Re-imagining State Policy to Empower Commons
The deficiencies of the nation-state as a form of governance are becoming increasingly clear, and often resented, largely because nation-states tend to be tightly aligned with large corporations and neoliberal economic policies, and thus hostile to initiatives to protect ecosystems, human rights and commons from market enclosure. In addition, beyond any matters of politics or ideology, the centralized bureaucratic state seeking to assert comprehensive territorial control is increasingly incompetent. Decentralized networks are proving to be faster, more innovative and more responsive to local circumstances than the conventional state apparatus.
This mismatch between archaic forms of national and international law on the one hand, and the unmet needs of people and ecological stewardship on the other, is causing new tensions – as well as new proposals seeking to re-imagine state policy and commoning. I will review some of the more prominent proposals, which range from the conceptually familiar to the daring, experimental and paradigm-shifting.
State Policies for the Commons
The most prosaic reform efforts are surely the Government 2.0 (or Gov 2.0)  initiatives that are attempting to remake conventional bureaucracy. The basic goal is to engraft network functions on to existing government bodies through such add-ons as crowdsourcing, social media and citizen-science. For example, city government are implementing “smart cities” digital systems to improve traffic control, parking, street lighting and energy management. Regulatory agencies are open to citizen-science projects that submit ecological data and species sightings. The US Patent and Trademark Office’s “Peer to Patent” website invites crowdsourcing of “prior art” (existing inventions that may invalidate a patent application).
Open APIs as Regulatory Tools
A fascinating tech-based proposal seeks to leverage the power of open networks to erect a new legal architecture for government regulation. The idea, offered by tech entrepreneur John Clippinger, is to use open APIs as a portal for real-time, automatic reporting by regulated entities. Much as Apple has open APIs (application programming interfaces) for app developers for the iPhone, government could provide an open API through which all regulated parties (e.g., financial services, polluters) could devise appropriate apps that would submit real-time data as they pertain to regulatory compliance. This could bypass the many cumbersome bureaucratic steps of conventional regulation and enable broader discretion for how enterprises meet performance standards (without the abuses that tend to come with regulatory flexibility). In Madrid, there is an effort underway by Medialab-Prado  to facilitate access to public databases by creating an API that would let them use the data for their own purposes, including self-management of their enterprises or civic projects.
European Parliamentary Intergroup on Common Goods and Public Services
A more serious attempt to remake conventional government by introducing the commons paradigm can be seen in the newly formed task force of the European Parliament known as the European Parliamentary Intergroup on Common Goods and Public Services. It is one of 28 Intergroups established by the Parliament that may or may not have much actual effect on law, but can often stimulate important political and policy debates.  The group conjoins “common assets” with traditional public services, without really calling attention to how the commons entails a different logic and set of social practices and relationships than those of the modern liberal state. Still, the task force may be a useful forum for focusing the actual philosophical and operational differences between a liberal state and commons.
Public Trust Doctrine
Another attempt to use existing legal venues to protect the commons involves broader applications of the public trust doctrine, pursued through litigation. The public trust doctrine is an ancient legal principle that affirmatively requires the sovereign or governments to protect resources that belong to the unorganized public and to future generations. Historically, courts have applied this legal principle mostly to coastal areas, rivers, lakes and other bodies of water, with modest extensions for other elements of nature.
However, in 2013, law professor Christina Wood of the University of Oregon helped develop an ambitious set of lawsuits, the Atmospheric Trust Litigation,  to attempt to get US courts to force governments to implement enforceable science-based Climate Recovery Plans, under the authority of the public trust doctrine. On behalf of children associated with an advocacy group, Our Children’s Trust,  lawsuits were filed in all fifty states and in federal court. While the U.S. Supreme declined in October 2014 to rule on the lawsuit, five state lawsuits are now pending – in Oregon, Massachusetts, Colorado, Washington and North Carolina. Litigation efforts are also being pursued in nine nations around the world.
Innovative International Legal Action to Protect the Atmosphere as a Commons
In 2015, a lawsuit waged by 886 Dutch citizens and the Dutch NGO Urgenda against the Dutch state prevailed in making a case that the state had neglected its duty of care towards the citizenry and future generations by not reducing CO2 emissions quickly enough to avoid catastrophic climate change. As one plaintiff wrote,  “We asked the judge to order the Dutch State to reduce its CO2 emissions with 25-40% in 2020, the percentage that science and international agreements tell us is needed if we want to stay below the 2 degrees threshold.” The court relied on Dutch tort law; European human rights standards such as article 2 and 8 of the European Convention of Human Rights; the precautionary principle; the UN Framework Convention on Climate Change; among other legal provisions. In June 2015, a Dutch court ruled in favor the plaintiffs.  Given the reluctance of courts to be instigators of dramatic political or social change – however warranted by legal doctrines and case history – the Dutch ruling may end up as an aberration, with courts shifting the burden to legislatures and elected officials to take action.
The Human Right of Access to Common Goods
Another ingenious legal strategy used by commoners has been the development of a new legal doctrine guaranteeing access to commons goods as a fundamental human right. This idea had its origins with Professor Stefano Rodotà of Rome, a prominent legal scholar and politician. The government-sanctioned Rodotà Commission in 2007 produced the first legal definition of the commons as assets to be managed in the interest of future generations.  Commons were defined as “goods that provide utilities essential to the satisfaction of fundamental rights of the person,” and access to such goods would be guaranteed no matter if the formal title of ownership were public or private; in all cases the asset must be protected in the “interest of future generations.”
This initiative did not succeed, but it did inspire a cultural movement to defend commons as a fundamental right, most conspicuously in a successful campaign against the privatization of Italian water systems and in a three-year occupation of the Teatro Valle in Rome when the city government threatened to sell it to investors.
Stefano Rodotà on “The Reasonable Madness of Common Goods.” 
Universal Covenant Affirming a Human Right to Commons and Rights-Based Governance of Earth’s Natural Wealth and Resources
Another important attempt to link commons and human rights, and to advance fuller dimensions of both, is a Universal Covenant Affirming a Human Right to Commons- and Rights-Based Governance of Earth’s Natural Wealth and Resources , as outlined in by international human rights scholar Burns H. Weston and commons activist David Bollier in their 2013 book, Green Governance: Ecological Survival, Human Rights and the Law of the Commons.  The Universal Covenant is a declaration for citizens, organizations and governments to affirm. It encapsulates many of the themes of Green Governance in calling for a legal framework for commons-based governance of large-scale common pool resources such as the atmosphere.
European Charter of the Commons
A failed (or at least dormant) effort to introduce the commons paradigm to European law deserves mention. In 2013, law scholar and charter organizer Ugo Mattei of International University College in Torino, and a number of organizations mounted an effort to secure an EU voter initiative for a European Charter of the Commons. , 
Pursued under the Lisbon Treaty Regulation No. 211/2011, the initiative sought to establish the legal status and protection of the commons within the European Union. The initiative was prompted by a wave of privatizations and demanded shifts of power from the centralized state and free market to local communities, and empowerment of bottom-up, local and direct democracy. The effort drew inspiration from legal scholar Bonaventura de Sousa Santos, who, writing in his book Law and Globalization from Below, created the term “subaltern cosmopolitan legality” to refer to “the plurality of efforts at counter-hegemonic globalization.”
Permanent People’s Tribunal Session on the Human Rights Impacts of Fracking
A similar effort to establish a new kind of “people’s law” – separate from the legality of the state, and asserting greater legitimacy – is the Permanent People’s Tribunal Session on the Human Rights Impacts of Fracking . Based in Rome, the Permanent Peoples’ Tribunal is an internationally recognized public opinion tribunal functioning independently of state authorities that applies human rights law and policy to cases brought before it. The Tribunal had its origins with the Bertrand Russell-Jean Paul Sartre Vietnam War Crimes Tribunal in 1967, and hears cases in which prima facie evidence suggests abridgement of basic rights of ordinary people.
European Juridical Strategies for the Commons
Many activists and legal scholars are interested in expanding existing bodies of law to take cognizance of the commons. One focused effort in this regard was a one-day conference held in Paris in April 2015 on “European juridical strategies for the commons.”  It was attended by an illustrious group of legal scholars, activists, NGOs and others, to explore practical ways to move this agenda forward.
One strain of legal innovation has been to give legal recognition to Nature itself, or “Nature’s rights” – an idea that Ecuador and Bolivia have recognized in their constitutions, inspired in part by indigenous peoples in those nations. The idea of “Pachamama” or “Earth Jurisprudence” has spread beyond those nations, and Evo Morales, President of Bolivia, has urged the UN to recognize the “Inherent Rights of Mother Earth” – and to move away from the anthropocentric rights paradigm of environmental protection.
While these legal ideas may or may not become incorporated into conventional jurisprudence, they are having an effect on people’s thinking and behavior. In New Zealand, after many clashes between Maori and the state over ecological governance, “some non-Maori New Zealanders now speak of themselves as kai-tiaki or guardians for rivers, beaches and endangered species.” In a few cases, such as a settlement with an indigenous Whanganui iwi (kin group), the Crown recognized the group’s iconic river as a legal being. These ideas are not being driven by law or politics alone, but by a deeper recognition (which manifests in politics and law) that the prevailing “cosmo-logic” of western capitalism, which clings to dichotomies of subject and object, mind and matter, culture and nature, is falling apart as the relational thinking inherent to commons comes to the fore.
The Vision of a “Partner State”
Michel Bauwens of the P2P Foundation has been advancing the idea of the state acting as a “”  in support of commons and peer production. (A prime example is the Bologna Regulation.) In a world with a flourishing commons sector, the role of the state changes. As Bauwens puts it, “On the one hand, market competition will be balanced by co-operation, the invisible hand will be combined with a visible handshake. On the other hand, the state is no longer the sovereign authority. It becomes just one participant among others in the pluralistic guidance system and contributes its own distinctive resources to the negotiation process. As the range of networks, partnerships, and other models of economic and political governance expand, official apparatuses remain at best first among equals.The state’s involvement would become less hierarchical, less centralised, and less directive in character. The exchange of information and moral suasion become key sources of legitimation and the state’s influence depends as much on its role as a prime source and mediator of collective intelligence as on its command over economic resources or legitimate coercion .”  The idea of the partner state is intriguing, but will require further theoretical elaboration and investigations in how it might be politically actualized.