The Long Road to Sustainability: The Past, Present, and Future of International Environmental Law and Policy 019881951X, 9780198819516

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T H E L O N G ROA D TO  S U S TA I N A B I L I T Y

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The Long Road to Sustainability The Past, Present, and Future of International Environmental Law and Policy ALEXANDER GILLESPIE

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1 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © A Gillespie 2017 The moral rights of the author have been asserted First Edition published in 2017 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America British Library Cataloguing in Publication Data Data available Library of Congress Control Number: 2017957338 ISBN 978–​0–​19–​881951–​6 Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.

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This book is dedicated to my daughter Renée, because she cares.

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Contents Table of Cases Table of Legislation Table of Treaties and International Instruments 1. Introduction

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Prior to the Industrial Revolution 1. Introduction 2. Before Humanity 3. Before Antiquity 4. Antiquity 5. The Middle Ages 6. From the Reformation to the Enlightenment 7. Conclusion

5 5 5 6 8 13 15 20

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The Nineteenth Century 1. Introduction 2. Economic Growth 3. Social Concerns 4. Population Growth 5. Habitat Loss 6. Species Loss 7. Air Pollution 8. Climate Change 9. Fresh Water Conservation 10. Human Waste 11. Municipal Waste 12. Poisons 13. Civil Society 14. Conclusion

22 22 22 27 31 33 34 36 37 38 39 40 42 43 44

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The First Half of the Twentieth Century 1. Introduction 2. Before the First World War 3. The Context after the First World War 4. The Great Depression 5. The Social Context 6. Population Growth 7. Habitat 8. Species 9. Fresh Water Management

45 45 45 47 51 53 57 58 60 63

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10. Air Pollution 11. New and Old Pollutants 12. Desertification 13. Conclusion

63 65 68 69

Between the Second World War and 1970 1. Introduction 2. Economic Growth 3. Social Context 4. Trade 5. International Development 6. Development and the Developing World 7. Population Growth 8. Habitat Loss 9. Endangered Species 10. Non-​carbon-​based Energy 11. Air Pollution 12. Climate Change and Ozone Considerations 13. Fresh Water Conservation 14. Ocean Pollution 15. Waste Management 16. New Pollutants 17. The Communist Experience 18. Civil Society 19. Conclusion

71 71 71 72 73 75 79 84 86 89 90 92 94 95 96 96 97 99 100 101

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103 103 103 106 108 110 111 114 116 119 121 124 128 130 131 132 134 136 137 140 141

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From 1970 to 1990 1. Introduction 2. Trade 3. Debt 4. Collapse 5. Aid 6. Transnational Corporations 7. Sustainable Development 8. Population Growth 9. Habitat 10. Species 11. Air Pollution 12. Ozone Depletion 13. Climate Change 14. Fresh Water Management 15. Ocean Pollution 16. Nuclear and Industrial Accidents 17. Waste 18. New Pollutants 19. Civil Society 20. Conclusion

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The 1990s 1. Introduction 2. The Economic and Social Side 3. Debt 4. Corruption 5. Overseas Assistance 6. Trade 7. Transnational Corporations 8. Sustainable Development 9. Population Growth 10. Habitat Loss 11. Biodiversity Loss 12. Fisheries 13. Non-​carbon-​based Energy 14. Climate Change 15. Air Pollution 16. Ocean Pollution 17. Fresh Water Conservation 18. Popular Participation 19. The Ethical Consumer 20. Conclusion

143 143 143 144 146 147 149 159 161 164 166 168 169 171 173 174 176 178 179 180 181

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The Twenty-​first Century: The Economic and Social Context 1. Introduction 2. Human Progress 3. Goals for the Millennium and Sustainable Development 4. Poverty 5. Inequality 6. Growth 7. Trade 8. Overseas Development Assistance 9. Corruption 10. Debt 11. Transnational Corporations 12. The Ethical Consumer 13. Conclusion

185 185 185 186 188 190 191 191 200 203 204 206 215 217

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The Twenty-​first Century: Environment 1. Introduction 2. Population Growth 3. Famine 4. Habitat Loss 5. Biodiversity Loss 6. Unsustainable Fisheries 7. Climatic Change 8. Alternative Energy 9. Air Pollution

219 219 219 221 225 229 230 232 235 237

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10.  Fresh Water Conservation 11.  Municipal Waste 12.  Human Waste 13.  Chemical Pollutants 14.  Public Participation 15. Conclusion

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10. Conclusion 1.  The Economic and Social Sides of Sustainable Development 2.  The Environmental Side of Sustainable Development 3.  The Last Words

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Index

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Table of Cases GERMANY Donauversinkung (Prussia v Baden) case, German Staatsgerichtshof, 18 June 1927����������������������������63 ICSID ARBITRATIONS Occidental Petroleum Corporation v The Republic of Ecuador, Award, ICSID Case No. ARB/​06/​11 (Oct. 5, 2012) Section 450 ������������������������������������������������������������������������������������������������������������������������������������������212 INTERNATIONAL ARBITRATION AWARDS Trail Smelter Arbitration (United States v Canada) Arbitral Tribunal [1905] 3 UN Rep Int’l Arb Awards (1941) ����������������������������������������������������������������������������������������������������� 65, 93 INTERNATIONAL COURT OF JUSTICE (ICJ) Case Concerning the Gabčíkovo-​Nagymaros Project [1997] ICJ Rep 112����������������������������������������178 Case Concerning Pulp Mills on the River Uruguay (2010) ICJ Rep Paras 203–​206; 223, 225 228, 257, and 259������������������������������������������������������������������������������������������240 Certain Activities Carried Out By Nicaragua in the Border Area [2015] ICJ Rep 100–​105��������������������������������������������������������������������������������������������������������������������� 65, 240 Corfu Channel Case (UK v Albania) [1949] ICJ 4, 21 (9 April 1949)��������������������������������������������������93 Fisheries Jurisdiction Case (UK v Iceland) [1974] ICJ Rep 3, 32 at para 72����������������������������������������123 Gabčíkovo-​Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 78, paras 140–​41 ����������������������������������������������������������������������������������������������������������������������������������116 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion [1996] ICJ Rep 241–​42������������������������������������������������������������������������������������������������������������������������������� 65, 162 Nuclear Tests Case (Australia and New Zealand v France) [1974] ICJ Rep 173, 253, and 457��������������������������������������������������������������������������������������������������������������������114 Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 55–​56 ��������������������������������65 Whaling in the Antarctic (Australia v Japan, New Zealand intervening) Judgment [2014] ICJ Rep 226 ������������������������������������������������������������������������������������������������������������������������122 UNITED STATES Georgia v Tennessee Copper Company 206 U.S. 230 (1907)����������������������������������������������������������������65 Missouri v Illinois 200 US 496 (1906)�����������������������������������������������������������������������������������������������������63

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Table of Legislation UNITED KINGDOM Clean Air Act (1956 and 1968) ����������������������� 93 Combinations of Workmen Act 1825������������� 27 Cruel Treaty of Cattle Act 1822����������������������� 35 Cruelty to Animals Acts 1835��������������������������� 35 Destruction of Stocking Frames Act 1812 ��������������������������������������������������� 27 Factories Act 1847��������������������������������������������� 30 Factory Acts (1819, 1833, and 1844)��������������� 30 Factory and Workshop Act (1892 and 1985)��������������������������������� 43 Game Act 1831������������������������������������������������� 35 Game Licences Act 1860����������������������������������� 35 Ground Game Act 1880����������������������������������� 35 Health and Morals of Apprentices Act 1802 ��������������������������������������������������� 30 Improvement Clauses 1847 ����������������������������� 37 Mines and Collieries Act 1841������������������������� 30 Night Poaching Acts (1828 and 1844)������������� 35 Poaching Prevention Act 1862������������������������� 35 Public Health Act 1848������������������������������������� 40 11 and 12 Vict c 63��������������������������������������� 40 Railways Clauses 1845 ������������������������������������� 37 River Pollution Prevention Act 1876��������������� 39 Sale of Food and Drugs Act 1875��������������������� 42 Sanitary Act 1866 ��������������������������������������������� 37 Sea Birds Preservation Act 1869����������������������� 35 UNITED STATES Administrative Procedures Act 1946������������� 100 Agricultural Adjustment Act 1933������������������� 68 Air Pollution Control Act 1955����������������������� 93 Atomic Energy Act 1946����������������������������������� 91 Clean Air Act 1970 ����������������������������������������� 126 Clean Water Act 1972������������������������������������� 126 Comprehensive Environmental Response, Compensation and Liability Act 1980����������������������������������� 136 Economic Opportunity Act 1964 ������������������� 73

Elementary and Secondary Education Act 1965 ��������������������������������������������������� 73 Endangered Species Act 1973������������������������� 121 Endangered Species Preservation Act 1966 ��������������������������������������������������� 89 Energy Policy and Conservation Act ������������� 126 Esch Act 1912 ��������������������������������������������������� 56 Fair Labour Standards Act 1938����������������������� 57 Federal Caustic Poison Act 1927 ��������������������� 65 Federal Insecticide, Fungicide and Rodenticide Act 1947������������������������������� 97 Federal Wildlife Coordination Act 1946������� 100 Food, Drug and Cosmetic Act 1938 ��������������� 65 Food Stamp Act 1964��������������������������������������� 73 Forest Management Act 1897��������������������������� 34 Forest Reserve Act 1891 ����������������������������������� 34 Game and Bird Preserves Protection Act 1906 ��������������������������������������������������� 60 Insecticide Act 1910 ����������������������������������������� 65 Lacey Act 1900��������������������������������������������������� 60 McKinley Tariff Act 1890��������������������������������� 26 Motor Vehicle Pollution Control Act 1959 ��������������������������������������������������� 94 National Labour Relations Act 1935��������������� 57 Occupational Safety and Health Act 1970 ������������������������������������������������� 103 Pure Food and Drug Act 1906������������������������� 65 Reciprocal Trade Agreement Act 1934������������� 52 Social Security Act 1935����������������������������� 55, 73 Soil Conservation and Domestic Allotment Act 1936 ��������������������������������� 68 Toxic Substances Control Act 1976��������������� 138 Water Pollution Control Act 1948������������������� 97 REGUL ATIONS Alkali Works Regulation 1863������������������������� 37 Alkali Works Regulation 1906������������������������� 37 Public Health Regulation 1875 ����������������������� 37

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Table of Treaties and International Instruments African Convention on the Conservation of Nature and Natural Resources 1968��������������������������� 88 Agenda 21 (1992) UNCED Doc A/​ CONF.151/​4����������������� 162, 178, 179, 208 ch 3�������������������������������������������������������143, 179 ch 11������������������������������������������������������������� 179 ch 14������������������������������������������������������������� 179 ch 17������������������������������������������������������������� 170 ch 18������������������������������������������������������������� 178 ch 24������������������������������������������������������������� 141 ch 27.1��������������������������������������������������������� 179 ch 27.9(d)���������������������������������������������������� 179 ch 30������������������������������������������������������������� 159 ch 30:8��������������������������������������������������������� 180 ch 30:10������������������������������������������������������� 159 ch 31������������������������������������������������������������� 127 para 2.17 ����������������������������������������������������� 148 para 9����������������������������������������������������������� 178 para 11��������������������������������������������������������� 178 para 14��������������������������������������������������������� 178 para 20��������������������������������������������������������� 178 para 29��������������������������������������������������������� 178 para 35��������������������������������������������������������� 178 para 42��������������������������������������������������������� 178 para 43��������������������������������������������������������� 178 para 68��������������������������������������������������������� 178 s 2.3 ������������������������������������������������������������� 145 s 2.4 ������������������������������������������������������������� 145 s 2.5 ������������������������������������������������������������� 156 s 4.3 �����������������������������������������������������164, 165 s 4.4 �����������������������������������������������������164, 165 s 4.5 �����������������������������������������������������164, 165 s 4.8 �����������������������������������������������������164, 165 s 17.46��������������������������������������������������������� 171 s 17.74��������������������������������������������������������� 171 s 21��������������������������������������������������������������� 245 s 21.39��������������������������������������������������������� 245 s 29��������������������������������������������������������������� 245 s 30.9 ����������������������������������������������������������� 159 s 30.18��������������������������������������������������������� 159 s 30.26��������������������������������������������������������� 159 Agreement on Agriculture preamble MTN/​FA II-​A/​ A-​3���������������������������������������������� 154, 223–​4 Art 6(2) ������������������������������������������������������� 223 Art 15����������������������������������������������������������� 223 Art 16����������������������������������������������������������� 223

Agreement on the Application of Sanitary and Phytosanitary Measures (SPS) ������� 158 Art 2.2 ��������������������������������������������������������� 158 Agreement Between the Governments of the United States of America and the Government of Canada on Air Quality 1991�����������������������������������127, 175 Agreement Between the United States of America and the United Mexican States on Co-​operation for Protection of the Environment in the Border Region, Regarding Transboundary Air Pollution Caused by Copper Smelting Along Their Common Border (1987) 26 International Legal Materials 33 Annex IV����������������������������������������������������� 127 Agreement Concerning the International Commission for the Protection of the Rhine Against Pollution 1963����������� 95 Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil 1969 ��������������������������������������������������� 96 Agreement for the Creation of an Office for Contagious Diseases of Animals (1924) ������������������������������������������������������� 46 Agreement Establishing the WTO 1867 UNTS 493����������������������������������������������� 158 Annex 1A����������������������������������������������������� 158 preamble MTN/​FA II��������������������������������� 154 Agreement for the Establishment of a General Fisheries Council for the Mediterranean 1949��������������������������������� 89 Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2016) 55(6) ILM 1157 ����������� 232 Agreement on Straddling and Highly Migratory Fish Stocks (1995) 34 ILM 1542; 2167 UNTS 88���������������170–​1 Agreement on Technical Barriers to Trade (TBT) Art 4������������������������������������������������������������� 196 Antarctica Treaty 1959 �����������������������������87, 166 Art 2��������������������������������������������������������������� 88 Articles of Agreement of the International Monetary Fund (IMF) Art I(i) ����������������������������������������������������������� 76

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Table of Treaties and International Instruments

Art I(ii)����������������������������������������������������������76 Art VI������������������������������������������������������������76 Art VIII ��������������������������������������������������������76 Art XIV ��������������������������������������������������������76 ASEAN Agreement on Transboundary Haze Pollution 2002������������������������������239 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) 28 ILM 657 ���������������������������������������������� 152–​4, 198–​9 Art 4(1) ������������������������������������������������������137 Art 4(8) ������������������������������������������������������137 Berlin Rules Art 5������������������������������������������������������������240 Art 6������������������������������������������������������������240 Art 7������������������������������������������������������������240 Art 17����������������������������������������������������������240 Art 18����������������������������������������������������������240 Art 20����������������������������������������������������������240 Art 22����������������������������������������������������������240 Art 28����������������������������������������������������������240 Business Charter on Sustainable Development of the International Chamber of Commerce/​(ICC) 1991������������������������������������������������� 159–​60 Cairo Conference on Population 1994��������������������������������������������������� 165–​6 Cartagena Protocol on Biosafety (2000) 39 ILM 1027 ����������������������������169 Charter of Algiers: Ministerial Declaration of 77 Developing Countries Art C��������������������������������������������������������������84 Charter of Economic Rights and Duties of States, UNGA Res 3281 (XXIX) (12 December 1974)�����������������������������104 Art 22����������������������������������������������������������110 Cobden-​Chevalier Treaty ��������������������������������24 Cocoyoc Declaration point 3��������������������������������������������������������104 Code of Conduct 1985 Art 1������������������������������������������������������������139 Art 4������������������������������������������������������������139 Art 6������������������������������������������������������������139 Art 7������������������������������������������������������������139 Art 8������������������������������������������������������������139 Art 11����������������������������������������������������������139 Art 12����������������������������������������������������������139 Code of Good Practice for the Preparation, Adoption and Application of Standards Annex 3 ������������������������������������������������������196

Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency 1986������������������������������������135 Convention Between the United States and Great Britain (Canada) for Migratory Birds 1916������������������������������61 Convention on Biological Diversity, (1992) 31 ILM 818����������������������192, 225, 227, 229 preamble, para 3 ����������������������������������������169 Art 1������������������������������������������������������������169 Art 4������������������������������������������������������������169 Art 5������������������������������������������������������������169 Art 8(a)��������������������������������������������������������169 Art 8(c)��������������������������������������������������������169 Art 15����������������������������������������������������������248 Convention on Birds Useful to Agriculture 1902��������������������������������������60 Convention on Civil Liability for Oil Pollution (CLC Convention) 1969����������������������176 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions 1997����������������������������������147 Convention Concerning Fishing in the Black Sea 1959 ����������������������������������������89 Convention Concerning Fishing in the Waters of the Danube 1958��������������������95 Convention Concerning Forced or Compulsory Labour��������������������������������56 Convention Concerning Hunting on Lakes Constance, the Rhine, and Berne 1897 ����������������������������������������������36 Convention Concerning the Use of White Lead in Painting 1921������������������57 Convention on the Conservation of Antarctic Marine Living Resources 1980��������������������������������������123 Convention for the Conservation of Antarctic Seals 1972������������������������������123 Convention on the Conservation of European Wildlife and Natural Habitats 1979����������������������������������������122 Convention on the Conservation of the Living Resources of the Southeast Atlantic 1969������������������������������������� 89–​90 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean 2000������������������231 Convention on the Conservation of North Pacific Fur Seals 1976����������������123

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Table of Treaties and International Instruments Convention on the Conservation of Various Species of Wild Animals in Africa 1900����������������������������������������������60 Convention on Diseases of Animals 1935 ������������������������������������������46 Convention on the Elimination of All Forms of Discrimination Against Women UNTS 1249: 13 Art 7(b) ������������������������������������������������������141 Art 7(c)��������������������������������������������������������141 Art 14����������������������������������������������������������141 Convention on Epizootic Diseases 1887����������������������������������������������������������26 Convention for the Establishment of an Inter-​American Tropical Tuna Commission 1949 ����������������������������������89 Convention on the Fishing and Conservation of the Living Resources in the Baltic Sea 1973����������123 Convention on Fishing and Conservation of the Living Resources of the High Sea 1958��������������89 Convention on the High Seas 450 UNTS 11 (1958) Art 25������������������������������������������������������������92 Convention for the High Seas Fisheries of the North Pacific Ocean 1952������������89 Convention on the International Regulations for Preventing Collisions at Sea 1050 UNTS 16, and 1143 UNTS 346, UKTS. 1184������������������������������������������133 Convention on International Trade in Endangered Species of Wild Fauna and Flora 27 UST 1087; 993 UNTS 243����������������������������������������������121 preamble�����������������������������������������������������122 Art 2������������������������������������������������������������122 Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (1996) 35 ILM 1415������������������������������������� 176–​7 Convention on Long Range Transboundary Air Pollution, LRTAP 1979 preamble�����������������������������������������������������126 Art 2������������������������������������������������������������126 Art 3������������������������������������������������������������126 Art 4������������������������������������������������������������126 Art 8������������������������������������������������������������126 Art 9������������������������������������������������������������126

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Convention on Migratory Species 1651 UNTS 339 and (1980) ILM 19: 15 Art II(1)������������������������������������������������������122 Art III(4) ����������������������������������������������������122 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere 1940����������������������61 Convention on Navigable Waterways of International Concern 1921 ������������������63 Convention on the Non-​Navigational Uses of International Waterways can be found at (1997) ILM36: 700 Art 5(1) ������������������������������������������������������178 Art 10(2) ����������������������������������������������������178 Art 20����������������������������������������������������������178 Art 21����������������������������������������������������������178 Convention on Nuclear Safety 1994������������135 Convention for the Organisation of Economic Cooperation and Development 1960 Art 1��������������������������������������������������������������72 Convention on Phylloxera 1881����������������������26 Convention on Preparedness as at (1990) 30 ILM 733��������������������������������176 Convention for the Preservation of the Halibut Fisheries of the North Pacific Ocean XXXII LNTS 93��������������62 Convention for the Preservation and Protection of Fur Seals 1911 ������������������60 Convention on Prevention of Diseases of Livestock 1928������������������������������������46 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter 1972����������������������� 132, 177 Convention for the Protection of Plants 1929������������������������������������������46 Convention for Regulating the Police of the North Sea Fisheries 1882������������������������������������������35 Convention for the Regulation of Whaling 1931������������������������������������������62 Convention Relating to the Development of Hydraulic Power 1923����������������������������������������������63 Convention Relative to the Preservation of Fauna and Flora in Their Natural State 1933������������� 61, 88 Convention on the Repression of Hunting Offences 1885��������������������������36 Convention Respecting the Prohibition of the Use of White (Yellow)

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Phosphorus in the Manufacture of Matches (Berne Convention)������������������56 Convention for Safety of Life at Sea (1980) UNTS 1184������������������������������133 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States 1966 ����������������������������������������������82 Convention to Supress Slavery and the Slave Trade (60 LNTS 253)��������������������46 Convention on Third Party Nuclear Liability in the Field of Nuclear Energy 1960 ��������������������������������������������91 Convention on Transboundary Watercourses 1936 UNTS 269, (1992) 31 ILM 1312 ����������������������������178 Convention on Transparency in Treaty Based Investor State Arbitration 2014 preamble�����������������������������������������������������213 Declaration A/​CONF.166/​9 (19 April 1995) Commitment 1 ��������������������������145 Declaration of the Establishment of a New International Economic Order can be found at UNGA Res 3201 (S-​UI) (1 May 1974)������������������104 Declaration by International Banks on Environmental Policies and Procedures (1980) 19 ILM 524������������163 Declaration of Principles on Air Pollution 1968 Principle 7����������������������������������������������������93 Declaration for the Protection of Birds Useful to Agriculture 1875����������������������35 Declaration on the Right to Development UNGA A/​RES/​41/​ 128 (4 December 1986)������������������������116 Declaration of the United Nations Conference on the Human Environment. UN Doc A/​CONF.48/​14 Principle 16������������������������������������������������118 Doha Declaration (2002) 41 ILM 746 ��������192 Earth Summit 2002 see Johannesburg Declaration on Sustainable Development Earth Summit 2012��������������������� 194, 196, 200, 201, 235, 239 ECOSOC (1959) Resolution 713 (XXVII)��������������������������������������������88 European Convention on the Protection and Use of Transboundary Watercourses and International Lakes 1992����������������������������������������������178

FAO Constitution�������������������������������������������� 76 FAO Code of Conduct for Responsible Fisheries 1995, FAO Doc 95/​20/​Rev/​1; UN Sales No E98.V.11 (1998); 1995 WTS 3 Art 2(c)����������������������������������������������������������87 Food Assistance Convention (2012) 52(1) ILM 354 ��������������������������������������221 Art 1������������������������������������������������������������222 Art 2(a)��������������������������������������������������������222 Art 2(b) ������������������������������������������������������222 Art 5(9) ������������������������������������������������������222 Framework Convention on Tobacco Control (2003) 2302 UNTS 166, ILM 42:518��������������������������������������������112 General Agreement on Tariffs and Trade (GATT) (1947) 55 UNTS 187��������������������������������� 74, 103 preamble�������������������������������������������������������74 Art I:1����������������������������������������������������������158 Art II:2��������������������������������������������������������158 Art III:2������������������������������������������������������158 Art III:4������������������������������������������������������158 Art VI:1 ������������������������������������������������������158 Art IX:1 ������������������������������������������������������158 Art XI:2 ������������������������������������������������������158 Art XI(2)(a)��������������������������������������������������75 Art XIII:1����������������������������������������������������158 Art XIX:1����������������������������������������������������158 Art XX ��������������������������������������������������������156 Art XX(b)��������������������������������������������� 74, 158 Art XX(e)����������������������������������������������������155 Art XX(f )������������������������������������������������������74 Art XX(g)������������������������������������������������������74 Global Ship Ballast Water Treaty ������������������202 Gothenburg Protocol 1999����������������������������175 Havana Charter Art 7��������������������������������������������������������������74 Helsinki Rules on the Uses of the Waters of International Rivers Art IV������������������������������������������������������������95 Art X��������������������������������������������������������������95 Art XI������������������������������������������������������������95 ICSID Convention 1966 ������������������������������213 ILO Indigenous and Tribal Peoples Convention 1989����������������������������������248 ILO Tripartite Declaration of Principles concerning Multilateral Enterprises and Social Policy (1978) ILM 17: 422������������������������������������������� 113, 208 IMO, Resolution A.720(17)��������������������������176 International Conference on Human Rights para 1, A/​CONF/​32/​41 (22 April 1968) ����������������������������������������������86

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Table of Treaties and International Instruments International Conference on Population and Development A/​CONF.171/​13 ����������������������������� 163–​5 International Conference on Water and the Environment 1992��������������������������178 International Convention on Civil Liability for Bunker Oil. IMO LEG/​CONF.12/​19, [2002] OJ L256/​7����������������������������������������������������176 International Convention on Civil Liability for Oil Pollution Damage (1969) 973 UNTS 3; 9 ILM 45��������������96 International Convention for the Conservation of Atlantic Tunas 1966����89 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage (1971) 1956 UNTS 255����������������������������������������������176 International Convention for the Prevention of Pollution of the Sea by Oil 1954����������������������������������������������96 International Convention for the Prevention of Pollution from Ships 1973/​1978����������������������������������������������133 International Convention for the Protection of Birds 1950�������������������������89 International Convention for the Regulation of Whaling (1946) 161 UNTS 72����������������������������������������� 90, 122 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties 1970����������������������������������������96 International Covenant on Civil and Political Rights (ICCPR) 1966 Art 1��������������������������������������������������������������73 International Covenant on Economic, Cultural and Social Rights (ICESCR) 1966 Art 1��������������������������������������������������������������73 Art 7��������������������������������������������������������������73 Art 9��������������������������������������������������������������73 International Development Agency Art 1��������������������������������������������������������������76 International Development Strategy for the First United Nations Development Decade (1960) UNGA Res 1710 (XVI)��������������������������78 International Financial Corporation Art 1��������������������������������������������������������������76 International Labour Organization Convention 1973����������������������������������103

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International Tropical Timber Agreement 1983������������������������������������121 International Tropical Timber Agreement (1994) 33(4) ILM 1014 ����������������������������������������������168 International Tropical Timber Agreement 2006������������������������������������228 Multilateral Enterprises and Social Policy, as reprinted in (1978) ILM 17: 422 (1977) ��������������������������������������113 Istanbul Declaration on Human Settlements A/​CONF.165/​L.6.  Add.10 Principle 4��������������������������������������������������164 ITO Charter������������������������������������������������������74 IUCN, ‘Publication of an Atlas of Nature Reserves in the World’ (1952) Resolution No 99������������������������88 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management INFCIRC/​546 (24 December 1997)171–​2 Art 1������������������������������������������������������������172 Art 11(v)–​(viii) ������������������������������������������172 Art 12����������������������������������������������������������172 Art 13����������������������������������������������������������172 Art 15����������������������������������������������������������172 Art 17����������������������������������������������������������172 Joint Declaration 1964������������������������������������80 Joint Protocol Relating to the Application of the Vienna and Paris Conventions 1988 ��������������������������������135 Johannesburg Declaration on Sustainable Development (Earth Summit) 2002��������������������� 135, 143, 145, 148, 156, 159–​60, 163, 165, 167, 170, 178–​80, 192, 194, 245 para 1����������������������������������������������������������186 para 12��������������������������������������������������������186 para 27��������������������������������������������������������208 para 29��������������������������������������������������������208 Kuwait Regional Convention������������������������133 Kyoto Protocol to the United Nations Convention on Climate Change UN Doc FCCC/​CP/​1997/​7/​ Add.1 (10 December 1997)��������� 193, 233 Art 2(3) ������������������������������������������������������194 Art 3(1) ������������������������������������������������������174 Art 15����������������������������������������������������������131 League of Nations Covenant����������������������������49 Art 22������������������������������������������������������������47 Art 23������������������������������������������������������������48 Art 23(1) ������������������������������������������������������55

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London Dumping Convention 1972�����������176 preamble�����������������������������������������������������132 Madrid Protocol on Environmental Protection to the Antarctic Treaty (1991) 30 ILM 1455 ����������������������������167 Art 2������������������������������������������������������������167 Art 3(3) ������������������������������������������������������167 Art 7������������������������������������������������������������167 Mexico City Declaration on Population and Development. International Conference on Population. Mexico City (6–​14 August 1984)����������������������118 Millennium Declaration UNGA Res A/​ RES/​55/​2/​(18 September 2000)����� 200–​1 Goal 8����������������������������������������������������������200 para 15��������������������������������������������������������204 para 16��������������������������������������������������������204 para 22��������������������������������������������������������248 Minamata Convention on Mercury (2016) 55 ILM. 582������������������������������246 Monterrey International Conference on Financing for Development 2002��������������������������������203 Montreal Protocol�����������������������������111, 128–​9 preamble�����������������������������������������������������129 Art 6������������������������������������������������������������129 Art 9������������������������������������������������������������129 Multilateral Agreement on Investment (MAI) 1998��������������������������������������������161 Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Sharing 2017������������������������������������������214 Nagoya Protocol on Access and Benefit Sharing UNEP/​CBD/​COP/​DEC/​ X/​1 of 29 October 2010��������������� 169, 202 Nairobi Declaration (1982) ILM 21: 676 para 6����������������������������������������������������������127 para 9 ����������������������������������������������������� 113, 141 Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest 1982������������������������������������������123 Non Legally Binding Forest Principles, as set out in A/​CONF.151/​26 (Vol. III) or (1992) 31 ILM 881 ����������156 Principle 1(a)����������������������������������������������168 Principle 4��������������������������������������������������168 Principle 8(a)����������������������������������������������167 Principle 8(d)����������������������������������������������167 Principle 8(e)����������������������������������������������167 Principle 13������������������������������������������������168

Non-​Legally Binding Principles can be found at E/​2007/​INF/​2/​ Add.2 (2007)������������������������������������������227 North American Free Trade Agreement (NAFTA) (1992) 32 ILM 105��������������149 Supplemental Agreement to NAFTA: Agreement on Environmental Cooperation������������150 Supplemental Agreement to NAFTA: Agreement on Labour Cooperation Art 1������������������������������������������������������������150 Art 1(a)��������������������������������������������������������150 Art 1(b) ������������������������������������������������������150 Art 3������������������������������������������������������������150 North East Atlantic Fisheries Convention 1980����������������������������������123 OECD Guidelines for Multinational Enterprises, 15 ILM 969 ����������������������113 Opium Convention 1912��������������������������������46 Paris Agreement FCCC/​CP/​2015/​L.9 (12 December 2015)��������������� 130, 135, 193–​4, 202–​3, 234–​5, 259 Art 2(1)(a)��������������������������������������������������234 Art 3������������������������������������������������������������234 Art 13(a)������������������������������������������������������131 Polar Bear Agreement 1973 ��������������������������122 Protocol of 1992 to amend the 1969 Convention on Civil Liability for Oil Pollution (the CLC Convention) ������������������������������������������176 Protocol of 1992 to amend the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1956 UNTS 255����������������������������������������������176 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1997) 36 ILM1������������������������177 Protocol to Amend the Vienna Convention on Liability for Nuclear Damage 1997��������������������������135 Protocol Concerning the International Commission for the Protection of the Mosel Against Pollution 1961������95 Protocol to the International Convention for the Prevention of Pollution from Ships No. 22484 UNTS 1983: 61 ������������������������������������133 Protocol to the LRTAP on the Reduction of Sulphur Emissions

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Table of Treaties and International Instruments or their Transboundary Fluxes by at Least 30 per Cent (the Helsinki Protocol) BH868.txt 1985��������������������127 Protocol to the LRTAP Concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes (1989) 28 International Legal Materials 212, BH930.txt 1987��������������������������������������������������������127 Ramsar Convention on Wetlands of International Importance (2017) 996 UNTS 245������������������������������� 119–​20 Resolution V, Report of the World Food Conference, Rome (5–​16 November 1974) UN. Doc E/​ CONF.65/​20 (1975) ����������������������������117 Resolution XVIII of the Human Rights Aspects of Family Planning ��������������������86 Resolution WHA34.22 of 21 May 1981 ����������������������������������������������112 Rio Declaration on Environment and Development Principle 3, UNCED Doc A/​CONF.151/​ 5/​Rev.1 (1992) 31 ILM 877 Principle 3��������������������������������������������������162 Principle 4��������������������������������������������������162 Principle 5��������������������������������������������������143 Principle 7��������������������������������������������������148 Principle 8����������������������������������������� 164, 165 Principle 10������������������������������������������������179 Principle 10(1)��������������������������������������������163 Principle 10(3)��������������������������������������������163 Principle 12��������������������������������������� 156, 163 Principle 13������������������������������������������������135 Principle 13(b)��������������������������������������������156 Principle 15������������������������������������������������130 Principle 18������������������������������������������������135 Principle 19������������������������������������������������135 Principle 20������������������������������������������������141 Principle 22������������������������������������������������248 Rome Declaration on World Food Security, World Food Summit (1996) ����������������������������������������������������165 para 1����������������������������������������������������������165 Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade 1999���������������������������������������������140 Single European Act 1986������������������������������105 SPS Agreement see Agreement on the Application of Sanitary and Phytosanitary Measures

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Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (1992) UNCED Doc A/​ CONF.151/​6/​Rev.1 (1992) 31 ILM 881 ������������������������������������������������167 Art 1(b) ������������������������������������������������������162 Principle 1(b)����������������������������������������������148 Principle 7(b)����������������������������������������������148 Principle 8(c)����������������������������������������������148 Principle 9(a)����������������������������������������������145 Statute of the International Agency for Atomic Energy Art II��������������������������������������������������������������76 Stockholm Conference on the Human Environment UN Doc A/​ CONF.48/​14/​Rev.1 1972 ������������114–​15,  118 Art 9������������������������������������������������������������111 Principle 1��������������������������������������������������115 Principle 2��������������������������������������������������115 Principle 3��������������������������������������������������115 Principle 4��������������������������������������������������115 Principle 5��������������������������������������������������115 Principle 6����������������������������������������� 115, 138 Principle 7��������������������������������������������������115 Principle 8��������������������������������������������������115 Principle 10������������������������������������������������104 Principle 11������������������������������������������������115 Principle 18������������������������������������������������115 Principle 20������������������������������������������������115 Principle 21������������������������������������������������126 Stockholm Convention on Persistent Organic Pollutants (2001) 40 ILM 532����������������������������������������������������������246 Trans-​Pacific Partnership Agreement (TPPA) 2016 ch 9��������������������������������������������������������������114 ch 19������������������������������������������������������������198 Treaty for the Preservation and Protection of Fur Seals, 37 Stat 1542, Treaty Series No 564 ��������������������61 Treaty of Versailles��������������������������������������������53 UNECE Convention on access to information, public participation in decision making and access to justice in environmental matters (1999) 38 ILM 517��������������������������������179 UNECE Water Convention 1992����������������241 UNESCO Conference on the Use and Conservation of the Biosphere 1968����������������������������������������������������������88

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Table of Treaties and International Instruments

UNGA Declaration on Social Progress and Development in 1969, UNGA Res 2542 (XXIV)����������������� 78, 86 UNGA Resolution 2849 (XXVI) (7 December 1970) Principle 4(b)����������������������������������������������115 Principle 4(d)����������������������������������������������115 UN Agreement on Conservation and Management of Straddling Fishing Stocks and Highly Migratory Fish Stocks 1995��������������������������������������������202 United Nations Charter Ch IX������������������������������������������������������������75 Art 1��������������������������������������������������������������75 Art 55������������������������������������������������������������75 s 71��������������������������������������������������������������101 United Nations Conference on Desertification 1977������������������������������120 United Nations Conference on the Environment and Development UNCED A/​CONF.151/​26/​Rev.1 (1992) ����������������������������������������������������162 United Nations Conference on Human Settlements (Habitat II) A/​CONF.165/​14 para 204(d) ������������������������������������������������145 United Nations Conference on Resources (1951) 5(1) International Organisation 48������������87 United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 20–​22 June 2012 para 163������������������������������������������������������177 United Nations Conference on Trade and Development 1964��������������������������80 United Nations Convention to Combat Desertification in Countries Experiencing Extreme Drought (1994) 33 ILM 1328 ������������������� 168, 228 United Nations Convention against Corruption (2004) ILM 43��������� 204, 209 United Nations Convention on the Law of the Sea (UNCLOS) ��������������������������123 Art 18(1) ����������������������������������������������������133 Art 21(4) ����������������������������������������������������133 Art 34����������������������������������������������������������133 Art 35����������������������������������������������������������133 Art 36����������������������������������������������������������133 Art 38(1) ����������������������������������������������������133 Art 39(1) ����������������������������������������������������133 Art 39(2) ����������������������������������������������������133 Art 39(3) ����������������������������������������������������133 Art 41(1) ����������������������������������������������������133 Art 41(3) ����������������������������������������������������133

Art 41(5) ����������������������������������������������������133 Art 42(1) ����������������������������������������������������133 Art 42(2) ����������������������������������������������������133 Art 42(4) ����������������������������������������������������133 Art 43����������������������������������������������������������133 Art 44����������������������������������������������������������133 Art 194(3) ��������������������������������������������������133 Art 198��������������������������������������������������������133 Art 199��������������������������������������������������������133 Art 211(1) ��������������������������������������������������133 Art 211(3) ��������������������������������������������������133 Art 211(5) ��������������������������������������������������133 Art 211(6) ��������������������������������������������������133 Art 211(6)(a)����������������������������������������������133 United Nations Declaration on the Rights of Indigenous Peoples. UNGA RES/​61/​295 (2 October 2007) Art 18����������������������������������������������������������248 Art 19����������������������������������������������������������248 United Nations Framework Convention on Climate Change (UNFCCC) (1992) 31 ILM 849���������� 130, 173, 193–​4 Art 2������������������������������������������������������������173 Art 3(4) ��������������������������������������������� 148, 162 Art 3(5) ������������������������������������������������������194 Art 4(2) ��������������������������������������������� 148, 173 Arts 4(3)-​4(10) ������������������������������������������148 Art 11(5) ����������������������������������������������������148 Art 12(3) ����������������������������������������������������148 Art 21(2) ����������������������������������������������������131 United Nations Global Compact 2004��������������������������������������������������� 207–​8 Principle 1��������������������������������������������������209 Principle 2��������������������������������������������������209 Principle 3��������������������������������������������������209 Principle 4��������������������������������������������������209 Principle 5��������������������������������������������������209 Principle 6��������������������������������������������������209 Principle 7��������������������������������������������������209 Principle 8��������������������������������������������������209 Principle 9��������������������������������������������������209 Principle 10������������������������������������������������209 United Nations ‘Second Development Decade’ UNGA Res 2626, 39. UN Doc A/​8028, 1970 para 3����������������������������������������������������������108 para 4����������������������������������������������������������108 United Nations Water Conference 1977� 131–​2 Universal Declaration on the Eradication of Hunger and Malnutrition UNGA Res 3348 (XXIX) (17 December 1974)���������������������� 117–​18

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Table of Treaties and International Instruments Universal Declaration of Human Rights (1948) Proclaimed by UNGA Res 217 (III) of 10 December 1948; UN Gen Ass Off Rec 3rd Sess, Resolutions (A/​810) 71������������������������������������������������75 Art 25������������������������������������������������������������75 Valdez/​CERES Principles������������������������������113 Vienna Convention on Civil Liability for Nuclear Damage 1963������������� 91, 135 Vienna Convention for the Protection of the Ozone Layer, TIAS11097. txt 1985��������������������������������������������������128 Annex I��������������������������������������������������������129 preamble, s 6 ����������������������������������������������129 preamble, para 1 ����������������������������������������129 preamble, para 5 ����������������������������������������129 Art 2(1) ������������������������������������������������������129 Art 3������������������������������������������������������������129 Watercourses Convention 1997��������������������241 World Bank Articles of Agreement Art IV(10) ����������������������������������������������������76 World Charter for Nature UNGA Res 37/​7 UN GAOR Supp No 51 UN Doc A/​37/​51 (1982)����������������������� 115–​16 World Conference on Human Rights, Vienna (14–​25 June 1993) UN Doc A/​CONF.157/​24 (Pt I) 20������������163

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World Conference on Women in Beijing Platform for Action 1995������������������������166 World Conservation Strategy 1980��������������115 Art XX ��������������������������������������������������������116 World Economic Conference 1927����������������51 World Food Conference, Rome (5–​16 November 1974) UN. Doc E/​ CONF.65/​20 (1975) ����������������������������117 World Food Summit WSFS 2009/​2 para 22��������������������������������������������������������224 para 23��������������������������������������������������������224 World Forestry Conference 1926��������������������59 World Health Organization Framework Convention on Tobacco Control (2003) UNTS 2302: 166��������������� 210–​11 World Heritage Convention (1972) 1037 UNTS 151 or 1972 ILM 11: 1358����������������������������������������� 119, 226 Art 2������������������������������������������������������������120 Art 4������������������������������������������������������������120 World Soil Charter 1981��������������������������������120 Worlds Soil Policy 1982 ��������������������������������120 WTO Ministerial Conference 1996��������������197 WTO Ministerial Conference 2005��������������195

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1

1 Introduction This book is about the human quest for sustainable development. Sustainable development is, as I understand it, a three-​legged stool made up of economic, social, and environmental parts. The challenge, to which humanity has been struggling for the last few thousand years, is trying to achieve a balance with all three parts. Only with this balance is the long-​term viability of our species and the ecosystem it exists within possible. For the purposes of this book, the economic part of sustainable development is made up of the growth of economies, tools (such as aid and trade), problems (such as debt and corruption), and actors (such as corporations). The social part is made up of humanity and its physical existence, which I try to measure by focusing on longevity, poverty, and, to a degree, inequality. The environmental part consists of population growth and famine, in addition to considerations of conservation (of habitat and species) and pollution (air, water, and chemical). The underlying tie connected to both conservation and pollution in this context is about the long-​term regenerative capacity of ecosystems and the species within them. The environmental part also has significant themes and actors at play, namely public participation and non-​governmental organizations. I do not believe that the very large challenges that currently face humanity to find sustainable development are new. As I see history, humanity has always been unsustainable, more or less. The difference is now that things are beginning to change. Our record now gives cause for optimism, as much as pessimism. It is possible to achieve social, economic, and environmental sustainability. This story starts between the beginning of recorded time until the year 1800, when the quest for sustainable development was a struggle between unsustainable environmental practices; unsustainable economic contexts and heavy prices to be paid for most of the world’s people in terms of longevity, poverty, and famine. The first stages of progress made by the great civilizations of antiquity in Greece, Italy, and China were washed away in the Middle Ages for the West and, a few centuries later, for China. This pattern of unsustainable development in all three areas only started to change from the Renaissance forwards, when only one part of the equation, economic growth, started to evolve. The evolution of economic growth accelerated rapidly in the nineteenth century and the accompanying Industrial Revolution. This growth allowed positive real and measurable difference in the lives of many people, albeit at huge social cost in the first half of the nineteenth century. In the second half of the nineteenth century,

2

2

Introduction

that social cost transformed itself into the voices of labour being heard and the welfare state, not the communist utopia, being born. The problem was that, while the economic growth was proceeding and the social side was beginning to be reconciled, the environmental side of the equation deteriorated. Air and water pollution reached unprecedented levels, and the destruction of habitat and species became problems that moved from Europe to the temperate world and their associated colonies. The difference to earlier epochs was that the modern beginnings of laws and policies designed to achieve conservation and prevent pollution appeared. The progress for humanity that many hoped would continue into the twentieth century was radically dented by two world wars and some unprecedented challenges in terms of social, economic, and environmental sustainability. The only area in which there was real progress was in the social context, in which the rights of workers and the welfare state expanded. This expansion only occurred after the world crashed in the Great Depression, producing negative economic results and unprecedented social problems, as both domestic and international economies almost died in terms of trade and finance. In environmental terms, building on some of the national developments of the nineteenth century, cooperation began to become international, for some types of habitat management, some wildlife law, and parts of fresh water conservation. Where there was not so much success was with regard to air and chemical pollution, as conventional air pollution expanded and a new suite of chemical pollutants entered into commercial production. The twenty-​five years after the Second World War until 1970 saw two of the three parts of sustainable development improve, owing to unprecedented economic and social prosperity across the world. Although there were still large gaps, progress in the Western, communist, and developing world was the rule, not the exception. Although all three parts of the globe wanted to industrialize and develop as quickly as possible, the difference between them was in how the Western world was much more focused on international trade and exchange, while the communist and developing world was more inward-​looking. The other noticeable difference was the rise of environmentalism in the Western part of the world from the 1960s onwards. Although habitat and species loss continued to expand in this epoch, the real change that helped lead to the formation of modern environmentalism was now highly visible problems of air pollution, chemical pollution, ocean pollution, and waste disposal. All of these problems were showing trajectories which were clearly unsustainable, while a series of new problems, such as climate change, were just starting to come into view. As these matters began to come into view, the idea of sustainable development, as made up of social, economic, and environmental components, also entered into the international mainstream between 1970 and 1990. This theoretical synthesis occurred as the economic situation of the developed world slowed and, in the developing world, collapsed. This collapse gave the push for a fundamental rethink on the patterns of international interaction that had emerged after the Second World War. Soon afterwards, everything around the topics of free trade, debt, aid, and transnational corporations began to change.

3

Introduction

3

At the same time as the international community was dealing with radical social and economic impacts, a host of new environmental problems (from the nuclear accident at Chernobyl through to the ozone hole over the Antarctic) emerged, to be layered on top of the other environmental issues that had been solidly advancing over the course of the twentieth century. Despite these very bleak events, the international community began to rally and started to create a new sequence of global cooperation, coupled with a new generation of international laws and policies, which for the first time in decades started to make progress in confronting the difficulties at hand. Parts of this progress on the environmental side of sustainability, in terms of new laws and rules, continued into the 1990s, with the formation of many new agreements and understandings, covering everything from population growth to climate change, and to ocean and air pollution. The difficulty that stretched across all areas, apart from the continual failure to control habitat loss, was in implementing the new promises. This failure in implementation was, in large part, attributable to the rapidly changing natures of the problems at hand, in terms of scale, sources, constituents, and questions of which country was responsible. Where the 1990s were different from earlier decades on the economic side of sustainable development was that now a free-​market ethos easily dominated the international discourse. Apart from the emerging problem of corruption and a rethinking of overseas assistance beginning, the big push was towards free markets, minimal international restraints on transnational corporations, and free trade. Although optimism was high in the initial years of the decade that the correct path had finally been achieved, by the end of the decade the list of questions over whether this model was suitable for achieving the economic and social sides of sustainable development were growing. These questions, of whether free trade is a source for good or bad in the quest for sustainable development remained in the twenty-​first century. Despite it helping humanity reach never before seen heights of economic growth, fundamental questions about it remain. Specifically, if it cannot reconcile the problems of damaging subsidies, a lack of universal labour standards, or a more equitable distribution of benefits, it is unlikely that this part of sustainable development will succeed. Although considerable questions remain about the role of free trade, where the twenty-​first century improved upon the last decade of the 1990s was with improvements in human longevity, poverty reduction, overseas development assistance, and the fight against corruption. The other area where good progress was achieved was that the pendulum began to swing back, with more reasonable restrictions appearing on transnational corporations in terms of a new generation of bilateral investment treaties, much better control over the worst transnational industries (tobacco) and international tax evasion. Accordingly, although there is a long road ahead, it appears that some universal bottom lines desired for transnational corporations in the last decades of the twentieth century started to appear in the twenty-​first. In addition to the progress that can be seen in some of the areas pertaining to the economic and social parts of sustainable development, mild optimism is also

4

4

Introduction

possible in some areas with regard to the environmental component of the equation. The good news is that solid progress is being reached in the understanding of issues in scientific terms and understanding what needs to be done. The bad news is twofold. First, although many of the environmental problems of earlier centuries are now being confronted, a new generation of difficulties are eclipsing what were the problems that emerged from decades, if not centuries, earlier. Secondly, much of the progress is being achieved by the wealthier parts of the planet, rather than the developing world. From population growth to climate change to unprecedented habitat and species loss, whether environmental sustainability can be achieved in the twenty-​first century is an open question.

5

2 Prior to the Industrial Revolution 1. Introduction This chapter is about the sustainable development of humanity from the beginnings of recorded history until the year 1800. The quest for sustainable development during all of these centuries was always a struggle between unsustainable environmental practices, unsustainable economic contexts, and heavy prices to be paid for most of the world’s people in terms of longevity, poverty, and famine. Despite some improvements (compared to what went before them) in the economic and social contexts in the cases of ancient Greece, Italy, and China, their advances were lost by the Middle Ages for the West and, a few centuries later, for China. Economic growth (but not social or environmental improvements) began to change in the West, but only very slowly, from the Renaissance forwards. Although environmental and social sustainability were not being solved at this point, one part of the equation showed glimmerings of progress.

2.  Before Humanity This Earth is very old. Over the millennia, the ecosystems and the species that have inhabited it have evolved, changed, crashed, and then repeated the process. Perhaps 99.9 per cent of all species that have ever existed on Earth are now extinct, slipping out of existence in processes that date back at least 650 million years. Since the first recognized extinction spasm, there have been at least a further 14 major extinction events. The last of these occurred about 65 million years ago, terminating 50 per cent of all species upon the planet, including 15 per cent of all marine families and the dinosaurs, the last of which were undisputed rulers of the planet for 120 million years.1 Within 10 to 15  million years, several genres of animals, including the primate ancestors of humanity, assumed the roles vacated by dinosaurs. Ten million years later, monkeys were distinct and from them developed Hominoids (apes and 1 M Le Page, ‘After the Fall’ (April 24 2010) New Scientist 38; D Jablonski, ‘Extinctions: A Paleontological Perspective’ (1991) 253 Science 754; O Frankel, Conservation and Evolution (Cambridge University Press 1981) 11–​14; S J Gould, The Flamingo’s Smile: Reflections in Natural History (Norton 1985) 231.

6

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Before Antiquity

humans). Humans started to evolve as a separate species around four million years ago. Our ancestors formed a separate genus about 2.5 million years ago. Although further events, such as a meteor which hit the Earth about 13,000 years ago may have caused a smaller extinction spasm, our ancestors survived and went on to begin their climb as masters of the planet.2

3.  Before Antiquity Best estimates suggest that, at about 130,000 years ago, there was probably a population of between 100,000 to 300,000 of our ancestors on Earth. For 99 per cent of human history, our forebears obtained their sustenance by hunting and gathering. Assuming these peoples could survive the first dozen years of their lives, an average life expectancy of about thirty years, sometimes higher, could be achieved. As food was hard to store, capture, or gather, there was little surplus. Without surplus, the populations tended to be relatively static, with their very slow growth associated with the expansion into new territories, rather than improved ways of doing things. Although these were societies in which there was a relative equality, the evidence suggests that they were neither peaceful nor environmentally benign. In environmental terms, the evidence suggests that these communities, often in conjunction with other non-​human factors such as climatic change, were extinguishing species since the latter half of the Cenozoic era. Large-​scale extinction of genera of large mammals, following the arrival of humans was the pattern in North America, South America, and Australia. Extinction waves also followed the arrival of humans in otherwise unpopulated areas in relatively recent history, such as New Zealand, within the last thousand years.3 Another branch of our ancestors decided to try settled farming as their primary source of sustenance, from about 10,000 years ago. Tools and technologies followed quickly, such as the chisel (c. 7000 BCE) and irrigation (around 6000 BCE), when farmers began to capture and regulate the flow of fresh water, thus breaking their absolute reliance on rainfall, rivers, or streams. The scratch plough (from 5500 BCE), literally, was ground-​breaking, allowing the efficient planting of seed. Smelting and the development of metallurgy and the ability to control very high temperatures in concentrated spaces began about 5000 BCE with the extraction of metal from metal-​containing rock with fire. Bronze was mastered around 3500 BCE and iron about 2500 BCE, before steel was understood and created sometime 2  H Pringle, ‘Firestorm from Space Wiped out Prehistoric Americans’ (26 May 2007) New Scientist () 8–​9; Anon, ‘Debris Points to Massive Impact’ (17 April 2004) New Scientist 17; Anon, ‘Mountain Clue to Earth’s Biggest Extinction’ (10 December 2005) New Scientist 23; Anon, ‘Impact Caused Mass Wipeout’ (29 November 2003) New Scientist 15. 3  L Keeley, War Before Civilisation (Oxford University Press 1996) 16–​17, 28, 33, 108–​12. D Dawson, The Origins of Western Warfare (Westview 1996) 16–​17, 20–​21; Anon, ‘People Killed off Mammoths’ (16 April 2005) New Scientist 18; Anon, ‘Why Big Beasts Vanished’ (16 July 16 2005) New Scientist 18; K Wong, ‘Mammoth Kill’ (15 February 2001) Scientific American; P Martin, Pleistocene Extinctions: The Search for a Cause (Yale University Press 1967) 77–​120; J Diamond, The Rise and Fall of the Third Chimpanzee (Radius 1991) 285–​303.

7

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7

close to 1500 BCE. Within these emerging societies, new social contexts (religious, political, and social) developed, and with them, specialists (such as priests, soldiers, and farmers) evolved. With the specialization came economic division, from which the vast majority of people existed just above subsistence, beneath a small percentage of rulers who came to entrench inequality and control the wealth and privileges that their societies created. Although nascent, many of these early civilizations, such as the Egyptians, Assyrians, and Phoenicians all reached out for trade exchanges with those around them.4 The domestication of plants and the herding of animals improved the dependability of the food supply. This made possible a small increase in life expectancy at the individual level and small jumps in population size at the community level. Some of these communities, in time, developed rudimentary systems that started to manage some of the obvious problems of urban gatherings, namely the management of wastes. The first evidence of collecting and burning waste in the open comes from Crete around 2000 BCE and by the year 1200 BCE the Old Testament recorded the people of Jerusalem burning some of their waste in fires emanating from natural gas vents in the nearby Valley of Gehenna (which through a process of association, became a synonym for ‘hell’). The Book of Moses added rules for the disposal of sewage, in terms of removing it from the areas where people lived and the burying of it. A little later, around 1000 BCE, two independent systems of street drainage were operating in Jerusalem: one for sewage and one for waste water.5 In terms of the environmental sustainability of these first agricultural societies, the evidence suggests that deforestation and the hunting to extinction of local megafauna, such as elephant, rhinoceros, wild camel, and giraffe was common. Also, their long-​term use of irrigated water that was allowed to evaporate and cause salt accumulation ultimately doomed the fertility of their soils, in the lands that were not flushed by floods. Declining productivity appears to have been the pattern in southern Mesopotamia between 2400 BCE and 1700 BCE, contributing, in part, to the break-​up of Sumerian civilization, which was ultimately ended with weapons. Even with the lands that were flushed, such as with the Nile in Egypt, which became the world’s first dependable food provider, overpopulation and starvation in bad years was always possible. In all instances of these agricultural-​based communities, the line between population growth and famine was a fine one. The first recorded famines (owing to the Nile failing to break its banks for seven consecutive years) come from 2770 BCE, and the first recorded famine relief, with the public distribution of food, 1700 BCE, being noted in the Bible.6 4  W Scheidel, The Great Leveler: Violence and the History of Inequality (Princeton University Press 2017) 44–​59; M Mazoyer, A History of World Agriculture (Monthly Review Press 2006) 95–​99; M Williams, Deforesting the Earth (Earthscan 2006) 35–​36; C Ponting, A Green History of the World (Sinclair 1991) 50–​75. 5  T Hodge, Roman Aqueducts and Water Supply (Bristol Classics 2012) 334–​35. 6 Mazoyer, A History of World Agriculture (n 4) 180–​87; D Hughes, The Ecology of Ancient Civilisations (New Mexico University Press 1975) 30–​35; Williams, Deforesting the Earth (n 4) 52. The reference to famine in the Bible is Genesis, 41:54–​57.

8

Antiquity

8

4. Antiquity (a). Socially and economically Ancient Greece, between 800 and 300 BCE, saw living standards and per-​capita consumption double as their society and economy expanded. They had an average life-​span for a male being thirty-​five years, although the wealthy could almost double this. This was a little better than China in the same period of which, around 400 BCE, their life expectancy at birth was about thirty years, although here too, may have been higher, if the individual came from a wealthy background. Population density in western Europe was much smaller than Asia (China had about 60 million people in in this epoch). In Europe, the most important (pre-​Roman) city, Athens, held about 200,000 people. Although its most famous philosophers such as Plato and Aristotle would argue for ideal communities of limited size (about 6,500 people), economic self​sufficiency, common property (or strong limits on private property) the reality was somewhat different. The highest benefits of freedom, private property, and nascent consumerism belonged to a small cohort of wealthy male citizens, with 1 per cent of the population owning 30 per cent of its wealth, and with the top 10 per cent owning 60 per cent. Nonetheless, even the lower-​class workers managed to earn wages which elevated them well above subsistence level. Widows and children of soldiers who died in war received public benefits; and laws were created to prevent slavery as the cost of personal debt. Trade was the rule not the exception, with most products from consumer goods to timber supplies sufficient to maintain a navy, traversing the Mediterranean at commercial levels. The exception in trade was with food. As the Greek farmers did not make any great breakthroughs in farming technology and existed in relatively inhospitable arid climates, they generally produced little more than subsistence, and Athens, especially, was frequently short of food. Accordingly, as there was a continual fear of starvation (either as a result of war or bad harvests), food was imported into the region. It was not exported out.7 The Roman period for the purposes of this chapter covers between 200 BCE and 450 CE. During this time, while Rome grew to perhaps 1 million citizens at the time of Christ, this density was a small subset of the total global population of humans of about 250 million. For those lucky enough to be in the Roman part of the equation, average life expectancy was, as a best guess, perhaps thirty-​five years, 7  F Trentmann, The History of Consumption (Oxford University Press 2012) 7, 42–​44, 47–​63; M Tauger, Agriculture in World History (Routledge 2011) 15–​21; C Lyttken, ‘Institutions, Taxation and Market Relationships in Ancient Athens’ (2010) 6(4) Journal of Institutional Economics 505; G Bitros, ‘Morality, Institutions and the Wealth of Nations: Some Lessons from Ancient Greece’ (2010) 26(1) European Journal of Political Economy 68; C O’Grada, Famine: A Short History (Princeton University Press 2009) 7–​10; M Batrinos, ‘The Length of Life and Eugeria in Classical Greece’ (2008) 7(1) Hormones 82; I Morris, ‘Economic Growth in Ancient Greece’ (2004) 160(4) Journal of Institutional and Theoretical Economics 709; G Medema, A History of Economic Thought: The LSE Lectures of Lionel Robbins (Princeton University Press 1998) 12–​25; E Roll, A History of Economic Thought (Prentice Hall 1968) 20–​34.

9

Prior to the Industrial Revolution

9

although the wealthy could live much longer. The wealthiest class in Rome was only 3 per cent of the population, with subsistence poor at 30 per cent and the desperately poor at 25 per cent of the population. For those at the bottom, the gap between them and the wealthy, was probably the greatest distance ever for humanity. The growth of income for common citizens remained static (unless there was a plague and resultant shortage of workers raised wages) while the wealth of the top 1 per cent rose by a factor of 40 over the period of five generations. Despite this gap, Rome was important for developing the first systematic social welfare system, in which free, or heavily subsidized, food was brought in from elsewhere and distributed to the deserving (not able-​bodied) poor by the emperors as a way to keep the peace.8 Christianity (like many other religions) inherited this system (albeit with greater divisions between the deserving and undeserving poor) and, while casting a jaundiced eye at private wealth (or at least its unprincipled pursuit) made the giving of assistance, help, and respect for the poor, an ethical, and not just a political, necessity.9 Despite the romantic vision the Romans held of small-​scale citizen farmers, their world became one of large landowners, money-​lenders, and merchants. They existed within a very big, tightly integrated, and economically coherent economy, with strong international trade links, with supply lines of everything from food, to spices, to consumer goods, to timber, stretching from Britain to North Africa, and then, as far as China. A good example of the extent of these trade routes was with the birth of Christ, when his arrival was greeted with gifts of gold, myrrh, and incense—​all products which had to travel hundreds, if not thousands, of miles to arrive at their destination. When the Christians took over this system, most existing economic and political systems (even if objectionable such as slavery) were continued, although some others, (such as commercial systems charging interest) were prohibited, and 8 Scheidel, The Great Leveler (n 4) 70–​79; M Hubbard, ‘Urban Uprisings in the Roman World’ (2005) 51(3) New Testament Studies 416; M Atkins, Poverty in the Roman World (Cambridge University Press 2009) 5–​9, 16–​17, 65–​68; B Geremek, Poverty: A History (Blackwell 1997) 16–​17; P Garnsey, ‘The Grain Supply of Rome during the Second Century BC’ (1984) 74 The Journal of Roman Studies 30. 9  For the foundation verses on helping the poor in the Hebrew Bible see Deuteronomy 15:4, 15.7, 15.10; Leviticus 19:9; Isiah 1;17, 10:1, 15:4, 58: 6; Proverbs 9:9, 9:17, 12:5, 14:21, 14:31, 19:17, 22:22, 22:9, 28:27, 31:8, 109:30, 113:5, 140:12, 146:5. For those in the New Testament see Luke 3:10, 6:20, 14:14, 16:19, 21:1; Matthew 6:1 and 25: 31, 26:6–​13; 1 John 3:17 and 12:1; 2 Thessalonians 3:10. For the points on wealth see Luke 12:13, 16:13; 1 Timothy 6:9 and 6:17, also, Matthew 6:19, 16:26 19:24; 1 Timothy 6:17; Mark 10:19, 10:23. See generally E Richards, ‘Paul, Poverty and the Greco-​ Roman World’ (2012) 55(2) Journal of Evangelical Theological Society 430; R Pregeant, ‘The Bible on Community, Poverty and Riches’ (2012) 13(4) New Politics 74; E Smither, ‘Wealth and Poverty in Early Church and Society’ (2009) 17(4) Journal of Early Christian Societies 680; P Temin, P ‘The Economy of the Early Roman Empire’ (2006) 20 (1) Journal of Economic Perspectives 133; M Cohen, ‘Feeding the Poor and Clothing the Naked’ (2005) 35(3) Journal of Interdisciplinary History 407; M Cohen, ‘Poverty and Charity in Past Times’ (2005) 35(3) Journal of Interdisciplinary History 347; J Herdt, ‘The Endless Construction of Charity’ (2004) 32(9) Journal of Religious Ethics 301; W Gerig, ‘Wealth as Peril and Obligation’ (1998) 41(1) Journal of the Evangelical Theological Society 130; J Montagu, ‘Length of Life in the Ancient World’ (1994) 87 Journal of the Royal Society of Medicine 25; S Bastomsky, ‘Rich and Poor: The Great Divide in Ancient Rome’ (1990) 37(1) Greece and Rome 37.

10

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Antiquity

discussions evolved over what was a just, as opposed to a market, price for goods and services.10

(b). Environmentally In environmental terms, on the positive side, the ancient Greeks were notable as they developed a healthy attitude to recycling with products which were economically cheaper to remake with used materials, as opposed to new virgin materials. All metals and glass fitted into this category. In addition, with waste that could not be recycled and was liable to cause offence, the Greeks were the first, from 500 BCE onwards, to detail how citizens were required to dispose of their rubbish at least one mile from the city walls at specific locations.11 On the negative side, waste management did not cover human waste, and sanitation was a problem. Some rivers appear to have been polluted by dumped material. Air pollution also appears to have been common, with Homer, around the seventh century BCE, being the first to record smoke as the first sign of human habitation, as emissions from private residences (for cooking, lighting, and heat) mixed with those for early industrial purposes (for metal and pottery work), as well necessary public functions (such as cremations). In terms of habitat, despite some individuals protecting small stands of forest, overall, forest loss accelerated owing to driving forces of conversion of land to agriculture, as well as strong demands for wood for shipbuilding, mining, urbanization, building, and heating. By the fifth century BCE, the supply and quality of wood were so insufficient in Athens that it had to be imported from throughout the Mediterranean. As the forest habitats disappeared, so too did species, with lions disappearing by the first century BCE, along with leopards, hyenas, lynx, bears, wolves, and jackals retreating to the mountains. In addition, when these deforested lands were farmed, it was often discovered that the soil and the introduced agrarian species were not compatible. The result, as Plato noted with regard to Attica was that: ‘what now remains compared with that which existed is like the skeleton of a sick man, all the fat and soft soil having wasted away, and only the bare framework of the land being left’.12

10 P Stearns, Consumerism in World History (Routledge 2010) 7; R Geraghty, ‘The Impact of Globalisation in the Roman Empire, 200 BCE–​AD 100’ (2007) 67(4) Journal of Economic History 1036; M Sorondo, ‘The Catholic Vision of the Economy’ (2003) 6(1) Journal of Markets and Morality 102. 11  S MacBride, Recycling Reconsidered (MIT Press 2012) 32; W Rathje, Rubbish: The Archaeology of Garbage (HarperCollins 1992) 32–​52. T Cooper, ‘Rags, Bones and Recycling Bins’ (2006) 56(2) History Today 17. 12 Plato, Critias, section 111B–​D in B Jowett (ed), The Dialogues of Plato (Oxford University Press 1892) 531; Williams, Deforesting the Earth (n 4)  70–​80; L Thommen, An Environmental History of Ancient Greece and Rome (Cambridge University Press 2009) 58, 112, 128; C Runnels, ‘Environmental Degradation in Ancient Greece’ (March 1995) Scientific American 96; D Hughes, Pan’s Travail: Environmental Problems of the Ancient Greeks and Romans (Johns Hopkins University Press 1994) 80–​89; D Hughes, ‘Deforestation, Erosion and Forest Management in Ancient Greece and Rome’ (1982) 26(2) Journal of Forest Management 60; R Meiggs, Trees and Timber in the Ancient Mediterranean World (Oxford University Press 1982) 378–​80; Ponting, A Green History of the World (n 4) 76.

1

Prior to the Industrial Revolution

11

In environmental terms, the positive impacts of the Romans were in their approaches to planning, their brilliant engineering, and their laws, which meant in theory that all private property had to be protected from nuisance (such as pollution). In reality, although the pollution of rivers around large urban dwellings was a serious problem, overall, the way the Romans directed the placement of solid wastes outside of cities was good. Their treatment of sewage (compared to any civilization before them) was excellent, with clean water flowing into cities and human waste being isolated and removed through drains and cesspits, which were emptied on a regular basis.13 Negative impacts of Roman civilization were found in their prolonged deforestation to satisfy their needs to obtain timber for building, shipping, and heat. Deforestation was also caused to make land for agriculture, which expanded with the invention of the mouldboard plough, where the earth was actually carved, as opposed to scratched, and thus made more productive. Together, and with the efforts of the generations and societies before them, these civilizations, with their deforestation and agriculture, were making the first documented contributions (through the first clear human-​caused increases of carbon in the atmosphere) to anthropogenic climate change.14 Although the deforestation of this land under Roman control did not lead to the same types of unsustainable agriculture in Greece, scholars such as Tertullian were conscious that the landscape was changing quickly, as ‘woods have yielded to the plough, the cover of wild beasts has become grazing lands, sands are sown, stones are broken up, and marshes are drained’.15 As forests became more scarce, emperors began to order their conservation in both Italy and in their overseas provinces, so that strategic supplies of timber for military purposes could be assured. Similarly, as large species began to disappear from Italy, and as the Roman appetite grew for exotic animals for entertainment, they too, were sourced from abroad. This early trade in wildlife created unsustainable demands for elephant, rhinoceros, zebra, hippopotamus, and tiger, which all became locally extinct in some of the Roman provinces where they were once resident. Even domestically, populations of both birds and fish started to fall. Of the former, Pliny the Elder being amongst the first to record the loss of a bird species (the Tuscan raptor) around seventy years after the birth of Christ. In terms of fisheries, early complaints about overfishing coincided with the advent of the use of nets for dragging along the sea floor (bottom trawling) and dragging between boats (pelagic trawling), so as to capture even more fish for the burgeoning demands of the growing Roman cities.16 13 Hodge, Roman Aqueducts and Water Supply (n 5)  334, 336, 337, 344–​45; R Bergh, ‘Roman Origins of Environmental Law’ (1999) 3 Journal of South African Law 495; A Wacke, ‘Protection of the Environment in Roman Law’ (2002) 1 Roman Legal Tradition 1; J Cosgrove, A History of Sanitation (Standard 1909) 80–​82, 85. 14 W Ruddiman, ‘How Did Humans First Alter Global Climate?’ (March 2005) Scientific American 34. 15 Tertullian, de Anima (trans J Waszink, J, Brill 2009) 30.3. 16  The quote from Pliny is in Natural History (trans L Racklam, Harvard Loeb Classical Library 1935) x: xvii.37–​xx.40. See generally Hughes, Pan’s Travail (n 12) 80–​89; 103–​07; Hughes, ‘Deforestation,

12

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Antiquity

Negative impacts were also recorded for the first time ever in the damage done by some mining industries in their pursuit for gold, silver, copper, tin, iron, zinc, and mercury. Despite being evident in ancient Greece, it was in the epoch of Rome that scholars began to lament the damage done to the landscape by these activities. So too with air pollution, where despite private law protecting individual spaces from such nuisances, by the first century BCE, thick smoke emerged from thousands of different sources in Rome. The concentration of air pollution at this point was probably comparable to the year 1800 in London. New problems, such as lead (as used in water piping, goblets, and lead based smelting) resulted in lead concentrations in the bones of many Roman citizens, that were extreme by modern standards. That is, most adults in the twenty-​first century have about five parts per million of lead in their blood; in Roman antiquity, levels in some places were up to five times the levels today. Emissions of air pollution caused by smelting copper were about a tenth of those of the end of the twentieth century.17 Negative environmental impacts were also recorded in China. These were evident from the year 1000 BCE as the Chinese dramatically reshaped their land by drainage, irrigation, and deforestation, all for increased food provision, and for fuel and building supplies. Perhaps owing to these circumstances, China was amongst the first civilizations to develop clear laws for the conservation of species and forests. However, there is scepticism over how well these restrictions were enforced as China managed to achieve deforestation rates there were faster than those in Europe, owing to their advanced use of iron tools and animal draft force. These caused local exhaustion of forests in some areas as early as 600 BCE. Megafauna, such as tiger, rhino and elephant were pushed away from around the Yellow River and Beijing by 200 BCE and driven out of China into remaining wooded areas in surrounding countries. Although shortages of food were common throughout the period, where the Chinese were unique was in the provision of food relief. At least two dozen times the Han government issued grants of grain to the elderly, widows and widowers, poor people, and the victims of natural disasters.18

Erosion and Forest Management in Ancient Greece and Rome’ (n 12) 60; Meiggs, Trees and Timber in the Ancient Mediterranean World (n 12) 378–​80. 17  Wacke, ‘Protection of the Environment in Roman Law?’ (n 13)  9–​12; Anon, ‘Ye Olde Pollution’ (8 January 2000) New Scientist 12; J Nriagu, Lead and Lead Poisoning in Antiquity (Wiley 1983) vii–​viii, 414–​15.Thommen, An Environmental History of Ancient Greece and Rome (n 12) 112, 128; J Emsley, ‘Ancient World Was Poisoned By Lead’ (1 October 1994) New Scientist 14; J Emsley, ‘When the Empire Struck Lead’ (1 January 1987) New Scientist 64; T Wertimime, ‘The Furnace Versus the Goat: The Pyrotechnologic Industries in Antiquity’ (1983) 10 Journal of Field Archaeology 448. 18  M Elvin, The Retreat of the Elephants: An Environmental History of China (Yale University Press 2004) 10–​11, 20–​21, 31, 45, 85; C Sanft, ‘Environment and Law in Early Imperial China’ (2010) 15 Environmental History 701; M Williams, ‘Dark Ages and Dark Areas: Global Deforestation in the Deep Past’ (2000) 26(1) Journal of Historical Geography 28.

13

Prior to the Industrial Revolution

13

5.  The Middle Ages (a). Socially and economically For the overwhelming majority of people, the period from 500 CE to 1500 CE was a period when living standards and life expectancy (down to an average of about thirty years or lower) went backwards as population levels and inequality both increased. In Europe, famine was always close. There was little knowledge about fertilizers or crop rotations and food output was often only a little above subsistence. Between 500 and 1000, global population was broadly static, at about 300 million, before jumping to 500 million by the year 1500. Most of the growth occurred around 1300, with Europe alone expanding from 36 million to 80 million, before crashing. The spread of the bubonic plague between 1347 and 1353 wiped out tens of million in western Europe, with the population falling from back to 50 million. Had the plague not occurred, what may have been real ecological barriers in the amounts of food available could have presented themselves as had occurred with the starvation that swept throughout much of western Europe just before the plague, with hundreds of local, regional, and in some instances national famines being recorded. This was in line with many of the famines that swept through China, with some being so large, as that of the 750s, that some 30 million people, just under half of the population are recorded to have starved to death. The difference with Europe was that, by the year 1000, the Chinese governments put a great emphasis on policies to encourage agriculture, ranging from stock-​piling food and tax reform, through to the importation of different strains of rice from other parts of Asia so as to allow quicker harvests. Conversely in Europe, helping the ‘deserving poor’ was more a function of the Church than the state.19 At the economic level, Muslim and Mongolian populations actively engaged in commerce and international trade in everything from consumer goods to agricultural produce. Conversely, the Europeans existed in a much more constrained world, in which the Church (and therefore monarchs) cast a very suspicious eye over both trade (especially if it was beyond ‘necessities’) and markets, in which either (excessive) profit could be made, o​ r interest charged on transactions. Consumerism only existed for very wealthy aristocrats. Individual displays of wealth, as opposed to group solidarity in accordance with a rigid social hierarchy, was the dominant social goal.20

19 Tauger, Agriculture in World History (n 7) 36–​40, 44–​50; Mazoyer, A History of World Agriculture (n 4) 303–​312; O’Grada, Famine (n 7) 15–​16, 39; Geremek, Poverty (n 8) 22–​25, 37, 47, 51. 20 W Bernstein, A Splendid Exchange:  How Trade Shaped the World (Atlantic 2008) 84–​88; W Baumgarth (ed), Saint Thomas Aquinas: On Law, Politics and Morality (Hackett 1988) 196–​98; Stearns, Consumerism in World History (n 10) 4–​5, 11; Medema, A History of Economic Thought (n 7) 27; Roll, A History of Economic Thought (n 7) 46–​48.

14

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The Middle Ages

(b). Environmentally The environmental damage of this period was extensive. Whereas about four-​fifths of the land surface of temperate western and central Europe had been covered with forests and swamps in about 500 AD, possibly only half or less of that amount remained 800 years later, in what was one the greatest deforestation and drainage of wetlands episodes of the world. The spread of Christianity and cultivation went hand-​in-​hand as existing areas were intensified, and new areas were broken in to accommodate the rise in population and the need for more agricultural land. Species exhaustion also became apparent in Europe. Although royalty had proclaimed since the thirteenth century by statute or proclamation closed seasons to protect high value species (such as deer, otter, salmon, hawk, and wild fowl), the success of such laws was not great. Other animals were hunted out as ‘pests’ or for the value of their fur, with species such as the Brown bear and the beaver, lost in Europe, sometime around 1500. As such species disappeared nationally, supply of fur became regional, as hunters sought out new areas of abundance to harvest without restraint. Similarly, as local fishing grounds in Europe began to become exhausted (with herring and cod showing declines in the sixteenth century), fishers started to venture further afield in search of new stocks with their new technologies, such as the beam trawl (bottom trawling, where the mouth of the net is held open with a large beam), allowing areas to be harvested more quickly than previously.21 The urban areas of this period were stinking and polluted places. The only upside of their unpleasantness was that the fourteenth century rulers began to take an interest in urban planning again, restricting some industries (such as tanning and butchery) and prohibiting the dumping of certain waste streams (such as meat and manure) away from rivers. In the same period, a number of European cities began to establish sanitary commissions in an attempt to segregate and stream the human waste out of built-​up areas and especially away from the wealthy. Those in power also, had to deal with the new problem of coal-​based smoke pollution. This pollution evolved as wood sources became economically prohibitive (owing to scarcity) and a switch to low cost ‘sea-​coal’—​poor quality (soft/​bituminous) fuel occurred. As this cheaper but dirtier fuel (owing to the slow burn) became popular for both industry and domestic use, the first laws and proclamations were passed in England (in 1273 and 1306), prohibiting its use and pushing consumers back towards the burning of more efficient (less smoke) anthracite coal. However, observance of these laws and/​or the effectiveness in tackling the problem were often minimal.22

21 Williams, Deforesting the Earth (n 4) 87, 92, 106; J Richards, The Unending Frontier: An Environmental History of the Early Modern World (California University Press 2003) 50–​51, 565–​68; J Aberth, An Environmental History of the Middle Ages (Routledge 2013) 87–​95, 201–​02; P Dam, ‘Sinking Peat Bogs, 1350–​1550’ (2001) 6(1) Environmental History 32–​45; K Thomas, Man and the Natural World: Changing Attitudes in England, 1500–​1800 (Oxford University Press 1983) 176. 22 Aberth, An Environmental History of the Middle Ages n 21) 62–​67; B Freese, Coal: A Human History (Arrow 2003) 24–​27, 33; S Strasser, Waste and Want: A Social History of Trash (Holt 1999)

15

Prior to the Industrial Revolution

15

6.  From the Reformation to the Enlightenment (a). Socially and economically Between the years of 1500 and 1800, human population rose from about 500 million to 900  million. With cities reaching the one million inhabitants mark for Beijing in the sixteenth, Istanbul in the seventeenth, and London, at the very end of the eighteenth century. The average life expectancy at birth in the 1700s was about thirty years, although for many, an average life would not have made twenty-​ five. Some countries, such as Britain advanced slowly reaching thirty-​five years, but this was unusually high. In France, between 1740 and 1790 the life expectancy of males fluctuated between twenty-​four and twenty-​eight, and of females, between twenty-​six and thirty. In some regions of the world, life expectancy at birth (largely due to high infant and child mortality) did not pass twenty years. Despite such low life expectancies, this was the period when Europe began to advance. Before 1500, European intellectuals did not outstrip their counterparts in India or the Arab world in terms of knowledge acquisition and its application. Three hundred years later, Europe was far ahead of each of them, making rapid advances in science, technology, and economic growth. China, which had broadly been above western Europe in economic productivity up to the year 1300, found the following five centuries very difficult as conditions deteriorated, with Japan becoming the richest Asian country by 1800, while Chinese gross domestic product (GDP) per person was the same in 1620 as it was in 980, before it fell by almost a third as the nineteenth century approached.23 Although agricultural productivity growth slowed in the Muslim world (owing to problems of salinity, overuse of soils, and lack of further expansion), in China, it expanded, as their governments allowed peasants to specialize and trade to new extents, whilst also creating public stock-​piles of food for times of emergency. Similarly, with the Western world, the first agricultural revolution of modern times occurred. This was due to new farming methods such as better fodder crops, better breeding of animals, and better rotations of crops. These changes allowed land to be used in greater sequence without needing the traditional fallow periods, which had previously meant up to one-​third of the land was being ‘rested’ at any one point. Greater regional trade in food stuffs and new food types and sources coming in from the New World also increased the availability of food.24 Many saw the famines that resulted, as the consequences of the unrelenting tension the two competing trends of increasing food production and increasing 50–​59; L Mumford, The Culture of Cities (Secker 1946) 42–​46; Cosgrove, A History of Sanitation (n 13) 85, 88–​93, 100–​07. 23  Anon, ‘A Not-​So-​Golden Age’ Economist (17 June 2017) 28. Also, C Riley, Rising Life Expectancy (Cambridge University Press 2001) 32–​33. 24  J McNeill, The Great Acceleration:  An Environmental History of the Anthropocene Since 1945 (Harvard University Press 2014) 106; E Hobsbawm, The Age of Revolution, 1789–​1848 (Vintage 1996) 30–​32.

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population growth, or as Richard Cantillon noted in 1750, ‘men multiply like mice in a barn if they have unlimited means of subsistence’.25 Cantillon suggested this after at least six widespread harvest failures, spikes in food prices, and associated (local) famine or malnutrition. These occurred in England and Wales in the sixteenth and seventeenth centuries, with Scotland suffering a catastrophic famine in 1697, as did France in 1694, with a total death rate of up to 7 per cent of the population. In the following century, France endured sixteen famines, with Britain, again, suffering high food stress in the last decades of the eighteenth century. In the same century, famine hit Ireland in 1740 (killing up to 13 per cent of the population), Mexico in 1713, 1749, and 1785, India in 1783 and 1790, and Japan in 1782.26 Another noted consequence of the population growth was a saturation of the labour markets with the result that, in many areas, real wages fell, often by up to 50 per cent, with many workers earning less at the end of the 1700s than their forebears earned a few hundred years earlier. With such declines came a rise in poverty. Many urban centres from 1500 onwards recorded between 15 and 20 per cent of their populations as being made up of beggars and paupers, and a further third just above subsistence levels. In some cities, such as Florence (which was not an unusual in this instance) 10 per cent of the citizens held 68 per cent of its wealth, while 70 per cent of its inhabitants held only 10 per cent. In Naples, the wealth share of the richest 5 per cent rose from 48 per cent in 1600 to 61 per cent in 1750. As the numbers of poor escalated, dealing with poverty in the Western world moved from being a problem for the religious authorities to being an issue for the local powers, with the latter taking the view that poverty was no longer seen as something to be sympathetic about. Beggars were divided between the deserving and non-​deserving poor, and children of beggars were to be apprenticed to those with a trade. The deserving poor had to be local, were recorded and/​or tagged, put into work schemes (if they were physically able), restricted to certain areas, and paid with food. Giving to the non-​legitimate and/​or beggars became a criminal offence.27 Although poverty was growing, so too, for the first clear time in over 1000 years, were economies. From 1500 onwards, low but compounding rates of economic growth began to appear, with average growth rates of between 0.1 and 0.5 per cent, per year. Although these rates were low and ultimately unsustainable, they were present before the Industrial Revolution.28 25  R Cantillon, An Essay on Economic Theory (Ludwig von Mises Institute 2010) 83. 26 Tauger, Agriculture in World History (n 7) 60–​62; O’Grada Famine (n 7) 5, 21, 23, 38–​39, 89–​91, 96, 99, 117, 137; Geremek, Poverty (n 8) 45–​57; T Andersen, ‘The Agricultural Revolution in Medieval Europe’ (2016) 118 Journal of Development Economics 133; Mazoyer, A History of World Agriculture (n 4) 313–​29. 27 Scheidel, The Great Leveler (n 4) 96–​104; Geremek, Poverty (n 8) 45, 100, 113, 130–​35, 144, 147, 203, 212–​13. 28  B Milanović, ‘Income Inequality is Cyclical’ (2016) 537 Nature 479; W Ryckbosch, ‘Economic Inequality and Growth Before the Industrial Revolution’ (2016) 20(1) European Review of Economic History 1; R Fouquet, ‘Seven Centuries of European Economic Growth and Decline’ (GRI Working Paper, No 206 2015); E Jones, Growth Recurring: Economic Change in World History (Michigan University Press 2006) 35–​54, 77–​89; C Jones, ‘Was an Industrial Revolution Inevitable? Economic Growth Over the Very Long Run’ (2001) 1(2) Advances in Macroeconomics 1; W Baumol, ‘Entrepreneurship: Productive,

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17

These increases were attributable to a number of factors. Despite the theological concerns of leaders on both sides of the Reformation, there was a new willingness to engage with commerce and science. New mechanisms, such as Italian banking houses, perhaps the first multinationals which are recognizable by contemporary standards, emerged throughout Europe in the thirteenth and fourteenth centuries. Two centuries later, a number of European countries, fuelled by the nascent stock exchanges, decided to funnel the desire for both adventure and profit in the new lands, by creating companies (such as the Merchant Adventurers, the Eastland Company, the Muscovy Company, and the East India Company) with remarkably large degrees of autonomy which could, as monopolies, engage overseas in both commercial and military terms, on behalf of nation states. The economic results were striking. By one estimate, international trade rose at more than double the rate of world economies between 1500 and 1700.29 Leaders and scholars alike were quick to recognize that such entities, operating internationally, could create large degrees of national wealth under the right circumstances. These circumstances, known as mercantilism, were that national wealth would be increased for a country if it sold more goods overseas than it imported. The trick was to protect domestic markets from foreign competition that would otherwise crush nascent industries. As early as 1791, Alexander Hamilton argued that those who believed that modern industries would develop on their own without support from government were mistaken. There were too many obstacles, not least the competition from more advanced nations, for these industries to arise spontaneously and naturally. Restrictions quickly proliferated in most European countries over which companies could trade, how they could trade (as in, what flagged vessels had to be used), which countries could be traded with, which goods could be exchanged (restricting the flow of some foreign products, while directing what colonies could, or could not, produce and/​or purchase), and protecting either ‘infant’ or industries of national importance. All of these schemes were being worked out as the first mass produced products (sugar, cotton, and tobacco) that were affordable for common people came to market, rapidly accelerating demand and profits in exchange.30 It was this world of mercantilism that Adam Smith argued against with his monumental The Wealth of Nations in 1776. With the ideologies and freedoms of a new world emerging around him (the American Declaration of Independence was

Unproductive and Destructive’ (1990) 98(5) The Journal of Political Economy 893; F Fisher, ‘The Dark Ages in English Economic History’ (1957) 24(3) Economica 2. 29  As noted in D Rodrix, The Globalisation Paradox (Norton 2011) 7. 30 I McCabe, A History of Global Consumption, 1500–​1800 (Routledge 2015) 53–​81, 123–​ 48; Stearns, Consumerism in World History (n 10)  10–​11, 17–​22, 129; Trentmann, The History of Consumption (n 7) 80–​84, 162–​67, 208–​209; O Langholm, ‘Martin Luther’s Doctrine on Trade’ (2009) 41(1) History of Political Economy 89–​113; N Robins, The Corporation that Changes the World: How the East India Company Shaped the Modern Multinational (Pluto 2006); N Robins, ‘Loot: In Search of the East India Company: The World’s First Transnational Corporation’ (2002) 14(1) Environment and Urbanisation 75; M Wilkins, ‘Modern European Economic History and the Multinationals’ (1977) 6 Journal of European Economic History 5.

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in 1775), and the beginning of a flood of new technologies (including the steam engine), Smith foresaw a different future based on an inherent natural order through regulated competition. Smith argued that allowing individuals, within a framework of laws, to pursue their own self-​interest, that specialization and profit would result, promoting economic growth that would be of overall benefit to all in society, including the poor. He believed this argument applied at both the domestic and international levels.31

(b). Environmentally As the economies began to expand, the types of pollution which are familiar to the modern mind began to become noticeable. Air pollution became a pressing concern as the burning of coal accelerated. This was especially the case in England as this source of fuel went from 250,000 tons per annum in 1500 to 2.64 million tons by the year 1700, putting all other forms of energy production, such as turbines connected to flowing water, into the shade. Notable commentators of the age such as John Evelyn would record in 1661 about, ‘this impure vapour, which with its black and tenacious quality, spots and contaminates wherever is exposed to it’.32 Later historians would attribute one-​fifth of all deaths of the period in London, being related to lung diseases. Within Europe, commentators such as the Swedish botanist Carl von Linne would record in 1727 the sulphur given off by the nearby smelter as a ‘poisonous, pungent sulphur smoke, poisoning the air wide around, corroding the earth so no herbs can grow’.33 Water pollution also became much more extensive in this period as new industries began to allow their wastes to flow into fresh water lakes and rivers. This early industrial waste often mingled with human waste. Major cities including London, Paris, and Boston did not even begin the construction of

31  A Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations (Methuen (1776) 1904) I: 16, 265, 423–​24 and II: 185, 233; G Gilbert, ‘Adam Smith on the Nature and Causes of Poverty’ (1997) 55(3) Review of Social Economy 273; M Perelman, ‘Adam Smith: Class, Labor and the Industrial Revolution’ (2010) 76 Journal of Economic Behaviour and Organisation 481; S Muthu, ‘Adam Smith’s Critique of International Trading Companies’ (2008) 36(2) Political Theory 185–​212; T Warlow, ‘The Rise of Adam Smith and the Decline of Mercantilists’ (2007) 8(3) Journal of Economics and Economic Education Research 67; J Crowley, ‘Neo-​Mercantilism and the Wealth of Nations’ (1990) 33(2) The Historical Journal 339; C Fay, ‘Adam Smith, America and the Doctrinal Defeat of the Mercantile System’ (1934) 48(2) Quarterly Journal of Economics 30. For the technologies that changed the world in this period, note the centrifugal pump in 1689, the steam pump in 1698, coke-​based iron smelting in 1709, the atmospheric steam engine in 1712, the flying (weaving) shuttle of 1733, the spinning jenny in 1764, James Watt’s famous steam engine in 1765, Arkwright’s water frame of 1769, the spinning mule of 1779, the compound and steam engine of 1781, Cartwright’s Powered Loom of 1785, the gas turbine in 1791, the internal combustion engine in 1794, and high pressure steam engine in 1799. See J Challoner, 1001 Inventions That Changed the World (Barron’s 2009) 190–​243. 32  J Evelyn, Fumifugium (1661, Ashmolean Reprints 1930) 18–​21, 34, 36. See also M Jenner, ‘The Politics of London Air: John Evelyn’s “Fumifugium” and the Restoration’ (1995) 38(3) The Historical Journal 535. 33  Linne, as noted in J McCormick, Acid Earth (Earthscan 1997) 6; Aberth, An Environmental History of the Middle Ages n 21) 62–​67, 201–​202; Freese, Coal (n 22) 24–​27, 33.

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19

anything resembling a comprehensive sewer network until the end of the seventeenth century. Mexico suffered industrial pollution during the seventeenth and eighteenth centuries, with large-​scale mining, in which the use of over 64,470 metric tons of mercury was used to help extract the valuable metals from 453 mines.34 Deforestation in this period appears as a problem in Japan and China, with both recording local or regional shortages of wood by the seventeenth century, despite both expanding efforts of reforestation. Such problems were shared in Europe, where wood continued to be taken for the purpose of clearing land for agriculture (such land was also expanding rapidly through the draining of bogs/​fenlands/​wetlands), for building (with each large 1,000 ton warship requiring up to 2,000 oak trees to make) and energy (the London breweries alone burned 20,000 wagon loads of wood each year). Deforestation accelerated to the point that, at the end of the seventeenth century in England and Wales, only about 7.7 per cent of their original forests remaining. Scotland had even less, whilst Ireland had less than 12 per cent. In the colonies with temperate forests, deforestation (which between 1700 and 1850 saw cropland increase by 238 million hectares and forest decrease by 180 million hectares, especially in America) was much larger than the deforestation in the tropical world (of 109 million hectares). The forests were cleared for agriculture, timber to trade, and plantations for the growing of new commodities from sugar to tobacco.35 A similar ethos developed with species considerations. That is, as species disappeared from Europe, such as with the bison by 1650 and the wolf in Britain by 1740, the demand for their animal products, such as fur, was solved by drawing increasing amounts of either high value animals (with fur) from other lands.36 Such rapid deforestation in Europe saw an outpouring of national disquiet, of which, again, John Evelyn was at the forefront with his 1664 Sylva: A Discourse on Forest Trees. From such advocacy and growing awareness, many national inventories (in Europe) were undertaken and measures to control rampant deforestation, start afforestation, and moves towards managed cropping occurred. Supplementing the attempt to control deforestation, the first (non-​royal) parks began to appear, as private property inventions of the aristocrats, in which the nobility could muse and hunt. Although some anomalies existed in the tropical countries around conservation, such as the world’s first state owned and created protected area being established in 1791 on the West Indian island of St Vincent,

34  L Tomory, ‘The Question of Water Quality and London’s New River in the Eighteenth Century’ (2014) 27(3) Social History of Medicine 488; R Bindler, ‘Widespread Waterborne Pollution in Swedish Lakes From Pre-​Industiral Mining and Metallurgy’ (2009) 157 Environmental Pollution 2132. 35  K Pluymers, ‘Taming the Wilderness in Sixteen and Seventeenth Century Ireland and Virginia’ (2011) 16(4) Environmental History 610; P Josephson, An Environmental History of Russia (Cambridge University Press 2013) 30–​32. 36 Williams, Deforesting the Earth (n 4) 166, 176, 180–​90, 200, 225, 258–​63, 279–​82; Thomas, Man and the Natural World (n 21) 176, 194–​210; J Richards, The Unending Frontier: An Environmental History of the Early Modern World (California University Press 2003) 53, 191, 214, 223–​27, 331–​32, 368–​71, 455–​60; R H Grove, ‘The Origins of Western Environmentalism’ (July 1992) 22 Scientific American 25.

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conservation concerns with forests were overwhelmingly focused in Europe and not the colonies, which were freely exploited.37

7. Conclusion Between the years 10,000 BCE to 400 BCE, human existence was precarious. Our numbers were small, life expectancy short, and there was rarely surplus to allow our ancestors to escape from the perpetual risk of famine. The destruction of habitat, especially forests, and overexploitation of species was the pattern of pre-​antiquity civilizations. There is no evidence of long-​term environmental sustainability in any of these areas. The division of humanity between hunters and gatherers, and those who pursued agriculture (and with it technology and specialization) only really started to show change from 500 BCE onwards, as Western (Greek, and then Roman civilization in the West, and Chinese civilization in the East) started to emerge and show advances. Conditions, in terms of life expectancy and population growth, improved a little with the main ancient civilizations, as did their nascent economies and international exchange. At the same time, the gaps between the haves and have-​nots became apparent, although each society also introduced practices by which those at the very bottom would have some sustenance in times of need. The advances of each of these civilizations was often at the price of the natural world. Although each of the them produced the first sets of rules over sustainability considerations, and some (such as the Romans) made impressive advances in areas including sanitation, the overall pattern was one of habitat destruction, species exhaustion, and pollution of both the air and fresh water systems. Although none of them was facing absolute limits in environmental terms, there were a few early warning signs that, had they continued on the trajectories they possessed at their peak, limits would have become apparent. Despite their limits, compared with what happened next, the earlier civilizations were exemplars. Life expectancy went backwards in the Middle Ages and economies (especially in the West) struggled to progress. Poverty was extreme and famine was omnipresent. To make matters even worse, environmental destruction in terms of deforestation hit unprecedented rates, while the few urban areas that were starting to emerge were stinking places. Moreover, from the thirteenth century, coal-​based air pollution became known, as the ability to burn wood started to disappear, together with the forests. This period was unsustainable development at high speed. Matters started to change from 1300 to 1800, as science, commerce, and laws began to kick-​start economic growth. International exchange began to expand, commerce was filtered into specific areas, and the beginnings of modern corporations and consumerism arose. Although poverty for the vast majority of people continued to be dire, famine (although always present) was pushed back a little as 37  J Evelyn, Sylva: A Discourse on Forest Trees (1678 Oxford University Press 1990), 2–​5, 255–​60; Elvin, The Retreat of the Elephants (n 18) 85; Williams, ‘Dark Ages and Dark Areas’ (n 18) 28.

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new technologies and practices started to accelerate agricultural and commercial outputs. Despite the fact that some of these advances came at a cost (air pollution began to increase, and species continued to be exploited to the point of exhaustion), progress was noticeable in other places, such as with habitat loss in terms of deforestation beginning to slow in the European core of the Western world. This slow down occurred as these nations began to look at obtaining the resources they required, be they forests or species, from their overseas colonies, rather than continuing to decimate their own stocks. In short, as humanity moved towards one billion people on the planet around the year 1800, environmental problems were becoming much more obvious, but distant inklings of solutions were beginning to appear. The economic context was also, finally, starting to improve. However, poverty, famine, and the social cost to the vast majority of people was terrible.

2

3 The Nineteenth Century 1. Introduction This chapter is about the nineteenth century, the Industrial Revolution, and the swirl of science, technology, and radical change, which broadly fitted within the epoch. Of all the three elements of sustainable development, the one that really changed was economic growth. At this point in history, the growth allowed real and measurable difference in the lives of many people to start to change. However, this growth was buttressed with unprecedented social contexts, which in the second half of the century resulted in the voices of labour being heard and the welfare state being born. These improvements meant that the revolutionary alternatives espoused by Karl Marx, predicated on an argument that things were getting worse, not better—​failed. The exception to the beginnings of economic and social progress were with the environment. Here, air and water pollution reached unprecedented levels, and the destruction of habitat and species, became problems that moved from Europe to the temperate nations and their associated colonies. The difference from earlier periods was not in the scale of the impacts but that, for the first time, the modern beginnings of laws and policies designed to achieve conservation and prevent pollution began to appear.

2.  Economic Growth To many commentators of the age, including William Godwin and the Marquis de Condorcet, the nineteenth century—​and what became a mixture of the Industrial Revolution and the intellectual fruits of the Enlightenment —​was a period of unparalleled optimism, in which humanity was about to prosper, eclipsing any limits imposed upon it. Traditional methods of production were usurped by new machines, chemicals, processes, and, critically, energy. As science, technology, law, and social organization all synchronized, productivity in all areas began to increase. Everything from agriculture to metals expanded, resulting in an excess of both traditional goods and a plethora of new ones, making mass consumerism possible as a wide array of new, novel, and affordable goods spread to all social classes. New technologies radically changed the world. Few could have imagined what a public electricity supply could do when it was unveiled in 1882, or mass (cable) communication which became

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affordable and instant, or the media and education, with British newspapers reaching readerships of one million in the 1890s. Few could have guessed what the motor car would lead to, when Daimler, Maybach, and Benz sold their first vehicles in 1886. Of this last invention, none could foresee its future impacts in terms of air pollution, to say nothing of its endless need for roads and petroleum extraction; nor could anyone guess that the proponents of the new technology that they promised would reduce city traffic (as being faster, smaller, and more reliable than horses and carriages) could be so incredibly wrong.1 Boundless opportunities opened up by the Industrial Revolution created a plethora of new multinational enterprises. Large-​scale projects from railways to telegraphic cables stretched across most of the world, as English, American, Japanese, and European enterprises all began to explore the new opportunities. Companies such as Colt Firearms, having being established in Connecticut in 1848, had created a purpose-​built factory—​with American machinery and processes—​in London by 1852. Similarly, the American based Singer Sewing Machine was manufacturing and operating in France from the mid-​1850s. Some, such as Coca Cola, had relatively slow beginnings from 1866, while others, such as the United States agribusiness United Fruit Company, controlled 90 per cent of all banana imports into America by 1899. In some instances, corporations saturated their economic world, with groups including General Electric and American Tobacco, each dominating 90 per cent of their respective markets. Entrepreneurs such as John David Rockefeller guessed the future, and saw his Standard Oil Company go from 2,000 barrels a year in 1859 to a global production of about 10 million tons of oil a year by 1890.2 A large part of the growth of these transnational corporations was due to having an easier mechanism for exchange, the gold standard. This allowed countries to link their currencies during the last decades of the nineteenth century to the value of 1  For the scholars mentioned see M Condorcet, Sketch for a Historical Picture of the Progress of the Human Mind (1793, Weidenlad 1955); and W Godwin, An Inquiry Concerning Political Justice (1793, Penguin, 1966). For commentary see S Ni, ‘Population, Perfectibility and the Immortality Question in Godwin’s Political Justice’ (2007) 33 History of European Ideas 25. For the other points in this paragraph see C O’Grada, ‘Did Science Cause the Industrial Revolution?’ (2016) 54(1) Journal of Economic Literature 224; A Aykut, ‘Entrepreneurship, Knowledge and the Industrial Revolution’ (2015) 9(3) Economics 1; J Tann, ‘Borrowing Brilliance: Technology Transfer Across Sectors in the Early Industrial Revolution’ (2015) 85(1) International Journal for the History of Engineering and Technology 94; S Barca, ‘Energy, Property and the Industrial Revolution Narrative’ (2011) 70 Ecological Economics 1309; R Allen, ‘Commerce, Induced Invention and the Scientific Revolution’ (2011) 64(2) The Economic History Review 357; P Stearns Consumerism in World History (Routledge 2010) viii, 44–​ 45; C MacLeod, ‘Patents for Invention: Setting the Stage for the British Industrial Revolution’ (2009) 18 Empiria 37; D Winseck, ‘Communication and Empire: Media Markets, Power and Globalisation, 1860–​1910’ (2008) 4(1) Global Media and Communication 7; J Mokyr, ‘Knowledge, Enlightenment and the Industrial Revolution’(2007) 45 History of Science 185; P Stearns, The Industrial Revolution in World History (Westview 2007); D Manning, ‘The Ideology of Technology and the Birth of the Global Economy’ (1996)18(1) Technology in Society 71; T Ashton, The Industrial Revolution, 1760–​1830 (OUP 1964) 39–​56. 2 Anon, ‘What Goes Around’ Economist (17 September 2016) 4; M Wilkins, ‘Multinational Enterprise to 1930’ in A Chandler (ed), Leviathans: Multinational Corporations and the New Global History (CUP 2005) 71.

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gold, thus enabling capital to move internationally without fear of arbitrary changes in currency values or other financial hiccups. The rise of trade in this period even though in the 1870s it only constituted 2.5 per cent of gross domestic product (GDP) in the United States and only 12.2 per cent for the United Kingdom (UK), accounted for 4.6 per cent of world GDP by the end of the nineteenth century. Although international trade was only a small part of the economic growth of the period, it was in the decades following the middle of the nineteenth century that the international community experienced free trade for the first time. This occurred after the fall of the English Corn Laws, which were the bulkhead of trade restrictions in England, stretching from 1660 to 1846 and covering at least 127 different laws covering every aspect of foodstuffs. Their fundamental goal had been to achieve as much self-​sufficiency in food in Britain as possible, through both supply and stockpiles, as possible. The result was that domestic producers were sheltered and profited handsomely, at the expense of consumers (typically the urban populations and those with restricted incomes), through restrictions and tariffs on imported grain, which kept the prices artificially high during times of both scarcity and abundance. Although David Ricardo had argued forcefully against the Corn Laws in the 1820s, it was only after the Irish potato famine that the Corn Laws were repealed, as one of the problems had been that the prevention of free trade in food had kept prices artificially high, meaning that the poor could not afford what little food was available.3 As soon as people began to see the advantages that a free trade in food had brought, they began to argue that the same logic should be applied to other items. The result, fourteen years after the Corn Laws were repealed, in 1860, was the Cobden-​ Chevalier Treaty, as signed between Britain and France. This treaty, negotiated by Richard Cobden, had both sides agree to reduce tariffs and not discriminate against the imported goods of the other. Within a decade, trade between the two countries doubled, for which other countries including Italy, Switzerland, Norway, Spain, Austria, the Hanseatic cities, and many associated colonies, signed up, to what was known as the ‘Most Favoured Nation’ clause. This meant that any nation in the group that lowered tariffs for one of the others was obliged to offer it to all. Duties that had been as high as 50 per cent disappeared entirely on some manufactured goods and exchange reached unprecedented levels as the world’s trade—​which had doubled between 1800 and 1840—​increased by 260 per cent between 1850 and 1870. Conversely, the price of food fell, as did prices on raw materials such as wheat, cotton, and coal, all falling by over 50 per cent between 1873 and 1896.4 3  V Taylor, ‘Empire, Industry and Globalisation: Rethinking the Emergence of the Gold Standard in the 19th Century World’ (2014) 12(6) History Compass 531; T Ward, ‘The Corn Laws and English Wheat Prices’ (2004) 32(3) Atlantic Economic Journal 245; E Jones, ‘The People’s Bread: A History of the Anti-​Corn Law League’ (2001) 106(5) The American Historical Review 1875; J Gale, ‘Population, Food and Knowledge’ (2000) 91(1) American Economic Review 1; S Hollander, ‘Ricardo and the Corn Laws’ (1977) 9(1) History of Political Economy 100. 4 B Coutain, ‘The Unconditional Most Favoured Nation Clause and the Maintenance of the Liberal Trade Regime in the Postwar 1870s’ (2009) 63(1) International Organisation 139; D Lazer, ‘The Free Trade Epidemic of the 1860s’ (1999) 51(4) World Politics 447; E Hobsbawm, The Age of

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The global economic expansion involved many non-​European countries, such as Japan and European colonies, especially those with large and governing European ex-​ patriot populations. In many instances, trade, investment (for railways, ports, power plants, and other projects central for development), transport, and communication all interlocked. Argentina and Uruguay were developing quickly. Mexico’s per capita output was comparable to that of Russia or Japan, as Mexican silver, copper, and agricultural products poured onto the world market. Brazil produced four-​fifths of the world’s coffee by 1900. Malaysia produced more than half of the world’s tin, and quickly expanded into rubber production. Exports of cash crops grew from western and southern Africa. The exception to the trend, where development did not accelerate, was in countries such as China, India, and the Ottoman Empire, as well as sections of the Middle East, together with large parts of Asia, eastern Europe, and parts of Africa. In all such instances, it was not necessarily colonialism per se which stopped development, but the direction of the rulers in those colonies. Misrule, attributable to either indifference to the benefits of globalization, the protection of vested interests, and/​or an unwillingness to provide the infrastructure necessary (such as education, sanitation, and public health) to advance, either by local or colonial rulers, was the principal reason for non-​development for these countries.5 This blossoming of free trade came to an end after the mid-​1870s. Following debates that some countries’ products were not safe to import (for sanitary reasons, eg that exports were not safe for human consumption or risked animal and/​or plant disease), restrictions on cheaper foreign food began to appear, with Germany, France, and Italy all moving quickly to impose tariffs on most imports. France reversed its position on free trade after her farmers and cotton manufacturers were devastated by cheaper and better imports from abroad, and the benefits created for the French sellers of wine, silk, and fine furniture were seen to be an insufficient benefit in light of the costs involved. In Germany, the famous, ‘marriage of iron and rye’, a coalition between industrialists and agriculturalists was achieved, which produced high tariffs from the ends of the 1870s onwards. The new policy was justified in rhetorical terms because Germany had become a dumping group for the excess production of other countries. The United States also changed its mind on free trade after the civil war and the trade-​orientated southern states were replaced by the protectionist-​orientated northern ones. Abraham Lincoln is supposed to have said, I do not know much about the tariff, but I know this much, when we buy manufactured goods from abroad, we get the goods and the foreigner gets the money. When we buy the manufactured goods at home, we get both the goods and the money.6

Capital: 1848–​1875 (Weidenfeld 1995) 34, 50; A Iliasu, ‘The Cobden-​Chevalier Commercial Treaty of 1860’ (1971) 14(1) The Historical Journal 67. 5  J Frieden, Global Capitalism: Its Rise and Fall in the Twentieth Century. (Norton 2006) 74–​75, 95–​ 99; J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 27. 6  As quoted in F Taussig, ‘Abraham Lincoln on the Tariff: A Myth’ (1914) 28(4) Quarterly Journal of Economics 814. For the trade dispute see E Chalecki, ‘How Science Informs American Diplomacy’ (2008) 19 Diplomacy and Statecraft 1; J Gignilliat, ‘Pigs, Politics and Protection: The European Boycott of American Pork, 1879–​1891’ (1961) 35(1) Agricultural History 3. For the conventions that overlapped

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Import tariffs in the United States on manufactured goods went on to average 45 per cent in the decade after 1866. Their culmination was the McKinley Tariff Act of 1890, which placed a duty of 50 per cent on most imports to protect their own industries as the world slipped into a recession (owing to inflation, rampant speculation, failed property investments, and concern about trade deficits), which began in 1873 and lasted until the early 1890s. Only Britain maintained its adherence to free trade philosophies. Despite the protectionism, most economies continued to expand with real world GDP quadrupling between 1880 and 1914. Trade continued to prosper as, despite the tariffs, efficiencies in transit, and production (railways reduced transport costs by more than four-​fifths on land, and steamships by more than two-​thirds) continued to reduce costs. These efficiently countered the rising protectionism.7 The international depression of the 1870s also helped to create one of the first significant periods of international debt. Despite the strong beliefs of the classical economists from the eighteenth century forward that debt was something that governments should avoid, the problem was clearly visible from the 1820s when the newly independent nations of Latin America borrowed heavily and then defaulted. Further high tides of lending to governments (when the economy was going well) occurred in the 1850s, late 1860s, early 1870s, and late 1880s. Each wave ended with at least some occurrence of repayments breakdown. Such breakdowns often overlapped with international trade depression, government budget crises, and/​or financial abuses. Further significant defaults involved Mexico, Greece, Turkey, and Egypt.8 In most of these instances, although there was no template on what to do next, political pressure from debtors resulted in forms of punishment such as forcing internal political change within a defaulting government. In Turkey, following a default to British and French bondholders in 1875, a weakened sultan allowed the Europeans to set up an extraterritorial agency to collect Ottoman tax revenues, with the primary purpose of paying foreign creditors. In Egypt, sovereignty was lost and, in Mexico, the country was actually invaded before access to international finance restarted. The threat of Argentina defaulting on its debts in 1890 caused the collapse of one of the world’s great investment houses, Baring Brothers of London. A financial panic swept both Europe and the United States, and financial flows to the developing world slowed, although Baring Brothers was saved by the British government and other investment bankers, for fear that otherwise the crisis could spread. Soon afterwards, with the Spanish–​American War of 1898, the Americans (after taking sovereignty) refused to assume certain debt owed by Cuba to Spain on see the 1881 Convention on Phylloxera and the 1887 Convention on Epizootic Diseases in B Ruster (ed), International Protection of the Environment (Oceana 1977) III: 1565, 1571. 7  F Frieden, Global Capitalism:  Its Rise and Fall in the Twentieth Century (Norton 2006) 5; W Bernstein, A Splendid Exchange: How Trade Shaped the World (Atlantic 2008) 349, 375; G Medema, A History of Economic Thought: The LSE Lectures of Lionel Robbins (Princeton University Press 1998) 241; R Fels, ‘The Long Wave Depression, 1873–​97’ (1949) 31(1) The Review of Economics and Statistics 69. 8  P Lindert, ‘How Sovereign Debt Has Worked’ in J Sachs (ed), Developing Country Debt and Economic Performance (Chicago University Press 1989) 39–​106.

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27

the grounds that the burden was ‘imposed upon the people of Cuba without their consent and by force of arms’. That is to say, some of the debts had been incurred to crush Cuban rebellion against Spanish rule. Such debts were labelled as ‘odious’, which the United States refused to pay, despite Spain not agreeing to their cancellation.9

3.  Social Concerns The working classes at the turn of the nineteenth century did not possess labour rights to protect their interests. Moreover, the traditional structures in which workers were artisans or craftsmen, often under the shelter of some greater power, ceased to exist. In Britain, protests against the new technologies, such as with the Luddites, were met with brutal physical and legal repression, including the Destruction of Stocking Frames Act of 1812, which made it a capital offence to destroy machinery. The supplementary Combinations of Workmen Act of 1825 prohibited trade unions from attempting to bargain collectively for improved conditions and suppressed the right to strike. Similarly, although there were some social entitlements, these were harsh. Poverty, which was increasing owing to both population growth and new technologies making traditional forms of work redundant, was dealt with through the Poor Laws. These laws strove to create a clear division between those who were legitimately in need and those who should not be helped, such as vagrants and beggars. The shirkers would get nothing, while the legitimate poor would get only enough to survive, with the philosophy being that help given should not be attractive enough for the recipients to want to stay in the shelter provided. Any other form of relief given to the poor was deemed unlawful, as this was believed to act as an enticement to beg.10 It was in this climate in 1844 that Frederick Engels, as part of a sweep of similar publications of the age condemning the then current situation, penned his famous The Condition of the Working Class in England. This argued that the Industrial Revolution had created a new class of industrial workers, the proletariat, who had lower wages than their pre-​industrial peers, lived in more unhealthy and unpleasant environments, did mind-​numbingly dull work, and were fundamentally alienated from each other by the means of production and the products they produced. In large part, Engels was correct in his assessments that life was getting worse, as life

9  J Sole, Lending Resumption After Default:  Lessons from Capital Markets During the 19th Century (IMF Working Paper WP/​06/​176); J Foorman, ‘Effects of State and Government Succession on Commercial Bank Loans to Foreign Sovereign Borrowers’ (1982) 1 University of Illinois Law Review 9–​11, 21–​23; A Nussbaum, A Concise History of the Law of Nations (Macmillan 1947) 210–​13. 10  See the Poor Law Commission, ‘Principles of Legislation, 1834’ as reprinted in A Clayre (ed), Nature and Industrialisation (Open University Press 1977) 147, 151; W Quigley, ‘Poverty and Poor Relief, 1834–​1850’ (1995) 45(10) History Today 49; C Morris, ‘Institutional Influences on Poverty in the Nineteenth Century’ (1983) 43(1) The Journal of Economic History 43.

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Social Concerns

expectancy in Britain fell, from about 40 years in the year 1800 down to 38 years at the end of the 1840s.11 Frederick Engels joined forces with Karl Marx to write the Communist Manifesto in 1848. This was published as all of the revolutions of that year were coming to a failed ending. They failed because they lacked the organization, maturity, leadership, and, perhaps most of all, the historical conjuncture to provide a political alternative. It was Engels and Marx who provided this alternative. The Manifesto argued that history was a constant source of struggle between those who worked and those who owned the means of production, with capitalism making poverty worse, not better. Marx believed the Industrial Revolution has expanded this struggle as the desire for profit was continually making the conditions of the working classes worse (due to making workers compete with each other for declining amounts of resource) not better. As he explained, ‘the accumulation of riches at one pole means an equal accumulation of poverty, suffering, slavery, ignorance, savagery and moral degradation at the opposite pole’.12 In some regards, Marx was correct: the conditions of the working class were not only getting worse in the first decades of the nineteenth century but the conditions of the rich minority at the top of society were getting better. By one measure, between 1774 and 1910, the share of assets held by the richest 1 per cent of United States households almost tripled, from 14 per cent to 46 per cent. This was not unusual, as the top 1 per cent in all of the industrial countries of the period increased the percentage of wealth under their control. At the very top, wealth concentration reached new levels. Whereas in 1790 the largest reported fortune in America was 25,000 times the average working wage, in 1912, John D Rockefeller was worth 2.6 million times the average wage.13 Marx argued that the desire for profit was driving policy direction both nationally and internationally. In the global context, Marx argued that globalization was a consequence of capitalism’s need for constantly expanding markets, from which mechanisms such as free trade, ‘breaks up old nationalities and pushes the antagonism of the proletariat and the bourgeois to the extreme point’.14 Marx added that the perpetual need of capitalism to expand was creating environmental change, as ‘all that is solid melts into the air, all that is holy profaned’,15 and its advance ‘leaves deserts behind it . . .’.16

11  F Engels, The Condition of the Working Class in England (Panther 1969) 78–​79, 82–​84. C Brett, ‘An Introduction to Selections from the Conditions of the Working Class’ (2006) 19(3) Organisation and Environment 375. See also K Grace, ‘Victorian Reform Treatises’ (2008) 50(3) Victorian Studies 437. 12  Marx, as in B Geremek, Poverty: A History (Blackwell 1997) 232. See also R Peet, ‘Inequality and Poverty:  A Marxist–​Geographic Theory’ (1975) 65(4) Annals of the Association of American Geographers 564. 13  W Scheidel, The Great Leveller: Violence and the History of Inequality (Princeton University Press 2017) 108–​09. 14  Marx, as noted in R Ghorashi, ‘Marx on Free Trade’ (1995) 59(1) Science and Society 38. 15  K Marx and F Engels, The Communist Manifesto 1848 (OUP 1972) 3. 16  ‘Letter by Marx to Engels’, Manchester (25 March 1868) in Progress Publishers (ed), Marx and Engels: Selected Correspondence (Progress Publishers 1965) 202.

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Marx’s view of the future was that if ‘Working Men of All Countries . . . unite’,17 organize, and take control of the means of production, thereby turning private property for the good of the few, to common property for the good of the many (as opposed to the creation of frivolous consumer items for the individual), then a much better outlook for humanity could be achieved. For Marx, it was not about going backwards but, rather, about making use of the technologies of the Industrial Revolution so that the benefits produced and material living standards of those who worked could be shared equitably and not kept as the monopoly of the property-​owning classes. Nationalization of industries, national banks, progressive income tax, free public education, and the abolition of private property were all steps identified as the march towards a classless society, which was to be international, not just national, in scope. It was added that if decisions were made collectively for the good of the whole and without the goals of profit and acquisition of private property, ecological boundaries would not be crossed. He added that such limits to growth arguments (including Malthus, see below) were ‘a law of population peculiar to the capitalist mode of production’,18 and such ‘abstract laws of population exists for plants and animals only’.19 In his communist vision, there were no ecological boundaries to economic progress.20 The problem for Marx and Engels was that the Industrial Revolution and capitalism were not making matters worse. Rather, life was actually beginning to improve for the working classes. Although in some areas the situation was dire and life in many factories was undoubtedly very unpleasant and often very dangerous, overall, things were getting better. Countries that pursued the industrial and capitalist path saw incomes beginning to expand annually at a rate of about 2 per cent per year (from about 1820 forwards). Wage levels rose decisively above levels in the 1600/​ 1700s, doubling between 1810 and 1850 for blue collar workers, and then expanding even more after 1870. Unemployment fell (less than 8 per cent of working age males per year post 1850) as the economy grew and food became cheaper (owing to trade and refrigeration), and nutrition also improved. Such improvements saw life expectancy in countries such as Britain rise from 38 years at the end of the 1840s to 47 by 1899. Over the same period extreme poverty fell from more than 40 per cent of its population down to 10 per cent.21

17  N Harding, ‘Marx, Engels and the Manifesto: Working Class, Party and Proletariat’ (1998) 3(1) Journal of Political Ideologies 13. 18  K Marx, Capital (Kerr 1867) 692–​93. Elsewhere, Marx observed, ‘the circulation of capital therefore has no limits’ in D McLean (ed), Karl Marx: Selected Writings (OUP 1978) 449. 19  P Osborne, Socialism and the Limits of Liberalism (Verso 1991) 260–​67. 20  R Wiltgen, ‘Marx and Engel’s Conception of Malthus’ (1998) 11(4) Organisation and Environment 451; V Routley, ‘Karl Marx as Environmental Hero’ (1981) 3 Environmental Ethics 242. 21  Note that the 10% figure is from 1920. See Anon, ‘Fewer, But Still With Us’ Economist (1 April 2017) 48–​49; G Clark, ‘The Condition of the Working Class in England, 1209–​1849’ (2005) 113(6) Journal of Political Economy 1307; T Brown, ‘The Condition of the Working Class in England’ (2003) 93(8) American Journal of Public Health 1246; R Allen, ‘The Great Divergence in European Wages and Prices from the Middle Ages to the First World War’ (2001) 38 Exploration in Economic History 411; C Riley, Rising Life Expectancy (CUP 2001) 1–​6; M Justman, ‘The Industrial Revolution, Political Transition and the Subsequent Decline in Inequality in 19th Century Britain’ (1999) 36 Explorations in Economic History 109; C Feinstein, ‘Pessimism Perpetuated: Real Wages and the Standard of Living

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Social Concerns

The real key to the progress that was unlocked and which thwarted the Marxist vision was not just the benefits of industrialization; it was also the development of the welfare state. Progress accelerated when the ability of capitalists to do what they wanted without restraint in their laissez-​faire paradigms began to disappear as state intervention (as opposed to the earlier hopeful voluntary initiatives of advocates such as Henri de Saint Simon and Robert Owen in Britain) began to mandate direct and binding safety and labour standards in a number of areas. These changes were supplemented by an array of new rules including urban planning, building codes, zoning, fire services, policing, courts, jails, harbours and piers, cemeteries, public hospitals, and public schools (with the state getting involved in Britain in the provision of free primary education from 1833, before making it compulsory in 1880, as did France in 1882, and America, later in the 1920s). This change was matched with the first clear increases of governments in the advanced economies, with their expenditure in their economies accelerating from around 11 per cent in 1870 (to over 40% today).22 In Britain, in 1867 urban men were admitted to the voting franchise (it was 1870 in the United States for all men, irrespective of colour) and in 1871 trade unions became legal. With this political power came change in politics, as both new (Labour) parties and existing status quo parties made promises and commitments to achieve social reform so as to obtain the working-​class vote. Germany went even further, adopting a workers’ compensation programme and health insurance for workers in 1889.23 Accordingly, the worsening of life for the working class that Marx predicted did not eventuate. However, what did occur was not so much the gap within countries, but rather, the gap between countries. Countries that followed the same path of industrialization and planted the seeds of a welfare state produced similar results. This was especially apparent compared to the nations that were not industrializing. Thus, in 1800, the average Mexican had a living standard that was two-​thirds as high as a citizen in the United States. By 1900, this had dropped to a third, and the gap was increasing. This was part of the trend of the wealthy countries accelerating in Britain During and After the Industrial Revolution’ (1998) 58(3) Journal of Economic History 625; J Williamson, Did British Capitalism Breed Inequality? (Allen and Unwin 1985) 18–​27. 22  Labour legislation had begun to appear from the turn of the nineteenth century, seeking to limit children’s working hours and conditions (the 1802 Health and Morals of Apprentices Act), although progress was slow. Subsequent Factory Acts of 1819, 1833, and 1844 setting age and work restrictions for children were supplemented in 1841 (the Mines and Collieries Act) prohibiting women from certain work, and in 1847 (Factories Act), restricting working hours of women to 10 hours per day. Safety inspections for industry began from the 1840s, with rules being promulgated for specific industries from the 1850s. These became much stronger in 1872, with the first comprehensive codes of regulation for multiple industries. For example, in the coal mining industry, safety lamps were made compulsory and shafts had to be secure at all times. For commentary see J Hagan, ‘Employers, Trade Unions and the First Victorian Factory Acts’ (1964) 7 Labour History 3; J Brebner, ‘Laissez Faire and State Intervention in Nineteenth Century Britain’ (1948) 12 The Journal of Economic History 59. 23  D Powell, ‘The New Liberalism and the Rise of Labour, 1886–​1906’ (1986) 29(2) The Historical Journal 369; J Zeitlin, ‘From Labour History to the History of Industrial Relations’ (1987) 40(2) The Economic History Review 159; H McCready, ‘British Labour and the Royal Commission on Trade Unions, 1867’ (1955) 24(4) University of Toronto Quarterly 390.

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away from the poorer ones. Thus, at the onset of the Industrial Revolution the gap between the richest and poorest nations of the world was in the region of 2:1. Two hundred years later the same ratio stands at 20:1.24

4.  Population Growth Human population hit the one billion mark in the early years of the nineteenth century, with China making up about one-​third of the total. Cities such as New York would go from being relatively small in 1800 to the second largest in the world 100 years later, all part of the 600 million extra people on the planet. Of this growth, change would start to occur with 2 per cent of the world’s population living in cities in the year 1800, to 10 per cent by 1900. More people were being born and youngsters were surviving better owing to new medicines, better nutrition, and improved living conditions. These people and their life-​styles impacted on the natural world in such unprecedented ways that famous scholars of the day, such as Charles Fourier and John Stewart Mill, would openly muse whether long-​term sustainability, overall, was possible, with Mill suggesting in 1848 that: ‘I sincerely hope, for the sake of posterity, that they [humanity] will be content to be stationary, long before it compels them to it’.25 Other scholars preferred to look at more specific potential problems, of which population growth was the most obvious. The fundamental concern was that, despite improvements in agriculture (in terms of both new sources and greater trade), human numbers were growing faster than the capacity to feed them. In this competition, famine, to which the scholars could now point with a disturbing regularity (with broad estimates at that time being at least local famines, somewhere on the planet in the eighteenth century, within every ten years) was an increased likelihood unless human numbers were restrained. Thomas Malthus, writing in 1798, postulated that: The power of population is infinitely greater than the power of the earth to produce subsistence for man. Population, when unchecked, increases in a geometric ratio. Subsistence only increases in an arithmetic ratio. A slight acquaintance with numbers will show the immensity of the first power in comparison with the second . . . I see no way in which man can escape the weight of this law which pervades all animated nature. No fancied equality, no agrarian regulation in their utmost extent, could remove the pressure of it even for a single century.26

24  D Rodrix, The Globalisation Paradox (Norton 2011) 135–​37; see also Hobsbawm The Age of Capital (n 4) 20–​23, 30–​32. 25  J S Mill, Principles of Political Economy (vol 2, 1848, Longman 1871) 328–​30. The medical advances were vaccinations against smallpox beginning in 1796, anaesthetic in 1800 and blood transfusion in 1818. For Fourier see ‘The Economics of Harmony’ in Selections From the Works of Fourier (Gordon 1972) 196–​98. 26 T Malthus, On the Principle of Population (1798, Penguin 1970) 70–​72. See also D Winch, ‘Malthus Versus Condorcet’ (1996) 3(1) The European Journal of the History of Economic Thought 44; W Petersen, ‘The Malthus–​Godwin Debate, Then and Now’ (1971) 8(1) Demography 13; C O’Grada, Famine: A Short History (Princeton University Press 2009) 26–​29.

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Where the debate went from theoretical to practical was with the Irish potato famine. The genesis of this problem was the fungus Phytophthora infestans, which appears to have come from Mexico, moved to the United States, and then to Europe in the early 1840s, before arriving in Ireland and decimating the large potato monocultures grown in Ireland, which were nearly 250 years old and had received minimal genetic improvement since the time they had been originally imported from Peru. The resulting blight was the root cause of up to one million Irish people dying because of starvation and a further million emigrating. One-​third of the population was dependent on this cheap source of food, which they had been directed into producing. When combined with the unavailability of relief or alternative sources of affordable food famine struck. This is an important point, as most of those who died did not die simply for lack of food but because of a hopelessly inadequate social safety net. The Poor Laws in England not only gave the English destitute substantially more entitlements than the Irish from the Poor Laws applied in Ireland, but more so, in Ireland the poverty was deeper. This meant that the Irish people lacked the funds to purchase food that was present in abundance in the kingdom as a whole, but which was not sufficiently available to them at an affordable price.27 Further debate about the Malthus theory of overpopulation and starvation followed the 1868 famine in Finland, which killed off 7 per cent of the population; in India in 1876 when 7 million perished, in China in 1877 when perhaps 10 million people starved to death, and Russia and Brazil in 1891–​1892, when a few million more died in each country owing to a lack of food. Although each country was unique in these famines, the overlap with climatic change of the period (and the El Nino induced droughts), followed by the poverty of many populations being unable to purchase what food was available, made these catastrophes in which over thirty million starved to death one of the largest (yet typically invisible) horrors of the nineteenth century.28 The reason that the situation eventually improved was because the climate oscillation passed, and countries began to produce food at greater rates than population growth. For example, France doubled her agricultural output in many areas between 1800 and 1900. Such results were because of further reductions in fallow periods, better and stronger tools (such as the steel plough developed by John Deere), mechanization, greater recycling of organic matter, more efficient use of private (as opposed to common) sites, the creation of chemical fertilizer (by John Lawes in 1842, after he applied sulphuric acid to phosphate rock, producing a concentrated superphosphate which could be spread upon soil), greater amounts of irrigation (from 8 to 48 million hectares over the century), and further expansions into new lands. In some instances, such as the United States, agriculture was encouraged by the development of government departments (the Department of Agriculture 27  A Sen, Development as Freedom (Anchor 1999) 170–​75. 28  The 30 million figure is in M Davis, Late Victorian Holocausts: El Nino Famines and the Making of the Third World (Verso 2009) 7. See also K Edgerton, ‘Tough Choices: Grappling with Famine in Qing China, the British Empire and Beyond’ (2013) 24(1) Journal of World History 135; A Sen, ‘Famines’ (1980) 8(9) World Development 613; T Andersen, ‘The Agricultural Revolution in Medieval Europe’ (2016) 118 Journal of Development Economics 133.

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being formed in 1862), providing education and research, the facilitation of public land to be settled for agriculture, and middlemen (which became very large agribusinesses), who were willing to act as intermediaries between the farmers and their markets, which were over the period nearing the fast and efficient transport systems such as the railways. In all instances, technology, policy (in terms of free trade), and infrastructure were coming together, making food cheaper for people to purchase, thus undercutting one of the primary problems in times of food shortage, namely high costs.29

5.  Habitat Loss One of the other pressing environmental issues of the age was the large-​scale destruction of habitat. This was especially the case in the colonies, or countries with yet unexhausted resources as many European countries now took an interest in the conservation of their own resources and sought to exploit those of others. This meant that the resources that the colonial masters desired from the commodities (such as tea, cocoa, coffee, peanuts, cotton, rice, and corn) through to raw indigenous materials (from rubber to timber) often came from overseas and not from domestic sources. In total, between 1850 and 1920, in the temperate world, agricultural land increased by 243 million hectares and the forest decreased by 135 million hectares, with much of the rest coming from drained wetlands. A matching 70 million hectares of loss of forest occurred in the tropical world. Russia and China practised unrestrained clearing in the nineteenth century, as the demand for agricultural lands and wood for fuel increased, with estimates (in Russia) suggesting a rate of close to 870 million square metres of wood being taken each year by 1890. In the United States, deforestation was about 59 million acres between 1850 and 1870, roughly one-​half of everything that had gone before it since colonialism began, with the very high demand due to projects such as the railways (responsible for about 25% of the demand for timber in America). Even distant colonies such as New Zealand were stripped of their timber for timber exports and agricultural lands. The result was that between 1840 and 1890, their forest cover fell from just under half of land coverage to about 25 per cent.30 29  N Salvadori, ‘An Appraisal of the Malthus–​Ricardo 1815 Controversy on the Corn Laws’ (2015) 47(1) History of Political Economy 151; M Tauger, Agriculture in World History (Routledge 2011) 87–​92, 95–​98; M Mazoyer, A History of World Agriculture (Monthly Review Press 2006) 330–​40, 351–​53, 355–​ 57; O’Grada, Famine: A Short History (n 26) 23, 139, 141, 149; I McLean, ‘Irish Potatoes and British Politics: Interests, Ideology and Repeal of the Corn Laws’ (1999) 47(5) Political Studies 817. 30  J McNeill, The Great Acceleration:  An Environmental History of the Anthropocene Since 1945 (Harvard University Press 2014) 64–​66; M Williams, Deforesting the Earth (Earthscan 2006) 266, 272, 275, 286, 299, 310, 344–​47, 372; J Weaver, ‘Global Integration and New Zealand’s Forests, 1870–​ 2000’ (2016) 16(4) Environmental History 688; T Ross, ‘Mining, Empire and Environment’ (2014) 19(3) Environmental History 454; P Josephson, An Environmental History of Russia (CUP 2013) 37; D Schecter, ‘The Environmental Dynamics of a Colonial Fuel Rush: Silver Mining and Deforestation’ (2010) 15(1) Environmental History 94.

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Species Loss

Despite these clear losses, nationally organized (as opposed to private initiative) habitat protection emerged at the end of the nineteenth century. America created the first nationally protected area (1864, Yosemite). Australia (1866, Blue Mountains) and New Zealand (Tongariro, 1877) followed. Britain’s National Trust obtained their first reserve in 1899, which was one year after South Africa established the Krueger National Park. Rules for the regulated use of forests in some of the colonies and independent parts of the New World, with, most notably, the Americans creating their Forest Reserve Act of 1891, conferring on the president the power to reserve land from the public domain. This was followed by their Forest Management Act of 1897. This allowed the President ‘to regulate their occupancy and use’ and ‘to preserve the forests therein from destruction’.31

6.  Species Loss In the same period, as much as some of the most spectacular wildlife was coming into view (such with the gorilla in 1847 and the panda in 1869), other wildlife species began to disappear with increased regularity, as a consequence of either being deemed as nuisances, their economic value, or as collateral damage. The Great bustard was gone by 1838 and the Great auk by 1844. The North American Passenger pigeon, which was renowned for being the most abundant bird ever to have existed was hunted to extinction during the nineteenth century, with the last of its kind ending in Cincinnati zoo in 1914. The Blueback antelope had disappeared by the year 1800 and, by the end of the century, the Red gazelle encountered the same fate. Species of consumer interest, owing either to their fur or their feathers, faced an ongoing onslaught, now accelerated by international demand. Within the United States, between 1780 and 1850 there was a 70 per cent population decline for beaver, 50 per cent for bear, and 45 per cent for otter. A similar degree of pressure occurred in Russian Siberia, with many of the species here also pushed to local extinction and overall endangerment.32 Seals were pushed to the edge of existence, with perhaps 60 million of these animals taken in the nineteenth century. Four million walruses joined them, along with an unknown number of whales, of which the various species were hunted to near extinction, locally, nationally, and then regionally. This was a particular 31 The quote from the law is in D Coyle, Conservation:  An American Story of Conflict and Accomplishment (Rutgers University Press 1957) 37; M Stoll, ‘The National Parks Idea’ (2008) 13(2) Environmental History 237. 32  R Jones, ‘Animals, Empire and Extinction’ (2011) 16(4) Environmental History 585; T Flannery, A Gap in Nature (Heinemann 2001) xix, 124; T Scott, ‘International Trade and the Virtual Extinction of the North American Bison’ (2011) 101(7) American Economic Review 3162; H Nicholls, The Way of the Panda (Pegasus 2006) 3–​7, 21; P Collins, ‘Gorillas, I Presume’ (1 October 2005) New Scientist 46; E Young, ‘The Beast With No Name’ (9 October 2004) New Scientist 33; J Richards, The Unending Frontier: An Environmental History of the Early Modern World (California University Press 2003) 113–​ 44, 298–​300, 510–​12, 544–​45; T Flannery, A Gap in Nature (Heinemann 2001) 14, 80; L Sittert, ‘The Extermination of Wild Carnivora in the Cape Colony, 1889–​1910’ (1998) 39(3) Environmental History 333.

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problem with whaling, which was increasingly driven by large demands for sperm whale oil (for lubrication and lighting) and baleen (the plastic of the nineteenth century). By 1860, most of the easily hunted whales—​sperm and right whales—​ were gone from traditional grounds. The bowhead whales in the northern climes were hunted to near extinction by the Dutch, English, and American whaling fleets. When such stocks were decimated, whalers moved quickly and efficiently to new grounds. For example, it is estimated that the original population of Southern Right whales in the southern hemisphere was 60,000 at the beginning of the nineteenth century, with an estimated 27,000 off New Zealand alone, but by 1925 the New Zealand population had been reduced to about 25 reproducing females.33 Even much smaller ocean creatures felt the pressures of increased human demands as total marine catch went from 1 million to 2 million tons per year over the course of the nineteenth century as new technologies (such as motorized fishing boats) expanded ranges and capacity. Many salmon species were fished out in the middle of the nineteenth century. Commercially viable plaice was fished out in the North Sea by 1890; haddock, and then cod, followed soon after. Despite this clear trajectory on unsustainable behaviour, it was in the nineteenth century that national laws on wildlife conservation began to appear. The first of these on animal cruelty and controlling poaching emerged from the 1820s. The first wildlife law, restricting hunting and egg collecting during breeding season, the Sea Birds Preservation Act, emerged in 1869. Even more impressive, international wildlife law was born in the same period, as it became apparent that if conservation was to succeed it often had to be regional and not just local. The first international agreement on the Protection of Birds Useful to Agriculture was agreed in 1875 between Hungary and Austria, and then followed ten years later after France and Belgium agreed that illegal hunting of birdlife had to be repressed.34 Regional treaties in central Europe on the control of hunting in shared (fresh​ water) species followed in 1897. So too with fishing, where tensions had risen so much in some shared areas that international rules had to be devised with the 1882 Convention for Regulating the Police of the North Sea Fisheries. This was designed to calm the waters by ensuring that all vessels operating in the agreed fishing zone (outside of three-​mile zones attached to each coast) were identifiable, licensed by national authorities, and had to follow specific fishing practices such as not cutting the nets of the opposition. This is not to suggest that these problems were solved;

33  G Grasso, ‘The Rise and Fall of the Nineteenth Century Atlantic Halibut Fishery’ (2008) 13(1) Environmental History 66; U Bardi, ‘Energy Prices and Resource Depletion: Lessons From the Case of Whaling in the Nineteenth Century’ (2007) 2(3) Planning and Policy 297. 34  Earlier laws in this area related to poaching, such as the Night Poaching Acts of 1828 and 1844, the Game Act of 1831, the Game Licences Act of 1860, the Poaching Prevention Act of 1862, and the Ground Game Act of 1880. See the Cruel Treaty of Cattle Act of 1822 and the Cruelty to Animals Acts of 1835. This was updated in 1876 and 1911. The 1875 Declaration for the Protection of Birds Useful to Agriculture is reprinted in Ruster, International Protection of the Environment (n 6) III: 1561. See generally K Thomas, Man and the Natural World: Changing Attitudes in England, 1500–​1800 (OUP 1983) 143–​50.

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Air Pollution

rather, for the first time, the problems were being acknowledged and serious efforts undertaken to confront them at both national, and sometimes, regional levels.35

7.  Air Pollution Although the nineteenth century was overwhelmingly a time of energy produced by coal, it was also the period in which two of the renewable technologies that will drive the 21st century emerged. The first, windmills, were not new. This energy producing technology began about 1700 BCE, but what was new in the nineteenth century was that the first wind-​turbine generator was linked to a modern power system to produce electricity by James Blyth in 1888. In the same decade, photovoltaic energy was created by Charles Frits in 1884. This energy was produced directly from solar energy when photons (individual particles of light) were absorbed into a semiconductor, creating an energy source with no pollution, noise, or moving parts.36 Aside from these scientific novelties, the reality was that this was an age absolutely dominated by coal, with ten million tons of the substance being used each year in Britain by the year 1800 (quadrupling since 1700). By the end of the nineteenth century, globally, 700 million tons of coal was being burnt each year, with America (doubling in coal consumption every decade from 1850) eclipsing Britain in usage by the turn of the twentieth century. London became known as the ‘Big Smoke’, and Pittsburgh was nicknamed ‘Smoke City’. Elsewhere, coal consumption grew with the same speed. Smokestack industries also emerged in Belgium, Germany, Russia, the Ukraine, and in Japan, primarily around Osaka. In all instances, coal-​fed steam engines (of which there were perhaps 100,000 in Britain by 1870) all produced smoke and sulphur dioxide pollution. The English Midlands became known as the ‘Black Country’. Copper smelting in Swansea valley, Wales, caused a new type of pollution that Robert Angus Smith, who was Britain’s first alkali inspector (the public official who monitored air pollution), wrote about in 1872 in his book Air and Rain: The Beginnings of Chemical Climatology. This book set out the link between the sulphur dioxide that was released when coal was burned and what he called ‘acid rain’, which had the potential to damage plants and materials.37 Although the negative impacts of coal smoke upon human health were noted in England as early as 1630, it was not until the ‘great fogs’ began around the 1750s, when the air was so dense with coal smoke that it was impossible to read during the day without artificial light, that extreme air pollution became a high-​profile 35  See D Johnston, The International Law of Fisheries (OUP 1987) 254–​55. The 1885 Convention on the Repression of Hunting Offences and the 1897 Convention Concerning Hunting on Lakes Constance, the Rhine, and Berne are reprinted in Ruster, International Protection of the Environment (n 6) III: 1583 and 1599. 36  P Collins, ‘The Man Who Sold the Sun’ (8 March 2003) New Scientist 54; P Moretti, ‘Modern Windmills’ (1986) 254(6) Scientific American 88. 37  See McNeill, An Environmental History of the Twentieth Century World (n 5) 58–​59; D Camuffo, ‘Acid Rain: How Old Is the Phenomenon ?’ (1992) 26(2) Atmospheric Environment: Part B, Urban Atmosphere 241.

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37

concern. Thus, although ‘standard’ air pollution was probably having a strong impact on human mortality, with air pollution killing Victorian Britons at roughly four to seven times the rate it killed people worldwide at the end of the twentieth century. In Cincinnati in the late 1800s, one-​third of all of deaths were due to lung-​related diseases. Despite these long term impacts, it was the short-​term, extreme episodes of air pollution that caught the attention of the public. These involved deaths of up to 1,000 people in a very short space of time, with episodic events in 1873, 1880, and 1892.38 In this environment, activists and legislators began to create laws that attempted to regulate the increasingly dirty air of the cities that were heavily dependent upon coal, and especially, poor quality soft/​bituminous coal and particularly offensive smoke stacks and/​or sources. Such pollution was viewed as the antithesis of civilization, order, and the emerging concerns about cleanliness, health, and progress. In Britain, restrictions on different types of air pollution in different locations began to appear in 1845, and were followed by more laws in 1847, 1863, 1866, and 1875, in which types of fuel and where it could be used were tentatively controlled. Similarly, within the United States, by the turn of the twentieth century, seventy-​five cities had adopted smoke abatement ordinances restricting ‘dense smoke’ in certain locations, after Cincinnati led the way in 1871.39

8.  Climate Change The science of climate change emerged in the works of Jean-​Baptiste Joseph Fourier writing in the 1820s, John Tyndall in the 1850s, and Svante Arrhenius in the 1890s. Understanding the climate of the Earth and its constituents (the total amount of carbon dioxide in the atmosphere is little more than 0.03% by volume), and then distinguishing between the vastly overwhelming natural balance, with the gases (and resulting heat) going into, and out of the Earth’s atmospheric budget (with the oceans and forests acting as giant pumps and/​or absorbers) and the small addition of human change to this budget was nothing short of brilliant. The anthropogenic greenhouse gases that were unveiled were carbon dioxide, methane, nitrous oxide, and subsequently, ozone depleting chemicals. The percentage of these gases 38 W Hanlon, Pollution and Mortality in the 19th Century (NBER Working Paper No 21647, Department of Economics, University of California); B Freese, Coal: A Human History (Arrow 2003) 67, 98–​101, 107–​10, 125–​30, 137, 150–​51; D Stradling, Smokestacks and Progressives (John Hopkins University Press 1999) 2–​7, 21, 25, 36–​39; B Luckin, ‘The Great London Fogs of the Late Nineteenth Century’ (2003) 28(1) Social History 75. 39  These were the Acts for the 1845 Railways Clauses, the 1847 Improvement Clauses, the 1863 Alkali Works Regulation, the 1866 Sanitary Act, the 1875 Public Health and the 1906 Alkali Works Regulation. See A Dingle, ‘Landowners, Alkali Manufacturers and Air Pollution, 1828–​64’ (2010) 35(4) The Economic History Review 529; A Power, ‘A 150 Year History of Air Pollution in Northwest England’ (2009) 31(2) Environmental Geochemistry and Health 327; J Sherman, Gasp: The Swift and Terrible Beauty of Air (Shoemaker 2004) 167–​219; Freese, Coal (n 38) 107–​10, 125–​30, 137, 150–​51; R Harrison, ‘Mid Nineteenth Century Smoke Concentrations Near London’ (2002) 36 (25) Atmospheric Environment 4037; D Straddling, ‘The Smoke of the Great Cities: British and American Efforts to Control Air Pollution, 1860–​1914’ (1999) 4(1) Environmental History 6; E Ashby and M Anderson, The Politics of Clean Air (OUP 1981) ch 9.

38

38

Fresh Water Conservation

has changed over time, but roughly about 77 per cent of all of these greenhouse gases are made up of carbon, followed by methane and then the other two. Of carbon, the anthropogenic sources have been from burning fossil fuels and changes in land use (especially deforestation and/​or removal of peatlands), with the responsibility from each sector swinging back and forth over the following centuries.40 The human change that these early scientists were aware of was that, since the discovery of James Watt’s steam engine, the demand for energy was growing at a rate of about 2 per cent per year (as it would for most of the nineteenth and twentieth centuries) and this could be linked to carbon emissions. Subsequent studies would show of this period that global emissions of carbon were about 198 million tons in 1850, growing by a factor of six over the next fifty years, with Britain being the primary producer until the turn of the twentieth century, and then being passed by the United States. At the same time, ‘pioneer agriculture’, with its deforestation and changes in land use across North America, Europe, South Africa, Australia, and New Zealand was responsible for about 10 per cent of the anthropogenic change of carbon in the atmosphere at the end of the nineteenth century. With such changes, and with the first measurements of carbon in the atmosphere (then about 275 parts per million, 722 parts per billion for methane, and 288 parts per billion for nitrous oxide), Svante Arrhenius was able to estimate (in an equation that has basically held true) that if the carbon dioxide concentration in the atmosphere were to double, the Earth would warm by between 4 and 6° C.41

9.  Fresh Water Conservation Fresh water paid a heavy price in terms of pollution from the Industrial Revolution. Aside from the instance of sewage (noted below), dumping of other waste such as industrial or agricultural waste into rivers was often tolerated to a greater degree, as a price for economic development and the existing common law legal structures (such as nuisance law) proved hopelessly unsuitable to control the growing problem.42 A Royal Commission in Britain found that the water of the river Calder, in northern England, made a tolerably good ink, which it demonstrated by using Calder water for a small part of the Commission’s report. The same report noted that the Bradford canal was so full of toxic waste that it was flammable. In some instances, 40 IPCC, Mitigation of Climate Change CUP 2007) 2–​5; IPCC, Climate Change 2007: The Physical Science Basis (CUP 2007) 7; A Hammond and others, ‘Calculating National Accountability for Climate Change’ (1991) 33(1) Environment 11. 41  F Pearce, ‘Land of the Midnight Sums’ (25 January 2003) New Scientist 50; IPCC, Climate Change 2001: The Scientific Basis (CUP 2001) 12; IPCC, Climate Change 1995: Impacts, Adaptations and Mitigation (CUP 1996) 12. 42 B Pontin, ‘Nuisance Law and the Industrial Revolution:  A Reinterpretation of Doctrine and Institutional Competence’ (2012) 75(6) Modern Law Review 1010; C Rosen, ‘Industrial Pollution: Nuisance Law and the Power of Tradition in a Time of Rapid Economic Change, 1840–​ 1864’ (2003) 8(4) Environmental History 565; J Brenner, ‘Nuisance Law and the Industrial Revolution’ (1974) 3 Journal of Legal Studies 403; J McLaren ‘Nuisance Law and the Industrial Revolution: Some Lessons from Social History’ (1983) 3 Oxford Journal of Legal Studies 155.

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39

such as the Fleet river in London, the Bièvre in Paris, the Neglinnaya in Moscow, and the Seine in Brussels, their pollution was so bad they were encased and buried beneath the city. Although this removed the unsightly waterways from the view of urban dwellers, the pollution of the waterways, and in some cases eutrophication of coastal areas when the rivers arrived at the ocean, began to become much more apparent.43 This attitude only began to turn around in domestic settings with Britain’s River Pollution Prevention Act 1876, which created a comprehensive framework to put some limits on what could be dumped into the significant fresh waterways of Britain. Such progressive approaches were replicated regionally when waterways were shared between countries, when it became clear that cooperation was necessary to achieve conservation success. Accordingly, despite the short-​lived Harmon Doctrine of 1895 in America that they had absolute sovereignty over their waterways and did not need to take account of Mexico’s objections, most nations agreed not to act to the clear detriment of each other. With the Rhine, as early as 1868, the various riparian states agreed to certain restrictions (such as labelling, carefully packing, and inspecting) poisonous products (such as arsenic) being transported on the river.44

10.  Human Waste Although the impetus towards regional cooperation for fresh water management was commendable in this period, the foremost example of success in this era was in the growth of scientific understanding, and then action, over human waste. Here, although the authorities were long aware of the problems of filthy environmental conditions caused by the lack of adequate water supplies to help with drainage and sewers, there had not been any major epidemics that impacted upon large sections of the population. However, as populations started to rise and urbanization expanded, new problems became apparent. For example, populations in the United States suffered outbreaks of yellow fever and cholera in 1832, 1849, 1866, 1873, and 43  C Deligne, ‘Industrialisation, Manure and Water Quality in the 19th Century: The Seine River’ (2016) 8 Water History 235; M Gadegast, ‘Modelling Changes in Nitrogen Emissions into the River Oder, 1875–​1944’ (2012). 12 Environmental Change 571; R Garcier, ‘Industrial Pollution and the Construction of Social Order in Nineteenth Century France’ (2010) 36 Journal of Historical Geography 132; G Billen, ‘Estimates of Early Industrial Inputs of Nutrients to River Systems’ (1999) 243 The State of the Total Environment 43. 44  For example, with the Helmand River Case between Persia and Afghanistan, amongst other matters, it was stated that neither country was to engage in activity that would interfere with the water supply needed for irrigation of the other. This case is reprinted in C Robb (ed), International Environmental Law Reports: Early Decisions (CUP 1999) 3–​15; See generally R Garcier, ‘Industrial Water Pollution and the Construction of Social Order’ (2010) 36(2) Journal of Historical Geography 132; L Rosenthal, ‘Economic Efficiency, Nuisance and Sewage’ (2007) 36(1) Journal of Legal Studies 27; J Paavola, ‘Water Quality as Property: Industrial Water Pollution and Common Law in the Nineteenth Century United States’ (2002) 8 Environment and History 295; J Sheail, ‘The Sustainable Management of Industrial Watercourses’. (1997) 2(2) Environmental History 197; A Rome, ‘Coming to Terms with Pollution: The Language of Environmental Reform, 1865–​1915’ (1996) 1(3) Environmental History 6; S Brinkman ‘Pollution and the Relevance of the Nineteenth Century’ (1973) 62(8) The English Journal 1177.

40

40

Municipal Waste

1878—​with the last one taking over 10,000 citizens in total. It was when such problems hit England, and London in particular (epidemics of cholera in 1832, 1848, 1849, and 1853, with the 1849 outbreak claiming the lives of over 14,000 people) that a fundamental shift occurred in the way that human waste was dealt with.45 These outbreaks in Britain led to the creation of the Public Health Act 1848, which provided for ‘improving the sanitary condition of towns and places in England and Wales, and it is expedient that the supply of water to such towns and places, and the sewerage, drainage, cleansing, and paving thereof ’.46 What this meant in practice was the creation of a single authority with the power to purchase, create, maintain, and enforce standards for the management of sewage. These standards ranged from requiring all new houses and places of employment to have sufficient water closets to all such new and existing places being adequately connected to the necessary sewers. The result in London was over 1,000 miles of coordinated and comprehensive sewers, laced with eighty-​two miles of intercepting drains, which would stretch across eighty square miles of the city. This same pattern was quickly replicated during the second half of the nineteenth century in Europe, the United States, Japan, and with the associated colonies of Europe. Calcutta began to build a sewerage system in 1865 and a filtered water system in 1869. By the end of the nineteenth century, most of the emerging industrialized countries were making great strides, getting a good supply of clean water into their cities (and this improved quickly following the successful experiments of Chicago City in 1908–​1910 with chlorination and filtration) and the sewage out of the urban areas. However, problems arose with what to do with it once it was out, with options ranging from drying and recycling it, spreading it on the land, or dumping it into the ocean.47

11.  Municipal Waste In the same period, large urban areas also began to act on other forms of waste which were also problematic. That is, at the beginning of the nineteenth century, large cities were known to collect up to 10,000 dead horses each year, to say nothing of their excrement (22 pounds of manure, per horse, per day, equating in growing cities such as New York to 1.3 million pounds in weight per day) whilst alive. There were few refuse services and the only recycling was done by human scavengers, supplemented by tens of thousands of stray dogs, pigs, and goats, which ate their way through 45  M Black, The Last Taboo: Opening the Door on the Global Sanitation Crisis (Earthscan 2008) 14–​ 15; S Hoy, Chasing Dirt: The American Pursuit of Cleanliness (OUP 1996) 26–​29. 46  The 1848 Public Health Act, 11 and 12 Vict c 63, reprinted in W Lumley, The New Sanitary Laws (Shaw Printers 1859) 1–​222. 47  See McNeill, An Environmental History of the Twentieth Century World (n 5) 127; E Fee, ‘The Public Health Act of 1848’ (2005) 83(11) Bulletin of the World Health Organisation 866; D Cadbury, Seven Wonders of the Industrial World (4th Estate 2003)) 170–​78; S Halliday, The Great Stink of London: Sir Joseph Bazalgette and the Cleansing of the Victorian Metropolis (Sutton 1999) 130; J Cosgrove, A History of Sanitation (Standard 1909) 88–​93, 100–​107; J Bendickson, The Culture of Flushing: A Social and Legal History of Sewage (UBC Press 2007) 110, 118–​19.

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whatever edible waste they could find. The only upside to the poverty of the people and the waste they lived in was that, with the then prices of some raw materials, anything with economic value such as metal, glass, and paper would be collected, reused, or recycled at local, national, and even international levels.48 Everything else was simply rubbish, and that which was not eaten or recycled accumulated in urban areas. Describing the condition in front of a block of tenements, the New York Times explained in 1882 that the street [F]‌rom curb to curb looks like a well patronised dumping ground. Ash heaps, kitchen refuse, decayed vegetables and straw, chips, old crockery, cans etc, are spread all over the street mixed with the dirty snow.49

This situation only started to change when local authorities and governments (as opposed to individual property owners) became interested in controlling this problem through the collection of rubbish and its removal to contained sites away from the population (or, at least, the wealthy part). Over 70 per cent of all American cities had designated landfill sites (as in rudimentary places to dump rubbish), refuse services, and street cleaners by 1880. The exemplar of these was the 3,000 street cleaning employees of New York City, keeping the streets free from all forms of waste in their immaculate white uniforms in the last decade of the nineteenth century.50 If rubbish was not dumped, it could also be burnt. Controlled (but terribly polluting) burning began in 1874 when the first modern waste incinerator, known as a ‘destructor’ went into operation in Nottingham with a hot fire fed by a steady stream of combustible material. Within a decade, the technology had spread to the United States, and proliferated quickly, with more than 180 furnaces being erected between 1885 and 1908. A variation with the dealing with waste was that, if it was difficult to dispose of on land or to burn, it could end up in the ocean. In this period, it was a widely held belief that a few cartloads off a bridge or a few bargeloads of waste tipped into the ocean would quickly be dissipated by the power and regenerative forces of the waters. This was only considered to be problematic when waste was dumped too close to shore or in the wrong tides, and tons of clotted, rotting flotsam would foul beaches, contaminating drinking sources and nearby sites for days. Recognition that this was a problem only emerged in Europe and the United States in the later part of the nineteenth century, when rules started to develop over how far out tippers had to be to dump their rubbish into the ocean.51 48  M Medina, ‘Scavenging in America: Back to the Future?’ (2001) 31 Resources, Conservation and Recycling 229; T Cooper, ‘Rags, Bones and Recycling Bins’ (2006) 56(2) History Today 17; H Rogers, Gone Tomorrow: The Hidden Life of Garbage (Norton 2005) 37–​39, 41–​42, 68–​69, 83–​85, 172–​75; G Crane, ‘Filth, Garbage, and Rubbish: Refuse Disposal, Sanitary Reform, and Nineteenth-​Century Yard Deposits in Washington’ (2000) 34(1) Historical Archaeology 20. 49  Anon, ‘Filthy Streets Up-​Town’ New York Times (15 February 1882) 8. This is noted in C Wells, Car Country: An Environmental History. (Washington University Press 2012) 6, 16–​17. 50  S Strasser, Waste and Want: A Social History of Trash (Holt 1999) 3–​15, 29–​31, 69–​73; S Hoy, Chasing Dirt: The American Pursuit of Cleanliness (OUP 1996) 14–​15. 51  C Zimring, ‘Dirty Work: Xenophobia and the American Waste Trades, 1870–​1930’ (2004) 9 Environmental History 80; see Medina, ‘Scavenging in America: Back to the Future?’ (n 48) 229.

42

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Poisons

12. Poisons The first national regulation of hazardous products occurred in 1851, when arsenic was regulated in Britain. Arsenic is a semi-​metallic element that binds with and disrupts sulphur-​containing enzymes that are present in every cell of the body. It has the potential to disrupt the biochemistry of every tissue and organ. Arsenic was used extensively for dyes and colouring (such as in wallpaper). The first synthetic pesticide was an arsenic-​related dye, called ‘Paris Green’ which was used on wallpaper and shutters. By 1865, after some had accidentally been dropped on a potato patch, it was clear that it could kill insects, but not the crop. Thereafter, arsenic-​based insecticides became popular.52 Before 1851, there were no legal restrictions on the sale of arsenic or, indeed, any poisons in England. This meant that all poisons were both easy and cheap to obtain. Earlier attempts to control arsenic and other particularly dangerous chemicals (such as the very powerful oxalic acid and very toxic mercuric chloride) came to nothing, owing to strong opposition from those who manufactured and sold the chemicals. This only changed following a spate of murders involving arsenic. From one poison (arsenic), a national list was created of what could be sold in what form (arsenic now had to be coloured), and only by authorized people. A few decades later, in 1875, following an accidental mass poisoning with arsenic-​laced sweets, the British Parliament created the Sale of Food and Drugs Act as a first step towards the recognition that citizens had the right to expect unadulterated, and safe, food. This national approach in Britain was ahead of the United States which, despite progressive laws on the labelling of poison (in New York, 1829) and a register of poisons (New Hampshire, 1848), was slow to evolve federal legislation on the topic. Together, the approach of Britain and some individual states in America created the precedents for regulating substances that could be hazardous to human health. Specifically, experts would create lists of poisons that needed to be regulated nationally; these poisons needed to be clearly labelled, and only sold by approved people. There was a complementary understanding that citizens could legitimately expect the food they ate to be safe from poisons.53 Although arsenic was regulated as a poison within civil society, it was not regulated as an industrial chemical, where it was particularly valued for its use as a colouring agent (for flowers, paint, and especially wallpaper). Although scientists knew it could poison people directly, they were uncertain how it could poison them indirectly. It took decades to work out how arsenic-​based wallpaper was actually poisoning people. It turned out to be vapour, not the fine dust being created from when the wallpaper became old. Even though science had not yet proven this link, consumers were scared. Accordingly, some European countries prohibited the importation of arsenic-​based wallpaper. In

52  J Whorton, The Arsenic Century (OUP 2009) 319. 53  ibid 134, 150–​60, 220–​38, 303–​15, 319.

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Britain and the United States the product fell into disuse, not because of legal prohibition, but because consumer demand made it unprofitable. Similarly, it was the European consumer boycotts of American horticultural products that used arsenic for pest control that brought the Americans to start working on safety standards for chemical residues in food.54 For the workers, it was in the changes in factory conditions (ventilation, sanitation, and protective clothing) that were introduced at the end of the nineteenth century, such as the 1892 and 1895 Factory and Workshop Act, that started to make work safer. It helped that regulations were created for products such as arsenic and white lead. This last addition was particularly important as lead was one of the wonder developments of the century, being used in everything from solder in cans of tinned food through to being a common pigment (either chromate-​chrome yellow or carbonate, white lead) in paint, with the latter being up to 40 per cent lead. In other instances, such as with the use of mercury (as used on felt hats so that they would remain pristine), the fumes in work areas with poor ventilation would lead to the insanity of a number of workers, and hence the phrase ‘as mad as a hatter’.55

13.  Civil Society The final point to note from the nineteenth century in terms of the movement towards sustainability was the advent of civil society/​non-​governmental organizations (NGOs). These groups began to voice opinions, use consumer boycotts of products they did not approve of, and sought to change both policies and legislation. They sought non-​monetary goals which would improve society. They were not related to any established religions, profit-​seeking enterprises, o​ r existing governments. These societies covered multiple issues from the provision of medical assistance, combating slavery, and animal cruelty. By 1875, there were over 330 NGOs with international connections, all doing their best to influence the rules that were emerging in this period. Included in this group were the Society for the Prevention of Cruelty to Animals (later the Royal Society), which emerged in 1824, with the first International Congress of the Society for the Protection of Animals being held in 1860. In the United States, the Sierra Club came into existence in 1892.56

54  J Parascandola, King of Poisons: A History of Arsenic (Potomac Books 2012) 116–​24; R Smith, Slow Death by Rubber Duck (Counterpoint 2009) 20, 143; D Pellow, Resisting Global Toxics (MIT Press 2007) 149–​50. 55  C Warren, Brush with Death: A Social History of Lead Poisoning (Johns Hopkins University Press 2000) 21, 63. 56 S Charnovitz, ‘Two Centuries of Participation:  NGOs and Industrial Governance’ (1997) Michigan Journal of International Law 183; J Boli, ‘A Century of International Non-​Governmental Organisation’ (1997) 62 American Sociological Review 171; A Moniz, ‘Humane Societies and Charitable Aid’ (2009) 29(4) Journal of the Early Republic 607; S Redman, ‘The Rise of the Anti-​Slavery Movement’ (2003) 24(2) Cobblestone 14.

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Conclusion

14. Conclusion Few epochs have been as important for humanity as the Industrial Revolution and the nineteenth century in which most of it was located. This was the century that humanity began to break free from an existence which, for most of its own history, had been barely above subsistence. Science, technology, legal systems, and social conscience combined to provide the building blocks for an economic burst that had never been seen before. In terms of actors, the nineteenth century was unique for the arrival and proliferation of non-​governmental organizations, which began to lobby and influence governments in previously unforeseen ways. These attempts occurred at the same time as some of the most important transnational corporations of modernity emerged. Economic growth expanded, agricultural output increased, and international trade, for the first time ever, became free for a few decades towards the end of the century. The social cost of this economic growth in the first half of this century was terrible. Workers were exploited to an unprecedented degree and human longevity began to stagnate, to which radicals such as Karl Marx proclaimed the time for class-​based revolution was ripe. The problem for Marx was that conditions (with falling unemployment, better wages, and improving longevity) began to improve, not worsen, for the working classes. Working conditions, in turn, started to improve as labour gained a voice in politics. Social conditions followed suit with the birth of the welfare state. The result by the end of the nineteenth century was that, economically and socially, advances were being made in unprecedented leaps and bounds, as these legs of sustainable development improved. The exception in this period was with the environment, for which unsustainable practices were the rule. Large-​scale famines (more to do with poverty and hopeless social welfare policies than overall ecological scarcity of food) stained the nineteenth century, to which fears about overpopulation began to be clearly articulated. This was especially so as human population progressed from 1 billion to 1.6 billion over the scope of 100 years. Habitat loss, especially deforestation, accelerated rapidly in colonies with temperate climes. Species loss, which ranged from extinction to commercial non-​viability, as everything from whales to animals unfortunate enough to be covered in feathers or furs that wealthy consumers desired, suffered. The change compared to earlier centuries was that, at the end of the century, the first laws, nationally and then regionally, on species management began to appear, as did the first modern protected areas. Similar progress was made with air pollution, fresh water pollution, and chemical pollutants, with all three areas spewing forth a range of pollutants in scales that were previously unfathomable—​but with the problems now being acknowledged, and the first small steps towards confronting the problem being undertaken. Again, although the responses were pathetic compared to the problems they were facing, the seeds were laid. Similar progress was also made in dealing with municipal waste but, most impressively, with human waste and the birth of modern sanitation. In short, the environmental impacts that the Industrial Revolution created were unprecedented, but so too, for the first time in the modern world, were the responses.

45

4 The First Half of the Twentieth Century 1. Introduction The years between 1900 and 1945 were very difficult for humanity. In this period, not only were there two world wars to survive but also, some of the worst parts of the social, economic, and environmental challenges of sustainable development all began to make themselves felt. The one area in which progress was made was in the social context, in which the rights of workers and the welfare state expanded. The idea of ‘development’, especially for the developing world, also evolved in this period. In the economic arena, the world went up, and then crashed in the Great Depression, producing negative results that were unprecedented. In environmental terms, positive templates were created for some habitat management, some wildlife law, and parts of fresh water conservation. Where there was not so much success was with regard to air and chemical pollution.

2.  Before the First World War The Paris International Exposition of 1900 was the largest the world had ever seen. To the commentators of the age, with the rapid advances of communication, electricity, and industrialization, humanity was in the middle of a ‘maelstrom of progress’.1 Technology was now combining with mass production and improving very quickly. By 1900 engineers had learned how to handle high-​pressure steam, and engines became thirty times more powerful than those of 1800. At the same point, internal combustion engines—​using refined oil, which weighed less and was more efficient (especially on the smaller scale) than coal-​fired steam engines—​began their meteoric rise. By 1914, Russia had over 2 million workers toiling in industry, Germany had surpassed the industrial output of Britain, and the United States (US) had doubled it. Canada, Australia, and New Zealand were each producing more manufactured goods on a per capita basis than any European country except Great Britain.

1  As noted in P Morand, 1900 A.D. (Payson 1931) 76.

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Before the First World War

Commodity production grew at exponential rates. The output of wheat, tea, and cotton doubled in the three decades before the First World War, sugar tripled, cocoa quadrupled, and rubber increased from 11,000 to 87,000 tons sold per annum. The demand for new consumer goods such as telephones, sewing machines, radios, and automobiles, as well as numerous branded products and cigarettes, more than doubled between 1870 and 1913. The cardboard box and sealed waxed paper liner introduced by Kellogg’s in 1906 was followed by break-​throughs in 1909, which allowed Leo Baekeland to mass produce plastics (at a fraction of the cost of non-​ plastic products) that were a taste of what was to come. To meet new demands, the assembly line came into being in 1901. This allowed Ransom Eli Olds to increase his production from 425 cars in 1901 to 2,500 in 1902. Henry Ford, founding his company in 1903, leant from this, going from a production of six cars in his first year to having a manufacturing plant in Canada the following year. Assembly lines not only reduced the price of the product through mass production (making his car accessible for the average family as prices fell by more than 60% in fifteen years), the diversity of what was added to the production line soon after (the aeroplane in 1903 and the tractor in 1904) was mind-​boggling.2 Although the international community had by now accepted limits of trade in some areas (notably slaves, illegal narcotics, and diseased plants or animals), everything else could be exchanged internationally. This movement towards more, not less, trade (doubling between 1896 and 1913) was in defiance of the tariffs that had been erected for the purpose of either complete protection or temporary protection (such as for infant industries), which accompanied the global depression that took up the last decades of the nineteenth century. By the time of the election of Woodrow Wilson in 1912, tariff levels were, on average, 30 per cent for the US (they fell to 16% by 1920), 38 per cent for Russia (but with 84% on foreign manufactured goods) 20 per cent for France, 13 per cent for Germany, and 0 per cent for the UK. At the global level, the average tariff on wheat was 40 per cent. This continued growth in trade was attributable, in large part, to the falling costs of transport, specialization, and increased supply. The economic good feeling was summed up by John Maynard Keynes, of how a person of that age living in London could, just before the First World War broke out, [O]‌rder by telephone, sipping his morning tea in bed, the various products of the whole earth, in such quantity as he might see fit, and reasonably expect their early delivery upon his doorstep; he could at the same moment and by the same means adventure his wealth in the natural resources and new enterprises in any quarter of the world . . .3 2  J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 11. 3  Keynes, as noted in J Frieden, Global Capitalism: Its Rise and Fall in the Twentieth Century (Norton 2006) 28, and see also 20–​24, 59, 80–​84, and 108. For the restrictions on international trade see the 1912 Opium Convention and the 1926 Convention to Supress Slavery and the Slave Trade (60 LNTS 253). For the diseases animals and plants see the Agreement for the Creation of an Office for Contagious Diseases of Animals (1924), the Convention on Prevention of Diseases of Livestock (1928), the Convention for the Protection of Plants (1929), and Convention on Diseases of Animals (1935). These are reprinted in B Ruster (ed), International Protection of the Environment (Oceana 1977) III: 1646, 1665, 1669, 1705.

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All of this was occurring as a new generation of large corporations such as General Electric, Siemens, Singer, and Ford became household names with a global reach and unprecedented power. For example, Royal Dutch/​Shell, which had emerged at the end of the nineteenth century from a Dutch company which had interests in oilfields in Sumatra, would end up controlling over 20 per cent of Russian oil production when the First World War broke out. The rise of these powerful new entities caused much concern, with Theodore Roosevelt giving a fiery speech in 1909 that warned that America’s industrial economy had been taken over by a handful of corporate giants that were generating unparalleled wealth for a small number of people and exercising undue control over American politics.4 The final point to note of the pre-​war period was the resurgence of debt problems for some developing countries. Now, the US, despite its argument to Spain that Cuba’s debt was ‘odious’, took a different approach to debt owed to it, for which it intervened and applied gunboat pressure. After default, Venezuela was squeezed in 1902 and the Dominican Republic in 1905. This pressure followed after Theodore Roosevelt made it clear that the US would protect the interests of foreign creditors by ensuring that Latin American countries honoured their foreign debts. When Nicaragua and Mexico both defaulted in 1911, again, full repayment was expected.5

3.  The Context after the First World War The League of Nations followed the conclusion of the First World War. The significance of this body on social and economic issues was threefold. First, ‘development’ became an international idea. Woodrow Wilson was the first to foresee this when he noted in early 1919 that: ‘for the first time in history, the counsels of mankind are to be drawn together and concerted for the purpose of . . . improving the conditions of working people—​men, women, and children, all over the world’.6 As it was, although the League’s work on development was limited (especially compared to the United Nations after the Second World War), its Covenant still recognized the importance of solving social problems and the advancement of ‘underdeveloped’ areas of the Earth. Article 22 of the Covenant, which dealt with the mandates created for the colonies of the defeated and emerging nations of the new world, which were ‘inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world’, agreed that: There should be applied the principle that the well-​being and development of such peoples form a sacred trust of civilisation . . . The best method of giving practical effect to this 4  Roosevelt, as noted in Anon, ‘The Rise of the Superstars’ Economist (17 September 2016) 3; Murphey, ‘Theodore Roosevelt and the Bureau of Corporation’ (2013) 14(1) American Nineteenth Century History 73–111; F Trentmann, The History of Consumption (Oxford University Press 2012) 449; T McCarthy, Automania: Cars, Consumers and the Environment (Yale University Press 2007) 5–​7. 5  D Rodrix, The Globalisation Paradox (Norton 2011) 38–​40. 6  Wilson, as noted in W Easterly, The Tyranny of Experts (Basic 2013) 43–​44.

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principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League.7

The administration of mandates was supervised by a body of experts established by the League and the Permanent Mandates Commission. In each area, the same template of social order, political organization (democratic self-​government), modernization, technology, and recipes for a large dose of economic growth were applied. As was explained at the time, ‘the ideal is the slow, unforced assimilation of weak or inferior communities by strong or more highly developed communities’.8 Soon afterwards, the League was providing scientific, technological, and economic aid and advice to both the mandates and other emerging unindustrialized countries such as China, India, and Chile.9 The second unique development in these years was the evolution of international aid. This occurred when the US, despite not being a member of the League of Nations, provided generous assistance to war-​ravaged Europe, to former enemies, and emerging ones. This was most evident with the Soviet Union, which was, by 1921, in the middle of a terrible famine. Such assistance was given without political conditions (such as the Soviets paying back Tsar era debt), although it was hoped that it would provide ideological leverage, by showing the generosity of the capitalist system that the communists hoped to topple.10 The above point about debt was important, for as soon as the League had been concluded, it became apparent that it lacked the international machinery to deal with problems such as debt and default that many countries (especially those that lost the First World War) began to experience. Although this did not trouble the Soviets (who ended up being excluded from international commercial markets for decades after their defaults), many were concerned about the obvious gap in the architecture to be able to help non-​communist countries who would be in need of finance that could not be raised from commercial markets. The third development was the growth in the number of NGOs. Before the war, this growth was particularly evident in the expanding NGO community, which was becoming increasingly global in their focus (about 50 per cent of international

7  Article 23 of the Covenant set the ‘social’ goals of the League, with regard to endeavouring to secure fair and humane conditions of labour; securing just treatment of the native inhabitants of territories under their control; confronting the traffic in women and children and opium and other dangerous drugs, and the prevention of disease. 8  Q Wright, Mandates under the League of Nations System (Cambridge University Press 1930) 233; A Anghie, ‘Nationalism, Development and the Postcolonial State: The Legacies of the League of Nations’ (2006) 41(3) Texas International Law Journal 447. 9  M Zanasi, ‘Exporting Development: The League of Nations’ (2007) 49(1) Comparative Studies in Society and History 143. 10  S Grant, ‘The American Hospital in Moscow: A Lesson in International Governance’ (2015) 59(4) Medical History 554; J Irwin, ‘Great War-​Era American Humanitarianism and its Legacies’ (2014) 38(4) Diplomatic History 763; J Andrew, ‘Reconstruction Before the Marshall Plan’ (2005) 31(3) Review of International Studies 541; C Edmondson, ‘The Politics of Hunger’ (1977) 29(4) Soviet Studies 506.

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NGOs being formed every year before the First World War), with the first (non-​ governmental) International Congress for the Protection of Nature being held in Paris in 1909, from which the Consultative Commission for the International Protection of Nature (later known as the IUCN) emerged in 1913.11 This growth of NGOs continued after the First World War. Despite having no formal standing in international law, such non-​governmental groups made their influence felt through a number of governmental delegations through which they accessed the League of Nations. While some groups, such as the International Committee of the Red Cross, had their status cemented in the Covenant, other groups jostled for influence with more professionally organized groups such as the International Chamber of Commerce, which blazed a path for commerce-​ orientated NGO involvement. From 1919 this group lobbied forthrightly on matters of economic and policy importance, created their own instruments (such as the International Court of Arbitration in 1923), and formed what was, in essence, a ‘world parliament of business’.12 The fourth development after the First World War was the continual expansion of powerful transnational corporations. In Japan, a financial clique developed around emerging giants such as Mitsui and Mitsubishi. In the US, in 1928, the auto-​industry (which employed one in eight people, having gone from 8,000 cars in the country in 1900 to 28 million by 1940) used 18 per cent of the nation’s steel, 52 per cent of its iron, and 84 per cent of the rubber. In the same year, over 40 per cent of the oil of Latin America was owned by two transnational corporations, and British multinational banks controlled more than 2,250 branches all over the world. Transnational corporations were responsible for more than 50 per cent of the exports of Cuba, Chile, Peru, Iran, and Venezuela. US companies owned 32 per cent of all mining and smelting in Canada. Even when they were not at the forefront of extracting resources for export, they were busy moving to the countries directly (such as with Ford having operating manufacturing plants in eighteen other countries by 1930) to manufacture and sell directly their products to those populations. This approach of purchasing overseas operations became increasingly popular as trade barriers made international commerce in their products difficult in the 1930s.13 It was in this period that it became apparent that transnational corporations could either be progressive or regressive. On the positive side, some multinationals 11  K Dorsey, ‘The Dawn of Conservation Diplomacy’ (1999) 29(4) American Review of Canadian Studies 673; J Boli, ‘World Culture in the World Polity: A Century of International Non-​Governmental Organisation’ (1997) 62 American Sociological Review 171, 176. 12  T Davies, ‘A Great Experiment of the League of Nations Era: International Nongovernmental Organisations and Democracy Beyond the State’ (2012) 18 Global Governance 405; Boli, ‘World Culture in the World Polity’ (n 11) 171, 176; S Charnovitz, ‘Two Centuries of Participation: NGOs and International Governance’ (1996) 18 Michigan Journal of International Law 183, 222. 13  C Wells, Car Country:  An Environmental History (Washington University Press 2012) 128–​ 29; M Wilkins, ‘Multinational Enterprise to 1930’ in A Chandler (ed), Leviathans:  Multinational Corporations and the New Global History (Cambridge University Press 2005) 63–​67, 75–​77, 80–​81; J Dunning, Multinational Enterprises and the Global Economy (Addison 2003) 112–​15; J McLean, ‘The Transnational Corporation in History: Lessons for Today’ (2004) 79(2) Indiana Law Journal 100; E Hobsbawm, The Age of Capital: 1848–​1875 (Weidenfeld 1995) 44.

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including Ford, at least in the early decades when Henry was alive, tried hard to take social (labour standards and pay) and environmental concerns (such as waste reduction) into consideration with the manufacture and footprint of their products. On the regressive side, some other transnationals began to exploit situations so as to be able to maintain or expand profit margins. A good example of this was with the choice of automobile fuel—​which could have been either clean burning and renewable alcohol or oil—​with advocates speaking on both sides. Eventually, the auto industry settled in favour of oil after scientists under the guidance of Charles Kettering learnt how to mix gasoline and oxygen better and tetraethyl-​lead was added (in 1922). This mix made high compression performance much stronger. However, at the same time, health scares with poisoned workers owing to the lead-​ based petroleum began to appear. The problem was dealt with by creating better working conditions that facilitated ventilation and provided a few basic safety measures, rather than actual prohibition of the product. This result was achieved as a few self-​interested industries, especially under the guidance of Robert Kehoe, learnt how to control data, exploit scientific uncertainty, and demand that their economically beneficial product (leaded petroleum), be allowed to continue until definitive scientific evidence of fault could be proved. Until then, it was argued, voluntary self-​regulation by the industry should be the norm. Those who proposed, as one did, that ‘no possible new chemical substance should be put into retail use until proof of its harmlessness has been shown beyond doubt’ were sixty years ahead of their time.14 The fifth development of significance was with regard to free trade. President Wilson, as part of his famed ‘Fourteen Points’ for a global peace settlement with the Axis, suggested in 1917 that there should be ‘the removal, so far as possible, of all economic barriers and the establishment of an equality of trade conditions among all the nations consenting to the peace and associating themselves for its maintenance’.15 Despite the fact that the First World War had been very good for the American economy (with manufacturing tripling during the war years), and despite the fact that all of Europe now depended on America for capital, markets, technology, and political leadership, Wilson could not persuade the American Congress to join the League of Nations to provide international leadership, nor continue with his policy of fewer trade barriers. When the Republicans regained power in 1922 they took import duties in America to over 40 per cent. The catalyst for their concern

14  The quote is in Wells, Car Country (n 13) 182. See also McCarthy, Automania (n 4) 25–​35, 72–​76; W Kovarik, ‘Ethyl-​Leaded Gasoline: How a Classic Occupational Disease Became an International Public Health Disaster’ (2005) 11 International Journal of Occupational and Environmental Health 384; H Needleman, ‘The Removal of Lead from Gasoline: Historical and Personal Reflections’ (2000) 84 Environmental Research 20; J Nriagu, ‘Clair Patterson and Robert Kehoe’s Paradigm of “Show me the Data” on Environmental Lead Poisoning’ (1998) 78 Environmental Research 71–​78; D Rosner, ‘A “Gift of God”? The Public Health Controversy Over Leaded Gasoline During the 1920s’ (1985) 75 American Journal of Public Health 344. 15  This was point III. See generally J Thompson, ‘Woodrow Wilson and World War I: A Reappraisal’ (1985) 19(3) Journal of American Studies 325.

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in America was their farmers, who were facing low prices because of international competition. Other nations followed suit, especially in Europe, as a number of governments were persuaded to protect their farmers against imports of foreign food, which was cheaper than what they could produce domestically.16 As nations began to tighten up and restrict imports, the League of Nations organized the First World Economic Conference in 1927. This was an attempt to outline a multilateral trade system, which favoured stable exchange between countries, with as few unjustified restrictions as possible. To the minds of many, a breakthrough was about to be achieved, resulting in a return to the economic successes of the pre-​war period. This was especially so as international investment was surging (one-​third of Wall Street investment was globally based), and supply and demand in most areas, from agriculture to consumer goods (especially automobiles and the new household appliances such as radios and fridges) was growing again.17

4.  The Great Depression The Great Depression of 1929 arrived when the Wall Street stock market crashed on 24 October. Millions of investors lost their money in the space of a few days, before many of the world’s economies went into low gear as consumer spending and investment dropped. By 1933, world trade was barely one-​third of its 1929 level. International financial markets almost completely stopped. Real GDP fell by 17 per cent worldwide and 26 per cent in the US. Agricultural products which had grown fourfold in the nine years before the depression saw prices fall by about 52 per cent between 1929 and 1933. In the same period, the price of rubber fell by 80 per cent, while cotton, coffee, and sugar all fell by more than 60 per cent. Unemployment went above one-​quarter of the work force almost everywhere. By 1933, some 13–​ 15 million Americans (more than 24% of the American population at peak, whereas it was 44% in Germany) were unemployed and nearly half of the country’s banks had failed. The gap between the richest and the poorest in the US had never been bigger.18 The initial response to the crisis in the US was the Smoot and Hawley laws of 1930, which raised the average tariff on dutiable goods (from industrial to agricultural products) to nearly 60 per cent and introduced a number of non-​tariff barriers, such as having to have the country of origin listed on all imports. Other countries responded likewise as they sought to insulate themselves from shrinking demand and growing unemployment. Each sought to accelerate its own industrial basis and economic growth by raising import barriers, creating state assisted monopolies

16 Hobsbawm, The Age of Empire (n 13) 39. 17  H Colin, ‘The World Economic Conference of 1927’ (1927) 134 Annals of the American Academy of Political and Social Science 140. 18  B Milanović, ‘Income Inequality is Cyclical’ (2016) 537 Nature 479; D Sheldon, ‘Evaluating the Effects of the Great Recession’ (2013) 650 Annals of the American Academy of Political and Social Science 6.

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(such as with agricultural marketing boards/​cooperatives), and carving out preferential export markets. Trade blocks and goals of self-​sufficiency were created by Scandinavia, Japan, and throughout South America. In 1936, Germany created its own trade block with like-​minded countries as part of its drive for economic autarchy, resource security, and less dependence on world markets with its foreign trade in 1938 being one-​third of what it was in 1928, whilst going on to produce its unique versions of consumer desired goods, such as the people’s car, or Volkswagen. Nationalistic intentions were peppered with consumer boycotts against foreign goods on either political or cultural grounds. For example, with Britain and the Commonwealth, after the United Kingdom (UK) abandoned its traditional free-​trade position, ‘Buying for Empire’ campaigns were launched with declared shopping weeks, dinners, exhibits, and advertising to encourage the purchase of products from Australia, Canada, and/​or New Zealand over all other foreign imports.19 Even John Maynard Keynes was deeply shocked by the Depression, forcing him to move away from his previous support for free trade. Although he accepted that protectionism was inefficient, he came to the view that it was better to have employment and inefficient production than efficiency and no employment. With such a view, he famously stated that: ‘Ideas, knowledge, art, hospitality, travel—​these are things which should in their nature be international. But let goods be homespun whenever it is reasonably and conveniently possible, and, above all, let finance be primarily national’.20 This escalation of trade barriers only started to slow when Franklin Roosevelt’s 1934 Reciprocal Trade Agreement Act gave him the ability to create tariff reductions of up to 50 per cent with other countries, without congressional approval, from which over twenty bilateral trade agreements were made. Britain, France, and the Scandinavian countries were exploring similar ideas over the following years before the Second World War broke out. Although these made only minimal impact on the period, they signalled a new liberal direction in trade policy, which laid the foundations for much of the GATT system after the Second World War. Moreover, the International Labour Organization (ILO) suggested a radical idea in 1937 that, ‘in framing their commercial policies, governments should take into account social conditions prevailing in countries which they have trade relations’.21 The other important event that the Depression caused was the severing of much of the developing world from the developed. Before the Depression in 1929, most of the developing world was active in the international world, either independently or 19 Trentmann The History of Consumption (n 4) 449; F Trenman, ‘Before “Fair Trade”: Empire, Free Trade and the Moral Economies of Food in the Modern World’ (2007) 25 Environment and Planning D:  Society and Space 1079; T Breen, The Marketplace of Revolution:  How Consumer Politics Shaped American Independence (Oxford University Press 2004) 33–​54. 20  Keynes, as in R Skidelsky, Keynes: The Return of the Master (Public Affairs 2010) 187. 21 ILO, ‘Record of Proceedings, Tripartite Technical Commission on the Textile Industry’ Washington, DC (2–​17 April 1937) First Part, p 42. See also C Tsao, ‘The ILO and the Quest for Social Justice, 1919–​2009’ (2011) 33(2) Human Rights Quarterly 575; K Chase, ‘Imperial Protection and Strategic Trade Policy in the Interwar Period’ (2004) 11(1) Review of International Political Economy 177; T Ferguson, ‘Industrial Structure, Party Competition and American Public Policy in the Great Depression’ (1984) 38(1) International Organisation 41.

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through their colonial masters, often achieving a level of industrial maturity and specialization as export-​orientated producers of primary products. This included most of Latin America, as well as countries including Turkey, Egypt, and Siam, together with British India and French Algeria. China shared much with these regions but was held back by civil war. The Depression changed all of this. Latin America, most of Eastern Europe, Turkey, and China all defaulted on the debts they owed to wealthy countries or the banks within them. Although the international community could deal with some of the high-​level risks of default, such as around Germany (in 1932) and the Treaty of Versailles reparations (as well as the bilateral debts of Great Britain, Italy, and France to the US), in general, international credit for the developing world simply dried up (whether they were in default of debts or not). In response, developing countries seized foreign owned assets and/​or foreign corporations were forcibly sold off to local investors, subjected to stringent regulations such as being prohibited to send profits home, having to hire more local citizens, and/​or pay higher taxes. Alternately, foreign corporations were simply taken over by the government in the country they were operating in. The collective actions meant that much of the developing world was, in essence, cast adrift from the industrialized world.22

5.  The Social Context The great counter-​weight to the Western world with its capitalist, liberal economies that burst onto the international stage in 1917 was the Soviet Union. The initial outburst of enthusiasm for the revolution, which promised equality and improvement for the working class, was massive. The radical new laws that followed gave the workers and the peasants control of multiple areas of society, from the forests to the factory floors. However, utopia was not delivered. Contradictory objectives of the new Soviet regime collided with freedom, anarchy, and civil war. When this was overlaid with a drought, economic, and social collapse, compounded by an agricultural system that the Soviets insisted be based upon requisitions and exchange without markets or money, a large famine arrived. As many as 5 million Soviet citizens died from the starvation that followed.23 Joseph Stalin came to power in the Soviet Union in 1922. His focus was on economic stability, and then rapid economic growth designed to steer his country into being a world-​class industrial superpower. To these goals, the first ‘Five-​Year Plan’ was unveiled at the end of the 1920s, just before the West slipped into the Great Depression. Stalin’s plan called for a 236 per cent per cent increase in industrial output and a 110 per cent increase in labour productivity. The majority of 22  A Gelpern, ‘Odious, Not Debt’ (2007) 70(3) Law and Contemporary Problems 81; Frieden, Global Capitalism (n 3) 174–​76, 219–​21; L Moore, ‘Regime Change and Debt Default: The Case of Russia, Austro-​Hungary and the Ottoman Empire’ (2005) 42 Explorations in Economic History 237; P Lindert, ‘How Sovereign Debt Has Worked’ in J Sachs (ed), Developing Country Debt and Economic Performance (Chicago University Press 1989) 39–​106. 23  P Josephson, An Environmental History of Russia (Cambridge University Press 2013) 35, 40, 89–​90, 109.

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the population was put to work (with only disabled war veterans getting a pass), pursuing large-​scale projects in mining, metallurgy, forestry, fisheries, agriculture, and massive geological engineering. In the given period, iron output quadrupled, coal production doubled, and electricity generation increased sevenfold. Industrialization and collective outputs were the goals, not consumer products for individuals, which were associated with decadence, envy, fetishism, and the inequality of capitalism. Accordingly, what personal items were created were drab and low quality. Throughout the 1930s, although economic growth continued (about 9% per annum), most of this was coming from ever-​greater inputs from labour and capital, not increases in productivity.24 The environmental impacts of these processes were massive. Although certain pockets of conservation were achieved (with some nature preserves and high-​value endangered species conserved), in other areas, the opposite was the case. Armies of workers undertook tasks that were extreme. Bureaucracies were obsessed by the targets for everything from increased production from fertilizer to tractors (up to 600,000 units per annum in 1950: compared to 4.7 million for America). Rivers were diverted, fisheries emptied, extractive industries in oil, gas, and coal were pursed with vigour. Unsuitable land was brought into cultivation, and forests were cleared as there was little incentive to behave in a restrained manner.25 Although there were clear environmental and social costs to Stalin’s plans, the Soviet Union was growing as Western countries were shrinking in the Depression, with the Soviet’s quadrupling industrial output between 1929 and 1939, whilst America barely made up what ground it lost after 1929. By the time of Stalin’s death in 1953, Russia had gone from 12 per cent up to 80 per cent of the industrial production and 85 per cent of the agricultural production of the US, and life expectancy in Russia had doubled from 32 years to 68 years.26 As the Soviets started to make great strides in economic and social standards, many of the liberal democracies felt threatened. This was especially so when the Great Depression arrived and the communist alternative started to look attractive to many people, especially where there was no (or only minimal) social welfare. In the US, before the Great Depression the only federal social insurance was with Civil War pensions, although some individual states had welfare for either children and/​ or the elderly. Comparable Western countries such as Great Britain expanded the civil rights and nascent social welfare schemes, with disability benefits and health insurance for workers agreed in 1911, full manhood suffrage in 1918 (with women

24  D Caroli, ‘Bolshevism, Stalinism and Social Welfare, 1917–​1936’ (2003) 48(1) International Review of Social History 27; M Goldman, M. ‘Diffusion of Development: The Soviet Union’ (1991) 81(2) The American Economic Review 276. 25 Josephson, An Environmental History of Russia (n 23) 61, 105–​107; S Brain, ‘The Great Stalin Plan for the Transformation of Nature’ (2010) 15(4) Environmental History 670; M Williams, Deforesting the Earth (Earthscan 2006) 391. 26  E Brainerd, ‘Reassessing the Standard of Living in the Soviet Union’ (2010) 70 (1) Journal of Economic History 83; P Stearns, Consumerism in World History (Routledge 2010) 52, 73, 85–​88; P Ryan, ‘Life Expectancy and Mortality Data from the Soviet Union’ (1988) 296 British Medical Journal 1513.

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in 28 countries obtaining the same rights over the next two decades), and old-​age benefits in 1925. Many parts of the developed world and their colonies followed suit after 1900, creating social welfare schemes, free universal education, progressive labour regulations, and public pensions. This social welfare thwarted the goals and ideologies of the communists, as it showed the capitalist-​based liberal economies could still, progressively, improve the quality of life of the workers.27 This was not the case in America. Labour standards were low. Although there was some basic progress in examining the issue of work safety in the early decades of the twentieth century, the federal government, despite creating the Department of Labour in 1913, was reluctant to intervene. This meant that occupational health measures to protect and safeguard the health of workers remained minimal. When the Depression hit the US, fewer than 10 per cent of the workers in America had any kind of private pension or insurance plan. Conditions were so bad that life expectancy fell from 63 years to 57.5 between 1933 and 1937. President Roosevelt changed this situation with the Social Security Act of 1935. This created federal assistance for the dependent elderly, children, blind, and unemployed. In essence, it created the foundations for the welfare state as it came to exist in the US. Although there was (and remains) considerable debate about how far the welfare state should go (and how it should be funded), fundamentally, for reasons ranging from religion to self-​ interest in preserving the capitalist system, it was accepted that the government had a responsibility to help the vulnerable in society. Although some executives from powerful companies such as Du Pont and the Morgan Partners fought tenaciously against the social security programmes of the New Deal, a majority of corporate leaders, such as those from Kodak, General Electric, Goodyear, and Standard Oil not only agreed with the social security programmes but helped to design them.28 The other major change that created large social impacts in the US was that Roosevelt accepted that workers’ rights also had to be taken seriously. Accordingly, in 1934, America joined the ILO. The ILO was recognized by the League of Nations, to which the members of the League promised to ‘endeavour to secure and maintain fair and humane conditions of labour for men, women and children, both in their own countries and in all countries to which their commercial and industrial relations extend’.29 The ILO built upon the progress of workers’ rights debates in the second half of the nineteenth century and upon a large NGO network that sought to universalize some of their goals. This work began once it became apparent to many that Marx’s vision of a homogenous mass of workers was unlikely, owing to considerations of nationality, religion, language, and culture, which divided workers more than their common status as workers unified them. Nonetheless, the millions of 27 C Fitzgerald, ‘Religious Traditionalism and Welfare Theory’ (2011) 38(3) Social Work and Christianity 267. 28  T Paster, ‘Business and Welfare State Development: Why Did Employers Accept Social Reforms?’ (2013) 65(3) World Politics 416; L De Witt, ‘The Development of Social Security in America’ (2010) 70(3) Social Security Bulletin 1; J Corn, Response to Occupational Health Hazards: A Historical Perspective (Reinhold 1992) 5–​9. 29  Covenant of the League of Nations, art 23(1).

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unionized workers worldwide (Britain had four million trade union members in 1914, whereas Germany had 3 million) had a legitimate voice that needed to be heard at the international level. The voice of workers made its first impression internationally in 1906 when the workers’ representatives achieved labour and environmental goals with the Berne Convention Respecting the Prohibition of the Use of White (Yellow) Phosphorus in the Manufacture of Matches. This convention was monumental, as it was not only the first labour-​related convention in international law, it was also the first pollution-​related convention in international law. It was created in direct response to the horrible ailment known as ‘phossy jaw’, as well as anaemia and brittle bones in workers who were repeatedly exposed to the creation of these matches. The need for international action was accepted as necessary because the social campaign (run by the Salvation Army) for consumers to purchase alternative matches that were not dangerous to workers to manufacture, failed to close the industry. As consumer pressure could not stop the problem, law was required. The international law then filtered down to the domestic level, such as in the US in 1912 with the Esch Act, which placed a prohibitive tax on white phosphorus, at the same time as substitutes for white phosphorus started to come onto the market.30 Such aspirations to protect labour at the international, and not just the national, level became the driving focus of the ILO. The foundational document of the ILO sought to amplify such achievements of social change at the global level, reflecting the understanding that the ‘improvement of th[e]‌conditions [of the working class] is urgently required’ if the goal was to maintain ‘peace and harmony of the world’.31 Thus, the ILO sought, and still seeks, to further the rights of workers and unions’ within the capitalist system. It did not seek to upend that system in communist revolution. The members of the ILO began creating and passing conventions from 1919 onwards. Although only one of the conventions created in the first two decades remains considered in the top eight of its ‘core conventions’ in the twenty-​first century (the Convention Concerning Forced or Compulsory Labour), all of the other work leading up to the Second World War clearly reflected a growing concern for workers’ rights. These included conventions on working time (moving towards an eight-​hour day and forty-​hour week), wages and standards in set industries (such as for miners and seafarers), minimum conditions and restricted work (especially for women and children), and the right of association to form unions. Again, the workers also lead the way on environmental-​related issues, in creating another international convention restricting a pollutant, which had large-​scale negative 30  J Krisjanous, ‘Examining the Historical Roots of Social Marketing Through the Lights in Darkest England Campaign’ (2014) 34(4) Journal of Macromarketing 435; D Moss, ‘Kindling a Flame Under Federalism: Progressive Reformers, Corporate Elites and the Phosphorus Match Campaign’ (1994) 68(2) Business History Review 244. 31  Preamble of the Constitution of the International Labour Organisation 1919; S Charnovitz, ‘The Influence of International Labour Standards on the World Trading Regime: An Historical Overview’ (1987) 126(5) International Labour Review 565, 571; A Hu, ‘The Global Social Insurance Movement Since the 1880s’ (2010) 5(1) Journal of Global History 125.

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occupational health implications in 1921 by prohibiting white lead paint if it was above a certain concentration of lead, for certain uses (nothing inside) and by certain people (no workers under the age of 18).32 As the 1930s arrived and the Great Depression set in, the politics of the ILO became particularly tense. Germany walked away from the organization in 1933, while the Soviet Union, despite presenting itself as a country of workers, struggled with the ILO standards. When the US joined the ILO in 1934, a defining event occurred, as the foremost capitalist nation of the world accepted that labour standards had to be part of the bargain to maintain liberal capitalist economies. The following year, President Roosevelt passed the National Labour Relations Act of 1935, which gave American workers the right to collective bargaining through unions of their own choice. This was followed by the Fair Labour Standards Act of 1938, which set maximum hours, minimum wages, and prohibited child labour. Such standards were followed throughout the Western countries, especially in France, Canada, and New Zealand, as labour-​orientated governments came to power and extended their building of social democracies.33 As evidence of changing times, manufacturers began to settle and pay compensation to workers who had suffered because of occupational diseases, rather than fight them as they had done in the past. Most famously, female factory workers painting watch dials with radium (so that they would glow at night) required fine skills, to which the factory workers would keep licking their brushes to keep the tip fine. After the impacts upon workers of continually ingesting radium became obvious, the manufacturers settled and paid compensation (rather than risk the courts), while luminescent watches were thrown into the bin by anxious consumers.34

6.  Population Growth In 1900 there were about 1.6 billion people on the Earth and, by 1945, the number would reach 2.5 billion. About 10 per cent of these people were living in urban areas, with the US in 1920 and Japan in 1935 surpassing 50 per cent of their populations no longer in rural locations. New York reached 10 million citizens in 1930. For most of these people, famine was not a concern, as agricultural production expanded rapidly in the early decades of the twentieth century and the price of food fell. The exceptions to this where people did starve to death were in the Soviet Union (in 1921, perhaps 5 million dead and again in 1932, perhaps 7 million dead); India (in the Bengal 32  The 1921 Convention Concerning the Use of White Lead in Painting. This is reprinted in R Hudson (ed), International Legislation, Volume I: 1919–​1921 (Oceana 1950) 773. See M Taha, ‘Reading “Class” in International Law’ (2016) 25(5) Social and Legal Studies 567; A Endres, ‘International Economic Policy in the Interwar Years: The Special Contribution of ILO Economists’ (1996) 135(2) International Labour Review 207. 33 J Jensen, ‘The ILO and Inter-​American Social Security Standards, 1936-​1948’ (2011) 80 International Labour and Working Class History 215; Corn Response to Occupational Health Hazards (n 28) 10–​14; H Jacobson, ‘The USSR and the ILO’ (1960) 14(3) International Organisation 402. 34 K Moore, The Radium Girls (Sourcebooks 2017); R Smith, Slow Death by Rubber Duck (Counterpoint 2009) 19.

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in 1942–​44, perhaps 2 million dead) and China in 1921, 1928–​30, and 1941 in which droughts, crop failures, and civil and/​or national wars overlapped. In all of these instances, starvation was not attributable to absolute ecological shortages of food, but times of military conflict, and/​or the diversion of food for political reasons.35 When the matter of population at the first ever international gathering of twenty-​ seven countries in Geneva in 1927 did get examined, the dominant view was that population growth was not a problem. Although a few scientists were worried about the future, the trend was towards growing, not curtailing populations or empowering women. Within this bracket, Stalin and Hitler would both come to ban abortion and make access to contraceptives difficult, if not impossible. The only dictator who went further was Mussolini, who set targets for both national population growth (60 million by 1950) and family sizes (each with twelve children). Within such an emerging climate, the 1927 conference had steadfastly to avoid political questions and could get no further than establishing an International Union for the Scientific Study of Population (which continues today) to continue to study the topic, from a ‘scientific’ point of view.36

7. Habitat The primary loss of habitat in the decades following the First World War was due to deforestation. By this period, deforestation was foremost a concern in the ‘new’ countries of the world. That is, much of Europe and parts of Asia (such as Japan) had effectively removed most of their old growth forests and were now in the process of good management of what remained and reforestation. Other regions, which still had large forest stands had not yet reached this position. This was especially evident in the tropics (making up 70% of the global deforestation of just above 11 million hectares per annum by 1930) and the US. However, it was only with the latter that there was a real change of focus. In the American instance, after many of their forests had been cleared in earlier years for agriculture, now they were being pursued for logging and the value of timber for railways (with the latter responsible for about 25% of domestic demand). The result was a taking of about 108 million square metres, per annum, nearly two-​thirds of the world’s total output of wood in 1906. Before this demand was reduced by new products (steel, iron, and plastic) that replaced the need for wood in the coming decades, President Theodore Roosevelt decided to try to control consumption of American forests. This overlapped his formation of an overall

35  M Tauger, Agriculture in World History (Routledge 2011) 107–​110; C O’Grada, Famine:  A Short History (Princeton University Press 2009) 23–​25; A Graziosi, ‘The Great Famine of 1932–​ 1933:  Consequences and Implications’ (2001) 25(3) Harvard Ukrainian Studies 157–​65; S Bose, ‘Starvation Amidst Plenty’ (1990) 24 Modern Asian Studies 699–​714. 36  Anon, ‘The World Population Conference’ (1927) 120(3022) Nature 465; C Close, ‘The World Population Conference of 1927’ (1927) 70(5) The Geographical Journal: 470.

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environmental policy, of which forestry conservation was at the core. Roosevelt did this by turning over 19 million hectares of timberland into public domain, creating fifty wildlife refuges and five national parks, creating the United States Forest Service, and appointing Gifford Pinchot as the Chief Forester in America. Pinchot’s vision of conservation involved sustained production and an ethical vision of the importance of considering future generations. Pinchot explained in 1901 that: Conservation stands for the same kind of practical common-​sense management of this country by the people that every businessman stands for in the handling of his own business. It believes in prudence and foresight instead of reckless blindness; it holds that resources now public property should not become the basis for oppressive private monopoly, and it demands the complete and orderly development of all our resources for the benefit of all the people instead of the partial exploitation for the benefit of a few. It recognises fully the right of the present generation to use what it needs and all it needs of the natural resources now available, but it recognises equally our obligation so to use what we need that our descendants shall not be deprived of what they need.37

A few decades later, such considerations filtered through in Rome in 1926 with the first World Forestry Conference. Here, science and the creation of a ‘system that will maintain a certain balance between production and consumption’ whilst also paying attention to the ‘requirements of future generations’38 was emphasized. Although no binding agreement would emerge from this conference, it was indicative of the fact that the issue of the unsustainable use of forests had become a global concern—​ one year before the chainsaw was invented in 1927, and the technological ability to remove forests even faster, if desired, appeared.39 Of note, the thinking of this period, from Pinochet forwards, began to emphasize the importance of science to understand and rationally utilize natural resources. The extra difference now was that the value of science for conservation began to become a regional, if not international, task. This first became apparent with the formation of the International Council for the Exploration of the Sea (in 1902), and later the International Council of Scientific Unions (ICSU) (in 1931). These organizations were built on the principle that science, especially cooperative science, was the key to creating rational responses to environmental problems.40

37  G Pinchot, The Fight for Conservation (Harcourt 1901) 79–​81; B Redekop, ‘Theodore Roosevelt’s Conservation Leadership’ (2016) 12(2) Leadership 159; R Judd, ‘Natural History and the Beginnings of Forest Conservation in America’ (2006) 11(1) Environmental History 8; Williams, Deforesting the Earth (n 25) 363. 38  As noted in Charnovitz, ‘Two Centuries of Participation’ (n 12) 183, 239. 39 Josephson, An Environmental History of Russia (n 23) 37, 58; Williams, Deforesting the Earth (n 25) 266, 272, 275, 348, 372, 395. 40 E Castilla, ‘The Institutional Production of Science in the 20th Century’ (2009) 24(6) International Sociology 833; H Rozwadowski, ‘Internationalism, Environmental Necessity and National Interest: Marine Science’ (2004) 42(2) Minerva 127; M Peters, ‘The Rise of Global Science’ (2006) 41(2) European Journal of Education 225.

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8. Species Although there were no breakthroughs on habitat conservation at the international level in these decades at the beginning of the twentieth century, there were achievements with regard to species management. This started with the first regional conservation agreement being concluded for Africa, with their Convention of 1900 designed to ensure the Conservation of Various Species of Wild Animals. This regional effort was accepted as necessary because issues such as the trade in ivory (within the Congo alone, which had nearly quadrupled from around 100,000 kilograms of ivory for export each year in 1888, through to 379,000 kilograms for export in 1909), of which national laws alone could not stem what was beginning to appear as an unsustainable trade. Accordingly, the 1900 Convention attempted to bring uniform conservation standards to the continent of Africa. With regard to elephants, after long debate, the best that could be achieved was an attempt to protect immature individuals by banning the export of tusks that weighed less than five kilograms. However, this treaty never came into force, as Belgium (which oversaw the Congo) refused to ratify it.41 The Europeans also began to act regionally in their conservation efforts with their 1902 Convention on Birds Useful to Agriculture, from which insect-​eating birds (including their young and their nests) were protected. This stepping stone to what became modern international conservation law was replicated in the US with the Lacey Act of 1900 and Game and Bird Preserves Protection Act of 1906, both of which created regimes to protect and limit unrestricted taking and trade of valued wildlife within America.42 President Roosevelt followed such efforts with a meeting involving Mexico and Canada on shared conservation matters. From this meeting, it was agreed that a world conference ‘on the subject of world resources and their inventory, conservation and wise utilisation’43 would be scheduled. Although this conference never took place (as Roosevelt lost the election), some real international successes were being achieved in this period, such as the first transnational oceanic conservation agreement and the 1911 Convention for the Preservation and Protection of Fur Seals. This masterful treaty (with roots in an arbitration which went back to the 1880s) set down the precedents for many wildlife treaties that followed in the twentieth century for the sustainable use of wildlife populations. The key ideas were prohibition zones (where harvesting could not take place), guards around the stocks to be harvested, and the marking of legitimately taken stock (and any sealskins that were unmarked being unable to be sold in any of the territory of any of the contracting parties). Quotas were set for some of the signatories to the agreement, and the non-​ quota countries which had previously sealed in the region were given compensation 41  M Cioc, The Game of Conservation (Ohio University Press 2009) 28, 55. 42  See M Bowman, ‘The 1902 Convention for the Protection of Birds in Historical and Juridical Perspective’ (2014) 61(1) Ardeola 171. 43  The quote is in D Coyle, Conservation: An American Story of Conflict and Accomplishment (Rutgers University Press 1957) 68.

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(by those with the quota) in exchange for not harvesting. In addition, the needs of local indigenous communities, and a small allowance for them to continue to take a limited number of the protected species were recognized.44 President Woodrow Wilson, who had a patchy history with conservation (he allowed the building of the Hetch Hetchy dam in Yosemite national park) tried to improve his record by creating the American National Park Service and continuing the international work in this area, in 1916, by overseeing the conclusion of the Convention Between the United States and Great Britain (Canada) for Migratory Birds. This agreement, with the protection of listed endangered species and, critically—​their habitat—​set the precedent for the rest of the century in this area.45 Conservation in Africa began to become much more topical in the early decades of the twentieth century as it became increasingly clear that impressive species were being made extinct, such the Barbary lion around 1922, nearly fifty years after the Cape lion was removed from existence. Such events acted as catalysts for conservation concern, and the agreements that followed. Notable achievements involved the creation of the King Albert Park (later known as Virunga National Park) in 1925, after the king of the Belgians sought to ensure protection for the mountain gorillas living on the flanks of the Virunga volcanoes. Eight years later, following the International Congress for the Protection of Nature in 1931, attendees from ten governments and numerous NGOs updated the 1900 Conservation of Various Species of Wild Animals in Africa treaty with the (1933) Convention Relative to the Preservation of Fauna and Flora in Their Natural State. Again, the parties listed endangered species and goals to create and protect their habitats and restrict trade in what was endangered.46 The US introduced laws in 1930 prohibiting the importation of any endangered species (as listed overseas), without authorizing documentation from the foreign government. The Americans also created the first dedicated marine protected area in 1935 with the Fort Jefferson National Monument in Florida. Further conventions to protect migratory birds were agreed between the US and Mexico (in 1936), and the 1940 Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, with strong NGO support, was concluded a few years later. A  complementary regional conservation agreement for Asia failed to eventuate because the Second World War broke out.47 44  The Treaty for the Preservation and Protection of Fur Seals, 37 Stat 1542, Treaty Series No 564. See D Paterson, ‘Depletion and Diplomacy: The North Pacific Seal Hunt 1886-​1910’ (1977) 2 Research in Economic History 81, 111. The Bering Sea Fur Seals Arbitration can be found in C Robb (ed), International Environmental Law Reports: Early Decisions (Cambridge University Press 1999) 43–​89. 45  The 1916 Convention was reprinted in Ruster (ed), International Protection of the Environment (n 3) III: 1638. 46  See M Takang, ‘The Role of the African Convention on the Conservation of Nature and Natural Resources in the Harmonisation of Conservation Policy in Africa’. (2014) 17(4) Journal of International Wildlife Law and Policy 165. 47  The 1933, 1936, and 1940s Conventions are all reprinted in Ruster, International Protection of the Environment (n 3) III: 1693, 1691, 1729. P Kupper,‘Science and the National Parks: A Transatlantic Perspective on the Interwar Years’ (2009) 14(1) Environmental History 58; M Barrow, ‘Science, Sentiment and the Specter of Extinction’ (2002) 7(1) Environmental History 69.

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Notably in this period, although some hoped that the League of Nations could take a lead on a number of pressing conservation issues, the League members were often reticent to get involved. In 1922, the International Committee for Bird Preservation urged the League to update the 1902 bird protection treaty, but the League declined. The only conservation topic the League maintained a clear interest in was whaling, from which the 1931 Convention for the Regulation of Whaling appeared. This Convention evolved after six leading zoological organizations set up a council to advocate for the conservation of whales, in cooperation with Norwegian whaling companies, which called for international regulation. The problem before this point was that new technologies, from the harpoon to the factory ship, meant that whalers could hunt endlessly on the last remaining whale stocks, which were primarily around Antarctica to supply the market demands of whales for margarine, soap, and nitro-​glycerine (as used in dynamite). The demand was so great that an estimated 1.5 million whales would be taken from the region in the forthcoming decades. In an attempt to slow this process down, twenty-​two countries signed the 1931 Convention to seek to conserve whales in all international waters (not just Antarctica). To achieve this, they agreed to share information, make an allowance for indigenous communities, and restrict their hunting on certain (heavily endangered) species of whales, throughout all of the world’s oceans. Although this did not solve the problem, as key whaling nations exited the agreement and the quotas were still far too high, the template was there.48 The final area of species management to note of this period involved fisheries. The context to this period was that total marine catch of fish went from about 2 million to 13 million tons per annum between 1900 and 1945. New demands for more fish and new technologies meant that parts of the North Sea fisheries and the Maine lobster fishery collapsed in the 1920s. The League of Nations tried to codify rules for the territorial sea but failed. As nations could not agree on uniform conservation rules within their territorial zones, trying to establish similar goals with shared fisheries, unsurprisingly, also proved difficult. The result was that, in some shared spaces, such as those overlapping between Japan and China, overexploitation and national tensions over competition for shared fisheries stocks were the rule. However, in other parts of the world fisheries-​related conventions were agreed to achieve conservation and avoid unnecessary clashes in 1923 (for fisheries shared between the US and Canada, with agreed prohibited fishing seasons), as well as the Adriatic (in 1921), the Gulf of Finland (1922), and around the archipelago of Spitsbergen (1920).49

48  J Tonnessen, The History of Modern Whaling (University of California Press 1982) 401–​10; H Carey, ‘African Game Conservation Through the League of Nations’ (1926) 7(4) Journal of Mammalogy 310–​13. 49  The Convention for the Preservation of the Halibut Fisheries of the North Pacific Ocean can be found in XXXII LNTS 93. The other fisheries conventions are found in Ruster, International Protection of the Environment (n 3) 2546–​602, and 5155. Note also M Muscolino, ‘Fisheries Disputes between China and Japan, 1925–​1935’ (2008) 13 Environmental History 305.

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9.  Fresh Water Management Fresh water management made good progress in many countries in the early decades of the twentieth century. After establishing that sewage dumped in a river to the detriment of a down-​stream state could be actionable in common law within the US, President Roosevelt took one step further and created the Inland Waters Commission. This body took a comprehensive look at all of the fresh water ways in the US, with each one being subject to scientific study from its source to its mouth. This evolved into a policy in which all elements, from purity of the water, to transport and damming, were up for consideration. Realizing that many of the waterways went beyond the US, agreement was reached in 1906 with Mexico, and then 1909 with Canada, to manage, through Joint Commissions, their shared fresh water ways. A good example of this cooperation occurred in 1918 with the International Joint Commission between the United States and Canada, which recognized the problem of fresh water pollution by untreated sewage, as their foremost shared problem, to which they began to work towards solutions.50 These agreements were on a par with best practice in Europe, with the 1911 International Regulations Regarding the Use of International Watercourses for Purposes other than Navigation, the 1921 Convention on Navigable Waterways of International Concern, and the 1923 Convention Relating to the Development of Hydraulic Power. In all of these instances, it was becoming increasingly clear that traditional riparian rights were no longer absolute, and cooperation with shared waterways was the way of the future. The Donauversinkung case of 1927 between Prussia and Baden pointed strongly to the growing consensus that no state could unilaterally act to the detriment of others (in diverting waterways).51

10.  Air Pollution One area in particular where there was limited progress between 1900 and 1945 was with air pollution. Coal was being burnt everywhere. By 1913, the US was consuming 57 billion tons, 40 per cent of the world’s coal supply, while Britain was burning 32 billion tons per annum. Although the scientific link between human health and air pollution was growing, it was not definitive. This was unlike the more extreme episodic events such as in the Meuse Valley in Belgium in 1930, when sixty-​three

50  See V Grover, ‘Transboundary Water Management: Lessons Learnt from North America’ (2014) 10 Water International 1; R Mackay, ‘The International Joint Commission Between the United States and Canada’ (1928) 22(2) American Journal of International Law 292–​318. For the rule on inter-​state sewage see Missouri v Illinois 200 US 496 (1906). This is reprinted in Robb (ed), Early Decisions (n 44) 485–​99. 51 The Donauversinkung (Prussia v Baden) case is also reprinted in Robb (ed), Early Decisions (n 44) 444–​59. See also the Institute of International Law, 24 Annuaire de l’Institut de Droit International (20 April 1911).

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deaths were attributed to a single air pollution event. Accordingly, coal remained not only the lifeblood of many industries but also the cheapest energy source. This meant that, despite growing public disapproval of air pollution and increasing legal demands on burning efficiency and where industries could be zoned, progress outside of a few specific localities was slow. There was no decline in overall emissions of sulphur dioxide from Western developed countries between 1910 and 1945, with an average annual emission of 25 million tonnes per annum. If it was in a time of war, emissions spiked even higher. To make matters even more complicated, new sources of air pollution, notably automobiles, were also beginning to be noticed from the turn of the twentieth century. New York was the first city in the world to ban motorcars that produced too much exhaust smoke from public spaces, such as Central Park in the first decade. Similarly, in London in 1907 the police stopped petrol buses 8,500 times because of their appalling noise or noxious fumes. However, it would soon be discovered that, outside such tightly confined spaces, the pollution sources were multiplying far too quickly, and their diffusion of pollutants was too diffuse and mobile to contain.52 Despite this lack of success at the national level, pollution related to the constituents of fossil fuels did become an international topic of concern, which created mixed results. On one hand, the League of Nations tried to create a convention for oil pollution (to set legal limits on the discharge of excess oil or bilge into the ocean by flagged vessels), but failed.53 On the other hand, the resolution of an air pollution dispute in 1941 between the US and Canada provided the very foundation of international pollution law as it remains today. The importance of what happened here cannot be understated, as this was a time in which regional air pollution (especially in Europe) was becoming common. This happened as production continued to increase and smoke stacks grew higher, so as to distribute their emissions further away. However, protest was not common as unions, companies, and countries pursued profits, jobs, and security. These taller chimneys meant that, as the pollution got caught in the wind, no longer was the damage inflicted to both ecosystems and human lungs restricted to immediate localities. It was in this context that the dispute between Canada and the US arose in relation to a smelter in Trail, Canada, that was allowing emissions caused from the processing of lead and zinc to drift over the American border and damage crops and forests in the US. The brilliant principle that came out of the tribunal, building on some earlier disputes between states over cross-​border pollution in the US, was that: No state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the proper ties of the persons therein, 52  M Hamer, ‘All Aboard’ (2017) New Scientist 35; D Stradling, Smokestacks and Progressives (Johns Hopkins University Press 1999) 5, 10–​13, 31, 50–​52, 79, 91, 115, 134, 156; A Coghlan, ‘The Smog of War’ (1999) New Scientist 12; B Freese, Coal: A Human History (Arrow 2003) 155. 53  A-​K Wöbse, ‘Oil on Troubled Waters? Environmental Diplomacy in the League of Nations’ (2008) 32(4) Diplomatic History 519.

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when the case is of serious consequences and the injury is established by clear and convincing evidence.54

This principle, in an environmental context, was subsequently endorsed and clearly reiterated by the International Court of Justice at the end of the twentieth century, and then repeatedly in the twenty-​first.55

11.  New and Old Pollutants In some areas, governments reacted well to the chemical risks and the poisoning of humans as they understood them. In the US, this progress was reflected in their 1906 Pure Food and Drug Act, which was subsequently upgraded in 1938 with the Food, Drug and Cosmetic Act. These were essentially consumer safety laws, designed to stop the trade in adulterated and dangerous food stuffs. Similar concerns were evident with the Insecticide Act of 1910. Many of the most popular insecticides and/​or pesticides at this point were either arsenic and/​or lead-​based. Here, although evidence was emerging in both Europe and the US that showed that workers overly exposed to these chemicals could be poisoned, the focus was on the sale of substandard pesticide products (to protect consumers buying the pesticides) rather than prohibitions or safety levels (for the workers applying them). The law mandated the clear identification and handling requirements on what could be sold. Tolerance levels were also set for foods, from which they could be considered adulterated/​poisoned or not. Complimentary legislation, such as the 1927 Federal Caustic Poison Act, also set down the first attempts at defining hazardous goods in general (as opposed to specific pollutants) and the mandating of warning labels on such products.56 As governments struggled to deal with the poisons that had become popular and emerged out of the nineteenth century, a new generation of poisons and problems arose. This was clearly evident with some materials that had been minimally used in history, such as asbestos (a naturally occurring mineral that is valuable because of its strength and resistance to heat). Mining of asbestos went from 100,000 tons per annum in 1910 to over 800,000 tons in the 1970s. This growth was challenged 54  Trail Smelter Arbitration (United States v Canada) 1941, UN Rep, Int’l Arb. Awards 1905 (1941) 82. See also J Wirth, ‘The Trail Smelter Dispute’ (1996) 1(2) Environmental History 34; K Murray, ‘The Trail Smelter Case: International Air Pollution in the Columbia Valley’ (1972) 15 British Columbia Studies 68; D Dinwoodie, ‘The Politics of International Pollution Control: The Trail Smelter Case’ (1972) 27 International Journal 219. The earlier case was Georgia v Tennessee Copper Company. This 1915 case is reprinted in Robb (ed), Early Decisions (n 44) 514–​23. 55 See Certain Activities Carried Out By Nicaragua in the Border Area [2015] ICJ Rep100–​105; Pulp Mills on the River Uruguay (Argentina v Uruguay) [2010] ICJ Rep 55–​56; Legality of the Threat or Use of Nuclear Weapons Advisory Opinion [1996] ICJ Rep 241–​42, para 29. 56  The 1927 Federal Caustic Poison Act, defined the substances it was meant to cover as ‘dangerous, caustic or corrosive substance’ by explicitly identifying 8 different acids, two hydroxides, silver nitrate, and ammonia. See Section 2 of the 1927 Federal Caustic Poison Act. 44 Stat. 1406 (1925–​1927). See also J Parascandola, King of Poisons: A History of Arsenic (Potomac 2012) 126–​29; C Colten, The Road to Love Canal: Managing Industrial Waste Before the EPA (University Press 1996) 26.

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(but not dented) by the science that began to emerge from 1927, that inhalation of asbestos dust could result in the development of a serious type of fibrosis of the lungs that would go on to kill tens of thousands of workers.57 New problems also emerged as science, technology, and chemistry were evolving at a remarkable pace. Some of these developments, such as television (in 1926) would radically change the world socially, while others, would radically change the world environmentally, but the inventors did not know it. Polychlorinated biphenyls (PCBs), although first synthesized in 1881, went into industrial production in 1929 (from which an estimated 1.3 million tons would be created over the twentieth century) after Theodore Swann reinvented the ‘magic fluid’. Unbeknown to the manufacturers of these very stable liquids of low electrical connectivity and low vapour pressure (as used in transformers, large capacitors, hydraulic systems, lubrication, and plasticizers), these chemicals would bio-​accumulate and poison both people and animals in generations to come.58 Freon, Polystyrene, Neoprene, and Teflon also rolled out of the chemicals industry the 1930s, as did the original chlorofluorocarbon, which would revolutionize refrigeration (and damage the ozone layer) after Thomas Midgley inhaled the vapours from a cup of clear liquid (of what appeared as a non-​toxic, non-​flammable alternative coolant of synthesized fluorine, carbon, and chlorine), to the amazement of the press. The same individual, a one-​man environmental disaster, also, added tri-​alkyl-​lead, tetra-​alkyl-​lead and tetra-​ethyl lead to petrol, to find an effective fuel additive to reduce the ‘knocking’ that limited engine compression and enhanced fuel efficiency (thus making high compression auto and aircraft engines possible) but would end up damaging tens of thousands of humans who were overexposed in years to come.59 Paul Mueller, also working in the 1930s in a search for a chemical that would control moths that ate clothes, created (and later received a Nobel Prize for) Dichloro-​ diphenyl-​trichloroethane (DDT), an unusually persistent chemical that would not dissolve in water and had a long-​lasting impact upon multiple types of insects, and—​best of all—​was not acutely poisonous like predecessor insecticides based on arsenic. The only problem was that, at this point of history, understandings of toxicology, especially that which involved very subtle amounts of poison, from diverse

57  Note that asbestos can be in the form of amphibole (which includes amosite and crocidolite,) and serpentine (including chrysotile asbestos). The vast majority of asbestos traded is chrysotile. See K Takashi, ‘Asbestos:  Use, Bans and Disease Burdens’ (2014) 92(11) Bulletin of the World Health Organisation 790; L Braun, ‘Scientific Controversy and Asbestos: Making Disease Invisible’ (2003) 9(3) International Journal of Occupational and Environmental Health 194; J Corn, Response to Occupational Health Hazards: A Historical Perspective (Reinhold 1992) 89–​91. 58  T Dracos, Biocidal: Confronting the Legacy of PCBs (Beacon 2010) 1–​17, 14–​23; F Pearce, ‘Arctic Faces Toxic Time Bomb’ (2003) New Scientist 9; C Walker, Organic Pollutants (Taylor and Francis 2001) 121–​30. 59 F Pearce, ‘The One Man Environmental Disaster’ (2017) New Scientist 42; N Langston, ‘The Retreat from Precaution:  Regulating Diethylstilboestrol in the 1930s and 1940s’ (2008) 13 Environmental History 42; C Warren, Brush With Death:  A Social History of Lead Poisoning (Johns Hopkins University Press 2000) 116–​20; S Roan, Ozone Crisis (Wiley 1991) 33–​35. K Litfin, Ozone Discourses (Columbia University Press 1994) 58.

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sources and which were multigenerational in influence, were all barely above rudimentary and they could not see that humans could also be poisoned by the new wonder-​chemical, albeit, much more subtly.60 Despite new suspicions that some products were clearly hazardous to consumers or bystanders in times of operation, there was also very little understanding of how to deal with these products when they were waste. This lack of awareness was occurring at the same times as rates of general (non-​hazardous) waste were beginning to grow. This was not surprising as, at this time, general disposal practices of waste (in general) were barely above putting it all in a collected place, incinerating it, or dumping it into the ocean. Apart from the burst of recycling efforts in both World Wars (collecting about 25% in each of the waste streams of metal, rubber, and paper), when the conflicts stopped so too did the interest in recycling as at this point raw materials were cheaper from virgin sources, and the economic costs of dumping waste were very low as there were only rudimentary disposal standards for both consumers and companies. For example, in the US in 1936, chemical companies dumped 80 to 85 per cent of their toxic wastes, untreated, into adjacent pits, ponds, and rivers.61 Where there was some progress was in dealing with human waste. The progress was in dealing with the problem that was now being exited from large cities via sewage systems—​but disposed of elsewhere, often at great environmental cost. For example, by the turn of the twentieth century, the sewers of London were flushing 150 million gallons of collected—​but untreated—sewage per day, into the Thames. This volume of sewage (in addition to other industrial pollutants), constituted roughly one-​sixth of the flow of the river. Alternatively, the waste was taken to the ocean, and dumped either in a raw or partly dried form. This problem was only solved after the First World War, when technical answers were found to treat the sewage first, thus making it much safer to dispose of. This was done by two steps. First, by removing settable organic solids by sedimentation and the removal of materials that float by skimming and, then secondary treatment to remove the dissolved and non-​settling organic solids from the primary effluent by using microbial populations. The treated waste could then be used as fertilizer or disposed of in locations where it would not hurt the natural environment. Sewage treatment plants then proliferated quickly from the 1920s in Britain, the colonies, and Europe. Moscow built treatment plants from the 1930s and Washington, DC acquired its first sewage treatment plant in 1934. Other cities followed suit, such as with Tokyo’s treatment plant being built directly after the war in 1945.62 60  D Kinkela, DDT and the American Century: Global Health, Environmental Politics and the Pesticide that Changed the World (North Carolina University Press 2011) 2–​11; D Roberts and others, The Excellent Powder: DDT’s Political and Scientific History (Dogear 2010) 6–​9. 61  E Matthew, ‘Aluminium and the Environmental History of the Second World War’ (2011) 16(1) Environmental History 69. H Rogers, Gone Tomorrow: The Hidden Life of Garbage (Norton 2005) 134–​35. S Strasser, Waste and Want: A Social History of Trash (Holt 1999) 13; W Rathje Rubbish: The Archaeology of Garbage (HarperCollins 1992) 103–​05; J Tarr, ‘Historical Perspectives on Hazardous Wastes in the United States’ (1985) 3 Waste Management & Research 95. 62  J Benidickson, The Culture of Flushing: A Social and Legal History of Sewage (UBC Press 2007) 110, 118–​19, 219–​23. Colten, The Road to Love Canal (n 56) 76. T Wastkerm, ‘Ocean Dumping Under the London Dumping Convention in the United States’ (1981) 10(6) Chemosphere 659.

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12. Desertification Another area in which there was environmental progress was in learning how to deal with desertification. This term, which would later be coined in 1949 by the French forester Aubreville, referred to a sequence in which the processes by which fertile land became infertile, as a result of drought, water and wind erosion, salinization, soil compaction and nutrient loss, deforestation, and/​or inappropriate agriculture. In the case of the United Sates, the problem was known as the ‘Dust Bowl’. The ‘Dust Bowl’ was the name given to the region around the Great Plains that was ecologically devastated in the 1930s. The 100,000,000 acres (400,000 square kilometres), including sections of Oklahoma, Texas, Kansas, Colorado, and New Mexico had been in the process of expanding and mechanizing their agricultural enterprises, converting and deep ploughing for new commodities, as opposed to grazing livestock and leaving in place the traditional grasses. The ecological downfall came with the drought (from 1934 to 1937), which dried out the top soil. As this was already weak owing to crop and production changes, it became unanchored, which high winds then blew the fertile soil away (up to 75% in some places). This not only stripped the valuable part of the pasture, but the recurrent storms made many areas unsustainable, driving away up to 60 per cent of the population of the region, some 2.5 million people, most of whom travelled west.63 The response of President Roosevelt and his New Deal to this situation was multifaceted. The problem of overproduction of food (which was also helping to depress prices) was controlled with the Agricultural Adjustment Act. This paid farmers subsidies not to plant their land with overproduced commodities (corn, wheat, rice, cotton, and tobacco) and to kill off excess livestock. Its purpose was to reduce surplus and therefore increase the value of agricultural produce. These payments were the first large-​scale farm subsidies in US agriculture and they remained the basis of farm policies for decades afterwards. Slowing output was matched by sustainability measures, as found with the creation of the Soil Conservation Service in 1935. At the local level, farmers were instructed how to plant trees and create shelter belts with more than 2 million acres of forest planted by the newly formed Civilian Conservation Corps, which employed nearly 400,000 people, to leave certain areas fallow, and to plough to retain rainwater. At the macro level, the government purchased 11.3 million acres of sub-​marginal land (to keep it out of production). Financial assistance was also given to farmers and their workers with the Soil Conservation and Domestic Allotment Act of 1936. The end result was that, by 1938, following the end of the drought, the desertification process had largely been defeated, as the amount of blowing soil had been reduced by 65 per cent, although 63 G Sterk, ‘Desertification:  History, Causes and Options for Its Control’ (2016) 27(8) Land Degradation and Development 1783; R Hornbeck, ‘The Enduring Impact of the American Dust Bowl: Short and Long Run Adjustments to the Environmental Catastrophe’ (2012) 102(4) American Economic Review 1477; K Sylvester, ‘Revising the Dust Bowl’ (2012) 17 Environmental History 603.

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in the worst eroded areas, less than 25 per cent of the original position ever recovered and the economic value of those lands which were now unproductive, fell.64

13. Conclusion The first half of the twentieth century was a very difficult time for humanity. In some regards, the advance of the actors, be they NGOs, the scientific community, or the business community (which now displayed that it could be a force for good or bad) were all important. Apart from the two global conflicts, overall, nations struggled with all the environmental, social, and economic sides of sustainable development and, at the end of the period, progress was good in one area (social), negative in another (economic), and almost neutral in the other (the environmental field), with some wins in the areas of conservation but losses with many parts of pollution. Following the First World War, there was a genuine optimism that progress was about to restart, although as it turned out, that only eventuated in the area of workers’ rights and the achievements of the ILO. This voice of workers at the global level created the first international laws on chemical pollution, owing to the threat that some of the popular industrial chemicals were causing the workers who had to labour them. Such improvements were supplemented by the progress for the working class in both Russia (albeit at huge costs to liberty) and in the US, after the Depression. The further advances in the welfare state in most Western countries solidified this progress. Economically, the era went through ups (before and immediately after the First World War) and then unprecedented doldrums. The Great Depression not only saw the melt-​down of many industrial economies, but it also signalled an end to any free-​ trade advocacy (which only started to resurface before the Second World War), the creation of large-​scale sovereign debt, and the casting adrift of the developed from the developing world. In environmental terms, as human population went from 1 billion to 2.5 billion, famine struck, but only in relation to war and conflict. Population growth was seen as a good, not a negative, thing, to which governments encouraged the creation of more, not less, people. Habitat destruction, especially in terms of forests began to change, as in these decades, the tropics, not the temperate areas, began to become the dominant areas for deforestation. Indeed, in the temperate and typically developed countries, forest conservation and management became the order of the day. In some instances, such as with desertification, a remarkable achievement was recorded in the US, where it was shown that good planning and controlling production could defeat human-​made events that, when overlapping with drought, could otherwise be environmental disasters.

64  C Cordova, ‘The 1930s Dustbowl: Geo-​archaeological Lessons from a 20th Century Environmental Crisis’ (2015) 25(10) The Holocene 1707; Tauger, Agriculture in World History (n 35) 113–​15, 132–​33.

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Species management, also in this era, started to make good progress in terms of both regional conservation treaties and species specific arrangements, ranging from whales, to seals, to fish, and birds. Although each of these treaties was limited in what it achieved, the foundations of international wildlife, in terms of focusing on endangered species, habitat protection, and exceptions in some instances for indigenous communities, were entrenched. Conservation rules for fresh water pollution on the need to cooperate looked generally promising (especially once an understanding of how to treat sewage developed), as did rulings on the obligation of states’ not to allow serious air pollution of each other. In reality, despite the importance of these precedents, these were periods of growing air pollution at the local, national, and regional levels, as the air polluting fuel (coal) was cheap, and the economic benefits of the growth were desired by all. In other instances, with the new generation of pollutants that would go on to damage future generations, such as lead, persistent organic pollutants, PCBs, and asbestos, the risks were either unknown or discounted. The cumulative result was that, whilst there was progress on conservation matters, on questions of pollution the trajectory was clearly going in the wrong direction.

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5 Between the Second World War and 1970 1. Introduction The twenty-​five years between 1945 and 1970 saw unprecedented economic and social prosperity across the world. Although there were still large gaps, progress in the Western, communist, and developing world in these areas was the rule, not the exception. Apart from the ideological chasm, the differences that appeared were in how the Western world was much more focused on international trade and exchange, while the communist and developing world was more inward focused. The tolerance of the communist and developing world to incur environmental damage, compared to the Western world was also a defining issue, with the latter seeing the rise of environmentalism as a strong element in their cultures from the 1960s onwards. The rise of environmentalism was in large part attributable to unprecedented environmental problems beginning to appear. Air pollution, chemical pollution, ocean pollution, and waste disposal all began to evolve in both scale and the constituents of their impact, and all pointed to very unsustainable trajectories. Habitat and species loss also continued to expand in this epoch, with the exception being that the first clear approaches on starting to deal with some aspects of these problems (as well as air and fresh water pollution) at both the national, regional, and sometimes, the international level, began to emerge.

2.  Economic Growth The economy of the United States (US) grew by more than 50 per cent in real terms between 1939 and 1945. For the twenty-​five years following the Second World War, Americans achieved a level of prosperity—​a ‘golden era’—​that they had never known before. Affluence moved the US onto a new trajectory, where consumption fuelled growth, defined identities, and shaped public and private life. The economist John Kenneth Galbraith captured the spirit of the era in the title of his 1958 book, The Affluent Society. Annual economic growth averaged 3.9 per cent between 1950 and 1973, far outstripping the historical averages. Inflation was low and unemployment fell to 4.5 per cent. Productivity rose everywhere, from agriculture (which saw farm income triple between 1940 and 1960) to industry (with the inflation-​adjusted hourly wage for factory workers doubling between 1945 and 1965).

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The flush of money coincided with unprecedented consumerism, as everything from plastic to fast food (the first McDonalds opened in 1955) to automobiles (6 million vehicles by 1960) exponentially multiplied. Part of this growth included the expansion of transnational corporations, with firms such Ford and General Motors through to IBM and Coca Cola dominating the period. Together, such American-​based transnationals went from over US$2 billion in foreign investment in friendly Western countries in 1950 to US$40 billion by 1970.1 This success was replicated elsewhere in the pro-​Western liberal economies. Western Europe saw per capita output double between 1948 and 1964, and then kept growing with automobiles in Europe going from 6 million to 60 million between 1950 and 1970. Japan went from being effectively destroyed in 1945 to a fifty-​fold economic growth by 1970, to represent about 10 per cent of the global economy, as brands like Sony, Honda, and Toyota began to forge international dominance. At the domestic level, in 1950 almost no households in Japan had televisions, washing machines, or refrigerators but, by 1970, 90 per cent of Japanese families had all three.2 The closest thing to a collective vision of all the liberal democracies was set out by the Organisation for Economic Cooperation and Development (OECD). In 1960, it was agreed that this body would seek to develop policies designed to ‘achieve the highest sustainable economic growth and employment and a rising standard of living in Member countries, while maintaining financial stability, and thus to contribute to the development of the world economy’.3

3.  Social Context Economic growth in the Western world was buttressed by a strong social context as social welfare became a fully developed policy in Western Europe, with Britain at the forefront after her post-​war Labour government nationalized industries and created the National Health Service, to provide free health care to all citizens. This was all part of a pattern in most Western countries, which began to expand the amount of money they spent on social welfare, with public sector spending between 1950 and 1970 going from 27 per cent up to 43 per cent of GDP. The core of this spending, for social security to protect citizens against unemployment, sickness, disability, old age, and poverty went from 7 per cent up to 15 per cent of the GDP. Correspondingly, improvements in life expectancy (for males in the US, from 63 to 67 years, and females, from 68 to 75), as social democracy became a core platform of the post-​Second World War years.4 1 J McNeill, The Great Acceleration:  An Environmental History of the Anthropocene Since 1945 (Harvard University Press 2014) 130–​40, 187; P Stearns, Consumerism in World History (Routledge 2010) 148; S Freinkel, Plastic (Houghton 2011) 80–​84; Strasser, Waste and Want: A Social History of Trash (Holt 1999) 164–​68. 2  J Frieden, Global Capitalism: Its Rise and Fall in the Twentieth Century (Norton 2006) 278–​81, 298. 3  Convention for the Organisation of Economic Cooperation and Development 1960 art 1 http://​ www.oecd.org/​general/​conventionontheorganisationforeconomicco-​operationanddevelopment.htm. 4  A Sen, Development as Freedom (Anchor 1999) 50–​51.

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Despite such progress, poverty persisted in many areas, with as much as 25 per cent of the American population beneath the poverty line (defined in 1960 as an annual income for a family of four under US$3,000 per annum). Unwilling to accept such a situation, the optimism was such that the idea that poverty could be eradicated became a commonly accepted goal. President J F Kennedy subscribed to this view, promising a ‘war against poverty and degradation’ in the 1960 presidential election campaign. However, owing to his assassination, the issue was not advanced further until President Lyndon Johnson made the ‘war on poverty’ from 1964 onwards one of his main platforms. His efforts in 1964 were directed through amendments to the Social Security Act (creating Medicare and Medicaid), the Food Stamp Act, the Economic Opportunity Act. The Elementary and Secondary Education Act of 1965 gave enhanced funding to poor areas. With such a collection of legislation, Johnson stated, ‘Our aim is not only to relieve the symptom of poverty, but to cure it and, above all, to prevent it’.5 In the same period, the importance of the rights of labour were pursued at the domestic and international levels. That was especially evident with the International Labour Organization which, in the space of ten years between 1948 and 1958, managed to pass five (of its eight) core conventions. Whilst two of these (on equal remuneration in 1951, and discrimination in 1958) were relatively uncontroversial, three others caused great ideological debate. These were for the abolition of forced labour (1957), the right to organize and collective bargaining (1949) and the freedom of association and protection of the right to organize (1948). The passing of these last three conventions, especially labour freedom (which was also put into human rights covenants in the 1960s) was a direct challenge to communist authoritarianism, but fully compatible with democratic pluralism and social dialogue in the liberal and market-​orientated West.6

4. Trade In terms of economic debate, one of the other key divisions between the capitalist and communist worlds was the role that trade should play in international relations. 5  Johnson, as in P Furtado, ‘Make Poverty History’ (2005) 55(1) History Today 2. See also M Bailey, ‘How Johnson Fought the War on Poverty:  The Economics and Politics’ (2014) 74(2) Journal of Economic History: 351; J Stewart, ‘Ideology and Process in the Creation of the British National Health Service’ (2002) 14(2) Journal of Policy History 113; J Anderson, ‘Poverty, Unemployment and Economic Development’ (1967) 29(1) The Journal of Politics 70. 6  For when labour rights became human rights see the 1966 International Covenant on Civil and Political Rights and the International Covenant on Economic, Cultural and Social Rights. Both declared as their first article that: ‘All peoples have the right . . . freely pursue their economic, social and cultural development’. Article 7 of the International Covenant on Economic, Cultural and Social Rights added ‘the right to work and basic working conditions, including the right to form trade unions; safe and healthy working conditions’ and ‘a decent standard of living for themselves and their families’. So too was the ‘right of everyone to social security, including social insurance’ in art 9. See also L Mechi, ‘Economic Regionalism and Social Stabilisation: The ILO and Western Europe in the Early Post War Years’ (2013) 22 The International History Review 1; G Potobsky, ‘Freedom of Association: The Impact of Convention Number 87’ (1998) 137(2) International Labour Review 195.

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Communist countries were not interested in free trade or significant trade with the West. They preferred to create an economic bloc with their Council for Mutual Economic Assistance, as established in 1949. However, this organization barely furthered economic integration, preferring to facilitate bilateral trade deals between the Soviets and Eastern European clients. The liberal economies of the West had an entirely different vision. They were guided by the famous economist Dennis Robertson, who in 1940 characterized trade as ‘the engine of growth’. Robertson’s thesis was correct, as the role of trade within the international GDP slowly started to grow from its 5 per cent threshold in 1950, expanding (in the West) at twice the rate of the growth of national economies. By 1970, international trade was two to three times more important to every OECD country than it had been in 1950. This was only achieved as a consequence of the initial tenacity of the US, with more than 1,000 bilateral meetings, and the conclusion of the General Agreement on Trade and Tariffs (GATT) in 1947. The underlying belief of the twenty-​three countries who signed the original GATT was (and is) that: ‘Trade and economic endeavour should be conducted with a view to raising standards of living . . . developing the full use of resources of the world and expanding the production and exchange of goods . . .’.7 To achieve this, they agreed to the principle of a ‘substantial reduction of tariffs and other trade barriers and the elimination of preferences, on a reciprocal and mutually advantageous basis’. The basic principles for free trade, such as the Most Favoured Nation principle, were then recorded, along with, inter alia, some general exceptions, which would only allow trade to be restricted if it was done on a non-​ discriminatory basis. From a social perspective, this included restrictions on the use of products made with prison labour; and from an environmental perspective, restrictions could be justified if necessary to protect human, animal or plant life, or health; or related to the conservation of exhaustible natural resources.8 It was envisaged at the time that an International Trade Organization (ITO) would supplement the oversight of the GATT. The ITO gave a strong social context to the GATT, emphasizing matters such as the importance of striving for full and productive employment (as an international, and not just domestic concern), as well as fair labour standards that had to ‘take fully into account the rights of workers under inter-​governmental declarations, conventions and agreements’. It was added that ‘unfair labour conditions, particularly in production for export, create difficulties in international trade’.9 The ITO Charter also contained provisions for non-​governmental organization (NGO) involvement (primarily intended to be commercial organizations or unions). However, as it turned out, the ITO never evolved and the hope that fair labour conditions and influence of NGOs would be read into the only remaining document on free trade on the table—​the GATT—​disappeared, as a Republican victory in Congress turned away from such considerations.10 7  General Agreement on Trade and Tariffs preamble, 55 UNTS 187. 8  See sub-​sections (b), (f ), and (g) of art XX. 9  Havana Charter Art 7 of the https://​www.wto.org/​english/​docs_​e/​legal_​e/​havana_​e.pdf. 10  R Toye, ‘Developing Multilateralism: The Havana Charter and the Fight for the International Trade Organisation’ (2003) 25(2) The International History Review 282; S Charnovitz, ‘The Influence of

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Although the ITO failed to emerge, the GATT was accepted and sailed alone. This turned the GATT into a de facto international organization through which international governmental cooperation on trade matters was channelled. This channelling occurred with six trade rounds between 1947 and 1970, in which tariffs, largely on industrial goods, were progressively reduced between the signatories. The Kennedy Round of tariff reductions that ended in 1967 reduced average tariffs on non-​agricultural goods to below 9 per cent. Agriculture was largely outside of the discussions, especially for countries in times of food shortages. Many countries took this exclusion of agriculture from trade liberalization debates and then mixed it with other domestic concerns. This suited the US to increase and substantially expand farm price supports in the 1950s, and the Europeans to create a common agricultural policy, which set limits on production but guaranteed price and import restrictions.11

5.  International Development It was intended that the affluent way of life within liberal democracies with market economies would also be shared with the rest of the world. This vision began when President Roosevelt sketched out the ‘four freedoms’ (of speech and worship, and from fear and want), which he articulated in 1941 as part of the war aims of the US. The idea of ‘freedom from want’, for all humans, became part of the thinking in the formation of the United Nations (UN). A shadow of the idea appeared in Article 1 of the United Nations Charter, which explained that the purpose of the UN was not only to maintain peace, but also, inter alia, to ‘achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character’. Chapter IX of the Charter then set about establishing the machinery by which ‘higher standards of living, full employment, and conditions of economic and social progress and development’12 could be achieved. Although the Soviet Union and those in its communist orbit abstained, Article 25 of the 1948 Universal Declaration of Human Rights added to this thinking. It proclaimed: Everyone has the right to a standard of living adequate for the health and well-​being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old-​age, or other lack of livelihood in circumstances beyond his control.13 International Labour Standards on the World Trading Regime: An Historical Overview’ (1987) 126(5) International Labour Review 565, 572–​75. 11  See the GATT art XI (2)(a) for the point about food shortages. See also M Lynden, The Growth and Structure of International Trade Since the Second World War (Wheatsheaf 1985) 11–​34; C Maier, ‘The Foundation of American International Economic Policy After WWII’ (1977) 31(4) International Organisation 607. 12  Charter of the United Nations (1945) art 55, BH180.txt. 13  Universal Declaration of Human Rights (1948) Proclaimed by UNGA Res 217 (III) of 10 December 1948; UN Gen Ass Off Rec 3rd Sess, Resolutions (A/​810) 71, art 25. For comment see J Morsink, ‘World War Two and the Universal Declaration’ (1993) 15(2) Human Rights Quarterly 357; J

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The UN was then supplemented with a number of bodies designed to help move towards such goals. For example, the Food and Agricultural Organization was created to ‘[c]‌ontribut[e] towards an expanding world economy and ensuring humanity’s freedom from hunger’.14 Other organizations including the International Agency for Atomic Energy were created to ‘accelerate and enlarge the contribution of [non-​military] atomic energy to peace, health and prosperity throughout the world’.15 The International Monetary Fund was formed to assist its members who ‘encounter balance of payment difficulties’ and to promote a ‘liberal regime of international payments’.16 The purpose of the World Bank was to help rebuild the countries destroyed by the Second World War, and also ‘the encouragement of the development of productive facilities and resources in less developed countries . . . thereby assisting in raising productivity, the standard of living and conditions of labour in their territories’.17 Supplementary organizations such as the International Finance Corporation had similar goals, inter alia, to ‘encourag[e] the growth of productive private enterprise in member countries, particularly in the less developed areas’,18 as did the International Development Association, seeking to ‘promote economic development, increase productivity and thus raise standards of living in the less-​developed areas of the world . . .’.19 In the instances of the UN structure involving the lending of money, such as with the World Bank and the International Monetary Fund, their control was (and is) determined by the amount of resources provided, which allocates voting power. They are not single country, single vote entities (such as the FAO). This meant (and means) that, although the World Bank is meant to be strictly neutral on political matters, the US, in addition to providing them with their Washington headquarters, has the largest influence.20 Burgers, ‘The Road to San Francisco: The Revival of the Human Rights Idea in the Twentieth Century’ (1992) 14 Human Rights Quarterly 447. 14  The preamble of the FAO Constitution, as reprinted in FAO, Basic Texts (FAO 2013) I: 3. 15 Statute of the International Agency for Atomic Energy art II:  https://​www.iaea.org/​about/​ statute#a1-​2. 16  See Articles of Agreement of the International Monetary Fund arts I, VI, VIII, and XIV, 60 Stat 1401. TIAS No 1501; 2 UNTS 39 (1947), amended 1969; 20 UST 2775; TIAS No 6748; 726. UNTS 266 (1976); 29 UST 2203; TIAS No 8939 (1978). 17  The first part of this quote is from s (i) of Article 1, and the second part, from s (ii). 18 International Financial Corporation art 1 http://www.ifc.org/wps/wcm/connect/1c95b500 484­cb68d9f3dbf5f4fc3f18b/IFC_Articles_of_Agreement.pdf?MOD=AJPERES. Also at http://siteresources.worldbank.org/BODINT/Resources/278027-1215526322295/5189430-1381418466421/ IFC_Articles_of_AgreementEnglish.pdf. 19 International Development Agency art 1 http://siteresources.worldbank.org/BODINT/ Resources/278027-1215526322295/IDAArticlesofAgreementEnglish.pdf 20  The ‘non-​political’ clause of the World Bank is found in article IV(10) of its articles of agreement, that the bank ‘shall not interfere in the political affairs of any member . . . only economic considerations shall be relevant to their decisions’. See W Easterly, The Tyranny of Experts (Basic 2013) 5, 110–​11, 115; J Hollyer, ‘Democracy and Transparency’ (2011) 73(4) The Journal of Politics 1191; H Milner, ‘Who Supports Global Economic Engagement?’ (2011) 65(1) International Organisation 37; R Foot, US Hegemony and International Organizations (Oxford University Press 2003); P Lindert ‘How Sovereign Debt Has Worked’ in J Sachs (ed), Developing Country Debt and Economic Performance (Chicago University Press, Chicago) 39–​106.

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Although part of the original purpose of the World Bank was to focus on the reconstruction of Europe, most of that was done with what was known as the Marshall Plan (European Recovery Programme). This was a type of forerunner to contemporary overseas development assistance (aid), albeit on a much more generous level.21 The Marshall Plan had its roots in the American Lend-​Lease programme of the Second World War, in which 17 per cent of the war effort of the US was diverted to allied countries in the form of everything from food to weapons. This was provided either interest free or at heavily discounted prices, such as at only 10 per cent of their market value. When the war ended, this was continued as the Marshall Plan in which over US$12 billion was spent between 1948 and 1952 to help rebuild countries in Western Europe which had seen their living and economic standards fall by up to four-​fifths over the period of the conflict. The goals were both humanitarian and political, in hoping to help those in need and also to prevent the spread of communism. Everything from cooperative union membership through to the spread of democracy, consumerism, and market economies was furthered. The largest recipient of the aid under the Marshall Plan was the United Kingdom (UK) (26%), followed by France (18%) and then West Germany (11%). The Soviet Union rejected any assistance, and forbade any of its allies from accepting the American money. A similar aid project was also carried out in Asia. Within Europe, much of the work was carried out by the Organisation for European Economic Cooperation, which was the forerunner to the OECD. The Marshall Plan was then dovetailed with an agreement in 1953 in which the debts owed by (West) Germany were reduced by what amounted to close to 90 per cent of its liabilities from before the war and debts attributable to war damage, thus allowing Germany to focus on reconstructing itself and its economy.22 With the reconstruction of Europe in hand, the World Bank turned its attention to the developing world. President Harry Truman, in his inaugural address in 1949, responded to what he saw as a world under the threat of communism, in which freedom and the newly minted human rights were under threat. His speech included ‘unfaltering support for the United Nations and related agencies’, world economic 21  Overseas development assistance (ODA) or ‘aid’ as it is commonly known is the transfer of resources on terms which are more generous or ‘softer’ than loans obtainable on the world’s capital markets. This usually involves loans with at least a 25% grant component. ODA may be bilateral (country to country) or multilateral (where one country gives money to an international institution to distribute) See W Hynes, The Evolution of Official Development Assistance: Achievements, Criticisms and a Way Forward (OECD Working Papers No 12 2013). 22  A Berle, ‘The Marshall Plan in the European Struggle’ (2015) 82(1) Social Research 199; S Amerian, ‘The Marshall Plan and American Department Stores’ (2015) 39(1) Diplomatic History 16; M Trachtenberg, ‘The Marshall Plan as Tragedy’ (2005) 7(1) Journal of Cold War Studies 135; M Parrish, ‘Lend-​Lease Aid to the USSR’ (2005) 19(10) World War II 70; C Maier, ‘The Marshall Plan and the Division of Europe’ (2005) 7(1) Journal of Cold War Studies 168; D Kunz, ‘The Marshall Plan Reconsidered: A Complex of Motives’ (1997) 76(3) Foreign Affairs 162; P Grose, ‘The Marshall Plan and its Legacy’ (1997) 76(3) Foreign Affairs 159; O Schreiber ‘The Tenth Anniversary of Lend-​Lease: How America Gave to Her Allies’ (1951) 23(3) The Australian Quarterly 64.

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recovery, and ‘a bold new program for making the benefits of our scientific advances and industrial progress available for the improvement and growth of underdeveloped areas’. This was necessary because: More than half the people of the world are living in conditions approaching misery. Their food is inadequate. They are victims of disease. Their economic life is primitive and stagnant. Their poverty is a handicap and a threat both to them and to more prosperous areas. For the first time in history, humanity possesses the knowledge and the skill to relieve the suffering of these people. Our aim should be to help the free peoples of the world, through their own efforts, to produce more food, more clothing, more materials for housing, and more mechanical power to lighten their burdens.23

With such wind in their sails, World Bank missions started moving out and covered eleven countries between 1949 and 1953. The return of the fourteen experts to Columbia, proscribed what became very common medicine for many countries that were mired in poverty, illiteracy, and low life expectancy. Thus, Our approach is comprehensive, for the causes and characteristics of economic underdevelopment-​poverty, ill health, ignorance, low productivity, and the like—​are all interrelated and mutually reinforcing. The chances of success will be greatly enhanced if the attack proceeds simultaneously on several fronts . . .  the vicious circle . . .  can only be broken seriously through a global re-​launching of the whole economy . . .24

Similarly, with Nigeria, the mission concluded that the entire country, from economy to social infrastructure, was broken. In all instances, the solution was to leapfrog the under-​developed world into developed world status, by replicating their projects, markets, and context. The broad goal, as the First United Nations Development Decade in 1960 proclaimed, was ‘to attain in each under-​developed country a substantial increase in growth . . . taking as the objective a minimum annual rate of growth of aggregate national income of 5% at the end of the decade . . . rapid industrialisation [is] an indispensable element and dynamic instrument . . . in their development process’.25 Large loans followed to help in the formation of income-​producing infrastructure especially that which was related to agriculture, transport, communication, and energy. By 1960, the World Bank was the single largest financier in the world in terms of road building, power plants, oil drilling, coal mining, and dam construction.26

23 A  copy of the speech is available from the Truman Library https://​www.trumanlibrary.org/​ whistlestop/​50yr_​archive/​inagural20jan1949.htm. See also Easterly, The Tyranny of Experts (n 20) 43–​ 44; and W Sachs, ‘On the Archaeology of the Development Idea’ (1990) 20 Ecologist 42. 24  International Bank for Reconstruction and Development, The Basis of a Development Program for Colombia (IBRD 1950) xv. See also Easterly, The Tyranny of Experts (n 20) 106–​07. 25  International Development Strategy for the First United Nations Development Decade (1960) UNGA Res 1710 (XVI). See also the UNGA Declaration on Social Progress and Development in 1969, UNGA Res 2542 (XXIV). 26  M Alacevich, ‘The World Bank and the Politics of Productivity’ (2011) 61(1) Journal of Global History 53, 58; D Kapur, The World Bank: Its First Half Century (Brookings 1997) I: 83; J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 323.

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6.  Development and the Developing World ‘Development’ was the way of the future for the developing world, and only rarely was the overall paradigm questioned. The only instance when this really occurred was in 1947 when Mahatma Gandhi, after guiding India to independence, debated with Jawaharlal Nehru, the first Prime Minister of India. The debate was about what type of development was most suitable for their country. Nehru, who came to rule a country with an average life expectancy of 32.5 years, wanted an independent, secular, democratic, modern and industrial, r​ epublic that was fuelled by strong economic growth, as the foremost method of reducing poverty. To achieve this, Nehru wanted rapid industrialization and mega projects such as large dams, steel plants, and mass machine-​making industries. Conversely, Gandhi sought a revitalization of manual labour within the village economy, overlapping with the decentralization of production and objectives of self-​sufficiency. Gandhi did not believe either the American or the Soviet model was appropriate for India. He argued that ‘[if ] India should ever take to industrialism after the manner of the West . . . it would strip the world bare like locusts’.27 Despite his fine advocacy, Gandhi did not persuade Nehru to change his mind. More-​often than not, the developing countries like India were sceptical of both the Americans and the Soviets, and sought to forge their own independent path from which the Non-​Aligned Movement emerged in 1961. Despite their professed neutrality, they tended to drift towards the Soviets and/​or Chinese models in most matters, both politically and economically. This was attributable to the large economic improvements that the communist giants were achieving, combined with what was seen as the courage in standing up to American imperialism and/​or former colonial masters. The fact that the Soviet economy was in 1960 seven times larger than it was thirty years earlier, and continued to grow owing to the discovery of enormous oil and natural gas deposits which generated huge revenues, was lost on few leaders of the developing world. In the case of the Soviet Union, extra admiration was attributable to the hope that as Nikita Khrushchev, and then Leonid Brezhnev, took over from Stalin, their ideology would not be so dogmatic. The new Soviet focus was upon ‘the intensification of production’, from which, for agriculture, Khrushchev raised state procurement prices by a factor of ten, enlarged farms to multi-​village scale and provided more machinery, supplies, and inputs. He also sought to improve the ‘qualitative factors of economic growth’, in that he realized that Soviet living standards had to be increased swiftly, with strong supplies of desirable consumer goods, with television 27  This quote of Gandhi is in McNeill, The Great Acceleration:  An Environmental History of the Anthropocene Since 1945 (n 1) 330. For a fuller discussion of this debate see C Bayly, ‘The Ends of Liberalism and the Political Thought of Nehru’s India’ (2015) 12(3) Modern Intellectual History 605; K Singh, ‘Nehru’s Model of Economic Growth and Globalisation of the Indian Economy’ (2012) 19(2) South Asian Survey 243; S Brazier, ‘The Economist’s Blind Eye: The Vital Argument Between Gandhi and Nehru’ (1992) 232 New Internationalist 15; J Torres, ‘The Ideological Component of Indian Development’ (1962) 72(2) Ethics 79.

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sets, refrigerators, and washing machines proliferating quickly through the 1960s and 1970s. This support for the production of consumer goods in the Soviet Union continued as left-​wing scholars in Western countries argued that consumerism was part of a dull, drugged, and monotonous existence that sucked the life out of citizenship.28 Admiration of communist China was also strong as, from 1949, when their Communist Party defeated Guomindang, to 1976 when Mao Zedong died, China experienced one of the most rapid sustained increases in life expectancy (from 32 to 65 years) of any population in global history. This was primarily the result of gains in school enrolment providing general education (with literacy going from 15% up to 90%), and public health campaigns which reduced or eliminated the transmission of several infectious diseases, including malaria, hookworm, cholera, smallpox, and plague. This was supplemented by work providing basic infrastructure, such as roads, power, drinking water, and latrines. These life-​changing improvements for most came at vast social costs to many Chinese citizens, as political repression, utopian urgency, and dogmatic uniformity meant that there was very little freedom of speech or individualism, and many cultural traditions were submerged. These social costs were either not known of or overlooked by many of the admirers of Mao’s achievements.29 The developing world, like the Soviets and their allies, largely stayed away from international trade negotiations, seeing the early decades of the GATT as being a club for wealthy Western countries. The views of the developing world had been shaped by the legacy of colonialism and unwanted dependency upon either their former colonial masters or the new superpowers. The goals of the developing world in trade debates were much more around self-​sufficiency for themselves, while securing advantageous and stable prices (as opposed to those that hit rock bottom in a flooded market in the 1930s) and regulated output in the commodity agreements (such as for sugar and tin, both in 1954, and coffee in 1962) in the developed world. Such goals, and the hope of ‘fair trade’ for developing countries were actively supported by a number of consumer groups in Europe from this period (and onwards).30 It was not until 1964 and the conclusion of the United Nations Conference on Trade and Development (UNCTAD), that 77 developing countries (the basis for the Group of 77/​G77) started to articulate a view on such trade-​related matters. Under the auspices of the UNCTAD (as opposed to GATT), they argued that ‘a new framework of international trade that is wholly consistent with the needs of accelerated development’31 was required. That new framework was unveiled in 1967, at

28  F Trentmann, The History of Consumption (Oxford University Press 2012) 8, 10–​11, 462–​65; M Tauger, Agriculture in World History (Routledge 2011) 142–​45. 29  K Babiarz, ‘An Exploration of China’s Mortality Decline Under Mao’ (2015) 69(1) Population Studies 39–​56. 30  J Scott, ‘Developing Countries in the ITO and GATT Negotiations’ (2010) 9(1) Journal of International Trade Law and Policy 5; A Macbean, ‘International Commodity Agreements: Shadow and Substance’ (1987) 15(5) World Development 575; F Trenman, ‘Before “Fair Trade”: Empire, Free Trade and the Moral Economies of Food in the Modern World’ (2007) 25 Environment and Planning D: Society and Space 1079. 31  Paragraph 2 of the 1964 Joint Declaration http://​www.g77.org/​doc/​Joint%20Declaration.html.

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which point they called for, amongst other things, more commodity agreements to the benefit of the developing world and for the developed world to allow them non-​ reciprocal export rights for manufactured goods. This approach was opposed to the reciprocal rights achieved by the developed world amongst themselves through the GATT Kennedy Round on such matters. Transnational corporations were also a target in the developing world. Communist revolutions in both the Soviet Union and China forced foreign enterprises out of their lands, of which many developing countries in the process of decolonization were inspired. These actions were enhanced when some transnational corporations, such as the Belgian entity L’union Meunière was implicated in 1961 in the assassination of Patrice Lumumba, the first democratically elected leader in the Congo, whose ardent anti-​colonialism and left-​wing orientation cost him his life.32 In the Middle East and Indonesia, there was outright nationalization of foreign owned oil fields, mines, and plantations. In some instances, organizations such as OPEC (the Organisation of Petroleum Exporting Countries) would be created by sovereign countries, and they would control the price of their product with the (seven) dominating transnational corporations in this area, rather than the other way around. By 1968, it was their policy that member governments be at the forefront of all operations involving hydrocarbon development, and if external enterprises were required to help, then the governments should strive to exercise ‘the greatest measure possible of participation and control’.33 Such actions meant that transnational enterprises in the petroleum business that were operating internationally were either nationalized or heavily regulated, forcing many of them to abandon parts of the developing world in search of ‘safe’ locations. Such actions reflected the views known as the Calvo Doctrine, named after the Argentine scholar, Carlos Calvo. His argument was that all states had the right to nationalize foreign commercial entities and pay compensation at their discretion and that all commercial disputes should be settled in the country in which the investment was located. Both developed countries and the transnational corporations disliked this idea. As tensions grew, new mechanisms were devised, trying to find a midway point between developing countries seeking full control over foreign corporations and those corporations seeking full control over their assets in the foreign lands that they operated. The result was investment guarantee agreements and investment protection agreements, which were either stand-​alone arrangements or incorporated into bilateral investment treaties (BITs). This meant that the capital-​ exporting developed countries could have a degree of protection from indiscriminate actions against their assets.

32  J Bhagwati, In Defence of Globalisation (Oxford University Press 2007) 168. 33  OPEC, ‘Declaratory Statement on Petroleum Policy’ (1968) 7(5) International Legal Materials 1183. See also T Luke, ‘Dependent Development and the Arab OPEC States’ (1983) 45(4) The Journal of Politics 979; A Chandler (ed), Leviathans: Multinational Corporations and the New Global History (Cambridge University Press 2005) 81, 88–​89.

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The first BIT was signed between Germany and Pakistan in 1959. By the mid-​ 1960s it was standard to agree that matters of dispute were best dealt with through neutral third parties (rather than state-​to-​state disputes), and they should be arbitrated rather than litigated. For this, the 1966 Convention on the Settlement of Investment Disputes Between States and Nationals of Other States (run through the International Centre for the Settlement of Investment Disputes, as part of the World Bank or, other recognized arbitration bodies) was created. In agreeing, developing countries maintained a few ‘safety valves’. These were, first, the exhaustion of local remedies, the use of domestic law of the host country as one of the governing laws, consent for arbitration on a case by case basis, and respect for national sovereignty and national security of the host country. Also, each country could agree what could go to arbitration. For example, China explained it would not submit disputes over the amount of compensation resulting from expropriation and nationalization; whilst Jamaica stated that disputes relating to minerals or natural resources were out of bounds for dispute resolution.34 In the developing world, nationalist manufacturers, small business owners, those seeking to take over the assets of foreign companies, professionals, labour unions, and intellectuals all shared these goals of self-​sufficiency, industrialization for developing countries, and tightly controlling foreign enterprises. Champions of open economies, the export farmers or the miners, if they had not been nationalized, were out of favour. Industry was heavily subsidized and conscious efforts to restrict foreign trade were made through a policy known as import-​substitution industrialization. This required high tariffs on manufactured goods, with in the early 1960s, Mexico reaching 74 per cent, Argentina 84 per cent, and Brazil 184 per cent. Virtually anything made in these countries was protected from foreign competition, with its prices being two to three times what it would cost in other world markets. These policies spurred industrial development, with countries such as Mexico quadrupling industrial production between 1950 and 1970, and Brazil increasing eightfold. Even countries like Nigeria managed to jump manufacturing from 3 per cent up to 11 per cent of GDP in the space of two decades.35 Other improvements in this period were also notable. One of the best examples of advance was with the Green Revolution. This was an offshoot from the overall second agricultural revolution of modern times, which involved mechanization, synthetic fertilizers, new hybrid high-​yielding varieties of rice and wheat and specialization, supplemented by enhanced uses of chemicals and water. The results in countries that could afford to adopt the new technologies and practices were remarkable. 34  P Chase, ‘TTIP, Investor State Dispute Settlement and the Rule of Law’ (2015) 14 European View 217; M Choi, ‘The Present and Future of the Investor-​State Dispute Settlement Paradigm’ (2007) 10(3) Journal of International Economic Law 725; F Francioni, ‘Compensation for Nationalisation of Foreign Property: The Borderlands Between Law and Equity’ (1975) 24 International and Comparative Law Quarterly 255; G White, Nationalisations of Foreign Property (Praeger 1961); W Dodge, ‘Investor State Dispute Settlement Between Developed Countries’ (2006) 39 Vanderbilt Journal of Transnational Law 1; K Vandevelde, ‘The Bilateral Investment Treaty Program of the United States’ (1988) 21 Cornell International Law Journal 205. 35 Frieden, Global Capitalism (n 2) 304–​06, 317.

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Before the revolution, per-​capita grain production in Asia was one-​quarter of what it was in the US. After the revolution, massive increases in agricultural output were achieved. Wheat production would nearly triple in output, maize more than double, and rice almost double over the following decades. Unsurprisingly, the uptake was enthusiastic, with the area planted in high-​yielding rice and wheat in the developing world increasing from 41,000 hectares in 1965 to 50.5 million hectares in 1970. With the new technologies, apart from clear social (with peasant farmers finding it hard to adapt) and environmental (in terms of the large-​scale use of fresh water and fertilizers) costs, a country like India ​which had serious food deficits in 1951, ​went to being food self-​sufficient within a few decades.36 Despite such jumps, by the end of the 1960s two problems were evident. First, although overall incomes were increasing in the developing world, often, these increases screened decreases for the poorest members of society on the one hand and the rise of the super wealthy, on the other. Secondly, economic self-​sufficiency was not possible. Imports were still required and their national economies were often costing more (especially with their subsidies) than they were generating. At the same time, owing to their high tariffs from foreign competition, they found their own goods difficult to export and sell. The political economy made change difficult, which many leaders in the developing world solved by devaluing their currencies and/​or borrowing money from overseas. With such deficits, the first major rescheduling of bilateral debt after the Second World War occurred between 1957 and 1969, following problems that a number of developing countries had repaying their loans. Conversely, other countries such as Japan, South Korea, and Taiwan had orientated themselves as large exporting countries. For example, Taiwan exported 50 per cent of everything it manufactured, whereas for Latin America the average was 3 per cent. These export-​led countries, in which private business was teamed up with government support for ‘priority sectors’, did not run into balance of payment difficulties.37 In the same period, as developing countries realized they still required help from the developing world, they called for expanded channels of international assistance (aid). As it was, aid during the 1950s and 1960s was primarily being directed at either former colonies and/​or ideological allies. The exception was with food aid, which although originally about removing agricultural surplus, evolved into the United Nations World Food Programme in 1961. Here, the initial politics of food aid were subsumed beneath much greater humanitarian and ethical goals. As food aid fell under a UN umbrella, members within the General Assembly began to take a strong interest in all other forms of assistance, for which the call emerged that developed countries should give 1 per cent of their GDP in assistance (this turned

36  J Harwood, ‘Has the Green Revolution Been a Cumulative Learning Process?’ (2013) 34(3) Third World Quarterly 397; M Mazoyer, A History of World Agriculture (Monthly Review Press 2006) 375–​79, 439–​45; V Shiva, The Violence of the Green Revolution (Zed 1989), 21–​23, 135, 147, 151; A Chakravarty, ‘The Green Revolution in India’ (1973) 63(3) The Annals of the Association of American Geographers 319. 37  D Rodrix, The Globalisation Paradox (Norton 2011) 145–​49.

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into 0.7% in 1967) to the poor countries. Although the developed world did not object to this target per se, they insisted that they would channel the amounts and directions of aid as they saw fit, without timetables or preconditions.38 The need for control over international assistance began as the age old problem of corruption (as in, typically, where incentives are given for private benefit to those in positions of public power, in exchange for favourable treatment in some specific area) began to be viewed not just as a domestic issue, but also an international one. This type of corruption was, from the 1960s forwards, linked to the failure of development. This failure was (and remains) one of lost taxes, distorted public revenues, distorted policy choices, and a loss of faith in governing institutions. Perhaps most notorious of all in this period was Francois ‘Papa Doc’ Duvalier, president of Haiti between 1957 and 1971, who directly rerouted millions of dollars in foreign aid into his personal bank account. His son, Jean-​Claude Duvalier, would follow in his father’s footsteps, going on to acquire somewhere between US$300 million and US$800 million, while his wife spent US$50,000 every month on flowers.39

7.  Population Growth As the world was evolving in social and economic terms, change in environmental terms was beginning to accelerate. With regard to the number of people on Earth, the total went from about 2.5 billion people in 1950 to 3.7 billion some twenty years later, as the population growth rate for the 1950s of 19 per cent per decade expanded to 22 per cent in the 1960s. In the same period, Mexico and the Soviet Union (joining England, the US, and Japan) recorded more than 50 per cent of their populations in urban areas. Although famines continued to be a large problem in this era, in both Biafra, Nigeria (at the end of the 1960s) and in China (between 1959 and 1961, when the Great Leap Forward killed between 16 and 45 million people

38  The 0.7% figure can be found in article C of the Charter of Algiers: Ministerial Declaration of 77 Developing Countries. Reproduced from UN Doc MM. 77/​7/​20. (30 October 1967). See generally A Reitkerk, ‘The Constructive Use of Abundance: The UN World Food Programme and the Evolution of the International Food Aid System During the Post War Decades’ (2016) 38(4) The International History Review 788; OECD, Measuring Aid: 50 Years of DAC Statistics, 1961–​2011 (OECD 2011) 3; S Ross, ‘The World Food Programme: A Case of Benign US Policy?’ (2007) 61(2) Australian Journal of International Affairs 267; J Grasso, ‘The Politics of Food Aid’ (2003) 14(4) Diplomacy and Statecraft 153; J Thérien, ‘Debating Foreign Aid’ (2002) 23(1) Third World Quarterly 449; W Gaud, ‘The Current Effect of the American Aid Program’ (1969) 384 The Annals of the American Academy of Political and Social Science 73; OECD, The Story of Official Development Assistance (OECD 1996) 14–​18; H Morgenthau, ‘Political Theory of Foreign Aid’ (1962) 56(2) The American Political Science Review 301. 39  For the impacts see P Sikka, ‘Tax Avoidance and Global Development’ (2005) 29(3) Accounting Forum 245; P Mauro, ‘Corruption and Growth’ (1995) 110(3) Quarterly Journal of Economics 681; C Brioschi, Corruption: A Short History (Brookings 2017) 1–​81. For the concern in the 1960s see J Scott, ‘The Analysis of Corruption in Developing Nations’ (1969) 11(2) Comparative Studies and History 315; J Nye, ‘Corruption and Political Development’ (1967) 56(2) American Political Science Review 417; D Bayley, ‘The Effects of Corruption in a Developing Nation’ (1966) 19(4) The Western Political Science Quarterly 719; M McMullan, ‘A Theory of Corruption’ (1961) 9(2) Sociological Review 181.

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through ideological drives for increased production and food self-​sufficiency), famine was not seen as a fault of overpopulation, but rather, war and/​or seriously dysfunctional governmental objectives.40 In 1954, as population growth was proceeding and shortly after the great famine in China, forty-​five countries came under the banner of the UN to discuss the topic of demography. However, countries got no further than discussing the issue in general academic terms and agreement on the need to collect and analyse statistics. Deeper discussion was stopped by both the Soviet Union and the Vatican, both expressing support for increases in population sizes and opposition to limitation methods (family planning was excluded from discussion as a result of opposition from Catholic countries), and discounting any critiques of limits between population growth and the environment as ‘new Malthusianism’.41 Although no recognition of concern about population growth could be found at the international level, in 1960, building on the earlier work of William Vogt’s Road to Survival, which foreshadowed the debate about population growth, TIME magazine recorded the 3 billion mark under the banner ‘The Population Explosion’. What generated even greater scholarly interest was not the total number of people now on the planet but the growth rate of 2.2 per cent per annum. However, again, when ninety countries of the international community reconvened in Belgrade in 1965 to look at the issue, although the science was stronger, there was no political consensus on whether rising population growth represented a potential problem for the future or not. The difference in 1965 was that the discussion of family planning (at the point when the level of contraceptive use in the developing countries of Asia, Latin America, and Africa represented about 9% of married couples of reproductive age) finally reached the international agenda—​but nothing was concluded.42 The reason why no international progress could be made on this issue was that, although some countries, such as India, put a birth rate target in their first five-​year plan in 1952, other countries viewed such suggestions as a Malthusian conspiracy. This was most evident in China where, despite the fact that its population had grown by 150 million people between 1900 and 1950, population growth was not seen as a problem to Mao, who repudiated economists’ warnings of the dangers of overpopulation. He exhorted the Chinese people to bear children so that, by sheer dint of numbers, they could increase production and withstand both Soviet and American threats. Contraception was discouraged and abortion forbidden by government policies from which the Chinese population grew from (excluding Taiwan) 583 million in 1953 to 800 million by 1969. The only other communist leader who 40  E Gooch, ‘Estimating the Long Term Impact of the Great Chinese Famine’ (2017) 89 World Development 140; X Meng, ‘The Institutional Cause of China’s Great Famine’ (2015) 82(4) The Review of Economic Studies 1569; V Smil, ‘China’s Great Famine: 40 Years Later’ (1999) 319 British Medical Journal 1619; C Moorhead, Dunant’s Dream: War, Switzerland and the History of the Red Cross (Carroll & Graf 1998) 622; A de Waal, Famine Crimes: Politics & the Disaster Relief Industry in Africa (African Rights and the International African Institute 1997) 76–​79; D Forsythe, The Humanitarians:  The International Committee of the Red Cross (Cambridge University Press 2005) 67–​68. 41  F Menzler, ‘The World Population Conference, Rome, 1954’ (1955) 81 Journal of International Affairs 186. 42  P Cox, ‘The World Population Conference, Belgrade, 1965’ (1966) 58 The Eugenics Review 7.

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pushed even harder in this area was Nicolae Ceausescu of Rumania. This man set a growth target in 1965 of 30 million Rumanians (by the year 2000), banned all forms of birth control including abortion, and subjected women of child-​bearing age to police surveillance to make sure they were not shirking their reproductive duties.43 While international attention was slow, domestic attention started to accelerate suddenly after Paul and Anne Ehrlich penned their influential book in 1968, The Population Bomb. This warned of mass starvation and social upheaval in the forthcoming decades, unless serious attempts were made to curtail the trends. Although these views caused controversy, they were not seen as radically impossible, and by the end of the decade it was being accepted at some global meetings such as the International Conference on Human Rights in Tehran that: ‘the present rapid rate of population growth in some areas of the world hampers the struggle against hunger and poverty . . .’.44 More forthrightly, in 1969 the Pearson Commission Partners in Development report recognized that: No other phenomenon casts a darker shadow over the prospects for international development than the staggering growth of population . . . It is clear that there can be no serious social or economic planning unless the ominous implications of uncontrolled population growth are understood and acted upon.45

Despite such concerns, the international community could get no further on the question of reproductive rights, other than concluding it was a basic human right to decide freely and responsibly on the number and spacing of their children, and a right to adequate education and information in this respect. Although the United Nations General Assembly could emphasise the importance of ‘the means necessary’ to enable such rights, any meaningful discussions about family planning were not be found in the international discourse.46

8.  Habitat Loss The UN failed to provide international leadership on environmental matters in the early decades. In large part, this was because the UN did not have an environment division when it was created. Although the General Assembly endorsed the idea early that environmental and economic objectives should go hand-​in-​hand, in 43  J Sachs, The End of Poverty (Penguin 2015) 174–​75; McNeill, The Great Acceleration (n 1) 154–​65; J Shapiro, Mao’s War Against Nature (Cambridge University Press 2001) 31, 40–​46; T Keil, ‘Fertility Policy in Ceausescu’s Romania’ (1999) 24(4) Journal of Family History 478. 44  International Conference on Human Rights para 1, A/​CONF/​32/​41 (22 April 1968). 45 Pearson Commission, Partners in Development (Pall Mall Press, 1969) 72; M Frey ‘Neo-​ Malthusianism and Development:  Shifting Interpretations of a Contested Paradigm’ (2011) 6(1) Journal of Global History 75; T Robertson, ‘The Birth of Global Ecology’ (2012) 17(2) Environmental History 336; K Schlosser, ‘Malthus at Mid-​Century: Neo Malthusianism at Bio-​Political Governance in the Post WWII United States’ (2009) 16(4) Cultural Geographies 465. 46  See UNGA Resolution 2542, UN Doc A/​7630. Declaration on Social Progress and Development. See also Resolution XVIII of the Human Rights Aspects of Family Planning. This in the Final Act of the International Conference on Human Rights. UN Doc A/​CONF 32/​41.

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general it fell to individual units of the UN to deal with matters as they appeared. This was especially so since the early attempts at cooperation in this region (such as the 1951 United Nations Conference on Resources) were completely rudderless.47 With forestry, the practice of the Food and Agricultural Organization and individual countries was about the use of forests for wood, fuel, paper, and other products, or the simple clearing of land for agriculture. Although the conservation of natural resources was part of the FAO’s goals with regard to national and international action, there was little consideration in the early decades about the ecological, cultural, or ethical value of forests. They were only valued for the wood they produced. Although the wider discussions were blossoming in the Western world, elsewhere, and especially in the developing and Soviet worlds, the quests for economic growth through wood for export or agricultural clearances were eclipsing all other concerns. Gasoline-​powered motors and their widespread use after 1945 in trucks, tractors, and chainsaws made the speed by which forests could be removed faster than ever before. Unbeknown to all, the deforestation rate at this point was not just about the loss of habitat, but that it was also now contributing about double the amount of carbon into the atmosphere than was being created by the burning of fossil fuels alone.48 In the Soviet Union, deforestation went from 214 million cubic meters of lumber in 1948 to 400 million cubic meters per annum in the 1970s (although one-​third felled was either lost or wasted). Similarly, in China, many of the remaining forests were cut to provide fuel for the furnaces with their percentage of land with forests upon them falling from about from 13 per cent in 1949 to less than 8 per cent by 1969. In global terms, between 1950 and 1979, 318 million hectares of forest were lost in the tropical world (and only 18 million hectares in the temperate world), with the tropics hitting a rate of deforestation of 9.6 per cent between 1960 and 1970. Although much of this was being cleared for agriculture, a considerable amount after 1960 was also for export, with most of this going to Japan, although Taiwan and South Korea soon joined the demand, as did China in the late 1970s, as they started to reforest their own denuded landscapes, replacing their sources of timber to that provided from offshore, and especially the tropics.49 Despite the lack of consideration for the protection of forest habitats it was from this period that some of the first thinking of protected areas of an international value appeared. The stepping stone was the Antarctic Treaty of 1959. This treaty, in part, plugged the gap in the international system of the lack of international scientific cooperation on shared matters of interest. This gap became apparent following 47  The UNGA resolution is 1831 XVII 1962 UNGA Official Records, 17th Session; Supplement No 17 P 21. For the 1951 gathering see R Gardner, ‘The Role of the UN in Environmental Problems’ (1972) 26(2) International Organisation 237; C Goodrich, ‘The United Nations Conference on Resources’ (1951) 5(1) International Organisation 48. 48 IPCC, Climate Change 2001: The Scientific Basis (Cambridge University Press) 12; J Gribbin, ‘Woodman, Spare That Tree’ (1979) New Scientist 1016. For the recognition of conservation with the FAO see art 2(c) of its Constitution. 49  M Williams, Deforesting the Earth (Earthscan 2006) 372–​75; McNeill, The Great Acceleration (n 1) 66.

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the fruits of the International Geophysical Year (1957–​58), which involved 60,000 scientists from sixty-​seven countries in a worldwide enterprise of data collection, analysis, and exchange. When it became apparent what wonders could be created by transboundary human scientific genius, the superpowers decided to find such an outlet in non-​controversial, confidence-​building areas. The result of that quest was the Antarctic Treaty, of which peace and conservation were built upon the goals of cooperative scientific research.50 Three years later, and buoyed by the efforts of President Dwight Eisenhower (after he decided to protect 9 million acres on the slopes of the northern shores of Alaska), the First World Congress on Protected Areas in 1962 was held, and a global List of Protected Areas unveiled. This list followed a push by the International Union for Conservation of Nature (IUCN) in the early 1950s for a global atlas and the agreement of the Economic and Social Council of the UN at the end of that decade that a list of national parks and equivalent reserves, with a brief description of each, should be established. Although there was (and remains) a diversity of types of protected areas (ranging from absolute sanctuaries through to well-​regulated habitats), it was from this point that it became possible to start counting the amount of habitat that was protected globally. In 1962, 9,214 sites with a total area protected of 2,400,000 square kilometres were noted. This list, and these numbers, were seen as the foundation from which future habitats may be ‘selected and legally established at an early date’.51 The total amount of protected area in 1962 was seen as insufficient, to which those at the First World Congress on Protected Areas called for the creation of a series of natural reserves providing permanent examples of the many diverse types of habitats, both natural and semi-​natural. While the 1968 African Convention on the Conservation of Nature and Natural Resources (updating the 1933 Convention Relative to the Preservation of Fauna and Flora in Their Natural State) supported the goal of protected areas and species, the more significant development of the 1960s was the formation of the first international regime dedicated to protected areas globally. This emerged from the 1968 UNESCO Conference on the Use and Conservation of the Biosphere and the ‘Man and Biosphere’ programme. This programme (which became operational in 1971 and has been revised on a number of occasions) created a long-​standing commitment to the conservation of ecosystems and representative habitats, and especially those that are rare, unique, or threatened. Under this 50  See Antarctica Treaty art 2 of the. See also C Collis, ‘Antarctica and the International Geophysical Year’ (2010) 75 GeoJournal 387; C Collis, ‘The Historical and Political Geographies of the International Geophysical Year’ (2008) 34(4) Journal of Historical Geography 555; D Belanger, ‘The International Geophysical Year in Antarctica: Uncommon Collaboration, Unprecedented Results’ (2004) 30 Journal of Government Information 482. In terms of science within the UN system, note that science was formerly the ‘S’ in UNESCO (as in the United Nations Educational, Scientific and Cultural Organisation) However, UNESCO fell victim to intellectual politics, inter-​agency jealousy, and then Cold War politics. See P Petitjean, Sixty Years of Science at UNESCO (UNESCO 2006) 46. 51  This quote is from the ‘Closing Plenary Session’ in A Adams (ed), First World Conference on National Parks (US Department of the Interior 1962) 376, Recommendation Nos 2 and 3, 376–​78. See also ECOSOC(1959) Resolution 713 (XXVII) and IUCN, ‘Publication of an Atlas of Nature Reserves in the World’ (1952) Resolution No 99.

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regime, countries agreed to start listing valuable habitats that had human communities associated with them (not just habitats without people), in which core zones and buffered zones interlinked, and protected, valuable habitat, endangered species, and human communities alike. By the middle of 2017, there were 669 ‘Man and the Biosphere’ sites in 120 countries, including sixteen that are transboundary.52

9.  Endangered Species A focus on endangered species also emerged in this epoch, after the IUCN created the first ‘Red List’ in 1949. This list covered species (as the science was then understood) which were critically endangered, endangered, or vulnerable to extinction. It went from listing fourteen mammals and thirteen birds in the first instance on a card index through to creating the first scientifically robust, comprehensive, and publicly accessible list of threatened mammals and birds in 1964 that were ‘extinct’ or ‘extinct in the wild’, endangered (which could mean, ‘critically endangered’, ‘vulnerable’, or ‘near threatened’), or ‘least concerned’, or ‘data deficient’. This interest in endangered species was also reflected at the national level, with the American’s passing the Endangered Species Preservation Act in 1966. With this Act, the American Congress accepted the need to protect (then, fourteen mammals, thirty-​six birds, six reptiles and amphibians, and twenty-​two fish) and their habitats. At the regional level, the Europeans agreed in 1950 with the International Convention for the Protection of Birds, that ‘all birds should as a matter of principle be protected’.53 Such approaches were rare as maximum exploitation, rather than conservation, was the rule. This approach was evident with fisheries as the take from the world’s oceans of marine catch increased between 1950 and 1960 from 13 to 50 million tons per annum. Although the 1958 Convention on Fishing and Conservation of the Living Resources of the High Sea, noted that ‘some of these resources’ were in ‘danger of being overexploited’,54 (of which the collapse of the Japanese pilchard fishery was fresh in the minds of many) restraint in this period was not commonly mooted. Rather, the theme of the period was about creating new fisheries agreements, which focused on ‘maximum sustainable yield’.55 This is not to suggest that all of the above 52  The 1968 African Convention on the Conservation of Nature and Natural Resources is in A Kiss (ed), Selected Multilateral Treaties in the Field of the Environment (UNEP 1982) 207. See also the UNESCO (1968) Use and Conservation of the Biosphere (UNESCO) 147, 216. For the 1971 kick-​ off see UNESCO, International Coordinating Council for the Programme on Man and the Biosphere (UNESCO 1971, MAB Report Series No 1) For the 2017 figures see http://​www.unesco.org/​new/​en/​ natural-​sciences/​environment/​ecological-​sciences/​man-​and-​biosphere-​programme/​. 53  The 1950 International Convention for the Protection of Birds is in A Kiss, Selected Multilateral Treaties in the Field of the Environment (n 52) 84. See also McNeill, The Great Acceleration (n 1) 87. 54  The 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, as reprinted in Kiss (n 52) 133. 55  For the fisheries conventions of the period that reflected such language see the 1949 Agreement for the Establishment of a General Fisheries Council for the Mediterranean; the 1949 Convention for the Establishment of an Inter-​American Tropical Tuna Commission; the 1952 Convention for the High Seas Fisheries of the North Pacific Ocean; the 1959 Convention Concerning Fishing in the Black Sea; the 1966 International Convention for the Conservation of Atlantic Tunas; and the 1969 Convention

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fisheries agreements did not have the capacity to control the take of fish (by options such as closed seasons, size, area, and/​or species restrictions) but only that they did not wish to pursue such pathways. The exemplar of this approach was with the 1946 International Convention for the Regulation of Whaling. This was set up with the goal of the ‘proper conservation of whale stocks’ and the ‘recovery of certain species of whales now depleted in numbers’. However, in the early decades, the members of the Commission continually failed to set sustainable quota levels and even what was agreed was often disregarded. In this area, the Soviets were notable as they blatantly misled the Commission for the next three decades, whilst publicly professing to be very concerned and responsible.56

10.  Non-​carbon-​based  Energy Air pollution in the period of 1945 to 1970 was dominated by coal, and increasingly oil. Despite this reality, it was in this epoch that two of the most important renewable technologies started to make progress. Alternative energy sources such as windmills were common in this period (as they had been for decades earlier), with over one million, ad-​hoc windmills operating on farms. This technology had been slowly developing over the century in terms of being able to charge batteries and power a small amount of lighting. The first large wind turbines (up to a 30-​metre tower) were built in Yalta, the former Soviet Union in 1931, followed by the world’s first megawatt wind turbine with 75 foot blades, in Vermont in the US, a decade later. A similar slow progress was recorded with solar energy, until in 1954 when Daryl Chapin, Calvin Fuller, and Gerald Pearson developed the silicon photovoltaic cell—​the first solar cell capable of converting enough of the sun’s energy into power to run everyday electrical equipment. The efficiency of the cell was 4 per cent and it, as the first commercially available solar product, was very expensive. Nonetheless, the refinements necessary to advance solar technology were achieved.57 The other energy source that did not create air pollution that emerged from this epoch was nuclear power. No source of energy has been as actively supported by the international community as that which is atomic. Following the fast development of this energy in the US after the Second World War, President Eisenhower decided to make the provision of such energy, for peaceful purposes, a global goal. on the Conservation of the Living Resources of the Southeast Atlantic. All of these are in Kiss (n 52) 76, 80, 96, 136, 141, 202. 56  The quote from the International Center for Research on Whaling (ICRW) is from its preamble. The Convention can be found at 161 UNTS 72. For commentary on the abuse of the period see Y Ivashchenko, ‘Too Much is Never Enough: The Cautionary Tale of Soviet Illegal Whaling’ (2013) 76(1) Marine Fisheries Review 1; S Holt, ‘Historical Perspectives: Science, Politics and Economics in the International Whaling Commission’ (2011) 37(3) Aquatic Mammals 420; A Berzin, ‘The Truth About Soviet Whaling’ (2010) 70(2) Marine Fisheries Review 1; V Walsh, ‘Illegal Whaling for Humpbacks by the Soviet Union in the Antarctic, 1947–​1972’ (1999) 8(3) Journal of Environment and Development 307. 57  A Goetzberger, ‘Solar Cells: Past, Present and Future’ (2002) 74(1) Solar Energy Materials and Solar Cells 1; T Penney, ‘Power from the Sea’ (1987) 256(1) Scientific American 74; P Moretti, ‘Modern Windmills’ (1986) 254(6) Scientific American 88.

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The International Atomic Energy Agency (IAEA) was created for this purpose in 1957. This followed the use of nuclear power for energy in plants in the US in 1951, the Soviet Union in 1954, and Great Britain in 1956.58 The problem for nuclear energy was twofold. The first issue was that it was proving difficult to control. The first large-​scale accidents were probably at Hanford in the US, between 1945 and 1957, when large amounts of radiation were released into the atmosphere. These accidents were followed by at least two major incidents in 1957 at Kyshtym in the Southern Urals and Windscale/​Sellafield in the UK. In the American and Soviet instances, a considerable amount of uncertainty exists as to what happened, owing to state secrecy. In the Windscale instance, a large amount of the isotope plutonium 210 was released into the atmosphere, and somewhere between a dozen and several hundreds of people were killed as a result.59 With such instances in the background, the international community concluded the first rudimentary conventions for liability for nuclear accidents (with both the OECD and the IAEA) related to both power plants, and while in transport.60 The second problem of nuclear energy was that it produced long-​lasting waste, although originally this problem was unforeseen. That is, when the Atomic Energy Act of the US was passed in 1946, the topic of waste was not in the remit of consideration. However, within a very short space of time this became a very serious topic, as the waste was found to be either short (less than thirty years) or long term in its radioactivity. The long-​term/​high-​level nuclear waste arises from the ‘burning’ of uranium fuel in a nuclear reactor and the solidified liquid wastes from reprocessing such fuel to produce plutonium for nuclear weapons. This waste has both long-​lived and short-​lived components. At the lower end of the spectrum, strontium 90 has a half-​life of twenty-​nine years and caesium 137 has a half-​life thirty years. At the higher end, plutonium 239 has a half-​life of 24,400 years, technetium 99 has a half-​ life of 220,000 years, the half-​life of Neptunium 237 is two million years, whilst Iodine 129 possesses a half-​life of 17 million years. While the half-​lives required for the radioactivity of high-​level waste to decay completely may be millions of years, it typically takes at least 10,000 years for the radioactivity of such waste to decay to the level that would have been generated by the original ore from which the nuclear fuel was produced, should this ore never have been mined. Base figures for nuclear power plants suggest a typical 1,000 megawatt 58 Statute of the International Atomic Energy Agency (1957) IAEA Vienna (89-​05761). See R Hewlett, Atoms For Peace and War, 1953–​1961:  Eisenhower and the Atomic Energy Commission (University of California Press 1989). See also L Weiss, ‘Atoms for Peace’ (Nov 2003) Bulletin of the Atomic Scientists 34. 59  J Garland, ‘Atmospheric Emissions from the Windscale Accident of October 1957’ (2007) 41(18) Atmospheric Environment 3904; D McGeoghegan, ‘Mortality and Cancer Registration of the Sellafield Workers Known to Have Been Involved in the 1957 Windscale Accident: 50 Year Follow-​up’ (2010) 30(3) Journal of Radiological Protection 407; S Jones, ‘Windscale and Kyshtym: A Double Anniversary’ (2008) 99(1) Journal of Environmental Radioactivity 1; R Edwards, ‘Windscale Fallout Blew Right Across Europe’ (2007) New Scientist 11; F Pearce, ‘Secrets of the Windscale Fire’ (1983) New Scientist 7; R Herbert, ‘The Day the Reactor Caught Fire’ (1982) New Scientist 85. 60  See the 1960 Convention on Third Party Nuclear Liability in the Field of Nuclear Energy in Kiss (n 52) 159. The 1963 Vienna Convention on Civil Liability for Nuclear Damage is in the same volume at 179, and that for the Civil Liability for the Carriage of Nuclear Material, also in Kiss (n 52) 171.

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light water reactor will generate 200 to 350 square meters of low and intermediate level waste per annum. It will also create about 75 square meters of high-​level waste, which is primarily made up of caesium 137 and strontium 90. This waste can be reduced in size, if it is reprocessed to less than half what it started out as.61 The international community had to deal with this problem much earlier than anticipated, when in 1958 they agreed to phase out the dumping of high-​level nuclear waste into the seas. Up until this point, it was not unusual to dump high-​ level nuclear waste into the ocean, either through reprocessing plants or, more commonly, through dumping (with the waste put into concrete-​filled drums). The dumping occurred between 1946 and 1967, with fourteen different countries dropping drums of nuclear waste (of which about 7% was ‘high level’) at sites in the Atlantic and the Arctic. Although the prohibition on high-​level waste was agreed in 1958, the dumping of low-​level nuclear waste was allowed to continue.62

11.  Air Pollution Despite these developments in energy sources that did not cause air pollution, this was an age in which coal dominated. By 1950, global output of coal had more than doubled since 1900, going from 701 tons to 1454 tons. Supplementing this growth, world oil production went from 10 million tons per annum in 1890 to 519 million tons by 1950. It would double in the following decade to 1051 tons, and then double again in 1970 to 2286 million tons, having taken over from coal in 1965 as the world’s primary fuel.63 Such increases in consumption of air-​polluting fuels were causing large problems. In 1948 in Donora, southeast of Pittsburgh in the US, an air inversion (no wind) resulted in a wall of smog that killed more than twenty people. In Britain in 1951 when the weather conditions in early winter trapped pollutants over London, visibility was reduced to between one to five metres and the pH level of the air was between 1.6 and 2.0 (close to the equivalent of sulphuric acid), leading to the deaths of about 1,850 people. The following year, at the same time and under similar conditions, two further smogs killed between 4,700 to 12,000 people in London. In 1962, a further 750 people were directly killed by air pollution in a short space of time.64 61 IAEA, Nuclear Waste (IAEA 2013) 2–​7; R Vandenbosch, Nuclear Waste Stalemate (Utah University Press 2007) 20–​21; P Tavcar, ‘Radiological Characterization of Low-​and Intermediate-​level Radioactive Wastes’ (2007) 273(3) Journal of Radioanalytical and Nuclear Chemistry 593. Anon (1997), ‘High-​Level Nuclear Wastes’ (1997) 39(3) Environment 8. 62  The prohibition is in art 25 of the 1958 Convention on the High Seas 450 UNTS 11. For the topics see W Alley, Too Hot to Touch: The Problem of High Level Nuclear Waste (Cambridge University Press 2011) 36–​50; J Hamblin, Poison in the Well: Radioactive Waste in the Oceans (Rutgers University Press 2008) 32–​35, 46–​51, 120–​25, 153–​75. 63  See generally K Brooks, Before Earth Day: The Origins of American Environmental Law, 1945–​ 1970 (Kansas University Press 2009) 62–​65. 64  Editor, ‘Darkness at Noon’ (2002) New Scientist 48. F Pearce, ‘Back to the Days of Deadly Smogs’ (1992) New Scientist 25–​26; M Hamer, ‘Ministers Opposed Action on Smog’ (1984) New Scientist 3. Anon, ‘Pea Soupers in 1955’ (1986) New Scientist 12.

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These problems helped act as the catalyst for the World Health Organization to create its first report on the topic in 1958. This expert group, made up of scientists from around the world, agreed that air pollutants could damage health, and although their focus was primarily concerned with sources and measurements, they acted as the first step in establishing air quality standards of universal applicability, which emerged in the coming ten years. These standards, for different air pollutants were/​are based on concentrations of pollutants that could be ingested by humans over given time periods before damage would be done. These guidelines, which have been continually updated (1987, 2006, and a new edition currently in preparation)​ set global health guidelines which countries could then build laws around (or not).65 At the international level, although the International Court of Justice had endorsed the Trail Smelter principle that ‘every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’,66 in practice there was no international or regional cooperation over air pollution. The largest advance was with the Europeans, but they could get no further than agreeing that ‘pollution in frontier areas should be the subject of a joint study’.67 With the failure of the topic to make any real progress at the international level, it fell to individual countries to deal with the problem as they saw fit, of which the Western countries that had the worst problems all took the matter seriously. The British Clean Air Act of 1956 (and later 1968) created ‘smoke control areas’ in which only smokeless fuels could be burned. This reduction in emissions from domestic sources was supplemented with measures to relocate power stations away from cities. The height of industrial chimneys was also increased to help ensure that the smoke could be dissipated further away from its source location. The end result was that after 1962, sulphur emissions fell, dropping more than 90 per cent in the following three decades in some areas, as coal use largely disappeared and tailpipe exhausts rather than smokestacks and chimneys became the dominant source of pollutants.68 In the US, the first federal legislation, the 1955 Air Pollution Control Act (with subsequent amendments in 1963 and 1967) gave the government the ability to research and monitor air pollution. At the state level, the response was more direct, as local authorities accelerated switches to electricity and natural gas, away from coal (and soft coal, in particular), combustion requirements became mandatory and stationary pollution sources were moved away from urban areas. Similarly, in Japan, compliance with earlier 1962 smoke-​and-​soot laws became obligatory, as environmental standards grew tighter (especially after a number of high-​profile court cases); coal was increasingly replaced by other fuel sources and industry rose to the challenge, pursuing anti-​pollution technologies with an unprecedented vigour.69 65 WHO, Evolution of WHO Air Quality Guidelines: Past, Present and Future (WHO 2017); McNeill, The Great Acceleration (n 1) 9, 54, 67. 66  See Corfu Channel Case (UK v Albania) [1949] ICJ 4, 21 (9April 1949); Trail Smelter Arbitration (United States v Canada) Arbitral Tribunal [1905] 3 UN Rep Int’l Arb Awards (1941). 67 See principle 7 of the 1968 Declaration of Principles on Air Pollution https://​rm.coe.int/​ 16804faaea. 68  P Brimblecombe, ‘The Clean Air Act After 50 Years’ (2006) 61(11) Weather 311; J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 60–​63, 66, 97–​99. 69  D Stradling, Smokestacks and Progressives (Johns Hopkins Press 1999) 170–​79, 181, 184–​85.

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The emerging challenge that all three countries had to face was that by 1950 not all air pollution was being caused by coal. In particular, photochemical smog developed as a new problem where motor vehicles were common, the air was trapped and the sun shone brightly. This problem, which would go on to ensnare cities such as Santiago, Athens, Tehran, and Seoul in the coming decades, first became apparent in Los Angeles after its car population went from 1 million vehicles to 3.5 million by 1955. The car industry lobbied hard against attempts to impose fuel efficiency standards (the typical fuel economy in 1960 was 14.3 miles per gallon for a standard passenger car) or catalytic converters on vehicles, saying that their economic cost would hurt both the industry and the consumer. Unable to overcome these concerns, the legislature responded with calls for more science as well as the creation of a public warning system, to alert citizens of when the air pollution was dangerous. By 1959, California had had enough, and mandated the Motor Vehicle Pollution Control Act in an effort to increase pressure on auto-​makers to introduce a device that controlled smog through automobile exhaust. After setting the standard of emissions that each vehicle was able to emit, industry fought itself over whether catalytic converters, increased energy efficiency, and/​or different types of fuel were the best route to meet the first standards of air pollution for cars.70

12.  Climate Change and Ozone Considerations The topic of atmospheric pollution also started to appear as an international concern after the Second World War. Projects for the measurement of atmospheric concentrations of carbon dioxide were incorporated into the programme of the International Geophysical Year in 1957–​1958 and ended up as part of the work of Charles Keeling, who set up highly accurate gas analysers for the continuous measurement of carbon dioxide concentrations in the atmosphere near the summit of Mauna Loa in Hawaii and at Scott base in Antarctica. The first accurate modern measurements of CO2 in 1959 was 315.8 ppm by volume (up from an estimated 275 ppm in 1860). In large part, this was reflecting an increase in the global emissions of carbon from industrialization and land-​use change including deforestation, which had together increased nearly tenfold between the turn of the century and 1970 (from 1,350 million tons in 1890 to 14,531 million tons in 1970).71 In the same period, measurements of the ozone layer began, although the scientific understanding of its vulnerability to human interference such as nuclear tests was rudimentary, whilst the influences of chlorofluorocarbons (which had gone from about 20,000 produced tons in 1950 to about 730,000 tons per annum at the end of the 1960s) were completely invisible.72 70 McNeill, The Great Acceleration (n 1) 23; Brooks, Before Earth Day (n 63) 61, 70–​74; T McCarthy, Automania: Cars, Consumers and the Environment (Yale University Press 2007) 150–​53, 165, 176. 71  R Revelle, ‘Carbon Dioxide and World Climate’ (1982) 247(2) Scientific American 33, 35; J Gribbin, ‘The Politics of Carbon Dioxide’ (1981) New Scientist 82; J Plass, ‘The Carbon Dioxide Theory of Climate Change’ (1956) 8(2) Tellus 140. 72  See L Glasgow, ‘The History of the Ozone Layer’ (1990) New Scientist 14.

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13.  Fresh Water Conservation At the domestic level, a number of countries made clear advances in the area of fresh water management of waste. For example, in the US, following a succession of acts between 1948 and 1966, technical support to set uniform standards and consistent water policy began by providing federal aid to build high-​quality sewage plants. Before this point, the state of many American rivers was sometimes dire. For example, in 1948, when the first systematic water quality measurements were taken for the Detroit river, industrial sources contributed phenolic compounds, cyanide, ammonium compounds, suspended solids, and greases. The oil sludge on the surface was said to be so thick that only a boat could push its way through.73 Where there was greater regional cooperation was in Europe over the topic of fresh water conservation, especially of shared rivers, many of which were showing signs of heavy pollution. For example, between 1900 and 1977, the Rhine showed a fivefold increase for chromium, twofold for nickel, sevenfold for copper, fourfold for zinc, twenty-​seven fold for cadmium, and fivefold for lead. Such pollution was attributable to a long-​standing belief that many types of pollutants could be freely dumped into the waterways, irrespective of the impact that it would have on those downstream. This attitude began to change when the Lake Lanoux arbitration case between France and Spain made clear that the upstream states could not act unilaterally without taking a good faith regard to the impact their actions had on others. Treaties between the countries that shared the Danube, Mosel, and Rhine all followed suit, with all parties agreeing to start creating a shared scientific understanding of the problems impacting on each river, and then move towards solutions/​restrictions of the pollutants. The 1966 Helsinki Rules on the Uses of Waters of International Rivers built on these approaches, in that although it was accepted every country could use the shared waterways equitably, in principle, new forms of water pollution that would cause damage to other riparian states were prohibited, and polluting states were required (in principle) to cease polluting activities and compensate those that they injured.74

73  C Wells, Car Country: An Environmental History (Washington University Press 2012 DC) 206. 74  The Lake Lanoux Arbitration [1957] 24 ILR 101. This was digested in (1959) 53 American Journal of International Law 156. For the treaties, the 1958 Convention Concerning Fishing in the Waters of the Danube; the 1961 Protocol Concerning the International Commission for the Protection of the Mosel Against Pollution; and the Agreement Concerning the International Commission for the Protection of the Rhine Against Pollution are available in Kiss, A (ed) Selected Multilateral Treaties in the Field of the Environment n 52) 123, 165, 176. See arts IV, X, and XI of the Helsinki Rules on the Uses of the Waters of International Rivers as set out in the 1966 Report of the Fifty-​Second Conference of the International Law Association (1967) 477, 484; S Bogdanovic, The International Law of Water Resources: Contribution from the International Law Association, 1954–​2000 (Kluwer 2001) 15–​26; T Bernauer, T (1996) ‘Reducing Pollution of the River Rhine: The Influence of International Cooperation’ (1996) 5(4) Journal of Environment and Development 389.

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14.  Ocean Pollution Although both regional and international authorities had no luck regulating air pollution, they did have success in starting to regulate the transport of some of the pollutants on the oceans (such as oil). The international interest grew when the supertanker Torrey Canyon struck Pollard’s Rock between the Cornish mainland and the Isles of Scilly in 1967, spilling an unprecedented 32 million gallons of oil on the coasts of England, Spain, and France. The 11-​million-​gallon spill of the World Glory oil tanker the following year in South Africa continued to raise concerns in this area. To these issues, the International Maritime Organization, which had already made progress dealing with operational discharges of oil from ships, as well as introducing basic standards that made all shipping safer (from making radar compulsory through to having shipping lanes, with the first one coming into existence in the Strait of Dover in 1967), responded by adopting a suite of new conventions. These covered rules for liability for such accidents, a fund to help pay for the resulting damage, the ability to intervene when facing potential spill disasters, and for cooperation at short notice in times of urgency caused by pollution.75 What the international community could not deal with was the problem of general waste being dumped in the ocean. At the beginning of this period, such as when Thor Heyerdahl, a Norwegian adventurer and scientist, made two raft voyages across the Atlantic in 1951−52, this was not considered a problem, as he recorded no signs of human pollution. However, when he made his second voyage in 1969 he recorded both oil slicks and plastics bobbing on the waves. This problem was now driven by the fact that many countries had started actively dumping industrial (in addition to municipal/​consumer) waste into the high seas with the US going from 2.2 million to 4.7 million tons per annum between 1940 and 1969, while the UK averaged 6.5 million tons per annum.76

15.  Waste Management Progress in the US was made with dealing with waste on the land. The difficulty that they had to confront was that municipal waste was beginning to change in terms 75  The earlier convention on operational matters was the 1954 International Convention for the Prevention off Pollution of the Sea by Oil. For the conventions dealing with accidents see the 1969 Agreement for Cooperation in Dealing with Pollution of the North Sea by Oil and the 1970 International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties. All are in Kiss, Selected Multilateral Treaties in the Field of the Environment (n 53) 23, 101, 230. The 1969 International Convention on Civil Liability for Oil Pollution Damage is 973 UNTS 3; 9 ILM 45. For the accidents see B Sovacool, ‘The Costs of Failure: A Preliminary Assessment of Major Energy Accidents, 1907–​2007’ (2008) 36 Energy Policy 1802; M Grundlingh, ‘The World Glory Oil Spill Revisited’ (2007) 89(1) South African Geographical Journal 14; J Sheail, ‘Torey Canyon: The Political Dimension’ (2007) 42(3) Journal of Contemporary History 485. 76  Z Keyuan, ‘Regulation of Waste Dumping at Sea’ (2009) 52 Ocean and Coastal Management 383; IMO, Global Waste Survey IMO 1995) 2–​10; D Cormack, ‘Scientific and Technical Background’ (1992) Marine Policy 7.

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of both quantity and type. Of quantity, per capita production in the US doubled from 140 kilograms per annum in 1940 to 280 kilograms in 1960 and continued to expand. Of type, aluminium foil packaging became common in the 1950s, and aluminium cans found their way to supermarket shelves in the 1960. Disposable nappies arrived in the 1960s; packaging began to make up to 30 per cent of municipal waste, and plastic started to become much more common after the first squeezable plastic bottle emerged in 1947 and the first plastic carrier bags soon after.77 As new types and quantities of waste emerged, so too did solutions. The first standards to regulate landfill (of what could be dumped, where, and how) were established in the US after the Second World War. This was increasingly necessary as not only was the amount and type of waste changing, but the recycling efforts of earlier decades (especially during the Second World War) were now being disregarded. Mass consumption and a desire for new products, low prices for raw products, and low costs for disposal of associated waste evaporated many of the traditional recycling industries. To supplement the new landfill standards, industrial incinerators, which by 1960 were burning almost a third of municipal waste in the US, albeit with minimal knowledge that they were often doing it wrong (as in inefficient temperatures and the wrong types of waste, both creating pollutants) added to the solutions of the age.78

16.  New Pollutants The new chemicals that had evolved just before, or during, the Second World War expanded at a rapid rate after it. The synthetic organic pesticides such as aldrin, dieldrin, endrin, heptachlor, endosulfan, and others started to be introduced in the early 1950s, rising quickly from 100 million pounds per year in 1945 to 300 million pounds by 1950. They were supplemented by the industrial scale usage of DDT, which between 1945 and 1970 saw around 675,000 tons of DDT used in the US alone. This is not to mention its large-​scale successful use in Italy directly after the Second World War, which when coupled with other measures (such as water drainage) made reductions in the risk of malaria by up to 90 per cent. Such utilization was also common overseas with the World Health Organization operating a programme to eradicate malaria (which at this point was killing more humans than any other disease, at about 7.5 million people per annum) in the developing world, based around DDT between 1959 to 1969.79

77  H Rogers, Gone Tomorrow: The Hidden Life of Garbage (Norton 2005) 5; C Morawski, ‘Diaper Recycling’ (2003) 8(2) Solid Waste and Recycling 6; S Hoy, Chasing Dirt:  The American Pursuit of Cleanliness (Oxford University Press 1996) 174; Strasser, Waste and Want (n 1) 164–​68; W Rathje Rubbish: The Archaeology of Garbage (HarperCollins 1992) 98, 155–​65. 78  See 1948 Water Pollution Control Act. 62 Stat. 115. 1918–​49. This was extended in 1956, 1961 and 1966. See also the Federal Insecticide, Fungicide and Rodenticide Act of 1947. Brooks, Before Earth Day (n 63) 20–​22, 115–​18; Rogers, Gone Tomorrow (n 77) 134–​35. Strasser, Waste and Want (n 1) 13; C Colten, The Road to Love Canal: Managing Industrial Waste Before the EPA (Texas University Press 1996) 25, 28–​48, 54–​59, 67, 86–​87; M Tolba, The World Environment (Chapman 1993) 265. 79  D Kinkela, DDT and the American Century: Global Health, Environmental Politics and the Pesticide that Changed the World (North Carolina University Press 2011) 50–​60; D Roberts and others, The Excellent Powder: DDT’s Political and Scientific History (Dogear 2010) 13–​16.

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The response to the possible risks of these new chemicals at the international level appeared at the First World Health Assembly in 1948, when the World Health Organization set up an expert group on pesticides. At the domestic level, the rules on the labelling of hazardous substances were entrenched and new rules created to deal with uniform national standards on registration and labelling (from which the skull and crossbones symbol on chemicals emerged) became common. The need was evident, as incidents began to appear in the 1950s of large-​scale poisonings of animals, possibly linked to the new chemicals, to which some NGOs began calling for evaluations, studies, and restraint in their use.80 The difficulty was in the proof, as many of the new pesticides (and other pollutants) were different in both speed and impact, compared to traditional poisons. In 1961, Rachel Carson’s Silent Spring unequivocally identified new insecticides used to control pests and boost agricultural output, such as DDT, for poisoning the food chains, from insects up (and the consumption of one polluted species biomagnifying in whatever consumed it) as leading to the large-​scale death of many bird species. For her efforts, she was sued by some of America’s chemical giants and when this failed they launched an extensive publicity campaign to discredit her and her work. Although she died in 1964, her work had a massive influence. This was furthered when President J F Kennedy instructed his science advisory committee to investigate her claims from which she was vindicated. A decade later DDT was prohibited from sale in the US in 1972.81 As Western countries were struggling to understand the science and implications around the debate with DDT, the pollution impacts of three other ‘new’ sources came into view. First, in the mid-​1950s evidence became clear that PCBs were bio-​ accumulating. Secondly, in 1964 a landmark conference on the biological effects of asbestos resulted in a consensus among the investigators of different nations that asbestos could cause lung cancer.82 Thirdly, in the 1960s, after evidence that methyl mercury had killed over 200 people (and possibly up to thousands) with poisoning in Japan at Minamata in 1968, the Japanese government finally admitted after twelve years of investigation that methyl mercury could be a very toxic pollutant. This admission followed the suppression of the evidence of a local doctor, Hosokawa Hajime, that the residue of methyl mercury (long used as a catalyst for the production of vinyl sediment since the 1930s) was accumulating in seafood that was later consumed by humans, and was not neutral in impact. However, at this point, the greater sources of mercury in the environment (primarily as a by-​product from inefficient combustion, metal 80  J Buhs, ‘Dead Cows on a Georgia Field: Mapping the Cultural Landscape of the Post World War II American Pesticide Controversies’ (2007) 14 Environmental History 99. For the NGOs see the IUCN resolutions of the period from 1954 (Item II) and 1960 (resolution 11). 81  J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 135–​39; G Kroll, ‘The Silent Springs of Rachel Carson: Mass Media and the Origins of Modern Environmentalism’ (2001) 10(4) Public Understanding of Science 403; C Walker, Organic Pollutants (Taylor and Francis 2001) 96–​98. 82  R Smith, Slow Death By Rubber Duck (Counterpoint 2009) 152; Tolba, The World Environment 1972–​1992 (n 78)  250; J Corn, Response to Occupational Health Hazards:  A Historical Perspective (Reinhold 1992) 92–​95.

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product, and mining) nor its true ability to travel and pollute regions thousands of miles away, were not known.83

17.  The Communist Experience As difficult as environmental matters were in Western countries, they were worse in the communist countries. Apart from the rhetoric of very good sounding environmental laws, in only a few areas (such as with removing lead from petrol in 1967) did the Soviets better the standards of Western countries. In reality, their pursuit of economic and ideological supremacy trumped all other concerns. Two examples of this period are exemplars of Soviet thinking. The first included the decision that the two rivers that fed the Aral Sea would be diverted, and four-​fifths of the water would be directed to turn unproductive lands to arable purposes—​which was a disaster for the Aral Sea, tripling in its salinity and shrinking to a tenth of its size. The second decision involved large-​scale nuclear test programmes, such as those at Semipalatinsk in Kazakhstan, which were four times worse than Chernobyl in terms of acute radiation sickness.84 Less dramatic exercises involved vast amounts of fertilizer and insecticides (often at a scale between two to five times what was being used in the US per hectare) used in agriculture, as supplemented by ideologically correct, but scientifically ludicrous, theories of Trofim Lysenko on how food output could be improved by environmental, as opposed to genetic, influences. Industrialization also proceeded apace, with minimal environmental restraints. By 1967, Soviet sources reported that two-​thirds of all factories in Russia discharged these effluents without any effort to clean them up. No major river remained untouched by either development ​or pollution, with the most important, including the Volga, being commonly seen as a sewer. Fisheries from inland sources fell consistently every decade after the 1930s.85 With China, the saying ‘man must conquer nature’ sums up Mao’s attitude to the natural world. He wanted China to accelerate with rapid industrialization, of which he hoped to leapfrog the Soviet Union and catch Britain. Critics were silenced and Soviet advisers with their grandiose projects applauded. For Mao, steel production had a special talismanic quality. It bespoke modernity and power to which he made steel production a centrepiece of the second five-​year plan, from which he insisted that each peasant commune and urban neighbourhood make steel with ‘backyard furnaces’. Ninety million people followed the order, smelting steel and iron in 600,000 backyard furnaces, melting down cooking pots, bicycle frames, and 83 UNEP, The Global Atmospheric Mercury Assessment:  Sources, Emissions and Transport (UNEP 2008); M Cross, ‘Japanese Justice Fails Mercury Victims’ (1990) New Scientist 8. 84  F Pearce, ‘Exposed: The Soviet Nuclear Cover Up’ (2017) New Scientist 16; S Stevenson, Stalin’s Legacy: The Soviet War on Nature (Berlinn 2012) 125–​44. 85  B Bengtsson, ‘The 1948 International Congress of Genetics: People and Politics’ (2010) 185(3) Genetics 709; N Roll-​Hansen, ‘Wishful Science: The Persistence of TD Lysenko’s Agrobiology in the Politics of Science’ (2008) 23(1) Osiris 166; P Micklin, ‘The Aral Sea Disaster’ (2007) 35(4) Annual Review of Earth and Planetary Sciences 47.

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anything metal they could find. Poor quality steel furnaces appeared everywhere, as communities attempted pathetic attempts at making high-​quality metal. Although China doubled its steel output, most of it was brittle and worthless. Wetlands were dried out and remaining forests harvested to feed the furnace fires. Dams, both large and small, proliferated down the waterways, although these were often complete failures. In Henan Province, more than 110 dams were built but, by 1966, half of these had collapsed. In all instances, despite the appearance of environmental laws on paper, none had any teeth. Even the most spectacular of the Chinese species, the panda, did not receive full protection from hunting until 1962, and some of its critical habitat was not conserved until the end of the decade.86

18.  Civil Society One of the main reasons why conservation took off in the West and not in Communist countries was the development of an interest in the topic after the Second World War, and the willingness of citizens to stand up, organize, and try to change matters. After the Second World War, this began, especially in the US, as millions of people sought to value many of the natural amenities around them. The total annual visits to national forests (alone) went from 16 million to 40 million between 1945 and 1955. Their quests for recreation required pristine environments to relax, explore, or hunt in, from which a strong interest in conservation evolved. To pursue these interests, they began to support NGOs in unprecedented numbers. Groups that would become giants, such as Oxfam (1942) and the (modern) IUCN (1948) emerged. Internationally focused NGOs were appearing at a rate of 100 per annum in 1950, progressing up to 130 per annum by 1969. In this growth were new environmental brands, such as World Wildlife Fund (1961) and Friends of the Earth (1969).87 In all instances, these groups were at the forefront of creating public attention on environmental issues and seeking influence in the national and international negotiations that followed. At both the local level (as laws began to free up the flow of information and give standing to NGOs in some instances)88 and international 86  The quote, ‘man must conquer’ is in Shapiro,) Mao’s War Against Nature (n 43) 67 and see also at 2–​3, 50–​54, 63, 82, 130–​37, 154. See too D Tian,) ‘The Communication Model and the Nature of Change in Terms of Deforestation in China Since 1949’ (2010) 9(2) Applied Environmental Education and Communication 122; J Strauss, ‘Forestry Reform and the Transformation of State Capacity in China’ (2009) 68(4) The Journal of Asian Studies 1163; McNeill, The Great Acceleration (n 1) 169–​71; H Nicholls, The Way of the Panda (Pegasus 2006) 83. 87  A Rome, ‘Give Earth a Chance: The Environmental Movement and the Sixties’ (2003) 90(2) The Journal of American History 525; G Denton, ‘Motherhood and Protest in 1960s America’ (2012) 5(2) The Sixties 205; T Gitlin, The Sixties: Years of Hope, Days of Rage (Bantam 1993) 374, 433. 88  This evolution was reflected in the Federal Wildlife Coordination Act of 1946, which required federal agencies to conduct ‘biological surveys’ before undertaking large projects. These were the forerunners of mandatory environmental assessments. These were seen as the first steps to begin to challenge the strong drive to dam as many rivers as possible that were not, at that time, within recognized protected areas. This requirement overlapped with the 1946 Administrative Procedures Act, through which it became possible for ‘all interested parties’ (which became NGOs) to ensure through court processes that such surveys had been considered before firing up the bulldozers. See Brooks, Before Earth Day (n 63) 35, 42, 97.

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level (as the UN facilitated the entry of NGOs into some of its work areas) activism expanded quickly. It was in this period (especially the end of the 1960s) that the origin of modern environmentalism is often pinned. At this point, environmental concerns overlapped with the clear growth in protests, from civil rights to the anti-​ war movement, and the goals of conservation went from being the concerns of only specialists and outdoor enthusiasts to be a matter of focus for the general citizen.89

19. Conclusion The years between the end of the Second World War and 1970 were excellent for economic growth. Despite the deep ideological chasm that existed between the superpowers and the developed and developing world, it appeared that most of the world was advancing economically. In social terms life expectancy went up (with large jumps in the communist countries), social welfare expansion in the developed world, and the advance of labour rights internationally. All of this progress was consistent with the overall goal that ‘development’ would be spread over the entire world, and all countries would benefit. There was little alternative vision, as all countries became besotted with technical progress, and the new agencies of the UN, from the World Bank to the International Atomic Energy Agency, set to work. Where it was different from the past was that the developed world laid the foundations for the modern international trade system, the GATT. This was supplemented with the first large-​scale transfers of international financial assistance within the developed world, and also to the developing world, although nascent problems of corruption began to stir. While the Communist world recoiled from the ideals of international trade, the developing world became attracted to ideals of self-​ sufficiency, in both political and economic terms. To further these goals, the tide turned against transnational corporations and free trade. The difficulty that began to become apparent at the end of this period was that self-​sufficiency was neither feasible nor economically viable, as the first small waves of debt began to testify. In environmental terms, it was a different story. The biggest advance in this period was that, in these decades, especially the 1960s, environmentalism really found its voice (or at least, in non-​communist countries) as NGOs began to demand better standards in both conservation and pollution terms. The biggest difficulty in this period was that the epoch was pointing in the opposite direction.

89  While NGOs were excluded from some areas, they were welcomed as either observers or parts of governmental delegations, as were others such as UNESCO, the WHO, and the organs involved in human rights. At the highest level, ECOSOC granted 41 NGOs consultative status in 1948 when it opened for business. This was obliged under s 71 of the UN Charter from which ECOSOC was to ‘[m]‌ake suitable arrangements for consultation with non-​governmental organisations which are concerned with matters within its competence’. For discussion see M Ishay, The History of Human Rights (University of California Press 2008) 224–​28; J Boli, ‘World Culture in the World Polity: A Century of International Non-​Governmental Organisation’ (1997) 62 American Sociological Review 171, 176.

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Human population continued to expand, going from 2.5 to 3.7 billion people. Although famines continued to occur, they were due to more politics and war than ecological limits. Moreover, as the Green Revolution came to fruition, surplus, not scarcity, became the marker for food quantity in many developing countries. Although some scholars began to question whether unlimited growth of the population in the future was sustainable, this debate did not advance at the international level. Although the international community scored some success in confronting habitat loss, with the protection of Antarctica, the creation of the first international regime for protected areas (Man and the Biosphere), and the formation of a list of protected areas from which counting could begin, all in all loss of habitat continued with little restraint. This was especially the case in the tropics and communist countries, in which exploitation, not conservation, of forests and wetlands, was the order of the decades. Similar approaches were evident with species management, with maximum yields being pursued, and with sustainability appearing more as a side consideration. Nonetheless, in the 1960s, the first clear measurements for endangered species in both science and law appeared. Similarly, science began to take its first solid footsteps on work related to climate change and ozone depletion, and technical breakthroughs began with solar and wind power. Despite these small inklings of progress, the existing energy source of coal still dominated the age. The change was in the 1960s, when oil became number one, and nuclear energy became the hope of the future. In all instances, there was no progress. Nuclear energy soon proved itself to be prone to accidents and the generator of very long-​term waste. Oil proved itself to be the instrumental in the creation of new types of mobile source air pollution, just as national authorities were beginning to deal with older, coal-​types of stationary source air pollution. The latter is where there was signs of progress, as the World Health Organization started to create universal standards and the laws both nationally and internationally accepted the principle that no state could knowingly pollute another. This acceptance followed unprecedented deaths in the developed world, as caused by extreme episodic events directly related to air pollution, which was now local, national, and sometimes regional in impact. A new generation of fresh water pollution, coupled with a new generation of ocean pollution, also spurred national and international attempts to start solving problems. From solid foundations of science, a number of European rivers began to receive the attention they needed. For ocean pollution, and the extreme risks of nuclear dumping into the high seas, the international community could agree relatively quickly not to dump high-​level waste any more. They could also agree compensation and liability regimes for the oil tankers, which began to crash and sink with increased frequency. The difficulty was that both national and international communities were being outpaced by rapid changes in demand, supply, and innovation. Accordingly, no matter how much they managed to confront a pollutant from an earlier generation, new challenges passed them by. This problem also became evident in the areas of incineration of waste, and the evidence began to amass that a series of chemicals and/​or industrial products in common usage, such as DDT, asbestos, mercury, and PCBs were all multigenerational and quite dangerous—​but in ways that previous understandings of toxicology had never revealed.

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6 From 1970 to 1990 1. Introduction The idea of sustainable development as a three-​way relationship with the environment, the economy, and social considerations all occupying different points of the triangle emerged between 1970 and 1990. The synthesis occurred as the economic situation of the developed world slowed, and the developing world collapsed. This collapse gave the push for a fundamental rethink on matters of free trade, debt, aid, and transnational corporations. At the same time a host of new problems emerged. These ranged from the nuclear accident at Chernobyl through to the shrinking ozone layer over Antarctica. Despite these very bleak events, the international community began to rally and started to create a new generation of laws and policies, which for the first time in decades started to make progress in confronting the difficulties at hand.

2.  Trade The world economy surged between 1970 and 1973 as industrial production in the major economies rose from 15 per cent to 25 per cent and money supply grew by 40 per cent. In this period, labour standards improved, such as with the United States (US) passing the monumental Occupational Safety and Health Act and the International Labour Organization (ILO) adding a new one of its core conventions (this one on minimum age), as did wages. Boom times in the industrial economies increased demand for the agricultural goods and raw materials that many developing countries exported. The prices of commodities such as rubber, copper, and coffee more than doubled between 1970 and 1973. This was all part of the tripling in value of international trade between 1973 and 1979. This growth overlapped with the Tokyo round of the General Agreement on Tariffs and Trade (GATT) negotiations, which succeeded in further opening up markets for the developed countries amongst each other.1

1  The ILO Convention was that from 1973, on Minimum Age C138 (26 June 1973) This was designed to move towards the end of child labour, and raise age standards for a variety of types of work (thus amalgamating a series of earlier conventions on different types of employment) The figures are

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As the developed world worked through the GATT, the developing world unveiled the New International Economic Order in 1974. This was designed to be an alternative model to the Bretton Woods/​GATT system. The overall goal was accelerating the development of poor countries and reducing the gap between them and the richer world. Within this paradigm, although self-​reliance was important, the broader call was for the respect and development of commodity agreements, and non-​reciprocal tariff preferences and other differential measures for developing countries into the markets of developed countries. In some instances, the developed world accepted these ideas, promising not to allow new considerations (such as environmental concerns) to get in the way of the commodity trading of the developing countries. In addition, some parts of the developed world carved out special tariff systems allowing particularly poor former colonies to sell specific products, such as bananas, at subsidized prices, thus protecting their sales from the large plantations in Central and Latin America which produced bananas at one third of the cost.2 The good times did not last. The 1980s turned the plans for international trade relations for the developing world upside down. Apart from rubber, the post-​war commodity agreements either collapsed (as in the case of tin) or were significantly remodelled (as first with sugar, and then later with cocoa and coffee) to the point that market intervention clauses were abandoned as attempts to control market prices failed. Precipitous price declines in commodity prices combined with the inability for the partners in the agreements to stay unified. For countries that were highly dependent on only one or two commodities the results were catastrophic. This disaster was in both economic and environmental terms, as often any minimal restraints aiming at achieving sustainable production were abandoned.3 Even countries that were not dependent on commodities were suffering economically. The drive by the Federal Reserve in the US and the Bank of England to get from J Frieden, Global Capitalism: Its Rise and Fall in the Twentieth Century (Norton 2006) 79–​80; J Corn, Response to Occupational Health Hazards: A Historical Perspective (Reinhold 1992) 18–​19. 2  The Declaration of the Establishment of a New International Economic Order can be found at UNGA Res 3201 (S-​UI) (1 May 1974). See also the Charter of Economic Rights and Duties of States, UNGA Res 3281 (XXIX) (12 December 1974); K Sauvant, ‘The Historical Context of the New International Economic Order’ (1981) 3(1) Third World Quarterly 48; G Corea, ‘UNCTAD and the New International Economic Order’ (1977) 53(2) International Affairs 177. On the environmental point in trade see principle 10 of the 1972 Stockholm Conference on the Human Environment UN Doc A/​CONF.48/​14/​Rev.1, and recommendations 103 and 104 from the same gathering. See also the Founex Report, Environment and Development (1971), reprinted as Annex 1 to UN Doc A/​CONF.48/​10 (10 December 1971). For the self-​reliance see point 3 of the Cocoyoc Declaration: ‘Patterns of Resource Use, Environment and Development Strategies’ in B Ruster and B Simma (eds), International Protection of the Environment (Oceana 1979) vol 18, 9075. For the debate about special preference see J Foscolo, ‘Alternative Growth: Forsaking the False Economies of Industrial Agriculture’ (2014) 25(2) Fordham Environmental Law Review 316; F Kirschenmann, ‘Reforming Our Industrial Agriculture Economy’ (2011) 1(4) Journal of Agriculture, Food Systems and Community Development 231; P Woodhouse, ‘Beyond Industrial Agriculture? Some Questions about Size, Productivity and Sustainability’ (2010) 10(3) Journal of Agrarian Change 437. 3  C Gilbert, ‘International Commodity Agreements: An Obituary Notice’ (1996) 24(1) World Development 1; H Kox, ‘Integration of Environmental Externalities in International Commodity Agreements’ (1991) 19(8) World Development 933; Brandt Commission North–​South: A Programme for Survival (Pan Books 1980) 21, 32, 69–​72, 100, 141–​58, 186; Brandt Commission, North–​South: Common Crisis (Pan 1983) 15.

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their economies back in order drove their economies into two successive recessions. Reduced manufacturing output and median family income fell by 10 per cent, and unemployment rose to nearly 11 per cent. The real wages of American workers did not begin rising again until 1993, by which time they had fallen 15 per cent below their 1978 levels. As bad as the situation was in America, in the Soviet Union the economic meltdown and dissatisfaction with communism was so great that the entire regime would simply disappear from history over the course of the decade. The policies of political opening (glasnost) and economic restructuring (perestroika) introduced by the Premier Mikhail Gorbachev led to the disintegration of the Soviet Union. Although the citizens gained freedom, the social cost was very high. That is, as poverty and inequality quickly escalated, life expectancy fell from about a combined average for men and women of 69.1 in 1989 to a low of 64.4 in 1994 (while in the US it continued to increase slowly from its average of 75).4 The opposite of those crashing was those advancing, and using international trade to do it. For example, the Chinese leadership, after adopting market-​based reforms after Mao’s death in 1978, manoeuvred the country into a position to benefit from export trade, using its huge low-​wage population, access to the coast, creation of special economic zones, consolidation of industries, cooperation with offshore enterprises with modern technology, and large ex-​patriot communities to attract massive investment from all over the rich world. Their exports went from less than US$10 billion per annum to nearly US$50 billion over the 1980s. This was part of a process that saw the fastest economic growth rates ever seen in a major economy, expanding at an average rate of about 8 per cent per annum (a rate that implies a doubling of incomes every nine years) in the last two decades of the twentieth century. Japan also surged forward through exports (such as automobiles going from 12 billion to 65 billion in economic value between 1975 and 1985), as did South Korea, Vietnam, and Taiwan. India, also, managed to double its growth from less than 2 per cent (in per capita terms) to closer to 4 per cent during the decade, as it started to become much more friendly towards the private sector, wooing private business into the industrial establishment.5 As large parts of Asia were advancing owing to trade, and many of the commodity agreements were collapsing, much of the developing world was forced to reconsider their orientations on international trade. At the same time, a number of new regional trading blocks, such as with Europe (the Single European Act was agreed in 1986) and South America (the Mercosur, Southern Common Market) were emerging. These showed the benefit of more, not less, international exchange. All of this movement occurred as a new round of GATT-​based trade negotiations started in Uruguay in 1986. This round was no longer only about the wealthy Western countries. Now, the negotiations had over 100 contracting parties, including most of the developing 4  See generally R Service, The End of the Cold War: 1985–​1991 (Macmillan 2015). See also Frieden, Global Capitalism (n 1) 372–​73, 376–​77, 423; F Notzon, ‘Causes of Declining Life Expectancy in Russia’ (1998) 279(10) Journal of the American Medical Association 793. 5  J Sachs, The End of Poverty (Penguin 2015) 155; D Rodrix, The Globalisation Paradox (Norton 2011) 147–​50, 176–​79; M Tauger, Agriculture in World History (Routledge 2011) 161.

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world, as well as China and the Soviet Union. All of the countries (with relatively low sustained interest from NGOs) then began negotiation on fifteen separate issues, concluding their work in 1994 with the creation of the World Trade Organization (WTO) and major reductions in tariffs of about 40 per cent.6

3.  Debt A large catalyst for the push for free trade in the 1980s was because the economic situation had turned upside down, especially for many developing countries, which fell into serious debt. The roots of the debt crisis lay in the 1970s, as the international price of petroleum quadrupled within two years after 1973. The difference with this commodity compared to others was that, whereas most countries could limit their demand for other commodities, they could not limit their demand for petroleum, for which they had to pay the increased prices. The rapid increase in price was a large part of the cause of the economic slow-​down, recessions, inflation, and unemployment that followed in most countries that were dependent on foreign petroleum. Even in the communist countries in Europe, both the quantity and quality of their growth slowed rapidly. The only thing that did not slow down was the vast amount of money in circulation owing to the flush caused by the price of oil, with international lending going from about US$25 billion per annum in 1970 to about US$300 billion per annum, at the end of the decade. Many developing countries took advantage of this and borrowed heavily when interest rates were not prohibitive. The money was spent on any range of things that were as diverse as the governments (some good, some bad, some insane), the quality of their governance, and the ideologies that drove them.7 By 1975, most sub-​Saharan African and Latin American countries that had grown slowly since 1965 (or 1945 for Latin America) with a 3 per cent growth rate of GNP per capita stopped advancing. Agriculture and mining, former mainstays, were bled dry and manufacturing became weak and ineffective. Governments spent more and more money to keep their regimes in power and/​or to enrich themselves. A further round of oil shocks, further price rises owing to the 1979 Iranian revolution and interest rate rises in 1979 and 1980 rapidly exacerbated the problem. At this point, a number of developing countries had to face the fact that the economic model that many of them had been following was failing on a massive scale. The imports for their industries that were meant to be self-​sufficient were still required and their national economies that

6 M Hanegraaf, ‘Open the Door to More of the Same?’ The Development of Interest Group Representation at the WTO’ (2011) 10(4) World Trade Review 447; M Wilkinson, ‘Lobbying for Fair Trade: Northern NGOs, the European Community and the GATT Uruguay Round’ (1996) 17(2) Third World Quarterly 251; D Greenaway, ‘Developing Countries, GATT and the Uruguay Round’ (1993) 5(2) Journal of International Development 149; W Martyn, ‘The General Agreement on Tariffs and Trade: Negotiating Structure and Plans for the Uruguay Round’ (1988) 29(1) Harvard International Law Journal 199. 7  The figures are from Frieden, Global Capitalism (n 1) 348–​51, 397.

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they were keeping afloat were often costing more money than they were generating, especially as the price of (non-​oil) commodities, fell. By the end of the 1970s, creditors were becoming nervous.8 The borrowing by the developing world peaked at the end of 1981, when Latin America alone was borrowing US$1 billion per week. Nearly half of its export earnings were being used to pay the interest on the debt, leaving little to buy the imports it needed or to subsidize its economic and political goals. In the middle of 1982, Mexico announced that it had run out of money after private lending to the country stopped. Within six months, Mexico was joined by thirty-​three other developing countries that were all formally renegotiating their debts and a dozen more were in serious trouble.9 The International Monetary Fund (IMF), with the support of Western governments, the World Bank, and commercial lending institutions coordinated a global response. The IMF feared that if it did not step in, then sovereign debt default could become contagious. Although a few debtors threatened to default, the combination of different streams of debt (commercial, bilateral, and multilateral), in addition to the debtors’ ongoing need for external finance and a relatively unified front by the creditors (who threatened to strangle economically any country that did default), meant that a mass default never occurred. Even in the most obvious examples of where the doctrine of odious debt could have been justified, such as with the end of apartheid South Africa (in the early 1990s) and the transition to a democratic and non-​racist alternative, the new rulers opted not to pursue what they considered to be vague, complex, and politically fraught risks associated with ‘odious debt’. This was because the very people they were thinking of defaulting on were the same people they needed further financial assistance from to invest in their country in the future.10 As default was not possible, renegotiation became the order of the day. In the early 1980s, most of the debt was commercial (that is, lent by banks, primarily to middle-​income developing countries), although some of it was also bilateral (that is, lent by governments). The majority of the government creditors grouped together in what is known as the ‘Paris Club’ and produced a sequence of plans in 1980, 1985, and 1988. While some of the bilateral debt was cancelled or reduced for political reasons (such as supporting allies), most of the commercial debt was refinanced. Refinancing, often above one-​third of what was originally owed, occurred when the debtor promised to pay the balance and reorientate their lending needs to approved multilateral lenders (such as the IMF) and accept their conditionality for further money. A small amount (less than one-​thousandth 8  P Wood, ‘Sovereign Syndicated Bank Credits in the 1970s’ (2010) 73(4) Law and Contemporary Problems 7; J Bhagwati, In Defence of Globalisation (Oxford University Press 2007) 56–​58, 60–​64; South Commission, The Challenge to the South (Oxford University Press 1990) 55–​60. 9  M Hudson, Trade, Development and Foreign Debt (Pluto 1992) 307–​10. 10  J Damle, ‘The Odious Debt Doctrine after Iraq’ (2007) 70(4) Law and Contemporary Problems 139; R Howse, The Concept of Odious Debt in Public International Law (UNCTAD Paper Number 185 2007) 7–​19; T Ferguson, The Third World and Decision-​Making in the International Monetary Fund (Pinter 1992) 232–​34.

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of the total debt) of ‘innovative mechanisms’ of debt swaps for equity or nature evolved, under which organizations or entities bought over US$1 billion of foreign debt in exchange for their own, non-​commercial, goals, such as the creation of protected areas in the debtor country.11 As the IMF became the prism through which most of the debt was dealt with, it made it clear that they would only give further loans if the debtor country followed specific criteria. Alternately, if more commercial or bilateral finance was provided, it too was conditional on the debtor following the IMF guidance designed to prevent unsustainable current account imbalances to which ‘economic adjustment’ became the order of the day. Fundamentally, ‘economic adjustment’ involved those in debt spending less and stop running deficits. To do this, the debtor countries had to reduce their imports, devalue their currencies, cut government spending, and raise revenue. Accordingly, over the 1980s, one developing country after another deregulated banks, freed up capital markets, sold off government enterprises, raised taxes, and cut spending. These structural adjustment programmes were, as the former managing director of the IMF Michael Camdessus stated, ‘very tough and harsh’.12 This was an accurate assessment, as the debtor countries often ended up spending more on debt repayments than they received in assistance, and had to make savings by cutting expenditure which would otherwise be used for other purposes, ranging from subsidies for preferred national industries through to social welfare schemes.13

4. Collapse In the early 1970s, although some of the developing world was doing well, a new sector emerged that was declining. In these areas, the people were so vulnerable to economic and natural disasters and their populations so ‘undernourished, uneducated, unemployed and wanting in many other basic amenities of life . . .’14 that a 11  M Tucker, ‘A Proposed Debt for Nature Swap in Madagascar and the Larger Problem of LDC Debt’ (1994) 6 International Environmental Affairs 59, 63–​66; P Alagiri, ‘Give Us Sovereignty or Give Us Debt: Debtor Countries’ Perspectives on Debt-​for-​Nature Swaps’ (1992) 41 American University Law Review 485; T Hrynik, ‘Debt for Nature Swaps: Effective But Not Enforceable’ (1990) 22 Case Western Reserve Journal of International Law 141, 153; M Moline, ‘Debt for Nature Exchanges: Attempting to Deal Simultaneously with Two Global Problems’ (1991) 22 Law and Policy in International Business 133, 138, 150–​55. 12  M Camdessus, ‘World Debt’ Financial Times (24 September 1990) 18. 13  L Buchheit, ‘A Quarter Century of Sovereign Debt Management’ (2004) 35(4) Georgetown Journal of International Law 637; G Kaminsky, ‘The Debt Crisis: Lessons of the 1980s’ (1996) 50(1) Journal of Development Economics 1; G Bird, ‘The International Monetary Fund and Developing Countries: A Review of the Evidence and Policy Options’ (1996) 50(3) International Organisation 477; Oxfam International, Position Paper: Multilateral Debt—​The Human Cost (Oxfam 1996) 5–​10; W Bello Dark Victory: The United States, Structural Adjustment and Global Poverty (Pluto 1994) 28–​30; M Kahler, ‘Politics and International Debt: Explaining the Crisis’ (1985) 39(3) International Organisation 357; J Walton, Free Markets and Food Riots: The Politics of Global Adjustment (Blackwell 1994) 4–​8, 17–​19, 333–​38; Hudson, Trade, Development and Foreign Debt (n 9) 420–​26. 14  Paragraphs 3 and 4 of the United Nations ‘Second Development Decade’ UNGA Res 2626, 39. UN Doc A/​8028, 1970.

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new category of developing country appeared (in 1971) in the United Nations (UN) categories—​the Least Developed Countries. For many of these Least Developed Countries, the debt crisis of the 1980s put them into a viscous downward spiral. Even for countries that were not strictly in the poorest of the poor group, the debt crisis created an economic crisis unlike anything seen since the 1930s. That is, whereas an estimated 850 million people in the developing world were believed to be living at the margin of existence enduring hunger, sickness, homelessness, and absence of meaningful employment at the beginning of the 1980s, over the following ten years, the number expanded. This was the beginning of the ‘lost decade’ for Latin America, sections of Asia and large parts of Africa, as money stopped flowing in, and began flowing out instead. Income per person would decline, real wages would fall by at least 30 per cent, and investment would often dry up, while inflation rose about 1,000 per cent in many countries. The World Commission on Environment and Development in 1987 recorded the situation as On the development side, in terms of absolute numbers there are more hungry people in the world than ever before, and their number is increasing. So are the numbers who cannot read or write, the numbers without safe water or safe and sound homes and the numbers short on wood-​fuel with which to cook and warm themselves. The gap between rich and poor nations is widening—​not shrinking.15

In sub-​Saharan Africa, the annual growth of GNP per capita fell by 2.8 per cent between 1980 and 1986, and then 4.4 per cent between 1987 and 1990. These declines helped make sub-​Saharan Africa the only region in the world to experience negative growth in virtually every dimension until the turn of the twenty-​first century.16 Negative impacts were also associated with environmental damage as countries often chose to ‘mine’ their natural resources, or reduce standards of protection, as ways to encourage foreign development and accelerate exports of everything from minerals to clearing forests for agricultural products that could be sold internationally. The economic situation also often caused an exodus of poor people into natural ecosystems in search of means to increase their subsistence levels through trying to either stake out some land as theirs or practice shifting cultivation to sell what crops they could create and market. Such poverty driven shifting cultivation was responsible for 70 per cent of the deforestation in Africa in the 1980s and about

15 World Commission on Environment and Development, Our Common Future (Oxford University Press 1987) 2. The 850 million figure is from paragraph 3 of the ‘Third United Nations Development Decade’ UNGA/​RES/​35/​36 (3 December 1980). Note also J Weston, Development and the Environment: Red or Green Alternatives (Pluto 1984) 50–​65. 16 F Gutierrez, ‘Infant Health during the 1980s Peruvian Crisis and Long Term Economic Outcomes’ (2017) 89 World Development 71; N Clootens, ‘Public Debt, Life Expectancy and the Environment’ (Environ Model Assess IDEAS Working Paper Series from RePEc 2015) 2014/​DOI 10.1007/​s10666-​016-​9535-​1; W Attwell, ‘When We Have Nothing We All Eat Grass’ (2013) 31(4) Journal of Contemporary African Studies 564; J Serieux, ‘Debt of the Poorest Countries: Anatomy of a Crisis Kept on Hold’ (2001) 22(2) Canadian Journal of Development Studies 305; E Cheru, ‘Debt Relief and Social Investment: Linking the HIPC Initiative to the HIV/​AIDS Epidemic’ (2000) 27(86) Review of African Political Economy 519; UNDP, Human Development Report: 1999 (UNDP 1999) 11–​15; G Pyatt, ‘A Wasted Decade’ (1991) 35(2) European Economic Review 385.

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35 per cent in Latin America. Finally, money for conservation initiatives, let alone compliance with existing standards, became scarce.17

5.  Aid The extreme nature of this situation gave a strong push to the debates on international assistance, as the poorest countries were now (and many still remain) utterly dependent on external aid to meet the most basic levels of human well-​being for their citizens. Accordingly, all countries in the developed world were asked to ‘increase the net amount of financial flows from official sources to developing countries and to improve the terms and conditions thereof ’.18 Although the developed world accepted, in principle, the moral impetus behind this focus, the willingness to hand over more money (especially once the recession had started) declined as there was a weariness with such demands, and scepticism to what was actually being achieved with the assistance given. This began to become apparent when Jimmy Carter, on the presidential campaign trail in 1976, said that aid to developing nations consisted of taxing the poor in rich nations to help the rich in poor countries. This scepticism increased further in the 1980s as high-​profile incidents such as Ferdinand Marcos, the former President of the Philippines, came to light for allegedly embezzling US$5–​10 billion between 1972 and 1986. Donor governments recoiled from such corruption, at the same time as they began to recoil from the negative environmental impacts that some of their aid projects were causing in the developing world.19 Although the developed world was reconsidering the aid debate overall, it did start to open up to more self-​interested reasons for aid, such as providing additional finance (on top of the ideal 0.7% of gross domestic product for official development assistance) to help solve environmental problems of an international nature. Although this idea emerged in the 1970s, it only came into focus in the 1980s with 17  S Codjoe, ‘Long Term Determinants of Deforestation in Ghana: The Role of Structural Adjustment Policies’ (2009) 21(3) African Development Review 558; A Isla, ‘The Debt Crisis in Latin America: An Example of Unsustainable Development’ (1993) 13(3) Canadian Woman Studies 65; D Reed, Structural Adjustment, the Environment, and Sustainable Development (Earthscan 1996) 4–​5, 312–​14; S George, The Debt Boomerang: How Third World Debt Harms Us All (Pluto 1992). 18  Article 22 of the Charter of Economic Rights and Duties. For commentary regarding the development of this ethical angle in the 1970s see J Barry, ‘Democracy Promotion and ODA’ (2012) 18(3) Contemporary Politics 303; J Randel, ‘Aid, the Military and Humanitarian Assistance’ (1994) 6(3) Journal of International Development 329; B Opeskin, ‘The Moral Foundation of Foreign Aid’ (1996) 24 World Development 21. For the LDC angle see S Wojceich, ‘Are the LDCs Really the World’s Least Developed Countries?’ (2017) 38(4) Third World Quarterly 805. And of the period and LDCs see R McNamara, One Hundred Countries, Two Billion People: The Dimensions of Development (Praeger 1973 1973) 18–​19; E Mason, The World Bank Since Bretton Woods (Brookings 1973) 151–​55; and for the 1980s push see Brandt Commission, North–​South (n 3) 48, 90–​96; Brandt Commission, Common Crisis (n 3) 20. 19 C Brioschi, Corruption:  A Short History (Brookings 2017) 180–​81; R Hoddes, The Global Corruption Report (Transparency International 2004) 13; T Hayter, Exploited Earth:  Britain’s Aid and the Environment (Earthscan 1989) 39–​51, 91–​103; World Commission on Environment and Development, Our Common Future (n 15) 36, 67–​68, 313, 340.

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debates about how to protect the ozone layer. Originally, the parties to the Montreal Protocol had expressed all of the traditional phrases about the importance of participation of developing countries in their new regime, assisting them in this endeavour and gave them a different (easier) timetable for reducing the ozone-​depleting chemicals. However, these provisions did not satisfy the demands of countries such as China and India, which emphasized that they had not caused the problem and that they risked being denied the technologies that the developed world had already benefited from if they signed the Montreal Protocol. The solution to the problem was US$2 billion placed into a multilateral fund to assist developing countries in finding alternatives to conventional ozone-​depleting substances. Although some saw this as a type of ‘green ransom’ by the developing countries, others saw it as enlightened self-​interest by the wealthy countries to create and facilitate the additional assistance, from which a successful ozone regime was created.20

6.  Transnational Corporations The tide was against transnational corporations in the 1970s. Here, not only did the nationalizations continue in the developing world (at least eighteen countries nationalized international oil-​producing companies between 1970 and 1976), so too did a greater push for their regulation in both domestic (in developed and developing countries) and international settings. When it became apparent that the Central Intelligence Agency of the US had directly intervened in Central and South America (especially Chile) to protect the commercial interests of multinationals such as the United Fruit Company, the anger against transnational corporations was palpable.21 The quest for greater control over transnational corporations became stronger as the desire of some of them for profit over all other considerations began to become apparent in some settings. This was most obvious with issue of tobacco control, which took over five decades to reach an international agreement (eventually in 2003). Progress was slow because this industry worked tirelessly to undercut public health efforts and regulatory interventions designed to reduce the harms of smoking. The backbone of this effort was in committing to the principle of science and the protection 20  On the topic of additional aid for environmental matters in the 1970s see Stockholm Declaration art 9; and Recommendations 107 to 109, UN Doc A/​CONF 48/​14/​Rev.1 (1972) 11 International Legal Materials 1416, 1418. For the way it evolved in the 1980s see H Shue, ‘Global Environment and International Inequality’ (1999) 75 International Affairs 531; R Keohane, Institutions for Environmental Aid (MIT Press) 1–​27; M Williams, ‘Re-​Articulating the Third World Coalition:  The Role of the Environmental Agenda’ (1993) 14 Third World Quarterly 7; A Wood, ‘The Multilateral Fund for the Implementation of the Montreal Protocol’ (1993) 5 International Environmental Affairs 335, 338–​40. A Rosencranz, ‘Montreal Protocol: Bringing the Developing World on Board’ (1990) 20 Environmental Policy and the Law 202. 21  D Rivas, ‘Fruitful and Dangerous Intersections: Race, the United Fruit Company, and Scholars of Empire Converge in Central America’ (2014) 38(1) Diplomatic History 218; M Bucheli, ‘Multinational Corporations, Totalitarian Regimes and Economic Nationalism: United Fruit Company in Central America, 1899–​1975’ (2008) 50(4) Business History 433.

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of public health (and the rights of their consumers), but then creating and controlling a large pool of science, which challenged the status quo. This was achieved with the creation of their own research institutes and the filtering of scientific results. Doubt and uncertainty and the truism that ‘more information is needed’ became the industry’s standard line, first on direct smoking, and then on second-​hand smoke, or as a tobacco executive wrote in 1969, ‘doubt is our product, since it is the best means of competing with the “body of fact” that exists in the minds of the general public. It is also the means of establishing a controversy’.22 Even when a scientific point was conceded, the goal of the tobacco industry was to avoid hard laws and move towards voluntary, non-​ mandatory, standards.23 During the 1980s, as NGOs were battling tobacco companies in the developed world, in the developing world the issue was corporate support for breast milk substitutes. This occurred when some transnational corporations, such as Nestlé, became the focus of public criticism and consumer boycotts for their marketing of powdered milk formulae for infants in developing countries. The core issue was (and is) that breast-​feeding is one of most important measures to improve child health. The World Health Organization (WHO) estimated that, at the turn of the twenty-​ first century, 1.5 million deaths per annum could be prevented, through hygiene and nutrition, provided by effective breast-​feeding. The breakthrough was not an international law on the topic but, rather, an International Code of Marketing of Breast-​Milk Substitutes, as agreed in 1981. The aim of the code was (and is) for governments to contribute to the provision of safe and adequate nutrition for infants, by the protection and promotion of breast-​feeding, and by ensuring the proper use of breast-​milk substitutes, when these are necessary and on the basis of adequate information (not advertising). Eventually, most transnationals operating in this area came to comply with the code.24

22 Tobacco executive, as noted in S Otto, The War on Science (Milkweed 2016) 19. See also D Michaels, Doubt Is Their Product (Oxford University Press 2008) 79–​96; L Dorfman, ‘Cigarettes Become a Dangerous Product: Tobacco in the Rearview Window’ (2014) 104(1) American Journal of Public Health 37; A Brandt, ‘Inventing Conflicts of Interest: A History of Tobacco Industry Tactics’ (2012) 102(1) American Journal of Public Health 63. 23  The eventual agreement was the 2003 Framework Convention on Tobacco Control 2302 UNTS 166, ILM 42:518. See A Russell, ‘Uruguay, Philip Morris and WHO’s Framework Convention on Tobacco Control’ (2014) 29(2) Medical Anthropology Quarterly 256; H Weishaar, ‘Tobacco Company Strategies to Influence the WHO Framework Convention on Tobacco Control’ (2012) 9(6) PLoS Medicine e1001249; H Mamudu, ‘Tobacco Industry Attempts to Obstruct the WHO Framework Convention on Tobacco Control’ (2008) 67 Social Science and Medicine 1690; R Kluger, Ashes to Ashes: America’s Hundred Year Cigarette War (Vintage 1997) 35–​75. 24  The International Code of Marketing of Breast-​Milk Substitutes can be found in the annex to the Resolution WHA34.22 of 21 May 1981 http://​www.who.int/​nutrition/​publications/​code_​english.pdf; H Barennes, ‘Enforcing the International Code of Marketing of Breast Milk Substitutes’ (2016) 32(1) Journal of Human Lactation 20; A Hoepner, ‘The Level of Compliance with the International Code of Marketing of Breast Milk Substitutes’ (2014) 119 Journal of Business Ethics 329; C Boyd, ‘The Nestlé Infant Formula Controversy’ (2012) 106 Journal of Business Ethics 283; C Lutter, ‘The International Code of Marketing of Breast Milk Substitutes: Lesson Learned and Implications’ (2012) 16(10) Public Health Nutrition 1879; A Costello, ‘Protecting Breast Feeding from Breast Milk Substitutes’ (1998) 316(7138) British Medical Journal 1103; S Prakash Sethi, Multinational Corporations and the Impact of Public Advocacy on Corporate Strategy: Nestle and the Infant Formula Controversy (Kluwer 1994).

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The third instance that caused distrust of transnational corporations occurred in late 1984 when the worst industrial accident in history occurred at the (foreign-​ owned) Union Carbide pesticide plant in Bhopal, India. In this accident, at least 3,800 people were killed and thousands more were injured. Although the company eventually accepted some responsibility for the accident and paid US$470 million in compensation in 1989, when the arm of the company in India was subsequently merged, and then sold, and resold, considerations of ongoing liability dissolved.25 Such instances all helped lead to a push for the creation of international laws to regulate and supervise the activities of transnational corporations, with the first draft being unveiled at the UN in 1977. However, despite the agreed desire that transnational corporations should ‘take account of their environmental responsibilities’,26 the attempts at the UN to further such goals by creating a binding international law on the topic failed to progress past a draft code.27 Rather, what did occur was a complete change of emphasis, which came to focus on self-​regulation and voluntary efforts with what the World Commission on Environment and Development called ‘socially responsible industry with an awareness of environmental considerations’.28 This voluntary approach, which grew out of the late 1970s and the voluntary codes of the OECD, the International Labour Organization (ILO), and the International Chamber of Commerce suddenly blossomed after the mid-​1980s. This growth was because it became apparent to many business leaders that they could both divert strong laws on the topic, and reap corporate benefits (in terms of reputation and sometimes market advantage) at the same time, by adopting public voluntary codes. The follow through was the proliferation of voluntary initiatives such as the 1981 Environmental Guidelines for World Industry created by the International Chamber of Commerce, the updated Guidelines by the OECD of the mid-​1980s, and the Valdez/​CERES Principles, as created by the Coalition for Environmentally Responsible Economies in 1989 after the Exxon Valdez disaster. All of these contained the same core of industry adopting voluntary standards, beyond what was mandated by existing laws, to further environmental and/​or social goals.29 25  E Broughton, ‘The Bhopal Disaster and its Aftermath: A Review’ (2005) 4(6) Environmental Health DOI:  10.1186/​1476-​069X-​4-​6; C Abraham, ‘The Bhopal Case and the Development of Environmental Law in India’ (1991) 40(2) International and Comparative Law Quarterly 334; Y Tyagi, ‘Some International Law Aspects of the Bhopal Disaster’ (1988) 27(10) Social Science and Medicine 1105; D Ott, ‘Bhopal and the Law: The Shape of a New International Legal Regime’ (1985) 7(3) Third World Quarterly 648. 26  Nairobi Declaration (1982) ILM 21: 676 para 9. 27  See the 1977 draft and the United Nations Commission on Transnationals Working Group Report Draft, UN Doc E/​C.10/​1977/​3/​(4 May 1977) See also United Nations, ‘Report of the Group of Eminent Persons: The Impact of Multinational Corporations on Development and International Relations’ (ECOSOC 1974)  29. For later versions see the United Nations Commission on Transnationals Draft UN Code of Conduct, UN Doc E/​C.10/​1982/​6/​1982 (5 June 1982); and United Nations Commission on Transnational Corporations, Draft Code E/​C.10/​1984/​5/​5 (29 May 1984). 28  World Commission on Environment and Development, Our Common Future (n 15) 222, 329. 29  See the 1977 ILO Tripartite Declaration of Principles concerning Multilateral Enterprises and Social Policy, as reprinted in (1978) ILM 17: 422; the 1976 OECD Guidelines for Multinational Enterprises, reprinted in 15 ILM 969; B Hawk, ‘The OECD Guidelines for Multinational Enterprises’ (1977) 46|(2) Fordham Law Review 72; and finally, the 1974 International Chamber of Commerce,

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The other significant change that occurred for transnational corporations in the 1980s was that the paradigm around bilateral investment treaties began to change. Now, as developing countries needed new investment, they moved away from the somewhat arbitrary powers they once possessed over transnational corporations operating in their territories. Although each government could still regulate, this had to be done in a non-​discriminatory way against investors because of their foreign nationality, in that they agreed to treat them as they treated their own investors. All investors would be treated no less favourably than any other foreign investors under any future treaty arrangement. Governments would only expropriate investment if for a public purpose and if expropriation occurred it must be done with due process, on a non-​discriminatory basis and with effective compensation. Finally, they would allow transfers of funds between the investor and the investment in their territory. In short, within bilateral investment treaties, the pendulum between the rights of transnational corporations and the sovereign developing countries swung back towards the middle.30

7.  Sustainable Development Environmentalism went global in the 1970s. Although the International Court of Justice (ICJ) was uncertain of the importance and legal character of environmental law at this point in time, with hindsight it is now possible to be confident that everything changed in 1972 when the international community came together, for a first time at Stockholm, to discuss environmental problems that ‘extend beyond national boundaries and threaten the world as a whole’.31 The 1972 gathering, which set the sequence for all forthcoming ten-​year meetings, also set the agenda for a forthcoming sequence of international environmental agreements. It also provided the formation of the UN Environment Programme (UNEP), from which international leadership on such matters could be centralized, much as the Americans had done in creating their own Environmental Protection Agency in 1970, from which their national direction could be orientated.32 ‘Environmental Guidelines for World Industry’ (ICC 1974); OECD Guidelines on for Multilateral Enterprises on Environmental Concerns (1986) ILM 25:  494; C Hagg, ‘The OECD Guidelines for Multinational Enterprises:  A Critical Analysis’ (1984) 3(1) Journal of Business Ethics 71; the Environmental Guidelines for World Industry, reprinted in (1981) 7 Environmental Policy and the Law 45; Council of Environmental Quality, Twentieth Annual Report (CEQ 1990) 12–​13; J Elkington, The Green Capitalists (Tompkins 1987) 160–​65. 30  For the recent reiteration of these rules see ch 9 of the 2016 Trans-​Pacific Partnership Agreement. For their evolution see P Chase, ‘Investor State Dispute Settlement and the Rule of Law’ (2015) 14 European View 217. 31  Founex Report, Development and Environment, reprinted as Annex I to UN Doc A/​CONF. 48/​10 (1971). See also the third paragraph of the preamble of the 1972 Stockholm Declaration. 32  For the ambiguity around the ICJ on this question see the first Nuclear Tests Case (Australia and New Zealand v France) [1974] ICJ Rep 173, 253, and 457. For comments of the period see M Ivanova, ‘UNEP in Global Environmental Governance: Design, Leadership and Location’ (2010) 10(1) Global

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In terms of principles, in 1972, the international community agreed that it had a solemn responsibility to protect and improve the environment for present and future generations. This included the need to protect air, water, land, flora and fauna, and especially representative samples of natural ecosystems; to maintain, restore, or improve the capacity of the earth to produce vital renewable resources; and to guard against the exhaustion of non-​renewable resources of the earth and to halt the discharge of toxic substances or of other substances that cause serious or irreversible damage upon ecosystems (including oceans). The importance of national and international science and technology to understand, avoid, and remedy environmental problems was underlined.33 Where the Stockholm gathering really broke new ground was in its affirmation that ‘economic and social development is essential’34 and had to be taken hand-​ in-​hand with environmental goals. The idea that economic growth should stop to solve such problems was not accepted. This was especially because of the needs of the developing world to grow economically or, as the preamble to the Stockholm Declaration recorded, in ‘developing countries most of the environmental problems are caused by under-​development’.35 The Indian Prime Minister at the Stockholm Conference summed up the thinking by stating that ‘poverty is the worst form of pollution’.36 Robert McNamara, the then head of the World Bank added that ‘the question is not whether there should be continued economic growth. There must be. Nor is the question whether the impact upon the environment must be respected. It has to be . . .’.37 The quest, to marry economic growth, social development, and environmental protection took further steps forward with the 1980 World Conservation Strategy, and the 1982 World Charter for Nature. No longer was it deemed acceptable to be thinking about one of these considerations, without the accompaniment of the two others, when thinking about ‘development’. The culmination of this thinking occurred with the World Commission on Environment and Development in 1987, in which ‘sustainable development’ (development that meets the needs of the present generation without compromising the ability of future generations to meet their own needs) became the catch-​cry, henceforth. In paradigmatic terms, this

Environmental Politics 30; A Feraru, ‘Transnational Political Interests and the Global Environment’ (1974) 28(1) International Organisation 31; M Strong, ‘The Stockholm Conference’ (1972) 138(4) The Geographical Journal 411; W Kennet, ‘The Stockholm Conference on the Human Environment’ (1972) 48(1) International Affairs 33. 33  Principles 1, 2, 3, 4, 5, 6, and 7. The science ones are in principles 18 and 20. 34 Principle 8. 35  Preamble, paragraph 4. See also principle 11 from Stockholm, and principles 4(b) and (d) of UNGA Res 2849 (XXVI) (7 December 1970). 36  As noted in A Najam, ‘Developing Countries and Global Environmental Governance’ (2015) 5 International Environmental Agreements 303, 318; T O’Riordan, Environmentalism (Pion 1981) 112; W Adams, Green Development: Environment and Sustainability in the Third World (Routledge 1990) 68–​69. 37  R McNamara, The McNamara Years At the World Bank: The Major Policy Addresses 1968–​1981 (Johns Hopkins University Press) 196–​97. See also J Maddox, The Doomsday Syndrome (Macmillan 1972) 1, 4, 16–​17, 24, 27–​28, 65–​66, 78, 217–​18, 231–​33, 65–​66, 78; World Bank, Report on the Limits to Growth (World Bank 1972) 27–​42.

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meant that the only way forward for a healthy planet was in the pursuit of a development model in which the ecological, economic, and social components were all equal. Critically, economic growth was an equal part of this equation. Thus, believing that both technology and social organization could bypass any forthcoming problems, the World Commission stated that: Growth has no set limits in terms of population or resource use beyond which lies ecological disaster . . . a sustainable world economy requires . . . more rapid economic growth in both industrial and developing countries . . .38

Although this idea of sustainable development had many antecedents, when the World Commission on Environment and Development articulated it, it appeared not only revolutionary, but moreover, it seemed every leader, everywhere, agreed with it. Even the ICJ would later add: ‘this need to reconcile economic development with the protection of the environment is aptly expressed in the concept of sustainable development’.39

8.  Population Growth In 1970, humanity reached a total of 3.7 billion people on Earth and would expand to just under 4.5 billion by the end of the decade (a growth rate of just over 20%) before progressing to 5.2 billion (at a growth rate of 18.5% for the decade) by the end of 1989. This growth was accompanied by a total urbanization rate that now reached 40 per cent. To many, such increases led to a fear that the quantity of life could undermine the quality of life. Concern was mounting as there was scarcity in the world grain market leading to soaring prices in some regions, whilst in others, famine made repeated appearances. Drought and conflict-​related famine in the 1970s hit the Sahel, while government 38  World Commission on Environment and Development, Our Common Future (n 15) 44–​45, 89 and also 8, 16, and 217. See also G H Brundtland, ‘Our Common Future: A Call for Action’ in N Polunin, (ed), Maintenance of the Biosphere: Proceedings of the Third International Conference on Environmental Future (Edinburgh University Press 1990) 186, 188–​89. For the predecessors see para 3 and art XX of the 1980 World Conservation Strategy, as reprinted in B Ruster and B Simma (eds), International Protection of the Environment (Oceana 1980) vol 13, 424; World Charter for Nature UNGA Res 37/​7 UN GAOR Supp No 51 UN Doc A/​37/​51 (1982) para 6. See also H W Wood, ‘The United Nations World Charter for Nature’ (1985) 12 Ecology Law Quarterly 977, 987–​988. See also R Allen Strategy for World Conservation (Kogan Page 1980) 7, 137–​44; J McCormick, ‘The Origins of the World Conservation Strategy’ (1986) 10(3) Environmental Review 177. Note, the actual ‘right to development’ was declared in 1986. See the Declaration on the Right to Development UNGA A/​ RES/​41/​128 (4 December 1986 4); F Garcia, The Emerging International Law of Development (Oceana 1990) 31–​37, 66; S Chowdhury, The Right to Development in International Law (Nijhoff 1992) 199–​ 233. For commentary around the support for the idea see T Trainer, Developed to Death: Rethinking Third World Development (Green Print 1989) 3, 51–​56; T Trainer, Abandon Affluence (Zed 1989) 7, 115–​34; 146–​47; G Sen, Development Crisis and Alternative Visions (Earthscan 1988) 15–​25; D Adams, Green Development: Environment and Sustainability in the Third World (Routledge 1990) 172–​79, 201; J Engel, The Ethics of Environment and Development: Global Challenge, International Response (Belhaven 1990) 21–​27, 29–​31, 38, 145. 39  The Gabčíkovo-​Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 78, paras 140–​41.

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mismanagement and famine found Ethiopia in 1972 (resulting in the deaths of about 600,000 people), Bangladesh in 1974 (half a million people) and, between 1975 and 1979, war, famine, and ideology killed somewhere between 7 million and 11 million people in Cambodia. The following decade, famine hit in both Uganda in 1981 (killing 0.3 million) and the Sudan in 1984 (killing 0.5 million). In terms of sheer numbers of people, despite the valiant efforts of the World Food Programme and strong public outcry with Live Aid, between 1 and 1.5 million also starved to death in Ethiopia in the middle of the 1980s, in what was probably the largest famine in Africa in the twentieth century. Although this catastrophe was linked to political choices and military conflict in the country, the problem of extended droughts and population growth (Ethiopia’s population went from 35 million to 40 million between 1980 and 1985) was recognized as a factor.40 As catastrophes were beginning to emerge in the 1970s, the countries at the 1974 World Food Conference declared their determination  . . .  ‘to eliminate within a decade hunger and malnutrition’,41 affirmed that ‘every man, woman and child has the inalienable right to be free from hunger and malnutrition’,42 and created a UN-​based World Food Council (which existed until 1993) to try to manage food security.43 Despite such commitments, others began seeing the issue not just as a problem of too little food, but also, too many people. The most famous of these views in this period was the 1972 Limits to Growth report. This concluded that: If the present growth trends in world population, industrialisation, pollution, food production and resource depletion continue unchanged, the limits to growth on this planet will be reached within the next one hundred years. The most probable result will be a rather sudden and uncontrollable decline in both population and industrial capacity.44

Although some took a deeper view that it was considerations of population growth and consumption that needed to be considered (as in, over-​consuming minorities could cause as much damage as under-​consuming majorities), the overwhelming 40 C Gerlach, ‘Famine Responses in the World Food Crisis 1972–​75’ (2015) 22(6) European Review of History 1; T Robertson, The Malthusian Moment: Global Population Growth and the Birth of American Environmentalism (Rutgers University Press 2012) 151; A Poster, ‘The Gentle War: Famine, Relief, Politics and Privatisation in Ethiopia, 1983–​1986’ (2012) 36(2) Diplomatic History 399; C Dowlah, ‘The Politics and Economics of Food and Famine in Bangladesh in the Early 1970s’ (2006) 15(4) International Journal of Social Welfare 344; J Comenetz, ‘Climate Variability, Political Crises and Historical Population Displacements in Ethiopia’ (2002) 4(4) Environmental Hazards 113; A Sen, Development as Freedom (Anchor 1999) 180–​87; A Waal, Famine Crimes (Indiana University Press 1997) 106–​32. 41  Resolution V, Report of the World Food Conference, Rome (5–​16 November 1974) UN. Doc E/​ CONF.65/​20 (1975). 42  See the Universal Declaration on the Eradication of Hunger and Malnutrition UNGA Res 3348 (XXIX) (17 December 1974). 43  Gerlach, ‘Famine Responses in the World Food Crisis 1972–​75 and the World Food Conference of 1974’ (n 40) 1; J Shaw, ‘The World Food Council: The Rise and Fall of a United Nations Body’ (2010) 30(3) Canadian Journal of Development Studies 663. 44  D Meadows, The Limits to Growth (Earth Island 1972) 17, 66–​69. See also M Schoijet, ‘Limits to Growth and the Rise of Catastrophism’ (1999) 4(4) Environmental History 513.

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debate focused only on human numbers and not consumption patterns. However, even with this more narrow view of the problem, the international community could not decide on how to proceed collectively. Although the countries at the 1972 Stockholm Conference on the Human Environment could agree ‘the natural growth of population continuously presents problems for the preservation of the environment’,45 the bottom line was that it was for each country to consider its own demographic policies, in light of considerations of human rights, development, and adverse effects on the environment.46 Although most of the developed world, as well as China (after the death of Mao with the advent of their ‘one child’ policy and an estimated 400 million births prevented over the next three decades), and India (albeit with a controversial sterilization linkage), all promoted advanced family planning and contraception, overall progress was slow. In the decade of the 1970s, seventy-​nine out of a then 138 countries did not promote family planning. Accordingly, statistics with a global focus which suggested only 36 per cent of all married women or women living with a partner were at that point using some form of contraception, remained hard to change. Even with the US, the Nixon administration was fearful of pursuing the matter too far, owing to its own domestic politics around birth control. When the matter was dealt with at the international conference on population at Bucharest in 1974, the delegates got no further than entrenched argumentation over whether development policy or population policy came first. In large part, this was because there were many delegations that continued to maintain that rapid population was not a problem.47 When the topic was readdressed by the international community at the 1984 International Conference on Population in Mexico City, progress was again evasive. The best that could be achieved was a resolution which recognized that ‘to be realistic, development policies, plans and programs must reflect the inextricable links between population, resources, environment and development’.48 This was an ironic situation, as now, many of the large developing countries (China, India, 45  Paragraph 5 of the Preamble to the Declaration. 46 Declaration of the United Nations Conference on the Human Environment. UN Doc A/​ CONF.48/​14. Principle 16; A Chayes, ‘Post Stockholm’ (1972) 66 American Society of International Law Proceedings 3, 8. 47 J Zhang, ‘The Evolution of China’s One Child Policy’ (2017) 31(1) Journal of Economic Perspectives 141; R Williams, ‘Storming the Citadels of Poverty: Family Planning Under the Emergency in India, 1975–​1977’ (2014) 73(2) Journal of Asian Studies 471; M Whyte, ‘Challenging Myths About China’s One Child Policy’ (2015) 74 The China Journal 144, 244–​45; D Hoff, ‘Kick That Population Commission in the Ass: The Nixon Administration, The Commission on Population Growth and the American Future’ (2010) 22(1) Journal of Policy History 23; S Greenhalgh, ‘The Origins of China’s One Child Policy’ (2005) 182 The China Quarterly 182, 253–​76; T Hesketh, ‘The Effect of China’s One Child Family Policy After 25 Years’ (2005) 353(11) The New England Journal of Medicine 1171; J Finkle, ‘The Politics of Bucharest: Population, Development and the New International Economic Order’ (1975) 1(1) Population and Development Review 87. 48 Mexico City Declaration on Population and Development. International Conference on Population. Mexico City (6–​14 August 1984). This is reprinted in S Johnson, World Population: Turning the Tide: Three Decades of Progress (Graham and Trotman 1995) 165–​85, para 8. See also D Gwatkin, ‘The State of the World’s Population Movement: Implications of the 1984 Mexico City Conference’ (1985) 13(4) World Development 557; J Finkle, ‘Ideology and Politics and Mexico City’ (1985) 11(1) Population and Development Review 1.

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Mexico, Nigeria, and Pakistan) expressed their firm support for family planning and population policies, and there were now 123 countries out of the then 157 members of the UN providing family planning services. However, other previously vocal countries, such as the US—​which had become more vocal during the Carter era—​now became silent during the Reagan era, considering the population to be a neutral phenomenon for development, and changing its policy to not funding any family programmes if they were linked to facilitating abortion. Conversely, other developed countries doubled down on their provision of financial aid for family planning. Such a lack of international vision was only improved when the 1987 World Commission on Environment and Development, after noting the differences in consumption rates between the rich and poor countries, stated clearly that ‘present rates of population growth cannot continue’.49

9. Habitat The number of protected areas on the planet increased from 17,000 to 40,000 sites between 1970 and the end of 1989. In addition to this growth in numbers, two positive, significant steps towards improved habitat occurred. First, the issue of wetland degradation was addressed. Prior to 1960, very few people had considered wetlands (from fens, to bogs, to mangroves) to have more value than drained land. While advocates for forests appeared through history, there was no comparison for wetlands. Hundreds of years of draining wetlands everywhere had been the pattern and, by 1970, perhaps 50 per cent of all wetlands that had ever existed disappeared owing to human influence. Countries such as New Zealand drained 90 per cent of their wetlands, Europe from 60 per cent to 90 per cent, and the US, perhaps 47 per cent of theirs. Similarly, the Philippines had removed two-​thirds of its coastal mangroves before 1970, as had six South and Southeast Asian countries, collectively, removing about 13 million hectares of mangroves.50 Against this trend, in one of the most understated achievements of the 1970s, the (Ramsar) Convention on Wetlands of International Importance was concluded. This convention, the first of its sort with the creation of thematically important protected areas, created a list of nationally designated wetlands of international importance. By the middle of 2017, the Ramsar Convention had 169 parties, who had collectively inscribed 2,266 sites covering a total of 218,605,065 hectares.51 The second significant achievement on habitat protection occurred in 1972 with the World Heritage Convention. This was created because the international community could see that the cultural heritage and the natural heritage of the Earth was 49  World Commission on Environment and Development, Our Common Future (n 15) 95. For an earlier notation of the overpopulation risk in this epoch see Brandt Commission, North–​South: A Programme for Survival (n 3) 105–​108, 113, and 165. 50  J McNeill, An Environmental History of the Twentieth Century World (Norton) 186–​87; P Dugan, Wetlands in Danger: A World Conservation Atlas (Oxford University Press 1993) 45–​51. 51  The Ramsar Convention on Wetlands of International Importance, 996 UNTS 245 or (1972) International Legal Materials 11:963. The contemporary figures are from the Ramsar website.

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being increasingly threatened with destruction through traditional causes of decay, in addition to changing social and economic conditions. To solve this problem, the signatories to the convention agreed to create a process to identify and protect the parts of the cultural or natural heritage which were of outstanding universal value and therefore needed to be preserved as part of the world heritage of mankind as a whole. The difference from the Ramsar Convention was that, whilst one was purely thematic in ecosystem type to be given international status, the World Heritage Convention was focused purely upon the best of the best (the top 1% of all protected areas) to be given international attention and resources. As of the middle of 2017, 165 parties had listed 1052 sites were inscribed as World Heritage, of which 203 were natural sites and thirty-​five were mixed natural and cultural.52 The other habitat that the international community attempted to address in the 1970s was that which was threatened by desertification. For this a Plan of Action to Combat Desertification emerged from the 1977 UN Conference on Desertification. Here, the international community agreed that the problem could only be understood by looking at arid ecologies, droughts, and economic and cultural conditions and practices—​all in context and at the same time. Solutions had to be built from the ground up, in which new technologies, practices, and economic conditions had to change, if progress was going to be made. However, as became apparent in the 1980s, solutions were not to be found for this problem as desertification continued to expand at an estimated rate of about 6 million hectares per annum. This was because there was a real lack of commitment to engage this topic outside of the countries that had the capacity to direct such goals, such as in Soviet Russia and China. The result was that desertification started to become, primarily, a problem in the poorest of the developing world countries.53 The final and most significant failure to protect habitat between the 1970s and 1980s involved deforestation, and especially that in the tropics as deforestation in temperate countries was largely now under control. Although the countries of South America voiced the importance of the conservation of their forests (and scholars and scientists started to talk about the values of tropical forests for livelihoods, habitat, and ecosystem stability—​especially with regard to climatic change) deforestation proceeded apace. Some two million hectares per annum were converted to pasture in Latin America (while countries such as Costa Rica fell from 67% forest cover in 1940 to only 17% in 1983), as well as considerable export markets for tropical timber were developed. Overall, deforestation in the tropics in the 1970s hit a rate of 10.7 per cent. This trend continued in the 1980s, when there were annual deforestation rates in Asia of 1.2 per cent per annum, 0.9 per cent in Latin and Central 52  Many of the words in this paragraph are from the paragraph 7 in the preamble, as well as arts 2 and 4 of the World Heritage Convention, 1037 UNTS 151 or 1972 ILM 11: 1358. The contemporary figures are from the WHC website. 53  The international actions on desertification in this period, that went unimplemented, were the World Soil Charter adopted by the FAO in 1981, and the Worlds Soil Policy by UNEP in 1982. Nonetheless, they achieved little. See M Tolba (ed), The World Environment, 1972–​1992 (UNEP, Chapman 1992) 132; J Mabbutt, ‘Implementation of the Plan of Action to Combat Desertification’ (1987) 4(4) Land Use Policy 371.

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America, and 0.8 per cent in Africa. What this meant in total was that, in the tropical region, between 1980 and 1990, a deforestation rate of close to 11 per cent was being achieved. The only serious engagement in this area during this period was with the International Tropical Timber Agreement of 1983 (which was revised in 1994 and 2006). Here, although the importance of sustainable practices was iterated, the overall goal was about ensuring the trade in tropical timber and stopping unilateral or discriminatory trade practices against tropical timber did not evolve.54

10. Species Efforts to conserve endangered species made spectacular progress during the 1970s. Countries and regions in the 1970s responded to this concern in unprecedented ways. The real breakthrough, in terms of domestic law, occurred under President Nixon with the 1973 Endangered Species Act of the US, as this completely rewrote the earlier legislation on this topic, in its goal to protect species (endangered or threatened) and their critical habitat, so as to prevent the extinction of endangered species and help their recovery. By the middle of 2017, approximately 2,270 species were listed as endangered or threatened, from which legal obligations to conserve followed.55 At the international level, while regional initiatives to cover individual species (such as polar bears) or entire regions (such as Europe) with obligations to protect the endangered and their habitats occurred, the stellar achievement of the decade was the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora. Owing to the emerging trends of species becoming endangered because of international trade, it was agreed to regulate this practice by listing species either in Appendix I (threatened with extinction, absolutely minimal trade), II (could become threatened with extinction through trade, and can only be traded if the population is sustainable), or III (cooperation warranted). From these basic considerations, the international community has come to cover about 5,600 species of animals and 30,000 species of plant. Species as diverse as primates, whales, and elephants, through to corals, cacti, and orchards are now subject to regulation to ensure their conservation. Each one of these species would end up becoming a conservation battle in themselves. For example, elephants would originally be split between Appendix I (for Asian elephants) and Appendix II (for African 54  M Williams, Deforesting the Earth (Earthscan 2006) 372; Tolba, The World Environment, 1972-​ 1992 (n 53) 165, 169; FAO, Forest Resources Assessment 1990: Global Synthesis (FAO 1995) ix; A Gross, ‘Amazonia in the Nineties:  Sustainable Development or Another Decade of Destruction?’ (1990) 12(3) Third World Quarterly 1–​24; M Forster, ‘Tropical Timber Agreement in Force’ (1985) 14(2) Environmental Policy and the Law 50–​51. 55  See J Flippen, Nixon and the Environment (University of New Mexico Press 2000); P Sabin, ‘Environmental Law and the End of the New Deal Order’ (2015) 33(4) Law and History Review 965; Z Plater, ‘Endangered Species Act Lessons Over 30 Years’ (2004) 34(2) Environmental Law 289; L Caldwell, The National Environmental Policy Act (Indiana University Press 1998); L Caldwell, ‘Environmental Policy as a Catalyst of Institutional Change’ (1974) 17(5) The American Behavioural Scientist 711.

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elephants), before African elephants were upgraded to Appendix I at the end of the 1980s (albeit with subsequent occasional ad-​hoc sales of ivory for countries with robust stocks), after their total population had fallen from 1.3 million to less than 600,000.56 Six years later in 1979 much of the international community came together and created the Convention on Migratory Species. This created lists of species that migrated between countries, of which either they and/​or their habitats were endangered. Appendix I species are recognized as endangered and are given priority attention, and the parties are obliged to endeavour to provide immediate protection, directly under the auspice of the Convention. Appendix II species have an ‘unfavourable conservation status’ and are, primarily, subject to specific agreements to help enhance their conservation. These may be either more formal agreements (in essence, small treaties) or less formal, memorandums of understanding. In total, by 2017, some 560 species were covered in either Appendix I or II, and the commitments to conserve were bolstered by seven agreements (covering species from gorillas to bats) and nineteen memoranda of understanding, covering everything from sharks to elephants in West Africa. Each one of these was, and is, a hard-​fought conservation success.57 The largest conservation battle that was achieved during this period occurred in 1982, when following a decade long struggle to reach a (required) 75 per cent majority at the International Whaling Commission was achieved, a moratorium was placed on the commercial hunting of all whales. At this point, the Commission moved from prohibitions of catching particular (endangered) species of whales, to a global moratorium on all whaling. The moratorium was meant to last until a revised management scheme (whereby the long-​term sustainability of whaling on particular stocks could be guaranteed) could be devised. As the revised management scheme failed to eventuate, a number of countries, with Japan at the forefront, decided to pursue efforts at obtaining whales (over 7,000 primarily minke whales) under the ‘scientific’ exception contained within the International Convention for the Regulation of Whaling. Although aspects of their programme (especially its unjustifiable scale) were eventually condemned by the ICJ, their right to lethally take a smaller number of whales (about 300 to 400 per annum), within robust scientific studies, was upheld.58

56  Some of this paragraph is quoted from paragraph 1 in the preamble, and art 2 of the Convention on International Trade in Endangered Species of Wild Fauna and Flora 27 UST 1087; 993 UNTS 243. For the elephants see J Blanc and others, African Elephant Status Report 2007 (IUCN 2007) 18–​22. See the 1973 Polar Bear Agreement, as in A Kiss (ed), Selected Multilateral Treaties in the Field of the Environment (UNEP 1982) 401. The 1979 Convention on the Conservation of European Wildlife and Natural Habitats is also in Kiss at 509. 57  This paragraph uses words from arts II(1) and III(4) from the Convention on Migratory Species 1651 UNTS 339 and (1980) ILM 19: 15. 58  For the case see Whaling in the Antarctic (Australia v Japan, New Zealand intervening) Judgment [2014] ICJ Rep 226. For the decision to create a moratorium see IWC, 33rd Report from the International Whaling Commission (IWC 1983) 21.

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Change in the way the other species in the oceans were dealt with also started to emerge in this period as the pressures on fish stocks began to mount. That is, in the 1970s about 50 per cent of the world’s fish stocks were fully exploited, 40 per cent had room for further expansion, and about 10 per cent of the stocks were over-​ exploited. In the 1980s,the percentage that was not fully exploited fell to 25 per cent and that over-​exploited rose to 25 per cent. In some instances, overexploitation led to collapse, as occurred with the collapse of Peru’s anchoveta fishery (from 7 million to 2 million tons) in 1972. To such challenges, the ICJ stated that the former laissez-​faire treatment of the living resources in the high seas has been replaced by a recognition of a duty to have due regard to the rights of other states and the needs of conservation for the benefit of all. The subsequent conventions for the take of both seals and fish, and the long-​awaited Northwest Atlantic Fisheries Organization (which took three decades to negotiate), all promised to have conservation as a more equally weighted consideration, next to sustainable exploitation. These were all followed by the United Nations Convention on the Law of the Sea which, inter alia, set down the bottom line in this area that in pursuing the maximum sustainable yield of fish stocks, both the targeted and collateral (bycatch) species were not to be endangered by overexploitation.59 The final development to note with regard to species in the 1980s, was that a new term—​‘biodiversity’—​entered into the mainstream of conservation language. This new term tried to expand the focus of conservation beyond the most popular and spectacular species (‘megafauna’) towards the greater diversity of other species, which have equally important roles to play in ecosystems. This occurred as scientists began mapping out projected extinction rates, devised by species density and habitat loss. Such projections suggested the overall extinction rate of species could have reached 100 species per annum, and that between 15 per cent to 33 per cent of all species could be rendered extinct by the turn of the millennia owing to unprecedented destruction of habitat.60 59  The 1970s marine exploitation treaties of note were the 1972 Convention for the Conservation of Antarctic Seals, the 1973 Convention on the Fishing and Conservation of the Living Resources in the Baltic Sea and the 1976 Convention on the Conservation of North Pacific Fur Seals, and the 1979 North Atlantic Fisheries Organisation. The ICJ case was the Fisheries Jurisdiction Case (UK v Iceland) [1974] ICJ Rep 3, 32 at para 72. For discussion of what happened in Peru see M Glantz, ‘Science, Politics and Economics of the Peruvian Anchoveta Fishery’ (1979) 3(3) Marine Policy 301.The new fisheries agreements the 1980 Convention on the Conservation of Antarctic Marine Living Resources, the 1980 North East Atlantic Fisheries Convention; the 1982 Nauru Agreement Concerning Cooperation in the Management of Fisheries of Common Interest; and the North Atlantic Salmon Conservation Organization of 1983. The articles quoted from the United Nations Convention on the Law of the Sea are 61(2) 61(4) 118, and 119. The UNCLOS can be found at 1833 UNTS 3 or (1982) ILM 21: 1261. 60  J Luiz, ‘The Concept of Biodiversity and the History of Conservation Biology’ (2013) 32(2) Historia 17; T Farnham, Saving Nature’s Legacy: Origins of the Idea of Biological Diversity (Yale University Press 2007); E Wilson, ‘Threats to Biodiversity’ (1989) 261(3) Scientific American; World Commission on Environment and Development, Our Common Future (n 15) 152; US Council on Environmental Quality, Global 2000: Report to the President (USCEQ 1980) II: 328. See also P Ehrlich and A Ehrlich, Extinction (Random House 1981) 193–​95, 347–​48; N Myers, The Sinking Ark (Pergamon 1979) 4–​5, 17.

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11.  Air Pollution The biggest success in the area of air pollution in the 1970s and 1980s was that the scientific understanding of the problem of lead-​based gasoline (and soon after lead-​based paint) was finally accepted, and action to remedy the problem quickly followed. This acceptance occurred just as lead additives in fuel peaked at 350,000 tons worldwide, during the early 1970s, with 270,000 of these in Western countries. This acceptance was only achieved when the scholarship of Clair (Pat) Patterson became accepted. Patterson publicly challenged the orthodox view that lead in industrial products, especially gasoline, was not a problem by showing increased lead levels in the environment and the food chain owing to anthropogenic sources of lead pollution. For his science, Patterson found himself barred from public and private contracts with many research organizations and exclusion from national research councils. However, by the late 1970s, after others had independently validated the science of Patterson and additional findings showed that lead in the human body was highly detrimental, action followed swiftly. Lead standards were set for the workplace and for ambient pollution levels. As alternatives were easily available, lead in petrol was progressively phased out, before full bans for regular gasoline occurred (during the 1990s) for most of Europe and the US. Such actions saw lead levels in citizens decline by over 95 per cent within two decades in these areas.61 Despite this progress, the prohibition on lead in gasoline was never dealt with by international treaty. This failure was attributable, in large part, to the persuasive lobbying powers of lead-​producing countries, with Australia and Canada being notable at the time. The strongest international guidance came from the 2002 World Summit on Sustainable Development, which called for commitment to reduce respiratory diseases and other health impacts resulting from air pollution by ‘supporting the phasing out of lead in gasoline’.62 The same conclusion also applies to lead in paint, in that, although most developed countries have strictly regulated it, it is not controlled under international law. 61  D Rosner, ‘Building the World That Kills Us: The Politics of Lead, Science and Polluted Homes, 1970 to 2000’ (2016) 49(2) Journal of Urban History 323; G Markowitz, Lead Wars and the Fate of America’s Children (University of California Press 2013) 17–​24, 97–​95, 168–​78; W Kovarik, ‘Ethyl-​ Leaded Gasoline: How a Classic Occupational Disease Became an International Public Health Disaster’ (2005) 11 International Journal of Occupational and Environmental Health 384; H Needleman, ‘The Removal of Lead from Gasoline:  Historical and Personal Reflections’ (2000) 84 Environmental Research 20; H Hilton, ‘Income, Liberty, Idiosyncrasies and the Decline of Leaded Gasoline, 1972 to 1992’ (1999) 8(1) Journal of Environment and Development 49; J Nriagu, ‘Clair Patterson and Robert Kehoe’s Paradigm of “Show me the Data” on Environmental Lead Poisoning’ (1998) 78 Environmental Research 71. 62 WSSD, ‘Plan of Implementation of the World Summit on Sustainable Development’ A/​ CONF.199/​L.1 para 56; P Landrigan, ‘The Worldwide Problem of Lead in Petrol’ (2002) 80(10) Bulletin of the World Health Organization 768; K Isam, ‘Phasing Out Lead in Automatic Fuels’ (2000) 5(6) Transportation Research Part D 187; OECD, Phasing Lead out of Gasoline (OECD 1999) vii-​x; T Patel, ‘Industry Blocks International Ban’ (1995) 147 New Scientist 10; V Thomas ‘The Elimination of Lead in Gasoline’ (1995) 20 Annual Review of Energy and the Environment 301.

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The second area of progress in confronting air pollution that occurred in the 1970s and 1980s was that although coal and oil-​dominated energy supply, in the 1970s, interest in wind-​power advanced as the American government began research into large commercial wind turbines placed in clusters. In the same period, the cost of solar cells was significantly reduced, falling from US$100 a watt down to US$20, at the same point as their efficiency levels grew. These improvements allowed their wider utilization in remote locations that were not accessible to the main power grid. With such advances, President Carter optimistically announced ‘the dawning of the solar age’.63 This dawn started to get closer in the 1980s as the efficiency of solar cells continued to improve, their costs of production continued to fall, and worldwide photovoltaic production exceeded 20 megawatts. Similarly, continual advances in the design and location of wind turbines in the 1980s saw the first windfarm (over 20 turbines) built in New Hampshire in the US, but this failed owing to inadequate technology (at this point).64 Despite these advances, the massive and overwhelming use of coal and oil meant that air pollution was a growing problem in many countries. By one calculation, the intense pollution in Upper Silesia and Krakow in the mid-​1970s was killing between 6,000 and 7,000 people per annum, and by the end of the 1980s in Poland and Czechoslovakia, sulphur dioxide depositions averaged 12,000 micrograms per square metre every month. Such depositions were often matched with ‘acid rain’. This was first recognized in a modern setting at the end of the 1970s when rainstorms occurring in Scotland and Norway contained rain with a pH acidic equivalent of vinegar, whilst a rainstorm was recorded in West Virginia contained the pH equivalent of lemon juice. By another calculation, air pollution in the US in the 1970s was estimated to be reducing the life expectancy of between 30,000 and 60,000 Americans each year. To make matters even worse, in this period of the 1970s, countries such as Sweden (and Canada) were discovering that the majority of the air pollution impacting upon their citizens and ecosystems was coming from other countries.65 By the following decade, substantial air pollution problems were also being recorded in the developing world. This air pollution was attributable to a combination of both the old coal-​based technologies, as well as the new oil-​based ones, as cities such as Mexico city went from perhaps 100,000 vehicles in 1950 to 2 million in 1980 (and 4 million by 2000). In Calcutta in the 1980s, air pollution was the equivalent of smoking a pack of Indian cigarettes per day, with emissions from indoor cooking and heating, vehicle traffic, and industry, all expanding at the same time. In some instances, this pollution was now becoming regional, with Japan

63  Anon, ‘Carter Rises Over US Solar Power’ (1979) New Scientist 1070; Anon, ‘Solar Energy Has Brighter Future’ (1978) New Scientist 891; Anon, ‘Windmills Spin into Action’ (1977) New Scientist 574. 64  A Charnock, ‘A Desert With Solar Cells’ (1985) New Scientist 23; R Milne, ‘Soviet Advance In Solar Power’ (1985) New Scientist 31; Anon, ‘How Wind Power Cracks Up’ (1984) New Scientist 31; M Grubb, ‘The Wind of Change’ (1988) New Scientist 43. 65 McNeill, An Environmental History of the Twentieth Century World (n 50) 62–​63, 81–​85, 89–​91; G Smith, ‘Acid Rain’ (1979) Scientific American 39.

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beginning to record acid deposition from Chinese and Korean sources at the end of the 1980s.66 Where the positive change came at the domestic level was with the 1970 Clean Air Act of the US. This ground-​breaking piece of legislation (matched by their Clean Water Act) mandated federal standards, state and local air pollution control activities for automobiles, new stationary facilities, fuel additives, and other pollution sources. Soon after, standards were announced for six pollutants (low level ozone, hydrocarbons, nitrogen oxides, sulphur dioxide, and particulates), that could not be exceeded anywhere in the US by 1975 (which was also the same year that catalytic converters on automobiles became mandatory). Thereafter, the restricted air pollutants were expanded, and the standards to be achieved, heightened. The oil embargo, followed by rapidly escalating oil prices in the early 1970s helped spur the Energy Policy and Conservation Act, from which minimum energy standards for dozens of consumer products were set, along with the Corporate Average Fuel Economy standards, to improve the fuel economy of cars and light trucks for sale in the US. This has meant that, for an average vehicle, their efficiency has been stretched from eighteen miles per gallon (in 1978) to what should be sixty miles per gallon (in 2025). The positive change at the international level came with the first step in addressing the problem of transboundary air pollution, as found with the articulation of Principle 21 from the 1972 Stockholm Conference. This stated that although States had a sovereign right to exploit their own resources pursuant to their own policies, they also had the ‘responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction’.67 From this principle, shared regional air pollution monitoring and evaluation systems were established in Europe and North America. The result of these understandings was the 1979 Convention on Long Range Trans-​boundary Air Pollution (LRTAP). Although this did not contain any hard emission restriction targets, it set the groundwork for entrenching scientific research on the topic, and the expectation that specific protocols would follow, which would restrict the pollutants as needed. This model of a framework convention followed by subsequent protocols with specific reduction targets would go on to be the prototype for ozone depletion and climate change.68 The genius that allowed political progress to be made on air pollution in Western Europe and North America was the creation of a process that allowed for unified views on the nature, cause, and solution of problems, from the perspective of 66  P Park, ‘Canada, Land of Dying Lakes and Forests’ (1992) New Scientist 9; W Chandler, ‘Energy for the Soviet Union, Eastern Europe and China’ (1990) Scientific American 75; D Silverton, ‘A Silent Sprint in China’ (1989) New Scientist 27; K Foretier, ‘The Degreening of China’ (1989) New Scientist 24; Anon, ‘Europe’s Trees Sicken Further’ (1987) New Scientist 19. B Stone, ‘Japan Wakes up to Acid Rain’ (1985) New Scientist 20; C Rose, ‘Acid Rain Falls on British Woodlands’ (1985) New Scientist 52; Anon, ‘One Third of German Trees Hit by Acid Rain’ (1983) New Scientist 250; L Timberlake, ‘Poland: The Most Polluted Country in the World?’ (1981) New Scientist 248. 67 Principle 21. 68  See the preamble and arts 2, 3, 4, 8, and 9 of the 1979 Convention on Long Range Transboundary Air Pollution, BH764.txt.

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science. This not only provided policy makers with a unified view, it ended much of the inter-​country bickering between scientists that otherwise blighted international cooperation. The start of this thinking in the 1980s was the Programme for the Evaluation and Monitoring of Long Range Pollutants in Europe, which was created as a separate protocol to the 1979 LRTAP. This created a permanent, and independently funded, body for scientific research into the problem of air pollution in Europe. Through this mechanism, all of the scientific topics (individual pollutants, methodologies, and impacts) were divided between the countries, allowing some to become leaders on that theme, but the teams had to be with scientists from all of the other parties to the agreement.69 When the science became clear, it became possible for the interested parties to mandate reductions in air pollutants. This occurred with two protocols, which were added to the LRTAP regime. With these, the signatories agreed to reduce sulphur emissions by at least 30 per cent and hold their emissions of nitrogen oxides at 1987 levels. Similar agreements limiting the amount of sulphur emissions going between Mexico and the US were also agreed in 1986. In 1991 Canada and the US, reached agreement on cooperation on the science, shared air corridors, and emission limits, (with caps and reductions) for sulphur oxides and nitrogen oxides. Thereafter, sulphur emissions fell by 15 per cent for US, and 25 per cent for Canada, over the 1980s.70 The brilliance of this model of internationally-​based cooperative science (in which its integrity was subsequently strengthened with principles of transparency, inclusion, recording and examination of dissent, within a series of nationally lead checks and balances) became the model for the inclusion of science in the sustainable development debate, in the decades that followed, and into the twenty-​first century.71

69  The support for international science in the early 1980s can be seen in paragraph 6 of the Nairobi Declaration 21 (1982) International Legal Materials 676. The LRTAP Protocol was that from 1984 on Long Term Financing of the Cooperative Programme for Monitoring and Evaluation of the Long Range Transmission of Air Pollutants in Europe, BH856.txt. 70  The LRTAP Protocols were the 1985 Protocol to the LRTAP on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at Least 30 per Cent (the Helsinki Protocol) BH868.txt and the 1987 Protocol to the LRTAP Concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes (1989) 28 International Legal Materials 212, BH930.txt. The agreements for North America were the Agreement Between the Governments of the United States of America and the Government of Canada on Air Quality (1991) 30 International Legal Materials 676 and see Annex IV to the Agreement Between the United States of America and the United Mexican States on Co-​operation for Protection of the Environment in the Border Region, Regarding Transboundary Air Pollution Caused by Copper Smelting Along Their Common Border (1987) 26 International Legal Materials 33. For the figures see J Sliggers, Clearing the Air: 25 years of the Convention on Long Range Transboundary Air Pollution (UN 2004) 3–​25. 71  For recognition of the model in the international documents see ch 31 of Agenda 21; para 108 of the 2002 Plan of Implementation; and para 76 of the 2012 The Future We Want. For the codes see InterAcademy Council, Responsible Conduct in the Global Research Enterprise (IAC 2012); Royal Society, The Concordat to Support Research Integrity (Royal Society 2012); ICSU, Promoting the Integrity of Science and the Scientific Record (ICSU 2008); The European Science Foundation, The European Code of Conduct for Research Integrity (ESA 2008); OECD, Best Practices for Ensuring Scientific Integrity (OECD 2005).

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12.  Ozone Depletion In the 1970s, significant international scientific work was carried out on the potential of anthropogenic damage to the ozone layer. This work accelerated following the theory by Mario Molina and Sherwood Rowland, that chlorine in the stratosphere (via chlorofluorocarbons) could be having a negative impact. Although some countries were willing to act unilaterally and make some reduction ​based on the theory, others were not, and wanted proof of damage before acting. The problem was that, although the original 1974 theory of damage to the ozone layer was scientifically robust, both national and international studies between 1975 and 1985 failed to find any proof. This lack of proof allowed industry groups with vested interests to argue against regulation as there was no concrete evidence of damage, and therefore, their products were ‘innocent until proven guilty’. This situation came to a sudden halt in 1985 when the so-​called ‘ozone hole’ was revealed when the British Antarctic Survey, led by Joe Farman, unequivocally showed that between 1980 and 1984 the ozone present over the Antarctica was thinning by up to 50 per cent in spring. Up until that point, the evidence had not been found because the science was not fully understood and the scientists were looking in the wrong places for evidence. This situation demonstrated that science cannot always predict the ways in which ecosystems will react and, more importantly, that waiting for certainty of proof of damage and causation could be allowing the situation to worsen considerably.72 Few matters shocked local, national, and international communities in the 1980s as much as that of the discovery of the seasonal ‘ozone hole’ over Antarctica. This discovery, coupled with its aesthetic representation on television sets all over the world was unprecedented, as here was a completely new problem that could only be solved globally, yet had the ability to directly impact every person on the planet. The response to this problem in international law was a framework convention in 1985, followed by its more famous (Montreal) Protocol on Substances that Deplete the Ozone Layer. The cumulative result (from the progression of agreements on individual ozone depleting chemicals that followed over the following thirty years) for what many consider to be the most successful environmental agreement ever, was that by 2017, nearly 99 per cent of close to 100 substances that deplete the ozone layer have been phased out, from which the ozone layer is on track to full recovery by 2050. This recovery has prevented up to 2 million cases of skin cancer, per annum, by 2030.73 72 For the original thesis see M Molina and S Rowlind, ‘A Stratospheric Sink for Chloro­ fluoromethanes’ (1974) 249 Nature 810. For the initial international response see the World Plan of Action on the Ozone Layer 1977. This is reprinted in XXVIII International Protection of the Environment 390. On the debate leading up to the discovery see M Allaby and J Lovelock, ‘Spray Cans: The Threat that Never Was’ (1980) New Scientist 212; J Gribbin, ‘Disappearing Threat to Ozone Layer’ (1979) New Scientist 47; and for the debate from the mid-​1980s see K Litfin, Ozone Discourses (Columbia University Press 1994) 101–​104; R Benedict, Ozone Diplomacy (Harvard University Press 1991) 4–​9, 12; S Roan, Ozone Crisis (Wiley 1991) 11–​12, 13–​15, 30–​40, 82–​86. 73 The 1985 Vienna Convention for the Protection of the Ozone Layer, TIAS11097.txt, and the Montreal Protocol on Substances that Deplete the Ozone Layer (1987) 26 International Legal

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The unrivalled success of this regime was for four different reasons. First, comprehensive international science came together to examine a global problem. This fully began when 150 scientists from eleven countries were brought together, found their shared understandings of the problem, and created the first Ozone Trends Panel Report in 1988. Eight further international scientific assessments followed. The latest 2014 report, like those before it, was prepared under the auspice of the UN Environment Programme and the World Meteorological Organization, with strong support from NASA and the European Commission. Together, they brought together twenty-​ four contributors and forty-​eight reviewers, all from different countries, primarily from government science agencies and/​or academic institutions, to reach a scientific consensus on a particular topic.74 Secondly, traditional pollution law had worked on the approach that mandated reduction targets would be adopted uniformly until the problem was solved. The ozone regime reversed this and worked out what was ecologically desirable first as the baseline, and then set the restrictions. In the case of the ozone, this involved working out how much chlorine (or its equivalent) was in the stratosphere (2.0 ppb in the 1980s, with a trajectory of 9.0 ppb if not controlled by 2050), what the pre-​ industrial level was (0.6 ppb), and what amount was safe. This ecological safety level became the bottom line in the negotiations that followed.75 Thirdly, the need to adopt a precautionary approach was clear. The failure of waiting for proof of damage when the scientific theory was clear, was no longer acceptable. These lessons were not lost on the drafters of the 1987 Montreal Protocol to which the signatories were now ‘determined to protect the ozone layer by taking precautionary measures’.76 This time, the international community agreed actual reductions, despite remaining scientific uncertainties. This then became a precedent that moved to becoming a general principle, with the international community going on to agree that where there are threats of serious or irreversible damage, lack

Materials 1550. For discussion see G Epstein, ‘Ozone Regulation and the Montreal Protocol’ (2014) 8(2) International Journal of the Commons 337; C Russill, ‘Forecast Earth:  Hole, Index, Alert’ (2013) 38(3) Canadian Journal of Communication 421; E DeSombre, ‘The Experience of the Montreal Protocol: Particularly Remarkable and Remarkably Particular’ (2009) 19(1) UCLA Journal of Environmental Law and Policy 49; O Young, ‘Political Leadership and Regime Formation’ (1991) 45(3) International Organisation 281; O Badr, ‘Chlorofluorocarbons and the Environment: Scientific, Economic, Social and Political Issues’ (1990) 37(4) Applied Energy 247. 74  The importance of science for the ozone layer was in section 6 of the preamble, art 3 and Annex I of the Vienna Convention, and arts 6 and 9 of the Montreal Protocol. See also S Anderson, ‘Lessons from the Stratospheric Ozone Layer Protection’ (2015) 5 Journal for Environmental Studies and Science 143165; T Hickmann, ‘Science-​Policy Interaction in International Environmental Politics: An Analysis of the Ozone Regime’ (2014) 16(1) Environmental Economics and Policy Studies 21; R Grundmann, ‘Ozone and Climate:  Scientific Assessment and Leadership’ (2006) 31(1) Science, Technology and Human Values 73. 75 Litfin, Ozone Discourses (n 72) 131. 76  Montreal Protocol preamble. For the language around this topic in the Vienna Convention see paragraphs 1 and 5 of the preamble, and also art 2(1) See further R Jacobs, ‘The Precautionary Principle as a Provisional Instrument in Environmental Policy: The Montreal Protocol Case Study’ (2014) 37 Environmental Science and Policy 161; P Harremoes, The Precautionary Principle in the 20th Century: Late Lessons from Early Warnings (Earthscan 2002) 79–​89.

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of full scientific certainty shall not be used as a reason for postponing cost-​effective measures to prevent environmental degradation.77 Fourthly, the Montreal Protocol devised a regime where not only was there financial assistance as an incentive for developing countries to join the regime, a trade mechanism was also created in which the restricted ozone-​depleting chemicals and/​ or the approved alternatives, could only be traded (in theory) between parties to the convention. Thus, to have access to money and markets in restricted ozone-​ depleting chemicals, a very strong incentive to join, not stay away from the regime, was created.78

13.  Climate Change Between the beginning of the 1970s and the end of the 1980s, the carbon dioxide concentration in the atmosphere increased from 334.6 ppm (up from 315.8 in 1959) to 350 ppm. This continual increase led to the topic beginning to become a priority in scientific research. In the 1970s this work culminated in the World Meteorological Organization’s first climate conference in 1979. This involved more than 300 scientists from fifty countries, which in turn, led to the establishment of an international body to examine the issue further. There was no agreement, beyond the broad sentence that ‘it is conceivable that in the future man may be able to produce limited changes in climate on a large scale’.79 This lack of certainty continued into the early 1980s, before a further World Meteorological Organization organized meeting in 1985 warned that if the rate of increase of greenhouse gases continued unabated, an increase in temperature over the twenty-​first century from between 1.5 to 4.5 centigrade was likely.80 Despite this early (and accurate) prediction, the overwhelming difficulty was that in the mid-​1980s, there were vast fields of uncertainty in most aspects of the scientific study of climate change. To understand fully in a comprehensive and global manner the implications of what was recognized of potentially being an unprecedented problem, the Intergovernmental Panel on Climate Change (IPCC) was formed in 1988 (and subsequently incorporated into the 1992 United Nations Framework Convention on Climate Change and following protocols and arrangements, including the 2016 Paris Agreement). To date, the IPCC has provided six 77  The last part of this paragraph is quoted from principle 15 of the 1992 Rio Declaration. 78  S Cumberlege, ‘Multilateral Environmental Agreements: From Montreal to Kyoto’ (2009) 37(2) Denver Journal of International Law and Policy 303; J Sumit, ‘Development or the Environment’ (2009) 1(3) American Journal of Economics and Business Administration 257; R Eckersley, ‘The Big Chill: The WTO and Multilateral Environmental Agreements’ (2004) 4(2) Global Environmental Politics 24. 79 WMO, Proceedings of the World Climate Conference (WMO 1979) 709. Also R Revelle, ‘Carbon Dioxide and World Climate’ (1982) 247(2) Scientific American 33. 80  For the figure from the 1985 Villach conference see WMO, Report of the International Conference on the Assessment of CO2 and Other Greenhouse Gases in Climate Vibrations and Associated Impacts (WMO No 661 1986) See also Anon, ‘Surge in Carbon Dioxide Prompts New Greenhouse Fears’ (1989) New Scientist 21; Anon, ‘Toronto Delegates Call for a “Law of the Atmosphere” ’ (1988) New Scientist 24; R Houghton, ‘Global Climate Change’ (1989) 260(4) Scientific American 18.

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substantive assessments. The last one in 2014 was written by 831 author-​experts, followed by a peer review from 559 other experts. Membership of the IPCC was achieved by governmental submission or invitation by the chair. This allows official, academic, and non-​governmental experts all to be brought into the same room faithfully and comprehensively to reflect the best and latest scientific, technical, and socio-​economic findings. Within this work, rules for transparency, dissent, and use of different types of material (such as non-​peer reviewed) were set down. These were reinforced after the IPCC was externally reviewed and found to be slack on upholding some of its own rules.81 The need for a clear voice with the best possible internationally agreed position on the science of climate change was because this issue has probably created more debate around science than any other international environmental topic. This debate has ranged from legitimate scientific differences to what Timothy Wirth, the former Under-​Secretary of State in the US, suggested were ‘special interests bent on belittling, attacking and obfuscating climate change science’.82 At times, a number of politicians (including, amongst others, Stephen Harper of Canada, and from the US, George W Bush and Donald Trump) have joined these debates, adopting positions either to silence, sideline, or discredit IPCC positions.83

14.  Fresh Water Management The adequate management of fresh water became an international concern in the 1970s, with the first international gathering on the topic being held with the United 81  For the IPCC link to the agreements see Framework Convention art 21(2); Kyoto Protocol art 15, and the Paris Agreement art 13(a). For the IPCC rules and debate see L Kosolosky, ‘Peer Review is Melting Our Glaciers: What Led the IPCC To Go Astray?’ (2015) 46 Journal for the General Philosophy of Science 351; E Hellsten, ‘The Creation of the Climategate Hype’ (2015) 25(4) International Research 589; R O’Keohane, ‘The Ethics of Scientific Communication Under Uncertainty’ (2014) 13(4) Politics, Philosophy and Economics 343; S Beck, ‘The IPCC Under the Public Microscope’ (2012) 7(2) Nature and Culture 151; R Grundman, ‘Climategate and the Scientific Ethos’ (2011) 38(1) Science, Technology and Human Values 67; J Ravetz, ‘Climategate and the Maturing of Post-​Normal Science’ (2011) 43 Futures 149; InterAcademcy Council, Climate Change Assessments, Review of the Processes and Procedures of the IPCC (IAC 2010) 3–​10; M Hulme, ‘What Do We Know About the IPCC?’ (2010) 34(5) Progress in Physical Geography 705; Anon, ‘Improving the IPCC’ (2010) New Scientist 7; D Bray, ‘The Scientific Consensus of Climate Change Revisited’ (2010) 13 Environmental Science and Policy 340; Anon, ‘IPCC Reform Call’ (2010) New Scientist 6; Anon, ‘IPCC Reliable But Flawed’ (2010) New Scientist 5; M Grubb, ‘Purpose and Function of the IPCC’ (1996) 379(6561) Nature 108. 82  Wirth, as in F Pearce, ‘Governments Agree Greenhouse Curbs’ (1996) New Scientist 5. 83  See Anon, ‘EPA Fires Scientists’ (13 May 2017) New Scientist 7; A McCright, ‘The American Conservative Movement’s Success in Undermining Climate Science’ (2010) 27(2) Theory, Culture and Society 100; Anon, ‘Climate Censorship’ (21 July 2008) TIME 10; D Michaels, Doubt Is Their Product (Oxford University Press 2008) 191–​98; Anon, ‘US Sidesteps Air Health Advice’ (2008) New Scientist 6; C Mooney, ‘An Inconvenient Assessment’ (2007) Bulletin of the Atomic Scientists 40; Anon, ‘EPA Censorship’ (2008) New Scientist 6; C Mooney, The Republican War on Science (Basic 2006) 17–​24, 56–​89, 99–​106; G Markowitz, ‘Politicising Science: The Case of the Bush Administration’s Influence’ (2003) 24(2) Journal of Public Health Policy 105; Editor, ‘The Politics of Science’ (2004) 11(10) Natural Structural and Molecular Biology 907; Editor, ‘Bush Accused of Power Abuse Over Science’ (2003) 424(6950) Nature 715.

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Nations Water Conference in 1977. Here, the countries present not only agreed that all peoples have the right to have access to drinking water in quantities and of quality equal to their basic needs, they also set the target of ‘safe water and sanitation for everybody by 1990’. As it was, although the United Nations General Assembly subsequently declared the 1980s the International Drinking Water Supply and Sanitation Decade, progress was patchy. Although the total number of people without clean water in the 1980s fell from 1.8 billion to 1.3 billion, the total number of people without sanitation facilities remained virtually unchanged, with any improvements that were made were offset by population growth. Thus, in sub-​Saharan Africa, the percentage of people in urban areas not having access to clean water increased by about 29 per cent, and the percentage of people not have sanitation facilities, increased by 31 per cent.84

15.  Ocean Pollution Good progress was made in the 1970s and 1980s on the topic of ocean pollution, which at this point, was divided between the dumping of wastes and large-​scale oil spills. Of the first topic, the dumping of waste into the ocean in 1970 was in the region of 1 million tons (primarily from dredging) per annum. This was supplemented by specially designed ships that would take on board waste, and then sail out into international waters to combust their cargo. At this point, nearly 200,000 tonnes of waste was being burnt on the high seas every year, with over half of this being incinerated annually in the North Sea. Such actions became national, regional, and international concerns. The global response was the 1972 Convention on the Prevention of Marine Pollution by Dumping of Waste and Other Matter, which recognized that ‘the capacity of the sea to assimilate wastes and render them harmless, and . . . to regenerate . . . is not unlimited’.85 From this understanding the signatories created a regime that classified pollutants into what could, and could not, be dumped into the ocean. Thus, high and medium-​level nuclear and clearly hazardous waste was now prohibited from ocean dumping. Although the original lists were considerably liberal, with only the most persistent and problematic wastes being prohibited, the process of control had been started. Better still, in the 1980s, the technical guidelines for the incineration of waste at sea were progressively tightened, setting down ever higher requisite temperatures and efficiency requirements for combustion, rates for destruction, restriction of what wastes could be incinerated, site selection, retention of ash, 84  P Woodhouse, ‘Water Governance: An Historical Perspective’ (2017) 92 World Development 225; A Biswas, ‘From Mar del Plata to Kyoto:  An Analysis of Water Policy Dialogue’ (2004) 14 Global Environmental Change 81; Tolba, The World Environment, 1972–​1992 (n 53)  95; G Cano, ‘The Recommendations of the United Nations Water Conference’ (1981) 51(1) Journal of Hydrology 381. 85  This quote is from the preamble of the 1972 London Dumping Convention. This can be found in Kiss (ed), Selected Multilateral Treaties in the Field of the Environment (n 56) 283.

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monitoring, and even liability. These standards effectively strangled the ocean incineration industry in that decade.86 Progress was also made following a sequence of high-​profile tanker accidents in the 1970s. These included the Othello in 1970, the MV Sea Star in 1972, the Aegean Sea in 1976, and the Amoco Cadiz in 1978, with the latter spilling 68 million gallons of oil and creating a slick eighteen miles wide and eighty miles long against the French coastline. The international community responded with new standards for vessel traffic, vessel safety, vessel design and the 1973/​1978 International Convention for the Prevention of Pollution from Ships, which allowed special areas to be created where high standards could be set to regulate the various pollutants associated with shipping. Together, these instruments started to redesign oil tankers (getting segregated ballast tanks to be positioned in an area where the impact of a collision or grounding was likely to be greatest), and also concluded annexes for the rules for the creation of special areas, under which additional rules for the control of oil, noxious liquid substances, waste, and air pollution were settled. By 2017, ten areas had special protection for oil, eight for rubbish, and four emission control areas for sulphur and nitrogen emissions from vessel traffic.87 This progress was accelerated during the 1980 with the conclusion of the United Nations Convention on the Law of the Sea, which provided the foundation for a plethora of new rules to be developed to protect the marine environment. The possibilities in this area covered States establishing rules and standards to protect their marine environment (such as mandating the use of ocean pilots) to control the vessels that visited their ports, through to creating rules (such as traffic separation schemes) for important international waters being transited, as well as the high seas. Calls for emergency planning and information sharing of imminent risks, were supplemented with the possibility of creating new areas to receive additional protection. These were to be achieved through vessel restrictions around ecologically vulnerable areas found within exclusive economic zones.88

86  The overlapping regional conventions were for the north Atlantic and Arctic (in Kiss (n 56) 266) Land Based Sources (in Kiss (n 56) 430); the Baltic Sea Area (in Kiss (n 56) 405) the Mediterranean Sea, (in Kiss (n 56) 448, 454); and the Kuwait Regional Convention (in Kiss (n 56) 486) For the period see IMO, The London Dumping Convention: The First Decade (IMO 1991) 10–​21; and Anon, ‘Incineration Ships Poison North Sea’s Sediments’ (1998) New Scientist 33; Anon, ‘Toxic Burn Ban’ (1984) New Scientist 5. 87  The 1973 International Convention for the Prevention of Pollution from Ships. This is reprinted in IMO, MARPOL 73/​78 (IMO 2002) 3–​10, 39, 60–​65, 386–​89. The Protocol is number 22484 in the UNTS 1983: 61. For the overlapping safety conventions see Convention for Safety of Life at Sea (1980) UNTS 1184, no 2; and the Convention on the International Regulations for Preventing Collisions at Sea 1050 UNTS 16, and 1143 UNTS 346, UKTS. 1184, 2. Commentary can be found in B Sovacool, ‘The Costs of Failure: A Preliminary Assessment of Major Energy Accidents, 1907–​2007’ (2008) 36 Energy Policy 1802; Tolba, The World Environment (n 53) 265; L Carter, The Amoco Cadiz Incident Points to the Elusive Goal of Tanker Safety’ (1978) 200(4341) Science 514. 88  This quote is from art 211(6)(a) of the UNCLOS. See also arts 18(1); 21(4); 34; 35; 36; 38(1); 39(1), (2), and (3); 41(1), (3), and (5); 42(1), (2), and (4); 43; 44; 194(3); 198; 199, and 211(1), (3), (5), and (6).

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In addition, following the accidents of the Castillo de Bellver, the Glomar Java Sea, and the Pac Baroness in the early part of the 1980s, the international community responded by increasing the limits of liability to the 1969 and 1971 conventions, and also by amending the International Convention for the Prevention of Pollution from Ships to ban the carriage of oil in the forepeak tank. Whilst this was all positive (and a clear trend was emerging that, since the early 1970s, there were fewer oil spills relating to tanker accidents) at the end of the decade, on 24 March 1989, the 987-​foot tank vessel Exxon Valdez ran aground in Prince William Sound and created the largest spill in the history of the US when 250,000 barrels of crude oil were spread over 3,000 square miles, causing massive ecological and economic damage (in excess of US$4 billion to clean up). A few months later, in mid-​1989, the oil tanker Khark 5 caught fire and spilled just under 20 million gallons of oil in the Canary Islands.89

16.  Nuclear and Industrial Accidents In addition to high-​profile accidents involving oil tankers, the 1980s also saw large-​ scale nuclear and industrial accidents. Before the incident at Chernobyl in 1986, the international community had already started to look sceptically at nuclear energy. This scepticism was down to India, which in 1974 managed to take plutonium produced in a Canadian supplied civil reactor and make it into a nuclear weapon;90 and, secondly, the near disaster at Three Mile Island in the US in 1979.91 The scepticism commonly turned to dislike of nuclear energy following the catastrophic nuclear accident at Chernobyl that released over 90 million curies of radioactivity at the end of April 1986. The accident was caused by a combination of mistakes, operational failures, and inherent reactor design flaws. The result was an uncontrolled nuclear reaction occurred, which produced nine days of radioactive fall-​out to land over large sections of Russia and Europe. It took a further nine days before the Soviet government acknowledged what had happened. This accident had direct and indirect, short, and long-​term, impacts domestically and internationally. The official estimate, taken twenty years after the accident calculated that the number who will die from long-​term cancers caused by the radiation

89  Sovacool, ‘The Costs of Failure’ (n 87); S Skinner and others, The EXXON Valdez Oil Spill a Report to the President (EPA 1989); S Graham, ‘Environmental Effects of Exxon Valdez Spill Still Being Felt’ (2003) Scientific American 54; D Jacob, ‘The 1984 Protocols and the Amoco Cadiz’ (1984) 15(4) Journal of Maritime Law and Commerce 100. 90  P Lellouche, ‘Breaking the Rules Without Quite Stopping the Bomb’ (1981) 35(1) International Organisation 39. For the international response following India’s break-​out see IAEA, ‘Communications Related to Guidelines for the Export of Nuclear Material’ (1978) 17 International Legal Materials 220. Nuclear Suppliers Group, ‘Memorandum of Understanding Implementing Guidelines for Transfers of Nuclear Related Dual-​Use Equipment, Material and Related Technology’ (1992) 31 International Legal Materials 1094. 91  J Manano, ‘Three Mile Island’ (2004) Bulletin of Atomic Scientists 31; E Talbott, ‘Long-​term Follow-​ up of the Residents of the Three Mile Island Accident Area: 1979–​1998’ (2003) 111(3) Environmental Health Perspectives 341; L Hertzel, ‘Three Mile Island and Other Dismays’ (1979) 264(2) The North American Review 4; L Torrey, ‘The Week They Almost Lost Pennsylvania’ (1979) New Scientist 174.

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will be 3,940. However, this figure has been subject to intense debate, as both an under-​and overestimate.92 Domestically, the accident did great damage to the reputation of the Soviet Union. Internationally, and a clear sign of the progress of the decade, by the Chernobyl accident resulted in a sequence of new conventions was passed on early notification, assistance, nuclear safety, synchronization of the existing legal mechanisms, and enhanced compensation, if there were any future nuclear accidents.93 The Sandoz chemical spill occurred in Switzerland a few months after the Chernobyl accident in early December 1986. This was caused by a fire in a agrochemical storehouse, which was situated on the bank of the Rhine. The fire and resultant extinguishment of the fire washed tons of pollutants into the river, causing massive environmental impacts downstream. As it was, although there were questions over the adequacy of the compensation given, Sandoz was willing to pay large amounts. In legal terms, the result was that the two agreements governing the Rhine and inter-​state arbitration were not pursued, with diplomacy, not contest, being the preferred approach. In practical terms, all of countries involved reorganized their planning, safety systems, and information (emergency warning) sharing procedures. The importance of early notification and cooperation in times of such large-​scale accidents was later reiterated at the 1992 Earth Summit and then in the largely European (albeit including Canada, the US, and Russia) Convention on the Transboundary Effects of Industrial Accidents, of the same year. However, this convention, as has been the case ever since, failed to make international law on the question of liability and compensation in relation to such accidents.94

92  M Flynn, ‘Hardly the Last Word’ (2006) Bulletin of Atomic Scientists 14; R Edwards, ‘How Many More Lives Will Chernobyl Claim?’ (2006) New Scientist 11; R Edwards, ‘The True Fallout from Chernobyl’ (2005) New Scientist 14; Anon, ‘Chernobyl’s Toll’ (2005) New Scientist 7. 93  The 1986 Early Notification of a Nuclear Accident (1986) 25 International Legal Materials 1369. Also the 1986 Convention on Assistance in the Case of a Nuclear Accident or Radiological Emergency (1986) 25 International Legal Materials 1377. The non-​synchronized 1960 (OECD) and 1963 (IAEA) conventions on liability for accidents (the Soviet Union was not a party to the Paris Agreement, thus restricting liability, making victims outside the Soviet Union fall back on basic principles) were also finally resolved with the 1988 Joint Protocol Relating to the Application of the Vienna and Paris Conventions. The Convention on Nuclear Safety followed in the following decade (in 1994), with a sequence of mechanisms to raise safety standards cooperatively in all civilian nuclear plants. As with the 1997 Protocol to Amend the Vienna Convention on Liability for Nuclear Damage, to a minimum liability of special drawing rights (SDRs) (about US$400 million) See generally D Marples, ‘International Nuclear Safety: The Case of the Chernobyl Nuclear Power Station’ (2000) 24(4) Vermont Law Review 1209; H Mellor, ‘The Negative Effects of Chernobyl on International Environmental Law’ (1999) 17(1) Wisconsin International Law Journal 65; D McClatchey, ‘Chernobyl and Sandoz One Decade Later’ (1986) 25(3) Georgia Journal of International and Comparative Law 659; J Barron, ‘After Chernobyl: Liability for Nuclear Accidents Under International Law’ (1987) 25(3) Columbia Journal of Transnational Law 647. See generally P Josephson, An Environmental History of Russia (Cambridge University Press 2013) 139, 144–​55, 175–​79, 189, 200–​201, 221–​23, 237–​39. 94  For this topic at the 1992 Earth Summit see principles 13, 18, and 19 of the Rio Declaration. See also D McClatchey, ‘Chernobyl and Sandoz One Decade Later: The Evolution of State Responsibility for International Disasters’ (1995) 25 Georgia Journal of International and Comparative Law 659; A Schwabach, ‘The Sandoz Spill: The Failure of International Law to Protect the Rhine from Pollution’ (1989) 16(2) Ecology Law Quarterly 443.

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17.  Waste Where the debate on waste changed in the 1970s and 1980s, was not so much on the consumption of waste (which was clearly growing), but how to dispose of it better, and especially, with what to do with older sites where waste had been disposed of inappropriately. In the domestic contexts, the most notable example of this was Love Canal near Niagara Falls in New York State. Here, 1,000 people had their houses and communal places built over an old waste site that contained, beneath them, from decades earlier, thousands of tons of hazardous waste. Such problems were soon found in more than 3,300 other sites used for the disposal of chemical wastes in the US between 1950 and 1975, with many of these sites being municipal landfills. In the case of Love Canal, twenty-​five years after the dumping had stopped, eighty-​two industrial chemicals were evident in the air, soil, and water, including eleven known or suspected carcinogens.95 Although the source of the problem, the dumping of the wrong waste in appropriate locations had already begun to be addressed (with landfill standards), a wider approach was adopted which established the basic cradle-​to-​grave approach to hazardous waste management that exists today in many developed countries. In addition, the Comprehensive Environmental Response, Compensation and Liability Act (or ‘Superfund’) was passed, from which over 1,500 sites were, because of their toxicity, placed on a National Priority List for cleaning, at a cost of over US$30 billion over the coming decades. In the case of the US, by 2017, some 343 sites had been remedied and removed from the list after successful remediation, with each one taking on average about ten years of work.96 The implications of this trend was that by the 1980s, although developed countries were producing more waste (about 440 kilograms per annum, per person in 1980, up threefold since 1940), communities in wealthy countries did not want waste near them, in terms of either dumps or incinerators. This ‘not-​in-​my-​backyard/​nimby’ approach became very vocal after studies started to be produced that suggested not only were poor landfills (such as Love Canal) an ongoing risk to surrounding neighbourhoods, so too was the inefficient burning of waste and/​or incineration of some waste which should not be burnt at all, and such activities were leading to negative health impacts for surrounding communities.97

95  C Colten, The Road to Love Canal: Managing Industrial Waste Before the EPA (Texas University Press 1996) 6, 45–​55, 66–​67; W Stigliani, W and others, ‘Chemical Times Bombs’ (1991) 33(4) Environment 5; J Raloff, ‘Disaster on 99th Street’ (1980) New Scientist 298. 96  J Curie, ‘Superfund Cleanups and Infant Health’ (2011) 101(3) American Economic Review: Papers & Proceedings 435; D Rahm, ‘Superfund and the Politics of US Hazardous Waste Policy’ (1998) 7(4) Environmental Politics 75; E Barnett, Toxic Debts and the Superfund Dilemma (Chapel Hill 1994). 97  J Hecht, ‘Incinerators Blamed for Toxic Fallout’ (1991) New Scientist 14; R Milne, ‘Hospital Incinerators Stoke Up Pollution Row’ (1998) New Scientist 38; F Pearce, ‘Incinerators and Birth Defects’ (1985) New Scientist 4; Anon, ‘Where Dioxin May Deform in Britain’ (1984) New Scientist 8; Anon, ‘Dioxin Fears’ (1985) New Scientist 5; Anon, ‘PCBs Crisis’ (1985) New Scientist 20; Anon, ‘Closure of Incinerator’ (1985) New Scientist 20; Anon, ‘PCB Incinerator Closes’ (1984) New Scientist 5.

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As disposal in the ocean was no longer an option because of the international prohibitions agreed in the 1970s, a new alternative began to present itself in the 1980s. This alternative was that developing countries could be paid to receive the waste of wealthy countries and deal with it as they saw fit. Although President Carter had tried to regulate, if not prevent, this practice, President Reagan’s administration rescinded this approach, seeking something less ‘cumbersome’ that he believed handicapped American exporters. He also tried to place more emphasis upon importing countries making informed choices and consenting for themselves. Exactly how much waste was being shipped from the rich countries to the poor countries during the 1980s is uncertain, although estimates suggest that thousands of tons of hazardous waste may have been in international circulation. As an indication of the growth in this area, companies in the US that specialized in the export of waste grew from twelve in 1980 to 522 in 1989.98 This became an international issue when some developing countries decided they did not want the waste they had contracted for, or what was turning up was not what they had agreed. When the ships that were carrying this waste were turned back, and the media started to watch them as they found themselves without ports to go to, international uproar over the entire situation erupted. This situation was settled after two years of negotiation with the 1989 (Basel) Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal. This convention, as its title suggests, was about the control, not the prohibition, in the trade of hazardous wastes between countries. Non-​hazardous waste was free to trade. Clear identification of waste to show what was hazardous were set up, from which countries could decide to import, or not, the hazardous rubbish. The understanding for both the importer and exporter was that the waste would be disposed of in an environmentally sound manner. If there was reason to believe that the hazardous waste would not be disposed of in an environmentally sound manner, the export was not to proceed. It was expected that this would largely end the trade in hazardous waste for disposal in poorer countries, and that any recycling of hazardous waste (knowing that some of it had an economic value) was expected to be minimal.99

18.  New Pollutants Calls for the international regulation of chemical pollutants began to be heard in the 1970s and accelerated into the 1980s. This followed the vindication of Rachel 98  D Pellow, Resisting Global Toxics (MIT Press 2007) 36–​37, 107–​108, 119; J Clapp, Toxic Exports (Cornell University Press 2001) 36–​37; B Moyers, Global Dumping Ground (Lutterworth Press 1991) 10–​22, 32–​39, 75–​80. 99  See arts 4(1) and 4(8) of the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal (1989) 28 ILM 657; E Brownwell, ‘Negotiating the New Economic Order of Waste’ (2011) 16 Environmental History 262; J Baggs, ‘International Trade in Hazardous Waste’ (2009) 17(1) Review of International Economics 1; P Beukering, ‘Modelling and Analysis of International Recycling Between Developed and Developing Countries’ (2006) 46 Resources, Conservation and Recycling 1; K Orloff, ‘An International Perspective on Hazardous Waste Practices’ (2003) 206 International Journal of Hygiene and Environmental Health 291. Clapp, Toxic Exports (n 98) 23.

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Carson, and evidence started to emerge of an increasing range of chemicals capable of poisoning both humans and other mammals. This was a particular concern in the 1980s as dioxin, a by-​product from the manufacture of herbicides and/​or the inefficient combustion of certain products involving trace quantities of chlorine, began turning up in the breast milk of mothers in multiple countries.100 At the international level, as the ILO created its own conventions strictly regulating the use of benzene (1971) and asbestos (1986) around workers, the international community of nations mandated the WHO to begin studies on the new generation of pollutants (much like it did for those ambient air pollution), and establish universal safety limits. The search for these limits overlapped with both national (especially with the 1976 Toxic Substances Control Act of the US) and international endeavours to test both new and established chemicals (including pesticides) with common and harmonized methodologies, publicly record the results, and create registers of those that were potentially toxic, with UNEP creating the first international register for this purpose in 1976. The problem, as they were soon to discover, was that this was a very slow and expensive process even for only the new ones—​some 1,000 to 2,000 new chemicals entering the market each year in this period. What this meant for the older chemicals was that by the mid-​1980s full evaluations for health hazards of chemicals in the most advanced testing country at this point—​the US—​was only available for 10 per cent of pesticides in use, with no data—​at all—​for 38 per cent of all of the then known pesticides.101 Although this was good progress, the achievements were being overshadowed by the consumption of pesticides (which, globally, between 1970 and 1990 more than doubled from 1.5 million tons, per annum, [with the developing world going on to consume over 30% of the total]). How many people were dying every year from acute poisoning of pesticides was a matter of debate. The World Commission on Environment and Development in 1987 put the figure at 10,000 deaths per annum from pesticide poisoning in the developing world, with 400,000 suffering general, but not immediately life-​threatening, poisonings annually. Although smaller in number, poisonings were also believed to be in the thousands in the developed world in the same period. The difference between the developed and the developing, was that over the course of the 1970s and 1980s, the worst pesticides were increasingly phased out and safety standards for their utilization became much stricter.102

100  F Tschirley, ‘Dioxin’ (1986) 254(2) Scientific American 21; D MacKenzie, ‘Dioxin: Still Looking for the Bodies’ (1985) New Scientist 23; Anon, ‘Dioxin Discovered’ (1982) New Scientist 78; Anon, ‘Dioxin Turns up in the Great Lakes’ (1980) New Scientist 761. 101  See Principle 6 of the 1972 Stockholm Declaration, and from the Action Plan, recommendations 21, 71, 72, 73,74, 75, 78, and 85; OECD Documents from the Higher Level Meeting on Chemicals (1980) 19 ILM 1023; U Nath, ‘WHO Sounds Alarm Over Chemicals in Breast Milk’ (1987) New Scientist 30; Anon, ‘Chemicals that Have Never Been Tested’ (1984) New Scientist 3; Anon, ‘Pesticides in Mothers’ Milk’ (1978) New Scientist 279. 102  World Commission on Environment and Development, Our Common Future (n 15) 126; Anon, ‘Tropical Farmers at Risk from Pesticides’ (1990) New Scientist 8; Anon, ‘Unseen Toll of Pesticide

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This problem started to play out, specifically, where pesticides (perhaps 25% of all exports) that were prohibited or severely restricted in the developed world, were still being exported to the developing world. To confront this problem, NGOs called for the prohibitions on the export of pesticides that had been banned or severely restricted for utilization in the country of manufacture, and for the creation of a universal list, so all importing countries could see what was, and was not, safe. President Carter was open to an absolute red-​list of complete restrictions on the very worst pesticides; for others, he was willing to accept trade providing the importing country fully understood the risk (through a worldwide list) of what they were doing, to which they had to provide clear prior and informed consent. However, when President Reagan believed such an approach handicapped American exporters, especially with those chemicals requiring government licences to export, he adopted a different approach. Accordingly, the export trade in nationally prohibited or severely restricted pesticides in the country that they were made in was rejuvenated.103 The rejuvenation and expansion of the trade in restricted pesticides and chemicals caused an international uproar, which in turn, led to proposals for worldwide lists, information exchange of prohibited or severely restricted chemicals, and overall prohibitions. Other countries took the opposite view. The compromise that evolved was an international consolidated ‘red-​list’ of chemicals that were banned or severely restricted (which contained fifty entries by 1989) and an information sharing system for chemicals in international trade. Finally, under the auspice of the Food and Agricultural Organization, the 1985 International Code of Conduct on the Distribution and Utilisation of Pesticides (for governments, industry, and NGOs) was concluded. This voluntary document called for the testing of all pesticides, recording of all results, and registration of all pesticides. All such chemicals were to have clear labelling and hazard warnings. Critically, if a pesticide was banned or severely restricted in the country where it was made, if exported, this fact had to be made very clear to the importing party. Then, if the desired chemical was still desired, the importer had to provide clear consent that they still wanted it.104

Poisonings’ (1986) New Scientist 18; F Pearce, ‘Pesticide Deaths’ (1987) New Scientist 30; Anon, ‘Chemicals Kill Thousands of Californians’ (1985) New Scientist 24. 103  C Caufield, ‘Pesticides:  Exporting Death’ (1984) New Scientist 15; Anon, ‘Reagan Rescinds Carter’s Order on Hazardous Exports’ (1981) New Scientist 592; Anon, ‘Reagan Opens the Door to a Dangerous Trade’ (1981) New Scientist 707; C Joyce, ‘Carter Signs Order to Control Hazardous Exports’ (1981) New Scientist 195; C Joyce, ‘US Tries to Curb Exports of Toxic Chemicals’ (1980) New Scientist 294. 104  Of the 1985 Code of Conduct, note arts 1, 4, 6, 7, 8, 11, and 12. See also OECD Recommendation Concerning Information Exchange on Banned or Severely Restricted Chemicals (1984) 23 ILM 664; Anon, ‘Code of Conduct Could Keep Dangerous Pesticides at Home’ (1989) New Scientist 6; World Commission on Environment and Development, Our Common Future (n 15) 225–​26; O Satteur, ‘FAO Faces Pressure to Tighten Rules on Pesticides’ (1987) New Scientist 24; Anon, ‘UN Votes to Tighten Rules on Pesticide Exports’ (1985) New Scientist 20.

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At the end of the following decade, the key part of the 1985 Code of Conduct turned into the legally binding Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade. This means that the rule today is that a country may decide to import chemicals that are listed as hazardous, but they must clearly consent to this before the trade. The convention also promotes the safe use of chemicals and pesticides though labelling standards, technical assistance, and other forms of support. As of 2017, there were forty-​seven chemicals (thirty-​three pesticides and fourteen industrial chemicals) for which prior informed consent had to be obtained before they could be exported. Although many of these listings triggering the prior informed consent procedure were relatively easy to achieve, others, such as with chrysotile asbestos, ended up as a prolonged debate in the Rotterdam Convention (and the WTO). This debate occurred as first Canada and then Russia argued that chrysotile asbestos should not be listed to require prior informed consent before imports could occur. The justification for this position was that there were no cost effective alternatives in many industries, it would cause unemployment if listed, and that (despite the views of the Chemicals Review Committee of the Rotterdam Convention and the WHO) scientific uncertainty remained about the link between chrysotile exposure and lung diseases.105

19.  Civil Society The final consideration to note of significant change in the quest for sustainable development in the 1970s and 1980s was how much environmentalism became mainstream. The driving force for this was that citizens wanted change. This became very evident on the first Earth Day of April 22nd 1970, when an estimated 20 million American citizens voiced their concerns, and these concerns were supported and amplified by more prolific and sometimes more radical environmental NGOs (such as Greenpeace, established 1971) who demanded action on problems. When the ‘Live Aid’ efforts of Bob Geldof occurred the following decade in 1985, many people believed that the power of individual citizens and civil society was both vast and unstoppable as a force for good. At the macro level, the support for NGOs and the ‘important and often inspirational role’ they play was emphasized by the international community in the 1980s.

105  The Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade (1999) 38 International Legal Materials 1. For discussion on the asbestos debate see W Henrik, ‘The Global Health Dimensions of Asbestos’ (2016) 42(1) Scandinavian Journal of Work, Environment and Health 86; O Ogunseitan, ‘The Asbestos Paradox: Global Gaps in the Translational Science of Disease Prevention’ (2015) 93(5) Bulletin of the World Health Organisation 259; O Ogunseitan, ‘Russian Roulette with the Rotterdam Convention’ (2015) 67(11) The Minerals, Metals and Materials Society 2474; K Ruff, ‘Rejecting Science-​based Evidence and International Cooperation’ (2014) 20(2) Canadian Foreign Policy Journal 131; M Greenberg, ‘The Defence of Chrysotile, 1912–​2007’ (2008) 14(1) International Journal of Occupational and Environmental Health 57; J McCulloch, Defending the Irresponsible: The Global Asbestos Industry and its Fight for Survival (Oxford University Press 2008).

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This support followed the international understanding that one group of people in particular—​women—​had a central part to play in the debates about sustainable development. This last aspect was repeatedly reiterated over subsequent decades and into the twenty-​first century with the Sustainable Development Goals.106 The only time when people really began to question progress with the advance of civil society was when the French government decided to bomb the Greenpeace vessel the Rainbow Warrior in Auckland harbour in 1985, which made many very sceptical over how sincere governments were in their support for the non-​governmental sector.107

20. Conclusion The idea of sustainable development, as a three-​way relationship with the environment, the economy, and social considerations all occupying different points of a triangle, emerged in this period. The idea occurred as much of the developed world slowed down economically, and the developing world collapsed in economic and social terms as they sunk in debt. Refinancing was conditional on following very orthodox conservative instruction from the IMF. The result was multifaceted. On the one hand, free trade went from being a focus of the developed world, to the entire world, while on the other hand, international assistance became scarce and

106  For the international support see para 9 of the Nairobi Declaration (1982) 21 International Legal Materials 676. For civil society in this period see B Ternes, ‘Make it a Green Peace! The Rise of Countercultural Environmentalism’ (2014) 2 Environmental Politics 1; S Dercon, ‘Live Aid Revisited’ (2014) 12(4) Journal of European Economic Association 927; A Rome, The Genius of Earth Day: How a 1970 Teach-​In Unexpectedly Made the First Green Generation (Hill 2013) 178–​212; S Eden, ‘Greenpeace’ (2004) 9(4) New Political Economy 595; R Paehlke, ‘Ecological Resistance Movements: The Global Emergence of Radical and Popular Environmentalism’ (1996) 90(4) The American Political Science Review 957; F Westley, ‘Bob Geldof and Live Aid: The Affective Side of Global Social Innovation’ (1991) 44(1) Human Relations 1011. For the point on the importance of women in this area see the Convention on the Elimination of All Forms of Discrimination Against Women UNTS 1249: 13. See in particular arts 7(b), (c), and 14. See principle 20 of the Rio Declaration and ch 24 of Agenda 21; paras 7(d), 25(b), 40(f ), 46(b), 54(i), and 164 of the 2002 WSSD Plan of Implementation; and from the 2012, The Future We Want (n 71) see paras 8, 9, 31, 45, 62, 105, 109, 120, 146, 155, 229, and 236–​244. For the Millennium Development Goals see goal 3. For the Sustainable Development Goals see goal 5(5): Seeking to achieve gender equality and empower all women and girls sought to build on this progress, aiming to, inter alia, end all discrimination in this area, harmful practices, equal rights to economic resources, ensure universal access to sexual and reproductive health, and ‘ensure women’s full and effective participation and equal opportunities for leadership at all levels of decision making in political, economic and public life’. For discussion see S Fredman, ‘Transformative Equality: Making the Sustainable Development Goals Work’ (2016) 30(2) Ethics and International Affairs 177. See United Nations, The Millennium Development Goals (UN 2016) 28–​31; W Getachew, ‘Women, Famine and the Millennium Development Goals’ (2012) 26(1) Agenda 33; D Olowu, ‘Gender Equality Under the Millennium Development Goals’ (2012) 26(1) Agenda 104; E Charkiewicz, Women, the Environment and Sustainable Development (Earthscan 2006). 107  See N Phelps Bondaroff, ‘Bridging Troubled Waters: History as Political Opportunity Structure’ (2014) Journal of Civil Society 1; Y Scherrer, ‘Environmental Conservation NGOs and the Concept of Sustainable Development’ (2009) 85 Journal of Business Ethics 555; J Woodward, ‘Global Civil Society and International Law in Global Governance’ (2006) 8(2) International Community Law Review 247.

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the developed world started to cast a jaundiced eye over the developing world, as the terms of the refinancing the debt crisis showed. This extreme situation, coupled with a thawing of the Cold War and an end to much of the anti-​market rhetoric that had occupied the previous three decades, upended many of the goals that went with it. Transnational corporations went from being perceived as absolute villains in need of strict international regulation, to being positive agents for change in need of only voluntary pacts softly to encourage good citizenship. The only change bigger during this period was the way that environmentalism went mainstream, to such an extent that, ‘sustainable development’ was a term that seemed to have universal appropriation. This was not a surprise, as these two decades saw unprecedented environmental disasters, ranging from Chernobyl and the Exxon Valdez, through to the shrinking ozone layer. Further tensions involved human population rising from 3.7 to 4.5 billion, and again, failure on how to address this topic at the international level. Habitat destruction of tropical forests accelerated, and the recognition that desertification also needed to be confronted faded quickly, as did the same recognition of the need for better fresh water management and sanitation at the international level. Despite these failures, some real progress was made in this period. Some successes for habitat conservation evolved with the conventions on wetlands and world heritage, and similar successes occurred for wildlife conservation, with regimes for endangered species in international trade, migratory species, and the moratorium on whaling. Good rules were also laid down for international fisheries. Positive change compared to earlier decades also occurred with air pollution. Although this was now clearly a major problem in the developing world, the developed world started to confront the issue in some areas as international, regional, and national understandings build robust models to create cooperative science. Such science laid the foundations from which ambient concentrations of lead, sulphur dioxide, and nitrogen oxides, began to fall. Spectacular success also followed with the creation of a mechanism to deal with the protection of the ozone layer, and the foundations for the international scientific understanding of climate change. The success in concluding a regime to regulate the trade in hazardous waste also, at the outset, looked good, while that to obtain prior informed consent for the trade in dangerous chemicals and pesticides, evolved into a full-​blown convention at the end of the twentieth century. The beginnings of success was made with the first rules to control ocean dumping and ocean incineration, as well as with rules that began to set new standards that combated the plague of oil tanker accidents. While these all took time to settle in, their success was offset by the nuclear and industrial accidents that occurred in the 1980s in which, although liability issues were resolved for nuclear accidents in the future, those for transboundary industrial ones remain punctuated with a question mark.

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7 The 1990s 1. Introduction The 1990s were very significant for the idea of sustainable development. This was the decade in which much of the ideological rhetoric which had marred a common view during most of the twentieth century subsided. Apart from the problem of corruption coming into view, and a rethinking of overseas assistance began, the big push was towards free markets, minimal international restraints on transnational corporations, and free trade. Of the latter, the hopes for social and environmental inclusions in the new mechanisms were forlorn. On the environmental side, great progress was made in the formation of many new agreements and understandings, covering everything from population growth, to climate change, to ocean and air pollution. The difficultly that stretched across all areas, apart from the continual failure to control habitat loss effectively, was in implementing the new promises. This failure in implementation was, in large part, the result of the rapidly changing nature of the problems that the international community had to deal with, as either the sources, constituents, or responsibilities were transformed into brand new types of difficulties that were fundamentally different to those which had gradually emerged during the previous century.

2.  The Economic and Social Side As the 1990s dawned and the Cold War faded, and the damage of the 1980s was visible for all to see, the international community agreed that the need to ‘eradicate poverty as an indispensable requirement for sustainable development’ was absolute.1 Necessity in this area was justified because although overall progress was being achieved in some areas (the world average life expectancy had gone from 46.5 in 1950 to 65.4 in 1990, including North America from 69 to 76.9 years, and Africa from 37.8 to 51.4) in other areas, it was going in reverse with the standard of human development for many countries being lower than it had been a decade earlier. In at least twenty-​seven countries, there was a net secondary enrolment ratio decline (over 5%) for girls. Overall per-​capita incomes in the developing world had fallen, 1  See, from the 1992 Earth Summit, ch 3 of Agenda 21 and principle 5 of the Rio Declaration.

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with those in extreme poverty (living on less than US$1.25 per day) were growing, with tens of thousands of people dying prematurely every 24 hours because of poor shelter, polluted water, bad sanitation and/​or lack of nutrition. In Zambia, average life expectancy which was 52 years in 1980, dropped to 30 years at the end of the twentieth century, in the same period the average income was half what it was at independence in 1965. Even in developed Russia, their turn from a communist to a capitalist economy had huge social impacts as the proportion of the country in poverty went from 2 per cent to 50 per cent, life expectancy dropped for Russian men (from 63.8 to 57.7 years) and women (74.5 to 71.2) as economic and social instability, high rates of tobacco and alcohol consumption, poor nutrition, depression, and deterioration of the health care system set in.2

3.  Debt The factor that drove some countries backwards in the 1990s was economic debt. In this decade, the problem applied to both the developing countries dealing with the ongoing problems of the 1980s, and then at the end of the decade, were linked to a financial crisis first in East Asia, and then Latin America, and then Russia. What was different for the developing world compared to the 1980s debt crisis was that much of the debt was now moving from bilateral to multilateral sources. That is, bilateral debt in the 1990s largely moved off the agenda, as commercial debt had done in the 1980s. This occurred following a sequence of agreements reached by the Paris Club (Toronto 1991, Naples 1994, and Cologne 1999) in which debt write-​off of up to 90 per cent occurred (although the more common figure was 67%). These write-​offs were given in exchange for structural adjustments, as set by the International Monetary Fund (IMF), and repayments of the remaining amounts. This meant that, by the end of the 1990s, it was more common for the multilateral institutions to be holding the debt of the developing world (typically 70%) than any other entity.3 The other area where the 1990s were different, was that many of the social and environmental impacts of the debt restructuring of the 1980s became clear, and were deemed unacceptable. Accordingly, it was accepted that both the World Bank 2  K Jochen, ‘Changes in Life Expectancy 1950–​2010’ (2016) 14(20) Population Health Metrics 12; R Soares, ‘Life Expectancy and Welfare in Latin America and the Caribbean’ (2009) 18(1) Health Economics 37; Y Yang, ‘Trends and Patterns of Happy Life Expectancy in the US, 1970–​2000’ (2008) 37(4) Social Science Research 1235; C Riley, Rising Life Expectancy (Cambridge University Press Cambridge) 38–​39; UNDP, Human Development Report: 2001 (Oxford University Press 2001) 2–​3; UNICEF, The State of the World’s Children: 2000 (UNICEF 2000) 4–​24, 23–​30; F Notzon, ‘Causes of Declining Life Expectancy in Russia’ (1998) 279(10) Journal of the American Medical Association 793; Commission on Sustainable Development, ( Overall Progress Achieved Since UNCED: Combating Poverty. E/​CN.17/​1997/​2/​Add.2 paras 24–​27; World Health Organization, The World Health Report 1995: Bridging the Gaps (WHO 1995) 1–​2, 31–​32, 38–​39, 63. 3  L Buchheit, ‘A Quarter Century of Sovereign Debt Management’ (2004) 35(4) Georgetown Journal of International Law 637; Oxfam International, Position Paper: Multilateral Debt—​The Human Cost (Oxfam 1996) 5–​10; W Bello, Dark Victory: The United States, Structural Adjustment and Global Poverty (Pluto 1994) 28–​30.

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and the IMF had to soften their approach and refocus their structural adjustment programmes so that they incorporated social welfare safety nets in addition to protection of the environment.4 The problem in the early part of the 1990s was that questions were soon raised about the depth of these commitments, and/​or the willingness of debtors to take them seriously. It was in light of the sustained criticism that the World Bank and the IMF unveiled in 1996 (and upgraded in 1999) the Highly Indebted Poor Country Initiative (HIPC). The objective of the HIPC was to take the debt of the 40 heavily indebted countries to ‘sustainable levels’. It did this by taking a cumulative approach by putting all of their existing debt in a basket, providing new low interest loans, and also working with remaining bilateral and/​or commercial debt in cooperation with Paris Club creditors. Total reductions, if the debtors could show sustained commitment to the new conditionality, of up to 80 per cent of all the total debt they owed was possible. A two-​step process was established to achieve this. First, the country had to qualify for help. To get help they had to be amongst the world’s poorest, facing an unsustainable debt burden which equated to a debt to export ratio of above 200 per cent. They also had to have a sound record of reform in IMF and World Bank approved programmes. The programmes also had to have a poverty reduction strategy. This would typically involve funding basic social structure and poverty reduction schemes in terms of funding basic health care, primary education and immunization objectives. When all these objectives were met over a six-​year period, a country would start to see its earlier debt being cancelled, with the first fruits of the process starting to show early in the twenty-​first century.5 The second debt problem started in 1997 following a series of currency devaluations in East Asia. This debt problem was unexpected as most of these countries had survived the 1980s debt crisis, and were broadly seen as having good economies that were fiscally prudent, liberal and market friendly. The problem began following Thailand’s decision to no longer to peg their currency to the American dollar. In the following months, Thailand’s currency, equity, and property markets weakened, before turning into a banking crisis as the national accounts were at a high risk owing to years of domestic credit growth, doubtful loans, and external debt. The pressure 4  For the concern at the Earth Summit see ss 2.3 and 2.4 of Agenda 21 (1992) UNCED Doc A/​ CONF./​151, 4. Note also Principle 9(a) of the Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests (1992) UNCED Doc A/​CONF.151/​6/​Rev.1 (1992) 31 ILM 881. For the later criticisms see the 1995 World Summit for Social Development. Declaration A/​CONF.166/​9 (19 April 1995) Commitment 1, as well as para 74(f ) and 91 of the Programme of Action; the Report of the United Nations Conference on Human Settlements (Habitat II) A/​CONF.165/​14 para 204(d); and the 1997 review of the Earth Summit, paras 103–​104; Overall Progress Achieved Since UNCED E/​CN.17/​1997/​Z (31 January 1997). This is reprinted in D Osborn, Earth Summit II: Outcomes and Analysis (Earthscan 1998) 134. For the general issue see World Bank, Social Security Reforms and Social Safety Nets in Reforming and Transforming Economies (World Bank 1993); J Werksman, Greening International Institutions (Earthscan 1996) 131, 142–​43. 5  The Heavily Indebted Poor Countries (HIPC) Debt Initiative Trust, reprinted in (1997) 39 ILM 990; World Bank, The Heavily Indebted Poor Countries Debt Initiative (World Bank Backgrounder 1999) 1–​4; D Andrews, Debt Relief for Low-​Income Countries: The Enhanced HIPC Initiative (International Monetary Fund 1999, Pamphlet Series No 51).

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to devalue then spread to Malaysia, the Philippines, Indonesia, Hong Kong, and South Korea (despite the fact that, the year before, South Korea had graduated to the OECD as a developed, no-​longer developing, country), with all of them devaluing by around one-​third. All of these actions created a frenzy as currency traders started to buy and sell these currencies, jolting capital inflows, before they went into reverse for the region, causing economic growth and investments to plummet. Before the financial crisis in 1996 these economies had received net private capital inflows of US$93 billion per annum. In 1997, they experienced an outflow of US$12 billion, a turnaround of US$105 billion in a single year, which amounted to more than 10 per cent of their combined gross domestic product (GDP).6 The problem was only halted when the IMF, the World Bank, and the Asian Development Bank loaned more than US$118 billion to the region. The loans were contingent on substantial domestic policy reforms including strengthening their financial systems and measures to increase the competitiveness and flexibility of their economies. Although these measures rebuilt economic security, the crisis had large social implications. Unemployment jumped from around 2 per cent to over 5 per cent in each of the countries, resulting in previously unforeseen poverty, as many of these countries did not have the accompanying social welfare regimes that other regions possessed.7 The problem then repeated itself with Argentina, following the Brazilian decision in early 1999 to devalue the currency against the American dollar by 40 per cent. This allowed Brazilian exporters to charge much lower dollar prices on foreign markets and, at the same time, made Argentina’s currency look overvalued. Doubts about Argentina’s ability to service its debt multiplied, confidence collapsed, and Argentina’s creditworthiness plummeted as financial panic set in and citizens tried to get their money out of Argentinian banks, and foreign investors tried to get their money out of the country. Argentina was forced to freeze domestic bank accounts, default on its foreign debt, reimpose capital controls, and devalue the currency. Government spending and pensions had to be cut by more than 13 per cent and incomes across the board shrunk by more than 12 per cent.8

4. Corruption One of the best things about the end of the Cold War was that it became possible to begin to confront the problem of corruption. Before this point, countries, 6  D Rodrix, The Globalization Paradox (Norton 2011) 92–​93, 186–​88; L Budd, ‘Neglected Aspects of the East Asian Financial Crisis’ (2008) 3(1) Twenty-​First Century Society 31. 7  K Tang, ‘Social Policy after the East Asian Financial Crisis’ (2002) 1(2) Journal of Comparative Asian Development 301; G Bird, ‘Miracle to Meltdown: A Pathology of the East Asian Financial Crisis’ (1999) 20(2) Third World Quarterly 421; K Ahmad, ‘Poverty Rises After South East Asian Financial Crisis’ (1999) 353(9170) The Lancet 2137. 8  A Todd, ‘Defaulting the Purpose: The Future of Foreign Sovereign Debt Restructuring in the Wake of Argentina’s Debt Crisis’ (2015) 81(1) Brooklyn Law Review 269; B James, ‘Critique and Analysis of the Currency Crisis in Argentina’ (2009) 9(3) The Journal of Applied Business and Economics 1.

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and the United States in particular, did not want to upset its allies by criticizing them for corruption. Nor did it want to criticize developing countries for fear of encouraging them to join the Soviet camp. When the Cold War ended, so too did the silence. Studies from the World Bank in this period suggested that corruption (which was, and remains, a particular problem for poorer developing countries) could be costing them up to 50 per cent of their tax base, to say nothing of the multiplying effects of corruption on skewed policy choices and the diversion of resources. Such estimates were not a surprise when some of most corrupt leaders in the developing world came to an end of their tenure in the 1990s, after amassing near unimaginable fortunes. Examples include Mohamed Suharto of Indonesia who amassed somewhere between US$15 and 35 billion, and Mobutu Sese Seko of Zaire who acquired perhaps US$5 billion between 1965 and 1997. Mobutu is said to have been so wealthy that he would charter a Concorde to take his family shopping in Europe, and could have written a cheque to cover his country’s entire foreign debt. The President of Peru, Alberto Fujimori, collected, perhaps, US$600 million; Pavlo Lazarenko of the Ukraine perhaps US$200 million; Joseph Estrada of the Philippines, maybe up to US$80 million, while the President of Nicaragua, Arnold Aleman, would pocket, perhaps, US$100 million.9 The good news from this situation, was that now the problem was so bad that part of the international community—​ the OECD—​ created the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. Although this was restricted in its focus, this was the first attempt to promote transparency and accountability in international business. The mechanism was the need for each country to control its own nationals working abroad by making bribery of foreign officials when working abroad (as in, the focus was on those giving, nor receiving, the bribes) a crime. This was a milestone.10

5.  Overseas Assistance The 1990s heard the same calls that had been made in the previous decades that each advanced country should ‘progressively increase its official development assistance’ and ‘exert its best efforts to reach a minimum net amount of 0.7% of its gross national product’.11 Despite such demands, the percentages of aid given in the 1990s to the 9  R Fisman, Corruption: What Everyone Needs to Know (Oxford University Press Oxford) 70–​82; J Olatunde, ‘Corruption as an Obstacle to Development in Developing Countries’ (2011) 14(4) Journal of Money Laundering Control 387, 404; R Hoddes, The Global Corruption Report (Transparency International 2004) 13; V Tanzi, ‘Corruption Around the World’ (1998) 54(4) IMF Staff Papers 559; D Kaufmann, ‘Privatisation and Corruption in Transition Economies’ (1997) 50 Journal of International Affairs 419; J Mbaku, ‘Bureaucratic Corruption in Africa’ (1996) 16(1) The Cato Journal 99. 10  L Holmes, Corruption (Oxford University Press 2015) 108–​109; C Pacini, ‘The Role of the OECD and EU Conventions in Combatting Bribery of Foreign Public Officials’ (2002) 37(4) Journal of Business Ethics 385–​405. 11  See the Independent Commission on Population and Quality of Life, Caring for the Future (Oxford University Press 1996) 272–​73; Commission on Global Governance, Our Global Neighbourhood (Oxford University Press 1995) 217–​21.

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developing world was decreasing, not increasing. That is, after peaking in 1991, the real value of aid began to fall to 0.30 per cent in the middle of the decade, after being an average of 0.33 per cent for most of the 1970s and 1980s. The language of US President George Bush that ‘the days of the open cheque book are over’12 summarized much of the decade, with a great deal of international assistance obtaining a very bad press. It was criticized for not being prioritized to the poorest of countries; not being spent on basic needs (such as primary health care, clean water or education); being culturally, socially, or environmentally unfit for purpose; damaging local economies; created dependency; or was linked to negative conditionality such as having to act in a certain way or buy specific products. Even food aid was criticized as being primarily self-​serving in purpose.13 The one area around financial assistance that was different in the 1990s was the acceptance that more money was required to meet environmental goals of global concern. Estimates from the period suggested that to move the planet to a sustainable path would take an extra 125 billion (US) of assistance per annum—​nearly more than double of all the then current overseas development assistance. Although this figure was not accepted by the wealthy countries, the broad thinking that more money was justified to solve international environmental problems was accepted. This acceptance was manifested in 1991 when the Global Environmental Facility (GEF) was established (and its Trust Fund was established on the eve of the 1992 Earth Summit) to help confront climate change, ozone loss, biodiversity, ocean management, and desertification.14 Although such goals were relatively clear, the last decade of the twentieth century saw repeated acrimony as a number of developed countries had difficulty fulfilling their pledges to the GEF, and/​or refused to offer additional international financial assistance unless there were guarantees that they could control its use and direction. This lead to large debates at the GEF between the donor and recipient countries over issues ranging from which topics would be covered for additional finance, where the GEF would be housed, and which countries and/​or organizations (i.e. the role of the 12  N Schoon, ‘Bush Aims to Divert His Critics’ Independent (12 June 1992) 9; S Tisdal, ‘Defiant Bush Insists on US Development’ Guardian (13 June 1992) 8. Independent Review of International Aid, The State of Aid (Earthscan 2000) ix, xii, 17. 13  T Killick, Aid and the Political Economy of Policy Change (Routledge 1998) 27–​35, 56–​64; M Charlton, ‘Back to Relief: The Global Food Aid Regime in the Post-​Cold War Era’ (1997) 18(3) Canadian Journal of Development Studies 439; R Ball, ‘Political, Economic and Humanitarian Motivations for Food Aid’ (1996) 44(3) Economic Development and Cultural Change 515; N Baird, ‘Tied to the Hand that Feeds’ (1996) New Scientist 12; Report of the Independent Commission on Population and Quality of Life, Caring for the Future (Oxford University Press 1996) 272–​75; K Watkins, The Oxfam Poverty Report (Oxfam 1995) 171–​72; J Toye, Dilemmas of Development (Blackwell 1993) 231–​40; P Uvin, ‘Regime, Surplus and Self-​Interest: The International Politics of Food Aid’ (1992) 36(3) International Studies Quarterly 293–​312. 14  For the debate at the summit see F Pearce, ‘Pay Up to Save Earth Summit’ (1992) New Scientist 7. For its recognition in the documents see para 2.17 of Agenda 21, Principle 7 of the Rio Declaration, Principles 1(b) 7(b), and 8(c) in the Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests; and arts 3(4) 4(2) 4(3–​10) 11(5), and 12(3) of the Convention on Climate Change. For the GEF debate see A Jordan, ‘The Evolving Role of the GEF’ (1994) Environment 10; S Sjoberg, From Idea to Reality: The Creation of the Global Environmental Facility (World Bank, GEF 1993, Working Paper No 10).

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World Bank in the GEF) would control its direction and decision-​making. At the end of the decade, although the GEF was restructured, a basic parity came to exist between donors and recipients, the World Bank was given a neutral trustee position, and the topics the GEF came to cover expanded, the long-​term success of the GEF was far from certain.15

6.  Trade The expansion of trade was one of the most noticeable changes of the 1990s compared to all of the decades before it. The share of exports in world GDP increased from 14.3 per cent in 1975 and 20.2 per cent in 2000. For industrialized countries the proportion increased from 13.6 per cent to 16.7 per cent, and developing countries, the proportion increased from 17.5 per cent to 31.2 per cent. This sudden increase showed that some developing countries were quick to take advantage of the rich world’s demands for cheap products and lucrative investment opportunities. For some, such as China, their exports went from 20 billion to 200 billion (with 170 of that being in manufactured goods) between 1978 and 1998, after surpassing Japan as the world’s second largest economy in 1992.16

(a). The  NAFTA The first step towards a new order of free trade in the 1990s began when President George Bush announced in 1990 that he was going to work with Mexico to sign a free trade agreement. Canada joined a year later and, in 1992, the work of all three of them was completed with the ground-​breaking North American Free Trade Agreement (NAFTA).17 The NAFTA was unique as it included a separate chapter on foreign companies investing and working in each other’s countries. This included provision for most favoured and national treatment, and also somewhat vague considerations from which claims could be made on the basis that changes in government policy had hurt foreign businesses. The NAFTA also included a formal dispute mechanism whereby a private investor could initiate a complaint against the host government via binding international arbitration, and no exhaustion of local remedy was required as 15  Z Young, A New Green Order: The World Bank and the Politics of the Global Environment Facility (Pluto 2002) 22–​29, 44–​60; F Dodds, The Way Forward: Beyond Agenda 21 (Earthscan 1997) 191, 192–​94; J Werksman, Greening International Institutions (n 4) 148, 153–​57; J Gupta, ‘The Global Environment Facility in its North-​South Context’ (1995) 4(1) Environmental Politics 19; B Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment and the Crisis of Development (Earthscan 1994) 175–​81, 260–​61, 269–​70, 279–​80; M El-​Ashry, ‘Mechanisms For Funding’ (1993) 23 Environmental Policy and the Law 48. 16  J Frieden, Global Capitalism:  Its Rise and Fall in the Twentieth Century (Norton 2006) 424; W Bernstein, A Splendid Exchange:  How Trade Shaped the World (Atlantic 2008) 375; D Nayyar, ‘Globalisation, History and Development: A Tale of Two Centuries’ (2006) 30 Cambridge Journal of Economics 137. 17  The NAFTA can be found in the (1992) 32 ILM 105.

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a prerequisite. Also for a first time, the NAFTA sought to allow disputes between developed countries (between Canada and the United States), and not just foreign corporations operating in developing countries (Mexico). Both Canada and the United States lauded this as a remarkable achievement of cutting edge economic liberalization that would protect their investors in Mexico.18 The NAFTA was also unique as it contained ‘side agreements’ pertaining to both labour and the environment. The objective of the Agreement on Labour Cooperation was to ‘improve working conditions and living standards in each party’s territory’ and to promote ‘to the maximum extent possible, the labour principles’.19 The supplementary Agreement on Environmental Cooperation had a similar angle, promising, inter alia, to ‘promote sustainable development’ and ‘strengthen the development and enforcement of environmental laws and regulations’.20 However, as with the labour measures, the commitments were generally weak (doing plans, science and assessments), and the bottom line was that although all were obliged to strive to improve their environmental laws and policies, each party had the right to establish its own level of domestic environmental protection and environmental priorities.21 After a decade of operation, it became possible to assess whether the NAFTA had lived up to its promises. First, in blunt numbers, the trade in goods between the three partners tripled. There were also clear benefits for American and Canadian citizens in keeping prices very low for most consumer goods (excluding food and energy), suggesting a savings to the average American consumer of about US$250 per annum. In terms of job security, the picture was more nuanced. The debate began when the agreement was signed with President Bill Clinton claiming that it would create 200,000 jobs in America. In some markets, the projections were correct, as trade increased, such as with cars and automobile parts sales to Mexico going from 10 billion to 70 billion, over the first dozen years. However, whether such increases were creating jobs everywhere in the American economy was a matter of debate. The estimates ranged from up to 800,000 jobs being lost through to the impacts being neutral. With the latter, it was not contended that low skill-​based manufacturing jobs were not migrating to Mexico as this clearly did occur. Rather, the emphasis was that this was part of a wider ongoing process in the developed world where manufacturing employment fell from 27 per cent of the labour force in the early 1970s to under 18 per cent in the late 1990s. The theory was that these migrating jobs were replaced by other work (in 1970 there were two American service workers for every manufacturing job, by the late 1990s, the proportion was five to one), and the products being generated in Mexico were indirectly benefiting the United

18  H Camp, ‘Direct Investment Issues’ in J Norton (ed), NAFTA and Beyond: A New Framework for Doing Business in the Americas (Brown 1996) 87–​102; D M Price, ‘An Overview of the NAFTA Investment Chapter: Substantive Rules and Investor State Dispute Settlement’ (1993) 27 International Lawyer 727. 19  Article 1(a) and (b) of the Supplemental Agreement to NAFTA on Labour. 20 ibid art 1. 21 ibid art 3.

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States. For example, when Mexico shipped goods north, 40 per cent of their value came from inputs in the United States which is equated to represent five million jobs, although a considerable amount of this benefit is in transport, such as for truckers.22 Secondly, the investor dispute mechanism that NAFTA introduced did not play out as expected. This was especially so since a number of disgruntled corporations sued governments for their choices related to the free trade agreement that bound them all together, avoiding domestic channels, and pursuing them directly through the dispute mechanism. The most common claim was over one of the countries unfairly introducing new laws which disproportionately restricted their sales (as opposed to treating everyone equally in the restrictions). Although the United States emerged victorious in all of the challenges, Canada did not fare quite so well, preferring to settle in some highly contentious cases, such as their failed attempt to ban the use of MMT (Methylcyclopentacienyl manganese tricarbonyl—​a fuel enhancer of disputed safety).23 Thirdly, labour rights did not advance as much as was hoped. In large part, this was attributable to the fact that, apart from the aspirations, the bottom line was the right of each party to establish its own domestic labour standards. This was reinforced in the Annex with its 11 labour principles, in which it was also spelt out that the principles ‘do not establish common minimum standards for their domestic law’. Moreover, sanctions as an enforcement tool only applied to a few of the areas (minimum wages, child labour and occupational safety and health) and were not applicable to the right to organize, bargain collectively, and/​or strike. Accordingly, there was a limit to how far workers’ rights were advanced under this agreement.24 Finally, with regard to the environment, impacts were felt from the micro (with small farmers losing out to larger and more efficient competition) to the middle (with a surge in air pollution caused by Mexican trucks operating on lesser environmental standards in the United States) through to the macro (with increased greenhouse emissions from more economic growth). The particularly big fear as NAFTA was being signed, was that the lower environmental standards of Mexico would act as a magnet for pollution intensive industries, or as the World Bank’s former senior Vice-​President, Lawrence Summers suggested in 1991: ‘I think the economic logic

22  A Villarreal, The North American Free Trade Agreement (Congressional Research Service 2017) 3–​ 7; Anon, ‘Bracing for Impact’ Economist (14 January 2017) 41; Anon, ‘Lies, Damned Lies and Statistics’ Economist (25 February 2017) 58; Anon, ‘Coming and Going’ Economist (1 October 2016) 5; Anon, ‘Trade, At What Price?’ Economist (2 April 2016) 31; R Blecker, ‘NAFTA, Trade and Development’ (2010) 11(4) CESifo Forum 17; E Fry, ‘NAFTA 2002: A Cost/​Benefit Analysis’ (2002) Canadian–​ American Public Policy 1. 23 S Puig, ‘NAFTA Chapter Eleven at Fifteen:  Contributions to a Systematic Approach to Investment Arbitration’ (2010) 25 Foreign Investment Law Journal 225; L Moltke, ‘Misappropriation of Institutions: Some Lessons from the Environmental Dimension of NAFTA’ (2001) 1 International Environmental Agreements: Politics, Law and Economics 103. 24  P Singh, ‘NAFTA and Labour’ (2002) 23(3) Journal of Labour Research 433; M Bolle, NAFTA Labour Side Agreement: Lessons for the Worker Rights and Fast Track Debate (Congressional Research Service 2001); L Perez, ‘The Promotion of International Labour Standards and NAFTA’ (1995) 10(2) Connecticut Journal of International Law 427.

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behind dumping a load of toxic waste in the lowest [wage] country is impeccable and we should face up to that’.25 Summers’ comments reflected, the fact that relocation was the reality of the 1990s as pollution intensive industries did migrate from developed to developing countries. For example, in 1975, there were almost no steel mills in the developing world, and those that did exist, were heavily subsidized. By the year 2000, the world’s most competitive steelmakers were largely in Latin America and Asia, with this sector producing as much steel as North America and Europe combined. The movement of such firms to developing countries appears to have been attributable to combinations of lower wages, lower labour standards, ease of trade and access to markets, the costs of transport, the price of land, taxation advantages and lower environmental standards. That is, lower environmental standards were typically only one factor among many, for why companies opted to move. Moreover, when they did move, they tended to bring and operate environmental standards at a higher level than was required in the developing country. This may have been altruistic, or, because if these firms continued to export their products back to the developed world, (such as the United States and/​or Canada in the case of NAFTA) these richer consumers expected higher, not lower, environmental standards. The greater bilateral monitoring, cooperation and joint understandings of shared environmental problems that NAFTA facilitated, also, appears to have been an improvement on what went before it. Nonetheless, despite these improvements in efficiencies, the overall growth in output did increase (overall) greenhouse gas (GHG) emissions and, in some instances, some (but not all) pollutants increased owing to businesses migrating to Mexico.26

(b). The trade in waste The trade in waste expanded rapidly in the 1990s, with the clear difference compared to the 1980s that the majority of waste now in trade was not for final disposal, but rather, was classified as being for purposes of recycling. Whilst the international community supported the importance of recycling within countries, it did not support recycling between countries when that trade involved hazardous materials. Although the Basel Convention on the Control of Transboundary Movements of Hazardous Waste and Their Disposal recognized the possibility of recycling as somewhat of a footnote in the formation of their 1989 agreement (to allow the trade in 25  Summers, ‘Internal Memo’, as reprinted in D Pellow, Resisting Global Toxics (MIT Press 2007) 9. See also W Adams, ( Green Development: Environment and Sustainability in the Third World (Routledge 1992) 122–​27; R Johnston, Environmental Problems:  Nature, Economy and State (Belhaven 1989) 93–​101. 26  T Yu, ‘Does Trade Liberalization Induce More Greenhouse Gas Emissions: The Case of Mexico and the United States under NAFTA’ (2011) 93(2) American Journal of Agricultural Economics 545; J Knox, ‘The Neglected Lessons of the NAFTA Environmental Regime’ (2010) 45(2) Wake Forest Law Review 391; P Wisner, ‘Push and Pull Impacts of NAFTA on Environmental Responsiveness and Performance in Mexican Industry’ (2005) 45(3) Management International Review 327; M Cole, ‘US Environmental Load Displacement: Examining Consumption, Regulations and the Role of NAFTA’ (2004) 48(4) Ecological Economics 439; B Husted, ‘The Impact of NAFTA on Mexico’s Environmental Policy’ (1997) 28(1) Growth and Change 24.

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non-​hazardous waste for recycling, such as glass and paper), it was not envisaged that this would become the main focus of the regime. However, in the 1990s, this is exactly what happened as the Convention started to bite on the trade in hazardous waste for final disposal (and the trade slowed), it suddenly expanded in the trade of hazardous waste for recycling purposes. The problem was that many of the developing countries that were doing this trade did not have the same environmental or labour standards that would have been employed if the same task was done in developed countries. A prime example of this problem in the 1990s was with lead-​acid batteries. These products, with a life span of up to forty-​eight months, have been mass produced since the end of the nineteenth century. Until the 1960s, these were commonly dumped into landfills at the end of their first cycle and were often linked to heavy-​metal poisoning in leachate. Before governments could adequately regulate the dumping problem, industry worked out that the use of recycled lead to make new lead batteries reduced the cost of each unit by about 25 per cent, rather than if the batteries were made with the use of virgin material. The result is that the recycling rates of acid-​lead batteries is today the highest of any product, with most modern lead-​acid batteries containing 60–​80 per cent recycled lead. The problem was (and is) that to break and recycle lead acid batteries safely in the developed world requires entirely mechanized automated feeds within tightly sealed mills that are flushed continually with water. In this modern process, human hands and lungs are kept away from the hazards. Although this makes the process of recycling this product safe, it is expensive, especially compared to the developing world. In the developing world, such standards and appropriate technology were/​ are not always applied and spills of acid, lead dust contamination, and the inhalation of dangerous vapour is common. Irrespective of the social and environmental costs, when the economic cost differential between recycling in the developing, as opposed to developed world, became apparent, a vigorous trade in lead-​acid batteries began. To skirt the problem that second-​hand lead batteries could be classified as hazardous waste (and thus much more difficult to trade) the exporters and importers agreed that the batteries were only hazardous if the casing was broken and leaking acid. The hazardous nature of the recycling process, as opposed to the actual product, was not seen as intrinsic to the definition of whether the waste was hazardous.27

27  F Were, ‘Air and Blood Lead Levels in Lead Acid Battery Recycling and Manufacturing Plants in Kenya’ (2010) 9 Journal of Occupational and Environmental Hygiene 340; P Haefliger, ‘Mass Lead Intoxication from Informal Used Lead-​Acid Battery Recycling in Dakar, Senegal’ (2009) 117(110) Environmental Health Perspectives 1537. J Simpson, ‘Small Scale Lead Battery Refining Plants’ (2003) 30(4) Journal of Power Sources 5; J Clapp, Toxic Exports (Cornell University Press 2001) 65; F Ahmed, ‘The Battery Recycling Loop: a European Perspective’ (1996) 59 Journal of Power Sources 107; J Elmer, ‘The Basel Convention: Effect on the Asian Secondary Lead Industry’ (1996) 59(1) Journal of Power Sources 1; B Moyers, Global Dumping Ground (Lutterworth 1991) 54–​58.

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Owing to such problems, it was hoped that the parties to the Basel Convention would close down, or at least very strictly regulate the rapidly growing trade in hazardous waste for the purposes of recycling. The problem was that in the debate that followed, there was not a sufficient majority to amend the treaty. In practical terms, this meant that the trade in lead-​acid batteries for recycling purposes continued, with the parties to the Convention could get no further than creating Technical Guidelines on Recycling Lead-​Acid Batteries to help countries develop standards, the most fundamental of all being ‘the manual breaking of batteries should be avoided at all costs’.28 How far these Technical Guidelines have improved the safety standards in this area is a matter of debate.29

(c). The World Trade Organization After eight rounds of discussion over seven and a half years, the 8th GATT round (Uruguay) of multilateral trade negotiations, was concluded. This wrapped together a package of about sixty agreements, annexes, decisions, and understandings. These all aimed to achieve the goal of advancing free trade through negotiation, binding and transparent rules to help fair and undistorted competition, and through utilizing the most favoured nation principle. The eventual package included an umbrella agreement establishing the World Trade Organization (WTO); agreements on the trade in goods (including the GATT), trade-​related investment, trade in services, trade-​related aspects of intellectual property, dispute settlement, and reviews of government trade policies. Also included were the Agreement on Agriculture, and the Agreement on the Application of Sanitary and Phytosanitary Measures. There were also some lengthy schedules of commitments made by individual countries allowing foreign products and/​or service providers into their markets. The overall vision, as recorded in the opening preamble of the Agreement Establishing the World Trade Organization, was that: Relations in the field of trade and economic endeavour should be conducted with a view to raising standards of living, ensuring full employment and a large and steadily growing volume of real income and effective demand, and expanding the production of and trade in goods and services, while allowing for the optimal use of the world’s resources in accordance with the objective of sustainable development, seeking both to protect and preserve the environment and to enhance the means for doing so in a manner consistent with their respective needs and concerns at different levels of economic development.30

28  The Basel Convention Secretariat, Technical Guidelines for the Environmentally Sound Management of Waste Lead-​acid Batteries (BCS 2003 Document No 2003/​9) para 41. Note that used vehicle batteries can be found under either List A, A1160 or List B, B1090, B1110, and B4030 of the Basel Convention. 29  H Stone, ‘Effects of Amendments to the Basel Convention on Battery Recycling’ (2009) 78 Journal of Power Sources 251; U Hoffman, ‘Battery Recycling in the Wake of Basel Convention Trade Restrictions’ (2000) 88 Journal of Power Sources 115; J Clapp, Toxic Exports (Cornell University Press 2001) 58–​60; Anon, ‘Recycling of Hazardous Waste’ (1995) 25(4) Environmental Policy and the Law 184. 30  Agreement Establishing the World Trade Organization preamble MTN/​FA II.

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(i). The interests of the developing world Over sixty developing countries implemented trade liberalization programmes during the Uruguay Round. At the same time, they became much more active in the negotiations than in any previous round. This group was focused on breaking out of the ‘commodity trap’ of being stuck selling low value unrefined commodities to the developed world. In doing so, they not only had to give up their own tariffs protecting their own industries, but they also had to accept that preferential treatment given to them from some developed countries would disappear (such as with protected markets for certain exports such as bananas) as such social preferences (and discriminating against cheaper mass produced bananas) could no longer be justified. In such instances, the developing world (but not necessarily the Least Developed Countries) had to accept these losses and take on most of the obligations required of developed countries in the final Uruguay agreements. It was expected that any further concerns that the developing countries encountered would be resolved in the following (Doha) round of negotiations.31

(ii). Labour Unlike with the NAFTA, there was no consideration of labour. This was despite the fact that the International Labour Organization was close to concluding its eighth (and final) core labour convention (on the worst forms of child labour). This made no difference to the Uruguay negotiations, from which, labour standards did not appear in any of the agreements, beyond the recognition of the traditional GATT article XX(e) ‘relating to the products of prison labour’. To many, this was a surprise as there had been a hope that a so-​called ‘social clause’ would be included within the new WTO agreements. These hopes were heightened in 1996 at the Singapore Ministerial Conference of the WTO, when those present, despite rejecting the use of labour standards for protectionist purposes, renewed their ‘commitment to the observance of internationally recognized core labour standards’ and to work with the International Labour Organization in promoting them.32 Again, however, nothing eventuated. 31  J Finger, ‘The Unbalanced Uruguay Round Outcome’ (2002) 100(403) The Economic Journal 1318; R Safadi, ‘The Uruguay Round Agreements: Impacts on Developing Countries’ (1996) 24(7) World Development 1223. For the key rulings against the ‘ethical’ bananas see GATT Dispute Settlement Panel Report, EEC—​Import Regime for Bananas (1995) 34 ILM 177; WTO Report of the Appellate Body, European Communities Regime for the Importation, Sale and Distribution of Bananas AB-​1997-​3, reprinted in (1998) 37 ILM 243; J Valencciano, ‘Banana War and World Trade Changes’ (2015) 3(2) International Journal of Food and Agricultural Economics 51; K Alter, ‘Nested and Overlapping Regimes in the Transatlantic Banana Trade Dispute’ (2006) 13(3) Journal of European Public Policy 390; M Finley, ‘The Bitter With the Sweet: The Impact of the WTO’s Settlement of the Banana Dispute’ (2004) 48(4) New York Law School Law Review 817; South Commission, The Challenge of the South (Oxford University Press 1990) 224, 245, 247–​53; B Coote, The Trade Trap: Poverty and the Global Commodity Markets (Oxfam 1992). 32 See the Singapore Statement https://​www.wto.org/​english/​thewto_​e/​minist_​e/​min96_​e/​wtodec_​e.htm#core_​labour_​standards. See also R O’Brien and others, Contesting Global Governance (Cambridge University Press 2000) 67–​108; R Wilkinson, ‘Labour and Trade Related Regulation’ (1999) 1(2) British Journal of Politics and International Relations 165; J Mah, ‘Core Labour Standards

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(iii). The environment The conclusion of the NAFTA was followed by the 1992 Earth Summit in Rio. The countries present at Rio welcomed the idea of free trade as a positive contributor to sustainable development. They suggested that an ‘open trading system which leads to the distribution of global production is in accordance with comparative advantage, and is of benefit to all trading partners’.33 Principle 12 of the 1992 Rio Declaration on Environment and Development added, that ‘States should co-​operate to promote a supportive and open international economic system that would lead to . . . sustainable development’.34 Even the Non-​Legally Binding Forest Principles called for ‘open and free international trade in forest products’, suggesting that removal of tariff barriers over forest products would generate greater revenues for exporting countries, thus allowing them ‘to better conserve and manage their renewable forest resources’.35 The theory was, that ‘an open, equitable and non-​discriminatory multilateral trading system on the one hand and acting for the protection of the environment on the other’,36 were perfectly complimentary goals.37 To the surprise of many, when the Uruguay agreements were unveiled, unlike with the NAFTA, there was no special consideration of the environment. Although environmental considerations did overlap with some of the other agreements, the main area around which countries would argue was, essentially, those from within the original Article XX of GATT. Thus, Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any contracting party of measures: (a) necessary to protect public morals . . . (b) necessary to protect human, animal or plant life or health . . . (g) relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption . . .

Over the following years, parties to the WTO litigated multiple questions of trade and the environment. This result has been that international trade law has ended up being more positive towards the environment at the end of this period than and Export Performance in Developing Countries’ (1997) 20(6) The World Economy 773; E De Wet, ‘Labour Standards in the Globalised Economy’ (1995) 17(3) Human Rights Quarterly 443. 33  Agenda 21 s 2.5. UNCED Doc A/​CONF.151/​4. 34 The Rio Declaration on Environment and Development UNCED. A/​Conf.151/​5/​Rev.1 (1992). 35 Principle 13(b). 36  Report of the WTO Committee on Trade and the Environment (WTO. Geneva) Press/​TE 014 para 167. 37  D Pearce, World Without End: Economics, Environment and Sustainable Development (World Bank 1993,) 284–​87, 298–​99; K Anderson, The Greening of World Trade Issues (Harvester 1993) 3, 14–​15, 167; P A G Bergeikj, ‘International Trade and the Environmental Challenge’ (1991) 25 Journal of World Trade Law 105.

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at the beginning. The law, as it currently stands, is that countries acting in a non-​discriminatory way may apply measures that are directly related to specific environmental objectives for the protection of animal or plant life or health, including ethical goals (such as for humane killing), or for the conservation of exhaustible natural resources (including both living and non-​living). These measures must be necessary, there must be no alternative (non-​trade restriction) measures which would achieve the same goal, and they must seek the minimal interference with trade possible.38 ‘Necessary’ is currently interpreted to include undertaking unilateral extraterritorial actions in areas where there is no governing, pre-​existing multilateral environmental agreement. This was not the accepted view during the 1990s. However, this view was overturned in 2001 when it was agreed that in some (rare) settings, unilateral extra-​territorial trade measures to achieve conservation in areas outside of existing multilateral environmental agreements may be legitimate. To the minds of many, this change of approach allowing unilateral actions to achieve extra-​territorial environmental goals in some circumstances was the correct reorientation as international agreements often follow catalytic unilateral action.39 38  See Report of the Panel, United States—​Section 337 of the Tariff Act of 1930 BISD 36S/​345, adopted on 7 November 1989 para 4.25. See also Report of the Appellate Body, Korea—​Measures Affecting Imports of Fresh, Chilled and Frozen Beef WT/​D161/​AB/​R, adopted on 10 January 2001; Appellate Body, United States—​Standards for Reformulated and Conventional Gasoline WT/​DS2/​AB/​R (20 May 1996) 25–​28; Report of the Appellate Body, European Communities—​Measures Affecting Asbestos WT/​DS135/​AB/​ R adopted on 5 April 2001, para 56; Report of the Panel, Thailand—​Restrictions on Importation and Internal Taxes on Cigarettes BISD 37S/​200, adopted on 7 November 1990, paras 72–​81; Report of the Appellate Board, Brazil—​Measures Affecting Imports of Retreaded Tyres WT/​DS332/​AB/​R adopted 17 December 2007, paras 120, 146, and 150; Anon, ‘Retreaded Tyres: Limiting the Environmental Safety Exception’ (2007) 37(6) Environmental Policy and the Law 464. Report of the Panel, Canada—​Measures Affecting Exports of Unprocessed Herring L/​6268-​35S/​98 adopted on 22 March 1988, para 4.4. See also Report of the Appellate Body, Standards for Reformulated and Conventional Gasoline WT/​DS2/​AB/​R, adopted on 20 May 1996, paras 3.7 and 6.5; and A Cosbey, ‘Heavy Fuel: Trade and the Environment in the GATT/​WTO Case Law’ (2014) 23(3) RECIEL 288; Appellate Body, EC—​Seal Products DS400, 401, adopted on 18 June 2014. For comment see A Herwig, ‘Too Much Zeal on Seals? Animal Welfare, Public Morals and Consumer Ethics at the WTO’ (2016) 15(1) World Trade Review 109; A Lurie, ‘Protecting Animals in International Trade’ (2015) 30(3) American University International Law Review 423; C Archibald, ‘Forbidden by the WTO: Discrimination Against a Product When its Creation Causes Harm to the Environment or Animal Welfare’ (2008) 48 Natural Resources Journal 15. 39  Report of the Appellate Body, United States—​Import Prohibition on Certain Shrimp Products (Shrimp Turtle 2) WT/​DS58/​AB/​RW, adopted on 21 November 2001, paras 123, 132–​34. This followed the (first) Report of the Appellate Body, United States—​Import Prohibition of Certain Shrimp Products (Shrimp Turtle 1) WT/​DS58/​AB/​R, adopted on 6 November 1988; WTO, United States—​ Import Prohibition of Certain Shrimp and Shrimp Products WT/​DS58/​AB/​R (12 October 1998) para 184. See also P I Hansen, ‘Transparency, Standards of Review, and Use of Trade Measures to Protect the Global Environment’ (1999) 39 Virginia Journal of International Law 1017; N Bernasconi, The Environment and Trade: A Guide to the WTO Jurisprudence (Routledge 2006) 75–​78, 211–​15, 220; J Berger, ‘Unilateral Trade Measures to Conserve the World’s Living Resources: An Environmental Breakthrough for the GATT’ (1999) 24 Columbia Journal of Environmental Law 355. Note that much of this issue came about through the two so-​called Tuna–​Dolphin cases (in 1991 and 1994, but never adopted at the WTO) See the Tuna/​Dolphin Panel Report GATT Doc DS 21/​R (3 September 1991) 46; US—​Mexico Tuna Dolphin Panel, also reprinted in (1991) 30 ILM 1594, 1622. With the Tuna–​Dolphin I case, the panel believed that the US had not exhausted all reasonably available alternatives to achieve the goal of ocean mammal protection, suggesting that internationally agreed initiatives would be a better way to deal with the problem. It also did not believe that this restriction was ‘primarily aimed’ at conservation nor that the conservation policies of one country could be hoisted upon another. The second report, US–​EEC Tuna Dolphin Panel can be found in (1994) 33 ILM 842, 888–​90.

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In theory, countries now may also invoke measures to restrict foreign imports, for either domestic or international environmental concerns, based upon the process and/​or production method (PPMs) by how the import is made, including how they are extracted, grown, or harvested, and whether they are detectable in the product itself or not. If the differences are accepted, it means that the competing products are not alike, as in, not the same and discrimination between them is possible.40 Finally, the WTO came to support a precautionary approach, as it is reflected in the Sanitary and Phytosanitary Agreement, under which it is possible to impose measures leading to a higher standard of protection than granted by existing international standards. A precautionary approach in this context allows nations to undertake pre-​emptive acts to achieve environmental goals, but some evidence is required for the act, and the action only applies for a short and limited period of time until more evidence is adduced. Although Members have a right to apply such measures in non-​discriminatory ways, they can only be done ‘to the extent necessary’ and must be ‘based on scientific principles and is not maintained without sufficient scientific evidence’.41 The risk demonstrated may be from a minority opinion, but the evidence must be real (not just theoretical) and come from qualified and respected sources, and it must be directly related to the specific risk at hand. Such precautionary and provisional measures can only be applied for a reasonable period (meaning less than a few years), during which time additional information necessary for a more objective assessment of risk and review must be undertaken.42 40  PPMs divide into product-​related, and non-​product-​related, based measures. Product-​related PPM measures are applied to guarantee the quality, safety and functionality of the product. These measures aim to protect the environment or the user/​consumer from potential damage caused by the product itself, or something in the product, which is usually detectable. Non-​product-​related PPMs seek to avoid or minimize harm by the way in which a product is manufactured or harvested, not by the product itself. These PPMs are not detectable and do not directly affect the user/​consumer. Such PPMs may manifest themselves as import and export restrictions on products produced in certain ways; labelling requirements regarding the production methods; tax schemes based on production methods and/​or border tax adjustments levied. Such options are all controversial as they commonly trip over the principles of most favoured nation, national treatment, and/​or elimination of quantitative restrictions. Although non-​product-​related PPMs are harder to defend (and for a long time were assumed non-​defensible it is now believed that, in some circumstances, non-​PPMs can be legitimate. This may become more so, as non-​PPMs become increasingly utilized in environmental goals such as with life-​ cycle analysis and biofuel production. See C Benoit, ‘Picking Tariff Winners: Non-​Product Related PPMs’ (2011) 42 Georgetown Journal of International Law 583. Within the GATT, the term ‘like’ can be found in arts I;1, II:2, III:2 III: 4, VI:1, IX:1, XI:2, XIII:1, and XIX:1. Small differences in taste (such as between coffee types) do not distinguish products. See Report of the Panel, Spain—​Tariff Treatment of Unroasted Coffee L/​5135-​28S/​102, adopted 11 June 1981. However, differences in impact (such as between low and high alcohol beer) end-​use, different production methods, and quality do. W Choi, Like Products in International Trade Law (Oxford University Press 2003). 41  See art 2.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures, as Annex 1A to the Agreement Establishing the WTO 1867 UNTS 493. The purposes of the SPS was are to encourage harmonization of standards and to elaborate on art XX(b) and other GATT provisions as they affect the use of trade-​restricting measures to protect human, animal, or plant life or health (especially in terms of food safety); I Cheyne, ‘Gateways to the Precautionary Principle in WTO Law’ (2007) 19(2) Journal of Environmental Law 155–​72. 42  EC—​Measures Concerning Meats and Meat Products (Hormones) WT/​DS26/​AB/​R, WT/​DS48/​ AB/​R (13 February 1998)  paras 123 and 194; M Broman, ‘The United States and the European Community Hormone Treated Beef Conflict’ (1989) 30 Harvard International Law Journal 549, 550;

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7.  Transnational Corporations The 1990s were good to transnational corporations. They diversified, expanded in numbers and obtained greater degrees of autonomy in the international arena. At the end of the twentieth century, there was an estimated 37,000 transnational corporations with 170,000 foreign affiliates. In terms of diversification, in 1979, eighteen of the twenty-​five largest American corporations were in oil and manufacturing and just three were in technology and telecommunication. By 1999, thirteen of the top twenty-​five were in technology and telecommunication and just 2 in petroleum and manufacturing. These new corporations dwarfed those that came before them. In 1999, Microsoft was worth as much in real terms (that is, correcting for inflation) as the top twenty-​five corporations, combined, over twenty years earlier. Company number 25, Yahoo, after only six years in business, was worth as much as three largest oil companies combined (Exxon, Amoco, and Mobil ) had been in 1979.43 The push towards voluntary, as opposed to obligatory, international standards that had crystallized at the end of the 1980s accelerated in the 1990s. Good environmental stewardship was displayed in 1991 when the International Chamber of Commerce introduced the Business Charter for Sustainable Development, which was endorsed by over six hundred companies worldwide. Such initiatives found a positive reception at the 1992 Earth Summit where all detrimental references to transnational corporations were removed from all areas of discussion whilst positive references of transnational corporations were emphasized. Chapter 30 of Agenda 21 dealt with ‘strengthening the role of business and industry’ and talked of ‘encouraging transnational corporations’ and of ‘voluntary private initiatives’. Business and industry, including transnational corporations, were encouraged: (a) to report annually on their environmental records, as well as on their use of energy and natural resources (b) to adopt and report on the implementation of codes of conduct promoting the best environmental practice, such as the Business Charter on Sustainable Development of the International Chamber of Commerce and the chemical industry’s Responsible Care initiative.44 R Sen, ‘WTO—​Environment Synergy: Myth of Progressive Reality?’ (2014) 3(2) International Journal of Business Ethics in Developing Economies 40; E Vecchione, ‘The Precautionary Principle at the WTO’ (2012) 13(1) Chicago Journal of International Law 153; G Winham, ‘The GMO Panel: Applications of WTO Law to Trade in Agricultural Biotech Products’ (2009) 31(3) Journal of European Integration 409; J Bernetich, ‘The Precautionary Principle in WTO Law’ (2011) 35 Vermont Law Review 711; C Chen, ‘An Analysis of the WTO Panel Ruling on GMO Disputes’ (2009) 6(1) Journal of Biotechnology Law 45. 43  J Dunning, Multinational Enterprises and the Global Economy (Addison 2003) 112–​15; J McLean, ‘The Transnational Corporation in History: Lessons for Today’ (2004) 79(2) Indiana Law Journal 100; D Korten, When Corporations Rule the World (Earthscan 1995) 74–​76, 166–​67, 177–​81, 214–​26; P Chatterjee and M Finger, The Earth Brokers: Power, Politics and World Development (Routledge 1994) 105–​20. 44  See ch 30:10. See also ss 30.9, 30.18, and 30.26 of Agenda 21. For the positive view of the period see S Schmidheiny and the Business Council for Sustainable Development, Changing Course (MIT University Press 1992,) 6–​7; United Nations, World Investment Report: Transnational Corporations as Engines of Growth (United Nations 1992) 90–​95; J Ottman, ‘Industry’s Response to

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After the Earth Summit, the pace of voluntary agreements with industry continued to proliferate. The International Chamber of Commerce formed a World Industry Council for the Environment in 1993 to promote the concept of sustainable development through self-​regulatory guidelines and environmental educational programs. At the same time, the International Standardization Organization created standards (ISO 14000 and 14001) which detailed overall criteria within which businesses could voluntarily comply, and then be independently accredited for recognition of good environmental management. The powerful message was, as Sir Martin Holdgate, the then President of the Global 500 Forum told the Commission on Sustainable Development in 1996: ‘it is . . . a fallacy that environmental protection adds costs. Often, when a company applies its ingenuity, high environmental performance and profitability go hand in hand’.45 The result was that, by the end of the twentieth century, there were over 250 voluntary codes of conducts that corporations could adopt, all of which reinforced the theory that both profit and sustainability could be achieved by working with, rather than against, private enterprise.46 Although there were still echoes of concerns about the power of transnational corporations in the United Nations in the early 1990s, all proposals to control them or even for more effective oversight of them by United Nations agencies disappeared from view. ECOSOC had, after twenty years of trying (from 1974 to 1994) failed to get a regulatory code of conduct for transnational corporations. As the Cold War ended and ideological rhetoric cooled, post-​colonial divisions moved on, and the simmering conflict over the New International Economic Order subsided, the draft Code of Conduct for Transnational Corporations disappeared from the United Nations processes with 1994, being the last year that the United Nations Yearbook contained a reference to it. The tide was now all one-​way, with positive references to commercial enterprises and calls for further voluntary norms becoming standard. Thus, the 1995 World Summit for Social Development, spoke in terms of ‘encouraging transnational and national corporations to operate in a framework of respect for the environment while complying with national . . . and international law’,47 whilst the Habitat II conference called for ‘socially responsible corporate investment’.48

Green Consumerism’ (1992) 13(4) Journal of Business Strategy 3; UNCTC, Benchmark Corporate Environmental Survey (UNCTC 1991) 4–​6; International Chamber of Commerce, Business Charter for Sustainable Development (ICC 1991). 45  M Holdgate, ‘Agenda for Action’ in Commission on Sustainable Development, Cross-​sectoral Issues E/​CN.17/​1996/​30 (19 March. 1996). 46 J Nash, ‘Code Green:  Business Adopts Voluntary Environmental Standards’ (1996) 38(1) Environment 17, 20, 36–​ 45; Commission on Sustainable Development, Towards Corporate Environmental Excellence E/​CN.17/​1996/​30 (19 March 1996); R Welford, The Earthscan Reader in Business and the Environment (Earthscan 1996) 61–​77; World Industry Council, ‘New Standard Set’ (1993) 23 Environmental Policy and the Law 17; J Smith, ‘A Voluntary Code for Corporate Environmental Responsibility’ (1993) 18 Yale Journal of International Law 307. 47  Programme of Action for the World Summit for Social Development A/​CONF.166/​9 (19 April 1995) para 12(e). 48  Report of the UN Conference on Human Settlements (Habitat II) A/​CONF.165/​14 Global Plan of Action, Strategies for Implementation para 204(q).

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Only a few records of dissent existed within the 1990s. Most notably, the Commission on Sustainable Development noted in 1998 that ‘voluntary initiatives’ may be worthless unless they can prove that they take the industry beyond ‘business as usual’ and that there is transparency, monitoring, and strong public participation in the process. Without these essential ingredients ‘codes of conduct have amounted to nothing more than merely words on paper’.49 The freedom that transnational corporations gained at the international level was replicated in the bilateral investment treaties that had, for decades, hamstrung them. In an effort to receive more investment, many developing countries gave up all of their previous reservations regarding investment disputes, fearing that international investors would otherwise avoid them. As the bilateral investment treaties weakened, some of the worst investor state abuses of the system occurred as many private enterprises, some with legitimate grievances, some not, tried to test the system seeing what they might be able to extract from foreign governments. Although most of these attempts failed, the cumulative result of the dissatisfaction with the way that transnational corporations were utilizing their revised bilateral investment treaties was that when the OECD attempted to move from the ad-​hoc arrangements to a Multilateral Agreement on Investment, many disgruntled NGOs found a rallying point. Overt secrecy in the negotiations, combined with many abuses of process, created a clear target in the first truly global attempt to establishing universal binding norms for foreign investment. This overlapped strongly with the anti-​globalization debates at the 1999 WTO meeting in Seattle. With the level of anger witnessed at Seattle, the Multilateral Agreement on Investment was seen as a vote loser and governments backed away from the idea, just as the anti-​globalization/​anti-​capitalist/​anti-​corporate movement became a dominant non-​state force at the very end of the twentieth century.50

8.  Sustainable Development The view of sustainable development, as a triangle made up of environmental, social and economic development that emerged from the end of the 1980s was cemented into place in the 1990s with such strength that the International Court of Justice (ICJ) could proclaim confidently in 1996 that: The Court also recognises that the environment is not an abstraction, but represents the living space, the quality of life and health of human beings, including generations unborn. The 49  Commission on Sustainable Development, Industry and Sustainable Development. E/​CN.17/​ 1998/​4 para 58. For some of the calls for higher standards in this area see Commission on Global Governance, Our Global Neighbourhood (Oxford University Press 1995) 173; UNDP, Human Development Report: 1999 (United Nations 1999) 6; South Commission, The Challenge of the South (Oxford University Press 1990) 233–​34. 50  European Commission, Investor to State Dispute Settlement: Some Facts and Figures (EC 2015) 2–​8; R Broad, ‘Before Seattle:  The Historical Roots of the Current Movement Against Corporate Globalisation’ (2003) 24(4) Third World Quarterly 713; J Seoane, ‘The Anti-​Neo-​Liberal Globalization Movement’ (2002) 50(1) Current Sociology 99; D Venter ‘Anti-​Globalisation Organisation as a Fourth Generation People’s Movement’ (2002) 33(1) Society in Transition 50; L Sklair, ‘The Transnational Capitalist Class and Global Politics’ (2002) 23(2) International Political Science Review 159.

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existence of a general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States and of areas beyond national control is now part of the corpus of international law relating to the environment.51

The Court came to this view in a decade when the ethos of sustainable development became fully accepted. The key event in the 1990s to help this process was the third international conference in this area, the 1992 United Nations Conference on ‘ Environment and Development’ (my italics) in Rio.52 Whilst embedding the principle that ‘the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations’,53 they added that: ‘in order to achieve sustainable development, environmental protection shall constitute an integral part of the development process and cannot be considered in isolation from it’.54 This was essential, as it was recognized in the opening sentence of Agenda 21 that ‘humanity stands at a defining moment in history’. That defining moment was that it was now commonly accepted that humanity was transgressing the boundaries of sustainability on a scale which was unprecedented, or as UNEP’s GEO 2000 report suggested: The present course is unsustainable and postponing action is no longer an option . . . signs of improvement are few and far between . . . If the new millennium is not to be marred by major environmental disasters, alternative policies will have to be swiftly implemented.55

Environmental concerns, as an integral part of the equation were to supplement the equal need for economic growth. This growth was portrayed as necessary in itself and as a pre-​requisite to achieving the social and environmental components of sustainable development. The President George Bush expressed this clearly when he stated that ‘growth is the engine of change and friend of development’.56 Such thinking was enshrined in the Rio Declaration, which stipulated that:

51  ICJ, The Legality of Nuclear Weapons [1996] ICJ Rep 242, para 30. 52 Framework Convention on Climate Change art 3(4), A/​AC.237/​18 (Pt II) Add 1 (5 May 1992): ‘the Parties have a right to, and should, promote sustainable development’. See also para C of the preamble and art 1(b) of the Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests UNCED Doc A/​CONF.151/​6/​ Rev.1. 53  Rio Declaration on Environment and Development Principle 3, UNCED Doc A/​CONF.151/​5/​ Rev.1 (1992) 31 ILM 877. 54  ibid Principle 4. 55 UNEP, GEO 2000 (Earthscan 2000) xii, xxiii, xxix. See also Commission on Sustainable Development, Global Change and Sustainable Development: Critical Trends E/​CN.17/​1997/​3 paras 14 and 15; UNGA Special Session, Overall Review and Appraisal of the Implementation of Agenda 21 A/​ S-​19/​15 (12 May 1997). For the contrary view see R Ayres, ‘Cowboys, Cornucopians and Long Run Sustainability’ (1993) 8(3) Ecological Economics 189. 56  Bush, as in Report of the United Nations Conference on the Environment and Development UNCED A/​CONF.151/​26/​Rev.1 (vol 3) 77. For similar views see M Carlie, Managing Sustainable Development (Earthscan 1992) 42–​50; M Strong, ‘ECO 92: Critical Challenges and Global Solutions’ (1991) 44 Journal of International Affairs 287, 291; D Angell, Sustaining Earth: Response to Environmental Threats (Macmillan 1990) 164, 172, 175.

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States should co-​operate to promote a supportive and open international economic system that would lead to economic growth and sustainable development in all countries, to better address the problems of environmental degradation.57

A quick succession of conferences followed, from which the ‘right to development [a]‌s a universal and inalienable right and [as a] integral part of fundamental human rights’,58 was iterated in a sequence of United Nations gatherings on human rights; population; social development; and human habitat. From this point, specific rights within the general rubric of the right to development in which the three pillars were equal was emphasized. With such shared understandings, the countries at the Earth Summit+5 gathering in 1997 could state confidently, that: ‘sustainable development may be regarded as the progressive and balanced achievement of sustained economic development, improved social equity and environmental sustainability’.59 As evidence of the sea-​change that was occurring at the international level, key institutions such as the World Bank began to change course. This was monumental as in the 1990s the World Bank was the largest non-​private provider of loans for development at nearly US$30 billion per annum to over sixty countries. Change occurred when it became the subject of intense scrutiny, as it appeared that many of their own policies (evident since the 1980s) promising structural reform, transparency and oversight were worthless as they were at the forefront of environmental and social damage to such an extent, that independent reports from within the Bank were recording ‘an institutional numbness at the Bank . . . to environmental matters . . . amounting to gross delinquency . . .’.60 Stung by such criticism, the World Bank progressively exited supporting projects such as those involved with deforestation of tropical forests and coal powered fire stations. However, how much the World Bank has been able to change its behaviour 57  Rio Declaration Principle 12. 58  ibid Principle 10(1) and 10(3) Vienna Declaration and Program of Action, World Conference on Human Rights, Vienna (14–​25 June 1993) UN Doc A/​CONF.157/​24 (Pt I) 20. Note, however, that the United States retained its objection that development is not a right, but a goal. 59  Overall Progress Since UNCED para 5. For the other UN conferences on this point from this period see Report of the World Summit for Social Development A/​CONF.166/​9 point 26(a) and paras 1.7 and 6; Report of the International Conference on Population and Development Principle 3, A/​ CONF.171/​13 (18 October 1994); Habitat Agenda: Goals and Principles and Global Plan of Action. A/​ CONF.165/​L.6 Add 10 (14 June 1996) para 23. 60  B Morse and T Berger, Sardar Sarovar:  Report of the Independent Review. Morse Commission (Resources Futures International 1992) xxii–​xxv, 233–​34, 329, 336; D Bradlow, ‘The World Bank’s Independent Inspection Panel’ (1993) 33 Indian Journal of International Law 59. The positive beginning with the World Bank can be seen with the 1980 ‘Declaration by International Banks on Environmental Policies and Procedures’ (1980) 19 ILM 524. See also World Bank, Striking A Balance: The Environmental Challenge of Development (Oxford University Press 1989) 9, 11; O Kjorven, ‘The Challenge of Organisational Adjustment: How Is the World Bank Incorporating Environmental Concerns?’ (1991) 11(3) International Challenges 31. The document establishing the inspection panel can be found in International Bank for Reconstruction and Development, ‘Inspection Panel Operating Procedures, Including Executive Resolution’ (1995) 34 ILM 503; World Bank Operations Policy Department, Learning from the Past: Embracing the Future (World Bank 1994). For the critique see B Rich, Mortgaging the Earth: The World Bank, Environmental Impoverishment and the Crisis of Development (Earthscan 1994) 54–​72; P Sands, Greening International Law (Earthscan 1993) 65–​84; P Chasek, The Global Environment in the Twenty-​First Century:  Prospects for International Co-​Operation (United Nations University Press 2000) 399–​410.

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(such as continuing to support oil exploration and natural resource exploitation in the developing world, owing to the economic benefits it can provide) has been open to question.61

9.  Population Growth The 1990s saw human population grow from 5 billion to 6 billion in the space of ten years (with a growth rate of 15.2 per cent over the decade), with at least 43 per cent of this total now living in urban areas. As these numbers continued to increase, two new developments occurred. First, the debate evolved from being just about pure numbers of people, to also being about different types of impact that populations could cause. That is, some small but wealthy populations were consuming disproportionate amounts of resources and leaving a larger ‘ecological footprint’ than more numerous populations living in poorer conditions. For example, in terms of per capita consumption, in the 1990s, an average American citizen was consuming twice as much energy as a Japanese citizen, three times as much as a Spaniard, nineteen times more than a citizen from India, or 100 times more than the average Bangladeshi citizen. Or, on a sovereign basis, the United States (with then 250 million people) carried the responsibility for nearly 20 per cent of global warming whereas India (with a billion citizens) only carried a 4 per cent causation in the 1990s. Such problems became recognized as ‘over-​consumption’ (at either the per-​capita or sovereign level) and the international community accepted, in the first half of principle 8 of the Rio Declaration that ‘to achieve sustainable development and a higher quality of life for all people, States should reduce and eliminate unsustainable patterns of production and consumption . . .’.62 Whilst this was a positive recognition, and the problem was overwhelmingly understood to do with the over-​consumption of wealthy countries, it was also becoming apparent that within each country, there were rich and poor. Although the poor in the rich countries were not on the same level as the poor in the developing world, the rich in the developing countries were, in some instances, on par with the over-​consuming wealthy in the developed world. At the same time, the middle class in some parts of the developing world was also accelerating quickly (for example, with China going from a handful of personal washing machines in 1978 to over 100 million by 1999) and consumerism, expanding from being an obsession in the developed world alone.63 61  T Jones, T ‘World Bank Rejects Energy Industry Notion that Coal Can Cure Poverty’ Guardian (29 July 2015) A3; B Rich, Foreclosing the Future: The World Bank and the Politics of Environmental Destruction (Earthscan 2013) 7–​8, 11–​12, 236–​38; Anon, ‘When the Learning Curve is Long’ Economist (27 June 2009) 68; Anon, ‘World Bank: Refusal to End Oil, Coal Funding’ (2004) 34(2) Environmental Policy and the Law 97. 62  Principle 8 of the Rio Declaration on Environment and Development A/​CONF.151/​5/​Rev.1 (13 June 1992). See also ss 4.3, 4.4, 4.5, and 4.8, Agenda 21 UNCED 1992. Doc A/​CONF.151/​4; Report of the International Conference on Population and Development A/​CONF.171/​13 ch 3.1; Report of the World Summit for Social Development A/​CONF.166/​9 point 16(d); Istanbul Declaration on Human Settlements A/​CONF.165/​L.6. Add.10 Principle 4. 63  F Trentmann, The History of Consumption (Oxford University Press Oxford) 100–​107; P Stearns, Consumerism in World History (Routledge 2010) 90–​93, 98–​99, 113–​14, 120–​24, 130–​35; M Redclift,

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The second development was that the first real discussion of targets around population growth appeared as an increasing number of reports expressed their concern that the explosive pace of population growth in many countries was unsustainable. As the three notable famines of the 1990s, taking tens of thousands in the Sudan, about 300,000 in Somalia and up to 1 million in North Korea were put down to politics, war, and despotic regimes, the conclusion of the World Food Summit of 1996 was that, not only did everyone have a right to be free from hunger, but also, the ‘availability of food [in ecological terms] for all can be obtained’.64 However, when casting an eye further into the future, there was uncertainty, to which the Commission on Sustainable Development suggested ‘serious questions about long-​ term sustainability’ arise.65 An inkling of this understanding appeared at the 1992 Earth Summit of which the second half of principle 8 of the Rio Declaration stated that ‘to achieve sustainable development and a higher quality of life for all people, States should . . . promote appropriate demographic policies’.66 Two years later, at the 1994 Cairo Conference on Population, it was recognized that ‘pressure on the environment may result from rapid population growth . . .’.67 To help address this issue a cohesive plan evolved with far reaching goals such as reducing infant, child and maternal mortality; improving education (especially for girls); and, finally, recognition that universal access to family planning was necessary. It was added that ‘to achieve sustainable development . . . States should promote appropriate policies, including population-​ related policies’68 to, in some instances, ‘slow down population growth’.69

Wasted: Counting the Costs of Global Consumption (Earthscan 1995) 72–​90; J Holmberg, Policies for a Small Planet (Earthscan 1992) 321, 333–​35; P Harrison, The Third Revolution: Environment, Population and a Sustainable World (Taurus 1992) 255–​58, 272–​77; P Ehrlich, ‘Too Many Rich People’ (1994) 6(3) Our Planet 12; D Angel, Sustaining Earth: Response to Environmental Threats (Macmillan 1990) 91–​93. 64  Rome Declaration on World Food Security, World Food Summit (1996). This is reprinted in Report of the World Food Summit, FAO WFS 96/​REP para 5. See also Anon, Food Scarcity’ (1996) 26(1) Environmental Policy and the Law 14. 65  Commission on Sustainable Development, Overall Progress Achieved Since UNCED: Report of the Secretary General. E/​CN.17/​1997/​2 para 29. On the ‘right’ see para 1 of the Rome Declaration on World Food Security, World Food Summit (1996). This is reprinted in Report of the World Food Summit, FAO WFS 96/​REP. For discussion see L Mazur, Beyond the Numbers: A Reader in Population, Consumption and the Environment (Island Press 1994) 48, 49; N Alexandratos, World Agriculture Towards 2010:  An FAO Study (Wiley 1995) 38–​44, 184–​85; L Brown, Full House:  Reassessing the Earth’s Population Carrying Capacity (Earthscan 1994). For the famines of the period see D Byman, ‘Pyongyang’s Survival Strategy’ (2010) 35(1) International Security 44; S Haggard, ‘Famine in North Korea Redux?’ (2009) 20(4) Journal of Asian Economics 384; K Rutherford, Humanitarianism Under Fire: The US and UN in Somalia (Kumarian 2008) 17–​18, 30–​39, 108; J Drumtra, ‘The Political Roots of Famine in Southern Sudan’ (1998) 208 Middle East Report 5; J Alper, ‘Environmentalists: Ban the (Population) Bomb’ (1991) 252(5010) Science 1247. 66  The Rio Declaration on Environment and Development Principle 8 A/​CONF.151/​5/​Rev.1 (13 June 1992). See also ss 4.3, 4.4, 4.5, and 4.8 of Agenda 21 UNCED Doc ACONF.151/​4 (1992). 67  Report of the International Conference on Population and Development A/​CONF.171/​13 paras 3.25–​3.26. 68  Report of the International Conference on Population and Development. A/​CONF.171/​13 Principle 6. 69  Report of the International Conference on Population and Development. A/​CONF.171/​13, para 3.14. See also J Casterline, ‘Unmet Need for Family Planning in Developing Countries and Implications for Population Policy’ (2000) 26(4) Population and Development Review 691; C McIntosh, ‘The Cairo

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The following year in 1995, the Fourth World Conference on Women in Beijing provided the Platform for Action, from which the definitive ruling on reproductive health was set down. After (finally) laying down the foundation that fulfilling the rights of women and girls was (and is) central to development, the Platform for Action stated: Reproductive health is a state of complete physical, mental and social well-​being and not merely the absence of disease or infirmity, in all matters relating to the reproductive system and to its functions and processes. Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice, as well as other methods of their choice for regulation of fertility which are not against the law, and the right of access to appropriate health-​care services that will enable women to go safely through pregnancy and childbirth and provide couples with the best chance of having a healthy infant. In line with the above definition of reproductive health, reproductive health care is defined as the constellation of methods, techniques and services that contribute to reproductive health and well-​being by preventing and solving reproductive health problems. It also includes sexual health, the purpose of which is the enhancement of life and personal relations, and not merely counselling and care related to reproduction and sexually transmitted diseases.70

Movement towards targets around this principle appeared at the end of the twentieth century with the five-​year review of the Cairo Conference on Population in 1999. This review recognized that governments and the international community should use the full means at their disposal to support the principle of voluntary choice in family planning. From this, the target of 100 per cent availability for all couples (in practice it was about 50% in practice at the end of the century) of contraceptives was set for 2050.71

10.  Habitat Loss In the 1990s the number of protected areas was continuing to grow steadily, broadly from 40,000 to 60,000 sites over the decade. Bigger than all of these sites put together was the most spectacular success of habitat protection in this decade, namely the 1991 Madrid Protocol on Environmental Protection to the Antarctic Treaty. With this, the parties to the original Antarctica Treaty, after a high-​profile international debate, opted to expressly prohibit any activity related to mineral and/​or hydrocarbon extraction on the Seventh Continent. Although this did not Conference on Population and Development:  A New Paradigm?’ (1995) 21(2) Population and Development Review 223; M Gulens, ‘Population Conference Finalises Action Plan’ (1994) 309(6956) British Medical Journal 687. 70  Paragraph 94 of the Beijing Platform, Action for Equality, Development and Peace. 71  See Report of the Ad-​Hoc Committee of the Whole of the Twenty-​First Special Session of the General Assembly. A/​S-​21/​5/​Add.1 para 58; S Potts, ‘The Unmet Need for Family Planning’ (2000) Scientific American 70.

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turn the area, strictly, into one large protected area, in essence the entire continent was protected from the one type of development that could significantly damage it.72 Despite this progress with Antarctica, in the 1990s, the extent of the human destruction of habitat was unprecedented, especially when viewed over the full course of the 100 years within the century. That is, studies suggested that the amount of land under irrigation grew from 48 million to 255 million hectares over the twentieth century. Such changes were part of studies which suggested that, at the global level, by 1999, 26 per cent of all land surfaces were highly disturbed, 27 per cent were subject to medium disturbance, and 47 per cent were experiencing low disturbance. Within this global number, there were large differences. That is, in Europe less than 12 per cent of all land was only low disturbance whereas other regions, such as South America, had 75 per cent with low levels of disturbance. In some countries, very little natural vegetation remained. In Bangladesh, a mere 6 per cent of original vegetation was left; and in the United Kingdom and the Netherlands all but 4 per cent of lowland bogs were undamaged.73 While much of this stocktake from the mid-​1990s was historical in causation, contemporary loss of habitat in that decade was being watched with the ongoing problem of deforestation, of which an estimated 16.1 million hectares of natural forest were lost per annum. This included 15.2 million hectares in the tropics and 0.9 million hectares in non-​tropical zones. Against the total gross annual loss, there was a gain of 3.6 million hectares of new forest as a result of the expansion of existing forests (primarily with replanting or regeneration in the industrialized countries), giving a balance of –​12.5 million hectares as the annual net change. This meant that nearly 2 per cent of the world’s forests were removed in the 1990s. Within these broad figures, significant forest losses in areas such as Africa (–​5%) and South America (–​3%), were recorded.74 Despite these losses, attempts at negotiating a comprehensive treaty to stop this loss of forest habitat in this area before the Earth Summit proved impossible, as there were fundamental divergences of opinion over what needed to be done. The result was the 1992 Non-​Legally Binding Authoritative Statement of Principles for a Global Consensus on the Management, Conservation and Sustainable Development of all Types of Forests. In this document, the sovereign right of each country to exploit their own resources pursuant to their own environmental policies was juxtaposed against recognition of the vital role of all types of forests play in maintaining the ecological processes and balance at the local, national, regional, and global levels. While the principles emphasized the value of ‘greening of the world . . . [with] . . . reforestation, afforestation and forest conservation’ and ‘sustainable forest management . . .’75 on one hand, the desirability 72  The Madrid Protocol (1991) 30 ILM 1455. Note arts 2, 3(3), and especially 7. 73 UNEP, Global Environmental Outlook (Oxford University Press 1997) 242–​44. 74  K Do, ‘Forest Cover Change from 1990 to 2000’ (2014) 155 Remote Sensing of the Environment 178; FAO, The Global Forest Assessment 2000 (FAO 2000) 3–​5. 75  Principle 8(a) (d) and (e) of the Non-​Legally Binding Forest Principles, as set out in A/​CONF.151/​ 26 (Vol. III) or (1992) 31 ILM 881.

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of a free international trade in forest products, was the offset mentioned on the other hand.76 Two years later, the International Tropical Timber Agreement of 1994 (updating the 1983 agreement) was agreed. Here, the producers and consumers of tropical timber emphasized their individual commitments to achieve exports of tropical timber products from sustainably managed sources by the year 2000. However, their efforts went little further than promising to enhance the capacity of their members in this area, and although discussions of sustainability of forests started to grow within this regime, this target was not even close to being achieved, as considerations of maintaining this as a trading agreement for a particular commodity trumped other concerns.77 The other significant area of habitat loss that the international community sought to address in the 1990s was desertification. The international community agreed to confront this problem with the 1994 Convention to Combat Desertification. This regime sought to improve the productivity, rehabilitation, conservation, and sustainable management of land and water resources, by taking a grassroots approach that was not just technical and scientific, but also contextual, in seeking to understand the economic (poverty) and social contexts of the problem of desertification. In large part, it may have been because of its wider focus, its inability to link science to policy, decentralize it goals, and an overwhelming focus on Africa, that the Convention largely failed in its first decade of operation. The failure of this regime was of such an extent that many expected that, the entire regime could collapse.78

11.  Biodiversity Loss As habitat continued to be destroyed, a number of studies started to appear in the 1990s that suggested humanity was about to drive nature into an extinction spasm, well beyond the scale and speed of the traditional (without human involvement) rates of extinction. The thinking of this period began with scientists starting to discover thousands of new species (all being the smaller species, with the larger and/​ or more beautiful, like birds, being largely recorded previously) in biologically rich habitats from the tropical rainforests to the coral reefs. These new discoveries of previously unknown species were then being calculated against the loss of habitat in such areas, with the thinking being that many new species were being lost before even being recorded. 76  Principles 1(a), 4, and 13. 77  The International Tropical Timber Agreement (1994) 33(4) ILM 1014. See also M Auer, ‘The Understory of the International Tropical Timber Organisation’ (2003) 101(5) Journal of Forestry 42; E Kazimbazi, ‘Sustainable Development in International Tropical Timber Agreements’ (1996) 14 Journal of Energy and Natural Resources Law 137; P Wilson, ‘Proposals for Enhancing the Effectiveness of the International Tropical Timber Agreement’ (1996) 10 Temple International and Comparative Law Journal 229. 78 United Nations Convention to Combat Desertification in Countries Experiencing Extreme Drought (1994) 33 ILM 1328. See also E Glen, ‘On Our Failure to Control Desertification: Implications for Global Change Issues’ (1998) 1(2) Environmental Science and Policy 71.

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The thinking at this point changed to identifying habitat loss, n ​ ot over-​harvesting, ​as now the foremost driver of extinction. Various projections then suggested that species were becoming extinct at a rate of 50,000 per annum; one species every twenty minutes; or 10 to 100 species being lost every day. From such projections, and following on from the previous five (non-​human-​related) mass extinctions in the Earth’s history, the current (human-​related) extirpation process was then identified as ‘the sixth extinction’.79 This unprecedented loss of biodiversity, coupled with concerns that its benefits were not being equitably shared, lead to the formation of the 1992 Convention on Biological Diversity (CBD). Unlike the previous wildlife conservation focused treaties of the 1970s that focused upon species which were endangered, this was the first convention which aimed to cover the conservation of all species. The objectives of the CBD were (and are) to preserve all species of biodiversity nationally and to cooperate internationally for the same goal. All of the parties agreed that the ‘conservation of biological diversity is a common concern of humankind’, and working towards the conservation, sustainable use, and equitable sharing of biodiversity was essential. In terms of conservation, each signatory was obliged to ‘promote the protection of ecosystems, natural habitats and the maintenance of viable populations of species in natural surroundings’ and ‘as far as possible and as appropriate’ to ‘establish a system of protected areas or areas where special measures need to be taken to conserve biological diversity’.80 Within the myriad of work that this Convention then set itself, it also spawned two protocols, on biosafety and equitable sharing of the benefits of biodiversity.81

12. Fisheries In the 1990s, while the percentage of the world’s fish stocks at capacity broadly remained stable (at just under 50%), the rate of those with capacity to expand fell (from 33% to 22%), while the rate of fish stocks at overcapacity rose from 20 per cent to 29 per cent. In some extreme instances crashes occurred with red snapper in the Gulf of Mexico, followed by summer flounder and bluefish as the decade turned, dropping 60 per cent from 1980 levels. Elsewhere the problem of overfishing turned into a disaster in 1992 when the New England ground fishery collapsed, decimating haddock, flounder, and cod (with the latter falling to 1% of its original biomass), for which over 40,000 people lost their jobs. The causes of this, essentially, were climate

79  R Leakey, The Sixth Extinction:  Biodiversity and Its Survival (Phoenix 1995) 240–​43; UNEP, Global Biodiversity Assessment (Cambridge University Press 1995) 6, 118, 234–​37; P Raven, ‘Why it Matters’ (1994) 6(4) Our Planet 1; Panel of the Board on Science and Technology, Biodiversity (National Academy Press 1992) 18. 80  The quote is from art 8(a) and (c) of the Convention on Biological Diversity, (1992) 31 ILM 818. See also para 3 of the preamble, as well as arts 1, 4, and 5. 81  These were the 2000 Cartagena Protocol on Biosafety (2000) 39 ILM 1027; and the 2010 Nagoya Protocol on Access and Benefit Sharing UNEP/​CBD/​COP/​DEC/​X/​1 of 29 October 2010. For a full discussion of these two protocols see A Gillespie, Conservation, Biodiversity and International Law (Edward Elgar Publishing 2013) chs 10 and 17.

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fluctuation and domestic mismanagement, which included failures in science, regulations, and compliance.82 The other fishery-​related problem that became much more apparent in the 1990s was ‘incidental catch’ or ‘bycatch’, which was now recognized as being much bigger than the (1980s) concern about large drift nets (that could be tens of kilometres in length and made of non-​biodegradable material), which indiscriminately caught everything in their path. In the 1990s, the issue was not just drift nets but also a multitude of additional indiscriminate methods that unintentionally captured the right species but the wrong type (such as the wrong size), but also the wrong species, ranging from turtles to endangered cetaceans, through to seabirds (of which an estimate of 100,000 albatross per annum was tagged to the longline industry). A crude estimate for the global total of incidental catch at this point was 20 million tons each year, at around 23 per cent of the then marine landings.83 The international community responded to these challenges on multiple levels. New fisheries conventions in the early 1990s for the Indian ocean and South Pacific (both for Tuna) plugged some of the remaining geographical gaps, whilst the 1995 Agreement on Straddling and Highly Migratory Fish Stocks filled many of the legal and policy holes. This agreement took as its objective the ensuring of the long-​term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks. New rules covering, inter alia, the setting of sustainable catch limits, a precautionary approach, bycatch, transparency and much better monitoring, control, and surveillance were all agreed upon. Cooperation in management, compliance, formation of regional fisheries (and enticement of new members to join regional agreements), and measures that a port state could insist upon were also sketched out. Although these rules would take a while to embed, the foundations for an enhanced approach to conservation of fisheries was laid down.84 The new rules were supplemented by a collection of voluntary documents from the Food and Agricultural Organization of the UN. The most important of these was the Code of Conduct for Responsible Fisheries 1995. Although soft in legal nature, this Code set down a sequence of principles by which all members of the FAO promised to abide. These included ensuring effective conservation and management of living aquatic resources, preventing overfishing, using the best science available and a precautionary approach. Selective fishing gear, minimizing waste and 82  K Meng, ‘New England Cod Collapse and the Climate’ (2016) 1(7) PLoS One; T Kenneth, ‘Trophic Cascades in Formerly Cod Dominated Ecosystems’ (2005) 308 (5728) Science 1621; FAO, The State of the World’s Fisheries and Aquaculture (FAO 1997) 13; B Holmes, ‘Biologists Sort the Lessons of Fisheries Collapse’ (1994) 264 (5163) Science 1252. 83  Independent Commission on the World’s Oceans, The Ocean Our Future (Cambridge University Press 1998) 84. See D Alversen and others, ‘A Global Assessment of Fisheries Bycatch and Discards’ Fisheries Technical Paper No339 (FAO 1994); I Clucas, A Study of Options for Utilisation of Bycatch and Discards from Marine Capture Fisheries (FAO 1997) 35–​39; J Boyce, ‘An Economic Analysis of the Fisheries Bycatch Problem’ (1996) 31(3) Journal of Environmental Economics and Management 314. 84  The concerns recognized at the 1992 Earth Summit can be found in ch 17 of Agenda 21: see especially ss 17.46 and 17.74. The new fisheries agreements were both in 1993, for the Conservation of Southern Bluefin Tuna and the Indian Ocean Tuna Commission. The Straddling Stocks Agreement can be found at (1995) 34 ILM 1542; 2167 UNTS 88. See generally L Juda, ‘The 1995 United Nations Agreement on Straddling Stocks: A Critique’ (1997) 28(2) Ocean Development and International Law

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avoiding catch of non-​target species, protecting (as far as possible) critical fisheries habitats, and ensuring compliance with enforcement of conservation measures were also set down as best practice. Two years later, further voluntary plans of action were adduced to deal with the problem of seabird bycatch and shark discards (a problem of waste, rather than bycatch, as often only the fin is kept and the carcass discarded). These plans of action were then adopted (or not) by either national or regional fisheries organizations.85

13.  Non-​carbon-​based  Energy In the 1990s, humanity continued to make types of progress with regard to non-​ carbon-​based energy sources. In terms of nuclear power, after it became apparent that nuclear energy did not produce carbon emissions which were the root cause of climate change, it was hoped by many that this energy source would again become popular. Moreover, the International Atomic Energy Agency had, by the end of the 1990s, created a plethora of agreements and measures to safeguard nuclear energy from weapon proliferation concerns. In addition, the international community also agreed convention in 1997 on the Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management. This was a type of progress as, in theory, this Convention allowed countries to start planning for the long-​term storage of nuclear waste, rather than continuing to hold it in (over forty) temporary locations around the world. This Convention sought to achieve and maintain a high level of safety in radioactive waste management by ensuring that during all stages of radioactive waste management there were effective defences against potential hazards so that individuals, society, and the environment were protected, in the short, medium, long, and very long term.86 In practice, this has meant that disposal was now accepted in some very stable deep geological areas. These areas are considered to represent the safest and most sustainable option for the ever-​lasting management of high-​level nuclear waste. The only problem is that guaranteeing that any site holding nuclear waste will be secure tomorrow, let alone in 1,000, 10,000, or 1 million years to come, is something only a few countries (Finland, France, and Sweden) are currently willing to bet on. Conversely, other countries, such as Germany, Britain, and the United States, are

147; C Warbrick, ‘The Straddling Stocks Agreement: An Initial Assessment’ (1996) 45(2) International and Comparative Law Quarterly 463. 85  FAO Code of Conduct for Responsible Fisheries 1995, FAO Doc 95/​20/​Rev/​1; UN Sales No E98.V.11 (1998); 1995 WTS 3. The Plans of Action for Reducing Incidental Catch of Seabirds in Longline Fisheries, and that for the Conservation and Management of Sharks, are both available from the FAO http://​www.fao.org/​fishery/​code/​ipoa/​en. 86  The 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management INFCIRC/​546 (24 December 1997). See arts 1, 11(v)–​(viii), 12, 13, 15, and 17. See also IAEA, Climate Change and Nuclear Power (IAEA 2000) 9–​10; NEA, Nuclear Energy in a Sustainable Development Perspective (OECD 2000); Editor, ‘Nuking the Greenhouse’ (1988) New Scientist 20.

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not yet willing to bet on what is the safest way to store nuclear waste in perpetuity. Accordingly, for most, there is no longer-​term solution to the problem.87 The cumulative result of the concerns about nuclear waste, coupled with recent memories of the Chernobyl accident, meant that despite the theoretical benefit of nuclear energy in confronting climate change, it was showing signs of becoming unpopular. That is, during the 1990s, global nuclear generating capacity grew only by 4.7 per cent, compared to a 140 per cent increase in the 1980s.88 Where there was much more positive progress with alternative energy sources was with regard to wind and solar power. The world’s first offshore windfarm was created by Denmark in 1991, which was the same year that Britain opened its first onshore windfarm with ten turbines, sufficient to power 2,700 homes. In the same period, by the end of the decade, as prices continued to fall and efficiencies (now at 37%) increased, total worldwide photovoltaic power reached 1000 megawatts (up from 20 megawatts in 1982). Nonetheless, cumulatively, these technologies provided less than 0.05 per cent of the overall total of the energy used at the end of the twentieth century.89 Where progress was also made in the 1990s was in the area of energy efficiency. Improving energy efficiency meant (and means) acting to maintain the same unit of output, of a good or a service, without reducing the quality or performance of the output, while simultaneously reducing the amount of energy required to produce that output. In many instances, it makes greater economic sense to find efficiencies to reduce demand, rather than increase the supply of the energy. This approach, to save energy for economic and policy reasons, irrespective of the environmental spill-​ over benefits, has been evident since the first oil crisis in the 1970s. In the 1990s, the environmental benefits became equal billing as it became apparent that if the United States had been operating at the efficiency levels it had in 1973 at the end of the 1980s, it would have pumped an additional 50 per cent of carbon dioxide into the atmosphere by the time the climate agreement was signed in 1992. Projecting forwards, the Intergovernmental Panel on Climate Change suggested that (from the view of the 1990s) efficiency gains of between 10 to 30 per cent above current baseline trends over the next two to three decades could be realized at negative to zero economic cost. Overall efficiencies in the developed world of 20 per cent and

87 J Naslund, ‘Climate Considerations in Long-​Term Safety Assessments for Nuclear Waste Repositories’ (2013) 42 AMBIO 393; J Birkholzer, ‘Geologic Disposal of High-​Level Radioactive Waste: Status, Key Issues, and Trends’ (2012) 37 Annual Review of Environment and Resources 79; W Alley, Too Hot to Touch: The Problem of High Level Nuclear Waste (Cambridge University Press 2011) 10, 23–​27, 112–​21; T Beken, ‘Security Risks in Nuclear Waste Management’ (2010) 91 Journal of Environmental Management 940; O Johnson, ‘High-​Level Radioactive Waste Management’ (2010) 82(10) Water Environment Research 1748; R Vandenbosch, Nuclear Waste Stalemate (Utah University Press 2007) 7–​15, 215–​50. 88  L Brown, Vital Signs: 2000–​2001 (Earthscan 2001) 54–​55. 89 IPCC, Climate Change 1995: Impacts, Adaptations and Mitigation (Cambridge University Press 1996) 15; L Sykes, ‘The Power To Choose’ (1997) New Scientist 18; Energy Information Agency, International Energy Annual: 1998 (EIA, Dept. of Energy 2000) 201; P Ball, ‘Sun Traps’ (1999) New Scientist 38; L Tyzan, ‘Seeing the Light’ (1999) New Scientist 21; P Cohen, ‘Cheap Solar Cells Have Their Day In the Sun’ (1997) New Scientist; Anon, ‘Power to the People’ (1997) Scientific American 29.

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much higher in the developing world (attributable to its common possession of very inefficient technologies) were foreseen.90

14.  Climate Change The tiny percentage of renewable technologies and the nascent interest in energy efficiency continued to be eclipsed by the growth in energy sources of coal, oil, and natural gas in the 1990s. The traditional annual 2 per cent growth rate in energy use since the 1800s began to accelerate, with the rate of carbon emissions growing by about 80 per cent between 1970 and the end of the twentieth century. The result was that, in the 1990s, the concentration of carbon dioxide in the atmosphere climbed to 367 ppm by the end of the decade, suggesting an overall increase of 31 per cent since 1750. Although the top five emitters of carbon were still developed countries (with the United States at the forefront), the difference by the 1990s was that it was no longer just the developed world that was expanding. With these trajectories of GHG emissions, the reports of the Intergovernmental Panel on Climate Change would predict that, on a then business as usual basis, that mean temperatures would rise by 1°C by 2025 and potentially by up to 3.5°C by 2100.91 To this concern, in 1992, after just over one year of negotiation, the international community agreed to the United Nations Framework Convention on Climate Change (UNFCCC). The objective of this convention was recorded as: the ‘[s]‌tabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system’.92 To this goal, the developed countries that signed the convention then agreed to stabilize their GHG emissions by the year 2000 to the level their emissions were at in 1990.93 The difficulty was that it became evident between 1992 and 1997 that the UNFCCC was not sufficient to meet the goals that had been set. GHG emissions were continuing to expand, with the developed countries not stabilizing but actually increasing by 7.8 per cent in the given period. Similarly, GHG emissions from developing countries as a whole exhibited an increase of 3.5 per cent from 1990 to 1995, although some countries, such as China and India (which had a much smaller base to expand from) both rose throughout the decade by over 20 per cent. Owing to this failure of the UNFCCC to confront the problem, a protocol was added to the regime at Kyoto in 1997. This 90 IPCC, Climate Change 1995: Economic and Social Dimensions (Cambridge University Press 1996) 6, 11, 12; IPCC, Climate Change 1995: Impacts, Adaptations and Mitigation (Cambridge University Press 1996) 13; T Wilbanks, ‘Improving Energy Efficiency: Making A No Regrets Policy Work’ (1994) 36(9) Environment 16; E Hirst, ‘Boosting Energy Efficiency’ (1991) 33(2) Environment 7; A Fickett, ‘Efficient Use of Electricity’ (1990) Scientific American 29. 91  IPCC (1996) Climate Change 1995: Impacts, Adaptations and Mitigation (Cambridge University Press 1996) 3; W Clark (ed), Climate Change: Science, Impacts and Policy: Proceedings of the Second World Climate Conference (Cambridge University Press 1997) 23. 92  See art 2 of the United Nations Framework Convention on Climate Change (1992) 31 ILM 849. For the recent rise in emissions to this point see D Dreyfus, ‘Fueling Our Global Future’ (1990) 32(4) Environment 17. 93  Article 4(2).

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protocol set reduction targets for developed (not developing) countries, of 5 per cent below their 1990 level emissions. This was to be achieved by 2012.94

15.  Air Pollution The study of air pollution in the 1990s started to make new discoveries, primarily related to the anthropogenic particulates in the atmosphere that were divided into three principal size groups. Ultra-​fine particles are under two microns in size, fine particles are between two and a half and ten microns in diameter (suspended particulate matter/SPM 2.5) and larger particles (SPM 10) are particles of between two to one hundred microns in diameter. Very simply, in the century before 1990, the focus had been on large particulates. These are the air pollutants that tended to be more visible, heavier in weight, and deposited in the vicinity of where they originated. Conversely, smaller particles may remain airborne and be transported for long distances. Smaller particles predominate in transport pollution (especially with nitrogen dioxide from diesel, although other sources still contribute), as opposed to larger particles in industrial pollution (which were often sulphur dioxide-​based). Both types of air pollution kill, with the difference that smaller, anthropogenic particles are more likely to contain carcinogens, can penetrate deep into body, and influence everything from DNA formation to lung cancer and cardio-​pulmonary disease. Research dealing with SPM 2.5s suggests that lung cancer rises by 8 per cent for every 10 microgram increase in the average concentration of SPM 2.5s per cubic metre. The increased risk is comparable with the risks to long-​term passive smokers.95 What this meant in practice, was that as the developed world began to take control of air pollution caused by large particulates, such as coal burning power plants, it now had to start dealing with small particulates, as caused by transport. This was a critical turn as, by 1990, road traffic had become the largest single source of air pollution in the world (having risen, globally, from a million cars on the road in 1910 to close to 800 million cars, motorbikes, and trucks) by the end of the century, trumping smokestacks and chimneys. Beginning around 1990, sulphur emissions associated with large particles in Europe and North America fell by 40 per cent to 70 per cent in short order. Copenhagen, between 1970 and 2005, saw sulphur dioxide concentrations fall by 90 per cent. London, between 1920 and 2005, recorded falls of 98 per cent, with nearly half of this 94  See para 1 of the preamble, and art 3(1) of the Kyoto Protocol to the United Nations Convention on Climate Change UN Doc FCCC/​CP/​1997/​7/​Add.1 (10 December 1997). See also (1997) 37 ILM 22; Anon, ‘Hot Air’ (1997) New Scientist 7; F Pearce, ‘Climate Treaty Heads For Trouble’ (1995) New Scientist 4. 95 UNEP, GEO 3 (Earthscan 2002) 211; World Resources Institutes, UNEP, and World Bank, World Resources: 1998–​1999 (Oxford University Press) 63; UNEP/​WHO, ‘Air Pollution in the World’s Megacities’ (1994) 36(2) Environment 11; UNEP, GEO 2000 Report (Earthscan 2000) 168; N Boyce, ‘Hold Your Breath’ (2000) New Scientist 5; Anon, ‘Breathe Easy?’ (1998) New Scientist 7; M Day, ‘Taken to Heart’ (1998) New Scientist 23; M Hamer, ‘Number of Particles Is Key to Pollution Deaths’ (1994) New Scientist 17.

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decline since 1970. However, while these were decreasing, detrimental impacts upon human health continued as air pollution morphed into impacts causes by smaller particulate matter, continuing to shorten tens of thousands of lives every year. A number of former communist countries also saw their air-​based sulphur pollution plummet in the 1990s (over 50 per cent in East Germany, Poland, and the Czech lands), only to be offset (partially) by a rise in air pollution associated with motor vehicles (such as with Albania, which went from 2000 cars in 1989 to 300,000 ten years later).96 The successes in both North America and Europe were driven by strong domestic laws, which progressively tightened emission levels. In both instances, these were buttressed by strong regional agreements. In the case of Canada and the United States, their Agreement on Air Quality was reached in 1991, from which both countries made large reductions in shared air pollutants after strong science and political commitments meant they could both make progress. The result was emissions of sulphur falling in both Canada (from 4.5 million tons in 1980 to 1.4 million tons in 2014) and the United States (from 17 million tons to 3 million). In Europe, two protocols to the LRTAP regime, one on Volatile Organic Compounds (and a 30% reduction), the other on further reductions of sulphur emissions (baselined against ecological needs, not standardized targets), resulted in further reductions of air pollution. The sulphur, nitrogen dioxide, and volatile organic compound protocols were then all tied together in the Gothenburg Protocol in 1999, all with revised targets, and all emission ceilings based upon the ecological conditions of where the air pollution was impacting.97 Conversely, the developing world had to deal with both streams of air pollution. At the end of the twentieth century, ten of Asia’s eleven mega-​cities exceeded the World Health Guidelines by a factor of at least three. Such pollution was believed to account for between 2 to 5 per cent of all deaths in urban areas, as both SPM 10 and SPM 2.5 pollution increased. This was a particular problem in both India and China. Of the latter, in the late 1990s, the World Bank estimated that air pollution was costing the country 8 per cent of its GDP. In such parts of the world, the air pollution laws remained rudimentary and poorly enforced. Transboundary cooperation was also nascent, although a number of countries in south east Asia (but not China or India) began talking about creating a type of agreement similar to the LRTAP and associated protocols, which had been so successful in Europe and North America.98 96  J McNeill, The Great Acceleration:  An Environmental History of the Anthropocene Since 1945 (Harvard University Press 2014) 25–​26, 58. 97  The two protocols on (1991) Volatile Organic Compounds or their Transboundary Fluxes and (1994) Further Reductions in Sulphur Emissions can be found at (1991) BH994.txt and (1994) 33 ILM1542. See also International Joint Commission, Canada–​United States Air Quality Agreement, Progress Report 2014 (IJC 2014) 3–​ 6, 32–​ 44; J Engel, ‘Science-​ Policy Data Compact:  Use of Environmental Monitoring Data for Air Quality Policy’ (2005) 8 Environmental Science and Policy 115; L Alm, ‘Scientists and the Acid Rain Policy’ (1997) 22(3) Science, Technology and Human Values 349; D Munton, ‘Acid Rain and Transboundary Air Quality in Canadian–​American Relations’ (1997) 27(3) American Review of Canadian Studies 327. 98 UNEP, Benchmarking Urban Air Quality Management and Practice in Major and Mega Cities of Asia (UNEP 2002) 5–​6; UNEP, GEO 3 (Earthscan 2002) 224–​29. UNEP (2000) GEO 2000 Report (Earthscan 2000) 56, 170; J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 58–​61, 107; OECD (1999) Environmental Data Compendium (OECD, Paris) 57–​60.

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16.  Ocean Pollution The 1990s continued to see a sequence of large-​scale accidents involving oil tankers. The larger accidents included the Braer in 1993, which grounded itself and spilt 39 million gallons on the Shetland Islands. The Sea Empress ran aground in Wales in 1996, spilling 19 million gallons of fuel. The Cuzamon ran aground and spilt 1.3 million gallons of fuel near the port of Paraguana, Brazil, in 1999. This was followed on the French Atlantic Coast when the single hull tanker Erika broke apart and sank, spilling 10,000 tons of fuel and causing unprecedented environmental damage, which cost over US$48 million to clean up.99 The international community responded with a suite of new measures. Conventions were adopted on advance planning for oil spills; the limits on compensation were raised; and single hull tankers were phased out (making much safer double hulls obligatory). Finally, the International Maritime Organization was requested to investigate sea areas around the world which were (and are) in special need of protection on account of the areas’ particular sensitivity. From this goal thirteen particularly sensitive sea areas (ranging from the Great Barrier Reef to the Galapagos) have been inscribed, by which high-​risk vessel traffic in vulnerable areas have additional responsibilities, including where they can, and cannot, transit. Although these measures were far from perfect, the incidence of accidents and the amount of oil spilt into the ocean began to decline in this decade.100 Although the sequence of new measures to confront tanker accidents were good during the 1990s, the most significant change of the decade for protection the marine environment was the 1996 Protocol to the original 1972 London Dumping Convention, which effectively reversed the original approach. This Protocol sought not to regulate the dumping of waste into the ocean but, as far as possible, eliminate it. In doing so, it adopted a precautionary approach in which it had to be shown that waste was safe to dump, rather than the other way around where it was permitted until shown that it was unsafe. This meant that much of the waste that had been debated about in the 1980s, such as low-​level nuclear waste or industrial waste, simply became prohibited to dump in the ocean. Now, only a small list of what was

99  B Sovacool, ‘The Costs of Failure: A preliminary Assessment of Major Energy Accidents, 1907–​ 2007’ (2008) 36 Energy Policy 1802; V Ridoux, ‘The Impact of the Erika Oilspill’ (2004) 17(3) Aquatic Living Resources 1. 100  For the new and/​or revised conventions see the Convention on Preparedness as at (1990) 30 ILM 733; the Protocol of 1992 to amend the 1969 Convention on Civil Liability for Oil Pollution (the CLC Convention); and also the Protocol of 1992 to amend the 1971 International Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage, 1956 UNTS 255; the 1996 Convention on Liability and Compensation for Damage in Connection with the Carriage of Hazardous and Noxious Substances by Sea (1996) 35 ILM 1415; and the International Convention on Civil Liability for Bunker Oil. IMO LEG/​CONF.12/​19, [2002] OJ L256/​7. For the Particularly Sensitive Sea Areas see IMO, Resolution A.720(17) and, for a full discussion see A Gillespie, ‘Vulnerability and Response to International Shipping’ (2016) 25(3) Review of European, Comparative and International Environmental Law 317.

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prima facie safe to dump (such as dredged material; sewage sludge; fish waste; vessels and platforms or other man-​made structures at sea; inert or inorganic geological material) was drawn up. Even if a waste was placed on the list, each waste stream had its own guidelines to follow showing that attempts of ocean disposal was the best option, and if so, it must not contain highly polluting materials within it, and the location must be suitable (ie, not too sensitive and able to tolerate the waste) and closely monitored.101 Despite the clear progress in dealing with high level and visible types of ocean pollution in this decade, a new type of ocean pollution—​that of plastic—​came fully into view. Although the dumping of plastic in the ocean being uncategorically prohibited since 1972, a decade into the twenty-​first century (and despite international agreed commitments to significantly reduce such marine debris by 2025) somewhere between 4 million and 12 million tons of plastic are estimated to be going into the oceans every year. This plastic, the vast majority of which originates on land (not from intentional dumping into the sea) ends up either as litter on coasts, on the high seas, or as a direct threat to marine life, with at least 267 species in the marine environment known to have been affected by plastic entanglement or ingestion.102 Although some areas, such as the Antarctic, are relatively free of plastic, other oceans are not. In the Baltic Sea the density of litter is between 700 and 1,200 pieces per 100 metres of coastline, while some of the (English) coasts on the North East Atlantic recorded levels of over 3,200 items per kilometre. Much of this litter is transported to the coasts of faraway places, with countries such as New Zealand finding that upwards of 60 per cent of the plastic litter impacting on their shores is not from domestic sources. Plastic that is not washed up can, with the help of the ocean currents, accumulate on the high seas. The North Pacific Subtropical Convergence Zone, an area about the size of Texas and connected with three million pounds of debris, is believed to be the largest, with five other smaller gyres of plastic also being recorded. Some of these gyres, such as that for the South Pacific, spit out plastic to nearby areas. For example, in 2017, uninhabited Henderson Island was found to have plastic on its beaches at a rate of 239 items per square metre (with 99% of it originating from South America).103

101  The 1996 Protocol to the 1972 Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (1997) 36 ILM1; L Ringius, ‘Environmental NGOs and Regime Change: The Case of Ocean Dumping’ (1997) 3 European Journal of International Relations 61. 102  The goal is in Rio+20, The Future We Want, Outcome document of the United Nations Conference on Sustainable Development Rio de Janeiro, Brazil, 20–​22 June 2012, para 163. 103  For the figures see A Klein, ‘Remote Island Found Buried In Plastic’ (2017) New Scientist 7; J Hammer, ‘Plastics in the Marine Environment: The Dark Side of a Modern Gift’ (2012) 220 Review of Environmental Contamination and Toxicology 1. C Moore, Plastic Ocean (Avery 2012) 70–​71, 185–​90; G Mordecai, ‘Litter in Submarine Canyons’ (2011) 58 Deep-​Sea Research II 2489; S Freinkel, Plastic (Houghton 2011) 117, 132, 136–​38; J Sul, ‘Marine Debris Review for Latin America’ (2007) 54 Marine Pollution Bulletin 1087; R Edwards, ‘Litter at Sea means a Bellyful of Plastic’ (2005) New Scientist 11; C Moore, ‘Trashed’ (2003) Natural History 46.

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17.  Fresh Water Conservation In the 1990s, evidence began to be produced which showed that one-​third of the then population was living in countries with moderate to high water stress, and this was expected to increase quickly, if neither demand was reduced nor management improved. The international community responded with the first International Conference on Water and the Environment in Dublin in early 1992 and then with Agenda 21 from the Earth Summit, with the latter reiterating a number of the existing principles for fresh water management in this area, before adding new ideas in terms of setting conservation targets to be achieved by 2025. The 1992 (European) Convention on the Protection and Use of Transboundary Watercourses and International Lakes supplemented this area, by requiring parties to prevent, control, and reduce transboundary impact, use transboundary (surface and ground) waters in a reasonable and equitable way, ensure their sustainable management and enter into specific agreements, and establish joint bodies.104 Five years later, in 1997, the Convention on the Non-​Navigational Uses of International Waterways was concluded. This covers both surface waters and ground waters. This convention contains the strongest rules in international law covering fresh water systems. Although it entrenched many of the earlier 1966 Helsinki Rules, built upon a riparian approach with equitable and reasonable use of waters, it did introduce three new ideas. First, in any conflict between uses, especially with regard to reasonable and equitable utilization, the rules required special regard to be given to the requirements of vital human needs. Secondly, the environmental angles were expanded to add that optimal and sustainable utilization had to be consistent with adequate protection of the watercourse. Finally, emphasis was placed upon not causing significant harm to other water using states, especially by reducing and controlling pollution of shared waterways.105 To add weight to this direction, the ICJ agreed in 1997 that all watercourse states had the right to participate in the use, development, and protection of (their shared) international watercourses in an equitable and reasonable manner. In so doing, the Court noted the obligation upon all states ‘to maintain the quality of the water [in this instance, of the Danube] and to protect nature’.106

104  Agenda 21, ch 18, paras 9, 11, 14, 20, 29, 35, 42, 43, and 68. See also 1992 Convention on Transboundary Watercourses 1936 UNTS 269, (1992) 31 ILM 1312. 105  The 1997 Convention on the Non-​Navigational Uses of International Waterways can be found at (1997) ILM36: 700, note in particular arts 5(1), 10(2), 20, and 21. For commentary see FAO, Law for Water Management: A Guide to Concepts and Effective Approaches (FAO Legislative Study 101 2010) 110–​15; P Beaumont, ‘The 1997 UN Convention on the Law of Non-​Navigational Uses of International Watercourses’ (2000) 16(4) International Journal of Water Resources Development 475. 106  The International Court of Justice, Case Concerning the Gabčíkovo-​Nagymaros Project [1997] ICJ Rep 112.

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18.  Popular Participation Popular participation in environmental matters became entrenched in the 1990s, as attested by the 200 million participants from 140 countries with Earth Day as the decade began, or the 650 accredited NGOs at the 1992 Earth Summit. Of the latter event, Agenda 21 recognized that NGOs played a vital role in the shaping and implementation of participatory democracy, and that to achieve the goals of sustainability, international organizations needed to design open and effective means to achieve the participation of NGOs and find ways of giving them expanded roles.107 With regard to public participation in general, Principle 10 of the Rio Declaration stipulated that: Environmental issues are best handled with the participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-​making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.108

The heavyweight document in international policy from this period that built on what Principle 10 was trying to achieve was the UNECE Convention on Access to Information, Public Participation in Decision-​Making and Access to Justice in Environmental Matters. Although an overwhelmingly European treaty, this ground-​ breaking regime echoed well beyond the region it was primarily governed, with the former Secretary General of the UN, Kofi Annan, calling it ‘the most ambitious venture in the area of environmental democracy so far undertaken under the auspice of the United Nations’.109 Acceptance of the valve that most environmental information should be publicly available, coupled with the ideals that the public should be informed about what impacts upon them and have the right to participate in that decision-​making process, as a principle of international law was radical. Here, for the first time at a level beyond the individual state was the idea that procedural rights could be used to help achieve environmental protection via public participation, consultation, and transparency in environmental decision-​making. Although significant

107  See chs 27.1 and 27.9(d) of Agenda 21. For the importance of NGOs in this period see IUCN, World Conservation Strategy for the 1990s (IUCN 1990) 137, 138, 156–​57. See also Commission on Global Governance, Our Global Neighbourhood (Oxford University Press 1995) 35–​37, 65–​67. 108  See also Agenda 21 chs 3, 11, and 14. 109  Annan, at p 94 as in B Cramer, ‘The Human Right to Information, the Environment and Information About the Environment’ (2009) 14(1) Communication, Law and Policy 73. See also Convention on access to information, public participation in decision making and access to justice in environmental matters (1999) 38 ILM 517.

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debate remains around the nature of these rights (and the difference between those that are procedural, and those that are substantive), the importance of recognizing that the public has a right to information on matters that impact upon them was unprecedented.110

19.  The Ethical Consumer Building on from the idea of the power of the individual citizen was that of modern ethical consumerism. The idea which had been emerging since the 1970s here was that empowered consumers could change the direction of those who had something to sell in the marketplace, if so desired, by their purchasing power. The key to the process was in having information given to the consumer, such as via a label, that was easy to understand and trustworthy. To be credible, it became apparent that it had to be verified using pre-​agreed clear criteria by independent third parties. If these considerations were met, then the power of the ethical consumer could be unleashed. With such a theoretically happy ending, the goal of ethical consumerism was well endorsed in a number of international documents of the 1990s.111 A good example of the success of this type of approach from this period can be seen with the Marine Stewardship Council. This is an international, non-​profit organization that was formed by the World Wildlife Fund and Unilever in 1997, before becoming fully independent in 1999. It created an ecolabel to be attached to certain caught fish, which was designed to reward sustainable and well-​managed fisheries with a visible environmental endorsement by channelling consumer demand. To achieve their goal, two standards were created. First, the fisheries standard to assess the sustainability of wild capture fisheries was made. Secondly, the chain of custody standard was created to ensure traceability (via DNA analysis) 110  M Mason, ‘Information Disclosure and Environmental Right: The Aarhus Convention’ (2010) 10(3) Global Environmental Politics 10; A Gupta, Transparency in Global Environmental Governance (MIT Press 2014) 3–​39, 321–​40; M Lee, ‘The Usual Suspects? Public Participation Under the Aarhus Convention’ (2003) 66(1) Modern Law Review 80; R Bell, ‘Fostering a Culture of Environmental Compliance through Greater Public Involvement’ (2002) 44(8) Environment 33. 111  Agenda 21, ch 30:8. See also UNGA Special Session, ‘Programme for the Further Implementation of Agenda 21’ (1 July 1997) para 108. This is reprinted in D Osborn, Earth Summit II: Outcomes and Analysis (Earthscan 1998) Appendix D. For the support of green consumerism and the preconditions for its success see U Hahnel, ‘The Power of Putting a Label On It’ (2015) 6 Frontiers in Psychology 1392; H Heesup, ‘Hotel Customers’ Environmentally Responsible Behavioral Intention’ (2015) 45 International Journal of Hospitality Management 22; P Sachdeva, ‘Green Consumerism: Moral Motivations’ (2015) 6 Current Opinion in Psychology 60; J Matthes, ‘The Sceptical Green Consumer’ (2014) 43(2) Journal of Advertising 115; G Gilles, ‘Helping Eco-​Labels to Fulfil Their Promises’ (2015) 10 Climate Policy 1752; P Chander, ‘Green Consumerism and Pollution Control’ (2015) 114 Journal of Economic Behaviour and Organisation 23; D Brecard, ‘Consumer Confusion over the Profusion of Ecolabels’ (2014) 37 Resource and Energy Economics 64; A Gutierrez, ‘Can Consumers Understand Sustainability Through Ecolabels’ (2014) 6 Sustainability 8195; M Mildenberger, ‘Beyond the Information Campaign’ (2013) 15(2) Environmental Practice 147; M Amstel, ‘Eco-​Labeling and Information Asymmetry’ (2008) 16 Journal of Cleaner Production 263; J Moisander, ‘Motivational Complexity of Green Consumerism’ (2007) 31(4) International Journal of Consumer Studies 404.

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to ensure that the label was attached to the correct fish. By the middle of 2017, over 18,000 seafood products, derived from 200 fisheries deemed sustainable, were available with the Marine Stewardship Council ecolabel. These were available in over 100 countries and sold by over 2,000 companies that met the chain of custody standard.112 A second good example of an internationally applicable ethical label is coffee. Here, the test for what is ethical is, most commonly, what is ‘fair’. Fairness in this area is determined by the fact that prices for the 9 million tons of this commodity produced in over sixty countries each year, accounting for the livelihood of around 125 million people, are very volatile. The quota system and associated treaties that existed for decades after the Second World War, which had guaranteed a price for producers collapsed at the end of the 1980s. Without quota settings, the market is much more fluid with prices rising and falling (up to 80%) within the space of a few years. Whilst the profits are rarely shared, the losses are, and these fall upon the producers who typically only obtain around 10 per cent of the final price. When times are bad, the price is often below the cost of living and production. Conversely, for the 750,000 producers of ‘fair trade’ coffee, if these producers meet certain criteria in terms of social organization, such as democratic cooperatives, the price paid for their coffee will not fall below a set minimum price. If coffee prices rise, they get more than this, but if they fall, they do not get less. This safety net of a price guarantee allows them to meet basic health and education needs. Knowing this information, if the consumer believes it, then they are often willing to pay a small premium for their preferred product.113

20. Conclusion The 1990s saw an overall progress in terms of human longevity in most, but not all, areas. The 1980s debt problems for the developing world transformed into a

112 M Perez, ‘The Marine Stewardship Council Certification in Latin America:  A Review of Experiences’ (2015) 11 Fisheries Research 100; P Oosterveer, ‘Vertically Differentiating Environmental Standards:  The Case of the Marine Stewardship Council’ (2015) 7(2) Sustainability 1861; L Bellchambers, ‘Addressing Environmental Certifications for Marine Stewardship Council Certification’ (2014) 50 Marine Policy 249; L Nikoloyuk, ‘A Review of Formal Objections to Marine Stewardship Council Fisheries Certifications’ (2013) 161 Biological Conservation 10; P Foley, ‘The Political Economy of Marine Stewardship Council Certification’ (2012) 12(2) Journal of Agrarian Change 436; Anon, ‘Doubts Cast on Fish Provenance’ (2011) New Scientist 5; P Moye, ‘Private Certification Versus Public Certification: The Marine Stewardship Council’ (2010) 43(2) Vanderbilt Journal of Transnational Law 533; L Gulbrandsen, ‘The Emergence and Effectiveness of the Marine Stewardship Council’ (2009) 33(4) Marine Policy 654; A Cummins, ‘The Marine Stewardship Council: A Multi-​stakeholder Approach to Sustainable Fishing’ (2004) 11(2) Corporate Social Responsibility and Environmental Management 85. 113  E Smith, ‘We Know Our Worth: Lessons from a Fair Trade Cooperative’ (2012) 71(1) Human Organisation 87; J Valkila, ‘Impacts of Fair Trade on Coffee Farmers, Cooperative and Laborers’ (2010) 27(3) Agriculture and Human Values 321; D Blasio, ‘Coffee as a Medium for Ethical, Social and Political Messages’ (2007) 72(1) Journal of Business Ethics 100; C Bacon, ‘Confronting the Coffee Crisis: Fair Trade, Organic and Specialty Coffees’ (2005) 33(3) World Development 123.

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new type of difficulty for many countries in economic transition during the 1990s. Of the former, the international community finally began to create a comprehensive approach to the problem, while of the latter, global society was perplexed as to how to deal with investors who entered and fled from countries with rapid speed. Uncertainty was also how the international community felt with the repeated demands from the developing world for increased assistance, with the amount of aid available actually falling in that decade. This falling in aid overlapped with the first ever international consensus that corruption was a problem that had to be addressed. The only area in which international assistance grew was that related to international environmental problems, although even there, prolonged debates about the control and direction of the money persisted. Where there was a much more unified international direction in the 1990s was with transnational corporations. In this decade, any discussion of having binding international laws on these entities fell off the table. Henceforth, all of the discussion was about voluntary initiatives and responsible corporate citizenship. The other area where there was a relatively harmonious group of voices concerned free trade. The starting example was the NAFTA, with its broad promises of more work and improved environmental and social standards for all the members. Following suit, the signatories to the new World Trade Organization also hoped that their new agreements would happily conclude the economic path towards sustainable development. However, unlike the (weak) NAFTA policies on the environment and labour, there were no corresponding considerations in the WTO. Although the jurisprudence currently appears to be more favourable on environmental matters than it was in the 1990s, the margins of uncertainty in this area are exceptionally large. Where there was not, uncertainty has been the free trade assisted movement of industry to countries with lower environmental and/​or labour standards, when coupled with other reasons (such as tax) to move. The questions, also, of whether free trade creates more jobs in the developed world when dealing with the developing work, at least in the case of the United States, proved more difficult to answer, especially as the nature of work, in itself, also changed. In terms of the environmental side of the equation, the 1990s saw the bedding down of the idea of ‘sustainable development’ to such an extent that even the most important financial arms of the Bretton Woods institutions started to realign some of their portfolios. The other positive development that occurred was that as human numbers went from 5 to 6 billion, population growth was finally recognized as a serious concern. Although this thinking expanded to include the issue of over-​consumption and population growth, the real progress was in accepting that reproductive health was a legitimate international concern, to which voluntary choice in family planning should be assisted and the first targets on (universal) access to contraception accepted.

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Progress was made in terms of the habitat protection of the Antarctic in the early 1990s and from the middle of the decade on desertification, although with the latter the efforts almost collapsed by the turn of the century. An overall, and continuing, failure on habitat conservation was with forests, despite the creation of further principles and agreements recognising the importance of these habitats. With biodiversity, the most significant development was the creation of a new convention, which promised to take a holistic look at the issues surrounding this topic, although how much success this achieved in the 1990s was debatable, as the new regime was still finding its way and the thesis of the Sixth Extinction came into view. Conversely, with fisheries, new codes of conduct, coupled with a wise new international regime on shared stocks, promised great advances. This was particularly needed at this point, as some high profile fisheries stocks crashed, while analysis showed that much of what was being taken from the seas was bycatch, and not necessarily the correctly targeted fish. In terms of energy provision, the 1990s saw solar and wind continue to grow from small beginnings, and a strong burst of support for energy efficiency, conversely nuclear energy, despite a growing body of supporting treaties and principles, fell from public favour as problems such as nuclear waste became much more apparent. This meant that fossil fuel-​based energy sources continued to dominate the 1990s. With regard to the impacts of these in terms of air pollution the 1990s were notable for two reasons. First, the developed world finally managed to turn its back on traditional, sulphur-​based forms of air pollution, but despite this success found itself now having to deal with more transport-​ based air pollution. Secondly, the developing world was now fully replicating the patterns of the developed world from decades earlier in terms of stationary sulphur-​based air pollution, in addition to transport-​based air pollution, as well as poor air standards for everything from the burning of foliage through to the incineration of waste. With regard to climate change, the clear success in the 1990s was the formation of a universal convention to confront this problem, with obligations falling upon the developed world in 1992 and again in 1997. The problem was that by the end of the century it was clear that not only were the attempts of the developed world to restrict their emissions failing, but they were about to be eclipsed by the rapidly rising emissions from the developing world. Strong, clear, and very positive rules emerged on fresh water conservation and its sustainable use from both treaties and the rulings of the ICJ during the 1990s. Similarly, ocean pollution in terms of accidents involving oil tankers and the intentional dumping of waste into the seas also made good progress in this decade. Despite a bad sequence of accidents, the international community rose to the challenge in creating a suite of new measures that sought improvements in everything from shipping design, through to shipping routes. Moreover, the strong presumption was now against any dumping of waste into the ocean.

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Where the success stopped was in the realization that a new type of ocean pollution, that of plastic, was beginning to appear, to which there was no obvious international answer as most of the waste comes from land, rather than ocean-​ based sources. Finally, the importance of public participation, access to information for citizens, and the power of citizens as agents of change—​not just in political settings, but also in economic settings—​as green consumers, became strong during the 1990s. Engagement by citizens at all levels of sustainable development was now the accepted ethos.

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8 The Twenty-​first Century The Economic and Social Context

1. Introduction The economic and social challenges of the twenty-​first century in the quest for sustainable development are multiple. On the positive side of the ledger, good progress has been achieved in setting clear targets and the results that eventually came with them. In some areas, such as with human longevity, poverty reduction, overseas development assistance, and the fight against corruption, the international community has advanced in making positive contributions to these corners of sustainable development. In other areas, the progress is uncertain. Some tools, such as free trade, have reached unprecedented heights in creating economic growth. Ensuring that this is always a tool for good, by reconciling the problems of damaging subsidies and lack of universal labour standards, for example, is necessary. An equally big challenge for free trade is ensuring that the distributions of benefits are more equitable than at present. This need for confronting inequality, unlike in the twentieth century, is likely to be one of the emerging trends of sustainable development in the twenty-​ first century. The challenge will also be in accepting that although voluntary measures, ranging from those for ethical consumers, through to those for responsible corporations, are commendable and can produce good results in some instances, there are limits to how far voluntary approaches may go.

2.  Human Progress Going by the best available measure, the material living standards for the human species in the twenty-​first century are twenty times better than they were in the year 1500. Over the same period, the world economy has grown 120-​fold. This growth has brought spectacular results, especially since the Industrial Revolution. On the economic front, the average worker is doing considerably better than their ancestors in terms of both money and longevity. Average income for individuals has grown, per capita, nine-​fold since 1800. Life expectancy, which was about 30 years for most of history, only really changed with the Industrial Revolution and the Enlightenment,

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as countries grew economically, and health improved in accordance with positives changes in sustenance, science, medicine, technology, and pollution control. As of 2015, the global average is 71.4 years. People are now living six years longer than they did twenty-​five years ago when the average was 65.3 (in 1990). Included in this mix are the United States at 79 years, China at 76, and Russia (after bouncing back from the 1990s decline) at 70 years. In addition, despite a few countries suffering declines owing to calamities such as war and/​or diseases such as HIV/​AIDs, overall, life expectancy at birth has increased significantly in the least developed countries (LDCs) going from 56 years in 2005 to 62 years in 2015.1

3.  Goals for the Millennium and Sustainable Development The Millennium Development Goals (MDGs) were established as a response to many of the global challenges as they evolved in the last decades of the twentieth century. These challenges crystallized at a time when much of the ideological challenge of the previous decades had rescinded, and the time to revitalize the sustainable development paradigm was ripe. Under the close supervision of the then Secretary General, Kofi Annan, who cherry-​picked targets around which progress was already beginning to show, eight goals of high symbolic value were adopted and deadlines of 2015 were set. The MDGs then went on to receive full support from the international community, with strong affirmations in the environmental field with the 2002 World Summit on Sustainable Development, and at the 2012 Rio+20 Summit.2 As the deadline for the MDGs (2015) drew to a close, the international community, realizing that significant amounts of work was still required to be done, created the follow-​on targets with the Sustainable Development Goals (SDGs). The SDGs were much larger and more comprehensive than the MDGs, with the SDGs expanded to cover 17 goals and 169 associated targets. The finish line for the SDGs is 2030.3 1  S Waziri, ‘Effect of the Prevalence of HIV/​AIDS and the Life Expectancy Rate’ (2016) 8(4) Global Journal of Health Science : 212–​20; C Hansen, ‘The Rise in Life Expectancy and Economic Growth’ (2015) 125(584) Economic Journal 838; L Kunze, ‘Life Expectancy and Economic Growth’ (2014) 39 Journal of Macroeconomics 54; X Pautrel, ‘Pollution and Life Expectancy’ (2009) 68(4) Ecological Economics 1040; G Clark, ‘The Conditions of the Working Class in England, 1209–​2004’ (2005) 113(6) Journal of Political Economy 1307; E Neumayer, ‘HIV/​AIDS and Cross-​National Convergence in Life Expectancy’ (2004) 30(4) Population and Development Review 727; J McNeill, An Environmental History of the Twentieth Century World (Norton 2001) 6–​7, 15, 181. 2  The goals are reprinted in UNDP, Human Development Report 2001 (Oxford University Press 2001) 21–​24; J McArthur, ‘The Origins of the Millennium Development Goals’ (2014) SAIS Review 5. For the WSSD of 2002 see the Plan of Implementation, paras 7, 9(10), 99, and 120. Of the Johannesburg Declaration, note paras 1 and 12. For The Future We Want from Rio+20 see paras 19, 45, 245, 246, 248. See also F Sakkio, ‘International Norm Dynamics and Understanding the Millennium Development Goals’ (2011) 17(1) Global Governance 17; M Pedercini, ‘Dynamic Analysis of Interventions Designed to Achieve the Millennium Development Goals’ (2010) 44(2) Socio-​Economic Planning Science 200. 3 UNGA, Transforming Our World: the 2030 Agenda for Sustainable Development Doc A/​RES/​70/​1 (21 October 2015) para 59. See also UNDP, The Sustainable Development Goals (UNDP 2016 ) 1–​33; M Lomazzi, ‘The Millennium Development Goals: Experiences, Achievement and What’s Next’ (2015) 7 Global Health Action 23695; P Chasek, ‘Getting to 2030: Negotiating the Post 2015 Sustainable Development Agenda’ (2016) 25(1) RECIEL 514; R Kim, ‘The Nexus Between International Law

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Of the eight MDGs, only one (goal 7), directly related to the environment,4 although four others (on poverty; and the reduction of hunger; improving maternal health/​access to contraception; development aid and debt) strongly overlap with the topics in this book. The other MDG goals, which are also all critical to development (but not central to this book) included seeking to achieve universal primary education; promoting gender equality; reducing under-​five mortality by two-thirds, and combating HIV/​AIDS. Of all of these latter goals, between the years 2000 and 2015, impressive progress was made,5 and the intention is that further progress on and the Sustainable Development Goals’ (2016) 25(1) RECIEL 15; L Clegg, ‘Benchmarking and Blame Games:  Exploring the Contestation of the Millennium Development Goals’ (2015) 41(5) Review of International Studies 947; P Kesavan, ‘From Millennium Development Goals to Sustainable Development Solutions’ (2014) 106(7) Current Science 495; D Griggs and others, ‘Sustainable Development Goals for People and Planet’ (2013) 495 Nature 305. 4  Goal 7 had five sub-​targets. These were to reverse the loss of environmental resources; to reduce biodiversity loss, achieving, by 2010, a significant reduction in the rate of loss; to halve, by 2015, the proportion of the population without sustainable access to safe drinking water and basic sanitation; to achieve, by 2020, a significant improvement in the lives of at least 100 million slum dwellers; and to breaking the silence on open defecation. 5  Of goal 2 to achieve universal primary education by 2015, with girls and boys alike, being able to complete a full course of primary schooling. Here, although 57 million children remain outside of primary school (and conflict zones being particular failures), enrolment in developing regions, and corresponding rises in literacy, reached 91% in 2015, up from 83% in 2000 were achieved. Of Goal 3 to promote gender equality and empowerment of women, with a view to gender disparity in primary and secondary education by 2015, progress was achieved in the developing world as a whole by making the deadline. Moreover, although significant gaps exist in terms of poverty, wages, participation in the workforce (about 50% of working age women, compared to 75% for men) as well as participation of public decision-​making, progress was achieved with the proportion of women in parliament (which doubled) and working outside of agriculture (which for women went up to 41% in 2015, up from 35% in 2000). Goal 4 to reduce by two-​thirds the under-​5 mortality rate between 1990 and 2015, was close to being achieved. Specifically, between 1990 and 2015, the global under-​5 mortality rate declined, despite population growth, by more than half (from 90 to 43 deaths per 1,000 live births), but not quite two-​thirds. In the same period, the number of deaths in children under-​5 worldwide declined from 12.7 million in 1990 to almost 6 million in 2015. Nonetheless, 16,000 children under 5 continue to die every day, mostly from preventable causes. In all instances, risks were higher for the uneducated and those in rural communities. Goal 5 of the MDGs aimed, by 2015, to improve maternal health by achieving universal access to reproductive health and reduce, by three-​quarters, the maternal mortality ratio. With regard to the first part, after years of slow progress, only half of pregnant women received the recommended amount of antenatal care. Better progress has been with maternal mortality, of which the ratio has been cut nearly in half since 1990. Overlapping this has been births assisted by skilled health personnel going from 59% in 1990 to 71% in 2014. Goal 6 of the MDGs sought to combat HIV/​AIDS, seeking to halt and reverse this disease. This goal was not fully met. By the end of 2015, an estimated 0.8% of all adults aged between 15 and 49, some 35 million people, were living with this disease. The good news is that new HIV infections fell by approximately 40% between 2000 and 2013, and the places of concentration are narrowing down, with 75% of the infections occurring in only 15 countries. Moreover, 13.6 million of these people (with over 12 million in the developing world) are now receiving anti-​retroviral therapy (up from 800,000 in 2003). In each case, the chances of lifespan being extended increases, delaying millions of deaths that would otherwise occur much earlier. Other progress to halt and reverse the incidence of malaria and other major diseases, has seen a 58% decline in malaria mortality, with millions of deaths avoided, often through simple tools such as 900 million insecticide treated bed nets delivered over 15 years in malaria zones. Supplementary measures, such as cooperation with pharmaceutical companies to provide affordable essential drugs in developing countries has resulted in, on average, 58% of public health facilities in these areas having access to generic medicines. Measles vaccination helped prevent nearly 15.6 million deaths between 2000 and 2015, with the reported cases of measles falling by 67% over the period. This steep decline overlaps strongly with

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all of the MDG results will be achieved with the new SDGs targets.6 Although the SDGs contained four new goals that have no direct precedents in the MDGs,7 the most significant difference is the SDGs are more environmental in focus, as evidenced by the adoption of six much more explicit goals in this area.8

4. Poverty Goal 1 of the MDGs was to eradicate extreme poverty and hunger. The targets for this goal were to halve, between 1990 and 2015, the proportion of people whose income was less than US$1.25 per day. The Sustainable Development Goals then went further, seeking to end extreme poverty by 2030. The international community believes aiming for the end to all extreme poverty is a fair target because in the period set for the MDGs, remarkable progress was achieved. Specifically, although 836 million were still living in extreme poverty in 2015, more than 1 billion people were lifted out of this trap (there were 1.9 in absolute poverty in 1990). This meant that, although about 9 per cent of all humans on Earth continue to exist in extreme poverty, the proportion of people in the developing world living in this despair, despite rapid population growth, fell from nearly 50 per cent in 1990 to 14 per cent in 2015. In addition, within the slums, between 2000 and 2015, more than 320 million people gained access to improved water sources, improved sanitation and/​or less crowded housing. This achievement was in accordance with one of the sub-​targets, to achieve a significant improvement in the lives of at least 100 million slum dwellers.9 about 84% of all children worldwide receiving at least one dose of measles containing vaccine in 2015. See United Nations, The Millennium Development Goals (UN 2016) 24–​47. 6  The MDG goals on gender equity were expanded upon in the SDGs seeking, by 2030, to achieve gender equality and empower for all women and to ensure that all girls and boys complete free, equitable and quality primary and secondary education leading to relevant and effective learning outcomes, as well as quality pre-​primary education, re goals 4 and 5. SDG goal 3 is, by 2030, inter alia to reduce the global maternal mortality ratio to less than 70 per 100,000 live births; end preventable deaths of new-​borns and children under 5 years of age, with all countries aiming to reduce neonatal mortality to at least as low as 12 per 1,000 live births and under-​5 mortality to at least as low as 25 per 1,000 live births. SDG 3 also aims to end the epidemics of AIDS, tuberculosis, malaria and neglected tropical diseases and combat hepatitis, water-​borne diseases and other communicable diseases; and reduce by one-​third premature mortality from non-​communicable diseases. 7  For example, Goal 9, to build resilient infrastructure, promote inclusive and sustainable industrialization and foster innovation; Goal 10, to reduce inequality within and among countries; Goal 11, to make cities and human settlements inclusive, safe, resilient and sustainable; and Goal 16, to promote peaceful and inclusive societies for sustainable development. 8  The six, primary, environmental goals are numbers 6, 7, 12, 13, 14, and 15. See also C Martinez, ‘The SDGs: Opportunities for Conservation’ (2016) 45(6) Environmental Policy and the Law 239; A Khan, ‘Environment, Sustainability and the Millennium Development Goals’ (2014) 3(4) International Journal of Trade & Global Business Perspectives 1439. 9  The SDG goal was supplemented by goals of, inter alia, halving poverty levels in all countries, according to national definitions; poverty eradication schemes; implementing nationally appropriate social protection schemes for such people; equal access to economic resources; and directing aid to these people. United Nations, The Millennium Development Goals Report (UN 2016) 3–​4, 15–​20.

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The problem with the progress is twofold. First, getting people out of absolute poverty is the relatively easy part as the threshold is so low. Getting them out of general poverty (above $3.10 per day) is much harder. This is especially so as the threshold for what was considered absolute poverty in the twentieth century ($1.25) has risen in the twenty-​first century (to 1.90), and so too, has the threshold for what is considered relative (as opposed to absolute) poverty.10 The gap between $1.90 and $3.10 is much larger than it appears. Secondly, the majority of this achievement so far is primarily attributable to the improvements occurring in both China and India. Of the former, China pulled 680 million people out of misery between 1981–​2010, and reduced its extreme-​poverty rate from 84 per cent in 1980 to 10 per cent in 2015 (but still with at least 25 million extreme poor). India also made significant progress, reducing its absolute poverty from 48 per cent to 22 per cent, and underweight children from 52 per cent to 33 per cent (but still with at least 268 million extreme poor).11 In other regions, poverty declines have not been as dramatic. For example, with the LDCs, although their levels of absolute poverty have fallen from 65 per cent of the population in 1990 to 45 per cent in 2010, which is an improvement, the progress is far from the MDG target. Similarly, within Africa, although poverty is falling, the progress has been slow (from 54% in 1990 to 41% in 2013, albeit still an impressive progress given its population expansion), with a real risk of reversals from shocks. Moreover, poverty in six out of the thirty countries counted in Africa actually increased. Disease, war, and/​or natural calamity threatens many of these countries in Africa, and also much of the Middle East.12

10  V Lang, ‘Defining and Measuring Poverty and Inequality Post 2015’ (2015) 27(3) Journal of International Development 399. 11 UNDP, Report on China’s Implementation of the Millennium Development Goals, 2000–​2015 (UNDP 2015) 1–​3, 16–​30; UNDP, India and the MDGs (UNEP 2015) 3–​4; UNDP, China’s Progress Towards the Millennium Development Goals (UNDP 2014) 3–​7; I Permanyer, ‘The Measurement of Success in Achieving the Millennium Development Goals’ (2013) 11(3) Journal of Economic Inequality 344; N Poku, ‘The Millennium Development Goals and Development After 2015’ (2011) 32(1) Third World Quarterly. 303; Anon, ‘Global Goals Shaky’ (2010) New Scientist 7; J Omona, ‘Meeting the Millennium Development Goals’ (2010) 25(1) Journal of Social Development in Africa 298. 12 Anon, ‘Fewer, But Still With Us’ Economist (1 April 2017) 48–​49; J Hickel, ‘The True Extent of Global Poverty and Hunger: Questioning the Good New Narrative of the Millennium Development Goals’ (2016) 37 Third World Quarterly 1; UNCTAD, State of the Least Developed Countries: Transforming Rural Economies (UN 2015) 3–​6; UNDP, Assessing Progress in Africa Toward the Millennium Development Goals (UNDP 2015) 3–​5; UNDP, The Arab Millennium Development Goals Report (UNDP) 5; J Sachs, The End of Poverty (Penguin 2015) 22–​24; UNCTAD, The Least Developed Countries Report (UNCTAD 2014) 14–​19; H Known) ‘Poverty Reduction and Good Governance: Examining the Rationale of the Millennium Development Goals’ (2014) 45(2) Development and Change 117; W Easterly, ‘How the Millennium Development Goals Are Unfair to Africa’ (2009) 37(1) World Development 311; D Fanelli, ‘The Lost Millions’ (2007) New Scientist 14; A Saith, ‘From Universal Values to the Millennium Development Goals: Lost in Translation’ (2006) 37(6) Development and Change 98; A Samir, ‘The Millennium Development Goals: A Critique from the South’ (2006) 57 Monthly Review 1.

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5. Inequality One area where the MDGs were different to the SDGs, was that the latter included a goal to reduce inequality within and among countries. The sub-​target of goal 10.1 is, by 2030, progressively to achieve and sustain income growth of the bottom 40 per cent of the population at a rate higher than the national average. The context to this goal is that, for the past thirty years or so, income inequality has been on the rise across the globe. Whilst sharp income inequality has been a long-​entrenched rule in many developing countries, it has increased in former communist countries, particularly in Russia (the richest 10% currently control 85% of national wealth), as well as in ‘emerging’ economies such as India and China. All of these countries are following the pattern of the last three decades for OECD countries, where income inequality has risen, reaching in some cases historical highs. That is, in the 1980s, the richest 10 per cent of the population in the developed world earned seven times more than the poorest 10 per cent. By 2016 they earn almost ten times more.13 The gap between the rich and the poor, widened by dramatic changes in technology, regulation, and globalization, is driven at two ends. At one end of the scale, those who own or are involved in the new technologies and emerging markets are doing very well. At the other end, those who are being replaced by technologies ​or emerging markets are not. Although all have continued to increase their incomes over the previous decades, the richest 10 per cent are growing much faster than the poorest 10 per cent and this gap between them appears to be accelerating. Thus, in the United States 58 per cent of all new income since the Wall Street crash of 2008 has gone to the top 1 per cent. This increase builds on the fact that in the same land, average pre-​tax income rose by 1 per cent a year between the mid-​1970s and 2008. But when the growth that went to the top 1 per cent of earners is excluded, the annual growth rate for the remaining 99 per cent was just 0.6 per cent. Such increases are often insufficient to keep pace with increased costs of living. In many instances, when averaged out, low income workers are now earning less than they were four decades earlier.14 Aside from the ethics and politics of a situation where the top one-​tenth of 1 per cent owns almost as much wealth as the bottom 90 per cent, the practical considerations are also critical. Namely, if the goal is to reduce poverty and increase economic growth (as well as social cohesion), there is a need to ensure that the benefits of growth are not overtly captured by the wealthy. A typical estimate from these cross-​country studies is that a 10 per cent increase in a country’s average income will reduce the poverty rate by between 20 and 30 per cent, but this very much depends on where the increase is being captured. That is, if the income share of the 13  W Scheidel, The Great Leveller: Violence and the History of Inequality (Princeton University Press 2017) 222–​25. 14 OECD, In It Together: Why Less Inequality Benefits All (OECD 2015) 5–​25; OECD, Divided We Stand: Why Inequality Keeps Rising (OECD 2011) 1–​10.

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top 20 per cent (the rich) increases, then gross domestic product (GDP) growth actually declines over the medium term, suggesting that the benefits do not trickle down and, even worse, negative social impact in terms of crime and health may occur. In contrast, an increase in the income share of the bottom 20 per cent (the poor) increases, higher GDP growth occurs. Supplementary welfare policies on education, labour, health care, and well-​targeted social policies (all which need to be assisted by better tax and transfer systems) can accelerate this equation of equality within a society.15

6.  Growth The desire for more economic growth is paramount in the twenty-​first century. This goal was partly evident in the MDGs with regard to the employment rates (which had a mixed result over the period). The importance of economic growth (‘sustained, inclusive and equitable’) for the world economy, was then recognized in the 2002 Plan of Implementation, and the 2012 document The Future We Want. The objective was then expanded in Sustainable Development Goal 8, to ‘promote sustained, inclusive and sustainable economic growth, full and productive employment and decent work for all’. This then breaks down to a series of smaller goals, such as achieving higher levels of economic productivity and at least 7 per cent gross GDP growth, per annum, in the LDCs.16

7.  Trade (a). Support One of the foremost methods to achieve economic growth is through more trade. The share of international trade in world GDP rose from just over 5 per cent in 1950 to nearly 30 per cent in 2016. Between 1995 and 2016, the trade in world merchandise went from US$5.1 trillion to US$16 trillion; and trade in commercial services from US$1.7 trillion to US$4.8 billion. Even the LDCs managed to expand in this time, with their share in world merchandise exports nearly doubling, from 0.6 per

15  E Dabla-​Norris, Causes and Consequences of Income Inequality: A Global Perspective (IMF 2015) 3–​9; Anon, ‘Towards the End of Poverty’ Economist (13 June 2013) 26; D Rodrik, One Economics, Many Recipes: Globalization, Institutions and Economic Growth (Harvard University Press 2007) 7–​21; R Adams, Economic Growth, Inequality and Poverty: Findings from a New Data Set (Policy Research Working Paper 2972, World Bank 2002). 16  Goal 8(1) and (2) of the SDGs. Of the MDG period, over the 15-​year period, while the class above poverty in the developing world (pinned at more than US$4 per day) tripled, going from 18% of the population in the developing world in 1990 to 50%; youth unemployment went from four out of ten unemployed to five out of ten. For the 2002 Plan of Implementation see paras 47, 62, 83, and 89. For The Future We Want, paras 6, 10, 11, 52, and 56.

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cent in 2000 to 1.1 per cent in 2014. Their share of services also went up to 0.8 per cent of the global total (up from 0.5% in 2005).17 The support for more free trade began with the new century with the United Nations MDGs, which called for ‘an open, rule-​based, predictable, non-​discriminatory trading and financial system’ which also addressed the special needs of the LDCs. Following in 2001, the ninth round of trade talks post the Second World War—​the Doha round—​was launched. Broadly, the goal of the Doha round is to help developing countries join the global marketplace and boost their economies as a result. Within this goal, four areas strongly overlap with the debate about sustainable development. These are stronger support via special and differential treatment for developing countries (and the LDCs in particular); agricultural liberalization (and the reduction of distortions in agricultural trade caused by high tariffs and other barriers, export subsidies and some kinds of domestic support); free trade and the environment (with a more open market for environmental goods and services; better cooperation between the WTO and multilateral environmental agreements, and more coherence between trade and environment rules); and the relationship between trade related intellectual property rights and requirements for the disclosure about the origin of genetic material, traditional knowledge and access and benefit sharing arrangements under the Convention on Biological Diversity.18 The following year, in 2002, the World Summit on Sustainable Development advocated for all countries to ‘continue to enhance the mutual supportiveness of trade, environment and development with a view to achieving sustainable development through actions at all levels’.19 Ten years later, as the Doha round continued to grind on (after nearly collapsing in 2008) in the year 2012 at the Rio+20 Earth Summit, the nations assembled reaffirmed: [t]‌hat international trade is an engine for development and sustained economic growth, and also reaffirm the critical role that a universal, rules-​based, open, non-​discriminatory and equitable multilateral trading system, as well as meaningful trade liberalization, can play in stimulating economic growth and development worldwide, thereby benefiting all countries at all stages of development, as they advance towards sustainable development.20

The support for concluding the Doha Round rekindled at the end of 2013 following conclusion of the Bali Package (on agricultural liberalization to the benefit of developing countries), which was the first agreement to emerge from under the auspice of the Doha Round. When the new Sustainable Development Goals were released in 2015, target 17, called for the promotion of a ‘universal, rules-​based, open, non-​ discriminatory and equitable multilateral trading system under the World Trade 17 The Millennium Development Goals are target 8(a) and 8(b) The figures are from WTO, International Trade Statistics (WTO 2017) 20–​25; UN, Report of the Secretary General: Progress Towards the Sustainable Development Goals (UN 2016. E/​2016/​75) 13–​14. 18  The Doha Declaration can be found in (2002) 41 ILM 746. See also J Scott, ‘The Poverty of the Doha Round and the Least Developed Countries’ (2011) 32(4) Third World Quarterly 611; J Patnaik, ‘The Doha Round of World Trade Negotiations’ (2007) 68(3) Indian Journal of Political Science 547; F Joseph, ‘Trade Liberalisation in the Doha Development Round’ (2005) 20(42) Economic Policy 349. 19  See para 97 of the Plan of Implementation. See also paras 84 and 86. 20  The Future We Want para 281.

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Organization, including through the conclusion of negotiations under its Doha Development Agenda’. Subsidiary goals include significantly increasing the exports of developing countries, in particular with a view to doubling the LDCs’ share of global exports by 2020, and realizing timely implementation of duty-​free and quota-​ free market access on a lasting basis for all LDCs, consistent with WTO decisions.21

(b). The environmental challenge Although some progress was made in ensuring that the WTO was not the complete antithesis of environmental goals in the 1990s, in the new century, significant questions that go to the heart of sustainability remained unanswered. The first question that needs to be clearly answered is whether, as part of multilateral objectives, a country can create targets that may end up discriminating between products ​or processes (including those that are imported from foreign countries) to achieve that target. The short answer, in theory, is that this appears to be possible. Thus, a country could set its own national targets for energy efficiency, and renewable technologies but this target must not discriminate between local and foreign providers seeking to satisfy that target. Despite this tentative conclusion, the need for the WTO to provide certainty in this area, and in the way it may spill-​over (such as if subsidized renewable technologies are then sold in another country without the same targets) needs to be clarified.22 The second question that needs to be clarified relates to existing multilateral environmental agreements which involve restrictions of trade (say, with ozone depleting chemicals) and whether the restriction in trade in those products trump free trade rules, or, vice versa. Whilst this is not a problem when all countries are a party to the same agreement, when a country is a non-​party to the environmental agreement and finds itself discriminated against, the matter may become very complicated. This is most likely to become a significant issue in the area of climate change. Here, the issue is unclear as, although the 1992 Framework Agreement, the Kyoto Protocol, and the subsequent Paris Agreement did not acknowledge the possibility of trade policies to achieve their goals (apart from, originally, casting a jaundiced eye towards unilateral actions), how this will evolve in the future is uncertain as nations may decide to utilize trade measures to encourage energy 21  Goal 17.10. See also goals 17.11 and 17.12. 22  This paragraph is related to a number of cases before the WTO. The first is the India—​Certain Measures Relating to Solar Cells and Solar Modules DS456. This on ongoing at the time of writing. See also the Canada—​Renewable Energy/​Feed in Tariff Program DS412, 426 (adopted 24 May 2013); S Charnovitz, ‘Canada—​Renewable Energy: Implications for WTO Law on Green and Not-​So Green Subsidies’ (2015) 14(2) World Trade Review 177; M D’orsi, ‘Heated Skirmishes in the Solar Sector: Are Solar PV Tariffs Prohibited Under the WTO Regime’ (2014) 29(3) American University International Law Review 674; K Kulovesi, ‘International Trade Disputes on Renewable Energy’ (2014) 23(3) Review of European Community and International Environmental Law 342; A Cosbey, ‘A Turquoise Mess: Green Subsidies, Blue Industrial Policy and Renewable Energy’ (2014) 17 Journal of International Economic Law.125; L Rubini, ‘What Does the Recent WTO Litigation on Renewable Energy Subsidies Tell Us?’ (2014) 48 Journal of World Trade 895; L Henschke, ‘Going It Alone on Climate Change: A New Challenge to WTO Subsidies Disciplines’ (2012) 11(1) World Trade Review 27.

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efficiency, development of low emission technologies, or alternative, clean, and renewable energy sources. This uncertainty is doubly compounded by the fact that developed and developing countries are meant to have common but differentiated responsibilities in confronting climate change.23 A third significant question that must be answered by the WTO is how to deal with environmentally damaging subsidies. For example, energy subsidies were estimated at US$5.3 trillion in 2015, or 6.5 per cent of global GDP. Most of this arises from countries setting energy taxes below levels that fully reflect the environmental damage associated with energy consumption, with producers of pollution in some countries paying less than 10 per cent of its real economic value. If these subsidies were removed, it is projected carbon emissions will fall by 13 per cent, in addition to large falls in the amounts of local air pollutants. Although these subsidies may have a social function (which should be addressed in other ways), they are, as the international community agreed at the Earth Summits in 2002 and 2012, and then in the Sustainable Development Goals in 2015, undermining sustainable development. However, at the moment, there is uncertainty at the WTO over whether countries could use trade measures to discriminate against countries which are using such subsidies. A variation on this theme is that if carbon could be given a price, countries that did not take this price into account in the products they traded could find tariffs placed against them. Although this was not part of the thinking with the Paris Agreement, following the decision of President Trump to quit the agreement, many have begun refloating the idea. In both instances, if trade could be used against products that were produced with energy subsidies o​ r failed to take into account a price for carbon, large steps towards confronting climate change would be achieved.24

23  For mention of this matter in the Framework Agreement on Climate Change see art 3(5); and art 2(3) of the Kyoto Protocol. The Paris Agreement is silent on this matter. For general comment see C McAusland,) ‘The WTO Consistency of Carbon Footprint Taxes’ (2015) 45 Georgetown Journal of International Law 765; B Henok,) ‘Energy Subsidies and WTO Dispute Settlement’ (2015) 18(2) Journal of International Economic Law 261; P Burgette, ‘Renewable Energy Subsidies and the WTO’ (2015) 51 Energy Economics 261; H Horn, ‘Multilateral Environmental Agreements in the WTO: Silence Speaks Volumes’ (2014) 10(1) International Journal of Economic Theory 147; J Kloeckner, ‘The Power of Eco-​Labels: Communicating Climate Change Using Carbon Footprint Labels Consistent with International Trade Regimes Under the WTO’ (2012) 3 Climate Law 209; L Henscheke, ‘Going it Alone on Climate Change: A New Challenge to WTO Subsidies Disciplines: Are Subsidies in Support of Emissions Reductions Schemes Permissible?’ (2012) 11(1) World Trade Review 27; P Low, ‘Managing Cooperation on Climate Change: What Can We Learn from the WTO?’ (2010) 19(1) The International Journal of International Trade and Economic Development 135; T Epps, Reconciling Trade and Climate (Edward Elgar Publishing 2010); Z Zhang, ‘Multilateral Trade Measures in a Post 2012 Climate Change Regime’ (2009) 37 Energy Policy 5105; R Eckersley, ‘The Big Chill: The WTO and Multilateral Environmental Agreements’ (2004) 4(2) Global Environmental Politics 25. 24  Target 12.c of the SDG Goal 12 calls for the rationalization of ‘inefficient fossil fuel subsidies that encourage wasteful consumption by removing market distortions . . .’. For 2012 and the WSSD see the Plan of Implementation, para 19 (p). For 2012 and Rio+20 see para 225 of The Future We Want. See also M Le Page, ‘The Price of Emission’ (8 April 2017) New Scientist 22; IMF, Counting the Cost of Energy Subsidies (IMF 2015) 3–​5; Millennium Ecosystem Assessment, Ecosystems and Human Well Being: The Biodiversity Synthesis (World Resources Institute 2005) 12–​13.

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A similar debate surrounds the issue of fisheries subsidies. The global fishing fleet is estimated to be twice the size of what is needed to fish at a sustainable level. This overcapacity is attributable to the fact that many governments continue to pay subsidies to this industry. These subsidies may be direct, such as vessel buy-​back schemes, reduced prices in fuel, or indirect, such as tax incentives to encourage fishing. The total amount of subsidies is in the region of US$30 billion per annum (or perhaps 25% of global revenue in this sector). These subsidies have economic and ecological impacts. Economically, a country that subsidises the catch of fish produces a product that is often cheaper than a country which does not subsidize. Ecologically, subsidies reduce the costs of fishing, thus increasing profits for the industry and insulating fishers from economic signals of when it is unprofitable to keep fishing, thus exacerbating overexploitation. The need to confront these subsidies as a critical step to putting global fisheries on the path towards sustainability was accepted by the international community in 2002 at the World Summit on Sustainable Development, in 2005 at the Hong Kong WTO Ministerial Conference, the Rio+20 gathering in 2012, and the Sustainable Development Goals in 2015. While some modern agreements such as the proposed Trans Pacific Partnership have the parties pledge that none of them will use subsidies linked to unsustainable fisheries, other agreements, such as the WTO, are yet to reach that point. If it became possible to discriminate against the fish products of countries that were linked to unsustainable stocks and had been subsidized, a huge step towards sustainable global fisheries would be achieved.25 A fourth significant question that the WTO needs to answer, is whether it would be permissible to create incentives (as in, no or absolutely minimal tariffs) to further the trade and exchange of environmentally friendly technologies such as wind turbines, solar panels, air quality monitors, etc. Without having a clear entry for such positive goods, exporters of these environmentally beneficial technologies may find themselves unhelpfully slowed from entering foreign markets. For example, energy efficient lighting made offshore in India is subject to a tariff of 30 per cent and a non-​tariff barriers of 106 per cent. While this may be good for some of the protected producers of such technologies in India, it is slowing their country from making improvements in reducing their environmental footprint.26

25  For the SDGs see target 14. For 2012 and the WSSD, Plan of Implementation, para 91. b. For 2012 and Rio+20 see para 223 of The Future We Want. For the SDGs see goal 14.6. For the TPPA see art 20.16(5) Note, under certain conditions such subsidies may be permitted, but to do so, required detailed reports on the subsidies, the fish stocks, and the fleets involved. See generally N Jinji, ‘Fisheries Subsidies and Management in Open Economies’ (2012) 27 Marine Resource Economics 25; C Nacha, ‘Estimating the Impacts of Eliminating Fisheries Subsidies’ (2011) 70(10) Ecological Economics 1822; U Sumaila, ‘A Bottom-​Up Re-​Estimation of Global Fisheries Subsidies’ (2010) 12(3) Journal of Bioeconomics 201; M Till, ‘Towards Sustainable Fisheries Subsidies’ (2010) 34(6) Marine Policy. 1117; M Young, ‘Fragmentation or Interaction: The WTO, Fisheries Subsidies and International Law’ (2009) 8(4) World Trade Review 477; W Seung, ‘WTO Disciplines on Fisheries Subsidies: A Historic Step Towards Sustainability’ (2003) 6(4) Journal of International Economic Law 879. 26  World Bank, International Trade and Climate Change (World Bank 2008) 11–​15; Z Wysokinska, ‘Foreign Trade in Environmental Products:  The WTO Regulations’ (2005) 5(3) Global Economy Journal 5.

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The final area that the WTO needs to provide a positive answer for, is with support for voluntary, non-​discriminatory labels, as used to indicate sustainability on products, when they are exchanged between countries via transparent, non-​preferential and non-​misleading mechanisms. Support here is essential if the small section of the marketplace that ethical consumers can have success in is to flourish. Although verifiable market-​based initiatives for the creation and expansion of domestic and international markets for environmentally friendly goods and services, was iterated at the 2002 World Summit and the 2012 Earth Summit+20, and are probably defensible within international trade law and not a non-​tariff barrier, this is not a certainty. Again, and as with many of the points above, this is an area of uncertainty in international trade law that needs to be clarified.27

(c). The negative social impacts of trade domestically In the twenty-​first century it became clear that international trade was not always beneficial for all people, all of the time. Rather, and especially in the developed world, free trade could, in some circumstances, be detrimental to the working classes. The classic example of this is with China and the United States. In the year 2000, President Bill Clinton was bullish about a trade pact with China, which would allow that country to join the WTO (which it did in 2001). Clinton pointed out this deal would require China to cuts its average import tariffs from 24 per cent to 9 per cent, to abolish import quotas and licences, and to open up some industries to American investment. Clinton asserted ‘this is a hundred-​to-​nothing deal for America when it comes to the economic consequences’.28 Where Clinton was right was in how American exports to China grew at almost 200 per cent between 2005 and 2014, with agriculture, aerospace and cars leading the way. Where Clinton was wrong is that no-​one thought China would grow so fast. By 2015 it had captured one-​fifth of all manufacturing exports worldwide, compared with only 2 per cent in 1991. This capturing involved the relocation of manufacturing jobs. As with debate around NAFTA, trying to find agreed numbers is very difficult as the general market in jobs is fluid (about 5 million jobs come and go every month in America). Nonetheless, it appears that, overall, between 1999 and 2011 Americans lost almost 6 million manufacturing jobs in net terms. At least one-​fifth of these jobs is attributed to competition from China. However, it is not just the lower Chinese wages (in the year 2000, factory wages in the United States were more than thirty times what they were in China); it is also technology that 27  See paragraphs 13(e), 93(b), and 99 (b) of the Plan of Implementation from the WSSD. For the WTO, note the Agreement on Technical Barriers to Trade, art 4, and Annex 3, on the Code of Good Practice for the Preparation, Adoption and Application of Standards. See generally H Kim, ‘An Argument for WTO Oversight of Ecolabels’ (2014) 33(3) Stanford Environmental Law Journal 422; L Sullivan, ‘The Epic Struggle for Dolphin Safe Tuna: Accommodating Neo-​Protectionist Labels in the WTO’ (2014) 47 Vanderbilt Journal of International Law 861; Anon, ‘Knives Are Out for Eco-​Labels’ (2005) New Scientist 6; N Bernasconi, The Environment and Trade: A Guide to the WTO Jurisprudence (Routledge 2006) 77–​87, 225–​28. 28  Clinton, as in Anon, ‘Coming and Going’ Economist (1 October 2016) 5.

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eats into the employment position. Thus, even if China disappeared tomorrow, far fewer jobs would return to America’s shores than had left them. This is the same case (declining manufacturing jobs) in other developed countries, such as Germany, but the difference being that in Germany it is technology, not trade, that is the cause of the decline, and if anything, more trade (not less) is attributed to the fighting retreat of manufacturing positions.29 Although many of those displaced will find other work, their success very much depends on their educational levels. For the unskilled, the trend (which has been evident since the 1960s when the pay of less educated men averaged 80 per cent of college educated ones, but by 2014 that proportion had fallen to 60 per cent) is towards lower wages and less job security. For the college educated, skilled and valued workers, the opposite is the case. The more technology, trade, and globalization, the greater this can be. As such, the issue domestically for many developed countries is not whether free trade causes economic growth and creates a ‘net gain’ (it clearly does), but rather, the distributional benefits of that growth. Unless there is strong social welfare supports and adjustment assistance (via a redistribution of some of the net benefits), those at the bottom of society, despite accessing cheaper consumer goods, may find their standards of living declining (especially compared to previous decades), whilst those at the top, accelerating.30

(d). The negative social impacts of trade internationally At the end of the twentieth century, the International Labour Organization refined its work down to four core standards that are fundamental, universal and indivisible human rights. These are freedom from forced labour, freedom from child labour, freedom from discrimination at work and freedom to form and join a union and to bargain collectively. The Sustainable Development Goals of 2015, built on this area with their targets to, inter alia, by 2020, take immediate and effective measures to eradicate forced labour, end modern slavery and human trafficking and secure the prohibition and elimination of the worst forms of child labour, and protect labour rights and promote safe and secure working environments for all workers.31 It was hoped by many that the clarity of these standards would allow them to be put into international trade agreements, to ensure that trade between countries could be a force for good, by having a bottom line of labour rights that had to be respected. Despite this clarity, and the earlier nod in 1996 Singapore Ministerial Conference of the WTO, absolutely nothing has changed, and the two positions

29  W Dauth, ‘Trade and Manufacturing Jobs in Germany’ (2017) 107(5) American Economic Review 337; R Katz, ‘China Didn’t Take US Jobs’ (2016) 30(3) The International Economy 36; Anon, ‘Trade, At What Price?’ Economist (2 April 2016) 31; T Kemeny, ‘Cheap Imports and the Loss of Manufacturing Jobs’ (2015) 38(10) World Economy 1555. 30  Anon, ‘An Open and Shut Case’ Economist (1 October 2016) 3–​4; D Rodrix The Globalisation Paradox (Norton 2011) 56–​62, 84–​88. 31  SDG Goal 8.

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(those who want the ILO standards to become intrinsic to the work of the WTO, and those who don’t) remain entrenched.32 The exception to this failure at the international level has been some regional agreements, such as the proposed Trans Pacific Partnership, in which recognition of the core ILO standards is clear, to which each party must adopt and maintain the statutes and regulations to defend the core standards. In addition, each party was obliged to adopt and maintain statutes and regulations, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health. Although this example is far from perfect, the placement of such labour rights within trade agreements was a step forwards, although as of the middle of 2017, the status of the TPPA is in doubt, after President Trump announced that America would not sign the treaty.33

(e). Pollution  havens ‘Pollution havens’ expanded in the new century. Although the international community had some nominal controls over the trade in hazardous waste for the purposes of recycling under the Basel Convention, by the twenty-​first century the minimal control it had over recycling industries that sprang up with regard to non-​hazardous wastes, even if the importing developing countries had lesser environmental and/​or social standards than the exporting country, became fully apparent. This was particularly evident with the trades in plastic and electronic waste.34 Of the first, the recycling of plastic is a recognized international goal. If recycled, it can reduce litter, landfill and save money if the quality of the recycled product is high and it remains cheaper than the virgin (oil or natural gas based) material. The economic benefits are so strong that between the middle of the 1990s and the end of the first decade of the twenty-​first century, the exports of waste plastics for recycling purposes between the United States and countries in Asia, increased by nearly 1,000 per cent. Although such importation creates work in many parts of the developing world, such as for the 60,000 small-​scale family-​orientated workshops

32  For more general comment see M Gonza, ‘The Trade-​Labour and Trade Environment Linkages’ (2011) 10(2) Journal of International Trade Law 165; K Kolben, ‘The New Politics of Linkage: India’s Opposition to the Workers’ Rights Clause’ (2006) 13(1) Indiana Journal of Global Legal Studies 225; T Mohanty, ‘Law, Labour and Legitimacy: The Complexion of the WTO’ (2004) 29(4) Vikalpa: The Journal for Decision Makers 83; Y Moorman, ‘Integration of ILO Core Rights Standards into the WTO’ (2001) 39(2) Columbia Journal of Transnational Law 555. 33 See ch 19 of the TPPA. See also J Siroen, ‘Labour Provisions in Preferential Trade Agreements: Current Practice and Outlook’ (2013) 152(1) International Labour Review 85. 34  D Kellenberg, ‘Trading Wastes’ (2012) 64(1) Journal of Environmental Economics and Management 68; J Grether, ‘Unravelling the Worldwide Pollution Haven Effect’ (2012) 21(1) Journal of International Trade and Economic Development 131; D Kellenberg (2010) ‘Consumer Waste, Backhauling and Pollution Havens’ (2010) 13(2) Journal of Applied Economics 283; M Cole, ‘Intstitutionalised Pollution Havens’ (2009) 68(4) Ecological Economics 1239; J Baggs, ‘International Trade in Hazardous Waste’ (2009) 17(1) Review of International Economics 1; A Levinson, ‘Unmasking the Pollution Haven Effect’ (2008) 49(1) International Economic Review 223; K Gallagher, Free Trade and the Environment (Stanford University Press 2004) 22–​25.

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devoted to recycling imported plastic in China, the health and environmental impacts of this trade towards countries without the adequate standards can be very high. These impacts are despite the fact that China (which takes 70% of the global trade) have banned the import of whole plastic bottles, only allowing those which have been washed, pre-​shredded, and which have gone through initial sorting procedures in the countries of origin before entering Chinese ports, through licensed dealers.35 Of the second, old electronics can be classified as surplus (if they still function) and traded without restriction. Or they can be classified as hazardous waste (if they do not still function, and contain certain hazardous elements, which the vast majority do) and traded under the Basel Convention if the importing country provides informed consent to the transfer. Either way, old electronics are the fastest growing stream of discarded material in the world, with an estimated 20–​50 million tons of electronic waste being created each year. Although most of this comes from developed countries, India, China, and Africa are each already producing up to 2 million tons of electronic waste, themselves, each year. Until the year 2000 it was common to dump electronic waste, rather than recycle it. This practice changed when entrepreneurs became aware of the economic benefits to be found in the recycling the gold, silver, palladium, iron, copper, indium, gallium and other rare earth metals, that reside in the circuit boards and associated parts of electronic waste. Estimates suggest that one ton of scrap from discarded personal computers contains more gold than can be produced from 16 tons of ore. These valuable metals can either be obtained by highly efficient and automated methods which are regulated and labour and environmentally friendly in the developed world, or in the economically cheaper developing world with largely manual operations running through the informal sector, which lack the necessary infrastructure, capacity, or resources. The vast majority of this waste, through trade, now goes to the developing world, in which circuit boards are often ripped out of old equipment without correct safety standards, heated over open fires or stripped through dipping them into barrels full of acid. Highly toxic residue wastes are then burnt in open pits, causing negative impacts on the local environment, workers, and associated communities.36

35  For the international goal on plastic recycling see para 218 of The Future We Want from Rio+20. See also A Duraiappah, ‘Issues in Production, Recycling and International Trade of Plastic’ (2011) 7(1) Environment and Development Economics 47; S Freinkel, Plastic (Houghton 2011) 73–​80, 175, 183, 201–​02; J Welle, ‘Twenty Years of PET Bottle to Bottle Recycling’ (2011) 55 Resources, Conservation and Recycling 865; D Pellow, Resisting Global Toxics (MIT Press 2007) 134, 136, 138–​40, 142; Basel Convention 2002, Technical Guidelines for the Identification and Environmentally Sound Management of Plastic Wastes and for their Disposal 12–​14, 20–​22, 24–​28. 36 J Li and others, ‘Regional or Global WEEE Recycling. Where to Go?’ (2013) 18 Waste Management 1; N Leigh, ‘Electronic Waste Recycling’ (2012) 16(6) Journal of Industrial Ecology 940; K Wu, ‘Electronic Waste Recycling and Neonatal Health Outcomes’ (2012) 48 Environment International 1; O Sthiannopkao ‘Handling E-​waste in Developed and Developing Countries’ (2012) 30 Science of the Total Environment 1; X Chi, ‘Informal Electronic Waste Recycling’ (2011) 31 Waste Management 731; J Yu, ‘Managing E-​waste in China’ (2010) 54 Resources, Conservation and Recycling 991; A Sepúlveda, ‘Hazardous Substances Released from Electrical and Electronic Equipment during Recycling’ (2010)

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8.  Overseas Development Assistance Superficially, the debate on overseas development assistance in the twenty-​first century looked similar to the last decades in the twentieth century. Accordingly, there were repeated calls from the Millennium Declaration to the Sustainable Development goals, for wealthy countries to reach the 0.7 per cent target. As in the decade before it, only a small number (there were seven) of developed countries managed to reach that target.37 However, the twenty-​first century was different on the aid question than what went before. Although the traditional issues of fragmented approaches, lack of effectiveness, and accountability continue to trouble a number of aid agencies, in terms of the big picture, the twenty-​first century has proven itself different for four reasons. First, the giving of ODA started to bounce back. After the global average of aid reached a low point of 0.2 per cent in the year 2000, it started to climb again, reaching an average of 0.3 per cent. Although this was comparable to earlier decades in percentage terms, in purely dollar terms, the amount (135.2 billion in 2015) given was the highest level ever reached, and reflected an increase by 66 per cent in real terms between 2000 and 2015.38 Secondly, the developed countries now only made up 40 per cent of the assistance money going to the developing world. In the twenty-​first century, there is also 24 emerging donor countries and providers of South–​South cooperation; a panoply of NGOs, multilateral organizations, and private non-​profit players such as the Bill and Melinda Gates Foundation, and local communities all engaged in direct assistance to the developing world. The developing world also receives private investments, official loans on concessional terms, remittances and private charitable flows.39 The third change was that nations began to feel more confident about the reasons to give assistance. How much the international community would have changed without the terrible events that occurred on 11 September 2001 is a matter of debate. What is not a matter of debate is that aid flows received a kick-​start following that tragedy. At this point, a combination of self-​interest (as in, if states were allowed to 30 Environmental Impact Assessment Review 28; J Jiang, ‘Electronic-​Waste Recycling Plants’ (2010) 22(5) Journal of Environmental Sciences. 723; A Sepulveda, ‘Hazardous Substances Released from Electronic Equipment During Recycling’ (2010) 30 Environmental Impact Assessment Review 28; S Wath, ‘Sustainable E-​waste Management’ (2010) 409 Science of the Total Environment 19. 37  Goal 8 of the Millennium Declaration called for the development of a global partnership for development. This goal had the associated target 13, called for ‘a more generous official development assistance for countries committed to poverty reduction’ For the 2012 Earth Summit see para 258 of The Future We Want; and finally note Goal 17 of the Sustainable Development Goals. 38 Report of the Secretary-​ General, Progress towards the Sustainable Development Goals (UN 2016) 17; J Sachs,) The End of Poverty (Penguin 2015) xxxiv; J Spadika, ‘International Aid: A Critical Assessment of Official Development Assistance’ (2015) 9(2) IUP Journal of International Relations 50; B Ramalingam, Aid on the Edge of Chaos (Oxford University Press 2013) 13–​123; W Easterly, ‘Are Aid Agencies Improving?’ (2007) 22(52) Economic Policy 635; J Therien, ‘Development Assistance on the Brink’ (2000) 21 Third World Quarterly 21, 29–​31. 39  E Bosch, ‘Making the Most of the International Aid System’ (2011) OECD Journal: General Papers 27.

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fail, they could spawn terrorism, which would eventually come to bite donor countries) overlapped with promising developments which showed that well targeted assistance could work. To work well, aid had to be strongly wrapped with monitoring, accountability, auditing, and especially, anti-​corruption measures. Success was most obvious in terms of essentially simple interventions (as opposed to grandiose development schemes) around agriculture (to raise crop yields and add to crop value); basic health (and fighting diseases such as polio, malaria, or cholera); basic education; safe drinking water and sanitation; followed by power, transport, and communication services. Such successes meant that, overall, the international community started to feel more comfortable to reorientate the target of international assistance and its legitimacy.40 The fourth significant change that occurred with aid was that the prioritization of the LDCs became clear. For these very poor countries which make up 13 per cent of the world’s population but hold 35 per cent of the world’s extremely poor, aid makes up 72 per cent of their total external finance (compared to an average of 11% for most other developing countries). To this particular grouping, the international community agreed repeatedly between the Millennium Declaration and the Sustainable Development Goals to not only make the 0.7 per cent target overall, but within this bracket, to ensure that at least 0.15 per cent of the total was directed towards LDCs. Although only eight developed countries had met this goal of 0.15 per cent by 2015, the total resource flows for development to the LDCs had reached US$55.2 billion. Other progress can be seen in that the share of untied aid from developed countries has more than doubled from the 40 per cent it was in 1980.41 40 A Menard, ‘Understanding the Link Between Aid and Corruption’ (2016) 40(2) Economic Systems 260; L Lopez, ‘Corruption and International Aid Allocation: A Complex Dance’ (2015) 40(1) Journal of Economic Development 35; Anon, ‘It’s Not What You Spend’ Economist (23 May 2015) 49; T Buss,) ‘Foreign Aid and the Failure of State Building’ (2015) 6(2) Latin American Policy 319; K Gray,) ‘U.S. Aid and Uneven Development in East Asia’ (2014) 656(1) Annals of the American Academy of Political and Social Science 41; V Brech,) ‘Donor Ideology and Types of Foreign Aid’ (2014) 42(1) Journal of Comparative Economics 61; M Bauhr, ‘Does Corruption Cause Aid Fatigue?’ (2013) 57(3) International Studies Quarterly 568; B Cooksey, ‘Aid, Governance and Corruption Control’ (2012) 58(5) Crime, Law and Social Change 521; C Bjerg, ‘Growth, Debt Burdens and Alleviating Effects of Foreign Aid in Least Developing Countries’ (2011) 27(1) European Journal of Political Economy 143; C Williamson, ‘Exploring the Failure of Foreign Aid’ (2010) 23(1) Review of Austrian Economics 17; M Botting, ‘Water and Sanitation for Health: The Impact of Foreign Aid’ (2010) 6 Globalisation and Health 12; A Shleifer, ‘Peter Bauer and the Failure of Foreign Aid’ (2009) 29(3) Cato Journal 379; B Bean, ‘Hyperbole, Hypocrisy and Hubris in the Aid-​Corruption Dialogue’ (2010) 41(4) Georgetown Journal of International Law 781. 41  For the World Summit on Sustainable Development and its Plan of Implementation see para 79(a). For the Monterrey Consensus see the Final Outcome of the International Conference on Financing for Development (Monterrey) Doc A/​CONF/​198 (1 March 2002), para 42. On the Development Goals & Aid see paras 2 and 40; for the Earth Summit +20 and The Future We Want see para 258. Finally, note goal 17 of the Sustainable Development Goals. See OECD, Taking Stock of Aid to Least Developed Countries (OECD 2015) 1–​2; OECD, Aid at a Glance (OECD 2016) 1; V Brech, ‘Donor Ideology and Types of Foreign Aid’ (2014) 42(1) Journal of Comparative Economics 61; E Wamboye, ‘Economic Growth and the Role of Foreign Aid in Selected African Countries’ (2013) 56(2) Development 155; B Aran, ‘Aid for Least Developed Countries’ (2012) 1 International Trade Forum 16; C Bjerg, ‘Growth, Debt Burdens and Alleviating Effects of Foreign Aid in Least Developing Countries’ (2011) 27(1) European Journal of Political Economy 143; OECD, Measuring Aid: 50 Years of DAC Statistics, 1961–​ 2011 (OECD 2011) 5–​7.

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Progress can also be seen with the way environmental objectives have become important in overseas development assistance. Currently, about 25 per cent of all bilateral assistance claims to have some sort of ‘environmental sustainability’ consideration attached to it. Although there is considerable slipperiness in this figure, this percentage reflects a clear change of emphasis for a consideration which did not even exist in development assistance accounting, prior to 1991. A similar progress is evident with the Global Environment Facility, which has seen the money it administers go from US$1 billion every four-​year cycle in the 1990s to just under US$4.5 billion for the four-​year cycle leading up to 2020. At the same time, the number of specialized funds (often with additional monies attached) the GEF administers for international environmental agreements has expanded. In practical terms, the GEF money has supported: the creation of more than 3,300 protected areas (covering an area larger than the size of Brazil); help with conservation-​friendly management for another 350 million hectares; support for 1,300 biodiversity projects in 155 countries; 790 climate change programmes contributing to the reduction of an estimated 2.7 billion tons of carbon; management assistance for thirty-​four transboundary river basins; and assistance with the disposal of an estimated 200,000 tons of highly toxic persistent organic pollutants.42 The deeper thinking behind these figures is that, although the GEF is not perfect, it is proving successful owing to its effective coordination between multiple international environmental agreements, national governments, implementing agencies, and the private, and (especially) non-​governmental sector. Their ability to utilize different sized projects, ensure public participation, and provide flexibility has allowed their learning to evolve. The result is that both donors and recipients are satisfied with its results, with the success of their projects (going from their latest fifth replenishment cycle) to above 80 per cent of those recording either moderate satisfaction or higher.43 The unknown in this area is with the creation of the Green Climate Fund. This is a new fund within the framework of the UNFCCC but more related to the Paris 42  The additional funds include those with the UNFCCC (with the Special Climate Change Fund, the Least Developed Countries Fund and the Adaptation Fund), and the Nagoya Protocol (of the CBD), as well as the regimes covering Persistent Organic Pollutants; Mercury; and a group of agreements on international waters and transboundary water systems (from the Global Ship Ballast Water Treaty, through to the UN Agreement on Conservation and Management of Straddling Fishing Stocks and Highly Migratory Fish Stocks. See GEF, Twenty-​Five Years of the Global Environment Facility (GEF 2016) 3–​4, 200–​18; OECD, Development Co-​operation Report: Lessons in Linking Sustainability and Development (OECD 2012) 12–​13. 43 E Graham, ‘The Promise and Pitfalls of Assembled Institutions:  Lessons from the Global Environment Facility’ (2017) 8(1) Global Policy 52; P Bayer, ‘When International Organisations Bargain’ (2015) 59(6) Journal of Conflict Resolution 1074; M Prideaux, ‘Wildlife NGOs: From Adversaries to Collaborators’ (2015) 6(4) Global Policy 379; L Mees, ‘Evaluating the Global Environment Facility’ (2008) 18(4) Global Environmental Change 800; K Ervine, ‘Participation Denied:  The Global Environment Facility’ (2010) 31(5) Third World Quarterly 773; K Ervine, ‘The Greying of Green Governance: Power Politics and the Global Environment Facility’ (2008) 18(4) Capitalism, Nature, Socialism 125; B Chazournes, ‘The Global Environment Facility: A Unique and Crucial Institution’ (2005) 14(3) Review of European Community and International Environmental Law 193; C Streck, ‘The Global Environment Facility: A Role Model for International Governance?’ (2001) 1(2) Global Environmental Politics 71.

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Agreement. This was founded to assist developing countries in adaptation and mitigation practices to counter climate change. Their goal is to be raising, and distributing, US$100 billion per annum by 2020. Unlike the existing climate-​related funds that the GEF administers (the Special Climate Change Fund, the LDCs Fund and the Adaptation Fund), the Green Climate Fund is meant to be independent and outside the GEF frameworks. Exactly how this will work within the highly politicized world of climate funding remains to be seen.44

9. Corruption The international community continued to make progress in the fight against corruption in the twenty-​first century. It was estimated that Africa, alone, was losing US$150 billion per annum owing to corruption in the year 2000. The loss to Africa was nearly a third of the very broad estimate US$400 billion lost to developing countries overall, each year, owing to corruption. While all of the traditional costs of corruption to development and cohesive societies that were known from earlier decades were reiterated, the twenty-​first century evidenced a further negative impact of corruption—​that upon environmental goals. Specifically, corruption became clearly linked to, inter alia, air pollution, waste disposal, deforestation, and the taking of endangered species.45 As such costs became increasingly apparent, the international community in 2002 at both the Monterrey International Conference on Financing for Development and

44  B Sovacool, ‘Climate Change Adaptation and the Least Developed Countries’ (2017) 140(2) Climatic Change 209; H Winkler, ‘Who Determines Transformational Change in Development and Climate Finance?’ (2015) 17 Climate Policy 1; J Pickering, ‘Acting on Climate Finance Pledges: Inter Agency Dynamics and Relationships with Aid in Contributor States’ (2015) 68 World Development 149; S Bracking, ‘The Anti-​Politics of Climate Finance: The Creation and Performativity of the Green Climate Fund’ (2015) 47(2) Antipode 281; A Markandya, ‘Analyzing Trade-​Offs in International Climate Policy Options: The Case of the Green Climate Fund’ (2015) 74 World Development 93; K Sanjay, ‘Green Climate Fund Faces Slew of Criticism’ (2015) 527(7579) Nature 419; L Cui, ‘Design and Analysis of the Green Climate Fund’ (2014) 23(3) Journal of System Science and Systems Engineering 266; A Persson, ‘Equity and Efficiency in Adaptation Finance’ (2014) 14 Climate Policy 1; E Remling, ‘What is Adaptation For?’ (2014) 4 Climate and Development 1; B Kretschmer, ‘Does Foreign Aid Reduce Energy and Carbon Intensities of Developing Countries?’ (2013) 25 Journal of International Development 67; L Gomez, ‘The Changing Geopolitics of Climate Change Finance’ (2013) 13(5) Climate Policy 632; K Pittel, ‘International Climate Finance and Its Influence on Fairness and Policy’ (2013) 36(4) World Economy 419; M Grasso, ‘The Role of Justice in the North-​South Conflict in Climate Change: The Adaptation Fund’ (2011) 11(4) International Environmental Agreements 361; A Michaelowa, ‘The Political Economy of Reporting Climate Aid’ (2011) 39(11) World Development 2010. 45  L Holmes, Corruption (Oxford University Press 2015) 18, 23–​28; E Hassaballa, ‘The Effect of Corruption on Carbon Dioxide Emissions’ (2015) 4(2) European Journal of Sustainable Development 301; G Galinato, ‘The Effects of Corruption Control, Political Stability and Economic Growth on Deforestation Induced Carbon Dioxide Emissions’ (2012) 17(1) Environment and Development Economics 67; J Olatunde, ‘Corruption as an Obstacle to Development in Developing Countries’ (2011) 14(4) Journal of Money Laundering Control 387, 399; M Miller, ‘The Role of Corruption Among Forestry Regulators’ (2011) 20(1) Journal of Environment and Development 50; M Cole, ‘Corruption, Income and the Environment’ (2007) 62(3) Ecological Economics 637; H Welsh, ‘Corruption, Growth and the Environment’ (2004) 9(5) Environmental and Development Economics 663.

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the Johannesburg World Summit on Sustainable Development committed themselves to deal with this matter in a universal (not just OECD) manner. The objective to substantially reduce corruption and bribery in all of its forms then became one of the 2015 Sustainable Development Goals.46 The primary instrument which evolved in the twenty-​first century to achieve these goals was the 2003 United Nations Convention Against Corruption. This convention introduced a comprehensive set of standards, measures and rules that all countries can apply in order to strengthen their legal and regulatory regimes to fight corruption. It calls for preventive measures and the criminalization of the most prevalent forms of corruption in both public and private sectors. In addition, it made a major breakthrough by requiring members to the convention to return assets obtained through corruption to the country from which they were stolen. Although this convention is far from ideal, as a starting point it was a very good beginning, from which future protocols and inclusion into trade treaties would be useful follow-​on steps.47

10.  Debt In the year 2000, the MDGs pointed out that if development and poverty eradication was ever to be achieved, the international community would have to ‘deal comprehensively with the debt problems of developing countries through national and international measures in order to make debt sustainable in the long term’.48 This call was then echoed by the General Assembly, and then in 2002 the World Summit on Sustainable Development and the Monterrey Consensus on International Financing, the 2012 Rio+20 gathering, and later the 2015 Sustainable Development Goals.49 In response, the United States and the United Kingdom promised up to 100 per cent debt write-​offs (of the associated bilateral debt they held) if the HIPC conditions (from the 1990s) were met. This bilateral promise then evolved into the Multilateral Debt Relief Initiative (MDRI). The MDRI allowed for 100 per cent relief on multilateral eligible debts, as held by the IMF, World Bank, and African Development Fund (as in, unlike the HIPC it did not cover bilateral or commercial debt) for countries completing the HIPC process. The result has been an estimated 3.4 billion (in nominal 46  See target 6.5 of the SDGs. 47  See United Nations Convention against Corruption (2004) ILM 43, 37; see also J Mbaku, ‘International Law and the Fight Against Bureaucratic Corruption’ (2016) 33(3) Arizona Journal of International and Comparative Law 661; J Sandage, ‘Global Corruption and the Universal Approach of the United Nations Convention Against Corruption’ (2015) 53(1) Osgoode Hall Law Journal 7; E Spahn, ‘Implementing Global Anti Bribery Norms’ (2013) 23(1) Indiana International and Comparative Law Review 1; A Argandona, ‘The United Nations Convention against Corruption’ (2007) 74(4) Journal of Business Ethics 481. 48  Millennium Development Goals, Goal 8, target 15. See also the Millennium Declaration Doc A/​ Res/​55/​2 paras 15, 16. 49  For the UN General Assembly resolution see ‘Further Initiatives for Social Development’ Doc A/​ RES/​S-​24/​2 (15 December 2000) paras 7, 39; for the Plan of Implementation from the WSSD see paras 83(a) and 89(e); for the Monterrey Consensus see paras 48–​51; for Rio+20 and The Future We Want see para 263; and Goal 17 of the SDGs.

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terms) of debt relief delivered over the following decade. In the same period, the HIPC was reengineered, lowering the debt to export ratio (to 150%) and replacing the six-​ year period to a ‘floating’ exit point. Both measures were designed to make it easier for countries to qualify, and then complete, the HIPC goals.50 The end result was that one by one, from 2005 onwards, some thirty-​six countries saw most of their debts progressively forgiven to a cumulative total of about US$76 billion in debt relief (to the middle of 2017). For countries which have received their full entitlement of relief, the amount spent on health, education, and other social services is now about five times the amount spent on debt servicing. On average, their poverty-​ reducing expenditure, in relation to GDP has gone from 3 per cent before the HIPC to 9 per cent in 2015. While part of this increased spend was a result of conditions insisted upon by the funding agencies, the other part has come from general savings (with, on average) reduced debt payments working out to about 1.8 per cent of GDP saved each year, as their proportion of external debt service to export revenue fell from 12 per cent in 2000 to 3 per cent in 2015. These debt ratios are now below those debtor countries which are not part of the HIPC.51 Although distinct challenges remain, in terms of both debtor nations staying their course, and all debtors playing their part (smaller multilateral, non-​Paris Club and commercial creditors, which account for about 27 per cent of the HIPC debt have been slow to deliver their small share of expected relief so far), history does not have many examples of better comprehensive international collaboration on debt relief. In as much as the HIPC and MDRI has been very good progress, a lack of advancement appeared as a new form of debt problem emerged in the twenty-​ first century with the issue of excessive mobility of private financial capital. The difficulty was (and often remains) that many national governments are not capable of managing the massive movements of funds across the foreign exchanges (with international currency transactions rising to over US$3.2 trillion, per day, by 2010). Whilst in many instances international finance is a good and essential oil in the international market, in some instances, when it has been unregulated and very volatile, it can become a problem. This is attributable to the scale and speed that this money can be moved by investors as they respond to a lack of adequate regulation​ or financial governance in some countries (such as on national debt levels, capital requirements, disclosure rules, and credit ratings), and react quickly to overheated local markets, finance bubbles, and short-​term trading strategies in order to exploit small differentials in the margins. The negative impacts and skyrocketing national debt in remarkably short period (especially compared to the 1980s and 1990s)

50  E Helleiner, ‘The Bush Administration and HIPC Debt Cancellation’ (2006) 11(1) New Political Economy 125; A Mwaba, ‘Beyond HIPC: What Are the Prospects?’ (2005) 17(3) African Development Review 536; J Serieux, ‘Debt of the Poorest Countries: Anatomy of a Crisis Kept on Hold’ (2001) 22(2) Canadian Journal of Development Studies 305. 51  R Culpeper, ‘The New Face of Developing Country Debt’ (2016) 101 Third World Quarterly 1; D Cassimon, ‘Africa: Out of Debt, Into Fiscal Space?’ (2015) 144 International Economics 29; B Gunter, ‘Achieving the MDGs and Ensuring Debt Sustainability’ (2011) 32(1) Third World Quarterly 45.

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appeared repeatedly in the twenty-​first century, engulfing parts of the developing, and developed, world alike, especially after the financial crisis of 2008.52 Following the 2008 financial crisis although domestic level changes were created in many countries, (with multiple new laws and responsibilities on the general bankers, credit-​rating agencies, hedge funds, central bankers, regulators and governments), at the international level, a void remained. The void that needed to be fixed, so that domestic crashes do not become international crashes with resultant debt disasters within a very short spaces of time when markets panic. The goal is some mechanism to slow the speed of transactions at the macro level. However, in this global area, proposals such as a tax on international currency transactions to slow the pace of international revenue (​and potentially gather vast sums of revenue) ​or more uniform rules to help govern the international financial world of capital mobility, have met with no success.53

11.  Transnational Corporations (a). Growth In 2017 there is an estimated 77,000 transnational corporations linked to more than 770,000 foreign affiliates. Their combined value is perhaps up to 25 per cent of the gross world product. They overlap with 70 per cent of world trade and employ, perhaps, 100 million people. Their cash reserves range from the equivalent of 10 per cent of GDP in America through to 47 per cent in Japan. Their direct foreign investment was running at about US$1 trillion dollars per annum in 2000, of which about US$250 billion was going to developing countries—​a hundred-​fold increase (on both counts) since 1970.54 Some 1318 transnational corporations have interlocking ownerships, with ties in two or more of the same group of companies. This group controls over 20 per cent of global operating revenues. Within this group, a super-​subset exists of 147 companies that are tightly interconnected in terms of cross-​ownerships, and this group, controls 40 per cent of the total wealth of the entire network. Of this super-​elite group, the majority are financial institutions with Barclays Bank, JP Morgan Chase and Co, and the Goldman Sachs Group at the forefront. Beneath the financial institutions is the giant American conglomerate General Electric, which is worth over 52  R Skidelsky, Keynes: The Return of the Master (Public Affairs 2010) 8–​16, 22–​28, 170–​76. 53  O Canuto,) ‘Orderly Sovereign Debt Restructuring: Missing in Action’ (2014) The World Bank Research Observer 29(1): 109–​35; A Antoniades, ‘Recasting the Power Politics of Debt’ (2013) 34(2) Third World Quarterly 214; F Stewart, ‘The Impact of Global Economic Crisis on the Poor: Comparing the 1980s to and 2000s’ (2012) 13(1) Journal of Human Development and Capabilities 83; D Rodrix, The Globalisation Paradox (n 30) 106–​107, 121–​25, 224–​30; K Ertuk, ‘On the Tobin Tax’ (2006) 18(1) Review of Political Economy 71; M Frankman, ‘Beyond the Tobin Tax’ (2002) 581 Annals of the American Academy of Political and Social Science 62; K Raffer, ‘The Tobin Tax’ (1998) 26(3) World Development 529. 54 Anon, ‘The Rise of the Superstars’ Economist (17 September 2016) 3–​6; J Frieden, Global Capitalism: Its Rise and Fall in the Twentieth Century (Norton 2006) 416–​17.

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US$500 billion per annum, with a total workforce of more than 300,000 people. Toyota has 326,000 workers on its books, while Exxon Mobil earnt over US$310 billion. These traditional players are changing. In 1990, the top three car makers in Detroit between them had nominal revenues of US$250 billion, a market capitalization of US$36 billion, and 1.2 million employees. In 2014, the top three companies in Silicon Valley had revenues of US$247 billion, and a market capitalisation of over US$1 trillion, but just 137,000 employees. The incomes of the biggest transnational corporations are so large that studies suggest that, of the top 100 economies in the world, 51 are corporations and 49 are states.55

(b).  The Global Compact As these entities have gone from strength to strength, the international community has amplified the ideas that emerged in the 1990s of encouraging such powerful entities to voluntarily lift their game, and go beyond the bottom line of laws mandated in the countries they operate within. This approach, as first championed by the former United Nations Secretary-​General Kofi Annan in the twenty-​first century with support from the G8, called upon world business leaders to embrace and enact a new Global Compact, both in their individual corporate practices and by supporting appropriate public policies. This was to represent a new type of approach beyond the state-​run compliance-​driven system towards a mature, voluntary, market-​driven responsible citizenship. Transparency, social accountability, cooperation, and shared learning were the associated tools and processes, as each entity which would sign up to the commitments would also publicly report each year on their progress on implementing them. As the next Secretary General Ban Ki-​moon, would later explain: Business, as a key agent of globalization, can be an enormous force for good. Through a commitment to corporate citizenship and the principles of the United Nations Global Compact, companies can continue to create and deliver value in the widest possible terms. In this way, globalization can act as an accelerator for the diffusion of universal principles, creating a values-​orientated competition for a race-​to-​the-​top.56

55  A Jonge, ‘Transnational Corporations and International Law’ (2011) 7(1) Critical Perspectives on International Business 66; Anon, ‘Revealed: The Capitalist Network that Runs the World’ (2011) New Scientist 5; UNCTAD, The Universe of the Largest Transnational Corporations (UNCTAD 2007); J Stopford, ‘Multinational Corporations’ (1999) Foreign Policy 15, 17. 56 Ban Ki-​ moon, as in Anon, ‘UN Global Compact Deepens Commitment’ (2007) 37(5) Environmental Policy and the Law 425. See also M Shoji, ‘Global Accountability of Transnational Corporations:  The UN Global Compact as a Global Norm’ (2015) 8(1) Journal of East Asia and International Law 101; D Coleman, ‘The United Nations Transnational Corporations’ (2013) 17(4) Global Society 339, 353; C Garsten, ‘Transparency and Legibility in International Institutions’ (2011) 19(4) Social Anthropology 378, 390; A Afshin, ‘The Global Compact, Environmental Principles and Change in International Environmental Politics’ (2010) 38(2) Denver Journal of International Law and Policy 277, 284–​87; A Rasche, ‘A Necessary Supplement: What the United Nations Compact Is, and Is Not’ (2009) 48(4) Business and Society 511.

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The Global Compact principles were unveiled at the beginning of the new Millennium, close to the same point when the ILO, which by now had its eight core conventions in place, updated its Tripartite Declaration of Principles Concerning Multilateral Enterprises and Social Policy. At the same point, the OECD, reissued its Guidelines for Multilateral Enterprises, replete with each government establishing a national contact point to assist.57 Before the Global Compact would be formally launched in 2004, the World Summit on Sustainable Development was held in 2002. The signatories to the Plan of Implementation from this gathering in Johannesburg promised they would ‘enhance corporate environmental and social responsibility and accountability’. This would include actions at all levels to ‘encourage industry to improve social and environmental performance through voluntary initiatives, including environmental management systems, codes of conduct, certification and public reporting on environmental and social issues’.58 It was added that there was a ‘duty’ on part of the private sector ‘to contribute to the evolution of equitable and sustainable communities and societies’. The Political Declaration from Johannesburg continued: ‘we agree that there is a need for private sector corporations to enforce corporate accountability’.59 The showcase piece for the World Summit on Sustainable Development was Type II Partnerships. Type I referred to documents or agreements that are negotiated by states, such as traditional forms of treaties and declarations. Type II outcomes were commitments and targets made by individual groups or governments, along with other interested groups, ranging from NGOs to commercial enterprises. These were transparent, publicly announced, voluntary and self-​organizing partnerships. They were meant to help the implementation of Agenda 21, adding new value to the existing processes. Some 220 Type II Partnerships were announced in Johannesburg, creating alliances, from global to national in scale, covering everything from cycling to vaccines and immunization, in which initiatives were praised for being both practical and advances upon existing situations. Despite their strong visibility, Type II Partnerships were criticized by many of the smaller NGOs who were not engaged with them, unlike the larger international NGOs who made up the 25 per cent of the lead partners in the partnerships. The criticisms were that the Type II Partnerships did not create legally enforceable obligations or accountability and rather than helping, they diluted and detracted state responsibility.60

57  See S Tully, ‘The 2000 Review of the OECD Guidelines for Multinational Enterprises’ (2001) 50(2) International and Comparative Law Quarterly 394. 58  World Summit on Sustainable Development (2002), Plan of Implementation, para 17. 59  Johannesburg Declaration on Sustainable Development, Plan of Implementation. paras 27, 29; Anon, ‘Environmental Responsibilities of Multinational Corporations’ (2003) 33(6) Environmental Policy and the Law 244. 60 M Wilson, ‘The New Frontier in Sustainable Development:  World Summit on Sustainable Development Type II Partnerships’ (2005) 36 Victoria University of Wellington Law Review 389; B Liliana, ‘Franchising Global Governance:  Making Sense of the Johannesburg Type II Partnerships’ (2004) Yearbook of International Cooperation on Environment and Development 19; C Bruch, ‘Type II Partnerships, International Law and the Commons’ (2003) 15(4) Georgetown International

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Two years later, the United Nations Global Compact was formally launched with nine principles in the middle of 2004, as a new model of voluntary and positive corporate ethics. On the topic of human rights, the principles were/​are: (1) that businesses should support and respect the protection of internationally proclaimed human rights and (2) make sure they are not complicit in any human rights abuses. With regard to labour standards, business should: (3) uphold freedom of association and collective bargaining, (4) eliminate all forms of forced labour, (5) abolish child labour; and (6) end any discrimination in employment. With the environment, business should: (7) support a precautionary approach to environmental challenges, (8) undertake initiatives to promote environmental responsibility; and (9) encourage the development and diffusion of environmentally friendly technologies. A tenth principle was added soon after the United Nations Convention Against Corruption was adopted, from which businesses should work against corruption in all its forms, including extortion and bribery.61 The importance of this type of voluntary approach with TNCs was reiterated in 2011, when the OECD updated their guidelines again, and then at the 2012 ‘Rio+20’ summit, where Secretary General, Ban Ki-​moon called for the ‘greatest public-​private partnership of all time’.62 The resultant document from this gathering, The Future We Want, acknowledged that: The implementation of sustainable development will depend on the active engagement of both the public and the private sectors. We recognize that the active participation of the private sector can contribute to the achievement of sustainable development, including through the important tool of public-​private partnerships. We support national regulatory and policy frameworks that enable business and industry to advance sustainable development initiatives, taking into account the importance of corporate social responsibility. We call on the private sector to engage in responsible business practices, such as those promoted by the United Nations Global Compact.63

The Sustainable Development Goals of 2015 build on this momentum, calling for the encouragement of companies, especially large and transnational ones, to adopt sustainable practices, integrate sustainability information into their reporting cycles, and publish their promised reports.64 Each commercial entity had their own reasons for joining the Global Compact. These range from highly held principles from the founders of the enterprise, through to opportunities to network, gain consumer confidence o​ r increase market share. Irrespective of why they signed on, in terms of progress with such aspirations and goals, by the middle of 2017, 9,000 companies and 4,000 non-​businesses from Environmental Law Review 855; T Klein, ‘Type II Partnerships: Making the Dream a Reality’ (2003) 15 Georgetown International Environmental Law Review 531. 61  T Sagafinejad, The UN and Transnational Corporations: From Code of Conduct to Global Compact (Indiana University Press 2008). 62  F Pearce, ‘Earth Summit: Give Nature a Cash Value’ (2012) New Scientist 10; M Schekulin, ‘Shaping Business Conduct: The 2011 Update of the OECD Guidelines’ (2011) 3(4) Transnational Corporations Review 89; A Santer, ‘A Soft Law Mechanism for Corporate Responsibility: The Updated OECD Guidelines’ (2011) 43(2) The George Washington International Law Review. 221. 63  The Future We Want Doc A/​CONF.216/​16, para 46. 64  SDG Goals 12.6 and 12.6.1.

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162 countries had committed themselves to the Global Compact and were reporting, annually and publicly, on how they implemented them.65 Despite the international support for the Global Compact, the criticism of it has been strong. The fact that there is no formal body exercising systematic oversight and evaluation, and there are no formal penalties for failure to abide by the goals, short of being struck off for non-​reporting, is considered by many to be insufficient strength in this area. Further criticisms include that the reporting is limited, there is no proof that companies are adopting additional steps that they would not do anyway, and that only a tiny percentage (9,000) of the world’s commercial entities have felt so inclined to commit.66 As evidence of the need to be sceptical in this area, two specific examples were alluded to. The first, involved what many people believed was a ‘good’ automobile company, namely Volkswagen, which was a notable signatory to the Global Compact, yet still wilfully cheated environmental goals to achieve a market advantage. The case in point was the so-​called ‘diesel dupe’, which emerged after it was shown that Volkswagen cars had been programmed to cheat in performance tests and were actually emitting pollution at 40 per cent above permissible levels than the assessments recorded. Some 500,000 cases were implicated in the United States and a further 800,000 in Europe. Volkswagen admitted that it had, in the words of the Volkswagen America boss, ‘broken the trust of our customers and the public’, for which the CEO resigned. An estimated €6.7 billion was set aside to cover the costs; there were losses on stock value, and countries were looking at fining Volkswagen, per car, for each violation (at €37,000 per vehicle).67 The second example of corporations willing to go to great lengths to protect their profits involved the formation of the World Health Organization’s Framework Convention on Tobacco Control. This was created in response to the globalization of the tobacco epidemic. Tobacco corporations fought against this Convention every step of the way. They defended the free and unrestricted trade in tobacco on the grounds of freedom of choice of the consumer and the economic importance of the industry in over 100 countries that grow tobacco employing some 12 million 65  K Lopez, ‘Can the UN Global Compact Fill the Gap in International Corporate Law?’ (2014) 6 Southern Journal of Business and Ethics 130; A Afshin, ‘The Global Compact, Environmental Principles and Change in International Environmental Politics’ (2010) 38(2) Denver Journal of International Law and Policy 277, 287; D Brown, ‘Theorizing Transnational Corporations as Social Actors’ (2010) 12(1) Business and Politics 1; L Bennie, ‘The Logic of Transnational Action: The Good Corporation and the Global Compact’ (2007) 55(4) Political Studies 232. 66  Lopez, ‘Can the UN Global Compact Fill the Gap in International Corporate Law?’ (n 65) 136; A Rasce, ‘The United Nations Global Compact: Retrospect and Prospect’ (2012) 52(1) Business and Society 6; A Jonge, ‘Transnational Corporations and International Law’ (2011) 7(1) Critical Perspectives on International Business 66, 72; C Garsten, ‘Transparency and Legibility in International Institutions’ (2011) 19(4) Social Anthropology. 278, 283; S Soederberg, ‘Taming Corporations or Buttressing Market Led Development: A Critical Assessment of the Global Compact’ (2007) 4(4) Globalisations 303; S Macleod, ‘Transnational Corporations: Power, Influence and Responsibility’ (2004) 4(1) Global Social Policy 77; K Bruno, ‘The UN’s Global Compact, Corporate Accountability and the Johannesburg Earth Summit’ (2002) 45(3) Development 33. 67  R Crete, ‘The Volkswagen Scandal from the Viewpoint of Corporate Governance’ (2016) 7(1) European Journal of Risk Regulation 25; J Krall, ‘The Volkswagen Scandal’ (2015) 12(6) Significance 12; Anon, ‘The Extent of the Scandal’ Economist (10 December 2015) 13–​18.

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people. To achieve their goals of unrestricted trade in their product, they manipulated science, unduly influenced policy formation, and attacked those advocating for anything above voluntary tobacco controls. They preferred to ignore the fact that their product is highly addictive and kills half of all of its users, including an estimated 100 million people in the twentieth century, and on current trends, a further one billion during the twenty-​first century (and costing 1.8 per cent of global GDP in the process). After tobacco companies were finally excluded from all of the negotiations, a treaty was concluded that not only clearly recognized the dangerous nature of the product, it also set up a framework through which it could be controlled with both price and non-​price measures (such as age, advertising, and location restrictions). The success and importance of this treaty was such that the need to strengthen and implement it was that uniquely it was explicitly recognized within the 2015 Sustainable Development Goals.68

(c). Investment treaties revisited By 2017, there were at least 3,000 bilateral investment treaties (BITs) in existence. However, their rapid growth and attempts by transnational corporations to exploit them had resulted in a large degree of mistrust in these mechanisms and the bodies meant to arbitrate over disputes, which from the year 2000 onwards, was hearing about forty cases per annum. Of these, most (some 90%) of the investor state dispute cases involved administrative acts by executive branches of governments affecting foreign investors, such as the cancellation of licences or permits, land zoning or breaches of contract. Within this bracket, states were more successful than investors (37%) wins, (25%) losses, with the rest either settled (28%) or discontinued. Even the winners, despite spending over average over 8 million per claimant, tended to only get a small portion of their original claim. Despite these victories, a strong feeling grew that the process was wrong in terms of both procedure (owing to conflicts of interest between arbitrators and counsel, inconsistency of outcomes, overt confidentiality, expense, and the lack of an appeals body) and substance (in terms of corporations too often chancing their arm against countries on matters which, they should have limited influence over).69 68  The WHO Framework Convention on Tobacco Control. UNTS 2302: 166. For the SDGs see goal 3(a). See also ‘Cough Up’ Economist (3 June 2017) 12–​13; B Townsend, ‘Global Health Governance: The Framework Convention on Tobacco Control’ (2012) 2 Administrative Sciences 186; C Holden, ‘Corporate Power and Social Policy: The Political Economy of Transnational Tobacco Companies’ (2009) 9(3) Global Social Policy 328; D Studlar, ‘Tobacco Control Policy Instruments in a Shrinking World’ (2006) 29 International Journal of Public Administration 367; T Sagafi, ‘Should Global Rules Have Legal Teeth: The Case of the Framework Convention on Tobacco Control’ (2005) 10(4) International Journal of Business Ethics 363; J Collin, ‘The Convention on Tobacco Control: The Politics of Global Health Governance’ (2002) 23(2) Third World Quarterly 265; WHO, Tobacco Companies Strategies to Undermine Tobacco Control Activities at the WHO (WHO 2000) iii. 69  European Commission (2015) Investor to State Dispute Settlement: Some Facts and Figures (EC, Brussels) 2–​8; M Cordonier, Sustainable Development in World Investment Law (Kluwer) 111–​21; W Dodge, ‘Investment State Dispute Settlements Between Developed Countries’ (2010) 39(1) Vanderbilt Journal of Transnational Law 1; J Vinuales, Foreign Investment and the Environment in International Law (Cambridge University Press 2009) 18–​22.

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The foremost example of such concerns involved the early part of the century with the then highest ever award of US$2.3 billion (this was later reduced to US$1 billion in 2015) in an investor-​to-​state dispute being handed to Occidental, an oil company, against the government of Ecuador. This award was given over its termination of an oil-​concession contract and seizing their assets after Occidental had sold an oil field to a Chinese multinational without the required governmental consent of Ecuador in 2006. The 2012 decision concluded that Ecuador’s seizure was ‘tantamount to expropriation’, and such an action was disproportionate to what should have been done, even though they agreed that Occidental had broken the law.70 In the same period, the giant tobacco company Philip Morris launched an investor-​to-​state dispute against the government of Australia for its introduction of plain packaging requirements on tobacco products. This decision by the Australian government, although clearly a breach of Philip Morris’s rights to trademark protection, was argued as an expropriation of the company’s intellectual property. Australia argued that it had to do this to protect the health of its citizens. Before this matter could be dealt with on the merits (as in, whether the Australian government should still be able to regulate in this area for reasons of public health, even though they were breaching rules on trademarks), the case was dismissed by the tribunal who held they did not have jurisdiction to hear it (as it was being run through a 1993 BIT agreement between Australia and Hong Kong). Nevertheless, the tribunal was clearly pointing towards the legitimacy of the Australian government to adopt such measures, if there was fair warning, non-​discriminatory, and least cost restrictions (as in, less impact than banning the product). The tentative report from the WTO (in which Cuba, the Dominican Republic, and Honduras challenged Australia over the same matter) appears to have come to the same conclusion, upholding the rights of the Australian government to introduce plain-​packaging on tobacco products, even if that does breach the trademark rights of the tobacco companies.71 Concerns about the rights of corporations over such matters were also running strong in Europe. These feelings followed the Fukushima disaster in Japan in 2011, after which the German government decided to shut down its nuclear power industry—​whether owned domestically or internationally. To this, the industry, including Vattenfall, a Swedish utility that operates two nuclear plants in Germany, demanded compensation for the implications of the government’s decision to shut down all of Germany’s nuclear reactors. Vattenfall had the extra advantage of being able to pursue the German government for €3.7 billion, under the investment state dispute clause of a treaty on energy investments. Although the German courts agreed that all of the nuclear industries could pursue compensation, no special preference was 70  Section 450 of Occidental Petroleum Corporation v The Republic of Ecuador, Award, ICSID Case No. ARB/​06/​11 (Oct. 5, 2012). 71  S Chapman, ‘World Trade Organisation Gives Australia’s Plain Tobacco Packs the (draft) Thumbs Up’ The Conversation (5 May 2017) A12; P Smith, ‘Australia Wins International Legal Battle with Philip Morris’ Guardian (18 December 2015) A3; L Chang, ‘Plain Packaging and Indirect Expropriation of Trademark Rights Under BITS’ (2012) 31 Medicine and the Law 521; T Voon, ‘Assessing International Investment Claims against Plain Tobacco Packaging’ (2011) 14(3) Journal of International Economic Law 515.

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accorded to foreign entities over domestic ones. At the time of writing, discussions about compensation in this area were being offset against the liability of all of the industry for the costs of nuclear waste management.72 As these cases were being mooted, many countries started to back away from mechanisms that allowed corporations to challenge them. Brazil stated it would no longer sign any treaty with an investment state dispute mechanism. South Africa, Indonesia and India all expressed interest in doing the same. Venezuela and Nicaragua publicly criticized the International Centre for Settlement of Investment Disputes (ICSID) arbitration system, whilst Argentina and Guatemala said that in the future, all foreign investment disputes had to first go through the national courts. Ecuador, following the massive award against them, notified the ICSID that they withdrew their consent for the wholesale submission of disputes to the ICSID for arbitration, especially relating to disputes relating to the exploitation of natural resources. At the same point, Bolivia denounced the ICSID Convention. Australia, too, after the original initiation of their dispute with Philip Morris, foreswore future investor state dispute involvement, although it later changed its view on this matter.73 To such concerns, the international system began to change. Greater transparency in arbitration became much more common in all areas, as the rules of procedure for ICSID evolved and the United Nations adopted the Convention on Transparency in Treaty Based Investor State Arbitration at the end of 2014. This was deemed necessary, in the words of the Convention, ‘to take account of the public interest involved in such arbitrations’.74 Although the arbitration (as opposed to adversarial) for dispute resolution has been retained, work has been done to ensure that the people working under the ICSID are of highest moral calibre possible and most qualified in the specialized areas.75 The international system also began to change as the major templates for BITs have been updated. The new developments introduced a new generation of ‘safety valves’ by removing sensitive areas from possible dispute in arbitration. This means that good practice examples now stipulate that governments shall be allowed to take domestic measures against foreign companies which are necessary to protect human, animal, or plant life or health, provided they do not discriminate between foreign and domestic producers.76 72  B Chazan, ‘German Court Rules Utilities Can Claim for Nuclear Shutdown Decision’ Financial Times (6 December 2016) A10; Anon, ‘The Arbitration Game: Investor State Disputes’ Economist (11 October 2014). 73  M Jaime,) ‘Relying Upon Parties’ Interpretation in Treaty Based Investor State Dispute Settlement’ (2014) 46 Georgetown Journal of International Law 260. 74 Preamble of the 2014 Treaty. See https://​www.uncitral.org/​pdf/​english/​texts/​arbitration/​ transparency-​convention/​Transparency-​Convention-​e.pdf. 75  D Bishop,) ‘Investor-​State Dispute Settlement Under the Transatlantic Trade and Investment Partnership’ (2015) 30(1) ICSID Review 1; P Chase,) ‘TTIP, Investor State Dispute Settlement and the Rule of Law’ (2015) 14 European View 217; L Henry, ‘Responding to Public Concerns Over Investor State Dispute Settlement Clauses in Free Trade Agreements’ (2013) 12 Journal of Korean Law 197. 76  See A Baykitch, ‘Understanding Investor State Dispute Settlements’ LSJ. (August 2015) 58–​62; C Wang, ‘The Korea-​US Free Trade Agreement: Motivations for Investor State Dispute Settlement Provisions’ (2012) 18 UC Davis Journal of International Law and Policy 505; P Muchlinski, ‘General Exceptions in International Investment Agreements’ in M Cordonier-​ Segger (ed), Sustainable Development in World Investment Law (Kluwer 2011) 32–​35, 351–​53; J Vinuales Foreign Investment and the Environment in International Law (Cambridge University Press 2011) 366–​89; H Chen, ‘The

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(d). The taxation of transnational corporations The final area in which there has been a change with regard to transnational corporations has been with regard to their taxation. The context to this issue is that there has been a reduction in corporate taxes around the world since the early 1980s. The average for the member countries of the OECD, excluding the United States, has fallen from around 50 per cent in 1981 to 30 per cent in 2016 (with each country having a variety of what is taxed and what is not). In the United States, the statutory tax on capital came down from 50 per cent to 39 per cent in the same period (once state and local levies are included)—​but, once the panoply of deductions and credits are added, American corporate tax is in line with the average in the G7 countries. The problem is that a number of (non-​G7) countries now offer tax rates which are a fraction of the 30 per cent average, to which transnational corporations then place holding companies in the low tax jurisdictions to reap the benefits. The governments where the transnational corporations were based and where their substantive economic activities occurred then lose their ability to tax them because of aggressive international tax planning that artificially shifts profits to locations where they are subject to non-​taxation or reduced taxation. This is done by transnational corporations creating a complicated chain of ownership by being routed through up to dozens of companies and subsidiaries to the most tax efficient jurisdictions. For example, in Britain, over a four-​year period surrounding the end of the first decade of the twenty-​first century, Amazon, Facebook, Google, and Starbucks, despite generating more than £3.1 billion in profit from their British operations, managed to pay just £30 million in tax. This was all done by moving their profits between a multitude of companies in different countries where there were lower tax rates ​or profits could be written off against other losses. The total revenue lost to countries from such profit-​shifting exercises in 2017 was estimated to be between US$100 and US$240 billion per annum, or the equivalent of between 4 to 10 per cent of global income tax revenues.77 In 2017, the international community took a significant step towards confronting this problem of profit shifting for the purpose of tax avoidance with the Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Sharing. The core of the convention is to prevent treaty shopping, where companies go through the thousands of bilateral treaties available for businesses attempting to lower their tax bills, and exploit the differences between the country where they made most of their profit, and the countries where they base their headquarters of subsidiary companies, so as to pay lower taxes. The ideal is to create a much greater coherence between (over 1,000) international tax treaties, greater

Investor-​State Dispute Settlement Mechanism: Where to Go in the 21st Century?’ (2008) 9 Journal of World Investment and Trade 467. 77  Anon, ‘The Dark Arts’ Economist (17 September 2016) 12; K Campbell, ‘Starbucks:  Social Responsibility and Tax Avoidance’ (2016) 37 Journal of Accounting Education 38; J Fisher,) ‘Tax Havens, Tax Avoidance and Corporate Social Responsibility’ (2014) 94(1) Boston University Law Review 337.

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transparency, and dispute resolution through mandatory binding arbitration. This should reduce double taxation, increase tax certainty, and create an atmosphere in which it is more difficult for companies to shift to low or no tax environments where they have little or no economic activity. Although considerable uncertainty exists over how this will play out in the future, the significance of the international community starting to come together to ensure that transnational corporations do not avoid paying their fair share in tax, cannot be underestimated.78

12.  The Ethical Consumer In as much as the limits of voluntary corporate citizenship became apparent in the new century, so too did the limits of voluntary consumer behaviour, as manifested by the ‘ethical consumer’. This is a somewhat surprising conclusion, as by outward appearances, this area has been successful, as the marketplace now available for the ethical consumer is vast. It ranges from the ability of an individual consumer to choose different ‘ethical’ commodities at the supermarket for a few dollars, through to investing in ‘ethical’ funds, for a few million dollars. The ethical commodity market alone is worth over US$60 billion per annum, and ethical investments, about US$3 trillion per annum. This area is supplemented by over 450 different ethical labels operating in 197 countries. These range from labels which are primarily domestic and non-​governmental in operation (such as labels for free-​range eggs) through to domestic and governmental in operation (such as energy efficiency labels).79 78 The treaty can be seen at http://​www.oecd.org/​tax/​treaties/​multilateral-​convention-​to-​ implement-​tax-​treaty-​related-​measures-​to-​prevent-​BEPS.pdf. For commentary see Anon, ‘Gain and Pain’ Economist (17 December 2016) 60; M Webb, ‘Defining the Boundaries of Legitimate State Practice’ (2004) 11(4) Review of International Political Economy 787; R Palan, ‘Tax Havens and the Commercialisation of State Sovereignty’ (2002) 56(1) International Organization 151. 79  I Zaharia,) ‘The Growth of Environmentally Sustainable Consumerism’ (2015) 10 Economics, Management and Financial Markets 115; G Jeong, ‘The Effects of Energy Efficiency and Environmental Labels on Appliance Choice’ (2015) 8(3) Energy Efficiency. 3561; H Kyung, ‘Consumer Motives for Purchasing Organic Coffee’ (2015) 27(6) International Journal of Contemporary Hospitality Management 12; A Gutierrez ‘Can Consumers Understand Sustainability through Seafood Eco-​Labels?’ (2014) 6 Sustainability 8195; J Sallee, ‘Rational Inattention and Energy Efficiency’ (2014) 57(3) The Journal of Law and Economics. 781; L Panzone, ‘Saving Money vs Investing Money: Do Energy Ratings Influence Consumer Demand’ (2013) 38 Energy Economics 51; S Youn, ‘Strategic Supply-​chain Partnership’ (2013) 56 Journal of Cleaner Production 303; C Parker, ‘Voting With Your Fork: Industrial Free Range Eggs and Regulatory Construction of Consumer Choice’ (2013) 649(1) Annals of the American Academy of Political and Social Science 52; C Parker, ‘The Happy Hen on Your Supermarket Shelf ’ (2013) 10(2) Journal of Bioethical Inquiry 165; S Heinzle, ‘Dynamic Adjustment of Eco-​Labeling Schemes and Consumer Choice’ (2012) 21(1) Business Strategy and the Environment 60; D Ward, ‘Factors Influencing Willingness to Pay for the Energy Star Label’ (2011) 39(3) Energy Policy 1450; D Brounen, ‘On the Economics of Energy Labels’ (2011) 62 Journal of Environmental Economics and Management 166; I Gallaraga, ‘Price Premium for High Efficiency Refrigerators’ (2011) 19(7) Journal of Cleaner Production 2075; G Northen, ‘Greenwashing to Organic Label:  Abusive Green Marketing in an Increasingly Eco-​Friendly Marketplace’ (2011) 7 Journal of Food Law and Policy 101; L Anderson, ‘Animal Welfare and Eggs: Money on the Counter?’ (2011) 62(3) Journal of Agricultural Economics 565; J Chang, ‘The Price of Happy Hens’ (2010) 35 Journal of Agricultural and Resource Economics 406; R Stengel, ‘The Responsibility Revolution’ TIME (21 September 2009) 24–​28.

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Although most of these are very merit worthy initiatives and should be encouraged, what become apparent in the twenty-​first century was that ethical consumers, tend to be high-​income, educated, and professional who represent only between 10 to 20 per cent of all consumers. For the majority of people who do not have the same amount of disposable income, the cheaper, not the ethically preferred, product or processes (even if in their interests in the long term, such as energy efficiency products) will be purchased. This means that ethical purchases, although welcome, will not create fundamental changes. Consider, trade for organic and similar eco-​friendly coffees only occupy a small niche, of 2 per cent on average, of the coffee market in the developed world (although this differs greatly between countries, ranging from 20% in Britain and 3% in France) and barely exists in the developing world. This small market share for ethical coffee is but a subset of a much larger equation, that fair trade products make up a mere 0.1 per cent of the total economic value of goods traded worldwide. Such limits in market influence suggest that although ethical consumerism is a good thing that should be encouraged, there are large gaps in what it can achieve overall, and in no way can it be substituted for regulation when sustainability really needs to be achieved.80

80  B Chekima, ‘Examining Green Consumerism Motivational Drivers: Does Premium Price and Demographics Matter?’ (2016) 112(4) Journal of Cleaner Production 3436; G Schuitema, ‘Green Consumerism: The Influence of Product Attributes and Values on Purchasing Intentions’ (2015) 14(1) Journal of Consumer Behaviour 1; K Yuanhao, ‘Green, Greener, Greenest: Ecolabel Gradation and Competition’ (2015) 72 Journal of Environmental Economics and Management 164; F Asche, ‘Pricing of Eco-​Labels with Retailer Heterogeneity’ (2015) 53 Food Policy 82; M Gotlieb,) ‘Civic, Cooperative or Contrived? A Functional Approach to Political Consumerism’ (2015) 39(5) International Journal of Consumer Studies. 552; V Andorfer, ‘Do Information, Price or Morals Influence Ethical Consumption?’ (2015) 52 Social Science Research 330; N Babin, ‘The Coffee Crisis, Fair Trade and Agro-​ecological Transformation’ (2015) 39(1) Agroecology and Sustainable Food Systems 89; A Hunt, ‘Evaluating Behaviourally Motivated Policy: Experimental Evidence from the Lightbulb Market’ (2015) 105(8) American Economic Review 2501; M Johoon, ‘Labelling Energy Cost on Light Bulbs’ (2014) 97 Ecological Economics 42; L Akenji, ‘Consumer Scape-​goatism and the Limits to Green Consumerism’ (2014) 16 Journal of Cleaner Production 13; N Cole, ‘The Problem With Fair Trade Coffee’ (2014) 31(1): Contexts 50; B Wilson ‘Indebted to Fair Trade: Coffee and Crisis’ (2014) 41(1) Geoforum 84; G Fridell, ‘Fair Trade Slippages: Ideological Fantasies of Fair Trade Coffee’ (2014) 35(7) Third World Quarterly 200; P Yeow, ‘Bags for Life: The Embedding of Ethical Consumerism’ (2014) 125(1) Journal of Business Ethics 303; L Sekerka, ‘Self-​Regulation: The Moral Muscle in Ethical Consumerism’ (2014) 10(2) Journal of Marketing Development and Competitiveness 115; D Gromet, ‘Political Ideology Affects Energy Efficient Attitudes and Choices’ (2013) 110(23) Proceedings of the National Academy of Sciences 9314; L Pendry, Environmentally Friendly Parenting: Are Cloth Nappies A Step Too Far?’ (2012) 12(13) Young Consumers 5; B Tellman, ‘Not Fair Enough: Historic and Institutional Barriers to Fair Trade Coffee’ (2011) 10(2) Journal of Latin American Geography. 278; M Cowlett, ‘Do We Really Care About Sustainability?’ (2011) 2 Marketing 32; D Corrado, ‘Shedding Light on the Light Bulb Puzzle’ (2010) 57(1) Scottish Journal of Political Economy 48; M Munasinghe, ‘Can Sustainable Consumers and Producers Save the Planet?’ (2010) 14(1) Journal of Industrial Ecology 4; C Eriksson, ‘Can Green Consumerism Replace Environmental Regulation’ (2004) 26(3) Resource and Energy Economics 281; M Goodman, ‘Reading Fair Trade: The Moral Economy of Fair Trade Foods’ (2004) 23 Political Geography 891.

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13. Conclusion In the twenty-​first century, the international community finally started to set clear targets against which sustainable development could be managed, in first the MDGs (2000 to 2015) and then the Sustainable Development Goals (2015 to 2030). Although it is too early to assess the Sustainable Development Goals, for the MDGs very solid progress was made in every area, except with the environment. Other progress from the period included with overseas development assistance, in which the amounts given started to bounce back; the focus on how and to whom it was directed, also sharpened in a good way. The consolidation of the work and improved results for the Global Environmental Facility also displayed solid progress. This was matched by the topic of corruption and the need to combat it, becoming well recognized on the international stage. Finally, in the area of notable successes, although the international community is yet to develop the mechanisms necessary to slow down the speed by which financial transfers can occur around the planet and quickly cripple countries with debt, remarkably understated success was achieved in the first decades of the twenty-​first century with the work on containing, to a much more sustainable level than in the past, the debt problems of the world’s poorest countries. Where there is more ambivalent progress is with one of the foremost tools that is helping countries grow, which is free trade. The challenge for this century with free trade is multiple. First, the distributional impacts on the lower end of the labour market in developed countries needs to be reconciled. It will also be necessary to show that benefits of pollution havens that are being created are worth it. If progress could also be shown in using free trade to stop environmentally damaging subsidies, together with the incorporation of the most fundamental of labour standards into free trade agreements, then the case for free trade as an essential tool in the quest for sustainable development could be made. The need to ensure greater equity in the distributional benefits of growth is equally evident with the need to confront the widening chasm of inequality within countries. The twenty-​first century has, so far, shown that although size of the market for the ethical consumer has grown considerably, and their influence in these areas is clearly good, the limits of the ethical consumer, being no more than 10 per cent of any marketplace, puts their impact in perspective. A similar finding is also obvious with voluntary initiatives such as the Global Compact, which encourages corporations to reach for higher standards, above what is mandatory in many countries. Although very commendable, the small scale of its uptake speaks for itself. The push by some transnational corporations to continually push to ensure they make maximum profits also speaks for itself. While few of these entities would actually break laws, many would (and will) push them to their boundaries. However, success in at least two areas, such as with the international regulation of the most harmful products (such as tobacco), and starting to control the ability of such

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corporations to seek tax havens (where they had not generated their profits), suggests that in some areas, the global community is starting to push back. So too with the rights of transnational corporations in bilateral investment treaties, the pendulum appears to be swinging back towards a position which does not give too much undue power to foreign corporate investors.

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9 The Twenty-​first Century Environment

1. Introduction The cumulative environmental challenge of sustainable development in the twenty-​ first century is larger than anything humanity has ever had to deal with in the past. The good news is that solid progress is being reached in the understanding of issues in scientific terms and understanding what needs to be done. The bad news is twofold. First, although many of the environmental problems of earlier centuries are now being confronted, a new generation of difficulties is eclipsing what were the older difficulties. Secondly, much of the progress is being achieved by the wealthier parts of the planet, rather than the developing world. From population growth to climate change to unprecedented habitat and species loss, whether environmental sustainability can be achieved in the twenty-​first century is an open question.

2.  Population Growth At the turn of the twenty-​first century there were just over 6 billion people on Earth. By 2017, this had increased to 7.5 billion. Although the rate of increase of global population per decade is falling (from 12.6 every ten years between the turn of the century and 2010, and then to around 10.7 at 2020) the base numbers that are being expanded upon are massive. The best guess is that human population will reach 9.7 billion in 2050, before slowly moving on to 11.2 billion in the year 2100.1 During the 2015 to 2050 period, half of the world’s population growth is expected to be concentrated in nine countries. These include India (which will surpass China as the world’s most populous country by 2022), Nigeria, Pakistan, the Democratic Republic of the Congo, Ethiopia, Tanzania, and the United States of America (US). Although some developed regions are expected to fall in population (such as Europe from 738 million today to 706 million in 2050), most others are expected to expand. Africa is expected to account for more than half of the world’s 1  UN Department of Economic and Social Affairs, World Population Prospects: The 2017 Revision (UN 2017) 3-​9; J McNeill, The Great Acceleration: An Environmental History of the Anthropocene Since 1945 (Harvard University Press 2014) 41, 48; J Goldstone, ‘The New Population Bomb’ (2010) 89 Foreign Affairs 31; V Scott, ‘Disarming the Population Bomb’ (2010) 17(2) International Journal of Sustainable Development 120.

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population growth between 2015 and 2050, with the populations of twenty-​eight African countries projected to more than double. Nigeria’s population, currently the seventh largest in the world, is growing the most rapidly and will probably be the third largest country in the world by 2050. Included in this mix are many countries that are currently experiencing turmoil. South Sudan will go from 14 million today to 25 million in 2050. Nigeria will go from 200 million to 398 million, and Somalia from 12 million to 27 million. Other hotspot countries to watch are Yemen, which will go from 28 million to 47 million and Afghanistan, which is set to double its population from 32 million to 64 million.2 With the massive growth that had been warned about for the previous century finally beginning to arrive, the international community began to take the matter much more seriously. Although the global community had a further conference on population matters in the twenty-​first century in 2014 (which endorsed all of the initiatives that came before it and called for an intensification of action) the primary drivers in this area stem from both the Millennium Development Goals (MDGs) and the Sustainable Development Goals (SDGs). Goal 5 of the MDGs aimed to improve maternal health by achieving universal access to reproductive health and reduce the maternal mortality ratio by three-​quarters. By 2015, in addition to a progress on maternal mortality, good progress was also recorded with contraceptive prevalence among women aged 15 to 49, married or in a union, which increased from 55 per cent in 1990 to 64 per cent in 2015. However, this generic figure hid large differences between regions. Thus, whilst 75 per cent of married or in-​union women of reproductive age had access to contraception in North America, in Africa, the figure was only 33 per cent (thus making the continent the place with the highest fertility rates in the world, and the lowest use of modern contraceptives). Owing to this situation, in 2012, more than twenty countries made commitments and US$2.6 billion was pledged in increased resources to enable 120 million more women and girls to use contraceptives by 2020. When the SDGs were set a few years later in 2015, target 5.6 aimed, as part of a package of confronting global maternal mortality and improving healthcare, to achieve by 2030, universal access to sexual and reproductive health and reproductive rights as in accordance with the 1995 Programme of Action and the Beijing Platform for Action.3 The international community started to try to accelerate work in this area in 2017 when it became apparent that the goal to offer contraception to more than 100 million women (for their voluntary use) in the poorest countries in the world was well short of the target. This gap was being threatened by President Trump’s consideration to slash American funding (it is currently the world’s largest donor, at

2  UN Department of Economic and Social Affairs, The 2017 Revision (n 1). 3 United Nations, The Millennium Development Goals (UN 2016) 38–​ 41; UN Population Division, Trends in Contraceptive Use Worldwide 2015 (UN 2016 ST/​ESA/​SER.A/​349) 3–​7; J Sachs, The End of Poverty (Penguin 2015) 14–​16; M Fabic, ‘Meeting Demand for Family Planning Within a Generation: The Post 2015 Agenda’ (2015) 385(9981) The Lancet 1928; T Petruney, ‘Family Planning and the Post 2015 Development Agenda’ (2014) 92(8) Bulletin of the World Health Organisation 548; W Cates, ‘Family Planning and the Millennium Development Goals’ (2010) 329(5999) Science 1603.

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almost half of all bilateral funding in this area) for any family planning programmes associated with abortion, as it had done in earlier decades. This action will create a large gap as the US currently contributes about US$600 million per annum, to this area. The result of this challenge of the American withdrawal of assistance in this area, saw thirty-​seven governments come together and pledge an additional US$2.5 billion by 2020.4

3.  Famine Famine, the traditional partner of concerns about population growth, remains omnipresent in the twenty-​first century. The second section of the first objective of the MDGs was to move towards the eradication of hunger. The target was to halve the proportion who suffered from hunger. In many regards, by the time 2015 arrived, significant progress had been achieved. Despite famine making appearances in the Second Congo War up to 2004, a West African food crisis around 2005, followed by drought related famine in East, then West, Africa in 2011 and 2012, overall, towards 2015, it appeared that the trend of famine was declining. This was especially so when it was recognized that although 795 million people (including 90 million children) were still suffering from lack of food in 2015, the proportion of undernourished people in the developing world fell by almost half since 1990. Although most of this progress was achieved in India and China, even with the least developed countries (LDCs), under-​nourishment fell from 36 per cent to 29 per cent.5 The SDGs sought to build on this momentum by aiming to achieve, by the year 2030 an end to hunger and malnutrition, with a stepping stone of 2025 for children and old people. This goal is expanded upon by seeking to achieve food security, and the promotion of sustainable and resilient agriculture by doubling the agricultural productivity, and doubling the incomes of small-​scale food producers. All of this is to be achieved while preventing trade restrictions and distortions in world agricultural markets, with a special focus on helping to limit extreme food price volatility.6 On the topic of food aid, progress occurred in 2012, after decades of debate over what was the best way to help hungry people in foreign lands, when the Food Assistance Convention was concluded. Although not providing a comprehensive governance of food aid as many hoped for, it nonetheless set down very clear principles by which this area should work. These principles were designed to save lives, reduce hunger, improve food security, and improve the nutritional status of the 4  See L Ford, ‘2017: The Year We Lost Control of World Population Surge’ Guardian (9 July 2017). 5  United Nations, The Millennium Development Goals (UN 2016) 15–​27; UNDP, Assessing Progress in Africa Toward the Millennium Development Goals (UNDP 2015) 3–​5; UNDP, The Arab Millennium Development Goals Report (UNDP 2015) 5; S Fukuda, ‘The Millennium Development Hunger Target and the Competing Frameworks of Food Security’ (2014) 15(2) Journal of Human Development and Capabilities 147; UNCTAD, The Least Developed Countries Report (UNCTAD 2014) 14–​19; W Easterly, ‘How the Millennium Development Goals Are Unfair to Africa’ (2009) 37(1) World Development 311; D Fanelli, ‘The Lost Millions’ (2007) New Scientist 14. 6  For the SDG objectives see goals 2(b) and 2(c).

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most vulnerable populations in a timely, effective, and efficient manner that avoids dependencies and negative impacts on local production. Wherever possible, it should be untied cash-​based food assistance based on needs, done in a transparent manner. Food aid should not be re-​exported, or promote the market development objectives of the donor. With these principles in place, each of the signatories then pledged to make a minimum annual commitment of food assistance (in either food, cash, or other forms of assistance), and promised that the provision of their assistance would not be ‘tied directly or indirectly, formally or informally, explicitly or implicitly, to commercial exports of agricultural products or other goods and services to recipient countries’.7 Despite the progress of the MDGs, the noble aims of the SDGs, and the success of the Food Assistance Convention, two large challenges face this area. The first is that it appears in 2017 that humanity is about to be hit by a wave of unprecedented famine as 20 million people are currently identified as at risk of starvation in Nigeria, Somalia, South Sudan, and Yemen. This situation is supplemented by a further 50 million people who will need food assistance, but will probably not starve to death if they fail to obtain it. In all of these instances, famine has been identified as being caused by war, drought, and poor management. It is not attributed to an overall shortage of food in ecological terms. Whether this equation will hold true when these populations double within the next fifty years is a matter of debate.8 The second large challenge is how are these particular SDGs goals going to be reconciled with the conflicting goals of food self-​sufficiency and free trade? That is, for many countries, especially those which are poor, the idea of being self-​sufficient in food, and thereby achieve ‘food security’ is a long-​standing objective. To achieve such security, countries often use subsidies to protect and encourage their domestic agricultural production.9 Originally, the World Trade Organization dealt with this 7  Re art 5(9), the Food Assistance Convention is reprinted in (2012) 52(1) ILM 354. See in particular arts 1, 2(a), 2(b); L Chimia, ‘Finding Balance in the 2012 Food Assistance Convention’ (2016) 65(1) International and Comparative Law Quarterly 99; V Groueva, ‘Effectiveness of Foreign Food Aid Initiatives’ (2013) 12(4) International Journal of Disabilities and Human Development 401; E Lentz, ‘The Timeliness and Cost-​Effectiveness of Food Aid’ (2013) 49 World Development 9; Editor, ‘Making the Most of Food Aid’ (2013) 1(2) Global Health, Science and Practice 141; OECD, The Development Effectiveness of Food Aid: Does Tying Matter? (OECD 2012) 13–​19; C Kuhlgatz, ‘Food Aid and Malnutrition’ (2012) 48(12) Journal of Development Studies 1765; D Little, ‘Food Aid Dependency: Myth or Realty’ (2008) 36(5) World Development 860; D Maxwell, ‘Global Factors Shaping the Future of Food Aid’ (2007) 31(1) Disasters 25; C Barrett, ‘Towards a Global Food Aid Compact’ (2006) 31 Food Policy 105. 8  Anon, ‘The Third Horseman Returns’ Economist (1 April 2017) 37–​39; Anon, ‘Drought and Famine:  Unprecedented Situation’ (2017) Africa Research Bulletin. 54(2):  21598–​21600; Hall, C (2017) ‘The Impact of Population Growth and Climate Change on Food Security In Africa: Looking Ahead to 2050’ (2017) 15(2) International Journal of Agricultural Sustainability 124; A de Waal, ‘On Famine Crimes and Tragedies’ (2008) 372(9649) The Lancet 1538; C O’Grada, Famine: A Short History (Princeton University Press 2009, New Jersey) 157. 9  Food security is defined in terms of all people, at all times, having access to safe and nutritious food that is in sufficient enough quantities to maintain a healthy and active life. The underlying factors at play are availability (quantity), access (affordability), and suitability (nutrition). See J Hopma, ‘Political Geographies of Food Security and Food Sovereignty’ (2014) 8(11) Geography Compass 773; J Lucy, ‘Comparing Food Security and Food Sovereignty Discourses’ (2014) 14(2) Dialogues in Human

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conflict between objectives in its Agreement on Agriculture. This has the general goal of substantial and progressive reductions in agricultural supports and protection over a period of time for all countries, towards an overall free trade in food. However, it was accepted that ‘food security’ was a legitimate national concern and that the special needs of the LDCs and net food importing countries in particular had to be recognized. Accordingly, the ability of the very poor to use subsidies to encourage agricultural and rural development was agreed.10 Although this exception was carved out for the poorest countries in times of food scarcity, this was not necessarily envisaged to cover all developing countries. This matter came to a head in 2008 when the Doha trade-​talks collapsed in the wake of the so-​called ‘food crisis’ after the US refused to accept India and China’s request for a special safeguard mechanism that would have protected poor farmers against a sudden surge of agricultural imports from the developed world. The context was the sudden escalation in the price of food, with key commodities, such as cereals’ reaching prices 2.8 times higher than it had been eight years earlier at the turn of the century. This sudden increase (primarily because of a sudden spike in demand for biofuels which diverted land otherwise used for agricultural purposes) forced many developing nations to respond by stopping trade in their agricultural products to calm their own domestic markets as the poor suddenly found themselves unable to pay the increased prices for food.11 The international community responded to the food crisis with summits in 2008 and 2009 to which a United Nations-​wide High-​level Task Force on the Global Food Security Crisis, including the WTO and twenty-​one other UN organizations, emerged. The Comprehensive Framework for Action followed, with the guiding principle of working towards food security in terms of availability, access, stability, and utilization. The 2009 World Food Summit followed and added four principles to help in this area in the future. These included a coordinated and responsive international system; investing in national lead programmes and partnerships; whilst also tackling hunger of the most vulnerable in the shorter term and establishing food security in the medium and longer term. Part of this commitment involved

Geography 168; P Pinstrup, ‘Food Security: Definition and Measurement’ (2009) 1(1) Food Security 1; K Hussein, ‘Food Security: Rights, Livelihoods and the World Food Summit’ (2002) 36(6) Social Policy and Administration 626; M Biswas, ‘The World Food Summit’ (1997) 22(4) Food Policy 373. 10  For the traditional argument about food security and the problems of free trade in this area, see J McMahon, Agricultural Trade, Protectionism and the Problems of Development (University of Leicester Press 1992) 229–​48; M Ritchie, ‘Free Trade versus Sustainable Agriculture’ (1992) 22 Ecologist 223. For the Agreement on Agriculture see MTN/​FA II-​A/​A-​3. Note the preamble and arts 6(2), 15, and 16. In practice, a series of ‘boxes’ were created for different classes of subsidies that were to be reduced (amber), forbidden (red), limited (blue), or non-​trade distorting (green). 11  Y Wusheng, ‘Trade Policy Responses to Food Price Crisis’ (2014) 13(4) World Trade Review 565; S Cho, ‘The Demise of Development in the Doha Round Negotiations’ (2010) 45 Texas International Law Journal 573; L Kristoufek, ‘Correlations Between Biofuels and Related Commodities Before and During the Food Crisis’ (2012) 34(5) Energy Economics 1380; S Robinson, ‘WTO Breakdown’ TIME (11 August 2008) 5; D Headey, ‘Anatomy of a Crisis: The Causes and Consequences of Surging Food Prices’ (2008) 39 Agricultural Economics 375; P Rosset, ‘Food Sovereignty and the Contemporary Food Crisis’ (2008) 51(4) Development 460.

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the pursuit of WTO-​consistent, non-​trade-​distorting special measures aimed at protecting developing (and LDCs in particular) from the effects of excessive price volatility.12 Although this was essentially a reiteration of the principles of the Agreement on Agriculture, beneath the headlines, a large debate broke out over how far free trade in food should go. On the pro-​trade side, the former General Director of WTO, Pascal Lamy, argued that the solution was to be found in food aid and the system devised within the Agreement on Agriculture. His bottom line was international trade was not the source of the food crisis. He argued international trade has reduced the price of food over the years through greater competition and enhanced consumer purchasing power. The solution to famine he argued, was in more trade in agricultural produce and economic growth, not less. The opposite view, as articulated by the United Nations Rapporteur on the Right to Food, Olivier de Schutter, was that it was necessary to limit excessive reliance on international trade in the pursuit of food security. This was necessary so that those unable to purchase food at market prices would have access to something.13 The only movement in this area of trade and agriculture was at the end of 2013 when the so-​called ‘Bali Package’ was agreed under the auspice of the WTO. This aimed at lowering import tariffs and agricultural subsidies, with the intention of making it easier for developing countries to trade with the developed world. Here, developed countries are meant to abolish hard import quotas on agricultural products from the developing world, and allow them to export to agreed limits to the developed world. Moreover, a so-​called ‘peace clause’ with a duration of four years was agreed, allowing developing countries to purchase food from their own farmers at market rates, for food security reasons, even though this was a clear market 12  See paras 22 and 23 from the Declaration from the 2009 World Food Summit WSFS 2009/​ 2. See also the United Nations System High-​level Task Force on Global Food Security, Food and Nutrition Security for All through Sustainable Agriculture and Food Systems (FAO 2012) 3–​4; L Willetts, ‘World Food Security’ (2015) 45(6) Environmental Policy and the Law 256; A Yngve, ‘World Food Summits: What For and What Value?’ (2010) 13(2) Public Health Nutrition 150; Anon, ‘Only A Few Green Shoots: The World Food Summit’ The Economist (7 June 2008) 56–​57. 13  G Rundgren, ‘Food: From Commodity to Commons’ (2016) 29(1) Journal of Agricultural and Environmental Ethics 103; FAO, State of Food Insecurity in the World (FAO 2015) 7–​10; C Pirkle, ‘Re-​Envisioning Global Agricultural Trade: Time for a Paradigm Shift’ (2015) 22(1) Global Health Promotion 60; A Farsund, ‘Food Security and Trade: Reconciling Discourses in the FAO and the World Trade Organization’ (2015) 7(2) Food Security 383; S Borras, ‘Land and Food Sovereignty’ (2015) 36(3) Third World Quarterly 600; K Burnett, ‘What Place for International Trade in Food Sovereignty’ 41(6) Journal of Peasant Studies 102; N De Paula, ‘Agricultural Trade Negotiations and the Challenges of Food Security’ (2014) 3(3) Agrarian South: The Journal of Political Economy 313; A Maniklal, ‘The Impact of Trade Liberalisation on Food Security’ (2014) 33(12) Asian Journal of Research in Social Sciences and Humanities 161; R Lee, ‘The Politics of International Agri-​Food Policy’ (2013) 22(2) Environmental Politics 216; G Otero, ‘The Political Economy of Food Security and Trade’ (2013) 78(3) Rural Sociology 1; K Chikhuri, ‘Impact of Alternative Agricultural Trade Liberalisation Strategies on Food Security’ (2013) 40(3) International Journal of Social Economics 188; A Sarris, ‘Food Commodity Price Volatility and Food Insecurity’ (2013) 2(3) Bio-​Based and Applied Economics 350; M Caldwell, ‘Renegotiation of the WTO Agreement on Agriculture’ (2013) 62 International and Comparative Law Quarterly 865; T Tanaka, ‘Does Agricultural Trade Liberalisation Increase Risks of Supply Side Uncertainty’ (2011) 36(3) Food Policy. 368; W Moon, ‘Is Agriculture Compatible with Free Trade?’ (2011) 71 Ecological Economics 13; A Sen, Development as Freedom (Anchor 1999) 160–​63.

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distortion. Although the Bali Package was the first progress on the Doha Round after over a decade of negotiation, very considerable questions over the trade in agricultural products in general and the long-​term role of food security in particular within trade negotiations remain.14

4.  Habitat Loss By the twenty-​first century, the need to protect habitat had become paramount. Not only was our own species clearly recognized as being increasingly dependent (in ecological, social, and economic terms) on the ecosystems around us, but also, habitat loss was acknowledged as the primary cause of species extinction (as opposed to over-​harvesting, which had been the primary cause for the previous five centuries).15 To meet this need to stop habitat loss, the MDGs called for a significant reduction in the rate of loss of biodiversity by 2010, to which the parties to the Convention on Biological Diversity created the Aichi Targets. Target 11 aims to achieve by 2020 ‘at least 17% of terrestrial and inland water, and 10% of coastal and marine areas, especially areas of particular importance for biodiversity and ecosystem services, are conserved through effectively and equitably managed, ecologically representative and well-​connected systems of protected areas and other effective area-​based conservation measures’. The 10 per cent target for coastal and marine areas was then incorporated into the SDGs in 2015, but the goal for protected areas for terrestrial and inland waters was not.16 In broad numbers, the international community has responded well to these goals, with some 209,429 protected areas, covering 32,868,673 square kilometres, being recorded in 2016. This number is up from 9,214 sites, covering 2,400,000 kilometres in 1962. In percentage terms, protected ecosystems cover just under 15 per cent of land and just over 10 per cent of coastal marine areas worldwide. This last figure works out at slightly over 5 per cent of the global ocean and nearly 13 per cent of territorial waters.17 The difficulty with these numbers is that counting protected areas is not a fool proof measure of the effectiveness of habitat conservation. If areas are not well designed to encompass what is important and well financed to ensure their goals, they are often little more than ‘paper parks’. As it stands, less than half of the world’s ecoregions (ie, areas of special ecological significance) have at least 17 per cent of their area in protected boundaries and only one-​third of the 232 marine ecoregions 14  R Wilkinson, ‘The WTO in Bali: What MC9 Means for the Doha Development Agenda’ (2014) 35(6) Third World Quarterly 1032. 15  H Pereira, ‘Scenarios for Global Biodiversity in the 21st Century’ (2010) 330(6010) Science 1496; T Brooks, ‘Habitat Loss and Extinction in the Hotspots of Biodiversity’ (2002) 16(4) Conservation Biology 909. 16  See Goal 14.5 for the marine protected areas. Millennium Ecosystem Assessment, Ecosystems and Human Well Being: The Biodiversity Synthesis (World Resources Institute 2005) 10. 17  UNEP/​WCMC, Protected Planet Report 2016 (UNEP 2016) 5–​10.

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have at least 10 per cent of their area protected. Similarly, less than 20 per cent of the key hotspots of biodiversity (where the concentration and richness of biodiversity is highest) are completely protected. This means that about 12 per cent of the mammal, bird, turtle, and amphibian species of the world are not found in any protected area. In Africa, 26 per cent of threatened species are not protected, and in Madagascar, 82 per cent of all threatened species and 33 per cent of all critically endangered are not covered by a protected area.18 A good example of the gap between rhetoric and actual need in this area is with marine protected areas and the need to focus on the habitats which are the hotspots of biodiversity, of which coral reefs are the exemplars. Evidence already shows that marine protected areas are excellent in terms of spill-​over benefits, which often provide striking examples of the potential synergies between conservation and sustainable use, because if the correct marine area is preserved, surrounding fish stocks will increase. At the macro level, studies suggest that if 20 per cent of the total of the critical areas of the existing fishing areas were closed, although there would be a short-​ term economic loss, longer terms benefits in the form of increased and sustainable fisheries would be worth US$70 to US$80 billion per annum. For such spill-​over benefits to work, the marine protected areas must not only be well policed, but they must be placed over the important marine habitats, of which ecosystems such as coral reefs are at the top of the list. Coral reefs, including both cold (often known as seamounts) and warm water corals, occupy less than one-​ quarter of 1 per cent of the marine environment. Despite their small geographical size, they generate more types of animal than all other marine habitats put together, ‘giving birth’ to six out of ten species in the ocean. These ecosystems remain home to more than a quarter of all known marine fish species and cumulatively they may hold close to 1 million species. They are estimated to be involved in the production of nearly two-​thirds of the total global fish harvest.19 The problem is that, although the international community accepts the importance of such high value marine areas, they are under-​represented in all of the international habitat protection mechanisms, with only slightly more than 400 marine protected areas worldwide containing coral reefs and at least forty countries lacking any marine protected areas for conserving their coral reef ecosystems at all. Although the best of the best of the coral reefs (such as Great Barrier off Australia) are recognized in mechanisms such as the World Heritage Convention, there is no stand-​ alone convention (such as with the Ramsar for wetlands) dealing, thematically, with this one critical marine ecosystem and the need for their conservation. The only 18 E Canadas, ‘Hotspots Within Hotspots:  Environmental Drivers and Implications for Conservation’ (2014) 170 Biological Conservation 282; D Tittensor, ‘Temperate Hotspots’ (2013) 501(7468) Nature 494; UNEP/​WCMC, Protected Planet Report 2012 (UNEP 2012) 18. 19  C Cvitanovic, ‘Critical Research Needs for Managing Coral Reef Marine Protected Areas’ (2013) 114 Journal of Environmental Management 84; B Lascelles, ‘From Hotspots to Site Protection: Identifying Marine Protected Areas’ (2012) 156 Biological Conservation 5; FAO, The State of the World Fisheries and Aquaculture (FAO 2012) 164–​69; European Communities, The Economics of Ecosystems and Biodiversity (Welzel 2008) 39–​40; C Mora, ‘Coral Reefs and the Global Network of Marine Protected Areas’ (2006) 312(5781) Science 1750.

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international body which explicitly deals with coral reefs, the International Coral Reef Initiative, remains voluntary and soft.20 The most important habitat on land to protect in the twenty-​first century is forests. These, as had been known for the last forty years, have very strong ecological, economic, social, and ethical importance. They are home to more than 80 per cent of all terrestrial species of animals, plants, and insects, of which 1.6 billion people depend upon for their livelihood. They are also a critical component in confronting climate change.21 The recognition of the importance of these ecosystems in international policy in the twenty-​first century began with the MDGs and the 2007 Non-​Legally Binding Instrument on All Types of Forests. In 2010, the parties to the Convention on Biological Diversity went further than the weak promises agreed in 2007 (for sustainable forestry worldwide, reverse forest loss, and more forests within protected areas) and committed themselves to at least halving the rate of deforestation by 2020. When the international community considered forests in the SDGs, they backed away from this hard target, preferring the goals of, by 2020, the sustainable management of all types of forests, halting deforestation, restoration of degraded forests, and substantially increasing afforestation.22 The good news is that formally protected forest areas increased by more than 50 per cent between 1990 and 2015, with this growth being particularly strong in the topics. This meant that the global total of forests protected is 16.3 per cent (up from 7.7% in 1990). The problem is twofold. First, many of the protected areas are fragmented and not necessarily placed over the most important ecological hotspots. Secondly, despite such goals at the international level and the increase in protected areas including forests, in the twenty-​first century, between 2000 and 2015, the world’s forests continued to shrink. Specifically, the percentage of global land area under forestry fell from 31.6 per cent in 1990 at 4,128 million hectares down to 3,999 million in 2015, about 30.6 per cent in 2015—​the loss is an area about the size of South Africa. Total forest area changes between 2010 and 2015 was a decrease of 0.08 per cent. The difference from earlier decades was that the pace of forest loss was clearly slowing down by over 50 per cent on the rate in the 1990s. What this overall figure hides is that, as net forest increases occur in the temperate and boreal zones with replanting as well as regeneration in some abandoned parts in the tropics, in other parts of the world (such as Africa and Latin America) heavy deforestation continues to occur. In these 20  For the international recognition of the importance of coral reefs and soft targets in this area see CBD Aichi Target 10. For the Rio+20 The Future We Want, note para 176. See also UNEP, Conventions and Coral Reefs (UNEP 2004) 5–​15; K Kushlan, ‘Coral Reefs: The Failure to Regulate at the International Level’ (2010) 33(2) University of California, Davis 317–​38; M Mulhall, ‘Saving the Rainforests of the Sea: An Analysis of International Efforts to Conserve Coral Reefs’ (2009) 19(2) Duke Environmental Law and Policy Forum 321. 21  L Tracewski, ‘Towards Quantification of the Impact of 21st Century Deforestation’ (2016) 30(5) Conservation Biology 1070; A Campbell, ‘Protecting the Future: Carbon, Forests, Protected Areas and Local Livelihoods’ (2008) 9(3) Biodiversity 117. 22  The MDG is goal 7. The CBD (Aichi) goal is targets 5 and 7; the SDG is Goal 15. The 2007 Non-​ Legally Binding Principles can be found at E/​2007/​INF/​2/​Add.2. For their recognition within Rio+20 see paras 193 and 194.

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countries, large-​scale commercial agriculture accounts for about 40 per cent of deforestation in the tropics and subtropics (but 70% in Latin America), local subsistence agriculture for 33 per cent, infrastructure for 10 per cent, urban expansion for 10 per cent, and mining for 7 per cent.23 The body which should have the most bite in this area is the International Tropical Timber Organization. Here, although its International Tropical Timber Agreement was updated in 2006, the good work of the organization around sustainability indicators remains overshadowed by other agendas which makes any movement towards binding standards remote. Accordingly, globally, although about 16.3 per cent of all forests are under some kind of protected area regime, the amount of forestry under an actual management plan is only 53 per cent (despite all countries pledging to have forest laws and plans) and only 11 per cent of timber is under any form of international certification (and of this, over 90% is for boreal and temperate forests), by which its sustainability can be attested. Again, the differences between the tropics and the boreal areas are great. While the boreal forests are being better managed and stronger voluntary sustainability indicators continue to evolve through a separate process, in the tropics, less than 10 per cent of all of the productive tropical forests are managed sustainably. Similarly, as the developed world has progressively come to stop the importation of wood from illegal logging (between 15% and 30% of all timber in trade, with an estimated 75% coming from Brazil and Indonesia), this problem continues to expand elsewhere, with sales to countries which are less discerning about sustainability.24 The final area of habitat conservation to note is desertification/​land degradation. The need to confront this problem is another area where the international community has again (after repeated failures from the 1970s to the turn of the century) attempted to reinvigorate progress in the twenty-​first century. Accordingly, in 2007, the parties to the Desertification Convention regalvanized themselves, from which countries began unilaterally to adopt their own land degradation neutrality targets. These targets, finally, provided a foundation from which progress can be monitored and goals moved towards. These objectives then overlapped with the 2015 SDGs, which aim, by 2030, to combat desertification, restore degraded land, and soil,

23  J Bowker, ‘Effectiveness of Africa’s Tropical Protected Areas for Maintaining Forest Cover’ (2017) 31(3) Conservation Biology 559; FAO, The State of the World’s Forests (FAO 2016) 5–​8; FAO, Global Forest Resource Assessment 2015 (FAO 2015) 7–​20; D Morales, ‘Status and Trends in Global Primary Forest, Protected Areas and Designated Areas for Conservation of Biodiversity’ (2015) 352 Forest Ecology and Management 68; W Laurance ‘Averting Biodiversity Collapse in Tropical Forest Protected Areas’ (2012) 489(7415) Nature 290. 24  K Macdicken, ‘Global Progress Towards Sustainable Forest Management’ (2015) 352 Forest Ecology and Management 47; Chatham House, Tackling Illegal Logging and Related Trade (Royal Institute of International Affairs 2015) 3–​7; C MacKenzie, ‘Future Prospects for International Forest law’ (2012) 14(2) The International Forestry Review 249; F Peace, ‘Still a Long Way to Go to Make Logging Sustainable’ (2011) New Scientist 12; D Humphreys, ‘Neoliberalism and the Limits of International Forest Policy’ (2009) 11(5) Forest Policy and Economics 319; Anon, ‘Illegal Loggers Cut-​Off’ (2009) New Scientist 7.

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including land affected by desertification, drought, and floods, and strive to achieve a land degradation-​neutral world.25 Whether these regalvanized goals can start to reverse the accelerating trend (12 million hectares per annum) of arable land lost to drought and desertification, in addition to the existing (52 per cent) of land used for agriculture which is already moderately or severely affected by soil degradation, and impacting upon 1.5 billion people, is yet to be seen.26

5.  Biodiversity Loss In the year 2000, the MDGs aimed to achieve a significant reduction in biodiversity loss by 2010. In 2010, the parties to the Convention on Biological Diversity changed this target to, by 2020, that the extinction of known threatened species has been prevented and their conservation status, particularly of those most in decline, has been improved and sustained. The objective then entered the SDGs in 2015 as the target to take urgent and significant action to reduce the degradation of natural habitats, halt the loss of biodiversity and, by 2020, protect and prevent the extinction of threatened species.27 Although these targets are all welcome, the problem is that the loss of species appears to be continuing at an unprecedented rate. That is, the background rate of extinction (without human involvement) is meant to be about one mammal species every 400 years and one bird species every 200 years. When the mass extinctions are factored in, it appears that the rate of extinction is about one species every one and one-​ninth years. Conversely, the current rate of extinction may be, depending on the numbers used, somewhere between fifty and 10,000 times in excess of the earlier extinction spasms. Estimates in 2010 suggested that the extinction rate was more than 100 extinctions for every million species per annum, and rising. The Millennium Ecosystem Assessment and the Global Biodiversity Outlook put the current extinction rate at 1,000 times higher than was previously typical over Earth’s history, and likely to accelerate in the near future.28 25  Target 15.3. For the Rio+20, The Future We Want affirmation see para 205. For commentary see L Stringer, ‘What Contribution Towards Combating Global Desertification and Implementing the Convention to Combat Desertification’ (2008) 72(11) Journal of Arid Environments 2065; A Tal, ‘Degraded Commitments: Reviving International Efforts to Combat Desertification’ (2007) 13(2) The Brown Journal of World Affairs 187–​97; G Stafford, ‘On Our Failure to Control Desertification’ (1998) 1(2) Environmental Science and Policy 71. 26  R Pravalie, ‘Drylands Extend and Environmental Issues: A Global Approach’ (2016) 161 Earth-​ Science Review 259; M Zika, ‘The Global Loss of Net Primary Production Resulting from Human Induced Soil Degradation in Drylands’ (2009) 69(2) Ecological Economics 310. 27  For the MDG see Goal 7. For the CBD and Aichi targets see goal 12, and for the SDGs, goal 15. See also L Campbell, ‘Producing Targets for Conservation’ (2014) 14(3) Global Environmental Politics 41. 28  V Kapos, ‘Seeing the Forest Through the Trees’ (2017) 355 (6323) Science 347; S Butchart, ‘Lessons from the Aichi Targets’ (2016) 9(6) Conservation Letters 457; UNEP, Global Biodiversity Outlook 5 (UNEP 2016) 2–​10; D Tittensor, ‘A Mid Term Analysis of Progress Toward International Biodiversity Targets’ (2014) 346(6206) Science 241; F Pearce, ‘Earth’s Nine Lives’ (2010) New Scientist 33; Secretariat, Biodiversity Scenarios: Projections of the 21st Century Change in Biodiversity and Associated

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The difficulty with such projections is that a vast number of species remain either unknown ​or unstudied for conservation status. It is only with what species are known and assessed that certainty (only 160,000 species will have been assessed by 2020, out of perhaps 9 to 10 million species on Earth) can be adduced. What this means, is that whilst it is correct that the number of endangered species is increasing (more than 23,000 species are currently threatened with extinction, including 41% of amphibians, 34% of conifers, 33% of reef building corals, 25% of mammals, and 13% of birds) this may be owing to more evidence coming to light, rather than actual status trends. Despite this caveat, the evidence suggests that since the 1990s, the rate of decline of species for what is already well known (such as with birds, mammals, and amphibians) is continuing to worsen. This worsening is primarily attributable to, inter alia, over-​harvesting (legal and illegal), alien species, pollution, and especially habitat loss. Moreover, additional evidence, when looking at all species (not just those that are classified as endangered) suggests that their numbers are falling rapidly, with up to 50 per cent of all individual animals being lost in recent decades, with over 80 per cent of their range disappearing over the previous 100 years.29

6.  Unsustainable Fisheries At the World Summit in 2002, those present pledged to maintain or restore fisheries stocks to levels that can produce maximum sustainable yield with the aim of achieving these goals for depleted stocks, on an urgent basis, not later than 2015. The problem was that, by this date, although the ocean was continuing to provide about 80 million tons of sea-​life per annum (more or less what it was since the 1980s), the composition of fish stocks was continuing to change. That is, by 2014, fish stocks within biologically sustainable levels had decreased from 90 per cent in 1974 to 68.6 per cent. Thus, 31.4 per cent of fish stocks (it was 10% in 1974) were estimated as being fished at biologically unsustainable levels and therefore overfished.30 Owing to this problem, in 2015, the SDGs, made sustainable fish stocks one of their objectives. The aim is, by 2020, to effectively to regulate harvesting and end overfishing, including illegal, unreported, and unregulated fishing and destructive fishing practices and implement science-​based management plans, in order to restore Ecosystems and Services: Number 50 (CBD Technical Series 2009); Millennium Ecosystem Assessment, Ecosystems and Human Well Being: The Biodiversity Synthesis (World Resources Institute 2005) 3–​4. 29 G Ceballos, ‘Biological Annihilation Via the Ongoing Sixth Mass Extinction Signalled by Vertebrate Population Losses and Declines’ (2017) 114(28) Proceedings of the National Academy of Sciences doi:  10.1073/​PNAS.1704949114; C Wolfe, ‘Range Contractions of the World’s Large Carnivores’ (2017) Royal Society Open Science doi: 10.1098/​rsos.170052; Anon, ‘The Total Number of World Species Is . . .’ (2011) New Scientist 15; A Barnosky, ‘Has the Earth’s Sixth Mass Extinction Already Arrived?’ (2011) 471(7336) Nature 51; UNEP, Global Biodiversity Assessment (Cambridge University Press 1995) 111. 30  D Pauly, ‘Comments on the FAOs State of the World Fisheries’ (2017) 77 Marine Policy 176.

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fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield.31 In many regards, as the twenty-​first century moved on, despite the figures noted above, a mild optimism became possible in some areas. The new conventions that evolved in the new century were designed to be much more progressive and sustainable than those the earlier generations of regional fisheries agreements, and some of the original fisheries agreements have either revitalized themselves, and adopted amended conventions, or strictly upheld standards from their original documents. This reorientation has, for example with the North Atlantic Fisheries Organization, seen moratoriums on eight of the nineteen fish stocks they regulate. Others, like the International Commission for the Conservation of Atlantic Tuna has, after years of external criticism about unsustainable practices, created strict recovery plans for Eastern Bluefin Tuna, as well as adopting new standards on science, compliance, and governance. Also, compared to the late twentieth century, domestic progress on the creation of fisheries management is much more evident than it used to be. Fishery plans are now the rule, not the exception, for the overwhelming majority of countries. More than half of all countries now have stock specific reference points (for high value species against which limits are set), and over 93 per cent of all countries have measures (primarily inspector monitoring, with 70 per cent having vessel monitoring schemes) to control fishing in their exclusive economic zones. The one area which has remained problematic is bycatch, although over 50 per cent of fishing countries have started to apply measures to control it (such as prohibiting discards). Although these domestic measures are welcome, the overall scale of the bycatch problem globally, at around 20 million tons each year, or around 23 per cent of marine landings, continues directly to threaten sustainability at a number of levels.32 Where the debate on fisheries changed in the twenty-​first century was with the concern that emerged in the 1990s of illegal, unregulated, and unreported (IUU) fishing. Illegal fishing refers to activities conducted by national or foreign vessels in waters under the jurisdiction of a state, without the permission of that state, or in contravention of its laws and regulations. Unregulated fishing refers to fishing activities in the area of application of a relevant regional fisheries management organization conducted by vessels without nationality, or by those flying the flag of a state not party to that organization in a manner that is not consistent with, or which contravenes, the conservation and management measures of that organization. Up to

31  Section 31(a) of the 2002 Plan of Implementation; Target 14.4 of the SDGs, and FAO, The State of the World’s Fisheries and Aquaculture (FAO 2016) 7–​8; C Costello, ‘Global Fishery Prospects Under Contrasting Management Regimes’ (2016) 113(18) Proceedings of the National Academy of Sciences 5125. 32  The new fisheries agreements were in 2001 for the South East Atlantic, and the 2000 Convention for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean. See J Senko, ‘At Loggerheads Over International Bycatch’ (2017) 76 Marine Policy 200; COFI, Progress in the Implementation of the Code of Conduct for Responsible Fisheries (COFI/​2014/​ Inf.15/​Rev.1); M Hosch, ‘The FAO Code of Conduct for Responsible Fisheries’ (2011) 35(2) Marine Policy 189.

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one-​fifth of all catches worldwide may come from IUU sources, although this may be higher for some high value species. The economic value of this IUU fishing is estimated at between US$10 to US$23 billion per annum, of which about US$2 billion comes from the high seas. Such fishing not only directly threatens the conservation of many fish stocks but is also direct theft from the revenues of many countries, and developing countries in particular, with Africa alone losing over US$1 billion per annum owing to IUU.33 It was with this problem that the international community achieved success in 2016, when the new Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fisheries came into force. This mandates that specific ports be designated for use by foreign vessels bringing in seafood (or even refuelling). The ships must request permission to enter ports prior to arrival, and provide all of the information about what catch they have on board, their fishing gear, and permits to fish. The port state can then inspect the foreign visiting fishing vessel, to ensure it is licensed and complies with fisheries agreements. Non-​compliance is dealt with via sharing information to the flag state and neighbouring countries and possibly banning the entry of that vessel to ports in the future. Although this is clearly an advance in deterring IUU fishing, the next step, whereby all legitimately caught fish can be easily identified and tracked, through what is known as a catch documentation scheme, is not yet current best practice. That is, although some regional fisheries implement this (primarily for toothfish from around Antarctica and some tuna species), from which fish without the correct catch documentation are unable to be landed for market, the international community is still feeling its way forward. Although such catch documentation measures will not stop the problem of IUU fish taken directly to countries that are not concerned about such matters, current measures for catch documentation are certainly steps in the correct direction.34

7.  Climatic Change In the twenty-​first century, carbon dioxide concentrations in the atmosphere climbed from 367 parts per million at the end of the twentieth century, crossing the 400 threshold in 2015, before progressing to 406 parts per million in 2017. 33  G Petrossian, ‘Preventing Illegal, Unreported and Unregulated Fishing’ (2015) 189 Biological Conservation 39; Anon, ‘Pirate Plunder’ (2012) New Scientist 5; K Kelleher, The Sunken Billions: The Economic Justifications for Fisheries Reform (World Bank 2009) 7–​10; High Level Task Force Closing the Net: Stopping Illegal Fishing on the High Seas (Department of Environment 2006) 3, 19, 81. 34  Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (2016) 55(6) ILM 1157; Anon, ‘Tracking Fish From Sea to Plate’ (2017) 26(11) World Food Regulation 31; M Young, ‘International Trade Law Compatibility of Market Related Measures to Combat IUU’ (2016) 69 Marine Policy 209; S Kao, ‘International Actions Against IUU Fishing and the Adoption of National Plans of Action’ (2015) 46(1) Ocean Development and International Law 2; E Witbooi, ‘The Port State Measures Agreement in Context’ (2014) 29(2) The International Journal of Marine and Coastal Law 290; A Telesetsky, ‘Scuttling IUU Fishing and Rewarding Sustainable Fishing’ (2015) 38(4) Seattle University Law Review 1237.

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Accompanying this trend was concentrations of methane in the atmosphere which climbed from 722 parts per billion before the year 1750, to 1834 parts per billion by 2015. Concentrations of nitrous oxide have moved from 280 parts per billion to 328 parts per billion in the same time period. Corresponding to the increases, IPCC reports in 2001, 2007, and 2013/​2014 concluded that the warming of the climate system was unequivocal and, since the 1950s, many of the observed changes were unprecedented in recent history. The atmosphere and ocean had warmed, the amounts of snow and ice diminished, sea level had risen, and extreme weather and climate events had been observed. The reports added that depending on what pathway (as dependent on technology, demographic change and economic development) was adopted, the world could warm between 1.0°C and 4.8°C by 2100. These increases suggest that severe, pervasive, and irreversible impacts for people and ecosystems could be likely, with heat waves occurring more often and lasting longer and extreme precipitation becoming more intense and frequent in many areas. Ecosystems will have to adapt to changing conditions, the ocean will continue to warm and acidify, and global mean sea level is likely to rise.35 As these projections came in, the science also showed that, although the Kyoto Protocol did slow up some emissions, the reduced speed was much more owing to the slow economic growth in Russia after the collapse of the Soviet Union. Even with this decrease, overall, between 1990 and 2012, global emissions of carbon dioxide increased by over 50 per cent, with emissions growing more quickly between 2000 and 2010 than in each of the three previous decades. Accordingly, further international action was required if the goal was to slow the anthropogenic contribution of greenhouse gas (GHG) emissions and prevent dangerous changes to the Earth’s ecosystems.36 The political difficulty was that not only had the US refused to sign the earlier Kyoto Protocol, but also, that the make-​up of which countries which were now polluting the most was changing. That is, around 2005, China (which had increased its energy use by 16 times since 1965) passed the US as being the largest emitter of GHGs, going on to represent just under 30 per cent of the total anthropogenic emissions in 2015, with the US (which took one-​third of the world’s energy in 1965) responsible, now, for just under 16 per cent of all GHG emissions. India, which has increased its energy usage 11-​fold since 1965, was now responsible for just under 7 per cent of the world’s GHGs. Although there was (and remains) a large difference when viewed from a per capita level of 35  The various reports were IPCC, Climate Change 2014: The Synthesis Report (Cambridge University Press 2014); IPCC, Climate Change 2013: The Physical Science Basis (Cambridge University Press 2013) IPCC (2007) Climate Change 2007: The Scientific Basis (Cambridge University Press); IPCC, Climate Change 2001: The Scientific Basis (Cambridge University Press). 36 N Grunewald, ‘Did the Kyoto Protocol Fail?’ (2016) 21(1) Environment and Development Economics 1; A Rosen, ‘The Wrong Solution at the Right Time: The Failure of the Kyoto Protocol’ (2015) 43(1) Politics and Policy 30; R Aichele, ‘The Effect of the Kyoto Protocol on Carbon Emissions’ (2013) 32(4) Journal of Policy Analysis and Management 731; C Napoli, ‘Understanding Kyoto’s Failure’ (2012) 32(3) The SAIS Review of International Affairs 183.

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emissions, in the twenty-​first century it was clear that the developing world was, about 2015, now the dominant contributor to climate change. Thus, although developed countries were responsible for somewhere between 60 per cent to 80 per cent of the historical build-​up of anthropogenic gases since 1800, in the future this equation will be reversed.37 Another attempt to solve the climate problem occurred at the end of 2015 when the so-​called Paris Agreement was concluded by the parties to the UNFCCC. Under this agreement, the parties established the goal of ‘holding the increase in the global average temperature to well below 2°C above pre-​industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-​industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change’.38 The significance of finally providing the ecologically bottom line to the original 1992 UNFCCC goal of stabilization of GHG concentrations in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system, cannot be understated.39 With this ecological target in place and as the prism through which to see their obligations, the parties then voluntarily pledged their own ‘nationally determined contributions’ in which their pursuit of their ‘highest possible ambition’, their carbon gas emissions would peak, and then decline by 2030. The parties, both developed and developing, then made their pledges covering a multitude of different considerations, factors, and timelines. This allowed the US to pledge they would aim to reduce their net GHG emissions by about 27 per cent below what they were in 2005, by 2025; while China committed to peak their carbon dioxide emissions around 2030 (if not earlier), and lowering carbon dioxide intensity (as in, carbon dioxide emissions per unit of GDP) by 60 to 65 per cent from the 2005 level by 2030.40 The quid pro quo for countries such as China and the rest of the developing world making pledges to slow ​or reduce their GHG emissions was the creation of the Green Climate Fund. This fund is meant to help them with the costs associated with adaptation and mitigation practices in relation to climate change. The significance of this fund and its US$100 billion annual budget (to be reached by 2020) to help

37 T Wei, ‘Developed and Developing World Contributions to Climate System Change Based on Carbon Dioxide, Methane and Nitrous Oxide Emissions’ (2016) 33(5) Advances in Atmospheric Sciences 632; McNeill, The Great Acceleration (n 1)  10; T Wei, ‘Developed and Developing World Responsibilities for Historical Climate Change and C02 Mitigation’ (2012) 109(32) Proceedings of the National Academic of Sciences 12911; N Hohne, ‘Contributions of Individual Countries Emissions to Climate Change and Their Uncertainty’ (2011) 106(3) Climatic Change 359; Anon, ‘Carbon Emissions Buck Recession’ (2010) New Scientist 7; G Mastel, ‘The Developing World and Climate Change’ (2009) 23(2) The International Economy 53; Anon, ‘India’s Emissions’ (2010) New Scientist 5. 38  Paris Agreement art 2(1)(a) This can be found in FCCC/​CP/​2015/​L.9 (12 December 2015). 39  V Ramanathan, ‘On Avoiding Dangerous Anthropogenic Interference with the Climate System’ (2008) 105(38) Proceedings of the National Academy of Sciences 14245; K Keller, ‘Avoiding Dangerous Anthropogenic Interference With the Climate System’ (2005) 73(3) Climatic Change 227; M Mastrandrea, ‘Probabilistic Integrated Assessment of Dangerous Climate Change’ (2004) 304 (5670) Science 571. 40  See Paris Agreement art 3.

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meet the needs of developing countries in this area was so great, that it became part of the 2015 SDGs.41 The problem is that climate change is moving faster than the national pledges achieved under the Paris Agreement. The 1.5°C limit is already nearly impossible, with studies suggesting the Earth will, as a best guess, cross the 1.5°C threshold in 2024 and 2.0°C in 2036. Further, the pledges made at Paris, when all added up, do not meet the ecological bottom line the parties set, to which warming will still, probably, increase between 2.8°C and 3.1°C. To make matters even more complicated, in 2017, President Trump of the US withdrew from the Paris Agreement, implicitly indicating that neither the American pledge nor the American contribution to the Green Climate Fund would be honoured.42

8.  Alternative Energy One area where the SDGs were different to the MDGs was in their recognition of the need, by 2030, substantially to increase the share of renewable energy in the global energy mix, in addition to doubling the global rate of improvement of energy efficiency.43 One non-​carbon energy source which many held high hopes for in the last decades of the twentieth century was nuclear power. However, in the twenty-​first century, and especially in the second decade, it became clear that nuclear energy was becoming increasingly unattractive. Despite the benefits of being carbon free, the problem of waste remained present (in 2012 the US refused to license new nuclear plants until the problem of what to do with the nuclear waste had been dealt with) and in 2011, there was a further significant nuclear accident at Fukushima in Japan. This incident was given the same grade on the international rating of the nuclear accident that occurred at Chernobyl in 1986. The same rating was because the radioactive contamination of caesium and iodine were at similar levels. Despite broadly the same emissions, the impact of the accident appears to have been lesser to what occurred at Chernobyl in terms of the size of the land impacted (less than one-​tenth), the variety of radionuclides involved, and the radiation exposure level at Fukushima, which was about one-​seventh compared to what occurred at Chernobyl.44 41  Goal 13 of the SDG. For general comment, see M Hurlstone, ‘Cooperation Studies of Catastrophe Avoidance: Implications for Climate Negotiations’ (2017) 140(2) Climatic Change 119; R Falkner, ‘The Paris Agreement and the New Logic of International Climate Politics’ (2016) 92(5) International Affairs 1107; A Fawcett, ‘Can Paris Pledges Avert Severe Climate Change?’ (2015) 350(6025) Science 1168. 42 F Pearce, ‘We Could Pass 1.5c Warming By 2026’ (2017) New Scientist 10; Anon, ‘Green Light’ Economist (19 December 2015) 89; M Le Page, ‘Will Paris Deal Save Our Future?’ (2015) New Scientist 8. 43  The SDG Goals are 7.2, 7.3, and 7.4. Note also paras 127 to 129 of The Future We Want, from the 2012 Earth Summit. 44 T Imanaka, ‘Comparison of the Accident Process, Radioactivity Release and Ground Contamination Between Chernobyl and Fukushima’ (2015) 56(1) Journal of Radiation Research 56; Anon, ‘Nuke Plants Put on Hold’ (2012) New Scientist 5; Anon, ‘Fukushima Rated Same as Chernobyl’ (2011) New Scientist 6; Anon, ‘Nuclear Fallout Spreads to Food’ (2011) New Scientist 6, 8–​9; Anon, ‘Fukushima Fallout’ (2011) New Scientist 6.

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Despite being of lesser impact, many communities now reversed away from further engagement in nuclear power. In 2017, in the US, only four new reactors were being built, and these were already behind schedule and well over budget. The only countries which are advancing nuclear power by this stage are Russia, India, and especially China. The cumulative result is that of the 449 currently operating nuclear power plants on Earth, as many of the older nuclear power plants are phased out, they are not being replaced by newer nuclear sources. This is despite many modern designs that promise to make nuclear energy safer than earlier generations. The result is that, between 1996 and 2016, the global share of electricity provided by nuclear energy fell from 17.6 per cent to 10.7 per cent.45 Conversely, with solar and wind power, solid progress was made. Although clear limits remain over these technologies, in terms of their impacts on landscapes and associated species (wrongly placed wind-​turbines cannot only be an eyesore, they can also devastate birdlife), the twenty-​first century saw large growth with these renewables. By 2017 unsubsidised wind and solar energy cost the same to produce compared with fossil fuel based power in more than thirty countries. This trend is expected to cover two-​thirds of countries by 2020. This pattern coincided with the global proportion of electricity coming from renewable sources (other than large hydro dams), which rose to 11.3 per cent as their efficiencies (for solar, getting close to 50% increases in the conversion of sunlight to energy between 2005 and 2015) continued to increase and the price for production continued to fall. These increases have also been reflected in job creation. Thus, in 2017 coal employs about 160,000 people in the US, whereas solar and wind employs 476,000 and counting.46 This progress is not restricted to the developed world. China plans to spend more than US$2.5 trillion by 2020 on new generating capacity using renewable or low carbon sources, (including solar, wind, and also hydro and nuclear). China’s projects expect that this will create 13 million jobs in the process. Within this mix, the Chinese are planning to have 150 gigawatts of installed solar capacity by 2020. India is aiming for 175 gigawatts via solar by 2022.47 The other area in which there has been continual progress has been with energy efficiency, although current progress is only about two-​thirds of the pace needed to double the global rate of improvement in energy efficiency by the given date (2030). In addition, although clear progress is being made, often the savings in 45  L Grossman, ‘Nuclear Holiday’ (2017) New Scientist 20; M Hayashi, ‘The Fukushima Nuclear Accident and its Effect on Global Energy Security’ (2013) 59 Energy Policy 102; M Marshall, ‘The New Nuclear Generation’ (2013) New Scientist 6. 46  The reference to Rio+20 is in The Future We Want, paras 127 to 129. For the figures see C Brahic, ‘Have We Reached Peak Emissions?’ (2017) New Scientist 32; Anon, ‘US Wind Power’ (2016) New Scientist 2; P Marks, ‘Supercool Wind Power’ (2013) New Scientist; H Hodson, ‘Greening the Grid’ (2013) New Scientist 20. 47 See Anon (2017) ‘Sunlight Over Soot’ Economist. April 1.  13; Anon (2017) ‘No Cooling’ Economist. April 22. 25; Anon, ‘The Burning Question’ Economist (26 November 2016) 11–​12; Anon, ‘Canary in the Coalmine’ Economist (1 April 2017) 61; Anon, ‘Green Power Surge’ (2015) New Scientist 7; Anon, ‘Crystal Clear?’ Economist (16 May 2015) 64; S McKevitt, Project Sunshine: How Science Can Use the Sun to Fuel and Feed the World (Icon 2013); H Scheer, The Solar Economy (Earthscan 2002).

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efficiencies are eclipsed by the overall growth rates in consumption, at both the small and macro levels. For example, at the micro level, new variations of an old technology such as flat-​screen screen televisions, although much more efficient than their predecessors, have their savings eclipsed to the vast demand for the new product. Or, at the macro level, each new building gets more efficient than its predecessor (in the US, a 29% improvement), but the growth rate of buildings overall, eclipses the efficiencies of each individual new unit. The progress is held back even more if the older inefficient units are not taken out of circulation or improved at the same time.48

9.  Air Pollution The World Health Organization issued new guidelines on ambient air pollution in 2005. These covered particulate matter such as SPM 10 and SPM 2.5, (low level) ozone, nitrous dioxide, and sulphur dioxide. The problem is no longer the science (which is now much clearer than it was for much of the twentieth century) but the practice, as although most countries utilize the guidelines, breaching them (especially in the developing world) has become the norm. Accordingly, one of the SDGs aims by 2030 is to substantially reduce the number of deaths and illnesses from, inter alia, air pollution.49 Good progress in the area of air pollution has been made in the developed world. For example, in the US, overall, between 1980 and 2015, lead concentrations have fallen by 99 per cent, nitrogen dioxide 60 per cent, ozone 32 per cent and sulphur dioxide 84 per cent. Measurements for SMP 10 have fallen since 1990 by 39 per cent and SPM 2.5 since 2000 by 37 per cent.50 Similar reductions since the year 2000 in Europe are also evident for sulphur dioxide, falling by over 70 per cent, lead by 60 per cent, and nitrous dioxide by 30 per cent. However, progress has not been absolute, as some air pollution related to SPM 2.5 (due especially to diesel as well as that caused by brake pads, tyres, and traffic stirring up dirt on the road; traffic density and geography, allowing pollutants to stay in the same area) continue to cause problems. The result in Europe is an estimate of up to 400,000 premature deaths per annum (with an average loss of life of nine years) owing to air pollution. In Britain, SPM 2.5 particulate pollution leads to an

48  M and J Huesemann Techno-​Fix: Why Technology Won’t Save Us or the Environment (New Society Publishers 2011) 22–​28; Anon, ‘The Efficiency Solution’ (2009) 19(2) Scientific American Earth 12; J Giles, ‘Building for a Cooler Planet’ New Scientist 8; Anon, ‘TVs Will Cost the Earth’ (2005) New Scientist 29. 49  Goal 3.9 and 11.6 of the SDGs. For SPM 2.5, 10 micrograms per cubic meter as an annual mean, and 25 micrograms as a 24 hour mean; for SPM 10, 20 micrograms as an annual mean and 50 micrograms as a 24 hour mean; 100 micrograms per square meter as an 8 hour mean for ozone; nitrous dioxide has 40 micrograms per square meter as an annual mean, and 200 micrograms as a 1 hour mean; and 20 micrograms per 24 hour mean for sulphur dioxide and 500 micrograms as a 10 minute mean. See WHO, WHO Air Quality Guidelines: Global Update 2005 (WHO 2005). 50  Nitrogen dioxide, as measures over the annual measurement, low level ozone over the eight-​hour period, and sulphur dioxide over the one hour period. SPM 10 over a 24-​hour period.

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estimated 30,000 premature deaths per annum, while nitrogen dioxide air pollution kills a further 10,000 (ie when the reduced years of life are added up).51 These figures from parts of the developed world are a subset of the overall global trend of air pollution which is rising, not declining. Although SPM 2.5 concentrations are going down (slowly) in some developed countries, global averages of SPM 2.5 particulates rose by 11 per cent between 1990 and 2015. This increase overlaps with the rise of automobiles in the world, which reached 1 billion in 2011 (with projections to reach 2.5 billion by 2050). The global toll for SPM 2.5 pollution is tagged to be between 3 to 5 million premature deaths annually. Just under 60 per cent of these deaths are in in East and South Asia (especially China and India), although this is also a growing problem in parts of Africa, Latin America, and Eastern Europe. In China, half of the respiratory diseases are caused by air pollution, with around 750,000 premature deaths per annum. In Delhi in India, as possibly the most polluted city in the world, the average measure of SPM 2.5, stands at 122 micrograms per cubic meter, about double the average in Beijing, which in itself is double what the World Health Organization suggests is safe (25 micrograms per cubic meter, averaged over 24 hours).52 The difference between the air pollution in the developed and the developing world is not only in the size of the problem but also in the constituents. In the developed world, traditional forms of air pollution such as those caused by badly burnt coal are rare, as is air pollution containing very hazardous materials. Conversely, much of the developing world possesses a convergence of both traditional and modern forms of air pollution, with traditional sources (such as coal burning, at 70% of China’s energy and 61% of India’s) remaining high. At the same time, other sources of air pollution often remain uncontrolled. This problem is clear with poorly incinerated waste (as in, inefficiently burnt or combustion of the wrong material). Countries that want to pursue incineration of waste as best practice in the twenty-​first century place restrictions on what can be burnt, temperature (upwards of 2,000 degrees Celsius, nearly double best practice in the twentieth century) in addition to design change and very strict emission levels. Conversely, in much of the developing world, the open and inefficient and unrestricted burning of all waste is often common, creating streams of hazardous air pollution (impacting 51  European Environment Agency, Air Quality in Europe 2016 (EEA 2017) 15–​20; M Le Page, ‘Invisible Killer’ (2016) New Scientist 16; Anon, ‘Bad Air’ New Scientist 7; Anon, ‘Choking on It’ Economist (5 December 2015) 49; Anon, ‘Costly Exhaust’ New Scientist 7; B Cristina, ‘Air Quality Status and Trends in Europe’ (2014) 98 Atmospheric Environment 376; Anon, ‘Pollution, A Blight on London Life’ (2013) New Scientist 4. 52  A Cohen and others, ‘Estimates and 25 Year Trends of the Global Burden of Disease Attributable to Ambient Air Pollution’ (2017) 389(10082) The Lancet 1907; N Fleming, ‘Cutting Through the Smog’ (2017) New Scientist 35; World Health Organisation, Ambient Air Pollution: A Global Assessment of Exposure and Burden of Disease (WHO 2016) 15–​19; Anon (2016) ‘Worse Than Beijing’ Economist (12 November 2016) 24; A Shostya, ‘Ambient Air Pollution in China’ (2016) 22(3) International Advances in Economic Research 295; Y Guo, ‘The Association Between Lung Cancer Incidence and Ambient Air Pollution in China’ (2016) 144 Environmental Research 60; R Pramod, ‘Studies on Respirable Particulate Matter and Heavy Metal Pollution of Ambient Air in Delhi, India’ (2015) 4(12) American Journal of Engineering Research 45; P Pant, ‘Characterisation of Ambient PM 2.5 at a Pollution Hotspot in New Delhi’ (2015) 109 Atmospheric Environment 178.

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both nationally and regionally) at levels thousands of times worse for pollutants than those from best practice incinerators.53 The larger failure of much of the developing world with this problem of air pollution stems from their inability to conclude any regional air pollution agreements, comparable to those that evolved in the 1980s and 1990s in Europe and North America. The best progress so far has been the 2002 ASEAN Agreement on Transboundary Haze Pollution. This agreement, primarily about the monitoring and prevention of haze pollution as a result of land ​or forest fires within the ASEAN region (ie, not India, South Korea, Japan, or China) could serve as a good framework convention from which to build controls. Moreover, with the decision of Indonesia (the primary culprit with forest fires) to join this in 2015, further progress is possible. Conversely, with north east Asia no progress at all has been achieved. This is despite the fact that China, South Korea, and Japan all routinely pollute each other’s air, with Japan now being more of a victim than a culprit owing to its own declining rates of air pollution.54

10.  Fresh Water Conservation The goals of the international community with regard to fresh water evolved quickly over the twenty-​first century. This began with target 10 of the MDGs to halve, by 2015, the proportion of people without access to safe drinking water. This was followed in 2002 at the World Summit on Sustainable Development in 2004 with the International Law Association’s Berlin Rules on Water Resources, and then in 2012 at the Earth Summit +20. All of these other meetings emphasized goals of quality (preventing pollution and ecological bottom lines), quantity (setting minimum flow requirements), good governance, and the human right to fresh water.55 The 53  L Bastian, ‘Behavior of PCDD/​Fs During Open Burning of Municipal Solid Waste in Open Dumping Sites’ (2013) 15 Journal of Material Cycles and Waste Management 229; A Nzihou and others, ‘Dioxin Emissions from Municipal Solid Waste Incinerators in France’ (2012) 32 Waste Management 2273; J Aurell, ‘Emissions from Open Burning’ (2012) 46 Environmental Science and Technology 11004; G Solorzano, ‘Open Burning of Household Waste’ (2012) 87 Chemosphere 1003; G Forbid, ‘Open Waste Burning in Cameroonian Cities: An Environmental Impact Analysis’ (2011) 31 Environmentalist 254; G Zhang, ‘Emissions of Unintentional Persistent Organic Pollutants from Open Burning of Municipal Solid Waste from Developing Countries’ (2011) 84 Chemosphere 994. 54  D Heilmann, ‘After Indonesia’s Ratification: The ASEAN Agreement on Transboundary Haze Pollution’ (2015) 34(3) Journal of Current Southeast Asian Affairs 95; L Nurhidayah, ‘The Influence of International Law Upon ASEAN Approaches in Addressing Transboundary Haze Pollution in Southeast Asia’ (2015) 37(2) Contemporary Southeast Asia:  A Journal of International and Strategic Affairs 100; I Kim, ‘Participation by the Republic of Korea in Regional Environmental Cooperation on Transboundary Air Pollution Issues’ (2014) 14(2) International Environmental Agreements: Politics, Law and Economics 147; B Aouizerats, ‘Importance of Transboundary Transport of Biomass Burning Emissions to Regional Air Quality in Southeast Asia’ (2014) 14(8) Atmospheric Chemistry and Physics 11221; W Shinji, ‘Air Pollution Trends in Japan Between 1970 and 2012’ (2013) 7(4) Asian Journal of Atmospheric Environment 177; I Kim, ‘Environmental Cooperation on Northeast Asia: Transboundary Air Pollution’ (2007) 7(3) International Relations of the Asia Pacific 439. 55  For the Plan of Implementation of the 2002 World Summit on Sustainable Development see Paras 4, 7, 25–​29, and 40. For The Future We Want from Rio+20 in 2012 see paras 39, 43, 119–​24. The Berlin Rules can be found at http://​internationalwaterlaw.org/​documents/​intldocs/​ILA_​Berlin_​Rules-​2004.

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International Court of Justice repeatedly added to this area in the same time period, emphasizing that when dealing with transboundary waters, environmental impact assessments, the utilization of best available technology to prevent pollution, and the underlying obligation to not seriously damage the environment to the detriment of other states was uppermost.56 With such goals and guidance, overall good progress on fresh water management has been made with over 80 per cent of all countries (since the 1990s) embarking on improvements in their water management. These efforts have brought improved social, economic, and environmental benefits, with the most obvious being the fact that the percentage of the global population (despite population increases) gaining access to improved (treated) water rising from 76 per cent in 1990, to 91 per cent in 2015. Of the 2.6 billion people who gained access to improved drinking water since 1990, 1.9 billion gained access to piped drinking water on premises. Over half of the global population (58 per cent) now enjoys this higher level of service.57 Despite this progress, in 2015, the SDGs realized that the international community needed to make further advances in the area of fresh water management. The problem was (and is) that the total human population without access to improved drinking water is still very high, at 663 million. Many of the 48 LDCs (not including China or India, which are improving), especially in sub-​Saharan Africa and southern Asia, experience extreme problems having failed substantively to address water management. Accordingly, the sixth target of the SDGs calls for, inter alia, universal and equitable access to safe and affordable drinking water for all by 2030. It also calls for good governance in fresh water management, improving quality by reducing its pollution; increasing efficiency to ensure sustainable withdrawals and to address water scarcity; and the restoration by 2020 of water-​related ecosystems such as lakes, aquifers, rivers, and wetlands and transboundary cooperation.58 The challenge to meeting these goals is that many of the world’s fresh water sources are already polluted or over-​exploited, including 20 per cent of the world’s aquifers. The failure to deal with matters in the present is heightened for the future. The fear pdf. See in particular arts 5, 6, 7, 17, 18, 20, 22 to 28, and 39. See also C Pahl-​Wostl, ‘Environmental Flows and Water Governance’ (2013) 5 Current Opinion in Environmental Sustainability 341; A Wiek, ‘Water, People and Sustainability: A Systems Framework for Analysing and Assessing Water Governance’ (2012) 26 Water, Resources and Management 3153; R Meinzen, ‘Beyond Panaceas in Water Institutions’ (2007) 104 Proceedings of the National Academy of Sciences 15200. 56  See ICJ, Certain Activities Carried Out by Nicaragua in the Border Area (2015) ICJ Rep Paras 100–​105, 118, 153 168, 189, 192, 193 and 211; ICJ, Case Concerning Pulp Mills on the River Uruguay (2010) ICJ Rep Paras 203–​206; 223, 225 228, 257, and 259. 57  WHO & UNICEF Joint Monitoring Programme for Water Supply and Sanitation, Progress on Sanitation and Drinking Water: 2015 Update and MDG Assessment (WHO 2016) 5; UNEP, Water Resources Management (UNEP 2012, Nairobi) 3–​4, 17; World Health Organisation, A 10 Year Health Story: The Water for Life Decade (WHO 2004) 7–​13. 58  See SDG Goals 6.1, 6.2, 6.3, 6.4, 6.5, and 6.6; see also UNESCO, World Water Development Report: Water and Jobs (UNESCO 2016) 5–​7; UNESCO, World Water Report: Water for a Sustainable World (UNESCO 2015) 7–​10; S Stec, ‘A New Era for Water Governance’ (2016) 46(1) Environmental Policy and the Law 68; O Spijkers, ‘The Cross Fertilisation Between the Sustainable Development Goals and International Water Law’ (2016) 25(1) 39; T Bounfour, ‘International Water Law and the Sustainable Development Goals’ (2016) 46(6) Environmental Policy and Law 380.

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is that as human population expands from the current 7.5 billion to 11.2 billion in 2100, demand for fresh water will outstrip supply in many areas, with demand expected to increase, in total, by 55 per cent by 2050 alone. Agriculture, which already consumes 70 per cent of all fresh water demands will need to expand its consumption by 60 per cent in total and 100 per cent more in many developing countries. In the same period, industry could see demands increase by up to 400 per cent. Fresh water resources also face significant challenges in coming decades with climatic change, with projections suggesting negative impacts will most probably outweigh benefits, with the probability of extreme events expected to increase, including a rise in the frequency of droughts and floods, all of which have major implications for water management.59 At the same time, despite a solid growth of fresh water agreements (by the twenty-​first century, there are over 400 water agreements) these are often fragmented and lacking coherence. The result is that by 2017, 158 of the world’s 263 international basins (which contain more than 60% of the world’s river flows) lack any type of cooperative framework; and of the 106 basins covered by agreements, approximately two-​thirds do not include all basin states. Within this mix, of the fifty transboundary river basins in Africa, forty have no specific agreement in place. In Asia, thirty-​two of the fifty-​seven transboundary river basins are without agreements. In North America, nine out of forty-​one transboundary river basins are without basin specific agreements, while in South America, the gap is with fifteen of their thirty-​eight transboundary river basins. In Europe, although there are gaps (nineteen out of sixty-​four), the gaps are largely filled by their regional Water Framework Directive and their 1992 UNECE Water Convention. Finally, it should be noted that, although the 1997 Watercourses Convention finally came into force (in 2014), three countries, China, Turkey, and Burundi voted against it. In the case of China, its Tibetan plateau is the source of the Indus, Brahmaputra, Irrawaddy, Salween, and Mekong rivers. China believes it possesses indisputable territorial sovereignty over those parts of the international watercourses that flow through its territory.60

59 UNESCO, World Water Report: A Shared Responsibility (UNESCO 2013) 203–​337; R Grafton, ‘Global Insights into Water Resources, Climate Change and Governance’ (2013) 3 Nature Climate Change 315; V Nayar, ‘The Water Crisis: Rethinking Water Governance’ (2013) 1(1) Journal of Land and Rural Studies 75–​94; M David, Water for Food, Water for Life: A Comprehensive Assessment of Water Management in Agriculture (Earthscan 2007) 10–​17. 60  J Fry, ‘International Water Law and China’s Management of Its International Rivers’ (2016) 39(2) Boston College International and Comparative Law Review 227; J Arden, ‘Water for All? Developing a Human Right to Water in National and International Law’ (2016) 65(4) International and Comparative Law Quarterly 771; M Ulrich, ‘The Impact of Law on the Right to Water and Adding Normative Change to the Global Agenda’ (2015) 48(1) The George Washington International Law Review 43; J Dellapenna, ‘Fresh Water in International Law’(2014) 108(3) American Journal of International Law 582; P Wouters, ‘China’s Transboundary Water Practice and Changing Contours of State Sovereignty’ (2014) 23(1) Review of European, Comparative and International Environmental Law 67; S Kushkumbayev, ‘Water and Energy Issues in the Context of International and Political Disputes in Central Asia’ (2013) 12(2) Chinese Journal of International Law 211.

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11.  Municipal Waste The SDGs express the hope that the production of waste at a per capita level be substantially reduced by 2030, along with general substantial reductions in waste generation through prevention, reduction, recycling, and reuse.61 Despite the nobility of this target, the challenges are threefold. First, the generation of standard waste is increasing in both developed and developing countries. The average amount of waste, per citizen, per annum, in the developed world tripled during the twentieth century. In the twenty-​first century, it is between 300 and 700 kilograms per annum (with the average American citizen being at the upper end). The good news is that the growth rate of waste is slowing down to a 1 per cent growth rate in the most high-​income developed countries (such as the Netherlands), which possess very advanced reuse, recycling schemes, an environmentally concerned citizenry, and progressive solid waste disposal policies. This slowing followed massive increases in per capita production between 1945 and the twenty-​first century, coupled with changing composition of waste streams, such as with plastic going from less than 1 per cent in 1960, to up to 15 per cent (by weight) and 30 per cent (by volume) by the twenty-​first century. This change is part of a general trend that has seen the continual expansion of plastic production over the last 100 years to have resulted, by 2017, in some 8.3 billion tonnes of virgin plastic (the equivalent weight of 25,000 Empire State Buildings in New York, or a billion elephants). Only about 30 per cent of historic plastic production remains in use, with the remaining 70 per cent divided between landfills (79%), incineration (12%) and recycling (9%). As over 50 per cent of this plastic has been made since the year 2000, the expectation is that, by 2050, it will equate to a total of 12 billion tons of waste.62 Critically, the expansion of this waste stream, as with all others, is no longer restricted to the developed world. In fact, the opposite will be the case for the twenty-​ first century, for while the evidence suggests that as much as per capita production of waste is slowing in the developed world, in the developing world it is rapidly growing and is showing no signs of plateauing. China is expected to be producing per capita waste at the lower end of what developed countries currently produce by 2030. On a sovereign basis, India is projected to be producing the same amount of waste as the US currently produces, if not more, by 2020, as cities such as Delhi go from producing about 7,000 tonnes of municipal waste per day, to up to 25,000 tonnes.63 61  See SDG Goals 12.1, 12.2, 12.4.2, 12.5. 62  R Geyer, ‘Production, Use and Fate of All Plastic Ever Made’ (2017) 3(7) Science Advances e1700782 DOI 10:1126/​sciadv.1700782. 63 R Krausz, ‘Zero Waste:  A Reality Check’ (2013) Waste Management 8. World Bank, What a Waste: A Global Review of Solid Waste Management (World Bank, Urban Development Series No 15 2012) 9–​17; UN Human Settlements Programme, Solid Waste Management in the World’s Cities (UNSP 2011, NYC) 12–​35; S MacBride, Recycling Reconsidered (MIT Press 2012) 181; S Freinkel, Plastic (Houghton 2011) 1–​7, 14, 68–​69. S Unnisa, ‘Plastic Waste Management Strategies for Indian Cities’ (2012) 2(1) Journal of Chemical, Biological and Physical Sciences 514; D Zhang, ‘Municipal Solid

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Part of the reason that waste amounts keep growing is because some of the initiatives that were hoped to deal with the problem during the last decades of the twentieth century, such as voluntary consumer restraint from wasteful products, and voluntary consumer support for recycling, have proved of only limited value. For example, of the first matter where consumers could use their purchasing power to make an impact on waste reduction, say with disposable diapers, the impact has been minimal. This has been because ideals of waste production have been trumped by considerations of cost and convenience. Overall, green consumerism in the developed world has, in the best-​case scenarios, done less than reduce any specific waste stream by more than 10 per cent. Of the second matter, with recycling, despite becoming one of the most commonly recognized and accepted symbols of environmental responsibility in the world, it has been clear since the twenty-​first century that if the price of virgin materials are cheaper than that which is collected to be reused, then beyond a few market niches, recycling does not succeed. This stalling became evident with the recycling of glass and to a degree, paper. Conversely, with metals, some plastics (30% recycling rate in Europe, 25% in China, and 9% in the US), and electronic waste, the economic benefits have created voracious recycling markets.64 Where there has been some success in reducing waste has been with the use of economic instruments (such as putting a price on plastic bags and not allowing them to be free), and extended producer responsibility schemes, whereby the product is returned to the producer at the end of its life, and the producer must recycle it, rather than the consumer dumping it in landfill. This strategy of making the manufacturer of the product responsible for the entire life cycle of the product and especially for the take-​back, recycling, and final disposal of the product is currently best practice in this area. Producer Responsibility schemes are now utilized in over twenty-​five countries, and cover everything from used tyres, to packaging, to electronic waste.65

Waste Management in China: Status, Problems and Challenges’ (2010) 91(8) Journal of Environmental Management 2163; V Talyan, ‘The State of Municipal Solid Waste Management in Delhi.’ (2008) 28 Waste Management 1276. 64  R Krausz, ‘Zero Waste: A Reality Check’ (2013) Waste Management 8; L Pendry, Environmentally Friendly Parenting: Are Cloth Nappies a Step Too Far?’ (2012) 12(13) Young Consumers 5; N Seldman, ‘Recycling Stimulates Economic Development’ (2012) 53(7) BioCycle 22; J Smith, ‘ Eco-​Diaper System Wins Fans Quickly as Moms Awestruck to Find Cloth Diaper Option’ (2011) 11 Technology Business Journal 567; T Phillips, ‘A Critical Review of a Key Waste Strategy Initiative in England: Zero Waste Places: Projects 2008–​2009’ (2011) 55 Resources, Conservation and Recycling 335; B Bohm, ‘The Costs of Municipal Waste and Recycling Programs’ (2010) 54 Resources, Conservation and Recycling 864. 65  F Corsini, ‘Extended Producer Responsibility: The Impact of Organisational Dimensions’ (2017) 59 Waste Management 23; J Richter, ‘Extended Producer Responsibility: Best Practice and Challenges in Closing Material Loops’ (2016) 123 Journal of Cleaner Production 167; J Rotter, ‘Waste Management and Producer Responsibility: A Score Behind, a New Ahead’ (2011) 29 Waste Management Resources 889; D Khetriwal, ‘Producer Responsibility for e-​waste Management: Key issues for Consideration: Learning from the Swiss experience’ (2009) 90 Journal of Environmental Management 153; OECD, Analytical Framework for Evaluating the Costs and Benefits of Extended Producer Responsibility Programmes (OECD 2005); OECD EPR Policies and Product Design: Economic Theory and Selected Case Studies (OECD 2005); OECD, Extended Producer Responsibility: A Guidance Manual for Governments (OECD 2001).

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The other area that progress has been made with in waste management in the developed world is with landfill. Borrowing from the standards that had evolved out of the US since the 1950s, most developed countries and regions (such as Europe) now accept that for landfill to be secure a number of steps had to be taken. These include safe location of the site which is lined to prevent leachate, absolute prohibition on certain waste streams being dumped in it, and rules on compaction, and then recovery, rehabilitation, and monitoring. The same progress cannot be said for many parts of the developing world. In many of these countries, there is often variable and inadequate levels of service, lack of environmental control systems, indiscriminate dumping, littering, scavenging, and poor environmental and waste awareness. In most urban areas in developing countries, solid waste collection service levels remain low, with only between 50 per cent and 70 per cent of residents served and most of the disposal being conducted in an unsafe manner. In China, where over 91 per cent of waste is landfilled, despite possessing comprehensive standards since the turn of the century, most of the Chinese landfills are more or less open dumps. Similarly, in India, about 90 per cent of municipal waste is disposed of in open and unregulated dumps and landfills.66

12.  Human Waste The one type of pollution that is likely to kill more humans than any other pollutant in the twenty-​first century is human excreta. Millions of viruses and bacteria are present in a typical gram of faeces. Diarrhoea is the most important excreta related problem, but intestinal worms, whose eggs mature in faeces and enter the body through feet or the mouth, can also do great damage. From the pathogens related to human excrement, an estimated 1.8 million deaths occur every year. This figure includes cholera, which by the spread of toxic bacteria through water, kills about 90,000 people per annum. Of these deaths 90 per cent are children under five, mostly in developing countries. Eighty-​eight per cent of diarrheal disease is attributed to unsafe water supply and inadequate sanitation and hygiene. Additional pathogens associated with untreated, or poorly treated wastewater, include salmonella, Campylobacter, Escherichia coli, Giardia, Cryptosporidium, and viruses. Evidence also suggests that improved sanitation reduces diarrhoea morbidity by 45 66  World Bank, What a Waste (n 63) 5, 13–​17, 22, 26; UNEP, Global Environment Outlook 5 (Progress Publishers 2012) 173; D Laner, ‘A Review of Approaches for the Long-​Term Management of Municipal Solid Waste Landfills’ (2012) 32(3) Waste Management 498; UN Human Settlements Programme, Solid Waste Management in the World’s Cities (UNSP 2011) 15, 24; Zhang, ‘Municipal Solid Waste Management in China’ (n 63); C Raffaello, ‘Technical Evolution of Landfilling’ (2010) 30(6) Waste Management 947; S Barley, ‘Illegal Toxic Waste Spotted From Space’ (2009) New Scientist 9; L Giusti, ‘Waste Management Practices and Their Impact on Human Health’ (2009) 29 Waste Management 2227; A Kumar ‘An Assessment of the Status of Municipal Solid Waste Management in India’ (2009) 29 Waste Management 883. M Sharholy, ‘Municipal Solid Waste Management in Indian Cities: A Review’ (2008) 28(2) Waste Management 459; N Matete, ‘Towards Zero Waste in Emerging Countries’ (2008) 28 Waste Management 1480.

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per cent, and the simple act of washing hands at critical times can reduce the number of diarrheal cases by an additional 35 per cent.67 The agreed need to confront this problem began in 1992 at the Earth Summit. The soft target was for, by 1995, in industrialized countries, and by the year 2005, in developing countries, at least 50 per cent (and 100% by 2025) of all sewage, waste waters, and solid wastes were treated or disposed of in conformity with national or international environmental and health quality guidelines. The MDGs built on this approach, with their seventh goal, to halve by 2015 the proportion of people who in 1990 were without basic access to sanitation. This goal was then reiterated in the international conferences of 2002 and 2012.68 By the time 2015 arrived, it was apparent that some progress had been made towards this goal as by this time 63 per cent of the global population use improved sanitation facilities, as in a facility that separated human excrement from human contact (this need not be the porcelain technology of industrialized countries that require 15,000 litres of water, per person, per annum and extensive infrastructure to remove the offensive material). Nonetheless, considerable work still needed to be done as 2.4 billion people existed without improved sanitation and 15 per cent of the global population (some 946 million people) still practised open defecation (defined as defecation in fields, forests, bushes, bodies of water or other open spaces). One-​third of the 2.4 billion people without improved sanitation live in India, including some 626 million people who practise open defecation (albeit a 31% fall in open defecation since 1990).69 To confront this problem, the SDGs express the aim to have available, affordable, and efficient sanitation for all by the year 2030. The challenge with the target is multiple. On the one hand, over 50 per cent of human populations now live in cities, and many of these are slums, in need of working sanitation. Moreover, projections suggest that urban populations, over the next four decades, will increase from 3.7 billion in 2015 to 6.3 billion in 2050. Within this mix, megacities (above 10 million people) will go from twenty-​three in 2015, to thirty-​seven (of which twenty-​two will be in Asia) by 2025. Each one of these extra people will increase the total amount of waste excrement that has to be dealt with. Whilst some countries such as China are building infrastructure to deal with the increases in human waste faster than population growth, many other developing countries are not making progress, in terms of

67  M Ali. and others, ‘The Global Burden of Cholera’ (2012) 90 Bulletin of the World Health Organisation 209; L Giusti, ‘A Review of Waste Management Practices and Their Impact on Human Health’ (2009) 29 Waste Management 2227; J Bartram, ‘Focusing on Improved Water and Sanitation’ (2005) 365 Lancet 810. 68  See para 124 from The Future We Want, and ss 21.29 and 21.39 in Agenda 21. 69  UNICEF/​WHO, Progress on the Drinking Water and Sanitation (WHO 2012) 15–​19; C Henry, ‘Fighting a Different Battle –​Sanitation’ (2011) 52(8) BioCycle 58; D Isunju, ‘Socio-​Economic Aspects of Improved Sanitation in Slums’ (2011) 125 Public Health 368; H Murphy, ‘Appropriate technology: A Comprehensive Approach for Water and Sanitation in the Developing World’ (2009) 31 Technology in Society 158; M Black, The Last Taboo: Opening the Door on the Global Sanitation Crisis (Earthscan 2008) 48–​67, 78–​83, 93–​99, 103–​08, 118–​25, 132.

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sanitation infrastructure, or simply slowing the rate of open defecation, thus making human waste one of the defining challenges of the coming decades.70

13.  Chemical Pollutants Significant progress was made about some of the worst pollutants to emerge during the twentieth century in the twenty-​first century. The first success to note is the 2013 Minamata Convention on Mercury. This convention required its signatories to control mercury emissions, phase out mercury in certain products (such as light bulbs and batteries by 2020), and reduce its use in certain manufacturing productions (such as artisanal gold mining). From these commitments and domestic restrictions leading up to the regime, progress has been made. This progress is particularly evident in the developed world, with declines in production and declining concentrations of mercury in many populations, recorded in many (but not all) areas. As it currently stands, about two-​thirds of global anthropogenic releases of mercury to the atmosphere come from Asian sources, with China as the largest contributor. The US and India are second and third, but combined do not equal China. However, as China (and others) increasingly control inefficient combustion processes of both coal and waste, and the goals of the Convention are realized, it is hoped that overall levels of mercury pollution will start to decrease.71 The second success occurred with the 2001 Stockholm Convention on Persistent Organic Pollutants and the twenty-​two chemicals (including PCBs) which are slated for, (with only a few small exceptions), elimination of production. A further two chemicals are listed for restricted production and use, for those countries that request the exemption. From such reductions, concentrations of many of these chemicals have declined in the populations of many countries. For example, in the US, concentrations of PCBs in human blood have decreased nearly 90 per cent from what they were in the early 1970s. Similarly, in the Arctic, the concentrations of many persistent organic pollutants are falling—​but mercury concentrations are not. Interestingly, within the Stockholm Convention, DDT—​the original source of concern with persistent organic pollutants from the 1960s—​is for restricted use, not 70  C Martinez, ‘The SDGs: Opportunities for Conservation’ (2016) 45(6) Environmental Policy and the Law 239; V Shukla, ‘Assessing India’s Progress Towards an Open Defecation Free Nations’ (2016) 8(1) Journal of Infrastructure Development 85; A Khan, ‘Environment, Sustainability and the Millennium Development Goals’ (2014) 3(4) International Journal of Trade & Global Business Perspectives 1439; United Nations, Department of Economic and Social Affairs, Population Division, World Urbanization Prospects, the 2011 Revision (UN 2012) 3–​7. H Buhaung, ‘An Urbanization Bomb?’ (2013) 23(1) Global Environmental Change 1. F Pearce, ‘Flushed With Success’ (2013) New Scientist 49; A Katukiza, ‘Sustainable Sanitation for Urban Slums’ (2012) 30(5) Biotechnology Advances 964; M Black, The Last Taboo: Opening the Door on the Global Sanitation Crisis (Earthscan 2008) 3, 35–​40; B Kwasi, ‘Urbanisation Without Development: Environmental and Health Implications’ (2005) 7(4) Environment, Development and Sustainability 465. 71  Minamata Convention on Mercury (2016) 55 ILM. 582; H Larson, ‘Mercury Falling’ (2013) New Scientist 24; D Hu and others, ‘Mercury Emissions from Waste Combustion in China from 2004 to 2010’ (2012) 62 Atmospheric Environment 359; UNEP, The Global Atmospheric Mercury Assessment: Sources, Emissions and Transport (UNEP 2008) 2–​25.

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elimination of production. This continued allowance of use in over a dozen countries in the developing world followed the World Health Organization (in 2006), accepting that the benefits of DDT in fighting malaria which kills millions of people per annum, outweighed the costs (DDT was linked to human cancers in the 1990s) of using this pollutant in some, strictly regulated, circumstances.72 Despite the clear success in dealing with most of the worst, first generation, pollutants from the twentieth century, by the turn of the twenty-​first century, an entirely new range of pollutants were coming into view. Some were completely novel, others had been designed as replacements for persistent organic pollutants and others were by-​products, created from processes such as inefficient waste disposal or production processes. These include, inter alia, polycyclic aromatic hydrocarbons; pyrethroid, organo-​phosphorus, and carbamate insecticides; as well as anti-​coagulant rodenticides and new generation herbicides. These new chemicals are supplemented by a mind-​boggling soup of other potentially negative substances, which, depending on who is counting, could be anywhere from seventy to several thousand. This soup includes everything from plasticizers/​ phthalates in plastic, through to flame retardants, and dozens of common household chemicals. Whilst there is little debate that traces of these chemicals are now common in most humans and other animals, the impact of these chemicals, many of which appear to be multi-​generational, highly mobile, and may create much more subtle changes than the earlier generation of pollutants in terms of disrupting endocrine (ie, the alteration of normal hormonal signals in living systems) is a source of debate.73 The greater difficulty in confronting this new generation of chemicals is very large. Although some of the new generation are prohibited in some countries, international consensus is hard to achieve. This difficulty is multiplied by the lack of detailed information on the safety of chemicals, especially in the global context. That is, although some countries and regions (especially with the REACH: European Registration, Evaluation, Authorisation and Restriction of Chemicals regulation)

72  The Stockholm Convention on Persistent Organic Pollutants (2001) 40 ILM 532; T Trevas, ‘Carson No Beacon of Reason on DDT’ (2012) 486 Nature 473; R Tren, ‘DDT Paradox’ (2011) 119(10) Environmental Health Perspectives A423; N Lubick, ‘Examining DDT’s Urogenital Effects’ (2010) 118(1) Environmental Health Perspectives A18; H Berg, ‘Global Status of DDT and Its Alternatives for Use in Vector Control to Prevent Disease’ (2009) 117(11) Environmental Health Perspectives 1656; N Lubick, ‘DDT’s Resurrection’ (2007) Environmental Science and Technology 6323; Anon, ‘Death and DDT’ (2006) 36(6) Environmental Policy and the Law 286; J Beard, ‘DDT and Human Health’ (2006) 355 Science of the Total Environment 78. 73  A Krey ‘Assessment of Neurotoxic Effects of Mercury in Beluga Whales, Ringed Seals and Polar Bears’ (2015) 509 Science of the Total Environment 237; UNEP, Global Environment Outlook 5 (n 66) 171–​75; M Moyer, ‘Bisphenola A’ (2010) Scientific American 55; R Smith, Slow Death By Rubber Duck (Counterpoint 2009) ix, xi, 34–​38, 41–​52, 85–​89, 228; H Hoag, ‘Arctic Sentinels’ (2008) 6(10) PLoS Biology e.259; A Motluk, ‘Plastic Linked to Heart Disease and Diabetes’ (2008) New Scientist 7; C Barras, ‘Plastics Chemical is Harmful . . . and in Our Bodies’ (2007) New Scientist 9; Anon, ‘Assessing the Arctic’ (2003) 45(1) Environment 5; S Krimsky, ‘Hormone Disruptors’ (2002) Environment 22; R Kucklick, ‘Persistent Organochlorine Pollutants in Ringed Seals and Polar Bears’ (2002) 287(1) Science of the Total Environment 45; C Walker, Organic Pollutants (Taylor and Francis 2001) 168–​232; T Colborn, Our Stolen Future (Abacus 1997) 18–​19, 24–​25, 30–​31, 34, 37, 40–​43, 47, 66, 198–​209.

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have some registers to which all new chemicals must be proven safe and registered before they can enter the market, this is far from an international obligation and not all countries have the same standards, let alone, interoperability of registers. Accordingly, the information for over 100,000 chemicals already in use (and expanding at over 1,000 per annum) is patchy. Globally, only a minority of chemicals have detailed scientific information on their toxicology and only a smaller percentage are robustly monitored. Owing to such gaps, the targets of the SDGs in this area, to achieve by 2020 a sound management of all chemicals and significantly reduce the release of those which have an adverse impact upon human health and the environment, will be very challenging.74

14.  Public Participation The importance of public participation in sustainable development continued to be clearly iterated in the twenty-​first century.75 Where there was a change from the past was in the recognition of a new voice in public participation—​that of indigenous peoples. Here, building on some ad hoc developments in the 1990s, in 2007, the United Nations Declaration on the Rights of Indigenous Peoples was agreed, and subsequently underlined for its importance at the Rio+20 gathering in 2012. Within the rights recognized was the right of such peoples to participate in decision-​ making in matters that would affect their interests, for which states were obliged to consult and cooperate in good faith.76 Where there was continuity with the recent past was with the continued growth of NGOs. In well-​documented areas, such as with ECOSOC, the registered number of internationally focused NGOs who can participate in their processes has gone from forty-​one in 1948 to 4,507 by 2017. This somewhat deluxe group of NGOs with international aspirations is a tiny subset of the (estimated) 10 million NGOs in the twenty-​first century who are operating worldwide, supported by 1.4 billion people. By the broadest of numbers, this group includes more than 3 million NGOs in India, an equal number in China, and 1.5 million in the US. Their 74  See SDG Goal 12.4. See also S Freinkel, Plastic (n 63) 110–​11; Smith, Slow Death By Rubber Duck (n 73) 64–​65; D Pellow, Resisting Global Toxics (MIT Press 2007) 29–​30, 158; M Tolba, The World Environment 1972–​1992: Two Decades of Challenge (Chapman 1998) 249–​50. 75  See points 16.7 and 16.10 of the SDGs and para 53 of The Future We Want, as well as paras 43, 217, and 272. For the Plan of Implementation see para 168 and the Millennium Declaration UNGA Res A/​ RES/​55/​2/​ (18 September 2000) para 22. 76  See arts 18 and 19 of the UN Declaration on the Rights of Indigenous Peoples. UNGA RES/​ 61/​295 (2 October 2007) For Rio+20 see para 49 of The Future We Want. For the key 1990s references see Principle 22 of the Rio Declaration, and art 15 of the Convention on Biological Diversity. Note the earlier 1989 ILO Indigenous and Tribal Peoples Convention. For commentary on the Declaration see generally, R Ornelas, ‘Implementing the Policy of the UN Declaration on the Rights of Indigenous Peoples’ (2014) 5(1) International Indigenous Policy Journal 4; J Rowland, ‘The New Legal Context of Indigenous Peoples’ Rights’ (2013) 37(4) American Indian Culture and Research Journal 141; M Davis, ‘The United Nations Declaration on the Rights of Indigenous Peoples Five Years On’ (2012) 19 Australian International Law Journal 17; K Engle, ‘The UN Declaration on the Rights of Indigenous Peoples in the Context of Human Rights’ (2011) 22(1) European Journal of International Law 141.

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size goes from single operators existing on a few pennies through to multi-​million dollar organizations with thousands of volunteers at their fingertips. Their contributions to sustainable development through their diverse experience, expertise, and capacity, especially in the areas of analysis and the sharing of information and knowledge has been well iterated in the twenty-​first century.77 Where the debate on NGOs has changed is that there been push-​back against them, both politically and conceptually. Conceptually, criticism has been levelled at the general NGO grouping, pointing out that many of them are unelected bodies, accountable to no-​one but their stakeholders, and sometimes not always truthful in their advocacy. Moreover, owing to their bewildering diversity, they seek a bewildering array of goals. Within this ambit, the NGOs range from the angelic, to the good, to the bad, to the very ugly. This extreme diversity of NGOs has resulted in calls for their accountability (to both their donors and the communities they seek to serve, and to the wider community for accuracy in what they say), and enhanced levels of transparency of what their objectives are, where they obtain money, how it is spent, how their success is measured, and whether their operations ​or spending is critically assessed by independent auditors. Some countries, such as Russia and China, have used such considerations to clamp down on NGOs (especially those with any foreign funding involved in public advocacy) and have made their operations (and autonomy) difficult, if not impossible.78

15. Conclusion Population growth casts a large shadow over the twenty-​first century, as human numbers are expected to increase from 7.6 billion to 11.2 billion, with many developing countries expected to double in size in this period. These projections have meant that the acceptance of the need to confront population growth moved from 77  M Betsill, NGO Diplomacy:  The Influence of Nongovernmental Organisations in International Environmental Law (MIT Press 2008) 25–​43, 177–​207. 78  V Keating, ‘NGOs, Trust and the Accountability Agenda’ (2017) 19(1) British Journal of Politics and International Relations 19(1): 134; S Wang, ‘Autonomy, Political Connections and Organisational Strategies of NGOs in China’ (2015) 13(3) China: An International Journal 72; L Surzhko, ‘Diagnosing the Health of Russia’s Third Sector’ (2015) 16(1) Georgetown Journal of International Affairs 113; E Bindman, ‘The State, Civil Society and Social Rights in Contemporary Russia’ (2015) 31(3) East European Politics 342; B Heath, ‘Accountability and Legitimation Problems Facing the UN Cluster System’ (2014) 47(1) Vanderbilt Journal of Transnational Law 239; X Zhan, ‘Political Opportunities, Resource Constraints and Policy Advocacy of Environmental NGOs in China’ (2013) 91(2) Public Administration 381; H Schmitz, ‘Accountability of Transnational NGOs’ (2012) 41(6) The Nonprofit and Voluntary Sector Quarterly 1175; K Rauh, ‘NGOs, Foreign Donors and Organisations Processes’ (2010) 1 McGill Sociological Review 29; S Ghosh, ‘NGOs as Political Institutions’ (2009) 44(5) Journal of Asian and African Studies 475; G Lehman, ‘The Accountability of NGOs’ (2007) 18(6) Critical Perspectives on Accounting 645; M Maxwell, ‘NGOs in Russia’ (2006) 15(1) Tulane Journal of International and Comparative Law 235; P Kilby, ‘Accountability for Empowerment: Dilemmas Facing NGOs’ (2006) 34(6) World Development 951; A Ebrahim, ‘Accountability in Practice: Mechanisms for NGOs’ (2003) 31(5) World Development 813; Q Ma, ‘The Governance of NGOs in China Since 1978’ (2002) 31(3) Nonprofit and Voluntary Sector Quarterly 31(3); 305; G Sasser, ‘The NGO-​Industrial Complex’ (2001) 125(4) Foreign Policy 56.

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theory and international agreement to practical measures in the twenty-​first century. Significant progress was also made in confronting famine for the first part of the century, with success and improvements also being notable around food aid. However, in both instances, the advances are held in check. In terms of population growth, how far the empowerment context for family planning will work, in addition to the required technical measures to support such efforts succeeds, is unknown. With famine, the applause is being held back by the likelihood of an unprecedented famine, looking likely to ensnare up to 25 million people. The longer-​term challenge is how food security will be reconciled with free trade in agriculture, and whether protectionism will help, or hinder, the hungry. With the need to conserve habitat, although the broad numbers of areas under protection continued to increase with pleasing frequency, the failure to protect, or at least sustainably manage the most important ecosystems, such as tropical forests on the land or coral reefs in the oceans, remained as stark as it had been for the last decades of the twentieth century. Whether desertification will finally be halted is unknown, as targets, despite the topic being on the agenda for over thirty years, have only just been set. With biodiversity conservation, although very admirable targets have been set, there is very little evidence that the overall rate of loss is anything short of catastrophic. Similar declines in fish stocks are noticeable, with the difference being that the plethora of tools that the international community has adopted in this area have, in theory, the chance to start to create regulated markets that exclude unsustainable fisheries. A similar conclusion is evident with fresh water conservation, in that the growth in laws and policies to ensure sustainability at the macro level is very pleasing, although whether these will be translated into meaningful policies in many parts of the world, only time will tell. As the climate continued to change, the international community has made good progress on the creation of new regimes to address the problem. The difficulty is that the soft nature of the commitments, coupled with the limits on what was promised, and those now willing to keep their promises, suggests that it will not be adequate, without revision, to stop dangerous change to the climatic system. The upside of this situation is that market forces are now driving the growth in both solar and wind technologies to the point that these should eclipse carbon-​based fuels during the twenty-​first century. Conversely, with nuclear power, owing to an ongoing legacy of accidents and waste, its share in the future of energy for the planet looks to be shrinking. Good success was achieved by the international community in the first part of the twenty-​first century in finally confronting many of the chemical pollutants that caused great difficulties in the twentieth century. The challenge now is in finding ways to understand and regulate the risks caused by the second generation of pollutants. A similar situation exists with air pollution (but at the regional level) in that solid progress in confronting traditional forms of air pollution in the developed world that began in the 1990s continued into the twenty-​first century. Although more modern types of air pollution caused by smaller pieces of particulate matter (a second-​generation type of air pollution) remain very significant concerns, clear progress has been made in making the air in the developed world much better than

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it was. The same cannot be said for the developing world, which is now, in many places, reaping a whirlwind of traditional and modern forms of air pollution, without the political will or legal tools to find the same solutions that have led to strong benefits in the developed world. The same conclusion largely applies to the problem of municipal and human waste, in which the technologies and standards applicable in some of the wealthier parts of the globe are not necessarily being met in some of the poorer parts. Meeting the targets that the international community has set itself in these areas will be very difficult. The push towards greater public participation continued into the twenty-​first century, with the difference being a greater focus on new actors (indigenous groups) entering the discourse, to accompany an ever-​growing number of NGOs seeking to influence domestic and international policy. Where there was change was in a growing push-​back against NGOs in order to obtain greater transparency and accountability for their efforts. This push-​back has ranged from procedural to political, and can be expected to accelerate in the future, as the voices seeking to determine pathways to sustainable development grow louder.

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10 Conclusion This book has looked at the idea of sustainable development as a three-​legged stool, made up of economic, social, and environmental parts, over the period of human history. As I see it, humanity has been unsustainable in all three areas for most of its history, although in the last few hundred years the scale of unsustainability has increased. This unsustainability has occurred a​ t the same time as answers have begun to appear on how to confront many of the problems at hand. This conclusion can be seen in two parts, namely the economic and social sides of sustainable development; and then the environmental ones.

1.  The Economic and Social Sides of Sustainable Development Between the years 10,000 bce to 400 bce, human existence was precarious. Our numbers were small, life expectancy short, and there was rarely surplus to allow our ancestors to escape from the perpetual risk of famine. The division of humanity between hunters and gatherers, and those who pursued agriculture (and with it technology and specialization) only started to show real change from 500 bce onwards, as Greek, Roman, and Chinese civilizations started to emerge and show advances. Conditions, in terms of life expectancy and population growth, improved a little with ancient civilizations in Greece, Italy, and China, as did their nascent economies and international exchanges. At the same time, the gaps between the haves and have-​nots became apparent, although each society also introduced practices by which those at the very bottom would have some sustenance in times of need. As minimal as these interventions were, they were exemplars compared to what happened next. Poverty was extreme and life expectancy went backwards in the Middle Ages. Most economies struggled to progress. Matters only started to change from 1300 onwards, as science, commerce, and laws began to trigger economic growth. Although poverty for the vast majority of people continued to be dire, famine was pushed back a little as new technologies and practices started to accelerate agricultural and commercial output. The nineteenth century saw humanity begin to break free from an existence which, for most of its own history, had been barely above subsistence. Actors which we know in modernity, from non-​governmental organizations, to labour unions, through to transnational corporations, fully developed in this century as science,

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technology, legal systems, and social conscience combined to provide the building blocks for an economic and social burst that had never been seen previously in all of human history. Most importantly, rather than things becoming worse for working people (as Marx predicted), things started to improve. The quest for economic and social sustainability took another turn in the first half of the twentieth century, as apart from the two global conflicts, overall, nations and the international community struggled. Where progress was most notable was in the social arena. Advances were obvious with the area of workers’ rights and the achievements of the International Labour Organization. Such improvements were supplemented by the progress for the working class in both Russia and in the United States, as well as most other Western countries. The further advances in the welfare state solidified this progress. Much of the social progress that occurred in the West only happened after an unprecedented economic disaster, in which most of the world’s economies and the international commercial exchanges between them went into reverse. The Great Depression not only saw the melt-​down of many industrial economies, but it also signalled an end to any free-​trade advocacy, the creation of large-​scale sovereign debt, and the casting adrift of the developed from the developing world. This meant that the economic side of sustainable development fell apart. After the Second World War and up until 1970, it appeared that most of the world was advancing economically, and in social terms also, as life expectancy increased, social welfare expanded in the developed world, and the development of labour rights again accelerated. All of this progress was consistent with the overall goal that ‘development’ would be spread over the entire world, and all countries would benefit. Where it was different from the past was that, after the Second World War, the developed world laid the foundations for the modern international trade system and the basis for modern international financial assistance. Unlike the Communist and developing world, the Western part of the planet, looked outwards and sought more, not less, economic integration. While the Communist world recoiled from the ideals of international trade, the developing world became attracted to ideals of self-​sufficiency, in both political and economic terms. To further these goals, the tide turned against transnational corporations. The problem that became apparent by the 1970s was that economic autarky was not financially sustainable. The wave of this problem broke in the 1980s when much of the economic vitality of the developed world slowed, and that of the developing world collapsed. The debt crisis that followed consumed the developing world to such a degree that it reversed much of the economic and social progress that had been achieved in the decades after the Second World War. Economic survival was only possible through refinancing and following the conditional demands of organizations such as the International Monetary Fund. The result, which overlapped with the end of the Cold War, was multifaceted. On one level, free trade went from being a focus of the developed world to the entire world, while on another level, international assistance became scarce and the developed world started to cast a jaundiced eye on the developing world. On a third

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level, the efforts that for decades had attempted to control key players at the international level, such as transnational corporations, evaporated, only to be replaced with new rhetoric in the 1990s about voluntary initiatives and responsible corporate citizenship. The 1990s and then the twenty-​first century saw overall progress in terms of human longevity in most, but not all, areas. The debt problems of earlier decades for the developing world changed into a new type of difficulty for many countries in economic transition during the 1990s. Although the international community is yet to develop necessary mechanisms to slow down the speed by which financial transfers can occur around the planet and quickly cripple countries with debt, remarkably understated success was achieved in the first decades of the twenty-​first century in containing, to a much more sustainable level than in the past, the traditional debt problems of the world’s poorest countries. Progress also appeared on the question of overseas development assistance. Whereas in the 1990s the amount of aid available in all areas except environmental problems actually fell, in the twenty-​first century the amounts given, and directions undertaken on overseas development assistance, sharpened in a good way. The consolidation of the work and improved results for the Global Environment Facility also displayed solid progress. Solid advances were also evidenced in the 1990s and early decades of the twenty-​first century as the topic of corruption and the need to combat it became well recognized on the international stage. As important as all these issues were, the biggest change of all in the 1990s and then in the first decades of the twenty-​first century was that of free trade, as first the NAFTA, and then the World Trade Organization came into being. Many hoped when these were created that free trade and environmental sustainability would go hand in hand. However, when both the lack of recognition of social and environmental standards and the arising of deep uncertainties about their compatibility emerged, the optimistic outlook began to be challenged. These challenges persisted into the twenty-​first century, from which it became clear that unless free trade could do more to deal with the distributional impacts of the mechanism (so that inequality is not accelerated), while also reconciling the need to deal with environmentally damaging subsidies and the incorporation of the most fundamental of labour standards, then it is far from clear that free trade will lead to sustainable development. The twenty-​first century was also novel in the way that it came to deal with transnational corporations, which continued to go from strength to strength. Here, although voluntary initiatives such as the Global Compact were commendable, the small scale of its uptake spoke for itself. It also became evident that, although only a minority of corporations would accept such voluntary limits, and only a very few would actually break laws, many would (and will) push laws to their boundaries. To this end, the international community scored two successes. First, it sought direct international regulation of the most harmful products (tobacco) and, secondly, it started to control the ability of such corporations to seek tax havens (where they had not generated their profits). So too with the rights of transnational corporations in bilateral investment treaties, the pendulum started to swing back towards a position which does not give too much power to foreign corporate investors.

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2.  The Environmental Side of Sustainable Development The destruction of habitat, especially forests, and overexploitation of species was the pattern of pre-​Antiquity civilizations. There is no evidence of long-​term environmental sustainability in any of these eras. Even when the first great human civilizations appeared in Greece, Italy, and China, the advances that each of them made was often at the price of the natural world. Despite the first sets of rules over sustainability considerations and some impressive advances in topics including sanitation, the overall pattern was about habitat destruction, species exhaustion, and pollution. This pattern did not change in the centuries to come, with by the year 1000, environmental destruction in terms of deforestation hitting unprecedented rates, while the few urban areas that were starting to emerge were stinking places in terms of both waste, and from the thirteenth century, coal-​based air pollution. This period was unsustainable development at high speed. The only difference that occurred in the run up to the nineteenth century and humanity reaching 1 billion people on Earth was that the countries that were beginning to advance economically started to develop some environmental standards for themselves, while outsourcing their environmental demands to their colonies. In the nineteenth century, although there were clear social and economic improvements, with the environment, unsustainable practices were the rule. Large-​ scale famines (more to do with poverty and hopeless social welfare policies than overall ecological scarcity of food) stained the nineteenth century, to which fears about overpopulation began to be clearly articulated. Habitat loss and species loss were accelerating, as were unprecedented degrees of air, water, and chemical pollution. The difference compared to earlier epochs was that the problems were now being acknowledged and the first small steps towards confronting them, especially in older established countries (as opposed to the colonies) were being undertaken. Although the responses were pathetic compared to the problems they were facing, the seeds were laid. In environmental terms, as human population went from 1 billion to 2.5 billion, there were a few wins in the sustainability challenge in the first half of the twentieth century. The most obvious successes were with regard to some parts of conservation in terms of the protection of habitat, species, and fresh water conservation. Many of the principles and (the first) international treaties that emerged in this period remain as the templates on such issues in the twenty-​first century. The most obvious losses were with regard to pollution. Despite the arrival of the key principles of transnational pollution at the end of this period, this was a time of growing air pollution at the local, national, and regional levels. In other instances, unbeknown to the decision-​makers of the age, a new generation of toxics that would go on to damage future generations, such as lead, persistent organic pollutants, PCBs, and asbestos would arise. After the Second World War, the biggest advance on the environmental side of the equation was that environmentalism found its voice, from which NGOs and principles of public participation would proliferate quickly over the coming

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decades. This advance in public participation would come to include, specifically, women, NGOs, and indigenous groups. It would not be until the twenty-​first century that demands for greater transparency and accountability for NGOs would start to reply. This voice that NGOs first found in the 1960s was necessary as this epoch, as human population went from 2.5 to 3.7 billion people, was not displaying many sustainable traits, and even the most fundamental issues such as population growth received little international attention. Although the international community scored some success in confronting habitat loss with the protection of a few key areas and the creation of mechanisms by which to proceed, in all, loss of habitat continued with little restraint. This was especially the case in the tropics and communist countries, in which exploitation, not conservation, of forests and wetlands, was the order of the decades. Similar approaches were evident with species management, although this was clearly on the international agenda by the end of the 1960s. Although some of the non-​carbon energy producing technologies emerged in this period, coal still dominated the age. The change was in the 1960s, when oil became the primary source of fuel and nuclear energy became the hope of the future. In all instances, there was no progress. Nuclear energy quickly proved itself to be prone to accidents and the generator of very long-​term waste. Oil proved itself to be instrumental in the creation of new types of mobile source air pollution. The success in this area was in the creation of universal health standards for air pollution, and following some unprecedented deaths in the developed world, as caused by extreme episodic events directly related to air pollution, national laws that started to take control of the situation and seriously control air pollution caused by coal at the local level. A similar progress, in terms of new laws, except now at the regional level, accompanied the rise of fresh water pollution. For ocean pollution and the extreme level risks of nuclear dumping into the high seas, the international community could agree a prohibition. The international community could also agree compensation and liability regimes for accidents caused by oil tankers. The larger difficulty was that both national and international communities were being outpaced by rapid changes in demand, supply, and innovation that accelerated after the Second World War. This problem became evident in the areas of incineration of waste, as well as in the evidence that began to amass regarding a series of chemicals and industrial products in common usage, but in ways that previous understandings of toxicology had never revealed. Elsewhere, potential problems such as climate change and ozone depletion were just beginning to come into view. The two decades that followed had to deal with these environmental problems, in addition to another layer of previously unforeseen challenges, ranging from Chernobyl and the Exxon Valdez, through to the shrinking ozone layer, and human population growth, which continued to rise from 3.7 to 4.5 billion between 1970 and 1990. The failure to achieve environmental sustainability for these decades involved the continued reluctance of the international community to address population growth and habitat loss (especially of tropical forests). In addition, although new rules on liability for nuclear accidents emerged post-​Chernobyl, the same question for transboundary industrial accidents was then, as now, unanswered.

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Although the scale and diversity of environmental problems expanded quickly in this period, the difficulties were, in part, offset by some real progress in the quest for environmental sustainability in this period. At the conceptual level, the biggest development was that the idea of sustainable development, as a three-​way relationship with the environment, the economy, and social considerations all occupying different points of a triangle. This idea emerged and was fully accepted by the international community in this period. At the practical level, the creation of ground-​breaking conventions for habitat, wildlife, and fisheries conservation reached levels that completely eclipsed any forms of international cooperation that had occurred in the past. Positive change compared to earlier decades also occurred with air pollution in the developed world, as national understandings turned into regional agreements from which ambient concentrations of lead, sulphur dioxide, and nitrogen oxides began to fall. Spectacular success also followed with creating a mechanism to deal with the protection of the ozone layer and the foundations for the international scientific understanding of climate change. Success was also found in concluding regimes to start to regulate the trade in hazardous waste; and also to necessitate the giving of prior informed consent for the trade in dangerous chemicals and pesticides. Good starting rules on the dumping or incineration of waste into the ocean evolved and these were complemented with rules which began to set new standards that started to combat the plague of oil tanker accidents. Other good news from the 1990s was that, as human population went from 5 to 6 billion, the issue was finally recognized as a serious concern to which the principle of voluntary choice in family planning was largely accepted and the first targets on (universal) access to contraception accepted. By the time of the twenty-​first century, the scale of the optimism began to shrink as human numbers were projected to increase to 11.2 billion over the course of the century. Now, the question is how deep will the tools necessary to slow population growth, namely family planning, be allowed to function to help slow the growth in many of the world’s poorest countries. On a more positive note, despite rising population numbers, significant progress was made in confronting famine for the 1990s and for the first part of the twenty-​first century, with success and improvements also being notable around food aid. However, in both instances, the advances are held in check. With famine, the applause is being held back by the likelihood of an unprecedented famine, looking likely to ensnare up to 25 million people. The longer-​term challenge is how food security will be reconciled with free trade in agriculture, and whether protectionism will help, or hinder, the hungry. In the 1990s, in addition to a pleasing growth of protected areas, progress was made in terms of the habitat protection of the Antarctic, but failed to obtain traction with either tropical forests or desertification. This same pattern largely repeated itself in the twenty-​first century with the continued failure to protect, or at least sustainably manage, the most important ecosystems such as tropical forests on the land or coral reefs in the oceans. Whether desertification will finally be halted is unknown, as targets, despite the topic being on the agenda for over thirty years, have only just

258

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been set. With biodiversity conservation, although very admirable targets have been set since the 1990s, there is very little evidence in the twenty-​first century that the overall rate of loss is anything short of catastrophic. Similar declines in fish stocks are noticeable, with the difference that the plethora of tools that the international community has adopted in this area have, in theory, the chance to start to create regulated markets that exclude unsustainable fisheries. In terms of energy provision, the 1990s saw solar and wind continue to grow from small beginnings, and a strong burst of support for energy efficiency, while nuclear energy began to fall from favour. This trend continued into the twenty-​first century to the point that these technologies should eclipse carbon-​based fuels at some point during the twenty-​first century. Conversely, with nuclear power, owing to an ongoing legacy of accidents and waste, its share in the future of energy for the planet looks to be shrinking. This meant that fossil fuel-​based energy sources continued to dominate the last decade of the twentieth century and the opening decades of the twenty-​first century. In terms of air pollution, the improvements of the developed world in defeating first generation large-​scale particulate matter pollutants continued, although in this decade, a new challenge of small-​scale particulate matter air, transport-​based air pollution, albeit on a lesser scale, emerged. Air pollution in the developing world told a different story, which was now dealing with all types of air pollution, as well as poor air standards for everything from the burning of foliage through to the incineration of waste. In this part of the world, it appears that it is no longer a question of science but, rather, a willingness to engage the same political will and legal tools to build the same solutions that have led to strong benefits in the reduction of air pollution in the developed world. The same conclusion largely applies to the problem of municipal and human waste, in which the technologies and standards applicable in some of the wealthier parts of the globe are not necessarily being met in some of the poorer parts. Meeting the targets that the international community has set itself in these areas will be very difficult. Similarly, with fresh water conservation there has been no shortage of the creation of new laws and rules mandating and charting what sustainable fresh water systems will look like in the twenty-​first century. The problem will be translating these into meaningful policies in many parts of the world. Progress can be noted with ocean pollution such as with the creation of a suite of new measures that sought (and did) make improvements in everything from shipping design, through to shipping routes, and thus, in one area, helping to make the oceans cleaner. The reason why the success stopped was that, despite a very radical and positive rewriting of the international laws on ocean dumping, in the realization that a new type of ocean pollution, that of plastic, was beginning to appear, it became clear that there was no obvious international answer as most of the waste comes from land (not ocean)-​based sources. Similarly, good success was achieved by the international community in the first part of the twenty-​first century in finally confronting many of the chemical pollutants that caused great difficulties in the twentieth century. The challenge now is in finding ways to understand and regulate the risks caused by the second and third generation of pollutants.

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Finally, clear success was also reached in legal agreements in the 1990s to confront climate change. The problem was that, by the end of the century, neither the original convention nor its protocol were going to solve the problem, and all of their targets were about to be eclipsed by the rapidly rising emissions from the developing world. Undeterred, the international community returned to the problem in the form of the Paris Agreement. The difficulty now is that the soft nature of the commitments, coupled with the limits on what was promised, and those now willing to keep their promises, suggests that it will not be adequate, without revision, to stop dangerous change to the climatic system.

3.  The Last Words In sum, it is only in the last two centuries that we, as a species, have started to make progress on the social and economic sides of the equation for sustainable development. Although a very long road lies ahead, I am quietly confident that, with the correct selection of tools and considerable advancement on what we already possess, solid and positive foundations for these two parts of sustainable development are possible as the world progressively globalizes. This, however, is not a foregone conclusion. Despite a number of recent positive indicators in this area, there are still very large unanswered questions with existing mechanisms and other gaps in the international architecture, which, if not fixed, could quickly make problems of economic and social sustainability worse, not better. With the third part of sustainable development, that for the environment, my optimism is not as strong. I do not see any point in history when the human race has ever really been neutral in our impacts. The good news is that, since the nineteenth century, science, laws, and policies have evolved and expanded from the national to the international level. We now have all the tools we need to solve problems of too much fertility, conservation, and pollution. I cannot see any environmental problem that cannot be solved. In many areas, especially in the developed world, success is already easy to measure, and clear progress is being achieved in some places. Where it is not easy to measure, and pessimism creeps in, is in the developing world, which is now inheriting a scale and mixture of environmental difficulties that are simply unprecedented. When these difficulties are transferred to the international arena and a new generation of environmental challenges is added, along with the realization that there is little evidence that meaningful progress is being made on many fundamental issues required to ensure the long-​term environmental sustainability of the planet, the size of the challenges before us, and our children, become apparent.

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Index abortion  58, 85–​6, 119 acid rain 125 Adaptation Fund 202n42, 203 African Development Fund 204 agricultural-​based communities 7 Aichi Targets 225 aid 1970–​1990  110–​11 air pollution  2–​3, 12, 18, 21, 23, 44, 183 1970–​1990  124–​7 1990s  174–​5 Nineteenth Century  36–​7 Second World War–​1970  92–​4 Twentieth Century, first half of  63–​5 Twenty-​first Century  237–​9 Aleman, Arnold 147 alternative energy Twenty-​first Century  235–​7 aluminium 97 Amazon 214 American National Park Service 61 American Tobacco 23 Amoco 159 Annan, Kofi  179, 186, 207 antiquity  1, 8–​12 before  6–​8 environment context  10–​12 social context  8–​10 Aristotle 8 Arrhenius, Svante 37, 38 arsenic 42, 66 see also poisons asbestos  65–​6, 70, 140, 255 Asian Development Bank 146 atomic energy  90–​1 authoritarianism 73 automobile industry  23, 46, 49, 64, 72, 94, 175, 210, 238 aviation 46 Baekeland, Leo 46 Bali Package  192, 224–​5 Bank of England 104 Barclays Bank 206 Baring Brothers of London 26 Beijing Platform for Action 220 benefit distribution 3 Biblical references  7–​8 bilateral investment treaties (BITs) 3, 81–​2, 114, 211–​13 see also investment treaties Bill and Melinda Gates Foundation 200 biodiversity

definition 123 loss (1990s)  169 loss (Twenty-​first Century)  229–​30 biological surveys 100n88 birdlife 35 Blyth, James 36 breastfeeding 112 Bretton Woods institutions 104, 182 Brezhnev, Leonid 79 British Antarctic Survey 128 Bush, George (Snr) 148, 162 Bush, George W. 131 Buying for Empire campaigns 52 Calvo, Carlos 81 Calvo Doctrine 81 Camdessus, Michael 108 Cantillon, Richard 16 capitalism  28–​9, 48, 73 Carson, Rachel  98, 137–​8 Carter, Jimmy  110, 119, 125, 137, 139 Ceausescu, Nicolae 86 Cenozoic era 6 Central Intelligence Agency (CIA) 111 Chapin, Daryl 90 chemical pollution  2, 44, 66, 140 Twenty-​first Century  246–​8 Chemicals Review Committee 140 Chernobyl  3, 99, 103, 134–​5, 142, 172, 235, 256 child health 112 child labour  57, 197, 209 chlorofluorocarbons (CFCs) 94 see also greenhouse gas emissions cholera  39–​40, 80 see also infectious diseases Christianity 9, 11, 14 civil society 1970–​1990  140–​1 Nineteenth Century  43 Second World War–​1970  100–​1 Civilian Conservation Corps 68 climate change  2–​4, 11, 32, 183 1970–​1990  130–​1 1990s  173–​4 Nineteenth Century  37–​8 ozone considerations and  94 Second World War–​1970  94 Twenty-​first Century  232–​5 Clinton, William 196 coal  18, 20, 36, 64, 94, 175 Coalition for Environmentally Responsible Economies 113

26

262

Index

Coca Cola 23, 72 Cold War  142, 146–​7, 253 collapse 1970–​1990  108–​10 collective bargaining 73, 209 colonialism  80–​1 Colt Firearms 23 Commission on Sustainable Development  160–​1, 165 communism  2, 28–​9, 48, 56, 73–​86, 101–​2, 105, 175, 253 Second World War–​1970  99–​100 Comprehensive Framework for Action 223 Consultative Commission for the International Protection of Nature (IUCN) 49 consumerism  13, 22, 80, 164 green 243 see also ethical consumerism contraceptives  58, 85–​6, 118, 166, 187, 220 copper smelting 36 Corn Laws 24 Corporate Average Fuel Economy 126 corruption 3, 201 1990s  146–​7 Twenty-​first Century  203–​4 Council for Mutual Economic Assistance 74 credit default 53 crops  15, 25, 201 de Condorcet, Marquis de 22 de Saint Simon, Henri 30 de Schutter, Olivier 224 debt 2, 83 1970–​1990  106–​8 1990s  144–​6 international 26 Twenty-​first Century  204–​6 Deere, John 32 desertification 168 Twentieth Century, first half of  68–​9 developing world development and  79–​84 interests of 155 Second World War–​1970  79–​84 WTO 155 dichlorodiphenyl-​trichloroethane (DDT)  66, 97–​8, 102 dioxin 138 discrimination 73, 209 disease  46, 187–8, 201 dispute settlement 154 see also ICSID Doha round  155, 192, 223 domestication of plants 7 drainage 12, 14 drinking water 240 Du Pont 55 Dust Bowl 68 Duvalier, Francois 84 Duvalier, Jean-​Claude 84

Earth Day of April 22nd 1970 140 earth, evolution of the  5–​6 East India Company 17 Eastland Company 17 economic growth  1–​2 Nineteenth Century  22–​7 Second World War–​1970  71–​2 education 30, 187 Eisenhower, Dwight 88 El Nino 32 electricity  22, 36, 236 electronic waste 243 emigration 32 endangered species Second World War–​1970  89–​90 energy efficiency  236–​7 labels 215 Engels, Frederick  27–​9 engineering 11 Enlightenment era  15–​22, 186 context  20–​1 economic context  15–​18 environmental context  18–​20 social context  15–​18 environment Twenty-​first Century  219–​51 WTO  156–​9 Environmental Guidelines for World Industry 113 Environmental Protection Agency 114 equal remuneration 73 Estrada, Joseph 147 ethical consumerism 196 1990s  180–​1 Twenty-​first Century  215–​16 see also consumerism European Commission (EC) 129 Evelyn, John 18 extinction  5–​7 Exxon 159 Exxon Mobil 207 Exxon Valdez disaster  113, 142, 256 Facebook 214 factory conditions 43, 57 fair trade 80, 181 fairness, definition of 181 famine  1, 7, 15–​16, 20–​1, 24, 31–​2, 44, 53, 85, 116–​17, 257 Twenty-​first Century  221–​5 FAO see Food and Agricultural Organization Farman, Joe 128 Federal Reserve (US) 104 fertilizers 32 First United Nations Development Decade 78 First World Congress on Protected Areas 88 First World Economic Conference 51

263

Index First World War (WWI) post-​war context  47–​51 pre-​war context  45–​7 fisheries  35, 62, 123, 258 1990s  169–​71 dragging 11 illegal, unregulated, and unreported (IUU)  231 subsidies 195 trawling 11, 14 Twenty-​first Century  230–​2 unsustainable  230–​2 Food and Agricultural Organization (FAO)  76, 87, 139–​40, 170–1 food crisis (2008) 223 food security, definition 222n9 food shortages 12 forced labour 73, 209 Ford, Henry 46, 50 Ford 47, 72 forest loss  10–​11 Fort Jefferson National Monument 61 Fourier, Charles 31 Fourier, Jean-​Baptiste Joseph 37 free trade  2–​3, 25–​6, 33, 52 freedom of association 73, 209 free-​market economics 3 free-​range eggs 215 fresh water conservation  2, 44, 70, 183, 256 1990s  178–​9 Nineteenth Century  38–​9 Second World War–​1970  95 Twenty-​first Century  239–​41 fresh water management 1970–​1990  131–​2 Twentieth Century, first half of  63 Friends of the Earth 100 Fujimori, Alberto 147 Fukushima accident 235 Fuller, Calvin 90 G8 (Group of 8) 207 G77 (Group of 77) 80 Galbraith, John Kenneth 71 Gandhi, Mahatma 79 Geldof, Bob 140 gender equality 188n6 see also women General Electric  23, 47, 55, 206–​7 General Motors 72 glasnost and perestroika 105 Global 500 Forum 160 Global Biodiversity Outlook 229 global compact Twenty-​first Century  207–​11 transnational corporations  207–​11 see also United Nations Global Compact Global Environmental Facility (GEF)  148–​9, 201–​3, 217 globalization  25, 28, 161, 190, 207

Godwin, William 22 gold  23–​4 Goldman Sachs Group 206 Goodyear 55 Google 214 Gorbachev, Mikhail 105 Great Barrier Reef 226 Great Depression  2, 45–​6, 69 Twentieth Century, first half of  51–​3 Great Leap Forward  84–​5 Green Climate Fund  201–​2, 235 Green Revolution  82–​3, 102 greenhouse gas emissions 151–2, 173–​4, 233–​4 Greenpeace 140–1 gross domestic product (GDP)  15, 24, 26, 51, 72, 83–​4, 146, 149, 191 growth transnational corporations  206–​7 Twenty-​first Century  191, 206–​7 see also economic growth Guidelines for Multilateral Enterprises 208 habitat 1970–​1990  119–​21 loss  2–​4, 20, 44, 69 1990s  166–​8 Nineteenth Century  33–​4 Second World War–​1970  86–​9 Twenty-​first Century  225–​9 Twentieth Century, first half of  58–​9 Habitat II conference 160 Hajime, Hosokawa 98 Hamilton, Alexander 17 Han government 12 Hanseatic cities 24 Harmon Doctrine (1895) 39 Harper, Stephen 131 haze pollution 239 health insurance 30 herding of animals 7 Hetch Hetchy dam 61 Heyerdahl, Thor 96 Highly Indebted Poor Country Initiative (HIPC)  145, 204–​5 Hitler, Adolf 58 HIV/​AIDs  186–​7 human evolution  5–​6 human progress Twenty-​first Century  185–​6 human rights 163, 209 covenants 73 human waste 18 Nineteenth Century  39–​40 Twenty-​first Century  244–​6 see also sewage humanity, period before  5–​6 hunting  14, 35, 122

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Index

IBM 72 ICSID (International Centre for the Settlement of Investment Disputes) 212–13 industrial accidents 1970–​1990  134–​5 Industrial Revolution  1–​2, 22–​3, 28–​31, 185–​6 antiquity  8–​12 environment context  10–​12 social context  8–​10 before antiquity  6–​8 before humanity  5–​6 context 5 developments prior to  5–​21 environmental impact of  44 fresh water conservation  38 Middle Ages  13–​14 economic context  13 environmental context  14 social context  13 Reformation era to the Enlightenment era  15–​21 context  20–​1 economic context  15–​18 environmental context  18–​20 social context  15–​18 inequality Twenty-​first Century  190–​1 infant mortality  15, 187–​8 infectious diseases 80 Inland Waters Commission 63 intellectual property rights 212 Intergovernmental Panel on Climate Change (IPCC)  130–​1, 173 International Atomic Energy Agency (IAEA)  76, 91, 101, 171 International Center for Research on Whaling (ICRW) 90n56 International Chamber of Commerce (ICC)  49, 113, 160 International Code of Marketing of Breast-​Milk Substitutes 112 International Commission for the Conservation of Atlantic Tuna 231 International Committee for Bird Preservation 62 International Committee of the Red Cross (ICRC) 49 International Conference on Human Rights 86 International Congress for the Protection of Nature 49, 61 International Coral Reef Initiative 227 International Council for the Exploration of the Sea 59 International Council of Scientific Unions (ICSU) 59 International Court of Justice (ICJ)  65, 114, 123, 161–2, 178, 183, 239–​40 international development Second World War–​1970  75–​8

International Development Association (IDA) 76 International Finance Corporation (IFC) 76 International Geophysical Year (1957–​58),  87–​8 International Joint Commissions 63 International Labour Organization (ILO)  55–​7, 69, 73, 103, 113, 138, 155, 197–​8, 208, 253 International Maritime Organization (IMO) 96, 176 International Monetary Fund (IMF) 76, 107–​8, 141, 144–​6, 204, 253 International Standardization Organization (ISO) 160 International Trade Organization (ITO)  74–​5 International Tropical Timber Organization (ITTO) 228 International Union for Conservation of Nature (IUCN)  88–​9, 100 International Union for the Scientific Study of Population 58 International Whaling Commission 122 investment treaties transnational corporations  211–​13 Twenty-​first Century  211–​13 see also bilateral investment treaties (BITs) IPCC reports 233 irrigation  6, 12, 32, 39n44, 167 ISDS mechanism  211–​13 Johnson, Lyndon 73 JP Morgan Chase and Co. 206 Keeling, Charles 94 Kehoe, Robert 50 Kellogg’s 46 Kennedy Round 75, 81 Kennedy, J. F. 73 Kettering, Charles 50 Keynes, John Maynard 46, 52 Khrushchev, Nikita 79 Ki-​moon, Ban 207 Kodak 55 Krueger National Park 34 Kyshtym incident 91 L’union Meunière 81 labour freedom 73 rights 197, 209 standards  3, 30, 55–​7 WTO 155 laissez-​faire economics 30 landfill sites 244 Lazarenko, Pavlo 147 lead 255, 257 lead-​acid batteries  153–​4 pollution 124 League and the Permanent Mandates Commission 48

265

Index League of Nations  47–​8, 51, 55, 62, 64 Least Developed Countries (LDCs) 109, 155, 186, 189, 191–​3, 221–​4, 240 Least Developed Countries Fund 202n42, 203 Lend-​Lease programme 77 life expectancy  185–​6 Limits to Growth report 117 Lincoln, Abraham 25 Live Aid 140 Love Canal 136 LRTAP regime  175–​6 Luddites 27 Lumumba, Patrice 81 Lysenko, Trofim 99 malaria  97, 187, 201 Malthus, Thomas  29, 31, 32, 85 Man and Biosphere programme  88–​9, 102 manufactured goods  196–​7 Mao Zedong 80, 99 Marcos, Ferdinand 110 Marine Stewardship Council  180–​1 MARPOL 134 Marshall Plan 77 Marx, Karl  22, 28–​30, 44, 253 mass communication  22–​3 maternal mortality 188n6 McDonalds 72 McNamara, Robert 115 mechanization 32 media 23 Medicaid 73 medical advances 31n25 Medicare 73 Merchant Adventurers 17 Mercosur 105 mercury  43, 98, 202n42, 246 metal  6–​7 Microsoft 159 Middle Ages  1, 13–​14, 20 economic context  13 environmental context  14 social context  13 Midgley, Thomas 66 migration  150–​2 Mill, John Stewart 31 Millennium Development Goals (MDG)  186–​8 perspectives  188–​92, 200–​1, 204, 217, 220–​2, 225–​9, 235, 245 Millennium Ecosystem Assessment 229 mining coal 30n22 metal 12, 19 Mitsubishi 49 Mitsui 49 MMT (methylcyclopentacienyl manganese tricarbonyl) 151 Mobil 159 Molina, Mario 128

Monterrey Consensus on International Financing 204 Morgan Partners 55 Most Favoured Nation (MFN) principle  24, 74, 154 Mueller, Paul 66 Multilateral Agreement on Investment (MAI) 161 Multilateral Debt Relief Initiative (MDRI) 204 multilateral organizations 200 municipal waste Nineteenth Century  40–​1 Twenty-​first Century  242–​4 Muscovy Company 17 Muslim world 13, 15 Mussolini, Benito 58 NAFTA (North American Free Trade Agreement) 1990s  149–​52 see also trade narcotics 46 NASA (National Aeronautics and Space Administration) 129 National Health Service (NHS) 72 National Trust 34 nationalization 29 natural disasters 12 necessary, definition of 157 Nehru, Jawaharlal 79 Nestlé, 112 New Deal 55, 68 New International Economic Order (NIEO) 104, 160 new pollutants 1970–​1990  137–​40 old pollutants and  65–​7 Second World War–​1970  97–​9 Twentieth Century, first half of  65–​7 Nineteenth Century  22–​44 air pollution  36–​7 civil society  43 climate change  37–​8 context 44 economic growth  22–​7 fresh water conservation  38–​9 habitat loss  33–​4 human waste  39–​40 municipal waste  40–​1 poisons  42–​3 population growth  31–​3 social concerns  27–​31 species loss  34–​6 Nineteen Nineties  143–​84 air pollution  174–​5 biodiversity loss  169 climate change  173–​4 context  143, 182–​4 corruption  146–​7

265

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266

Index

Nineteen Nineties (cont.): debt  144–​6 economic and social context  143–​4 ethical consumers  180–​1 fisheries  169–​71 freshwater conservation  178 habitat loss  166–​8 non-​carbon-​based energy  171–​3 ocean pollution  176–​7 overseas assistance  147–​9 popular participation  179–​80 population growth  164–​6 sustainable development  161–​4 trade  149–​59 NAFTA  149–​52 trade in waste  152–​4 World Trade Organization  154–​9 transnational corporations  159–​61 Nixon, Richard 121 Non-​Aligned Movement 79 non-​carbon-​based  energy 1990s  171–​3 Second World War–​1970  90–​2 non-​governmental organizations (NGOs) 43, 48–​9, 55, 61, 69, 74, 98, 100–​1, 106, 112, 139–​41, 161, 179, 200, 208, 248–​9, 251, 255–​6 Non-​Legally Binding Instrument on All Types of Forests 227 non-​profit organizations 200 North Atlantic Fisheries Organization 231 North Pacific Subtropical Convergence Zone 177 Northwest Atlantic Fisheries Organization 123 nuclear accidents 3, 91 1970–​1990  134–​5 nuclear energy  235–​6, 256, 258 nuclear industries  212–​13 nuclear waste  91–​2, 172 Occidental 212 ocean pollution  2–​3 1970–​1990  132–​4 1990s  176–​7 Second World War–​1970  96 oil  23, 47, 125, 134, 256–​7 crisis (1970s)  173 see also tanker accidents old electronics 199 old pollutants see new pollutants Olds, Ransom Eli 46 one child policy 118 OPEC (Organisation of Petroleum Exporting Countries) 81 Organisation for Economic Cooperation and Development (OECD)  72, 74, 77, 91, 113, 146–​7, 161, 190, 204, 208–​9, 214 organize, protection of the right to 73 Ottoman Empire 25

overseas development assistance (ODA) 3, 77 1990s  147–​9 Twenty-​first Century  200–​3 Owen, Robert 30 Oxfam 100 ozone depletion 1970–​1990  128–​30 ozone hole 3, 128 Ozone Trends Panel Report 129 Paris Club  107, 144–​5 Paris International Exposition (1900) 45 Patterson, Clair 124 PCBs (polychlorinated biphenyls) 66, 70, 102, 138, 246, 255 Pearson Commission 86 Pearson, Gerald 90 Persistent Organic Pollutants (POPs)  202n42, 247, 255 pesticides 140 petroleum  23, 50, 81, 159 Philip Morris 212 phossy jaw 56 Pinchot, Gifford 59 Plan of Implementation (2002) 191 plastic pollution  46, 177, 198–​9, 243 Platform for Action 166 Plato 8, 10 Pliny the Elder 11 poaching 35 poison Nineteenth Century  42–​3 poisoning 153 Poor Laws 27, 32 popular participation 1990s  179–​80 population growth 1970–​1990  116–​19 1990s  164–​6 Nineteenth Century  31–​3 Second World War–​1970  84–​6 Twentieth Century, first half of  57–​8 Twenty-​first Century  219–​21 poverty  1, 3, 16, 20–​1, 27, 29, 73, 78, 187 Twenty-​first Century  188–​9 premature mortality 188n6, 238 process and/​or production method (PPMs) 158 Programme of Action 220 proletariat  27–​8 property  8, 11, 19, 29 public health 50 public participation 184 Twenty-​first Century  248–​9 radioactivity  91–​2, 235 railways 33 REACH Regulation 247 Reagan, Ronald  119, 137, 139

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Index recycling  10, 32, 41, 68, 152–​4, 198–​9, 243 see also waste Red List 89 Reformation era  15–​21 context  20–​1 economic context  15–​18 environmental context  18–​20 social context  15–​18 Renaissance 1 Ricardo, David 24 Rio+20 gathering 204, 248 Robertson, Dennis 74 Rockefeller, John David 23, 28 Roman period  8–​11, 20 Roosevelt, Franklin  52, 55–​60, 63, 68, 75 Roosevelt, Theodore 47 Rowland, Sherwood 128 Royal Dutch/​Shell 47 Royal Society for the Prevention of Cruelty to Animals (RSPCA) 43 Salvation Army 56 Sandoz chemical spill 135 sanitation  10, 20, 25, 44, 244–​6 sea-​coal 14 Second Congo War 221 Second World War (WWII) 2, 61, 76–​7, 181, 253 Second World War–​1970  71–​102 air pollution  92–​4 civil society  100–​1 climate change and ozone considerations  94 communist experience  99–​100 context  71, 101–​2 development and the developing world  79–​84 economic growth  71–​2 endangered species  89–​90 freshwater conservation  95 habitat loss  86–​9 international development  75–​8 new pollutants  97–​9 non-​carbon-​based energy  90–​2 ocean pollution  96 population growth  84–​6 social context  72–​3 trade  73–​5 waste management  96–​7 Sese Seko, Mobutu 147 sewage  7, 11, 18–​19, 40, 68 Siemens 47 Sierra Club 43 Singer 47 Singer Sewing Machine 23 Sixth Extinction thesis 169, 183 slavery 8, 46 smelting 12 Smith, Adam  17–​18 Smith, Robert Angus 36

267

smokestack industries 36 smoking  111–​12, 174, 210–​11 see also tobacco Smoot and Hawley laws  51–​2 social concerns 1990s  143–​4 antiquity  8–​10 Enlightenment era  15–​18 Middle Ages  13 Nineteenth Century  27–​31 Reformation era  15–​18 Second World War–​1970  72–​3 sustainable development  252–​4 trade, impact of  196–​8 social democracy 57 social rights 27 social security 73 social welfare  9, 54–​5, 108, 146, 197 Soil Conservation Service 68 solar energy  90, 125, 172, 183, 236, 258 Southern Common Market 105 sovereign debt crises 26 Spanish–​American War (1898) 26 Special Climate Change Fund 202n42, 203 specialization 7 species 1970–​1990  121–​3 endangered  61, 89–​90 loss (Nineteenth Century)  2, 4, 10–​12, 19, 34–​6 management 70 Twentieth Century, first half of  60–​2 Stalin, Joseph  53–​4, 58, 79 Standard Oil Company 23, 55 Starbucks 214 steam engine 18, 38, 45 subsidies 3 suffrage see voting rights sugar 19 Suharto, Mohamed 147 sulphur emissions  18, 127, 175, 257 Sumerian civilization 7 Summers, Lawrence  151–​2 Sustainable Development Goals (SDG)  190–​1, 194–​7, 200–​1, 204, 217, 220–​2, 209–​11, 225–​9, 237, 240, 242, 248 sustainable development 1970–​1990  114–​16 1990s  161–​4 definition 1 economic and social sides of  252–​4 environmental side of  255–​9 historical context and issues  1–​4 Millennium goals  186–​8 overview 259 Swann, Theodore 66 tanker accidents  133–​4, 176–​7, 183, 257 tariffs  25, 51–​2, 74–​5

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268 taxation efficiency 214 transnational corporations  214–​15 Technical Guidelines on Recycling Lead-​Acid Batteries 154 technology, environmentally friendly 195, 209 terrorism  200–​1 Tertullian 11 tobacco  19, 210–​12, 218, 254 see also smoking toxicology  66–​7, 102 trade 1970–​1990  103–​6 1990s  149–​59 blocks 52 domestic  196–​7 environmental challenge  193–​6 international  17, 24, 46, 192, 197–​8 NAFTA  149–​52 pollution havens  198–​9 Second World War–​1970  73–​5 in services  154 support  191–​3 trade in waste  152–​4 Twenty-​first Century  191–​9 unions 30 WTO  154–​9 trade-​related aspects of intellectual property (TRIPs) 154 traffic 23 Trail Smelter principle 93 transboundary water systems 202n42 transnational corporations  2–​3, 49 1970–​1990  111–​14 1990s  159–​61 global compact  207–​11 growth  206–​7 investment treaties  211–​13 taxation of  214–​15 Twenty-​first Century  206–​15 Truman, Harry 77 Trump, Donald  131, 194, 220–​1, 235 Twentieth Century, first half of  45–​70 air pollution  63–​5 desertification  68–​9 Great Depression  51–​3 pre-​First World War context  45–​7 context  45, 69–​70 freshwater management  63 habitat  58–​9 new and old pollutants  65–​7 population growth  57–​8 post-​First World War context  47–​51 social context  53–​7 species  60–​2 Twenty-​first Century context  185, 217–​18 corruption  203–​4 debt  204–​6

Index economic and social context  185–​219 environment  219–​51 air pollution  237–​9 alternative energy  235–​7 biodiversity loss  229–​30 chemical pollutants  246–​8 climatic change  232–​5 context  219, 249–​51 famine  221–​5 freshwater conservation  239–​41 habitat loss  225–​9 human waste  244–​6 municipal waste  242–​4 population growth  219–​21 public participation  248–​9 unsustainable fisheries  230–​2 ethical consumers  215–​16 human progress  185–​6 growth 191 inequality  190–​1 Millennium and sustainable development, goals for  186–​8 overseas development assistance  200–​3 poverty  188–​9 trade  191–​9 domestic, negative social impacts of  196–​7 environmental challenge  193–​6 international, negative social impacts of  197–​8 pollution havens  198–​9 support  191–​3 Tyndall, John 37 Type I Partnerships 208 Type II Partnerships 208 UN Environment Programme (UNEP) 114 unemployment  29, 51, 146 Unilever 180 Union Carbide pesticide plant 113 United Fruit Company 23 United Nations (UN)  47, 75–​7, 82, 109, 113, 160, 179 United Nations Conference on Environment and Development 162 United Nations Conference on Resources 87 United Nations Economic and Social Council (ECOSOC)  88, 160, 248 United Nations Educational, Scientific and Cultural Organization (UNESCO)  88–​9, 101n89, 240–​1nn58–​9 United Nations General Assembly (UNGA)  83, 86, 132 United Nations Global Compact  207–​10, 217, 254 see also global compact United Nations High-​level Task Force on the Global Food Security Crisis 223 United Nations Rapporteur on the Right to Food 224

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Index United Nations World Food Programme 83, 117 United States Forest Service 59 unsustainable development  1, 20, 255 urban planning 14, 30 Uruguay Round  25, 155–​6 vaccinations 31n25, 187 Valdez/​CERES Principles 113 Virunga National Park 61 Vogt, William 85 Volatile Organic Compounds (VOCs) 175 Volkswagen 52, 210 von Linne, Carl 18 voting rights  30, 54–​5 Wall Street crash of  2008 190 war 8, 68 see also Cold War; First World War; Second Congo War; Second World War; Spanish–​American War waste 1970–​1990  136–​7 burning of  7, 41 disposal 2 human  39–​40, 244–​6 management  96–​7 municipal  40–​1, 242–​4 Second World War–​1970  96–​7 trade in  152–​4 see also recycling water pollution  2, 11, 18–​19 Watt, James 38 welfare state 2, 30 wetlands  14, 19, 100, 119 whaling  35, 62, 90, 122 wildlife law  2, 34–​5

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Wilson, Woodrow  46–​7, 50–​1, 61 wind energy  36, 125, 172, 183, 236, 258 Windscale/​Sellafield incident 91 women  141, 166, 188, 220 see also gender equality World Bank  76–​8, 82, 100, 107, 115, 144–​9, 151, 163–​4, 175, 204 World Commission on Environment and Development 109, 113, 115–​16, 119, 138 World Conference on Women 166 World Food Council 117 World Food Programme 83, 117 World Food Summit 165, 223 World Forestry Conference (1926) 59 World Health Assembly 98 World Health Guidelines 175 World Health Organization (WHO) 93, 98, 102, 112, 138, 140, 210, 237 World Industry Council for the Environment 160 World Meteorological Organization  129–​30 World Summit for Social Development 160 World Summit on Sustainable Development  124, 192, 195, 204 World Trade Organization (WTO)  106, 140, 154–​9, 182, 192–​6, 222–​4, 254 developing world, interests of  155 environment, the  156–​9 labour 155 see also trade World Wildlife Fund 100, 180 Yahoo 159 yellow fever  39–​40 Yosemite 34, 61

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