01 March 2014


'Theorising International Environmental Law' by Stephen Humphreys and Yoriko Otomo in Florian Hoffmann and Anne Orford (eds) The Oxford Handbook of International Legal Theory (Oxford University Press, 2014)
sketches some early lines of inquiry towards a theoretical understanding of international environmental law. 
As the body of international law regulating human interaction with the natural world, one might expect this branch of law to be a cornerstone of the international system. Yet in practice, international environmental law’s reach is strikingly circumscribed. Little of the governance of natural resources, for example, is ‘environmental’. Subsisting at the periphery, environmental law focuses on conserving particular (rare, exotic) species and ‘ecosystems’, and curbing certain kinds of pollution. Its principles are vague, peppering the margins of rulings within other judicial fora: it is quintessential soft law.
In this paper, we suggest that international environmental law’s dilemmas are due to two competing heritages. On one hand, this law enshrines the peculiar pantheism of the European romantic period, positing the ‘natural world’ as sacred, inviolable, redemptive. On the other, its main antecedents are found in colonial era practices, which provided the data for the earliest environmental science and a laboratory for prototypical attempts at conservation and sustainable development. Caught between irreconcilable demands, international environmental law struggles today to avoid utopian irrelevance or nugatory paralysis.
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International environmental law raises a paradox. As the body of international law that regulates ‘the environment’, one might expect international environmental law to be a cornerstone of the international legal system. What, after all, is more fundamental to the constitution of the world than the human relation to nature? And yet it is striking how little international environmental law does, in fact, regulate. The global food regime, for example, mostly escapes it: agricultural practices and the slaughter of animals for food (or otherwise) are largely beyond its remit. Those phenomena referred to as ‘natural resources’ are generally managed under separate headers or, more often, private arrangements. Instead we find international environmental law at the margins of these concerns, dealing with the ‘conservation’ of certain plants, certain animals, certain ‘ecosystems’. Marginalia complemented by effluvia: as a matter of treaty law, international environmental law also aims to curb certain forms of pollution. In keeping with this general peripherality, the key environmental cases have arisen at the edges of other bodies of law. International environmental law is generally characterised as quintessential ‘soft law’: general principles and aspirational treaties with weak or exhortatory compliance mechanisms, often dependent on other disciplines altogether—science and economics—for direction and legitimacy. At the same time, the problems it is called upon to deal with are immense, frequently catastrophic, and global in nature: climate change, species extinction, increasing desert, disappearing rainforest. 
Despite or because of all this, international environmental law, more than most bodies of law, has many of the trappings of a faith. It derives its effect largely from its affect: international environmental law stages a kind of global moral authority, premised on an aesthetic ideal and an ethical disquiet. For its acolytes, its essence lies in a series of general principles: the do-no-harm principle, the precautionary principle, the polluter pays principle, the principles of equity and ‘common but differentiated responsibilities’, and of course the ├╝ber-principle: ‘sustainable development’. Interposed into the practices of international commerce and diplomacy, as its advocates demand, these principles promise radical reshaping of ‘business-as-usual’. In vain, it seems: for, again more than most areas of international law, this is law crying in the wilderness. 
The little sustained theoretical attention this body of law has attracted to date has concentrated in the main on its relationship with property law—posited as one of mutual constraint. While we touch on this important question, in this chapter we direct our principal focus elsewhere, situating international environmental law with regard to the constituent conceptual elements that generate its specific energy and propel its contradictions today. We find this energy and tension in two principal historical sources: first, the romantic movement of the late eighteenth/early nineteenth centuries; second the evolution of colonial governance practices through to the mid-twentieth century. 
As to the first of these, it is through romantic philosophy and poetry that contemporary ideas about ‘nature’ became firmly established. This influential movement, as political as it was artistic, implanted lasting notions of the beauty of ‘unspoilt’ wilderness, imbued with a profound moral significance, that have endured to the present and provide the ideational backdrop specific to this body of international law, as we will show. In this venture, we will be aided by what is by now a significant body of work investigating the intellectual origins of modern environmentalism. 
As to the second source, from the outset, administrators in colonial territories found themselves grappling with concrete questions on the management of territorial, natural, and livestock resources. These included: a demand for immediate returns on the significant investments of colonial enterprise; a belated preservationist impulse emerging from the burgeoning aestheticisation of colonial landscapes; and a drive to ensure sustainable long-term access to the resources that increasingly fuelled a global economy. In examining the competing discourses of colonial resource management, we will be drawing on a second literature that has recently flowered: that of environmental history. 
In this chapter, therefore, we will tentatively open up some new theoretical perspectives on a body of law that (perhaps surprisingly for such an epistemologically rich subject) has been subjected to little theoretical speculation. After this introduction, we begin by posing a question of terminology—why ‘international environmental law’? Then, following sections on the romantics and the colonials, we return to the present in our conclusion to show how international environmental law’s origins in the confluence of the romantic and the colonial explains the apparent mismatch between its ambitious stated objectives and its muted regulatory provisions—and how this tension continues to inform its functioning today.
'Re-Examining Acts of God' by Jill Fraley in (2010) 27 Pace Environmental Law Review comments
 For more than three centuries, tort law has included the notion of an act of God as something caused naturally, beyond both man’s anticipation and control. Historically, the doctrine applied to extraordinary manifestations of the forces of nature, including floods, earthquakes, blizzards, and hurricanes. Despite the significance of the doctrine, particularly in large-scale disasters, scholars rarely engage the act of God defense critically. However, recently, the doctrine has received more substantial criticism. Denis Binder argued that the doctrine should be repudiated as merely a restatement of existing negligence principles Joel Eagle criticized the doctrine, suggesting that it should not exclude liability for damages resulting from Hurricane Katrina, but his argument rested more on an issue of fact whether the hurricane was foreseeable-than a critique of the doctrine itself. 
With so little attention given to this ancient doctrine, scholars have yet to consider the implications of major theoretical shifts in both law and geography that repudiate a separation of “the human” from “the natural.” Notably, this neglect has continued despite significant grappling with defining “nature” and “natural” in other legal contexts such as patents, federal food and drug regulations,” and public lands management or wilderness protection.” Currently, the acts of God doctrine continues its traditional uses in tort, contract, and insurance law, while also being enshrined in new environmental statutes as a method of creating a limit on liability when the polluter might not reasonably have anticipated circumstances-albeit a strict construction of the doctrine.” For example, the Comprehensive Environmental Response, Compensation, and Liability Act applies the acts of God doctrine, as does the Oil Pollution Act. Yet, it is precisely this context of environmental issues that places the most pressure on the theoretical validity of the defense. With increasing awareness of the human role in climatic and weather changes, dividing human from natural or divine action is far from uncomplicated. 
This article discusses the origins, applications, and utility of the acts of God defense, particularly with an eye towards establishing its theoretical foundations and the reliance on the classical human-nature divide. The article will demonstrate how the crumbling classical divide is already causing shifts in legal doctrines across areas as diverse as food and drug law, wilderness protection, and patents. Then through a deeper engagement with the geographical theory responsible for our renewed vision of the human-nature relationship, the argument establishes a critique of the act of God defense as it has been traditionally formulated. In the final analysis, the article suggests that the act of God defense must be shifted to remove any reliance on a strict divide between human and natural action.