Providing global public goods under international law.

Position::International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion
 
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This panel was convened at 10:45 a.m., Thursday, March 25, by its moderator, Rebecca Bratspies of City University of New York School of Law, who introduced the panelists: Anne van Aaken of the University of St. Gallen's School of Law; Victoria Henson-Apollonio of the Consultative Group on International Agricultural Research; Inge Kaul of the United Nations Development Programme; and Sabrina Safrin of Rutgers School of Law-Newark. *

* Victoria Henson-Apollonio and Inge Kaul did not submit remarks for the Proceedings.

GLOBAL PUBLIC GOODS: AN INTRODUCTION

The continuing rise of global inequity places a strain on the global social fabric. To better understand global crises, ranging from climate change to the financial crisis to growing food insecurity (to name a few), we propose to look at today's policy challenges through the lens of global public goods (GPGs).

It is commonplace to remark that markets are the primary way of providing private goods. But markets rely on a set of goods that they cannot themselves provide: property rights, peace, stability, equity, environmental sustainability, and many forms of knowledge.

These public goods have benefits that are non-rival and non-excludable (either fully or partially), As a result, without collective and cooperative action, these goods will be under-produced. Because the costs can be concentrated while the benefits are diffuse, it can be very difficult to produce these goods, even when the benefits vastly outweigh the costs.

Provision of public goods requires cooperation. Thus, discussion of public goods implicates a host of cooperation and coordination problems. Within the state, these coordination and cooperation problems are resolved by governmental action. Governments clarify property rights, set norms and standards, provide incentives or bring the coercive power of the state to bear in order to produce socially optimal outcomes. States succeed to a greater or lesser extent in this process. Unfortunately, public goods often face a double challenge--market failure compounded by government failure.

However, with growing globalization, there is an additional layer of complexity because externalities (the "extra" costs and benefits associated with global public goods and ills) are increasingly reaching across borders to be borne by people residing in different countries. Issues that were traditionally national, like financial regulation or environmental protection, have become global because they are now beyond the grasp of any single nation. In addition, costs and benefits can reach across generations in addition to borders. It is not yet clear what "non-rivalrous" and "non-excludable" really mean on a global and inter-generational scale. Today, there are some key weaknesses in current arrangements to provide GPGs:

(1) The geographic discrepancy between the global scale of cooperation needed to produce many of these goods, and the national scale of policymaking and government accountability.

(2) The disparate levels of participation by key constituents, with institutional structures that magnify the volume of some voices, while silencing others.

(3) The lack of any overarching implementation plan capable of ensuring requisite levels of cooperation and compliance.

These weaknesses are magnified by pervasive uncertainties about the scope of many GPG problems, and about the feasibility and efficacy of various possible responses. As a result, despite a nearly universal desire for peace, stability, and a healthy environment, these collective goods are provided scantily or not at all.

In addition to the general coordination problems associated with providing GPGs, there are also distributional problems. Wealth and deprivation exist side by side in both poor and rich countries. Hence, even though a GPG has worldwide benefits, those benefits may be accessible only to the better-off populations segments (for example, those with access to the Internet). So, too, is the case with global public ills like TB.

Two key questions concerning GPGs involve prioritization and access:

(1) Who defines the political agenda and thus the priorities for resource allocation?

(2) Who determines whether GPGs are accessible to all population groups?

By Rebecca M. Bratspies, Professor, City University of New York School of Law.

PROVIDING PUBLIC GOODS UNDER INTERNATIONAL LAW: OF OPENNESS AND ENCLOSURE

Our chair suggested that we think about two questions: First, whether globalization has changed the way we conceive or treat public goods or commons property, and second, whether each of us, drawing upon our field of expertise (which for me is public international law generally, and international law, science, and technology specifically) has a recommendation for preserving global public goods.

I will spend most of my time exploring the first question and conclude with a recommendation.

On the one hand, globalization has ushered in a remarkable expansion of the information public domain. The Internet, coupled with powerful search engines like Google, has enabled not only the free flow of an unprecedented amount of information but also the expansion of that information. Anyone can post a song that she has created, a video that he has made, or an opinion that she harbors on the Internet, and they do, by the second, all over the world.

In the area of technological information, while one used to have to go to select libraries and engage in laborious document searches to find patents, today patent offices maintain their databases online. Information contained in expired patents thus easily bleeds into the global public domain. Even unexpired patents contain a bounty of technological information that quickly enters the domain--namely information contained in the patent application that the patent owner does not claim. Today, pursuant to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), that information is published eighteen months after the patent application is filed.

On the other hand, while information freely flows around the world, the overall trend in law has been toward greater enclosure as an increasing array of information is subjected to exclusive ownership rights.

First, in the United States as well as in other developed countries, intellectual property protection has increased in two important ways: The domain of the protected interest has expanded, and the nature of the protection accorded has expanded. (1) Patents now extend to innovations that a previous generation considered unpatentable, such as living organisms. The standards for obtaining patents in the United States have relaxed. (2) U.S. patent examiners used to operate under the edict that "when in doubt, reject." Today, the operating assumption is, "when in doubt, grant." (3) Property rights in the area of copyright have expanded dramatically in duration, scope, and categories of work eligible for protection. (4) Trademark protection has also expanded. (5)

Second, the world trading system has internationalized intellectual property. For most of history, countries exercised freedom on whether or not they would establish intellectual property systems. The U.S. colonies in fact were profligate copiers freely copying the writings of the great European and English authors. England and France prevailed upon the United States to pass copyright and patent laws. Professor Lester Thurow of MIT's School of Management has even argued that the experience of economic history teaches that "copying is the only way to catch up." (6)

The 1994 Uruguay Agreements changed this. In order to join the World Trade Organization (WTO), and to participate in the world trading system, countries must ratify the TRIPS Agreement, which requires countries to put into place patent, copyright, and trademark laws. Today, the failure of a country to extend intellectual property protection to pharmaceutical goods, bioengineered organisms, or movies, constitutes a violation of international law.

Third, developing countries, largely in response both to the expansion and the internationalization of intellectual property rights, have enclosed or are in the process of enclosing material and information that had previously formed part of the global public domain--namely raw genetic material and traditional knowledge.

Turning first to the emergence of property rights over naturally occurring...

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