Environment, Law, and History

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.

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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 Journal of Interdisciplinary History of Ideas recently published a review by Lorenzo Coccoli of Mario Ascheri's Rimedi contro le epidemie. I consigli di diritto europeo dei giuristi (secoli XIV-XVI) (Aracne, 2020). Coccoli writes:

In the large and ever-growing body of scholarship on the social history of medieval and early modern epidemics, a tendency exists to favor the second of these three aspects, looking at social life in time of disease outbreaks mostly through the lens of criminal justice and the repressive power deployed by authorities in order to enforce their emergency regulations. There are several good reasons justifying that choice....

Nevertheless, one might still legitimately wonder whether a different set of judicial sources could provide a somehow different picture of the challenges the plague posed at various levels of society. The sudden disappearance of people and properties confronted survivors with a whole series of legal problems that were not reducible to the grammar of crime and punishment. How to establish, for example, the correct line of inheritance when potential heirs die one right after the other, and when, because of the general confusion caused by disorganization and fear, no medical records exist to prove who died first and who died later? Should rent still be paid even though tenants had fled the rented premises to find shelter in a safer place? More generally: should contracts still be honored even though the plague had prevented their full execution? Questions of this sort may lead to a richer historical understanding of social dynamics in times of health crises, by adding to the ‘vertical’ observation of the relationship between authorities and their subjects the ‘horizontal’ auscultation of the connections and exchanges between the subjects themselves. For one thing is sufficiently clear: although narrators, from Boccaccio to Manzoni through Defoe, have conventionally depicted plague-ridden communities as unruly places where people move and act ‘beyond the usual laws’, law itself kept in fact operating throughout the epidemic storm as the fundamental infrastructure of associated life.

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The second and third chapters... deal with the solutions envisaged and proposed (with greater or lesser confidence) by late medieval law doctors to the problems raised by epidemic outbreaks for, respectively, the public management of cities and the regulation of private business. Sannazzari, Aldobrandini and Previdelli’s tracts in fact capitalized on a large pool of earlier consilia, quaestiones and commentaria on Roman and Canon law, gathering and organizing sparse hints on the matter that could be gleaned from them. Sixteenth-century jurists seem to agree with their predecessors on the supernatural causes of the plague, which represented the distinctive way in which God chose to wage war against humans because of their sins. The warlike metaphor—which seems to still have some currency in today’s parlance about the present predicament—was not, however, a simple rhetorical device. In the works of ius commune jurists, the notion of bellum Dei was taken literally so as to draw some effective legal consequences from it and solve, by virtue of analogical interpretation, the occasional legal conundrums. Thus, for example, the difficulty over the possibility of imposing an emergency property tax on people who were normally exempted from all sorts of contribution could be dodged by noting that, in times of war, even those who were covered by fiscal immunity were compelled to pay for the sake of the common good. 

Figure 1:  Memorial cone of the Mesilim Treaty

Thanks to Peter Sand for contributing this post!

[Footnotes after the jump.]

The Musée du Louvre in Paris holds tangible evidence of the world’s first known legal agreement on boundary water resources: viz., the Mesilim Treaty, concluded in the 25th century B.C. between the two Mesopotamian states of Lagash and Umma. The terms of the treaty have been preserved as cuneiform inscriptions on a limestone cone (figure 1) and a stele commemorating Lagash’s victorious battle enforcing the treaty.[1] Fragments of both artifacts were excavated in 1878-1912 by French archeologists on sites at Tellō (Tall Lawh, Dhi Qar Governate in Southern Iraq), the ancient temple-city of Girsu, once the capital of Lagash.[2] The inscriptions, transcribed and translated into French, German, Italian and English,[3] turned out to match several other texts on corresponding archeological finds of the period. The key exhibit, the so-called ‘Stele of the Vultures’, depicts Lagash ruler E’anatum leading his army, and vultures devouring slain Umma warriors (figures 2 and 3).

Mesilim [or Mesalim, born ca. 2600 B.C.] was the ruler of Kish, a kingdom further to the north of Lagash and Umma, which held a traditional ‘hegemonic’ position in the loose alliance of small adjoining Sumerian city-states in the region between the Tigris and Euphrates rivers, south of what was to become Babylon.[4] Because of the prevailing precarious rainfall conditions, the agricultural economy of the entire basin area has always been crucially dependent on irrigation, mainly from the ‘great Tigris’, through an elaborate system of canals and levees which inevitably require close inter-community cooperation. The geographic focus of the bilateral Lagash-Umma agreement, concluded under Mesilim’s authority as external arbiter, was the fertile Gu-edena valley, roughly ten by four kilometers wide and irrigated by Tigris waters from a canal named Lum-magirnunta on the border between Umma and Lagash, with boundaries marked by stone steles.

Figure 2: Stele of the Vultures

Figure 3: Stele of the Vultures

Part of the treaty was a crop-sharing arrangement for a portion of boundary land (some eleven square kilometers) downstream on Lagash territory, that was cultivated by Umma under lease, against payment of an annual rental fee (máš, calculated in silver-shekel equivalents of barley crops) to cover the costs of canal maintenance.[5] However, when Umma repeatedly refused to honor its accumulated tenancy debts, hostilities broke out, resulting in partial destruction of the canal and in unilateral diversions of water upstream. In several successive military confrontations (‘the first known war in history that was, in essence, fought about water’),[6] Umma was ultimately defeated by Lagash (first under the leadership of E’anatum, ca. 2470 B.C.; and later under his nephew Enmetena, ca. 2430 B.C.),[7] and was forced to accept the reconstruction (and extension) of the canal and the reinstatement of the boundaries as originally drawn up by Mesilim.

Alas, the treaty so renewed and ‘writ in stone’, and the peace so re-established, does not seem to have survived for long, and was eventually overtaken and mooted by external political events (the Akkadian/Sargonic invasions) in subsequent generations. Even so, the agreement has been hailed as ‘the first international arbitration’,[8] and as ‘the oldest treaty of which there is a reliable record’.[9] It remains a unique early attempt at resolving a dispute over boundary waters by formal reference to a superior spiritual order (in this case, the deities of both parties, repeatedly ‘sworn to’ in the text), and hence may indeed qualify as a precursor of international law in this field – well over 4,000 years ago.[10]

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Bevin Boys report for duty in 1943 (Express)

The blog "ART and ARCHITECTURE, mainly" earlier this week had an interesting post on something I knew nothing about, despite my once-future career as a military historian. It seems that Britain conscripted nearly 50,000 men to work in its coal mines, in place of the military service, during the period 1943-48. From the blog:

Coal was essential for military production during WW2; somehow Britain had to match the quotas needed to keep fact­ories churn­ing out the munitions required at the front. And as Britain was unable to import coal in wartime, the production of coal from local mines had to be increased. But how? 36,000 miners were already cons­crip­t­ed for army duty and had left their collieries.

Ernest Bevin, wartime Minister of Labour and National Service and a former Trade Unionist, believed the short­age could be remedied by using conscripted men to fill the vacancies in the mines, keeping production at the rates requir­ed. In Dec 1943 he announced a scheme in Parliament. 

A ballot would take place to put a fixed perc­ent­age of cons­cript­ed men into the underground collieries rather than into the armed services. “We need 720,000 men continuously employed in this industry. This is where you boys come in. Our fighting men will not be able to achieve their purpose unless we get an adequate supply of coal.” Any refusal to comply with the Direction Order would result in a heavy fine and/or imprisonment under the Emergency Powers Act in force back then.

There's lots more on the story at the blog, worth a read.

[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 environmental history of slavery is a topic that has gotten much attention recently. Thanks to Legal History Blog for pointing out a new angle on this: H-War recently posted a review by Eric Burke of Adam Wesley Dean's An Agrarian Republic: Farming, Antislavery Politics, and Nature Parks in the Civil War Era (UNC Press, 2015). Some excerpts from the review:

Historians have long attributed the ascendance of the Republican Party during the late 1850s to its broad appeal with Northern farmers, especially in the Midwest. The political ideology of the party was weighted heavily toward lauding the benefits of the proliferation of small-plot family farming throughout the nation. Indeed, as Eric Foner has pointed out, though Republicans are often connected in historical memory to their efforts to champion industrialization during the Gilded Age, antebellum and wartime Republicans emphatically insisted that America could (and should) remain "a society of family farms and small towns, while still experiencing the benefits of industrialization," and constructed their platform and policies accordingly.

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In 1864, Congress... debated the fate of the Yosemite territory in California—a gem of natural beauty that many hoped "would 'civilize' the average person and improve his or her intellectual abilities" upon the mere sight of its splendor, and thus could best serve the public good preserved in its natural state (p. 7). Consistent with their near deification of the smallholding farmer however, radical Republicans disagreed. "The Constitution and the laws are for the protection of citizens and not for the creation of fancy pleasure grounds by Congress," one radical remarked, aptly summarizing the sentiments of many Republicans like George Julian of Indiana (p. 109). Radicals instead argued that the territory should be opened up for settlement by small farmers at once, thus fostering the spread of "freedom, union, and an improved society" (p. 126). The situation was complicated by the presence of "squatting" farmers already productively working the soil of the territory, forcing Republicans to decide whether or not to evict their beloved yeomen in order to preserve the territory's natural beauty for the enjoyment of the public at large—a plan supported by ardent Republican and landscape architect Frederick Law Olmsted. As Dean shows, Republicans fractured on these lines during the Yosemite debates of 1864, with the Olmsted project finally prevailing. But more important, Dean argues, the debates themselves offer a glimpse into the prevailing agrarian ideology of radical Republicans, suggesting that such "environmental controversies were not about preservation versus destruction," but rather were directly "connected to the main political currents of the time" (p. 8).

Also connected to these currents were Republican endeavors to reconstruct the South in the aftermath of victory and "civilize" Native Americans on western reservations. In his final chapter, Dean argues against the tendency of historians to find "inconsistency in [Republicans] promoting African American land rights in the South while curtailing Native American freedoms in the West." Republicans perceived no such inconsistency. "Both groups, they believed, would become small farmers and, in doing so, adopt white cultural values," Dean explains. "Since most northerners lived in rural communities and celebrated the environmental and political benefits of small farming, converting others to their lifestyle seemed natural" (p. 186). By emphasizing this factor, Dean ably supports his claim that "Northern policy makers did not want to industrialize the South and the West," but rather "intended to promote farming communities and strengthen the yeomanry that provided the foundation for republican government" (p. 136). Although perpetual violent resistance and the ever-decreasing tenability of small farming across the late nineteenth century gradually dismantled dreams of "civilizing" the Republic, Dean's approach highlights the continuity of Republican projects across the Civil War and Reconstruction era and "allows historians to make new connections between seemingly different topics" (p. 186).

Two announcements recently posted on H-Environment may be of interest to readers:

From the call for the 3rd Summer Institute at Cornell University (May 11-15, 2015), on the topic, “Occupation: Violence and the Long-term Control of Land and People”:

The theme of the Third Annual Summer Institute at Cornell University is military occupation and its civilian society relatives.

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The goal of the Institute is to understand emergent meanings of occupation and recognize its paradigmatic potential for land and resource commandeering in episodes of war and peace. Participants will ponder these questions: How does military occupation insinuate itself into civilian governance after war episodes pass? How do models of military occupation inform (or not) non-military efforts to assert control over people and landscapes? How are subaltern occupations by the occupied similar to or divergent from military occupation? Other likely questions: How is military occupation changing in light of the changing nature of war? Does occupation ever improve conditions in subjugated zones (“transformative occupation”), an assumption informing today’s U.N. Peacekeepers and other humanitarian interveners? How do corporations occupy landscapes (patents, debt obligations, take-overs, accumulation by dispossession, land/sea grabs)? How is occupation different from enclosure, annexation, and colonial dominion? 

The application deadline is January 15. More at H-Environment.

from City of Philadelphia Zoning Maps (1933) (Greater Philadelphia GeoHistory Network)

Also, the 16th national conference on planning history of the Society for American City and Regional Planning History (SACRPH) will take place in Los Angeles, November 5-8, 2015:

SACRPH cordially invites papers on all aspects of the history of urban, regional, and community planning, worldwide. Particularly welcome are papers or complete sessions addressing:

•    planning and the built environment in the U.S. Sunbelt
•    comparative and global studies of planning, especially of the U.S. West/Pacific Rim, or U.S. Southwest/Latin America
•    preservation planning in 20th-century cities
•    disaster and urban resiliency
•    the ethics of planning
•    planning and the law

Proposals are due February 15. More at the Society website.

(By way of Imperial & Global Forum:) Quartz recently published "The Philippines hopes a trove of ancient maps will prove its territorial claims against China", by Lily Kuo. Kuo writes that last week:

the Philippines opened an exhibit featuring dozens of maps spanning over 1,000 years of history—a collection that the Philippines says disproves China’s claim of sovereignty over a rocky shoal in the South China Sea, which has provoked increasing tensions between the two countries.

The exhibit held by the Institute of Maritime and Ocean Affairs includes maps from as far back as 1136 A.D. that purportedly show China’s southernmost territory has always been the province of Hainan—which would undercut China’s claims to much of the South China Sea, including territory that is claimed by the Philippines and Vietnam, among other countries. Ancient maps of the East Indies, of which the Philippines was a part, are shown to include what is today known as the Scarborough Shoal, a small piece of land about the size of three rugby pitches to the west of the Philippines, home to valuable fisheries and potential fossil fuel reserves.

The article includes some gorgeous old maps, including these:

World map published by Jesuit priest Matteo Ricci (1602 )

Published by Jesuit Pedro Murillo (1734) (US Library of Congress)

Tian Ditu, or “the Atlas of Heaven and Earth” (1601) (US Library of Congress)

The exhibit catalog is available on line.

The modern conservation movement began at dawn on December 8, 1850, above the north fork of California’s San Joaquin River. 

So begins's Eric Michael Johnson's post, "Fire Over Ahwahnee: John Muir and the Decline of Yosemite", at his Primate Diaries blog at Scientific American. On said date American militia carried out a massacre of Ahwahneechee Indians who lived in the Yosemite Valley.

One month later, on January 13, 1851, by order of California Governor John McDougall and through a special act of the U.S. Congress, the Savage militia received federal and state support to “punish the offending tribes” in the region later to be renamed the Yosemite Valley. For the leadership of California’s newly established government the approach for dealing with the native population had become a “war of extermination.” For more than a decade afterwards the land between the Merced and Tuolumne rivers remained under permanent military occupation and eventually became a national park by order of President Theodore Roosevelt in 1906.

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In his famous nineteenth-century travel writings in the Sierra Nevada Mountains Muir described Yosemite not just as a picturesque marvel of nature, but as something divine that was beyond human frailties. The landscape of the “Sierra Cathedral Mountains” was a “temple lighted from above. But no temple made with hands can compare with Yosemite,” he wrote. It was a place that was “pure wildness” and where “no mark of man is visible upon it.”

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It’s not that Muir didn’t encounter native peoples in his travels. He did, but he found them to be “most ugly, and some of them altogether hideous.” For a wilderness as pure as his holy Yosemite “they seemed to have no right place in the landscape, and I was glad to see them fading out of sight down the pass.” But, ironically, these “strange creatures” as Muir described them were the ones responsible for many of the features that gave Yosemite Valley its park-like appearance, the “landscape gardens” that Muir so valued. It is this forgotten legacy that has undermined many of the successes in the U.S. and even the global conservation movement today, one that traces directly back to John Savage and John Muir and the first protected wilderness site that later became the model followed around the world. 

It wasn’t only Muir who was struck by the ordered beauty of Yosemite Valley. Lafayette Bunnell, the New York physician who accompanied Savage on his exploits in 1851, recalled that “the valley at the time of discovery presented the appearance of a well kept park.” Likewise, Galen Clark who was the state guardian of the Yosemite Grant after it was ceded to California, remembered similar conditions when he first visited in 1855. “At the time,” Clark wrote, “there was no undergrowth of young trees to obstruct clear open views in any part of the valley from one side of the Merced River across to the base of the opposite wall.”

David Iliff, Tunnel View, Yosemite Valley (License: CC-BY-SA 3.0)

However, these conditions didn’t stay that way for long. Forty years later Clark found that Yosemite’s open meadowland had all but disappeared, estimating that it had been “at least four times as large as at the present time.” The reason for this, known in the nineteenth century but little appreciated until recently, were the many ways that Yosemite’s first inhabitants had transformed their environment over hundreds, if not thousands, of years. Chief among these was the strategic use of fire.

As missiles fly overhead, I thought I'd post on something relevant to what's happening in my corner of the world. Though I'm not a big believer in the thesis that competition over water is at the root of conflict in the Middle East (while it's a popular theme in the press, academics have repeatedly debunked it), the converse is probably true: conflict in the region almost certainly exacerbates water problems in this relatively arid environment.

I recently published "Water law in British-ruled Palestine", which outlines the basic shape of legal conflict over water in Palestine in the years in which it was under British rule (1917-1948) (an ungated version is here). The abstract:

 This article surveys the water law of Palestine under British rule, identifying the legal norms governing the use of water and explaining some of the factors shaping the development of this area of the law. It argues that despite their lack of official lawmaking power, Arabs and Jews succeeded in decisively shaping the course taken by water law in this period. After surveying the Ottoman water law in force when the British took power in 1917, the article examines influential court decisions in a case brought by the Arab residents of the village Artas against government expropriation of water, and explains the significance of this litigation for the subsequent development of Palestine’s water law. It then discusses British initiatives meant to reform water law and subject the country’s water to state control, plans frustrated by the opposition of Zionist groups fearful of increased government regulation. It closes by noting that water law was made in this colonial context neither by imposition from above nor by resistance from below, but by intervention of subject peoples at the highest levels of official lawmaking.

Jewish National Fund poster of the water tower, a Zionist icon

Over at Legal Planet the University of California's Richard Frank recently posted "California Enacts Emergency Drought Legislation: State Water Rights Reforms a Key Part of the Legislative Package", in which he notes that the severe drought from which California is suffering this year has apparently "prompted enactment of water reforms that proved impossible just five years ago", in particular increased penalties for illegal diversions and modest regulation of groundwater use. Frank writes:

Let’s hope that these new, modest changes to California water law signal the beginning, rather than the end, of meaningful efforts to reform California’s systems of water rights enforcement and groundwater regulation. Recent political and environmental history demonstrates that it often takes a major crisis to motivate government decision-makers to enact often long-overdue reforms. For that reason, perhaps some good can come out of drought conditions that currently hang like a meteorological sword of Damocles over California’s economy and environment.

Having spent the last week in California archives, working on my research on the history of water law, I was struck by one of the two great sensations known to all historical researchers--the feeling that it's all happened before. (The other one is the feeling that things back then were really different.)

Specifically, at UC Riverside's Water Resources Archives (an incredibly rich collection with a friendly and helpful staff) I came across a document authored by S.T. Harding--like Frank, a UC professor--nearly a hundred years ago, entitled "Effect of War Emergency Conditions on Irrigation Water Rights and Service". 1918, the year in which Harding wrote the piece, was a year not only of increased demands for California food production, due to the World War, but also of drought, like 2014. Harding wrote:

from the Sidney T. Harding Papers, Box 26, Item 134-6 Water Resources Collections and Archives, University of California, Riverside Libraries

The situation was met... by methods which would have been considered drastic and practically unenforceable under normal conditions but which under the war emergency conditions existing in 1918 were not only acquiesced in by the parties affected but were carried out largely with their assistance and co-operation.

Harding wondered whether the emergency modification of the rules of California's water-rights regime would have lasting effects:

It is difficult to see how the general results can be anything but beneficial in the future of water right development. The present experience in going directly to the result desired even though the method may be new, will tend to remove prejudices against changes which are based merely on their newness. The use of public authority to handle matters involving public water supplies as in 1918 brings to the front the public interest in the utilization of the water resources and the right of the public interest to be more largely considered in the future than it has been in at least some cases in the past. It is to be hoped that a greater public interest in such matters may be maintained in the future after the war emergency has passed which will be exercised not as under necessity in 1918 to the injury of some individuals but on a broad basis to secure the greatest general benefits from the use of the available water supplies.

California's water law did undergo some important developments in the 1920s, though I believe that the extent that this may have been due to the effects of war and drought has not been explored.