Locating nature in international law

Where is ‘the environment’?

By Usha Natarajan and Julia Dehm

Climate change, mass extinction, deforestation, desertification, and increasing pollution and toxicity of the air, water, and land: Uncontainable by national borders, these are quintessentially global concerns for which peoples and states have turned to international law for solutions. This new book asks how international lawyers have understood the environment: What exactly is it and how do international lawyers purport to govern it? These seemingly straightforward questions have the potential to unmake our discipline through destabilizing formative assumptions about the separation between subjects and objects of governance, between the social and the natural, and between the human and non-human. Re-examining international law assumptions about the natural world is not mere theoretical speculation. It is an urgent and necessary step for addressing pressing environmental challenges.

Danielle Eubank, ‘Isle of Mull’ (2014, Oil on linen, 71 x 112). Reproduced with artist’s permission.

Ideological conceptualizations that see nature as resource and property do political work within international environmental law albeit masked by an ostensibly objective, neutral, and increasingly technical legal specialization.

So far, international lawyers have not provided solutions to environmental problems. We have brought to bear our treaties, principles, jurisprudence, institutions, research, and teaching, and have created an increasingly specialised expertise in international environmental law. Yet each of the abovementioned environmental crises continues to steadily deteriorate. To take the best-known examples of climate change and biodiversity loss, half of all greenhouse gases currently in the atmosphere were emitted in the last 30 years, and one million species are now at risk of extinction, despite these two crises being the focus of sustained international law attention since the 1990s. Why? The two most frequented critiques are that, when it comes to environmental protection, there is a North-South divide (the rich and poor cannot agree on how to protect the environment) and a lack of political will (people have other priorities that override environmental protection). Such observations tellingly point to the indispensable connection between economic equality and environmental health. Yet the path to a more equal world that prioritises environmental stability over short-term economic gain remains elusive. International lawyers remain trapped in the seemingly inescapable orbit of globalised capitalism, unable to produce viable solutions to increasing inequality and environmental destruction.

Locating nature

Usha Natarajam

Our title, Locating Nature: Making and Unmaking International Law, reflects our premise that a deeper understanding of the role of nature in international law (i) helps explain how our discipline was made, (ii) can potentially unmake the discipline as we know it, and (iii) such deconstruction can inspire a more productive and self-aware disciplinary remaking. With this in mind, this collection is organised in three parts. Part I, entitled ‘Locating Nature in International Law: Towards New Thinking’, contains three chapters that introduce the themes of this book, the questions being posed, their relevance, and the urgency of providing methodological tools towards new thinking. Together these chapters provide a critical and historical overview of international environmental law and explain the need to look beyond the parameters of this specialization to understand the role of nature in international law.

Usha Natarajan and Kishan Khoday set out the imperatives behind the Locating Nature project, explaining why international law has been incapable of stemming ecological harm. Hélène Mayrand explains how international environmental law adopted rather than challenged the liberal idea of nature as resource and property, and reveals the political work such ideological conceptualizations do within international environmental law albeit masked by an ostensibly objective, neutral, and increasingly technical legal specialization. Julia Dehm examines the increased marketisation of international environmental governance and efforts to ‘value’ nature and the ‘ecosystem services’ it provides in economic terms. Together, these three chapters build a case that to understand where ‘the environment’ really is in international law we need to look beyond international environmental law and interrogate foundational disciplinary assumptions.

Unmaking international law

The seeds of global failure to live relationally with the earth are embedded in colonialism, which is the source of state powered international law. Irene Watson shows that the only way forward is decolonisation, with an acknowledgement of Indigenous law as law.

Part II entitled ‘Unmaking International Law’ consists of six chapters that each examine fundamental concepts of international law: free commerce, sovereignty, jurisdiction, territory, human rights, and labour. Each chapter explores in its own way how a given legal concept has constructed, shaped, and controlled the natural world and how such constructions are linked to questions of environmental degradation, resource allocation, and environmental justice. Ileana Porras uncovers in the work of formative international law scholars Vitoria, Gentili, Grotius, and Vattel the emergence of the prevalent view of nature as commodity from the driving disciplinary quest for free commerce. Tyler McCreary and Vanessa Lamb explore contestation over the proposed (now halted) Enbridge Northern Gateway pipeline project in Canada and the Hatgyi hydropower project on the Salween River along the Thailand-Myanmar border to show how sovereignty is produced by and through practices of resource governance.

Julia Dehm

Karin Mickelson examines the classification of territories beyond the jurisdiction of states, namely through the doctrines of res (or terra) nullius, res communis and common heritage of mankind, showing a shared underlying assumption that nature exists for the benefit of humans. Cait Storr discovers at the heart of the legal concept of territory a Eurocentric construction of a particular relationship between community, authority, and place, and she interrogates whether this concept can be decolonised. Usha Natarajan explores the relationship between human rights and the environment, showing how human rights normalise a series of false conceptions about our collective self that have detrimental social and ecological consequences. Adrian A Smith and Dayna Nadine Scott conclude Part II by examining the consequences of the foundational liberal mythology that separates labour from land, which structures international law and distributes its social and environmental harms in predictable ways.

In light of the disciplinary deconstruction in Part II, Part III is entitled ‘Alternatives and Remakings’ and brings to the fore new ways of thinking about the relationship between international law and the natural world. Darina Petrova and Tomaso Ferrando use opposing notions of enclosure and commoning to show how international law imposes three enclosures of natures, knowledges, and times; and suggest corresponding ways of communing to liberate ourselves from intellectual and material violence and reconnect international law with ecological systems. Kishan Khoday sees law as a social and cultural process guided by myth and narrative and seeks new narratives to contest the foundational myths of modernity through processes of pluralised value formation and a revalorising of ecocosmologies. Roger Merino examines the law and politics of the rights of nature and traces some of the tensions and contradictions inherent in the inclusion of the rights of nature within Western legality. Kathleen Birrell investigates how global imaginary of nature, climate change, and the Anthropocene can be contested by critical counternarratives, drawing on The Swan Book by Alexis Wright to gesture towards types of radical political practice needed for remaking international law. Irene Watson concludes this collection with the core observation that the seeds of global failure to live relationally with the earth are embedded in colonialism, which is the source of state powered international law. She shows that the only way forward is decolonisation, with an acknowledgement of Indigenous law as law that guides how to collectively care for the world.

Together we deconstruct and denaturalise formative assumptions about the relationship between ‘the environment’ and international law. We show the role of international lawyers in fomenting ecological catastrophe, with the purpose of clearing intellectual and imaginative space for more fruitful configurations of law, people, and planet. Crucially, such reconfiguration is only possible through enabling actors long marginalised within our discipline – human and non-human – to speak their knowledges, on their own terms, and in their own language and traditions, because they have valuable stories to tell.

Usha Natarajam is Edward W. Said fellow in the Heyman Center for the Humanities, Columbia University, New York City. Julia Dehm is Senior Lecturer at La Trobe University Law School, Australia.

This article is original content published under a Creative Commons license CC BY-NC-ND 4.0.