By Francesca Rheannon
In this second part of a two-part series, we explore how the “duopoly” of State and Market could become part of a new triarchy with the Commons to protect the environment.
A banner reading “Listen to the people, not the polluters” was briefly unfurled December 5th when Greenpeace activists tried to hang it from a Durban, South African hotel hosting a conference of business leaders convened by the World Business Council on Sustainable Development. It was part of a protest to highlight Greenpeace’s new “Dirty Dozen” report, coinciding with the climate talks in Durban, on how major corporations are holding the world back from getting an effective deal on tackling climate change as the clock ticks perilously close to climate tipping points.
(One of the conference participants showed up on the “dirty dozen” list: Eskom, the South African state-owned electrical utility.)
That three of the activists were immediately deported is symbolic of just how little world leaders are “listening to the people.”
Last week, I wrote about why the talks are doomed to failure and about why a new “architecture of law and policy to support the Ecological Commons” must be imagined if we are to ever succeed in protecting our fragile planetary ecosystem from spinning out of control. That quote is from the work of Commons advocate David Bollier, who, together with legal scholar Burns Weston, is promoting a new international legal framework that could protect the environment for current and future generations.
In their draft paper, “Regenerating the Human Right to a Clean and Healthy Environment in the Commons Renaissance,” Bollier and Weston conclude that the most promising avenue for bringing the planet’s ecosystem under the mantle of jurisprudence is through human rights law. The idea isn’t new; there are a number of conventions and declarations that establish a human right to a sustainable environment and others that declare the rights of all living beings – indeed, of Mother Earth herself – to environmental protection.
But the route to making those human rights real remains fraught with obstacles – largely because established law is generally hostile to recognizing collective over private property rights. But Bollier and Weston’s paper suggests some ways the human right to the environment could, in fact, be implemented. It will take, they say, a tripartite strategy that combines:
- building on existing laws and customary practice;
- amplifying the cultural movement for greater participatory democracy now building across the globe;
- and a shift from the duopoly of State and Market, in which the purpose of the former is to serve the latter, to a “triarchy” of State, Market and the Commons that can reclaim and protect our vital collective resources, like the atmosphere, oceans and biospheres.
Established legal doctrines such as the public trust doctrine and public nuisance doctrine are being used to bring legal suits against states and climate polluters. The town of Kivalina in Alaska, precariously perched on a rapidly eroding spit of land in the Chuksee Sea, has brought suit against 20 oil companies under the public nuisance doctrine. A group of young people has sued 50 U.S. states and the federal government under the public trust doctrine to stop climate change. The international treaty, the Montreal Protocol, was able to significantly slow the destruction of the Earth’s ozone layer.
But Bollier and Weston call for more imaginative and innovative use of existing laws, especially private property laws, to protect collective property instead. An example is the “stakeholder trust,” like that for the atmosphere proposed by Peter Barnes. It would use carbon trading to cut emissions and provide revenues to poor nations for climate change adaptation.
A key first step is to “name” the Commons – for example, to name the atmosphere or, more locally, a watershed – as a property held in Common. “Naming the Commons as a commons is the first step toward protecting and reclaiming collective resources... it offers a vocabulary for talking about the proper limits of market activity – and enforcing those limits,” the authors write.
Central to the success of such strategies, however, is the empowerment of civil society toward greater participation and democracy. That’s what the Occupy movement is all about, but it is a trend that has been growing for decades, from grassroots NGOs to the anti-globalization movement that exploded during the WTO meetings in Seattle. That’s crucial because, as David Bollier told CSRwire, “We need new multilateral institutions that can check the Market/State duopoly; Commoners must assert themselves politically to do that.”
He and Weston say a new Commons sector must arise – actually, is rising (largely in the digital sphere, with, for example, the Creative Commons license) – but must spread in order to balance the power of the private sector and check its excesses. “The challenge is not to establish separate and ‘pure’ commons, untouched by either the State or the Market.... it is important that state law and public policy empower the Commons sector so that it can preserve its essential integrity and value proposition.” This triarchy of Market/State/Commons would enable the State to become a partner and supporter to the Commons sector, as well as Market sector.
One way would be to re-envision the corporate charter. States originally granted charters (which had to be regularly renewed) to corporations that could prove a public benefit. But, as is well-known, the original purpose has become corrupted, as the only duty corporations legally have is to fatten the purses of its shareholders. This could be corrected by restoring public benefit (or, at least, lack of harm) as one necessary criterion for granting corporate charters and creating corporate boards of all stakeholders, including those representing the environment for current and future generations.
But Bollier and Weston also suggest the State could empower the establishment of Commons-based corporations – a fishery, for example, set up to be protected in perpetuity through sustainable practices.
“With the right enabling structures,” Bollier and Weston say, “Commons and markets can be constructively synergistic rather than adversarial.” (Bollier gives the example of the synergy between Linux and Red Hat.) But before that can happen, the private sphere must stop enclosing the Commons. Those common resources, like air, water and genomes must be given their proper legal standing under the right of collective property.
It is ironic that in our topsy-turvy society, private corporations have human rights, while human beings lack even the enforceable right to a livable planet. Creating Commons-based corporations could help turn the world right side up to stand sustainably on its feet.
About Francesca Rheannon
Francesca is CSRwire's Talkback Managing Editor. An award-winning journalist, Francesca is co-founder of Sea Change Media. She produces the Sea Change Radio’s series, Back to The Future, and co-produces the Interfaith Center of Corporate Responsibility’s podcast, The Arc of Change. Francesca’s work has appeared at SocialFunds.com, The CRO and E Magazine, and she is a contributing writer for CSRwire. Francesca hosts the nationally syndicated radio show, Writer's Voice with Francesca Rheannon.
This commentary is written by a valued member of the CSRwire contributing writers' community and expresses this author's views alone.