Recently, I have been digging deeper in the issue of property and ecology. As follow-up to my recent posts on Earth ownership and customary law, I received further inspiration from Karen Bradshaw’s book on ‘Wildlife as Property Owners’. She argues that wildlife should be granted full property rights on their habitat. This is a complex issue, and I will not unfold her nuanced analysis here. I concentrate on one specific issue that already transpired in my earlier posts, the meaning of ‘commons’. This follows Bradshaw in her reasoning that property rights cannot be assigned to single species or even individuals, but only to the single and specific ecosystems they are members of. These results in considering ecosystems as universal commons in the sense of being owned by all human and non-human members in common.
But why property in the first place? This is because property opens entirely new and powerful channels to protect the rights of all species to flourishing. As long as humans only ‘protect’ other species by the means of statutes such as environmental law and regulations, there is always the risk that human agents treat their interests as a priority, for example, when deciding about budgets of responsible agencies. In contrast, if non-humans get the full status of holding property rights, they can approach the courts for all kinds of claims, such as compensation to damages, which are independent from such governmental measures. The legal instrument is the trust and the corresponding fiduciary duties of the humans who are the stewards of the trust. This is well established even for non-humans, as Bradshaw’s many examples demonstrate: For example, US legal practice recognizes the right of pets to inherit property, which is managed by trusts established for the individual case: The pet is owner, and the property is entrusted to human stewards. However, as Bradshaw also recognizes, this model does not work for entire ecosystems, since it is simply impossible to treat even only the thousands and thousands of species cohabiting there as individualized collective owners (that is, say, all bees at that place collectively). Pushing forward to individualize property for members of species (as single bee) is illusory.
Hence, we could establish trusts that represent the single ecosystems as owners. Perhaps we use an example to avoid an overly abstract reasoning. Think of a localized coastal ecosystem where humans farm and fish, and many other species live, both on land and in the coastal waters. Add tourism as an economic activity of humans. Ecologists would identify the borders of that ecosystem such that a trust can be established that owns the land and the adjacent coastal areas. That means that humans can no longer own a parcel of land exclusively, but would act as leaseholders, paying a rent to the fund. At the same time, however, they would be members of the trust representing the ecosystem commons.
In my view, it is essential to distinguish between the ecosystem as a commons and the various ecosystem services. The ecosystem services concept would no longer be focused on humans, as we can identify a full range of species-specific ecosystem services. In principle, all services are commonly owned. But as in the example of the human leasehold, a specific service may be rendered as an exclusive right: The farmer obtains, say, a thirty-year lease of land, which can have the full status of a property right, including even the right of alienation, that is, subleasing to another farmer. However, this is not an absolute right where the land right would simply encompass all parts of the ecosystem located on the land, as in current interpretation. The land also generates many ecosystem services for other species cohabiting with the farmer, and who claim ownership first, as members of the trust representing the ecosystem, and, potentially second, in getting legal recognition of ownership of that service. The apple tree would be co-owned by the farmer and the bees who harvest there (again, this is already partially recognized for endangered species, such as when a nest on a tree limits the rights of the human owner to log it).
This construct allows for non-humans to raise claims against the farmer if, for example, she damages the ecosystem by deploying too much artificial fertilizer. There are two channels how claims can be raised. The first is the ‘eco-cratic’ one, that is commons politics, when the trust would arrange a deliberative process by which the interests of the farmer would be weighed against the interests of other species, and eventually an agreement might be reached. The other channel would be the courts, as the trust might file a case for damage compensation. In other words, there is the commons level, but there is also the private litigation level, as the farmer, via her leasehold, can be also approached as a private owner causing externalities on other members with ownership claims on specific ecosystem services.
In fact, as argued in earlier posts, we must distinguish between possession, ownership and property in the narrow sense. Modern property theory is geared towards markets: Different from customary law, property law as emerging in the 18th century has been designed to ease the operations of markets. This also applies in the scheme proposed here. For example, fishers may enjoy the right to catch shrimps in the coastal waters which they sell on the marketplace. This right is granted by the trust and remains embedded in the commons. Yet, as such, the fishing quota, like the leasehold, can be extended over any time span, and can be even assetified, that is sold to others, and priced. Hence, the quota is property, distinct from commons ownership, since it is marketized.
This entails the possibility that non-members of the trust obtain rights to ecosystem services: Local fishers sell their quotas to a commercial fisher located elsewhere. The same applies if a farmer sells her leasehold to a real estate company which builds a hotel attracting tourists on it. In all these cases, the full potential of the model is salient: The trust would act towards these non-members as the ultimate owner and can use all means of property law to pursue the interests of the local eco-community against the non-members. This does not only refer to adversarial matters, but also to any kind of productive market action: The trust may even launch projects in ecotourism to boost the local economy, which allows to channel resources into sustaining the ecosystem.
As we see, the notion of commons does not stay in principled tension with other forms of property. To the contrary, the notion of commons can be even grounded in classical Lockean conceptions of property, if we recognize that all members of the ecosystem contribute to its flourishing, and hence have a right to claim ownership. At the same time, this commons is exclusive towards non-members, such as commercial fishing companies or real estate business in tourism, and therefore interacts in a private property with them. Further, all members of the eco-commons can own exclusive rights on specific ecosystem services, which are governed by property law on the one hand, and by political processes on the commons level, as members of the trust.
Coming back to Bradshaw, she is aware that such proposals presuppose a robust legal framework and regulatory regime for governing the establishment and monitoring the operations of trusts. But this is the bread and butter of regulation in any other field, such as financial sector regulation and supervision. Hence, we can realistically envision a world where the biosphere is represented in human society and economy by eco-trusts as ultimate owners of land. In these trusts, humans act as stewards, and conduct a wide range of property transactions with other humans via the market.