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Review of European Community & International Environmental Law

RECIEL 22 (2) 2013. ISSN 0962-8797

Book Reviews

The Human Right to Water: detail the legal foundations of the
Significance, Legal Status right to water in treaty law and also
and Implications for Water considers carefully the rights status
Allocation, by Inga T. under customary international law
(Chapter 3). She moves on to
Winkler, published by Hart
discuss the legal characteristics of
Publishing, 2012, 340 pp., the right to water, including its legal
52, hardback. nature, State obligations and nor-
mative content and aptly reflects
the status quo of the debate in this
Regardless which theme events on field (Chapter 4).
water nowadays address, very likely
sooner or later one topic will be Winkler subsequently comes to the
raised and inevitably stir up discus- most original part of her study
sion: the human right to water. where she examines human rights
Often enthusiastic support meets implications for water allocation.
unconditional rejection and not She assesses how sectors other than
seldom both views are based on the household, such as food produc-
incomplete information about the tion, production of clothing, sanita-
meaning of this right and its impli- tion, power generation, cultural and
cations for domestic water manage- religious practices and indigenous
ment. With this book, Inga Winkler water uses, pose demands on water.
since 2009 Legal Adviser to the She then discusses how these other
UN Special Rapporteur on the uses relate to human rights and pri-
Human Right to Safe Drinking oritizes them using a rights-based
Water and Sanitation, Catarina de analysis. For the latter, she develops
Albuquerque makes an important and applies a framework that dis-
contribution to clarifying the tinguishes between different levels
meaning of this right and to inform- of realization: the survival level, the
ing the debate about it. It is the first core level, the level of full realiza-
legal monograph on the right to tion and the level beyond human
water released by an academic rights guarantees. Instead of priori-
publisher and offers a solid and tizing any single water use over
in-depth treatment of the subject others, Winkler suggests that the
matter. most basic requirements as relating
to different human rights have to be
Winklers book is based on an met first moving from the survival
expansive review of primary mate- level, to the core level, to the level of
rials, especially international and full realization of human rights. The
regional human rights instruments extent to which human rights rely
and documents, regional and inter- on water for their realization is fac-
national case law and domestic leg- tored in as a second component of
islation. In addition, it takes into this framework. The right to water
account extensively the relevant is singled out because its realiza-
academic literature. The book is tion, unlike the realization of other
divided into seven chapters. After human rights, is characterized by
an introduction (Chapter 1) and a three factors: it depends on direct
background chapter on water avail- access to water and does neither
ability and competing demands allow for water savings nor for
(Chapter 2), Winkler analyses in substituting the resource. Winkler
argues that besides water for the
realization of cultural, religious and
indigenous rights, water required
for the realization of the right to
water at survival, core and full real-
ization levels therefore enjoys
priority over other uses as long as
alternatives exist for the realization
of other human rights. Should such
alternatives not be available, she
suggests that priorities have to be
established according to the levels
of realization of human rights
giving priority to the core content of
the right to food, the right to cloth-
ing, the right to sanitation and
human rights obligations related
to energy, as well as cultural and
indigenous rights, before the full
content of the right to water is
realized.
In the following chapter, Winkler
discusses the benefits of under-
standing water as a human right
(Chapter 6). She considers the spe-
cific features of looking at water
through a human rights lens, which
turns basic needs into legitimate
claims and creates a relationship
between individuals as rights
holders and the State as primary
duty-bearer. This relationship is
based on legally binding and coher-
ent standards and crosscutting
principles such as participation,
non-discrimination and account-
ability, and demands a particular
focus on the most deprived and
marginalized. Being one of the
benefits of a rights-based approach,
Winkler also covers in detail
recourse to judicial enforcement
and accountability mechanisms
from the enforcement in domestic
courts to reporting and complaints
procedures at the international
level, including reporting proce-
dures under the International
Covenant on Economic, Social and

2013 John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

207
Book Reviews
Cultural Rights, the Special Proce-
dures, the Universal Periodic
Review, and the possibility of indi-
viduals to lodge complaints under
the Optional Protocol to the Inter-
national Covenant on Economic,
Social and Cultural Rights, which
entered into force on 5 May 2013.
The book ends with conclusions and
an outlook (Chapter 7).
Winkler offers a comprehensive
and interesting analysis of the sig-
nificance and legal status of the
right to water and the issues that
have to be taken into account when
allocating and prioritizing water
use. Given that the latter are the
focus of her study, a number of
controversial topics are beyond the
reach of her work, among them the
participation of the private sector
in the provision of water services,
the question of extraterritorial obli-
gations, or the issue of responsi-
bilities of other actors than the
State. This limitation contributes
to the focus and coherence of
the book. In sum, it is a timely
and thorough monograph and a
welcome and well balanced addi-
tion to the corpus of literature on
the right to water, which is growing
but nonetheless still short of
in-depth studies of the nature
Winkler has provided. The book is
likely to become an essential stan-
dard reference for those interested
in the right to water.
Kerstin Mechlem
Lecturer in Human Rights and
International Law
University of Ulster, Transitional
Justice Institute
The Right of Nonuse, by
Jan G. Laitos, published by
Oxford University Press,
2012, 241pp., 45.00,
hardback.
Concerns about irreparable harm
caused to natural resources by
2013 John Wiley & Sons Ltd
208
human activities are not new; they
have merely become more pressing
in recent times amidst fears of
global warming and climate change.
The notion of sustainable develop-
ment, for example, has failed to
tame the adverse impact of develop-
mental activities on the environ-
ment. There are several major
problems with this notion.1 The
Right of Nonuse critiques one of
these problems that is, the
anthropocentric nature of sustain-
able development in that the envi-
ronment ought to be protected for
the benefit of present and future
generations of human beings and
offers a potentially more robust
framework to save planet Earth.
Jan Laitos offers a multidimen-
sional defence to the creation of a
legally recognized right of nonuse
enjoyed by natural resources.
Natural resources, he contends,
should be granted a legal right to be
left alone for their own intrinsic
value, rather than for the benefit
of humans. The main rationale
behind this shift lies in the failure
of the anthropocentric approach to
protect nature. The author, there-
fore, argues for embracing an eco-
centric approach.
Laitos consider nonuse to be an
integral, intrinsic and essential
quality of natural resources (pp. 1,
3, 5, 132; see also Chapters 1315).
If that is so, one may wonder
whether it is necessary to confer on
natural resources a legal right of
nonuse (p. 3), or should we simply
need to recognize such a right?
Leaving aside these semantics,
Laitos takes us through four distinct
eras of resource use and nonuse
(pp. 1761) and makes a compelling
case to move into a fifth era the
Age of Ecocentrism in which
1
See, e.g., S. Deva, Taking Nature Seri-
ously: Can the UN Guiding Principles Tame
Corporate Profiteering?, in: H.C. Bugge
and C. Voigt (eds.), The Rule of Law for
Nature (Cambridge University Press, 2013,
forthcoming).
RECIEL 22 (2) 2013
nature will have a legal right to be
left alone against an infinite desire
of humans to exploit natural
resources for their own benefit (pp.
6371). If and when this happens, it
will represent a paradigm shift from
an anthropocentric to an ecocentric
approach to govern the relationship
of humans with nature.
The author shows how the applica-
tion of game theory will result in
different outcomes in each of the
five eras. In the first four eras only
humans participated as players, and
with the exception of the fourth era,
humans neither valued nor repre-
sented resource nonuse interests
(p. 15). However, despite the fact
that some humans have champi-
oned the nonuse cause for anthro-
pocentric reasons, a socially
optimal equilibrium is unlikely to
result in the current fourth era
because resource use is competitive
and non-cooperative (pp. 1516,
51). To achieve a socially sustain-
able outcome, the author pleads for
recognizing a resources nonuse
right in a non-anthropocentric way
in the fifth era. He argues:
If laws that permit humans to raise
their interests in resource nonuse
cannot adequately deter human
assaults on the planets natural
resource base, then perhaps laws
should give legal status to the resource
itself so that its nonanthropocentric,
ecocentric interest may be protected.
(p. 63)
Laitos hopes that the entry of a third
player a resource armed with its
nonuse right in the fifth era will
change the dynamics of the game
by promoting the alteration of a
noncooperative two-player, user-
nonuser game into a cooperative
game (p. 70). Such a scenario can
indeed materialize. However, it
seems that the author does not
adequately acknowledge that the
game in real global markets is not
played in an artificially controlled
environment and therefore, that it
is difficult to predict with certainty
RECIEL 22 (2) 2013
both the behaviour of players and
the outcome.2
In Part III of the book (Chapters
812), Laitos offers a systematic
historical account of laws interac-
tion with natural resources. He
argues that while the first-
generation laws focused on the
use of natural resources and
the second-generation laws on the
nonuse of natural resources, both
were aimed at safeguarding the
interests of humans. Laitos rightly
points out that even the second-
generation resource nonuse laws
failed to protect nature because the
interests of humans are not neces-
sarily congruent with the interests
of nature (p. 122123). He is also
sceptical of another proposed varia-
tion of the second-generation laws
that seeks to extend human rights
principles to the environmental
realm and recognizes collective
human rights to a clean, healthy
and sustainable environment (pp.
8183). His pessimism flows from
the anthropocentric nature of these
laws, the hazards in invoking the
economic efficiency rationale and
the failure of a right to clean envi-
ronment prevailing over other
competing goals. Laitos, therefore,
urges us to move towards a third
generation of non-anthropocentric
resource nonuse laws which will
not be underpinned by the goal
of preserving nature for human
welfare. Rather the third-
generation laws will recognize that
natural resources and environmen-
tal values are a good in their own
right (p. 122).
Is the world likely to have third-
generation laws? Laitos gives a few
examples from South America
which suggest that third-generation
ecocentric laws may become a
reality in future (p. 128). To this list,
2
See, e.g., Notes, Finding Strategic Corpo-
rate Citizenship: A New Game Theoretic
View, 117:6 Harvard Law Review (2004),
1957, at 19601962, 19791980.
2013 John Wiley & Sons Ltd
one could add a relatively old but
not much-discussed provision of
the Indian constitution which
imposes a fundamental duty on
every citizen to protect and
improve the natural environment
including forests, lakes, rivers and
wild life, and to have compassion
for living creatures.3 One can argue
that such a duty presupposes a cor-
responding right on these natural
resources.
Conferring rights on nature under
Laitoss ecocentric approach will
entail imposing a corresponding
duty on humans to respect nonuse
interests of natural resources.
Grappling with the rightduty
interrelationship, the author
stresses that such a duty arises from
natures right rather than vice versa
(p. 207). While natures nonuse
right will not be absolute, it must be
considered and balanced with the
rights of humans (p. 127; see also
pp. 211212).
The right of nonuse may appear to
be only a negative right, but the
author indicates that this right has a
positive component as well (pp.
208209). I would have liked to see
a greater exploration of the positive
dimension of natures right of
nonuse, consistent with the think-
ing that the distinction between
negative and positive rights may be
illusory.4 For example, in order to
give full effect to natures right of
nonuse, it should entail, in appro-
priate circumstances, the right to
restoration and help from the
government.
While several laws and regulations
may already recognize the nonuse
right of resources, these regulatory
measures are in reality under-
pinned by an anthropocentric con-
3
Constitution of India 1950, Article 51A(g).
This provision was inserted by a constitu-
tional amendment in 1976.
4
See, e.g., H. Shue, Basic Rights: Subsis-
tence, Affluence and US Foreign Policy, 2nd
edn (Princeton University Press, 1996), 35.
Book Reviews
ception and thus seek to maximize
human welfare (pp. 192194). The
author rightly points out that:
Environmental pollution has . . .
been seen historically as primarily a
threat to humans, and not to the air,
water, or land that was being
contaminated (p. 193). The book
constantly reminds readers of the
limitations of this anthropocentric
approach. The reminders, while
valid, at times become repetitive.
Laitos not only makes a case for rec-
ognizing natures right of nonuse,
but also deals with practical impli-
cations inherent in recognizing such
right. Multiple questions arise in
this regard: What is the source
of natures right of nonuse? Can
non-living natural resources have
rights? Which entities of nature
have the capacity to bear such
rights? What will be contours of
the right of nonuse and its relation
with rights held by humans? How
can nature enforce its right, includ-
ing by bringing a legal action before
courts? Chapters 17 and 18 of the
book deal with these complex
questions, albeit very briefly and/or
without taking a position. For
instance, the author discusses
various options to implement the
right of a natural resource to bring a
lawsuit on its own behalf, but does
not indicate his preference for any
particular option (pp. 222226).
Each of the canvassed options
has different pros and cons, and
therefore all of them will not be
equally conducive to institutionalize
natures right of nonuse.
Overall, the book offers a thorough,
penetrative and well-supported
analysis of the failure of the anthro-
pocentric approach in protecting
nature and stresses the need for rec-
ognising a legal right of nonuse. It is
a must-read for anyone interested
in preserving the environment.
More than that, though, I hope that
this thought-provoking book will
inspire people (and companies)
responsible for polluting and
209
Book Reviews
degrading natural resources to
change their course.
Surya Deva
Associate Professor
School of Law
City University of Hong Kong
Sustainable Development.
Evaluation and
Policy-making: Theory,
Practise and Quality
Assurance, edited by
Anneke von Raggamby and
Frieder Rubik, published by
Edward Elgar, 2012, xxii +
313 pp., 85.00, hardback.
This book contains a collection of
fifteen chapters written by a number
of researchers involved in a Euro-
pean Network on Evaluating Poli-
cies for Sustainable Development
(EPOS). Funded by the German
Federal Ministry of Education and
Research as a social-ecological
research project, EPOS provided a
platform for discussing and devel-
oping approaches in policy evalua-
tion. Together with exchanging
information on evaluation methods,
approaches and experiences, EPOS
also considered ways to strengthen
social-ecological and integrative
aspects in evaluation methods with
the aim of influencing the practice of
policy evaluation. Twelve research
institutes from seven EU countries
collaborated in EPOS.
This book is the fourth volume in
the Evaluating Sustainable Devel-
opment series published by Edward
Elgar.1 The editors have structured
1 in his title: Should evaluation be
The other three books in the series are:
M. Sedlacko and A. Martinuzzi, Governance
by Evaluation for Sustainable Development
(Edward Elgar, 2012); C. George and C.
Kirkpatrick, Impact Assessment and Sustain-
able Development (Edward Elgar, 2007);
and U. Schubert and E. Strmer, Sustainable
Development in Europe (Edward Elgar,
2007). For a review of Governance by Evalu-
ation for Sustainable Development, see
2013 John Wiley & Sons Ltd
210
the book according to the different
stages of the policy cycle, highlight-
ing the different functions and roles
attributed to evaluations in these
stages. Part one deals with the per-
ception of sustainability problems
and contains three contributions.
Richard Stockmanns chapter is
about understanding sustainability
evaluation and its contribution to
policy making. His analysis of the
concept of sustainability briefly
addresses the dichotomy between
ecology and economy. However,
Stockmann does not rely on the
narrative of the three normative
dimensions of sustainable develop-
ment at the macro-level. He also
presents a multidimensional frame-
work for analyzing the sustainabil-
ity of a project or programme.
Stockmann interestingly links this
micro-level sustainability approach
to innovation features, although he
does not explore this linkage in
further detail. His presentation of
the micro-level sustainability is
appealing as it offers interesting
perspectives for managing sustain-
ability in the public sectors. Unfor-
tunately, however, the expectations
remain unfulfilled as the final parts
of the chapter merely repeat the
well-known theoretical positions
on the link between sustainability
evaluation and policy making.
Stockmanns observations and
reflections about the difficult rela-
tionship between (sustainability)
evaluators and policy makers do not
offer new insights. The contribution
ends with a rather pessimistic
message: Since the evaluation of
sustainability is even more difficult
to carry out than other evaluations,
even less political support can be
expected here than is otherwise the
case (p. 18).
In the second contribution the selec-
tion of sustainability indicators is
explored by two experts from the
Netherlands Environmental Assess-
J. De Mulder, Book Review, 21:3 Review
of European Community and International
Environmental Law (2012), 305.
RECIEL 22 (2) 2013
ment Agency: Frank Dietz and
Aldert Hanemaaijer. They argue
that the implementation of the
sustainable development concept
requires a thoughtful approach in
order to feed the political and soci-
etal debates with the appropriate
information. Choosing the most
useful indicators remains, therefore,
a real challenge and should be done
in a step-by-step approach that
should include the following steps:
(1) the selection of sustainability
issues or themes; (2) the determina-
tion of the long-term goals for each
theme; (3) the determination of the
available means; (4) the analysis of
the goals and means per theme; (5)
the definition of relevant indicators
for each domain; and (6) a final stage
dedicated to aggregation, review
and reflection. For each step the
authors offer explanations and addi-
tional information, but their com-
ments remain rather superficial
for example, their description of the
relationship between education and
employment. This chapter might
have been more useful if the pro-
posed approach had been illustrated
by applying it to a particular case.
Furthermore it is remarkable that
the work of the United Nations Com-
mission for Sustainable Develop-
ment on Indicators of Sustainable
Development Indicators (CSD Indi-
cators), as well as the activities
of the Joint United Nations
Economic Commission for Europe/
Organization for Economic
Co-operation and Development
(OECD)/Eurostat Task Force for
Measuring Sustainable Develop-
ment is not discussed in the
chapter.2
In the third chapter, Wolfgang
Meyer aims to answer the question
revisited for sustainable develop-
2
For CSD Indicators, see: <http://www.
uncsd2012.org/content/documents/218
Issues%20Brief%206%20-%20SDGs%20
and%20Indicators_Final%20Final%20clean
.pdf>. For the Joint UNECE/OECD/Eurostat
Task Force, see: <http://www.unece.org/
stats/documents/2012.10a.environ.html>.
RECIEL 22 (2) 2013
ment? At least, that is the expecta-
tion of the reader. The introductory
sentence of this contribution sets
the tone as, according to Meyer, at
the United Nations Framework
Convention on Climate Change con-
ference in Copenhagen in 2009 it
was decided to let a number of
small-island States drown. In this
way, Meyer seeks to illustrate the
limited impact of science and evalu-
ations on policy making. He pro-
ceeds with a brief overview of
current (as well as older) evaluation
theories. The different theories and
schools are clustered around par-
ticular perspectives and approaches
like control or legitimation. Start- impact assessment. Anyone who is
ing from the intergenerational con-
cerns of the Brundtland Report,
Meyer then highlights the German
background of the three pillars
concept in the classical notion of
sustainable development. He
argues that it can be viewed as a
utopian concept, but it can also
provide management guidance for
dealing with three dimensions of
social integration: horizontal (e.g.,
sectors, stakeholders), vertical (e.g.,
government and governance struc-
tures) and temporal (e.g., account-
ability and risk assessment). The
author presents sets of sustainabil-
ity criteria, but again one may ques-
tion their usefulness in practice.
Meyer concludes by highlighting
the non-existence of a well-
established scientific evaluation
research scene in Europe and the
absence of a market for sustainable
development evaluations. This con-
tribution seems to prove that the
academic ivory tower is not a
feature of the past.
Part two of the book contains four
chapters that explore the role of
evaluation and assessments in the
policy formulation phase. The
fourth chapter by Candice Stevens
presents the so-called SIMPLE
methodology for conducting sus-
tainability assessments. Stevens
also starts with a reference to the
Brundtland Report, as it offers her
the three necessary lenses for
2013 John Wiley & Sons Ltd
assessment: integration, intensity
and inclusiveness. These defining
characteristics cause difficulties
and limit the use of sustainability
assessments. Based on OECD work
and incorporating elements from
other assessment frameworks (such
as the European Commissions
Impact Assessment Guidelines),
Stevens has developed the SIMPLE
methodology, which contains
obvious and unavoidable elements
like the scoping phase, the identifi-
cation of stakeholders and mea-
surement of impacts. Working on
mitigating measures and alterna-
tives are also basic features of any
development.
somewhat familiar with impact
assessment will therefore wonder
what added value this contribution
offers.
The fifth contribution by Clive
George and Colin Kirkpatrick is
based on their sustainability evalu-
ations of trade policies for the Euro-
pean Commission. They highlight
the existence of two systems of
impact assessment for the Commis-
sion: the general impact assessment
procedures that cover all new EU
legislation and policy, including
trade policy; and the sustainability
impact assessments (SIA) under-
taken for all proposed (interna-
tional) trade agreements. The
authors introduce the methodolo-
gies of both systems as well as the
relationship between these distinct
forms of ex ante evaluation. The SIA
programme was initiated in 1999 in
response to civil society concerns
over the potential impacts of the
World Trade Organization negotia-
tions of that year, and afterwards
expanded to cover all EUs bilateral,
regional and multilateral trade
negotiations. SIAs are carried out
by independent organizations con-
tracted by the Directorate General
for Trade. The impact assessment
system was launched later as part of
the Better Regulation initiative,
but it never incorporated the SIAs.
Impact assessment reports are pre-
pared before trade negotiations
Book Reviews
start, while SIAs are carried out in
parallel with the negotiations. The
authors conclude that evidence is
lacking about a (strong) influence of
both on the EUs trade policy and
negotiations. According to George
and Kirkpatrick, this can be partly
explained by methodological diffi-
culties a common challenge for all
policy evaluation studies as it is
hard to express influence in terms
of measurable outcome indicators.
However, they also acknowledge
that the relative lack of influence of
impact assessments and SIAs
reflects the difficulty of using evalu-
ations to promote sustainable
The sixth chapter illustrates an
example of an integrated approach
in land use policy. Katharina
Helming, Katharina Diehl and
Ignacio de la Flor describe a frame-
work they developed for the com-
parative analysis of five selected
impact assessment tools that builds
on the familiar DPSIR (driving
forces, pressures, state, impact,
response) framework as (further)
developed by the European Envi-
ronmental Agency (after initial
OECD work, not referred to by the
authors3). They conclude that no
methodological framework for ex
ante assessment will ever manage
to comprehensively capture the
complex relationships between
changes in policy, changes in
land use, and resulting changes in
social, economic and environmental
systems. The authors have a clear
message: Any tool for impact
assessment must confront the
tension between the enormous
complexity of the systems and the
necessary simplifications that need
to be imposed to make the analysis
possible (p. 107). Once again, the
reader ends up with an ongoing
challenge: the transdisciplinary
3
OECD, Environmental Indicators 2001:
Towards Sustainable Development (OECD,
2001), found at: <http://www.oecd.org/site/
worldforum/33703867.pdf>.
211
Book Reviews
integration of the scientific and
decision-making domains.
In chapter seven, Stefan Bs-
chen deals with the politics of
(non-)knowledge. More particularly
he explores the problems of evalua-
tion, validity and legitimacy related
to the issues of non-knowledge that
create tensions and conflicts for
decision makers. Bschen analyzes
the issue of non-knowledge with
respect to several areas of risk
policy (e.g., food safety and chemi-
cals), referring mainly to the sensi-
tive case of genetically modified
organisms (GMOs). The chapter
starts with an interesting overview
and description of three evidential
cultures that emerge from the dif-
ferent epistemic practices and
object constructions within science.
A restrictive evidential culture is
found in the field of molecular
biology as space and time are
limited in a laboratory setting.
Ecology reflects a holistic evidential
culture as it needs to combine
a broad scope of knowledge
resources. Environmental medicine
is an illustration of an evaluative
evidential culture. Bschen next
discusses the perspective of politics
of knowledge as politics of time with
respect to the specific challenges
connected to the precautionary
principle. The debate surrounding
the politics of knowledge focuses on
the problem of controlling innova-
tive knowledge production with
respect to its expected harm.
Bschen concludes that an institu-
tional framework is necessary for
two reasons. First, it could avoid
imbalances in the discourse about
non-knowledge and risk; and
second, it could induce a pluralistic
debate about the forms and conse-
quences of using non-knowledge in
the discourse.
Part three of the book concerns
the policy implementation phase. In
chapter eight, Stephen White and
Jakub Koniecki provide a rather
elementary introduction to the
European Commissions impact
2013 John Wiley & Sons Ltd
212
assessment system. They mainly
present the outcomes of some
OECD and Commission surveys and
reports. However, more recent
information became available and it
seems that these authors have not
updated their contribution to an
EPOS conference in June 2009.4 It
is not surprising that both authors,
employed by the Commission, write
quite favourable about the impact
assessment system, but their final
remarks offer at least some albeit
very general hints for further
work and improvement.
The brief next chapter by Anne
Meuwese brings a more academic
and profound look at the Commis-
sions impact assessment system,
illustrated with reference to the
assessments for the thematic strat-
egy on air quality and for the
REACH Regulation on chemicals
and their safe use. The central issue
of this contribution is the question
of what the political use of regula-
tory impact assessments entails.
Meuwese argues that the use of
impact assessments in the Euro-
pean political process lacks trans-
parency. She acknowledges the
advantage of the impact assessment
as it structurally improved the
preparation of Commission propos-
als. However, the assessments also
created a gap between the prepara-
tory stage and the decision-making
stage. The main failure relates to the
absence of decision criteria for the
selection of the preferred policy
option. However, Meuwese also
mentions ongoing positive develop-
ments that seek to address this
failure, including executive summa-
ries, opinions by the Commissions
Impact Assessment Board, impact
fiches by the European Parliament
and similar summary documents by
national governments. However, all
these tools will not completely
4
See, e.g., European Court of Auditors,
Impact Assessments in the EU Institutions:
Do They Support Decision-making? (Euro-
pean Court of Auditors, 2010), found at:
<http://eca.europa.eu/portal/pls/portal/docs/
1/7912856.PDF>.
RECIEL 22 (2) 2013
prevent the political use of impact
assessments as shields or lobby
platforms. Therefore, Meuwese
concludes correctly that the main
and continuous challenge for
impact assessments is to incorpo-
rate such political information
to come to a more balanced final
decision.
In chapter ten, Bernd Hirschl, Anna
Neumann, Katharina Umpfenbach
and Timo Kaphengst discuss the
regulation of biofuels in Europe
through the Renewables Directive.
They examine whether the impact
assessment system failed in this
file, and analyze the role played by
science. This contribution makes
clear that the influence of research
on policy making was rather limited
for a number of reasons, such as the
incongruence between scientific
and political agendas and the diffi-
culty for policy makers to handle
scientific uncertainty. The analysis
of the different impact assessments
also revealed weaknesses, such as a
limited scientific basis and a lack of
technical capacity. The assessments
did not integrate the main issues of
the ongoing debate, and in general
within the broader range of sustain-
ability impacts, the ecological and
social criteria were under-
emphasized. In the decision-
making process some of these
scientific deficiencies were
addressed, but only as far as politi-
cal agreement could be reached.
The European Parliament wanted,
for example, operator reports on
social standards. As a compromise,
specifications and additional
reporting requirements were added
in the final version of the Renew-
ables Directive. In their conclusion
the authors state that a lack of data
and standardised methods must not
serve as the reason for disregarding
these effects as has been done
throughout the development of the
Renewables Directive (p. 168).
Part four contains only one contri-
bution, by Markku Lehtonen, on the
role of indicators in policy making.
RECIEL 22 (2) 2013
He presents a theoretical frame-
work that links the three broad roles
of expert knowledge in decision
making (instrumental, conceptual
and political) with the three domi-
nant conceptions of policy making
(rational-positivist, discursive-
interpretative, strategic). He pre-
sents indicator influence (other
than usefulness) as an organizing
concept that allows the analyst to
include important hidden or unin-
tended effects. He identifies three
levels of indicator influence (indi-
vidual, interpersonal and collective)
and four types of policy influence
(decisions and actions, new shared
understandings, increased or
decreased legitimacy, and profes-
sional networks). Furthermore, he
describes a range of factors that
shape the influence of indicators,
like factors (quality criteria, such as
validity) and their salience, credibil-
ity and legitimacy. Other factors
concern user and producer factors,
and policy factors. Lehtonen applies
this indicator framework to the
United Kingdom energy sector in
order to find out if the findings from
earlier knowledge use literature ronmental Assessment Agency. He
about the rather exceptional direct
use of expert knowledge in policy
making would be confirmed.
Indeed, Britains energy sector indi-
cators launched in the 2003 Energy
White Paper were revealed to be a
particular example of non-use,
because of, for instance, their
unclear purpose and the poor
awareness among key policy actors
of their existence.
The final part of this publication
deals with quality and evaluation.
After having analyzed existing
evaluation standards, Anneke von
Raggamby, Frieder Rubik, Doris
Knoblauch and Rebecca Stecker
present their case for quality
requirements. They state that the
current evaluation standards fail to
highlight specific issues like sus-
tainability. For that reason they
propose quality requirements
designed to check the level to which
sustainability is considered in
2013 John Wiley & Sons Ltd
evaluation studies. These require-
ments can be divided in two groups:
content-oriented (using a holistic
approach, focusing on a long-term
perspective and seeking distributive
justice) and process-oriented (refer-
ring to participation, information
and valuation). The approach they
construct is built on some academic
ideas and some practices (the
Commissions impact assessment
system; ISO 14040), but lacks refer-
ences to other, rather common
quality assurance frameworks like
the Common Assessment Frame-
work (CAF).5 The rather restrictive
search for quality requirements and
the focus on the quite limited evalu-
ation communities may be the
reason why the conclusions of this
chapter are rather disappointing
for example: The specific quality
requirements presented also pose a
number of open questions which
will require additional work in
order to use them in practice
(p. 235).
Chapter thirteen is written by Jan
Bakkes from the Netherlands Envi-
presents the Bellagio SusTainability
Assessment and Measurement
Principles (BellagioSTAMP). Devel-
oped in 1996, these principles
were updated in 2009. They offer
critical guidance to professionals
for compiling, reviewing and man-
aging sustainability assessments.
The principles cover eight topics:
guiding vision, essential consider-
ations, adequate scope, framework
and indicators, transparency, effec-
tive communication, broad partici-
pation, and continuity and capacity.
The principles should enhance
easily available and clear insights
5
The CAF is a result of cooperation among
the EU ministers responsible for public
administration. The CAF is an easy-to-use,
free tool to assist public-sector organizations
across Europe in using quality management
techniques to improve their performance. It is
especially designed for public sector organi-
zations, taking into account their characteris-
tics. See: <http://www.eipa.eu/en/topic/
show/&tid=191>.
Book Reviews
into the practice of sustainability
assessments in the following areas:
content, process, scope and impact.
Bakkes states that the original Bel-
lagio principles were successful, but
does not provide clear examples. In
his comments on the new version,
Bakkes mentions a lot of interna-
tional players in the assessment
field (OECD, UN Environment Pro-
gramme) including many famous
abbreviations (GEO [Global Envi-
ronmental Outlook], IPCC [Inter-
governmental Panel on Climate
Change]), but at the end the reader
remains unclear about the impacts
of BellagioSTAMP.
In chapter fourteen, Thomas
Widmer focuses on the quality of
sustainability evaluations. Starting
with general theoretical reflections
he offers historical background
about evaluation standards before
zooming in on the SEVAL (Swiss
Evaluation Society) standards. This
contribution mainly consists of a
presentation of a particular frame-
work, leaving the reader puzzled
about SEVALs applications.
In the last chapter Andr Mar-
tinuzzi presents the key results of
the project EASY-ECO (Evaluation
of Sustainability: European Confer-
ences and Training Courses , 2002
2010). This project included a series
of conferences and training courses
supported by the European Com-
mission. EASY-ECO was launched
by the Research Institute for Man-
aging Sustainability at the Vienna
University of Economics and Busi-
ness Administration, and involved
twelve European research institu-
tions. The project aimed at building
sustainability evaluation capacity
and facilitating the exchange of rel-
evant experiences. Martinuzzi finds
that the fields of work (e.g., impact
assessments, development coopera-
tion evaluations) in sustainable
development evaluation are broad
and share a common objective. But
they also have different implicit
understandings of sustainable
development and lack an exchange
213
Book Reviews
of experiences between communi-
ties and disciplines. The latter
should be addressed by the creation
of platforms where evaluators,
researchers, and policy makers
could exchange information on a
regular and informal basis. The
author finally announces an initia-
tive within the European Evaluation
Society, which has since material-
ized in the form of a thematic
working group on evaluting sustain-
able development, chaired by Mar-
tinuzzi himself. 6
The final impression left by the
book is rather disappointing. Given
the diversity of research back-
grounds and topics addressed, the
book could attract a broad range of
potential readers, but the quality of
the chapters differs and titles of
contributions are sometimes mis-
leading, as they may trigger too high
expectations. It is not always the
length of the contribution that
equals its quality. Most chapters
offer theoretical analyses, reflec-
tions and proposals, but only a few
(e.g., the one by Bschen) really
provided me with new insights;
most others left me with a lot of dj
vues. Nevertheless, readers with a
particular interest in the European
Commissions impact assessment
system might be satisfied as the
combined reading of the five chap-
ters dealing with this system and its
application to particular policy pro-
posals offer a valuable overview.
Others may not be that satisfied.
Furthermore, it remains rather
unclear to which extent the EPOS
objectives the framework of this
publication had an (effective)
impact on policy evaluation, if any.
Jan De Mulder
Department of Public International
Law
University of Ghent, Belgium
6
See: <http://www.europeanevaluation.org/
community/thematic-working-groups-twgs/
twg-general-statement.htm#development>.
2013 John Wiley & Sons Ltd
214
The External
Environmental Policy of
the European Union: EU
and International Law
Perspectives, edited by
Elisa Morgera, published by
Cambridge University Press,
2012, 417pp., 75.00,
hardback.
There are several reasons why this
book is a must-read for anyone
interested in the external dimen-
sion of European Union (EU)
environmental policy. It offers a
comprehensive analysis of its defin-
ing features and presents the main
changes following the reforms in
the Lisbon Treaty. The future chal-
lenges are analyzed in its insightful
contributions, which offer not only
views from the academic world
but also from practitioners in the
European Commission and the
United Kingdom Government. It
brings together complementary
analyses of the legal and political
complexities of this subject, in
which the EU as a green global actor
tries to set an example to other
countries, rooted in its internal
policy and promoted through its
external actions. The fact that its
legal and institutional frameworks
are in transition toward achieving
the full potential of the Lisbon
reforms adds a degree of complexity
to the expected difficulties that the
EU already endures as an interna-
tional organization with an exten-
sive range of competences.
Elisa Morgera, the editor, invited
the contributors to the book to a
workshop that took place in the
Europa Institute of the University of
Edinburgh School of Law in Febru-
ary 2011. She has organized their
contributions in three parts, driven
by different goals: the first part
aims to show the EU legal and insti-
tutional framework after Lisbon;
the second part provides insights
into EU practice; and the third
part the EU and international
RECIEL 22 (2) 2013
environmental law unveils the
intricacies of the influence of inter-
national environmental law on the
legal articulation of EU policy.
The first part opens with a study by
Hans Vedder, who analyzes the for-
malities and substance of EU exter-
nal environmental competence (p.
11). He examines the role of the new
(Lisbon) provisions in shaping EU
leadership vis--vis its Member
States and the global community,
exploring the possibilities in the
field of climate change. The insight-
ful study of Marise Cremona con-
siders coherence and consistency
as new requirements to articulate
external environmental policy at
different levels. Through case
studies of EU practice and case law
she illustrates how environmental
policy objectives may conflict with
other EU objectives as well as those
of Member States. The post-Lisbon
institutions the High Representa-
tive of the Union for Foreign Affairs
and Security Policy and the Euro-
pean External Action Service and
their role in EU external environ-
mental policy are examined by Chad
Damro. He casts light on the rela-
tionship and divisions of labour that
are growing between the institu-
tions and Member States in these
early stages of their development.
Matthias Buck and Jolyon Thomson
introduce us to the main issues
that are currently being discussed
by the EU institutions, presenting
the positions of the Commission
as well as the Council and the
Member States. Their contributions
are extremely valuable not just
for international environmental
lawyers and scholars, but also for
those interested in EU external rela-
tions post-Lisbon generally. The
topic of international representa-
tion of the EU is now one of the
most controversial issues in the
field of external relations, and
the environment has become the
battlefield where the first skir-
mishes have been fought. Despite
the fact that there is no chapter
dedicated to mixed agreements in
RECIEL 22 (2) 2013
this part, its chapters deal with
them as a cross-cutting issue.
The second part offers a thorough
investigation of EU practice
from two perspectives: the first
approaches the environment as a
requirement and a transversal issue
integrated into different external
policies; the second tackles these
instrumental policies as a means to
achieve a goal, the toolbox at the
service of the external dimension of
the environmental policy. These
studies examine a wide range of
issue areas in which the EU as a
global actor is gaining or losing
power due to different factors. The
issue area of climate change is ana-
lyzed by Kati Kulovesi, who shows
how the limited results obtained by
the EU at the international level
seem to be moving it away from
cooperative efforts towards the
possibility of resorting to unilateral
measures. Annalisa Savaresi,
focusing on the issue area of forests,
studies a case in which the lack of
international agreements has led
the EU to propose the Forest
Law Enforcement, Governance
and Trade (FLEGT) initiative to
promote alternative voluntary part-
nership agreements with producer
countries, which may in turn trigger
the development of international
law. Rok Z velc drawing on his
experience with the European Com-
mission analyzes environmental
integration in EU trade policy
through its main instruments: the
evolved formula of the Generalized
System of Preferences, the Sustain-
ability Impact Assessments of trade
agreements, and the most promis-
ing free trade agreements. Gracia
Marin Duran critically examines the
topic of environmental integration
in EU development cooperation,
questioning whether EU action
responds to international commit-
ments or to its own policy priorities.
She considers that the instruments
have shifted toward a shared
responsibility with aid recipients in
terms of choosing priorities and
goals, but that too many shortcom-
2013 John Wiley & Sons Ltd
ings still hinder effective action.
Elisa Morgera chooses the trajec-
tory of EU biodiversity cooperation
as an example of the EUs contribu-
tion to environmental multilateral-
ism. She highlights the EUs
attempt to build international con-
sensus from the bottom up in the
absence of multilateral environ-
mental agreements (p. 258),
relying on its domestic results to set
an example for other actors.
The third part draws attention to
new and old issues regarding the
relationship between EU and inter-
national environmental law. I had
hoped this part would examine the
seminal influence of international
environmental law on EU policy,
but unfortunately the book misses
this opportunity. Daniel Augen-
stein has a possibly too committed
approach to the human rights
dimension of environmental pro-
tection in EU external relations,
exploring the extraterritorial
effects of regulatory regimes such
as FLEGT. He also considers the
triggering effects that Council of
Europe case law after Lisbon can
have for human rights protection
in this field. The EU and the com-
pliance mechanisms of multilateral
environmental agreements are
studied in a very interesting case
study by Antonino Al, who The intersection of international
explores the possibilities offered
by the Aarhus Convention. Andr
Nollkaemper elegantly introduces
us to the difficult subject of joint
responsibility between the EU
and Member States for non-
performance of obligations under
multilateral environmental agree-
ments. In this framework, he
guides the reader in the search for
a proper response to the jointness
of the external conduct of the EU
and the Member States (p. 305),
concluding that responsibility
needs to follow power. The contro-
versial aspects of the interaction
between international and EU law
in environmental matters are dealt
with by Riccardo Pavoni. He exam-
ines the direct effect of multilateral
Book Reviews
environmental agreements and
Member States unilateral mea-
sures, offering a very interesting
examination of EU practice and
case law.
Elisa Morgeras thoughtful conclu-
sions invite us to delve deeper
into some of the most interesting
areas touched upon by this book
which, with time, will probably
become a reference for the study of
this transitional and uncertain
period of EU external environmen-
tal policy.
Teresa Fajardo del Castillo
Tenured Lecturer of Public
International Law and
International Relations
Faculty of Law, University
of Granada
The WTO Dispute
Settlement System:
Challenges of the
Environment, Legitimacy
and Fragmentation, by
Kati Kulovesi, published by
Kluwer Law International,
2011, 295pp., US$176.00,
hardback.
trade and environmental law has
produced significant challenges
for the World Trade Organization
(WTO) dispute settlement system
and concern among environmental-
ists. In her book, Kati Kulovesi
provides a valuable contribution,
analyzing the interplay of these two
areas of international law, describ-
ing background, cases and future
prospects.
Noting that international trade law
and international environmental
law have developed essentially in
clinical isolation from each other,
Kulovesi provides insights on why
integration has not occurred and
the consequences thereof. She
argues that trade and environment
215
Book Reviews
tensions have generated critical
challenges to the legitimacy of the
WTO dispute settlement system.
Highlighting that there has been
much academic focus on how the
WTO should address environmen-
tal issues and considerable incon-
sistency in how it has done so in
practice, Kulovesi analyzes the con-
sequences, addressing how they
have impacted the WTO and what
can be done about it.
The book is divided in four parts.
Part I introduces readers to the
topic and lays out the structure of
the book. Part II provides back-
ground, introducing the challenges
of the environment and legitimacy
in the WTO dispute settlement
system. Part III analyzes relevant
cases, examining the fragmented
nature of both WTO and interna-
tional environmental law, and
reviews the formal and procedural
dimensions of legitimacy. Part IV
provides conclusions.
Kulovesi examines the issues in
detail. Part I describes the chal-
lenges of the environment, legiti-
macy and fragmentation in the
WTO dispute settlement system.
Part II then provides a more
in-depth review of legitimacy con-
cerns, focusing on the definition
and function of legitimacy for inter-
national law and institutions, the
theory behind it and how it applies
to the WTO. Describing the WTO
Appellate Body as the most power-
ful international court, she exam-
ines its jurisdiction and authority
to apply international law outside
the WTO agreements and how it
responds to the fragmentation of
international law. With the increas-
ingly specialized nature of interna-
tional law and its fragmentation
into sub-systems, she highlights
the uncoordinated and conflicting
results and tensions that have
emerged and the resulting wavering
legitimacy of fragmented interna-
tional regimes.
Generally, she opines that inter-
national law has been viewed in
2013 John Wiley & Sons Ltd
216
the past as legitimate because of
its narrow scope and absence of
binding compliance tools. However,
she states that international law has
expanded and become more intru-
sive, with the private sector and
even individuals now within its
reach. With its lack of democratic
governance and accountability,
Kulovesi describes calls for a more
person-based or human rights-
based approach to international
law.
Kulovesi discusses why legitimacy is
important for the WTO and other
international institutions. She notes
critiques of the international trade
liberalization ideology behind the
WTO and its institutional aspects.
She also raises issues of transpar-
ency, accountability and democratic
deficit. Partly due to the closed
and secretive nature of trade
negotiations and dispute settlement
processes, she says there is a wide-
spread lack of public understanding
of the WTO.
Looking at the challenge of environ-
mental linkages, Kulovesi notes that
in many respects the environment
has become a mainstream trade
issue that is reflected in references
to sustainable development in the
WTO agreements and the creation
of the WTO Committee on Trade
and Environment. However, she
still stresses that the WTO dispute
settlement system has not devel-
oped a coherent or consistent
approach to environmental issues.
The author examines the manner
in which environmental disputes
have been adjudicated by the WTO
dispute settlement system, review-
ing the process and outcomes in
several WTO disputes. She finds
that although the organization has
made some integrative efforts such
as in the Shrimp-Turtle case, its
jurisprudence is not consistent and
it fails to provide a solid basis for
constructive interaction between
the international trade and envi-
ronmental regimes (pp. 8182).
RECIEL 22 (2) 2013
Kulovesi notes that public reac-
tions to some of these decisions
have caused problems, particularly
where the procedure used has not
been seen as open or fair.
Focusing on how the WTO dispute
settlement system has applied non-
WTO international law and whether
non-WTO law should be relied on as
binding law, factual evidence or not
all by the WTO, she reviews several
WTO cases. She discusses the lack
of a clear role for international envi-
ronmental law in the WTO system,
reviewing academic literature on
both sides of the debate regarding
whether the organization has the
competence or authority to apply
non-WTO rules. She concludes that
international environmental law
should be placed on a more equal
footing with WTO norms (pp. 141
142, 265).
Tying all the pieces together and
analyzing the situation in Part III,
Kulovesi paints a picture of incon-
sistency in application and conflict
with other areas of international
law. She provides a detailed analysis
of the role of international environ-
mental law in the Shrimp-Turtle,
Beef Hormones and Biotech cases,
as well as the outcomes and impli-
cations of these cases. She examines
both the formal and procedural
aspects of legitimacy, discussing
the limits of judicial function, the
danger of WTO decisions interfer-
ing with national political processes
and decisions, and the procedural
rights challenges that have arisen in
terms of calls for greater transpar-
ency, public access to information
and public participation in WTO
dispute settlement processes.
Kulovesi queries whether some of
the WTOs legitimacy challenges
could be remedied by a consistent
and systematic approach to interna-
tional environmental norms. She
also stresses that the Appellate
Body should elaborate on the
basis for its findings regarding
the relevance and legal status of
RECIEL 22 (2) 2013
environmental law in WTO pro-
ceedings. She argues that better
application of international envi-
ronmental law would avoid frag-
mentation and provide greater
consistency. On procedural issues,
she states that WTO legitimacy
would be improved if public access
to written submissions were
allowed, hearings were made public
and WTO documents were made
more easily understandable for the
public.
To illustrate her points, Kulovesi
uses the example of climate change,
looking at the specialized legal
regime for climate change and areas
of possible conflict with WTO law.
These include carbon market tools,
such as international emissions
trading, as well as mitigation poli-
cies and measures, and possible
carbon-related border tax adjust-
ments. Kulovesi finds that deter-
mining such a climate change
2013 John Wiley & Sons Ltd
dispute only from a trade perspec-
tive would considerably undermine
other areas of international law and
further significantly challenge the
legitimacy and capacity of the WTO
and its dispute settlement system.
The author wraps up her findings in
Part IV, noting the need to strike
balances between trade and envi-
ronment. She emphasizes again
that the WTO dispute settlement
system has yet to develop a consis-
tent, coherent and predictable
approach to international environ-
mental norms and engage in a con-
structive interaction with the field
(p. 261). She concludes that interna-
tional regimes are complex and
their experts are blinded by their
internal logic. She stresses that:
At the end of the day, the WTO dispute
settlement system is not equipped to
deal with all the problems relating to
the increasing specialization within
Book Reviews
international law indeed its frag-
mentation. While in the international
institutional reality, the WTO dispute
settlement system is uniquely power-
ful, the logical conclusion should not
be that international trade law should
become uniquely powerful in com-
parison with other areas of interna-
tional law. (p. 266)
The book is well structured, provid-
ing comprehensive background to
the issues and taking readers step-
by-step to her conclusions. She
takes the complex strands of legiti-
macy theory, international trade
law and international environmen-
tal law, introduces them to the
reader, describes how they inter-
sect, identifies the challenges they
present and formulates ideas on
ways forward.
Hugh S. Wilkins
Adjunct Professor
Osgoode Hall Law School
217
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