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«EUI Working Papers RSCAS 2012/23 ROBERT SCHUMAN CENTRE FOR ADVANCED STUDIES Global Governance Programme-18 MULTILEVEL GOVERNANCE OF INTERDEPENDENT ...»

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For example, anti-trust action against companies abroad can be taken to the extent that conduct of these companies negatively affects markets and prices within the jurisdiction. It is submitted that the principle of Common Concern transcends these limitations and allows, in principle, action to be taken if the conduct abroad has detrimental effects within the realm of the Common Concern as recognized by the international community. For example, governments are authorized to take appropriate action against highly polluting means of production bluntly ignoring the Common Concern of global warming under this responsibility. Likewise, governments are authorized to take action in response to blatant and systematic neglect of the Common Concern of protecting fundamental human rights and lives.

While Common Concern provides the foundations of authorization to act, the most difficult question relates to the problem of to what extent the principle entails obligations to act. There is a fundamental difference between authorization and obligation to act. While the former leaves the matter to the discretion of government, the latter compels it to engage and take necessary steps.

Evidently, a principle of Common Concern entailing obligations to assume responsibility would be much stronger, but would also conflict with traditional foundations and precepts of international law and life. Such obligations are gradually emerging in one area which is of key importance to Common Concern.

The emerging responsibility to protect civilians in civil strife has been increasingly accepted.

Unilateral and unauthorized air strikes led by the US, unauthorized by the UN Security Council, preventing genocide were mainly considered unlawful in Kosovo in March 1999. The intervention in Libya from March to October 2011 by NATO Forces amounts to the first case applying the doctrine of Responsibility to Protect (R2P). The doctrine of R2P can and should be considered to be part of the emerging principle of Common Concern. The protection of fundamental rights, in particular the right to life of civilian population, amounts to a Common Concern which arguably not only authorizes, but as a matter of principle obliges, States to intervene within the realm of the Common Concern.

Obviously, the step to an obligation to act, as opposed to the right to intervene, is a major step.

Appropriate responses and courses of action in response to challenges are often difficult to define and realize. Intervention is notoriously controversial in politics. But a basic obligation to intervene appropriately facilitates and supports decision-making at home in view of the state responsibility assumed. It prevents governments from looking away. It makes them responsible. It facilitates coordination among States to mount an international relief operation. The main challenges amount to finding appropriate tools and to equal treatment of comparable constellations. It will be argued that an obligation to act needs to be applied consistently, and cannot be subject to opportunism and unequal treatment. Yet, the impossibility of saving lives in one instance should not imply that lives in other instances cannot be saved. It will be a matter of taking into account all pertinent factors in assessing the obligation and then making a determination on a case by case basis.

We are about to enter new frontiers of international law guided by the principle of Common Concern. To what extent obligations to act and address Common Concerns outside domestic jurisdiction can be extended to areas other than humanitarian intervention and the immediate protection of human lives requires a full debate and discussion. The principle is unlikely to call for a uniform and single answer to this question. This is true not only for the fundamental question of

Thomas Cottier

obligation, but also for the terms of authorization for taking unilateral action. The principle of Common Concern as a principle therefore will depend upon further specification of rules and scope for action. These rules vary from field to field. They will partly be framed by existing treaty obligations and they may partly be subject to the process of customary law. Today, the scope of Common Concern is still largely undefined and therefore depends upon positive law. This is particularly true in the field of trade relations which will bear the brunt of measures taken in response to Common Concerns Respecting existing obligations The extent to which trade measures can be taken in response to Common Concerns depends on the remedies available in WTO law or bilateral agreements, unless other and different rules are defined.

Assuming Common Concern responsibilities abroad typically works with and through trade instruments addressing the methods of production of a good or service. They are subject to most favoured nation treatment outside customs union and free trade agreements. They need to respect national treatment and thus the fundamental principles of non-discrimination and transparency.

Labelling of products, both voluntary and mandatory, is an important tool to allow consumers to make their own decisions in an informed manner. Products supporting and taking into account a Common Concern may obtain preferential treatment in terms of tariffs and import regulation. They may obtain research support and development assistance. The crucial point here is that States are not only authorized to use WTO rights, but are under an obligation to do so in addressing the Common Concern at stake. In the context of climate change, Members of the WTO would thus find themselves under an obligation to adopt appropriate measures for addressing polluting ways of production, or those which degrade the biosphere, in terms of tariff and non-tariff policies within the bounds of WTO law. It will be argued that recourse to such measures having extraterritorial effect will amount to imperialism and protectionism in disguise mainly in support of domestic industries competing in new technologies.





Such motives cannot be excluded. There is a thin line between the protection of Common Concerns and the protection of purely economic interests. There is little doubt that Common Concern will also invite economic protectionism, and it is a matter of assessing the merits of a claim. The difficulty in distinguishing legitimate from illegitimate measures, however, does not allow the concept of Common Concern to be refuted. Drawing a line is an ordinary operation which is also undertaken in other constellations and which is part of the normal business in the operation of international trade regulation. It is not unique to Common Concern but of a general nature. It can be properly handled by WTO dispute settlement if need be. Similar constraints to Common Concern policies may be operational under other existing treaty regimes in different fields of international law. The principle of Common Concern will thus be contained by treaty law. And this prospect in return, also provides an incentive for further developing appropriate structures of global governance at the end of the day.

Conclusion The principle of Common Concern offers the potential to rebalance international law currently based upon territoriality, sovereignty and lacking appropriate international institutions able to produce global public goods. The principle should be designed to address, in the first place, responsibilities of States in dealing with Common Concerns, both at home and abroad. The principle should entail responsibilities comprising the authority to act extraterritorially while respecting existing international agreements, and which partly may also assume obligations to do so in the pursuit of global common concerns.

The implementation of unilateral or concerted measures and policies relating to defined areas of Common Concern, in particular by large powers and markets, will be met with opposition, resistance and perhaps retaliation. Government will invoke traditional precepts of sovereignty and sovereignty

The Emerging Principle of Common Concern: A Brief Outline

over natural resources. Yet, taking Common Concerns seriously, as a right and obligation to address these concerns beyond territorial jurisdiction has to take these tensions into account and channel them towards the establishment of global governance able to deal with these matters more effectively and based upon commonly agreed rules. The principle of Common Concern provides the incentives for working towards agreed regimes. It allows both for bottom up and top down approaches. It is the combination of the two which will bring about progress in international law and relations in addressing Common Concerns of Humankind.

References Cottier, T. & Matteotti, S. (2009) 'International environmental law and the evolving concept of ‘common concern of mankind’', in Thomas Cottier et al. (eds.) International Trade Regulation and the Mitigation of Climate Change: World Trade Forum. Cambridge: Cambridge University Press.

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Introduction: ‘Public Goods Theory’ Must be Embedded into Constitutional Theory In their Report on The Doha Round: Setting a Deadline, Defining a Final Deal of January 2011, the former WTO Director-General Sutherland and Bhagwati (2011) describe the failure to conclude the Doha Round negotiations since 2001 as ‘a failure of global leadership in some quarters that is difficult

to comprehend for various reasons’:

- the market access commitments on offer would provide a global economic stimulus of more than 600 billion $ in new trade annually;

- the legal binding of currently applied market access would act as an insurance policy against potential re-introduction of lawful tariffs that could destroy up to 900 billion dollars in trade;

- reform of farm trade and conclusion of the Doha Round negotiations would enable the WTO membership to deal with the new trade policy agenda inside the WTO rather than in ever more bilateral and regional agreements outside the WTO;

- the Doha Round agreements would offer special advantages for less-developed countries (LDCs) as illustrated by the ‘duty free, quota free’ trade liberalization for the 49 least-developed countries, their complete exclusion from any new obligations except binding their tariff schedules at current levels (the ‘Round for Free’), the various forms of ‘flexibilities’ for developing countries, and the ‘trade creation’ expected from the Agreement on Trade Facilitation worth more than 300 billion US dollars.

Just as the failure of the Doha Round negotiations risks causing severe damage to the world trade system and to economic welfare in many countries, the climate change negotiations in the context of the 1992 UN Framework Convention on Climate Change (UNFCCC) have so far failed to agree on effective reductions of greenhouse gas emissions (GHG) threatening the environment and social welfare in many countries. In spite of the increasing criticism of the ‘leadership vacuum’ in the ‘transition from the old governance of the old trade order to the new governance of a new trade order’ (Lamy, 2010), the domination of the 2011 G20 Summit in Cannes by Greece’s sovereign debt crisis and by the lingering Eurozone crisis offered another recent example of the obvious ‘governance failures’ 1 in protecting international public goods, like the international trading, financial, environmental, development and related legal systems. Economic and political public goods theories tend to neglect law and the diverse ‘legal production methods’ for public goods as well as their normative foundations in constitutional theories.2 Economics and ‘political realism’ offer no coherent * European University Institute (EUI), Florence; visiting professor at LUISS University, Rome, and Jiaotong University at Xi’an (China).

‘Governance’ is defined here as the collective production of rules and public goods in order to adjust existing rule systems to the needs of the citizens living under them (cf. Héritier and Rhodes, 2011) The two leading research publications on global public goods published by the UN Development Program - i.e. Kaul et al. (1999, 2003) - did not include legal studies. Economists distinguish ‘pure global public goods’ that are non-excludable and non-rival (like moonlight) from impure public goods that are non-excludable but rival (like the atmosphere and other ‘natural commons’) or non-rival but excludable (like patented and published inventions). Private goods, by contrast, tend to be made excludable and rival by means of private property rights. While some global public goods are well-provided (like communication and transport networks), others are overused (like straddling fish stocks, the ozone layer) or underprovided (like public health care, environmental stability). Access to some global public goods remains restricted (e.g.

industrial use of patented knowledge requires payment of royalties). Certain non-rival, human-made ‘collective goods’

Ernst-Ulrich Petersmann



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