The Tragedy of the Global Commons in Public International Law

Description

To what extent does public international law that generally applies in our global commons enable a tragedy of the commons in the global commons? The theory of the tragedy of the commons describes the plights of overuse and degradation that shared resources face when subject to, inter alia, a freedom of use, and the theory is often applied to criticize certain positive emanations of public international law in the global commons. As the theory is routinely used in the context of economic approaches to law and commons, the method employed is a positive economic analysis of international law. This encompasses an interdisciplinary approach where the legal analysis is preceded by frameworks that elaborate on the various component parts of the theory of the tragedy of the commons. With that in mind, the dissertation produces the following main arguments that answer the main question. First, the global commons are the resource domains we often refer to as areas beyond national jurisdiction. These areas include the oceans, the atmosphere and outer space, all of which contain tragic commons resources. Secondly, tragedy mirrors individual rationality, and States are tragic actors that embody such rational self-interest. State sovereignty in international law reflects such tragedy, and other constructs, such as the Lotus presumption, facilitate and extend such tragedy to the global commons. Thirdly, all global commons have tragic open-access freedoms to exploit resources. Such tragic freedoms are evidenced by the freedom of the seas, the freedom of the air, and the freedom of outer space, as well as by surrounding rules that ensure a non-excludable tragic freedom. Fourthly, and lastly, tragedy is perpetuated with faulty general solutions in international law because States fail to avert the hurdles of collective action and their own self-interest. These failed solutions include treaty law that lacks universal adherence and holistic subject matter, and customary international law that more intimately reflects State self-interest. With these facets of international law, public international law enables a tragedy of the commons in the global commons.