Locating Nature: Making and Unmaking International Law: Introduction

Abstract

Environmental harm is of increasing concern to peoples and states all over the world, whether in relation to ensuring access to healthy air, water, food, and sustainable livelihoods, or coping with the diversity of challenges posed by changing climates and ecologies. While international lawyers have focused on crafting solutions to environmental problems, less attention is paid to the disciplinary role in fostering harmful and unsustainable behavioural patterns. Environmental issues are usually relegated to the specialized field of international environmental law. This project explores instead the role of nature in the general discipline, arguing that the natural environment is a determinative factor in shaping international law, and that assumptions about nature lie at the heart of disciplinary concepts such as sovereignty, development, economy, property, and human rights.

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Locating Nature: Making and Unmaking International Law:
Introduction
KISHAN KHODAY, VANESSA LAMB, TYLER MCCREARY, KARIN MICKELSON, USHA
NATARAJAN and ILEANA PORRAS
Leiden Journal of International Law / Volume 27 / Issue 03 / September 2014, pp 571 - 572
DOI: 10.1017/S092215651400020X, Published online: 24 July 2014
Link to this article: http://journals.cambridge.org/abstract_S092215651400020X
How to cite this article:
KISHAN KHODAY, VANESSA LAMB, TYLER MCCREARY, KARIN MICKELSON, USHA
NATARAJAN and ILEANA PORRAS (2014). Locating Nature: Making and Unmaking International
Law: Introduction. Leiden Journal of International Law, 27, pp 571-572 doi:10.1017/
S092215651400020X
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Leiden Journal of International Law (2014), 27, pp. 571–572
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Foundation of the Leiden Journal of International Law 2014 doi:10.1017/S092215651400020X
INTERNATIONAL LEGAL THEORY
SYMPOSIUM: LOCATING NATURE
Locating Nature: Making and Unmaking
International Law: Introduction
KISHAN KHODAY,VANESSA LAMB,TYLER MCCREARY,KARIN MICKELSON,
USHA NATARAJAN,AND ILEANA PORRAS∗
Environmental harm is of increasing concern to peoples and states all over the world,
whether in relation to ensuring access to healthy air, water, food, and sustainable
livelihoods, or coping with the diversity of challenges posed by changing climates
and ecologies. While international lawyers have focused on crafting solutions to
environmental problems, less attention is paid to the disciplinary role in fostering
harmful and unsustainable behavioural patterns. Environmental issues are usually
relegated to the specialized field of international environmental law. This project
explores instead the role of nature in the general discipline, arguing that the natural
environment is a determinative factor in shaping international law, and that as-
sumptions about nature lie at the heart of disciplinary concepts such as sovereignty,
development, economy, property, and human rights.
Natarajan and Khoday elaborate on this argument by examining the genesis
and evolution of the international environmental law specialization with a view
to identifying consequences for the broader discipline. They argue that interna-
tional law’s inability to stem serious ecological harm is due to an impoverished
understanding and construction of the notion of ‘the environment’ within the dis-
cipline. Nature is understood in ways that not only obfuscate and normalize sources
of environmental harm, but that circumscribe the disciplinary ability to provide
imaginative and effective solutions.
Among other things, Natarajan and Khoday consider the proliferation of partic-
ular forms of environmental governance and ‘environmentality’, resulting in the
creation and recreation of subjects, objects, and relationships. The process of envir-
onmentality is illustrated in McCreary and Lamb’s exploration of two case studies
in South-East Asia and Canada that trace from the bottom-up the effects of natural
resource governance for locales and for the sovereign, thus recounting the political
∗The ‘Locating Nature’ project is a collaborative research initiative of the Institute for Global Law and Policy,
Harvard Law School. We thank David Kennedy and IGLP for sponsoring this project and Judi Silverman for
project support. We are grateful to Sheila Jasanoff, Balakrishnan Rajagopal, Thomas Skouteris, Mick Smith,
and Robert Weller, for their helpful feedback, insights, and encouragement [unatarajan@aucegypt.edu;
Kishan.Khoday@undp.org].

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572 KISHAN KHODAY ET AL.
ecology of sovereignty. Comparative analyses reveal how processes of resource ex-
ploitation and social exclusion have been at the core of the genealogy of sovereignty.
Sovereignty is understood as a living process with potential to be re-articulated from
below, with sovereignty’s relationship to the natural environment being contested
in local encounters around the world.
McCreary and Lamb, as geographers, assess the use of maps as technologies for
solidifying and mobilizing claims. Mickelson’s analysis reflects on law as a map
– a tool of governmentality and environmentality – that enables representation
in analogous ways to cartography. She considers what is added and what is lost
through doctrines of title to territory such as res nullius,res communis and the
common heritage of mankind, and the corresponding assertions of jurisdiction.
Like maps, law can assert stillness and knowledge over things that are dynamic and
enigmatic, whether the evolving course of rivers that nourished life and shaped
culture and meaning over millennia, or the womb of the ocean from which human
life emerged.
International lawyers tend to see nature in very particular ways. Porras locates
nature in the founding disciplinary works of Vitoria, Gentili, Grotius, and Vattel,
observing that the material world becomes visible primarily through the lens of
commerce. Rivers and oceans only exist in these works because they contain fish
and allow for commercial navigation. In an age of exploration and empire-building,
commerce was idealized as a universal beneficence. Assumptions about natural or
God-given abundance and scarcity fuelled a veneration of commerce in a manner
that allowed disengagement with the actualities of commercial exploitation and
brutality. These themes resonate within the contemporary discipline, with nature
existing only in so far as we are able to commodify it, and its value dependent on the
potential for ownership,
All the authors share an intuition that understanding and unpacking disciplinary
assumptions about nature will help us think our way out of destructive develop-
ment patterns. To this end, all the articles elucidate three interrelated themes. First,
that the relationship between international law and the natural environment is
consequential and should be better understood. Nature is fundamental to shaping
international law, and international law has in turn played an important role in
shaping the natural environment. Second, the natural and the social are connected
in complicated ways. Control of the natural environment is related to the allocation
of resources and thus environmental concerns are inextricably intertwined with
problems of poverty, inequality, and underdevelopment. Third, addressing environ-
mental concerns entails going beyond an instrumental understanding of nature. The
authors do not offer a definition of nature, focusing instead on how law discerns the
natural environment. Environmental law scholarship, international and domestic,
has a tendency to focus on the sustainable use and fair sharing of natural resources.
However, nature is more than an economic resource and the natural environment
is of more than utilitarian value. Dominant paradigms make it difficult to fore-
ground other types of value, and this project endeavours to identify and dismantle
disciplinary barriers to alternative understandings of nature that may inspire more
sustainable ways of being in the world.