SOAS University of London

LAW, COMMONS AND SUSTAINABLE DEVELOPMENT GOALS – EXPLORING LAW’S ROLE IN PROMOTING SUSTAINABILITY OF THE COMMONS

IASC Regional Conference (Europe) 2016, Bern - Commons in a “glocal” World: Global Connections and Local Responses, 10–13 May, 2016, University of Bern, Main Building

The Law, Environment and Development Centre (LEDC) organised a panel on Law, Commons and Sustainable Development Goals – Exploring Law’s Role in Promoting Sustainability of the Commons at the IASC Regional Conference (Europe), Bern – Commons in a “glocal” World: Global Connections and Local Responses in May 2016. The panel included presentations by Lovleen Bhullar (LEDC), Birsha Ohdedar (LEDC), Yuan Qiong Hu (LEDC), Christine Frison (University of Louvain) and was convend by Prof. Philippe Cullet (LEDC).
The panel abstract, paper abstracts and available presentations can be found below.

Panel Abstract

The year 2015 will have been significant for global environmental governance. The adoption of the Sustainable Development Goals in September 2015, and the potential agreement of a climate change “legal instrument” at Paris in December 2015 have strong implications for the international law of sustainable development. Developments at the global level have often been analysed closely but not necessarily in a comprehensive manner. Thus, the combined impacts of changes in different areas of global governance, such as issues concerning knowledge commons (and their privatisation through intellectual property rights) have not always been seen comprehensively in terms of their impacts on local environmental governance.

The interaction between the global and local in international (environmental) law is of particular importance for the commons. For example, in the water sector, water law has primarily developed through domestic laws. However, the global context is of immediate relevance, since the hydrological cycle does not separate water issues into domestic jurisdictions as the law often does. This has implications not only environmentally, but also in terms of human rights and development. Similar tensions exist over forest ecosystems. As the international community recognised the value of forests to climate change mitigation the need to reform domestic forest law for the global public good has led to complex multilevel dialogues amongst competing forest interests.

This panel will seek to explore the role of law in ‘governing the commons’ and promoting sustainability in the context of the sustainable development goals that will shape development policy for the next many years. The speakers will present on a variety of commons and sustainable development goal related fields, such as water, climate, health, sanitation, and forests. Through interacting with both the international and domestic contexts of law and policy in different subject areas, the panel will further explore the linkages between local and global boundaries that are shared across various ‘sustainable development’ regimes.

Lovleen Bhullar, Water Pollution, Water Rights and the Commons in India – Analysing the impact of judicial decisions

Water pollution resulting from human activities represents one of the most serious environmental challenges in India despite the existence of several laws and policies. The higher judiciary has stepped in to address the shortcomings of the existing framework on numerous occasions. For this purpose, it has invoked the language of rights, and read the rights to health, water and sanitation, all of which are essential to the achievement of sustainable development goals, into the fundamental right to life guaranteed in Article 21 of the Constitution of India. The higher judiciary has also introduced concepts/principles of international environmental law such as sustainable development, the polluter pays principle and the precautionary principle into domestic environmental jurisprudence. This paper will examine the approach of the higher judiciary in light of the need to reconcile the often-conflicting objectives of protection of the commons (in this case, water) and the promotion of economic development.


Birsha Ohdedar, Human Rights & Climate Change – The Right to Water

Climate change poses significant risks on the delivery of the human right to water. Despite the connection between water security and climate change, and the growing importance of water rights and climate change law, these two regimes have seen a limited dialogue. This paper will analyse the importance of climate change and climate justice narratives in interacting with the delivery of the human right to water. The paper will use India as a focal point, as a developing country with particularly acute water and developmental issues. It will be argued that the water commons, as an ecological and social space, needs for re-imagination in law and policy in order to deliver both human rights and climate change goals.

IASC Conference Powerpoint - Birsha Ohedar (pdf; 393kb)  


Yuan Qiong Hu, Knowledge Commons, Health Innovation and Patent Law

The expansion of the patent law regime has profoundly shifted the landscape and boundary of knowledge creation, dissemination and innovation, including those concerning health. With the global outcry of lacking adequate innovation addressing pressing health needs especially in developing countries on one hand, the doctrine and practice of resorting to proprietary protection as the stimulation for innovation remain predominant. The discourse of the ‘tragedy of commons’ and ‘tragedy of anti-commons’ have been used in various contexts in illustrating such situation. With patent right being legitimized through both international and national laws, the extent to which the boundary of innovation could be redefined in law so that the knowledge commons and scientific creativity would be lifted in reaching public needs, is among the questions to be discussed. The paper will critically examine the major doctrines of patent law with focus on how innovation has been defined with focus on those related to health, the major limitation of those approaches, and discuss possible alternative conceptual framework towards openness and innovation for health.

IASC Conference Powerpoint - Yuan Qiong Hu (pdf; 615kb)  


Christine Frison, Planting the Seed Commons: Towards Implementing the Zero Hunger Sustainable Development Goal?

Creating a food secure world and reaching the 2015 Sustainable Development Goal (SDG) n°2 'Zero Hunger' require inter alia to "promote access to and fair and equitable sharing of benefits arising from the utilization of genetic resources and associated traditional knowledge" (SDG Target 2.5). Exchanges of seeds, plant materials, their related information as well as knowledge between farmers, breeders and researchers were a usual practice at the local, regional and international levels until the end of the 1980s. However, the increasing appropriation of (plant) genetic resources through intellectual property rights and states' sovereign rights has pushed seeds further and further into the market place - rendering their access (at all three levels) increasingly difficult. In reaction, the agricultural fora within the United Nations and institutions alike created the Multilateral System of Access and Benefit-sharing (MLS) of the International Treaty on Plant Genetic Resources for Food and Agriculture (the Treaty) in the early 2000s. The Treaty's overall objectives are food security and sustainable agriculture, to be reached through conservation, sustainable use of seeds and through access and benefit-sharing mechanisms. These objectives are expressly part of SDG n°2.

The Treaty MLS is sometimes referred to as a 'Plant Commons', in which access rules aim at protecting the exchange practices between the above mentioned actors, whether at the local, regional or international levels. This innovative legal framework looks beyond the enclosure of seeds, their privatization and commodification, towards a system that facilitates sharing, best practices and the generation of innovation for food security. It thereby encompasses both private and public interest objectives. Some actors and academic commentators have qualified the MLS as a commons, but without precisely defining what this concept covers when it comes to seeds. The present paper explores the relevance of this concept of commons with respect to the functioning of the Treaty MLS. In doing so, it assesses whether the current regime reaches food security and promotes sustainable agriculture in the light of the Zero Hunger Goal. It also highlights difficulties and constraints identified by Treaty stakeholders in the implementation of the MLS. Building on this assessment, this contribution makes legal and governance suggestions to help Contracting Parties improve their management of seeds as a commons.

IASC Conference Powerpoint - Christine Frison (pdf; 1323kb)