The environment knows no boundaries, but environmental law and scholarship often do.Footnote ¹ Transboundary environmental governance has become a focal point of scholarship across the globe. However, developments in Asia have received relatively less attention, especially transboundary developments. Simon Marsden has helped to fill this gap with a trilogy of volumes, one of which co-authored with Elizabeth Brandon focuses on transboundary environmental governance within Asia.Footnote ²

This review focuses on the third of these books, Protecting the Third Pole: Transplanting International Law. The ‘Third Pole’ refers to the Himalaya-Hindu Kush (HHK) mountain range and the Tibetan Plateau, which contain glaciers that store the largest supply of freshwater outside the Arctic (the First Pole) and Antarctica (the Second Pole). The Third Pole is the source of ten major river systems that provide power, irrigation, and drinking water to more than 1.3 billion people in Asia. Despite its significance, the Third Pole receives much less scholarly attention than other ecosystems.

Protecting the Third Pole examines how and whether international, regional, subregional, and national legal frameworks could be transplanted to help in protecting this vast and important region. Marsden explores a wide variety of existing legal regimes, including the law of international watercourses, various international conservation treaties, laws applicable to the two other poles, and existing regional governance agreements, that could be tailored to enhance environmental governance of the Third Pole. However, in recognition of the challenges such legal transplants often face, Marsden ultimately concludes that adequate protection of Asia's polar region may require the development of a new treaty.

The book consists of seven chapters. The first two chapters describe the existing state of affairs in the Third Pole and identify the many challenges associated with transplanting law from one area to another. In Chapter 1, Marsden provides an engaging and informative description of the Third Pole, its significance to Asia, and the environmental challenges it faces. This chapter also details the inadequacy of environmental governance in the region and explains why Marsden felt it necessary to write a book focused specifically on the Third Pole. Chapter 2 then discusses best practices for, and the numerous challenges associated with transplanting law from one area to another. Marsden is clear-eyed about the difficulties such transplants present,Footnote ³ and he emphasizes the importance of tailoring laws based on the context of the region. To illustrate the potential and limits of legal transplants, Marsden explores ways to repurpose the governance models of the Arctic Council and South Asian Association for Regional Cooperation (SAARC) for the Third Pole. Marsden specifically considers the feasibility of transplanting the institutional arrangements of the Arctic Council and its focus on collaborative knowledge sharing and ecological protection through the SAARC. The author concludes this chapter by remarking that the mix of soft and hard legislation negotiated under the umbrella of the Arctic Council could provide useful tools to protect the Third Pole. However, Marsden also notes that, because the other poles do not face the same risks as the Third Pole – including ecological threats from hydroelectric development – transplanting the Arctic Council framework would not offer sufficient protection for the Third Pole.

Marsden thus expands his inquiry to consider other legal regimes that could be transplanted to protect the Third Pole. Chapters 3 and 4 consider the applicability of international laws aimed at conservation and landscape protection. Chapter 3 evaluates the potential to transplant international laws establishing globally protected areas, including the European Landscape Convention,Footnote ⁴ the World Heritage Convention,Footnote ⁵ and the Ramsar Convention.Footnote ⁶ Marsden identifies several benefits of transplanting the European Landscape Convention and World Heritage Convention to the Third Pole, including enhanced regional cooperation and public participation. Chapter 4 then considers the Bern ConventionFootnote ⁷ and the Antarctic Environmental ProtocolFootnote ⁸ as clear candidates for protecting interlocking areas and species through an ecosystem approach for integrated soil, water, and living resources management, and for promoting conservation and sustainable development in a just manner. In each of these chapters Marsden ably explains how the selected treaties, individually and collectively, could address the needs of the Third Pole. At the same time Marsden acknowledges the political realities of the region, noting that legal transplanting is most viable in places where the political climate is already prone to change. Thus, while international conservation laws may provide benefits for the Third Pole, Marsden recognizes they offer only a partial solution.

Chapter 5 examines the value to the Third Pole of the international practice of environmental impact assessment (EIA). As many other scholars have noted,Footnote ⁹ Marsden acknowledges that the substantive and procedural effectiveness of EIA has been watered down even as the practice of EIA has become more widespread. Therefore, he recommends transplanting to the Third Pole, as improved models for EIA in the Third Pole, the Espoo Convention on Transboundary EIAFootnote ¹⁰ and the subsequent Kiev Protocol on Strategic Environmental Assessment (SEA),Footnote ¹¹ which he argues have enhanced EIA practices within Europe. In the remainder of this chapter Marsden illustrates how polar-specific EIA mechanisms – such as the guidelines concerning EIA and SEA established by the Arctic Council and the comprehensive three-level regulation for EIA in Antarctic EIA – could inform the development of a contextualized Third Pole EIA treaty or EIA guidelines. Through this chapter Marsden ably demonstrates how legal transplants can be tailored based on the context of the region that is importing external law.

Chapters 6 and 7 then focus on the evolution of protection regimes for international rivers and transboundary mountains, respectively. In exploring the international law applicable to transboundary rivers in Chapter 6, Marsden examines an array of legal agreements and decisions – including the Gabčikovo-Nagymaros Dams case,Footnote ¹² the Mekong Agreement,Footnote ¹³ and the Convention on Transboundary WatercoursesFootnote ¹⁴ – to demonstrate the benefits that international waterway treaties could provide for water resource management of the Third Pole. In Chapter 7, Marsden argues that the CarpathianFootnote ¹⁵ and Alpine regimesFootnote ¹⁶ could serve as models for the development of a useful regional governance structure for the Third Pole. Concluding these chapters, the author underlines the importance of creating transboundary mechanisms to safeguard the environment. Such mechanisms may make a real contribution to sustainable development in many ways, including clean and sustainable energy production.

After describing the various mechanisms that could be transplanted to the Third Pole, primarily from Europe and the other poles, Protecting the Third Pole proposes the development of a new treaty. While legal transplants could fill some gaps in governance and serve as decent models for protecting some environmental media, Marsden argues that legal transplants will result in a patchwork of governance systems that would be likely to leave gaps and produce unintended consequences. However, a new treaty could enable broader participation by the public and all other relevant regional stakeholders. While the creation of a new treaty may seem a daunting endeavour, Marsden illustrates that it is well past time to undertake the task.

Protecting the Third Pole makes an outstanding contribution to international environmental law, as well as polar law studies. It offers a rigorous, comprehensive, and thoughtful comparative investigation of pertinent customary international laws and treaty obligations. The book distils complicated legal approaches and theories into logical analyses and conclusions. It not only is a must-read for any law or public policy scholar in addressing environmental concerns in Asia, but the book should appeal to a much broader audience as a result of its insights into transboundary environmental governance.