law

The Rise of Biocultural Rights

Can law be used to protect and advance the commons?  One of the most promising new developments here is a new jurisprudence of “biocultural rights.” Biocultural rights represent a bold new departure in human rights law that recognizes the importance of a community’s stewardship over lands and waters.  Instead of focusing on individual rights and private property, biocultural rights explicitly recognize a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape.  In other words, it recognizes the existence of a commons. 

The history and character of biocultural rights are wonderfully explained in a recent law review article in the Journal of Human Rights and the Environment.  The article, “Community Stewardship:  The Foundation of Biocultural Rights,”  is by Kabir Sanjay Bavkiatte, a cofounder of Natural Justice, an international collective of environmental lawyers, and Thomas Bennett, a professor at the university of Cape Town, South Africa. (Vol. 6, No. 1, March 2015, pp. 7-29)

Here’s an abstract of the article:

The term ‘biocultural rights’ denotes a community's long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Certain core principles lie at the heart of biocultural rights, write Bavkiatte and Bennett.  These include “non-discrimination, protection of cultural integrity, self-government, title to lands and natural resources, together with social welfare for economic well-being.” 

The authors concede that “international lawyers have undertaken little or no research into the development of biocultural rights” – something that this article sets out to rectify. They argue persuasively, however, that these rights have clearly surfaced in a variety of international covenants, declarations, conventions and codes of conduct. 

Biocultural rights as a new field of law have not emerged magically on their own, but through the convergence of four interrelated movements that have contributed important ethical principles, legal concepts and political advocacy.  Together, these movements have brought the idea of biocultural rights into sharp focus. 

The four movements identified by the authors consist of:

“post-development” advocates who are articulating a vision for human society beyond the discredited neoliberal paradigm;

the commons movement that rejects the “tragedy” fable and empirically demonstrates the effectiveness of local self-governance;

the movement of indigenous peoples asserting their right to self-determination, cultural heritage and stewardship of the land; and

the push for a “third generation” of environmental human rights that go beyond basic civil and political rights (first generation) and socio-economic and cultural rights (second generation), to recognize community rights to self-determination, economic and social development, cultural heritage and a clean and healthy environment.

(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.

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.

Fixing the Law’s Bias Against Sharing

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

Can the boundary-bursting categories of the commons penetrate the mighty citadel of Harvard Law School and its entrenched ways of thinking about property, markets and law?  I set out to find out last Saturday at the “This Land Is Your Land:  Remaking Property After Neoliberalism” conference.  The one-day event was convened by Unbound, the Harvard Law journal of the legal left, and the Institute for Global Law and Policy.  I had been invited to participate on a panel, “From Homo Economicus to Commoner” and to explore with about 100 students and a few professors how “the left” might approach property rights in some new ways.

The liberal/leftist luminary Duncan Kennedy, a founder of the critical legal studies movement and an advisor to Unbound, opened the day with a talk about “property as fetish and tool.”  He explained how both the right and the left have their own versions of property fetishism.  The right has adopted highly naturalistic arguments that regard property as an entirely natural, ahistorical reality.  An example is the right’s imposition of intellectual property rights on countries of the global South. 

The left, meanwhile, generally regards property law as a “bundle of rights” that is principled and conceptually coherent when it is in fact, he pointed out, simply an incoherent accretion of laws that reflect countless political struggles of the past.  The problem with the left, Kennedy suggested, is that it does not have an alternative conception of property law except as a useful tool of left political projects, such as better housing and social conditions.  Kennedy implied that it was futile for the left to try to get “outside” of property discourse.

Fortunately, Michael Hardt of Duke University – author of Empire and Commonwealth, among other books –objected.  He argued that we need to develop a conception of property that lets us think outside of standard property discourse and property relationships.  But is this possible and desireable?  Conference participants disagreed, and came back to the topic many times throughout the day.

Joseph Sax’s illustrious career in the law should be remembered for the importance of blending visionary thinking with rigorous scholarship. At a time when private property rights were the only serious framework for managing air, water, land and seas, Professor Sax single-handedly breathed new life into the public trust doctrine with his seminal 970 law review article. Sax died on Sunday, which prompts these reflections on the far-reaching effects of his creative legal scholarship.

In the late 1960s, as a professor at the University of Colorado teaching courses on mining, water and oil and gas law, Sax realized that all of it was oriented towards the maximal private exploitation of natural resources.  He asked:  “How come there’s no public dimension to natural resource law, and the public who uses these areas and actually owns most of them doesn’t have a say in what goes on?”

His answer, in 1970, was “The Public Trust Doctrine in Natural Resource Law:  Effective Judicial Intervention,” in the Michigan Law Review -- a piece that went on to become one of the most influential law review articles ever.

The essay looked to Roman law, English common law and a handful of U.S. Supreme Court rulings to declare that the “public trust doctrine” empowers courts to intervene in government and market actions to protect citizens' sovereign interests. The basic idea is that the government does not own natural resources; it is merely a trustee who must act on behalf of the unorganized public to protect their interests and those of future generations who cannot yet represent their interests in court.

In her brilliant new book, Mary Christina Wood, a noted environmental law scholar at the University of Oregon, Eugene, courageously sweeps aside the bland half-truths and evasions about environmental law.  In Nature’s Trust:  Environmental Law for a New Ecological Age (Cambridge University Press), Wood argues:  “That ancient membrane of law that supposedly functions as a system of community restraint [is] now tattered and pocked with holes.”  Our current regulatory system will never solve our problems.  She continues:

"A major source of administrative dysfunction arises from the vast discretion [environmental] agencies enjoy – and the way they abuse it to serve private, corporate and bureaucratic interests.  As long as the decision-making frame presumes political discretion to allow damage, it matters little what new laws emerge, for they will develop the same bureaucratic sinkholes that consumed the 1970s laws.  Only a transformational approach can address sources of legal decay."

Wood’s mission in Nature’s Trust is to propose a new legal framework to define and carry out government’s ecological obligations.  For Wood, a huge opportunity awaits in reinvigorating the public trust doctrine, a legal principle that goes back millennia.  She explains how the doctrine could and should guide a dramatically new/old approach to protecting land, water, air and wildlife. 

In 1970, Professor Joseph Sax inaugurated a new era of legal reforms based on the public trust doctrine with a famous law review article.  For a time, Sax’s essay sparked energetic litigation to protect and reclaim waters that belong to everyone.  The focus was especially on beachfronts, lakes and riverbanks, and on wildlife.  But as new environmental statutes were enacted, some courts and scholars began to balk and backtrack and hedge.  They complained that the public trust doctrine should take a backseat to environmental statutes.  Or that the doctrine should apply only to states.  Or that it applies only to water and wildlife, and not to other ecological domains.  And so on.

In a major triumph for protecting genes as a commons, the US Supreme Court ruled last week that human genes cannot be owned and must be available to anyone for study and medical innovation.  The case involved a Utah company, Myriad Genetics, that had claimed patents on “breast cancer susceptibility genes,” which gave the company a monopoly on a $3,000 diagnostic test that could detect heightened risk of getting cancer.  The patents were widely criticized for impeding breast cancer research and stifling cheaper, more competitive diagnostic tests.

The Court’s unanimous ruling in Association for Molecular Pathology v. Myriad Genetics, Inc. held that “a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated….”  Myriad had claimed that its isolation of the critical BRCA1 and BRCA2 genes in a person – a diagnosis that dramatically increases the risks of cancer in a person -- entitles it to patent those genes to the exclusion of others.

 But Justice Thomas held that “separating that gene from its surrounding genetic material is not an act of invention.”  The case was brought by an array of doctors, medical researchers and women’s health organizations that objected to the impact of the patents on research, competition and healthcare.

This sweeping ruling rolled back one of the most notorious enclosures of the past generation.  It also drew a bright line limiting the capacity to legally own a naturally occurring element of nature.  This is a significant legal development that one might not have expected from the Roberts Court.  I suspect that the sheer incoherence and contradictions of patent law were just becoming too egregious for any other outcome but this one.

Biotech experts now expect that new diagnostic tests will be offered that dramatically lower the costs of assessing one’s risk of cancer.  It is also likely that there will be more robust, innovative research focused on these genes now that the risk of patent infringement has been swept aside.  It’s been estimated that there may be about 8,700 gene patents that might be jeopardized by the Myriad decision. 

The Icelandic Putsch

It is the lazy conceit of the political class that “representative democracy” is the most reliable way of carrying out the public will.  Just as George W. Bush showed how the accountability mechanisms of state power are often more notional than real, the government of Iceland has now exposed its disdain for public opinion on matters of democratic empowerment.  A recent blog post by Thorvaldur Gylfason gets right to the point:  “Putsch:  Iceland’s crowd-sourced constitution killed by parliament.”  Gylfason is an economics professor blogging at the German blog Verfassungsblog (“on matters constitutional”).  

Iceland’s constitutional drama got its start following the 2008 crash.  As viewers of the film Inside Job will recall, the financial collapse was devastating to Iceland, which had set itself up as an offshore financial center.  After citizen protesters banged pots and pans in the street, demanding a new government, a new post-crash government eventually chose 950 random citizens to give their thoughts on a new constitution.  An elected constitutional council used social media to solicit the views of the public.

This open, thoughtful process was later invalidated by the country’s Supreme Court, which was dominated by justices belonging to the discredited political party responsible for the financial crash.  In response, the Icelandic parliament established a new constitutional council to draft a constitution.  That four-month process in 2011 yielded some remarkable reform proposals, as Gylfason writes: 

The constitutional bill stipulates, among other things: (a) electoral reform securing ‘one person, one vote’; (b) national ownership of natural resources; (c) direct democracy through national referenda; (d) freedom of information; and (e) environmental protection plus a number of new provisions designed to superimpose a layer of checks and balances on the existing system of semi-presidential parliamentary form of government. The preamble sets the tone: “We, the people of Iceland, wish to create a just society where everyone has a seat at the same table.” The people were invited to contribute to the drafting through the Constitutional Council’s interactive website. Foreign experts on constitutions, e.g. Prof. Jon Elster of Columbia University and Prof. Tom Ginsburg of the University of Chicago, have publicly praised the bill and the democratic way in which it was drafted.

For years I have been the rapporteur for the Aspen Institute’s Information Technology Roundtable conference, which every year brings together about 25 technologists, venture capitalists, policy wonks, management gurus, and others to discuss topics of breaking concern.  The most recent topic was the “power curve” distributions that tend to result on open network platforms.

This is extensively discussed in my just-released report on the conference, Power-Curve Society:  The Future of Innovation, Opportunity and Social Equity in the Emerging Networked Economy.  The report notes how a globally networked economy allows greater ease of transactions but also requires fewer workers at lower pay, which tends to aggravate wealth and income inequality.  As I write in the introduction to the report:

Although the new technologies are clearly driving economic growth and higher productivity, the distribution of these benefits is skewed in worrisome ways. Wealth and income distribution no longer resemble a familiar “bell curve” in which the bulk of the wealth accrue to a large middle class. Instead, the networked economy seems to be producing a “power-curve” distribution, sometimes known as a “winner-take-all” economy. A relative few players tend to excel and reap disproportionate benefits while the great mass of the population scrambles for lower-paid, lower-skilled jobs, if they can be found at all. Economic and social insecurity is widespread.

The report also looks at Big Data and the coming personal data revolution beneath it that seeks to put individuals, and not companies or governments, at the forefront. Companies in the power-curve economy rely heavily on big databases of personal information to improve their marketing, product design, and corporate strategies. The unanswered question is whether the multiplying reservoirs of personal data will be used to benefit individuals as consumers and citizens, or whether large Internet companies will control and monetize Big Data for their private gain.

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