The issue of open access to scientific research has become a prominent policy topic over the last decade in Europe, in the United States and in many Western and non-Western countries. Although countries attempt to address the issue within their national boundaries, it is increasingly clear that scientific publishing is a global industry and regulating it within national borders can have, at most, only a limited success. We can observe increasing international coordination emerging in the field. The strive for open access has become a ‘typical’ global governance challenge with hundreds of actors involved, different entangled narratives and norms, and various policy solutions competing for attention. The terms ‘public good’ and ‘commons’ come up often in the discussions on knowledge and research, sometimes in a neutral sense, and often as a normative statement to justify a desired course of action. The phrasing matters, though, as it determines not only the definition of the problem but also the menu of possible solutions. While the ‘public good’ angle tends to focus on the right balance between sharing knowledge and protecting it via intellectual property rights, a framework of ‘commons’ inspires to seek out an alternative, more inclusive and community-based governance system for academic knowledge. The aim of this chapter is twofold. It will examine the use of the concepts ‘public good’ and the ‘commons’ in addressing the issue of restricted access to knowledge. Secondly, it will analyse the challenge for open access as a collective action dilemma on the global arena, and it will evaluate the potential for replacing the current market-based structure of academic publishing with a self-governing system organized by a global (academic) community, as increasingly proposed within academia.
This chapter reflects upon a paradigm shift in international legal theory from the materialistic and extractive mentality of the Industrial Age to a new vision of the world as governed by a network of generative ecological principles. The title of this chapter is inspired by the book written with Fritjof Capra, The Ecology of Law: Towards a System in Tune with Nature and Community (2015). This chapter advances a quite provocative thesis that locates itself in a line of analysis aimed at the radical critique of some of the fundamental assumptions of the modern conception of the rule of law. It aims to think about international law in a more holistic and ecological perspective than what is common in the dominant Anglo-American professional legal setting. It will attempt to answer the question as to whether international law can be ‘ecological’ – that is, in tune with both nature and community. The hypothesis is that it cannot. Instead, international law might be its own greatest problem, promoting a silent ethos of exploitation of the ‘other’ by reducing empathy and facilitating extraction; this is called the ‘evil technology hypothesis’. The benefit of looking at international law in this way lies in the whole new horizon of questions it opens up, specifically about the scales of our economic system, of our civilization, and of our fundamental dependency on a model of extraction transforming the commons into capital.
Olivier De Schutter
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.
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.
International environmental law provides especially good terrain for assessing to what extent the law has evolved from a bilateral, consent-based legal system to one that reflects a multilateral approach to the collective protection of global commons. Questions about common goods, and hence obligations designed to further their protection, are at the heart of the field. Indeed, environmental global commons, such as the high seas, fisheries, the atmosphere or the global climate, also relate to ‘classical’ commons issues pertaining to tangible natural resources. However, to get at the attendant legal and conceptual issues, it is necessary to look beyond the global commons themselves and to the legal interests around the protection of which international law has grown. Since no state can lay a claim to the global commons as such, the key question is who owes legal obligations to protect the global commons, to whom, and under what circumstances states have a legal interest in global commons protection, or can invoke a collective legal interest. It is worth asking, then, whether contemporary international environmental law now also looks beyond individual state interests and embraces the global concerns of humanity as a whole. This chapter focuses on the procedural dimensions of international environmental law’s evolution towards the protection of collective or community interests and, by extension, its capacity to protect global commons. It begins by exploring the close conceptual and practical connections between procedural and substantive obligations in international environmental law, focusing on efforts to flesh out the standard of due diligence that is at the core of the harm prevention obligation in customary law. Against the backdrop of this assessment, the significance of treaty-based efforts to address community interests in the protection of global commons can be appreciated. Under the auspices of multilateral environmental agreements (MEAs), international practice has been able to transcend the gaps and constraints of the customary law framework. This chapter suggests that, both under general international law and in the context of treaty-based regimes, the procedural dimensions of international environmental law hold the key to its ability to serve community interests in the protection of the global commons.
The conclusion to this book argues that the political principle underlying the commons resonates with the emerging global governance and offers an innovative political model to reform and regulate international interactions. For commons are intrinsically associated with a polycentric logic of governance, involving all stakeholders in the definition of the practices to be adopted to manage them sustainably. To substantiate this claim, this conclusion proceeds in three steps. It first emphasizes that the commons should not be associated narrowly with a certain type of goods but rather deserve to be treated as a ground-breaking model of governance. It then highlights that the type of governance provided by the principle of the common bears some striking similarities with the concept of global governance as it was introduced in the academic and political debate in the 1990s. Finally, to stress the originality and the added-value of the commons, it contrasts them with another contemporary model of governance advocated on the international stage, that is the model of global public goods. This conclusion shows that the latter reiterate a (slightly amended) logic of government on a different scale, including the recourse to a centralized authoritative power, whereas commons provide opportunities for a decentralized and proto-democratic global governance to arise.