Public International Law, along with the nation states that shape it, evolved during a period of relative environmental and geological stability on Earth. Nation states facilitated the emergence of the global market economy during the waning of the Middle Ages. Mercantilism and colonial governance shaped the borders of nations on all continents. (1) Socio-economic development accelerated with the Industrial Revolution, and humans made inventive and unprecedented use of the Earth's resources, finally breaking free of the gravity of the planet and entered into orbital space, and exploring remotely and virtually deep light years into the universe. From the explorations of Charles Darwin and other scientists, we came to know the natural science of life on Earth. The field of ecology was born at the start of the 1900s; the tools of remote sensing reaching all parts of the Earth and its atmosphere were fashioned only in the past 40 years. (2)
This paper explores the argument that human transformation of Earth's systems is eclipsing the international law-making of nation states. Globally the processes of trade law or environmental law often progress transnationally, with little direction by national governments. (3) Intergovernmental and nongovernmental international organizations act with autonomy, apart from nations. (4) To be clear, nation states still are the major players in world order, but trends of sustainable development or social networked communications transcend individual nations. (5) Whether viewed as environmental law or sustainability law, this body of law exists at once globally and locally; it is different in kind from the Westphalia legacy of law existing separately at international and national levels. (6) This paper explores how the concepts of environmental sustainability permeate how human society is responding to the many changes humans have made affecting the Earth. Since 1992, concepts of sustainability or sustainable development have been tested as ways to adapt to the new conditions. (7) However, successfully adapting to today's global environmental conditions entails reassessing the assumptions with which society has governed itself since 1945. (8) What principles should guide socio-ecological relations in coming years?
A Brief History of Human Adaptation
Development entails change. For 4,000 years, human invention in the Agricultural Revolution allowed humans to settle all parts of the Earth. Incrementally, they transformed the lands of the planet. George Perkins Marsh was among the first to describe this phenomenon in 1864, in his study Man and Nature. (9) The magnitude of human changes to the planet only became fully evident in the past 40 years; with satellite images, society came to understand the scale and permanence of human transformations of the planet, especially in the past 200 years of the Industrial Revolution. (10) In Marsh's day, after the agricultural economy--including commercial hunting--reached across the world, scientists and early explorers noted the loss of species and their habitat. (11) Public sentiment favored the beauty and wonder of nature. (12) With the end of the 19th century, a global move for nature conservation emerged. (13) In international law, this took the form of treaties that, for example, sought to conserve populations of sea seals hunted for their fur, and to set up transboundary parks and protected areas, or establish management regimes along international rivers. (14) Such international laws were mirrors of comparable national and local legislation, establishing seasons for hunting and fishing, game refuges for local and regional protected areas and parks, and regulations to curb excessive timbering. (15) As conservation became scientific, the concepts of "sustained yield" or tree farming were introduced to allow for reproduction of species sufficient to sustain annual harvests. (16) It had become evident that unbridled human exploitation of natural resources could exceed the sustained yield of the resources, and when governments came to recognize this, they enacted legal regimes for nature conservation. (17)
Relevant to the discussion of sustainability as the focus of this Sutton Colloquium of the University of Denver Sturm College of Law, is the history of the creation of the nearby Rocky Mountain National Park. (18) The natural beauty of the Continental Divide and the Front Range and Mummy Range of the Rockies, is extraordinary. Rising in altitude, the region embraces three biological zones: the montane zone, with meadows, Ponderosa Pine, and aspen; the subalpine zone, with Englemann spruce, alpine fir, and limber pine; and the alpine zone above 10,500 feet, with tundra and life beyond the tree zone. Here amidst lakes and streams may be found the headwaters for rivers flowing east, the St. Vrain, Big Thompson, Fall, and Cache La Poudre, while the flows from the west head for the Colorado River. Archaeological records show us that humans apparently came to live here during the Altithermal period, from 5,500 to 3,000 B.C., when the plains endured a period of very hot and dry weather. (19) Humans returned to the plains when the climate mellowed. (20) The technological improvement of the bow and arrow brought improvements in hunting wild animals between 650 and 1,000 A.D. (21) Subsequent years experienced competition among tribes of indigenous people for the resources of the plains and mountains. (22) When American settlers from the east came to the Rockies in the 1870s, they brought extraordinary new technological tools. (23) They also found the trails to traverse the mountains, as they ventured even further west. (24)
Human development ensued: trapping, gold rush fever and mining, hunting elk and deer, ranching with cattle, building irrigation canals and ditches to move the waters around, cutting timber as needed, and a small but growing stream of tourists, with hotels and lodges appearing to meet the need. (25) All took their toll of the ecology of the Rockies, especially around Estes Park. (26) Into this scenario came Enos A. Mills. (27) He had first visited the area in the 1880s, ascending Long's Peak and becoming bonded with his Rockies. (28) Following in John Muir's tradition, he published 16 books and many essays to celebrate and defend his mountains. (29) Mills erected signs, "wild flower notices," to tell visitors to protect flora. (30) His essays and books exposed the harm humans were capable of causing; people were often unaware of the environmental consequences of their behavior. (31) His words still ring true today, and are not unlike the complaints and contemporary warnings made by environmentalists in developing nations. (32) They are also still appropriate for us in the U.S.A. In light of recent wildfires in the west, consider Enos Mills words from 1911:
Most Rocky Mountain fires not only skin off the humus but so cut up the fleshy soil and so completely destroy the fibrous bindings that the elements quickly drag much of it from the bones and fling it down into the stream-channels. Down many summit slopes in these mountains, where the fires went to bed-rock, the snows and waters still scoot and scour. The fire damage to some of these steep slopes cannot be repaired for generations and even centuries. (33) Mills knew that unless the regions around Estes Park were not to be set-aside as a legally protected area, it would be nibbled to death. (34) The story of the Rocky Mountain National Park is for another time. After a spirited public debate between many utilitarian proponents favoring developing the commodities of the region, and many conservationists led by Mills favoring "recreation, natural beauty, and patriotism," the conservation argument won and in 1915, Congress enacted the law to establish the Park. (35)
Enos Mills published his book Your National Parks in 1917. (36) While he later became a critic of the National Parks Service, in this work he celebrated the then 17 national parks, including the one he helped to create. (37) He contended that "[a] National Park is an island of safety in this riotous world.... [It is] a fountain of life.... It holds within its magic realm benefits that are health-giving, educational, economic; that further efficiency and ethical relations, and are inspirational." (38) He believed that "National Parks provide climate for everybody and scenery for all." (39) Mills argued that parks build national character and unite people around shared values. (40) He noted that:
Lack of national unity is perilous.... The people of the United States are united in name, but are they doing good team-work? The mingling of people from all quarters in their own great National Parks means friendly union. The Westerner ought to know the Easterner.... ... There is nothing like acquaintance for promoting friendship, sympathy, and cooperation.... He who feels the spell of the wild, the rhythmic melody of falling water, the echoes among the crags, the bird-songs, the wind in the pines, and the endless beat of wave upon the shore, is in tune with the universe. (41) The story of Mills and the campaign to save Rocky Mountain National Park offers important insights into the question of how human society should conceive of sustainability. Only by establishing legal regimes for large ecological landscapes can we leave space for natural systems to evolve during the coming eons. If humans colonize every corner of the Earth, they squeeze out room for nature. Law establishes our rules for how humans relate to nature.
This is not just an American experience. Following the leadership of the U.S.A., nearly every nation on Earth today has established national parks and an agency responsible for them. (42) This is done voluntarily. The national park services are all members of the World Commission on Protected Areas of the International Union for the Conservation of Nature and Natural Resources...
Sustaining society in the Anthropocene epoch.
|Author:||Robinson, Nicholas A.|
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