The Public Trust Doctrine (PTD) provides a simple mandate that governments must manage common natural resources in the sole interest of their citizens. The notion of the Public Trust has a long and storied history and is particularly germane to the ongoing Earth-wide discussion in preparation for Rio+20 about achieving sustainable development.
The components of the PTD are:
- certain common natural resources cannot be subject to private ownership and instead are held within a Public Trust;
- governmental authorities are trustees of the Trust; and
- the beneficiaries of the trust – which include current and future citizens – may hold the trustees accountable for degradation of the Trust resources.
The PTD has been incorporated into numerous States’ constitutions, judicial opinions, and statutes. States with the PTD include Brazil, Canada, India, Philippines, South Africa, Uganda, and the United States.
Though the concept of public trusteeship has mainly been developed at the national level, a number of treaties and proceedings of international bodies incorporate PTD principles. For instance, the World Heritage Convention and the 2001 FAO International Treaty on Plant Genetic Resources for Food and Agriculture include notions of trusteeship for global beneficiaries, both current and future.
The PTD could contribute a philosophical and legal foundation for two particular imperatives in developing an institutional framework for sustainable development: achieving intergenerational equity and clarifying the governance of resources beyond national jurisdiction. While trust is in essence a common law concept, the fundamental precepts of the PTD are broad enough to accommodate all the world’s legal systems.
The PTD as foundational legal principle for intergenerational equity and sustainable development
The notion of intergenerational equity springs from the idea that it is unfair for the current generation to limit the choices of future generations by destroying natural resources, and it appears throughout international environmental law. By requiring governmental trustees to treat the interests of current and future citizens equally in their decision-making about common natural resources, the PTD provides a philosophical framework for structuring the relationship among generations of citizens, governmental bodies, and natural resources. Because the PTD encompasses the imperative of intergenerational equity, it could supply a strong legal basis to the proposed establishment of an ‘Ombudsperson, or High Commissioner for Future Generations’, as well as underlie ‘steps to give further effect to Rio Principle 10 at the global regional and national level’, as proposed in the Zero Draft of the Rio+20 Outcome Document.
Bringing clarity to the governance of international spaces and resources
The philosophical and legal framework provided by the PTD could greatly clarify the governance of common resources that exist outside of national jurisdiction. In particular, the time seems ripe for States and international bodies to recognize that their proper role in governing high seas waters and resources (including those above their extended continental shelf) is that of public trustees. The Zero Draft acknowledges the importance of ‘the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction’ and, in general, ‘integrated decision making to fill the implementation gap and promote coherence across institutions’. By encompassing the key principles of resource stewardship, accountability, and intergenerational equity, the PTD provides a sufficiently flexible concept to help achieve coherence in high seas governance.
In preparation for Rio+20, the United Nations, State governments, and civil society organisations around the world are engaging in processes to deliberately plan how to transition to a sustainable global society. Improved stewardship of natural resources – for the benefit of current and future generations – is an oft-cited component of this transition. Despite the discussion of the public trusteeship concept in some international instruments, to date the surface of the Public Trust Doctrine has been scarcely scratched. We argue that an expanded, fully reinvigorated PTD should be applied to help clarify responsibilities and rights at Rio+20, to achieve equitable and just environmental governance regimes in the twenty-first century.
Mary Turnipseed,1* Julie Berkman,2 Michael Blumm,3 Larry Crowder,4 Duncan Currie,5 Kristina Gjerde,6 Ryke Longest,7 Gail Osherenko,8 Patrick Parenteau,9 Stephen Roady,10 Raphael Sagarin,11 Peter Sand,12 Mary Wood13
1National Center for Ecological Analysis and Synthesis, University of California, Santa Barbara, USA; 2Foundation for the Good Governance of International Spaces, UK; 3Lewis and Clark Law School, USA; 4Center for Ocean Solutions, Stanford University, USA; 5Globelaw, New Zealand; 6International Union for the Conservation of Nature, Poland; 7Duke Law, USA; 8Marine Science Institute, University of California, Santa Barbara, USA; 9Vermont Law School, USA; 10Earthjustice, USA; 11Institute of the Environment, University of Arizona, USA; 12University of Munich, Germany; 13Oregon Law, USA.