The Future of International Environmental Law: A Law of the Ecological Commons?

[Darren]

http://blog.p2pfoundation.net/book-of-the-day-the-law-of-the-ecological-commons/2012/03/26

* Article: David Bollier. “The Future of International Environmental 
Law: A Law of the Ecological Commons?. Chapter of: International 
Environmental Law and World Order: A Problem-Oriented Coursebook. edited 
by Jonathan C. Carlson, Burns M. Weston, et al. West Pub., 2012

Excerpted from David Bollier:

‘A new law textbook, International Environmental Law and World Order: A 
Problem-Oriented Coursebook, just published in the Third Edition by West 
Publishing, includes a chapter by me, “The Future of International 
Environmental Law: A Law of the Ecological Commons?”

The textbook was edited by Professors Jonathan C. Carlson and Burns M. 
Weston (University of Iowa College of Law) and Sir Geoffrey W. R. Palmer 
(former Minister of the Environment and Prime Minister, New Zealand). As 
the copyright holder of my chapter, I am releasing the text under a 
Creative Commons Attribution-NonCommercial-ShareAlike 3.0 license. I am 
attaching it at this link – and in the “Resources” section above – in 
the hope that law students and others will find some useful readings, 
analysis and discussion questions about the commons. (Warning: it’s an 
84-page pdf file.)

Let me also convey my heartfelt thanks to my colleague Professor Burns 
Weston for inviting me to write the chapter and for his incisive editing 
of my text. (We are currently working on a book manuscript dealing with 
“commons law.”)

I introduce “A Law of the Ecological Commons?” by noting:

[The commons] has a long and venerable history in law and social 
tradition, and is closely tied to the evolution of human rights. It 
stretches back to the Magna Carta, the Romans, and even earlier, and has 
been a perdurable institution for managing land, water, wildlife, and 
other elements of nature. Arguably the commons is as old as homo sapiens 
itself.

In modern times, the commons has become a default paradigm of social 
production and governance on the Internet; it provides an intellectual 
critique of free market fundamentalism; and it is a platform for 
re-imagining the governance, economics, and cultural stewardship of 
shared resources of many types, including nature. The commons is, 
however, less an ideology than intellectual scaffolding used to develop 
innovative legal and policy norms, institutions, and procedures by which 
“commoners” (sometimes the general public, other times a distinct 
community) can manage a given set of ecological resources sustainably. A 
commons constitutes a kind of social and moral economy. It is a matrix 
of perception—a worldview—that can loosely unify diverse fields of 
action now largely isolated from one another…..

Modern-day economics as a discipline valorizes growth, technological 
innovation, and consumerism as preeminent goals, and posits a world of 
rational individuals intent on maximizing their material self-interests. 
Most of these premises are taken for granted as appropriate and receive 
little empirical scrutiny or theoretical challenge. This attitude is 
gradually changing, however, chiefly because the October 2008 economic 
crisis provoked a great deal of soul-searching within the field. Also, 
alternative economic approaches—from behavioral economics, complexity 
theory economics, ecological economics, and “post-scarcity economics,” 
among others—are starting to win new converts.

Studying the commons means transcending the limitations of conventional 
economics by taking into account the larger social, human, and 
ecological context of economic activity. The actual costs and benefits 
of economic activity are scrutinized and seen holistically; a 
community’s values, norms, and social practices as embodied in a 
particular local, national, or international context are evaluated; 
economic exchange, not less than commoning itself, is understood to 
implicate a complex set of social variables. Thus, the theater of 
relevant inquiry extends well beyond the economic factors of those 
things that a for-profit business enterprise regards as germane. To 
study commons is to go beyond strict economics; it implicates 
anthropology, environmental science, political science, and social 
psychology, as well as culture, the empirical study of specific 
stewardship practices, and the law.

The first section of the chapter looks at the conceptual and historical 
background of the commons, as seen through readings by Garret Hardin and 
commons scholars such as Elinor Ostrom and Lewis Hyde.

The next section introduces new notions of stewardship over the long 
term, often in contrast to regimes of private property rights and 
exclusive individual ownership for market gain. This accounts for the 
many deep tensions between private property law and the commons.

A third section surveys a number of contemporary ecological commons and 
proposals for new commons such as acequias (community-operated 
waterways) that enable Native Americans to steward scarce water supplies 
in New Mexico; the Potato Park in Peru that empowers indigenous people 
to assert stewardship rights over a genetically valuable potatoes; 
community fishing regimes for endangered fisheries; and “stakeholder 
trusts” and “social charters” as a new paradigms of governance of 
ecological resources. The point is that we need new sorts of 
institutional innovation to manage the atmosphere, oceans and fresh 
water more responsibly.

Finally, a fourth section considers the future of the commons and 
ecological governance that nation-states should strive to support.

Among the concluding thoughts:

Our challenge is to imagine the different policy structures and 
protocols at all levels of governance that can affirmatively support the 
formation and flourishing of commons. How can they be allowed to unleash 
their constructive energies, innovation, and attention to ecological 
limits while assuring minimal performance standards and accountability 
to the larger (hopefully democratic) polity? What are the means by which 
governing institutions can foster, for example, local commons for, say, 
agriculture (such as community supported agriculture, or CSAs), water 
resources, or forests? How can they begin to legally recognize the value 
of commons-based governance?

For a democratic polity on the national or subnational plane, and 
especially one based on individual rights and entitlements, recognizing 
indivisible collective interests through law poses serious challenges. 
The tradition is under-developed and there is political resistance to 
such approaches. Yet there are also many existing legal precedents and 
practical models that can be studied and emulated. They include 
community land trusts, cooperatives, national parks, municipal 
utilities, land grant colleges, and the Alaska Permanent Fund, which 
distributes a portion of royalties from oil drilled on state lands to 
all Alaskan households.”