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4721. Global Public Goods amidst a Plurality of Legal Orders: A Symposium

Author:
Fabrizio Cafaggi and David D. Caron
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
A public good (an example is a lighthouse) can be produced by private parties. However, they rarely are. Rather, such goods are generally thought of in economics as a type of commodity that government often provides and maintains because government can overcome the otherwise strong incentive to free ride on the efforts of others. This symposium issue is concerned with the global analogies to municipal public goods. As in the domestic context, global public goods are viewed as essential goods. But globally there is not a government. Instead, we observe a plurality of legal orders arrayed both horizontally and vertically, both publicly and privately. It is this mix of significance and complexity that is the subject of this symposium.

4722. What's in a Concept? Global Public Goods, International Law, and Legitimacy

Author:
Daniel Bodansky
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
Although the terminology of global public goods may be new to international law scholarship, many of the principal features and implications of global public goods are familiar: global public goods are externalities writ large; they create incentives to free ride; and in many cases, they require international governance to provide. Nevertheless, the global public goods literature has been valuable in highlighting that global public goods come in different types, with different 'production technologies'. Some depend on the aggregate effort of the entire group, while others depend on a 'single best effort' or on the 'weakest link'. These different types of global public goods raise different governance issues and hence different challenges for international law.

4723. International Law and Global Public Goods in a Legal Pluralist World

Author:
Gregory Shaffer
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The world faces multiple challenges in producing global public goods, such as climate change mitigation, financial stability, security from nuclear terror, knowledge production, and the eradication of infectious diseases. International law scholarship, in the meantime, takes a turn towards celebrating pluralism without sufficiently accounting for institutional variation to address different contexts. Those writing on global public goods challenges, at the same time, tend to come from disciplines other than law. So what is international law's role in the production of global public goods? Where are greater international legal constraints and international institutions needed, and where should international law retain slack? Three analytic frameworks (global constitutionalism, global administrative law, and legal pluralism) have been advanced to address international law's place in global governance, but these frameworks have not explicitly addressed the challenges of producing global public goods. This article breaks down different types of global public goods, and explores how these different frames apply to them. Grounded in pragmatism, the article shows why there is no single best approach. Rather, legal policy should be tailored to the type of global public good at stake in light of comparative, real world, institutional trade-offs.

4724. Transnational Private Regulation and the Production of Global Public Goods and Private 'Bads'

Author:
Fabrizio Cafaggi
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The article focuses on the role of private regulators in the production, access regulation, and protection of global public goods (GPGs). It addresses transnational private regulation (TPR) as a public good in itself and as an instrument to produce and protect GPGs. It makes three major claims: (1) private actors have incentives to produce and protect GPGs, thereby challenging the conventional partition between markets, producing private goods, and states producing public goods; (2) the production and protection of GPGs has to combine procedural and substantive features, making private governance a determinant of the club or public nature of the global good; and (3) ownership, both individual and collective, and contracting can be used to produce and protect GPGs. The article analyses in particular the proliferation of regulatory agreements between private actors or between private and public to regulate production, protection, and access, and shows that their limited legal enforceability is often functional to alternative compliance mechanisms devised through innovative private governance. It concludes by suggesting that the increasing role of private actors in the production of GPGs requires governance reforms of public–private cooperation at transnational level.

4725. Public and Private in the International Protection of Global Cultural Goods

Author:
Francesco Francioni
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The idea of cultural heritage as an 'international public good' can be traced back to the Preamble to the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, according to which 'damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world'. But how can this idea of cultural heritage as a global public good be reconciled with the infinite variety of cultural expressions and with the role of art as a medium essentially devoted to giving form to the plurality and diversity of tastes, beliefs, and inclinations of the different societies in which it is produced? In this article I will examine the issue of pluralism and legal interaction within three perspectives: (1) the plurality of different meanings of cultural property and cultural heritage; (2) the plurality and interaction between different legal regimes of protection – international and domestic, private and public, peacetime and wartime; and (3) the plurality and interaction between different mechanisms of enforcement at the international and domestic levels.

4726. Free Lunches? WTO as Public Good, and the WTO's View of Public Goods

Author:
Petros C. Mavroidis
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The WTO can be viewed as a public good in that it provides a forum for negotiations which also produces the necessary legal framework to act as a support for agreed liberalization. To avoid any misunderstandings, in this article the discussion focuses on the WTO as a forum and a set of agreements, not on free trade. Since the legal agreements coming under its aegis are for good reasons incomplete, the WTO provides an additional public good by 'completing' the original contract through case law. The importance of this feature increases over time as tariffs are driven towards irrelevance. In turn, the WTO has no particular attitude towards public goods provided by its Members.

4727. Bilateralism at the Service of Community Interests? Non-Judicial Enforcement of Global Public Goods in the Context of Global Environmental Law

Author:
Elisa Morgera
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
The interaction between bilateral and multilateral action is evolving in the context of 'global environmental law' – a concept that is emerging from the promotion of environmental protection as a global public good through a plurality of legal mechanisms relying on a plurality of legal orders. The notion of global public goods can thus help one better to understand recent bilateral initiatives aimed at supporting the implementation of multilateral environmental agreements and the decisions of their compliance mechanisms. Innovative linkages between the compliance system under the Convention on International Trade in Endangered Species and bilateral trade agreements recently concluded by the European Union and the US provide an example. Innovative opportunities for bilateral initiatives supporting the implementation of the 2010 Nagoya Protocol on Access and Benefit-sharing are likely to lead to even more complex inter-relationships between different legal orders. This new approach to bilateralism that aims to support the interests of the international community can be assessed in the context of earlier debates on unilateralism, with a view to emphasizing the role of international law in the identification and delivery of global public goods, and the role of global environmental law in understanding the interactions among a plurality of legal orders.
Political Geography:
United States and Europe

4728. International Adjudication of Global Public Goods: The Intersection of Substance and Procedure

Author:
André Nollkaemper
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
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.

4729. Roaming Charges: Moments of Dignity: Waitresses at Rest at the Toufuya Restaurant by the Isuzu River, Ise, Japan

Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
We deal in EJIL with the world we live in – often with its worst and most violent pathologies, often with its most promising signs of hope for a better world. But, inevitably, since our vehicle is scholarship, we reify this world. Roaming Charges is designed not just to offer a moment of aesthetic relief, but to remind us of the ultimate subject of our scholarly reflections: we alternate between photos of places – the world we live in – and photos of people – who we are, the human condition. We eschew the direct programmatic photo- graph: people shot up; the ravages of pollution and all other manner of photojournalism.
Political Geography:
Japan

4730. State Identity, Continuity, and Responsibility: The Ottoman Empire, the Republic of Turkey and the Armenian Genocide

Author:
Vahagn Avedian
Publication Date:
08-2012
Content Type:
Journal Article
Abstract:
By studying the continuity between the Ottoman Empire and its succeeding Turkish Republic, this article aims to address one crucial aspect of the denial of the Armenian genocide by the Turkish state, namely the issue of state responsibility. There are psychological barriers in Turkey which have largely suppressed the memories of possible wrongdoings during World War I and the ensuing 'Independence War'. However, the barrier that is created by the issue of state responsibility is identified here as the fundamental obstacle for genocide recognition by the Turkish state. This article aims to apply some of the existing legal principles and theories of international law in order to test their applicability to the two Turkish states and the issue of internationally wrongful acts committed during World War I and the ensuing years. In addition to the Turkish Republic bearing the identity of the Ottoman Empire, this article suggests that the Republic not only failed to stop doing the wrongful acts of its predecessor, but it also continued the very internationally wrongful acts committed by the Young Turk government. Thus, the insurgent National Movement, which later became the Republic, made itself responsible for not only its own wrongful acts but also those of its predecessor, including the act of genocide committed in 1915–1916. The issue of possible liability has ever since the creation of the Republic formed the denialist policy which is Turkey's to this day.
Political Geography:
Turkey