International law and global public goods in a legal pluralist world

European Journal of International Law

Volumn 23, Issue 3, 2012, Pages 669-693

  Shaffer, Gregory ^a  

^a UNIVERSITY OF MINNESOTA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84867769474     PISSN: 09385428     EISSN: 14643596     Source Type: Journal    
DOI: 10.1093/ejil/chs036     Document Type: Article

References (93)

1. Barringer, 'Environmentalists, Though Winners in the Election, Warn Against Expecting Vast Changes', NY Times, 14 Nov. 2006, at A18 (quoting Senator James Inhofe).
2. See, e.g., the authors in the foundational UNDP projects on global public goods, in I. Kaul, I. Grunberg, and M.A. Stern (eds), Global Public Goods: International Cooperation in the 21st Century (1999); in I. Kaul, P. Concicao, K. Le Goulven, and R.U. Mendoza (eds), Providing Global Public Goods: Managing Globalization (2003).
3. Law was generally missing in the UNDP project.
4. See also the work of economists S. Barrett, Why Cooperate: The Incentive to Supply Global Public Goods (2007).
5. T. Sandler, Global Collective Action (2004).
6. W.D. Nordhaus, 'Paul. Samuelson and Global Public Goods', in Samuelsonian Economics and the Twentyfirst Century (2006).
7. See T.C. Halliday and B.G. Carruthers, Bankrupt: Global Lawmaking and Systemic Financial Crisis (2009).
8. Fidler and Gostin, 'The New International Health Regulations: An Historic Development for International Law and Public Health', 34 J L Medicine & Ethics (2006) 85, at 86 ('[t]he new IHR transform the international legal context in which states will exercise their public health sovereignty in the future. As examined below, the new IHR expand the scope of the IHR's application, incorporate international human rights principles, contain more demanding obligations for states parties to conduct surveillance and response, and establish important new powers for WHO').
9. The legal pluralist perspective certainly resonates, and I have been a part of that trend, both in the positive assessment of how international law works and in its normative evaluation.
10. See, e.g., Nicolaidis and Shaffer, 'Transnational Mutual Recognition Regimes: Governance without Global Government', 68 Law & Contemporary Problems (2005) 263.
11. Shaffer, 'Transnational Legal Process and State Change', Law and Social Inquiry (2012).
12. M. Delmas-Marty, Ordering Pluralism: A Conceptual Framework for Understanding the Transnational Legal World (2008), at 110 (while noting that Europe 'holds no monopoly' as a 'laboratory').
13. See also at 125-129 (noting the development of the human rights regime in Europe and its impact on the EU trade regime, constituting a 'school of democracies').
14. See N. Krisch, Beyond Constitutionalism: The Pluralist Structure of Postnational Law (2010).
15. M.A. Pollack and G.C. Shaffer, When Cooperation Fails: The International Law and Politics of Geneticall Modified Foods (2009), at 113-176.
16. Shaffer and Pollack, 'Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance', 93 Minnesota L Rev (2010) 706.
17. See, e.g., Abbott and Snidal, 'The Governance Triangle: Regulatory Standards Institutions and The Shadow of the State', in W. Mattli and N. Woods (eds), The Politics Of Global Regulation (2009).
18. F. Cafaggi, Private Regulation in European Private Law (2009) (EUI Working Paper RSCAS 2009/31), available at: http://papers.ssm.com/sol3/papers.cfm?abstract_id=1443948.
19. See R. Cornes and T. Sandler, The Theory of Externalities, Public Goods and Club Goods (1986).
20. Samuelson, 'Pure Theory of Public Expenditure and Taxation', in J. Margolis and H. Guitton (eds), Public Economics (1969).
21. Goods that are non-rival but excludable are often called 'club goods', and those that are non-excludable but rival are called 'common pool resources'.
22. Similarly, the concept of public goods was developed in the context of public expenditure and provided economic legitimacy for enhancing the size and role of the state.
23. R. Musgrave, The Theory of Public Finance (1959).
24. The Nautilus Institute also broadly defines 'global public goods' as 'goods with benefits that extend to all countries, people, and generations'.
25. See www.nautilus.org/gps/applied-gps/global-public-goods-2.
26. For a critique of the concept's vagueness as a rhetorical device see Long and Wooley, 'Global Public Goods: Critique of a UN Discourse', 15 Global Governance (2009) 107.
27. In international relations, rational institutionalists focus on transaction costs and constructivists on norms.
28. These varieties can be viewed along a continuum and be further broken down, but for our purposes, they highlight the key differences for purposes of discussing international law's role. Sadler, e.g., also discusses weighted sum, weaker link, and better shot public goods.
29. When asked who owned the patent, its creator Jonas Salk famously responded, 'Well, the people, I would say.
30. There is no patent. Could you patent the sun?': see D.E.Y. Sarna and A. Malik, History of Greed: Financial Fraud from Tulip Mania to Bernie Madoff (2010) (quoting televised interview of Salk by Edward R. Murrow), at p. xvi.
31. Knowledge is not a pure public good since it is potentially excludable, although even under the patent system it eventually reaches the public domain.
32. See, e.g., 'Tsunami Risk of Asteroid Strikes Revealed', New Scientist, 12 May 2006, available at: www.newscientist.com/article/dn9160-tsunami-risk-of-asteroid-strikes-revealed.html.
33. The view of geoengineering as a global public good is contested in light of its risks, but if successful in stabilizing the climate, it could provide a global public good.
34. World Health Organization, Revision of the International Health Regulations, WHA 58.3 (23 May 2005), available at: www.who.int/csr/ihr/WHA58-en.pdf.
35. Zimmerman, 'Funding Irrationality', 59 Duke LJ (2010) 1105, at 1140 (stating that opt-out default rules result in greater participation than do opt-in rules).
36. Madrian and Shea, 'The Power of Suggestion: Inertia in 401(k) Participation and Savings Behavior', 116 Q J Econ (2001) 1149, at 1158-1161, table IV, 1171-1173, and table VIII, at 1185 (showing greater participation in retirement plan under opt-out option).
37. Two states filed reservations; and there were no opt-outs.
38. See www.who.int/ihr/legal_issues/states_parties/en/index.html (as of 5 Feb. 2008, 194 states were parties to the IHR (2005)).
39. According to the terms of the treaty, non-nuclear weapon states (NNWS) agree not to receive, manufacture, or acquire nuclear weapons and also to accept safeguards and verification inspections conducted by the International Atomic Energy Agency to confirm that nuclear technology is not diverted from peaceful energy use to weapons manufacturing. Five nuclear weapon states (originally the US, the Soviet Union, and Great Britain, later joined by France and China) agree not to transfer nuclear weapons or otherwise assist any NNWS in acquiring or developing nuclear weapons. In addition, all states parties to the treaty, including nuclear weapon states, agree 'to pursue negotiations in good faith . . . on a treaty on general and complete disarmament under strict and effective international control': Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 21 UST 483, 729 UNTS 161.
40. Convention on the Physical Protection of Nuclear Material, 26 Oct. 1979, 1456 UNTS 101, TIAS 11080, amended by Int'l Atomic Energy Agency, Amendment to the Convention on the Physical Protection of Nuclear Material, GOV/INF/2005/10-GC(49)/INF/6 (6 Sept. 2005).
41. SC Res. 1540, UN Doc. S/RES/1540 (24 Apr. 2004).
42. Handl, 'The Nuclear Non-Proliferation Regime: Legitimacy as a Function of Process', 19 Tulane J Int'l & Comp L (2010) 1, at 4, 11 (stating that the nuclear arms control regime has been referred to as 'looking battered', and describing the Bush administration's agreement with India).
43. Richardson, 'Native Prospects', 4 Asian-Pacific L & Policy J (2003) 598, at 616 (noting the Bush administration's support for first-strike nuclear capability).
44. R.E. Benedick, Ozone Diplomacy (1991).
45. For analysis of the broad array of institutions engaged see Keohane and Victor, 'The Regime Complex for Climate Change', 9 Perspectives on Politics (2011) 7.
46. K. Abbott, The Transnational Regime Complex for Climate Change (2011), available at: http://media.cigionline.org/geoeng/2010%20-%20Abbott%20-%20The%20Transnational%20Regime%20Complex%20for%20Climate%20Change.pdf.
47. See, e.g., A. Guzman, How International Law Works: A Rational Choice Theory (2008).
48. For a range of views on the challenge of distributive conflict in international cooperation see Krasner, 'Global Communications and National Power: Life on the Pareto Frontier', 43 World Politics (1991) 336.
49. Morrow, 'The Forms of International Cooperation', 48 Int'l Org (1994) 387.
50. Fearon, 'Bargaining, Enforcement, and International Cooperation', 52 Int'l Org (1998) 269.
51. D.W. Drezner, All Politics is Global: Explaining International Regulatory Regimes (2007).
52. See Shaffer, 'Recognizing Public Goods in WTO Dispute Settlement: Who Participates? The Case of TRIPS and Pharmaceutical Patent Protection', 7 JIEL (2004) 459.
53. Patents represent temporary monopolies of exclusion, so that, in practice, knowledge can shift from a public good to a club good before reverting back to a public good.
54. Yet liberalized trade is an impure public good in that it creates individual winners and losers within countries, and is only posited to be good for a country in the aggregate. It also is subject to excludability, such as through restricting membership of the WTO, or entering into bilateral and regional free trade agreements.
55. See, e.g., Sandler and Arce, 'A Conceptual Framework for Understanding Global and Transnational Goods for Health', 23 Fiscal Studies (2002) 195.
56. That is, to the extent that we all have moral sensibilities, the effect of an increase in the protection of human dignity on moral sensibilities is neither excludable nor rivalrous.
57. An alternative for the production of public goods is to tie their production to private goods, as through the recognition of private rights that generate positive externalities (as in the example of patent law to create knowledge). Yet the granting of private rights also gives rise to strategic behaviour, and thus also involves trade-offs.
58. See the important work of Neil Komesar on comparative institutional analysis, including Imperfect Alternatives: Choosing Institutions in Law, Economics and Public Policy (1995).
59. See also Shaffer and Trachtman, 'Interpretation and Institutional Choice at the WTO', 32 Virginia J Int'l L (2011) 103.
60. Shaffer, 'Power, Governance and the WTO: A Comparative Institutional Approach', in M. Barnett and B. Duvall (eds), Power in Global Governance (2005), at 130 (applying comparative institutional analysis to dispute settlement over international trade and trade-related issues).
61. J. Dunoff and J. Trachtman, Ruling the World?: Constitutionalism, International Law, and Global Governance (2009).
62. J. Klabbers, A. Peters, and G. Ulfstein, The Constitutionalization of International Law (2009).
63. Walker, 'Taking Constitutionalism Beyond the State', 56 Political Studies (2008) 519.
64. See Shaffer, 'A Transnational Take on Krisch's Pluralist Structure on Postnational Law', 23 EJIL (2012) 565.
65. For our purposes, a constitutional frame entails a centralized institutional component.
66. See Montreal Protocol on Substances That Deplete the Ozone Layer, Art. 2.9(c), 16 Sept. 1987, 1522 UNTS 28, 33 (entered into force 1 Jan. 1989).
67. Japan, Germany, India, and Brazil should be designated permanent members of an expanded UN Security Council.
68. See, e.g., K. Annan, UN Secretary-General, 'In Larger Freedom: Towards Development, Security, and Human Rights for All', UN Doc. A/59/2005 (21 Mar. 2005) (for a set of alternative proposals).
69. Weiler, 'The Geology of International Law - Governance, Democracy and Legitimacy', 64 ZAORV (2004) 547, at 561 ('[a] simplistic application of the majoritarian principle in world arenas would be normatively ludicrous').
70. This situation calls for a move towards an international norm requiring democracy at the national level, backed by civil rights protections. See, e.g., Franck, 'The Emerging Right to Democratic Governance', 86 AJIL (1992) 446.
71. Cf. Held and Archibugi, 'Introduction', in D. Held and D. Archibugi, (eds), Cosmopolitan Democracy: An Agenda for a New World Order (1995).
72. de Búrca, 'Developing Democracy Beyond the State', 46 Columbia J Transnat'l L (2008) 102.
73. But cf. Petersmann, 'De-Fragmentation of International Economic Law through Constitutional Interpretation and Adjudication with Due Respect for Reasonable Disagreement', 6 Loyola U Chicago Int'l L Rev (2008) 209, at 217.
74. See Kingsbury, Krisch, and Stewart, 'The Emergence of Global Administrative Law', 68 L & Contemporary Problems (2005) 15.
75. Stewart, 'US Administrative Law: A Model for Global Administrative Law', 68 L & Contemporary Problems (2005) 63.
76. See also Esty, 'Good Governance at the Supranational Scale: Globalizing Administrative Law', 115 Yale LJ (2006) 1490.
77. Kingsbury and Casini, 'Global Administrative Law Dimensions of International Organizations Law', 6 Int'l Orgs L Rev (2009) 319; 25 June 1998, 38 ILM 517.
78. See Abbott and Gartner, 'Reimagining Participation in International Institutions', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1933562 (2011) (forthcoming in J Int'l L & Int'l Relations). I thank David Fidler for his comments on WHO and global health issues.
79. See S. Cassese, 'Global Standards For National Administrative Procedure', 68 L & Contemporary Problems (2005) 109.
80. A variant of the global constitutionalist vision - that of constitutional pluralism - can be viewed as combining the attributes of both the legal pluralist and global constitutionalist visions, but it equally could be viewed as combining their deficiencies. Constitutional pluralists view the world in terms of multiple constitutional orders at the supranational and national levels which interact.
81. Walker, 'The Idea of Constitutional Pluralism', 65 MLR (2002) 317.
82. Cf. traditional sociological perspectives of law providing for social integration and order, going back to the classical works of Emile Durkheim, Max Weber, and Talcott Parsons, and critical approaches viewing law as an exercise of power and control in the context of social struggle.
83. See, e.g., discussion in M. Deflem, Sociology of Law: Visions of a Scholarly Tradition (2008), at chs 2, 3, and 6, and at 275-276.
84. See, e.g., P. Drahos with J. Braithwaite, Information Feudalism: Who Owns the Knowledge Economy (2002), at 218 ('under conditions of information feudalism the supply of knowledge goods as public goods will probably suffer').
85. Shaffer and Bodansky, 'Unilateralism, Transnational, and International Law', 1 J Transnat'l Environmental L (2012) 31.
86. On the latter issue see Vranes, 'Climate Labelling and the WTO: The 2010 EU Ecolabelling Programme as a Test Case Under WTO Law', available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1567432 (2010).
87. At the Tenth Conference of the Parties of the Convention on Biodiversity in 2010, the parties adopted a decision requesting that 'no climate-related geo-engineering activities that may affect biodiversity take place', subject to certain conditions.
88. See Convention on Biological Diversity, Decision X/33, (29 Oct. 2010), available at: www.cbd.int/climate/doc/cop-10-dec-33-en.pdf UN Doc. UNEP/CBD/COP/DEC/X/33 ([hereinafter Decision X/33).
89. Cf. Carlarne, 'Arctic Dreams and Geoengineering Wishes: The Collateral Damage of Climate Change', 49 Columbia J Transnat'l L (2011) 602, at 650 (noting uncertainty about the effect of Decision X/33).
90. Bracmort, 'Geoengineering: Governance and Technology Policy' (Congressional Research Service Report, 10 Jan. 2011), at 23 (listing arguments against moratorium on geoengineering research).
91. Delahunty and Yoo, 'Great Power Security', 10 Chicago J Int'l L (2009) 35, at 45, 48 ('[a]rmed intervention into the internal affairs of nations may prevent these threats from materializing, even though they do not involve an imminent cross-border attack. . .. The theory of public goods predicts that activity necessary to secure international peace and security will be less than optimal').
92. Yoo and Trachman, 'Less Than Bargained For: The Use of Force and the Declining Relevance of the United Nations', 5 Chicago J Int'l L (2005) 379, at 383-384 (arguing that the US invasion of Iraq was justified in part by the failure of the UN to provide security).
93. Krisch, 'International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order', 16 EJIL (2005) 369.