Efforts to protect the environment have hit a wall: the unwillingness of the State and the Market to set limits on market abuses and excesses. A Commons-based governance could solve the problem.
By David Bollier and Burns H. Weston
Part of the Green Governance series
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.
The Importance of Human Rights
- Human rights play a significant role here because they signal a public commitment to human dignity and basic needs, for which environmental well-being is clearly prerequisite.
- Human rights trump most other legal obligations because they are juridically more elevated than commonplace “standards,” “laws,” and other policy choices.
- To assert human rights is to challenge state sovereignty to respect certain basic principles and go beyond the parochial agendas of private elites. Human rights enable rights-holders to assert high-level entitlements; they empower legally and politically as well as morally.
The State/Market Duopoly Impedes Human Rights
Unfortunately, the ambitious project to advance environmental human rights has foundered because, in the present geopolitical order, it has been made to depend on the close alliance of the State and Market – what we call the “State/Market duopoly” – to vindicate its principles.
The human right to a clean and healthy environment can be conceived in essentially three different ways:
- As an entitlement derived from other recognized rights (such as the right to life, to health, and to respect for private and family life);
- As a legal entitlement autonomous unto itself; or
- As a cluster of procedural entitlements (such as the right to environmental information and participation in administrative hearings and decisions).
But however construed, the right has limited official recognition and jurisdictional reach.
History has shown that investors, corporations, and their political allies are not eager to embrace innovative legal principles that might constrain their prerogative to use – and abuse – our shared natural resources for private gain.
Courts Reluctant to Support Robust Interpretations of Human Rights
What is more, formal jurisprudence tends to rely on precedents that often are relics of preindustrial era norms, or to focus on their limited geographic jurisdictions even if the environmental problems are transnational.
Additionally, courts are understandably wary of appearing to make political judgments, so they tend to defer to legislatures and executive branches, which are commonly beholden to wealthy special interests.
Further, with so many scientific uncertainties surrounding environmental problems, it is far easier for courts to focus on procedural issues and avoid the substantive ones and the hard choices they raise.
Not surprisingly, therefore, the laws enacted by legislatures and declared by courts continue to allow abusive environmental practices – especially by large corporations – notwithstanding their harm to basic human rights.
Efforts to Protect the Environment Hit the Wall
This situation is not likely to change within the current framework of international law and ecological governance – and most people see no viable alternative to the existing legal regime. Which leaves us at an impasse: unable to protect either our environment or our basic human needs through our legal systems and unable to imagine an overhaul of the current regulatory framework or a radical shift from it.
Let us be blunt: neither the State nor the Market has been very successful at setting limits on market abuses and excesses because ultimately neither really wants to. Setting limits could diminish economic growth, tax revenues and “progress.”
Despite many valiant efforts by various environmental and human rights organizations, these realities impede the quest for a more robust human right to a clean and healthy environment. One might even say that such efforts have “hit a wall” in terms of making significant progress.
The Human Right to Green Governance
And this is why we propose not just a new commons- and rights-based model of ecological governance, but a fundamental human right to such governance, as well. We call it the human right to Green Governance, which is, in essence, a recalibrated human right to a clean and healthy environment.
Two Alternatives: Intergenerational Rights and Nature's Rights
Some environmental advocates – frustrated by the resistance of neoliberal economics, policy and law – have in recent years developed two innovative approaches to advancing the human right to environment.
The first approach focuses on the environmental rights of future generations; the second on the “rights of nature.”
The claim is made, for example, that future generations ought to be entitled to the same quality of air, water and soil as we and previous generations have enjoyed. “Nature’s rights” have been proposed as a way to formally grant nature protective rights of its own, and so put it on the same legal footing as individuals, governments, and corporations.
Ecuador incorporated such provisions into its constitution in 2008, and Bolivian President Evo Morales also has been an ardent advocate of nature’s rights in his country and at the United Nations.
Legal Obstacles to Environmental Rights
Both of these approaches – nature’s rights and intergenerational rights – go beyond the narrow anthropocentrism of existing law and try to develop a more biocentric, holistic approach. Unfortunately, courts have been reluctant to adjudicate these rights for various technical reasons.
For example, even though the idea of intergenerational rights is sound as a matter of legal theory, it is handicapped by a culture of modernity that prioritizes the present and thus relies heavily on moral appeal for its acceptance. In both instances, it is not self-evident who is the most appropriate legal representative of future generations or nature.
Apart from such surmountable issues, the real impediment is that any forthright recognition of nature’s rights would disrupt existing legal norms and spark great political controversy: a scenario that courts are not prepared to instigate. Both legal theories seek to persuade the existing State/Market regulatory system – which is fundamentally responsible for most of the environmental damage that threatens our collective future – to voluntarily abandon its core legal premises.
While intergenerational rights and nature’s rights are a constructive set of positive legal principles – if only because they spur public conversation about the inadequacies of existing law – they are not likely to produce the kinds of dramatic environmental improvements that we need.
Advancing Human Rights through Commons-Based Governance
How, then, might we proceed? We believe that the human right to a clean and healthy environment can still be a powerful tool for imagining – and implementing – a new system of ecological governance that serves everyone.
But advancing this vision will require that we go beyond conventional understandings of law and how it is formulated and enforced – the formal law of State-based institutions. We must begin to construct a new architecture of law and policy, one that will enable societies around the world to alter their governance of human activities, especially economic ones.
In our next essay in this series, we will set forth our proposal to elevate the Commons as a new model for ecological governance – and a new species of law that draws upon well-established legal principles. We believe that the Commons can serve as an holistic, integrated platform for a new paradigm of law and policy that could help secure a clean, healthy, biodiverse and sustainable environment.
The basic goal is to move toward new types of social practices, material provisioning and environmental stewardship as a way to give more substantive meaning to human rights. We immodestly believe that this may be the only way to bring the law of humankind into greater alignment with the laws of nature.
This essay is adapted from Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, by Burns H. Weston and David Bollier Copyright © 2013 Burns H. Weston and David Bollier. Reprinted with the permission of Cambridge University Press.