International Adjudication and the Commons
33 Pages Posted: 2 Dec 2019
Date Written: August 26, 2019
Abstract
Theories of ‘the commons’ predict human capacity for cooperation and competition over ownerless or commonly-held places or things. The popular conception of the ‘tragedy of the commons’ holds that relentless free-riding leads to resource depletion. Elinor Ostrom disproved the inevitability of tragedy by showing how small-scale communities manage common pool resources. Graduated sanctions and rule enforcement form part of the institutions for collective action. This article is the first to consider how these concepts relate to international courts and tribunals. It includes discussion of the ‘global commons’ outside national jurisdiction (such as the high seas and the deep seabed), but also ascribes as ‘common pool resources’ or ‘global public goods’ the objects of past international litigation: whales, southern bluefin tuna, sea turtles and even freedom from the threat of nuclear weapons. Part of a symposium on ‘the role of international courts in protecting environmental commons’, the article focuses on the International Court of Justice, the International Tribunal for the Law of the Sea and the World Trade Organization. By analyzing legal process as well as underlying rights and obligations, the article brings to the fore the social, cultural and economic conditions that have been at play in international litigation over commons-type scenarios, and reflects upon whether the tribunals have been well-equipped to deal with them. The article’s findings have implications for future engagement by international courts in the ideals and ideas of the commons, and for the framing of shared interests in international law.
Keywords: commons, common pool resources, global public goods, public international law, international courts and tribunals, international community as a whole
JEL Classification: F53, H41, K33, Q28
Suggested Citation: Suggested Citation