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:

The marine "commons" discourse

Next in the series of posts (the last one is here) on "The Tragedy at 50" (by the way, if anyone wants a hard copy of the journal issue, please email me), is Harry Scheiber's "The 'Commons' Discourse on Marine Fisheries Resources: Another Antecedent to Hardin’s 'Tragedy'". The abstract:

Throughout the fifty years since its publication, Hardin’s “The Tragedy of the Commons” has been regarded as a seminal paper in the environmental movement, although his emphasis on population control (which actually formed the core concern of the article) has been largely forgotten. Hardin argued that free access by a growing population to common resources would inevitably lead to the depletion of those resources, citing as one example how maritime nations’ belief in the freedom of the seas, combined with their belief in the inexhaustibility of marine resources, had brought whales and many species of fish close to extinction. Hardin failed, however, to take account of the extensive debates throughout much of the twentieth century by scientists and policymakers on the general problem of the ocean commons — what they generally termed the “dilemma of the commons” — as it applied not only to living marine resources but also to mineral resources. By mid-century, as improved fishing technology gave rise to ever greater catches, the notion of the inexhaustibility of fisheries was largely discredited; hence scientists as well as experts in both national and international law became focused on addressing the dilemma of the commons through fisheries management, and specifically by determining the Maximum Sustainable Yield. Some economists, arguing instead for maximum efficiency, urged that open access be abandoned in favor of limited entry. Such measures to resolve the dilemma of the commons were the subject of numerous conferences (including the second UN Conference on the Law of the Sea in 1958) and were widely debated in scholarly publications and, indeed, by the late 1960s had been practically implemented by a number of laws and treaties. By 1966, national control over a twelve-mile fishing zone offshore of coastal nations had been well established. These developments regarding the oceans commons, predating Hardin’s article, were apparently either of no interest to him or (if he knew of them) purposefully subordinated to his main polemical objective, which was his Malthusian analysis of the commons issue and his call for limits on “human breeding.”

The World Heritage Convention

The website of the Institut Heritage Studies has three reviews of the oddly titled (or translated) 40 Years World Heritage Convention: Popularizing the Protection of Cultural and Natural Heritage by Marie-Theres Albert and Birgitta Ringbeck (De Gruyter, 2015). Some excerpts from Klaus Hüfner's review:

The Convention for the Protection of Cultural and Natural Heritage (World Heritage Convention) was adopted by the General Conference of UNESCO in November 1972, but only came into force in 1975. The Convention, to date ratified by 191 States, belongs without doubt to the most successful international legal documents; it enjoys a tremendous popularity not only in Germany but also worldwide.

*****

The volume consists of seven chapters. The introductory Chapter 1 postulates the preservation of heritage as “an exceptional political, participatory and interdisciplinary act” (p. 2). It follows that it is necessary both in the nomination as well as in measures for the preservation of cultural and natural sites that, “as far as possible, all groups of affected peoples at the local, national or international levels” be involved (p. 3). This demand for critical and constructive participation runs like a red thread through the individual chapters. Another critical remark, on which following chapters go into depth, refers to the Eurocentric predominance. The authors speak of a “glaring imbalance” between the objectives and the implementation of the Convention when one considers the number of inscribed sites in Europe and North America compared to the rest of the world (pp. 5-9). 

*****

Chapter 3 discusses in more detail the evolution of the World Heritage Convention and the associated perspective changes over time, among which four phases are distinguished, which moved away from the initial strict, conservative interpretation towards a popularization of World Heritage. Already in the first phase (1978-1991) the imbalance between “Europe and the rest of the world” (p. 60) could be seen in inscriptions, which, in spite of the increase in the total number of inscriptions in the following three phases up until 2013, still hovered around 50 percent. In 1994, UNESCO finally adopted a Global Strategy to reduce the geographical and cultural imbalances. It involved the question of “how to integrate the visions of cultural diversity as defined in the Convention in the form of intercultural, religious, authentic or social views of diversity into the overall aspect of heritage” (p. 84). But the imbalance continued, the lack of financial and human resources needed to successfully complete the nomination process being suggested as a key reason (p. 93). 

The law and climate change under Reagan and Bush I

President Bush signs the UN Framework Convention on Climate Change in Rio, June 1992
(Source: UN)

It may seem like ancient history today, but a mere twenty-five years ago US Republicans supported climate change legislation and treaties, as Greg Dotson reminds us in a post at The Conversation:

In 1987, President Reagan signed the Global Climate Protection Act into law, giving the EPA the lead agency role in developing and proposing a “coordinated national policy on global climate change.”

In 1992, President George H. W. Bush negotiated the landmark climate treaty the United Nations Framework Convention on Climate Change. Upon reaching the agreement, Bush EPA Administrator Bill Reilly wrote that a number of EPA programs would play “a key role in enabling the United States to meet the goal of the Climate Change Convention: to cut greenhouse gas emissions using a benchmark of 1990 levels.” For example, EPA’s Green Light Program which Reilly had initiated in 1991 gave birth to the Energy Star program in 1992, a voluntary program that helps businesses and individuals protect the climate through energy efficiency.

When the U.S. Senate ratified the Framework Convention in 1992, Senator Mitch McConnell said it was “a fine agreement.” The EPA assumed the duty of preparing the official U.S. Inventory of Greenhouse Gas Emissions to comply with the nation’s commitments under the treaty.

More on conservatives and environmental regulation here and here.

In memoriam: Wolfgang Burhenne

January 6 saw the passing of Wolfgang Burhenne, a key figure in post-war German and international environmental law, at age 92.

A review by Tracy Mehan in the Environmental Forum earlier this year tells explained that Burhenne spent much of World War II imprisoned by the Nazis for aiding the resistance. Then, after the war:

through an unpaid engagement with a hunting club, he eventually obtained employment with the hunting administration of the Free State of Bavaria. There he became involved in hunting legislation. And so his passion became the preoccupation of his professional life. Hunting shaped his ideas on sustainability, i.e., “use natural resources in a way that allows full recovery.” “Sustainable use is a principle I have always known from hunting,” maintained Burhenne.

Burhenne and his second wife, Françoise, were “directly involved in nearly all major international conventions concerned with conservation over the past 25 years, and the development of the World Conservation Union (IUCN) Environmental Law Center in Bonn,” as described by the United Nations Environment Program when awarding them the UNEP International Environmental Prize in 1991. “No two people have done more to strengthen the position of international and national environmental law as a fundamental element of environmental management,” according to the citation....

Wolfgang Burhenne was a highly successful policy entrepreneur and the node connecting several nongovernmental organizations and foundations, some of which he basically created from scratch. His wife provided the intellectual ballast while he forged the alliances, negotiated the treaties and raised the money. Together they worked on countless drafts and treaties that are the foundation of much of international environmental law, among them the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1979 Convention on the Conservation of Migratory Species of Wild Animals, the 1982 UN World Charter of Nature, the 1985 ASEAN Agreement on the Conservation of Nature and Natural Resources, and the 1992 Convention on Biological Diversity.

More Polanyi, and international environmental law

Karl Polanyi seems to be making a comeback on the pages of the Journal of Environmental Law. Alongside Ben Pontin's review essay discussed here yesterday is Jeffrey McGee and Jens Steffek's "The Copenhagen Turn in Global Climate Governance and the Contentious History of Differentiation in International Law". They write:

Since its inception in 1992, the United Nations (UN) climate regime has made a key ontological distinction between ‘developed’ and ‘developing’ countries....

***** 

However, the outcome of the UNFCCC COP 15 meeting, the ‘Copenhagen Accord’, radically changed the nature of the promises made by countries about reducing greenhouse gas emissions. Instead of requiring developed countries to adopt more ambitious and legally binding emission reduction targets, the Copenhagen Accord invited all countries to simply make non-binding pledges for the period 2013–20. Binding targets and timetables for emission reduction, for developed or (the more advanced) developing countries, had fallen off the negotiating table. The Copenhagen Accord thus provided a radically different architecture for the future of global climate governance than that established under the Kyoto Protocol. This was reaffirmed at the 2012 UNFCCC COP17 meeting in Durban when the formulation of a future global climate change regime ‘applicable to all Parties’ became diplomatic shorthand for a ‘political expectation that the climate regime must contain greater symmetry in the commitments’ between developed and developing countries. 

***** 

The historical and theoretically grounded analysis of the Copenhagen turn provided here necessarily operates at the intersection between legal doctrinal analysis and the interdisciplinary perspective provided by historical economic sociology. Our methodological claim is that in order to understand the outcome of the Copenhagen COP 15 meeting it is necessary to embed the doctrinal understanding of emission reduction commitments in the UNFCCC within the wider context of the ongoing history of distributive conflicts between developed and developing countries in the post-World War II period. It is only through the lens of these distributive conflicts between developed and developing countries, which are best viewed from the perspective of historical economic sociology, that the pattern of prescriptive formal differentiation of commitments on emission reduction before Copenhagen, and the subsequent breakdown in this pattern at Copenhagen, can be fully understood.

The starting point of our analysis is Karl Polanyi’s 1944 classic in historical economic sociology, The Great Transformation. Polanyi’s key insight was identifying a dialectical ‘double movement’ in the historical evolution of Western societies which centred on an alternation of efforts to disembed markets from society and re-embed markets into society. In other words, Polanyi identified in Western society phases of economic liberalisation and market-making (which disembed markets from society) contrasting with periods of political interventionism (to re-embed markets within society). Drawing on Polanyi’s work, John Ruggie identified a historical post-war compromise between global market-making and political interventionism which he coined ‘embedded liberalism’. This term describes a design for global governance that was based, on the one hand, on an international division of labour and the notion of the comparative advantage that was encouraging the making of global markets and trade liberalisation. On the other hand, embedded liberalism also allowed states sufficient discretion in domestic policymaking to cushion their economies and citizens from the more adverse effects of international liberalisation.

However, the historical compromise of embedded liberalism was unsatisfactory for developing countries. During the 1960–70s developing countries, therefore, called for an alternative design for the institutions of global governance, described by Steffek as ‘redistributive multilateralism’ (RM), in which international market activity was embedded within international society by differentiation of obligations and international transfers of wealth from developed to developing countries. The United Nations Conference on Trade and Development (UNCTAD) was the first global institution to exhibit a RM design. The differentiation of obligations between developed and developing countries in the UN climate regime might also be viewed as an important instance of RM. However, we claim differentiation of obligations in the UN climate regime is in significant conflict with the neoliberal principles that have come to dominate international governance in recent decades and that largely supplanted post-war ‘embedded liberalism’ in the West. We, therefore, contend that focussing on this historical tension between neoliberal and redistributive designs of institutions offers a new and important perspective on the shift in global climate governance that occurred in 2009 at Copenhagen.

The Copenhagen COP 

Sustainability: of forests, ships, and law

[Another guest post, with lots of useful references, by Peter Sand of the Institute of International Law, University of Munich (see here for his earlier post on Karl Neumeyer). Revised from Environmental Policy and Law 37:2-3 (2007) 201-203. Notes are after the break.]

“Sustainable development” has become a household word – if a heavily loaded one – to international lawyers, economists and green politicians alike. Yet, the etymology of the term spans a number of other disciplines, and more than three centuries of environmental history.

The Report of the ‘Brundtland Commission’, published in 1987,[1] had borrowed the term from the 1980 IUCN/UNEP/WWF World Conservation Strategy, drafted under the guidance of the then Director-General of IUCN, Dr. David A. Munro (left) – distinguished Canadian forester and wildlife biologist (1923-2004).[2]

Canada’s oldest forest school is the Faculty of Forestry at the University of Toronto. Its founder (in 1907), and first dean until 1919, was a German forester, Bernhard Eduard Fernow (1851-1923) – who from 1886 to 1898 had served as the first chief of the US Division of Forestry (which later became the Forest Service within the Department of Agriculture).[3] Fernow was the architect of the 1891 Forest Reserve Act (part of the General Public Lands Reform Act of 3 March 1891), which laid the ground for ‘creative’ conservation measures on the federal public domain – and it comes as no surprise that he had originally studied law (at the University of Königsberg).[4] His successor as US chief forester was Gifford Pinchot (PhD in forestry, University of Munich 1898; founder of the Yale School of Forestry in 1900, now School of Forestry and Environmental Studies),[5] whose mentor and role-model had been another German forester, Sir Dietrich Brandis.[6] Brandis, after obtaining his PhD in botany at the University of Bonn, had joined the British colonial service in 1856 as ‘superintendent of forests’ in Burma, and from 1864 to 1883 served as first Inspector-General of Forests in India and Pakistan.[7] He was Rudyard Kipling’s legendary “gigantic German, head of the woods and forests of all India, head ranger from Burma to Bombay”.[8] His practices and principles of ‘sustained yield’ forest management – and those of his successors, Sir William [Wilhelm] Schlich (1840-1925, founder of the Royal Indian Forestry College at Cooper’s Hill, since 1905 at Oxford)[9] and Berthold Ribbentrop (1843-1917, Inspector-General of Indian Forests from 1885 to 1900)[10] – had a lasting influence on generations of foresters in North America, Asia, Australia and New Zealand.[11]

The theoretical basis for forest management, including the concept of ‘sustained yield’, had been developed in the 18th and 19th century at specialized forestry academies in Germany, such as Tharandt in Saxony and Münden in Hanover (where both Fernow and Ribbentrop graduated).[12] The pioneering scientific treatise on the subject was the ‘Sylvicultura Oeconomica’ (at top) published in 1713 by Johann [Hannss] Carl von Carlowitz (right, 1645-1714),[13] lawyer and manager of the Duke of Saxony’s silver mines (hence vitally dependent on long-term timber supplies!). It comprised the first formulations of such ‘post-modern’ terms as precaution [Praecaution, Vorsorge] for intergenerational benefits [den Nachkommen zum Besten], by sustained use [nachhaltende Nutzung]; and it was followed by other works now postulating a general policy of sustainable forest economics [nachhaltige Wirtschaft mit unseren Wäldern].[14]

Carlowitz in turn had drawn the inspiration for his innovative policies from multiple sources. After completing his legal studies at the University of Jena, he had taken the customary ‘grand tour’ of Europe in 1665-69, travelling to Italy, the Netherlands, Scandinavia, England and France. A focus of his attention at the time were the administrative reforms undertaken by Louis XIV’s powerful minister of finance, Jean-Baptiste Colbert (1619-1683, right); in particular, the great reorganization of French forestry governance which culminated in the ‘Ordonnance des eaux et forêts’ of 1669.[15] 

It must be kept in mind, though, that Colbert’s own concern for the conservation and sustainable use of France’s forest resources had very precise strategic motivations; i.e., the long-term security of timber supplies for the ship-building industry, which was the basis of French naval power.[16] Sure enough, there had been ominous historical warning signals before: The decline of Venetian maritime dominance in the Mediterranean during the 16th and early 17th century was widely attributed to timber shortages in naval construction, caused by deforestation.[17] It was no coincidence, therefore, that another contemporary pilot text which Carlowitz acknowledges among his source references – Sylva: A Discourse of Forest-Trees, and the Propagation of Timber in His Majesty’s Dominions (1664), by John Evelyn (English lawyer and writer, 1620-1706, educated at Oxford’s Balliol College and the Middle Temple, right)[18] – had been compiled and published at the request of the Commissioners of the British Navy.  After the Napoleonic Wars, Isaac D’Israeli noted that the fleets of Admiral Nelson had been constructed “with the oaks which the genius of Evelyn planted.”[19] For the same strategic reasons, Russian Tsar Peter I in 1703 had designated the oak forests of Kharkov and Simbirsk as permanent state reserves for ship timber;[20] and in 1817, the US Secretary of the Navy obtained statutory authorization to reserve public oak forest lands for ship-building.[21]

In retrospect, then, the concept of ‘sustainable development’ may indeed be said to have its historical roots in subtle power politics as much as in bona fide intergenerational equity.

Maximum Sustained Yield

H-Environment recently posted a Roundtable Review of Carmel Finley's All the Fish in the Sea: Maximum Sustainable Yield and the Failure of Fisheries Management (U Chicago Press, 2011). Particularly interesting are the comments by Sayuri Guthrie-Shimizu. Some excerpts:

In her discussion of the surprising flimsiness of MSY as a scientific concept, Finlay points to the “scientific racism” beneath the attitudes of the American public officials and scientists concerned with fisheries regulation at mid-century. They long held the notion, or even truism as it were, that Japanese fish science was at best woefully lacking by Western standards of scientific rigor, and at worst nonexistent. In fact, Finley argues, Japan, because of its dependence on marine living resources, had a long and venerable history of studying fish stocks and their husbandry going back to the industrialization of the nation’s inshore and coastal fisheries in the nineteenth century. Japan was also a respected source of knowledge in the inchoate fish science sought by other nations from the 1930s on, including the United States…. Works by historians of Japanese fisheries such as Yoshitaka Takahashi attest that Finley is right: Japan had indeed developed a sophisticated administrative system of fisheries management based on systematic accumulation of data even before Japan was “forced open” by Commodore Matthew Perry and famously exposed to the benefits of Western science and technology. Another interesting point Finley makes about various iterations of American racism or ethnocentrism tainting the views of American scientists and practitioners is that the United States vilified the efforts by Central American coastal nations such as Ecuador and Peru to curb American bait fishing off their shores as an attempt to extract a “tribute” from US fishermen, and they refused to regard such control as a legitimate administrative prerogative exercised by sovereign states on a par with the United States.

Environmental justice in India

Environmental Justice recently published Ravi Rajan's "A History of Environmental Justice in India". The abstract:

Indian environmentalism has, for the most part, been about social justice. During the 1970s and 1980s, it was concerned with differential access to natural assets and ecosystem services. The Bhopal Gas Disaster of 1984 raised new issues, pertaining to industrial risk and safety. This article traces the history of environmental justice from the 1970s onward. It describes the perspective of Indira Gandhi, India's Prime Minister from 1967 to 1984, and her attempts at reconciling the environment with development and economic justice; discusses the emergence of a red-green environmentalism during the 1980s and 90s; and explores Bhopal and its implications; before addressing the issues that are front and center today, in the early twenty-first century.

The article has some trenchant quotes from Indira Gandhi's speech, "Man and Environment", at the United Nations Conference on Human Environment at Stockholm in 1972. Here's one:

The extreme forms in which questions of population or environmental pollution are posed, obscure the total view of political, economic and social situations…It is an over-simplification to blame all the world's problems on increasing population. Countries with but a small fraction of the world population consume the bulk of the world's production of minerals, fossil fuels and so on. Thus we see that when it comes to the depletion of natural resources and environmental pollution, the increase of one inhabitant in an affluent country, at his level of living, is equivalent to an increase of many Asian, Africans or Latin Americans at their current material levels of living…All the “isms” of the modern age—even those which in theory disown the private profit principle—assume that man's cardinal interest is acquisition. The profit motive, individual or collectives, seems to overshadow all else. This overriding concern with self and today is the basic cause of the ecological crisis.

Rajan writes:

Indira Gandhi's Stockholm speech was not just a one-off rhetorical flourish in an international forum. It also came to signify the codification of India's approach to development in the second half of the twentieth century. The essence of this approach was that India would strive to harness its natural resources, and invest in modern technology to raise the quality of economic life of the average person. At the same time, efforts would also be made to conserve the environment and preserve its vital forces. Indira Gandhi recognized that there were many shades of gray, and that this grand strategy was easier to talk about rhetorically than implement in practice. For example, she grappled with the consequences of development upon India's tribal peoples and their cultures, only to reconcile the inevitability of development. Again, despite her vehement critique of Western population control advocates, she ended up presiding over an extremely coercive, government-sponsored, forced sterilization program. She lamented the increasing monocultures that resulted with the pursuit of industrial forestry by the government's own forest department but appeared frustrated that her own government did not heed her concerns. In many speeches she repeated the argument in Stockholm that Western industrialism was not a paradigm for countries like India; and articulated the need for balance and alternatives, including, for example, appropriate technology and renewable energy. Yet, she offered no concrete alternatives or pathways for environmental governance.

Ownership of natural resources in the Third World

Tomorrow is the 41st anniversary of the Chilean coup d'état in which a military junta with Augusto Pinochet at its head overthrew the government of Salvador Allende. A while back Chris Dietrich had a very interesting post on Imperial & Global Forum in which he explored the motivations behind the vehement American opposition to Allende's regime. Some selections:

“Allende was assassinated for nationalizing the . . . wealth of Chilean subsoil,” Pablo Neruda wrote on September 14, 1973. Neruda was lamenting the overthrow and death of his friend, Chilean President Salvador Allende, a week before he himself succumbed to cancer.  “From the salt-peter deserts, the underwater coal mines, and the terrible heights where copper is extracted through inhuman work by the hands of my people, a liberating movement of great magnitude arose,” he continued.  “This movement led a man named Salvador Allende to the presidency of Chile, to undertake reforms and measures of justice that could not be postponed, to rescue our national wealth from foreign clutches.”  Unfortunately, Allende’s flirtation with economic nationalization ran up against the country’s multinational business interests, particularly those that had support from the U.S. government. His socialist reforms were also ill timed; the U.S. government’s ideological view towards the global economy tended towards the Manichean.