(Note: This article, the first of a two-parts, first appeared on CSRwire.)
With the climate talks in Durban seemingly headed for a train wreck, an innovative project is developing a new legal international framework for protecting the planetary ecosystem that could just be the most important legal initiative of our age.
The climate talks had not even started in Durban when their epitaph was already being written. It was revealed in a number of reports that at the two previous talks in 2009 and 2010, the big industrial nations of Europe and the US had bullied smaller nations into accepting no action on the climate and that the rich nations, including the UK, EU, Japan, US and the UN have already decided to quash any agreement until 2020 – at which time, no doubt it will be conveniently put off again.
It won’t matter by then because it will be, in the memorable words of Dr. James Hansen, “game over for the planet.” The narrow window we might just possibly still have to avert civilization-destroying climate change will close by 2015. To squeak through that window, we will have to begin ratcheting down our absolute emissions by then – in other words, reverse the direction we are currently on, which saw a 6% rise in emissions in 2010, despite the global economic downturn.
Some eternal optimists are putting their (desperate) hopes in voluntary agreements to rein in emissions. But I’ve got some beachfront property in Florida to sell them. Voluntary agreements won’t work for the same reasons we can’t get formal agreements on the climate: the world’s governments are captive to Capitalism-Run-Amuck (otherwise known as neo-liberal capitalism because of its refusal to be regulated).
Such a system cannot protect the atmosphere nor any of the other vital systems on which human life depends: the oceans, forests and ability of the land to nurture and sustain us without being poisoned. In short, the ecological commons. That is the true Tragedy of the Commons: it is subject to a system that literally cannot see it, except as something to be enclosed for private exploitation and gain.
Let me say up front that the problem is not with markets, per se. The problem is privileging the so-called “free” market over everything else – markets that are free only in the sense that they give free rein to the most powerful (the 1%), but are rigged against everyone else. (How “free” is it, for example, that the Medicare prescription drug plan forbids the Federal government from negotiating prices with Big Pharma?) The fix is in because there are few national governments – or even prominent international bodies, like the UN – that are not captive to corporate interests, making the term “capitalist democracy” an oxymoron.
Many of the poorer nations – who are likely to be the most hammered the soonest by climate change – are getting angry and organized. Some are planning to “Occupy COP 17” in response to a call by the former president of Costa Rica for “all vulnerable countries to ‘occupy’ Durban.” José María Figueres went on to say, “We need an expression of solidarity by the delegations of those countries that are most affected by climate change, who go from one meeting to the next without getting responses on the issues that need to be dealt with.”
Refusing to leave the talks until “substantial progress is made,” as the countries are threatening, may not accomplish what is needed, at least not right away. But, like the Occupy encampments all over the world, many of which are getting dismantled, success at this point lies in changing the frame of discussion. People aren’t sleeping in Zucotti Park anymore, but their message – “human need not corporate greed” – is being heard loud and clear all over the world.
One of the working groups at the New York City General Assembly (the organizing/governing body of Occupy Wall Street) is the “Campaign For The Commons.” If you click on the Working Group’s “Documents” tab, you will find the transcript of a talk by David Bollier about the concept of the Commons.
Protecting our ecological commons may be the single most important arena to serve “human need, not corporate greed.” It is an issue Bollier has been devoting most of his time to over the past several years (he wrote about it for CSRwire in 2010)—specifically, on developing an international legal framework to safeguard the ecological commons for present and future generations. He is joined in this work by Dr. Burns H. Weston, law professor emeritus at the University of Iowa and scholar at the UI Center for Human Rights.
Bollier and Weston’s Commons Law Project could just be the most important legal initiative of our Anthropocene age. Right now, they are working on the final version of a paper, “Regenerating the Human Right To A Clean And Healthy Environment In The Commons Renaissance,” which they expect to release publicly in time for The UN Conference on Sustainable Development (Rio+20) in June. Bollier was kind enough to send me a draft copy – and it gave me hope, because it provided a kind of road map from the gridlocked mess we are in right now to a more sustainable future.
The initial question Bollier and Weston set out to answer is, “Is there already a legal basis for protecting the ecological commons?” The answer they give is “yes” and “no.” First, the yes.
Bollier and Weston say the best place to ground “effective and just” jurisprudence to protect the ecological commons is in human rights law:
From a legal perspective, we believe that effective and just environmental protection is best secured via the rigorous application of a reconceptualized human right to environment. This right must both facilitate and function within a new paradigm of ecological governance that could help build a clean and healthy environment while meeting everyone’s essential needs.
A reconceptualized human right to the environment could interpret already existing frameworks, like the UN Declaration on Human Rights from an environmental angle. For example, a human right to the environment could be derived from Articles #3 (the right to “life, liberty and security of person”) and #25 (“Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family”).
Or a human right to the environment could exist autonomously. The website Right To Environment informs the visitor: “At this time there are several regional human rights charters (African Charter and American Convention), other conventions like the Aarhus Convention, and multiple national constitutions that contain an explicit pronunciation of a human right to (a clean and healthy) environment. And late 2007, the UN General Assembly adopted the UN Declaration on the Rights of Indigenous Peoples, which in article 29 proclaims ‘Indigenous peoples have the right to the conservation and protection of the environment…’”
But these rights are not robust, “limited in their legal recognition and jurisdictional reach,” Bollier and Weston write. Expanding their reach and power will take a cultural change that privileges the environment over other considerations. That cultural change is already happening, with the rise of efforts for living local economies, fair trade, anti-globalization efforts, among others. But it hasn’t reached critical mass. (The explosive birth and growth of the Occupy Movement – living and promoting radical democracy and values of caring for all – may be the first inkling of approaching critical mass.)
In my next post, I will explore how Bollier and Weston envision the coming together of this new human rights framework on the environment with increasing international awareness of the Commons – and how markets can take their rightful place to play a positive role within the Earth Community.
(Francesca Rheannon is CSRwire’s Talkback managing editor. An award-winning journalist, Francesca is co-founder of Sea Change Media and produces the Sea Change Radio’s series, Back to The Future. She co-produces the Interfaith Center of Corporate Responsibility’s podcast, The Arc of Change and hosts the nationally syndicated radio show, Writer’s Voice with Francesca Rheannon.)