On the Concept of a Global Public Interest: Some Reflections

2.1 A. The concept of a global public interest in international law

Many international texts mention the existence of a common interest or common concern of humankind and, while numerous studies have been dedicated to the analysis of this notion, 3 only a few selected examples will be used in the present paper.

Without being exhaustive, it should be noted that in the field of security, the 1945 Charter of the United Nations explicitly mentions in the Preamble the “common interest” as the only possible justification for the use of armed force. 4 In the field of the environment, the beautiful notion of a “world interest” appeared as early as 1946 in the Washington Convention for the Regulation of Whaling, which also refers in the Preamble to the “interest of the nations of the world in safeguarding for future generations the great natural resources represented by the whale stocks”. 5 The wording “common interest of mankind” appears in several international treaties such as “to ensure the maximum sustained productivity of the fishery resources of the North Pacific Ocean” (1952 Tokyo Convention for the High Seas Fisheries) 6 as well as to ensure “in the interest of all mankind that Antarctica continues forever to be used exclusively for peaceful purposes” (1959 Antarctic Treaty). 7

The slightly different notion of “common concern of humankind” is used by the two major conventions adopted at the UN Conference on Environment and Development (Rio de Janeiro, 1992), the 1992 Convention on Biological Diversity 8 and the 1992 United Nations Framework Convention on Climate Change. 9 This is also the case for the 2015 Paris Agreement. 10

Lastly, as a final example, the concept of “province of all mankind” has been used for exploration and use of the moon in the 1979 Moon Agreement 11 and “common heritage of mankind” in the 1982 UN Law of the Sea Convention in relation to the seabed (Part XI, the Area). 12

2.2 B. Defining the concept of global public interest

The idea that some goods or interests have a global dimension and should, therefore, not be owned by a very narrow subset of humans, but should rather be shared by the entire population, is present in many different international texts – although the terminology might differ from text to text.

Without giving the wording more importance than it deserves, it does seem that the expression “global public interest” best covers the different dimensions of this idea: indeed, this interest has the double quality of being both public and global.

First, the notion naturally relates to a certain interest or concern. While the international texts aforementioned use either “interest” or “concern” as an appropriate wording, the terminology has varying degrees of importance depending on the author and especially to the language used. In English, for example, the term “concern” has, according to some authors, a higher status than the term “interest”. 13 However, in French, the term “concern” or “préoccupation” seems weaker, loaded with a negative connotation, and implies that joint action is only needed in the case of a collective problem to solve, only to avoid harm. On the other hand, the word “interest” has a more positive undertone and might suggest that joint actions are more broadly justified whenever States can gain from pooling some of their activities.

It should also be noted that, in some languages, the word “concern” has sometimes been translated into “interest”: this is the case of the Spanish version of the Convention on Biological Diversity, in which the expression “interés común de toda la humanidad” is used as a translation of “common concern of humankind”. 14 In her paper “common concern of humanity”, Dinah Shelton uses these various notions indiscriminately, even using the expression “intérêt général” – in the French text – to translate “common concern”. 15 The importance of these different terms should, therefore, not be overestimated.

Second, this interest must be public, as distinguished from purely private interests. This public quality does not negate the fact that the part played by the civil society has been increasingly important on the international scene. Since private actors, be they NGOs, scientific experts or companies, play a very useful role in counterbalancing the weight of States as in a checks-and-balances system, it is desirable to give even more power to these intermediate bodies. 16

There is however a limit to this inclusion of the civil society as an actor on the international scene: the general interest must prevail over personal interests, as shown by the ever-growing influence of certain multinational companies whose economic power exceeds that of certain States.

Lastly, this interest has to be global, as opposed to national, and common to the whole of humanity for both ethical and practical reasons.

From an ethical standpoint, some issues are linked to core principles and fundamental values. They are, therefore, considered important to the whole of humanity. One can look at the example of international humanitarian law or human rights law, which offer a protection regardless of the nationality of individuals, or even the notion of “crime against humanity”, 17 under the Rome Statute of the International Criminal Court (ICC) that justifies an international regime that goes beyond State’ jurisdiction. This rationale can be traced back to the Preamble to the 1899 Hague Convention which contains the “Martens Clause” 18 that refers to the “laws of humanity, and the requirements of the public conscience” that could, if needed, fill in the gaps in the texts relating to the laws of war.

There is also a second, more practical, set of reasons that justify the need for global cooperation: the necessity to protect the common heritage of humanity. There are two possible interpretations of the emerging notion of the “global public goods”. It could either be related to the self-evident notion of a good that is located outside the territory of States and regarded as the ‘global commons’ 19 – such as Antarctica, the seabed, or the moon – and it must therefore be managed on a global scale, or to the more subjective assessment of property that, while belonging to a single State, may also be useful to all. The latter is the case, for example, of the World Heritage Sites 20 under the 1972 Convention are designated by UNESCO: their global importance offers them a particular protection that gives a right to all States to oversee their management.

This is the logic that could someday prevail in the creation of a specific regime aimed at managing the old-growth forests, such as the Amazon Forest, due to their role as carbon sinks and their extremely high biodiversity. For instance, Dinah Shelton states: “issues of common concern are those that inevitably transcend the boundaries of a single state and require collective action in response”. 21 A single State cannot resolve on its own these worldwide issues and, in an increasingly globalized world, the list of transboundary issues grows daily – global warming, the decline of biodiversity, the health crisis, the financial crisis, the development of world trade, digital industries, terrorist networks or the fight against tax evasion.

It has become commonplace to say that these issues call for a collective action by States, international cooperation based on international norms. Therefore, it now appears clear that a global public interest exists. It is, however, unclear whether we have drawn all the consequences arising from the recognition of such a global public interest. In fact, we most certainly have not.

3.1 A. Rethinking the theoretical basis of international law

In a world still governed primarily by the theory of the State sovereignty, 22 the binding nature of international law has until now been subject to the consent of States, following the theory of self-limitation. Until now international law has been based on the sheer consent of States to be bound by it. However, while this very subjective and voluntarist conception of international law, made by and for States, was certainly relevant in the 19th century, in a time when treaties only addressed issues pertaining to the coexistence of different sovereign States next to one another, it is now obsolete in light of the rise of new and integrated issues.

The profound changes international law has undergone during the 20th century and the emergence of a global public interest, have created new requirements for a more cooperative approach, through joint actions and common transnational rules and while the classical approach of a very limitedly integrated international law has served States throughout the last century of more superficial cooperation, it does not allow States to tackle the new challenges faced by humanity. Therefore, the now outdated founding theory of international law must be adapted to match the new reality of the situation.

It is first to be disclaimed that the authors of this paper do not, in any way, consider the concept of sovereignty as a notion to be dismissed. On the contrary, sovereignty is to States what personal freedom is to individuals. However, sovereignty should evolve in order to better match the necessity of a more global approach to the interests at the international level or, following the words of Eyal Benvenisti,

Therefore, there is a need for a transformation of the current concept of absolute and solitary sovereignty into a more “solidary” 24 or “cooperative” one. 25 In view of this, the binding nature of international law would change from sovereignty in the traditional sense – meaning the consent of States to be bound by it – to the existence of a global public interest. While sovereignty does not have to disappear – and indeed should not do so – it would not remain the sole justification for international obligations, as a more objective and exterior necessity would prevail: the need to protect humanity’s common interest. This shift from an internal justification based on the mere consent of States to the external objective of a common interest to protect would entail first, the opportunity to make some international norms binding upon the States even without their given consent and second, in some cases, the possible prevailing of one common interest over the fragmented and often contradictory national interests.

This shift in the foundation of international law was already discussed by Judge Weeramantry, Vice President of the International Court of Justice, in his separate opinion in the Gabcikovo/Nagymaros case, wherein he observed that:

As this opinion implies, the evolution of the concept of sovereignty could be implemented through gradual changes of jurisprudence, influenced by the doctrinal work of the legal community. Sovereignty is first and foremost a legal fiction, elaborated by jurists and shaped by international law through norms and jurisprudence. As stated by the German Constitutional Court, sovereignty is simply “a freedom that is organized by international law and committed to it”. 27 Therefore, sovereignty, is the oeuvre of international law itself, not a concept defined by States: what international law and jurists have created, international law and jurists can amend – as least partly. In nutshell, it could be surmised that the new keystone of the global legal order, the global public interest is the “raison d’être” of global governance. 28

3.2 B. The influence of a global public interest on the implementation mechanisms of global governance

Any questioning the hierarchy between a global public interest and the diverse and conflicting national interests also raises the question of a possible reformation of the implementation mechanisms of global governance to consider the common interest in public decisions.

Firstly, on a substantial point of view, one must ask whether there is any concrete obligation for the global public interest to prevail over national interests and, while the first may have a heavier weight per se. The public decision-making usually works on a case-by-case analysis of the interests at stake and rarely is the common interest assured to come out ahead. Some considerations of global interest are indeed imperative, of “public order”. 29 Still, others are less so and may be overshadowed by certain major national interests. Analyzing the many instances where global and national interests confront does not seem to allow the identification of a permanent and systematic hierarchy of interests. Grounding international law in the concept of a common public interest by no means ensures the automatic superiority of this common interest on a specific matter.

If sovereignty is to be compared to individual freedom, then, following the same logic, sovereignty is the rule, and the restriction of such sovereignty is merely an exception. Therefore, the limitation of sovereignty must be justified by a global interest proportional to the scope of limitation that it requires.

Secondly, concerning the institutions and procedures of international law, the recognition of a global public interest raises the question of its representatives – a question that cannot be answered without referring to the international organizations, although States remain relevant actors in the matter.

International organizations naturally embody an interest that goes beyond national borders, and they seem to be the only international actors that manage to carry both a public (as in not private) and a global (as in not national) interest. This capacity to transcend specific interests allows them to act on the behalf of the “mankind as a whole”, as laid down in the UNCLOS. 30

But international organizations remain weak with respect to States and seem to fail to weigh in on the international scene. Their limited power, be it at the institutional level, or in the legal field with regard to their political influence, leaves them at the mercy of States who do not hesitate to threaten them with political paralysis (as seen in the negotiations under the World Trade Organization), budget cuts (as the United Nations has faced consistently faced over the years) or plain and simple withdrawal 31 – with the risk of a domino effect. Held hostage by the rivalry and versatility of States, working with limited fundings and with little capacity for concrete actions, their impact on the international scene does not meet the challenges linked to asserting a global public interest.

On the other hand, States still have a role to play as they remain the custodians of a global public interest. Hence, they must take it into account in their national decisions. The notion of “joint” or “solidary” sovereignty implies that States defend not only their own specific interests, but also the common interests of the rest of humankind. Therefore, in the words of Benvenisti “States must always integrate in their decisions concerns that exceed their own; including the interests of other States and some common interests”. 32 The compulsory inclusion of a global interest when drafting national public decisions having a likely impact beyond their own borders, as modeled in the Aarhus Convention, could become a general obligation – granted some difficulties will be faced in case of conflict of interests when States will naturally tend to favour their own concerns.

Mechanisms exist to ensure that these conflict situations can be solved without sacrificing the global public interest, in which national judges play a major role, such as deciding to recognize the direct effect of international treaties in the domestic legal order and therefore become the guardians of the State’s compliance with its international commitments.

Another option is for a domestic legal text itself, to expressly state its role in protecting the global public interest – France did so with the Charter of the Environment of 2004 which refers to the “common heritage of mankind”. This provision allowed the French Constitutional Council to rule that the protection of the environment implies taking into account the extraterritorial effects of activities carried out on national territory. 33

In light of the intrinsic difficulties faced by States in juggling different interests, strengthening the power of international organizations and international law is necessary to ensure a tighter protection of the global public interest.

It appears, the challenge of global governance does not, as of now, provide sufficient efficiency in creating effective international norms.

Firstly, it could be said that the “international law-making machine” 34 is out of order: built on an absolute conception of sovereignty, it often requires unanimity – or at least consensus – among States in order to allow for any decision to be taken. Such a requisite inevitably leads to the failure of any new ambitious text and only allows for soft or extremely moderate international norms that manage to gain the approval of just enough States. Diplomats and international officials, therefore, face the constant disappointment of being conscious of the seriousness of the crisis and still being unable to adopt effective international legislation.

Secondly, and in addition to the modification of the adoption mechanisms of international conventions, reinforcing the normative power of international organizations has become necessary. This secondary source of law, adopted by the decision-making organs of international organizations, is more flexible than treaties, as unanimity is no longer the rule – mere majority is sufficient. However, in order to allow for this evolution, the constitutive treaties of the international organizations must expressly state the binding nature of these secondary acts. 35

Furthermore, the increased power given to secondary legislation will raise the question of the democratic nature of such a decision-making process, since the organs of international organizations have no elected legitimacy, do not allow for much citizen participation and rarely allow for a judicial control.