Friday, May 18, 2018

The earliest boundary water treaty

Figure 1: 
Memorial cone of the Mesilim Treaty
Thanks to Peter Sand for contributing this post!

[Footnotes after the jump.]

The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty, concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō (Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, depicts Lagash ruler E’anatum leading his army, and vultures devouring slain Umma warriors (figures 2 and 3).

Mesilim [or Mesalim, born ca. 2600 B.C.] was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the loose alliance of small adjoining Sumerian city-states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon.[4] Because of the prevailing precarious rainfall conditions, the agricultural economy of the entire basin area has always been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an elaborate system of canals and levees which inevitably require close inter-community cooperation. The geographic focus of the bilateral Lagash-Umma agreement, concluded under Mesilim’s authority as external arbiter, was the fertile Gu-edena valley, roughly ten by four kilometers wide and irrigated by Tigris waters from a canal named Lum-magirnunta on the border between Umma and Lagash, with boundaries marked by stone steles.
Figure 2: Stele of the Vultures
Figure 3: Stele of the Vultures
Part of the treaty was a crop-sharing arrangement for a portion of boundary land (some eleven square kilometers) downstream on Lagash territory, that was cultivated by Umma under lease, against payment of an annual rental fee (máš, calculated in silver-shekel equivalents of barley crops) to cover the costs of canal maintenance.[5] However, when Umma repeatedly refused to honor its accumulated tenancy debts, hostilities broke out, resulting in partial destruction of the canal and in unilateral diversions of water upstream. In several successive military confrontations (‘the first known war in history that was, in essence, fought about water’),[6] Umma was ultimately defeated by Lagash (first under the leadership of E’anatum, ca. 2470 B.C.; and later under his nephew Enmetena, ca. 2430 B.C.),[7] and was forced to accept the reconstruction (and extension) of the canal and the reinstatement of the boundaries as originally drawn up by Mesilim.

Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-established, does not seem to have survived for long, and was eventually overtaken and mooted by external political events (the Akkadian/Sargonic invasions) in subsequent generations. Even so, the agreement has been hailed as ‘the first international arbitration’,[8] and as ‘the oldest treaty of which there is a reliable record’.[9] It remains a unique early attempt at resolving a dispute over boundary waters by formal reference to a superior spiritual order (in this case, the deities of both parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of international law in this field – well over 4,000 years ago.[10]


Sunday, April 29, 2018

Madeira and trust

Sorry for the slow pace of postings - no, I haven't been hitting the Madeira; I'm in the middle of a heavy semester teaching-wise, and on a short deadline for an article, etc. I'd be more than happy, as always, to post pieces by others, especially those of you whose semester is ending soon. Please let me know if you're interested.

In the meantime, here's a bit on the latest post on Rachel Laudan's food history blog, "Trade, Trust and Madeira", a post with both environmental and legal angles. Laudan connects the drinking of Madeira wine to Enlightenment theories of trade and sociability. Laudan writes:
I just want to highlight how trade, trust and Madeira reinforced each other.  The wine became Madeira’s most important export around 1700.  By then, sugar, which had been the main export for over a hundred years, the forerunner of the sugar plantations of the New World, had exhausted the soils. For the next two hundred years, Madeira flourished.
Producing and trading Madeira was no easy game. Complex irrigation projects were put in place. The wine was fortified with spirits to survive the long sea journeys. In an extraordinary turn of events, wine that had been shipped to India and for some reason made the return journey instead of being ruined, tasted particularly “mellow.”
The Americans, who in spite of their most determined efforts, failed to establish a wine industry in the Colonies, were particularly eager traders and consumers, though far from the only ones.
Here’s the thing. Living in the United States, where Amazon deliveries arrive on time and are left on doorsteps, we happily get on the internet, commit our money, secure in the expectation that the strangers who pack the goods, debit the cards, fly the planes, and drive the trucks will all act responsibly. My neighbors are shocked if packages left on the porch disappear. Yet I’ve lived in plenty of places where no one commits any important documents to the mail or orders anything to be delivered.  That chain of trust just does not exist.
Chains of trust have been built up over time. There’s lots of interesting historical work going on now about how merchants built trust along huge networks, the role of families and tightly knit religious or ethnic groups, the types of contracts, and the importance of correspondence.  Wine, like other valuables, had always been shipped long distances (the Romans sent wine to eager drinkers in northern Europe, for example, with Madeira the distances and cultures involved were on a whole new scale, stretching around the Cape to India and Southeast Asia, up to Scotland, across to the Caribbean and the American Colonies.
Part of that trust was building shared customs, civility, ways of comporting yourself among strangers. Drinking Madeira was one of these customs. Along with the wine itself went barrels, labelled bottles (a novelty because not stoneware), delicate glasses and decanters which, as Hancock puts it, “dripped both wealth and politesse.”
Passed from hand to hand, they helped bond political factions, merchant networks, and intellectual circles in gatherings in the home, in taverns, in messes, in clubs around the world. 

Sunday, April 8, 2018

Baltimore's sewers

Yesterday's This Day in Water History had the following (apparently originally from here):
Baltimore was one of the last major cities on the east coast to construct a proper sewer system. The City’s inability to install sanitary sewers until 1915 tarnished the appeal of what was otherwise a successful city. Several commissions throughout the nineteenth century formulated plans for a sewer system for Baltimore, but were unsuccessful because of economic conditions and fighting between political parties.
Lacking a sewer system, Baltimore relied primarily on privy vaults (cesspools) for waste disposal until the early twentieth century. Privy vaults are holes dug 3 to 75 feet deep, though most were quite shallow. Baltimore’s sandy soil was ideal for privy vaults, making the method the most economically viable form of waste disposal. It was estimated that in 1880, with a population of 350,000, over 80 thousand privy vaults were in use in the City.
The Great Fire of 1904 proved to be the final factor in the construction of a sewer system in Baltimore. A new spirit among the residents arose from the ashes of Baltimore and there was a drive to rebuild and improve the city. On April 7, 1904, the Sewage Enabling Act passed in the Maryland legislature. It provided ten million dollars for a new sewer system in Baltimore. Construction began in 1907 and the sewage treatment plant was operational in 1915. Public health improved, as did the image of the City. Today, the Back River and Patapsco wastewater treatment plants serve 1.6 million people and treat up to 250 million gallons of sewage per day.

Friday, March 23, 2018


January's Environmental History has a review by Leif Fredrickson of Michael Mix's Leaded: The Poisoning of Idaho’s Silver Valley (OSU Press, 2016). From the review:
The poisonous history of the Bunker Hill Company should be as well known to environmental historians as the Battle of Bunker Hill is to historians of the American Revolution. Located in the Silver Valley in northern Idaho, Bunker Hill mining and smelting operations polluted the surrounding area and poisoned residents and workers with lead for a century. In the 1970s, Bunker Hill’s operations wrought “the worst community lead exposure problem in the United States,” according to the Centers for Disease Control and Prevention. The silver lining to the Silver Valley disaster was that it fueled new and stronger national regulations for lead pollution.
In Leaded, Mix seeks to unearth the “root causes” of mining and smelter pollution in the Silver Valley. He argues that pollution went unabated for most of the twentieth century because the government sought to empower Bunker Hill in the pursuit of economic development and western settlement. Countervailing forces were either too weak or too dependent on the company to resist the massive pollution externalities the company foisted on others. Workers and Silver Valley residents often spurned criticism of the company—“Uncle Bunker” as locals called it—for fear of losing the area’s key employer. Similarly, state politicians feared losing a thriving business and a source of taxes. Bunker Hill’s economic and political power produce favorable legislation and the company benefited from judges and regulators who sided with the industry over labor and those harmed by pollution. Bunker Hill’s power was also rooted in knowledge. The state government lacked the resources to know much of what Bunker Hill knew, or could have known, about the poisoning of workers and the community.
Until the 1970s, the federal government did nothing to change this situation. Federal courts doled out, at best, piddling compensation for land and livestock poisoned by mines and smelters. Federal environmental laws were weak until President Richard Nixon created the Environmental Protection Agency (EPA) and Congress passed legislation that could force states to meet air and water pollution standards. Meanwhile, in 1973, a fire destroyed part of Bunker Hill’s already outdated pollution control system. But with lead prices soaring, the company chose to continue operating its smelter anyway. The resulting widespread poisoning of children in the community, which came to light over the 1970s, catalyzed the EPA’s first air lead standard, promulgated in 1977, and provided evidence for a relatively low acceptable lead level. According to Mix, the air lead standard, along with more stringent occupational health standards, “signified an end for most western lead smelters,” since they could not profitably meet the new technology requirements. Bunker Hill shut down in 1981.

Sunday, March 18, 2018

Digital Library VII: The Laws Relating to Salmon Fisheries in Great Britain (1866)

This week's addition to the digital library of historical environmental law is Thomas Baker's The Laws Relating to Salmon Fisheries in Great Britain, published in London by Horace Cox in 1866. Baker, the title page tells us, was a barrister of the Inner Temple and the Salmon Fisheries Office, and also the author of works on public health law. In the preface to the work Baker explained the need for a work on salmon law:
The Salmon Fisheries of this country have, by long neglect, become greatly injured. Poachers, thoughtless anglers, ignorant fishermen, and, above all, the abuses arising from the use of fixed engines, and the loose manner in which the close seasons were fixed, threatened the total destruction of the fish. To remedy this state of things, several statutes have at length been passed, applicable to Great Britain.
The first pages of the work proper have this Python-esque clarification:
To prevent any misapprehension, it is defined [by the Salmon Fishery Act of 1861] that the word " salmon" includes all migratory fish of the genus salmon, whether known by the names salmon, cock or kipper, kelt, laurel, girling, grilse, botcher, blue cock, blue pole, fork tail, mort, peal, herring peal, May peal, pugg peal, harvest cock, sea trout, white trout, sewin, buntling, guiniad, tubs, yellow fin, sprod, herling, whiting, bull trout, whitling, scurf, burn tail, fry, samlet, smolt, smelt, skirling or scarling, parr, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other local name; and that the expression "young of salmon" includes all young of the salmon species, whether known by the names of fry, samlet, smolt, smelt, skirling or skarling, par, spawn, pink, last spring, hepper, last brood, gravelling, shed, scad, blue fin, black tip, fingerling, brandling, brondling, or by any other name, local or otherwise...
On a more serious note, the work shows that the feasibility principle (or best available technology) was part of Victorian fisheries law:
To protect the fish from poisonous substances it is provided that every person who permits to flow, or permits to be put into any waters containing salmon, or tributaries thereof, any liquid or solid matter, as to cause the waters to poison or kill fish, will incur upon the first conviction a penalty not exceeding five pounds....  But no person will be subject to these penalties for any act done in the exercise of any right, if he prove that he has used the best practicable means, within a reasonable cost, to render harmless the matter so permitted to flow or to be put into waters.... It is obvious that, for preventing the destruction of fish, a mining company realising an immense income might reasonably be called upon to expend a much larger sum than an individual proprietor of a small paper-mill...

Friday, March 16, 2018

Property and water in Sasanian and early Islamic Iraq

Last August's Environment and History had an article by Michele Campopiano, "Cooperation and Private Enterprise in Water Management in Iraq: Continuity and Change between the Sasanian and Early Islamic Periods (Sixth to Tenth Centuries)". The article has a lot on the property system of the Sasanians and its relationship to water management. The abstract:
This article shows that the management of water resources in Late Sasanian and Early Islamic Iraq (sixth to tenth centuries ad) implied the participation of local communities and the mutual cooperation of landholders. The organisation of water management in the Late Sasanian Period (sixth to seventh centuries) depended on a highly complex system of interaction between local communities, aristocratic rulers and the imperial bureaucracy. This interaction allowed the government to gather information from different regions of the empire and to understand the needs of the different stakeholders. As such, the system provided a favourable institutional framework for the expansion of irrigated agriculture. The system changed when landholding conditions were transformed in the Early Islamic period, during the ninth century. These institutional transformations allowed the influence of a group of tax-farmers and merchant-bankers to increase. Irrigation policies were therefore bent to the interests of these new elites, which often lay in short-term gains rather than in long-term success. The article suggests that, in the long run, these socio-economic and institutional changes contributed substantially to the breakdown of the agricultural system in Ancient Iraq.
The dry bed of the Nahrawan Canal near Samarra, photographed by Gertrude Bell in 1909

Wednesday, March 14, 2018

Environmentalism and racism

Michael Wise reviewed Miles Powell's Vanishing America: Species Extinction, Racial Peril, and the Origins of Conservation (Harvard UP, 2016) in October's Environmental History. From the review:
As environmental historians, our frequent assertion that “humans are a part of nature” often comes with little recognition of the fact that slave owners, eugenicists, and a variety of other white supremacists insisted on the very same thing for generations before we first noticed a trouble with wilderness. Miles A. Powell’s Vanishing America directly assesses the converging project of American race-making and American environmentalism over the last two centuries, and it does so with sophistication and uncompromising clarity. The troubling stories that Powell uncovers implicate many of the founding figures of American environmental thought within a tradition of white nationalism that positioned the problem of species extinction as a symptom and symbol of America’s racial degeneration.
Far from existing at the fringes of national discussions over the historical relationships between humans, nature, and extinction, Powell reveals how ideas about race rested at their very center. George Perkins Marsh, for instance, in the decade after the Civil War, claimed that the Anglo-Saxon race reached its zenith in America as a result of “pioneer experiences” that wrought civilization from the wilderness, and he feared that this white racial stock would fall victim to its own successes as it continued to consume nature through the nation’s industrial metabolisms. Marsh’s connection between the destruction of animal species and the loss of white racial virility anticipated the more familiar anxieties of “race suicide” penned by Madison Grant, William Temple Hornaday, and Theodore Roosevelt by more than a generation. Likewise, in the wake of the frontier’s passing, Frederick Jackson Turner summoned evolutionary theory in tirades against immigrants to the United States, fearing that the naturally selected adaptations of Jews, in particular, to endure “the unsanitary and indecent conditions of a dangerously crowded population,” equipped Jewish immigrants as a sort of invasive species, able to outcompete and exterminate native-born Americans, despite being “a people of exceptionally stunted and deficient lung capacity” (p. 53). Even Aldo Leopold’s classic statements on carrying capacity and predatory–prey relationships come under Powell’s insistent scrutiny, as a final chapter demonstrates the centrality of Leopold’s scholarship to the neo-Malthusian human ecologies of extinction proposed by his friends, William Vogt and Paul Ehrlich. These and other stories provide ample evidence of the significant ways that ideas about race informed ideas about the environment, and, in particular, how white anxieties about species extinction aligned with fears of what the eugenicist, Klansman, and Harvard-educated historian Lothrop Stoddard termed, in 1920, “the rising tide of color.” By the middle of the twentieth century, these white supremacist concerns over race and nature carved, according to Powell, “an enduring divide between America’s environmental movement and the nation’s non-white citizenry” (p. 163).
For more on this topic, see here and here.

Sunday, March 11, 2018

Digital Library VI: The Laws of England Relating to Public Health (1848)

This weeks addition to the digital library of historical environmental law is Joshua Toulmin Smith's The Laws of England Relating to Public Health, published in London by S. Sweet in 1848. The full title continues: Including an Epitome of the Law of Nuisances, Police, Highways, Waters, Water Courses, Coroners, Burial, &c. Relating Thereto; with an Historical Review of the Law of Sewersl and an Examination of the Proposed Measure of Sanatory* Legislation Now Before Parliament. As you can tell from the title, "public health" in the Victorian era included much of what we would today label "environmental law".

You wouldn't know it from the title, but Toulmin Smith was a major critic of England's mid-nineteenth century public health legislation, as Noga Morag-Levine has explained. A sort of "free-market environmentalist" of his time, he argued that the new centralized, administrative regulatory mechanisms enacted under Edwin Chadwick's reformist program--what Toulmin Smith called "empirical legislation"--were inconsistent with the English constitution, which (he argued) required regulation through the common law. (Compare Philip Hamburger's recent arguments in this vein.) So Toulmin Smith's work was more of an attack on contemporary environmental and health regulation than a treatise summarizing the law, as he explained in his Introduction:
The object of these pages is very simple. It is to show that the care, by law, for the public health, and for removing causes injurious to public health, is no new thing : that the law of England has ever had a most careful regard for all that concerns the public health: that the principles of the common law in reference to the matter are clear and decisive, and may be taken as models of what law should truly be in its regard for the welfare of the people. It is, further, to show that though, as manners and customs change with passing time, the machinery for carrying out certain principles of law into practice may be modified, those principles, based as they always are on national peculiarities, ought never to be neglected for the sake of introducing novel or speculative doctrines. Thus, it being a principle of the common law that any noxious accumulation is a nuisance which ought to be abated, it may be of little importance whether it be abated, in one age, by the bailiff of the court leet, or, in another, by the inspector of police; but it is of very great importance that new and theoretical remedies, interfering with numerous private rights and honest prejudices, should not be introduced and made compulsory.
The Common Law of England has been, in all ages, the great bulwark of the liberties of Englishmen. It is just in proportion as the principles of that common law have been neglected or superseded that those liberties have been endangered. And the people are bound to take care that, in the anxiety for sanatory improvement, no fresh invasion of those liberties do take place. For this purpose it is necessary that the principles of the common law be well known to the people themselves ;—and it is desired to be understood that these pages are addressed, for that purpose, to the general reader ; and that it has, therefore, been endeavoured to divest them of technical treatment.
It seems that Toulmin Smith's anti-regulatory agenda also made him something of a cholera skeptic:

Friday, March 9, 2018

Ghostworkers and Greens

October's Environmental History had a review by Erik Loomis of Adam Tompkins's Ghostworkers and Greens: The Cooperative Campaigns of Farmworkers and Environmentalists for Pesticide Reform (Cornell UP, 2016). Tompkins's book seems to add to a growing body of work on the labor movement as a force behind important developments in environmental regulation. From the review:
Because legislation excluded agricultural workers from the New Deal’s labor protections, farmworkers lacked political power, forcing them to seek alliances with middle-class organizations to win their battles and protect themselves from the chemicals used by growers. Environmental organizations needed farmworkers to counter accusations of being anti-worker and to ground their claims in the lived experiences of the most affected populations. The UFW’s 1970 grape contract included provisions that banned growers from using chlorinated hydrocarbons such as DDT and dieldrin. This laid critical groundwork for environmental groups’ final push for an EPA ban on DDT in 1972. As the 1970s went on, the Sierra Club and other leading environmental organizations developed a growing awareness of social justice and believed they had a natural alliance with farmworkers. This can be overstated, as the 1990 letter sent by the Southwest Organizing Project to major environmental organizing accusing them of “racist and exclusionary practices” demonstrates. Perhaps Tompkins could have evaluated these accusations in the context of his work on environmentalist work with farmworkers, but he does not.
Three later chapters on state-level activism in Arizona, California, and Florida are where Tompkins digs deep into the details of coalition building. In Arizona, years went by with suburban white environmentalists and rural Latino farmworkers missing each other as they each went through waves of activism over pesticides. Finally, the two groups built a meaningful alliance after agricultural pesticide drift threatened expanding suburbs in the mid-1980s, leading to the Arizona Environmental Quality Act in 1986. In California, both groups fought Governor George Deukmejian’s deregulation efforts in the 1980s, but often with different priorities that hampered close cooperation, even as good relationships between them were cultivated and maintained. Finally, Tompkins closes the book with an examination of how farmworkers and environmentalists worked together in Florida and California against methyl bromide after growers’ associations launched a battle to resist the limitations on its use the United States agreed to in the Montreal Protocol in 1987 to fight ozone depletion. Greens and workers could not completely counter the growers’ power, but their work did raise public awareness about the chemical and led to growers seeking alternatives, even as it is still used today. 

Tuesday, March 6, 2018

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:
early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.
Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:
"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries."