The Global Commons Life Estate
James Perkaus
Introduction
It is difficult to make sense of the myriad, often conflicting claims that humanity has in the global commons. From destabilizing the global climate mechanism to depleting ocean fisheries, the world’s cultures promise to further bombard the biosphere. The impact on future generations is uncertain and, to say the least, potentially profound. To be sure, the international community can limit these intrusions through issue-specific multilateral agreements, like the Montreal Protocol that bans ozone depleting substances. However, it would be helpful to the more complex matters of managing the global commons if we could view how all the pieces of the humanity-biosphere jigsaw fit together. Former Prime Minister Margaret Thatcher illustrates the fundamental feature of this planetary puzzle: "No generation has a freehold on the earth... All we have is a life tenancy—with a full repairing lease."1
This paper asserts that all of humanity has both rights and duties in the global commons analogous to the interests of a person holding a life estate in property. A further parallel surfaces in that the rights of future interests in both life estates and a healthful global commons impose similar duties on current life tenants and on the present generation, respectively. Thus, the term best encapsulating humanity’s interests in the non-sovereign assets of the Common Heritage of Humankind is a global commons life estate.
This article comprises four sections. Section I reviews the common law characteristics of a property-life estate. Section II explores the human right to a "healthful" environment and the consequences that flow from it. Section III demonstrates that, in aggregate, the rights and duties of a healthful global commons are remarkably similar to the interests of a property life estate. Section IV examines the mechanism that transfers this environmental right to future generations. Lastly, it applies insights from sustainable development to ensure that future generations enjoy their birthright—a dynamically stable global commons.
I. A Property Life Estate
At common law, a life estate is a legal arrangement when a person—known as the beneficiary or as the life tenant—has the right to use property for a specified time period, usually measured by the grantor's or the beneficiary's lifetime.2 At the death of the designated party, the interest reverts to the grantor and the heirs. When the life estate is active, the beneficiary possesses both rights and duties. Basically, the rights fall under the doctrine of usufruct—the right to use and enjoy the property of another for a limited time.3 While I hesitate to use the awkward-sounding term, I selected usufruct because it offers a principled connection between established legal practices (The doctrine dates back to Roman law.4) and the evolving jurisprudence of international environmental law including the "Common Law of Mankind".5 Briefly, a life tenant is entitled not only to use the property in any reasonable manner but also to receive the income generated from it.
Along with usufructury rights, a life estate carries duties—both positive and negative. For example, assume that Barbara gives Alan a life estate to her 100 acre farm. If Al stays in the house on the property, he has the positive or affirmative duty to maintain it. At a minimum, this involves not letting the house and grounds fall into disrepair. He must take reasonable steps to retain the property's value. Also, Al faces a negative or prohibitive duty; he is restricted from doing things without Barbara’s consent that might irreparably change the property. Basically, these obligations can be aggregated as the duty "to maintain and repair" the property.
It is worth noting that a property-life estate has a nexus of rights and duties that balances the interests of all relevant parties including future interests. It does so in its concern for three basic items: access, quality and options.6 For our discussion, we just need to note that access refers to much more than physical location or occupying land; access rights involve the unhindered receiving of benefits. Such access extends through time so that, when the life estate ends, these benefits become part of the estate held by future interests. With respect to quality, the life tenant’s duty "to maintain and repair" ensures that future interests can enjoy the estate in a comparable condition. With respect to options, the beneficiary's negative obligation not to irreparably change guarantees that the options of future interests to enjoy the estate will not be unduly restricted. Regarding the access, quality, and options of property, it seems that a life estate maximizes the life tenant's freedom subject to those same legitimate rights of future interests.
II. The Human Right to a Healthful Global Commons
Before commenting on the relationship between common law and international resources, it is helpful to clarify the concepts under consideration. According to Christopher D. Stone, a law professor at the University of Southern California, "[t]he global commons refers to those portions of the earth and its surrounding space that lie above and beyond the recognized territorial claims of any nation."7 On some accounts, since the global commons belongs to neither person nor State, it belongs to all people. As such, it embodies the Common Heritage of Humankind. According to Edith Brown Weiss, the distinguished Georgetown University law professor, the Common Heritage concept has natural and cultural components. To wit: the natural heritage encompasses the atmosphere, the oceans, plant and animal life, water, soils, and other natural resources, both renewable and exhaustible. The cultural component includes the intellectual, artistic, social, and historical record of humankind.8 To differentiate the global commons from aspects of the Common Heritage under sovereign jurisdiction, let us call the global commons and all its resources "Humanity's Common Inheritance".
So, how does a life estate in property affect the global commons? Recently, several prominent commentators have articulated the human right to a "healthful environment".9 According to R.S. Pathak, a past Justice at the World Court in the Hague, a healthful environment "...is a fundamental requirement for the protection and enhancement of the quality of life... and survival on the planet."10 In myriad ways, a healthful environment is life-sustaining and life-improving; it is a need possessed by all humans. A healthful environment is a human right because it possesses the same traits of other human rights.11 Indeed, it is universally general and fundamentally important. Pathak also shows that the right to a healthful environment is also inalienable, essential, and enduring.
A human right serves as a source for other rights. From the right to a healthful environment flows an entire "bundle" of ecological rights. Pathak cites a few examples: "...the right to clean water and pure air, the right to the protection of the soil against degradation and of marine resources against pollution..."12 These rights derive their legitimacy from a healthful environment's primary status. Most, if not all, of these enumerated rights are local or regional. However, resources often have a global aspect, especially the areas of the oceans, the atmosphere, and space beyond any national jurisdiction—the global commons. Is the global commons part of a healthful environment? If so, what resources comprise this global "bundle"?
Consistent with Pathak's "quality of life... and survival on the planet," the right to a healthful environment must have a global dimension that corresponds to a habitable biosphere. This ecological value is both necessary and practical because without an hospitable Earth, the rights to life, liberty, and the pursuit of happiness have little meaning. And the dynamic stability of the global commons is integral to this endeavor. Thus, "the right to a healthful global commons" is a subset of the more encompassing right to a healthful environment.
What environmental goods and services does Humanity's Common Inheritance provide? The ozone layer shields organisms from excessive ultraviolet-B radiation, and the not-so-well understood greenhouse mechanism stabilizes the climate. Some processes protect breeding grounds; still others manufacture and circulate carbon dioxide, methane, water and oxygen. Moreover, the global commons also provide assets of more direct economic benefit. Ocean fisheries supply nearly 100 million tons of catch annually. 13 Geostationary orbits offer space to park communication satellites. The atmosphere and the oceans provide these and myriad other resources that keep the biosphere comfortable—a condition that humans need for life, health, and prosperity. Consequently, all people including future generations have an inalienable right to (and an interest in) a healthful global commons.
Like property, a healthful global commons is actually a "bundle" of rights. By unbundling it, we discover subsidiary rights: to an ozone screen, to a dynamically balanced climate, and to stable populations of ocean fisheries. In fact, we have a right to all the resources comprising a healthful global commons. But, because every right imposes a duty, a "bundle" of rights implies a "bundle" of duties. Thus, each subsidiary right of a healthful global commons is paired with a particular obligation. For example, the right to benefit from a stable climate mandates a duty to protect it.
So how does this collective "bundle" of rights and their corresponding obligations amount to a global commons life estate? To this task, we now turn.
III. The Global Commons Life Estate
Nobody owns the resources of the global commons, and everybody has rights to use them. In other words, the "bundle" of commons rights allows people to use but not to own Humanity's Common Inheritance. So, this general right amounts to a usufructury interest in the global commons. This is not radical jurisprudence. As Thomas Jefferson understood, "Each generation ... has the usufruct of the earth during the period of its continuance. When it ceases to exist, the usufruct passes on to the succeeding generation, free and unincumbered [sic], and so on successively, from one generation to another forever."14
Conversely, this "bundle" of rights is constrained by a "bundle" of reciprocal obligations to perpetuate global resources—again, in both positive and negative ways. Humanity has positive or affirmative duties to sustain a healthful global commons by establishing institutions and agreements to regulate it. Further, because people lack the authority to irreversibly damage commons' functions, negative obligations prohibit certain acts deemed especially risky or harmful. This "bundle" can be viewed as the duty "to maintain and repair" the global commons. So, rather than falling into disrepair, our biospheric house is kept in a comfortable equilibrium.
In summary, humanity has a collective right of usufruct in a healthful global commons; and this right is bound by the duty "to maintain and repair" it. Because these interests parallel those held by a person having a life estate in property, it is reasonable to conclude: every generation possesses a global commons life estate!
Although Lady Thatcher’s planetary "life tenancy... with a full repairing lease" is interpreted metaphorically,15 we can now see why her comment is literally correct. Still, this task is facilitated by the assistance of Edith Brown Weiss's theory of intergenerational equity; so we review its three principles.16 The first principle is called the conservation of options. Specifically, "...each generation should be required to conserve the diversity of the natural and cultural resource base, so that it does not unduly restrict the options available to future generations in solving their problems and satisfying their own values..."17 Termed the conservation of quality, the second principle asserts, "...each generation should be required to maintain the quality of the planet so that it is passed on in no worse condition than it was received, and should also be entitled to planetary quality comparable to that enjoyed by previous generations."18 The third principle is the conservation of access: "...each generation should provide its members with equitable rights of access to the legacy of past generations and should conserve this access for future generations." 19
Let us examine in reverse order how these principles relate to a global commons life estate. First, accessibility. The planetary life tenancy guarantees that present and future generations receive the benefits flowing from a healthful global commons. We have rights to enjoy an ozone screen and a balanced climate in the sense of being accessible from undue anthropogenic influence. Second, quality. The positive obligations "to maintain and repair" the global commons is a quality control: future generations will experience the biosphere in a comparable condition. Third, options. It is not a coincidence that the negative duties of the planetary life tenancy prevent humanity from unduly foreclosing the options of present and future generations. Consequently, I maintain that Lady Thatcher’s metaphor is literally true: every generation holds a planetary life tenancy.
IV. The Generational Transfer and Sustainable Development
We must discuss what mechanism transmits the human right to a healthful global commons to future generations. Simply stated, who holds this right—each person individually, all of humanity collectively, or each generation inter-temporally?
I tend to think that a healthful global commons is the planetary facet of American liberalism’s environmental component: a healthful environment is the step after life, liberty, and property. My premise is that a healthful global commons is a form of pan-humanist, community property. So, everybody’s interest in Humanity's Common Inheritance is an indivisible part of the entire resource portfolio. In this way, the interests of future generations are protected indirectly.
Let me elaborate. Like other human rights, a healthful global commons ends at death. However, living beings connects generations continuously. Since no intergenerational interruptions exist, this right is always in force—protecting both present and future generations. Nevertheless, it is quite possible (even probable) that individualist liberalism is not the most appropriate forum to address environmental rights. Both Pathak and Brown Weiss offer alternative lines of thought.
Pathak examines the characteristics of the "three generations" of the international human rights system. 20 The "first generation" generally refers to civil and political rights; and the "second generation" generally refers to economic, social, and cultural rights. The "third generation" encompasses rights that are "exercised jointly by individuals grouped into larger communities, including peoples and nations."21 They are concerned with global issues of peace, development, humanitarian assistance, and common heritage. Pathak concludes, "Clearly, the regional or global dimension implied... would bring the right to a healthful environment into the list of 'third-generation'."22 Thus, if I interpret Pathak’s thesis correctly, the human right to a healthful global commons belongs to the third generation also, secured to all people and future generations as members of a group called Homo sapiens.
Brown Weiss extends the notion of group rights through time—that is, between generations. According to the theory of intergenerational equity, Earth and its resources are the assets of a global trust, "...passed to us by our ancestors, to be enjoyed and passed on to our descendants for their use. [It] conveys to us both rights and responsibilities. Most importantly, it implies that future generations too have rights..."23 If I interpret Brown Weiss’s thesis correctly, the right to a healthful global commons is held by each generation directly.
Finally, because the planetary environment is a source of capital, sustainable development teaches us, in at least two ways, how to ensure that future generations can access a global commons of comparable quality. First, development is sustainable "...if and only if the stock of overall capital assets remains constant or rises over time."24 This standard redresses the depletion of ocean fisheries and the ozone layer. Second, safe minimum standards for environmental capital must be set.25 This measure prevents ecological assets such as the climate mechanism and ocean water quality from being unreasonably degraded. Former World Bank economist Herman Daly encapsulates these sustainability standards: "... harvesting rates should not exceed regeneration rates; and ...waste emissions should not exceed the renewable assimilative capacity of the environment."26
Conclusion
But, why is it important to aggregate humanity’s biospheric rights and duties as a global commons life estate? It is a convenient rubric for peoples to appreciate their collective obligations and for nations to act upon their common interests.
For example, one inalienable obligation is for the present generation to take the steps to ensure that a healthful global commons is enjoyed by future generations. This duty stems from the corresponding right held by future generations—again, whether it be held individually, collectively or inter-temporally. The securing steps do not mean that future generations inherit Earth’s nonsovereign resources in the same condition. This is neither possible nor desirable. Humanity must interact with the complex material cycles and energy flows that self-regulate the planetary equilibrium. We must change the environment; still we cannot do whatever pleases us. So, the issue is not "Should we alter the global environment?" but, rather "By how much?". And sustainable development offers two complementary standards—maintaining at least a constant stock of global commons capital and establishing safe minimum thresholds of asset quality.
In so doing, present generations will bequeath to posterity the global commons of their birthright by maintaining and repairing it now and in the future. Just as active life tenants must respect the property rights of future interests, the present generation must respect the environmental rights of posterity. Consequently, the global commons life estate—the usufruct of Earth’s common resources—will be enjoyed by our children, our grandchildren, and future generations beyond the horizon.
Endnotes
1 Lady Margaret Thatcher’s speech to the Conservative Party in October 1988. See Costing the Earth: The Challenge for Governments, The Opportunities for Business, by Frances Cairncross, Harvard Business School Press, Boston, 1992, 6.
2 Black’s Law Dictionary. Sixth Edition. Nolan, Joseph R., and Jacqueline M. Nolan-Haley, West Publishing Co., St. Paul, Minn. 1990, 924.
3 Ibid., 1544.
4 Usus fructus was a Roman law doctrine. See Black’s Law Dictionary. Sixth Edition. Nolan, Joseph R., and Jacqueline M. Nolan-Haley, West Publishing Co., St. Paul, Minn. 1990, 1546.
5 See the excerpt of C.Jenks’ "The Common Law of Mankind" in InternationalEnvironmental Law and World Order by Lakshman D. Gurunswamy, Sr. Geoffrey W.R. Palmer and Burns H. Weston, West Publishing Company, Sr. Paul, Minn. 1994, 13-14. Also, readers are asked to interpret "mankind" in its generic sense, of encompassing both men and women..
6 These terms are the same as those used by Edith Brown Weiss to address "intergenerational equity" that we examine at greater length in Section IV. I use these terms because they represent analogous issues.
7 Stone, Christopher D., The Gnat is Older than Man: Global Environment and Human Rights Agenda, Princeton University Press, Princeton, New Jersey, 1993, 34.
8 Weiss, Edith Brown, "The Planetary Trust: Conservation and Intergenerational Equity," 11 Ecology Law Quarterly, 495 (1984).
9 See the articles by Kiss, Pathak, and Trindade in Environmental Change and International Law: New Challenges and Dimensions, edited by Edith Brown Weiss, United Nations University Press, Tokyo, 1992. The articles are "An Introductory Note on a Human Right to Environment" (199-204) by Alexandre Kiss; "The Human Rights System as a Conceptual Framework for Environmental Law" (205-243) by R.S. Pathak; and "The Contribution of International Human Rights Law to Environmental Protection, with Special Reference to Global Environmental Change" (244-312) by A.A. Cançado Trindade. The authors discuss various dimensions and terms about a general environmental right in the international human rights system, especially Pathak who posits that the term "healthful" is the most comprehensive.
10 Pathak, R.S., "The Human Rights System as a Conceptual Framework for Environmental Law", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992. 214.
11 Ibid., 211-214. See also A. Edel, "Some Reflections on the Concept of Human Rights," included in Human Rights—Amintaphil I, 2 (1971).
12 Ibid., 214.
13 Brown, Lester R., Hal Kane and David Malin Roodman, Vital Signs 1994: The Trends That Are Shaping Our Future, Worldwatch Institute, W.W. Norton & Company, New York, 1994, 32-33.
14 To John Wayles Eppes, 24 June 1813, The Works of Thomas Jefferson, VOL. XI, edited by Paul Leicester Ford, New York: G. P. Putnam’s Sons, 1904, 298. For a progressive analysis of usufruct and environmental management, see Policy for Land: Law and Ethics by Lynton Keith and Kristin Shrader-Frechette, Rowman & Littlefield Publishers, Inc. Lanham, Maryland, 1993, especially Chapter 5.
15 Cairncross, Frances, Costing the Earth: The Challenge for Governments, The Opportunities for Business, Harvard Business School Press, Boston, 1992, 6.
16 Weiss, Edith Brown, "Intergenerational equity: A legal framework for global environmental change", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992., 401-405.
17 Ibid., 401.
18 Ibid., 401.
19. Ibid., 401.
20. Pathak, op. cit., 215-217. For a brief review of the successive stages in the building of international human rights law, see L.B. Sohn, "The New International Law: Protection of the Rights of Individuals Rather than States," 32:1 American University Law Review, 9, 19 (1982). See also S.P. Marks, "Emerging Human Rights: A New Generation for the 1980's?" (Stoffer Lectures), 33 Rutgers Law Review, 397, 441 (1981), 435-439.
21. L.B. Sohn, "The New International Law: Protection of the Rights of Individuals Rather than States," 32:1 American University Law Review, 9, 19 (1982), 48.
22. Pathak, R.S., "The human rights system as a conceptual framework for environmental law", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992, 217.
23. Weiss, Edith Brown, "Intergenerational equity: A legal framework for global environmental change", in Weiss, Edith Brown, ed. Environmental Change and International Law: New Challenges and Dimensions, United Nations University Press, Tokyo, 1992, 395.
24 Pearce, David W., and Warford, Jeremy J., World Without End: Economics, Environment, and Sustainable Development, Oxford, Oxford University Press, 1993, 79, 84.
25 Ibid., 79.
26 Daly, Herman E., "Elements of Environmental Macroeconomics," in Ecological Economics: The Science and Management of Sustainability, ed. Robert Costanza, New York, Columbia University Press, 1991, 45.