[A]s for equality, the word must not be taken to mean that the degrees of power and wealth should be exactly the same, but that, as regards personal power, it should not be so great as to make violence possible, and should be exercised only in accordance with social position and the law; and as regards wealth, that no citizen should be rich enough to be able to buy another, and none so poor that he has to sell himself … Equality, it is said, is a theorists’ vision, which cannot exist in practice. But if an abuse is inevitable, does it follow that it should not at least be controlled? It is precisely because the force of things always tends to destroy equality that the force of law should tend always to conserve it.
jean-jacques rousseau (1712–1778), The Social Contract1
1 Introduction
Since the late 1980s the ‘common concern of humankind’ concept has been contemplated by the international community within the frameworks of various treaty regimes that seek to deal with global problems.2 In 1992, the United Nations Framework Convention on Climate Change (unfccc) was agreed, with the parties acknowledging ‘that change in the Earth’s climate
It is certainly true that the common concern of humankind concept and its implications are open to a broad range of understandings. Scholars differ, for example, on what the recognition of a common concern of humankind implies for the justification of certain state actions; most authors appear to agree that the recognition of a common concern of humankind constitutes a justification for collective international action, with others suggesting that it also provides a normative justification for action at the national level, and others still proposing that it provides a justification for unilateral action as the term is understood in international law. Academic debate relating to the common concern of humankind concept has also yielded a range of opinions concerning the relationship between the common concern of humankind concept and that of obligations erga omnes, the constitutive elements of common concerns of humankinds more generally and on whether the recognition of common concerns of humankind simply amount to justifications for action
An under-discussed theme—overlooked perhaps on the basis of apparent scholarly consensus—is that of the relationship between the concept of common concern of humankind and that of state sovereignty. To be sure, the relationship has been discussed.9 The general consensus amongst scholars appears to be that common concerns of humankind require a ‘balancing’ of the interests of humankind, or at least those of the international community broadly construed, with the concept of state sovereignty; the implication being that, at least to some degree, the two concepts are at odds with one another.10
The approach adopted in this monograph departs from this general consensus: rather than suggest that the common concern of humankind concept is antithetical to sovereignty, it will instead be argued that the recognition of common concerns of humankind is a manner in which states act to enhance or retain their sovereignty. The recognition of a particular common concern of humankind therefore acts as a definitional instantiation of particular aspects of state sovereignty (or perhaps an attempt at this). Common concerns of humankind are recognised precisely because contemporary understandings of sovereignty at a given point in time are inadequate for addressing specific problems.
The basis for this argument stems from the idea captured by the Latin maxim ‘ex post facto ius oritur’; that is, that law arises out of fact.11 In the context of climate change, for example, the common concern of humankind concept has been employed, largely, as a response to factual changes, the discovery of which was enabled by progress in the field of climate science, pertaining to the rate at which the climate has been undergoing certain changes and the adverse
Seen this way, the need for the legal reconstitution of sovereignty in light of particular factual changes over time can be seen as an important—and often overlooked—constitutive element of common concerns of humankind. The set of changed facts contemplated in this chapter are the shifts in economic globalization that began to be observed in the late 1980s: the world saw major technological advances in information and communications technology (ict) which are often described as having had—and continuing to have—a ‘revolutionary’ or ‘transformative’ impact on the world economy.13 As illustrated in the previous chapter, most of the states in the world have also seen income and wealth within their respective territories become increasingly unequally distributed.14 These trends have unfolded simultaneously to the described shifts in economic globalization. This, of course, is not a coincidence.
The overarching aim of this chapter, against the backdrop of contemporary economic globalization, is to contemplate whether the observable near-global changes in the distribution of income and wealth within states and the adverse effects associated therewith could and, if so, should be recognised as a common concern of humankind. In order to accomplish this aim, it is first necessary to describe how economic globalization has changed—factually—since the beginning of the on-going ict revolution. It is also necessary to distil the
This latter task is the key focus of this chapter. Ultimately, its aim is to illustrate that sovereignty-based objections to the recognition of the adverse effects stemming from the distribution of income and wealth as a common concern of humankind are premised on an understanding of sovereignty that have become outdated given the mentioned changes in economic globalization. The recognition of changes in the distribution of income and wealth and their adverse effects as a common concern of humankind would act to enhance the sovereignty of states in a manner that would allow them to better address issues that are of great importance to humanity as a whole. This argument will be defended throughout this chapter, and indeed the rest of this monograph, with due reference also to the other constitutive elements of common concerns of humankind and to the legal implications that flow from the recognition of common concerns of humankind.
The chapter is structured as follows: having provided a contemporary conceptualization of what will be referred to as ‘the distributive aspects of economic sovereignty’ in light of the changing nature of economic globalization since the late 1980s (Part i), this chapter proceeds to examine the recognition of common concerns of humankind, with a focus on sovereignty as a constitutive element, and what legal implications such recognition entails (Part ii). In light of the discussions in the first two parts, the final part of this chapter contemplates the recognition of the distribution of income and wealth within states and the adverse effects that flow therefrom as a common concern of humankind (Part iii).
2 Economic Sovereignty and the Distribution of Income and Wealth Since ‘Globalization’s Second Unbundling’
This first part of the chapter is part contextual; using Richard Baldwin’s framework for explaining economic globalization, it sketches a background against which the distribution of income and wealth can be evaluated in order to determine whether it does, could and/or should be considered a common concern of humankind. It is also part conceptual development. First, Baldwin’s framework, with a focus on what he calls ‘globalization’s second unbundling’,
2.1 ‘Globalization’s Second Unbundling’ and the Distribution of Income and Wealth within States
In his book, The Great Convergence, Richard Baldwin essentially sketches a history of economic globalization; presenting what he terms a ‘three-cascading-constraints’ view of the concept.15 Baldwin distils the history of globalization into three more or less distinct stages: (1) the pre-globalization era; (2) globalization’s first ‘acceleration’ or ‘unbundling’; and (3) globalization’s second ‘acceleration’ or ‘unbundling’.16 Others have written similar histories about globalization, but Baldwin’s characterisation provides a helpful framework for the purposes of this work; it provides a simple but convincing set of guidelines for understanding the contemporary global economy and how it has come to be.17
Baldwin’s simplification is essentially that globalization mainly hinges on three factors—or cascading constraints—(1) trade costs (the costs of moving goods); (2) communication costs (the costs of moving ideas); and (3) face-to-face costs (the costs of moving people).18 In the pre-globalized world, which only stopped existing in around 1820, production and consumption generally occurred in the same geographical area.19 This came as a result of all three factors being costly—trade costs were high, communication costs were high and face-to-face costs were high; trade was mostly limited to trade within particular communities that were geographically close to one another and the same could be said of communication and the movement of people, both of which activities predominantly occurred between people in close proximity.20
Globalization’s first unbundling came in three phases. The first of these started in around 1820 with the ‘steam revolution’ and ended with the First World War; the second phase was the interwar period, with the third phase
Globalization’s second unbundling started occurring in the late 1980s with the start of the ‘ict revolution’.24 What made this globalization’s ‘second unbundling’ was the fact that the nature of the second cascading constraint began to change—communication costs fell and it progressively, and very rapidly, became virtually costless to move ideas around the globe.25 Baldwin calls this state of affairs—where trade and communication costs are low, but the costs associated with moving people remain high—the ‘New Globalization’. We remain is this era today and central questions for the purposes of this chapter relate to how the New Globalization is different from what preceded it and what this means for economic sovereignty and the distribution of income and wealth within states.
Most important for current purposes is Baldwin’s chapter titled ‘What’s Really New?’26 In this chapter, Baldwin illustrates how globalization has changed since the second unbundling began in the late 1980’s; at the beginning of the chapter he writes that ‘[t]he newness of the New Globalization’ can be found in two integral parts of the second unbundling: (1) fragmentation and offshoring in manufacturing and service sectors; and (2) the technology flows that ‘follow the jobs sent offshore’.27 Importantly, the New Globalization was mostly made possible by rapid technological change in ict; but this had a clear knock-on effect on trade—the costs associated with which continued
The new model for the corporation was to be like Nike. Nike designs and markets sneakers from its headquarters in Oregon, but hires contractors in East Asia to produce them. Its “core” involves developing intellectual property, not manufacturing physical goods, and it has become one of the most valuable brands in history. Pressed by investors and enabled by the growth of generic suppliers, firms in industry after industry followed a path of Nikefication. Businesses like Sara Lee and Apple jettisoned production to focus on design and brand management. Computers, pet food, pharmaceuticals, shoes, and even government services are increasingly produced by contractors, not the company whose name is on the label.31
In essence, as Baldwin points out, whereas the frontline of competition used to be national borders they are today better thought of as ‘cross-national production networks’; more often referred to as ‘global value chains’ (gvcs).32 The implications of gvc proliferation have been far reaching. Comparative advantage—in the David Ricardo sense—essentially underpinned globalization for the entirety of its ‘first unbundling’.33 This traditional conception of comparative advantage is based on the idea that goods are made in one state, relying on inputs that are from that same state.34 Where the GVC-era is different, is in how it has led to a situation where goods are no longer made in one state; trade in part and components—in intermediate goods—have risen extensively since Globalization’s second unbundling started.35
As Baldwin puts it, ‘international commerce became more multifaceted—involving flows of goods, services, intellectual property, capital and people—and … those flows became more entangled in the sense that they are generated by the same cause (production unbundling)’.41 This makes the tasks of all actors involved in the economy more complicated because national progress is not prioritised by all actors in a world of de-nationalized comparative advantage.42 Labour unions, for example, have a more difficult time organising because in the event that—as is the case in a large number of countries—unions are organised by sector, it could be that union members have conflicting interests vis-à-vis other members of their own union.43 It also means that the interests of states and firms are increasingly less aligned with one another.44 Often, firm and national interests even directly conflict with one another.45
Related to the organisation of production are multiple other changes that have surfaced since globalization’s second unbundling. Most of these stem from the ict revolution in the sense that new technology ushered in an era of greater capital mobility. For example, the ict revolution and other factors
While there are a number of other changes perhaps worth discussing—and some of these are discussed further below—the point is ultimately that the development of ict has resulted in an economic system that is far more global in reach than the system that preceded it and that the nature of the relationship between states and firms has changed accordingly. The manner in which goods and increasingly services are produced combined with the various other corollaries of the uptake of ict has left the world with a unique set of governance challenges. One such challenge is the manner in which income and wealth are distributed within states in a world where firms and capital are increasingly de-coupled from states.
The post-Second-World-War economic system was fashioned during the latter stages of globalization’s first unbundling. It was premised on the traditional conception of comparative advantage, the understanding being that economic interdependence would promote mutual prosperity—and thereby peace—with international trade playing a central role. In essence, at the international level the goal was to make the global economic pie as large as possible whilst trying to provide a level playing field for states and their firms. The distribution of income and wealth between states was accordingly increasingly subjected to international legal rules, first through the gatt and later through the wto and its various covered agreements.
Distributive matters within states, however, were left entirely to the states themselves to deal with as a domestic issue.48 This meant the development
Since globalization’s second unbundling, however, and as illustrated in Chapter 2, the distribution of income and wealth has changed dramatically within states, with a large majority of the world’s citizens now living in countries where distributions have become more unequal since the 1980s.54 In the ict world of de-nationalized comparative advantage and increasing capital mobility, the post-Second-World-War economic framework is unable to deliver what it was intended to deliver. This is predominantly because it was not designed with globalization’s second unbundling in mind.
Moreover, as Baldwin notes, globalization also became ‘wilder’ during its second unbundling: the shocks associated with globalization grew substantially in size and they happened a lot faster than ever before.55 This meant that—and still means that—the distributive and redistributive issues that
2.2 Conceptualising the Distributive Aspects of Contemporary Economic Sovereignty
The term ‘sovereignty’ has a certain notoriety to it; often invoked as between nations but rarely with a common understanding as to the meaning of the word or its implications, ‘sovereignty’ has been a contested concept for most of its existence. For current purposes, it would be of little worth to engage in the larger sovereignty debate. Rather, it suffices to say that the view taken here is that state sovereignty is an ‘essentially contestable concept’ as this term was understood by Walter Bryce Gallie.56 That is to say that sovereignty as a concept is normative in nature, intrinsically complex and a-criterial.57 Amongst other things, this implies—as Samantha Besson has put it—that ‘sovereignty is as once a state of affairs, a question pertaining to the nature and justification of that state of affairs and a justification of it’.58 With this in mind, the aim here is to attempt to conceptualize a subsidiary notion; what will be referred to here as the ‘distributive aspects of economic sovereignty’.
2.2.1 An Outline of ‘Economic Sovereignty’ and Its Relation to the Provision of Public Goods
It must be admitted at once that in the case of most, if not all, of the components of economic sovereignty this requirement of restraint imposed on third States is not the direct and logically necessary consequence of the very existence of the first State’s economic rights. Rather, it will be necessary to base the duty of restraint on the more general principles of self-determination and of non-intervention in the domestic affairs of another State—themselves corollaries of the sovereign equality and independence of States which is a fundamental datum of contemporary international law.61
The first method Lowe refers to in order to give some content to the term economic sovereignty is the ‘recognition approach’.62 This approach is based on the presumption that ‘certain economic powers’ are considered to be ‘conditions upon which the recognition of States or governments can depend’; Lowe consequently asserts that ‘it would be reasonable to regard these powers as components of a State’s economic sovereignty’.63 The second method is the ‘responsibility approach’.64 Under this approach, it is assumed that states —
have the right, free from the deliberate interference of third States, to control persons and companies within their territory in relation to matters which they are generally regarded as being entitled to bind themselves by treaty to regulate in a certain way and in respect of which they may therefore become internationally responsible.65
[A]t the heart of the concept of economic sovereignty is the right of a State to regulate the structure of its own economy. There may be ancillary rights, such as the right to regulate the activities of all businesses within its territory and the terms of trade within its territory: inevitably, its precise scope will be a matter for debate.66
As part of the right to regulate the structure of its own economy, one of the ancillary rights a state has is surely that of the provision of public goods.67 This holds in terms of Lowe’s recognition approach in the sense that the capacity and actual provision of public goods is a raison d’être of states, which exist precisely because public goods are undersupplied or not supplied at all in the absence of states. The right to supply public goods also holds under Lowe’s responsibility approach because states are entitled to bind themselves by treaty as part of public goods provision, for example by agreeing to cooperate with other states, including in the provision of funding for example, such that public goods may be produced in each of the states that are party to the agreement.
Although the social welfare function—in other words, some value judgment—must ultimately be invoked to determine society’s optimum distribution of income, there is a subsidiary problem. Is every initial
distribution of income a Pareto optimum, or is some redistribution necessary to achieve a Pareto optimum?70
To the extent that individuals are interested in the income distribution because of externalities rather than simple tastes for equality or inequality, the public good approach focuses attention on the need for research in an area that is between economics and sociology. What are the empirical effects of the income distribution on crime, social stability, political stability, or any other characteristic of society? Perhaps the impact is significant; perhaps it is insignificant. We just do not know.74
With four and a half decades having since passed, we now have a better sense of the empirical effects Thurow referred to; an array of these have already been outlined in Chapter 2.75 That Chapter also outlined a range of empirical effects that flow from the distribution of wealth as well as some findings relating to public perception of the distribution of income and wealth.76 To be sure, there is much left to learn about the consequences of income and wealth distributions. It is also fairly clear, however, that there is sufficient evidence for us to conclude that the distribution of income and the distribution of wealth both
2.2.2 Towards a Contemporary Concept of the Distributive Aspects of Economic Sovereignty
In referring to the conceptualisation of economic sovereignty here as ‘contemporary’, the aim is to suggest that the concept needs to be updated in light of globalization’s second unbundling as described above. The central issue to this discussion is the capacity of states—as a matter of fact—to address problems that stem from the distribution of income and wealth by directly pursuing alterations of the distributions themselves as economic sovereigns. This entails addressing some of the positive aspects of economic sovereignty; those that relate to the competences that states exercise and how effectively they are able to do so. The view of sovereignty adopted here, however, is that the concept also has a normative component that warrants some discussion: that of distributive justice.
It also serves the discussion well to distinguish at this point between internal and external economic sovereignty. While there is clearly no bright line distinguishing one from the other, the former refers to sovereignty over the internal affairs of a state, while the latter refers to sovereignty as it operates vis-à-vis other sovereigns.78 These notions align well conceptually with Lowe’s
The competences entailed by economic sovereignty that have distributive implications. At present there is no agreed upon set of competences entailed by the concept of economic sovereignty, even less so with respect to the distributive aspects. Some competences—capacities or powers—are beyond contestation: it can hardly be doubted, for example, that as part of its general economic sovereignty a state has the right to make and enforce rules relating to taxation within its own territory; the very existence of a state clearly depends on its ability to raise taxes.80 To return to Huber’s construction of sovereignty, taxation is clearly a function of a state which it must be allowed to pursue independently, not only as an end in of itself but also such that it can fulfil its other sovereign functions independently.
The sovereign right of taxation clearly entails distributive aspects: deciding who should be taxed, what should be taxed and deciding how the revenues derived through taxation should be spent carry clear implications for the distribution of income and wealth within a state. First, it impacts the actual distribution of income and wealth, whether this is simply as a function of revenue collection or through the manner in which the revenue collected is spent. The taxation decisions of a state also have consequences for how the distribution of income and wealth are perceived by citizens and accordingly for the legitimacy of that state. This is predominantly a matter of fairness and justice, something that is taken up further below.
Beyond taxation, there are other economic functions of a state that have distributive effects. The manner in which a state exercises its monetary sovereignty, for example, affects the supply of money in an economy and, ultimately,
Distributive justice as a normative component of economic sovereignty. Ultimately there are many possible normative components of economic sovereignty. Traditionally, most states have sought to prioritise economic growth—that is to say aggregate economic growth without due consideration for distributions—as a predominant normative goal in their exercise of economic sovereignty.87 Growth, in turn, hinges on the manner in which states exercise the various competences their respective economic sovereignty is comprised of; the rate of growth also has an impact—it feeds back in a way—on how state’s exercise their economic sovereignty. Growth acts as ‘regulatory guideline’ and ‘legitimacy benchmark’ for most, if not all, states;88 but it is not the only normative component of economic sovereignty.
Since the start of the ict revolution, calls for distributive justice around the globe have intensified.89 To be sure, ‘distributive justice’ here is intended to be a normative term, but its contents are intended to be variable.90 At the same time, even if the content of different conceptions of distributive justice are more or less the same, proposed approaches for its attainment yield as much disagreement as its contents do; it may even be the case that the approach
The idea of conflicting prescriptions is fairly well—if vaguely—captured by the concept of ‘sustainable development’ and the Sustainable Development Goals (sdgs) set by the international community.92 Amongst other things, for example, sdg 10 indicates that the international community seeks to ‘progressively achieve and sustain income growth of the bottom 40 percent of the population at a rate higher than the national average’ by 2030.93 What this indicates is that distributive aims have not supplanted growth as a normative goal but should be considered as developing the notion of growth in a different direction. In any event, there is an increasing body of literature that suggests that broadly there exists no trade-off between economic growth and more equal distributions of income and wealth.94
[G]radually the exercize of sovereignty has turned from an individual exercize into a cooperative enterprise. This corresponds to the more general development of multilevel governance in a post-national
constellation; sovereign political entities can no longer exercize their traditional competences and functions alone, especially, but not only, when these overlap within the same territory and apply to the same legal political community. … In these conditions, sovereign authorities need to collaborate with other sovereign political and legal entities when applying the same rules and principles in this pluralist constitutional order and this gives rise to a … cooperative form of sovereignty. This form of sovereignty triggers duties of cooperation on the part of entities which cannot ensure the protection of all the values they should protect, as much as on the part of the entities which can help the former protect those values they share. … Only when understood in this cooperative way, can sovereignty be the reflexive and dynamic concept it is, stimulating constant challenging of the allocation of power, thus putting into question others’ sovereignty as well as one’s own. This common exercize of political sovereignty is then reflected in the structure of the relationship between the different legal orders at stake; none of them is ultimately and entirely submitted to another. This kind of legal cooperation reveals the possibility of a non-hierarchically organized plurality of legal orders, which may individually remain hierarchical in their internal structure or in their relationship to international law, but which relate to one another in a heterarchical way.96
Economic sovereignty as conceptualised here accepts the premise that sovereignty is divisible; it should accordingly be seen as comprising various different parts of general state sovereignty, including fiscal sovereignty, monetary sovereignty and the other parts of general state sovereignty relevant to the distribution of income and wealth, particularly—but not limited to—those relating to the regulation of a ‘national’ economy. Seen this way, economic sovereignty is only effective as a concept in the event that there operates alongside it a functioning principle of subsidiarity; that is to say a principle of power allocation. In this regard, Besson writes that ‘the principle of subsidiarity implies a test of efficiency in power allocation. In each case, the sovereign authority will be that authority which can realize the objective in the most efficient way’.97
The view taken here is that the competence of states to affect changes to the distribution of income and wealth within their own territories is tied to
3 The Recognition of Common Concerns of Humankind as Sovereignty Redefined
This second part traces the development of common concern of humankind as a concept in both the theory and practice of international law. This exercise is undertaken in two parts. First, the development of common concern of humankind as a concept in international law is briefly discussed in order to provide the relevant background context in which the remainder of the discussions in this chapter are grounded (Section 3.1). Subsequently the discussion turns to a key issue for the purposes of this chapter and indeed this work as a whole: that of the recognition of common concerns of humankind and the legal implications of such recognition (Section 3.2). Finally—and in the light of several theoretical lacunae identified in Section 3.2—a general theory for the recognition of common concerns of humankind in international law is proposed (Section 3.3).
3.1 The Development of the Common Concern of Humankind Concept in International Law
On 6 December 1988, the UN General Assembly resolved, in a document titled ‘Protection of global climate for present and future generations of mankind’, welcomed ‘with appreciation the initiative taken by the Government of Malta in proposing for consideration by the Assembly the item entitled “Conservation of climate as part of the common heritage of mankind”’, and ‘[c]onvinced that climate change affects humanity as a whole and should be confronted within a global framework so as to take into account the vital interests of all mankind’, recognised ‘that climate change is a common concern of mankind, since
Subsequently, the term ‘common concern of mankind’ having been used in multiple UN documents in 1989 and 1990,99 during the course of a United Nations Environmental Programme (unep) meeting of legal experts held in Malta in 1990, the origin, contents, rationale and implications of the concept were debated by attendees as part of a precursory exercise, the purpose of which was to establish a normative basis for the upcoming United Nations Conference on Environment and Development (unced) to be held in 1992.100 By the time of the group’s next meeting in 1991, a ‘growing interest of States’ in the concept was identifiable, particularly ‘within the context of negotiations on legal instruments on climate change and conservation and sustainable use of biological diversity’.101 At the third and final meeting of the group before the occasion of the unced in 1992, the group lent its support to the idea that the common concern of humankind concept was ‘sufficiently flexible to warrant its general acceptance as providing a broad basis for the consideration of global environmental issues’.102
At the unced in 1992, the concept found support and was included in the preambles to both the UN Framework Convention on Climate Change (unfccc) and the Convention on Biological Diversity (cbd).103 The text of the unfccc ‘[acknowledges] that change in the Earth’s climate and its adverse effects are a common concern of humankind’ and notes the parties’ ‘[concern] that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming
The common concern of humankind concept has also subsequently been discussed in the context of the International Law Commission’s Draft Guidelines on the Protection of the Atmosphere. Until it was removed by the Commission in 2015, Draft Guideline 3 affirmed that ‘[t]he atmosphere is a natural resource essential for sustaining life on Earth, human health and welfare, and aquatic and terrestrial ecosystems, and hence the degradation of the atmosphere is a common concern of humankind’.105 In the literature on common concern of humankind, explorations of possible additional common concerns of humankind can also be found; authors having examined an array of issues for potential common concern of humankind status, including land degradation,106 the sustainable management of soils,107 the availability and use of fresh water,108 the conservation of plant biodiversity,109 technology transfer in pursuit of climate change mitigation,110 the protection of human rights,111 maritime resource allocation and the protection of the oceans,112 monetary
3.2 The (Non-)recognition of a Common Concern of Humankind and Its Legal Implications
As discussed above, only two common concerns of humankind have thus far been explicitly recognised in treaty law; one is the field of climate change and one in the field of biodiversity. It thus becomes a worthwhile exercise looking as precisely as possible at their subject matter. In the area of climate change, it is the ‘change in the Earth’s climate and its adverse effects’ that are recognised as a common concern of humankind by the unfccc.117 As for in the realm of biodiversity, it is the ‘conservation of biological diversity’ that has been affirmed as a common concern of humankind in the text of the cbd.118 Understanding fully what is being protected in these conventions is clearly helpful for understanding what can in fact be recognised as a common concern of humankind, how that might happen and what implications, if any, such recognition will have.
Change in the Earth’s climate and its adverse effects. As Jutta Brunnée points out with respect to the unfccc, it is not the Earth’s climate that is afforded common concern of humankind status, but rather the change in the Earth’s climate and its adverse effects.119 The second paragraph of the preamble to the unfccc also goes on to state that the parties to the Convention are—or
Conservation of biological diversity. As Brunnée has observed with respect to this common concern of humankind too, it is the conservation of biological diversity that is afforded common concern status in the third paragraph of the preamble to the cbd and not biological diversity itself.120 This distinction is clear from context given that the first paragraph of the preamble indicates that the parties to the Convention are—or at least were—‘[c]onscious of the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components’. The second paragraph reinforces the distinction, illustrating that the parties were ‘[c]onscious also of the importance of biological diversity for evolution and for maintaining life sustaining systems of the biosphere’. Finally, the sixth paragraph spells out that the parties were ‘[c]oncerned that biological diversity is being significantly reduced by certain human activities’.
As with climate change, then, it appears clear that common concern of humankind status is afforded in respect of a particular change and the adverse effects flowing from it. In the biodiversity context, it is significant reduction in biological diversity caused by certain human activities that amounts to a change; the adverse effects of this change are the losses of the intrinsic value of biological diversity as described in the first two paragraphs to the preamble of the cbd. Together, the change and the adverse effects make up the common concern of humankind; the ‘conservation of biological diversity’.
Six constitutive elements of the concept of common concern of mankind have been identified, namely: first, the concentration of the concept—devoid of proprietary connotations—in truly fundamental questions for all humankind, pursuant to the notion of commonness; second, the necessary engagement, in the treatment of such questions of common interest, of all countries, all societies and all the social segments within the countries and the societies; third,—as already pointed out … —the long-term temporal dimension (underlying the term humanity), to encompass both the present and the future generations; fourth, the emphasis on the element of protection, on the basis of considerations of humanity and of ordre public, transcending reciprocity; fifth, the attention primarily to the causes of the problems (both for their prevention and for the responses to be given); and sixth, the equitable sharing of responsibilities as an instrumental principle in the application of the concept of common concern of mankind.121
- (a)the interests concerned extend beyond those of individual states and touch on values or ethics of global significance;
- (b)threats to the interests concerned are marked by their gravity and potential irreversibility of impacts; and
- (c)safeguarding the interests involved requires collective action and entails collective responsibility.122
‘Common concern’ concept has at least two important facets: spatial and temporal. Spatial aspect means the common concern implies
co-operation of all states on matters being similarly important to all nations, to the whole international community. Temporal aspect arises from long term implications of major environmental challenges which affect the rights and obligations not only of present but also future generations. … One more aspect of the ‘common concern’ is a social dimension. Common concern presumes involvement of all structures and sectors of the society into the process of combatting global environmental threats. i.e. legislative, judicial and governmental bodies together with private business, non-governmental organizations, citizen groups.123
While there is much to quibble about when it comes to the constitutive or definitional elements—the common concern of humankind concept is after all still subject to much debate and no definitive understanding of the terms has yet to be settled on, whether in treaty practice, treaty application or by scholars of the concept—these passages can be distilled into four headings by which we might structure a discussion on what constitutes a common concern of humankind and what the implications of recognising something as such may entail: (1); the substance of, and space covered by, the concept of common concern of humankind; (2) the temporal element of common concerns of humankind; (3) the recognition and mode of recognition of a common concern of humankind; and (4) the legal implications of recognising a common concern of humankind. Through examining a combination of legal and scholarly sources below, the aim is to provide a plausible understanding of what might allow for the recognition of a common concern of humankind and what legal implications, if any, may flow therefrom.
3.2.1 The Substance of, Space Covered by, and Location of Common Concerns of Humankind
Human-driven change and its adverse effects. As already touched on above, the common concerns of humankind explicitly identified thus far in treaty law relate to an identifiable change in the nature of an object and the adverse effects that stem from that change over time. Seen this way, it is clear that the climate is not a common concern of humankind; nor is biodiversity per se.124 It is also clear that the change must cause adverse effects in order for a
The word ‘adverse’ (of fortune, events, etc.), originally, meant ‘contrary, opposing, harmful, hostile to a person or thing’; today, ‘adverse’ (of conditions, circumstances, etc.) means ‘unfavourable; preventing success, development, or well-being’.126 It accordingly follows that what constitutes a common concern of humankind, entails, at least in part, a normative decision as to whether the identifiable effects of the change in the nature of the object in question can be termed ‘adverse’. Climate change is a common concern of humankind because the change over time in the nature of the Earth’s climate has certain effects and those effects have been deemed adverse by the international community.
Some people would say that if the climate change that is now under way were due to purely natural (i.e. non-anthropogenic) factors, then it would not be a problem. There are two distinct grounds one might have for this view. Some people may think that it is necessary for a change to be a problem that it is caused by human agency. On this view, natural occurrences that affect us adversely are unfortunate, but they are not problems. A second, more plausible ground is that if we cannot in some way remedy a change that adversely affects us, then the change is not a problem. On this view, problems imply solutions. For example, dying prematurely of a curable disease is a problem; being mortal is not. There are people who think that nothing can be done about climate change. If they also have the view that problems require solutions, then they do not think that climate change is a problem, however regrettable they may think it is that it is occurring. Of course they are wrong in thinking that
we cannot respond to climate change in ways that make a difference. But what counts as making a difference depends enormously on what exactly we think the problem is.127
The second paragraph of the preamble to the unfccc is consistent with these arguments in that it clarifies that the international community is ‘[c]oncerned’; not purely because the climate is changing and that there are adverse effects as a result, but rather because ‘human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increase enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind’. In other words, the concern is with human activities that are within our control; the focus of a common concern of humankind is human-driven changes that have adverse effects. Indeed, the unfccc defines ‘climate change’ only as changes to the climate which can be ‘attributed directly or indirectly to human activity’.128
The above analysis with respect to the unfccc applies with equal force to the cbd, which asserts that the international community is ‘[c]oncerned that biological diversity is being significantly reduced by certain human activities’.129 The conservation of biological diversity is a common concern of humankind in a similar way to climate change in that it is being reduced by human activity; this again amounts to a change, i.e. a change in the extent to which biodiversity is being diminished. The adverse effects of this change are also captured in the preamble to the cbd: the loss of biodiversity and its components equates to a loss of the various values listed in its first paragraph as well as to a loss of something which is important ‘for evolution and for maintaining life sustaining systems of the biosphere’.130
The scope of the adverse effects. The next logical question, perhaps, goes to the scope of the adverse effects. Must each and every person that comprises humanity, for example, feel or be affected directly the adverse effects of the loss of biodiversity? Or must the adverse effects of climate change simply affect a large portion or majority of human beings? Treaty law is not explicit when it comes to answering questions pertaining to the scope of common concerns of humankind; nor have they all been thoroughly addressed in the literature. The
The Parties to this Convention,Affirming that human beings in affected or threatened areas are at the centre of concerns to combat desertification and mitigate the effects of drought,Reflecting the urgent concern of the international community, including States and international organizations, about the adverse impacts of desertification and drought,Aware that arid, semi-arid and dry sub-humid areas together account for a significant proportion of the Earth’s land area and are the habitat and source of livelihood for a large segment of its population,Acknowledging that desertification and drought are problems of global dimension in that they affect all regions of the world and that joint action of the international community is needed to combat desertification and/or mitigate the effects of drought,Noting the high concentration of developing countries, notably the least developed countries, among those experiencing serious drought and/or desertification, and the particularly tragic consequences of these phenomena in Africa,…Expressing concern over the impact of desertification and drought on affected countries in Central Asia and the Transcaucasus,… Have agreed as follows … 134
True, there are such phrases as “human beings … are at the centre of concerns”, “urgent concern” and “problems of global dimension … affect[ing] all regions of the world”, which in layman’s terms may come close to saying the same thing—but, importantly, nowhere is combating desertification itself said to be of common concern. And if one looks more closely at these preambular paragraphs, one can see the global nature of the problem is tempered with a decidedly regional perspective. Only those human beings in “affected or threatened areas” are of concern; the “urgent concern” is intergovernmental—of States and international organisations—not of humankind; and the areas under threat affect a “large segment”, but not the whole, of the world’s population.136
To the extent that the ‘adverse impacts of desertification and drought’ can be seen as falling short of a common concern of humankind based purely on the subject and geographical scope of these adverse impacts, certain inferences can be drawn concerning the subject and geographical scope of common concern of humankind. For example, through contrasting ‘humankind’ with ‘human beings in affected or threatened areas’, it might then be surmised that the scope of common concerns of humankind are not geographically limited; that common concerns of humankind are not limited to ‘human beings in affected or threatened areas’. Similarly, one might contrast the Desertification Convention’s ‘a large segment of … [the Earth’s] population’ with ‘humankind’ and come to the conclusion—even though the phrase ‘large segment’ is ambiguous—that the adverse effects that form a part of a common concern of humankind, or the potential for there to be such adverse effects, must affect at least ‘a large segment’ of all the human beings on Earth.
The nature of the adverse effects. ‘Common concern of humankind’ can be read as something that is of concern to all or parts of humankind; but this does not imply that each and every member of humankind need necessarily be affected in the same manner in order for something to constitute a common concern of humankind.138 A range of additional questions arise which go to the nature of the adverse effects that are guarded against by the application of the common concern of humankind concept. One such question is whether common concern of humankind lends itself to events linked to specific subject-matters or whether common concerns of humankind can be recognised regardless of subject-matter provided that certain prerequisites have been met. Once this issue has been resolved, additional questions remain about the nature of the adverse effects. These stem predominantly from the wide range of possible events which may be considered ‘adverse’ and the remaining ambiguity as to who it is that must be the subject of the adverse effects.
Environmental lawyers have often hinted that common concerns of humankind pertain to environmental concerns to the exclusion of concerns from other fields. Jutta Brunnée, for example, has argued that ‘the concept is targeted more narrowly at specific environmental processes or protective actions’ and that ‘whether the environmental concern relates to the global commons or to resources within the territories of individual states, it is the fact that all states derive common benefits from protective action that elevates it to a matter of common concern’.139 Nadia Sánchez Castillo-Winckels has argued elsewhere that one of two common features of common concerns is ‘the interest to protect humanity and the global environment from harm’.140 She further argues that treaty practice shows that ‘what the international community is trying
In the context of the relationship between common concern of humankind and obligations erga omnes, Duncan French has argued that ‘there is no doubt that obligations erga omnes (partes), in particular, and common concern have real potential to be mutually reinforcing concepts, the former providing a general framework for the environmental-specificity of the latter’.142 As the above-cited authors—and the common concern literature more generally—make fairly clear, it is taken somewhat for granted that common concern of humankind is a concept that covers predominantly environmental matters and that in recognising future common concern of humankind a link to the ‘environment’ or the ‘global environment’ should be present.143 There is nothing inherent to common concern of humankind as a concept, however, which provides a proper justification for restricting their recognition by subject-matter.
As for the nature of the adverse effects, and if we proceed on the assumption that the source of the adverse effects is unconstrained by subject-matter restrictions, it is fairly clear that the common concern of humankind concept is aimed at protecting against consequences of a particular gravitas. This said, serious conceptual issues remain concerning the highly abstract, highly contestable notion of ‘adverse effects’. Are effects ‘adverse’ if, and only if, they threaten, whether directly or indirectly, the very existence of humanity or a large part thereof? Or could effects also be considered ‘adverse’ if they merely threaten something held dear by most of humankind? There are, as yet, no clear answers to these questions; but the unfccc and the cbd provide some helpful guidance.
For example, in Article 1.1 of the unfccc ‘adverse effects of climate change’ is a term defined as ‘changes in the physical environment or biota resulting from climate change which have significant deleterious effects on the composition, resilience or productivity of natural and managed ecosystems or on the operation of socio-economic systems or on human health and welfare’. Equally broad, perhaps, are the adverse effects that the cbd aims to protect against. In the preamble, the cbd makes clear that the adverse effects that stem from
While this still leaves much scope for debate on what exact types of effects are sufficiently ‘adverse’ in order for them to form part of a common concern of humankind, it does allow for the conclusion to be drawn that there need be no tangible physical harm or threat of harm to humanity or a part thereof in order for certain events to be considered ‘adverse’ and therefore as part of a common concern of humankind. This conclusion can be reached for a number of reasons, including because the cbd protects against the loss of certain values, such as the aesthetic value of biodiversity for example, which do not involve physical harm of any kind. Similarly, the unfccc—while also protecting against physical harms such as degradations to human health—protects against potential harm that might be done to the ‘operation of socio-economic systems’.144
A final issue to be dealt with under the heading of the nature of the adverse effects is actuality and risk. The recognised common concerns of humankind in the unfccc and the cbd appear to suggest that it is the actual adverse effects that stem from the given change that is considered to be a part of a common concern of humankind. As a forward-looking concept, however, it would be logical to assume that common concern of humankind also anticipates future adverse effects and attempts to protect human beings from them materialising in the first place. To do otherwise would to a large degree be to deprive common concern of humankind of its potential efficacy because actors responding to the common concern of humankind would be perpetually looking to protect humanity from harm that has already taken place. This brings into sharper focus the notion of risk of future adverse effects and the role of uncertainty. It also brings into focus the changing nature of the notion of ‘adverse effects’ and the capacity of treaty law to effectively deal with this. As these issues are essentially temporal, they are dealt with under the next subsection.
3.2.2 The Temporal Elements of Common Concerns of Humankind
Present and future generations. As Cançado Trindade has put it, common concerns of humankind ‘transcend the level of strictly inter-State relations, focusing on the needs and aspirations of humankind as a whole, encompassing present and future generations’.145 There appears to be consensus among scholars
The changing nature of adverse effects over time. As noted earlier in this chapter, the recognised common concerns of humankind in the unfccc and the cbd appear to suggest that it is the actual adverse effects that stem from the given change that is considered to be a part of a common concern of humankind. Even the actual adverse effects of climate change and the loss of biodiversity, however, are dependent on a large number of factors and have presumably changed considerably over time, even in the relatively short period since the enactment of the unfccc and the cbd. How the adverse effects develop over time, of course, depends on the observed rate of change of the climate or of the loss of biodiversity. It is for these reasons that common concern of humankind entails the dynamic notion of rate; rate implying that it is the actual adverse effects as the change in rate occurs that are of common concern.
In the context of climate change, for example, it would be fairly senseless to attempt to respond to the adverse effects that result from climate change based on the rate at which the climate was changing in the 1980s, a time since when the number of annual climate-related natural disasters have more than doubled.147 Similarly, it would make little sense to ignore the impact of technological change on climate change mitigation efforts over time. common concern of humankind is inherently a dynamic concept and, as a result, factual information and judgments made in response to factual changes must necessarily be re-evaluated as time passes in order for the common concern of humankind concept to have any sense of credibility or for it to be effective in solving problems.
Both the unfccc and cbd accordingly set up regimes for the evaluation and consistent re-evaluation over time of the problems they seek to solve. The cbd, through its Article 7, makes the identification and monitoring of certain issues mandatory for the parties to the Convention. Moreover, Article 12 makes mandatory certain research and training activities. Likewise, the unfccc, through its Article 5, makes certain actions related to ‘research and observation’ mandatory. These obligations are further supported by the important underlying principle of cooperation between contracting parties in order to ensure the effective evaluation and systematic re-evaluation of the rates of change encompassed by the specific common concerns of humankind and the adverse effects stemming from such rates of change.
Additionally, as noted above, an evaluation of what constitutes the actual and future adverse effects necessarily entails elements of uncertainty and the management of risks. In the preamble to the unfccc, for example, it is noted ‘that there are many uncertainties in predictions of climate change, particularly with regard to the timing, magnitude and regional patterns thereof’. The cbd notes that the parties, in a comparable fashion to the unfccc, are aware of ‘the general lack of information and knowledge regarding biological diversity’. This makes clear that in order for a common concern of humankind to be recognised in treaty law, it is not necessary for there to be certainty as to
3.2.3 The (non-)Recognition and Mode of Recognition of Common Concerns of Humankind
One may ask whether common concerns must be identified by treaty to engender particular legal consequences. Indeed, must they be specifically identified at all? Or is it enough that an issue is of concern to all or a large number of states, and that its resolution requires global cooperation? Clearly these latter features place an issue within the range of potential common concerns.149
The first relates to the need for sufficient international consensus on whether a given issue, say global forest protection, is indeed of common concern. There is no reason why such consensus could not find expression in customary international law. Yet treaty negotiations may be more conducive to forging the consensus … When widely ratified, a treaty may also forestall further debates about this threshold issue. The second difficulty arises from the need to clarify the precise legal ramifications of common concerns. For example, even if it were agreed that global forest protection is of common concern, absent a treaty, the legal implications would be subject to debate. Of course, over time, a growing number of treaties can also help crystallize the legal consequences that generally attach to common concerns and, thereby contribute to the development of a customary framework.151
Chief amongst these reasons are the benefits and/or drawbacks of the (lack of) legal certainty, especially as the recognition of common concerns of humankind touches on difficult normative issues that pertain to humanity at large.152 Alongside these certainty gains there are also legitimacy gains that can only be derived through treaty recognition.153 The difficulty of reaching consensus on global issues may lead to a desire to circumvent treaty-making in the face of problems that need urgent solving; doing so, however, is likely to lead to more harm than good. In any event, as will be argued further below, the recognition of a common concern of humankind is only a starting point for solving global problems. Without connecting the recognition of a common concern of humankind to concrete legal rules, the efficacy of the concept is seriously constrained.154
3.2.4 The (Potential) Legal Implications of Common Concerns of Humankind: An Overview
The legal implications of recognising a common concern of humankind remain, at best, unclear. In the literature on common concern of humankind there is a fair deal of agreement on certain legal implications, while a substantial divergence in understanding remains on others. In the world of contemporary treaty-making, too, there remains a fair deal of scepticism about the common concern of humankind concept, ostensibly because of a lack of clarity as to its precise legal implications. For example, in 2015 the ilc dropped its reference to common concern of humankind from its current work on its Draft Guidelines on the Protection of the Atmosphere on the basis that the legal
This logic is fairly peculiar given the substance of common concerns of humankind; assuming, as it does, that recognition must necessarily happen contemporaneously with the coming into effect of precise legal obligations or responsibilities. While it may for various reasons be desirable for precise legal obligations to flow at the moment of recognition, it is worth pondering an alternative in the form of ‘mere’ recognition. If there is evidence to the effect that a particular rate problem—such as climate change—is causing certain adverse effects—such as an increase in the amount of natural disasters—then some form of recognition should follow based squarely on the problem itself regardless of what the legal consequences of recognition are. Should the recognition of a common concern of humankind not stem from concern with the adverse effects rather than from concern about what precise legal consequences should flow once something has been deemed a concern?
Dinah Shelton has argued that ‘common concern, l’interot general, is a general concept which does not connote specific rules and obligations, but establishes the general basis for the concerned community to act’.156 This should not be taken to mean that common concerns of humankind do not imply any duties or obligations whatsoever, but merely that common concerns of humankind at best imply general duties, the precise nature of which should be established by the international community by way of agreement. This perhaps makes matters of common concern of humankind difficult to enforce, but the concept’s strength thus far can be found not in its enforcement capacity but rather it its capacity to facilitate new forms of institutional cooperation. It is in this light that the legal implications of the recognition of common concerns of humankind should be viewed.
Duties to cooperate. It is fairly uncontroversial by now that the recognition of a common concern of humankind implies duties of cooperation. In fact, one might go as far as to say that the necessity of cooperation to solve the problem at issue forms a part of the raison d’être of the concept of common concern of humankind. It is in part because common concerns of humankind cannot be handled in isolation that they are recognized as common concerns of humankind in the first place. The parties to the unfccc have acknowledged ‘that the global nature of climate change calls for the widest possible cooperation by all
‘Responsibilities at home’.160 It has additionally been argued that the invocation of ‘humankind’ implies certain duties or obligations at a national level.161 Edith Brown Weiss has quite persuasively argued that common concerns of humankind are aimed at aggregate protection at a global level; ergo, international cooperation at a global scale is insufficient to adequately address the problem that a particular common concern of humankind seeks to solve.162 It therefore follows logically that in order for common concern of humankind not to be deprived of its potential efficacy it must necessarily imply a duty to take certain actions at the national level. This notion is clearly reflected in both the unfccc and the cbd: the former, particularly in Article 4, provides for national commitments in respect of climate change mitigation; the latter, in Articles 8 through 10, provides for certain national-level obligations connected to the conservation of biodiversity. As with the duty to cooperate, it is fairly difficult to decipher the precise boundaries of the duty to act at the national level: this does not detract from the existence of a general duty to act ‘at home’, with some specificity being added by particular treaty rules.163
‘Responsibilities abroad’.164 As with obligations erga omnes, the issue of enforcing common concerns of humankind remains an important one insofar as the efficacy of the concept hinges on particular actions being taken. This brings more sharply into focus the notion of unilateral action taken in pursuit of ensuring compliance with the legal obligations that stem from common concerns of humankind. This is by far the most controversial issue
Common but differentiated responsibilities. As Judge Cançado Trindade has pointed out, ‘[i]t should not pass unnoticed,—and it should perhaps be stressed,—that, in this conceptual construction [of common concern], what was kept in mind was not the sharing of resources or benefits, but rather of responsibilities’.167 In essence, various authors are agreed; common concerns of humankind are foremost about common or shared problems and the allocation of responsibility for solving such problems.168 While it still makes sense to recognise common concerns of humankind where they arise without any reference to how responsibility should be shared—as opposed to simply acknowledging that they should be shared in some manner or form—it becomes difficult to operationalize common concerns of humankind in a meaningful way without agreeing to a mechanism dealing with how responsibility should be shared.
One such mechanism often discussed in relation to common concerns of humankind is the concept of ‘common but differentiated responsibilities (cbdr)’. Jutta Brunnée argues that this concept ‘may fairly be described as the flipside of the concept of common concern’.169 In sum, the concept is premised on the idea that different actors contribute in different ways to the problem itself and that different actors have differing capacities—based on their respective levels of social and economic development—to contribute to solving the shared problem.170 cbdr accordingly stands for the proposition that all
3.3 Towards a General Theory for the Recognition of Common Concerns of Humankind in International Law
[W]hat we are looking for here is whether one can identify reasons that support its [that is, biodiversity’s] inclusion in the panoply of issues that justify the nomenclature of common concern. If one cannot do this, and it is therefore not possible to provide normative coherence as to why certain issues are of common concern and others are not, there is a real risk that the discussion descends into little more than retrospective realpolitik.172
As argued above, the most obvious commonality between common concerns of humankind, both existing and potential, is the implications that their recognition entail for state sovereignty. The position taken here is accordingly that a central element—or perhaps even the central element—for the recognition of common concerns of humankind is the need for a reconceptualization of state sovereignty; identifying areas where current conceptions of sovereignty have become dated or where a new definition of the term is required in order to enhance sovereignty such that global problems of particular significance can be solved is therefore a good starting point for identifying potential common concerns of humankind. This is the core focus of this section and for Part iii below.
To understand the recognition of common concerns of humankind in this way is a way in which to give the concept a normative coherence that it would
There is currently no general process by which common concerns of humankind are recognised. The process described here is a proposal, the purpose of which is to provide a pathway for the common concern of humankind concept to find wider application in international law. It is by no means meant to stand in opposition to existing lists of constitutive elements of common concerns of humankind, but rather to complement and refine existing accounts in as simple a manner possible. As a general proposition, then, common concern of humankind recognition should entail three steps: (1) an identification process that will be referred to here as ‘framing’; (2) once ‘framed’, the potential common concern of humankind should be tested against the threshold question of whether current constructions of state sovereignty in the area(s) related to the potential common concern of humankind need to be redefined in order for the ‘framed’ common concern of humankind to be successfully managed; and (3) if the threshold question is answered in the affirmative, the common concern of humankind must be recognised through a process of law. Each of these three steps will be examined in greater detail in turn.
3.3.1 Framing a Common Concern of Humankind
‘Framing’ as used in this context denotes the following two-step process: (1) identifying a rate ‘problem’ that affects humankind, or a large part thereof; and (2) identifying the effects and potential effects that stem from the identified rate problem. ‘Framing’ in this sense should—as far as possible—be a purely factual exercise undertaken without any sort of normative judgment. For the purposes of this inquiry, a ‘rate’ is simply ‘[a]n amount, quantity, or value, considered relative to another; the relationship between two values’.173 In essence, a ‘rate’ refers to a change in the nature of a particular object,
The latter part of the above definition of ‘climate change’—relating to what climate change can be attributed to—is unimportant for identifying it as a rate problem. In other words, while the cause of climate change is important in deciding whether it constitutes a common concern of humankind—and is an issue that is addressed at a later stage of the recognition analysis—it does not matter for this stage what causes climate change. It simply matters that it is an identifiable rate with particular consequences that can be objectively established as fact as a change in the identified rate occurs. Put differently, certain effects can be determined as a matter of fact. Naturally, perhaps, there will be a temptation even at this stage to begin to classify the rate change and its effects in normative terms. Such efforts should be kept for the normative stage of the identification process; that is, it should be saved for the recognition phase.
In the context of climate change, for example, ‘framing’ would entail (1) identifying that the climate has the capacity to change in nature, does in fact change in nature over time and that these changes have certain effects on humankind or a large part of humankind; and (2) identifying as precisely as possible what the effects of a changing climate are. Similarly, in the context of biodiversity, ‘framing’ would involve (1) identifying that the level of biodiversity in the world has the capacity to change over time, does in fact change over time and that changes in the level of biodiversity has certain effects; and (2) identifying as precisely as possible what the effects of a changing level of biodiversity are. In both of the above-described cases, potential common concerns of humankind have now been framed and we can proceed to ask the threshold question: does state sovereignty in these areas need to be redefined in order to manage the rate changes and effects identified?
3.3.2 The Threshold Question: Does State Sovereignty Need Redefinition?
‘Cooperative sovereignty’ and the related concept of subsidiarity have already been discussed above. This second stage of the recognition of common
In the event that cooperative sovereignty is unnecessary, there is no need for the recognition of a common concern of humankind because states will already have the necessary competences to address the rate change and its effects. For example, states are competent on current constructions of sovereignty to adequately fund a wide range of public goods. States can, for example, affect the rate at which crimes are committed; they can alter the rate at which their respective populations are educated to a certain level; they can build roads, railways and airports; they can establish and run a military; they can provide systems for the adequate settlement of a broad array of disputes—all of this, and much more, can be achieved without redefining sovereignty as a cooperative enterprise.
3.3.3 Recognition of the Common Concern of Humankind through a Process of Law
For this part of the inquiry, it is necessary, finally, to make certain normative judgments. The normative work of the common concern of humankind concept is done—almost entirely—by the word ‘adverse’. The last real hurdle—and certainly the most difficult to overcome—is reaching agreement amongst actors in the international law arena that the effects identified at the framing stage are of sufficient concern to a large part of humanity in order for them to be deemed ‘adverse’. Once there is agreement on this point, common concern of humankind designation should necessarily follow unless states are unconcerned with addressing a particular set of adverse effects. It is also at this stage that the underlying causes of the rate change and its effects enters the fray; the causes and the ability of the international community to address them do, after all, affect perceptions as to what effects are and are not ‘adverse’ in nature.
Returning to climate change once again, it is clear from the unfccc, as discussed above, that the effects of climate change are deemed ‘adverse’, at least in part, because they are caused by reversible human activity. This does
This does not mean, however, that the effects need necessarily be irreversible in order to be considered ‘adverse’. Equally adverse in the climate change context, perhaps, is the threat that changes in the climate pose for natural water sources, food security and human security, amongst others. Ultimately, the process of recognising that certain effects are ‘adverse’ leaves the international community with wide discretion to recognise common concerns of humankind. While one might propose a set of factors to guide contemplation in this regard—such as the irreversibility and scale of the effects—what is and is not deemed ‘adverse’ is up to the collective will of the international community.
4 Changes in the Distribution of Income and Wealth within States: To Recognise as Common, as Concern or as Common Concern?
The third and final part of this chapter brings together the two parts that precede it. This exercise is structured into three sections. First, building on the general process for the recognition of common concerns of humankind elucidated in Part ii above, the increasingly unequal distribution of income and wealth within states is framed as a potential common concern of humankind with due reference to the adverse effects of this phenomenon—a rate problem—over time and across space (Section 4.1). In the second section, the threshold issue—as identified in Part ii above—of the need for ‘cooperative sovereignty’ is applied to the potential common concern of humankind framed in Section A (Section 4.2). Finally, having come to the conclusion that the threshold requirement is currently being met, or may alternatively be met in the near future, the potential modes of recognising changes in the distribution of income and wealth within states as a common concern of humankind are explored (Section 4.3).
4.1
For the unfccc parties, ‘change in the Earth’s climate and its adverse effects are a common concern of humankind’.176 For the parties to the cbd, ‘the conservation of biological diversity is a common concern of humankind’.177 For the purposes of this section, it will be argued, along similar lines, that ‘the change, over time, in the distribution of income and wealth within states and the adverse effects stemming therefrom is a common concern of humankind’. In an analogous way to the concern is expressed through the cbd ‘that biological diversity is being significantly reduced by certain human activities’ and that concern is voiced ‘that human activities have been substantially increasing the atmospheric concentrations of greenhouse gases, that these increases enhance the natural greenhouse effect, and that this will result on average in an additional warming of the Earth’s surface and atmosphere and may adversely affect natural ecosystems and humankind’ in the unfccc, the concern here expressed be that ‘income and wealth within states are being increasingly unequally distributed’.
The distribution of income and wealth are both rates that constantly change over time. One could represent these distributions in many ways that illustrate how these rates change over time: one could, for example, use a composite measure such as the Gini coefficient or the Palma Ratio; alternatively—and this is the method preferred here—one could look at the share of the bottom 50 percent of income or wealth recipients in conjunction with the share of the next 40 percent and the top 10 percent and how these shares change over time.178 Moreover, as was also illustrated in Chapter 2—as a factual matter—a large majority of humankind are citizens of states currently experiencing a rise in concentration of income and wealth.
As for the effects of these rate changes, they too have been documented in Chapter 2. Again, it should be stressed here that these assertions are intended to be purely factual, much in the same way that the climate change and its effects can be expressed in an objective factual manner without making any normative judgments; or in the same way as the change in the level of overall biological diversity on Earth and the effects of such change over time can objectively be expressed as factual information to the extent that contemporary research methods permit. At this point of the inquiry, the question of whether the effects stemming from the changes in the distribution of income
4.2 Illustrating That the Distribution of Income and Wealth Requires a Cooperative Conception of Sovereignty
Plato had already taken what is a highly pointed stance on economic distributions by today’s standards in his Laws.179 Writing in the fourth century bc, Plato poignantly demonstrated the unparalleled power of law as a discipline to alter the distribution of income and wealth in a society in a deliberate and systematic fashion. His Laws is made up of 12 different books and consists of a dialogue between three fictional characters: one dubbed the ‘Athenian Stranger’, an ordinary Spartan citizen named Megillos and a lawmaker from Crete called Clinias.180 Through the Athenian Stranger, Plato initiates the dialogue by questioning the other men whether a god or a man should be credited as the author of their laws.181 What follows during the rest of the dialogue is essentially an attempt at answering this question, but the dialogue additionally allows the Athenian Stranger to contemplate the design of his ideal political order in practical terms. In Book v, the dialogue turns to contemplate an array of issues, including how many people an ideal society should be made up of and who should own how much property and wealth.182 The answers are incredibly concrete.
Taking from Book v only that which is necessary to make this point, the following (admittedly simplified ideas) can be gleaned about Plato’s notion of an ideal society: (1) out of what appears to essentially amount to mathematical convenience, it would be made up of no more than 5040 citizens;183 (2) equality of material possessions (wealth) is desirable in theory, but considered impossible as a practical matter;184 (3) acquisition of wealth is constructed so as to be based on merit, at least to the extent possible;185 (4) honours and offices are determined in proportion to a man’s wealth;186 (5) there will be four classes based on wealth alone;187 (6) there will be level of wealth that each
As illustrated earlier in this chapter, applying this sort of legislative scheme—whether its attainment is in fact desirable is of little moment—is not realistically possible. Exercising sovereignty in order to ensure particular distributions of income and wealth within a state can only be done in cooperation with other states: sovereignty needs to be updated; it should be seen as a cooperative enterprise whereby distributive competences can only be exercised—and achieving distributive justice can only be attained—within states through international cooperation given the contemporary state of economic globalization. Again, as with the framing stage described above, this is a factual inquiry that can be made without taking a particular normative stance about the desirability of states being able to enhance their internal economic sovereignty.
This remains the case regardless of one’s conception of distributive justice. Whether one takes a similar approach to the one of Plato as described above, whether one prefers a more Rawlsian understanding of distributive justice,191 or whether one takes the view that an economic system can be considered as providing for distributive justice only when government interference with the free market is at a minimum,192 the fact remains that in contemporary times distributive justice can only realistically be achieved through cooperation between sovereign entities. This notion is interrogated in greater detail with respect to discrete aspects of distributive justice in Chapter 4.
5 Conclusions
The distribution of income and wealth within a state, as has been illustrated throughout this monograph, depends on a very large number of factors,
In light of the above, it may be necessary to recognise a distributional common concern in respect of a number of areas of international law, each with its own modalities and particularities. Consideration of each possibility in this regard is well beyond the scope of this monograph. This monograph is restricted to contemplating the potential of recognising a distributional common concern in the area of international corporate taxation. Before turning to this topic, however, a detour is necessary in order for us to consider the most important contemporary actor insofar as the distribution of income and wealth—and all other common concerns of humankind—is concerned: the multinational enterprise.
Acknowledegments
A condensed version of this chapter has been published as a book chapter: see Alexander Beyleveld, ‘Exploring the Recognition of New Common Concerns of Humankind: The Example of the Distribution of Income and Wealth within States’ in Thomas Cottier (ed) The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
Jean-Jacques Rousseau, The Social Contract (oup, New York 1994), translated from the original French by Christopher Betts, 87. Footnote omitted.
On the history and development of common concern of humankind as a concept in international law, see Laura Sandra Horn, The Common Concern of Humankind and Legal Protection of the Global Environment (Unpublished PhD thesis, University of Sydney 2000) 103–93. See also Thomas Cottier, ‘The Principle of Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021) and Thomas Cottier et al, ‘The Principle of Common Concern and Climate Change’ (2014) 52 Archiv des Völkerrechts 293, 298–303.
Preamble, United Nations Framework Convention on Climate Change (unfccc) (adopted 9 May 1992, entered into force 21 March 1994) 1771 unts 107, 165.
Preamble, Convention on Biological Diversity (cbd) (adopted 5 June 1992, entered into force 29 December 1993) 1760 unts 79, 143.
On the Paris Agreement on Climate Change, see preamble, Paris Agreement (adopted 12 December 2015, entered into force 4 November 2016), I54113 untc 1, 89. For a brief overview of the use of the common concern of humankind concept in the work of the International Law Commission (ilc) on the protection of the atmosphere, see Nadia Sánchez Castillo-Winckels, ‘Why “Common Concern of Humankind” Should Return to the Work of the International Law Commission on the Atmosphere’ (2016) 29 Georgetown International Environmental Law Review 131, 132–3.
See, for example, in the context of the ilc’s work on the protection of the atmosphere, Shinya Murase (Special Rapporteur), Second Report on the Protection of the Atmosphere, UN Document a/cn.4/681 (2015) 18; ilc, Report on the Work of the International Law Commission: Sixty-Seventh Session, UN Document A/70/10 (2015) 26–7.
See Castillo-Winckels (n 5) 132.
See further below in this chapter for an examination of these debates.
See generally, for example, Frank Biermann ‘“Common Concerns of Humankind” and National Sovereignty’ in Diane Hiscox and Johanne Levasseur (eds), Globalism: People, Profits, and Progress: Proceedings of the 30th Annual Conference of the Canadian Council on International Law (Kluwer, London 2002). See also Horn (n 2) 135–45; Stephen Stec, ‘Humanitarian Limits to Sovereignty: Common Concern and Common Heritage Approaches to Natural Resources and Environment’ (2010) 12 International Community Law Review 361, 368.
See Castillo-Winckels (n 5) 135 and the sources cited there. See also Frank Biermann, ‘“Common Concern of Humankind”: The Emergence of a New Concept of International Environmental Law’ (1996) 34 Archiv des Völkerrechts 426, 465 and 481; Horn (n 2) 135–45; and Stec (n 9) 368.
For a different application of the maxim, see Claus D Zimmermann, A Contemporary Concept of Monetary Sovereignty (oup, Oxford 2013) 9–16.
For a brief overview of the history and development of climate change science, see Spencer Weart, ‘The Development of the Concept of Dangerous Anthropogenic Climate Change’ in John S Dryzek, Richard B Norgaard and David Schlosberg, Oxford Handbook of Climate Change and Society (oup, New York 2011) 67–81. For a detailed review of the physical science basis of climate change assertions, see generally Thomas F Stocker et al (eds), Climate Change 2013: The Physical Science Basis, Working Group I Contribution to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change (cup, New York 2014). On the impact and effects of climate change over time, see, for example, Christopher B Field et al (eds), Managing the Risks of Extreme Events and Disasters to Advance Climate Change Adaption: Special Report of the Intergovernmental Panel on Climate Change (cup, New York 2012) 109–290.
See, for example, Richard Baldwin, The Great Convergence: Information Technology and the New Globalization (hup, Cambridge, MA 2016), 81–2.
See Baldwin (n 13) 113–41.
See Baldwin (n 13) 4–6.
See also, however, Part i of John H Dunning and Sarianna M Lundan, Multinational Enterprises and the Global Economy (2ed Edward Elgar, Cheltenham 2008) 3–200; Ronald Findlay and Kevin H O’Rourke, Power and Plenty: Trade, War, and the World Economy in the Second Millennium (pup, Princeton 2008).
See Baldwin (n 13) 8–10.
On the pre-globalized era, see Chapter 1 of Baldwin (n 13) 21–46.
Baldwin (n 13) 114–20.
Baldwin (n 13) 47–9.
See Baldwin (n 13) 57–62. See also Chapter 3 of Branko Milanovic Global Inequality: A New Approach for the Age of Globalization (hup, Cambridge, MA 2016) 118–155.
See Baldwin (n 13) 75–6.
Baldwin (n 13) 81–5.
See Baldwin (n 13) 130–2.
See Baldwin (n 13) 142–76.
Baldwin (n 13) 142.
See Baldwin (n 13) 149–54.
See, for example, Gerald F Davis, The Vanishing American Corporation: Navigating the Hazards of a New Economy (Berrett-Kohler Publishers, Oakland 2016).
See Chapter 6 of Davis (n 29) 69–80.
Davis (n 29) 69.
Baldwin (n 13) 145.
See Chapter vii in David Ricardo, On the Principles of Political Economy and Taxation (John Murray, London 1817).
See Baldwin (n 13) 145–53.
Baldwin (n 13) 150.
Baldwin (n 13) 150.
Baldwin (n 13) 150.
Baldwin (n 13) 145.
Baldwin (n 13) 145.
Baldwin (n 13) 145.
Baldwin (n 13) 150. Emphasis original.
Baldwin (n 13) 145.
Baldwin (n 13) 169.
Baldwin (n 13) 170.
Baldwin (n 13) 170.
For a succinct overview of the history of offshore finance, see Chapter 1 in Gabriel Zucman, The Hidden Wealth of Nations: The Scourge of Tax Havens (University of Chicago Press, Chicago 2015), translated from the original French by Teresa Lavender Fagan.
Zucman (n 46) 24.
See generally Ethan B Kapstein, ‘Distributive Justice as an International Public Good’ in Inge Kaul, Isabelle Grunberg and Marc A Stern (eds), Global Public Goods: International Cooperation in the 21st Century (oup, New York 1999) 88–115.
See Kapstein (n 48) 94–7. See also generally Asa Briggs, ‘The Welfare State in Historical Perspective’ (1961) 2 European Journal of Sociology 221; Frank Nullmeier and Franz-Xaver Kaufmann, ‘Post-War Welfare State Development’ in Francis G Castles et al (eds), The Oxford Handbook of the Welfare State (oup, Oxford 2012) 81–104; Chapter 4 in Christopher Pierson, Beyond the Welfare State? The New Political Economy of Welfare (Penn State University Press, University Park, PA 1991) 99–166.
See, for example, Peter Greengross, Ken Grant and Elizabeth Collini, Helpdesk Report: The History and Development of the UK National Health Service 1948–1999 (dfid Health Systems Resource Centre, London 1999) for a history of the development of the National Health Service in the United Kingdom.
For an overview of public housing provisioning covering a large number of states in historical and contemporary perspective, see Jie Chen, Mark Stephens and Yanyun Man (eds), The Future of Public Housing: Ongoing Trends in the East and the West (Springer, Heidelberg 2013).
On trade adjustment assistance, see for example JF Hornbeck, Trade Adjustment Assistance (TAA) and Its Role in U.S. Trade Policy (Congressional Research Service, Washington, DC 2013) for an overview of the historical development of trade adjustment assistance in the United States.
See Baldwin (n 13) 165–75.
See generally WB Gallie ‘Essentially Contested Concepts’ (1956) 56 Proceedings of the Aristotelian Society 167.
See Samantha Besson, ‘Sovereignty in Conflict’ (2004) 8 European Integration online Papers (EIoP) 1, 7. See also Dan Sarooshi, ‘The Essentially Contested Nature of the Concept of Sovereignty: Implications for the Exercise by International Organizations of Delegated Powers of Government’ (2004) 25 Michigan Journal of International Law 1107, 1108–1109; Dan Sarooshi, International Organizations and Their Exercise of Sovereign Powers (oup, New York 2005) 3–5; and Zimmermann (n 11) 19–20.
Besson (n 57) 22. See also Zimmermann (n 11) 19–24 for a detailed analysis of contemporary monetary sovereignty as an ‘essentially contested concept’.
See A Vaughan Lowe, ‘The Problems of Extraterritorial Jurisdiction: Economic Sovereignty and the Search for a Solution’ (1985) 34 International and Comparative Law Quarterly 724, 740–6.
Lowe (n 59) 740.
Lowe (n 59) 740.
See Lowe (n 59) 741.
Lowe (n 59) 741.
See Lowe (n 59) 742.
Lowe (n 59) 742.
Lowe (n 59) 744. Emphasis added.
The concept ‘public goods’ is used here as it was used by Paul Samuelson. See Paul A Samuelson, ‘A Pure Theory of Public Expenditure’ (1954) 36 Review of Economics and Statistics 387.
Island of Palmas Case (Netherland v USA) (1928), 2 unriaa 829.
Lester C Thurow, ‘The Income Distribution as a Pure Public Good’ (1971) 85 Quarterly Journal of Economics 327.
Thurow (n 69) 327.
Thurow (n 69) 327.
Thurow (n 69) 328.
Thurow (n 69) 328–9.
Thurow (n 69) 335–6.
The distribution of income and wealth has also been shown to affect the provision of other public goods. See, for example, J Mohan Rao, ‘Equity in a Global Public Goods Framework’ in Inge Kaul, Isabelle Grunberg and Marc A Stern (eds), Global Public Goods: International Cooperation in the 21st Century (oup, New York 1999) 68, 79–85. For experimental evidence in this regard, see, for example, Lisa R Anderson, Jennifer M Mellor and Jeffrey Milyo, ‘Inequality and Public Good Provision: An Experimental Analysis’ (2008) 37 The Journal of Socio-Economics 1010; Annarita Colasante and Alberto Russo, ‘Voting for the Distribution Rule in a Public Good Game with Heterogeneous Endowments’ (2017) 12 Journal of Economic Interaction and Coordination 443; and Stephen Mark Rosenbaum et al, ‘Income Inequality and Cooperative Propensities in Developing Economies: Summarizing the Preliminary Experimental Evidence’ (2016) 43 International Journal of Social Economics 1460. It accordingly follows that states have the right to act in order to ensure the alteration of the distribution of income and wealth within their own territory not only because certain distributions constitute public goods as such, but also because it may be necessary to do so to ensure better provision of other public goods.
See Besson (n 57) 9. See also Vaughan Lowe, ‘Sovereignty and International Economic Law’ in Wenhua Shan, Penelope Simons, and Dalvinder Singh (eds), Redefining Sovereignty in International Economic Law (Hart Publishing, Portland OR 2008) 79–80.
See, for example, Besson (n 57) 9–10. See also Zimmermann (n 11) 25 for a brief illustration of the manner in which internal and external sovereignty overlap and come into conflict in the context of the monetary stability competence encompassed by a state’s monetary sovereignty.
See, for example, Allison Christians, ‘Sovereignty, Taxation and Social Contract’ (2009) 18 Minnesota Journal of International Law 99, 104–114.
On monetary sovereignty as a concept, see Zimmermann (n 11) 7–36.
See, for example, Thomas Piketty, Capital in the Twenty-First Century (hup, Cambridge, MA 2014), translated by Arthur Goldhammer, 133–4. See also Andres Erosa and Gustavo Ventura, ‘On Inflation as a Regressive Consumption Tax’ (2002) 49 Journal of Monetary Economics 761 wherein the authors posit that inflation is effectively a regressive consumption tax and that the distributional consequences of inflation should accordingly be taken into account in setting monetary policy. A wide range of additional channels have also been identified whereby monetary policy—that is the exercise of monetary sovereignty—has distributive effects. See, for example, Adrien Auclert, Monetary Policy and the Redistribution Channel (nber, Cambridge, MA 2017).
While it seems fairly obvious that the imposition of a minimum wage law will have distributional consequences, the precise effects, however, remain less clear. For two examples of attempts at clarifying these effects, see Arindrajit Dube, ‘Minimum Wages and the Distribution of Family Incomes’ (iza Institute of Labor Economics Discussion Paper 10572, February 2017) <
See Anthony B Atkinson, Inequality: What Can Be Done? (hup, London 2015) 123–7; Sean Ennis, Pedro Gonzaga and Chris Pike, ‘Inequality: A Hidden Cost of Market Power’ (oecd Discussion Paper 2017) <
See, for example, Changkyu Choi, ‘Does Foreign Direct Investment Affect Domestic Income Inequality?’ (2006) 13 Applied Economics Letters, 811; Teresia Kaulihowa and Charles Adjasi, ‘fdi and Income Inequality in Africa’ (2017) Oxford Development Studies (online) <10.1080/13600818.2017.1381233> accessed 30 September 2021; Jai S Mah, ‘Foreign Direct Investment, Labour Unionization and Income Inequality of Korea (2012) 19 Applied Economics Letters 1521 and Xiaodong Wu, ‘Foreign Direct Investment and Income Inequality’ in Hung-Gay Fung, Pei Changhong and Kevin H Zhang, China and the Challenge of Economic Globalization: The Impact of WTO Membership (Routledge, New York 2006) 61, 61–82.
See, for example, Matthew T Bodie, ‘Income Inequality and Corporate Structure’ (2015) 45 Stetson Law Review 69; J Adam Cobb and Flannery G Stevens, ‘These Unequal States: Corporate Organization and Income Inequality in the United States’ (2017) 62 Administrative Science Quarterly 304; and Gerald F Davis and J Adam Cobb, ‘Corporations and Economic Inequality around the World: The Paradox of Hierarchy’ (2010) 30 Research in Organizational Behaviour 35.
On the normative underpinnings of economic growth, see Lisa Herzog, ‘The Normative Stakes of Economic Growth; Or, Why Adam Smith Does Not Rely on “Trickle Down”’ (2015) 78 Journal of Politics 50.
These phrases are used as they are by Zimmermann. See Zimmermann (n 11) 24–7.
As an illustration of the variability of distributive justice as a normative concept, see generally Fred Feldman, Distributive Justice: Getting What We Deserve from Our Country (oup, Oxford 2016); John E Roemer, Theories of Distributive Justice (hup, Cambridge, MA 1996).
See further below in this chapter.
UN General Assembly, ‘Transforming our World: the 2030 Agenda for Sustainable Development’, unga Resolution a/res/70/1 (21 October 2015) <
UN General Assembly (n 92) 21.
See, for example, Andrew G Berg and Jonathan D Ostry, ‘Inequality and Unsustainable Growth: Two Sides of the Same Coin?’ (2017) 65 imf Economic Review 792; Francesco Grigoli and Adrian Robles, ‘Inequality Overhang’, imf Working Paper (28 March 2017).
See Besson (n 57) 13; Franz Xaver Perrez, Cooperative Sovereignty: From Independence to Interdependence in the Structure of International Environmental Law (Kluwer, The Hague 2000); Zimmermann (n 11) 31–5.
Besson (n 57) 13. Emphasis original, original footnotes omitted.
Besson (n 57) 12. Emphasis original.
UN General Assembly, Protection of Global Climate for Present and Future Generations (unga Resolution 43/53, 27 January 1989) 28 ilm 1326, 1326–7.
See Mostafa K Tolba, ‘The Implications of the “Common Concern of Mankind Concept” on Global Environmental Issues’ (1991) 13 Revista iidh 237.
Antônio Augusto Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium (Martinus Nijhoff Publishers, Leiden 2010) 344–5.
Cançado Trindade (n 100) 345.
Cançado Trindade (n 100) 346. Flexibility had at that time become necessary as most states had voiced concern with Malta’s invocation of the common heritage concept in its original proposal to the General Assembly in 1988, with states noting their view that the common heritage concept was inappropriate in the context of climate change. See Daniel Bodansky, ‘The United Nations Framework Convention on Climate Change: A Commentary’ (1993) 18 Yale Journal of International Law 451, 465.
See Cançado Trindade (n 100) 346.
See unfccc, preamble; cbd, preamble.
See Shinya Murase (Special Rapporteur), Second Report on the Protection of the Atmosphere, UN Document a/cn.4/681 (2015) 18; ilc, Report on the Work of the International Law Commission: Sixty-Seventh Session, UN Document A/70/10 (2015) 26–7. For a criticism of the removal of Draft Guideline 3, see Castillo-Winckels (n 5).
See Ben Boer, ‘Land Degradation as a Common Concern of Humankind’ in Federico Lenzerini and Ana Filipa Vrdoljak (eds), International Law for Common Goods: Normative Perspectives on Human Rights, Culture and Nature (Hart Publishing, Oxford 2014) 289.
See Harald Ginzky, ‘The Sustainable Management of Soils as a Common Concern of Humankind: How to Implement It?’ in Harald Ginzky et al (eds), International Yearbook of Soil Law and Policy 2017 (Springer, Cham 2017).
Edith Brown Weiss, ‘The Coming Water Crisis: A Common Concern of Mankind’ 1 (2012) Transnational Environmental Law 153.
See Aline Jaeckel, ‘Intellectual Property Rights and the Conservation of Plant Biodiversity as a Common Concern of Humankind’ (2013) 2 Transnational Environmental Law 167.
See Zaker Ahmad, ‘Trade-Related Measures to Spread Low Carbon Technologies: A Common Concern Based Approach’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
See Iryna Bogdanova, ‘Reshaping the Law of Economic Sanctions for Human Rights Violations: The Potential of Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
See Judith Schäli, ‘Marine Plastic Pollution as a Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021) and Judith Schäli, ‘Intergenerational Justice and the Concept of Common Concern in Marine Resource Allocation and Ocean Governance’ in Thomas Cottier, Shaheeza Lalani and Clarence Siziba (eds), Intergenerational Equity: Environmental and Cultural Concerns (Brill | Nijhoff, Leiden 2019).
See Lucia Satragno, ‘International Monetary Stability as a Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
See Federico Lupo-Pasini, ‘Financial Stability as a Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
See Thomas Cottier and Rosa Maria Losada, ‘Migration as a Common Concern of Humankind’ in Thomas Cottier (ed), The Prospects of Common Concern of Humankind in International Law (cup, Cambridge 2021).
See Jutta Brunnée and André Nollkaemper, ‘Between the Forests and the Trees—An Emerging International Forest Law’ (1996) 23 Environmental Conservation 307.
unfccc, preamble.
cbd, preamble.
Jutta Brunnée, ‘Common Areas, Common Heritage, and Common Concern’ in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), The Oxford Handbook of International Environmental Law (oup, New York 2007) 565.
Brunnée (n 119) 565.
Cançado Trindade (n 100) 351.
Friedrich Soltau, ‘Common Concern of Humankind’ in Cinnamon P Carlane, Kevin R Gray and Richard G Tarasofsky (eds), The Oxford Handbook of International Climate Change Law (oup, New York 2016) 207–8.
Tolba (n 99) 239.
The protection of a natural resource per se is better captured by the concept of ‘common heritage of humankind’. On the common heritage of humankind, see generally Kemal Baslar, The Concept of the Common Heritage of Mankind in International Law (Kluwer Law International, The Hague 1998); Cançado Trindade (n 100) 327–44.
Dale Jamieson, ‘The Nature of the Problem’ in John S Dryzek, Richard B Norgaard and David Schlosberg, Oxford Handbook of Climate Change and Society (oup, New York 2011) 38–54. Emphasis added.
See ‘adverse, adj. and n’. in Oxford English Dictionary Online (oup, online March 2018) <
Jamieson (n 125) 39.
unfccc, Article 1.2.
cbd, preamble. Emphasis added.
cbd, preamble.
See Duncan French, ‘Common Concern, Common Heritage and Other Global(-ising) Concepts: Rhetorical Devices, Legal Principles or a Fundamental Challenge’ in Michael Bowman, Peter Davies and Edward Goodwin (eds), Research Handbook on Biodiversity and Law (Edward Elgar Publishing, 2016 Cheltenham) 342–9.
French (n 131) 345.
French (n 131) 346.
United Nations Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa (adopted 14 October 1994, entered into force 26 December 1996) 1954 unts 3, 108–11. Emphasis added.
French (n 131) 346. Emphasis original.
French (n 131) 346.
See, for example, Brunnée (n 119) 564–7.
See unfccc, preamble where a subset of humanity are considered to be ‘particularly vulnerable to the adverse effects of climate change’.
Brunnée (n 119) 564–7. Emphasis added.
Castillo-Winckels (n 5) 147. Emphasis added.
Castillo-Winckels (n 5) 147. Emphasis added.
French (n 131) 354. Emphasis added.
See also Cançado Trindade (n 100) 344 where it is asserted that ‘The emphasis of this latter [i.e. common concern of humankind] falls upon concerted actions in equitable sharing of burdens (in environmental protection)’. Emphasis added.
See unfccc, preamble.
Cançado Trindade (n 100) 344.
See, for example, Cançado Trindade (n 100) 344; Brown Weiss (n 108) 164–5; Castillo-Winckels (n 5) 146; French (n 131) 345.
See John Hay and Nobuo Mimura ‘The Changing Nature of Extreme Weather and Climate Events: Risks to Sustainable Development’ (2010) 1 Geomatics, Natural Hazards and Risk 3, 3.
Soltau makes the same argument in respect of obligations erga omnes. See Soltau (n 122) 207.
Brunnée (n 119) 564–7.
See Brunnée (n 119) 564–7; French (n 131) 354–6.
Brunnée (n 119) 564–7.
See Brunnée (n 119) 564–7; French (n 131) 354–6.
See generally, in this regard, John O McGinnis and Illya Somin, ‘Should International Law be Part of Our Law?’ (2007) 59 Stanford Law Review 1175.
This does not, however, render the exercise of recognising a common concern of humankind without specifying concrete legal rules meaningless. See French (n 131) 354–6.
See Castillo-Winckels (n 5) 132.
Dina Shelton, ‘Common Concern of Humanity’ (2009) 5 Iustum Aequum Salutare 33, 38.
unfccc, preamble. Emphasis added.
unfccc, preamble.
See Cottier et al (n 2); Brunnee (n 119); Shelton (n 156).
This phrase is used here in the same general sense as in Cottier et al (n 2).
See Brown Weiss (n 108) 164.
Brown Weiss (n 108) 164.
See Cottier et al (n 2).
This phrase is used here in the same general sense as in Cottier et al (n 2).
Cottier et al (n 2) 318.
Cottier et al (n 2) 319.
Cançado Trindade (n 100) 351. Emphasis original.
See Cançado Trindade (n 100) 344.
Brunnée (n 119) 564–7.
See, for example, Cottier et al (n 2) 303.
See, for example, Cottier et al (n 2) 303.
French (n 131) 344.
See ‘rate, n.1’ in Oxford English Dictionary Online (oup, online March 2018) <
See ‘climate, n.1’ in Oxford English Dictionary Online (oup, online March 2018) <
See Soltau (n 122) 208.
unfccc, preamble.
cbd, preamble.
Plato, Laws, Volume I: Books 1–6 (William Heinemann Ltd., London 1926), translated from the original Greek by R.G. Bury.
See Plato (n 179) vii-xvii.
See Plato (n 179) vii-xvii..
See Plato (n 179) 323–92.
Plato (n 179) 356–9.
Plato (n 179) 360–5, 378–9.
Plato (n 179) 378–9.
Plato (n 179) 378–9.
Plato (n 179) 378–9.
Plato (n 179) 378–381.
Plato (n 179) 380–1.
Plato (n 179) 380–1. Plato also spoke to additional rules relating, for example, to the coining of money, foreign aid and immigration. See generally Plato (n 179) 323–93.
See generally John Rawls, A Theory of Justice (Revised Edition) (hup, Cambridge, MA 1999); more specifically, see 228–335.
For the defence of such a view, see generally, for example, Milton Friedman, Capitalism and Freedom (University of Chicago Press, Chicago 1962); more specifically, see 161–176.