A brief history of the theory of the commons

The concept of Commons is not very well defined and has grown fuzzier with globalization and the complexification of wider resource governing systems (Berge and van Laerhoven, 2011).

The purpose here is not to be exhaustive on the prolific literature on the commons and on the so many definitions and strings of the commons theory, but rather to highlight some key phases in the recent history of the theory. After briefly explaining the revival of the concept of commons following Hardin’s publication in the 1960s, the important contribution of Ostrom will be sum­marized and complemented with recent developments, what I call the ‘new vogue’ of commons’ scholars.

Hardin's ‘tragedy of the commons'

In 1968, Garrett Hardin published an over-exploited allegory named the ‘Tragedy of the Commons’, where he analysed problems related to the over­exploitation of finite resources under unlimited and free access conditions to

all, in the context of an ever-growing world population. He took the example of grazing and posed the precondition that rational people would always try to get the maximum and immediate profit from their individual use of what he calls a ‘common resource’ (Hardin confuses common goods with good in open access),⁵ and therefore lead to overgrazing and the destruction of the common pasture. Hardin states that

[e]ach man is locked into a system that compels him to increase his herd without limit - in a world that is limited. Ruin is the destination toward which all men rush, each pursuing his own best interest in a society that believes in the freedom of the commons. Freedom of the commons brings the ruin to all.

(Hardin, 1968: 1244)

This view is supported by Mancur Olson (1965: 2) in his work on the logic of collective action, who states that ‘unless the number of individuals is quite small, or unless there is coercion or some other special device to make individuals act in their common interest, rational, self-interested individuals will not act to achieve their common or group interest’ (emphasis in original text). Although Olson was much more cautious than Hardin in the proposed solution to the ‘tragedy’, leaving the question of common management open, he suggests that common goods - i.e. goods that are not under exclusive property rights according to him - are due to be over-consumed, for men are unable to rationally exploit such common resource.

Hardin proposed three options to mitigate his tragedy: reducing world popu­lation to avoid overconsumption (which, as a Malthusian, is the solution he is strongly pleading for in his article, see Locher, 2013, 2016); or establishing an external institution to regulate the use of the resource, whether through public management (state) or through the market (i.e.

While Hardin’s work has received significant diffusion (his paper has been cited almost 30,000 times according to Google Scholar), his work is now viewed quite differently by many academics from different disciplines. Criticism has bloomed on different aspects of Hardin’s tale, notably on his ‘explanation for the need to enclose the commons [which] confounded the resource with its governance regime’ (Berge and van Laerhoven, 2011: 161), or on the fact that Hardin mixed up open access with community management, as well as common property rights with absence of property rights (Ciriacy-Wantrup and Bishop, 1975; Bollier, 2007; Bollier and Helfrich, 2014).

Figure 6.1 Quadrant of the economic classification of goods

To understand this, one need to go back to the economic classification of goods (see Figure 6.1), according to which goods are subject to two characteristics - rivalry and excludability - as shown in the following quadrant. Under this definition, common-pool resources are goods that are rival but hardly excludable, such as the grass in the grazing ‘commons’.

In his article, Hardin confounded the good (public good versus CPR), the property rights attached to the good (private, public or collective rights) and its governing regime (open access versus commons) (see the definitions of these terms in Cornu et al., 2017).

In addition, Hardin considers human being as objectively rational people, i.e. excluding the influence of other values and ethical aspects in community behav­iours. Hence, according to Sen, who worked on welfare economics, people’s values and commitments influence economic policies in terms of their effects on the well-being of the community (Sen, 2003: 15, 40; see also Sen, 1981). Other criticism can be formulated against Hardin’s views, including the fact that in real life, people communicate and are rarely put in a situation where a common resource is used by different person who do not talk to each other and discuss how to manage the resource commonly (Ostrom, 1990: 7).

Ostrom's institutional analysis of common-pool resources

In response to the presumed supremacy of property rights (whether by the state or the market) as being the optimal system to manage resources, Elinor Ostrom spent her career studying the collective management of common resources (Blomquist and Ostrom, 1985; Ostrom, 1987, 1990, 2005,2007, 2010a; Schlager and Ostrom, 1992; Ostrom et al., 1999; Hess and Ostrom, 2003, 2006; Poteete et al., 2010; Vollan and Ostrom, 2010).⁷ To get a deeper comprehension of the conditions for sustainable resource use and governance regimes, she analysed Common-Pool Resource (CPR) institutional arrangements based on extensive field studies. In her famous book Governing the Commons Ostrom conducted wide meta-analysis of existing common-pool resources case studies mainly in agricultural production systems, e.g. irrigation, forestry, fishery management systems, etc. Building on the dominant liberal system and from the usual eco­nomic classification of goods (based on the notions of rivalry and excludability), in her understanding a commons is any natural or man-made resource that is or could be held and used in common.

1 Clearly defined boundaries (i.e. effective exclusion of external unentitled parties);

2 Congruence between appropriation and provision rules and local conditions;

3 Collective-choice arrangements (i.e. allow most resource appropriators to participate in and modify the operational rules);

4 Effective monitoring (by monitors who are part of or accountable to the appropriators);

5 Graduated sanctions (scale of sanctions for appropriators violating com­munity rules);

6 Conflict-resolution mechanisms (cheap and of easy access);

7 Minimal recognition of rights to organize (the self-determination of the community is recognized by higher-level/governmental authorities);

Plus, for CPRs that are parts of larger systems

8 Nested enterprises (organization in the form of multiple layers of nested enterprises, with small local CPRs at the base level).

These design principles are very helpful (but not compulsory; see Ostrom and Delville, 2009: 8, 13). Actually, Ostrom leaves much space for hetero­geneity and diversity in systems and places, insisting on the fact that the institutional arrangement should always be adapted to local needs and con­ditions in order to be efficient (which implies that other design principles may be better adapted to different situations) (Ostrom, 2009; also see Cox et al., 2010).

Following her seminal book, Ostrom refined her approach further by defin­ing the term common property resource in a paper written with her colleague Schlager, in which they integrated a ‘bundle of rights’ approach.⁸ Schlager and Ostrom (1992: 259) propose a scale of property rights, in which authorized users, claimants, proprietor and owners exercise different types of de jure or de facto rights (right to access and withdraw; right to manage; right to exclude and right

Inspiring an effective Plant Treaty 173 to alienate a resource).

[operational activities are constrained and made predictable by operational- level rules regardless of the source of these rules. By the term “rules” we refer to generally agreed upon and enforced prescriptions that require, forbid, or permit specific actions for more than a single individual. [...] Operational rules are changed by collective-choice actions. Such actions are undertaken within a set of collective-choice rules that specify who may participate in changing operational rules and the level of agreement required for their change. In regard to common-pool resources, the most relevant operational-level property rights are “access” and “withdrawal” rights and the collective-choice property rights include management, exclusion, and alienation.

(Schlager and Ostrom, 1992: 250-251)

This distinction is crucial, as it expresses the ‘difference between exercising a right and participating in the definition of future rights to be exercised’ (ibid). Hence, according to Schlager and Ostrom (1992: 259), ‘[a]ssigning full owner­ship rights does not guarantee an avoidance of resource degradation and overin­vestment’ (see also Larson and Bromley, 1990; Clark, 1973, 1974; Ginkel, 1989). What is essential is the institutionalizing process between users of a common resource to manage collectively and sustainably their commons. In concluding their publication, Schlager and Ostrom (1992: 260) call for further research to be conducted in order to understand the functioning of various efficient property rights regimes and address the following three issues: 1) the conditions to enhance or detract from the emergence of more efficient property rights regimes; 2) the stability or instability of these systems when challenged by vari­ous exogenous or endogenous changes; and 3) the costs of enforcing regulations that are not agreed upon by those involved.

Many academics have followed Ostrom’s path since then. The International Association for the Study of the Commons was created,⁹ along with the Interna­tional Journal of the Commons,¹⁰ thereby contributing to the dissemination of Ostrom’s innovative and interdisciplinary thinking. The commons’ research has spread outside the thematic scope of physical agricultural resources, as an answer to what Boyle (2003b) has identified as the ‘second enclosure movement’. Works in other fields have developed such as the study of complex socio-ecological systems (Berkes et al., 2008), the internet and knowledge in general (Hess and Ostrom, 2003, 2007), microbial commons (Hess and Ostrom, 2006; Dawyndt et al., 2006; Dedeurwaerdere, 2006, 2010; Dedeurwaerdere et al. 2009), the science commons (Cook-Deegan, 2006; Dedeurwaerdere, 2008), global envi­ronmental commons (Brousseau et al., 2012), micro-psychological foundations for governance regimes (Kahneman and Tversky, 2000; Gintis et al., 2005), the role of trust in communications between members of the governing community

(Six et al., 2015) in particular in a computer-mediated forms of communication set­ting (Kiesler et al., 1984; Bente et al., 2008), etc. (the list here could be much longer).

After 2008: the ‘new vogue' of the commons theory

Since Ostrom, and in particular since the global financial crisis of 2007-2008 (Quinn, 2009; Stiglitz, 2010),¹¹ the theory of the commons has bloomed into prolific theoretical and practical developments, as a response to major difficulties in managing sustainably our societies and ecosystems.

Regarding the theoretical moves, scholars from various disciplines have built on Ostrom’s vision to provide answers to current societal challenges in many dif­ferent fields: economics (Coriat, 2013, 2015), law (Capra and Mattei, 2015; Mat­tei, 2011a, 2011b; Lucarelli, 2011a, 2011b, 2013; Dani, 2014), socio-philosophy (Dardot and Laval, 2014; Gutwirth and Stengers, 2016). They respond to specific issues which Ostrom’s work has only partially covered. These scholars form what one may call a ‘New Vogue’¹² and go beyond Ostrom’s legacy by question­ing governing systems for specific resources/regimes which are conceived by some as being ‘essential resources’ for humanity (Pistor and De Schutter, 2015). Building on Ostrom’s solid conceptual basis, academics have pointed to several issues to be further developed or reconsidered, in particular following a ‘political constitution of the common as an alternative generalizable rationality’ (Dardot and Laval, 2014: 156, personal translation).

Going beyond Ostrom’s influence of the economic approach to the ‘good/resource’

Dardot and Laval pose the fact that, notwithstanding the crucial advancement and evolution of Ostrom’s thinking over several decades, Ostrom remains within the ambit of the public/private good economic theory (Ostrom and Ostrom, 1977: 12, table of goods). They see this as a limit to the further development of ‘a political constitution of the common’ as ‘alternative generalizable rationality’ (Dardot and Laval, 2014: 156-157). Indeed, for Ostrom, the institutionaliza­tion of governing systems remains based on pooled physical or informational resources, i.e. the characteristic of the resource explains why people get together to institutionalize its governance regime (Verhaegen, 2015: 116-117; Dardot and Laval, 2014: 157). It also works within the boundaries of the established concept of property over a resource (ibid: 137-148). According to Capra and Mattei (2015 : 12, 169-188), doing so may hinder the development of different types of institutional arrangements with a more ‘holistic view’, i.e. an ‘ecological understanding of life’ and a ‘new kind of systemic thinking’ towards reaching an ‘ecolegal revolution’ (ibid: 176). Prolonging Ostrom’s thought, Bollier, considers that a commons is not just about the resource that is governed. Commons are

paradigms that combine a distinct community with a set of social practices, values and norms that are used to manage a resource’; it is ‘a resource +

Inspiring an effective Plant Treaty 175 a community + a set of social protocols. The three are an integrated, interde­pendent whole.

(original emphasis, Bollier, 2014: 15)

A note is made regarding the fact that contrary to Dardot and Laval who see ‘le commun’ with a political/ideological perspective, Bollier (2014: 34) rather thinks of ‘commoning’ as a ‘vernacular movement’, that is to say ‘shared spaces of a community in which people assert their collective moral values and political interests, over and above, those of the state, the corporation and other institu­tional powers’. This understanding sheds the light not on the resource or the role of individuals forming the community in designing rules, but on the rela­tion, the interactions between ‘resources’ and people. As recognized by Hess and Ostrom (2007: 13) and developed by the literature on the knowledge commons (Madison et al., 2010), the focus now lays at the interface between resources and community ‘if we want to capture the full potentiality of the commons’ (Girard and Frison, 2018b: 8). Rival (2018: 153) points that other aspects characterizing communities should indeed be taken into account such as the ‘internal politics of attachment, membership, sharing, redistribution, obligation, gift, reciproc­ity’. Her reading of Gudeman’s anthropological investigation of property and access demonstrates that Ostrom’s model overemphasizes market ends and the achievement of efficiency (hence the focus on the ‘right to exclude’; see Girard and Frison, 2018b: 8). Going even further, Capra and Mattei challenge Ostrom’s thinking who addresses the problem with a ‘subject-object’ position (i.e. indi­viduals interact to govern an object/resource). They consider that it excludes other possible narratives where plants are not considered as objects/resources but as other living parts of ecosystems constituting the ‘web of life’ (Capra, 1996; Moore, 2015) and interacting in constant relationship with all other elements, i.e. the ‘object’ is in relation with the individual, at the same level and their rela­tionship results in a governing ecosystem (Capra and Mattei, 2015: 176-177). According to them, the law may serve as a ‘commoning instrument’ if its eco­logical dimension is recognized.

[A]n ecological vision of law does not reduce law to a professionalized, preex­isting, objective framework ‘out there’, separate from the behavior it regulates and tries to determine. Instead, law is always a process of‘commoning’, a long­term collective action in which communities, sharing a common purpose and culture, institutionalize their collective will to maintain order and stability in the pursuit of social reproduction. Thus the commons - an open network of relationships - rather than the individual, is the building block of the ecology of law and what we call an ‘ecolegal’ order. Such an ecolegal order is built on the recognition that human survival on this planet is not guaranteed by the destruction of life and by the domination of nature in search of growth. Rather, it seeks a quality of economic life aimed at nurturing our living planet and focusing on generative, complex patterns of relationships.

(Capra and Mattei, 2015: 14-15)

The role of power relations and of rationality by members of a community

For Dardot and Laval (2014: 156), another limit in Ostrom’s work lies in the limited study of the impact of power relations between users within a com­munity (also see Bechtold, 2015: 3-4; Weinstein, 2013: 7). When studying a CPR, Ostrom will focus her work on studying the rules governing the system and on how the rules emerge or change (Ostrom and Basurto, 2011). In her earlier work, Ostrom further assumes that individuals are ‘broadly rational’ (1990: 33). She later widens her understanding (1998: 1) by stating that ‘individuals achieve results that are “better than rational” by building condi­tions where reciprocity, reputation and trust can help to overcome the strong temptations of short-run self-interest’ (also see Ostrom, 2005: 101, 130-131; Ostrom, 2007). Nonetheless, Ostrom will not necessarily analyse whether and how, within the community, the rules have been equitably decided amongst members of the community. Dardot and Laval contend that she argues that social conditions will favour or inhibit the establishment of the rules, which is an important step outside of the dominant economic ‘rational’ thinking. However, they perceive (2014: 156) that more study could be focused on the power relations inside the community and the effects of a systemic domina­tion over behaviours of one individual or group of individual within the community (also see Weinstein, 2013: 31-32). Recent publications argue that Ostrom’s bundle of rights approach was recuperated by the ‘core of property’ school of thought (Girard, 2018). This might have reinforced the ‘sovereignty of the proprietor’, viewed by the neo-liberal Chicago School as the only way to reach economic efficiency (Ost et al., 2015; also see Orsi, 2013), thereby encapsulating the analysis of the relationships into an eco­nomic efficiency dynamic and partially abiding the intra-inequalities within a community. This point is confirmed by Agrawal (2001), who argues that better off group members are likely to gain a larger share of benefits from a resource. He later confirms (2002: 60) that ‘inequalities within a group are not necessarily reduced because group members are willing to cooperate in the accomplishment of a collective goal’.

This is an important point when addressing the objective of ‘fair and equitable’ sharing of the benefits deriving from the use of the resource (Tsioumani, 2018). If one takes the example of an Indian community managing the irrigation sys­tem of their village, it is not difficult to imagine that the voice of a member from the Brahmins’ cast could have more weight than the voices of the Dalit members that are part of that community. One could legitimately wonder whether the rules established by that community really answer the needs of all its members, including the Dalits. Ostrom remains attached to the idea that people are rational and that this rationality will lead the community to take decisions in its col­lective interest, without analysing deeply existing social, political or economic inequalities that the CPR system may reproduce, i.e. privileges, casts, etc. While ‘there are pragmatic advantages to rational choice-based approach approaches, they miss much individual and social behaviour’ (Singleton, 2017: 2; also see

Inspiring an effective Plant Treaty 177 Saunders, 2014; Peterson and Isenhour, 2014). However, this is an important question to dig, as it entails consequences on the members of the community, inter alia on the fair and equitable distribution of revenues, resources or other advantages resulting from the collective management system (Weinstein, 2013: 18-19; see also Baland and Platteau, 1997, 1998b). This is important when addressing the issue of imbalance of rights (IPRs vs. FRs) between different users of the ‘Treaty community’ and the question of stakeholders’ participation in the Treaty decision-making process.

Beyond the boundaries of the CPR: the question of scale and of internal vs. external environment

To fil a gap in her analysis, which focused mainly on the micro-institutional level (Verhaegen, 2015: 117), Ostrom was influenced by institutional theories of polycentricity, i.e. ‘the relationships among multiple authorities with overlap­ping jurisdictions’ (Andersson and Ostrom, 2008: 71; see also Ostrom, 2010b). In her later writings, she developed a framework to enable

scholars to organize analyses of how attributes of (i) a resource system (e.g., fishery, lake, grazing area), (ii) the resource units generated by that system (e.g., fish, water, fodder), (iii) the users of that system, and ( iv) the governance system jointly affect and are indirectly affected by interactions and resulting outcomes achieved at a particular time and place.

(Ostrom, 2007: 15181)

The framework aims at identifying ‘how these attributes may affect and be affected by larger socio-economic, political and ecological settings in which they are embedded, as well as smaller ones’ (ibid; also see Ostrom et al., 2007).

However, as she contends herself, the

framework presented [...] will obviously need further development. [...] Policy analysts need to study and record the unintended effects of particular policy interventions, so that dangerous combinations of policies devised at diverse tiers or attributable to particular aspects of a resource system and resource units can be avoided.

(Ostrom, 2007: 15186)

Weinstein (2013 : 19) points to the need to take into account the network of complementary institutions within which every commons’ system is inte­grated, through market and non-market relations of the commons and of the different individuals and groups which constitute it, with the rest of society (see also Coriat, 2013: 14; Coriat, 2015). This highlights the difficulty of studying a commons, which may be very diverse in scale and heterogeneous in its composition, in relation to the context (historical, social, political, etc.) in which it is embedded. A final interesting issue is raised by McCarthy (2005: 20) when he affirms that ‘[t]o assert a commons at one scale is almost

necessarily to deny claims at another’, thereby exacerbating the tension that might exist between coexisting systems and communities managing a same resource-type (i.e. the sum of heterogeneous collective management systems governing a same type of resource: PGRFA). This is of course directly relevant for a global seed commons, where multiple stakeholders and multiple layers relate and overlap within the system itself and within the network or con­text in which the global seed commons is embedded. Already in 1986, Rose was wondering whether a commons ‘inside’ would not function as private property ‘outside’, excluding people outside the community from accessing the resources managed inside the community (Rose, 1986; also see Bailey and Mattei, 2013: 993).

Towards ‘inappropriability’

In reaction to the lack of protection and promotion of the collective interest through the market or the state institutions, authors have questioned the role of private property in managing resources. In line with Ostrom’s views, for Bollier (2014: 102) a commons can coexist with private property; they can be ‘mutually compatible and even work hand in glove’. However, he recognizes that the character of the commons is quite different from that of property; commons is not a variant of property as ‘commons is less about ownership as we usually understand it than about s tewardship’ (ibid: 102, emphasis in original text). Dardot and Laval go much further in contesting the current property rights regime attached to commons. They argue (2014: 233 et seq) that some resources/regimes should be institutionalized as non-appropriable by society. The fundamental institution of property is refuted for resources that are considered to be managed by the community for the collective inter­est, in perpetuity, as a ‘political constitution of the common’ (ibid: 156). This theoretical step allows them to pass from the concept of ‘the commons’ (i.e. individual interests joining in a common objective) to that of ‘a common’ without an ‘s’ (i.e. the collective interest, superseding individual interests), thereby widening significantly the definition of what a ‘common’ is. This conceptual move implies, according to them, to reject the current system, and rebuild a new mode of governance. They propose a 10 point ‘memo’ on ways to ‘institutionalize the inappropriable’ (‘instituter l’inappropriable’, 2014: 578-583). While this idea can seduce a utopian believer and defender of the collective interest, the political and economic context dominating our Anthropocene makes it certainly difficult to put it in practice easily today (in the review process of the Plant Treaty for example). However, one could argue that the ‘common’ would touch upon what Allaire (2013: 18) calls ‘ideal goods’, and which Ostrom classifies as public goods (e.g. peace and security of a community, national defence, knowledge, fire protection, weather forecasts, etc.); the difference being that it would not be the state as provider of that ‘public good’/‘ideal good’/‘commons’, but the members of the community at large.

Commons and human rights

A wide and brief overview of some important outputs of the new commons vogue has been summarized above. There is another interesting move to be mentioned, which examines the relationship between the commons and human rights, i.e. how can the commons serve human rights and vice-versa? Although this Human Rights (to food/to seeds) approach falls outside the scope of this research, it is interesting to point a couple of recent developments that will not be analysed in much detail. First, mention is made of the Rodotà Commission which, in Italy, has defined the commons as goods essential to the satisfaction of fundamental human rights (emphasis added, Rodotà, 2013; also see Dani, 2014; Lucarelli, 2011a, 2011b). Following this thought, commons must be accessible for all present and future generations. The property rights over these goods must be exercised in a way that their collective function is warranted. When the state holds this function, the common goods are placed outside of the commercial market. The state is reduced to a simple administrator. Citizens then benefit from a ‘diffuse ownership’, which allows to control the use of the good and to warrant access (Sezioni Unite della Cassazione, numero 3813, 16 February 2011). Following this idea of the state as mere administrator enabling access to and use of common goods by citizens, Pistor and De Schutter (2015) propose the recognition of a new category of goods - ‘essential resources’ - which access would necessitate to rethink governance regimes, where people could express their ‘voice’ and ‘reflexivity’. They define essential resources (2015: 3) as ‘resources that are either absolutely necessary for the survival or every human being’, i.e. water, basic food, clothing and shelter, or resources that are ‘indispens­able for minimum existence in a given society’, i.e. land, electricity, etc. In their book, they develop the idea that a shift needs to occur from ‘the tragedy of the commons to the tragedy of exclusion’, that is to say that there need to be a ‘criti­cal reassessment of existing governance regimes and their distributional effects’, towards a shift in scarce resource management from efficiency to essentiality (ibid). An area where progress has taken place is in the field of water manage­ment and the right to water, where the European Water Movement declares that water is a common good and a universal fundamental right.¹³ As Verhaegen (2015: 120) puts it when relating human rights and the commons, ‘the purpose of the “commons” is highlighted, a purpose of global justice in the right to access and use essential resources’ (emphasis added).¹⁴

Second, in the specific field of PGRFA, literature has acknowledged 20 years ago already the possible contradiction between Human Rights and the imple­mentation of UPOV and TRIPS, which jeopardizes access to seeds and the right to food (Correa and Yusuf, 1998; UNDP, 2000). Since then, the implementation of instruments such as the CBD or the ITPGRFA promoting benefit-sharing mechanism to fairly and equitably compensate for the use of resources has not convincingly resolved this contradiction. Strangely enough 20 years later, Morg- era (2016: 3) notes that the intersection of the ‘variety of international human rights bodies and processes with the concept of benefit-sharing from the use or conservation of traditionally owned or used natural resources remains under­studied’. As highlighted by Tsioumani (2018: 52), the debate remained focused on the impact of IPRs over Human Rights and in particular on the unrecognized right to seeds following the restriction of farmers’ privilege in implementing UPOV 1991 (mainly with the work of former Rapporteur on the Right to Food Olivier De Schutter between 2008 and 2014, see in particular De Schutter, 2009b). The ongoing negotiation of a UN Declaration on the Rights of Peasants and Other People Working in Rural Areas demonstrates an international will to recognize specific rights to specific seed stakeholders (Claeys, 2014a, 2014b). However, these rights remain attached to an individual/universal character with­out formally recognizing the role of communities in their realization (Bessa, 2015). To my view, there would be an interesting path to explore with the recent formal recognition of the role of communities in conservation and sustainable use of biodiversity as a group with Article 6 (6.2 and 6.3.f) of the Nagoya Pro­tocol. Morgera et al. (2014: 146) explain that the ‘Nagoya Protocol goes beyond existing international human rights standards by extending the community (prior informed consent) requirements to local communities’ (also see Morgera, 2017). The recognition of local communities’ role as stewards of biodiversity formalizes a collective right, which level is missing in Human Rights international law. For example, the Right to Food is both an individual and a universal rights, but it is hard to implement (Claeys, 2015; De Schutter, 2014) and former rapporteur on the Right to Food recommends states to legally recognize customary systems of tenure for example, and encourages customary ownership systems rather than individual titling (De Schutter, 2010a). I hypothesize that formally recognizing the collective group level would allow to make the link between the individual and the universal level of recognition, collective level which I believe to be crucial for an effective recognition and implementation of these rights. However inter­esting this research trend might be, it will not be pursued in the present work.¹⁵

Commons and social movements

As for the practical developments, the theory of the commons has served several strong citizens’ movements to protest against the hyperownership domination of the economy. The purpose is not to provide extensive details here, but simply to mention that people have appropriated themselves the concept of commons to defend their causes. As expressed by Capra and Mattei,

[i]n the current state of affairs, recovering the commons is not the business of lawyers or politicians, whose intellectual and institutional landscape is framed by ideology of modernity. This process belongs now to plain people who, from choice or necessity, participate in caring for something that they recognize as a common.

(Capra and Mattei, 2015: 153)

Before the law is effectively mobilized to transform society, people have not waited to take action, inter alia in the field of food and agriculture (Claeys, 2014a). Recent famous movements are the ‘Nuits Debout’ in France,¹⁶ Italy’s various movements on the Commons (Teatro della Valle,¹⁷ Naples water management),¹⁸ Podemos and the15M Indignados in Spain,¹⁹ Gezi Park in Istanbul etc. These movements show the role that citizens currently play as growing actors (Pley- ers, 2017 ; Glasius and Pleyers, 2013; Pleyers and Capitaine, 2016) in co-creating collective institutions to manage resources, which the state or the market fail to manage sustainably in the collective interest. In addition, the global wave of ‘cit­ies in transition’²⁰ that is currently sweeping a huge number of cities worldwide demonstrates the capacity and role that citizens can play (i.e. what Capra and Mattei refer to as ‘making community sovereign’, 2015: 136—142).

These various elements of the commons’ new vogue build on Ostrom’s semi­nal work. One of the trend developed in particular by Capra and Mattei focuses on the important role of law - and its potential - in the institutional manage­ment of any system. They advance that

[t]he legal order is the most important vehicle through which a worldview is enforced and transformed into social action, and thus human law is also the agency through which we may implement new ideas and values. We must rethink our human laws and their relationship with the laws governing the ecology of a living planet. Such a rethinking, a kind of Copernican revolu­tion in the law, must use nature as a mentor and model, putting the com­mons and a long-term vision at centre stage. We must move from thinking of a ‘mechanism of law’ and move toward an ‘ecology of law’.

(Capra and Mattei, 2015: 12)

In an effort to propose ways forward for an effective Global Seed Commons (at the end of the present chapter), one needs first to identify which underlying principles of the theory of the commons (i.e. Capra and Mattei’s ‘laws govern­ing the ecology of the living planet’) respond to invariable principles relevant for stakeholders to manage seeds according to the Treaty’s direct objectives and overall goals. These invariable principles are identified below as potential prin­ciples to transform the current legal system into an ecolegal order, i.e. principles that may transform existing rules into a ‘generative ecological law’, where the law would be disconnected from power and violence, where it would render to the community level their sovereignty by recognizing their stewardship role, and where ownership would no longer be extractive but generative/inclusive (Capra and Mattei, 2015: 131-146). These invariable principles are then proposed as guiding compass to mitigate the conceptual constraints identified in the legal and stakeholders’ analyses.