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)

The polluter pays principle and policy transfer

I missed this one a while back: The European Review of History published Jan-Henrik Meyer's "Who should pay for pollution? The OECD, the European Communities and the emergence of environmental policy in the early 1970s". The abstract:

Environmental policy emerged as a new European and global policy field within a very brief period of time during the early 1970s. Notably in Europe, international organizations played a central role in defining core principles for this new policy domain. This article argues that inter-organizational connections were crucial in this context: the exchange and transfer of policy ideas facilitated the rise of environmental policy across different international organizations. Focusing on the co-evolution of the polluter-pays principle enshrined almost simultaneously both at the OECD and the European Communities, the article assesses the multiple routes along which policy ideas travelled, the role inter-organizational competition played and the selective nature of transfers. While expertise played a key role in determining which policy concepts were selected, institutional conditions and the politics of the recipient institution determined how they were adapted to the respective new context.

Transboundary governance

Murray Clamen and Daniel Macfarlane recently posted "The International Joint Commission, Water Levels, and Transboundary Governance in the Great Lakes". The abstract:

This article provides a historical background of the evolution of transboundary water governance and environmental diplomacy in the Great Lakes–St. Lawrence basin, with a focus on the International Joint Commission (IJC), during the twentieth century. This study focuses on water quantity issues, such as diversions, canals, hydroelectric developments, control works, and water levels, revealing the range of  artificial and natural impacts on water levels in the Great Lakes–St. Lawrence basin. Doing so provides for a revealing examination of the IJC, which has traditionally been the main forum in which Canada and the United States manage their environmental relations and border water issues, which allows for an engagement with a range of North American transboundary governance theories. While the IJC is often lauded as a model of transnational environmental cooperation, this paper demonstrates that the evolution of this bilateral institution up to the 1960s is more complicated.

Inter-imperial riparian law II: The Law in Miner v. Gilmour

Continuing where yesterday's post left off:

As the judges of the Privy Council recognized, the law governing the conflict between Miner and Gilmour over the waters of the Yamaska was not English law. Quebec, before being conquered by the British in 1760, had been part of the French Empire. A royal edict of 1663 had declared the law of New France to be the law as applied in the Parlement of Paris.  This law included royal ordinances, Roman law as expounded by jurists, and the sixteenth-century official collection of the customary law of Paris known as the Coutume de Paris. The Quebec Act of 1774, passed by the British Parliament a few years after the British conquest of Canada from France, declared that the laws of property existing in the province of Quebec pre-conquest would remain in force under British rule.

The water law applicable to the case at hand was thus the law of the old French Empire, that is to say the law of ancien régime Paris, ironically no longer in force in France itself after the adoption of the Napoleonic Code in 1804, but preserved in British colonies that had been conquered from the French. Indeed, the lawyers arguing the case before the British court in Westminster cited the civilian Digest of Justinian, the great French scholar Pothier and said Custom of Paris.

Sitting of a Judicial Committee of the Privy Council
(Illustrated London News, vol. 8, no. 206, 11 April, 1846, p. 1)

The encounter between French and English law did not end with this infusion of French imperial law into a British imperial courtroom, nor with its application by British judges at the seat of imperial power. Despite the lack of formal authority for English common law in the civil-law jurisdiction of Canada East, the lawyers for Miner and Gilmour before the Privy Council cited not only the civilian sources mentioned above, but also recent English case law on the subject of riparian rights. The judges of the Judicial Committee were impressed with the ‘great learning and ingenuity’ displayed by counsel, and scheduled an unusual second round of oral arguments. Yet after all this learning and argument, they arrived at a surprising conclusion: ‘It did not appear that, for the purposes of this case, any material distinction exists between the French and the English law.’ According to both legal systems, the court opined, Miner could not demand that Gilmour keep the dam gate closed all the time, since a riparian proprietor had ‘no right to interrupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors, and inflicts upon them a sensible injury’.

The decision’s exposition of this and other principles of what Lord Kingsdown, writing for the court, termed the ‘general law applicable to running streams’—that is to say the law of riparian rights, according to him common to French and English law—went on to be cited extensively throughout the British Empire and beyond as the definitive statement of the rules of riparian rights in the common-law world, as will be discussed in a later post.

Inter-imperial riparian law I - Introduction: Inter-imperial law in an inter-imperial court

It seems I forgot to mention my own article when I posted it a while back. "Riparian Rights in Lower Canada and Canada East: Inter-Imperial Legal Influences" was published as chapter 4 of Imperial Co-operation and Transfer, 1870-1930: Empires and Encounters (Roland Cvetkovski & Volker Barth eds., Bloomsbury, 2015). I'll do a few posts based on the article now; for the full version, please see the book.

One of the most dynamic areas of law in the nineteenth-century Anglo-American world was that of water rights, or, as it was typically denoted then, “riparian rights”. This body of law dealt with the relative rights of owners of land adjacent to water—riparian land—to use the flowing waters, whether for power, irrigation, transportation, fishing, or waste disposal. The historical development of the law in this field in the nineteenth century has been analysed from several points of view, including economic property theory and Marxian legal history.  Transnational aspects of the subject have not been neglected, as some have highlighted the transatlantic—that is, Anglo-American—framework in which this body of doctrine developed, and others have examined the use of Continental, civil law sources by some of the American jurists responsible for that development.  Yet the inter-imperial aspect of this story, in particular the meeting of the laws of the British and French Empires, has gone unremarked.

The court case of Miner v. Gilmour can be seen as the epicentre of this inter-imperial encounter. The case began as a conflict in the 1850s between two prominent citizens of the Eastern Townships village of Granby, in the part of Canada then known as Canada East (in the half century preceding 1841 called Lower Canada, the southern part of today’s Quebec). Harlow Miner’s tannery on the south bank of the Yamaska River, the town’s major industrial enterprise, was powered by water directed from a dam in the river, but Francis Gilmour, the town’s store-keeper, had been opening a sluice on the north side of the dam in order to allow the water to flow through and power his gristmill downstream. In order to put a stop to Gilmour’s interference with his business, Miner brought a lawsuit in the Superior Court of the District of Montreal.  When the court ruled in Miner’s favour, ordering Gilmour to cease and desist diverting water away from Miner’s mill, Gilmour brought an appeal to the Court of Queen’s Bench of Canada. Here the decision went in his favour, and the court dismissed the plaintiff’s suit. Unsatisfied with this result, it was Miner who appealed this time, making use of the only remaining judicial recourse available to him, an appeal to the Judicial Committee of the Privy Council in London.

The Privy Council, an organ of the British monarchy, was for years the executive body through which British overseas possessions were governed, also hearing appeals from the courts of these colonies. In 1833, in an effort to give these appeals a more judicial character, Parliament created the Judicial Committee of the Privy Council, composed primarily of judges from other British high courts. Though formally not a court of law—the members of the committee did not wear judicial garb, they sat around a table with the parties’ counsel and their decisions were, strictly speaking, merely recommendations to the monarch, who would then issue an order giving force to the recommendation—in practice it functioned like a court, and was treated as such by all. This new judicial body was tasked with hearing appeals from overseas possessions (as well as from the British court of Admiralty and ecclesiastical courts).

The Judicial Committee, hearing cases from far-flung possessions around the globe, was an imperial institution par excellence. The nature of litigation in the common law, adversarial, system—in which the parties, not the state, generally determined if and when court proceedings would be conducted, and on what legal grounds—meant that the court’s agenda was largely shaped by the decisions of litigants in the courts below. Nonetheless the Judicial Committee’s worldwide jurisdiction, along with its judges’ parallel tenures on other British high courts, gave it a potentially harmonizing and homogenizing role; ‘The assumption was that there could be cohesion and certainty in the legal system of the Empire only if appeals could be referred up to a judicial body in London.’ (Cornish, Lobban, Smith, "Empire’s Law", p. 245)

At the same time the Judicial Committee was in effect an inter-imperial institution.

Toxic injustice

The recent Environmental History has a review by David Stradling of Susan Rankin Bohme's Toxic Injustice: A Transnational History of Exposure and Struggle (UC Press, 2014). Stradling writes:

Environmental historians will be especially interested in the first two chapters, in which Bohme describes the development of the nematode problem and the chemical companies’ marketing of DBCP. Bohme describes, in great detail, how Dow and Shell manipulated the regulatory process that developed warning labels and guidelines for use but ultimately “projected a false image of DBCP’s safety”. What’s worse, most of the science came from laboratory tests on animals, which clearly indicated problems regarding sterility, but Shell decided to make health claims based on incomplete worker health data instead. The early chapters also describe well the transnational banana and chemical markets, and the limits of US regulation, which sought to protect American consumers but failed to protect foreign workers, even from threats that came from inside the United States.

These workers, the afectados who suffered health consequences and sought justice in court, are at the heart of the book. Bohme has employed the rich detail of legal documents generated by workers who sued in Texas courts for compensation for sterility caused by DBCP exposure on banana plantations in Costa Rica and Nicaragua. Exploited in the fields, these workers were not well served by the courts, suffering from translation problems, in which workers were doubly disadvantaged, as English was translated to Spanish and legalese was translated into layperson’s terms. The workers also suffered from location problems, as they sought justice in American courts, largely because they (and their lawyers) could expect a larger settlement in the United States.

While this is a truly transnational story, involving major corporations and court systems from several nations, as well as the international movement of goods and money, Bohme concludes that the outcome confirms the continuing importance of the state in our neoliberal age. The state remains the essential site of regulation and the arbitration of justice. The other arguments of the book are well anticipated: inequalities of power and knowledge left workers exposed. They were clearly exploited by their employers and by the companies that produced and sold chemicals that they knew to be health hazards. And later, after the lawsuits began to accumulate, the US judicial system seemed more concerned with protecting American corporations than in finding justice for those who were harmed. After a very long process many workers won modest settlements, but Bohme concludes, “The same deep and broad inequalities that shaped the contours of DBCP exposure also limited afectados’ success in holding corporations accountable”.

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.

A transnational history of asbestos

Perhaps the most litigated environmental issue in US history is harm from asbestos. In the latest issue of Environmental Justice James Rice's "Asbestos and the Globalization of an Occupational and Environmental Hazard, 1960–2011" takes a global view of the subject. The abstract:

Anthophyllite asbestos, Georgia (USGS)

Asbestos is a natural mineral with observable, repeatable effects that have long been observed and repeated. Despite experiential and scientific evidence illustrating its deleterious impact on human health the worldwide production and consumption of asbestos remains substantial. The objective of the present study is to highlight the global decline and resurgence of asbestos over the period 1960–2011. This history is characterized by the predominance of asbestos in the industrialized countries until 1970, decline thereafter, but the precipitous increase of asbestos consumption in the developing countries, particularly the industrializing middle-income nations. In turn, global asbestos consumption in 2011 approximates that observed in 1960; notwithstanding voluminous evidence illustrating it is associated with asbestosis, lung cancer, and mesothelioma. Further, I highlight the rhetoric of denial consistently employed by the industry to generate uncertainty and sustain the demand for asbestos. The conclusion reiterates the need for environmental justice scholars and activists to consider the transnational movement, or risk transference, of recognized occupational and environmental hazards.

I would add that there is room for comparative legal research here, as well: Why has tort law put asbestos companies out of business in the US, but apparently allowed them to flourish in other countries?