Can law be used to protect and advance the commons? One of the most promising new developments here is a new jurisprudence of “biocultural rights.” Biocultural rights represent a bold new departure in human rights law that recognizes the importance of a community’s stewardship over lands and waters. Instead of focusing on individual rights and private property, biocultural rights explicitly recognize a community’s identity, culture, governance system, spirituality and way of life as embedded in a specific landscape. In other words, it recognizes the existence of a commons.

The history and character of biocultural rights are wonderfully explained in a recent law review article in the Journal of Human Rights and the Environment. The article, “Community Stewardship: The Foundation of Biocultural Rights,” is by Kabir Sanjay Bavkiatte, a cofounder of Natural Justice, an international collective of environmental lawyers, and Thomas Bennett, a professor at the university of Cape Town, South Africa. (Vol. 6, No. 1, March 2015, pp. 7-29)

Here’s an abstract of the article:

The term ‘biocultural rights’ denotes a community’s long established right, in accordance with its customary laws, to steward its lands, waters and resources. Such rights are being increasingly recognized in international environmental law. Biocultural rights are not simply claims to property, in the typical market sense of property being a universally commensurable, commodifiable and alienable resource; rather, as will be apparent from the discussion offered here, biocultural rights are collective rights of communities to carry out traditional stewardship roles vis-à-vis Nature, as conceived of by indigenous ontologies.

Certain core principles lie at the heart of biocultural rights, write Bavkiatte and Bennett. These include “non-discrimination, protection of cultural integrity, self-government, title to lands and natural resources, together with social welfare for economic well-being.”

The authors concede that “international lawyers have undertaken little or no research into the development of biocultural rights” – something that this article sets out to rectify. They argue persuasively, however, that these rights have clearly surfaced in a variety of international covenants, declarations, conventions and codes of conduct.

Biocultural rights as a new field of law have not emerged magically on their own, but through the convergence of four interrelated movements that have contributed important ethical principles, legal concepts and political advocacy. Together, these movements have brought the idea of biocultural rights into sharp focus.

The four movements identified by the authors consist of:

“post-development” advocates who are articulating a vision for human society beyond the discredited neoliberal paradigm;

the commons movement that rejects the “tragedy” fable and empirically demonstrates the effectiveness of local self-governance;

the movement of indigenous peoples asserting their right to self-determination, cultural heritage and stewardship of the land; and

the push for a “third generation” of environmental human rights that go beyond basic civil and political rights (first generation) and socio-economic and cultural rights (second generation), to recognize community rights to self-determination, economic and social development, cultural heritage and a clean and healthy environment.

Biocultural rights provide a powerful way to challenge technocratic governance – “an expertocracy imposing non-consultative, top-down solutions, resulting in the delegitimation of local knowledge and decisionmaking,” write Bavikatte and Bennett. Such technocratic approaches are harmful because they “lock in” a set of alien rules and technologies, and prevent people from developing their own, more locally appropriate and more effective rules.

In this sense, biocultural rights can be an important tool in challenging the standard models of “development” and all their ethno-centric, top-down limitations. Biocultural rights also help validate traditional cultural practices that have adapted to local ecosystems and that reflect a particular way of being in the world. The idea helps open up a whole new set of solutions beyond the monoculture of neoliberal economic and policy.

In wildlife sanctuaries in India, commons scholars have confirmed that “a protectionist approach that excluded local communities was likely to fail unless governments were prepared to invest heavily in the initiative. The same projects also showed, on the one hand, that conservation was likely to fail if outsiders (or dominant insiders) imposed rules on a community’s use of resources, and, on the other hand, that forest resources were more effectively managed if community members were genuinely involved in decisionmaking and developing rules for use of the resources.”

Of course, bureaucracies like to issue universal rules, not ones that are locally specific. They also tend to prefer “market-based solutions” that favor private property rights.Neoliberal jurisprudence focuses on the individual as the most meaningful “juridical subject,” usually ignoring the community and its biocultural relationships. So there are some formidable barriers.

Still, the idea of bioocultural rights provides a powerful legal framework for reclaiming land, culture, traditional knowledge and self-governance. These things should not be driven by markets, but by a deeper set of values, including ecological imperatives. It will take a great deal of bottom-up political and legal action to win recognition for biocultural rights. But I think it holds great promise for giving commons-based governance a new foundation in law.