How legal personhood can protect ecosystems from international law
Current international law is hostile to models of communal governance.
Lawyers often turn to international law to protect the global commons, but what if international law is itself part of the problem? Although international law has been harmful to many small-scale commons and natural ecosystems, the concept of environmental legal personhood may be able to provide a protective shield.
Commons do not exist thanks to the law but rather despite it.
Legal invisibility
Praise for communal forest management is on the rise. Data from forests in Mexico and Nepal demonstrate community forest management’s many benefits, from forest enlargements to more biodiversity and fewer wildfires. The Nobel Prize that political scientist Elinor Ostrom won for her research on commons has also contributed to renewed attention on communal governance structures. Community-led forest management is an alternative to publicly governed national parks or protected areas. And it is an alternative that is bearing fruit.As most legal systems are built on a divide between public and private domains, there is no legal concept that corresponds to forests, rivers, pastures, and other resources governed and shared by a community. Commons do not exist thanks to the law but rather despite it. Such initiatives of community governance are distinct from private or public structures and instead enable community members with stakes in the long-term health of the ecosystem to manage it.
While commons are sustainable forms of governance, their legal invisibility seriously hinders their operation, prompting scholars to ask for a legal framework to protect them. Olivier De Schutter, the UN special rapporteur on extreme poverty and human rights, for example, has called for a “constitutional framework” for commons. Legal personhood for ecosystems can function as such a framework.
The real tragedy of the commons
To determine how to save the commons, it is essential to understand why they are under threat in the first place. Commons were, in fact, quite common for a very long time, but an increasing emphasis on private and public property has more recently suppressed them.
During the second half of the twentieth century, Garrett Hardin’s explanation for the steady disappearance of commons was widely accepted. He blamed depletion by overuse and the internal functioning of commons themselves for their decline. Hardin’s “tragedy” has been criticized, however, for portraying commons as openly accessible goods. Research indicates that commons were historically managed by specific communities that carefully controlled access. Often, depletion was not an issue at all.
In reality, external enclosure caused the disappearance of small-scale commons. As private ownership and state sovereignty developed into dominant legal concepts, private estates and public lands swallowed commons.
The role of international law
The enclosure of small-scale commons began around the same time as “modern” international law’s institutionalization around the world. Samuel Cogolati has demonstrated that this is not an innocent coincidence. Rather, the global spread of international law carried in its wake three ideas that diametrically oppose the underlying logic of commons.International law was built on assumptions of inexhaustibility, top-down state governance, and an underlying logic of extraction. While commons center the communal, sustainability-focused management of a depletable resource, international law promotes private and public ownership. As such, international law denies legal recognition to institutions that do not fit the mold of either state sovereignty or private property.
While commons are sustainable forms of governance, their legal invisibility seriously hinders their operation, prompting scholars to ask for a legal framework to protect them…Legal personhood for ecosystems can function as such a framework.
Concepts of territorial integrity and uti possidetis further consolidate the legacy of early international law. Territorial integrity protects states against interference from other states and restricts the right to self-determination of Indigenous peoples who live within state borders. Uti possidetis ensures the preservation of colonial borderlines as international state boundaries, hindering possible returns to communal governance.
While growing legal recognition of different land tenure systems now provides some protection for communally managed land, the language of nature’s legal personhood would more forcefully and clearly carve out legal space for commons.
The concept of nature
At its conception, modern international law did not regard natural ecosystems as anything other than collections of extractable resources. Recent actions spurred by international environmental law to conceptualize nature as the object of stewardship have challenged that idea. Initiatives such as International Mother Earth Day, for example, mark that evolution.
Nevertheless, the international legal order’s principles of inexhaustibility, top-down state governance, and extraction have not been fundamentally challenged. The growing understanding that humans are part of the natural world and depend on a healthy planet has not meaningfully impacted the basic structure of international law. The legal status quo still relies on a division between humanity and the natural world and humanity’s supremacy over its environment.
Legal personhood as the constitutional framework
So, how can commons persist in the face of current international law? Legal personhood for ecosystems can provide powerful legal instruments. This is a legal structure that endows specific ecosystems with traditional rights and liabilities and is frequently part of a change in governance structure. Here, the new institution charged with the management of the ecosystem is often asked to prioritize its health and well-being. This is an approach that allows for proactive decision-making.
The legal personhood of the natural world focuses attention on the health and well-being of ecosystems. It starts from an awareness of nature’s exhaustibility and breaks with international law’s standard assumption of inexhaustibility and the logic of extraction. In this respect, legal personhood for ecosystems can be a more valuable tool than the recognition of tenure rights to protect and sustain commons. It also challenges top-down state governance by appointing specific guardians within a new governance model.
In all these ways, the legal personhood model creates a protected space in which values other than those now prevailing within international law can flourish. Crucially, legal personhood helps make commons legally visible.
A way forward
Both the economic concept of “commons” and the legal concept of “personhood for ecosystems” think beyond private and public ownership. They challenge the dichotomy between the state and the market and propose a different framework. It is worthwhile to discover in practice what these concepts could mean for each other, for international law, and, most importantly, for ecosystems themselves.
