From Indonesian Haze to Uruguayan Pulp Mills

To mark the publication of Cases of Conflict: Transboundary Disputes and the Development of International Environmental Law, the author, Allen L. Springer, discusses the book’s genesis and his decision to adopt a case study approach to elucidate its ideas and concepts.

cases of conflictCases of Conflict has been in the works for over 25 years. The idea for the project came at a conference in Vienna in 1990, where a group of European and North American scholars were discussing the development of international environmental law in the days leading up to the Rio Conference on Environment and Development. I was among those arguing that emerging rules of customary international law provide an important foundation for holding states accountable for the extraterritorial impact of activities taking place within territory they presumably control. Yet we were meeting in the aftermath of the 1986 Chernobyl nuclear accident, which rules of international law had failed to prevent and where the states downwind of the reactor had not even attempted to bring claims against the Soviet Union for the damages they had suffered. Squaring the alleged rules of international law with the reality of state behavior was not an easy proposition.

It became clear to me that what was needed was closer examination of how states actually respond to international environmental problems. I was convinced that detailed case studies offered the best way to explore the connection between norms and state behavior in the depth and complexity the problem deserves. Building on new collaborative research linking the fields of international law and international relations, I decided to focus on six transboundary environmental disputes. My goal was not to try to measure the impact of international law, but to examine critically the role that it plays in real-world situations, deliberately choosing times of conflict when vital and often competing interests are at stake.

Forty years of teaching great Bowdoin undergraduates has only reinforced my belief in the power of rich case studies to bring to life important ideas and concepts. Too often principles of international environmental law appear simply as abstractions, rules embraced by diplomats in aspirational agreements, but often not evident on the ground. The rationale behind the precautionary principle is easily explained, but how it can become a source of international dispute is understood much better by following the debate between Ireland and the United Kingdom over the risk posed by new technologies to recycle nuclear waste.

The project required case studies that are interesting, important, and balanced. The disputes studied here involve situations where serious pollution has already taken place and others where there is simply the risk that it might occur. Collectively, they examine different media (atmosphere, rivers, oceans) and different types of environmental effects, from transboundary air pollution to overfishing. They also span different geographical regions and involve disputants with varying degrees of political and economic power. To the extent the disputes have been resolved, the case studies reflect a range of dispute settlement techniques, from contentious bilateral diplomacy to formal adjudication before the International Court of Justice.

Case studies also need context and analysis. The first chapter locates the argument being made in Cases of Conflict within the broader intellectual framework in which international environmental law is currently being developed and studied. The second traces the evolution of international environmental law from its nineteenth-century origins to the institutional world of the mid-1990s in which the first of the disputes began. A final chapter draws from these experiences broader conclusions about the nature of transboundary environmental disputes and the role they can play in shaping the development of international environmental law.

Emerging is a dynamic body of international practice, produced not just by governments but also by intergovernmental organizations, courts, multinational corporations, and NGOs. For all of them, the language of law is important. Even in times of conflict, their arguments and actions help construct a body of law that is more robust and responsive to the environmental challenges we face.

Allen L. Springer is Professor in the Department of Government and Legal Studies at Bowdoin College.

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