Theoretical framework: the theory of the commons

The international management for the conservation, sustainable use and access to seeds is a global challenge that requires multilateral and multi-stakeholder cooperation. Globalization has significantly increased this fundamental interde­pendence between States and between stakeholders.

In this book, it is argued that the wide international cooperation (Vollan and Ostrom, 2010) between all stakeholders for the provision of PGRFA has resulted in the creation of a seed commons-type mechanism through the design of the Treaty’s MLS (Halewood et al., 2013). Indeed, the Treaty is the result of global cooperation based on commons principles (Holder and Fles- sas, 2008; Falcon and Fowler, 2002; Halewood, 2013); and the mechanism that the Treaty puts in place is evidence of a ‘new multilateralism’, echoing what former UN Secretary General Ban Ki-moon called for at the Fifth Summit of the Americas in 2009:

We need a new vision, a new paradigm, a new multilateralism. A multilat­eralism that is organized around delivering a set of global goods. A multi­lateralism that harnesses both power and principle.

(Ki-Moon, 2009)

The legal and stakeholder analyses carried out in Chapters 4 and 5 of this work highlight this multilateralism in managing global challenges, but they also point to constraints in the Treaty implementation that need to be overcome for an efficient provision of the Treaty’s objectives. Analysing these limitations through the lens of governance may contribute to clarify why the system is not functioning well and propose actions and directions for all stakeholders to improve the implementation of the Treaty. The theory of the commons is proposed as the governance approach to study the Treaty, similarly to what has been done to analyse the international governance of microbial genetic resources (Dedeurwaerdere et al., 2009; Halewood, 2010). The concept of commons is not very well defined and has even grown fuzzier with globaliza­tion and the complexification of wider resource governing systems. In 1968, Garrett Hardin published an (over-exploited) allegory named the ‘Tragedy of the Commons’, where he analysed the problems related to over-exploitation of finite resources under unlimited and free access conditions to all (Hardin, 1968). He took the example of grazing and posed the precondition that rational people would always try to get the maximum and immediate profit from the use of a ‘common resource’. In game theory, this has been modelled under the prisoner’s dilemma (Rapoport and Chammah, 1965). Hardin con­cludes that following this ‘rational’ leads 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 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’ (Olson, 1965: 2, emphasis in original text).

Later on, as a reaction to the supremacy of property rights (whether state or private) as the ‘best’ system to manage resources, Elinor Ostrom²⁴ studied the management of common resources using a ‘bundle of rights’ approach, where she distinguishes between operational-level property rights and collective­choice property rights. Schlager and Ostrom define operational activities as

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.

(Schlager and Ostrom, 1992: 250-251)

Indeed, according to Schlager and Ostrom, ‘[a]ssigning full ownership rights does not guarantee an avoidance of resource degradation and over­investment’ (Schlager and Ostrom, 1992: 259). 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 (Ostrom, 1990).²⁵ In her famous book Governing the Commons, Ostrom focused on case studies in agricultural production systems, e.g. irrigation, forestry or fishery management systems. In her understand­ing, a commons is ‘any natural or manmade resource that is or could be held and used in common’ (Berge and Laerhoven, 2011: 161). Ostrom showed that stakeholders²⁶ can effectively set up rules together (i.e. self-organization) to manage resources established in a local common-pool for their own use, and outside the market or governmental intervention (i.e. self-governance). Thanks to these data and to her observations, she designed eight principles useful to govern an efficient CPR system (Ostrom, 1990: 90, see table 3.1):

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 self-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 helpful (but not compulsory) to identify whether other resource management systems can qualify as CPR or not (Ostrom and Delville, 2009; Quinn et al., 2007). Indeed, 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, 1990, 2005, 2009a; Cox et al., 2010).

In 2008, there was little legal scientific literature talking about the Plant Treaty (Cooper, 2002; Batta-Bjornstad, 2004; Ruiz-Muller, 2006; Frison, 2006; Gerstet- ter et al., 2007), and hence very little on the relationship between the Treaty and the commons theory Since then, some authors, including non-academics, have assimilated the Treaty’s MLS to a commons-type management regime (Dedeurwaerdere, 2010). The MLS, as a virtual pool management mechanism for selected plants, has been qualified as ‘global commons’ or ‘global crop commons’ (Halewood et al., 2013), ‘PGRFA Commons’ (Halewood and Nnadozie, 2008), ‘communal seed treasury’ (Raustiala and Victor, 2004; Helfer, 2004), ‘common seed pool’ (Raustiala and Victor, 2004), ‘global genetic commons’ (Safrin, 2004; Falcon and Fowler, 2002; Helfer, 2005), ‘positive commons’ (Van Overwalle, 2008), etc. These terms are often used loosely in relation to the Treaty, without a precise definition or application²⁷ of existing solid scientific literature on the commons theory. Building on this trend, Ostrom’s theory is used as a framework to screen the MLS through the lens of the commons. The aim is to analyse whether the MLS, as it has been created by Contracting Parties to the Treaty, can be understood as a CPR, according to Ostrom’s definition. My analysis leads to the conclusion that it is not fully the case. One of the difficulties relates to the global dimension of the MLS (Dedeurwaerdere, 2013 ; Henry and Dietz, 2011; Stern, 2011).

Building on a thorough transdisciplinary study of the MLS, six invariable principles are identified as core elements for an efficient global seed commons: 1) sustainability; 2) interdependence; 3) the anticommons dilemma; 4) the physi­cal and informational components inextricably bound to the use of seeds; 5); diversity, heterogeneity and complexity and 6) the global seed community. It is argued that these invariable principles should be better articulated in the tools, rules and procedures of the global seed commons in order to realize the Treaty’s overall goals. The six invariable principles are not design principles which have to be adapted to a specific resources commons regime. In my view, these invari­able principles express the very essence of seeds evolution: they constitute core principles enabling the existence of seed diversity with human communities. Humans cannot continue to avoid respecting them when designing the com­mons regime to govern the global seed commons.