nature

This is the third of 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 the previous two essays in this series, we outlined our approach to Green Governance as a new model or paradigm for how we can relate to the natural environment. We also stressed how “Vernacular Law” – a kind of socially based “micro-law” that evolves through commons activity (“commoning”) – can establish legitimacy and trust in official state law, and thereby unleash new sorts of grassroots innovation in environmental stewardship.

In this essay, we explore another major dimension of the large shift we are proposing: how human rights can help propel a shift to Green Governance and thereafter help administer such governance once achieved.

Nothing is more basic to life than having sustainable access to food, clean air and water, and other resources that ecosystems provide. Surely a clean and healthy environment upon which life itself depends should be recognized as a fundamental human right.

This is the second of 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 in January 2013.  The essays originally appeared on CSRWire.

 

Is it possible to solve our many environmental problems through ingenious interventions by government and markets alone? Not likely. Apart from calls for eco-minded behavior (recycle your cans, insulate your house), ordinary citizens have been more or less exiled from environmental policymaking.

The big oil, coal and nuclear power companies have easy access to the President and Congress and expert lawyers and scientists have privileged seats at the table. But opponents of, say, the Keystone Pipeline are mostly ignored unless they get arrested for protesting outside of the White House.

A New Kind of Law to Underpin the Commons

That’s why we believe it’s important to talk about a “new” category of law that has little recognition among legislators and regulators, judges and lobbyists. We call it “Vernacular Law.” “Vernacular” is a term that the dissident sociologist Ivan Illich used to describe the informal, everyday spaces in people’s lives where they negotiate their own rules and devise their own norms and practices.

In our last essay, we introduced the idea of commons- and rights-based governance for natural ecosystems. We turn now to Vernacular Law because green-pin-cushionits matrix of socially negotiated values, principles and rules are what make a commons work.

Vernacular Law originates in the informal, unofficial zones of society – the cafes and barber shops, Main Street and schools, our parks and social networking websites. What emerges in these zones is a shared wisdom and a source of moral legitimacy and authority. Colonial powers frequently used their formal law to forcibly repress the use of local languages so that their controlling mother tongue could prevail.

Professor Burns Weston and I recently published a series of six essays on CSRWire (CSR = “Corporate Social Responsibility”) that were derived from our book Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published by Cambridge University Press in January 2013.  

The book – an outgrowth of the Commons Law Project -- is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment. Green Governance opens the door to a new set of solutions by proposing new types of environmental protection based on broader notions of economics and human rights and on commons-based governance. At the heart of the book is a new architecture of environmental law and public policy that is theoretically innovative, but also quite practical.

The paperback edition was recently released, making it available to a much larger readership.  To introduce the book to people who may have missed it the first time around, I am posting the original six CSRWire essays by Burns and me over the course of the next week.  I hope you enjoy them!  -- David

 

At least since Rachel Carson’s Silent Spring, we have known about humankind’s squandering of nonrenewable resources, its careless disregard of precious life species, and its overall contamination and degradation of delicate ecosystems. Simply put, the State and Market, in pursuit of commercial development and profit, have failed to internalize the environmental and social costs of their pursuits. They have neglected to take measures to preserve or reproduce the preconditions of capitalist production – a crisis now symbolized by the deterioration of the planet’s atmosphere.

Despite the scope of the challenges facing us, there are credible pathways forward. In our recent book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons, we propose a new template of effective and just environmental protection based on the new/old paradigm of the commons and an enlarged understanding of human rights. We call it “green governance.” It is based on a reconceptualization of the human right to a clean and healthy environment and the modern rediscovery of the age-old paradigm of the commons.

The Journal of Latin American Geography has dedicated an entire issue (vol. 12, no. 1) to surveying the state of commons on that continent. The special issue (in English) consists of nine essays, the first of which provides a helpful overview of the state of Latin American commons and commons research. (A listing of abstracts here.)  This academic treatment gives some welcome visibility and depth to the study of the commons in that vast region of the world, much of which is besieged by aggressive neoliberal policies that seek to extract vast natural resources in the name of "development." 

The Journal focuses on a range of commons-related themes in various countries, including the effect of rural out-migration from Mexico on commons there; new efforts in Costa Rica to treat biodiversity as a commons; the struggle of indigenous peoples in Brazil to secure tenure rights to their communal resources; and use of commons by marginalized people in Argentina to manage wild guanacos, a large, llama-like ungulate valued for their meat, skins and fibers.

The overview essay on current trends in Latin American commons research, by James Robson and Gabriela Lichtenstein, shines a light on the development agenda of oil and mining industries while noting the many legal and political changes that have reinstated communal property regimes.  Many countries, such as Brazil, Honduras, Venezuela and Nicaragua, have formally recognized the communal rights of indigenous communities to their traditional territories.  Overall, there is a “upturn in communal land tenure over time,” write Robson and Lichtenstein. 

In a talk at the American University of Beirut graduation, Noam Chomsky singled out protesters, including those in Taksim Square, as “at the forefront of a worldwide struggle to defend the global commons from the ravages of the wrecking ball of commercialization, environmental degradation and autocratic rule that is destroying Earth.”  (Text of talk is here.)  

The first part of Chomsky’s talk focused on the artificial political boundaries that define countries, most of them the result of military violence and coercion.  “The legitimacy of borders – for that matter of states – is at best conditional and temporary,” he said. “Almost all borders have been imposed and maintained by violence, and are quite arbitrary….Surveying the terrible conflicts in the world, almost all are the residue of imperial crimes and the borders they drew in their own interests.”  He proceeded to explore the meaning of this fact in the Middle East, where imperial powers have drawn so many of the national borders with little regard for the ethnic or ecological consequences.

Near the end of his talk, Chomsky pointed out how these powers are destroying the commons of the world:  

“Who owns the global atmosphere that is being polluted by heat-trapping gasses that have now ‘passed a long-feared milestone….reaching a concentration not seen on earth for millions of years,’ with awesome potential consequences, so we learned a month ago?  Or to adopt the phrase used by indigenous people throughout much of the world, who will defend the earth?  Who will uphold the rights of nature?  Who will adopt the role of stewards of the commons, our collective possession?  That the earth now desperately needs defense from impending environmental catastrophe is surely obvious to any rational and literate person.

After three years of hard work, I am pleased to announce that my new book – co-authored with Professor Burns Weston of the Center for Human Rights at the University of Iowa College of Law – has just been published.  Green Governance:  Ecological Survival, Human Rights and the Law of the Commons was recently released by Cambridge University Press.  Here is a short summary of the book:

The vast majority of the world’s scientists agree: we have reached a point in history where we are in grave danger of destroying Earth's life-sustaining capacity.  But our attempts to protect natural ecosystems are increasingly ineffective because our very conception of the problem is limited; we treat “the environment” as its own separate realm, taking for granted prevailing but outmoded conceptions of economics, national sovereignty, and international law.  Green Governance is a direct response to the mounting calls for a paradigm shift in the way humans relate to the natural environment.  It opens the door to a new set of solutions by proposing a compelling new synthesis of environmental protection based on broader notions of economics and human rights and on commons-based governance.  Going beyond speculative abstractions, the book proposes a new architecture of environmental law and public policy that is as practical as it is theoretically sound.

The book has a number of significant endorsements.  At the risk of immodesty, here are a few of the blurbs for Green Governance:

James Gustave Speth, Former Dean, Yale School of Forestry and Environmental Studies, and Professor of Law, Vermont Law School:

“When a vital body of existing policy and law has run its course, the need for reinvention becomes urgent. So it is with environmental law and policy. It is therefore exiting that two enormously well-informed and creative thinkers, Burns Weston and David Bollier, have joined forces to produce this breakthrough in environmental governance. Their book is a landmark in our thinking about rights-based environmentalism and the law of the commons and how these fields can combine in a powerful synthesis. We must take these ideas very seriously indeed. Highly recommended.”

The brave new world of “owning life” began 32 years ago when the U.S. Supreme Court first approved the patenting of a genetically engineered bacteria that can help decompose oil.  By a 5-4 decision, it was the first instance of U.S. law recognizing ownership in a "manufactured" lifeform.  On Wednesday, I had the opportunity to participate on a panel with the microbiologist who brought that 1980 case, Ananda Chakrabarty, who was then an employee of General Electric. 

The panel was part of a series of live radio programs hosted by Action Speaks! in Providence, Rhode Island, an usually intelligent, spirited show hosted by the genial polymath Marc Levitt.  The theme for this fall’s series is “Private Rights and Public Fights,” which is devoted to looking at “moments when the rights of the individual have clashed with the needs or beliefs of the public—and where the line between private and public has been defined or blurred.”

Anyone who noses around the legal literature soon realizes that the case of Diamond v. Chakrabarty is a real landmark case because it opened the door for the  patenting of lifeforms.  Over the past thirty years, more than 3,000 gene patents have been granted.  Nearly 20 percent of the human genome is now privately owned.  The U.S. Patent and Trademark Office has issued nearly 50,000 patents involving human genetic material.  Patents have been granted for microorganisms, genetically modified plants and animals, stem cells, tissue and many other living things.

Chakrabarty, now is a 74-year-old professor at the University of Illinois College of Medicine at Chicago, had few reflections to offer on the seismic impact of the case.  He was proud of his role in legal and scientific history, but he focused mostly on the scientific aspect of his work and of patent law in general.  Too bad, because I think the extra-legal, extra-scientific ramifications of the Chakrabarty case have been significant. 

Can we begin to reconceptualize how we interact with Nature and afford it the legal protections that are now available only to people?  Along with Bolivia and Ecuador, New Zealand appears to be in the vanguard of this fascinating, welcome trend. 

In his blog about the Northern Territory of New Zealand, Bob Gosford reports that a court there “has recognised – perhaps for the first time in legal history – that a river has personality sufficient to allow it to be heard in a court of law.”  (A tip of the hat to Tim Gregory for passing this news along.)  Gosford cites reporter Kate Shuttleworth in the New Zealand Herald:

The Whanganui River will become an legal entity and have a legal voice under a preliminary agreement signed between Whanganui River iwi [“peoples” in Maori] and the Crown tonight. This is the first time a river has been given a legal identity. A spokesman for the Minister of Treaty Negotiations said Whanganui River will be recognised as a person when it comes to the law – “in the same way a company is, which will give it rights and interests” … Under the agreement the river is given legal status under the nameTe Awa Tupua – two guardians, one from the Crown and one from a Whanganui River iwi, will be given the role of protecting the river.

Thank God for the Wildflower

The piece below is by Efren Gerardino, who occasionally writes about the commons in the Philippines when he is not working as the plant manager of a muscovado, or soft brown sugar mill.  I met Efren via my late friend Jonathan Rowe, who periodically visited the Philippines.  It is a pleasure to hear Efren's perspectives on the commonsfromanother part of the world.

“All things bright and beautiful/ All creatures great and small/ All things wise and wonderful/ The Lord God made them all”.  These are the opening lines of a poem I learned from my Grade 3 teacher who also filled my childhood with  nature-themed music.  In the same year, I joined a Baptist Sunday School where my fondest memory is nature walks that kindled my interest on clouds, birds, bees, butterflies and wildflowers.   I guess that year was the starting point of my environmental education.

I am now involved in the review of our town’s Environment and Natural Resources Management Plan, with focus on climate change adaptation. At this stage, much of my time is spent on field reconnaissance, interview and photo-documentation.  I walked across forests and croplands and along the way I rediscovered my fascination for wildflowers.

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