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Book review: Environmental law and diplomacy by Donald Kaniaru

As an insider, Kaniaru documents, through a collection of articles and speeches, the birth and development of IEL in the first 50 years. Uniquely, the author as a delegate, negotiator, drafter, implementer, capacity builder, judicial officer, and observer of IEL dives into negotiations of treaties, the seat of United Nations Environmental Programme (UNEP), internal workings of the UN system and implementation of multilateral environmental agreements (MEAs) in political, historical and social-economic contexts. The text also gives an important firsthand experience of global North-South environmental approaches contestations as exhibited in environmental treaties negotiations and implementation. This book will be useful to those currently engaged in negotiations of modern-day world environmental problems such as climate change and the ban of plastics.

More importantly for our context, the book discusses the African countries’ experiences in negotiating, interpreting and implementing MEAs in their “post-colonial” awareness, a perspective that has long been missing in many IEL texts. It must be noted, however, that most publications in this text document the author’s experience and views while working at UNEP. Thus, the book will be helpful to persons seeking an overview of IEL development as told in a “diplomatic tone”. It may, therefore, disappoint critics of world order who would wish to have a radical deep dive into heightened negotiations unveiling the often state interest and system-biased hard-lining positions often taken in these negotiations.  

In part one, the author gives a historical development of the origins of IEL and the birth of UNEP. In this part, the author in describing his personal experience on the politics of setting up UNEP in Kenya, the conceptualization of state negotiating blocks demonstrating the often-missed aspect, that international law operates in argumentative order full of contestations. We learn for instance that setting up UNEP at Nairobi, the first UN headquarters in a third-world country, came after Nairobi defeated developed world contestants, engaged in diplomatic negotiations with Delhi and the strategic defeat of notable developed world efforts to postpone the negotiations to the 28th UN assembly in an effort to defeat location of UNEP offices in Nairobi. This contestation is even clear in agenda setting for various conferences and meetings held under the auspices of UNEP. This unique contribution from an active participant is an important addition to existing IEL texts.

Still, on contestations, the author skillfully paints the role of state parties and state interests in negotiations. While the role of states in these sessions is clear, one strikingly missing participant in this process is the private entities/non-state actors. While understandably, UNEP as an intergovernmental organization is a states’ organizations, non-state actors have come to occupy an important space in IEL. In fact, there is fear among skeptics of international law that the UN is currently under siege by private entities seeking to penetrate their views into the UN system. An example of their increased role would be in climate change COPs 26 and 27 where the highest number of lobbyists from private entities (fossil fuel companies) appearing as delegates were recorded. It would be very insightful if the book would in detail disclose how UNEP engages with non-state actors, the politics of these engagements, and how to relate with and successfully engage civil society groups and non-state delegations.

In the middle chapters of the book, Kaniaru shares his experiences in negotiating treaties and assisting various regions to come up with regional environmental instruments and countries with national legislation. The book rightly characterizes UNEP as a leader that assisted “developing and transitioning states” draft national environmental legislations. Further, UNEP’s soft law-making role is underscored. Those seeking to study the setting up, role and impact of UN systems in the third world would find the book a great deal. On page 173, while discussing the importance of UNEP, the author states that “prior to the establishment of UNEP, international efforts toward the management of environmental issues were sporadic, ineffectual, and limited mainly to the conservation of species considered important to humans”. While these assertions are correct, the author fails to acknowledge that these efforts have also led to “fragmentation of environmental laws” resulting to treaties with potentially conflict obligations. In the ever-increasing integration of environment and other aspects of life such as trade, human rights and security, Kaniaru’s comments on making laws in such an era would be very useful.

In Part four, the author under the theme “Africa and Environmental Law and Diplomacy” shares his experience as relates to Africa and environmental diplomacy. The author discusses the challenges faced by African countries in the implementation of global environmental treaties which often lack or have inadequate African contexts in their formulations. Readers interested in “Africanizing” environmental laws will find this part of the book very insightful. An interesting view, however, that emerges from this part relates to sustainable development and foreign investments in Africa. In this regard, the author gives a historical evolution of sustainable development in pre-colonial Africa, colonial Africa and de-colonized Africa in the context of foreign investments depicting governments as the single most institutions for ensuring foreign investments comply with domestic laws relating to sustainable development. This view is sound. However, it’s now a well-acknowledged fact that foreign investments, especially those negotiated under the bilateral/mini-lateralism agreements carry with them serious limitations to sustainable development. It is doubtful that the author is unaware of these facts, particularly relating to African countries. The author should consider discussing whether and how UNEP engages these states to achieve consistent results across regions and produce sustainable laws.

Kaniaru also in part four illuminates, through African countries’ experiences how governments handle corporate accountability in environmental spheres. This is an important aspect today as governments seek to hold corporates, particularly multinationals’ accountable. Rightly so, the book takes the view that corporate leaders must actively engage with governments and governments must empower people through access to information, courts and attendant enablers. Kaniaru, however, acknowledges that corporate corruption exists and hampers implementation. While these points are important, the book presents the public as rather “helpless” or passive participants in holding corporates accountable and are only left to act through governmental actions such as information availability, access to information and access to courts. This view and which has dominated environmental laws enforcement has not led to much. In fact, environmental lawyers have been skeptical as a lot of time is wasted requesting to access information from government institutions and prosecuting corporations. Worse still is the time taken to process suits through courts.

Relatedly, the book appears to advocate for “voluntary” and “state implementation” backed industry compliance with environmental policies. In this regard, corporate social responsibility or corporate accountability through the implementation of laws is advocated for. Recently, people have gained a more prominent role, particularly in sustainable investing.  Instead of waiting for government action, it is becoming increasingly effective to use the power of refusing to engage with and buy from companies that do not disclose information, not for suing them, but for making informed investment decisions. This serves as a more effective way of holding corporations accountable.

In the last chapters of the text, the book gives an account of the early steps of UNEP and the particular role of the author in engaging the judiciary in environmental conservation discussions and training. We learn for instance that UNEP had to be innovative in labeling environmental training for judges as a “symposium” rather than training for fear of low receptivity as judges are considered “experts” in law. These among other skillful tactics saw judges embrace the training world over. The author also offers useful lessons on running effective courts from his experiences as a judicial officer in the environmental tribunal. In all, he places the judiciary as an important player in environmental protection. I agree with Kaniaru that the judiciary remains an important player in environmental protection so are the legal professionals, prosecutors and civil society members in this journey. It remains to be seen how the judiciary will assist the world in tackling climate change where every other institution seems to have failed.

The author is an environmental law lecturer at Strathmore Law School. He can be reached at jkaguru@strathmore.edu

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