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Advancing a New Legal Architecture to Support the Ecological Commons
Mon, 06/16/2014 - 10:08
This is the last in a series of six essays by Professor Burns Weston and me, derived from our book Green Governance: Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press. The essays originally appeared on CSRWire. I am re-posting them here to introduce the paperback edition, which was recently released.
In our preceding essays in this series, we introduced the idea of Green Governance, a new approach to environmental protection based on a broad synthesis of economics and human rights and, critically, the commons. We also described the burgeoning global commons movement, which is demonstrating a wide range of innovative, effective models of Green Governance.
In our final post, we'd like to focus on how a vision of Green Governance could be embodied into law. If a new paradigm shift to Green Governance is going to become a reality, state law and policy must formally recognize the countless commons that now exist and the new ones that must be created.
Recognizing the Commons as a Legal Entity
Yet here’s the rub: Because the “law of the commons” is a qualitatively different type of law – one that recognizes social and ecological relationships and the value of nature beyond the marketplace – it is difficult to rely upon the conventional forms of state, national and international law. After all, conventional law generally privileges individual over group rights, as well as commercial activities and economic growth above all else.
Establishing formal recognition for commons- and rights-based law is therefore a complicated proposition. We must consider, for example, how self-organized communities of commoners can be validated as authoritative forms of resource managers. How can they maintain themselves, and what sort of juridical relationship can they have with conventional law? One must ask, too, which existing bodies of law can be modified and enlarged to facilitate the workings of actual commons.
Threee Domains of Commons Law
Clearly there must be a suitable architecture of law and public policy to support and guide the growth of commons and a new Commons Sector. In our book Green Governance, we propose innovations in law and policy in three distinct domains:
- General internal governance principles and policies that can guide the development and management of commons;
- Macro-principles and policies that facilitate the formation and maintenance of “peer governance;”
- Catalytic legal strategies to validate, protect, and support ecological commons.
General Internal Governance Principles and Policies
As described in our fourth essay, as early as 1990 Nobel Laureate Elinor Ostrom identified eight core design principles for successful commons. Although subsequent research has elaborated on these principles, they remain the most solid foundation for understanding the internal governance of commons as a general paradigm.
The Ostrom principles hold that commons depend upon things such as distinct boundaries around the collectively managed resource so that it is possible to identify who belongs to the commons and who does not.
Commoners must be able to make their own rules for managing resources that matter to them – and those rules must be compatible with local ecosystems and particular resources. Commoners must develop ways to monitor for the theft and abuse of resources, and they must have a system of graduated sanctions to punish those who violate the rules of a commons.
While the exact rules of governance will always vary, generally the internal principles must honor such values as inclusive participation, open deliberation and consensus, transparency in rule making, and at least a rough equity in the allocation of resources.
Professor Ostrom has also noted:
“…extensive empirical research on collective action … has repeatedly identified a necessary central core of trust and reciprocity among those involved that is associated with successful levels of collective action… When participants fear they are being ‘suckers’ for taking costly actions while others enjoy a free ride, it enhances the need for monitoring to root out deception and fraud.”
Successful commons governance thus must embody the values and capabilities expressed in numerous human rights instruments, including the Universal Declaration of Human Rights.
It also should aspire to devolve to the lowest possible level of decision-making, known as the principle of “subsidiarity.” Successful ecological commons are careful to limit, regulate or ban the monetization of shared assets lest it encourage their overuse or abuse as “free markets” routinely do.
Macro-Principles and Policies for Peer Governance
Of course, internal governance principles are not enough to secure the commons – because all commons exist within a distinct political and economic context. Accordingly, there must also be a legal architecture supportive of commons – a set of macro-principles and policies, laws, institutions and procedures – that facilitate the formation and maintenance of “peer governance.”
History shows the State/Market duopoly is predisposed to enclose commons to monetize resources and consolidate power. It is a pattern amply confirmed by the U.S. Government’s lax oversight, discount leasing and outright giveaways of countless public resources. Among the most-abused forms of common wealth: public lands with minerals, forests, grasslands, wildlife and water. Politicians and corporations frequently collude in privatizing access, use and ownership of such public resources, notwithstanding the formalities of law (where they exist).
All the more reason, then, why traditional commons need affirmative protection by State law and policy. We need explicit declarations of law and administrative structure designed to protect shared natural resources. The State must agree to observe essential “macro-principles” in its dealings with ecological commons.
Protection Against Enclosure
For example, the State, as a matter of law, must agree to recognize commons- and rights-based ecological governance as a practical alternative to the State and Market. This means that the State will not enclose or facilitate the enclosure of shared resources and dispossess commoners. Simply recognizing this principle would go a long way toward preserving our many shared natural sources.
Democratic Participation by Stakeholders/Commoners
A related principle is the ability of people to participate in the governance of land, water, and other resources that serve their basic household needs. They should not have to rely upon market investments or profit-making activity to ensure their human right to their environmentally dependent basic needs.
State as Trustee of Commons' Long-Term Interests
For larger-scale common-pool resources – national, regional, global – there is no avoiding that the State must play an active role in establishing and overseeing commons. For example, when a resource cannot be easily divided into parcels (the atmosphere, oceanic fisheries) or where the resource generates large rents relative to the surrounding economy (petroleum, mining), it makes sense for the State to intervene and devise appropriate management systems.
But in granting this authority to the State, the law must be clear that the resources still belong to commoners, not to the government, and that the State is acting as a trustee.
One way to reinforce this idea is to consciously design these systems as State trustee commons that must affirmatively serve the long-term needs of both ecosystems and commoners. This macro-principle should apply to public lands, national parks, wilderness areas, rivers, lakes, State-sponsored research, and related civil infrastructure. The elements of nature should not be regarded simply as market resources, ripe for exploitation.
Catalytic Legal Strategies on the Path to Green Governance
These principles may be high-minded and ambitious, but there is always the question of “How do we get from here to there?” How can we use or modify existing bodies of law to move us closer toward Green Governance? For this, we envision a variety of “catalytic legal strategies” to validate, protect and support ecological commons- and rights-based governance.
There are numerous legal and activist interventions that could help advance commons governance in incremental but catalytic ways. Here are a few:
1. Adapt Private Contract and Property Law to Protect Commons
The basic idea is to use conventional bodies of property law or contract law to advance collective rather than individual interests. The most famous example may be the General Public License, or GPL, which copyright owners can attach to software to ensure that the code will be forever accessible to anyone to use. The Creative Commons licenses use the same strategy to make text, images, and music legally shareable. Land trusts use real estate law to make land “property on the outside, commons on the inside.”
2. “Stakeholder Trust”
"Stakeholder trust” can be used to manage and lease ecological resources on behalf of commoners, with revenues being distributed directly to commoners. A well-known model is the Alaska Permanent Fund, which collects oil royalties from state lands on behalf of the state’s households. Some activists have proposed an Earth Atmospheric Trust to achieve similar results from the auctioning of rights to emit carbon emissions.
3. Federal and Provincial Governments Must Support Commons Formation and Expansion
Government agencies typically host conferences, assist small businesses, promote exports, and so on. Why not provide analogous support for commons? Governments could also help build translocal structures that could facilitate local and subnational “food sovereignty” commons, such as Community Supported Agriculture and the Slow Food movement, and thereby amplify their impact.
4. Expand Public Trust Doctrine
The public trust doctrine of environmental law should be expanded to apply to a far broader array of natural resources, including protection of the Earth’s atmosphere. This legal doctrine – sometimes called “nature’s trust" – is a critical tool for forcing States to act as conscientious trustees of our common ecological wealth.
5. Use Digital Technology to Make Governance Transparent, Participatory and Accountable
Various digital networking technologies now make it possible to reinvent governance so that it can be made more transparent, participatory, and accountable – or, indeed, managed as commons. Government wikis and crowdsourcing platforms can help enlist citizen-experts to participate in policymaking and enforcement. “Participatory sensing” can enable citizens to directly monitor environmental oversight and report it, wiki-style, to help assure public accountability.
Is Green Governance Utopian?
It might be claimed that Green Governance is a utopian enterprise. But the reality is that it is the neoliberal project of ever-expanding consumption on a global scale that is the utopian, totalistic dream.
Our book Green Governance outlines a variety of legal tools and initiatives (beyond those mentioned here) that we believe can help spread a vision of commons- and rights-based ecological governance.
As a practical matter, moving this agenda forward requires that the divide among activists between “intellectual dialogue” and “movement building” be bridged. On the one hand, we urge the immediate adoption, at every level of social organization, from town hall to global council, of our proposed Universal Covenant Affirming a Human Right to Commons- and Rights-based Governance of Earth’s Natural Wealth and Resources. On the other hand, we need deep, exploratory dialogues to move the environmental movement into new territory, so that it can begin to advance more visionary yet practical ideas.
Initiating some new, “out-of-the-box” dialogues are the next stage in our work to advance Green Governance – to bring together the scholars who think deeply about the law with the movement activists who seek to instigate change. There is an urgent need for intensive mutual collaboration between these two communities.
It is abundantly clear that existing frames of economic-legal-political governance and policy are not commensurate with our catastrophic problems. Somehow we must find ways to transcend and transform the status quo.
Since saving our planetary ecosystems is doomed without everyone’s participation, your suggestions and support in moving this agenda forward will be very much welcomed.
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