6 - The Public Trust as Transnational Law

Summary

What would it mean to say that the public trust doctrine is transnational law? This chapter addresses that question. My main conclusion is that the public trust doctrine is a transnational legal norm but not a transnational legal order. To unpack this claim, I apply concepts from Gregory Shaffer and Terence Halliday’s theory of transnational legal orders (TLOs). My claim is that the public trust doctrine is not a transnational legal order in the way that, say, the rule of law is a transnational legal order. In using the public trust doctrine as a case study of the transnational dimensions of public fiduciary law, this chapter aims to introduce an empirically focused socio-legal approach into conversations about public fiduciary theory. Some scholars have made the conceptual claim that public fiduciary law is transnational in scope. In response, this chapter suggests the need for rigorous analysis of normative settlement (or lack thereof) around public fiduciary norms. To the extent that public fiduciary theory aims to reform transnational law, it must confront the challenges of achieving normative settlement in legal practice. The public trust doctrine’s transnational career is a case study in these challenges.

6.1 Introduction

The public trust doctrine has been called “the law’s DNA.”¹ The doctrine, it is argued, is rooted in natural law. Its ancient principle – that some waterways are not to be put under private ownership – is one that nearly all peoples have recognized nearly all the time.² Its modern iteration holds that the state is a trustee for natural resources more broadly. Today’s public trust doctrine, some say, “is perhaps the only principle … that can provide a common global platform” for the rule of environmental law in an era of political stagnation and environmental degradation.³ In short, the public trust doctrine “has become internationalized,”⁴ and not a moment too soon.⁵

What, precisely, would it mean to say that the public trust doctrine is internationalized? This chapter addresses that question, which has, as far as I can tell, at least five answers worth examining. My main conclusion is that the public trust doctrine is a transnational legal norm but not a transnational legal order. This thesis will, I recognize, require unpacking. To do that, I apply concepts from Gregory Shaffer and Terence Halliday’s theory of transnational legal orders (TLOs).⁶ My claim is about the processes and degree of transnational normative settlement around the public trust norm.⁷ In a nutshell, the claim is that the public trust doctrine is not a transnational legal order in the way that, say, the rule of law is a transnational legal order.⁸ Put this simply, the claim may seem obvious to anyone familiar with the advocacy of civil society organizations, lawyers, and academics to get governments to embrace the public trust doctrine as an ordering principle for environmental protection and natural resource management.⁹ But my thesis yields nonobvious insights into not only the public trust doctrine but also public fiduciary law.

In using the public trust doctrine as a case study of the transnational dimensions of public fiduciary law, this chapter aims to introduce an empirically focused socio-legal approach into conversations about public fiduciary theory. To date, public fiduciary scholarship has focused upon the juridical properties of fiduciary relationships and the normative values of fiduciary law. Some scholars have made the conceptual claim that public fiduciary law is transnational in scope.¹⁰ In responding to that sort of claim, this chapter suggests the need for rigorous analysis of normative settlement (or lack thereof) around public fiduciary norms. To the extent that public fiduciary theory “outlines an agenda for reform” of transnational law,¹¹ it must confront the challenges of achieving normative settlement in legal practice. The public trust doctrine’s transnational career, so to speak, is a case study in these challenges. And this case study may offer lessons for scholars studying the framing, development, and institutionalization of TLOs, particularly those that draw upon domestic legal norms.

6.2 The Public Trust as a Case Study

The public trust doctrine is a particularly useful case study of transnational normative settlement of public fiduciary norms. Public fiduciary scholars have pointed to the public trust doctrine as an example of the norm of fiduciary government within domestic legal systems.¹² Increasingly, legal actors – particularly, NGOs and legal academics – have framed the problem of transnational environmental regulation in terms of the public trust.¹³

The roots of the modern public trust doctrine are often traced to Roman law through the English common law, although the doctrine has a more limited scope in England today than it does in other common law countries, particularly India and the United States.¹⁴ Contemporary interest in the doctrine owes much to the influence of American legal scholar Joseph Sax, who argued in 1970 that the doctrine may serve as a “tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems.”¹⁵ In particular, Sax argued that the doctrine authorized courts to “promote equality of political power for a disorganized and diffuse majority” against “self-interested and powerful minorities [who] often have an undue influence” on policymaking.¹⁶

It did not take long for Sax’s vision to influence international lawyers. In 1976, Ved Nanda and William K. Ris argued that the public trust doctrine was a “viable approach to international environmental protection.”¹⁷ More recently, Peter Sand has argued that the public trust can be scaled up from the national to the global level.¹⁸ Mary Christina Wood and Gordon Levitt have described the doctrine as a “macro approach” to natural resource management, suggesting that the “doctrine is perhaps the only principle … that can provide a common global platform of fiduciary duty enforceable by domestic courts.”¹⁹ Raphael D. Sagarin and Mary Turnipseed ask, “[a]s the [doctrine] increasingly manifests in international and comparative contexts, will it … evolve into a central tool for addressing complex global environmental challenges?”²⁰

In this view, which has gained prominence in response to national governments’ failures to address the threat of climate change, there is a problem of politics that traverses all areas of environmental lawmaking and natural resource management and exists at all levels of governance, from the local to the national and the transnational. The problem is one of political dysfunction and myopia.²¹ The public trust is a legal solution to this problem.²²

Thus understood, the public trust doctrine addresses the type of problem that public fiduciary theory aims to address more broadly. Public fiduciary theory holds that public officials generally owe duties of loyalty and care to those subject to their authority, just as a private trustee owes fiduciary duties to her beneficiaries.²³ Thus, public fiduciary theory has aimed to identify the normative entailments of public authority.²⁴ For the normatively oriented scholar, the appearance of trust (or trust-like)²⁵ norms in multiple legal systems across space and time provides some evidence that trust is a constitutive legal concept, and a normatively attractive one at that. This is why discussions of public fiduciary theory may begin by citing examples from classical Greece, the Roman Republic, post-Restoration England, sixteenth-century imperial Spain, the seventeenth-century Dutch Empire, and the League of Nations, among others.²⁶ To the extent that public fiduciary theorists have suggested that fiduciary norms are settled within domestic or international law,²⁷ critics have questioned these suggestions.²⁸

For the most part, however, the question of normative settlement has been neglected with public fiduciary theory. Normative settlement concerns the process by which legal norms become taken for granted by legal actors, particularly those tasked with implementing and applying law.²⁹ Focusing upon normative settlement “can emancipate scholars and practitioners alike from the tenacious premise that a coherent and dominant set of transnational legal norms amounts to anything more than just transnational norms.”³⁰

TLO theory provides a framework for assessing transnational normative settlement. Halliday and Shaffer define a TLO as “a collection of formalized legal norms and associated organizations and actors that authoritatively order the understanding and practice of law across national jurisdictions.”³¹ The aim of a TLO is “to produce order in a domain of social activity or an issue area that relevant actors have construed as a ‘problem’ of some sort.”³² A legal order is “transnational insofar as it orders social relationships that transcend the nation-state.”³³ And an order “is legal insofar as it [1] has legal form, [2] is produced by or in connection with a transnational body or network, and [3] is directed toward or indirectly engages national legal bodies.”³⁴

A transnational norm does not itself constitute a TLO. The existence of a legal norm on the transnational plane does not by itself show normative settlement at national and local levels. When it comes to settlement, the “ultimate test” of the existence of a fully institutionalized TLO is whether actors at the transnational, national, and local levels share “a set of legal norms that they simply take for granted as being appropriate in a particular situation.”³⁵ A TLO, moreover, may be more or less aligned with the problem (or “issue area”) that it aims to address.³⁶

The upshot is that there is more than one sense in which the public trust doctrine, or, more generally, public fiduciary norms, may (or may not) “become internationalized.”³⁷ Some scholars, for example, have focused upon identifying public trust norms in domestic laws and judicial opinions.³⁸ Others focus instead upon international organizations.³⁹ Still others may point to both domestic and international law, often without theorizing the relationship between the two. Joseph Orangias’s recent work makes an important advance through a process-oriented approach that distinguishes between “internalisation,” defined as the spread of public trust norms across national borders, and “transnationalisation,” defined as the application of public trust norms to transnational management of resources.⁴⁰

To preview the analysis that follows in the next two parts of this chapter, there are at least five ways in which we might say that the public trust doctrine is “transnational” or “international.” First, the point might be simply that the public trust doctrine or its functional equivalent appears in multiple legal systems. This comparative law point does not necessarily tell us much, if anything, about transnational processes of normative framing, development, and settlement. Second, we might assess the degree of convergence on the public trust framing across multiple domestic legal systems. That is, we might be interested in whether domestic legal actors themselves frame problems in terms of the public trust. The point here is not simply that there are functional equivalents to the public trust doctrine. Rather, the point is that domestic legal actors, such as courts (but not only courts), have adopted public trust norms to frame and address problems of environmental policymaking and natural resource management. Third, we might go beyond domestic law to say that the public trust doctrine is a transnational norm in the sense that civil society, acting in ways that cross the national borders, employs it as a frame to construct and respond to social problems. The public trust doctrine is a transnational norm both in the sense that we see some convergence upon it across domestic legal system and the sense that civil society has mobilized it as a frame for transnational advocacy. Fourth, we might analyze whether and to what extent the public trust doctrine has been institutionalized in a particular problem area through a TLO. There are “micro-TLOs” for specific resource management problems that incorporate public trust norms.⁴¹ Studying the successes and failures of these TLOs sheds light upon the obstacles to normative settlement around the public trust doctrine. Finally, we might ask whether the public trust doctrine has become a “meta-TLO” that cuts across multiple legal orders and generally frames legal responses to problems of environmental law and resource management.⁴² There have been calls for the creation of a meta-TLO based in public trust norms. But no such meta-TLO exists.

6.3 The Public Trust as a Transnational Norm

All countries face the problem of political dysfunction in environmental policymaking and natural resource management. The public trust doctrine provides a legal solution by authorizing courts to review policymaking for compliance with fiduciary norms. To the extent that multiple legal systems have converged on this solution, especially as the result of transnational processes such as horizontal judicial dialogue and civil society advocacy, the public trust doctrine is a transnational norm.⁴³

In recent years, scholars of environmental law have argued that the public trust doctrine is transnational in this sense. Michael Blumm and Rachel Guthrie argue that the doctrine has been adopted not only in the United States, where it has a long history, but also in eleven other domestic legal systems, including India, where it has a broader scope than in US law.⁴⁴ In each country, they argue, public trust norms have emerged as a solution to a similar problem of environmental policymaking and natural resource management. Sand has similarly argued that the public trust doctrine is emerging as a common legal solution to the problem of politics in environmental law.⁴⁵ As Wood summarizes the scholarship, there has been convergence across multiple legal systems on the general norm that there “is a public property right” in some natural resources “and corollary sovereign obligation” to manage those resources for the benefit of the public.⁴⁶

There are transnational dimensions to the modern convergence around this norm. For one, the cases reveal a “transnational judicial dialogue” concerning the public trust.⁴⁷ In M. C. Mehta v. Kamal Nath, for example, the Supreme Court of India discussed modern US public trust law and Professor Sax’s article at great length before declaring the doctrine to be “the law of the land.”⁴⁸ Recent public trust litigation concerning climate change, much of it brought or at least supported by the Children’s Trust, a US-based NGO, has aimed to foster this sort of transnational dialogue.⁴⁹ International governmental organizations have also lent some support to the transnational dialogue concerning the public trust. In its first-ever Global Report on the Environmental Rule of Law, the United Nations Environment Programme (UNEP) discussed a decision of the Lahore High Court in Pakistan as an example of an effective rights-based approach to environmental protection.⁵⁰ In addition, the UNEP’s compendium of judicial decisions has included and identified public trust cases from various jurisdictions.⁵¹

To the extent that the public trust doctrine’s origins are in Roman law, it is unsurprising to see public trust norms in multiple modern legal systems. Moreover, given British imperialism in the nineteenth and early twentieth centuries, and American hegemony in the twentieth and twenty-first centuries, we might expect to see a doctrine of Anglo-American common law appear around the globe, whether we call that process “transplantation”⁵² or something else. But existing scholarship risks overstating the degree of convergence by understating the complexity of fiduciary law.

In analyzing the public trust doctrine as a transnational norm, it is important to distinguish between the existence of functional equivalents and convergence upon the public trust doctrine. A comparativist may interpret a law as responding to a social problem.⁵³ From there, “[t]he comparativist will look for a law in a different legal system that can be interpreted to perform a similar function.”⁵⁴ The presumed similarity between functional equivalents is limited. Two legal institutions from different systems may be “similar in one regard (namely in one of the functions they fulfill) while they are (or at least may be) different in all other regards – not only in their doctrinal formulations and concrete modes of resolving a problem, but also in the other functions or dysfunctions they may have besides the one on which the comparatist focuses.”⁵⁵ Thus, a comparative law perspective, if anything, may be important in bringing our attention to the differences between legal norms and institutions.⁵⁶

When it comes to the public trust doctrine, the differences between legal systems may begin with the definition of the general norm. Is the function of the public trust doctrine to address abuses of trust? Or, is the function to recognize public rights? Within common law countries, the public trust doctrine has allocated the ownership of some resources into public rather than private hands.⁵⁷ There are, moreover, similarities between this aspect of the public trust doctrine and principles in some civil law countries, including the concepts of Sozialpflichtigkeit and öffentliche Sachen in German law, not to mention the concepts of domaine public and droit de garde in French law,⁵⁸ as well as concepts within Spanish law, Mexican law,⁵⁹ Ecuadorian law, and Brazilian law.⁶⁰ In particular, the notion that public rights to navigable waterways limit their privatization enjoys widespread acceptance.⁶¹

But treating the “public trust” and “public rights” as synonyms may obscure more than it reveals. It makes a difference whether a legal norm’s aim is to address problems of political dysfunction – that is, whether one’s concern is to constrain the political branches from pursuing private interests and thus abusing the public trust reposed in them. Empowering a national ministry to protect public rights to particular natural resources, as various countries have done, is not the same as empowering the judicial branch to review the political branches’ decision-making for compliance with fiduciary norms.⁶²

As I have argued elsewhere, focusing upon an abstract “public trust” norm tells one little about the law on the books, much less the law in action. The state may be a trustee for natural resources, but what does that mean, and how are its duties implemented? Much of “the bite” of fiduciary law lies in implementation of the conduct and decision rules that specify the duties that the public trust norm entails.⁶³ Across legal systems, there may be significant variation in the relationship between these conduct and decision rules – particularly where, as in the case of fiduciary law, the two types of rules “often diverge.”⁶⁴ And to the extent that fiduciary law rests upon “informal social norms” for its implementation,⁶⁵ comparative legal analysis should highlight variations in such norms and understandings of social roles.

There is significant variation among (and within) jurisdictions in the conduct and decision rules that implement explicit public trust norms. Even within the United States, which, along with India, has one of the most well-developed public trust doctrines, there is considerable variation among the various subnational governments as to which types of resources the public trust covers and what legally enforceable duties are imposed upon public trustees. Some US states hew closely to the historical scope of the doctrine, which was limited to a prohibition on the privatization of watercourses, while others apply the doctrine more broadly to reach resources other than navigable waterways and to impose procedural and substantive obligations on government actors.⁶⁶ There is also considerable variation among common law countries. Though often cited as the source of the public trust doctrine, including in India and the United States, English common law recognizes a much narrower version of the doctrine.⁶⁷ The public trust norm has “had little influence”⁶⁸ in Australia and has played a more limited role in Canada than some comparative analyses suggest.⁶⁹

There is also variation in the public trust (or trust-like) conduct and decision rules across civil law countries and between civil law and common law countries. Indeed, it is a fair question whether the doctrine’s “methodology and terminology is essentially derived from the Anglo-American law of charitable trusts.”⁷⁰ Sand, for example, compares the public trust doctrine in India with the role of the Nature Conservation Board in Sweden and the Environment Ministry in Italy.⁷¹ Here, the differences among the legal systems are instructive. In India, the doctrine imposes robust constitutional duties on government actors regarding a wide range of environmental resources and directs courts to review their actions closely for abuse of trust.⁷² In Sweden, the Nature Conservation Board plays an “Ombudsman” role for the protection of natural resources,⁷³ while the Environment Ministry in Italy may sue on behalf of the public for damage to the environment.⁷⁴ In the Swedish and Italian examples, the Nature Conservation Board and the Environment Ministry involve governmental representation of the public in confronting threats to the environment, while the Indian public trust doctrine is as much, if not more, concerned with the threats that the government may pose to the environment. This is a familiar distinction from a fiduciary law perspective; as I have argued elsewhere, the public trust norm may play the role of empowering government to act or the role of constraining government action.⁷⁵

Finally, there is significant variation in the institutional frameworks for implementing the doctrine and the degree of implementation at the local level. Consider first the role that institutions play. Within US law, the modern public trust doctrine conjures images of private citizens and NGOs litigating on behalf of the public and requesting judicial review of actions taken by the political branches. This image no doubt reflects the important role that impact litigation plays in the politics of the United States. Thus, the public trust doctrine in US law is as much an institutional and cultural choice for litigation to solve social problems, as it is a body of conduct and decision rules. That may also be the case in India, which has a mechanism for direct petition to the Supreme Court in cases of national significance, including the canonical public trust cases in Indian law.⁷⁶ The doctrine does not play the same institutional role elsewhere, as we have already seen.

Implementation of the doctrine at the local level varies as well across and within jurisdictions. Within the United States, where the doctrine is well developed, there is such variation. In the United States, for example, courts have generally not applied the public trust doctrine to the national political branches, which is practically significant insofar as the national government owns and manages a great deal of land in the American West, as much as 90 percent in some states.⁷⁷ There is, to cite another example, no case law in Nigeria on the scope of the public trust doctrine and the duties it entails, though scholars have cited Nigerian law as implicitly recognizing the public trust norm.⁷⁸ And although South Africa has expressly incorporated the public trust into its law, “in the 21 years since the promulgation of South Africa’s constitution and environmental legislation, and there has been little academic and legal recognition of the public trust provisions.”⁷⁹

There has been some convergence around public trust principles across domestic legal systems, particularly around the notion that some resources (such as watercourses) are subject to public rights. But once we move beyond the general public trust norm to consider conduct and decision rules, institutional design, and local implementation, there is significant variation across national legal systems.

6.4 The Public Trust as a Transnational Legal Order

The existence of a transnational norm does not by itself show the existence of a TLO. Put simply, norms may cross national boundaries without settling at the transnational, national, and local levels in such a way as to impact behavior at all these levels. That is the “ultimate test” of a TLO.⁸⁰

The Ramsar Convention⁸¹ on wetlands conservation provides an intuitive and important example of the distinction between a transnational norm and a settled TLO. The Ramsar Convention is about the heartland of the public trust doctrine: wetlands. If anything, then, we would expect to see significant normative settlement around implementation of the Ramsar Convention norms. What we see, however, is a transnational norm that has not settled to shape behavior at the national and local levels. The Convention is one of the first environmental law treaties with a “global scope,”⁸² and has “near-universal membership (171 parties [as of March 2021]).”⁸³ The contracting parties have agreed, among other things, to designate at least one wetland within their borders for conservation, to promote “as far as possible, the wise use of wetlands in their territory,” to monitor the state of wetlands, and to consult and coordinate among themselves regarding wetlands protection.⁸⁴ The Ramsar system includes Advisory Missions tasked with monitoring and reporting on noncompliance.⁸⁵ Yet the data on wetlands protection tells a sobering story: roughly 35 percent of wetlands worldwide have been “lost over the Convention’s life.”⁸⁶

The Convention provides not only evidence of a transnational norm – conservation and “wise use” of wetlands – that is at the core of the public trust doctrine, but also evidence that this transnational public trust norm has not become a TLO. The Convention’s “very general” and “somewhat vague” norms have not induced widespread practices of wetlands stewardship.⁸⁷ Its reliance upon listing and reporting and “shaming states into better protection” has had limited effect.⁸⁸ That is not to suggest that the Convention has no effect. Political actors within a country, as well as transnational NGOs, may use the Convention to frame their advocacy as against “competing domestic concerns.”⁸⁹ Even in those cases where the Convention provides “overarching concepts” for domestic advocacy and negotiation, it may still “play[] a limited role” in actually ordering behavior.⁹⁰ What we do not see is transnational normative settlement at the national and local levels. Instead, “the impact of the Ramsar Convention on national wetlands protection policies has been negligible.”⁹¹

The Ramsar Convention’s failure speaks to the challenge of constituting a TLO based upon fiduciary law. Of course, this failure no doubt has something to do with the Convention’s particular features, such as its choice of voluntary compliance mechanisms. But it also has something to do with the opacity of fiduciary norms. One of the often-observed features of fiduciary law is its moralizing rhetoric. Fiduciary law “embraces abstract moral injunctions of loyalty and care.”⁹² At a high level of generality, there may be normative agreement about fiduciary duties, which may explain why there is near-universal agreement to the “wise use” principle of the Ramsar Convention. But when it comes to the legal ordering of behavior, the challenge is to institutionalize and implement fiduciary law’s moral injunctions. That the Ramsar Convention has failed to do.

In understanding the problem of normative settlement, we can usefully contrast the Ramsar Convention with another contemporaneous TLO that incorporates public trust norms: the 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage.⁹³ The initial draft of the Convention, submitted to UNESCO by the head of the United States Council on Environmental Quality (US CEQ), a division of the Executive Office of the President, was titled the “World Heritage Trust Convention.”⁹⁴ The Nixon White House had proposed the creation of a “world heritage trust” the prior year,⁹⁵ as had a 1965 White House Conference on International Cooperation.⁹⁶ US-based environmental NGOs, such as the Sierra Club, repeated these proposals.⁹⁷ Thus, the Convention emerged in no small part from efforts by the United States to upload the public trust norm to the transnational domain.

The Convention can be understood as creating a “transnational public trusteeship.”⁹⁸ The Convention provides for a process for a state to propose that the World Heritage Committee designate a world heritage site within the state’s borders,⁹⁹ requires an accounting from host countries of the steps they have taken to conserve these sites, and has been implemented at the transnational level through the World Heritage Committee as well as international tribunals and at the local level through private enforcement in courts.¹⁰⁰ This regime, which has 194 state parties,¹⁰¹ is a “highly concordant TLO.”¹⁰² It has a high degree of normative settlement at the transnational level (i.e., the World Heritage Committee and international tribunals), the national level (i.e., the state parties, which identify sites for designation and enact implementing legislation),¹⁰³ and the local level (i.e., through judicial enforcement and advocacy by civil society organizations, which may include appeals to local, national, and international media, as well as efforts by private corporations to conserve heritage sites).¹⁰⁴ Such a regime is not a private trust,¹⁰⁵ but the World Heritage TLO resembles the public trust doctrine insofar as it involves a state’s obligations to manage a specific res for the benefit of the public and to account for that management.

The United Nations Convention on the Law of the Sea (UNCLOS)¹⁰⁶ is another example of a TLO that can be understood in public trust terms. This Convention addresses a range of problems arising from the “freedom-of-the-seas” doctrine, which held that the seas and offshore resources were generally open to all. Article 136 of UNCLOS proclaims that the deep seabed and “its resources are the common heritage of mankind.”¹⁰⁷ Much like the traditional common law public trust doctrine, the Convention proscribes alienation of these common resources. It further imposes duties upon states to protect such resources and specifies that activities in the area shall be “for the benefit of mankind as whole.”¹⁰⁸ The Convention established the International Seabed Authority (ISBA) to manage the extraction of mineral resources from the international seabed.¹⁰⁹ Commentators have described this regime in terms of a public trust, with the ISBA acting as trustee of a specific res (namely, submarine mineral resources) for the global public.¹¹⁰ With 167 state parties, the UNCLOS regime is a relatively settled one, though, notably, the United States has signed but not ratified the Convention, which undermines implementation of some of its provisions.¹¹¹

From one vantage, UNCLOS and the World Heritage Convention may be understood as TLOs within separate issues spaces. UNCLOS addresses problems of resource management on and underneath the seas, while the World Heritage Convention addresses preservation of culturally and historically significant sites. They may thus be seen as responding to different social problems and thus as having little to do with one another.

From another vantage, however, UNCLOS and the World Heritage Convention may be understood as micro-TLOs that address different aspects of the same problem. Daniel Bodansky has developed the concept of a “micro-TLO” in the context of assessing transnational legal responses to climate change.¹¹² There is no encompassing TLO that addresses climate change, Bodansky argues, but there are “micro-TLOs … with more limited legal or geographical scope.”¹¹³ Such micro-TLOs may provide order within “one or another part of the issue ‘space.’”¹¹⁴ For instance, within the climate change issue space, there appears to be an emerging micro-TLO for emissions from maritime transport.¹¹⁵

UNCLOS and the World Heritage Convention can be described as micro-TLOs insofar as they both are transnational legal orderings that address the general problem of resource management and environmental protection. Both TLOs respond to the issue of ensuring that governments manage particular shared resources in the public interest. And both address that issue by imposing trust (or at least trust-like) duties.

From the perspective of TLO theory, whether to view UNCLOS and the World Heritage Convention as micro-TLOs depends upon how relevant social actors construct the problem each addresses. If, pace Bodansky, one is concerned with the problem of climate change, UNCLOS and the World Heritage Convention might be seen as micro-TLOs that address different aspects of that problem by incorporating public trust principles into international law.¹¹⁶ To the extent that one thinks of the problem in terms of global environmental regulation and resource management, it makes sense to view the two regimes as micro-TLOs that address different aspects of a common problem. This possibility suggests a more ambitious role for the public trust in transnational law.

In this more encompassing sense, the public trust doctrine might be seen as a “meta-TLO” – that is, a frame for the rule of (environmental) law. Jothie Rajah has developed the concept of a “meta-TLO” to understand transnational rule of discourse, which “frames and contextualizes all efforts to manage and regulate law, legitimacy, and conceptions of legality in the sphere of the transnational.”¹¹⁷ The concept of a meta-TLO thus seeks to describe a TLO that serves as a frame or an “umbrella category” for other TLOs.¹¹⁸

Proponents of an encompassing public trust TLO have suggested that it may serve as a frame for environmental regulation and natural resource management, both domestic and transnational. Civil society organizations as well as legal academics have called for a meta-TLO based upon environmental trusteeship. As Klaus Bosselmann has described, for example, the Ecological Law and Governance Association, a “global network of lawyers and environmental activists,” has established the Earth Trusteeship Initiatives, which published the Hauge Principles for a Universal Declaration on Responsibilities for Human Rights and Earth Trusteeship.¹¹⁹ While the Hague Principles sweep more broadly than the public trust doctrine, as they state trusteeship obligations for all human beings, Bosselmann draws upon public fiduciary theory to make the legal argument for trusteeship as a meta-principle.¹²⁰

The public trust doctrine is not yet a meta-TLO. The most obvious example to prove this point is the failure of proposals to reconstitute the Trusteeship Council as a public trustee for the global environment. The Trusteeship Council was established pursuant to Chapter XIII of the Charter of the United Nations and tasked with monitoring “the political, economic, social, and educational advancement of the inhabitants of each trust territory” administered by UN members.¹²¹ In 1994, the Council was suspended once Palau, the last trust territory, became an independent nation-state.¹²² Several years later, UN Secretary-General Kofi Annan proposed a reconstitution of the Council with a new mandate: global environmental protection.¹²³ Ultimately, the proposal went nowhere. Instead, following the 2005 World Summit, the General Assembly proposed eliminating Chapter XIII of the Charter and with it the Trusteeship Council.¹²⁴ The Trusteeship Council, it concluded, “has no remaining functions.”¹²⁵

The failure of Secretary-General Annan’s proposal may not be surprising. The concept of trusteeship has a long and ignominious colonial history, as does the Trusteeship Council.¹²⁶ Moreover, refashioning the Council’s mandate to focus on environmental protection would require an amendment to the Charter, which is rare.¹²⁷

In imagining other possibilities for the emergence of a meta-TLO, it is worth focusing upon the interaction between international legal commitments and domestic litigation. Particularly interesting is the potential for interaction between the Paris Agreement and domestic litigation. The Paris Agreement itself can be understood in terms of a public trust norm; for example, the Agreement requires states to account for their nationally determined contributions (NDCs),¹²⁸ which might be analogized to a fiduciary’s duty to account. Scholars have begun to chart not only the increase in climate change suits in domestic courts since the Agreement’s adoption,¹²⁹ but also the “cross-level” interactions between the Paris Agreement and domestic climate change litigation.¹³⁰ Litigants use multiple frames for such litigation, including human rights frames, tort law frames, and the public trust doctrine.¹³¹

In domestic public trust litigation, advocates have characterized the public trust as a transcendent principle of sovereignty.¹³² A group of leading American legal scholars, for example, recently described the doctrine as an “inherent limit on sovereignty” in an amicus brief before the US Supreme Court.¹³³ Legal practitioners and NGOs have also pointed to this understanding of the public trust, while courts in multiple countries have expressly incorporated the public trust doctrine as a principle of natural law. The Indian Supreme Court, for example, recognized the doctrine as one “of the laws of nature [that] must … inform all of our social institutions.”¹³⁴ Similarly, the Supreme Court of the Philippines reasoned that the doctrine, which it incorporated into Filipino law, “may even be said to predate all governments and constitutions.”¹³⁵ The more recent Urgenda decision of the Hague District Court, which has garnered global attention, concluded that the state’s duty of care includes an obligation to adopt climate change mitigation measures, a holding that may be understood in public trust terms.¹³⁶

Public trust litigation in various countries occurs in connection with transnational organizations and networks. For example, the United Nations Environment Programme’s first Environmental Rule of Law Global Report pointed to public trust litigation in Pakistan as a case study of the potential for litigation to address climate change.¹³⁷ Echoing Wood’s characterization of the problem of environmental lawmaking today, the UN Report found that while there has been “a dramatic growth” of environmental laws and regulatory institutions, the rule of law is failing the global environment.¹³⁸ Instead of decisive regulatory action by political branches of government, there is widespread delay.¹³⁹ In the face of this delay, the UN Report proposed the adoption of rights-based approaches to environmental protection.¹⁴⁰ As an example, the Report pointed to Ashgar Leghari v. Federation of Pakistan, in which the Lahore High Court held that the Pakistani government’s delay in responding to climate change violated the constitutional rights of Pakistani citizens, including their rights under the public trust doctrine.¹⁴¹ Similarly, in 2017, the UN Environment Programme and the Sabin Center for Climate Change Law at Columbia University published a report on global climate change litigation that discussed the “relevance of the public trust doctrine to governments’ approaches to climate change mitigation and adaptation.”¹⁴²

Despite these connections with governance on a transnational level, it cannot be said that public trust litigation has led to the formation of a settled TLO. Much of the litigation is recent and ongoing. The reticence of some national courts to enforce public trust principles suggests that any emerging normative settlement may be fragile or at least limited in scope. The progression of the Juliana litigation in the United States is an example. In Juliana v. United States, the Children’s Trust, an NGO based in the United States that focuses upon bringing public trust litigation to force governments to take additional steps to address climate change, won a major victory when a US federal district court held that the federal government is a trustee of natural resources with fiduciary duties to current and future generations.¹⁴³ The trial court pointed to the natural law understanding of the doctrine, which it held that had been incorporated into US law through English common law.¹⁴⁴ But a federal appeals court reversed on jurisdictional grounds, holding that the US federal courts did not have authority “to order, design, supervise, or implement the plaintiffs’ requested remedial plan” in light of the “complex policy decisions entrusted, for better or worse, to the wisdom and discretion of the executive and legislative branches.”¹⁴⁵ Thus, in some jurisdictions, including the United States, in which the modern public trust doctrine was born, the future of public trust litigation as a response to transnational environmental problems is in doubt.

6.5 Conclusion

The flexibility of the trust concept invites us to frame a variety of legal relationships in fiduciary terms. But this same flexibility poses a challenge to a socio-legal analysis that seeks to understand the ways in which actors settle (or not) on a legal order to address those problems. From this perspective, which focuses upon normative settlement, the distinction between transnational norms and transnational legal orders matters.

This chapter aimed to clarify the ways in which we might think about the question, “has the public trust doctrine become internationalized?” It showed that public trust doctrines or their functional equivalents appear in multiple legal systems. But the existence of functional equivalents by itself is not evidence of transnational normative settlement. There has been some convergence among relevant actors (domestic courts, but not just courts, for instance) on the public trust framing of problems in environmental law and natural resource management. The degree of convergence is easily overstated, however. The convergence among domestic courts on public trust norms has occurred in part as a response to the advocacy of transnational civil society actors and organizations that have mobilized it as a framework. In so doing, they may point to examples of micro-TLOs that incorporate public trust principles to address specific resource management problems. They may also learn lessons from the failures of some transnational norms, such as the Ramsar Convention’s “wise use” norm for wetlands conservation, to settle into full-fledged TLOs. Whether domestic litigation strategies, shaped in light of international standards such as those in the Paris Agreement, can overcome the challenge of implementing open-ended standards of fiduciary responsibility and lead to the formation of a meta-TLO based upon the public trust remains to be seen.