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New Zealand Journal of Environmental Law |
Last Updated: 12 February 2023
319
BOOK REVIEW
CAPACITY BUILDING FOR ENVIRONMENTAL LAW IN THE ASIAN AND PACIFIC REGION — APPROACHES AND RESOURCES
edited by Donna G. Craig, Nicholas A. Robinson and Koh Kheng-Lian (Asian Development Bank, Manila, 2002), ISBN 971-561-395-0, volume 1, xxxi + 820 pp.; ISBN 971-561-423-X, volume 2, xxxi + 994 pp.
This book is quite simply one the most useful environmental law texts ever produced. It offers a comprehensive introduction for everyone new to the field of environmental law and a wealth of information even for the most experienced environmental lawyer. Although primarily written for course instructors, equally students, legal practitioners and scholars will benefit enormously from working with it. They should, at least, have frequent access to it. It is good to know that the complexities of an entire legal field can sometimes be captured in a single text.
The title of this two-volume work appears rather modest and technical given its scope. And yet, the concern for capacity building is an important one. It is the probably the key to any prospect for sustainable development.
Capacity building for sustainable development has been a concern since 1992. Agenda 21 devoted several chapters to identifying the approaches and institutions of capacity building. Paragraph 8.2. called specifically for the provision of better facilities in educational institutions for postgraduate and in-service training in environmental and development law.
The 2002 Johannesburg Plan of Implementation reaffirmed the responsibility of governments for capacity building and asked the United Nations to adopt a Decade of Education for Sustainable Development, starting in 2005.
That the two world summits on sustainable development put so much emphasis on capacity building and education for sustainable development indicates their crucial importance, but also the fact that too little has been done for too long. Tertiary institutions around the world have yet to incorporate sustainability education in their curricula.1
It would be misleading, however, to expect governments taking the lead in sustainability education. They can only be supportive of what primarily is a task for educators themselves. This impressive work gives an excellent example of a
successful collaborative initiative. The two volumes document how environmental legal education can be used for sustainability education in an entire region. As one of the editors points out: “Environmental law is rapidly becoming a foundation for sustainability, both of the economy and the society of nations worldwide”.2
Each of the work’s three editors has a credible history of capacity building. Associate Professor Donna Craig is director of the Centre for Environmental Law at Macquarie University, long-term advocate of environmental legal education and chiefly responsible for preparing this book. Professor Nicholas Robinson is co-director of the Center for Environmental Legal Studies at Pace University, New York, and Chair of the IUCN Commission on Environmental Law (CEL). Professor Koh Kheng-Lian is director of the Asia-Pacific Centre for Environmental Law (APCEL) at the National University of Singapore hosting various “training the trainers” courses for environmental legal education in Asia.
Together with further leading environmental lawyers participating in the project, the editors represent the CEL’s outstanding role for capacity building. No other professional body has done more for environmental legal education. Its partnership with the Asian Development Bank (ADB) has been particularly successful. Thanks to the initiative of the former Chair of the CEL, Dr Parvez Hassan (Pakistan), the ADP helped funding the “Training the Trainers” programme for the Asian-Pacific region and the production of this publication.
Essentially, the two volumes contain materials used in the IUCN/UNEP “Training the Trainers” programme. As such it is a most comprehensive source book of environmental law and an excellent teaching tool for academics in the region and other parts of the world. What’s more, working with this book saves a lot of time as it brings together articles, book extracts, unpublished papers, topic- oriented references and documents that are not readily available otherwise.
Readers can approach this work in two ways: one is to simply use it for preparation of environmental law courses, the other is to gauge how environmental law may (or may not) contribute to sustainable development. Each way has its own merits. Teaching the law needs no further justification, but evaluating it may be the real challenge. Does this compilation of texts and materials present environmental law as a tool for achieving sustainable development?
My answer is an unreserved yes, but probably not for the same reasons the editors had in mind in designing the book.
To be sure, the intended purpose is a useable book for courses on environmental law, not an introduction to sustainability law. As a teaching tool with a certain geographical focus, the book aims for practicality. In many ways the needs of environmental law teachers of the Asia-Pacific region are different from general academic interests. Volume 1 contains several chapters to specifically meet these needs like, for example, “Environmental Law Capacity Building” (ch.3),
2 Vol.1, p. 147.
“Comparative Overviews of Asian and Pacific Environmental Law” (ch.5), and volume 2 has its focus on procedures (ch.s 14, 16, 23) and selected topics of environmental law (ch.s 12, 13, 14, 15) with a considerable component of region- specific discussions. There is clearly an emphasis on regional aspects of environmental, developmental and legal issues, and readers need to be aware of the developing nature of environmental law in the Asian and Pacific region that the book tries to facilitate.
As important and meritorious the book’s purpose is, its actual content goes further. It covers a lot more than “approaches and resources” (sub-title) to environmental law training in Asia and the Pacific. The selection of topics and arrangement of materials together with editorial notes, questions for discussion and further references signal an ambition for advanced training and learning. The underpinning message of the entire text is that environmental law itself is developing. The presentation of environmental law as an evolving, dynamic and interdisciplinary subject makes the book invaluable to ALL environmental law teachers.
Every resource book requires good judgement and selection of suitable materials before being used in courses. This book is no exception, however, it requires particular attention. Its broad thematic and interdisciplinary approach differs from most legal texts and resource books — again reflecting the dynamic nature of environmental law. To do justice to both, the content of contemporary environmental law and its importance for sustainable development, the book’s content is complex and not easy to grasp.
It is very helpful, therefore, that the first three chapters (of volume 1) are devoted to guidance. Fundamental issues like the North-South debate, the relationship between ethics and law and the broad principles of social justice or intergenerational justice are equally covered as methodological issues like teaching and definitions of environmental law, techniques of comparative law, forms of capacity-building or dimensions of sustainable development. All these issues need to be understood as a background for actual course preparation. They are essential reading before the book’s content could be accessed.
Again, the book gives the necessary guidance. The Foreword (xiii, xiv) suggests some options on how to deal with the content. It lists possible courses (eg, “core national environmental law”, “international environmental law”, “procedures and practice of environmental law”) with listings of chapters relevant to each course. The Introduction (xxix to xxxi) explains the rationale of the book’s structure. The first chapter contains a teaching guide (3–5) with suggestions for possible course contents (eg, “environmental science, interdisciplinarity and the precautionary principle” or “providing environmental law for sustainable development”). And chapter three (133–167) provides details of teaching methodologies and curricula with examples of course contents.
The first three chapters are introductory, but provide the kind of grounding that makes the reader confident and curious. Environmental law appears as an important,
politically charged, truly interdisciplinary, but also manageable field of legal study. Situated between “solid” jurisprudence and advocacy for change, environmental law seems to touch upon the feelings and ambitions, that any student finds — or should find — so intriguing about jurisprudence. What is justice? What does justice mean in a globalized context where individual needs can no longer be separated from the needs of others? And who are the “others”? The ideal of sustainable development challenges some fundamental principles of modern society, ie, freedom, justice, equity and human rights. They need to broaden their individual dimensions in terms of space (“intragenerational justice”) and time (“intergenerational justice”). Reading the introductory parts of the book provides the right feel for what is at stake, essentially, when lawyers take an interest in sustainability.3
Equipped with such grounding — and detailed technical advice — it becomes a lot easier to find one’s way through the various aspects of environmental law. The following chapters on the national implementation of environmental law (4), comparative overviews (5), regulatory strategies, market mechanisms, enforcement and compliance (6) and other key areas of environmental legislation (7 to 11) as well as the thirteen chapters of volume 2 can all be understood in the context of the introductory chapters. Some chapters contain more complex issues than others, but each has its own importance for successful environmental decision-making. Moreover, the way the materials in each chapter are organized encourages the reader to always be aware of how deeply intertwined the issues are and how much they are linked with the underpinning issue of sustainable development.
Each chapter has a certain pattern of delivery. At the beginning, the editors give an introduction to the topic area. In most cases, the introduction is followed by a “teaching guide”. The guide is in the form of a syllabus (prepared by participants of the IUCN/UNEP Training the Trainers courses) that states objectives and teaching methodologies for the chapter’s content. The content itself consists of various sub-headings with selected extracts of books or articles. The selection draws from specific expertise and relevant materials available. Forty- four authors have contributed here. Where useful, case studies and official documents are added. At the end of each chapter are “questions for discussion”, the references for the chapter and additional references for further study.
The usefulness and practicality of the book’s structure and content is in no doubt. The beginner and the advanced student would have no difficulty in identifying the key issues of each topic and relating them to the various themes of environmental law.4 Scope and overall concept of this field emerges clearly with the three introductory chapters and the following substantive parts.
The picture is completed by an outlook (“The Future”) that identifies some of the key challenges in the new century.5 Its introduction lists the following: biotechnology, environmental refugees, climate change, governance for sustainable development and environmental consequences of armed conflict. Stating that this list “is far from exhaustive”, the chapter is designed to give the reader a sense of what is to come. The materials of this final chapter discuss some of the key challenges, trends “towards an integrated environmental law” and “evolving international norms and ethics”. Particular emphasis is given to emerging soft law and two civil society documents, the IUCN Draft Covenant on Environment and Development (1995) and the Earth Charter (2000).
The Draft Covenant and the Earth Charter contain the ethics and principles for sustainable development. They represent a well-negotiated consensus of global civil society and clearly show the way forward.6 The fact that neither the Draft Covenant nor the Earth Charter have, as yet, found official recognition by states says a lot about the world we live in today. The future will be determined by our ability or failure to shift to the ethics of sustainable development. It is appropriate and revealing that this resource book of environmental law concludes with a plea for governance lead by the Earth Charter and civil society. Environmental lawyers cannot be “neutral” and should be trained accordingly.
The greatest merit of this book is that it avoids the impression of environmental law as a “neutral” discipline. Like any legal discipline, environmental law is charged with ethics and politics. The book makes a convincing case for sustainable development as the basis of modern environmental law and goes a long way to show its ethical and political underpinnings.
And yet, the book does not go far enough. One key question remains unanswered: How is it possible to promote ecological sustainability as the key to humanity’s future without fundamentally re-defining environmental law? Or are we to believe that contemporary environmental law provides the framework for a sustainable future?
Interestingly, Agenda 21 defines an “effective legal and regulatory framework” as a necessary provision for sustainable development7 and nowhere refers to “environmental law”. Instead, Agenda 21 uses terms like “environment and development law” or “sustainable development law”8 to describe the integrated character of a legal regime that does not yet exist. Chapter 8.14 states: “To effectively integrate environment and development in the policies and practices of each country, it is essential to develop and implement integrated, enforceable and effective laws and regulations that are based upon sound social, ecological,
5 Vol. 2, pp. 943–994.
6 P.Taylor, The Earth Charter (1999) 3 NZJEL, 193–203. 7 Ch. 8.13 to 8.26.
8 Eg, Ch. 8.19 and 8.20.
economic and scientific principles.” The key is not more or better environmental law, but integrated law. Effectively, this requires the transformation of environmental law to a new system-oriented legal regime.
This transformation is profound and cannot be conceived as a mere continuation of contemporary environmental law. Several authors touch upon some important characteristics. Ben Boer, for example, considers a holistic and all inclusive definition of the “environment” essential for capturing sustainability issue.9 Nicholas Robinson observes that the new legal regime “can be realized only if each jurisdiction adopts an environmental ethic integrating the ecological, economic and social dimensions.”10 In his article on “Legal Systems and the Discovery of an Environmental Ethic” Robinson gives a clue of what the transformation may entail: “So long as we apply the teachings of the science of ecology to our human projects, to work primarily within the “discipline” of nature, we shall not learn that we need to fashion our own systems to reflect our interdependence with animals and other flora and fauna. So long as lawyers are content to leave in full force the legal clutter of past ethical perceptions, we shall retard others in making the sort of discovery about the community of life that is today the precedent before the Supreme Court of Minnesota”.11 The ecological wisdom provoked here is the ethical stance of ecocentrism and diametrically opposed to anthropocentric reductionism underpinning Western legal tradition.12 The (underdeveloped) ethical debate among lawyers is, in fact, the crux of
the whole problem. So long as jurisprudence and law-making are blind to their inherited anthropocentric reductionism, the law won’t change very much and the transformation to sustainability law will not happen.
As mentioned above, the book does not pretend to outline the new legal regime of sustainable development. It would be unfair to expect the concept of sustainability law where no such promise is made. However, it may be of importance to tell the readership in the Asia and Pacific region, that capacity building for environmental law may not be enough. Are, for example, environmental law lecturers of the region expected to accept “environmental law” as the foundation of sustainable development even if its basic assumptions may not be consistent with their indigenous traditions and cultural heritage? Certainly not, and neither the editors nor the contributors of this book could be blamed of legal imperialism. It would raise concern though if capacity building could be
9 Vol. 1, pp. 6–8.
10 Vol. 1, p.149.
Wild Law, Cape Town 2002.
misconceived as an exercise of merely teaching the law as it has emerged in industrial societies.
Whilst it may have been worthwhile, to give more prominence to the jurisprudence underpinning the law with respect to sustainable development,13 the book’s basic approach and message are right. Environmental law is presented as an evolving, dynamic field yet in need of finding its proper place in the sustainability debate.
Perhaps what is needed most now is world-wide capacity building for sustainability law.
Klaus Bosselmann*
* Associate Professor of Law, Faculty of Law, University of Auckland, and Director, New Zealand Centre for Environmental Law, University of Auckland.
NEW ZEALAND LAW REVIEW
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Faculty of Law, University of Auckland
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