Book Reviews Wetterstein, Peter (ed.). Harm to the Environment: The Right to Compensation and the Assessment of Damages. Oxford: Clarendon Press, 1997. Pp. xvii, 263. Index. This volume of collected papers resulting from a 1995 seminar in Turku/Åbo (Finland) has all the elements that seem to make environmental topics so very attractive to some international lawyers and so very suspect to others: a mixture of comparative and international, public and private, law and policy; lata and ferenda, fascinating and irritating. At the risk of spoiling some of the fun in the medley, the present review will try to separate the general environmental discourse of the book from its specific international aspects. 1. The lead paper by Brian Jones (‘Deterring, Compensating, and Remedying Environmental Damage: The Contribution of Tort Liability’) illustrates the old dilemma of traditional tort jurisprudence facing new technological risks. The rationale for various ‘strict’ or ‘pseudo-strict’ liability concepts is analysed in the light of recent British case law and European legislative trends (further elaborated in national reports on Germany by Werner Pfennigstorf, and on Belgium by Hubert Bocken). Rather than attempting to renovate tort law though, the author winds up advocating something broader than tort liability: mainly a combination of criminal sanctions and some new green super-funds, a proposal subsequently spelt out by Henri Smets (‘COSCA: A Complementary System for Compensation of Accidental Pollution Damage’). A comparative study by Peter Wetterstein (‘A Proprietary or Possessory Interest: A Conditio Sine Qua Non for Claiming Damages for Environmental Impairment?’) then shifts the focus to the private-rights vs. public-rights distinction reflected both in recent Scandinavian legislation and in American cases concerning harm to common property resources. A crucial question thus arises: Who is entitled to claim compensation for harm to ‘unowned’ environmental resources? The most innovative response to that question has been the ‘public trust’ concept developed by the US Supreme Court since 1892 and made operational by the designation of public trustees under federal legislation since 1974, details of which are presented in three papers by Thomas J. Schoenbaum, William D. Brighton and David F. Askman, and Charles B. Anderson. Curiously, the only European legal system where similar trusteeship functions for common property resources have been conferred on public authorities is the Italian law relating to danno erariale, succinctly described in the context of the 1986-1993 Patmos case by Andrea Bianchi (‘Harm to the Environment in Italian Practice: The Interaction of International Law and Domestic Law’). 2. As might have been expected, the contribution of international law-making to the definition of environmental harm turns out to be disappointing. Apart from limited provisions in civil liability conventions and the rather restrictive experience of the International Oil Pollution Fund (surveyed by Björn Sandvik and Satu Suikkari, ‘Harm and Reparation in International Treaty Regimes’), codification attempts by the UN International Law Commission in this field (summarized by Julio Barboza, ‘The ILC and Environmental Damage’) were notoriously unsuccessful; and the paper by Alan Boyle (‘Remedying Harm to International Common Spaces and Resources: Compensation and Other Approaches’) concludes that recourse to state responsibility is ‘unrealistic, unprecedented, and largely unworkable’. One of the reasons, of course, is the reluctance of states to define legal consequences of their own misconduct – as manifested by the disclaimer footnote in the 1979 Geneva Convention on Long-Range Transboundary Air Pollution (under Article 8/f: ‘the present Convention does not contain a rule on State liability as to damage’); by the ‘deferral’ of damage assessment and compensation rules in the 1982 UN Convention on the Law of the Sea (Article 235/3); and by the red-faced call, in principle 13 of the 1992 Rio Declaration on Environment and Development, for a ‘more determined manner to develop further international law regarding liability and compensation’ (more determined than whom?). Progress is unlikely to trickle down from further distillations of well-meaning soft law – such as the World Conservation Union’s 1995 International Covenant on Environment and Development, or the 1997 Strasbourg resolution of the Institut de Droit International – but perhaps from the emerging hard practice of the UN Compensation Commission (UNCC) pursuant to the Security Council’s Gulf War resolutions, to which unfortunately there are only two cursory references in this volume (at 58, note 4, and 91). And even though the bulk of UNCC work so far concerns ‘proprietary’ claims for environmental damage alleged to have been suffered by states or individual victims (estimated in up to eleven-digit dollar figures), the question of harm to ‘unowned’ natural resources is bound to surface here, too. If indeed common heritage is a form of international trusteeship (as Alan Boyle casually suggests on page 84 of this book), we now ought to search in earnest for institutions entitled to claim compensation on behalf of all beneficiaries of that global trust. The Åbo Academy’s project is a good start. Peter H. Sand Munich
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