2008 is an exciting year for those interested in the international legal aspects of environmental impact assessment (EIA). In addition to Neil Craik's book, there are volumes by Bastmeijer and Koivurova (Reference Bastmeijer and Koivurova2008) and myself (Marsden Reference Marsden2008). Each book has a different focus and audience, and it is therefore not appropriate to make direct comparisons.
Neil Craik's book is in five parts, with eight chapters and three appendices. In common with law books, a table of cases and table of international instruments precede the first chapter. The book has a Canadian perspective with many Canadian examples, reflecting both the author's origins and the mature state of EIA in Canada. Part I contains just one chapter, an introduction and overview. Part II examines the domestic origins of international EIA commitments and general principles of international environmental law. Part III details the international commitments found in treaty, customary and soft law, including specific obligations for process stages of EIA. Part IV contains two theoretical chapters analysing EIA and compliance and EIA, interests and legitimacy. Part V draws conclusions based on the foregoing discussion.
The reasons for the interest in the relationship between international law and EIA in part derive from the continued application of existing treaties such as the Convention on EIA in a Transboundary Context (Espoo, 1991), related provisions in the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus, 1998), and potential application of new legal instruments, especially the Protocol on Strategic Environmental Assessment (SEA) (Kiev, 2003). Many other relevant treaties with specific (and in some instances quite detailed) EIA provisions are identified and analysed in Part III of Craik's excellent book, notably the Convention on the Law of the Sea (Montego Bay, 1982), Protocol on Environmental Protection to the Antarctic Treaty (Madrid, 1998), Convention on Biological Diversity (Rio de Janeiro, 1992) and Framework Convention on Climate Change (New York, 1992).
Interest also derives from the growing jurisprudence of international courts and tribunals, which in some instances is being considered in national courts. Again, this is examined fully throughout the book. This produces a body of customary international law which may have binding effect in a national context, especially if it leads to changed state practice on a particular matter, such as the acceptance of the precautionary principle in decision making. Much of the customary law relating to EIA (and SEA) is based firmly upon international duties such as harm prevention (including the preventive and precautionary principles), cooperation (including the participatory or non-discrimination/equal access principles) and the thornier matter of liability for environmental harm (of which the polluter pays principle is recognized in some instances).
Other than the last, as of course EIA is designed to avoid or mitigate harm in the first place, harm prevention and cooperation are at the heart of EIA processes at all levels. This was recognized by the seminal Trail Smelter Arbitral Decision (United States versus Canada, 1905), the Nuclear Test Case (New Zealand versus France, 1974), and in the recent jurisprudence relating to the MOX Plant (Ireland versus United Kingdom) (Cardwell & French Reference Cardwell and French2007). EIA is also designed to achieve sustainable development, so judicial considerations of this, such as the influential Gabcikovo-Nagymaros Project decision (Hungary versus Slovakia, 1997), have significance. The impacts of each of these decisions (and more) are examined in detail in chapters 3 and 4.
As with other books in this Cambridge Studies in International and Comparative Law series, Craik's book is based on his earlier doctoral dissertation, and as such is undeniably scholarly in its treatment and analysis, drawing heavily from public international law and international relations theory. While the readership of this journal is interdisciplinary and public international law and EIA is without question of significant interest and importance to many, as with scholarly approaches to any discipline it must be accepted that without a legal background, readers may at times find the approach difficult. That said, there is much to recommend this book, especially to those involved with treaty regimes such as the Convention on Biological Diversity (CBD), as the relationship between EIA and conservation receives admirable coverage.
One of the important purposes of the book is to remind readers that the role of EIA has never been to prevent environmentally significant proposals from proceeding per se; rather EIA is concerned with providing information for decision makers to determine these matters, increasingly within the integrative rubric of sustainable development, whether or not the assessment process itself is limited to environmental issues (as in traditional EIA) or examines social and economic factors also (as in sustainability assessment/appraisal). This is significant, because as EIA practitioners grapple with the procedural/substantive dimension of EIA, (meaning whether EIA just leads to ‘improved’ processes or whether it results in ‘positive’ environmental change), so too do EIA lawyers grapple with the procedural/substantive legal dimension of EIA, meaning something related, but rather different. For lawyers, substantive laws require or prohibit certain behaviour, such as statutes that contain prohibitions on environmental harm, commonly resulting in criminal penalties if breached. Procedural law by contrast is concerned with the way in which a decision is reached, often as the result of the exercise by a decision maker of its discretionary powers, where it has a choice whether to do something, although failing to follow a specific process may also lead to a challenge. As with much of the litigation generated by failings to implement EIA in national law correctly, this often results (in common law legal systems at least) in a procedural challenge known as judicial review which if proven, will require a decision maker to merely take a decision again with the offending behaviour corrected (such as inappropriately applying consultation provisions).
The MOX Plant litigation between Ireland and the UK provides an example of not only the substantive/procedural law divide, but also much more besides. Craik addresses these in relation to EIA in various chapters in the book, notably the relationship between international and national law, the difficulties in determining which is the appropriate jurisdiction when more than one legal regime is involved (which in this case involved European law as well as two international law treaty regimes), the involvement of non-state actors in disputes (such as environmental non-governmental organizations), the ability of states to take responsibility for non-state behaviour (the operator of the plant is a private commercial enterprise), and the consideration of economic and social matters in deliberations. In public international law, the involvement of economic and social matters remains as a powerful counter to environmental protection for its own sake, in part because of the renewed focus on these aspects for developing states following the World Summit on Sustainable Development in Johannesburg (2002), which endorsed the notion of ‘common but differentiated responsibility’ allowing different degrees of adherence to international legal obligations.
One of the major contributions of this work is the detailed examination of how state practice complies with international EIA commitments (see chapter 6), which focuses upon the role of EIA in bringing about institutional change through persuasion rather than coercion. This is not at all surprising given the emphasis EIA places upon cooperation, with the horizontal nature of provisions that concern access to information and public participation bringing about many opportunities to influence behaviours at all levels. Although Craik may not necessarily agree (see p. 149), arguably while such provisions are procedural dimensions of EIA, some also have a substantive basis in law, with the potential for challenges based on failings to take into account access and participation rights, such as under the Aarhus Convention. The rights of access to information, public participation in decision making and access to justice in environmental matters cut across all environmental sectors and without them the effectiveness of environmental law in all areas is open to question. No single reference can do justice to the impact this Convention is having on international, European and national law globally, whether a state is a party to it or not. For readers unfamiliar with it (who are hopefully few), the treaty website therefore should be the first port of call (URL http://www.unece.org/env/pp/).
Whether interested in theory or practice, the contribution of international EIA norms to process, substance and integration is admirably documented and analysed in this remarkable book, which is a significant addition to the literature on EIA and the law at all levels.
