Environmental laws circa 1970

The Journal of Global History recently published Lena Joos's "‘Only One Earth’: Environmental Perceptions and Policies before the Stockholm Conference, 1968–1972". The article is based on a comparative study of sixty-three preparatory country reports for the UN Conference on the Human Environment 1968–1972 (UNCHE). One of the article's sections, "Environmental policy measures around 1970 in global comparison", has a lot of information on environmental laws in these countries at the time, including a table with dozens of laws from various countries on a variety of environmental issues. Joos writes that legal measures were the most widespread reported approach to solving environmental problems:

In 1972, forty-nine countries (78%) had legal regulations on the environment in place. Three different forms of legal measures can be distinguished at the national level. Firstly, environmentally significant changes to the legal framework, for example, laws, which defined the responsible actors and empowered them with the requisite powers. Other measures of this type were laws that regulate, for example, the granting of licenses and the privatisation or nationalisation of environmentally significant goods. For example, authorities issued licenses for hunting animals (Botswana, Israel), forest areas (Brazil, DRC), and industrial sites (Denmark, Israel, Norway). Privatisation was not mentioned in any report; nationalisation of forests occurred in Nepal (1956) and Iran (1963); nationalisation of the land was introduced in Senegal (1964). Overall, however, measures concerning ownership were rarely reported, even in socialist countries. The second form, legal requirements, can further be divided into precepts and prohibitions. For instance, countries set emission standards for industries (Canada, Japan), motor vehicles (Denmark, Ireland, the USA), or required filters for the production process (Brazil, FRG, Norway, Portugal, Sweden, Ukraine, Yugoslavia). Prohibitions aimed at preventing actions harmful to the environment were widespread and mentioned in 71% of the reports. The most famous example was the prohibition of the pesticide DDT, which was banned by nineteen of the sixty-three countries between 1969 and 1971. Closely linked to the requirements and prohibitions was the third form of legal measures: the sanctioning of environmentally damaging behaviour, e.g. fines for polluting activities.

Not all countries surveyed implemented legal environmental standards. And the mere existence of environmental legislation says little about the level of detail and the design of the laws. Thus, while many countries had environmental laws, in most, these were fragmentary. Around 1972, according to the reports, only Japan, Sweden, the GDR, and Switzerland had comprehensive environmental laws. In all other cases, the laws covered only one specific sector of the environment such as the protection of wildlife, air preservation, soil conservation, nature and landscape protection, water and sea protection, town planning, forest conservation, noise, radiation protection, waste management, and pesticides. In terms of the implementation date, individual environmental laws were in some cases implemented before 1950. However, most of the laws mentioned in the country reports originated in the fifteen years before the UNCHE. The large-scale establishment of environmental legislation was thus a fairly recent development around 1970 and can be connected to some extent to the preparatory process of the UNCHE.

This is an interesting and important argument, though I'd like to see more evidence before being convinced that a law enacted in 1960 should be credited to the preparatory process of the UNCHE. 

12 June 1972 - Meeting of the Second Committee of the United Nations Conference on the Human Environment, Stockholm, Sweden. At the presiding table during the meeting of the Second Committee (left to right): Mr.Luis Perez Arteta, Programme Director of the Second Committee; Joseph Odero-Jowi (Kenya), Chairman of the Second Committee, and M. Plehn-Mejia, Committee Secretary. (Photo Credit: UN Photo/Yutaka Nagat)

Joos goes on:

Not so fast: Nature versus the Common Law concludes

I haven't posted in the last few weeks, leading my friends at the Legal History Blog to reasonably conclude that my series on Nature versus the Common Law was finished. But now I have some time to post what is in fact the final installment in the series.

The posts in this series, based on my article in Clio@Themis, aimed to illustrate a once-common way of thinking about law and legal claims, in which the natural environment was held not only to provide the physical background on which polities and their legal systems existed, but to demand from these legal systems a measure of accommodation. For some judges, it is true, the demands of nature, however worthy or desirable from a social or economic point of view, had no place in court; a judge's role was to resist such claims in the name of the law. For many others, however, environmental realities might be imbued with normative force powerful enough to outweigh considerations of legal precedent and tradition. Moreover, while environmental differences could sometimes break the chains of black-letter law, environmental similarities might at the same time create new legal bonds, as in the Indian and Canadian cases that looked to the law of the independent United States of America, with is great rivers, for legal guidance. All this is to say that in the context of water law in the British Empire, nature could often be "jurisgenerative", to use Robert Cover's term – creating law.

The environmental rhetoric of these courts may, at first glance, seem but a particular instance of the wider phenomenon of colonial and newly independent courts working to stake out the independence of their legal systems from the law of the old country. Yet this would be a mistake: Most of the judges arguing for nature's normative force were themselves British; and in the cases examined here even judges of the independent United States argued not for a general rejection of the English common law, but for the inapplicability of some of its water law rules due to supposed environmental incompatibility.

In conclusion, though, it should be noted that this study has shown that nature also had a "jurispathic" role, impeding the smooth flow, or "transplant", of legal norms around the empire. Legal norms, in particular the common law, spread around the British Empire through a network of orders, legislation, publications, correspondence, educational institutions, career paths, and more. Yet the spread of norms, never smooth, was hampered by a number of factors, some of them natural : distance, forbidding seas, and monsoon winds, to name a few. These factors impeded the transmission of legal ideas and norms in all areas of law. At the same time, this study has highlighted an additional mechanism through which nature sometimes frustrated the spread of norms: perceived environmental similarity and difference.

Nature thus had a dual normative role in this context: creating new norms while at the same time extinguishing others. One need not take a deterministic view of the place of nature in legal history, nor recognize in nature any sort of agency of the intentional kind, to acknowledge that nature had an important role in constituting the connections that both facilitated and obstructed the global flow of water law in the age of empire.

Yet if the first set of law-impeding environmental factors, deriving from physical impediments to legal communication, has historically applied with similar force across all areas of law, the efficacy of the latter mechanism, based on perceived environmental factors, presumably has been correlated with the degree to which the area of law directly dealt with environmental issues. With regard to water law, as we have seen, whether environmental conditions in fact dictated or determined the rejection of common law norms, it is clear that judicial perceptions of nature did play a role in impeding the spread of English norms in this field. I have argued elsewhere that forest law, too, was at least in some contexts heavily influenced by perceptions of environmental foreignness and change. Further study might reveal similar patterns with regard to other related areas of law, from sanitation regulation to wildlife protection.

Happy spring holidays!