Dutch legal scholar Femke Wijdekop of the Institute for Environmental Security has tackled an urgent question for anyone concerned with planetary environment.  She writes:

How can we construct a right to a healthy and clean environment that is enforceable in today’s complex international legal order? What legal construct would be visionary and ambitious enough to meet the urgent need for environmental justice and protection and at the same time be enforceable in court rather than fall into the category of ‘soft law’?

Femke Wijdekop

Wijdekop answers these questions in an essay, “A Human Right to Commons- and Rights-based Ecological Governance:  the key to a healthy and clean environment?” The legal analysis was published by the Earth Law Alliance, a group of lawyers organized by British lawyer Lisa Mead who advocate an eco-centric approach to law.

Wijdekop’s piece draws upon some of the ideas in my book with Burns Weston, Green Governance in arguing for “procedural environmental rights to establish, maintain, participate in, be informed about and seek redress for ecological commons.”  She has presented these ideas to international lawyers and constitutional scholars in The Hague, and is now reaching out to environmentally minded lawyers.

Here is the case for the commons as a new system of governance to protect the environment:

[The commons is] a dynamic governance system that leverages cooperation, bottom-up energies and local knowledge in service to the preservation and sustainable allocation of Earth’s natural resources. The distributed, flexible system of commons governance can more closely track the dynamic, complex realities of natural ecosystems than top-down bureaucratic systems typically do. Top down systems are more rigid and unable to adapt to the evolving circumstances of an ecosystem. They also tend to marginalize or override local knowledge and participation and bolder the interests of political elites who dominate the governance process. Commons governance on the contrary uses the creativity, energy and knowledge of the locals, channeling them into a supportive structure for synergy and innovation.

Wijdekop agrees that a procedural right to common – to access to the resources vital to one’s survival through a working commons – would offer an attractive alternative to the performance failures of nation-states and international treaty organizations.  She concludes that varieties of commons “would be rooted in a well-established social practice that is currently going through a resurgence all over the world. It has a rich legal tradition dating back to Roman times, yet is visionary and futuristic enough to accommodate emerging environmental harms and the legal responses needed to counter those harms. It would not only protect living commoners, but future generations and the rights of Earth herself as well. Because of its flexible and organic nature, the right to commons-and rights-based ecological governance could be tailor-cut to work for local commons and global commons such as the sky, the oceans or the atmosphere alike.”

Needless to say, I’m thrilled to Wijdekop has taken up the commons as a way to assert an “an ‘expansive’ human right to the environment that is resilient and enforceable.”