Axel Marx and Jan Wouters
Samuel Cogolati and Jan Wouters
The main purpose of this book is to understand what the ground-breaking model of cooperation of the commons implies for global governance, especially in relation to the debate on the (non)-democratic nature, institutions, and legal underpinnings of global governance. The research on the implications of the commons for our system of global governance is still scarce. The book therefore aims to contribute to fill the gap between the study of bottom-up commons and global governance. Global governance, which stands for ways of problem-solving cooperation that take place within global networks of relevant stakeholders, is indeed gradually substituting itself for the democratic deliberation within nation-states and comes to have more of a say over what political projects ought to be prioritized. In an interdependent and globalized world, a fair and representative system of global governance will therefore be critical to protect and promote the commons. Hence, we submit that the commons cannot only be studied at the micro-level, where they often emerge. While it is true that decision-making processes for the commons are generally locally owned, the commons also represent at a more macro-level a ‘third way’ to overcome the extractive forces of capitalism and the top-down logic of states. In this sense, the commons have evolved into an alternative ‘paradigm’ to rethink the traditional private-public divide, and prioritize the ecological and human needs of communities over market and state. Following this broader normative interpretation, this book explores the democratic, institutional and legal issues linked to the commons for global governance today. Based first on the study of the commons as vehicles for democratization of global governance, then on the assessment of the role played by commons-based institutions in the current global governance system, and finally on a more normative interrogation around what international law ought to look like to recognize and support the commons, this book will provide its reader with solid foundations to look further into the introduction of ‘commoning’ practices into global governance.
Samuel Cogolati and Jan Wouters
Since the landmark book Governing the Commons by Nobel Prize winner Elinor Ostrom (1990), the commons represent an alternative governance model to share resources among communities beyond the logics of market and state. Yet, it is too often overlooked that millions of people, mostly living in developing countries, have in fact been depending on commons such as forests, pastures, grazing lands and fisheries to meet their basic needs for far longer. Because these commons are often left unrecognized, they face the threat of enclosure, which risks depriving small-scale farmers, pastoralists, forest-dwellers, artisanal fishers and indigenous peoples in the Global South from their most basic access to food, land, and other essential resources. In the face of this dramatic new wave of enclosure, legal scholars are called upon to rethink the prevailing private property narrative and the central role of the sovereign state in the Western legal culture. The main challenge, it seems, is to halt the seemingly inexorable process of transformation of commons into capital. For that purpose, all legal disciplines, from legal theory, (intellectual) property law to constitutional and administrative law, have contributed to the current debates on the commons. However, surprisingly, very little has been said about the role that international law can play in the empowerment of communities in the self-management of their resources and in the resistance against the dispossession of the commons – notably in the Global South. Whereas global commons like outer space or the high seas are subject to special treaty regimes between states and international legal principles such as the common heritage of mankind, it remains particularly unclear to what extent international law can require states to recognize the commons as a social institution and protect marginalized populations from enclosure and dispossession. This chapter asks the question as to whether international law can be part of the solution in saving the commons from enclosure. It first shows that even though the Ostromian model originates from the development policy field, the institution of the commons is still far from being fully recognized by the World Bank – the world’s foremost development institution. Then it explores the potentially instrumental role of international and regional human rights instruments in closing the gap of international legal protection for the institution of the commons. This chapter concludes that community rights are emerging under international law to recognize the alternative autonomous management and governance system of the commons.