Acid rain and Nordic-Russian cooperation

The recently published book, Greening Europe: Environmental Protection in the Long Twentieth Century – A Handbook, edited by Anna-Katharina Wöbse and Patrick Kupper (De Gruyter Oldenbourg, 2021), has a number of law-related chapters. One is Arne Kaijser's "Combatting 'Acid Rain': Protecting the Common European Sky",  which has an observation on Soviet-Scandinavian relations that takes on additional interest given the news of the day regarding Sweden, Finland, and NATO. The abstract:

In the late 1960s, Scandinavian scientists asserted that the long-range air pollution was causing serious acidification and that emissions all over Europe would have to be diminished. The prevailing view at the time was that air pollution was a local phenomenon best handled by building high smoke-stacks, and the major polluting countries were opposed to spending money on protecting areas far away in other countries. This chapter analyses how the discovery of “acid rain” triggered the first international research projects to confirm long-range air pollution and how, in a second phase, international negotiations involving scientists, policymakers, and diplomats resulted in the Convention on Long-Range Transboundary Air Pollution in 1979. Later on, special protocols were adopted, and the signing nations promised to decrease their emissions in accordance with specific goals. Cold War politics played an interesting role in the negotiations and led to an unexpected alliance between Nordic countries and the Soviet Union.

Effects of acid rain, woods, Jizera Mountains, Czech Republic

Soviet water law

"And Defeat Drought", by Viktor Govorkov (1949)

Both Central Asian and Soviet water law are underexplored in the English-language literature, so I was excited when a friend recently pointed me to an article by Beatrice Penati in the Journal of the Economic and Social History of the Orient, "Continuities and Novelties in Early Soviet Law-Making about Central Asian Water". The article uncovers not only generally unknown histories of water law, but new jurisprudential angles as well. Instead of the abstract, here's an excerpt from the introduction (notes omitted):

The present essay explores the definition of the water rights and water-related obligations of the peasants vis-à-vis the Soviet State. On one level, this study highlights the very high degree of continuity in both personnel and goals between pre- and post-revolutionary “lawfare” in the field of Central Asian water rights and water usage. It also shows how, although Bolshevism offered a solid ideological justification for the supremacy of State rights, it was not easy for this personnel to codify the State-centric approach to water governance in the new Soviet context. As the reader will discover, this is more the story of attempts to regulate, than of effective regulation.

The close observation of these attempts reveals how, in the field of water rights, one could find examples of two opposing situations: a stratification of formal regulations none of which was considered as ultimately binding, and texts that bound even in the absence of a formal sanction. This begs a few further reflections: first, one can ask whether this disorder was deliberately used as a tool of Soviet power, as argued recently by Christian Teichmann, also writing about Soviet irrigation in Central Asia. Second, one must reconsider what made a law in the light of socialist legal theory, thereby nuancing the notion that socio-economic change (here, in the field of water rights) originated from State decisions.

By analysing systematically what inspired and stymied these attempts at the regulation of water, this essay contends that early Soviet “lawfare” about Central Asian water—especially efforts at systematic codification premised on the supremacy of State rights—was constrained by two factors. The first, in continuity with the colonial period, was the persistent idea that indigenous water systems were ultimately impenetrable to outside observers: due to their supposed “irrationality” and “primitiveness”, these systems had been (and still were) regarded as both economically inefficient and impossible to reform, to the point that concessions to “custom” had to be made even after the consolidation of Soviet rule. The second, new factor was the early Soviet de-colonisation imperative, understood here (following Georgii Safarov) as both liberation from the relics of settler colonialism and from those “exploitative elements” which Russian imperialism had supposedly nurtured. This ideological option marked a profound discontinuity with the Tsarist regime in Central Asia, by defining the perimeter of the experts’ legislative initiative. That this factor was ultimately decisive is shown, by contrast, by the fact that socio-economic realities in the field of water and land rights were reshaped more by revolutionary initiatives, than by systematic efforts to change water laws. Despite (or because of) the proliferation of texts, drafts, and commissions, effective transformation did not require more (or more careful) law-writing, but for the Soviets and Party to invest other power resources (e.g. propaganda, coercion, financial means) to achieve a degree of social mobilisation in favour of radical reforms.

For earlier Imperial Russian water law in Central Asia, see here. 

Water law in imperial Russia

The current issue of Water History has an article by Anna Mazanik, "Industrial waste, river pollution and water politics in Central Russia, 1880–1917". First, an extract (footnotes and references omitted):

Imperial Russia did not have a unified legislation on water pollution comparable, for example, to the Rivers Pollution Prevention Act of 1876 in Britain. This did not mean that the tsarist government made no attempt to protect water resources and that the questions of industrial discharge and water pollution were not legally regulated. Rather, their regulation was dispersed across several legal statutes and decrees, often in unclear, repetitive or somewhat contradictory formulations, which meant that even contemporary bureaucrats and experts found it difficult to apply.

Czar Alexander II

The basic principles of water protection were stipulated in the state legislation such as the Medical and Building Statutes and the Statute of Industry. The Medical Statute forbade “contaminating water in places where it was taken for internal consumption by throwing into it harmful substances or in any other way” (ruled in 1871) and obliged local police and municipalities to ensure that “rivers and springs in towns and villages were not polluted.” The Building Statute and the Statute of Industry prohibited the construction of “mills and factories harmful for the purity of air and water upstream of towns.” This norm was inherited from the early nineteenth century and its interpretation and application proved difficult in the later contexts of urban and industrial growth. In 1904, the Senate had to clarify that it applied only to particularly dangerous or poisonous industries, while all other factories could be allowed on condition of proper waste decontamination. 

Cold-War commons

Next in the series of posts on "The Tragedy at 50" (the last one is here), we have Monica Eppinger's "Cold-War Commons: Tragedy, Critique, and the Future of the Illiberal Problem Space". The abstract:

Major twentieth-century social theories like socialism and liberalism depended on property as an explanatory principle, prefiguring a geopolitical rivalry grounded in differing property regimes. This article examines the Cold War as an under-analyzed context for the idea of “the tragedy of the commons.” In Soviet practice, collectivization was meant to provide the material basis for cultivating particular forms of sociability and an antidote to the ills of private property. Outsiders came to conceptualize it as tragic in both economic and political dimensions. Understanding the commons as a site of tragedy informed Western “answers” to the “problem” of Soviet collective ownership when the Cold War ended. Privatization became a mechanism for defusing old tragedies, central to a post-Cold War project of advancing “market democracy.” Meanwhile, the notion of an “illiberal commons” stands ready for redeployment in future situations conceived as tragically problematic.

The constitutional background of the Migratory Bird Treaty

Ecology Law Quarterly recently published a student note by Emma Hamilton, "A Relic of the Past or the Future of Environmental Criminal Law? An Argument for a Broad Interpretation of Liability under the Migratory Bird Treaty Act". The note is mostly normative, but it has an interesting introductory section (apparently relying heavily on Kurk Dorsey's 1998 The Dawn of Conservation Diplomacy). Hamilton explains (notes omitted) that:

early congressional attempts to regulate bird hunting in the United States were driven by broad concerns about conserving and stabilizing bird populations as an important shared resource. After years of advocacy and lobbying, conservationists, scientists, and recreational hunters who wanted to achieve sustainable populations of game birds succeeded in passing the Weeks–McLean Migratory Bird Act in 1913. The Weeks–McLean Act criminalized the killing and transport of migratory birds across state lines within the United States but was declared unconstitutional by two federal district courts for violating the Commerce Clause. Recognizing these constitutional concerns, conservationists pushed ahead to negotiate the international Migratory Bird Treaty with Canada. The constitutional question was declared moot following the ratification of the Treaty, because the Treaty and the subsequent MBTA replaced the Weeks–McClean Act as the federal statutory scheme for protecting migratory birds.

Echoing the goals of the Weeks–McLean Act, the two nations negotiated the Treaty to curb the indiscriminate slaughter of migratory birds and conserve their populations for the future. The Treaty was formalized on August 16, 1916 and ratified by both nations later that year. The Treaty emphasized the particular dangers birds face when their migratory patterns and ability to nest are disrupted. It further recognized that the migratory nature of birds created an additional difficulty in protecting them, as their constant movement across state and even international lines reduced the effectiveness of state game laws aimed at conserving bird populations. As one congressman opined on the House floor during debate over the MBTA:

"Everyone will admit the necessity of preserving these . . . birds. How may they be conserved? . . . No single State may do so. Perhaps it is not too broad a statement to say that even the United States could not do so . . . and it has become evident that if we are to have any effective law which shall preserve these valuable birds that serve such a useful and necessary purpose it must be through the joint action of both countries." 

Water law and imperial control

Roman Yu. Pochekaev recently posted "'Water Law' as an Instrument of Russian Imperial Policy in the Central Asian Khanates". The abstract:

Water has always been an important resource for Central Asian states and peoples. Different rulers at different times used water, and access to it, as an instrument of political and even military influence. When the Russian Empire expanded into Central Asia, seizing substantial parts of three central Asian khanates (Bukhara, Khiva and Khoqand) and established its own protectorate over these states, its also found that water was one of the most effective means to control the rulers and peoples of Central Asia. The use of water and irrigation policy as an instrument of rule was effectively used by the Russian Empire in its relations with the Central Asian khanates and this has already been the subject of investigation. This paper analyses the legal regulation of water use and the irrigation policy of the Russian Empire in Turkestan in order to influence the Bukharan Emirate and the Khivan Khanate during the epoch of the Russian protectorate (1870s–1910s). The paper demonstrates how the internal “water law” was a starting point in Russian policy towards Bukhara and Khiva, and shows that each subsequent stage was closely connected to the evolution of the “water law” in the Russian Turkestan. The sources are official documents (including legal acts) of the Russian Empire, correspondence of Russian and Central Asian statesmen, memoirs of contemporaries and the notes of Russian visitors to khanates (diplomats, engineers, etc.) who participated in the realization of Russian water policy in Bukhara and Khiva and could estimate its effectiveness.

Irrigation map of Turkestan
(Glavnoe Upravlenie Zemleustroistva i Zemledeliya, Otdel Zemel'nykh Uluchshenii 1914)

For more on natural resources law in imperial Russia see here.

Public property in Imperial Russia

Ivan Bilibin, Vasilisa the Beautiful at the Hut of Baba Yaga

A while back we noted the LSA's honorable mention for of Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014) and expressed the hope that we'd hear more about the book soon. The American Historical Review answered our prayer; its latest issue has a review by John Randolph. Some excerpts:

Pravilova perceptively observes that although historians have long debated the status of private property in Russia, little attention has been paid to public goods, distinct from the domains of the Romanovs and those of their individual subjects. Pursuing this quest for a “res publica in the imperial state” across many cultural realms—from forestry and mineralogy to arts and letters—Pravilova presents it as a powerful force in late imperial life. Though only fitfully realized before the October Revolution, this ambition encouraged the prominence of “rule by experts” in Russian statecraft, a heritage handed down to the Soviet state. It also stimulated popular demands to institutionalize the common good, expropriating it where necessary from private hands. Indeed, Pravilova argues, the greatest legacy of the search for a public domain in imperial Russia was to present a change in property rights as the essential foundation of progress, obscuring and in some cases occluding other kinds of political and economic reform.

Pravilova's engrossing study opens with a paradox. Liberal theory has long seen rule of law as the foundation of property rights. Yet autocratic Russia, where the sovereign's will was often understood to stand above all law, possessed one of the absolute property regimes in Europe, giving owners sweeping rights to hold, use, and defend their estates. Pravilova explains this by arguing that the invention of private property in its modern form in Russia rested on a promise—made by Catherine the Great and her successors—that property rights were guaranteed irrevocably and inalienably by the autocracy itself. Those who sought to limit private use of natural resources, such as the fish caught on a river or the fallen wood in the heart of a forest, had to argue that the monarch's inviolable and unlimited promise was not so inviolable and unlimited after all. For much of the first half of the nineteenth century, this proved too steep a hill to climb. As a result free Russia became a veritable ownership society. All manner of grand enterprises (capitalist or autocratic) were complicated by the individual rights of myriad landlords. The state-led emancipation of Russia's serfs in 1861 deepened this conundrum, “[leaving] the state face to face with millions of people and new proprietors, who before the reform had been placed under the administration of their landlords” (p. 57).

All the same, in the second half of the nineteenth century this fractured proprietary geography saw its absolute dominion restrained and at points undone by apologists for public property, according to Pravilova. She conceptualizes this shift neither as a purely legal evolution in property law, nor as a public campaign with a specific chronology or set of actors, but as an “ongoing reformist project” (p. 138) that labored, in an uncoordinated fashion, for much of the second half of the nineteenth century. To make this claim, she works across cultural realms with impressive fluidity, showing how similar notions animated agents in arenas as seemingly diverse as hydrology, philology, and church governance. In each of these areas, experts staked claims for cultural patrimony, arguing that a portion of Russia's rivers, religious architecture, and even its poets' private letters had to be reserved, preserved, and managed by the state. Most generally, Pravilova characterizes this “project” as reflecting a tension in the history of liberalism in Russia. Though absolute property rights had been presented by Russia's absolute rulers as an example of imperial freedom, over time society's sense of its own right to develop freely seemed to require the creation of a common inheritance so that Russia could reach its true potential. Pravilova suggests that this imperial “public domain” was far from finished or secure by 1917, but that its ideals nevertheless helped frame the radical solutions Soviet power would bring thereafter as the new state nationalized the empire and empowered science to rule it on the people's behalf.

Honorable mention to Pravilova's "A Public Empire"

The Law and Society Association recently gave an honorable mention in the category of the J. Willard Hurst Award for the best book in socio-legal history to Ekaterina Pravilova's A Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton UP, 2014). From the publisher's description:

Many scholars have attributed Russia’s long-term development problems to a failure to advance property rights for the modern age and blamed Russian intellectuals for their indifference to the issues of ownership. A Public Empire refutes this widely shared conventional wisdom and analyzes the emergence of Russian property regimes from the time of Catherine the Great through World War I and the revolutions of 1917. Most importantly, A Public Empire shows the emergence of the new practices of owning “public things” in imperial Russia and the attempts of Russian intellectuals to reconcile the security of property with the ideals of the common good.

The book analyzes how the belief that certain objects—rivers, forests, minerals, historical monuments, icons, and Russian literary classics—should accede to some kind of public status developed in Russia in the mid-nineteenth century. Professional experts and liberal politicians advocated for a property reform that aimed at exempting public things from private ownership, while the tsars and the imperial government employed the rhetoric of protecting the sanctity of private property and resisted attempts at its limitation.

Exploring the Russian ways of thinking about property, A Public Empire looks at problems of state reform and the formation of civil society, which, as the book argues, should be rethought as a process of constructing “the public” through the reform of property rights.

I hope we'll hear more about this book soon.

Soviet environmental law

Soviet environmental law is not a subject that we often come across, but last year's Soviet and Post-Soviet Review published two articles on the topic. One is Laurent Coumel's "A Failed Environmental Turn? Khrushchev’s Thaw and Nature Protection in Soviet Russia". The abstract:

Detaining poachers, from Douglas R. Weiner,

A Little Corner of Freedom: Russian Nature Protection
from Stalin to Gorbachëv 320 (U Cal Press, 1999)

This article aims to identify a “Thaw” in Soviet environmental history. Focusing on the attempts from some actors, above all writers and scholars of the Academy of Sciences to promote an ambitious law at the all-Union level in the second half of the 1950s, it uses new evidences from the central Russian archives to show the existence of an offensive by activists and experts in this field, but also their failure to obtain the creation of a unified state committee of ministerial rank. If the All-Russian Society for the Protection of Nature (VOOP) was sidelined in this battle, the 1960 Law on Nature Protection was significant for its members. It cited the VOOP as the main organ of control in the environmental field, and created an opportunity for new “social organizations” to emerge in the country: the Brigades for Nature Protection (DOP), the first of which was created at Moscow State University.