Excerpted from David Bollier:
“The “right to the city” asserted by commoners is essentially a human right – a moral and political claim of access to resources that are essential to life, and to a right to participate in their use and management. So it is worth situating this entire struggle in the context of human rights law and social movements. The goals of commoning and human rights law have, in fact, a very long, entangled history. They go back at least 800 years, when King John adopted the Magna Carta and its lesser-known companion document, the Charter of the Forest, as a way to settle a bitter civil war. The Charter of the Forest (later incorporated into the Magna Carta) recognizes the claims of commoners to the common wealth that belongs to them as human beings, and who depend upon certain resources for their everyday subsistence.
For example, the Magna Carta formally recognized in writing the right of commoners to access and use forests that the King had previously claimed as his alone. It helps to remember that commoners in the thirteenth century relied on forests for nearly everything – wood to cook their food and build their houses, wild game to eat, plants to feed their cattle, acorns to fatten their pigs. The problem is that their long-standing customary use of the forest and other common resources was not legally recognized – and so the King and his lords could (and did) arbitrarily ignore the moral and human rights of commoners. The was a frank acknowledgment that commoners indeed have human rights – the right to use the forest, the right to self-organize their own governance rules, and civil liberties and rights to protect them from the sovereign’s arbitrary abuses of power.
There are other strands in this legal history of human rights and commons that are too involved to discuss here; my co-author Burns H. Weston, an international human rights and law scholar, and I explore them more fully in our book Green Governance. Suffice it to say that it is entirely consistent with human rights law for it to squarely embrace the right of universal access to clean air, water, food and other resources and ecosystems that are essential to life.
The problem is that human rights champions have historically sought to fulfill these rights within the prevailing system of law and commerce, i.e., the neoliberal state and markets. But given its commitments to individual property rights, “free markets” and economic growth, it should not be surprising that the actual vindication of human rights is a problematic affair. The idea of human rights has been aspirational, frequently stymied by hostile structures of the state, law and commerce. Surely it is an apt moment to consider how various types of common-based governance (as described above) could actualize human rights in more robust, stable ways.
To try to advance human rights law in such directions, Weston and I in 2013 proposed a Universal Covenant Affirming a Human Right to Commons – and Rights-based Governance of Earth’s Natural Wealth and Resources. It is our attempt to win recognition for the human right to “green governance” – to manage resources as commons, and thus to actualize human rights more reliably than existing systems of national and international law now do. A related effort should be the “reinvention of law for the commons,” a topic that I addressed in a 2015 research memorandum.
The paper calls for a new field of inquiry and legal innovation — Commons-Based Law – to consolidate the disparate areas of law that are trying to protect collective resources and practices from enclosures while providing affirmative legal support for people to enter into commoning.”