Abstract
Reviewed by: David Campbell, Lancaster University Law School, UK
These three books demonstrate just how wide-ranging are the issues now raised by international environmental, especially by international climate change law, and what an opportunity this law presents for an enterprising publisher like Elgar to itself rise to the challenge of publishing a range of books sufficiently wide to cover the enormous ground. Though Elgar, which has a particular strength in environmental issues, has published a considerable number of monographs on those issues, none of the books under review are monographs but have three different formats each intended to cater to a different need.
Farber and Peeters is a collection of 56 specially commissioned essays on climate change law, both at national and international levels, covering almost all aspects of that law, from the most general theory – e.g. ch I.8 on employing social scientific analysis of individual behaviour in designing climate change mitigation mechanisms or ch I.11 on the incentive problems which arise from treating the global climate as a common – to detailed issues of implementation – e.g. ch I.29 on the use of environmental impact assessments and ch I.54 on the use of private insurance in scrutinising investments with climate change implications. The chapters are all of dozen pages or so and focus on describing the theoretical or doctrinal issues or the empirical situations which fall within their compass. The chapters are normally not very theoretically penetrative – that chapter I.34 gives one pause for thought about the value of the ‘traditional’ approaches to regulation on which climate change law is supposed to be a marked improvement is a striking exception – but this is not their intention and does not affect their value. The authors come from, well, everywhere in the world, and Farber and Peeters are to be thanked for taking what I am sure were tremendous pains to assemble these authors.
My goodness, I wish this book had been published some time ago. A good part of the time I have spent over the last decade working on climate change policy has been taken up by ferreting out information which has to be assembled from primary sources to which there have been few, if any, reliable guides. The truly deplorable biases of what should be authoritative statements by national and international authorities have made basic research very difficult. This very comprehensive book at least gives one a starting point for research into almost any topic of relevance to climate change law. Imagine the effort needed to get to basic grips with the problems of climate change policy towards bodies of water and then turn to chapters I.43, I.44, I.46 and I.47 to see just how much this book would help. There is, it goes without saying, a range of quality of the discussions in the chapters themselves, but I have not found an outright dud. All the chapters have useful bibliographies and there is, and Elgar deserves credit for this, an index to this large book that is, by modern standards, very good.
This book is the first volume in a projected Elgar Encyclopaedia of Environmental Law, the General Editor of which is Professor Michael Faure, whose long list of current affiliations surely is testimony to his energy. This book is a welcome result of such energy, and the projected Encyclopaedia will be entirely worthwhile if it sustains the standard the first volume has set.
The Harris is a volume in the Elgar Research Collection, the collections of reprints of important articles in a discipline put out by Elgar and other publishers which admittedly are intended for libraries which cannot give adequate access to the journals where the articles appeared. Forty-one articles are reproduced in this book, all in their original format which, of course, makes reference easier, as Elgar claims. Everything, of course, depends on the selection, and, whilst one could always quibble, Professor Harris of the Hong Kong Institute of Education has done a sound enough job, though two criticisms might be made. First, though there are articles from law journals, this is a book of moral and political philosophy articles, and so there is no positive consideration of the economic perspective; indeed the tone of the collection is set the first article’s hortative discussion of Leopold’s land ethic, which is a particularly engaging rejection of that perspective. But, within this disciplinary restriction, the range of issues taken up is again the most striking feature of this book. Secondly, one is driven to reflect on the late James Buchanan agreeing to edit a book of this nature on law and economics only on the condition he was not obliged to put any of his own work in it when one sees that Professor Harris has seen fit to include five (i.e. 12% of the content of the book) articles of his own.
It has long seemed to me that Elgar and other publishers which publish books like this do a valuable service to those libraries which need such books, but that they do not do much to earn their corn. They must, of course, obtain permissions, but the editorial work is done by the likes of Professor Harris, and Elgar does not even provide a consolidated bibliography or an index. I know nothing about the economics of these books, but this does seem to me to be something publishers like Elgar might consider.
The Percival et al. is a much shorter collection of 17 chapters which are intended to broach theoretical and doctrinal issues in a more sustained way than the chapters of the Farber and Peeters. Climate change policy features throughout the book and four chapters are directly on it, but this is a book that looks at environmental governance generally as it is being established in a number of, predominantly developing, countries and internationally. It represents the publication of some of the papers delivered at the Tenth Annual Conference of the International Union for Conservation of Nature and is a volume in the IUCN Academy of Environmental Law Series of similar collections which Elgar has been publishing for some years. And again, one learns a lot about a great range of environmental issues now being internationally addressed. The last chapter of this book directly examines the legal challenges to the creation of a world environment organisation and the aspiration to create such an organisation captures the drift of the book. It is again the range of issues taken up in this book that strikes the reader. As Professor Edith Weiss Brown of Georgetown Law School, a keynote speaker at the IUCN conference, noted, global environmental law is now ‘kaleidoscopic’.
I think two reservations should be entered about all these books, though, to be truthful, I am unsure about the significance of the first. Whilst, as I hope I have been sufficiently clear in saying, Elgar should be patted on the back for its enterprise in creating a publishing opportunity for these books and for international environmental law generally, there are now a lot of these books. Elgar’s own catalogue has a great number of titles that seem rather similar, and, of course, other publishers are at work in the area. Just to pick one example, Oxford University Press are bringing out a book very like the Farber and Peeters just at the same time as the Farber and Peeters has appeared. One’s attitude to this will, I suppose, turn on whether one celebrates the existence of such a vigorous effective demand for these books or rather wishes there was some stronger filter at work. I myself strongly incline to the former position. I, however, work in a University with a, touch wood, good library budget and a very sympathetic librarian.
I feel much more concern about what I think is a paradox demonstrated by all of these books. I have tried to emphasise their range of concern. But in one very important sense these books are all limited. These books are perfectly right not to directly address the ‘physical science basis’ of climate change policy. But even if one accepts that global warming is a problem calling for intervention, this should not commit one to believing that intervention will necessarily improve welfare, for, of course, intervention might not work. The enormous perceived size of the problem which gives rise to the range of discussion encompassed in these books surely should lead to some caution about whether we can successfully intervene at this global scale and scope. International climate change policy and international environmental law generally are based on thinking we can. But there is little fundamental argument for this in these books, which register difficulties but always take an optimistic view.
This means that some important issues are not discussed. In my opinion, UN climate change negotiations now resting on the Paris Agreement have inevitably and wholly predictably yielded nothing save a permission to developing countries, including the major newly industrialising countries, to emit as much as they wish. The issues are not engaged with at this level in the Marjan and Peeters. In my opinion, climate justice is irreconcilable with emissions reduction because placing the burden on the developed countries is pointless given the emissions of the newly industrialising countries. The issues are not engaged with at this level in the Harris. Evidently, there are limits to the discussion which takes place amongst those committed to international environmental law. There should not be. Within these limits, the Marjan and Peeters and the Harris serve useful functions. But one can say this only to a lesser extent about the Percival et al., which is meant to be a book of more profound theoretical engagement.