GLOBAL PUBLIC GOODS AND TRADE: CONFLICTS, COMPATIBILITY AND COMPLEMENTARITIES
Round Table 1 - Global Public Goods: one definition?
Defining GPGs (and GPBs) in International Law: Some Exploratory Comments
Sarah Heathcote
University of Geneva (Switzerland)
The term "global public goods" (GPGs) is not a technical or legal one. This means that no legal consequences necessarily or automatically flow from the simple fact that something is characterised as a GPG. For GPGs to have legal protection, States must create a rule of law conferring such protection. This can be done via the conclusion of treaties or the creation of customary norms - these means of creation of international law being expressions of a consensus amongst States.
Globalisation (a process which goes beyond the State, involving non-State actors and creating increased interdependence or at least vulnerabilities amongst all actors) has nonetheless drawn attention to GPGs and indeed, to Global Public Bads (GPBs) as well. Not only has the need to regulate GPGs been highlighted by globalisation, but arguably this process has also made it easier for States to reach the consensus necessary to engage in such cooperation. There is in fact increased legal regulation of some GPGs and GPBs: environmental law, conventions on terrorism, drug trafficking etc... So international law is not oblivious to GPGs or GPBs.
I. Finding Equivalents to GPGs and GPBs in Different International Law Categories
Whilst there is no legal definition per se of GPGs, it is interesting to see whether there is a legal category of rules which in some way approximates a legal definition of GPGs or enables them to penetrate the legal order as a category enjoying a particular status. (This approach has the disadvantage of being deductive).
Because GPGs and GPBs are global and public, a first legal category to which GPGs could be said to show similarity is that of the common heritage of mankind. This notion covers common spaces over which it is recognised that common management is required. On closer analysis however, it can be seen that as with GPGs, the matter of collective regulation presents significant problems - see for example the difficulties encountered with regard to the Deep-Sea Bed Authority.
A second legal category to which GPGs ostensibly show some similarity is that of norms which are designed to safeguard community values, by giving them a superiority over other norms (norms of jus cogens), by attaching particularly serious consequences to their breach (State crimes - although it is far from clear that such a category does in fact exist under current international law); or by conferring on all States an interest in the protection of such rules regardless of whether they are States "injured" by a breach (obligations erga omnes). Whilst in some cases there may be similarities or overlaps with these categories and rules protecting GPGs and those addressing GPBs, it is hard to assert that this is necessarily the case.
A similar consideration is whether GPGs and GPBs when legally protected, give rise to integral obligations, that is obligations the breach of which affects every State to whom the obligation is owed (all States are "injured" States) - for instance, disarmament treaties, Nuclear Free Zones, the Antarctic Treaty. One can note in this context that the recent definition given by the International Law Commission (ILC) of integral obligations covers only "all or nothing" obligations rather than all non-synallagmatic obligations, thereby excluding for instance, human rights obligations from this category.
One can note at this stage that whilst there is no legal definition of GPGs (and indeed, perhaps it is best to retain that given by political scientists and economists) elements characterising GPGs emerge: they are trans-boundary, often go beyond the State and involve non-State actors (NGOs but also the private sector), and significantly, they require collective action - all features which challenge the traditional structure and functioning of international law....
2. Governance Issues : a Legal Perspective
The legal analysis in this context is more fruitful: GPGs require collective action. As such they fit most comfortably in an international system of "cooperation" rather than one of "coexistence". The UN is a reflection of the law of cooperation.
Consideration of the UN shows that the collective security system resembles a regime designed to promote and protect a GPG. What is interesting is that it seems that it is less the rule (prohibition on the use of force) designed to achieve the end of peace and security, but more the mechanism put in place to protect the rule, which confers the character of a GPG...
If the collective security system is structured by the Charter in such a way as to make the attainment of peace and security a GPG (and it should be noted that it was never implemented as envisaged), on the other hand, the secondary Charter goals, (promotion of human rights, social and economic development etc...) are not structured the same way. The principle of speciality has meant that there has been an inflation of specialised agencies, each required to adopt a "tunnel vision" approach to their area of competence (nuanced by principles such as the implied powers doctrine). The World Health Organization provides an example of an organisation whose mandate today, in a globalised world, reaches out to multiple policy areas, but whose scope of action is circumscribed by the terms of its constitutive instrument (See the International Court of Justice's 1996 advisory opinion Legality of the Use by a State of Nuclear Weapons in an Armed Conflict).
There is today a realisation that new institutional arrangements are needed in order to enable a manageable but holistic approach to GPGs and GPBs. Examples of such institutional structures are the GEF, UNAIDS, as well as the new Global Fund to Fight HIV/AIDS, Malaria and Tuberculosis. One can note that in these structures, the emphasis is placed on broad participation - one of the defining features of a system of law of cooperation.
3. By Way of Conclusion: ... The Trust as a Model for Managing GPGs.
The trust is a legal technique, whose value in the international arena is beginning to gain recognition. The transposition of this common law principle can be seen in some cases at the international level: at a normative level with environmental obligations (notably that of sustainable development) and at an institutional level with, for instance, the collective security system of the UN Charter (see article 24(1)). The value of the trust is that it fosters and reflects unity of interests, and that its underlying premise is one of accountability. Surely these are the legal guarantees which one would like to see underlying the management of GPGs.