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Unilateral Jurisdiction to Provide Global Public Goods: a Republican Account

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Unilateral Jurisdiction to Provide Global Public Goods: a Republican Account UNILATERAL JURISDICTION TO PROVIDE GLOBAL PUBLIC GOODS: A REPUBLICAN ACCOUNT Aravind Ganesh* INTRODUCTION ........................................................................ 566 I. LIBERAL THEORIES: SOVEREIGN TRUSTEESHIP OF HUMANITY ............................................................................... 571 A. Harms and Wrongs ........................................................ 579 B. Public Actors and Human Rights Jurisdiction ............. 581 C. The Failure of the Argument from Well-Being ............... 584 II. PRIVATE RIGHT: DIGNITY AS FREEDOM FROM DOMINATION ........................................................................... 586 A. Private Legal Relations .................................................. 589 B. The Division of Torts: Property and Personality Wrongs ................................................................................ 591 C. The Three Defects in the State of Nature ....................... 597 D. Legislating With Respect to Property and Personality .. 602 III. PUBLIC RIGHT: THE STATE AS FIDUCIARY ........................ 604 A. The Separate, Public Person of the State ....................... 604 * Research Fellow, Max Planck Institute Luxembourg for Procedural Law. LL.B. (King’s College, London), J.D. (Columbia), B.C.L. (Oxon). Earlier versions of this article benefited greatly from the insightful comments of atten- tive readers, as well as from opportunities to have them discussed at various fora. For this, I would like to thank my colleagues at the Max Planck Institute Luxembourg, my doctoral advisors Ester Herlin-Karnell and Geoffrey Gordon, as well as Eoin Daly, Magnus Killander, Mattias Kumm, Cedric Ryngaert, Io- anna Tourkochoriti, and Johan van der Walt. I am also thankful to Evan Fox- Decent and Arthur Ripstein for sharing draft papers and manuscripts with me, and to the editors of the journal for their hard work. Lastly, this article would not have been written if not for a visiting fellowship at the Buchmann Faculty of Law, Tel Aviv University under the aegis of the GlobalTrust Research Pro- ject, funded by European Research Council Advanced Grant no. 323323. For this unforgettable experience, I am eternally grateful to Eyal Benvenisti. I re- main strictly liable for all errors. 566 BROOK. J. INT’L L. [Vol. 42:2 B. Public Goods: Ripstein’s Roads ...................................... 613 C. Limitations upon the Right to Provide Public Goods .... 620 IV. INTERNATIONAL LAW: PROPERTY AND BODY ..................... 621 A. The Body of the State: Territory, Natural Resources, and People .................................................................................. 626 B. International Wrongs: Iniuria and Restitution ............. 631 V. GLOBAL PUBLIC GOODS ...................................................... 634 A. The Theoretical Argument .............................................. 634 B. The Irrelevance of Harm ................................................ 639 C. Public Purpose and Necessity ........................................ 647 D. Extraterritorial Human Rights Obligations .................. 649 CONCLUSION ........................................................................... 652 INTRODUCTION limate change, international terrorism, the spread of com- C municable diseases, and other similar problems affect the lives of everybody all over the world. Ideally, states and other political institutions of jurisdiction1 would cooperate to solve them, and quickly. Despite their urgency, however, multilateral efforts in a number of these areas have progressed too slowly, if at all. Even where progress is made, all it takes to undo it is for one or two important players to pull out.2 In this context, some states have unilaterally taken measures to regulate activities outside their territory. Well-known examples include the ban en- acted by the United States against imports of shrimp caught in 1. The category of “political institutions of jurisdiction” contains just one example, the European Union. The European Union is not a sovereign state but exercises direct jurisdiction over individuals nonetheless. The difficult is- sues of democratic legitimacy that this raises cannot be examined here. For the purposes of this article, it shall be treated in the manner of a defective federal state. 2. As this article was being prepared, President Trump announced the withdrawal of the United States from the Paris Climate Accord, an agreement on the reduction of greenhouse gas emissions that had been hailed as the best opportunity for averting catastrophic climate change, and which had been signed by 195 countries. Michael D. Shear, Trump Will Withdraw U.S. From Paris Climate Agreement, N.Y. TIMES (June 1, 2017), at A1. 2017] Unilateral Jurisdiction to Provide Public Goods 567 the high seas using nets that tended to snare endangered tur- tles,3 and the European Union’s Emissions Trading Directive, which required all aircraft landing or taking off from EU to offset their carbon emissions, regardless of nationality or place of emis- sion.4 Such measures are by no means the preserve of large eco- nomic and military powers. In 2014, the island republic of Sin- gapore unilaterally legislated to create civil and criminal liabil- ity for any corporation engaged in massive burning of forests in neighboring Indonesia of the type that tended to cause wide- spread air pollution in Singapore.5 Along with Australia, Cape Verde, Angola, and South Africa, Singapore has also enacted data protection laws applying to organizations even if not phys- ically located in the country.6 The international legality of these measures is a matter of heated controversy.7 As shown in Part I, however, a number of 3. Departments of Commerce, Justice, and State, the Judiciary, and Re- lated Agencies Appropriations Act of 1990, Pub. L. No. 101–162, §609 (103 Stat.) 988, 1037–38 (codified at Endangered Species Act of 1973 (ESA), 16 U.S.C. §1537 (1994)). 4. Council Directive 2008/101, 2008 O.J. (L 8) 3 (EC) (amending Council Directive 2003/87, 2009 O.J. (L 8) 3 (EC)). 5. Transboundary Haze Pollution Act, No. 24 (2014), §§ 4–8 (Sing.). For useful readings, see Mahdev Mohan, A Domestic Solution for Transboundary Harm: Singapore’s Haze Pollution Law, 2 BUS. & HUM. RTS J. 325 (2017). 6. Personal Data Protection Act, No. 26 (2012), (Sing.). See Sheena Jacob & Jinesh Lalwani, Personal Data Protection law is enacted in Singapore, BIRD & BIRD (Oct. 18, 2012), http://www.twobirds.com/en/news/articles/2010/per- sonal-data-protection-law-is-enacted-in-singapore-1012; Dan B. Svantesson, The Extraterritoriality of EU Data Privacy Law—Its Theoretical Justification and Its Practical Effect on U.S. Businesses, 50 STAN. J. INT’L L. 53, 88–89 (2014). 7. Both the US and EU measures mentioned in notes 3 and 4 were ulti- mately scuppered. The United States’ prohibition on the importation of shrimp was held to be incompatible with the US’s obligations under the General Agree- ment on Trade and Tariffs (GATT) in Appellate Body Report, United States— Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R (adopted Oct. 12, 1998). The legality of the EU Emissions Trading Directive was challenged before the Court of Justice of the European Union (CJEU), but upheld in Case C-366/10, Air Transport Association of America v. Secretary of State for Energy and Climate Change, 2011 E.C.R. I-2735. Following the deci- sion, 23 countries threatened retaliation including international litigation and review or cancellation of air transport service agreements. The EU subse- quently shelved emissions offsetting requirements on international flights, and now only imposes them on flights within the European Economic Area. See 568 BROOK. J. INT’L L. [Vol. 42:2 prominent scholars defend them using the concept and terminol- ogy of “public goods” borrowed from the economic sciences.8 On this view, environmental protection, the prevention of terrorism, competitive markets, and many other things are designated as “global public goods”, on the basis that they enhance utility for all,9 but tend to be “undersupplied” due to certain structural fea- tures of nonrivalrousness and nonexcludablility, which in turn leaves particular individuals and states with no incentive to sup- ply them but instead to “free ride” on the efforts of others.10 Such accounts begin from what this article calls the “liberal” premise that the fundamental concern of law is with the well- being of individual human beings. They generally argue that unilateral measures asserting extraterritorial jurisdiction are justified on grounds that they provide certain kinds of utility— European Commission, Reducing emissions from aviation, http://ec.eu- ropa.eu/clima/policies/transport/aviation/index_en.htm (last visited July 29, 2016). 8. See Paul A. Samuelson, The Pure Theory of Public Expenditure, 36 REV. ECON. STAT. 387, 387–89 (1954); MANCUR OLSON, LOGIC OF COLLECTIVE ACTION PUBLIC GOODS AND THE THEORY OF GROUPS (1965). 9. See, e.g., Inge Kaul, Isabelle Grunberg & Marc A. Stern, Defining Global Public Goods, in GLOBAL PUBLIC GOODS: INTERNATIONAL COOPERATION IN THE 21ST CENTURY 2, 2–9 (Inge Kaul, Isabelle Grunberg, & Marc A. Stern eds., 1999); Daniel Bodansky, What’s in a Concept? Global Public Goods, Interna- tional Law, and Legitimacy, 23 EUR. J. INT’L L. 651, 652–53 (2012); Fabrizio Cafaggi, Transnational Private Regulation and the Production of Global Public Goods and Private “Bads,” 23 EUR. J. INT’L L. 695, 695–96 (2012); Petros C. Mavroidis, Free Lunches?
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