The postwar ocean frontier and its legacy for law of the sea

Just out in Environment and History: "Wild Blue: The Post-World War Two Ocean Frontier and its Legacy for Law of the Sea" by Helen Rozwadowski. The abstract:

The post-1945 ocean came to be viewed through the cultural prism of 'frontier', denoting both a bonanza of resources and also lawlessness that impeded secure investment in their exploitation. After Arvid Pardo inserted the cultural representation of ocean frontier into law of the sea discussions with his 1967 proposal of the ocean as the Common Heritage of (Hu)Mankind, the prospect of using hitherto unexploited ocean resources to equalise an unequal world was widely, if not universally, embraced. While many commentators deny the power of the ocean frontier representation, this paper argues that, even as environmental concerns about pollution and declining resources aligned with worries about global overpopulation, the ocean continued, during the protracted negotiations of the third United Nations Conference on the Law of the Sea beginning in 1973, to be viewed as full of resources. The historical context of decolonisation and Garrett Hardin's 1968 Tragedy of the Commons argument reframed the ocean into a site for competition over resources.

Arvid Pardo monument at the University of Malta (Dans)

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:

Negotiating the maritime commons

Another chapter from the previously-noted book, Greening Europe, is "Negotiating the Maritime Commons: Protecting the Baltic Sea in a European Context", by Simo Laakkonen and Tuomas Räsänen. The abstract:

The environmental history of the seas and oceans has generally remained a relatively unexplored theme. This chapter addresses the environmental history of the Baltic Sea, which is a European sea par excellence and the only sea that is entirely located within the continent. We will examine the links between wider historical currents in Europe and the marine environmental history of the Baltic Sea by focusing on three environmental regimes from the end of the nineteenth century until the 1990s. The first environmental regime was developed on an urban level and prevailed from the late nineteenth century until the Second World War. The second environmental regime was developed from the 1960s until the 1970sonaninternational level in the Baltic Sea region. The third environmental regime, spanning the 1980s and 1990s, consisted of developing wider European cooperation. These three different environmental regimes continue to cooperate in the region even today.

Decolonising the Nile water agreements

The latest issue of the Journal of the History of International Law / Revue d'histoire du droit international has an article by Fekade Abebe, "Exclusion vs Cooperation in the Utilisation of Transboundary Watercourses: The Case for Decolonising the Nile Water Agreements". The abstract:

The relationship between Egypt and Ethiopia was marked with tension for centuries due to the utilisation of the Nile river. Recently, it took a turn for the worst after Ethiopia announced it is building the Grand Ethiopian Renaissance Dam (GERD) on the Nile river. This article argues that one important explanation for the deep-seated disagreements between Egypt and Ethiopia is the history of the legal instruments frequently invoked which were set up to safeguard the colonial interest of Britain over Egypt and the entire upper Nile region. Britain’s use of these legal instruments to advance its colonial domination of the region, with disregard to the interests of native communities, had left a legacy of exclusive utilisation over the river which haunts the current legal discourse. The article argues that the Nile basin countries need to acknowledge this colonial legacy in the legal discourse and need to move towards cooperation.

How control of nature shaped the international order

Posted recently to International Law Reporter, a nomination by Gail Lythgoe for the most interesting, important, or influential article or book published in 2022:

Joanne Yao, The Ideal River: How Control of Nature Shaped the International Order (Manchester Univ. Press 2022)

This book explores the geographical imaginaries of three rivers (the Rhine, Danube, and Congo) and how these very imaginaries shaped the constitutions, structure, and life of three early international organizations. It is a marvellous tale of how (and why) experts sought to tame nature and also says much about law’s relationship to the physical geography. I always really recommend and admire it because of how well written and engaging it is.

From the publisher's website:

The ideal river examines nineteenth-century efforts to establish international commissions on three transboundary rivers - the Rhine, the Danube, and the Congo. It charts how the Enlightenment ambition to tame the natural world, and human nature itself, became an international standard for rational and civilized authority and informed our geographical imagination of the international. This relationship of domination over nature shaped three core International Relations concepts central to the emergence of early international order: the territorial sovereign state; imperial hierarchies; and international organizations. The book contributes to environmental politics and international relations by highlighting how the relationship between society and nature is not a peripheral concern, but one at the heart of international politics. 

UNEP at 50

A little while back Environmental Politics carried a review by Katarina Eckerberg of The Untold Story of the World’s Leading Environmental Institution: UNEP at Fifty by Maria Ivanova (MIT Press, 2021). From the review:

UNEP’s mission was to assess the state of the environment and to inform, inspire, empower, and catalyse the UN system in environmental affairs. But why has progress been so slow? There is urgent need to critically assess what UNEP has achieved – and not – in the past 50 years, to investigate why it has yet not become sufficiently powerful in the struggle for a more sustainable world, and what can be done to improve this.

Maria Ivanova’s book helps to understand exactly those issues. It delivers profound knowledge about the functioning of international relations, politics, and administration in practice, by revealing how UNEP’s successes, crises, and turning points have been shaped by both politics, geography, and individuals within and beyond UNEP itself. The book addresses a concern at the core of international environmental politics, focusing on the history and performance of the world’s leading global environmental authority over 50 years.

Its theoretical contribution lies foremost in the thick narratives of the development of our major international environmental conventions – including reversing the depletion of the ozone layer, regional seas pollution, chemicals and waste, climate change, as well as tackling land degradation, and the loss of biodiversity and forests. By applying the concepts of capacity, connectivity, and credibility as elements of performance she guides us through both the empirical analysis and the potential ways forward. Capacity here refers to the people and resources, connectivity to infrastructure and representation, and credibility to authority and legitimacy of the institution.

A model treaty for transboundary pollution

The Scandinavian Journal of History recently published an article by Melina Antonia Buns, "Making a model: the 1974 Nordic Environmental Protection Convention and Nordic attempts to form international environmental law". The abstract:

This article investigates the 1974 Nordic Environmental Protection Convention. It shows that the ulterior motives for such a convention were Nordic ambitions to regulate and reduce transboundary pollution originating outside of the Nordic region. Emphasizing the inter-organizational dynamics between institutionalized Nordic cooperation and international organizations, it examines how the Nordics drew on developments within international organizations and how they pursued their agenda of shaping international environmental law within the OECD. Ultimately, the article argues that the Nordic countries tried to create a model convention to be exported to and implemented at the international level with the aim of reducing transboundary pollution and establishing transnational responsibilities and accountabilities. By setting out this argument and shedding light on the first legally binding international convention to address transboundary pollution with procedural principles, the article breaks new ground on the history of Nordic environmental cooperation as well as on the development of international environmental law.

Black snow, Tryvann, Oslo in 1974 (NILU - Norwegian institute for Air Research, nordics.info)

Acid rain and Nordic-Russian cooperation

The recently published book, Greening Europe: Environmental Protection in the Long Twentieth Century – A Handbook, edited by Anna-Katharina Wöbse and Patrick Kupper (De Gruyter Oldenbourg, 2021), has a number of law-related chapters. One is Arne Kaijser's "Combatting 'Acid Rain': Protecting the Common European Sky",  which has an observation on Soviet-Scandinavian relations that takes on additional interest given the news of the day regarding Sweden, Finland, and NATO. The abstract:

In the late 1960s, Scandinavian scientists asserted that the long-range air pollution was causing serious acidification and that emissions all over Europe would have to be diminished. The prevailing view at the time was that air pollution was a local phenomenon best handled by building high smoke-stacks, and the major polluting countries were opposed to spending money on protecting areas far away in other countries. This chapter analyses how the discovery of “acid rain” triggered the first international research projects to confirm long-range air pollution and how, in a second phase, international negotiations involving scientists, policymakers, and diplomats resulted in the Convention on Long-Range Transboundary Air Pollution in 1979. Later on, special protocols were adopted, and the signing nations promised to decrease their emissions in accordance with specific goals. Cold War politics played an interesting role in the negotiations and led to an unexpected alliance between Nordic countries and the Soviet Union.

Effects of acid rain, woods, Jizera Mountains, Czech Republic

International environmental law panel for ASLH

Reposting from H-Environment:

Dear all,

I am a doctoral candidate at Rutgers University New Brunswick, and I am currently seeking co-panelists for the American Society of Legal History conference to be held in Chicago, Illinois, November 10-12, 2022. The conference welcomes papers dealing with legal history from any time period or geographical area, but is only accepting panel proposals. I am seeking to put together a panel dealing with international environmental law in the 20th century, in the broadest possible sense. My paper specifically will talk about the interplay between international conservation efforts and French national interests in the creation of a "French Antarctic national park" in the subantarctic Kerguelen Islands in 1924.

Here is a link to the ASLH website For more information: https://aslh.confex.com/aslh/2022/cfp.cgi

Panel submissions are due March 18th. I know this is a short turn around but I hope to find interest through this forum. The ASLH is a great organization that offers a helpful forum for discussing a broad range of legal history topics, and is especially supportive of graduate students and early career scholars.

Please feel free to contact me at kms557@history.rutgers.edu if you are interested in joining this panel.

All best,

Katherine Sinclair

Bruno Navez, Remains of vats and boilers at Port-Couvreux, Kerguelen Islands, used for the making of elephant seal oil at the beginning of the XXth century

Yellowstone at 150

Anna Price of the Library of Congress's In Custodia Legis recently posted on the 150th anniversary of the creation of Yellowstone National Park, the US's first. Price goes through the legislative history of the statute creating the park, as well as some of the legal issues that arose, including American Indian treaty rights and potential conflicts with settlers claiming preemption and homesteading rights. The latter issue, as the blog points out, also arose in the context of Yosemite Park in the 1872 US Supreme Court Case of Hutchings v Low (a.k.a. The Yosemite Valley Case).

poster designed by Don C. Powell (LOC)

CFP: The 1972 Stockholm Conference, Fifty Years Later

H-Environment posted a call for papers for a special section of the journal The Annals of the Fondazione Luigi Einaudi. An Interdisciplinary Journal of Economics, History and Political Science on "The 1972 Stockholm Conference, Fifty Years Later: What Legacy?". From the call:

The special issue is meant to commemorate the 50 years since the 1972 United Nations Conference on the Human Environment, universally known as the birthplace of global environmentalism. The Stockholm conference hosted 112 national delegations, UN specialized agencies, international NGOs, and a counter-conference organized by environmental activists. It established a range of institutional, political, intellectual, and cultural developments that made the environment a pressing global issue. Participants adopted instruments such as the Stockholm Declaration and Action Plan for the Human Environment and prepared the ground for the United Nations Environment Programme. This special issue wants to explore the conference and its legacy. The Stockholm Conference established international political goals and legal principles that have underpinned environmental discourse and law-making for a half-century. By stressing that environmental issues are inherently political – and not just scientific and technical - it devised systems for data research and monitoring. It also catalysed multilateral cooperation and treaty-making and the setup of national environmental ministries and environmental laws. Moreover, it contributed to the democratization of environmental debate and policy-making, opening to non-governmental organizations previously not included in the UN system.

The deadline for proposals is 30 March 2022. More details at H-Environment.

National security and climate change

The National Security Archive project recently posted "National Security and Climate Change: Behind the U.S. Pursuit of Military Exemptions to the Kyoto Protocol", a collection of internal papers and accompanying detailed commentary. Burkely Hermann writes:

Journalists and commentators have argued lobbying by the United States meant that the Kyoto Protocol gave militaries a large exemption from emissions targets and standards. However, the documents tell a different story, of exemptions which were not as wide as the Pentagon or critics of the agreement would have liked. These provisions exempted emissions from international operations authorized by the United Nations or those described as in accordance with the UN Charter, and bunker fuels from being added to national emissions totals.

*****

On December 11, 1997, the same day the Kyoto Protocol was adopted, the United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties released a decision which enshrined the exemptions within the treaty itself. The decision stated that emissions “based upon fuel sold to ships or aircraft engaged in international transport,” i.e., bunker fuels, should not be part of national totals. It was further decided that emissions from multilateral operations following the United Nations Charter would not be included in national emissions totals but would be “reported separately”. 

There's lots more detail, including 27 archival documents and scores of links to other sources. The project's website also has many other documents and essays on other aspects of climate change treaty negotiations.

Confidential State Dept. cable, October 26, 1997

The Antarctic and Outer Space Treaties

Aurora australis, Milky Way, and flags at the South Pole (Martin Wolf, NSF)

Sophia Guido recently posted "How the Antarctic Treaty of 1959 Influenced the Outer Space Treaty of 1967" at In Custodia Legis. An excerpt:

After successfully reaching a consensus on the Antarctic Treaty in 1959, countries were eager to apply these already agreed-upon terms to outer space. The result: many articles in both treaties are very similar to each other. For example, during the Antarctic Treaty discussions, many countries wanted to claim part of the continent as their own based on whose citizens discovered a particular area first, but there were many overlaps of land claimed by multiple nations. So, it was decided that no country could claim sovereignty over any part of Antarctica. By putting this article within the outer space treaty, no country can claim ownership over any celestial body in outer space. As more countries develop the technology to send people or objects into space, this idea is more relevant than ever.

One of the main principles of the Outer Space Treaty is that the exploration and use of outer space and the celestial bodies within it should be carried out for the benefit of all countries, regardless of whether it is for scientific or economic purposes, and only for peaceful purposes. Outer space can be freely explored by all states. However, no country can make any territorial claim to any part of outer space or any celestial body, and every country is responsible for any national space activities carried out by their government or non-government entities and will be liable for any damage caused by their citizens. No country is allowed to place any nuclear weapons or any weapons of mass destruction in any part of outer space.

The U.S.–Japan dispute over the whaling moratorium

A recent issue of Diplomatic History published an article by Masaru Nishikawa, "The Origin of the U.S.–Japan Dispute over the Whaling Moratorium". The article begins (footnotes omitted):

On December 26, 2018, the administration of Japanese Prime Minister Shinzo Abe announced it would end its participation in the International Whaling Commission (IWC). While Japanese national parliamentarians who belonged to the pro-whaling caucus welcomed the decision to resume commercial whaling, the decision faced condemnation. For example, the New York Times noted that Japanese authorities ought to reconsider the decision as “[w]ithdrawing from the whaling commission for short-term political gain is a dangerous and foolish move, especially for an advanced country like Japan that has generally supported multilateral efforts on the environment.” Kumao Kaneko, a retired Japanese diplomat who had dealt with the whaling issue as a delegate to the United Nations Conference on the Human Environment (UNCHE) in 1972, regarded the decision with displeasure: “Japan has not learned anything from the shock it experienced at the UNCHE, which I still cannot forget.”

*****

The conference... marked a crucial dividing point in the history of whaling. At the UNCHE, Recommendation 86 was proposed by the secretariat. Recommendation 86 called for all involved governments to strengthen the IWC, to increase international research efforts on whales, and an international agreement under the auspices of the IWC for a 10-year moratorium on commercial whaling. The United States, much to the consternation of Japan, would play a key role in moving Recommendation 86 forward.

Before 1970, whaling moratoria were not a matter of legal or legislative concern for the U.S. government. However, the Nixon administration “initiated and strongly supported” Recommendation 86 against vigorous opposition by whaling nations in 1972. Since then, the United States pursued a whaling moratorium, which aimed to encourage the remaining whaling nations—Norway, Iceland, the Soviet Union, and Japan—to outlaw commercial whaling.

Several policy scholars have argued that nascent environmental NGOs made the campaign against whaling a powerful symbol of modern environmentalism. Those scholars have further argued that the rise of an environmentalist consciousness among the American electorate in general, and the lobbying efforts of environmental NGOs in particular, produced the Nixon administration’s sudden strong support for the 1972 anti-whaling agenda. As the scholar Kurkpatrick Dorsey wrote, “Save the Whales!” became the rallying cry for environmentalists around the world. According to environmentalist rhetoric, whales were essentially humans, only perhaps slightly better. The Nixon administration, these environmental policy scholars argue, came to co-opt this powerful message.

Japanese journalists and pundits see things quite differently. They argue that the Nixon administration changed its policy for a very different reason: they point to a “conspiracy.” For instance, in a book titled (in translation) Whaling and Conspiracy, Yoshito Umezaki insists that Nixon’s dramatic turn toward the moratorium was in fact merely an effort to misdirect attention away from the United States’ own environmental sins—in particular its massive use of defoliants in Vietnam. Umezaki claims that the moratorium was a kind of cover-up that would serve to both keep the international community from pointing a finger at the United States, and its voters from recognizing Nixon’s environmental faults, thus helping Nixon to gain re-election in 1972. Umezaki concludes that Japan was used as a “scapegoat” by the Nixon administration. Japanese government officials, such as Kazuo Shima, an IWC commissioner from Japan, and others also support the conspiracy theory argument. Shima described the U.S. environmental groups as an “ecological cult” and the UNCHE as a well-planned form of “international bullying” of Japan. Shima believed that the United States was motivated by enmity and wariness against Japan when it proposed a moratorium. More directly, Shima argues that the moratorium led by the United States was simply another aspect of its campaign to attack Japan’s growing economic power. However, this author regards the conspiracy theory as basically untenable, as it contains many insufficiently substantiated claims.

Credit: Jeremy Sutton Hibbert

Environmental dispute resolution 4,500 years ago

Fragment of the Stele of the Vultures, c. 2450 BCE

The latest Yearbook of International Environmental Law has an interesting contribution by Peter Sand, "Environmental Dispute Resolution 4,500 Years Ago: The Case of Lagash v Umma". Sand begins:

Legal historians sometimes contend—albeit tongue-in-cheek—that ‘environmental law has no history’ or that the origins of international treaty law in this field, at any rate, hardly date back more than two centuries. It is true of course that the very term ‘environmental law’ etymologically did not come into use, in any language, until the mid-twentieth century. Yet it is equally true that the earth’s natural resources have been a subject of claims for human exploitation and societal management (including law) for millennia before, as this brief note will aim to illustrate.

(The first quote is from my own chapter in the Oxford Handbook of Legal History, "Historical Analysis in Environmental Law". Let me note that I meant this contention not tongue-in-cheek but in the sense more felicitously captured by Éric Naim-Gesbert, cited by Sand: environmental law has a past without a history. See the abstract of my chapter.)

Sand continues (footnotes omitted):

The Musée du Louvre in Paris and the British Museum in London hold tangible evidence of the world’s first known legal agreement on boundary water resources—that is, the Mesilim Treaty, which was concluded in approximately 2550 BC between the two Mesopotamian states of Lagash and Umma—‘the oldest international treaty of which there is a reliable record.’ The terms of the treaty have been preserved in cuneiform inscriptions on limestone cones and a ‘stele’ commemorating Lagash’s victorious battle enforcing the interstate agreement....

Mesilim (or Me-salim, born circa 2600 BC) was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonial’ position in the loose alliance of small neighbouring Sumerian states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon. In that capacity, he served as arbiter in a protracted dispute between the two city states of Lagash and Umma, and it is the text of the arbitral award attributed to him, accepted under oaths by the litigants to their respective deities, that then appears as Mesilim’s rules in the cuneiform inscriptions preserved. The main subject of the award was the inter-state boundary between the two states, alongside a major irrigation canal.... The dispute concerned both water resources (with Umma upstream and Lagash downstream) and a strip of adjoining agricultural land in the fertile Guedin valley... that was cultivated by Umma under lease from Lagash for barley production.

Sand goes on to describe the breakdown of the treaty and compare it to the modern Lake Lanoux Arbitration and ensuing agreements. More on this in an earlier guest post by Sand here.

Levelling the Lake

Thank you to everyone who's assisted in putting together the list of sources on the legal history of epidemics; this is an ongoing project so please do send me any ideas for sources.

I'm also going to try catching up on the big backlog of posts I haven't had time to do, beginning with today's notice of Daniel Macfarlane's review for the Canadian Historical Review of Jamie Benidickson's new book, Levelling the Lake: Transboundary Resource Management in the Lake of the Woods Watershed (UBC Press, 2019). Macfarlane writes that the book

is a deep dive into a complex area defined by borders (both hydrological and political). Surveying the last half of the nineteenth century to the present, Benidickson unravels this complicated story of resource management in the Rainy-Lake of the Woods area, which spreads across northwestern Ontario, southeastern Manitoba, and northern Minnesota (including the border jog referred to as the Northwest Angle).

One of Canada's leading environmental law scholars, Benidickson has made a career of writing about Ontario's water. Part of UBC Press's Nature/History/ Society series, this book can be characterized as environmental, legal, policy, and institutional history. The central focus of Levelling the Lake is the history of environmental governance, chiefly on the Canadian, and Ontario, side of this watershed. The narrative moves back and forth between different places and scales: Kenora and Fort Frances, Queen's Park and federal Cabinet meetings, corporate boardrooms, and International Joint Commission (IJC) deliberations. This inquiry required research in multiple archives as well as the use of printed primary sources such as court cases and IJC reports. Benidickson manages to delineate the overlapping jurisdictions and policies while simultaneously weaving together various sectors that are often ignored or compartmentalized by authors attempting research projects at similar scales: hydropower, water levels, pollution, fisheries, mining, recreation, forestry, pulp and paper, and so on.

*****

Levelling the Lake painstakingly peels back the various layers and imprints that make up the palimpsest of overlapping and contested boundaries in this region. Benidickson is an ideal interlocutor, teasing out the strings of intertwined claims and histories in ways that shed light on modern resource disputes. To make the necessary legalese more accessible, the author effectively employs metaphors and analogies, such as using the game of musical chairs to simplify the muddled process of acquiring water-power sites in the region (63). Characterizing jurisdictional and border issues as "polycentric," the author does not get bogged down in theory or concepts. Thus, this book will appeal to an interested general audience as well as to environmental and resource scholars in a variety of academic disciplines spanning the social sciences and humanities; at the same time it is a must-read for historians of northern Ontario. 

The Million-Dollar Duck

The American Historical Review recently published Miranda Johnson's "The Case of the Million-Dollar Duck: A Hunter, His Treaty, and the Bending of the Settler Contract". The abstract:

In settler states such as Canada, indigenous peoples’ claims for sovereignty in the late twentieth century became matters of intense public and political debate. Provoked by widespread indigenous rights activism of the 1970s, the Canadian state embarked on a large-scale examination of claims for rights and restitution. By focusing on the 1962 case of a duck hunter who insisted on his treaty right to hunt as he pleased in a Canadian borderlands region that was becoming more tightly woven into the fabric of the settler nation, this article argues for the value of recovering the discursive strategies of indigenous peoples in making sovereign claims prior to 1970s activism. I suggest that such claims were effective in bending the “settler contract,” which refers to the founding of settler states in dispossession and the silencing of indigenous actors. My approach brings to the fore a distinctive form of non-elite politics, what I call “treaty talk,” or the vernacular stories, civic rituals, and political disputes concerning the treaty promises that Canadian authorities made to northern indigenous communities earlier in the twentieth century. Although treaty talk did not break the settler contract, it posed a significant challenge to settler law and led one judge to reinvent a Canadian myth of benevolent empire.

Dene men gathered for Treaty Day at Fort Resolution, ca. 1924

Trends in environmental treaty-making

Legal Planet recently mentioned the University of Oregon's International Environmental Agreements Database Project. The project has a ton of information on environmental treaties, including lists of treaties by date, subject, and lineage; a library of historical documents on marine mammal protection; and more.

The graph below (click here for a larger version), taken from the main page of the website, charts the number of of environmental treaties, protocols, and amendments by decade (up to 1950) and then by five-year period. The quantitative data highlight some features that beg for some interpretation and context: A small surge in activity in the 1890s (not surpassed until the 1940s), a huge jump in the 1950s (more than three times the activity than the preceding decade), and a continuing drop since the mid-1990s peak (presumably associated with the 1992 Rio Earth Summit).

Thoughts anyone?

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.”

Moving watersheds, borderless maps, and imperial geography

The Historical Journal recently published Kyle Gardner's "Moving Watersheds, Borderless Maps, and Imperial Geography in India's Northwestern Himalaya". The abstract:

This article uses the British colonial history of border making in northern India to examine the assumptions and contradictions at work in the theorizing, configuring, and mapping of frontiers and borders. It focuses, in particular, on the development of the ‘water-parting principle’ – wherein the edge of a watershed is considered to be the border – and how this principle was used to determine boundaries in the northwestern Himalaya, a region that had long-established notions of border points, but no borderlines. By the twentieth century, the water-parting principle would become the dominant boundary logic for demarcating borders in mountainous regions, and would be employed by statesmen, treaty editors, and boundary commissioners around the world. But for the northwestern Himalaya, a region that British colonial officials considered to be the ‘finest natural combination of boundary and barrier that exists in the world’, making a border proved much more difficult than anticipated.