Global Public Goods and Human Rights A General Discussion
By Honourable Lady Justice Sophia A.B. Akuffo President of the African Court on Human and Peoples’ Rights
At the 1st International Symposium on Development Policies in a Global World Madrid, Spain 29-30 October 2013 INTRODUCTION
In a globalizing world, problems and solutions have transcended national borders, resulting in a growing need for international collective action, as ‘…many issues that were previously treated as national or local have in fact acquired a broader scope’.1 During recent years, the concept of Global Public Goods (GPGs) has become an increasingly important part of international policy making, thus now causing theories of legal empowerment and GPGs to borrow from the paradigms of economics.2
The concept of GPGs appears in the agendas of UN agencies, the IMF/ World Bank, and
Non-governmental organizations, this is because everyone depends on public goods; neither markets nor the wealthiest person can do without them. Clean environment, health, knowledge, property rights, peace and security, inter alia, are all examples of public goods that are now considered necessities on a global scale.
Although the concept of GPGs remains criticized for being too academic and abstract it has also brought about enthusiasm and strong advocacy ‘…because of its potential implications for development policy’.3 Still questions remain unanswered regarding financial aspects and how to provide global public goods,4 and ‘…the response of the human rights community is also equally a game of catch-up’ with regard to global public goods.5 Despite these shortcomings, ‘in order to better manage and regulate globalization, priority should be given
1 The Courier: the magazine of ACP-EU development cooperation, ‘Global Public Goods -Country Re port: Niger No. 202 January-February-March 2004 available at
This paper will aim to addressing and highlighting the role of human rights in the provision of
GPGs.
DEFINING GLOBAL PUBLIC GOODS?
The terminology and concept of GPGs may be new to the international legal arena; however, it is not a new phenomenon as many of the principle features and implications of GPGs are familiar7, having a solid foundation in economic theory, with discourse both in international law literature, as well as, economic literature. 8 This is evident when the concept of public goods is examined, and although the concept from an economic and international law perspective are ‘based on a different starting points, Nollkaemper recognises that the two approaches largely overlap’. 9
GPGs are essentially public goods. The definition of public goods dates back to 1954, however Kaul’s contemporary definition takes precedence. Public goods are typically defined as counterparts of private goods. The latter tend to be excludable, with clearly defined property rights attached to them; and often, they are rivals in consumption. For example, if one person consumes a glass of milk, others cannot enjoy it any longer. It is then consumed. This rivalry in consumption lends added importance to the excludability of private goods. But it is especially the excludability that makes private goods tradable in markets. In a market transaction a buyer gains access to a private good in exchange for money, or sometimes, in exchange for another good or service.
6 UNDP, Global Public Goods Financing: New Tools for New Challenges: a policy Dialogue, 2002 in M s Inge Kaul ed p.4 7 D Bodansky, ‘What’s in a concept? Global public goods, international law, and legitimacy’ (2012) 23 EJIL 651 8 A Nollkaemper, ‘International adjudication of global public goods: the intersection of substance and p rocedure’ (2012) 23 EJIL 769, 775-776 9 Ibid, 776 Public goods, on the other hand, within economic theory, are defined through non-rivalry in consumption, or indivisibility of their benefits, and non-excludability. Non-rivalry in consumption means that the consumption of a public good by one person does not detract anything from its consumption by other, additional persons. And non-excludability refers to the fact that it is impossible, or at least extremely difficult (and therefore most likely also economically undesirable) to exclude people from the good’s consumption.10
‘Global public goods are and expanded version of this concept of public goods…’11 with benefits that extend across countries and regions, across rich and poor population groups, and even across generations. ‘Although the terms ‘global’ and ‘public’ modify ‘goods’ in the phrase ‘global public goods’, they pertain not the thing itself but to its effect’.12
The term ‘public goods’ used by academics in international law, is used to refer to values of interests that are considered to be good for the international community as a whole, often using the vocabulary of erga omnes norms to describe public goods.13 The international law perspective advances two concepts, one based on the substance of values that constitute the public good and one that defines public goods in terms of their enforcement or under- enforcement.; both norms reflecting fundamental values of the international community.14
GPGS AND MDGS: SYNERGIES AND COMPLEMENTARITIES
The Millennium Declaration of 2000 set out an ambitious international agenda to tackle peace and security, development, human rights, and the environment. Alongside development goals on poverty, water and education, commitments were also made to
10 I Kaul, Public Goods: Taking the Concept to the 21st Century’, available at
In the following year, these wide ranging commitments were slightly amended and encompassed in a single list called the Millennium Development Goals15. The eight goals are to:
1. Eradicate extreme poverty and hunger
2. Achieve universal primary education
3. Promote gender equality and empower women
4. Reduce child mortality
5. Improve maternal health
6. Combat HIV/AIDS, malaria and other diseases
7. Ensure environmental sustainability
8. Develop a global partnership for development
The goals did not emerge in a vacuum, but represent the culmination of a decade-long global debate and earlier attempts to set international development targets. They have subsequently gained a high profile, particularly among the international development community and a significant number of developing States.16
Taken into consideration the aforementioned definition and characteristics of GPGs one can assert that MDGs fall comfortably within this concept. Especially that of goal number eight
(8) for the development of global partnership for development.
15 http://www.un.org/millenniumgoals/ 16 M Langford, ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 IJMG R 165 available at
Although GPGs, ‘as promoted by Kaul, have received less attention than MDGs’,20 Kaul in her scholarly article goes further and suggests ways in which GPGs are a means to achieving MDGs. She suggests that by enhancing the provisions of GPGs, can be a decisive-and cost-effective- step towards meeting MDGs. 21 Kaul goes on to explain that
‘[e]xamining the MDGs through the lens of GPGs reflects the embeddedness of the Goals in the Millennium Declaration’.22 The two- GPGs and MDGS- shows the links between peace, the environment, trade and finance, governance and development.23
Another particular MDG that can be realised through GPGs is the promotion of gender equality and women empowerment as well as health. For example, an ‘African women who faces a high risk of maternal mortality is more likely to prefer enhanced publicness of relevant medical and pharmaceutical knowledge’;24 this can be achieved via GPGs.
17 ibid 18 Center for Human Rights and Global Justice, Human Rights Perspectives on the Millennium Develo pment Goals: Conference Report (New York: NYU School of Law, 2003) available at
GPGS AND HUMAN RIGHTS
It is suggested that MDGs and GPGs are intertwined and rather one in the same, irrespective of the fact that the latter goes beyond the field of development to incorporate, inter alia, peace, environment, security, and finance25 on a global scale; whilst the former focuses on development at a national and regional level. Nonetheless, the most important ingredient of both fora is development,26 with the aim to achieve the betterment and enhancement of a people, with the additament that the ‘General Assembly’s broad goals contained in the Millennium Declaration constituted a good representation of minimum global demands’27, much of which are incorporated within GPGS and MDGs. The challenge now is for these concepts and theories to catch up with the new realities;28 that being the realities of the applicability of human rights in the twenty first century.
Database searches turn up only a handful of articles published in the last decade with the terms ‘global public goods’ and ‘human rights’ in the title or abstract, nonetheless, Langford quotes the statement that “[t]here is agreement between the Millennium Goals, the goals for public goods and human rights.”29 With that said the arguments put forward of the need to
25 M Langford, ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 IJMG R 165, 168 available at
Despite arguments that human rights is still at a game of catch up with respect to GPGs, historically, from a philosophical theoretical approach, Rousseau ‘saw the protection of human rights as only possible through the provision of a broad range of public goods, such as law, public finance,….and equal access to education’,30 whilst Lindsnaes drew out the similarities between public goods and human rights to be that of the ‘mutual principles of universality, indivisibility and interdependence and their part actualisation through international and regional forms of cooperation’.31
Within the discourse of application of human rights norms with regard to GPGs there is a centrality of a range of issues which need to be examined far more systematically than they so far have been. They include, for example, gender and human rights, the many issues surrounding the concept of transitional justice, the human rights responsibilities of multinational corporations, the utility of private codes of conduct in ensuring that private actors respect human rights, the feasibility of minimum or ‘core’ international labour standards and of the types of ‘social clauses’ that have been proposed in the WTO context, the role of non-state actors.32
Irrespective of the aforementioned issues, Dorsey and others assert that relying on human rights standards and principles to give moral and legal force is more politically realistic than relying on goal-setting alone, and there is also good reason to believe that it would yield better results. 33 Moreover, a human rights-driven approach is realistic because it relies, first
30 M Langford, ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 IJMG R 165, 173 available at
APPLICABILITY OF HUMAN RIGHTS PROVISIONS
There has been much discussion of the need to attain Millennium Development rights
(MDRs) in order sustain human development.35 These rights constitute a full body of indivisible human rights which include the obligations to respect, to protect, and to fulfil economic and social rights, as well as the overarching right to participation and right to be free from discrimination (including the obligation to prioritise the needs of the most vulnerable or marginalised populations).36 However, the need for this has been heavily criticised as simply ‘going round in circles’. The question has been posed – ‘what is the need for another human rights instrument?’
Yet, the nexus between human rights provisions, MDGs and GPGs is or ought to be quite evident. For example Goal 1 of the MDGs - eradication of extreme poverty and hunger - is enshrined in articles 6, 9 and 11 of the International Covenant on Economic, Social and
Cultural Rights, whereas Goal 3 of MDGs - promotion of gender equality and empowerment of women - is enshrined in Articles 13 and 14 of the International Covenant on Economic,
Social Cultural Rights, Articles 28(1)(c) of the Convention on the Rights of the Child, Article
10 CEDAW, and Article 5(e) International Convention on the Elimination of All Forms of
Racial Discrimination.37 It is not a question of whether or not there is need for yet another instrument, it is a question of what modes or principles will best assure or significantly contribute to the assurance of compliance and due delivery.
34 ibid 35 Ibid, 520 36 ibid 37 UNHR, ‘The Millennium Development Goals and Human Rights’ available at
Langford, however, highlights that, ‘the GPGs approach offers no in-built system for monitoring and accountability.38 This is of grave concern as ‘setting targets without real accountability will not transform the systems that create discrimination and marginalisation, and goal setting without accountability is a failed methodology.39 Thus, it is imperative that recourse to judicial enforcement, particularly through international Courts, be available, as their roles in the protection of public goods are vital. Despite this, ‘given the public nature of public goods; it stands to reason that enforcement is left primarily to political institutions rather than to courts’.40 However, a collective action between civil society organisations,
NGOs and governments is required. Where this fails, then, judicial recourse must be available as part of the built-in mechanisms.
AFRICAN HUMAN RIGHTS INSTRUMENTS
It is rather disheartening to note that, when referring to the United Nations Human Rights
Article41 and cross reference is given with regards to the linkage between HR instruments and MDGs, reference was not made to African Human Rights instruments.
Certainly, international organizations can draw a lot of inspiration from the African Charter on
Human and Peoples’ Rights (the Charter) as it is the first such instrument to contain both individual and group rights, and places social, economic and cultural rights at par with civil and political rights. Historically, when compared to other regional human rights instruments,
38M Langford, ‘Keeping Up with the Fashion: Human Rights and Global Public Goods’ (2009) 16 IJMG R 165, 174 available at
Most of the MDGs are aimed at assisting developing countries to reach desirable standards of development. Consequently, the existing African human rights instruments are more than relevant, and are sustainable as well. Within the African Human Rights framework, claims for violation are justiciable and may be adjudicated based upon, inter alia, the African Charter on Human and Peoples’ Rights, the Protocol to the African Charter on Human and Peoples’
Rights on the Establishment of an African Court on Human and Peoples’ Rights (the Court
Protocol), the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), and the African Charter on the Rights and Welfare of the Child as a powerful means to enforce MDGs and the production of GPGs. Drawing from these Continental Human Rights instruments, the majority of current African constitutions have also provided a platform for judicially enforceable individual and group human rights at the domestic level that may, arguably, be leveraged toward the ends of assuring the States’ delivery of GPGs.
The mandate of the African Court on Human and Peoples’ Rights (the Court), is to protect human and peoples’ rights through judicial interpretation and application of the Charter, the
Court Protocol and ‘any other relevant Human Rights instrument ratified by the States concerned’43. Potentially, therefore, the Court can be influential in leading the way in adjudicating claims against African States that directly or indirectly undermine GPGs. The
42 F Macmillian, ‘Looking back to look forward: is there a future for human rights in the WTO? (2005) 1 1 Int TLR 163, 164 43 Combined effect of Articles 2 and 3 of the Court Protocol Charter provides, inter alia, for the right of peoples to freely dispose of their wealth and natural resources,44 the right to national and international peace and security,45 and the right to a generally satisfactory environment favourable to their development46. The Maputo
Protocol has similar provisions in which it has expounded on with specific reference to the rights of women and girls.47
Whilst the African continent has solid HR protection instruments, needless to say, the value of such protection lies in its enforcement, and such enforcement is dependent on stakeholders. Where necessary, it is these stakeholders who will be the best parties to pursue judicial recourse.
The call for transparency and accountability has gained a new momentum in Africa, a continent wherein secrecy and impunity had traditionally dominated the governance system.
Therefore, the role of African civil society is vital for the assurance of overall good governance in order to achieve MDGs through the enhancement of GPGs, ‘as the success of development and democratic governance depends on both a robust state and an active, capable and healthy civil society’.48 Where that fails at the domestic level, it is crucial that available continental avenues be utilised by civil society organisations in Africa in assuring the enforcement of the deliverables through recourse to the Court.
Furthermore, the work of civil society, in partnership with the Court, is pivotal with regard to the continuance of making the presence of the Court known throughout the continent through public sensitisation. The objectives of such sensitization, beyond raising public awareness, are to also highlight each state’s shortcomings (or facilitation) vis-a-vis access to
44 Article 21 45 Article 23 46 Article 24 47 Article 10 on the right to peace, article 18 on the right to a healthy and sustainable environment, Article 19 on the right to sustainable development 48 UNDP, African Forum on Civil Society and Governance Assessments, UNDP Partnerships Bureau, Civil Society Division; Bureau for Development Policy, Oslo Governance Centre; Regional Bureau for Africa. November 2011 available at <
African and universal human rights instruments.