'From Eroding to Enabling the Commons: The Dual Movement in International Law
(2018) The Commons and a New Global Governance — ISBN: [978-1-78811-850-7], p. 231-265, published
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- This paper first recalls that the primitive phase of international law is deeply entangled with that of the commons as a way of governing resources and of organising community life: in the work of Vitoria and, later, of Grotius, the founders of the discipline, 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 of 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. Section II of the paper argues that the idea of development, in its contemporary versions, remains heavily indebted to this view of 'progress'. In this perspective, the process of individualization (or "de-communisation") 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. Section III argues, however, that doubts have emerged concerned 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. Section IV 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. Section V 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 hand, 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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De Schutter, O. (2018). ’From Eroding to Enabling the Commons: The Dual Movement in International Law. In Samuel Cogolati & Jan Wouters (eds) (ed.), The Commons and a New Global Governance (p. p. 231-265). Edward Elgar Publishing. https://hdl.handle.net/2078.5/224338