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Environmental Law and the Ecosystem Approach: Maintaining Ecological Integrity through Consistency in Law, by Froukje Maria Platjouw Earthscan from Routledge, 2016, 220 pp, £85 hb, ISBN 9781138183131

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Environmental Law and the Ecosystem Approach: Maintaining Ecological Integrity through Consistency in Law, by Froukje Maria Platjouw Earthscan from Routledge, 2016, 220 pp, £85 hb, ISBN 9781138183131

Published online by Cambridge University Press:  16 February 2017

Michelle Lim
Michelle Lim*
Affiliation:
Griffith University, Gold Coast (Australia)
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Type
Book Reviews
Information
Transnational Environmental Law , Volume 6 , Issue 1 , March 2017 , pp. 180 - 183
Copyright
© Cambridge University Press 2017 

Environmental law has, perhaps by necessity, lagged behind scientific understandings of the natural world. Nevertheless, there has been a slow but sure shift from legal instruments that adopt species-based approaches to conservationFootnote 1 to more holistic approaches at the level of ecosystems.Footnote 2 During the 1980s, ecosystem managers began to adopt an ecosystem approach in the management of ‘eco-social’ systems.Footnote 3 By 2000, in Decision V/6 of the 5th Conference of the Parties (COP-5), the Convention on Biological Diversity (CBD)Footnote 4 extended understanding of the ecosystem approach beyond a mere strategy to conserve biodiversity at the level of ecosystems; the ecosystem approach was instead envisaged as a mode of governance. Nevertheless, the ecosystem approach remains a contested concept and its precise legal status and content remain unclear.Footnote 5

Platjouw’s book, Environmental Law and the Ecosystem Approach, aims to narrow the gap in the legal literature and in practice while bridging divides between science, law and policy. Platjouw argues that implementation of the ecosystem approach is the means by which to achieve the ultimate goal of ecosystem integrity (Chapter 3). She identifies a range of national, regional and international legal instruments that include references to ecosystems and the ecosystem approach (Chapter 2), and contends that the fragmentation of environmental law (Chapter 5) and discretion in decision making (Chapter 6) are the key impediments to implementing the ecosystem approach and, by extension, maintaining ecosystem integrity. Importantly, Platjouw recognizes ecosystems as complex adaptive systems to emphasize the importance of holistic approaches to environmental law and, therefore, the shortcomings of existing legal regimes (Chapter 3). Valuation of ecosystem services is then presented as a tool for facilitating the application of the ecosystem approach (Chapter 4). The issues are grounded and contextualized with the example of offshore petroleum exploitation in the North Sea (Chapter 7). Chapter 8 offers consistency and coherence in law as the solutions to ensuring the protection of ecosystems and the maintenance of ecosystem integrity.

A key strength of the book is the breadth of research across a range of instruments, issues and disciplines. Each chapter includes a wide range of contemporary literature on each of the subjects discussed. The most novel contribution of the book is the discussion on consistency (Chapter 8). Platjouw suggests the term ‘consistency’ rather than related terms such as harmonization, coordination and integration, to refer to a non-contradiction of approaches within a set of norms and rules (p. 189). Platjouw places ‘consistency’ within the overarching goal of achieving ecosystem integrity. She deems rules to be consistent to the extent that they reinforce each other so as to facilitate implementation of the ecosystem approach to achieve ecosystem integrity. In the same chapter, Platjouw highlights the importance that broader jurisprudential writings could bring to exploring challenges of coherence in environmental law (p. 190). The questions raised and research directions presented are interesting and innovative, but are not delved into in further detail.

Given the title of the book and the range of issues that surround the emergence of the ecosystem approach as a concept in law, I was surprised to find that only one chapter (Chapter 2) was dedicated to exploring the legal status and content of the concept. Platjouw concludes the chapter by stating that the ecosystem approach has been ‘widely endorsed in international and European legal instruments’ (p. 54) but does not shed light on the legal status of the concept. As frequent use of a term is insufficient evidence to satisfy state practice requirements for a principle to be recognized as a binding customary law norm,Footnote 6 it would have made a stronger contribution to the field if the book had examined the extent to which the ecosystem approach could be said to be an emerging principle of international environmental law.

Nonetheless, Chapter 2 does an excellent job of bringing together a comprehensive collection of examples where ecosystems and the ecosystem approach have appeared in legal instruments at the multilateral, regional (European Union) and national (Norway) levels. Deeper questions, however, are left unexplored: for example, little is done to distinguish between management at the level of ecosystemsFootnote 7 and the application of the ecosystem approach as a governance strategy.Footnote 8 Though Platjouw draws parallels between the ecosystem approach on the one hand and sustainable development and rational and sustainable use on the other (pp. 28, 35–7), the relationships between these concepts are not unpacked. Further, while marine spatial planningFootnote 9 and Integrated Marine and Coastal Management (IMCAM)Footnote 10 are included in the chapter, the question of whether and how each of these differ from the ecosystem approach is not examined.

Appreciating that no book can contain all material on a subject, Platjouw is to be highly commended for considering the ecosystem approach across an extensive range of instruments and sectors. As an avenue for future research, it would be interesting to read the author’s perspective on the incorporation of the ecosystem approach in the regulation of freshwater systems.Footnote 11 Particular issues that could be investigated include the interactions between the ecosystem approach and Integrated Water Resource Management (IWRM), and the question of whether the ecosystem approach is merely a broader application of IWRM.

Chapter 3 highlights the complex and adaptive nature of ecosystems. It builds on the small but increasing body of environmental law scholarship which acknowledges the mismatch between the component-based thinking of legal systems and ecological complexityFootnote 12 and calls for environmental law to manage the environment as a complex adaptive system.Footnote 13 As such, changing the order of Chapter 2 (which explored legal understandings of the ecosystem approach) and Chapter 3 (which considered concepts of complexity and ecological integrity) might have enhanced the logical flow of the book by first setting out the challenges of the issue being regulated and then moving to an evaluation of the extent to which the existing legal framework adequately meets the challenges identified.

In Chapter 3, Platjouw provides an extensive examination of the range of ways in which ‘ecosystem integrity’ has been characterized. Most explanations of the term in the chapter emphasize the capability of ecosystems to maintain their functions in the light of disturbances and the ability of the system to maintain its optimum operating point. It is thus curious that Platjouw ultimately settles on an inherently anthropocentric definition of ecosystem integrity to frame the discussion of the book. The definition that Platjouw adopts is one which sees a system as maintaining its integrity where it remains useful to humans. This definition fails to recognize that an ecosystem can maintain its optimum function regardless of its provision of services to humans. Further, the definition is unhelpful to the argument she makes for a holistic approach for advancing environmental values.

In Chapters 5 and 6, Platjouw calls for certainty, predictability and limiting discretion in decision making. This seems at odds with the management necessary for complex adaptive social-ecological systems set out in Chapter 3. It also perpetuates the myth of ecological equilibrium. Uncertainty is inherent in complex systems. Discretion is therefore not an impediment to managing complex systems, but rather a necessity. Platjouw does a thorough job of describing the work of others who have explored the importance of discretion in environmental law (pp. 130–2). However, these arguments seem too readily dismissed for the reason that discretion would ‘not necessarily ensure the maintenance of ecosystem integrity’ (p. 132).

Publications which explore the legal status and content of the ecosystem approach are timely and necessary. So, too, is the exposition of mechanisms that would enable the effective implementation of such an approach as a legal and governance strategy while bringing a systems perspective to environmental regulation. In this consistently well-researched book, Platjouw brings together a broad range of contemporary writings on the ecosystem approach and its incorporation into legal instruments, complex adaptive systems, the fragmentation of environmental law and discretion in environmental decision making. Environmental Law and the Ecosystem Approach may therefore be useful to anyone interested in these topics. Platjouw’s discussions around consistency and coherence, and their consideration in areas beyond environmental law, could also provide food for thought for those looking to advance the ecosystem approach and ecosystem integrity through law.

References

1 Convention on the Conservation of Migratory Species of Wild Animals, Bonn (Germany), 23 June 1979, in force 1 Nov. 1983, available at: http://www.cms.int; Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), Washington, DC (United States (US)), 3 Mar. 1973, in force 1 July 1975, available at: https://www.cites.org.

2 Convention on Biological Diversity (CBD), Rio de Janeiro (Brazil), 5 June 1992, in force 29 Dec. 1993, available at: http://www.cbd.int ; Convention on the Law of Non-Navigational Uses of International Watercourses, New York, NY (US), 21 May 1997, in force 17 Aug. 2014, available at: http://www.unwatercoursesconvention.org. For a detailed analysis of the range of instruments and sectors in which management at the level of ecosystems and the ecosystem approach has been considered see de Lucia, V., ‘Competing Narratives and Complex Genealogies: The Ecosystem Approach and Environmental Law’ (2015) 27(1) Journal of Environmental Law, pp. 91–117 CrossRefGoogle Scholar.

3 Waltner-Toews, D. & Kay, J., ‘The Evolution of an Ecosystem Approach: The Diamond Schematic and an Adaptive Methodology for Ecosystem Sustainability and Health’ (2005) 10(1) Ecology and Society CrossRefGoogle Scholar, Art. 38 (online), available at: http://www.ecologyandsociety.org/vol10/iss1/art38.

4 CBD COP-5, Decision V/6 ‘Ecosystem Approach’, UN Doc. No. UNEP/CBD/COP/5/23, 22 June 2000, Annex III.

5 De Lucia, n. 2 above, p. 94.

6 Lowe, V., ‘Sustainable Development and Unsustainable Arguments’, in A. Boyle & D. Freestone (eds), International Law and Sustainable Development: Past Achievements and Future Challenges (Oxford University Press, 1999), pp. 24–38 Google Scholar.

7 See, e.g., Convention on Wetlands of International Importance Especially as Waterfowl Habitat, Ramsar (Iran), 2 Feb. 1971, in force 21 Dec. 1975, available at: http://www.ramsar.org; European Union (EU) Directive 2000/60/EC Establishing a Framework for Community Action in the Field of Water Policy [2000] OJ L 327.

8 CBD COP-7, Decision VII/11 ‘Ecosystem Approach’, UN Doc. No. UNEP/CBD/COP/7/21, 13 Apr. 2004, Annex.

9 EU Directive 2014/89/EU Establishing a Framework for Maritime Spatial Planning [2014] OJ L 257/135.

10 CBD COP-2, Decision II/10 ‘Conservation and Sustainable Use of Marine and Coastal Biological Diversity’, UN Doc. UNEP/CBD/COP/2/19, 30 Nov. 1995.

11 See, e.g., McIntyre, O., ‘The Emergence of an “Ecosystem Approach” to the Protection of International Watercourses under International Law’ (2004) 13(1) Review of European, Community and International Environmental Law, pp. 1–14 CrossRefGoogle Scholar; Lee, J., ‘The Preservation of Freshwater Ecosystems of International Watercourses and the Integration of Rules: An Interpretative Mechanism’ (2013) 38(2) Water International, pp. 156–165 CrossRefGoogle Scholar.

12 Craig, R.K., ‘Learning to Think about Complex Environmental Systems in Environmental and Natural Resources Law and Legal Scholarship: A Twenty-Year Retrospective’ (2012–13) 24 Fordham Environmental Law Review, pp. 87–102 Google Scholar.

13 Elliott, E.D., ‘Environmental Law at a Crossroad’ (1992) 20(1) Northern Kentucky Law Review, pp. 1–22 Google Scholar; Craig, ibid.; Ruhl, J.B., ‘Law’s Complexity: A Primer’ (2008) 24(4) Georgia State University Law Review, pp. 885–911 Google Scholar.