic water governance and integrated water resources management in various national jurisdictions, including Australia, Brazil, Finland, the Netherlands, New Zealand and South Africa. Two final chapters in the third part examine the right of access to water, highlighting issues such as the heterogeneity of the right in developed versus developing countries, water pricing and social justice, and indigenous struggles for water rights.

As stated in the book’s introduction, some of the chapters are reprints of previously published material. Lengthy reiterations of legal documents in several chapters could also be shortened for the benefit of originality and analytical focus. Furthermore, the book’s overall purpose could be even more ambitious, going beyond raising “most of the important questions” and providing “food for thought and further investigation” (p. 9). Nevertheless, the book displays much strength, including the attention devoted to climate change, and the illustration of complex concepts and regimes by means of case studies (for example, from the Nile and the Murray-Darling basins). Taken together, this edited collection thus provides an important resource for better understanding and harnessing the potential of law in achieving sustainable water resources management.


Oct 12 2015

WATER AND POST-CONFLICT PEACEBUILDING

Reviewed by Yasmin Zaerpoor

Nineteen case studies providing insights into the inherent complexity of water management

peace building

Water and Post-Conflict Peacebuilding, edited by Erika Weinthal, Jessica Troell, and Mikiyasu Nakayama, Earthscan, 2013

Editors Erika Weinthal, Jessica Troell and Mikiyasu Nakayama present 19 case studies from 28 conflict-affected countries highlighting the importance of water in post-conflict peacebuilding. The book is one in a collection of seven that examines the relationship between natural resources and different aspects of peacebuilding. This behemoth of a project seeks to address a perceived gap in the literature, asking ‘How can natural resources support post-conflict peacebuilding?’ and ‘What are the potential risks to long-term peace in the absence of effectively addressing natural resources?

The book is divided into five parts: (i) Basic services and human security; (ii) Livelihoods; (iii) Peace processes, cooperation, and confidence building; (iv) Legal frameworks; and (v) Lessons learned. Each section begins with a concise introduction summarizing the dominant message and themes in the case studies that follow. The case studies can be taken as stand-alone pieces, read in relation to one of the broad themes, or combined with other case studies of the same country. A focus on Afghanistan, for example, might lead one to read about restoring water services in Kabul (Piner and Reed), community water management (Burt and Keiru), water resource management (McCarthy and Mustafa), or water scarcity and security (Dehgan, Palmer-Moloney and Mirzaee) in the Afghan context. The case studies vary in length and detail, but all relate to water as either a potential source of conflict or cooperation. Each case study includes a fairly extensive list of references, making it a helpful starting point for additional reading and research.

The final section of the book is a well-written synthesis of the lessons related to water management in post-conflict settings and is organized along a ‘timeline of peacemaking’ – starting from post-conflict humanitarian interventions in water and sanitation to longer term peacemaking through regional efforts to cooperatively manage water resources. This book will be useful for practitioners, academics and policymakers in international relations, natural resource management, security, and peacebuilding. It also provides very helpful and generalizable insights into the inherent complexity of water management.

 


May 8 2015

GOVERNING THE NILE RIVER BASIN: THE SEARCH FOR A NEW LEGAL REGIME

Reviewed by Yasmin Zaerpoor, Massachusetts Institute of Technology

Providing a helpful review of the Nile Basin in relation to the political economy of transboundary water resource management

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Governing the Nile River Basin: The Search for a New Legal Regime, by Mwangi Kimenyi and John Mukin Mbaku, Brookings Institution, 2015

Governing the Nile River Basin: The Search for a New Legal Regime is a clear and timely primer for anyone interested in hydropolitics in the Nile Basin and, more specifically, in understanding the significance of the recently signed Declaration of Principles on the Grand Ethiopian Renaissance Dam or Tanzania’s recent ratification of the Cooperative Framework Agreement (CFA). The book’s eleven chapters provide a helpful desk review of the Nile Basin in relation to the political economy of transboundary water resource management including chapters on hydrology (Ch. 2), 1929 and 1959 Nile Agreements (Ch. 4), and recommendations for a future legal framework (Ch. 11).

Although the book clearly introduces the obstacles to cooperation in transboundary water management in the Nile Basin; at times, it adopts a less than objective tone when describing Egypt’s role in the Basin. While Egypt’s power in the Basin is indisputable, and most of the book’s more critical references to Egypt’s control in the Basin are references to other authors’ works, the ‘Egyptian perspective’ is not as well developed as the upstream perspective. That said, the authors do recognize Egypt’s near-complete dependence on the Nile and emphasize that any future basin-wide legal framework must recognize this as well.

The authors aptly point out that the ‘question in the Nile River basin today is not whether to change the status quo but how to do so.’ In the final chapter, they highlight several components of a process they believe will lead to the development of an effective basin-wide legal instrument. These include (i) recognition of Egypt’s dependence on the Nile; (ii) an inclusive and participatory process; (iii) ownership of the process by the Nile Basin states; (iv) basin-wide consultation to ensure the buy-in of all stakeholders (not just government representatives and technocrats); (v) adequate support (e.g. lodging, translators, etc.) for participants engaged in the process; and (vi) flexibility in the design of the legal instrument to account for uncertainty related to climate change.

It is not entirely clear, however, how their recommendations are different from the CFA drafting and negotiation process. In other words, by the end of the book, although the authors clearly illustrate the limited efficacy of the CFA as a basin-wide legal framework in the absence of Egypt and Sudan’s support, they do not present a very clear or strong case for why their recommendations would lead to a different outcome. Given the very recent developments in the Nile Basin (which occurred after the book was published), it would be interesting to hear the authors’ perspectives on how, if at all, the momentum for cooperation catalyzed by recent events could be used to renew the Basin states’ commitment to the CFA process. After ten years of negotiation, it would be a shame to abandon the CFA altogether.

 


Mar 27 2015

DISASTER, CONFLICT AND SOCIETY IN CRISES: EVERYDAY POLITICS OF CRISIS RESPONSE

Reviewed by Tarique Niazi, University of Wisconsin-Eau Claire

All disasters and the responses to them are socially constructed.

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Disaster, Conflict and Society in Crises: Everyday Politics of Crisis Response, edited by Dorothea Hilhorst, Routledge, 2013

Disasters have long been assumed to be “natural,” and as such, “inevitable.” The founding fathers of Disaster Studies, many of whom were engineers, focused on designing responsive strategies to mitigate the after-effects of disasters. Disaster Studies has since come a long way to recognize the “social construction” of disasters. Environmental sociologists such as Dr. William R. Freudenburg and his colleagues have made major contributions to this way of thinking, arguing for and illustrating how disasters are socially-constituted. From a sociological perspective, “all disasters are man-made,” and hence avoidable.

In this context, not only have Dorothea Hilhorst and her fellow contributors in their edited volume on Disaster, Conflict and Society in Crises furthered this way of thinking, but they have also mapped the ways in which disasters are socially constructed. In particular, they have concentrated on the way that “responses” to disasters or crises are conceived. They deploy discourse analysis to help the reader understand the process of social construction of disaster events and thus uncover the battles that often go on among vested interests. They apply discursive analyses to such disparate events as “terrorist violence” in Sri Lanka and the impact of climate change on Mozambique.

Discursive strategies, they argue, help government and non-government actors construct “disasters” and “response to disasters” in a way that tangibly shapes state aid policies, aid governance, and aid politics. In discursive battles, words grow into fighting deeds that shape the outcomes of responsive strategies. Also, the authors argue that conflicts and disasters are emblematic of a breakdown of social order (i.e., chaos and disruption). They also contend that disruption and chaos create opportunities to reorder and reconstitute the institutions that deal with disaster events (referred to as continuity and discontinuity).

Hilhorst, the volume’s editor, employs the idiom of “everyday politics” as a frame to uncover the political and social dynamics of aid politics. The first part of the book focuses on the social construction of disasters, responses, and the manner in which local government and non-governmental actors securitize (or depoliticize) their strategies. In the second part, local institutions transform a crisis and become transformed by it, while the third speaks to a variety of interventions that are possible in crisis events. The book offers a wealth of theoretical and empirical ideas in accessible language, providing an invaluable contribution to the discipline of Disaster Studies.


Nov 5 2013

COOPERATION IN THE LAW OF TRANSBOUNDARY WATER RESOURCES, by Christina Leb

Reviewed by Sharmila L. Murthy, Suffolk University Law School

Christina Leb stresses the need for international cooperation when it comes to transboundary water systems, particularly in respect to international water law and resource management.

Cooperation in the Law of Transboundary Water Resources, by Christina Leb, Cambridge University Press, 2012, 363 pp.

In her book on the Cooperation in the Law of Transboundary Water Resources, Christina Leb makes a strong case for the heightened importance of the duty to cooperate within international water law.  She methodically and carefully illustrates how the duties and obligations associated with cooperation on transboundary water resources have become more robust over time, which reflects broader trends within the fields of public international law and international relations.  The duty to cooperate was not explicitly recognized by early texts that sought to codify international water law, but, for example, by the time the UN Watercourses Convention was drafted, it was described as a “general principle.”  Leb further builds her case by explaining how it is misleading to conceive of the general duty to cooperate as merely a “procedural” obligation, rather than also considering the interrelated “substantive” aspects. (p.114)  Drawing on real-world examples, she links the substantive and procedural content together to consider specific cooperation obligations, such as the regular exchange of data and information.

In an understated way characteristic of her style, Leb argues that the duty of cooperation is now on par with the two seminal principles of international water law, namely “equitable utilization” and “the obligation not to cause significant harm,” which Leb describes as “the principle of good neighborliness.”  She illustrates how these principles, along with the duty to cooperate, “interact, overlap and mutually support on another as general principles of international water law” and thus, should be understood as a “triangle of cornerstone principles.” (p.105)  Drawing on a textual analysis of over 200 bilateral and multi-lateral treaties concerning transboundary water resources as well as key judicial decisions, she supports this argument through examples of state cooperation, such as via negotiations, consultations, planning and joint management (see Chapters 4 and 5).

The book also delves into another fascinating area of the law, namely the intersection of transboundary water law and human rights law.  In Chapter 6, Leb considers the relationship between the obligation of “vital human needs” as set forth in the UN Watercourses Convention with recent recognition of a human right to water by the United Nations, which derives from existing treaty obligations under the International Covenant on Economic, Social and Cultural Rights.  Leb tackles one of the more controversial aspects of this newly recognized human right by considering the degree to which there are associated extraterritorial obligations.  Under the existing human rights framework, states have obligations to individuals within their boundaries, but not to individuals living in other states.  Leb suggests that a provision in the UN Watercourses Convention relating to non-discrimination with regard to access to justice could be complementary to human rights law and provide a way of expanding transboundary water obligations with respect to vital human needs.

Leb’s book offers a thorough analysis of the increasingly important role the duty to cooperate plays in international water law.  While the topics she addresses will be relevant to anyone interested in questions of transboundary water governance, the style of writing and approach will make it most interesting and accessible to legal scholars.


Jul 30 2013

GREEN GOVERNANCE: ECOLOGICAL SURVIVAL, HUMAN RIGHTS, AND THE LAW OF THE COMMONS by Burns H. Weston & David Bollier

Reviewed by David Wirth, Boston College

Weston and Bollier propose a new structure for environmental policy and law based on a broader interpretation of green governance as it relates to human rights, economics and international relations.

Green Governance: Ecological Survival, Human Rights, and the Law of the Commons by Burns H. Weston and David Bollier, Cambridge University Press, 2013, 384 pp.

An individual human right to environment has been problematic, in part because the content of that right would be very difficult to define and its application to particular cases would be a formidable task. The authors, recognizing both the utility of the concept and the challenges it presents, recast the question in structural, decentralized, collective terms rather than in an individual, hierarchical, and legal framework.

Finding a useful analogy in the Internet, the authors advocate confidence in self-organized governance and collaboration in complex adaptive systems. Certainly such developments as private certification schemes developed by NGOs to identify sustainably harvested timber tend to suggest optimism about such a model. Whether such an approach will be sufficient to provide a path to address a problem of the staggering proportions of climate heating is another question altogether.

The authors, recognizing this challenge, then take on the question of global governance. The existing multilateral system is an ineffective patchwork of institutions, organizations, and practices, which generally boil down to a least-common-denominator compromise to which most states can acquiesce.

Instead, the authors of this work propose an approach based on commons management. Arguing for an orientation that is “more practical and improvisational than theoretical and directive” (180), the authors then set out ten catalytic strategies for achieving green governance. These include expanding and strengthening the public trust doctrine and an eclectic analysis that touches on Locke, Social Darwinism, the Magna Carta, and ancient Rome, to name a few.

It is beyond dispute that the world lacks anything approaching a coherent, effective approach to managing the stratospheric ozone layer and the global climate, whose existence as common-pool resources (the authors’ preferred term) has become apparent only in recent decades. As with the debate over the right to environment, this volume offers a variety of much-needed provocative alternative approaches to global commons management.


Jul 30 2013

THE WTO AND THE ENVIRONMENT: DEVELOPMENT OF COMPETENCE BEYOND TRADE by James K. R. Watson

Review by Janet Martinez, Stanford University

This book reviews the development and influence of the WTO dispute resolution system (DSU), while also assessing the WTO’s environmental competency and the judicial issues that impede progress

The WTO and the Environment: Development of Competence Beyond Trade by James K. R. Watson, Routledge, 2013, 236 pp.

Since it was created in 1995 to manage international trade, the World Trade Organization (WTO) has wrestled with issues of environmental protection. Watson’s volume provides a thoughtful overview of the WTO’s legal and administrative efforts to deal with trade disputes in general, and trade-and-environmental matters in particular. The author finds a growing competence within the WTO, but still procedural and substantive barriers impede progress. The reforms he proposes address both concerns.

The WTO’s Dispute Settlement Understanding (DSU) spells out a way of handling disputes through a process that has become increasingly judicial, but is widely viewed as strong, reliable, and effective.  Its trade-expert panelists, along with an Appellate Body review, render decisions that function as “informal precedents.” Watson calls on the WTO to supplement its panelists with lawyer and scientific experts skilled in environmental matters; empower its Committee on Trade and Environment (CTE) to participate in DSU cases in an advisory role; and offer access to “third parties” (i.e., other interested stakeholders) in environmental cases, in the same way that the NAFTA Commission on Environmental Cooperation does.

Watson traces the ways in which environmental concerns have been incorporated into WTO agreements, and sees momentum in favor of making explicit what has been implicit regarding the relationship between the WTO and multilateral environmental agreements, like the Basel Convention on Transboundary Waste, CITES, and the Montréal Protocol. That is, trade agreements affect environmental quality and environmental treaties can have an impact on international trade.

Given his focus on dispute system design, Watson points out the need to intervene in the WTO’s policy making efforts—writing the rule book at the Doha negotiations—as well as in the way DSU’s legal enforcement is handled. I doubt that WTO members will be willing to address environmental concerns apart from parallel demands to accommodate labor and human rights concerns as well. Nevertheless, Watson notes that if the WTO were to enact some kind of trade and environment ground rules, the CTE could transition from a political body to a much stronger implementing committee.


May 23 2013

TECHNOLOGY, GLOBALIZATION AND SUSTAINABLE DEVELOPMENT: TRANSFORMING THE INDUSTRIAL STATE by Nicholas A. Ashford and Ralph P. Hall

Reviewed by Lawrence Susskind, Massachusetts Institute of Technology

technology globalization and

Technology, Globalization And Sustainable Development: Transforming the Industrial State by Nicholas A. Ashford and Ralph P. Hall, Yale University Press, 752pp

Ashford and Hall have produced a mammoth volume explaining why technology change and globalization are the keys to addressing the three most important dimensions of sustainability – the economy, work, and the environment. At the heart of their analysis is a belief that national and international governments can produce industrial policies that will “encourage or require environmentally sustainable production, products and energy-related activities through the tools of environmental policy and regulation.” They describe ways that the industrial state might be transformed, covering everything from advancing worker health and safety to techniques for restructuring international trade and finance. In the final analysis, though, their prescriptions only make sense if they are right about co-optimization, that is, the notion that economic development, environmental protection, and more worker-oriented employment can be achieved simultaneously, and need not be traded off or balanced against each other.

More than others writing about sustainable development, Ashford and Hall focus on industrial and trade policies that can stimulate “revolutionary technology innovation.” Their list of ways of overcoming the obstacles to sustainability run the gamut from education and human resource development to more extensive stakeholder involvement, to new approaches to underwriting the costs of sustainable development. In the end, though, everything comes back to government’s willingness to intervene. They analyze the “opportunity and capacity” of the government to act, making a case that crises create opportunities and social innovation can enhance capacity. What they are less clear about, though, is why there might be a sudden willingness on the part of national governments, locked in as they are to laissez faire strategies, to move in the activist and social welfare-oriented direction needed to achieve sustainable development.



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