Chapter 11 From eroding to enabling the commons: the dual movement in international law
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The history of international law is deeply entangled with that of the commons as a way of governing resources and of organizing community life. The inaugural moment of the discipline was in the successive attempts by Francisco de Vitoria and Hugo Grotius to recruit natural law to justify Spain’s conquest of the ‘New World’ and, later, the expansion of the Dutch East India Company and the West India Company. The idea that the territories to be ‘civilized’ and converted to Christianism were functioning as a ‘commons’, in which land was neither subject to property rights nor controlled by a political sovereign deserving to be called a ‘state’ (since the control over a territory was seen as a defining characteristic of state sovereignty) was central to this project. During this primitive phase, the notion of ‘commons’ and the theory of property rights were used instrumentally, either to justify the occupation of land or the travel along routes that were considered to belong to no one in particular (and not to be subject to sovereign control), or to support the idea that the non-Western peoples were less civilized (since property rights were a mark of the more advanced societies) and that colonization thus held the promise of ‘development’ and should be seen as benefiting them. This chapter illustrates that the idea of development, in its contemporary versions, remains heavily indebted to this view of ‘progress’. In this perspective, the process of individualization is an indicator that a polity is arriving at maturity; and the process of privatization – the gradual erosion of common-property regimes – is equated with modernity and with the promise of greater economic efficiency. This chapter argues, however, that doubts have emerged concerning both the inevitability of this movement, and its desirability: starting in the late 2000s, a counter-movement has emerged, in search of an alternative. The rolling out of titling schemes, understood as certification of property rights leading to the commodification of land, was the main battlefield on which these two tendencies clashed. This chapter then assesses the contribution to the most recent developments of international human rights law to protecting the commons, and enabling common-property regimes to resist the general trend towards commodification. It argues that this counter-movement in international law shall be successful if it can strike the right balance between recognizing such regimes and enabling them to function, on the one hand, and on the other, providing them with the ‘constitutional framework’ – the ground rules – required to ensure that they shall be both legitimate and equipped to sustainably use the resources on which the community depends.

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