The Art and Craft of International Environmental Law

by Dan Bodansky


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How and why do international environmental norms arise? In what ways do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are some of the questions I examine in my new book, The Art and Craft of International Environmental Law.

My decision to write the book was prompted by an actual incident that I had more than a decade ago, with which I begin the introductory chapter.  I was living in Seattle at the time.  One evening the doorbell rang and it was an environmental NGO asking for contributions for his organization.  I wasn’t a big fan of his NGO, so I declined and when he asked why, I said that I disagreed with some of his organization’s positions.  He asked which one and I responded, Norwegian whaling.  After an inconclusive debate about the status of minke whales in the North Atlantic, the volunteer, in frustration, played his trump card, exclaiming:  “I suppose it doesn’t matter to you that Norway is in violation international law!”  That really got me going, so I replied — somewhat pedantically — that I happened to be a professor of international law and that, as a legal matter, Norway is in compliance with the International Whaling Convention.  He stomped off in search of greener pastures.

I found the encounter fascinating because it illustrated so many themes in international environmental law:  the intertwining of scientific and factual disputes, the special discursive power of legal argumentation, the various design features of international agreements.  And I got to thinking, what could someone read to get a broad, realistic, pragmatic  overview of the field that synthesizes the range of work in different disciplines on international environmental problems.  I couldn’t think of anything and decided to write this book.  Now, more than 10 years later, it is finally out!

The Art and Craft of International Environmental Law has several defining features:

First, it focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself—already the subject of several excellent treatises. Accordingly, the book is not organized doctrinally, in terms of air pollution, marine pollution, chemicals, and so forth.  Instead, it is organized thematically, with chapters on such topics as the causes of environmental problems, the varieties of international norms, the obstacles to international cooperation, the design of international agreements, policy implementation, enforcement and effectiveness.  Process issues have received increased attention in recent years but have not yet received a book-length treatment. My new book aims to fill that gap. Rather than focus on one or two aspects of the international environmental process, it examines the process as a whole, from beginning to end, synthesizing recent research on international environmental negotiations, treaty design, social norms, policy implementation, and effectiveness.

Second, the book is multi-disciplinary.  To understanding the international environmental process, we need to study not only law, but also political science, economics, and, to a more limited degree, philosophy, sociology, and anthropology.

Third, the book is theoretical in its orientation, but tries to ground its discussions of theory through the use of concrete examples.  In a wonderful book entitled Nuts and Bolts for the Social Sciences,Jon Elster wrote that his subtitle might have been “Elementary Social Science from an Advanced Standpoint,”  That has been my goal as well: to write an elementary book from an advanced standpoint, with a stronger methodological and philosophical orientation than is typical in an introductory work.

Fourth, the book aims to be pragmatic, reflecting my experience working on international environmental issues as a U.S. government negotiator, NGO adviser, and UN consultant. Although it is theoretical, it tries to provide a real-world perspective on how international environmental works—and sometimes doesn’t work. Students and scholars of international law fall along a spectrum, from true believers at one end to complete cynics at the other. My book seeks to chart a middle course. It reflects a degree of skepticism about some of the more visionary claims regarding the role of international environmental law. But it does not throw out the baby with the bath water. Rather, it seeks a realistic understanding of both the role and the limits, the process and the prospects, of international environmental law.

I’m very grateful to Opinio Juris for agreeing to host this book discussion, and to David, Kal, Peter, and Scott for their willingness to contribute to it.

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