Failures of international cooperation with regard to protecting the environment, regulating cross-border competition, and preventing terrorism have sometimes lead states to enact unilateral measures with extraterritorial effect. A common trend among international legal scholars defending these measures is to employ the concept of ‘global public goods,’ understood as desirable, utility-advancing things that tend, for various reasons, to be undersupplied by states acting separately. On this view, unilateral measures are justified on grounds that they address ‘harms’ to ‘interests’ that cannot be contained within individual states, or because they advance supposedly universal ‘values.’ Drawing from the ‘republican’ legal and political philosophy of Immanuel Kant, as well as the Roman private law from which Kant derives inspiration, this article argues that states may do anything necessary to provide public goods for their subjects, including exercising jurisdiction over persons extraterritorially. Moreover, they need not demonstrate ‘harm’ or ‘loss,’ because global public ‘bads’ are akin not to damage-based wrongs like negligence, but to wrongs like battery, trespass, and defamation, where harm is irrelevant. The starting premise is that the dignity of ‘persons’ lies not in the satisfaction of interests, but in freedom from treatment as a ‘thing’ at the mercy of another. This gives rise to three kinds of fundamentally private legal relations—tortious, contractual, and fiduciary—all unrealizable as of right without a particular configuration of political institutions known as the ‘state.’ States are themselves persons, and are ‘public’ fiduciaries having no purpose other than to guarantee subjects their dignity. ‘Public goods’ are those things must be provided and kept free of private ownership in order for the members of a political community to be free equals. As public fiduciaries, states have both obligations and rights to provide public goods, which must not be frustrated by the arbitrary non-cooperation by other persons, state or nonstate.
Unilateral Jurisdiction to Provide Global Public Goods: A Republican Account,
42 Brook. J. Int'l L.
Available at: https://brooklynworks.brooklaw.edu/bjil/vol42/iss2/1