Property Rights, Sovereignty, and Individualism:

Libertarian Solutions to the Injustices of International Environmental Law

by Ross L. Phar

All too often in modern times, when the so-called “world community” is faced with a dilemma, politicians around the globe jump to the historically ill-founded conclusion that government intervention is the solution to their collective woes. Quite often, however, the source of their issues lies precisely in that assumption – that the world’s woes are indeed collective, and must therefore be dealt with in a collective, governmental, interventionist manner. The prevailing wisdom about international environmental governance is that it is necessary to restrict individual freedoms for the benefit of common environmental interests. For the benefit of “the Global Community,” universal issues such as respect for the environment must, therefore, be dealt with on a global level. Thus, supranational entities like the United Nations or the European Union take it upon themselves to pass legislation that addresses the issue. Despite the decades-long record of ineffectuality in international governmental regulation of the environment, the call for more regulation presses on, all the while failing to recognize the fundamental inefficiency of such laws, and the loss of individual liberty it inevitably causes.

Generally speaking, international laws are an affront to the notion of national sovereignty – a nation’s right to autonomous self-governance. Especially pertinent in supranational entities, violations of member-states’ sovereignty are inevitable under the currently accepted notion of international relations. In her text, International Environmental Law, Elli Louka, a staunch proponent of multilateral environmental regulation, slightly skews the argument for national sovereignty in the United Nations, for example, and fails to acknowledge the true threat that is posed to a nation’s sovereignty by its mere membership in such an institution. Her assertion that, “each state is sovereign, and no state is to violate the sovereignty of another state” is easily discounted by the existence of international economic sanctions imposed by the U.N. on Iran, for example, to which the nation of Iran clearly does not consent.

What this relatively new, yet broadly accepted ideology of international collectivism fails to acknowledge is the role that the individual property owner should play in a lasting, non-regulatory solution to environmental concerns; that is, if her property rights are duly protected by the law. Under the current system of centralized, and often undemocratic international governance, the rights of the individual over her property are, inevitably, infringed upon.

When laws are passed or treaties are enacted that inhibit the manufacturer’s ability to produce her product as she sees fit, under the threat of expensive fines or even jail time, her individual rights have clearly been violated. This is not to say, however, that she may produce her product in a manner that pollutes the air, land, or water of her neighbor. If the by-product of her manufacturing releases harmful chemicals into the yard of a neighbor adjacent to her factory, she can then be duly taken to court and tried in a civil suit for violating the property rights of another individual. In a free, libertarian society with a just legal system, if the producer is found to be liable for polluting the property or damaging the health of another individual, she must pay compensatory damages in full, and immediately cease the polluting of her neighbor’s property.

On the opposing side, Elli Louka contends, “The purpose of law is to reduce the transaction costs of cooperation among individuals or other entities… Transaction costs include the costs of defining and enforcing property rights”. In effect, what the author is admitting here is that, from the perspective of an internationalist, the role of law is to reduce the enforcement and definition of property rights. The author goes even further in the subsequent paragraph, going so far as to condemn the principle of stare decisis in civil lawsuits, deeming it “unreceptive to social change”. Removing this principle (that the courts should rely on past decisions as references for future rulings), which Louka admits is at the foundation of our legal system, would greatly assist the internationalist’s position. By further weakening the civil tort system, her stance supporting preventative laws that restrict potential polluters appears much stronger.

No one can dispute the obvious fact that the Earth’s ecosystem is threatened on a daily basis by a variety of pollutant-producing entities: corporations, governments, and volcanoes are three of the most recognizable culprits. Yet, in a world where international restrictions are abundant, yet international pollution rates continue to rise, the question as to the effectuality of environmental legislation, on both a national and international level, is begged.

As mentioned previously, governments themselves are often the culprits behind their countries’ environmental suffering. In Mexico City, for example, a recent study found that the majority of the city’s smog came as a result of poor trash incineration techniques employed by the Mexican government. Louka might argue that this is just another example of the need for increased international oversight and regulation of sovereign nation. Though her conclusion does seem logical, what does it really accomplish other than passing the burden of responsibility onto a higher level of authority?

In reality, the true solution to this problem would be just the opposite – maximum decentralization, privatization, and a greater legal emphasis on the rights and responsibilities of the individual. In the case of Mexico City, instead of increasing the size, scope, and magnitude of government regulation, a proper solution would be to sell the waste management infrastructure to a private entity, or group of entities. In doing so, when the new (private) owner decides to burn the trash instead of properly disposing of it in a landfill, she is committing an act of aggression against the individual citizens of Mexico City. The noxious gases produced by this burning would waft into the areas above these citizens’ property, thus committing a “nuisance,” as defined by William L. Prosser’s Law of Torts: A nuisance “may consist of a disturbance of the comfort or convenience of the occupant, as by unpleasant odors, smoke or dust or gas”.

Clearly, if a tort were to be filed against the individual burning the trash (and/or the individual employer directing her to burn it), the entity would be found liable in a fair civil court system, compensatory payments would be made to the plaintiff, and the waste manager would be forced to find less harmful means for disposing of the city’s waste. Otherwise, if the entity failed to find an alternative means, it would undoubtedly be replaced by a much more efficient entity. The individual consumer will always benefit from competition, as opposed to coercive government monopoly. The former system continually shows its efficiency in the modern world; for example, Wal-Mart recently upgraded its standards for the safety of its products imported from China, far beyond the standards imposed by the U.S. government and the United Nations. Doing so improves customer loyalty and increases sales. Such is the beneficial nature of individualism and free market capitalism.

By contrast, in a society that employs the philosophy of central planning, such as the late (though reemerging) USSR, or the newly founded European Union, the individual’s rights and needs are given little to no consideration by the courts. Instead, the overarching needs of “society,” or, in the U.N.’s case, “the world community,” are given priority over the individual’s. If current trends continue, the end result will be the inevitable seizure of private property, violation of the individual’s personal and property rights, and the gradual relocation of power away from “We the People”, into the hands of the global elite. Such is the detrimental nature of collectivism and centralized economic structures.

To be clear, the market to which most of the world now belongs is hardly a free one. In America, the economic juggernaut of the 20th century, years of market intervention and government expansion have fostered a nation more centralized and socialized than could be found its founders’ worst nightmares. It began primarily in 1913 with the passage of the Federal Reserve Act and the implementation of the Federal Income Tax, followed by hoards of new government agencies, handouts, and restrictions under FDR and LBJ. It’s important to note here, as well, that the Graduated Federal Income Tax, the Central (Federal Reserve) Bank, and the “progressive” public education system are three of the Ten Planks of the Communist Manifesto – the document outlining the philosophy of statist collectivism in detail. Because of this increasingly neglectful attitude to its traditional ideology of individualism and respect for property rights, America’s spike in pollution statistics can, therefore, not be attributed to free market economics; on the contrary, runaway pollution should instead be attributed to increased government regulation, both nationally and internationally, as the levels of both have correspondingly increased over the past several decades.

International environmental laws are fundamentally unfair for all individuals who are so unlucky as to be subject to their authority. International organizations such as the United Nations unduly rescind the individual rights of the world, by violating both the sovereignty of its member states, and by stating outwardly that it wishes to slowly do away with individual property rights. The right to one’s property is a fundamental aspect of liberty, as heralded by the U.S. Constitution and its framers.

In a just society, an individual may use her property as she sees fit, without the threat of coercive action from individuals, corporations, or governments – local, national, or otherwise – so long as her actions do not limit, disturb, or interfere with the rights of any other individual citizen. As such, preventative international legislation that prohibits an individual from certain uses of her property should be viewed as an affront to personal freedom. Environmentalism need not be achieved by aggressive government coercion or international mandates that unmistakably violate the sovereignty of nations. An adherence to individual property rights, and a strictly enforced civil tort system designed to protect the individual and her property would solve many of today’s environmental concerns. As was previously shown, the current dominant system of environmental legislation is not only unfair to the individual citizen, but also to the environment itself, as corporate, individual, and government interests to pollute the property of their neighbors do not suddenly disappear when authority shifts to the international stage.

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