What's in a Concept? Global Public Goods, International Law, and Legitimacy (original) (raw)
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Introduction The concept of global public goods (GPGs) becomes indispensible to the study of a rapidly globalizing world witnessing large-scale cross-border spillovers of goods and services not just for which there exist markets, but also for which there exist none. Markets and states are two of society's mechanisms for coordinating economic activity where each plays a role in providing different kinds of goods (Kaul et al., 2003). However, there are some kinds of goods and services, for instance, transnational pollution, global warming, world peace, scientific knowledge, financial stability, the international trading system, development, health, inter alia, for which it is extremely difficult to conceive of a market. Since there is no efficient market for these kinds of goods and services, it is not easy to ensure that they are supplied in optimum quantities, i.e: they are neither oversupplied (as in the case of pollution and global warming) nor undersupplied (as in the case of world peace or knowledge or financial stability). In the absence of markets, it is usually the state that is responsible for the provision of these kinds of goods called public goods. However, the aforementioned goods have an additional international dimension to them which precludes them from being treated like national or local public goods and require them to be studies separately under the head of global public goods. Though global public goods bear some of the intrinsic characteristics of public goods in general, they contain a set of unique implications and challenges that cannot be addressed by looking simply at a theory of public goods. Simply put, the difference between the provision of public goods and global public goods is driven by the fact that at the international level there is no real equivalent to the national institution of the state (Kaul et al., 2003) or of government or any system of taxation or collection of user fees. Unlike public goods, the provision of global public goods cannot be ensured by the action of individual states, but usually requires the concerted action of more than one actor in the global community, which is also increasingly including a gamut of non-state, alongside state actors (Kaul, 2001). Challenging the erstwhile clear cut distinction that private goods are provided by markets and public goods by the state, a number of new actors are emerging and facilitating the provision of global public goods, like civil society, international NGOs, private businesses, and epistemic communities (Edwards and Zadek, 2003). Thus the concept of public goods has now been nuanced with a multi-layered, multi-level as well as multi-actor dimension. As Desai (2004) rightly states, the debate on global public goods cannot simply build on the existing theory of public goods and requires a major rethinking of several notions. Rethinking the concept of public goods along these lines has a number of implications for the theory of public goods and opens up an important new research agenda. There is also greater consensus that there should be some coordination mechanism in activities where markets are likely to undersupply these public goods. The problem of under-provision of global public goods makes it even more important for scholars of contemporary global politics to study alternative non-market mechanisms which can lead to their proper supply. Some of these proposed coordination mechanisms include enhancing international cooperation by building international institutions, regimes and organizations for furthering the provision of global public goods. Thus, as shall be discussed in detail, the idea of international cooperation in an anarchical society of states is as central to the concept of GPG as is the notion of globalization. However, the basic logic behind under-provision of GPG remains the same as that of public goods in general. Thus, before going on to study global public goods it is important to be familiar with the concept of public goods in general.
Global Public Goods and Democracy in International Legal Scholarship
Cambridge International Law Journal, 2016
Over the last decade, global public goods (GPGs) have been at the centre of the policy discourse of prominent international organisations, States, and non-government organisations (NGOs) alike. The concept emerged in 1999, in a seminal book sponsored by the United Nations Development Programme (UNDP), and finds its origins in economic theory. The economic literature defines public goods as non-rival, since anyone can benefit from them without diminishing the quantity available to other consumers, and non-excludable, as no one can realistically be excluded from their consumption. Nowadays, an increasing number of public goods transcend national boundaries. For instance: climate change mitigation, the eradication of infectious diseases, the fight against corruption, or the protection of the ozone layer are all seen as GPGs. But despite its topicality, the concept has attracted little attention from legal scholars around the globe. Not only this, but among the few authors that actually engage with the topic, the majority focus on issues related to the provision of GPGs, while the question of what goods should be publicly provided in the first place, as well as the decision-making process underlying such a determination, has been left largely unexplored. It is with respect to this specific issue that we wish to contribute to the debate. In our view, the definition of GPGs is a matter of policy choice, as it goes beyond economic, value-free considerations. Therefore, it cannot lie beyond the control of democratic structures. GPGs cannot be defined in a democratic and legal vacuum-a legitimate and inclusive decision-making process is required. In this article, we endeavour to explain how international legal scholarship, in particular the global administrative law and global constitutionalism projects, can contribute to integrating democratic standards in the process of defining GPGs.
Public Goods, Common Pool Resources, and International Law
American Journal of International Law, 2017
The concept of public goods is often operationalized in the literature as anything that demands some form of international cooperation. While this may be politically useful in generating international cooperation, it is analytically problematic for designing international law with the purpose of enhancing international cooperation. Many of the issues characterized as public goods are in fact common pool resources, which pose distinct issues for international cooperation and demand different legal architectures than public goods for effective international cooperation.
To Whom It May Concern: International Human Rights Law and Global Public Goods
Public goods and human rights are sometimes treated as intimately related, if not interchangeable, strategies to address matters of common global concern. The aim of the present contribution is to disentangle the two notions to shed some critical light on their respective potential to attend to contemporary problems of globalization. I distinguish the standard economic approach to public goods as a supposedly value-neutral technique to coordinate economic activity between states and markets from a political conception of human rights law that empowers individuals to partake in the definition of the public good. On this basis, I contend that framing global public goods and universal human rights in terms of interests and values that ‘we all’ hold in common tends to conceal or evade conflicts about their proper interpretation and implementation. This raises important normative questions with regard to the political and legal accountability of global ordering in both domains. The public goods approach has responded to this problem through extending the scope of political jurisdiction over public goods to encompass all those ‘affected’ by their costs and benefits. This finds its counterpart in attempts in the human rights debate to legally account for the global human rights impacts of public goods through extending human rights jurisdiction beyond state territory. By way of conclusion I contend that both approaches are indicative of a ‘horizontal’ transformation of statehood under conditions of globalization aimed at recovering the public good beyond the international order of states.
International Adjudication of Global Public Goods: The Intersection of Substance and Procedure
European Journal of International Law, 2012
This article, based on the non-controversial proposition that the way and degree in which international courts can contribute to the protection of a public good depends, in part, on the procedural law of such courts, sets out to expose the plurality of connections between procedure and substance. Procedures can further the substantive values of public goods but can also serve interests of their own and can even work against such substantive values. This article articulates the normative choices that courts inevitably have to make and reflects on the question of whether, and to what extent, the shaping of these connections is properly part of the international judicial function, taking into account problems of legitimacy that may arise when judge-made procedures undo state-made substantive law.
Unilateral Jurisdiction to Provide Global Public Goods: A Republican Account
Brooklyn Journal of International Law, 2018
Failures of international cooperation with regard to protecting the environment, regulating cross-border competition, and preventing terrorism have sometimes lead states to enact unilateral measures with extraterritorial effect. A common trend among international legal scholars defending these measures is to employ the concept of ‘global public goods,’ understood as desirable, utility-advancing things that tend, for various reasons, to be undersupplied by states acting separately. On this view, unilateral measures are justified on grounds that they address ‘harms’ to ‘interests’ that cannot be contained within individual states, or because they advance supposedly universal ‘values.’ Drawing from the ‘republican’ legal and political philosophy of Immanuel Kant, as well as the Roman private law from which Kant derives inspiration, this article argues that states may do anything necessary to provide public goods for their subjects, including exercising jurisdiction over persons extraterritorially. Moreover, they need not demonstrate ‘harm’ or ‘loss,’ because global public ‘bads’ are akin not to damage-based wrongs like negligence, but to wrongs like battery, trespass, and defamation, where harm is irrelevant. The starting premise is that the dignity of ‘persons’ lies not in the satisfaction of interests, but in freedom from treatment as a ‘thing’ at the mercy of another. This gives rise to three kinds of fundamentally private legal relations—tortious, contractual, and fiduciary—all unrealizable as of right without a particular configuration of political institutions known as the ‘state.’ States are themselves persons, and are ‘public’ fiduciaries having no purpose other than to guarantee subjects their dignity. ‘Public goods’ are those things must be provided and kept free of private ownership in order for the members of a political community to be free equals. As public fiduciaries, states have both obligations and rights to provide public goods, which must not be frustrated by the arbitrary non-cooperation by other persons, state or nonstate.
Transnational public goods: strategies and institutions
European Journal of Political Economy, 2001
Weaker-link and better-shot public goods are prevalent in examples of transnational collective action. Instances include dike building, atmospheric monitoring, cyberspace virus control, deforestation, disease control, and peacekeeping. This paper analyzes essential game-theoretic features of such public goods, which allow correlated strategies to provide Pareto-improving alternatives to Nash equilibria. Correlation is justified as providing a formal structure for the veil of uncertainty and political leadership. Weaker-link and better-shot public goods differ in terms of the appropriate institutional design. We also consider the consequences of diminishing returns on game forms and institutional prescriptions.