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Locating Nature: Making and Unmaking International Law

Published online by Cambridge University Press:  24 July 2014

USHA NATARAJAN  and
KISHAN KHODAY
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Abstract

This article explores the relationship between international law and the natural environment. We contend that international environmental law and general international law are structured in ways that systemically reinforce ecological harm. Through exploring the cultural milieu from which international environmental law emerged, we argue it produced an impoverished understanding of nature that is incapable of responding adequately to ecological crises. We maintain that environmental issues should not be confined to a disciplinary specialization because humanity's relationship with nature has been central to making international law. Foundational concepts such as sovereignty, development, property, economy, human rights, and so on, have evolved through understanding nature in ways that are unsuited to perceiving or observing ecological limits. International law primarily sees nature as a resource for wealth generation to enable societies to continually develop, and environmental degradation is treated as an economic externality to be managed by special regimes. Through tracing the co-evolution of these assumptions about nature alongside seminal disciplinary concepts, it becomes evident that such understandings are central to shaping international law and that the discipline helps universalize and normalize them. By comprehending more broadly the relationship between nature and international law, it is possible to see beyond law's potential to correct environmental harm and identify the disciplinary role in driving ecological degradation. Venturing beyond the purview of international environmental lawyers, this article considers the role of all international lawyers in augmenting and mitigating ecological crises. It concludes that disciplinary solutions to environmental problems require radical departures from existing disciplinary tenets, necessitating new formulations that encapsulate rich and diverse understandings of nature.

Keywords

developmentenvironmentinternational environmental lawsovereignty, sustainable development
Type
INTERNATIONAL LEGAL THEORY: Symposium: Locating Nature
Information
Leiden Journal of International Law , Volume 27 , Issue 3 , September 2014 , pp. 573 - 593
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

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References

1 See generally Millennium Ecosystems Assessment <www.unep.org/maweb/en/Reports.aspx#>.

2 1992 UN Framework Convention on Climate Change, 31 ILM 849 (1992); 1998 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 37 ILM 22 (1998); 1994 UN Convention to Combat Desertification in Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa, 33 ILM 1328 (1994).

3 1992 UN Convention on Biological Diversity, 31 ILM 818 (1992); 2000 Cartagena Protocol on Biosafety, 39 ILM 1027 (2000); 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (not in force); 1985 Vienna Convention for the Protection of the Ozone Layer, 26 ILM 1529 (1987); 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, 26 ILM 1550 (1987). Other seminal environmental treaties include the 1973 Convention on International Trade in Endangered Species, 12 ILM 1088 (1973); 1979 Convention on Long-Range Transboundary Air Pollution, 18 ILM 1442 (1979); 1989 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal, 28 ILM 657 (1989); 1998 Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 38 ILM 517 (1999); and most recently the 2013 Minamata Convention on Mercury (not in force).

4 See, e.g., Metz, B. et al, (eds.), Contribution of Working Group III to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change (2007)Google Scholar; United Nations Convention on Combating Desertification Secretariat, Land and Soil in the Context of a Green Economy for Sustainable Development, Food Security and Poverty Eradication (2011); United Nations Convention on Biodiversity Secretariat, Third Global Biodiversity Outlook (2010); A. Ajavon et al., Synthesis Report of the 2010 Assessments of the Montreal Protocol Assessment Panels, UN Doc. UNEP/OzL.Pro.WG.1/31/3 (2011).

5 See, e.g., Kyoto Protocol's three market-based instruments: joint implementation, clean development mechanism, and emissions trading; Nagoya Protocol's regulation of equitable access to genetic resources and benefit sharing among multinationals and communities; governing instrument of the Green Climate Fund approved by the Climate Change Convention's Seventeenth Conference of the Parties, UN Doc. FCCC/CP/2011/9/Add.1; and the pursuit of the ‘green economy’ exhorted most recently in the Outcome Document of the 2012 UN Conference on Sustainable Development. See further Hallstrom, N. et al. (eds.), Carbon Trading: A Critical Conversation on Climate Change, Privatization and Power (2006)Google Scholar.

6 This article uses ‘nature’, ‘environment’, and ‘natural environment’ interchangeably as, although the terminological distinctions are interesting, they are unnecessary for the purposes of this article. We adopt the ordinary usage of these terms in the mainstream discipline to reference our physical surroundings in a general sense. The term ‘environmental law’ to some extent assumes that the environment can be identified, and that problems in the environment ‘out there’ can be addressed by applying law to human activity. This article argues the impossibility of such an endeavour as law is itself situated within the broader constitutive context of how humans collectively self-organize their relationship with their physical surroundings.

7 While the IEL specialization arose in the 1970s, transnational public concern for and regulation of natural resources and the environment predate this. It includes, among other things, ancient forms of regulation for nature reserves, and rules governing access to and control of natural resources during the colonial era. See, e.g., M. Cioc, The Game of Conservation (2009), chap. 1.

8 Domestic legislation in the US included the 1963 Clean Air Act, 42 USC 7401; 1972 Clean Water Act, 33 USC 1251; and the Environmental Protection Authority was established in 1970 through executive order. Internationally, this decade saw the 1972 Stockholm Declaration on the Human Environment, UN Doc. A/Conf48/14/Rev 1 (1973); the 1971 Ramsar Convention on the Protection of Wetlands, 11 ILM 963 (1972); the 1972 World Heritage Convention, 11 ILM 1358 (1972); the 1973 Convention on International Trade in Endangered Species, 12 ILM 1088 (1973); the 1979 Bonn Convention on the Protection of Migratory Species 19 ILM 15 (1980); and the 1979 Bern Convention on Protection of Species and Habitats in Europe, 1 SMTE 509 (1979).

9 This narrative is put forward in most standard IEL texts. See, e.g., P. Sands and J. Peel, Principles of International Environmental Law (2012), chap. 2; D. Hunter et al., International Environmental Law and Policy (2007), chap. 6; and P. Birnie et al., International Law and the Environment (2009), chap. 1. We unpack this narrative at section 2.2.

10 For layered readings of these images, see Jasanoff, S., ‘Heaven and Earth: The Politics of Environmental Images’, in Jasanoff, S. and Martello, (eds.), Earthly Politics: Local and Global in Environmental Governance (2004), 31Google Scholar; Argyrou, V., The Logic of Environmentalism: Anthropology, Ecology and Postcoloniality (2005), 102Google Scholar; and section 2.2.

11 See supra note 9.

12 See supra notes 2 and 3.

13 IEL is notable for its heavy reliance on general principles of law, including the precautionary principle, the polluter pays principle, the principle of the common heritage of mankind, the principle of intergenerational equity, the principle of common but differentiated responsibilities, and the overarching principle of sustainable development.

14 Rio Declaration on Environment and Development, UN Doc. A/Conf151/26 (1992).

15 In 1987, the United Nations released the Brundtland Report, Our Common Future, which propounded the most widely recognized definition of sustainable development.

16 See Agenda 21, UN Doc. A/Conf151/26 (1992). This global action plan for sustainable development was a main outcome of the 1992 Rio Summit.

17 See supra note 4. International co-operation on deforestation has been particularly unsuccessful, with even a framework treaty remaining elusive, and states reaching only a Non-legally Binding Instrument on Sustainable Forest Management of all Types of Forests, UN Doc. GA/Res/62/98 (2007).

18 See supra note 9.

19 See supra note 5.

20 See Argyrou, supra note 10, at 48.

21 Ibid., at xi.

22 See further Prost, M. and Camprubí, A. T., ‘Against Fairness? International Environmental Law, Disciplinary Bias, and Pareto Justice’, (2012) 25 LJIL 379CrossRefGoogle Scholar, at 386–8.

23 N. Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (1997), 21–2.

24 Ibid., at 1.

25 M. Bedjaoui, Towards a New International Economic Order (1979), 99.

26 Ibid., at 153.

27 T. Mitchell, Carbon Democracy: Political Power in the Age of Oil (2011), 16.

28 See, e.g.,Mitchell, T., ‘America's Egypt: Discourse of the Development Industry’, (1991) 169 Middle East Report 18CrossRefGoogle Scholar.

29 See further Natarajan, U., ‘TWAIL and the Environment: The State of Nature, The Nature of the State and the Arab Spring’, (2012) 14 Oregon Review of International Law 177Google Scholar.

30 See Prost and Camprubí, supra note 22, at 385.

31 Ibid. See further Mickelson, K., ‘South, North, International Environmental Law, and International Environmental Lawyers’, (2000) 11 Yearbook of International Environmental Law 52CrossRefGoogle Scholar; and Najam, A., ‘Developing Countries and Global Environmental Governance: From Contestation to Participation to Engagement’, (2005) 5 International Environmental Agreements 303CrossRefGoogle Scholar.

32 See further Khoday, K. and Natarajan, U., ‘Fairness and International Environmental Law from Below: Social Movements and Legal Transformation in India’, (2012) 25 LJIL 415CrossRefGoogle Scholar.

33 See supra note 9.

34 Stockholm Declaration on the Human Environment, UN Doc. A/Conf48/14/Rev 1 (1973), at 6.

35 See supra note 9.

36 See, e.g., M’Gonigle, M. and Ramsay, P., ‘Greening Environmental Law: From Sectoral Reform to Systemic Re-Formation’, (2004) 14 Journal of Environmental Law and Practice 333Google Scholar; S. Coyle and K. Morrow, Philosophical Foundations of Environmental Law (2004); and Holder, J., ‘New Age: Rediscovering Natural Law’, (2000) 53 Current Legal Problems 151CrossRefGoogle Scholar.

37 An early classic is Tribe, L., ‘Ways Not to Think about Plastic Trees: New Foundations for Environmental Law’, (1974) 83 Yale Law Journal 1315CrossRefGoogle Scholar. See also Ruhl, J. B., ‘Thinking of Environmental law as Complex Adaptive System: How to Clean up the Environment by Making a Mess of Environmental Law’, (1997) 34 Houston Law Review 933Google Scholar; Hughes, E. L., ‘Fishwives and Other Tails: Ecofeminism and Environmental Law’, (1995) 8 Canadian Journal of Women and the Law 502Google Scholar; and Emond, D. P., ‘Co-operation in Nature: A New Foundation for Environmental Law’, (1984) 22 Osgoode Hall Law Journal 323Google Scholar.

38 See, e.g., Bauman, R. W., Critical Legal Studies: A Guide to the Literature (1996), 125Google Scholar, which includes only one page on environmental law. See further Hirokawa, K., ‘Some Pragmatic Observations about Radical Critique in Environmental Law’, (2002) 21 Stanford Environmental Law Journal 225Google Scholar. A recent exception is Philippopoulos-Mihalopoulos, A. (ed.), Law and Ecology: New Environmental Foundations (2011)Google Scholar.

39 O’Connor, J., ‘Capitalism, Nature, Socialism: A Theoretical Introduction’, (1988) 1 Capitalism, Nature and Socialism 11CrossRefGoogle Scholar, argues that, by failing to consider how capitalism operates, US environmental lawyers in the 1970s and 1980s drove polluting industries to the developing world, where the damage they caused was more severe locally and globally.

40 See, e.g., B. Swimme and M. Tucker, Journey of the Universe (2011); M. Smith, Against Ecological Sovereignty (2011); and T. Morton, Ecology without Nature (2007).

41 See, e.g., N. Castree, Making Sense of Nature (2014); D. Harvey, Justice, Nature, and the Geography of Difference (1996); and N. Blomley, Law, Space, and the Geographies of Power (1994).

42 See, e.g., J. Bennett, Vibrant Matter: A Political Ecology of Things (2010); J. Foster, Ecological Revolution (2009); and R. Peet and M. Watts, Liberation Ecologies (2002).

43 See, e.g., R. Marks, Origins of the Modern World (2007); Beinart, W. and Hughes, L. (eds.), Environment and Empire (2007)Google Scholar; R. Guha, How Much Should a Person Consume? (2006); R. Grove, Green Imperialism (1995); A. Crosby, Ecological Imperialism (1986).

44 See, e.g., Argyrou, supra note 10; G. Garrard, Ecocriticism (2012); G. Barton, Empire, Forestry and the Origins of Environmentalism (2002); and R. Guha, Environmentalism: A Global History (2000).

45 See Argyrou, supra note 10.

46 Ibid., at 102 (original emphasis).

47 Ibid., at 115.

48 See, e.g., P. Fitzpatrick, Modernism and the Grounds of Law (2001), and A. Anghie, Imperialism, Sovereignty and the Making of International Law (2003).

49 See Argyrou, supra note 10, at 81.

50 Ibid., at 95.

51 Ibid., at 50.

52 A. Agrawal, Environmentality: Technologies of Government and the Making of Subjects (2005), 217. He traces the dynamics of environmentality through examining local experiences and interactions of governance in the Kumaon region of India. See further T. McCreary and V. Lamb, ‘The Political Ecology of Sovereignty’ in this issue for analysis of how polities and ecologies are integrated into the sovereign territory through the processes and effects of natural resource governance, and how the role of local actors can both reinforce existing governance relationships and create new ones.

53 The ideas in this subsection are explored more extensively in Natarajan, supra note 29, at 177–8, 190–201.

54 M. Eliade, The Myth of the Eternal Return, or Cosmos and History (1965), 10–11.

55 See Argyrou, supra note 10, at 7–16.

56 Hulme, P., ‘The Spontaneous Hand of Nature: Savagery, Colonialism and the Enlightenment’, in Hulme, P. and Jordanova, L. (eds.), The Enlightenment And Its Shadows (1990), 30Google Scholar.

57 See, generally, Anghie, supra note 48.

58 See Argyrou, supra note 10, at 7–16.

59 See further K. Mickelson, ‘The Maps of International Law: Perceptions of Nature in the Classifications of Territory’ in this issue for an analysis of the Eurocentric and anthropocentric aspects of terra nullius, alongside other doctrines of title to territory.

60 See, e.g., the Australian case of Milirrpum v. Nabalco Pty Ltd (1971) 17 FLR 141 where aboriginal title was rejected in favor of terra nullius. This was overruled by the High Court of Australia in Mabo v. Queensland (No. 2) (1992) 175 CLR 1. In both cases, the nature of indigenous peoples’ relationship with land and their ability to productively use it was of central importance.

61 We do not argue that a society's productive capacity was the sole factor in determining its sovereign status but rather that this was a primary factor, alongside others such as race, religion, language, and forms of social organization.

62 See further I. Porras, ‘Appropriating Nature: Commerce, Property and the Commodification of Nature in the Law of Nations’, in this issue for an analysis of the role of nature in the process of colonization in the work of early international law scholars, observing that the visibility of nature in these early works was primarily through the desire for increasing commerce and property.

63 See section 3.2, infra. See also Holder, J., ‘New Age: Rediscovering Natural Law’, (2000) 53 Current Legal Problems 151, at 159–65CrossRefGoogle Scholar, mapping the relationship between classical science and the development of law, and showing that just as the scientific method separates humans from nature so too does the legal system.

64 1982 United Nations Convention on the Law of the Sea, 1833 UNTS 3 (1982), Arts. 61–72. For the regulation of fishing on the high seas, or fishing stocks that cover more than one territory or that migrate, see further Mickelson, supra note 59.

65 The term ‘developmental state’ is sometimes used to refer to states that heavily intervene into their economies through planning and regulation, and in international political economy frequently refers to East Asian economies in the late twentieth century. We use the term in a broader sense to refer to states that are focused on economic development and that make policy decisions primarily on this basis.

66 For a definition of sustainable development, see Rio Declaration, supra note 14 and Brundtland Report, supra note 15, and accompanying text.

67 G. Rist, The History of Development: From Western Origins to Global Faith (2002), 238.

68 Ibid., at 35–40.

69 Ibid., at 24–34.

70 UNDP, Human Development Report: Fighting Climate Change: Human Solidarity in a Divided World (2007), 1.

71 See Rist, supra note 67, at 183.

72 See supra note 65.

73 UN Women and UNICEF, Addressing Inequalities: Synthesis Report of Global Consultation (2013), 15–17: <www.worldwewant2015.org/inequalities>.

74 See Rist, supra note 67, at 5.

75 Ibid., at 162–92.

76 Ibid., at 178–92. See further A. Giddens, The Politics of Climate Change (2009), 59–63; Kates, R. et al., ‘What is Sustainable Development: Goals, Indicators, Values and Practice’, (2005) 47 Environment: Science and Policy for Sustainable Development 8Google Scholar.

77 The following analysis of the economy is an abridged version of a more extensive discussion in Eslava, L., Natarajan, U., and Parfitt, R., ‘(Post)Revolutionary Internlinkages: Labour, Environment and Accumulation’ (2013) 4 Transnational Legal Theory 108, 117–18CrossRefGoogle Scholar.

78 See Mitchell, supra note 27, at 136–7.

79 See Section 3.1, infra.

80 See Mitchell, supra note 27, at 233.

81 See supra note 5. While promotion of green technologies and more efficient resource use are worthwhile endeavours, the global economy has a rapacious and infinite appetite for growth. Thus, natural resources are likely to be consumed as long as they are accessible. In such a system, proliferation of clean energy does not preclude continuing use of dirty energy, as demands for energy will grow and consume what is available. For the same reason, more efficient use of resources may not have any effect on stemming overall consumption, as consumption rates will rise with increased availability.

82 See Mitchell, supra note 27, at 140.

83 See Philippopoulos-Mihalopoulos, supra note 38, at 3; and R. Williams, ‘Ideas of Nature’, in Williams, R. (ed.), Problems in Materialism and Culture (1980)Google Scholar.

84 See further Rist, supra note 67, at 249–58.

85 Santos, B. Sousa, ‘A Non-Occidentalist West? Learned Ignorance and the Ecology of Knowledge’, (2009) 26 Theory, Culture & Society 103, at 110CrossRefGoogle Scholar.

86 Jasanoff, S., ‘A World of Experts: Science and Global Environmental Constitutionalism’, (2013) 40 Environmental Affairs 439, at 444Google Scholar (original emphasis).

87 Ibid.