Nearly twenty years ago, just after I published Silent Theft, my first book about the commons, I was mingling with strangers at a conference reception at Georgetown University. The World Wide Web and open source software were still in their infancy, and few people in mainstream circles gave much thought to the implications of copyright law on human freedom and creativity. Suddenly a French fellow appeared out of nowhere and introduced himself to me, saying that he wanted to talk about the commons.
And that is how Philippe Aigrain soon became a friend and my first European colleague in studying the commons, circa 2003. With great sadness, I learned last week that Philippe died on July 11 following a hiking accident in the French Pyrénées, at age 72. I share the heartbreak expressed by Francophone commoners and beyond at this crushing news.
Philippe was a computer scientist and activist who led many early fights against software patents, especially as director of the Software Freedom Law Center. He was also a cofounder of the French advocacy group La Quadrature du Net in 2008, which fights for basic human rights on digital networks, free software, and the commons.
While much of the momentum to fight climate change is focused on political channels, there are parallel efforts using law to force government to take specific, enforceable actions to reduce carbon emissions. It’s a difficult battle, but in recent weeks two notable initiatives have gained further momentum – a court ruling relying on the public trust doctrine and a new human rights declaration that has broad international support.
The court ruling is related to a series of lawsuits brought by young people invoking the public trust doctrine to force governments to protect the atmosphere. Orchestrated by the advocacy organization Our Children’s Trust, the Atmospheric Trust Litigation suits have been filed in all state courts and in federal courts.
On November 19, one of those lawsuits succeeded. A superior court judge in Seattle issued a ruling that strongly recognizes the public trust doctrine as a applying to the atmosphere. The case sought to uphold science-based plans for carbon emissions reductions developed by Washington State’s Department of Ecology, as a way to protect the atmosphere for eight young people (the plaintiffs) and future generations.
The ruling is especially significant because it echoes a recent ruling by a New Mexico court that also strongly upholds the constitutional principle that the public trust doctrine applies to the atmosphere.
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.
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.
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.