Until the very end, my dear friend and colleague Burns Weston was passionate, hard-driving and committed to changing the world.  That’s why I was stunned to learn that Burns passed away yesterday, a few weeks shy of his 82nd birthday.  When he failed to make a scheduled telephone call, friends checked his condo and found him dead.  Burns was a well-known international law and international human rights scholar at the University of Iowa College of Law.  He was also founder of its noted Center for Human Rights.

I met Burns about seven years ago when he was a professor for one semester a year at Vermont Law School.  He was writing a major legal treatise about climate change, and one element of the essay dealt with the commons.  A mutual friend, the polymath Roger G. Kennedy, introduced us, and the gravitational pull of Burns’ essay quickly drew me in. It was an irresistible disruption in my life that got me thinking a lot about environmental law and the commons.

Soon we were working together on a variety of projects:  a major scholarly book, chapters in anthologies, law review articles, grant proposals. In the course of it all, Burns exposed me to a great deal of human rights and international law, and he helped clarify their potential and limits for re-imagining international governance, environmental law and the actualization of human rights. For my part, I introduced Burns to the loose but growing network of international commoners and commons literature. He quickly realized that the commons is not just complementary to human rights; the two are long-lost partners with affirmative synergies. 

Our conversations became more serious and, with a bit of serendipitous funding, we embarked upon a grueling book project, Green Governance:  Ecological Survival, Human Rights and the Law of the Commons, published in 2013 by Cambridge University Press.  It was a bold attempt to reimagine environmental law and policy through the lens of human rights and the commons.  We wanted to envision new ways to actualize human rights principles and commons practices at global and regional levels.  We wanted to think beyond the framework of the nation-state and international treaty organizations.  We wanted to think beyond the standard forms and institutions of law itself.

Burns attacked these questions with the enthusiasm of a first-year law student and the sagacity of a gray eminence.  He really wanted to come up with creative legal solutions, and he wasn’t afraid if they might require social and political struggle. Now that’s not a quality you find in your average law professor, let alone one in his seventies. Burns had a bold and questing temperament, and did not let himself be confined by the disciplinary blinders of law. That’s why, following the publication of Green Governance, Burns wanted to continue our explorations.  So we founded the Commons Law Project to see if we could propose an architecture of law and public policy to address climate change and other urgent ecological problems.

There is one notable aspect to the Volkswagen emission-cheating scandal that few commentators have mentioned:  It would not have happened if the software for the pollution-control equipment had been open source. 

Volkswagen knew it could defraud consumers and deceive regulators precisely because its software was closed, proprietary and legally protected from outside scrutiny. Hardly anyone could readily check to see if the software was performing as claimed.    

Sure, dogged investigators could laboriously compare actual car emissions to emissions in artificial regulatory tests. That’s essentially what broke open the Volkswagen scandal. But that is an expensive and problematic way to identify cheaters. 

The larger question is why should a piece of software that has enormous public health and environmental implications be utterly impenetrable in the first place?  A locked box invites lawless, unaccountable and sloppy corporate behavior. It assures that hardly anyone can see what’s going on. Volkswagen exploited the cover of darkness for all that it could.

When the state no longer enforces its own legal standards on human rights or ecological protection, often in deference to corporate partners, the logical response is to establish a commons-based alternative – a people’s tribunal. That’s what is now planned in the case of fracking and its implications for human rights.

The Permanent Peoples’ Tribunal (PPT) has scheduled a session in March 2017 to “consider whether sufficient evidence exists to indict certain named States on charges of failing adequately to respect the human rights of citizens as a result of permitting, and failing to adopt a precautionary approach to, hydraulic fracturing and other techniques of unconventional oil and gas extraction within their jurisdictions.”  The Tribunal is an internationally recognized public opinion tribunal functioning independently of state authorities and operating out of Rome. The Tribunal will hold a week of hearings in both the US and UK.

Governments take great pains to prevent their most sacrosanct policies from being questioned in courts of law.  Consider how the US Government short-circuited any significant court rulings about the NSA’s extensive secret surveillance of citizens, in violation of the Fifth Amendment.  It took Edward Snowden's revelations to force judicial review. 

We’ve been here before, of course. The lawless Vietnam War was a prime example. As a corrective to the state crimes committed in that instance, philosopher Bertrand Russell and Jean Paul Sartre organized the Vietnam War Crimes Tribunal in 1967 to hear evidence about violations of the citizen’s basic human rights. In that tradition, today’s PPT will assess the human rights implications of fracking.

So what might a commons-based economy actually look like in its broadest dimensions, and how might we achieve it?  My colleague Michel Bauwens of the P2P Foundation offers a remarkably thoughtful and detailed explanation in a just-released YouTube talk, produced by FutureSharp. It’s not really a video – just Michel’s voiceover and a simple schematic chart – but the 20-minute talk does a great job of sketching the big-picture strategies that must be pursued if we are going to invent a new type of post-capitalist economy.

Michel focuses on the importance of three specific realms that are crucial to this new vision – ecological sustainability, open knowledge and social solidarity. Each is critical as a field of action for overturning the existing logic of market capitalism. 

Fortunately, there are many promising developments in each of these realms. Many parts of the environmental movement seek to go beyond the standard “market-oriented solutions.” There is a growing body of open source-inspired projects for software code, information, design and physical production, which is now spawning new types of global sharing of information with distributed local production. And there are many advocates and initiatives for social justice and fairness in the economy, such as cooperatives and the solidarity economy movement.

The problem, says Bauwens, is that these movements do not generally connect with each other or coordinate internationally. He therefore sees the need for “meta-economic networks” to bridge these fields of action. So, for example, we need “open cooperativism” enterprises to bridge open knowledge systems and cooperatives, so that open network (or licensed) systems are not simply dominated by large corporations in the way that Google, Uber and Airbnb have done. We also need to develop an “open source circular economy” to bridge the worlds of eco-sustainability and open knowledge.  We will never address major environmental problems if the technological and product solutions are based on proprietary knowledge; open circulation of knowledge can change that.

It’s always been frustrating to me that Europeans and people in the global South appreciate the potential of the commons far more than most Americans, even among political progressives and activists. Happily, this past weekend saw a big shift.  In Rhinebeck, New York, the Omega Center for Sustainable Living (OCSL) – part of the noted Omega Institute retreat center – unleashed a torrent of creative energy and political action by hosting the first major conference of commons activists in North America.

There have, of course, been many smaller gatherings of US and Canadian commoners focused on specific issues such as water, local food, software code and online resources.  Commons scholars have a long history of getting together.  But this conference was different.  It brought together more than 500 participants to catalyze and instigate creative action around the commons. The paradigm clearly has some resonance for this region which is now faced with some serious market enclosures – the dangerous railway transport of oil supplies, the proposed construction of massive electrical transmission towers that will defile the beautiful landscape, and the proposed use of Cooper Lake for bottled water -- along with the usual assaults of neoliberal capitalism. 

“Where We Go From Here” focused directly on the great promise of the commons in re-imagining how we pursue social, political, economic and ecological transformations.  The keynote speakers were fantastic: the tireless environmentalist and eco-feminist activist Vandana Shiva; climate change activist Bill McKibben, still on a high from the successful climate march in NYC; author and futurist Jeremy Rifkin who foresees the rise of the “collaborative commons”; the deeply knowledgeable and witty ecological scholar David Orr of Oberlin College; the flinty, resourceful environmentalist and Native American activist Winona LaDuke, founder of Honor the Earth; the sustainable design architect Bob Berkebile; green jobs advocate and CNN commentator Van Jones; among many others.  I opened the day with an overview of the commons.

The deeply engaged conference participants consisted of environmental, food and social justice activists, the directors of many community projects, academics and students, indigenous peoples activists, a state legislator, permaculturists, Fablab hacktivists, Occupy veterans, and others too diverse to mention.  Most seem to have come from the Hudson River Valley, but quite a few came from the greater New York City region, New England and beyond. 

On the Dangers of Monetizing Nature

I remember in the late 1970s how the corporate world essentially invented the use of cost-benefit analysis in health, safety and environmental regulation. It was a brazen attempt to redefine the terms for understanding social ethics and policy in terms favorable to capital and markets.  Instead of seeing the prevention of death, disease and ecological harm as a matter of social justice, period, American industry succeeded in recasting these issues as economic matters.  And of course, such arcane issues must be overseen by a credentialed priesthod of economists, not ordinary mortals whose concerns were snubbed as selfish NIMBYism (Not in My Backyard).

And so it came to be that, with the full sanction of law, a dollar sum could be assigned to our health, or to the cost of getting cancer, or to a statistical baby born with birth defects. Regulation was transformed into a pseudo-market transaction.  That mindset has become so pervasive three decades later that people can barely remember when ethical priorities actually trumped big money. 

It is therefore a joy to see Barbara Unmüssig’s essay, “Monetizing Nature:  Taking Precaution on a Slippery Slope,” which recently appeared on the Great Transition Initiative website.  Unmüssig is President of the Heinrich Boell Foundation in Germany and a stalwart supporter of the commons, especially in her backing of the 2010 and 2013 conferences in Berlin.

Striking a note that is note heard much these days, Unmüssig points out the serious dangers of seeing the natural world through the scrim of money.  Here is the abstract for her piece:

In the wake of declining political will for environmental protection, many in the environmental community are advocating for the monetization of nature. Some argue that monetization, by revealing the economic contribution of nature and its services, can heighten public awareness and bolster conservation efforts. Others go beyond such broad conceptual calculations and seek to establish tradable prices for ecosystem services, claiming that markets can achieve what politics has not.

However, such an approach collapses nature’s complex functions into a set of commodities stripped from their social, cultural, and ecological context and can pose a threat to the poor and indigenous communities who depend on the land for their livelihood. Although the path from valuation to commodification is not inevitable, it is indeed a slippery slope. Avoiding this pitfall requires a reaffirmation of the precautionary principle and a commitment to democratic decision-making and social justice as the foundations of a sound environmental policy for the twenty-first century.

(I am back from some time at the beach, ready to resume my reporting about the latest commons developments, of which there are many.  More to come!)

Dutch legal scholar Femke Wijdekop of the Institute for Environmental Security has tackled an urgent question for anyone concerned with planetary environment.  She writes: 

How can we construct a right to a healthy and clean environment that is enforceable in today’s complex international legal order? What legal construct would be visionary and ambitious enough to meet the urgent need for environmental justice and protection and at the same time be enforceable in court rather than fall into the category of ‘soft law’?

Wijdekop answers these questions in an essay, “A Human Right to Commons- and Rights-based Ecological Governance:  the key to a healthy and clean environment?” The legal analysis was published by the Earth Law Alliance, a group of lawyers organized by British lawyer Lisa Mead who advocate an eco-centric approach to law. 

Wijdekop’s piece draws upon some of the ideas in my book with Burns Weston, Green Governance in arguing for “procedural environmental rights to establish, maintain, participate in, be informed about and seek redress for ecological commons.”  She has presented these ideas to international lawyers and constitutional scholars in The Hague, and is now reaching out to environmentally minded lawyers.

No respectable person in American politics dares to question the virtue of economic growth even though it is increasingly clear that life on Earth will collapse if current patterns of extraction and consumption continue.  So what is the responsible path forward?

It was exciting that the Institute for Policy Studies in Washington, D.C. decided to host a two-hour webinar to explore this topic two weeks ago.  The dialogue – “A Deeper Look at the Limits to Growth:  Looking Beyond GDP Towards a Post-Growth Society” – amounted to dipping a toe into the water rather than a confident plunge.  But for Americans, who woefully lag behind European activists on this topic, it was a welcome attempt to get beyond conventional political stances. 

Economic growth is always touted as the absolute precondition for greater social justice or environmental progress.  Yet somehow growth never really translates into sustainable gains for the environment or fairer allocations of rewards.  Nonmarket goals are always a receding chimera, an afterthought, a political football.  On the other hand, it is equally true that criticizing economic growth is a sure-fire way to be politically marginalized in American public life.  That's a real problem, too.

The IPS webinar sought to probe the “fundamental rift between traditional progressives over the future of economic growth.  One segment argues that ecological limits dictate that the economic growth paradigm that we know is over…..Other progressives argue we should pursue growth policies -- or even ‘green growth’ -- and not concede that we are ‘anti-growth.’” 

Here is how IPS introduced the webinar:

How do we move beyond the notion that green economists are tone-deaf to equity issues? How do we move beyond the misguided aspirations of many groups excluded from economic prosperity to grow the pie so they can have a larger piece of the pie?  What is the green economist message to traditionally economically excluded constituencies?

Is there a way to “redefine growth” that doesn’t politically concede limits to growth? (After all, conventional wisdom say no politician will win on a degrowth program). Is there a common framework that can unify both of these movements that address both of these group’s deep systemic concerns?

In the past, organized labor and environmentalists have gamely attempted to find a common ground – a “blue/green alliance” – that would push for higher wages and stronger environmental protection at the same time.  Such projects have been a valiant effort to force capital to internalize its negative externalities (pollution, habitat destruction, etc.) and allocate the benefits of growth more equitably.

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 Commonspublished 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 Green Governanceof 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.

This is the fifth 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.

Our last essay outlined the great appeal of the commons as a way to deal with so many of our many ecological crises. The commons, readers may recall, is a social system for the long-term stewardship of resources that preserves shared values and community identity.

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