Abstract
Despite the rising anti-globalisation sentiments across many parts of the globe, the world has become more integrated. Further, over the past few decades, a number of common problems have arisen, and their resolution requires cooperation between many states. The problems of climate change, loss of biodiversity, management of the global commons and pandemics like COVID-19 can be cited in this context. As world leaders struggle to resolve such issues, an obvious question confronts us: whether an international legal system that stems from a world order structured around the Westphalian notion of sovereignty is equipped to address these issues. Or do we need to reimagine the core principles that serve as the foundations of the contemporary international legal order? This book seeks to answer this question.
The authors state that the present challenges require a reimagining of the foundations of existing international legal structures and the advocacy of new principles that are compatible with a Westphalian order to deal with new challenges. Hence, ‘Today’s and future collective action problems in a highly integrated and interdependent world call for new foundations in defining rights and obligations in key areas riddled with unresolved major problems which can address long-term interests in a reciprocal manner’ (p. 09). The principle of the Common Concern of Humankind (CCH) is presented as the answer or as a potential solution for a failing international legal order.
The book is divided into two parts. Part I, titled ‘Theory’, engages with the principle of CCH on a theoretical plane. Part II addresses its practical application in various fields like environmental protection, trade, human rights, and migration. CCH is not an entirely new concept. The book states that the concept is already present in some international legal texts relating to climate change, biodiversity, plant genetic resources and cultural heritage.
CCH posits that specific problems attain the status of a ‘common concern’ provided they surpass a certain threshold. The threshold is reached when the problem escalates to the extent that it threatens international peace and security. Therefore, it is a problem in a given area that is of common concern, mainly because it can likely destabilise international peace and stability. More importantly, once the threshold has been crossed, states have an obligation to act instead of a mere right to act.
At present, the concept exists in international law in a rudimentary form, but the book makes a point that, like any other concept, it will emerge through scholarly writings and philosophical works, finding its way to soft law instruments, and eventually through a process of claims and responses become part of treaty law. The book explores several domains that can qualify as CCH. They include climate change, international monetary and financial stability, the duty to protect people from grave violations of human rights (embodied in the concept of R2P), human migration and pollution of the global commons (like the high seas) (p. 42).
CCH affects how international law is understood and sometimes alters that function significantly. First, it involves a duty to cooperate and a duty to undertake what has been called ‘homework’ (which is at the heart of the CCH and involves more than just domestically implementing international obligations). Second, successfully implementing CCH involves multilevel governance that integrates actions at local, national and international levels, thus fostering increased coordination between governance bodies at local and international levels, as opposed to making them operate in isolated silos.
The book’s second part discusses various areas where CCH could be applicable. These include the interface between trade and low-carbon technologies, marine plastic pollution, income distribution within states, human rights, migration, international monetary stability and international financial stability. These chapters are authored by Zaker Ahmad, Judith Schäli, Alexander Beyleveld, Iryna Bogdanova, Thomas Cottier and Rosa Maria Losada, Lucia Satragno and Federico Lupo-Pasini, respectively. The last part of the book includes discussions and comments.
The concept of CCH could be the much-required catalyst for change that an interconnected world requires. Indeed, specific problems that require cooperation and effort of all demand a change in how international relations are conducted. Besides, there is a pervasive feeling that an international system structured around the Westphalian ideas of sovereignty has failed to adequately respond to new types of crises like humanitarian disasters and climate change. Through its emphasis on an obligation to act in matters of common concern and its highly integrated multilevel governance system, CCH is highly significant and merits serious consideration.
There is, however, one big concern. By altering the way traditional international law works, CCH also raises concerns, especially when visualised from the perspective of the Global South. The main concern is that once a problem has been recognised as the CCH, the traditional boundary between the local, national and international diminishes (the book uses the metaphor of a five-story house to illustrate the multilevel interconnected governance). In other words, CCH entails a considerable reframing and dilution of state sovereignty. In this context, the book makes several recommendations.
First, the book advocates empowering the UN Security Council (UNSC) so that it can effectively address issues that are of common concern. However, endorsing such enhanced powers for the UNSC is of concern, especially given the politicisation of the UNSC and the need for reforms in its structure and functioning. Second, the authors advocate that states or a group of states should be allowed to impose unilateral economic sanctions as an interim measure on behalf of the international community to address problems designated as CCH (e.g., in the case of international monetary stability). Third, the book supports the use of production and process methods (PPM) and the extraterritorial effect of domestic laws to ensure compliance with issues of common concern. These tools are also endorsed in chapters relating to trade and low-carbon technologies and marine plastic pollution. The chapter on trade and low-carbon technologies endorses the use of more stringent PPM standards by large markets in international trade law to enforce common concerns, even if it involves the extraterritorial application of domestic law. Fourth, the most significant concern relates to the endorsement and enhanced use of the responsibility to protect (R2P) concept, which is presented as an expression of community interests. This will mainly concern those criticising R2P for facilitating selective and misinformed interventions.
The book, however, recognises concerns relating to CCH and addresses them at various junctures (e.g., pp. 87–88). For instance, CCH should address only common problems of a grave nature that threaten international peace and security. Further, since CCH will emerge through claims and counterclaims, it will be subject to judicial control through international courts and arbitration. Also, the duty to act (an essential and potentially controversial part of CCH) is subject to the principles of proportionality and accountability, as well as a reformed understating of sovereignty that aims to enable the welfare of all members of the society. Further, the book states that smaller countries need not harbour concerns about the potential misuse of CCH as they can address the problems through ‘flexible coalitions’ (p. 88). In other words, ‘the principle of Common Concern takes into account existing power structures and offers adequate checks and balances in addressing anxieties voiced’ (p. 88).
However, it is essential to note that the checks mentioned above are equally applicable to other domains of international law, and they have yet to prove effective there. How CCH will make these checks and balances effective is not adequately addressed. The issue becomes more complex when one considers the historical baggage of international law. Scholars have traced how the evolution of international law is intertwined with the history of colonialism (Anghie, 2005). Further, India like many other countries, has had to adapt its policy with regard to sovereignty in the face of international investment law (Ranjan, 2024). PPM and R2P have been scrutinised to assess their implications or explore possibilities for reforms (Chimni, 2002; Tourinho et al., 2016). Considering this baggage, it is not surprising that the concept will be met with suspicion and concern within the Global South.
In conclusion, the book is highly significant as it offers innovative solutions to new problems confronting humanity. That it attempts to do so is commendable and worth recommending. The solution proposed, that is, CCH, is also admirable and, if implemented effectively, has the potential to transform our perceptions of international order radically. However, the primary obstacle is that the concerns relating to CCH, which stem from historical baggage and selective use of international law, must be adequately addressed. It is hoped that, in due course, the concerns will be ironed out. Despite this limitation, the book introduces a compelling new concept that merits continued discussion and engagement.