The Commons, Future Generations and Elinor Ostrom

By Carolyn Raffensperger Congratulations to Elinor Ostrom for winning the much-deserved Nobel prize for economics. She won the prize for her work on the economics of “common pool resources”, which are defined as “natural resources that are difficult to divide up or to fence in and where what one user of the resource does can affect what is available to another user.”

The principles that she said were essential for managing these are:

1. Clearly defined boundaries 2. Congruence between appropriation and provision rules and local conditions 3. Collective-choice arrangements allowing for the participation of most of the appropriators in the decision making process 4. Effective monitoring by monitors who are part of or accountable to the appropriators 5. Graduated sanctions for appropriators who do not respect community rules 6. Conflict-resolution mechanisms which are cheap and easy of access 7. Minimal recognition of rights to organize (e.g., by the government) 8. In case of larger CPRs: Organisation in the form of multiple layers of nested enterprises, with small, local CPRs at their bases.

But the principles emerge under certain social conditions. If the participants using common pool resources develop trust and the capacity to communicate with each other, they are more likely to be able to do the monitoring, sanction violations of community rules and resolve conflicts. Another crucial dimension is that they must expect to share a common future with their fellow commoners. Over the past several years several people, including me, wondered if there were legal principles that paralleled Ostrom’s common pool resource design principles: how could this generation fulfill its responsibility to pass on the commons to future generations? The pressing issue of climate wierding is leading to rapid innovation on the law of future generations because its evident that the actions of this generation will impact future generations.

As part of the Climate Legacy Initiative at Vermont Law School  an investigation into the rights of future generations vis a vis climate change, I coauthored a recommendation on the law of the commons and future generations.

Here are the ten tenets of the commons that I believe help fulfill Ostrom’s criteria that the future must matter if we are to manage the common pool resource of the sky for the health of the planet and all future beings.

Ten Tenets of the Law of the Commons

1. A life-sustaining, community-nourishing, and dignity-enhancing ecological commons is a fundamental right of present and future generations.

2. It is the duty of each generation to pass the commons on to future generations unimpaired by any degradation or depletion that compromises the ability of future generations to secure their rights and needs.

3. The services and infrastructure of the Earth necessary for humans and other living beings to be fully biological and communal creatures shall reside within the domain of the commons.

4. All commoners (the public or a defined community) have rights of access to, and use of, the ecological commons without discrimination.

5. Publicly owned commons belong not to the state but to the commoners (the public or a defined community), both present and future, who are entitled to the benefits of their commons.

6. It is the responsibility of government to serve as trustee of the commonwealth and the common health for present and future generations. In fulfillment of this responsibility, governments may create new institutions and mechanisms. All actions taken by government or its designees must be transparent and accountable to commoners.

7. The precautionary principle is an essential tool for protecting the commons for present and future generations.

8. Eminent domain (the “taking” of private property for a public use and subject to payment of just compensation) is the principal legal process for moving private property into the commons and increasing the commons.

9. The market, commerce, and private property owners shall not externalize damage or costs onto the commons. If the commons are damaged, the polluter, not the commoners, pays.

10. Future generations shall not inherit a financial debt without a corresponding commons asset.

For additional materials on the law of future generations see two reports we did with Harvard Law School's International Center for Human Rights at

http://www.law.harvard.edu/programs/hrp/newsid=43.html http://www.law.harvard.edu/programs/hrp/newsid=51.html