Core Commons

PROTECTING LIFE ON EARTH:
JUSTINIAN PUBLIC TRUST DOCTRINE AND THE
CORE COMMONS ARE NECESSARY FOR SURVIVAL.

A view of Earth from the Space Shuttle Discovery shows the late afternoon sun on the Andes Mountains, with glare and heavy cloud illumination.

INTRODUCTION:

Justinian’s Institutes first articulates the lasting Public Trust Doctrine: “By the law of nature these things are common to all mankind-the air, running water, the sea, and consequently the shores of the sea.”1 Much later, in the 21st century, a group of scientists declared that there are 9 planetary boundaries that humanity must respect to survive on Earth.2 In a profound legal innovation, the Portuguese lawyer Paulo Magalhaes describes these boundaries in terms of the intangible Common Heritage of Humanity.3 In view of this, it is possible to synthesize the ancient doctrine of Justinian’s Public Trusts with Prof. Magalhaes’ pioneering work to legally operationalize and implement legal protections for the Common Heritage necessary to sustain life and development on Earth.4 Specifically, the essential planetary boundaries identified so far can be described as the Earth’s Core Commons now necessary to preserve all of life on planet Earth.5 When recognized as such, perhaps, in the pending Global Pact for the Environment,6 the legal principles of do “No harm,” precaution, and prevention provide the nucleus of a new legal regime now enforceable to protect these Core Commons as a Public Trust necessary for the preservation and perpetuation of life on this planet.7

THE COMMON HERITAGE OF HUMANITY: THE PLANETARY BOUNDARIES AND
THE EARTH’S CORE COMMONS AS RES COMMUNIS.

Fully developed after Justinian’s doctrine of Public Trusts, Res Communis is the principle of Roman law recognizing that “certain areas or resources are vested in the international community as a whole and are not subject to appropriation by any State.”8 With its emphasis on “certain areas or resources,” Res Communis provides a valuable legal lens through which to view and select, within the bounds of international law, the planetary boundaries identified by scientists as being essential to sustaining life on planet Earth; as such, these will constitute the Earth’s Core Commons. All of these commons interact in complex ways. Given this, the fundamental Core Commons of Planet Earth are the biosphere, biodiversity; the Earth’s atmosphere; the oceans and seas, including fisheries; public shores lines, especially wetlands and estuaries; land, meaning the soil; and polar regions. These Core Commons are now deserving if not desperately needing, international and national legal and political protections. This can best be done through domestic courts9 and by including this list in the ongoing negotiations concerning the Global Pact for the Environment. Such protections can also be obtained through political processes and domestic courts enforcing international law’s precaution and prevention principles.

CONCLUSION

The essential planetary boundaries identified so far can be described as the Earth’s Core Commons now necessary to preserve all of life on planet Earth.10 The legal principles of doing “No harm,” precaution, and prevention provide the nucleus of a new legal regime now enforceable to protect these Core Commons as a Public Trust.

Citations

  1. Sandars, T. C. (Ed.). (2007). The institutes of Justinian. The Lawbook Exchange, Ltd.
  2. Rockström, Johan, et al. (2009) “Planetary boundaries: exploring the safe operating space for
    humanity.” Ecology and Society 14.2.
  3. See webpage: Common Home of Humanity, Bio of Paulo Magalhaes, Director-General.
  4. Concerning the idea that sustainable development requires full consideration of intra and intergenerational
    equity, public trust, and the precautionary principle, see: In Maple Leaf Cement Factory Ltd v Environmental
    Protection Agency and others (PLD 2018 Lah. 255), a case in which the Petitioner challenged the Signal Free
    Corridor Project in Lahore, at Public trust doctrine jurisprudence – Daily Times
  5. Inspired by the mission of the Common Home of Humanity, the concept of the Core Commons is introduced here.
  6. See: Home – Global Pact for the Environment (globalpactenvironment.org)
  7. For an excellent explanation of how these principles work, see Dupuy, P. M., & Viñuales, J. E.
    (2018). International environmental law. Cambridge University Press.
  8. Topulos, K., & Hoffman, M. (2004). Parry and Grant Encyclopaedic Dictionary of International Law.
    Edited by John P. Grant & J. Craig Barker. Dobbs Ferry NY: Oceana Publications.
  9. See supra, note 4.