Chapter 12 International law to save the commons
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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.

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