BOOK REVIEWS
CHRONIQUE BIBLIOGRAPHIQUE
David Freestone and Ton IJlstra, eds, The North Sea: Perspectives on
Regional Environmental Co-operation. London: Graham & Trotman/
Martinus Nijhoff, 1990 Pp. xxi, 356 [$170.00]. Reviewed by Donat
Pharand*
The North Sea: Perspectives on Regional Envh’onmental Co-operation’ is
a special issue of the International Journal of Estuarine and Coastal Law and
consists of some twenty-six contributions by thirty-two authors. More than half
of the contributors are legal advisers or professors of international law (includ-
ing the editors) and the rest are specialists in the fields of political science, geog-
raphy, biology, geology, hydrography and chemistry. This great variety of
expertise reflects the view of the editors “that what is needed is an holistic view
of the protection of the quality of the North Sea environment.”‘ Until this book
was put together, the bulk of the literature on the North Sea environment in the
last decade was scientific rather than legal or political. This is evident from the
thirteen-page bibliography
In spite of the global and regional conventions for the protection of the
marine environment and the decrease in the quantity of polluting substances
entering the North Sea, it is still degrading. The Oslo Convention on the Preven-
tion of Marine Pollution by Dumping from Ships and Aircraft of 1971, the Lon-
don Convention on the Prevention of Marine Pollution by the Dumping of Waste
and Other Matter of 1972′ and the Paris Convention for the Prevention of
Marine Pollution fiom Land-Based Sources of 1974s have not proved sufficient
* Q.C., S.J.D., F.R.S.C., Emeritus Professor, University of Ottawa and Consultant on Interna-
tional Law, Law of the Sea and Artic Affairs.
McGill Law Journal 1991
Revue de droit de McGill
1D. Freestone & T. IJlstra, eds, The North Sea: Perspectives on Regional Environmental
Co-operation (London: Graham & Trotnam / Martinus Nijhoff, 1990) [hereinafter The North Sea].
21bid. at 331.
31bid. at 332.
40slo Convention on the Prevention of Marine Pollution by Dumping from Ships and Aircraft,
1971, UKTS 119 (1975), Cmnd. 6228; 11 ILM 262 (1972) [hereinafter Oslo Convention]; and,
London Convention on the Prevention of Marine Pollution by the Dumping of Waste and Other
Matter, 1972, UKTS 43 (1976) Cmnd. 6486; 1046 UNTS 120; 11 ILM 1291 (1972) [hereinafter
London Convention].
5Paris Convention for the Prevention of Marine Pollution from Land-Based Sources, 1974,
UKTS (1978), Cmnd. 7251; 13 ILM 352 (1974) [hereinafter Paris Convention].
1991]
BOOK REVIEWS
to protect the North Sea adequately. However, the Oslo Commission on dump-
ing and the Paris Commission on land-based pollution did provide forums for
the development of co-operation among the coastal States of the North-East
Atlantic. Additional political impetus was nonetheless needed to make further
progress and the West German Government took the initiative, in 1983, to invite
the other seven coastal States of the North Sea to an International Conference
on the Protection of the North Sea6 (I.N.S.C.) at the ministerial level. The first
Conference took place in Bremen in 1984, a second one was held in London in
1987 and a third was held in The Hague in March 1991.
This book studies the accomplishments of the two Conferences already
held at the time of writing and addresses the problems yet to be solved. The
twenty-six contributions, each one forming the subject of a chapter, are logically
grouped into three parts, the headings of which appropriately indicating the
main focus of each part. Those headings are: (1) the International North Sea
Conferences in Perspective; (2) Perspectives on Existing Frameworks; and (3)
Outstanding Issues. The book ends with conclusions and comments by the two
editors.
It is, of course, impossible for the present review to cover in detail all of
the contributions, some of which are highly technical in nature, but an attempt
will be made to give the readers of this journal an idea of the nature and scope
of the topics discussed. This review will also comment occasionally on the
approaches followed by the authors and on the validity of the theses put
forward.
Part 1 “The International North Sea Conferences in Perspective”
Part 1 consists of seven chapters7 analyzing three basic issues: the legal
nature of the Conferences and of the resulting Declarations; the national imple-
mentation of the Declarations; and, the means to enhance scientific knowledge
of the North Sea. Although all of the contributions are well researched and
clearly presented, most of them would have been considerably easier to under-
stand if the two Declarations being discussed had been reproduced as an annex.
6Supra, note 1 at 5.
7P. Ehlers, “The History of the International North Sea Conferences” in The North Sea, supra,
note 1, 3; Y. van der Mensbrugghe, “Legal Status of International North Sea Conference Decla-
rations” in The North Sea, supra, note 1, 15; L. Gtindling, “The Status in International Law of the
Principle of Precautionary Action” in The North Sea, supra, note 1, 23; F. de Jong, “The Second
International North Sea Conference on the Protection of the North Sea: National Implementation”
in The North Sea, supra, note 1, 31; J. Gibson & R.R. Churchill, “Problems of Implementation of
the North Sea Declarations: A Case Study of the United Kingdom” in The North Sea, supra, note
1, 47; N.V. Jones, “The North Sea Environment: Features and Problems” in The North Sea, supra,
note 1, 66; and, P. Reid, “The Work of the North Sea Task Force” in The North Sea, supra, note
1, 80.
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This is particularly the case for the first three contributions. Fortunately, the bib-
liography contains the necessary references to find the Declarations.
On the nature and scope of the Conferences, it must first be mentioned that
they group the Ministers responsible for the protection of the North Sea from
the eight countries concerned8 as well as the Member of the Commission of the
European Communities responsible for the protection of the environment. Min-
isterial Declarations were agreed upon after each conference and it is necessary
to state briefly the essence of the last Declaration to better understand the pres-
ent review. The London Declaration of 1987’ decided to “reaffirm the principles
of the use of Environmental Quality Objectives and Uniform Emission Stand-
ards approaches set out in the Breman Declaration.”‘” These basic approaches
were four in number and have continued to guide the North Sea countries. They
are: emissions should normally be limited at source; such limitations should be
imposed for safety reasons, if the state of knowledge is insufficient; a periodical
review should be made of emission standards and quality objectives; and, there
should be adequate environmental monitoring for both approaches. The idea of
combining these two approaches, based on emission standards and environmen-
tal quality, is that a more “precautionary approach to dangerous substance will
be established.”” For instance, it is agreed to reduce emission of polluting sub-
stances “even where there is no scientific evidence to prove a causal link
between emission and effects (“the principle of precautionary action”).”‘ 2 The
London Declaration also provides for participating States to take measures
relating to inputs of nutrients via the atmosphere, dumping and incineration at
sea, pollution from ships and offshore installations, discharges and disposal of
radioactive wastes, airborne surveillance and enhancement of scientific
knowledge.
Because of the important substantive content and far reaching conse-
quences of those Ministerial Declarations, the question naturally arises as to
their legal status. Yves van der Mensbrugghe devotes all of his chapter’3 to this
issue and concludes that clearly “they are not legally binding instruments,”‘ 4
while admitting that
8Belgium, Denmark, France, Federal Republic of Germany, Netherlands, Norway, Sweden and
United Kingdom.
9Second International Conference on the Protection of the North Sea, London, 24-25 November
1987, Ministerial Declaration, issued by the Department of the Environment of the United King-
dom, April 1988 [hereinafter London Declaration].
‘ibid., art. xv.
“Ibid., art. xv.
121bid., art. xvi.
3Van der Mensbrugghe, supra, note 7.
1
’41bid. at 21.
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1113
they certainly have a legal significance in so far as they announce an action which
will (it is hoped) be cast in legal terms, later and elsewhere, at the appropriate lev-
els, international, European or national.’ 5
This reviewer agrees with the conclusion. In the end, it is a question of finding
the necessary intention on the part of the participating States to be legally
bound. In the case of the above Declarations, the language used throughout
points to a political commitment to act in order to attain certain objectives.
With this general issue of the legal nature of the Declarations arises a more
specific question as to the legal status of the so-called “principle of precaution-
ary action” mentioned in the Declarations. This latter question is studied by
Lothar Giindling, 6 who tells us that “[t]he principle of precautionary action
played a considerable role in the debate on the appropriate protection policy for
the North Sea.”‘7 He states that recognition of this principle was “a major nego-
tiation goal of the Federal Republic of Germany,”‘” where it is considered “one
of the most important principles of environmental policy.”‘ 9 According to Giin-
dling, this principle is a
stringent form of preventive environmental policy. It is more than repair of dam-
age or prevention of risks … 20
This means that precautionary action must be taken to ensure that the loading
capacity of the environment is not exhausted, and it also requires action even if
risks are not yet certain but only probable, or, even less, not excluded. 21
Any Canadian interested in the protection of the fragile marine environment of
the Arctic cannot help but be in favour of such a precautionary approach to
avoid irreparable harm to that environment. Giindling concludes, however, that
[b]oth the status and the content of the principle of precautionary action are still
surrounded by uncertainties. Therefore, it is essential that the North Sea states
reach agreement on this basic principle of environmental policy.22
This view of the necessity to further define the precautionary principle is
shared by Folkert de Jong,’ a biologist, who addresses the problem of national
implementation of the London Declaration and states that it is “more a reduction
principle than a precaution principle.”’24 He believes that it has been so poorly
defined that “the North Sea Conferences have not really altered the existing pol-
“5lbid.
‘ 6Giindling, supra, note 7.
17Ibid.
“8Ibid.
‘ 91bid.
20Ibid. at 26.
211bid.
221bid. at 30.
23De Jong, supra, note 7.
24Ibid. at 44.
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McGILL LAW JOURNAL
[Vol. 36
icies.” De Jong reviews the implementation procedures and measures of all of
the North Sea countries, except France for which no information was available,
as well as of the European Community. His general conclusion is that “[i]n most
cases only plans have been produced by Governments, often based on rough
estimates. ‘ More specifically, with respect to “dangerous substances,”’27 he
believes that “[g]ovemments will … have to negotiate with industries to achieve
the necessary reduction figures,”2 because of the non-legally binding character
of the London Declaration. He anticipates that
despite a certain speeding up of implementation and a possible improvement of
enforcement … the action reduction of the pollution of fresh and salt water systems
will be totally insufficient. 29
He suggests, as a step in the right direction, that the Third Conference in the
Hague “set the basis for a fundamental policy change by clearly defining and
elaborating the Precautionary Principle.”3
The problems of implementation of the North Sea Declarations with
respect to the United Kingdom specifically, are addressed by John Gibson and
Robin R. Churchill3 of the Cardiff Law School. They concentrate their attention
on two areas: dangerous substances and dumping. They point out that although
the London Declaration provides for emission standards to be based on the “best
available technology,”32 the United Kingdom intends to use the standard of “best
available technology not entailing excessive cost.”33 As for dumping, they con-
clude that “it is not yet possible to arrive at any final judgement as to how far
the United Kingdom has complied with the London Declaration’s provisions on
dumping.”‘
The next chapter consists of a detailed scientific description of the North
Sea environment, its features and problems, by Neville Jones,3” a biologist at the
University of Hull. He states that “the North Sea is a complicated system of
interacting processes which is being affected by man at both the local and large-
scale levels”36 and concludes that “the system is showing signs of stress.”37
25Ibid. at 46.
261bid. at 43.
27Ibid. at 44.
28lbid.
29Ibid. at 45-46.
30lbid. at 46.
31Gibson & Churchill, supra, note 7.
321bid. at 55.
331bid.
34Ibid. at 64.
35 Jones, supra, note 7.
36Ibid. at 78.
37Ibid. at 79.
1991]
BOOK REVIEWS
1115
The last chapter of Part 1, by Philip Reid” of the U.K.’s Department of the
Environment, is on “the Work of the North Sea Task Force” recommended in
the London Declaration.39 The purpose of the Task Force is to organize a
co-ordinated program of research and monitoring of the North Sea and it is
composed of delegates from the eight coastal States, the Commission of the
European Community, the International Council for the Exploration of the Seas,
the Oslo Commission and the Paris Commission. The Task Force will prepare
a new Quality Status Report, using data based on internationally comparable
methodologies, and will address the related questions of monitoring, modelling
and research. At the moment, each country has its own North Sea program with
its own scientific emphases and approaches. This Task Force “provides a means
to ensure the eventual harmonization and co-ordination of these different
approaches.”4
It is obvious from this first part of the book that the North Sea Conferences
have been successful enough to envisage the establishment of a more formal
system of co-operation. But, first, it is important to determine what relevant
institutions exist already. This is the object of the second part.
Part 2 “Perspectives on Existing Frameworks”
Part 2 examines institutions and legal instruments which could perhaps
serve as models or points of departure for a new or re-modelled mechanism for
the protection of the North Sea. This Part consists of some eleven chapters,4
reviewing the present role of six institutions and programs and studying five
major problems.
38Reid, supra, note 7.
39Art. xv.
40Reid, supra, note 7.
41P. Hayward, “The Oslo and Paris Commissions” in The North Sea, supra, note 1, 91; J.-L. Prat,
“The Role and Activities of the European Communities in the Protection and the Preservation of
the Marine Environment of the North Sea” in The North Sea, supra, note 1, 101; J. Wettestad &
S. Andresen, “The Rhine Action Programme: A Turning Point in the Protection of the North Sea?”
in The North Sea, supra, note 1, 123; S. Boehmer-Christiansen, “Environmental Quality Objectives
versus Uniform Emission Standards” in The North Sea, supra, note 1, 139; I.J. Vennekens-
Capkova, “Dangerous Substances: Chameleons in Water Policy” in The North Sea, supra, note 1,
150; V. Sebek, “The North Sea and the Concept of Special Areas” in The North Sea, supra, note
1, 157; J.F. Kemp & A.F.M. De Bievre, “A Regional Vessel Traffic Service for the North Sea” in
The North Sea, supra, note 1, 167; G. Kasoulides, “Paris Memorandum of Understanding: A
Regional Regime of Enforcement” in The North Sea, supra, note 1, 180; E. Somers, “The Role
of the Courts in the Enforcement of Environmental Rules” in The North Sea, supra, note 1, 193;
and, K. van der Zwiep, “The Wadden Sea: A Yardstick for a Clean North Sea” in The North Sea,
supra, note 1, 201.
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The institutions and programs are: the Oslo and Paris Commissions;4 2 the
Commission of the European Community;43 the Rhine Action Programme;44 the
Port State Control Committee;45 the regular court system of each country;4 6 and,
the Wadden Sea program.47 The definite impression gained from these studies
is that an institution specifically for the North Sea is desirable, in spite of the
necessity for continued and close co-operation with existing mechanisms. The
role of the Oslo and Paris Commissions is limited to the control of dumping at
sea and their membership is wider, of course, than the North Sea States. The
Commission of the European Community plays a very important role in the pro-
tection of the marine environment of the North Sea and its water quality, but
Norway and Sweden are not members. In addition, the integration of the North
Sea in the Community would necessitate a regionalization of European Com-
munity policy for the protection of the marine environment and, as pointed out
by Jean-Luc Prat, “stricter Community measures for the North Sea might not be
accepted by certain Member States.” ’48 The Port State Control Committee, cre-
ated in 1982’9 and composed of fourteen member States (including the eight
North Sea countries) is only a co-operative regime of enforcement (although it
has worked surprisingly well) and is limited to the control of ship-source pol-
lution. Important as that source is in the North Sea, it is far from being the main
one.
The Rhine Action Programme and the Wadden Sea Program offer impor-
tant models on which to build. The Rhine being one of the major polluters of
the North Sea, the adoption of a special action program in 1987 is doubly ben-
eficial. The implementation of the program, through the International Rhine
Commission, is working out well and it is stated that “the approach of the
[Rhine Action Programme] has already been regarded as a model approach for
action programmes for other rivers flowing into the North Sea.”5 As for the
Wadden Sea, formed by a belt of island and sandbanks, north east of the Neth-
erlands and bordered also by Denmark and Germany, it is intimately linked to
the North Sea and forms a single ecosystem with it. Indeed, it is considered “a
measuring gauge for the quality of the North Sea.”‘ The three bordering States
4 2Hayward, ibid.
43Prat, supra, note 41.
44Wettestada & Andresen, supra, note 41.
4 5Kasoulides, supra, note 41.
46Somers, supra, note 41.
47Van der Zwiep, supra, note 41.
48Prat, supra, note 41 at 109.
49″Proposal for a Council Directive Concerning the Enforcement, in Respect of Shipping Using
Community Ports, of International Standards for Shipping Safety and Pollution Prevention,” COM
(80) 360, known as the Paris Memorandum of Understanding. See Kasoulides, supra, note 41 at
181.
50 Vettestad & Andresen, supra, note 41 at 133.
5 1Van der Zwiep, supra, note 41 at 207.
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1117
have adopted a special program in 1982, for the protection of this biologically
rich wetland area, and have achieved a high degree of co-operation in its joint
management. This evolution, it is perceived, “could well stand as a model and
form a basis for further intensification of North Sea administration. 52
The role of national courts in the enforcement of international rules for the
protection of the marine environment generally, and the North Sea in particular,
is necessarily limited. The bulk of judicial enforcement is still with the flag
State (as Canada has realized on numerous occasions), even under the provi-
sions of the United Nations Convention on the Law of the Sea of 1982.”3 As
remarked by Eddy Somers, enforcement jurisdiction of international standards
has not received the priority treatment it deserves. He expresses the disappoint-
ing opinion that “it can even be doubtful whether states do want courts to play
an important role within the enforcement system.”54
The five specific issues dealt with in Part 2 are: the role of science in North
Sea Policy;55 the relationship between quality objectives and emission stand-
ards;56 the control of dangerous substances;57 the concept of special area for the
North Sea;5” and, a regional vessel traffic service for the North Sea.59
On the role of science in policy-making in the North Sea, a systematic
analysis is made by Jorgen Wettestad and Steinar Andresen, who identify a cer-
tain number of conditions for effective interaction between science and policy.
Although they recognize that a good beginning has been made, they conclude
that several institutional deficiencies can be identified: co-ordination of research
and monitoring is flawed; the awareness of the importance of a clear distinction
between science and politics is too low; policy-makers and scientists speak dif-
ferent languages and translation is sparse; and, the media lack the necessary
expertise to involve the public in a rational way.’
This is a strong indictment, but the authors do provide some evidence to
support it. This reviewer agrees that a high degree of interaction between sci-
ence and policy-making is essential for taking adequate measures to protect the
marine environment, at both the international and national levels. Canadian sci-
entists, diplomats and policy-makers could certainly learn from this North Sea
experience, particularly with respect to the Arctic environment.
521bid. at 212.
53U.N. Doe. A/Conf. 62/122 with Corr. 3 and Corr. 8; reprinted in (1982) 21 I.L.M. 1261 [here-
inafter Law of the Sea].
54Sorners, supra, note 41 at 200.
55Prat, supra, note 41 at 111.
56Boehmer-Christiansen, supra, note 41.
57Vennekens-Capkova, supra, note 41.
58Sebek, supra, note 41.
59Kemp & De Bievre, supra, note 41.
6Wettestad & Andresen, supra, note 41 at 121-22.
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McGILL LAW JOURNAL
[Vol. 36
The relative emphasis to be given to environmental quality objectives and
uniform emission standards is the difficult problem studied by Sonja Boehmer-
Christiansen. Certain countries, like Britain, have traditionally preferred the first
method of environmental control because it is more flexible, in that it puts the
emphasis on scientific argumentation and evidence.6′ Others, like the Federal
Republic of Germany, prefer the certainty of “legally binding emission stand-
ards supplemented by restrictions on total quantities which may be discharged
over a specific period of time.”’62 Boehmer-Christiansen’s conclusion is that both
methods of control are necessary and that “these numerical measures (emission
standards) will have to become better related to EGO and to environmental
impacts.”’63
On the related question of how to control the impact of dangerous sub-
stances, Jitka Vennekens-Capkova explains how the existing black list (prohib-
ited substances), grey list (restricted substances) and red list (23 of the most
dangerous substances) led to the North Sea Priority List which is being pro-
posed for adoption by the Third Conference. If the Priority List is approved, the
principle of precautionary action discussed earlier will be applied. This means
that no scientific evidence will be necessary to show a causal link between
emission and damage.
On the proposal of making the North Sea a “special area” under MARPOL
(like the Baltic, the Mediterranean and other semi-enclosed seas), Viktor Sebek
is not convinced that the North Sea would be really improved since the worse
threat is land-based rather than ship-source pollution.’ He offers a number of
alternative solutions, such as a Convention on the North Sea Protected Areas,
which would include protection against all forms of pollution in areas requiring
special protection.6′ Sebek is right in reminding us of the seriousness of land-
based sources, which account for about 75% of marine pollution.
John F. Kemp and Aline de Bievre examine the question of “A Regional
Vessel Traffic Service for the North Sea.” The authors explain the roles which
the service could fulfill, such as the reduction of risks of collision and ground-
ing, as well as the enforcement of relevant regulations. At the moment, the
Guidelines issued by the International Maritime Organization
61Boehmer-Christiansen, supra, note 41 at 143.
62Ibid. at 145.
63Ibid. at 149.
64Sebek, supra, note 41. MARPOL refers to Convention for tie Prevention of Pollution from
Ships, 2 November, 1973, reprinted in (1973) 12 I.L.M. 1319 (the Convention and its Annex I
entered into force in 1983; Annexes II and V in 1987 and 1989 respectively; Annexes III and IV
are not yet in force [hereinafter MARPOL Convention].
65Sebek, ibid. at 165.
1991]
BOOK REVIEWS
1119
urge Vessel Traffic Services authorities not to give binding directives to ships and
to operate VTS on a voluntary basis outside territorial waters and port areas or
their approaches.
66
This is understandable since, in the law of the sea, traffic separation schemes
may be prescribed only in territorial waters and archipelagic waters. This lim-
itation on the rights of the coastal State is the reason why Canada’s NOR-
DREG67 system in the Arctic was not made compulsory when adopted. How-
ever, the system could now be made mandatory since the waters of the Canadian
Arctic Archipelago acquired the status of internal waters with the establishment
of straight baselines in 1985.” Kemp and de Bievre suggest establishment of a
form of regional Vessel Traffic Services system, within which coastal States
would provide an information service for traffic in their own sectors of the
North Sea. Ships would report their presence at all entrances to the North Sea,
their expected route and their estimated positions periodically during transit.69
There are, at the moment, traffic separation schemes in the North Sea,70 but the
recommended Vessel Traffic Service would be complementary to those sea
lanes. Such a service appears to be well warranted, given the present great
number of collisions71 and groundings.72
Part 3 “Outstanding Issues”
Part 3 addresses seven questions, some specific and others general, all of
which relate in some way to the protection of the North Sea.73 Because of the
mixed nature of some of those issues, it is impossible to group them logically
66Kemp & de Bievre, supra, note 41 at 177.
67For a description of this voluntary traffic system, see Transport Canada (Coast Guard) Offshore
Vessel Traffic Management Systems, Operations Standards, NORDREG Canada (Ottawa: Queen’s
Printer, 1979).
6SSee Territorial Sea Geographical Coordinates (Area 7) Order, SOR/85-872. For an explana-
tion of the straight baseline system enclosing the waters of the Canadian Artic Archipelago and
making them internal waters of Canada, see D. Pharand, Canada’s Arctic Waters in International
Law (Cambridge: Cambridge University Press, 1988) at 133-84.
69Kemp & de Bievre, supra, note 41 at 178.
70Sttpra, note 1 at 351, figure B.
71Kemp & de Bievre, supra, note 41 at 169.
721bid. at 170.
73E. Franckx, “Maritime Boundaries and Regional Cooperation” in The North Sea, supra, note
1, 215; U. Jenisch, “The Exclusive Economic Zone as an Instrument for Environmental Manage-
ment in the North Sea Area” in The North Sea, supra, note 1, 228; G. Peet & S. Gubbay, “Marine
Protected Areas in the North Sea” in The North Sea, supra, note 1, 241; P. Bimie, “Problems Con-
ceming Conservation of Wildlife Including Marine Mammals in the North Sea” in The North Sea,
supra, note 1, 252; D. Symes, “North Sea Fisheries: Trends and Management Issues” in The North
Sea, supra, note 1, 271; S. Davidson, “Atmospheric Depositions” in The North Sea, supra, note
1, 288; J. Woodliffe, “Radiological Discharges” in The North Sea, supra, note 1, 300; and, H.D.
Smith, “Sea Use Management and Planning in the North Sea” in The North Sea, supra, note 1, 313.
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[Vol. 36
in two or three categories for the present purposes, so the contributions will be
reviewed separately in the order in which they appear.
In chapter 19, Dr. Erik Franckx74 of the Free University of Brussels, begins
by stating that “regional co-operation is best served by settled maritime bound-
aries in a particular region.”’75 Franckx makes a comparative study between the
Baltic Sea, where virtually all maritime boundaries have been settled by nego-
tiation, and the North Sea, where three territorial sea delimitations and three
continental shelf ones remain outstanding. He concludes that the Baltic Sea, in
spite of being surrounded by States of divergent political and economic systems
could serve as a model for the success of direct negotiations for the settlement
of the outstanding maritime boundaries in the North Sea.76 This could well be,
but with the presently growing jurisprudence providing a more precise content
of the applicable law and the tradition of North Sea countries generally for third
party settlement, it could also be that they would prefer to choose arbitration or
adjudication for their remaining delimitations.
In chapter 20, Uwe Jenisch77 studies the exclusive economic zone (E.E.Z.)
as an instrument for environmental protection. Only France and Norway have
established an E.E.Z. in the North Sea but, since the Netherlands has had this
question put on the agenda of the Third Conference, Jenisch examines the pos-
sibility of an E.E.Z. regime (which would cover about 75% of the North Sea)
offering additional environmental control. It is true that coastal States would
have a greater degree of control over dumping and ship-source pollution, both
from the point of view of regulation and of enforcement, but Jenisch warns
against entertaining too high expectations. He concludes that “North Sea States
would benefit only to a minor extent by acquiring broader E.E.Z. compe-
tences”78 and they would not provide an overall solution. This is true, but
Jenisch is right in adding that an E.E.Z. would have the advantage of not only
providing
a uniform umbrella regime for the progressive development of rules and standards
for the North Sea as a model region, but also enhance the prospects of an antic-
ipated entry into force of the LOSC. 79
This would, indeed, constitute a most important collateral benefit.
Chapter 21, on “Marine Protected Areas in the North Sea,” is written
jointly by a lawyer, Gerard Peet, and a marine biologist, Susan Gubbay.”
74Franckx, ibid.
75lbid. at 215.
76Ibid. at 226.
77Jenisch, supra, note 73.
781bid. at 239-40.
791bid. at 240.
80Peet & Gubbay, supra, note 73.
1991]
CHRONIQUE BIBLIOGRAPHIQUE
Although there is a certain degree of overlap with chapter 14 on special areas,
it is minimal. Peet and Gubbay review the protected areas already established
by North Sea countries, but remind us that such areas are necessarily within
their own territorial sea where they have exclusive jurisdiction. They conclude
that
marine protected areas are a viable option for conservation of the marine environ-
ment provided that they are considered within an overall framework which pro-
vides guidance in coastal and sea use management.81
In chapter 22, devoted to the conservation of wildlife in the North Sea,
Patricia Bimie begins by pointing to the absence of a wildlife dimension in the
North Sea Conferences thus far.12 After a review of the various threats to the
North Sea wildlife (such as the common seal, pilot whale, dolphin and small
cetaceans), Bimie reviews the applicable conventions and concludes that “both
at the international and regional level, it is neither an integrated nor an holistic
regime for protection.”83 Her suggestion that “this is a question that should
urgently be addressed by the Third INS Conference”‘ appears to be very sound.
Chapter 23 consists of a study of the trends and management issues in the
North Sea fisheries by David Symes.8” In his detailed statistical review of catch
trends since the early sixties, Symes states that “the most outstanding feature of
the past 25 years has been the dramatic rise in the industrial fisheries to a point
where they now account for over half the total catch.”86 In spite of the decline
in the North Sea’s resource base, Symes maintains that
management has been reduced to a series of essentially short-term options to pro-
tect the market and maintain the industry rather than the pursuit of a conservation
strategy …. 87
He believes that
some improvement can be achieved by reducing fishing effort to allow a higher
proportion of the recruitment year classes to escape risk of capture and so enhance
the reproductive capacity of the stock. 88
However, Symes sees no evidence of such beneficial management. On the con-
trary, “the politics of compromise have led to a management policy geared
towards maintaining the status quo.”89 In these circumstances, Canada should
811bid. at 251.
82Birnie, supra, note 73.
3Ibid. at 269.
84Ibid. at 270.
85Symes, supra, note 73.
6Ibid. at 275.
7Ibid. at 282.
“lbid. at 286.
89gbid.
1122
McGILL LAW JOURNAL
[Vol. 36
not be too surprised to have so much difficulty in having the European Commu-
nity accept the recommendations of the Scientific Council of the North Atlantic
Fisheries Commission with respect to quotas to be taken off the east coast.
Chapter 24, “On Atmospheric Depositions,” by Scott Davidson,” is a very
welcome contribution, since it is only in recent years that atmospheric deposi-
tions are recognized as constituting an important source of marine pollution.
There is some rudimentary international law on the matter, but it is merely a
beginning and it is encouraging to know that the European Community has
issued directives to reduce emissions from motor vehicles and industry. As
pointed out by Davidson in his conclusion,
since most atmospheric pollution originates from land-based sources, it is only
appropriate that the EC should take the necessary measures to curtail some of the
less acceptable practices of its industrial Member States.91
He suggests, however, that “the EC should advert specifically to the impact
which our pollution has on the marine environment of the North Sea.” 92 There
is no doubt that it is preferable to directly address the region concerned. In the
same way, it will be necessary for the countries around the Arctic Ocean to
address the atmospheric pollution, which has been evident in that region for the
last decade at least.
In chapter 25, “On Radiological Discharges,” John Woodliffe93 traces the
main sources of radioactivity in the marine environment, particularly the low-
level radioactivity effluents emanating from the thirty or more nuclear power
stations and other nuclear industries in countries around the North Sea. A start
on this problem was made in the London Declaration in which the Participants
declared
their intention to respect the relevant recommendations of the competent interna-
tional organizations and to this end to apply the best available technology to min-
imize and, as appropriate, eliminate any pollution caused by radioactive dis-
charges from all nuclear industries, including reprocessing plants, into the marine
environment.
94
Also, the European Community and the Paris Commission have both been
involved, and some decrease in the level of discharges has been obtained. How-
ever, much remains to be done and Woodliffe concludes that
there is considerable room for greater co-ordination and harmonization of the
works of the European Community and the various organizations and other bodies
9Davidson, supra, note 73.
911bid. at 298.
921bid.
93Woodliffe, supra, note 73.
94London Declaration, art. 39.
1991]
BOOK REVIEWS
1123
95
who are concerned with the subject of radioactive discharges to the marine envi-
ronment.
The final chapter of the book is by H.D. Smith.96 He directs his attention
to the fundamental problem of sea-use management and planning in the North
Sea. The increasing intensity of various uses in the North Sea over the last
twenty-five years has naturally led to considerable problems of management
and planning, pointing to the need for integrated approaches for the solution.
Smith concludes that
an overall management system is already taking shape which reflects the sum total
of use-interactions and environmental impacts, and thus overall European regional
development patterns in relation to the North Sea.97
He believes that the evolving system contains what he sees as the two key ele-
ments for effectiveness: first, the management of uses in the coastal areas (par-
ticularly estuaries and rivers), with emphasis on avoiding use conflicts; and sec-
ond, the management beyond coastal waters with emphasis on water quality
objectives and involving the wider European context.
In a concluding chapter called “Final Perspectives,” David Freestone and
Ton Iflstra, the editors, draw conclusions from the various contributions. 9 On
the whole, those conclusions have already been covered in this review, but their
view on a possible future institution for the North Sea should be mentioned.
They would favour a North Sea Treaty, suggested by the European Parliament,
only
if it represented a net increase in the competences and powers available to existing
institutions. At the very least this would entail the parties acknowledging the sig-
nificance of land-based sources of pollution and accepting the need for very strict
measures in that field.99
Whilst agreeing with the editors, this reviewer believes that a North Sea Treaty
system, with its own implementation machinery, would facilitate greatly the
needed holistic approach for the protection of the North Sea. A similar treaty
system for the Arctic Ocean has been recommended for some time in Canada.'”
95Supra, note 73 at 312.
96Smith, supra, note 73.
97Ibid. at 324.
98The North Sea, supra, note 1.
991bid. at 331.
10See in particular the following: “The Report of a Working Group of the National Capital
Branch of the Canadian Institute of International Affairs” in The North and Canada’s International
Relations (Ottawa: Canadian Arctic Resources Committee, 1988); and, D. Pharand, “Les probl6-
mes de droit international de l’Arctique” (1989) 20 ttudes intemationales 131 at 161-63. The rec-
ommendation to establish an Arctic Region Council has been reiterated recently by a second work-
ing group of the Canadian Institute of International Affairs in The Arctic Environment and
Canada’s International Relations (Ottawa: Canadian Arctic Resources Committee, 1991) at 68-70.
1124
REVUE DE DROIT DE McGILL
[Vol. 36
Not only would a treaty permit a co-ordinated approach but, unlike ministerial
declarations, a treaty would give legally binding effect to the political will.
Collective works are generally of rather uneven quality, particularly when
many contributors are involved. However, the high quality of this book is
reflected in virtually all of the contributions. It should be compulsory reading
for anyone interested in promoting environmental co-operation, in general, and
for the protection of a regional or semi-enclosed sea in particular.
See also an Appendix to the latter publication, “Draft Arctic Treaty: An Arctic Region Council”
by the present reviewer (supra at Al-Al).
Ginther Handl et Robert E. Lutz, 6d., Transferring Hazardous Technolo-
gies and Substances. The International Legal Challenge. Londres, Graham
& Trotman/Martinus Nijhoff, 1989. Pp. viii, 275 [115,00$]. Comment par
Chantal Lamarre*
Cet ouvrage’ est constitu6 de textes rddigds par des confdrenciers ayant
particip6 au colloque d’avril 1985 intitul6 << International Transfer of Hazardous
Technologies and Substances : Caveat Emptor or State Responsibility ? The
Case of Bhopal, India >> lequel fut organis6 par le groupe de travail de l’Ame-
rican International Environnemental Law Interest Group of the American
Society of International Law2. Cet amalgame d’6tudes sur le transfert de tech-
nologies et de substances dangereuses, vise principalement h ddterminer l’enca-
drement international de la pr6vention et de la minimisation des dommages pou-
vant 6tre provoqu6s par la dangerosit6 inh6rente de ces technologies et
substances.
D’une fagon g6n6rale, cet ouvrage est tr~s bien documents et la majorit6
des auteurs tirent leurs sources d’information t m~me les documents 6manents
d’organisations et d’organismes internationaux.
Les auteurs d6veloppent des ides et des sujets qui ne sont pas n6cessaire-
ment nouveaux mais ayant un int6r~t certain en mati~re de compr6hension du
droit international de l’environnement.3 Le plan de l’ouvrage, pr6sent6 en trois
parties et subdivis6 par les diff6rents themes des textes publi6s, est 6galement
int6ressant puisqu’il permet au lecteur d’apprivoiser ou de se rem6morer gra-
duellement les notions fondamentales du droit international public en g6n6ral et
du droit international de l’environnement plus particuli~rement.
Conform6ment ? cette approche, la nature et l’6tendue du probl~me que
soulve la survenance de catastrophes environnementales sont cern6es A l’aide
d’616ments factuels4 et de droi.
* Avocate, membre du Barreau de Montr6al.
Revue de droit de McGill
McGill Law Journal 1991
1G. Handi et R.E. Lutz, dd., Transferring Hazardous Technologies and Substances – The Inter-
national Legal Challenge Londres, Graham & Trotman / Martinus Nijhoff, 1989 [ci-apr s Trans-
ferring Hazardous Technologies].
21bid. A ]a p. vii.
3A notre connaissance, c’est le premier ouvrage qui traite aussi exhaustivement de la coop6ration
des ttats, de ]a determination de la responsabilit6 et de la reparation des dommages causds par une
catastrophe environnementale.
4 V.p. Nanda et B.C. Bailey, << Nature and scope of the problem >> dans Transferring Hazardous
Technologies, supra, note I aux pp. 3-19.
51bid. aux pp. 19-36.
1126
McGILL LAW JOURNAL
[Vol. 36
Le premier de ces textes determine la nature et l’6tendue du probl~me du
transfert des technologies et substances dangereuses 6. Les auteurs7 6tablissent
premi~rement les diffrents faits ayant trait aux catastrophes environnementales
de Seveso, Bhopal, Tchernobyl et Basel8. Suite aux rrsum6s de ces 6v6nements,
les auteurs notent qu’il existe des pertes et des dommages plus consid6rables
lors de la catastrophe de Bhopal en Inde, alors que les pertes 6taient beaucoup
plus limitres lors de l’incident de Seveso, Italie.
Ces observations permettent de constater que tous les ttats qui importent
des technologies et substances dangereuses sont assujettis ?t de multiples pro-
blames inhrrents A la dangerosit6 de tels produits, mais les auteurs soulignent
judicieusement :
developing states that import these technologies or substances often face espe-
cially difficult problems due to an increased potential for risk, as many lack effec-
tive health, safety and environmental standards and systems9.
Dans cet esprit, les ttats de la communaut6 intemationale se doivent de coopd-
rer afm de crder des instruments permettant d’6viter que les ttats en voie de
ddveloppement ne soient les < poubelles
des ttats industrialis6s.
Ii devient alors impdratif de crrer des r~gles et des normes internationales
afm de prdvenir et de minimiser les dommages causes par de telles catastrophes
environnementales. Aussi, le deuxi~me texte'l de cet ouvrage se penche-t-il sur
la perspective de l'6tablissement d'un ordre juridique en mati~re de transfert de
substances et de technologies dangereuses. Grace h ce texte, le lecteur brndficie
d'une excellente introduction quant aux diff6rentes 6tudes qui suivent ce texte
et qui constituent l'essentiel du sujet de l'ouvrage".
L'ensemble de la discussion sur l'61aboration d'un processus international
addquat quant t la prdvention et A la minimisation des dommages prdsente de
nombreuses technicitds et permet d'approfondir la r6flexion sur le type de
normes et de rbgles dont la communaut6 internationale devrait se doter en
mati~re de protection de l'environnement af'm de rdgir le domaine du transfert
de technologies et de substances dangereuses 2.
6Supra, note 4, 3.
7V.p. Nanda, professeur et directeur, International Legal Studies Program, University of Denver.
College of Law; et, B.C. Bailey, avocat, Denver, CO.
sCes catastrophes sont respectivement survenues en Italie, en Inde, en U.R.S.S et en Suisse.
9Supra, note 4 1 la p. 19.
10G. Handl et R.E. Lutz, < The Transboundary Trade in Hazardous Technologies and Substances
from a Policy Perspective
dans Transferring Hazardous Technologies, supra, note 1, 40.
"Deuxi~me partie: < Towards an Adequate International Framework for Prevention and Mini-
mization of Harm >>, dans Transferring Hazardous Technologies, supra, note 1 h la p. 63 et s.
121bid.
1991]
BOOK REVIEWS
1127
I1 est dommage cependant de constater certaines rdptitions des le troi-
si~me chapitre de l’ouvrage”3. En effet, l’61aboration des pricipaux 616ments de
discussion faite par l’auteur Lothar Gtindling reprennent sensiblement les
m~mes faits et idres qui avaient 6t6 prdalablement ddveloppds par V.P. Nanda
et C. Bailey 4 , alors qu’ils procddaient i l’introduction du sujet. A ce propos, n’y
aurait-il pas eu lieu de fondre les textes afro d’6viter cette lourdeur ? Par contre,
les observations faites par Gfindling prdsentent un intdr& certain quant it la com-
prdhension du lecteur eu 6gard h l’existence et au fondement d’une obligation
la consultation prdalable entre l’ttat importateur
16gale intemationale relative
et l’ttat exportateur ainsi que l’obligation qui incombe a ce demier de donner
un avis prdalable d’exportation de technologies ou de produits dangereux 5 .
Dans ce processus d’61aboration d’un ordre juridique international, il sera
certes indispensable de reconnaitre sur le plan international la nrcessit6 d’impo-
ser des 6tudes d’impacts sur l’environnement lorsqu’il s’agit de procdder a un
transfert de technologies ou de substances dangereuses 16. La reconnaissance’par
les ttats d’une telle obligation permettrait d’acqudrir des standards 6gaux et
6quivalents qu’il s’agisse de procdder h cette 6tude sur le territoire de l’ttat
exportateur ou encore sur le territoire de l’tat importateur oia les substances
dangereuses sont destinres a 6tre produites ou entreposdes. Ce qui amine David
A. Wirth 7 h conclure:
The consequences of activities that pose risks to public health and the environment
are no less severe merely because the technology involved is intended for foreign
is
shores 18
Indvitablement la question fondamentale est alors soulevde puisque dans le
but d’en arriver a un tel rdsultat d’uniformit
sur le plan de la prdvention des
catastrophes, la communaut6 internationale doit choisir un instrument ad6quat
pour l’6tablissement de certaines normes et r~gles internationales. Dans un pre-
mier temps, un auteur observe que malgr6 la prdoccupation croissante des Etats
de procdder h un meilleur contr6le local des technologies et substances dange-
reuses, l’absence de consensus est frdquernment observde eu 6gard h l’61abora-
tion de r~gles internationales sprcifiques en cette mati~re”9. Cette situation devra
ndcessairement converger vers une procddure de contr~le administrde par des
13L. Giindling, << Prior Notification and Consultation >> dans Transferring Hazardous Technolo-
gies, supra, note 1, 65.
‘4Supra, note 4 4 la p. 3.
‘”D.A. Wirth, <, International Technology Transfer and Environmental Impact Assessment >>
dans Transferring Hazardous Wastes, supra, note 1, 90
Ta p. 82.
16lbid.
17Senior Project Attorney, Natural Resources Defense Council Inc., Washington, D.C.
18Supra, note 15 A la p. 105.
19G. Handl, << Internationalization of Hazard Management in Recipient Countries : Accident Pre-
paredness and Response >> dans Transferring Hazardous Technologies, supra, note 1, 106 A ]a p.
128.
1128
REVUE DE DROIT DE McGILL
[Vol. 36
institutions ou organismes internationaux puisque in6vitablement, la protection
de l’environnement constitue une question d’int6r~t international2 . En mati~re
de transfert de technologies et de substances dangereuses, il ne faut pas perdre
de vue qu’il s’agit 6galement de transactions commerciales oii sont engag6es de
nombreuses entreprises multinationales et ofi des facteurs sociaux, dcono-
miques, politiques et 16gaux se c6toient. A ce sujet, le texte de Robert E. Lutz
et George D. Aron 21 pr6sente un grand int6rt en faisant entrer en jeu ces dif-
f6rents facteurs, et surtout en analysant ad6quatement la nature et la valeur
l6gale des plans d’action et des lignes directrices 61abor6s par diffdrentes orga-
nisations et institutions intemationales22. Le volet qui suscita le plus grand int6-
r& quapt h nous est celui oft la discussion porte sur la responsabilit6 qui
incombe tant t l’ttat exportateur’ qu’t l’Etat importateur24. En effet, la commu-
naut6 internationale s’est abondamment pench6e sur le processus ad6quat de
pr6vention des catastrophes environnementales sans toutefois s’attarder v6rita-
blement A la responsabilit6 attribuable h un Etat particulier ou encore
un
regroupernent d’Etats lorsque survient de telles catastrophes. Accessoirement t
cette derni~re interrogation, il semble que peu de recherches aient 6t6 conduites
afm de r6soudre la question de la r6paration ad6quate des dommages caus6s par
ces catastrophes environnementales’. C’est d’ailleurs h ce dernier aspect que se
consacre la troisi~me partie de l’ouvrage 26.
Eu 6gard h la responsabilit6 de l’Ittat exportateur, l’auteur Michael Bothe27
dresse un bref tableau de la tendance g6n6rale qu’il observe sur le plan interna-
tional, f savoir l’attribution d’une responsabilit6 f l’Itat exportateur de techno-
logies et de substances dangereuses. I1 pose deux questions principales 2 : l’une
t l’effet de d6terminer s’il existe une r~gle de droit international coutumier sp6-
cifique t l’exportation et l’autre concemant l’applicabilit6 de principes g6n6raux
de droit en conformit6 avec l’alin6a 38(1)(c) des Statuts de la Cour Internatio-
nale de Justice29.
2Notons que cette conclusion s’inspire des observations faites eu 6gard A la coop6ration des
ttats dans l’6change d’information lorsque survient une catastrophe environnementale (ibid. aux
pp. 115-24).
21< Codes of Conduct and Other International Instruments >> dans Transferring Hazardous Tech-
nologies, supra, note 1, 129.
22Ibid. A la p. 151 et s.
23M. Bothe, The Responsibility of Exporting States >> dans Transferring Hazardous Technolo-
gies, supra, note 1, 158.
24H.H. Koh, The Responsibility of the Importer State >> dans Transferring Hazardous Techno-
logies, supra, note 1, 170.
2R. Gautier, La reparation des dommages catastrophiques – XIII Joumes d’dtudes juri-
diques Jean Dabin >> (1989) 66 R. de D. Int. et D.Comp. 195 h la page 197.
26 Restoration and Compensation >>dans Transferring Hazardous Technologies, supra, note 1
a ]a p. 199 et s.
27 Professeur h Johann Wolfgang Goethe – Universitfit, Facult6 de droit, Frankfort/Main.
2Supra, note 23 t ]a p. 160.
29Statut de la Cour internationale de Justice, (1945) 7 R.T.C. 49.
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1129
En ce qui a trait h l’existence d’une r~gle de droit international coutumier,
Bothe conclu qu’il existe A tout le moins une obligation pour l’Ittat exportateur
d’informer l’Etat importateur des dangers potentiels inh6rents t l’importation de
substances dangereuses et ce, dans le but de r6duire les risques encourus par les
personnes humaines et l’environnement sur le territoire de l’ttat importateur.
Cependant, certaines observations sont n6cessaires A ce stade-ci. En effet, le
principe de l’acceptation pr6alable de l’ttat importateur est internationalement
reconnu uniquement lorsqu’il s’agit du d6placement transfronti~re de d6chets
dangereux. Deuxi~mement, un tel principe n’impose une obligation qu’ l’ttat
exportateur sans qu’une obligation corollaire de rdponse ne soit impos6e h l’Etat
importateur. Finalement, la seule obligation consiste h divulguer l’information
n6cessaire sans qu’il ne soit impos6 l’ttat exportateur aucune obligation quant
l’adoption de l6gislations internes particuli~res r6gissant cette mati~re”.
Quant A la question de l’existence de principes g6n6raux de droit, l’auteur
souligne que certaines normes internes reconnues par plusieurs Etats peuvent
constituer un principe g6n6ral de droit au sens de l’alin6a 38(1)(c) de la CIJ31
si celles-ci offrent d6jA des solutions normatives pour des situations semblables
qui surviennent h l’int6rieur de la juridiction de I’Etat. A ce titre, l’auteur cite
l’exemple de la responsabilit6 du fabricant32 laquelle vise essentiellement la pro-
tection du consommateur et le d6sir d’offrir une certaine 6quit6 dans la r6par-
tition des risques. Cet auteur note 6galement une tendance i l’effet de respon-
sabiliser l’ttat ofi se situe le siege social de la maison m~re d’une corporation
lorsque cette corporation ou une de ses filiales cause des dommages environne-
mentaux
l’Etat importateur. Ce constat rejoint en quelque sorte le concept de
pollueur-payeur. Cette d6termination de la responsabilit6 des ttats ne vise en
fait que l’61aboration d’une protection ad6quate de l’environnement.33
Quant A la d6termination de la responsabilit6 de l’ttat importateur celle-ci
est souvent complexe puisqu’elle exige l’analyse de diff6rentes sources de droit
dont le droit international public au niveau des r~gles de droit international cou-
tumier qu’au niveau des trait6s multilat6raux que bilat6raux auquels tant les
ttats exportateurs qu’importateurs sont parties ; les lois internes de l’ttat expor-
tateur et importateur r6gissant le transfert de technologies et de substances dan-
gereuses ; et les contrats priv6s gouvemant ce type de transfert 4. Toutefois,
l’harmonisation de ces diff6rentes sources permettra invraisemblablement la
3Supra, note 23 A la p. 162.
31Ibid. aux pp. 160, 164.
32Au Qu6bec, voir les principes relatifs au lien de causalit6 entre la faute et le dommage, et au
fardeau de la preuve quant
la responsabilit6 du fabricant, art. 1053 C.c.B.-C. ; J.-L. Baudouin,
La responsabilitg civile ddlictuelle, 3e 6d., Cowansville, Qu6., Yvon Blais, 1990 aux pp. 200-202,
paras. 367-73 (et la jurisprudence cit6e) : << I1 suffit simplement que la preuve rapport6e rende pro-
bable 'existence d'un lien direct >> (supra A la p. 202, para. 373).
33Supra, note 23 aux pp. 168-69.
34Ibid. h ]a p. 173 et s.
1130
McGILL LAW JOURNAL
[Vol. 36
crdation de r~gles de droit international pouvant influencer la pratique des ]tats
importateurs35. La coop6ration des ttats devient alors un 616ment essentiel de
tout le processus relatif t l’61aboration d’un r6gime i6gal ayant pour but ultime
la pr6vention et la minimisation des dommages en mati~re de transfert de tech-
nologies et de substances dangereuses.
Cette collaboration est d’autant plus n6cessaire lorsqu’il s’agit de d6finir le
mode de r6paration et de compensation des dommages qui surviennent a la suite
de catastrophes environnementales. Que l’on songe h l’am6nagement d’un
<< r6gime d'assurance sans faute >>36 ou encore d’un << fonds international d'in-
demnisation >>, la pr6occupation demeure la meme, soit celle d’offrir une
indemnit6 compensatoire aux personnes victimes de catastrophes environne-
mentales. Une telle d6marche s’impose lorsque l’on observe que la seule catas-
trophe de Bhopal (Inde) a fait plus de 200 000 victimes 3s.
35bid. a ]a p. 174 et s.
3 6
S.C. McCaffrey, < Expediting the Provision of Compensation to Accident Victims > dans
Transferring Hazardous Technologies, supra, note 1, 199.
37D.B. Magraw, << International Legal Remedies >> dans Transferring Hazardous Technologies,
supra, note 1, 240.
3 tSupra, note 4 aux pp. 7-8.
Linda Starke, Signs of Hope: Working Towards Our Common Future.
Oxford: Oxford University Press, 1990. Pp. ix, 192 [$15.00]. Reviewed by
Nicola Pain*
The destruction of the environment both within individual countries and in
areas common to all nations has become a major issue in many countries and
at the international level in the second half of the 1980s. The substantial and
potentially catastrophic global problems faced by the world in general with
ozone depletion, global warming, acid rain, deforestation and increasing atmo-
spheric and marine pollution, to name a few, has created considerable concern
amongst many countries at both government and individual citizen level. Some
environmentalists and scientists, such as Dr. Paul Ehrlich of Stanford University
and Dr. David Suzuki of C.B.C.’s “The Nature of Things” have said that unless
such problems are dealt with in an effective way in the next ten years the
destruction resulting from them will prove extremely harmful. The United
Nations responded to this concern in several ways and one of these was to estab-
lish the World Commission on Environment and Development.
In 1987 Our Common Future,1 produced by the World Commission on
Environment and Development (W.C.E.D.) chaired by Gro Harlem Brundtland,
was published and received world-wide attention. The Brundtland Report was
broad in its analysis and sweeping in its recommendations about the need for
change in relation to the environment and development. Signs of Hope2 was
published three years after the Brundtland Report and attempts to review prog-
ress made since that report’s publication. The author works at the Centre for Our
Common Future which was set up in 1988 to provide a focal point through
which the interest and momentum generated by the Brundtland Report could be
maintained.’
The major recommendations in the Brundtland Report are summarised in
Signs of Hope in eight categories: revive growth, change the quality of growth,
conserve and enhance the resource base, ensure a sustainable level of popula-
tion, re-orient technology and manage risks, integrate environment and econom-
ics in decision-making, reform international economic relations and strengthen
* Centre for International Environmental Law, Washington, D.C.
McGill Law Journal 1991
Revue de droit de McGill
‘The World Commission on Environment and Development, Our Common Future (Oxford:
Oxford University Press, 1987) [hereinafter Brundtland Report].
Press, 1990) [hereinafter Signs of Hope].
2L. Starke, Signs of Hope: Working Towards Our Common Future (Oxford: Oxford University
3In Appendix 1 to Signs of Hope, ibid. at 175, the history, aims and activities of the Centre for
Our Common Future are set out.
1132
McGILL LAW JOURNAL
[Vol. 36
international co-operation.’ These objectives have been summed up in what is
the key recommendation of the Brundtland Report, implementing a society
based on sustainable development. In order for those changes to be imple-
mented there needs to be a major re-thinking of how the environment is
regarded. The challenge for governments and communities around the world
has been to work out ways of applying those broad recommendations in a prac-
tical way at local, national, regional and global levels.
Such major changes obviously cannot take place overnight. In Signs of
Hope, Linda Starke has done a very good job of relating some of the actions
which have resulted from initiatives taken in response to the Brundtland Report.
It is clear that the Bruntland Report has spurred unprecedented action in some
areas by national governments as well as Non-Governmental Organizations
(N.G.O.). So much action has taken place that it would be very difficult to doc-
ument all of it and the book is intended as a “snapshot” of some of the important
initiatives. The book therefore focuses on the “agents for change” if these new
ways of thinking are to emerge and be used as the basis for implementation of
the report’s recommendations. It does not focus on a particular issue in each
chapter but rather looks at signs of change in political and economic decision-
making processes and those who influence these processes. Two chapters focus
on the efforts made by politicians and governments at the international and
national levels to accept and develop these new ways of thinking.6 One chapter
focuses on the key role played by private groups in influencing decisions made
about development and the environment.7 This growing influence is described
as “the most striking signs of hope for our common future.”‘ One chapter looks
at some of the initiatives taken by industry to incorporate the recommendations
of the Brundtland Report.9 Another chapter considers the crucial role the media
can play in influencing the decisions of both governments and individuals in
relation to the environment.’ The book stresses that the changes documented
are insufficient. For example, in relation to changes noted in industry, it is made
clear that we are a long way from having all industries embrace sustainable
development objectives.
The book is not a critique of the contents of the Brundtland Report, but
there are some criticisms of the message as set out in the Brundtland Report and
the recommendations of the Legal Experts Group which accompanied it. For
example, following publication in 1987, the key recommendation of the Brundt-
41bid. at 4-5.
5Ibid. at 8.
6C. 2 “Global Responses to Global Problems,” and c. 3 “The Wheels of Government,” ibid.
7C. 4 “Private Groups: A Force for Change,” ibid.
Slbid. at 63.
9C. 5 “A Commitment by Producers and Consumers,” ibid.
10C. 6 “Delivering the Message,” ibid.
1991]
BOOK REVIEWS
1133
land Report, the application of sustainable development, was suddenly on
everyone’s conference agenda. The problem with so broad a term is that it
means all things to all people. The vagueness of the meaning of sustainable
development (defined by the Brundtland Report as meeting “the needs of the
present without compromising the ability of future generations to meet their
own needs”)” can be seen as both a weakness and a strength. Starke mentions
it as a strength in her first chapter but it can also be criticised as a weakness
largely because it can be interpreted to suit the audience. Various meanings have
therefore been proposed. These range from the view that no further develop-
ment should take place at all to another view that sustainable development
means continuing to find the resources needed (even if that means in national
parks) because only in this way is the resource “sustainable.” Whatever criti-
cisms one may have of the terms used in the Brundtland Report it has certainly
generated much debate and been a major catalyst for action throughout the
world on one of the most important global issues we presently face, how to rec-
oncile developmental and environmental needs in such a way that the needs of
future generations are not compromised. The Brundtland Report emphasised
that in order to bring about the changes required to implement sustainable
development, greater citizen participation in decision-making is essential. The
involvement of lesser developed countries at the international level is also
essential. This in turn requires changes in legal and institutional structures at
national and international levels. Citizen participation is part of some national
legal systems. However, citizen participation under existing international law as
a means of implementing the Brundtland Report’s objectives is problematic.
International Law and the Environment
Until recently legal measures to protect the environment have tended to
develop in national legal systems rather than at the international level. The field
of international environmental law is growing in a piecemeal fashion. Books on
public international law written ten or more years ago are unlikely to have any
references to international law on the environment. This field has, by and large,
emerged or been identified as a separate area of international public law since
the mid 1980s. 2 Impacts which have caused discussion about the need for inter-
national regulation of the environment include transboundary impacts caused by
disasters such as the nuclear accident at Chernobyl, the chemical accident at
Bhopal in India and oil pollution by the Exxon Valdez. 3 The problems pre-
sented by global warming, such as climate change, are causing concern through-
“Ibid. at 8.
12Books written more recently are now likely to include a chapter on the subject. See e.g. D.H.
Ott, Public International Law in the Modern World (London: Pitman, 1987).
13For a discussion of these issues, see book reviews in this issue by C. Lamarre and D. Pharand.
1134
REVUE DE DRO1T DE McGILL
[Vol. 36
out the world and there is now interest in developing mechanisms to deal with
this problem.’ 4
There are a few global conventions in the environmental area being con-
sidered now which aim to preserve bio-diversity, reduce de-forestation and deal
with global warming. There is no global environmental protection convention.
One has been proposed by the Legal Expert Group of the World Commission
on Environment and Development but it is more likely to be used for discussion
purposes than as a convention or treaty to be adopted by the United Nations.
The number of regional instruments which could be described as environ-
mental is considerable. The United Nations Environment Programme’s Bibliog-
raphy of environmental law numbers these at over 140. Perusing these docu-
ments demonstrates their fragmented subject matter. The instruments address
specific issues such as the preservation of areas or items of international impor-
tance or particular global environmental issues.
The Stockholm Declaration of 1972 is commonly regarded as the starting
point of modem international environmental law.’ Environmental issues were
not of major concern to the international community until this decade. Since
1972 there has been a significant increase in the number of international instru-
ments which could have environmental consequences. In that period there has
been on-going debate about economic development and its relation to the envi-
ronment. Initially, the two were seen as incompatible. There is now a greater
acceptance of their inter-relatedness. This question is particularly vexing for
developing countries who see the need to pursue development objectives if they
are ever to “catch-up” to the developed western countries. A further dimension
which is providing major challenges to international legal development is the
increasing complexity of the environmental problems faced on a global basis
with not only transboundary pollution, but also global warming leading to cli-
mate change.
Problems in International Environmental Law
A crucial area in which public international law fails is enforcement of
obligations imposed on governments under international law. If governments
4The United Nations General Assembly decided to establish the International Negotiating Com-
mittee to develop a convention to deal with climate change following the Second World Climate
Conference in Geneva in September 1990. The first negotiating session was held in Washington
D.C. on 4-14 February 1991. The aim is to draft a convention which can be signed at the U.N. Con-
ference on Environment and Development scheduled for 1992.
5The first major United Nations conference on the environment was held in Stockholm in 1972.
The Stockholm Conference on the Human Environment produced the Report of the United Nations
Conference on the Human Environment, 1972, U.N. Doc. A/CONF 48/14/1972/Corr. 1, 11 I.L.M.
1416 (1972) [hereinafter Stockholm Declaration] and contained a large number of resolutions
about action in the environmental area.
1
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1135
fail to act against a recalcitrant nation there are virtually no direct legal avenues
open to non-governmental bodies or private citizens (whether individually or in
groups) to seek enforcement of international law against a government. Tradi-
tional international lawyers will say that public international law, while it con-
tinues as the law between nations rather than individuals, is enforceable by
states alone. 6 That is strictly correct in terms of present legal measures open to
governments. Enforcement at the international level is often by way of coercion
through economic sanctions or, ultimately, the use of force, as much as by legal
means. This clearly reflects the political reality that is an important component
of international law and its enforcement. It is also one of the major reasons why
protection of the environment under international law is problematic. Providing
a greater role to citizens and N.G.O.s at the international level would assist in
the implementation of responsibilities.
Other difficulties in dealing with environmental problems in the interna-
tional system can be seen. In the first chapter of Signs of Hope Starke refers to
some of the major global environmental problems being faced in the world. 7
One of these is the problem of global warming and climate change. One aspect
of this problem is ozone-depletion. Starke sets out the efforts made to control
ozone-depleting substances through international conventions and protocols.
The process leading to the implementation of the Vienna Convention for the
Protection of the Ozone Layer of 19858 and the Montreal Protocol on Sub-
stances that Deplete the Ozone Layer 9 is viewed by many as an example of suc-
cessful negotiation at the international level. The more complex problem of how
to control the various activities leading to global warming is now being
addressed at the international level. This process more than any other may dem-
onstrate the extent to which there has been true acceptance of the message of
the Brundtland Report. The early signs are not very hopeful. The United
Nations International Negotiating Committee (I.N.C.) on drafting a Climate
Change Convention has just finished meeting in Chantilly, near Washington
D.C., for its first negotiating session. For those participating from N.G.O.s and
lesser developed countries, the two weeks were a sobering start to the process.
The entire time was taken up with how the work of the I.N.C. should take place
procedurally, rather than spending any time on substantive issues. The difficulty
of overcoming national interests at the international level is demonstrated in
16International law commentators constantly state that generally the subjects of international law
are states. See e.g. I. Brownlie, The Principles of Public International Law, 4th ed. (Oxford: Clar-
endon Press, 1990); and, R. Wallace, International Law (London: Sweet & Maxwell, 1986).
Numerous international arbitrations and court decisions agree. See e.g. Nottebohm Case (Liechen-
stein v. Guatemala), [1955] I.C.J. 4, 22 I.L.R. 349; and, Anglo-Iranian Oil Co., [1952] I.C.J. 93,
19 I.L.R. 507.
‘7Supra, note 2 at 10-11.
“sU.N. Doc. UNEP/IG 53/3, 4 & 5/Rev. (1985); reprinted in 26 I.L.M. 1516 (1987).
1926 I.L.M. 1550 (1987) [entered into force Jan. 1, 1989].
1136
McGILL LAW JOURNAL
[Vol. 36
multi-lateral negotiations of this nature with the clear reluctance of some devel-
oped countries to agree on targets for limiting greenhouse gas emissions. This
is despite the fact that the occurrence of sea-level rise caused by global warming
is accepted by most climate scientists (the unsettled question being the extent
of the rise and the period in which this will occur) and that even a small rise
will reek considerable havoc and destruction to small island states in the Pacific,
Caribbean and Mediterranean regions. The draft convention is targeted for pres-
entation at another important milestone in the United Nations environmental
calendar: the United Nations Conference on Environment and Development
(U.N.C.E.D.), scheduled to take place in Brazil in 1992.
Developing Public International Law for the Environment
As is clear from the discussion above, citizen participation at the interna-
tional level is relegated to largely informal mechanisms. This reflects the nature
of international law as the law of states rather than individuals. The field does
not traditionally provide mechanisms for citizen participation. As a developing
field of public international law, the international environmental law field is
possibly the most open to change given the considerable interest in this field
world-wide.
The Centre for International Environmental Law (C.I.E.L.) was established
in 1989 with the aim of developing international law in a way that will lead to
better protection of the environment. C.I.E.L. also wants to address the problem
that international law is not very responsive to non-governmental pressure. This
can be achieved in part by trying to ensure that citizens through N.G.O.s have
better access to the international legal system. C.I.E.L.’s major activities are
teaching, research and advice work for individuals, N.G.O.s and states which
are economically disadvantaged. C.I.E.L. is based in Washington D.C. and at
King’s College, London.
C.I.E.L. is working on several projects. One project involves the new Euro-
pean Bank for Reconstruction and Development. C.I.E.L. is working to ensure
a positive environmental role for the newly established development bank set up
to provide funding for Central and Eastern Europe. C.I.E.L. initially drafted a
provision mandating that the 10 billion ecu bank pursue sustainable develop-
ment. The bank became the first ever multilateral development bank with an
environmental mandate –
to pursue environmentally sound and sustainable
development. C.I.E.L. is now working to ensure that this mandate becomes
operational, through such measures as environmental assessment requirements,
citizen access to information and independent administrative review. This will
enable citizens to better monitor the bank’s operations and ensure that as far as
possible the bank’s work is carried out in an environmentally sound and sustain-
able manner.
1991]
BOOK REVIEWS
1137
C.I.E.L. is also working on global climate change and sea level rise. It is
preparing several research papers on areas such as the precautionary principle,
technology transfer and transfer funding mechanisms. C.I.E.L. in London is
working closely with small, developing island states in the climate change con-
vention being drafted presently. C.I.E.L. in Washington D.C. is working with
N.G.O.s in their efforts to lobby governments in relation to the draft convention.
The 1992 U.N. Conference on Environment and Development
Many of the important initiatives started by the Brundtland Report will be
focusing on this conference as a possible opportunity to make meaningful
changes in international environmental law. Starke describes the conference as
a “major turning-point” and as “a critical chance –
perhaps the world’s last –
to change the course of development.”‘ The U.N. Conference on Environment
and Development (U.N.C.E.D.) will also provide an important opportunity for
governments to demonstrate that they are committed to the recommendations of
the Brundtland Report. If it is to be more than a talkfest for governments, it will
need to consider co-ordinated international action to solve major problems in a
relatively short time frame, something international action has not generally
been noted for. Having said that, the level of discussion and activity at the U.N.
on environmental issues is substantial and there is reason to believe that, finally,
governments are aware of the serious problems confronting them and may be
more willing to co-operate in solving the problems.
There are two aspects of the 1992 Conference which are of major impor-
tance. The subject matter of the Conference and how this will be treated is obvi-
ously vital. In addition, the level of participation enabled for governments of
lesser developed countries and the independent (or non-government) sector is a
significant issue and must be addressed.
In its Resolution calling for the Conference to be held, the U.N. General
Assembly stressed the need to consider the inter-relationship between poverty
and environmental degradation, a key matter which needs to be addressed and
an important dynamic discussed in the Brundtland Report and Signs of Hope.
In all, twenty-three objectives for the meeting were specified, including promo-
tion of environmental education and the establishment of a fund to aid in the
transfer of environmentally sound technology to the Third World.2 Issues
include consideration of patterns of consumption and production in North and
South, the transfer of technology from North to South as well as the eradication
of poverty and the need to improve the quality of life for much of the world’s
population.
20Ibid. at 172.
21Ibid. at 171-72.
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REVUE DE DROIT DE McGILL
[Vol. 36
Whether the U.N.C.E.D. Conference grapples successfully with the envi-
ronmental problems caused by poverty remains to be seen. It is an encouraging
sign that such issues appear on the agenda at this stage. Hopefully the issues
raised by the relationship between the environment, development and poverty
will be a centrepiece at the 1992 Conference itself.
The level of involvement of lesser developed countries could be crucial in
determining the direction of the debate on the many important issues which will
arise at the 1992 Conference. Smaller developing countries in particular often
lack the resources to participate fully in the preparatory meetings and to provide
their own technical and scientific expertise. A voluntary fund is to be estab-
lished by the governments of the United Nations to help developing countries
participate in the preparatory process. This sounds laudable but the size and
administration of the fund will determine to a large extent how effective it is.
N.G.O. involvement in multilateral decision-making is one of the most
effective means of providing greater citizen participation. Citizen participation
through N.G.O.s is particularly important in international fora where govern-
ments do not represent important concerns in their own countries or ignore a
minority group within their own country when making policies, as often hap-
pens with minority indigenous people. Such groups have great difficulty in pre-
senting their case at the international level in the U.N. when their own govern-
ments ignore their circumstances. Providing a voice to N.G.O.s gives opportu-
nity to a useful and independent movement to provide insight and expertise on
significant issues. N.G.O.s are also vital in pressuring governments at the con-
ference to raise issues not on the agenda and in providing valuable information
on those issues. N.G.O.s can lobby governments to vote for proposals such as
a suitably effective convention on climate change or the protection of biodiver-
sity and an Earth Charter which could provide a framework for global environ-
mental protection, to name but a few issues. It is still unclear to what extent
N.G.O.s will be allowed to participate in the 1992 Conference itself. There
appears to be a major push to depart from previous conferences where formal
N.G.O. involvement was extremely limited, as in most UN fora. It will be a sub-
stantial mark of progress in assessing the openness of governments around the
world to generally debate environmental issues if representatives and the views
of N.G.O.s are allowed to voice their concerns.
Conclusions
Signs of Hope is not intended as a major analytical work on the subject of
the environment and development. Its strength lies in its distillation of the mes-
sage of the Brundtland Report and its identification of some of the positive steps
that have been taken as a result of that report. It is clearly and informatively
written and provides a concise compilation of material which would be difficult
to find elsewhere in such an accessible form. With its highly readable text and
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1139
lay-out the book is designed to highlight the key issues for non-specialist
readers.
The message in Signs of Hope is that there is reason to be optimistic,
despite the considerable environmental problems threatening the world.
Whether or not one agrees with this view, reading this book will provide an
excellent background to the impact of the Brundtland Report and its continued
relevance to changes in our perceptions of the environmental problems facing
us. Given the relatively short period since the Brundtland Report’s release and
the usually slow pace of change at the international level there has been quite
unprecedented action in some areas. A further assessment of the quality and
pace of that change after the 1992 U.N.C.E.D. Conference will indicate if the
trends identified by Starke will continue in the crucial decade of the nineties.
Robert Boardman, Global Regimes and Nation-States: Environmental Issues
in Australian Politics. Ottawa: Carlton University Press, 1990. Pp. xiv, 222
[$19.95]. Reviewed by Douglas M. Johnston*
Despite post-modernist leanings to localism in certain sectors of social and
legal theory, one of the prevailing tendencies in Canada in the applied social sci-
ences is to seek sophistication in comparative studies. Over the last decade,
insights into Canadian public policy, law, and administration have been sought
after through the study of other national “systems” that are deemed sufficiently
cognate or compatible to support useful comparison with Canada’s.’ Given its
rising priority in this country, the area of environmental policy seems especially
well-chosen for a Canadian scholar to apply himself to overseas research.
Global Regimes and Nation States: Environmental Issues in Australian Politics2
is a strikingly impressive justification of the modem practice of spending a
study leave far from home.3 It also seems appropriate that such a review should
be written for the McGill Law Journal twenty years after (now Emeritus) Prof.
Maxwell Cohen undertook the task of chairing an external advisory committee
to assist Environment Canada with its early work in the field of international
environmental law and policy.4
*Professor of Law, Chair in Asia-Pacific Legal Relations, University of Victoria.
McGill Law Journal 1991
Revue de droit de McGill
‘See e.g. R.H. Leach, Whatever Happened to Urban Policy? A Comparative Study of Urban Pol-
icy in Australia, Canada, and the United States (Canberra: Centre for Research on Federal Finan-
cial Relations, Australian National University, 1985); B.W. Morse, Aboriginal Self-Government in
Australia and Canada (Kingston: Institute of Intergovernmental Relations, Queen’s University,
1984); K.G. Banting & R. Simeon, eds, Redesigning the State: The Politics of Constitutional
Change in Industrial Nations (Toronto: University of Toronto Press, 1985); R.M. Stem, Trade and
Investment in Services: Canada-U.S. Perspectives (Toronto: Ontario Economic Council, 1985);
G.S. Mahler, New Dimensions of Canadian Federalism: Canada in a Comparative Perspective
(Rutherford: Fairleigh Dickinson University Presses, 1987); and, M.C. Cummings, Jr. & R. S.
Katz, eds, The Patron State: Government and the Arts in Europe, North America, and Japan (New
York: Oxford University Press,1987).
(Ottawa: Carleton University Press, 1990) [hereinafter Global Regimes and Nation States].
2R. Boardman, Global Regimes and Nation-States: Environmental Issues in Australian Politics
3Much of the research for the study reviewed here was carried out by its author during a stay
at the Australian National University in Canberra.
“This committee, established at the suggestion of the first deputy minister of Environment Can-
ada, consisted of B. Flemming, D.M. Johnston, and D. Pharand, under the chairmanship of M.
Cohen. For a number of years it provided fairly detailed commentary on governmental and inter-
governmental documents prepared for the 1972 U.N. Conference on the Human Environment and
for the early years of the U.N. International Sea-bed Committee (1968-1973), which of course pro-
vided the basis for the Third U.N. Conference on the Law of the Sea (1973-1982). The McGill link-
age with that process is reflected also in the involvement of W. Foster and A. de Mestral, now both
prominent members of the McGill Faculty of Law.
1991]
BOOK REVIEWS
1141
The literature on comparative public policy studies shows that Australian
experience is frequently the most relevant to Canada’s. By almost any criterion,
the environmental policy experiences of Canada and Australia seem especially
deserving of close comparison. Geographically, both countries are immense
with exceptionally long coastlines. Comparable economies, rich in natural
resources, have generated similar issues between economic development and
environmental protection. Canada’s climatic and ecological zones are less
diverse than Australia’s, and Australia has no neighbourly presence analogous
to the United States,5 but the scientific, if not psycho-cultural, significance of
the Canadian Arctic bears some similarity to that of the “Australian Antarctic
Territory.”6 Both peoples, it might be said, have a wilderness ethic or “myth”
embedded in their collective psyche, which has contributed in each country to
the growth of a wildlife conservation movement, symbolized by kangaroos and
crocodiles in one and by beavers and polar bears in the other.
Structurally, the federal systems of both Canada and Australia have created
difficult political and administrative tensions between the central government
and the various governments at the state/provincial and territorial levels.
Accordingly, the political life of both nations tends to be animated by frequent,
and occasionally bitter, quarrels over jurisdictional domain, sometimes resolved
by recourse to judicial process of the same lineage, but more often finessed, as
a matter of expediency rather than principle, through the negotiation of inter-
governmental arrangements under the rationale of “cooperative federalism.”‘
In matters of international environmental diplomacy, Canberra and Ottawa
have had to contend with comparable challenges at the global level, but the con-
voluted history of bilateral Canadian-U.S. environmental treaty-making8 has no
counterpart in Australia. In the late 1960’s the United Nations General Assem-
bly decided to undertake the first comprehensive stocktaking of major environ-
mental problems confronting the world community as a whole, as the basis of
the Stockholm Conference on the Human Environment9 scheduled for 1972.
This coincided with a perception on the part of both federal governments that,
notwithstanding an irrelevant and obstructive division of constitutional powers,
5Global Regimes and Nation States, supra, note 2 at 197.
6Claims to Antarctic territory were made by the Crown in 1926, but some of these areas were
later transferred to Australia and New Zealand. In the case of Australia, the transfer was confirmed
by the Australian Antarctic Territory Acceptance Act of 1933 (ibid. at 78).
7 For a description of Australian “cooperative federalism” in the environmental sector see c. 6
“Institution-building and Cooperative Federalism” (ibid., 97). For a list of variously qualified sorts
of federalism see W.H. Stewart, Concepts of Federalism (Landham, MD: University Press of
America, 1984).
SFor a detailed study, see J.E. Carroll, Environmental Diplomacy: An Examination and a Per-
spective of Canadian-U.S. Transboundary Environmental Relations (Ann Arbor: University of
Michigan Press, 1983).
9United Nations Conference on the Human Environment, Stockholm 1972.
1142
REVUE DE DROIT DE McGILL
[Vol. 36
a way had to be found to develop truly national environmental priorities and
programmes. Within a few years it seemed obvious that national environmental
policy-making in both countries would, henceforth, owe as much to globally
negotiated concepts and principles as to the outcome of internal (federal-state/
provincial/territorial) negotiations. By 1972 Canada and Australia had become
widely recognized as “middle powers” with “leader state” experience and capa-
bilities in the environmental context, and in the years since then it has become
increasingly difficult for them to resist the political temptation to use these capa-
bilities to their advantage in their conduct of foreign policy around the world.
Boardman’s account of Australian involvement in these internal and exter-
nal developments is rich in detail, and is sufficient reason for favourable review.
But the readers of this Journal may be chiefly interested in the legal aspects of
this topic, and in the insights into Canadian foreign/domestic policy-making
suggested by the comparison of the two national experiences, although neither
is the primary focus of this study.
In Australia, the chief responsibility for environmental protection is vested
in the states and the government of the Northern Territory. In most sectors of
Australian environmental administration one finds the primary mandate
entrusted to the state level of government: general environmental policy plan-
ning; land use planning; resource development and management; environmental
impact assessment; waste management; pollution control; ecological reserves;
wildlife protection; and, preservation of the national heritage.'” Even the
so-called “national” parks system of Australia was developed at the state level,II
not the federal level as in Canada. However, in no state are the various sectoral
functions of environmental management entrusted to any one single agency, so
that the process of national environmental policy-making is further complicated
by intra-state and inter-state politics, bureaucratic as well as electoral, within a
highly “individualistic” political culture which, by and large, has been hostile
to the centralization of authority in general and to the harmonization of state
laws and policies in particular. 2 On the other hand, the Commonwealth of Aus-
tralia, in a degree comparable with the Dominion of Canada, has exclusive leg-
islative jurisdiction over the Australian Capital Territory, the Australian Exter-
nal Territories, and Commonwealth-owned land in the states –
an area totalling
‘0See G.M. Bates, Environmental Law in Australia (Sydney: Butterworths, 1983) at 22.
” Global Regimes and Nation States, supra, note 2 at 176. However, with the election of the
Labor (Whitlam) government at the end of 1972, just a few months after the Stockholm Confer-
ence, a phase of unprecedented environmental activism began at the federal level. This was
reflected not least in the establishment of the Department of Environment and Conservation, one
of whose immediate tasks was the creation of an Australian national parks and wildlife service
influenced by the U.S. and Canadian federal models (supra at 101).
12See B.W. Hodgins, et al., eds, Federalism in Canada and Australia: Historical Perspectives,
1920-1988 (Peterborough: Frost Centre for Canadian Heritage and Development Studies, 1989).
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1143
over one million hectares. Moreover, s.51 of the Australian Constitution13 enu-
merates various heads of federal jurisdiction under which the Commonwealth
might purport to enact environmental legislation: for example, taxation, external
affairs, and trade and commerce. The latter power is restricted by s. 92,’ 4 which
guarantees freedom of trade between the states, but the Commonwealth’s power
to regulate overseas trade is unlimited. 5 Furthermore, the Commonwealth pos-
sesses an “implied power,” which has been interpreted judicially in such a way
as to enable it “to engage in enterprises and activities appropriate to a national
government which may be undertaken by the Commonwealth on behalf of the
nation[.]’ 6 This doctrine has been applied to uphold the constitutional validity
of the Commonwealth’s National Parks and Wildlife Act 7 of 1975, but the polit-
ical system is reluctant to tolerate a wholesale passing over of environmental
authority to Canberra for the purpose of implementing environmental treaties
concluded by the Commonwealth government.”
What is striking to a Canadian reader is the comparability of Canadian and
Australian efforts to think through, negotiate and implement federal-state/
provincial/territorial arrangements in sectors of public policy where the national
government has taken a prominent and responsible role in the development of
‘3Commonwealtlz of Australia Constitution Act, 1900 (U.K.), 63 & 64 Vict., c. 12 [hereinafter
Australian Constitution]:
S. 51. Legislative powers of the Parliament
The Parliament shall, subject to this Constitution, have power to make laws for the
peace, order, and good government of the Commonwealth with respect to:
(i) Trade and Commerce with other countries, and among the States:
(ii) Taxation; but so as not to discriminate between States or parts of States: [and]
(xxix) External affairs[.]”
’41bid.:
S. 92 Trade within the Commonwealth to be free
On the imposition of uniform duties of customs, trade, commerce, and intercourse
among the States, whether by means of internal carriage or ocean navigation, shall be
absolutely free.
But notwithstanding anything in this Constitution, goods imported before the impo-
sition of uniform duties of customs into any State, or into any Colony which, whilst
the goods remain therein, becomes a State, shall, on thence passing into another State
within two years after the imposition of such duties, be liable to any duty chargeable
on the importation of such goods into the Commonwealth, less any duty paid in respect
of the goods on their importation.
15Bates, supra, note 10 at 19.
16lbid, at 20.
17Australian National Parks and Wildlife Service, Report for the Period 1 July 1976 – 30 June
1977 (Canberra: Queen’s Printer, 1977). See Global Regimes and Nation States, supra, note 2 at
82-83.
“5On the World Heritage – South-west Tasmania controversy, see Global Regimes and Nation
States, ibid. at 137-45. For a general overview of the constitutional issues in Australian environ-
mental policy, see R.L. Mathews, ed., Federalism and the Environment (Canberra: Centre for
Research on Federal Financial Relations, Australian National University, 1985).
1144
McGILL LAW JOURNAL
[Vol. 36
environmental principles, standards and procedures at world community,
regional, and bilateral levels of international diplomacy. In both countries,
moreover, domestic environmental law developments might be linked with for-
eign policy initiatives in the politically and ethically significant context of inter-
national development assistance. 9 Along with colleagues in one or two other
Commonwealth countries, such as New Zealand, environmental law and policy
specialists of Canada and Australia might be persuaded by this valuable study
that the time is ripe for a collaborative research project focussing on sectors of
shared expertise.
For those of us with an active interest in international environmental law,
Boardman’s work is of further value because of the light it projects on Austra-
lian government contributions to that rapidly evolving field. Useful information
is provided on the Australian input into the 1972 Stockholm Conference 0 and
the U.N.’s Third Law of the Sea Conference (U.N.C.L.O.S.);2″ into the U.N.
Environment Programme (U.N.E.P.),’
the Environment Committee of Organi-
zation for Economic Cooperation and Development (O.E.C.D.),’ and the Inter-
national Union for Conservation of Nature and Natural Resources (I.U.C.N.).24
Global Regimes and Nation States also details Australian input into important
global environmental treaties such as the Convention on International Trade in
Endangered Species (C.I.T.E.S.),’ the 1972 United Nations Educational, Scien-
tific and Cultural Organization (U.N.E.S.C.O.) World Heritage Convention,26
the 1971 Ramsar Convention on the Protection of Wetlands,27 the family of
marine pollution agreements,” and, of course, the various agreements con-
cerned with environmental protection in Antarctica and the Southern Ocean.29
19See D. Runnalls, Environment and Development: A Critical Stocktaking (Ottawa: North-South
Institute, 1986). See also various essays in J.O. Saunders, ed., The Legal Challenge of Sustainable
Development – Essays from the Fourth Institute Conference on Natural Resources Law (Calgary:
Canadian Institute of Resources Law, 1990) in Part 5 “International Economic Relations and Sus-
tainable Development”: D. Runnalls, “The Evolution of Environmental Factors in Aid Programs”
(in Saunders, ed., supra, 313); F. Bregha, “Aid and the Environment: The Canadian Approach” (in
Saunders, ed., supra, 325); P.M. Saunders, “Legal Issues in Development Assistance: The Chal-
lenge of Sustainable Development” (in Saunders, ed., supra, 336); J. Keeping, “Canadian Gas
Export Policy: Part of the Problem” (in Saunders, ed., supra, 356); J.O. Saunders, “Legal Aspects
of Trade and Sustainable Development” (in Saunders, ed., supra, 370); and, A. Leonard & J. Val-
lette, “The International Waste Trade: A Greenpeace Report” (in Saunders, ed., supra, 387).
20Global Regimes and Nation States, supra, note 2 at 19-25.
21Ibid. at 61-66.
221bid. at 22-28.
231bid. at 28-30.
241bid. at 31-34.
2’Ibid. at 40-48.
26Ibid. at 51-55, 137-45.
2 7Ibid. at 50, 136.
2-Ibid. at 67-71.
29See c. 5 “Australia, Antartica and the Southern Ocean” (ibid. at 77).
1991]
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1145
Most of these contexts are of sufficient importance to deserve separate,
full-scale (monographic) treatment in Canada as well as Australia. Published
studies have tracked recent Canadian diplomatic involvement in a variety of
environmental problem areas such as the environmental law of the sea,3″ fishery
management and conservation,3 ship-generated marine pollution,32 land-based
marine pollution,33 deep ocean mining,34 acid rain,35 ozone layer,36 Arctic Ocean
transit management,37 and Great Lakes protection. Moreover, recent lists of
Canadian doctoral dissertations reveal the popularity of topics such as the inter-
national regulation of toxic chemicals and other hazardous substances; the pro-
tection of marine mammals, seabirds, and endangered species; and the disposal
3 0Canadian diplomatic influence on international environmental law-making is described in such
works as A.L. Hollick, U.S. Foreign Policy and the Law of the Sea (Princeton: Princeton Univer-
sity Press, 1981); J. Schneider, World Public Order of the Environment: Towards an International
Ecological Law and Organization (Toronto: University of Toronto Press, 1979); B. Johnson &
M.W. Zacher, eds, Canadian Foreign Policy and the Law of the Sea (Vancouver: University of
British Columbia, 1977); D. McRae & G. Munro, eds, Canadian Oceans Policy: National Strat-
egies and the New Law of the Sea (Vancouver: University of British Columbia, 1989); and, D.M.
Johnston, ed., The Environmental Law of the Sea (Gland, Switzerland: International Union for
Conservation of Nature and Natural Resources, 1981).
3 1D.M. Johnston, The International Law of Fisheries: A Framework for Policy-Oriented Inquir-
ies (New Haven: Yale University Press, 1964), reprinted 1987 with new introductory essay (Nor-
well, MA.: New Haven Press/Kluwer, 1987); and E.L. Miles, ed., Management of World Fisheries:
Implications of Extended Coastal State Jurisdiction (Seattle: University of Washington Press,
1989).
32R.M. M’Gonigle & M.W. Zacher, Pollution, Politics, and International Law: Tankers at Sea
(Berkeley: University of California Press, 1979). For a Canadian assessment of marine pollution
agreements, see D.M. Johnston, “Marine Pollution Agreements: Successes and Problems” in J.E.
Carroll, ed., International Environmental Diplomacy: The Management and Resolution of Trans-
frontier Environmental Problems (New York: Cambridge University Press, 1988) 199.
33M. Qing-Nan, Land-based Marine Pollution: International Law Development (London: Gra-
ham & Trotnam, 1987). This book is based on the author’s doctoral dissertation for Dalhousie Law
School.
34E. Riddell-Dixon, Canada and the International Seabed: Domestic Determinants and External
Constraints (Kingston: McGill-Queen’s University Press, 1989).
35j. Van Lier, Acid Rain and International Law (Alphen aan den Rijn: Sijthoff & Noordhoff,
1981); and, J. Brunre, Acid Rain and Ozone Layer Depletion: International Law and Regulation
(Dobbs Ferry, N.Y. Transnational Publishers, 1988). Although these authors were trained mostly
in the Netherlands and Germany respectively, these books are based on theses written at Dalhousie
University.
3 6Brunre, ibid.
37See, for example, D. Pharand, The Law of the Sea of the Arctic with Special Reference to Can-
ada (Ottawa: University of Ottawa Press, 1973); D. Pharand, Canada’s Arctic Waters in Interna-
tional Law (New York: Cambridge University Press, 1988); C. Lamson & D.L. VanderZwaag, eds,
Transit Management in the Northwest Passage: Problems and Prospects (Cambridge: Cambridge
University Press, 1988); F. Griffiths, ed., Politics of the Northwest Passage (Kingston: McGill-
Queen’s University Press, 1987); and, D.L. VanderZwaag & C. Lamson, eds, The Challenge of
Arctic Shipping: Science, Environmental Assessment, and Human Values (Kingston. McGill-
Queen’s University Press, 1990).
3 8Carroll, supra, note 8.
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REVUE DE DROIT DE McGILL
[Vol. 36
of nuclear wastes. Significantly, most of these areas of Canada’s scholarly effort
are ocean-related, reflecting an even greater concern with the marine environ-
ment in Canada than in Australia. Sadly, the intensity of academic interest in
these areas of concern is still not yet sufficiently matched by political will to
result in the ratification of the 1982 U.N. Convention on the Law of the Sea39
or of several important marine pollution control conventions. 40 The absence of
a match between academic interest and political will has also failed to produce
any commitment for a national ocean policy,4′ a nation-wide approach to the
problem of coastal, shoreline management,42 or the development of a national
counterpart to the 1980 World Conservation Strategy, such as Australia
adopted.43
Let us hope that the energy and imagination needed to attain these impor-
tant goals in Canada will be fortified by collaborative projects of the kind envis-
aged above, which in turn will be developed on the basis of foreign-country
studies such as Global Regimes and Nations States.
Diego L. Rev. 535.
39See T.L. McDorman, “Will Canada Ratify the Law of the Sea Convention?” (1988) 25 San
40D.M. Johnston, Canada and the New International Law of the Sea (Toronto: University of
Toronto Press/Royal Commission on the Economic Union and Development Prospects for
Canada/Canadian Government Publishing Centre, Supply and Services Canada, 1985) at 53-54,
115-16.
41In the mid-1980’s, it was proposed that Canada establish a national ocean policy council (ibid.
at 61-63). The Canadian government’s initial response was a document agreeing on the need for
an oceans strategy: Fisheries and Oceans Canada, Oceans Policy for Canada: A Strategy to Meet
the Challenges and Opportunities on the Oceans Frontier (Ottawa: Minister of Supply and Ser-
vices, 1987). Shortly thereafter, Fisheries and Oceans established a national advisory council,
which meets periodically but seems to lack the endowment of funds and authority necessary to
have a significant effect on ocean policy-making.
42For an early appraisal of needs in Atlantic Canada, see D.M. Johnston, et al., Coastal Zone:
Framework for Management in Atlantic Canada (Halifax: Institute of Public Affairs, Dalhousie
University, 1975). See also B. Sadler, ed., Coastal Zone Management in British Columbia (Victo-
ria: Department of Geography, University of Victoria, 1983).
43In 1980, after several years of gestation, the World Conservation Strategy was given life under
the parentage of I.U.C.N. and the World Wildlife Fund. Several countries since then have produced
national Versions of the global document, which prescribe measures to be taken for achieving some
of the objectives of the World Conservation Strategy. Australia was one of the first countries to
undertake the development of a National Strategy, but the Commonwealth government encoun-
tered many difficulties before final nation-wide approval was achieved in 1986 (Global Regimes
and Nation States, supra, note 2 at 125-29, 166-69).
Dianne Saxe, Environmental Offences – Corporate Responsibility and Exec-
utive Liability. Aurora: Canada Law Book, 1990. Pp. xxxiv, 254 [$55.00].
Reviewed by David 0. Cox*
Recent Decima quarterly polling indicates that the majority of Canadians
continue to be very concerned about the quality of the environment.’
Other independent research on public opinion suggests that Canadians rank
passing stricter laws and getting tough with polluters ahead of all other activities
that the Federal Government should be doing.’ Sixty-one per cent of Canadians
consider personally fining executives to be the preferred punishment of execu-
tives of polluting companies with 17 per cent choosing both a personal fine and
jail sentence.’
Based on their studies, Decima reports that 39 per cent of Canadians
believe that the prime motivation for industries undertaking environmentally
friendly actions is fear of tougher government regulations.4
Judging from these current statistics, the Canadian public appears to sup-
port continued government regulation and enforcement of environmental pro-
tection laws. The question arises, though, will such an approach lead to the
desired objective of a cleaner natural environment?
The debate over the merits of government regulation in this area has raged
on for years and perspectives range from the call for increased criminalization
of environmental laws5 to deregulation6 and greater emphasis on a system of pri-
vate property rights allowing people harmed by pollution to obtain damages or
injunctive relief.
In Environmental Offences – Corporate Responsibility and Executive Lia-
bility7 Dianne Saxe refreshingly leaves the wider debate aside and focuses on
the prosecution of corporations and their executives. The release of her book is
timely, given a recent decision of the Ontario Court (Provincial Division) in
* M.E.S., LL.B., Associate, Soloway, Wright (Ottawa).
McGill Law Journal 1991
Revue de droit de McGill
IDecima Research, Decima Quarterly Report: Public Affairs Trends (Toronto: Decima Research,
1990) at 49.
[unpublished].
2International Environmental Monitor Ltd., The Environmental Monitor (Toronto, 1990)
3lbid.
4Supra, note I at 53.
5Law Reform Commission of Canada, Crimes Against the Environment (Working Paper 44)
(Ottawa: Law Reform Commission of Canada, 1985) at 67.
6J. Shaw, Address (Address to Our Environment: Solutions for Business from Business Confer-
ence, Ottawa, June 7-8, 1990) [unpublished].
7Aurora, Ont.: Canada Law Book, 1990 [hereinafter Environmental Offences].
1148
McGILL LAW JOURNAL
[Vol. 36
May of last year, when for the first time in Canadian history an executive was
sentenced to a six month prison term for environmental offences. Though the
term was significantly reduced on appeal, the case will no doubt serve as a
benchmark of the surge of interest in potential corporate exposure to liability
under environmental statutes. 8
While Saxe has designed the book in a manner that lends itself to reference
in the heat of practice, a greater appreciation for the project is gained by a com-
plete reading. In doing so, it is much more likely that one will formulate their
own view of increased corporate executive and officer accountability for envi-
ronmental offences. The societal benefits of prosecuting individuals instead of,
or in addition to, corporations would appear sacrosanct. It is not surprising then
that personal liability of corporate directors and senior officers is provided for
throughout Canadian statutes including environmental laws. As Saxe discusses
in the chapter entitled “The Role of Prosecution,”9 the reluctance to prosecute
appears to stem from the general perception that it is inappropriate to ascribe
individual responsibility for what can be described as essentially corporate
activities.
Saxe confronts this viewpoint directly. She systematically builds an effec-
tive argument for increased prosecution of individuals citing numerous refer-
ences which focus on the necessity of linking corporate behavior to human
control:
Commitment to compliance must begin with the directors and senior officers. In
the absence of such commitment, subordinates will be much more likely to com-
mit or permit offences. Corporations that do violate and those that largely do not
are distinguished by “corporate cultures” or ethical climates. The directors and
senior officers bear the ultimate responsibility for the corporate culture of their
fnms.’
o
This is an example of her most compelling response to the various arguments
against personal prosecution. Less convincing are her comments responding to
the specific argument that an increase in personal prosecutions could deter com-
petent and conscientious people from accepting a director’s position.” Saxe
cites the extensive range of statutes which impose personal liability on directors
which she suggests has not had a detrimental effect on board composition.’ 2
8R. v. Blackbird Holdings Ltd. (22 June, 1990) (Ont. Prov. Ct.) [unreported], sentence reduced;
G. Crowe and Blackbird Holdings Ltd. v. R. (6 May 1991) (Ont. Prov. Ct.) [unreported].
9Environmental Offences, supra, note 7, c. 2.
0lIbid. at 34.
“Ibid. at 37.
12Ibid.,
n. 80. In that footnote, Saxe states that “there are at least 80 federal statutory provisions
of this type, 62 in British Columbia, 98 in Alberta, 45 in Manitoba, 126 in Ontario and 19 in New
Brunswick” (supra at 71). N. 80 refers the reader forvard to c. 3 “The Legislative Framework”
and n.90 (supra).
1991]
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1149
This is a weak response for two reasons. First, it is probably not the exis-
tence of such provisions that will alter corporate executive behavior; rather,
what is relevant is whether the government adopts a practice of prosecuting
individuals personally under such statutes. Second, the environmental context
can be distinguished from others where potential personal liability is imposed.
It can be argued that compliance with environmental laws is largely based on
the discretionary judgement of Ministry of Environment officials creating a sig-
nificant degree of uncertainty that does not exist in other contexts. Conse-
quently, a person is apt to consider this a greater risk factor when making a deci-
sion whether to become a director.
Saxe does identify the key issue and the common sense response to the
concern. How personal liability is imposed will likely affect the behavior of
individuals in this regard more than anything else. Restricting the personal pros-
ecution of executives to those with influence and control over the commission
of the offence 3 will have the least adverse effect. Saxe uses results from an atti-
tudinal survey she conducted to confirm the significance of this point. 4
The chapter entitled “The Role of Prosecution” concludes with the details
of that survey. 5 Its primary purpose, however, was to provide empirical evi-
dence to support a decision of environmental regulators to give greater empha-
sis to prosecution of officers and directors, which Saxe states has to date been
lacking. Among the conclusions drawn from the survey are:
[C]orporations which have been prosecuted report allocating significantly more of
their resources to environmental protection then do corporations which have not
been prosecuted. In addition, corporate executives reported that attention to envi-
ronmental matters ai the highest levels of the firm, and corporate efforts to avoid
pollution, would be greater if corporate executives faced the possibility of per-
sonal prosecution for pollution16
The first conclusion is drawn from the factual information provided by individ-
ual respondents in selected corporations. The second conclusion, however, is
based on information generated by an experiment where Saxe posed hypothet-
ical questions concerning possible government prosecuting policies to be
answered under one of three “experimental conditions”:
[O]ne group was asked to assume that they could not be personally prosecuted for
corporate pollution, the second group to assume that they would rarely be person-
ally prosecuted, and the third to assume that they would be prosecuted for any
environmental offence for which the corporation was charged.’ 7
13That is, to “those who could have prevented pollution and failed to do so” (ibid. at 38).
141bid. at 50.
‘5Environmental Offences, supra, note 7, c. 2.
16Ibid. at 53-54.
171bid. at 46.
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REVUE DE DROIT DE McGILL
[Vol. 36
Concerns regarding the design and experimental method applied raise questions
as to the validity of Saxe’s second conclusion. She reports that several respon-
dents stated that the hypotheticals did not contain enough details on which to
found decisions. The question arises whether she pre-tested the hypothetical
questions to ensure that she was obtaining a response to the question she posed.
The fact that several did not respond makes one question why those that
answered did so. Perhaps they were predominately reacting to previous experi-
ences rather than the hypothetical questions. Saxe similarly does not address
whether or not an attempt was made to eliminate bias stemming from previous
experience in the selection of the three groups. In eliminating the bias, the con-
clusions of the study might have been more substantiated.
With the exception of the last chapter”8 , the balance of the book is devoted
to an in-depth review of the legal principles underlying environmental prosecu-
tions generally and particularly where appropriate. In her analysis, Saxe pro-
vides access to an invaluable number of unreported decisions no doubt gathered
over the years in her capacity as legal counsel for the Ministry of the
Environment.
The discussion of theories of liability is organized to perfection. 9 She clas-
sifies theories under which directors and officers may be held liable for environ-
mental offences in four major categories:
– As a principal, if the officer or director personally commenced a forbidden
act;20
– As a party under the terms of special statutory provisions which expressly
impose’liability on directors and officers in relation to a corporate offence;2′
– As a party to an offence committed by the corporation or another person,
under the provisions of accomplice liability such as Sections 77 and 78 of the
Ontario Provincial Offences Act;22 and
18C. 7 “The Director’s Dilemma” (ibid.). Saxe describes the director’s dilemma as “the dilemma
of the conscientious director faced with the pervasive uncertainty of Canadian environmental law”
(supra at 3).
19C. 5 “Theories of Liability” ibid.
20Ibid. at 103ff.
21Ibid. at 107ff.
22Ibid. at 140. Ss 77 and 78 of the Provincial Offences Act, R.S.O. 1980, c. 400 [hereinafter Pro-
vincial Offences Act] read as follows:
s.77 (1) Every person is a party to an offence who,
(a) actually commits it;
(b) does or omits to do anything for the purpose of aiding any person to com-
mit it; or
(c) abets any person in commiting it.
(2) Where two or more persons form an intention in common to carry out an
unlawful purpose and to assist each other therein and any one of them, in
1991]
CHRONIQUE BIBLIOGRAPHIQUE
1151
– As a party to conspiracy with others or with the corporation itself to commit
the offence.’
Typically, attention is given both in the literature and practically to the first two
categories. Charges in Ontario are rarely laid under sections 77 and 78 of the
Provincial Offences Act and as indicated “conspiracy has not yet received much
use in Canada as a method of fastening liability on officers and directors for
environmental offences.”
Saxe’s thorough research of American caselaw provides excellent exam-
ples of the potential for using these approaches. Also, her extensive review of
the “influence and control” principle in Canada,’ and particularly in the United
States will be much appreciated by practitioners. In the area of corporate envi-
ronmental responsibility and executive liability, the principle is the linchpin of
the argument for the Crown in most cases.
Saxe includes a brief section on the fiduciary principle in her discussion on
due diligence26 and questions whether it is an appropriate standard to protect the
public interest in the environment. She concludes that it is, since it has of late
appeared to apply “in almost any situation where one is at the mercy of
another.”27 In support of her opinion, she relies on the comments of the former
Chief Justice Dickson in Guerin et al. v. R.’ where he states that “[t]he catego-
ries of fiduciary … should not be considered closed.”’29
Notwithstanding the brief excerpt from the Guerin case, it is one thing to
consider opening the doors wide enough to allow the application of the concept
in the context of the Aboriginal-Crown relationship where, despite the nature of
carrying out the common purpose, commits an offence, each of them who
knew or ought to have known that the commission of the offence would be
a probable consequence of carrying out the common purpose is a party to the
offence.
S.78 (1) Where a person counsels or procures another person to be a party to an
offence and that other person is afterwards a party to te offence, the person
who counselled or porcured is a party to the offence, notwithstanding that the
offence was committed in a way different from that which was counselled or
procured.
(2) Every person who counsels or procures another person to be a party to an
offence is a party to every offence that the other commits in consequence of
the counselling or procuring that the person who counselled or procured knew
or ought to have known was likely to be committed in consequence of the
counselling or procuring.
23Environmental Offences, ibid. at 141.
24Ibid.
2 Ibid. at 112ff.
26C. 6 “Due Diligence” ibid.
27Ibid. at 169.
28[1984] 2 S.C.R. 335, 13 D.L.R. (4th) 321 [hereinafter Guerin cited to S.C.R.].
29Ibid. at 340.
1152
McGILL LAW JOURNAL
(Vol. 36
the relationship, the Courts remain loathe to open the doors entirely, and quite
another to suggest its potential to protect the elusive concept of the public inter-
est in environmental matters. The public is not at the mercy of corporate direc-
tors in the environmental context, which according to Ernest Weinrib, quoted
by Dickson C.J. in Guerin, “is the hallmark of a fiduciary relation.”‘” Rather its
interests are protected by government intervention. As P. Handler pointed out,
it
has long been a function of government to shield the citizenry from those dangers
against which it cannot readily protect itself; hence police and fire departments,
armies and navies. 32
Saxe closes the book with an interesting chapter entitled “The Directors
Dilemma” where she concludes that prosecutions are a poor choice to resolve
the uncertainties which exist in environmental protection.33 It is a curious con-
clusion to a work that speaks largely to the effectiveness of pursuing personal
prosecutions in the corporate context. It would have been enhanced by some ref-
erence to the issues raised earlier regarding the effectiveness of achieving com-
pliance in the environmental field by prosecuting corporate executives. While
the criminal courts may not always be the best venue for resolving many of
society’s complex social issues, prosecutions will continue to be a necessary
element in any regulatory program. Beyond the obvious impact on individual or
corporate wrongdoers are the unquestionable benefits of deterring similar
behaviour in the general population.
Saxe has provided a thoroughly researched piece in an area of environmen-
tal law that is rapidly becoming significant to all practioners with corporate cli-
ents. She has, in addition, raised issues that will challenge one’s perspective on
the future of environmental protection. Consequently, it will be of interest to
anyone involved in the field.
30E. Weinrib, “The Fiduciary Obligation” (1975) 24 U.T.L.J. 1.
311bid. at 7, Guerin, supra, note 27 at 384. According to Weinrib, supra, “the hallmark of a fidu-
ciary relation is that the relative legal positions are such that one party is at the mercy of the other’s
discretion.” (Weinrib, supra).
32P. Handler, “Some Comments on Risk” in National Research Council, The National Research
Council in 1979: Current Issues and Studies (Washington: National Academy of Sciences, 1979)
3 at 3.
33Environmental Offences, supra, note 7 at 191.
