COGOLATI, Global Public Goods or Commons as a Lens to Development - A Legal Perspective
Working Paper No. 179 – November 2016
GLOBAL PUBLIC GOODS OR COMMONS
AS A LENS TO DEVELOPMENT?
A LEGAL PERSPECTIVE
Samuel Cogolati
This paper benefited from the comments received at the Workshop ‘Managing the Commons: Resource Ownership on a Global Scale’ at European University Institute on 12 September 2016 and the ‘3rd IASC Conference on Knowledge Commons’ at Sciences Po on 20-22 October 2016.
GLOBAL PUBLIC GOODS OR COMMONS
AS A LENS TO DEVELOPMENT?
A LEGAL PERSPECTIVE
Samuel Cogolati
Abstract
Two related concepts have recently gained a prominent place in the field of development cooperation. One the one hand, since the series of three books edited by Inge Kaul and her colleagues of the United Nations Development Programme, it is now considered to be in the self-interest of donors to cooperate and to combat the negative externalities that could arise in the absence of global public goods such as climate change mitigation, biodiversity or eradication of communicable diseases. On the other hand, since the landmark book Governing the Commons by Elinor Ostrom, the concept of commons has also evolved into a powerful alternative paradigm to rethink development beyond the market-State dichotomy and place communities at the centre of the governance of shared resources like water or forests. This paper shows that, in the field of development, whereas legal institutions based on commons favour bottom-up initiatives of citizens to counter the traditional private-State divide and to respond to threats to our common heritage, the urgency to produce global public goods seems to justify a turn to trust funds and public-private partnerships which bring less attention to communities.
Keywords
Global Public Goods – Commons – Development – World Bank – Human Rights – Trust Funds.
Author
Samuel Cogolati is PhD Fellow of the Research Foundation – Flanders (FWO) at the Leuven Centre for Global Governance Studies and Institute for International Law, University of Leuven (KU Leuven), Belgium.
Address for correspondence
This paper benefited from the comments received at the Workshop ‘Managing the Commons: Resource Ownership on a Global Scale’ at European University Institute on 12 September 2016 and the ‘3rd IASC Conference on Knowledge Commons’ at Sciences Po on 20-22 October 2016.
GLOBAL PUBLIC GOODS OR COMMONS
AS A LENS TO DEVELOPMENT?
A LEGAL PERSPECTIVE
Samuel Cogolati
Table of contents
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1.INTRODUCTION
The political foundations of official development assistance (ODA) have always been, and continue to be, the subject of debate among multilateral donors like the World Bank or the European Union (EU), influential bilateral donors like France or Sweden and even civil society and charity organisations like Oxfam or the Bill and Melinda Gates Foundation.1 Suffering from underinvestment and accused of inefficiency, development aid institutions have constantly sought to provide stronger ideological justification for their mission. The ideas of good governance, sustainable development or effectiveness all stem from the same concern to re-legitimise development programmes in the eyes of both decision-makers and public opinion.
Among others, two related concepts have recently gained a prominent place in the field of development cooperation. On the one hand, since the series of three books on global public goods (GPGs) edited by Inge Kaul and her colleagues of the United Nations Development Program (UNDP),2 it is now considered to be in the self-interest of donors to cooperate and
1 Jean-Michel Severino, ‘Refonder l’aide au développement au XXIe siècle’, Critique internationale, 2001, 10 : 75.
2 Inge Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999); Inge Kaul, Pedro Conceição, Katell Le Goulven and Ronald U. Mendoza (eds.), Providing Global Public Goods: Managing Globalization (Oxford University Press, 2003); Inge
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to combat the negative externalities that could arise in the absence of GPGs such as climate change mitigation, biodiversity or eradication of communicable diseases. Admittedly, this concept is not new; economic theory has for a long time already identified the need for government to overcome market failures and provide public goods in the form of public roads, national defence, or justice at the national level.3 Yet these books elevate the debate and bring to light that in an increasingly interconnected world, the problems of the South in security, financial stability, health and environment inevitably also affect the North, and therefore require collective action at the global level. Put differently, seen through the prism of GPGs, development is not regarded as a matter of pure altruism anymore; it is a matter of shared responsibility between developed and developing countries.
On the other hand, since the landmark book Governing the Commons by Elinor Ostrom,4 the concept of commons has also evolved into a powerful alternative paradigm to rethink development beyond the market-State dichotomy at the global level. Indeed, commons do no longer exclusively refer to tangible natural resources like pastures or forests, but also to intangible resources such as knowledge, software codes and human genes. This new model fundamentally recasts the traditional idea of development based on private property and wealth accumulation. Under a commons approach to development, communities are placed at the center of decision-making processes to govern their shared resources.
In putting this simple research question forward in the title – ‘Global Public Goods or Commons as a Lens to Development? A Legal Perspective’, my objective is to unravel contradictions between both development paradigms and shed new light on their respective normative and added value, not only for ODA programs, but also for international law. Indeed, from a legal perspective, what is so distinctive about framing development in terms of GPGs or commons? How are both notions of development translated in terms of legal vehicles? In answering these questions, particular attention will be devoted to the policy discourse and operations of the World Bank, which still remains the world’s foremost development agency with near global membership and with the single largest source of net income.
My argument is that, instead of assimilating commons to GPGs, both analytical and normative frameworks should be cautiously distinguished as they imply different legal principles and institutions for development. Indeed, in contrast to the commons approach that promotes more collaborative input in governing common resources, decisions in the GPGs model appear to be largely legitimised through a narrow criterion of economic efficiency. So whereas legal institutions based on commons favour bottom-up initiatives of citizens to counter the traditional private-State divide and to respond to threats to our common heritage, the urgency to produce GPGs seems to justify a turn to new public-private partnerships and trust funds in development cooperation – such as the Gavi Alliance or the Global Fund to Fight AIDS, Tuberculosis and Malaria in the case of the World Bank’s operations. The risk with the GPGs rhetoric is then to reintroduce privatisation as a method of development and narrow development programmes to market-efficient services, at the expense of communities in the Global South.
Kaul and Pedro Conceição (eds), The New Public Finance: Responding to Global Challenges (Oxford University Press, 2006).
3 See Paul Samuelson, ‘The Pure Theory of Public Expenditure’, The Review of Economics and Statistics, 1954, 36(4): 387.
4 Elinor Ostrom, Governing the Commons: The Evolution of Institutions for Collective Action (Cambridge
University Press, 1990).
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2.1 Origins
The concept of GPG does not reinvent the wheel. It is, in essence, grounded in the neoclassical economic theory of (national) public goods, first articulated by Paul Samuelson in 1954 in his article ‘The Pure Theory of Public Expenditure’.5 As opposed to a private good, such as a pie or a car, a public good refers to goods that are non-rival and non-excludable.6 The lighthouse, for example, is such a good, as any sailor can benefit from the light without diminishing its availability to others (non-rivalry) and no one can be prevented from using it as a navigational aid (non-excludability). As a result, public goods are structurally affected by free-rider and collective-action problems and, as such, suffer from under-provision. Public goods represent a case of market failures, that is, goods and services that cannot be left to the invisible hand of the free market. By virtue of the inherent free-rider problem in the provision of public goods, coercive authority is considered necessary in ensuring at least a minimal contribution by all. Therefore, at the national level, State intervention is seen as indispensable in the financing and provision of public goods.
Yet, at the global level, there is no global government or effective global governance mechanism capable of providing public goods which transcend national boundaries. This is in essence the observation made by a series of development practitioners led by Inge Kaul, former director of UNDP’s Office of Development Studies, in three books published in 1999,7
2003,8 and 20069 on the concept of GPG. Their message is clear: certain public goods, such as climate change mitigation or control of infectious diseases, cannot be adequately provided at the State level. In fact, what these publications did, was to translate the national concept of public good developed by Samuelson at the global level. Inge Kaul and her colleagues define GPGs as ‘outcomes (or intermediate products) that tend towards universality, in the sense that they benefit all countries, population groups, and generations’.10 In other words, in addition to sharing the properties of non-rivalry and non-excludability, GPGs produce benefits that are available worldwide and across social strata.
Although the books commissioned by the UNDP also define the concept, their analysis is mainly limited to a single perspective: the under-provision of GPGs. In this regard, the case-studies discussed in the UNDP study highlight three central weaknesses of the current global governance system: (i) the jurisdictional gap or, in other words, the absence of a State-like entity at the global level for supplying GPGs; (ii) the participation gap, namely the exclusion of certain groups of countries, population groups, including future generations, civil society and business from the decision-making process surrounding the provision of GPGs; and (iii) the incentive gap, which refers to the lack of perceived benefits for those participating in the production and financing of GPGs at the international level.11 The main objective of the books is to propose a new lens to understand and reveal new strategies to fill these three gaps in global policy fields as various as health, environmental protection, security and peace.
5 Samuelson, above n 3, 387.
6 Compare with ‘club goods’ that are non-rival but excludable (e.g. a toll road), and ‘common pool resources’ that are rival but non-excludable (e.g. high seas fisheries or the geostationary orbit).
7 Kaul, Grunberg & Stern, above n 2.
8 Kaul, Conceição, Le Goulven & Mendoza, above n 2.
9 Kaul & Conceição, above n 2.
10 Inge Kaul, Isabelle Grunberg and Marc A. Stern, ‘Defining Global Public Goods’ in Inge Kaul, Isabelle
Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford
University Press, 1999) 16.
11 Inge Kaul, Isabelle Grunberg and Marc A. Stern, ‘Introduction’ in Inge Kaul, Isabelle Grunberg and Marc Stern
(eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999) xxvi.
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In view of the above, it would be misconceived to limit the enterprise of the UNDP studies’ authors to the sole development sector. While the three books were published for an international development agency and most contributing authors were part of the development community, GPGs do not provide a standard theory of development aid, nor any specific policy recommendation as to the way of implementing development programmes.12 In fact, ODA merely represents one of the policy fields where greater international cooperation is called for.13
This being said, the concept of GPG resonated most prominently in the policy discourse of development institutions,14 who found in it a new powerful rhetorical device to ‘re-legitimise’ their action at a time when the end of the Cold War also meant the disappearance of foreign aid as a means to maintain developing countries in one of two blocs. On the international plane, organisations such as the World Bank (see below), the United Nations Industrial Development Organisation (UNIDO),15 the Food and Agriculture Organization (FAO),16 the Organisation for Economic Coordination and Development (OECD),17 the World Health Organization (WHO),18 and the EU19 all branded the provision of GPGs as a new policy challenge. On the national plane, influential development aid agencies like the Agence Française de Développement (AFD) became supporters of the GPGs approach as ‘a new paradigm for aid’.20 Building upon an idea that emerged during the 2002 International Conference on Financing for Development and the 2002 World Summit on Sustainable Development, the French and Swedish21 governments even signed an agreement to initiate an International Task Force on GPGs. The Task Force, which was co-chaired by Ernesto Zedillo, former President of Mexico, and Tidjane Thiam, former Ivorian Minister of
12 Severino, above n 1, 90.
13 See Rajshri Jayaraman and Ravi Kanbur, ‘International Public Goods and the Case for Foreign Aid’ in Inge
Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999) 418-435; Lisa D. Cook and Jeffrey Sachs, ‘Regional Public Goods in International Assistance’ in Inge Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999) 436-449.
14 Maurizio Carbone, ‘Supporting or Resisting Global Public Goods? The Policy Dimension of a Contested Concept’, Global Governance, 2007, 13(2): 179-198, 179.
15 SeeUNIDO,‘Publicgoodsforeconomicdevelopment’,2008,availableat
16 See FAO, The State of Food and Agriculture, 2002, available at
y6000e00.htm>.
17 See the study on financing global public goods prepared for the OECD Development Centre: Helmut Reisen,
Marcelo Soto and Thomas Weithöner, ‘Financing Global and Regional Public Goods through ODA: Analysis and Evidence from the OECD Creditor Reporting System’, OECD Development Centre Working Paper, DEV/DOC(2004)01, January 2004, 11.
18 See WHO, ‘Global Public Goods’, available at
19 See European Commission, ‘EU focus on global public goods’, 2002, available at
Agenda’, 2015, available at
English.pdf>. See also Mikaela Gavas, ‘The EU and Global Public Goods: Challenges and Opportunities’, DIIS
Report 2013:05, available at
20 Directorate-General for Development and International Cooperation, Ministry of Foreign Affairs, and Treasury Directorate, Ministry of the Economy, Finance and Industry, ‘Global Public Goods’, available at
Severino and Olivier Ray, ‘La fin de l’aide publique au développement : les enjeux de l’action hypercollective’, Revue d’économie du développement, 2012, 20(2) : 83-142 ; Jean-Michel Severino and Olivier Ray, ‘La fin de l’aide publique au développement : mort et renaissance d’une politique publique globale’, Revue d’économie du développement, 2011, 19 : 5-44 ;
21 See the study on development financing prepared for the Swedish Ministry for Foreign Affairs, Francisco Sagasti and Keith Bezanson, Financing and Providing Global Public Goods: Expectations and Prospects
(Development Financing 2000, Ministry for Foreign Affairs Sweden, 2001).
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Development, was intended to translate the theoretical concept of GPG as developed by Kaul and her colleagues into a more practical tool for policy-makers. The Task Force published its final report in 2006 with a series of recommendations on the financing and production of GPGs, in particular poverty-reduction.22 Even private charities such as the Bill and Melinda Gates Foundation began talking about GPGs.23
The question, however, arises as to whether GPGs are no more than just a new fancy slogan for development institutions. If so, what is so distinctive about an approach to development based on GPGs? It could be said that this new policy agenda points to at least three central features. First, development seen through the lens of GPGs is not just a matter of pure altruism or charity anymore; it is now considered to be in the self-interest of donors to cooperate and to combat the negative externalities that could arise in the absence of climate change mitigation, prevention of armed conflicts, biodiversity protection or eradication of communicable diseases. To put it with the words of two contributors to the first UNDP study, this new rationale for ODA ‘rests much more on the direct spillovers of the lack of development in poor countries on to the well-being of riches countries’, than on a moral obligation.24 GPGs are now seen by various development actors as a cost-effective step towards meeting development objectives. The awareness for GPGs gives a radically new mission to ODA in serving to remedy global market failures. The theory of GPGs indeed borrows its key concepts and reasoning from economic theory, which gives new legitimacy to ODA. Economic arguments based on the smooth functioning of markets indeed seem more persuasive than moral considerations to justify public financial flows to developing countries.25 That is the strength of GPGs – their ‘economic rhetoric’.26
Second, this new approach connects ODA to global policy issues which affect both developed and developing countries.27 In the Prologue of the first UNDP edition, Tommy Koh announces that ‘the book makes a persuasive argument for the need to rethink the nature of international assistance’ in a field that is no longer exclusively targeted ‘at recipient countries or at specific sectors’, but should cut across boundaries.28 This shift from country-specific development to cross-border issues is reflected in recent instruments framing development cooperation for the 15 coming years. The Addis Ababa Action Agenda adopted in July 2015 stressed that ‘the post-2015 development agenda, including the sustainable development goals, is global in nature and universally applicable to all countries.’ 29 The new set of Sustainable Development Goals (SDGs) indeed represents a major change from the prevailing approach to development ‘assistance’ to a sense of common and shared ‘responsibility’ for enabling sustained poverty reduction at the global level. In its 2013 report
A Renewed Global Partnership for Development, the UN System Task Team on SDG 17 unambiguously criticised Millennium Development Goal (MDG) 8 for perpetuating the model of ‘donor-recipient’ aid, ‘rather than calling for collective action at the multilateral level to achieve a stable global economic environment.’ 30 The report specifically pleaded for
22 International Task Force on Global Public Goods, Meeting Global Challenges: International Cooperation in the National Interest (International Task Force on Global Public Goods, 2006).
23 See, e.g., Bill Gates, ‘Innovation With Impact: Financing 21st Century Development’, November 2011, available at
24 Jayaraman & Kanbur, above n 13, 419.
25 Severino, above n 1, 93.
26 David Long and Frances Woolley, ‘Global Public Goods : Critique of a UN Discourse’, Global Governance,
2009, 15(1) : 117-118.
27 Severino, above n 1, 90.
28 Tommy Koh, ‘Prologue’, in Inge Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999) x.
29 Third International Conference on Financing for Development, , ‘Outcome document of the Third International Conference on Financing for Development: Addis Ababa Action Agenda’, 15 July 2015, UN Doc A/CONF.227/L.1, para. 10.
30 UN System Task Team on the Post-2015 UN Development Agenda, A renewed global partnership for development (United Nations, 2013) 5.
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mobilising additional ‘resources for global public goods,’31 and for including new actors to overcome ‘the collective action problems in the supply of public goods which require internationally coordinated actions in order to ensure adequate provisioning.’ 32 Inge Kaul herself also concluded that, in comparison to MDG 8, the global partnership for sustainable development in SDG 17 reflected a new awareness of GPGs.33 Similarly, the European Commission observed in a Communication on the new global partnership that ‘[g]lobal public goods also need coordinated international policies and action, including through better implementation of international agreements that play a central role in achieving several
SDGs.’ 34
Third, the requirement to provide GPGs justifies new, additional funding for development cooperation. The then Administrator of UNDP, James Gustave Speth, envisioned in his foreword to the first book on GPGs that this theory would provide ‘a new motivation for a different type of development assistance’, beyond the existing level of ODA.35 The French Government also pleaded in its study for the introduction of international taxation ‘that would regulate the excesses of globalisation and fund the production of global public goods, to the advantage of the developing countries in particular’.36 Similarly, the International Task Force’s report called for ‘significant additional expenditures on global public goods.’ 37 The Task Force’s message was clear: because greater financing for GPGs does not only benefit developing countries, but also donors, GPGs need to be addressed separately, and in addition to ODA.38 The Council of the EU noted in that regard that International Financial Institutions (IFIs), such as the World Bank, represent ‘critical actors for reaching the SDGs’ and for ‘financing for the provision of global public goods.’ 39
2.3 World Bank40
From 2000 onwards, just after the publication of the first UNDP book, the World Bank has encouraged the supply of GPGs across all its development programs. This was in particular a recurring theme in the meetings of the joint World Bank/International Monetary Fund (IMF)
Development Committee, which assists the Bank’s Board of Governors with some of the most critical development issues.41 The Bank also commissioned a significant number of studies and convened several workshops on its potential role in financing GPGs.42 At the
31 Ibid., 11.
32 Ibid., 18.
33 Inge Kaul, ‘Global Public Goods: A concept for framing the Post-2015 Agenda?’ , Discussion Paper / Deutsches Institut für Entwicklungspolitik, 2004, 2: 1-51.
34 European Commission, Communication from the Commission to the European Parliament, the Council, the
European Economic and Social Committee and the Committee of the Regions, ‘A Global Partnership for Poverty Eradication and Sustainable Development after 2015’, 5, COM(2015) 44 final, 2 February 2015.
35 James Gustave Speth, ‘Foreword’, in Inge Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public
Goods: International Cooperation in the 21st Century (Oxford University Press, 1999) xiii.
36 Directorate-General for Development and International Cooperation, above n 20, 26.
37 International Task Force on Global Public Goods, above n 22, 99.
38 Ibid. xxv and 110.
39 Council Conclusions, ‘A New Global Partnership for Poverty Eradication and Sustainable Development after 2015’, 9241/15, 26 May 2015, para. 39.
40 See Jan Wouters and Samuel Cogolati, ‘Taking Sustainable Development Goal 17 Seriously: The World Bank’s Legal Framework for Providing Global Public Goods’, The World Bank Legal Review, 2016, 7: 35-51.
41 Known formally as ‘Development Committee’, the Development Committee consists of a Joint Meeting of twenty-five Ministers of Finance or Development and meets twice a year since 1974. See IBRD, Board of
Governors, Resolution No. 294, ‘Establishment of Development Committee’, 2 October 1974.
42 See, inter alia, Christopher D. Gerrard et. al., eds., Global Public Policies and Programs: Implications for
Financing and Evaluation. Proceedings from a World Bank Workshop (The World Bank, 2001); Marco Ferroni and Ashoka Mody, eds., International Public Goods: Incentives, Measurement, and Financing (The World Bank;
2002); Anders Hjorth Agerskov, ‘Global Public Goods and Development – A Guide for Policy Makers’, World
Bank Seminar Series at Kobe and Hiroshima Universities, Seminar Number 6, May 12, 2005; Randall Purcell,
‘Delivering Global Public Goods Locally: Lessons Learned And Successful Approaches’, The World Bank Development Grant Facility (DGF) Technical Note, February 2003; J. Warren Evans and Robin Davies (eds.),
Too Global to Fail: The World Bank at the Intersection of National and Global Public Policy in 2025 (World Bank,
6
request of the Bank’s Board of Directors, the Independent Evaluation Group (IEG)43 finally conducted reviews of the Bank’s GPGs strategy in various partnership programs.44
While outlining the same characteristics and challenges as in the UNDP studies, a staff report prepared for the Development Committee in 2000 redefined GPGs in the context of the Bank’s policies as ‘commodities, resources, services – and also systems of rules or policy regimes with substantial cross-border externalities that are important for development and poverty-reduction, and that can be produced in sufficient supply only through cooperation and collective action by developed and developing countries.’ 45 In 2006, at its
Annual meetings, the Committee again asked the Bank ‘within its overall strategy, to develop a framework for its role in providing global and regional public goods.’ 46 In response, a 2007 staff report entitled Global Public Goods: A Framework for the Role of the World Bank outlined criteria for the Bank’s involvement and financing modalities in promoting GPGs.47
The staff reports described five GPGs priority areas for the Bank, which were endorsed by the Bank’s management in a Strategic Directions Paper in 2001.48 A key aspect of this new development agenda is that the Bank sets up ad hoc partnership programmes – most often in the form of public-private partnerships and trust funds – in which the institution, along with different partner organisations, other donors, private foundations, or NGOs, dedicates resources to achieve the following five GPGs objectives: (i) ‘protect environmental commons’
(e.g. through the Global Environmental Facility – GEF49), (ii) ‘prevent the spread of communicable diseases’ (e.g. through the Global Fund to Fight AIDS, Tuberculosis and Malaria50), (iii) ‘strengthen the international financial architecture’ (e.g. through the Consultative Group to Assist the Poor – CGAP51), (iv) ‘strengthen the global trade system’
(e.g. through the Enhanced Integrated Framework for Trade-Related Assistance for the
2015). See also World Bank, ‘Collective Solutions 2025: Collaboration to help solve future sustainable development challenges’, available at
61~piPK:64884432~theSitePK:5929282,00.html>.
43 Formerly known as ‘Operations Evaluation Department’, the IEG is an independent branch of the World Bank
Group, which evaluates its work and services.
See IEG, available at
44 See, inter alia, Operations Evaluation Department, ‘The World Bank’s Approach to Global Programs: An
Independent Evaluation’, Phase 1 Report, 1 August 2002; Operations Evaluation Department, The Global
Development Network: Addressing Challenges of Globalization: An Independent Evaluation of the World Bank’s
Approach to Global Programs (World Bank, 2004); Operations Evaluation Department, Strengthening the World
Bank’s Role in Global Programs and Partnerships (World Bank, 2006); IEG, ‘Global Program Review: Consultative Group to Assist the Poor’, Vol. 3, Issue 1, 26 October 2008; IEG, The World Bank’s Involvement in
Global and Regional Partnership Programs: An Independent Assessment (World Bank, 2010); IEG, ‘Global Program Review: The Global Fund to Fight AIDS, Tuberculosis and Malaria, and the World Bank’s Engagement with the Global Fund’, 8 February 2011, 6(1); IEG, ‘Results and Performance of the World Bank Group 2014: An Independent Evaluation’, Main Report, I, vii. See also Uma Lele and Christopher Gerrard, ‘Global Public Goods, Global Programs, and Global Policies: Some Initial Findings from a World Bank Evaluation’, American Journal of Agricultural Economics, 2003, 85(3): 686-691.
45 Development Committee, ‘Poverty Reduction and Global Public Goods: Issues for the World Bank in Supporting Global Collective Action’, DC/2000-16, 6 September 2000, 2. See also, Development Committee,
‘Communiqué’, 25 September 2000, para. 3.
46 Development Committee, ‘Communiqué’, 18 September 2006, para. 3.
47 Development Committee, ‘Global Public Goods: A Framework for the Role of the World Bank’, DC2007-0020,
28 September 2007, 13. See also, Development Committee, ‘Communiqué’, 21 October 2007, para. 4.
48 World Bank, ‘Strategic Directions Paper for FY2002-2004: Implementing the World Bank’s Strategic Framework’, 29 March 2001, SecM2001-0211.
49 See GEF, ‘What is the GEF?’, available at
50 The Global Fund To Fight AIDS, Tuberculosis and Malaria, ‘The Framework Document’, 2001, available at
51 CGAP, ‘Advancing financial inclusion to improve the lives of the poor’, available at
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Least Developed Countries52), and (v) ‘disseminate knowledge for development’ (e.g. through the Consultative Group on International Agriculture and Research – CGIAR53).
Beyond the proliferation of partnerships, GPGs have become a real buzzword in the broader policy discourse of the Bank’s management. At the Annual meeting in October 2012, the Development Committee supported the vision of the current President, Dr. Jim Yong Kim, ‘of a [World Bank Group] that […] promotes global public goods.’ 54 In the latest 2014 Annual Review, the IEG concluded that, apart from pursuing MDGs, the Bank took ‘a broader approach to poverty reduction’ and that ‘there was greater emphasis on […] global public goods.’ 55 Again very recently, at the Annual Meetings Plenary on 7 October 2016, Kim called for ‘a much expanded role for the World Bank Group in the Global Public Goods agenda’, that is on climate change mitigation, refugee services and pandemic preparedness and response.56
Given that the term is now being used for so many ideas in the institution’s discourse, it seems important to tread cautiously when approaching the exact role which the concept of
GPGs plays in the Bank’s policies. First of all, as transpires from the above, the aforementioned list of the five key areas for action is definitely not a closed one since new reports mention other GPGs priorities than the five mentioned above.57 In fact, while the
2007 staff report noted that the five aforesaid GPGs were ‘anchored in international consensus for action’,58 it is not at first sight obvious why these five specific issues should rank as priorities over other GPGs which could also be relevant to the Bank’s missions, such as post-conflict reconstruction or the fight against malnutrition. Second, some of the Bank’s partnership programmes have longer histories than the GPGs literature: e.g. the aforementioned CGIAR, which was created in 1971. Last but not least, the use of the concept by the Bank is not without its critics. According to Devesh Kapur, ‘seeking to reinvent the Bank’s public image, its management and staff may tend to label all kinds of activities or “networks” as global public goods, meriting involvement on the basis of the moral claims that public goods invoke, and their ready slogan-appeal for Northern taxpayers.’ 59 It is true that the Bank does not provide comprehensive and systematic data on the funds it dedicates specifically to what it now refers to as GPGs.60
3.COMMONS
3.1 Origins
Contrary to public goods which are non-rival, commons like the sea fish stocks or clean air are rival in consumption, and therefore vulnerable for depletion. Garret Hardin’s famous
Tragedy of the commons (1968) describes an economic model based on rational choice theory, in which individual actors automatically tend to over-exploit and plunder commons
52WTO,‘EnhancedIntegratedFramework’,availableat
53 CGIAR, ‘About Us’, available at
54 Development Committee, ‘Communiqué’, 13 October 2012, para. 9.
55 IEG, ‘Results and Performance of the World Bank Group 2014’, above n 44, vii.
56 World Bank, ‘Speech by World Bank Group President Jim Yong Kim at the Annual Meetings Plenary’,
7 October 2016, available at
57 For example, the 2014 Report on financial intermediary funds mentions only three GPGs priorities: ‘preventing communicable diseases’, ‘responding to climate change’ and ‘ensuring food security’. See World Bank Group, ‘Financial Intermediary Funds in the World Bank Group’, 2014, 5.
58 Development Committee, supra note 47, 4.
59 Devesh Kapur, ‘The Common Pool Dilemma of Global Public Goods: Lessons from the World Bank’s Net Income and Reserves’, World Development, 2002, 30(3): 337-354, at 349.
60 Nancy Birdsall and Anna Diofasi, ‘Global Public Goods for Development: How Much and What For’, Center for Global Development, 18 May 2015, available at
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that are freely available to everyone.61 Hardin uses the example of an open-access pasture on which self-interested herders use as much grass as possible to rear their cattle. Consequently, the inevitable result is the degradation and depletion of the commons. In this model, there are only two ways out to avoid the unconstrained over-exploitation of natural resources by individuals: privatisation or nationalisation.
Despite the influence of Hardin’s parable, the story fortunately does not stop there. In
Governing the Commons (1990), the 2009 Nobel Prize winner for economics Elinor Ostrom showed through various case studies how local communities could develop autonomous institutions with their own ad hoc rules to manage Common-Pool Resources (CPR) such as groundwater and forests.62 She showed that shared natural resources can in fact be sustainably managed by the communities themselves. In her book that quickly became the standard reference for the commons movement, Ostrom examined the factors that led self-governance arrangements to succeed. Despite the wide diversity of arrangements for the governance of the commons, Ostrom did identify eight ‘design principles’ for commons-based institutions to be sustainable on the long term : (i) clearly defined jurisdictional boundaries, (ii) clear rules of access and use, (iii) procedures for making collective choices, (iv) monitoring, (v) differentiated sanctions for free-riders, (vi) conflict-resolution mechanisms, (vii) minimal State recognition of the right to self-organisation, and (viii) multiple layers of nested enterprises.63 In exploring the empirical realities behind CPRs,
Ostrom rebuted Hardin’s assumption and proved that it was possible to prevent commons from collapsing through institutions that are neither ‘all-private’, nor ‘all-public’.
Since then, Ostrom’s design principles have been applied in very different contexts, way beyond the only issue of natural resource management depicted above. Commons do no longer exclusively refer to tangible natural resources like pastures, seeds, forests or water reserves, but also to intangible resources such as knowledge, the Internet, software codes and human genes.64 Today, commons are in fact more closely connected with the collective self-governance mechanisms they imply, than with the strict category of economic goods they refer to. In Ostrom’s sense, commons cannot be abstracted from the social networks which participate in their production and protection. Without communities, no commons. It is this institutional element for collective action which today prevails in the commons literature. It is also in this way, as a prescriptive model of governance for well-defined resources with clear rules of access and, that the commons are understood in the remainder of the paper.65
3.2 Development paradigm
Over the last decade, the commons have been embraced by civil society as a new ‘paradigm’ to rethink the traditional public-private and market-State divides, and to prioritise ecological and human needs of communities over market and State.66 The commons have also been a popular subject of academic inquiry which served to recast the traditional foundations of the disciplines of economics, history, law, sociology and political theory. The field of development cooperation was of course not immune to these debates. In particular, it is the prevailing model of development favoured by industrialised countries and grounded in individual private poverty and wealth maximisation which was fundamentally questioned by commons activists and scholars. Fritjof Capra and Ugo Mattei, for instance, vigorously
61 Garett Hardin, ‘The tragedy of the commons’, Science, 1968, 3859: 1243-48.
62 Ostrom, above n 4.
63 Ibid, 90.
64 To clear up the ‘terminological fuzziness’ under the term ‘commons’, see Tine De Moor, ‘From common pastures to global commons: a historical perspective on interdisciplinary approaches to commons’, Natures Sciences Société, 2011, 19(4):
65 This, for example, excludes common goods such as the atmosphere or the Antarctica which are not governed by institutions tailored by communities.
66 See David Bollier and Silke Helfrich, Patterns of Commoning (Levellers Press, 2015); David Bollier and Silke Helfrich, The Wealth of the Commons: A World Beyond Market & State (Levellers Press, 2012).
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denounced an ‘idea of “development”’ as ‘fundamentally quantitative’ and ‘rooted in seventeenth-century notions of “improvement”’, without recognising ‘that unrestrained extraction and exploitation of natural and human resources is at odds with the fundamental principles of ecology.’ 67 David Bollier proposed to ‘abandon the whole mindset of “development” itself’ and, instead, to start talking about ‘human flourishing’.68 Dirk Löhr opined that ‘[i]f community interests in shared natural resources are to survive, a new development agenda will need to be advanced, and it will need to sail against the wind’.69
It is true that without private property, economists and lawyers traditionally assume that rational self-interested individuals will not have any incentives to protect their resources and accumulate wealth.70 This postulate finds its origin in the classic Coase theorem, which views private ownership as the best way to minimise externalities and ensure the best allocation of resources.71 This is why development policy-makers have rarely gone beyond the public-private and State-market dichotomies72 and have often considered local forms of communal ownership as ‘archaic and in need of modernization via privatisation and market integration’.73 As an economist notes, development strategies are generally based upon the idea that ‘informal, collective forms of property rights should be converted into private property because such policies will help ease land conflicts, enhance the efficiency of the land markets, guarantee tenure security and assure access to loans’.74
However, the tragedies of ecological, financial and social crises have also shown the limits of this standard vision of development based on privatisation. Gradually, the commons approach seems to have gained some momentum as a new, alternative, way of doing development. Numerous development projects are now analysed through the prism of the commons and the eight criteria for self-governance developed by Elinor Ostrom. Commons-based institutions in developing countries can indeed involve the technical and financial assistance of external donors. This was for example the case in Peru, where the United States Agency for International Development (USAID) participated in the creation of an indigenous communal forestry enterprise which met most of Ostrom’s design principles.75 In the outskirts of Kinshasa, a local NGO supported by international donors also promoted decentralised water services managed at the local level by the users themselves.76 In Bolivia’s capital too, peri-urban communities succeeded in putting in place small cooperatives to supply water as ‘genuine commons in Ostrom’s original sense’.77 Another
67 Fritjof Capra and Ugo Mattei, The Ecology of Law. Toward a Legal System in Tune with nature and Community
(Berrett-Koehler Publishers, 2015), 9.
68 David Bollier, ‘Beyond Development: The Commons as a New/Old Paradigm of Human Flourishing’, 25 June
2016, available at http://www.bollier.org/blog/beyond-development-commons-newold-paradigm-human-flourishing#comment-1226.
69 Dirk Löhr, ‘The Failure of Land Privatization: On the Need for New Development Policies’ in David Bollier and
Silke Helfrich (eds), The Wealth of the Commons: A World Beyond Market & State (The Commons Strategy
Group 2012).
70 See Gershon Feder and David Feeny, ‘Land Tenure and Property Rights: Theory and Implications for Development Policy’, The World Bank Economic Review, 1991, 5(1): 135-153; Daniel Fitzpatrick, ‘Evolution and Chaos in Property Rights Systems: The Third World Tragedy of Contested Access’, Yale Law Journal, 2006, 115 (5): 996-1048.
71 See Ronald H. Coase, ‘The Problem of Social Cost’, Journal of Law and Economics, 2013, 56: 837-877.
72 Ioannis Glivanos, ‘Transition or development? Reassessing priorities for law reform’, Progress in Development Studies, 2010, 10(1): 72-73.
73 Ismael Vaccaro, Laura C. Zanotti and Jennifer Sepez, ‘Commons and markets: opportunities for development of local sustainability’, Environmental Politics, 2009, 18(4): 522-538, at 523.
74 Löhr, above n 69.
75 Christopher E. Morrow and Rebecca Watts Hull, ‘Donor-Initiated Common Pool Resource Institutions: The Case of the Yanesha Forestry Cooperative’, World Development, 1996, 24(10): 1641-1657.
76 Florent Bédécarrats, Oriane Lafuente-Sampietro, Martin Leménager, an Dominique Lukono Sowa, ‘Building commons to cope with chaotic urbanization? Performance and sustainability of decentralized water services in the outskirts of Kinshasa’, Journnal of Hydrology, 2016: 1-13 [article in press].
77 Sarah Botton, Sébastien Hardy and Franck Poupeau, ‘Water from the heights, water from the grassroots: the
Governance of common dynamics and public services in La Pas-El Alto’, AFD Research Paper Series, 2016, 27:
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case study of local management of water in a developing country, this time in Jordan, showed how the new participatory approach of the commons empowered people in controlling the exploitation of shared natural resources, and thereby strengthened public action of the State.78 Other than water management, David Bollier also gave the examples of seed-sharing in India and Internet open-source and collaborative platforms to give advice on agronomy best practices to rice farmers, as successful commons experiences in developing countries.79
The list of commons in developing countries seems infinite. It is true that there is no standardised or ready-made solution; instead, communities can build up very different institutions depending on the context and the resource at stake. In reality, most people in developing countries depend on commons such as forests, grazing lands and fisheries to meet their basic needs.80 Hence, it would be naïve to believe that commons automatically involve ideal sustainable or democratic governance systems. As Ostrom showed, some local experiences may be more successful than others. Some may even fail. It is also not unlikely that some institutions would discriminate against women or new members of the community.81 There is simply no fixed list, nor standard paradigm for ‘commoning’. The lesson to draw from the aforementioned projects is that, where public authority is weak and private investors are absent, autonomous governance systems can prove more effective than traditional all-public or all-private arrangements. In other words, it can be contended that the commons are emerging as an alternative governance model in development policies, which ‘makes it possible to place users and beneficiaries at the center of regulation and management processes’.82
The commons-based approach to development cooperation seems to present at least three distinctive normative principles. First, development actors should stop dispossessing communities of their commons through expropriation or privatisation in the name of modernisation – think of concessions for land mining or privatisations of water cooperatives in poor countries. Second, development actors should recognise the right of communities to organise themselves and govern shared natural resources in an autonomous fashion. As the Commission on Legal Empowerment of the Poor83 recommends, ‘[t]he state should enhance the asset base of the poor by enabling community-based ownership and management of private commons’.84 They are not only a factor of social cohesion, but also of respect for the communities’ ecosystem. Third, the development community should support the creation of new commons. These new forms of management can indeed prove more effective than the
78 Stéphanie Leyronas, Dominique Rojat, Frédéric Maurel and Gaël Giraud, ‘Toward an Analytical Framework for the Governance of Natural Resources: The Case of Groundwater’, AFD Research Paper Series, 2016, 2016-24: 14-15. See also Raphaëlle Lavenus, Juliette Fradet and Sébastien Chazot, ‘Gestion des ressources en eau souterraines comme biens communs’, AFD Technical Reports, 2016, 18.
79 Bollier, above n 68.
80 Partha Dasgupta and Karl-Göran Mäler, Environmental and Resource Economics: Some Recent Developments in Kanchan Chopra and Vikram Dayal (eds), Handbook of environmental economics in India
(Oxford University Press, 2009): 21.
81 Olivier De Schutter, ‘The Green Rush: The Global Race for Farmland and the Rights of Land Users’, Harvard International Law Journal, 2011, 52(2): 538.
82 AFD, “The Commons: A form of collective governance”, available at http://www.afd.fr/lang/en/home/recherche/programmes-recherche-afd/communs. See also the 12th International
Conference on Development on the ‘benefits and limits of commons for public aid’: AFD, ‘Commons and Development: benefits and limits of commons for public aid’, http://www.afd.fr/webdav/site/afd/shared/PORTAILS/RECHERCHE/PDF/invitation-12-eme-conference-developpement-afd-EN.pdf.
83 The Commission on Legal Empowerment of the Poor is an independent working group established in 2005, hosted by UNDP and coc-haired by former US Secretary of State Madeleine Albright and Peruvian economist Hernando de Soto. The Commission published its final report in 2008.
84 Commission on Legal Empowerment of the Poor, ‘Making the Law Work for Everyone’, Vol II, 2008, 71, available at
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market and the State in building long-lasting trust and a deep feeling of responsibility among people involved.85
3.3 World Bank
While much effort has recently been undertaken by official donors like AFD to integrate commons in development projects, very little support can be found for the commons as an alternative development paradigm in the World Bank’s policies. That is not all too surprising. Since the 80s, the institution stands famous as a fierce defender of privatisation strategies in structural adjustment programmes (SAPs) in developing countries.86 Enforcement of property rights and privatisation of public services became standard desirable economic reforms supported by the Bank, in what was termed the ‘Washington consensus’.87 In the 90s, the Bank furthered these policies in helping post-Soviet States to make the transition from State to private ownership of lands and services. Nowadays, the Bank’s land policies still largely focus on securing land tenure and transferability of private property rights in land markets.88 Under this Western model of security of tenure, the role of the State is limited to protecting and enforcing private rights to property.89
It also seems that traditional and informal systems of community land ownership are rather considered as ‘backward’ and are in need of ‘modernisation’ in the Bank’s policies. In its
2005 World Development Report (WDR) on A Better Investment Climate for Everyone, the Bank advocated enhancing the security of private property rights as a means to create a better investment climate and foster economic growth: ‘[t]he better protected these rights, the stronger the link between effort and reward and hence the greater the incentives to open new businesses, to invest more in existing ones, and simply to work harder’.90 It is striking how the WDR’s vision of property echoes Hardin’s tragedy of the commons. The WDR straightforwardly states that registered titles to lands encourage investment, improve access to loans and enhance environmental stewardship. It is therein claimed that in the absence of clear property rights, those in control of a natural resource will use it as much as possible, since ‘they are not sure the resource will be theirs tomorrow’.91 While the 2005 WDR does not rule out the existence of ‘community-wide agreements on the use of resources’, it clearly assumes that, when natural resources are ‘held collectively’, individuals have less incentives to protect them against depletion.92 The 2008 WDR on Agriculture for Development was more cautious and nuanced. It then warned that while ‘[e]alier interventions to improve
85 Bollier, above n 68.
86 SAPs consists of loans to debt-strapped governments, conditioned upon the achievement of a number of policy reforms, among which privatisation of government-held enterprises, liberalisation of public services and greater efficiency of the free market. The term SAP gained such a negative connotation that it was abandoned in the 90s.
87 See John Williamson, ‘The Strange History of the Washington Consensus’, Journal of Post-Keynesian Economics, 2004, 27(2): 195-205.
88 The current guiding principles for land policies are still to be found in World Bank Group, Land Policies for Growth and Poverty Reduction: A World Bank Policy Research Report (Oxford university Press and The World Bank, 2003).
89 Ioannis Glivanos, ‘Transition or development? Reassessing priorities for law reform’, Progress in Development
Studies, 2010, 10(1): 72.
90 World Bank, ‘Chapter 4: Stability and security’ in World Development Report 2005: A Better Investment Climate for Everyone, 2005, available at
91 Ibid., 81.
92 Ibid., 82, Box 4.4.
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tenure security focused almost exclusively on individual titling, […] this can weaken or leave out communal, secondary, or women’s rights.’ 93
In 2016, the IEG published a report drawing lessons from land administration projects supported by the World Bank from 1998 to 2014.94 The report made it clear that World Bank-supported land administration projects were all based upon the assumption that clear, secure and transferable property rights stimulate land market, develop real property markets, facilitate access to credit, lead to greater productivity, improve land values, and reduce conflicts over land.95 From the review, it also seems that most of the Bank’s projects focused on a Western understanding of individual property that is transferrable in land markets, and not on commons of local communities like communal lands of pastoralists, fishers and forest-dwellers. Some titling schemes even excluded some areas from their geographical scope because the lands in question were governed by communal and customary rights which were not recognised in land laws.96
The World Bank’s little support for communal and collective systems of tenure in the name of ‘modernisation’ has not been without criticism. In fact, the IEG report itself, while not pointing out individual titling explicitly, noted that most of the Bank’s land administration projects did not aim to include the poor or vulnerable groups (such as women or ethnic minorities) in addressing land access or redistribution in their objectives. Poverty reduction was merely a long-term goal to which these projects should contribute.97 The problem is that communal land tenure may already be recognised under customary law in some rural areas, which then renders individual land titling programmes as development intervention inappropriate.98 The UN High Level Commission for the Legal Empower of the Poor also pointed out the recurrent mistake of development actors, inspired by the ‘tragedy of the commons’, to transform customary tenure and interests in commons into private property rights, instead of registering these as the group-owned property of communities.99 Olivier De Schutter, the former UN Special Rapporteur on the Right to Food, argued that a better solution to protect the interests of herders, fisherfolk, or other vulnerable groups that depend on commons for their livelihoods, would be ‘to secure access to land by recognizing existing land use rights and giving the local community a greater role in the recognition process as well as the settlement of land-related disputes.’ 100
4.TWO FALSE FRIENDS IN INTERNATIONAL LAW
Despite distinctive characteristics and the different stance taken by the Bank towards each approach to development, it is striking how both concepts are still so often being confused. Over the last years, the concepts seem to have lost practical meaning and are now sometimes mentioned as synonyms in the field of development.101 The same is true in
93 World Bank, ‘Chapter 6: Supporting smallholder competitiveness through institutional innovations’ in World Development Report 2008: Agriculture for Development, 2008, available at
94 IEG, ‘Lessons from Land Administration Projects: A Review of Project Performance Assessments’, 31 March
2016, IEG Category 1 Learning Product.
95 Ibid., para. 5.1.
96 Ibid., para. 4.10.
97 Ibid., para. 4.2.
98 Ana Palacio, ‘Legal Empowerment of the Poor: An Action Agenda for the World Bank’, March 2006, available at
99 Commission on Legal Empowerment of the Poor and UNDP, ‘Making the Law Work for Everyone’, Vol II, 2008, available at
100 De Schutter, above n 81, 528.
101 See, e.g., Severino, above n 1, 75-99.
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international law. So for instance, ‘knowledge’102 and ‘cultural heritage’103 have equally been dubbed by legal scholars as GPGs and commons. De Moor considers that the concept of
‘“commons” has become a buzzword’ and that ‘the term is used for so many ideas that it threatens to become an empty concept.’ 104 Similarly, the concept of GPGs has been embraced by so many actors, in so many different contexts, that Carbone has pointed out that ‘the risk is to create a catch-all to which people can attach anything they want’.105 It is true that, in the development policy discourse, GPGs and commons cannot be understood as strict economic categories anymore. Instead, both notions have evolved from narrow technical, economic concepts into powerful advocacy tools to promote different models of collective action. The purpose of this last section is to draw a distinction between GPGs and commons in terms of the international legal principles and institutions which support their respective cooperative schemes in development.
4.1 Commons in international law
What is striking with both frameworks is that they inevitably entail profound and challenging transformations of the basic structural premises of the current international legal system. Commons activists and scholars view the principle of State sovereignty as an obstacle, rather than a positive instrument of resistance against enclosures. Ugo Mattei and Fritjof Capra, for example, doubt that international law is capable of protecting commons and recast old development methods based on privatisation strategies:
A global, top-down, eco-friendly enforcement system at this point is impossible to conceive of. It would be ineffective because powerful policy makers and their allied corporate lawyers have global jurisdiction and are bound to uphold the existing system.
Consequently, seeking the use of ‘top-down’ international law to protect the commons is like trying to employ a fox to protect a chicken house.106
The process of development based on the commons must be locally owned. Communities must be empowered as key actors in the governance of their own shared resources,107 rather than passive recipients of GPGs. So instead of our State-centric international legal system, the commons-based approach promotes democratic and participatory methods which allow communities to claim rights in development projects. In their book Green Governance: Ecological Survival, Human Rights, and the Law of the Commons, Burns Weston and David Bollier even suggest that ‘commoners have the fundamental human right, sanctioned by national and international law, to establish and maintain commons to protect their vital ecosystem resources’.108 While the status and jurisdictional reach of such a right remains particularly unclear and speculative, it should be acknowledged that international
102 As a commons: Charlotte Hess and Elinor Ostrom (eds), Understanding Knowledge as a Commons: From Theory to Practice (MIT Press, 2007); Brett M. Frischmann, Michael J. Madison, and Katherine J. Strandburg (eds), Governing Knowledge Commons (Oxford University Press, 2014). As a GPG: Keith E. Maskus and Jerome
H. Reichman, ‘The Globalization of Private Knowledge Goods and the Privatization of Global Public Goods’, Journal of International Economic Law, 2004, 7(2): 279. See also, Joseph E. Stiglitz, ‘Knowledge As a Global Public Good’ in Inge Kaul, Isabelle Grunberg and Marc Stern (eds.), Global Public Goods: International Cooperation in the 21st Century (Oxford University Press, 1999).
103 As a commons: Pablo Alonso Gonzalez, ‘From a Given to a Construct: Heritage as a commons’, Cultural Studies, 2014, 28(3): 359-390. As a global public good: Francesco Francioni, ‘Public and Private in the
International Protection of Global Cultural Goods’, European Journal of International Law, 2012, 23: 719.
104 De Moor, above n 64, 423.
105 Carbone, above n 14, 185.
106 Fritjof Capra and Ugo Mattei, The Ecology of Law. Toward a Legal System in Tune with nature and Community (Oakland: Berrett-Koehler Publishers, 2015), 159.
107 Bollier, above n 68.
108 Burns H. Weston and David Bollier, Green Governance: Ecological Survival, Human Rights, and the Law of the Commons (Cambridge University Press, 2013).
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law increasingly incorporates community rights which can protect commons-based institutions in developing countries.109
First of all, the 2007 UN Declaration on the Rights of Indigenous Peoples (UNDRIP)110 explicitly states in its preamble that it is concerned with the dispossession of indigenous lands, territories and resources preventing communities from exercising their right to development in accordance with their own needs and interests. By virtue of the right to self-determination, indigenous peoples have the rights to autonomy or self-government in matters relating to their internal and local affairs (Article 4), to maintain and strengthen their own distinct decision-making institutions (Articles 5 and 18), and to be secure in the enjoyment of their own means of subsistence and development (Article 20). The traditional lands and shared resources of indigenous communities should therefore be protected against enclosures (Article 26). With regard to what was said above about security of tenure,
UNDRIP requires States to give legal recognition to lands, territories and resources ‘with due respect to the customs, traditions and land tenure systems of the indigenous peoples concerned’ (Article 26(3)). In line with this provision, the Inter-American Court of Human Rights (IACtHR) also ruled that, for the purpose of recognising the property of indigenous communities ‘lacking real title’, possession of the land by reason of customary practices should suffice.111
Next, Article 1(2) of both 1966 International Covenants enshrines the right of all peoples to freely dispose of their natural wealth and resources, and prohibits depriving any peoples of their own means of subsistence, which includes commons.112 It should also be emphasised that, under current international law, the right to property should not be understood in a restrictive, Western, individualistic sense only, but can be vested collectively in a group or community. Article 5(d)(v) of the International Convention on the Elimination of All Forms of
Racial Discrimination includes the right to own property ‘in association with others’.113
Similarly, the IACtHR has interpreted the right to property under Article 21(1) of the American Convention on Human Rights (ACHR)114 in an evolutionary fashion, so as to include communal property of indigenous peoples.115
Last but not least, the latest draft of the UN Declaration of the Rights of Peasants puts forward in Article 19(3) a standalone obligation to recognise commons:
States shall provide legal recognition for land tenure rights, including customary land tenure rights, not currently protected by law. All forms of tenure, including tenancy, must provide all persons with a degree of tenure security which guarantees legal protection against forced evictions. States shall recognize and protect the natural commons and their related systems of collective use and management.116
109 See De Schutter, above n 81, 533-538.
110UNGA,‘UnitedNationsDeclarationontheRightsofIndigenous Peoples’, Resolution 61/295,
13 September 2007, UN Doc A/61/53.
111 IACtHR, Case of the Mayagna (Sumo) Awas Tingni Community v. Nicaragua, Judgment of 31 August 2011, para. 151. See also the reference to ‘commons’ as areas which are only used collectively by the community in the expert opinion of Rodolfo Stavenhagen Gruenbaum, anthropologist and sociologist: Ibid., 24.
112 International Covenant on Economic, Social and Cultural Rights, 16 December 1966; International Covenant on Civil and Political Rights, 16 December 1966.
113 International Convention on the Elimination of All Forms of Racial Discrimination, 21 December 1965.
114 American Convention on Human Rights, 22 November 1969.
115 Mayagna, above n 111, para. 148.
116 Human Rights Council, Open-ended intergovernmental working group on the rights of peasants and other people working in rural areas, ‘Draft declaration on the rights of peasants and other people working in rural areas presented by the Chair-Rapporteur of the working group’, Third Session, 17-20 May 2016, UN Doc A/HRC/WG.15/3/2, (emphasis added). This new initiative follows a long time request of civil society groups, among which Via Campesina, who have denounced systematic human rights violations against peasants and other rural groups. In 2012, the Human Rights Council established an open-ended intergovernmental working group with the mandate of negotiating a declaration outlining the rights of peasants and other people working in rural areas to respond to their specific needs and vulnerabilities.
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This provision is largely inspired by the FAO Voluntary Guidelines on the responsible governance of tenure of land, fisheries and forests in the context of national food security, which seek to protect the access to food of the rural poor in recognising different models of governance of shared natural resources at the local level.117 The Draft Declaration articulates other implicit guarantees for the commons, particularly relevant in the context of development, including the right of peasants and other people working in rural areas to control their natural resources, to enjoy the benefits of their development, the right to determine and to develop priorities and strategies for exercising their right to development (Article 5); the right to own land collectively, the right to rear livestock, to hunt and gather, and to fish in their territories, the right to water for irrigation and agricultural production in sustainable production systems controlled by local communities, the right to manage forests, and the right to maintain their distinct political, legal, economic, social and cultural institutions (Article 19). In short, it can be argued that international law now at least provides a number of human rights guarantees through which local communities in developing countries can resist enclosure and assert their rights to establish and maintain commons.
4.2 Global public goods in international law
Legal scholars adopting a GPGs lens to international law also often argue that a major overhaul of the international legal system would be required to more adequately provide GPGs. In particular, they contend that international law as it currently stands, with its cardinal principles of State sovereignty and State consent, constitutes a hindrance to the effective provision of GPGs. Shaffer, for example, warns that international law could ‘potentially impede [the] dynamic processes that are needed to address GPGs challenges’,118 while Nico Krisch asserts that the effective supply of GPGs calls for a ‘turn to non-consensual law making mechanisms, especially through powerful international institutions with majoritarian voting rules’.119 Similarly, Trachtman argues that, ‘[i]n the international system, based as it is on individual State consent, it may be tougher to make rules that would bind free riders’.120 In other words, most legal scholars find that international law de lege lata, that is organised along Westphalian lines, is ill-suited to the provision of GPGs as it lacks coercive mechanisms, but equally contend that international legal rules and institutions are essential to establish exactly those coercive mechanisms which are currently lacking.
This fairly radical critique of the current international legal system is not entirely new, and again finds its origins in older, non-legal, publications on GPGs. The International Task Force on GPGs for example opened its final report by highlighting this exact issue, namely that the principles of State sovereignty and State consent are a major obstacle for the effective provision of GPGs and the ‘basic problem [that] underlies all others’.121 In the same vein, the economist William Nordhaus emphasised that, ‘under international law […], there is no legal mechanism by which disinterested majorities, or supermajorities short of unanimities, can coerce reluctant free-riding countries into mechanisms that provide for
117 FAO, Voluntary Guidelines on the Responsible Governance of Tenure of Land, Fisheries and Forests in the Context of National Food Security (FAO, 2012), para. 8.3: ‘Nothing that there are publiclty-owned land, fisheries
and forests that are collectively used and managed (in some national contexts referred to as commons), States should, where applicable, recognize and protect such publicly-woned land, fisheries and forests and their related
systems of collective use and management, including in processes of allocation by the State.’
118 Gregory Shaffer, ‘International Law and Global Public Goods in a Legal Pluralist World’, European Journal of International Law, 2012, 23: 671.
119 Nico Krisch, ‘The Decay of Consent: International Law in an Age of Global Public Goods’, American Journal of International Law, 2014, 108: 1.
120 Joel P. Trachtman, The Future of International Law: Global Government (Cambridge University Press, 2013),
121 International Task Force on Global Public Goods, above n 22, xi.
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GPGs’.122 In his view, international law should ‘come to grips with the fact that national sovereignty cannot deal with critical GPGs’.123
Development actors try to avoid the heavy consensual structures of multilateral aid organisations through the creation of more flexible and effective international legal institutions to provide GPGs. In particular, the last decade has shown an exponential growth of trust funds focused on the supply of GPGs in the development sector.124 Such trust funds serve to coordinate collective action among various development actors – international organisations, national governments, and private entities such as the Bill and Melinda Gates Foundations (which expenses are twice as much as the WHO budget).125 Trust funds focus on a wide variety of pre-identified GPGs results.126 Trust funds are usually established by agreement between a trustee and various donors. In most cases in the sector of development, the World Bank administers these trust funds. The Bank now indeed acts as a trustee in over 1000 trust funds, which focus, for example, on climate change mitigation (e.g. the GEF), immunisation (e.g. the Gavi Alliance) or on the fight against certain epidemics (e.g. the Global Fund to Fight AIDS, Tuberculosis and Malaria).127 In its 2013 Trust Fund Annual Report, the Bank mentioned ‘support to global public goods’ as one of the overarching goals of its trust funds.128 While trust funds have undoubtedly contributed to channeling additional financial resources for specific GPGs objectives, the abandon of the rule of State consent and equality of State (‘One State, one vote’) as well as the inclusion of private entities in the formal decision-making procedures may raise concerns of legitimacy and public participation.129
From an international legal perspective, both GPGs and commons approaches to development reflect a deep frustration with the Westphalian system. However, in contrast to the commons approach that promotes more collaborative and local input of communities in governing shared resources through inter alia the right to self-determination and the right to communal ownership (input legitimacy), decisions in the GPGs model appear to be largely legitimised through a narrower criterion of economic efficiency (output efficiency). The problem is that, contrary to commons-based institutions, it is not at all clear how trust funds take into account the preferences of communities in designing development strategies. In that regard, Neil Walker is right that ‘[t]he discourse on global public goods presupposes rather than provides grounds for the relevant ‘public’, and so suffers from a general deficit of political authority’.130 In the same vein, as Burns H. Weston and David Bollier critically observe, ‘[g]overnments and multilateral intergovernmental bodies such as the UN and the World Bank frequently talk about “global public goods,” but the concept is really a deception […] because there is no sovereign order with authority over global resources and no recognized world citizenry in the technical sense to whom such authority would minister.’ 131
The risk is indeed that a legal process solely based on GPGs results, considers the poor as
122WilliamD.Nordhaus,‘PaulSamuelsonandGlobalPublicGoods’,5 May 2005, available at
123 Ibid. 8.
124 See Jacky Mathonnat and Martine Audibert, ‘Fonds fiduciaires et programmes verticaux: quelles contributions aux politiques sectorielles? Revue de la littérature et exemple du secteur de la santé’, Papiers de Recherche AFD, 2016, 20.
125 Jean-Michel Severino and Olivier Ray, ‘The End of ODA (II): The Birth of Hypercollective Action’, Center for
Global Development, Working Paper 218, June 2010, http://www.cgdev.org/publication/end-oda-ii-birth-
hypercollective-action-working-paper-218, 4.
126 Ibid., 7.
127 World Bank, 2013 Trust Fund Annual Report (World Bank, 2013) 25.
128 Ibid, 19.
129 See Nele Matz, ‘Financial Institutions between Effectiveness and Legitimacy – A Legal Analysis of the World Bank, Global Environment Facility and Prototype Carbon Fund’, International Environmental Agreements, 2005,
5: 265-302.
130 Neil Walker, ‘Human Rights and Public Goods: The Sound of One Hand Clapping?’ , Indiana Journal of Global Legal Studies, 2016, 23(1): 259.
131 Weston & Bollier, above n 108, 206.
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passive consumers of development services, and does not afford communities the right to be placed at the centre of the governance of shared resources like in the commons paradigm.
5.CONCLUSION
The development community is faced since the 90’s with two conceptual and normative frameworks which seek to reframe the process of development. What this paper attempted to do, was to draw a line between both ideas in comparing them from an international legal perspective. Indeed, at a point where everybody admits that both commons and GPGs risk becoming ‘catch-all’ phrases and buzzwords to which development agencies can attach anything they want, conceptual clarity appears to be needed to reveal the distinctive risks and added value brought by each approach to development. In particular, the contribution of this paper was to show that a distinction can be made in terms of the legal principles and institutions which support their cooperative schemes. The power of the commons discourse is to propose an alternative vocabulary and governance paradigm to that of the traditional market-State dichotomy. There are plenty of institutional arrangements which are formed by the communities themselves and which often prove more effective than the typical ‘all-public’ and ‘all-private’ solutions in safeguarding shared natural resources. International law now increasingly supports commons-based institutions under various human rights instruments. In contrast, the urgency to produce GPGs seems to justify a turn to new legal institutions in the form of public-private partnerships and trust funds which do not afford to communities the same right to participate and shape their own process of development. Thus, instead of assimilating commons to GPGs, both development frameworks should be cautiously distinguished to avoid that the powerful alternative force of community-driven initiatives become mere marketing products to dress up classic development methods based on privatisation.
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RESSONÂNCIAS DA AULA DE PPE, AMPLIFICADA PELA FILOSOFIA DO DIREITO.
Hoje fizemos alguns comentários sobre os desdobramentos laterais do debate contemporâneo sobre os BENS PÚBLICOS(estáticos e essencialistas vs. dinâmicos e relacionais), chamando atenção para suas manifestações laterais como BENS PÚBLICOS GLOBAIS (GLOBAL PUBLIC GOODS) E COMMONS (no sentido de Elinor Ostrom, exitem outros….) como poderão apreender por meio da leitura do texto de INSTITUTIONAL ANALYZES OF THE COMMONS: THREE SCHOOLS ANDTHEIR DIFFERENCES do Rafael A. F. Zanatta, do Departamento de Filosofia do Direito da USP..
No texto abaixo, divulgado hoje, não por mera coincidência é feito um contraste qualificado entre estes dois conceitos,sinalizando a contemporaneidade do debate.
Mas se pode passar sem criticas as limitações do artigo de Samuel Cogolati, do Leuven Centre for Global Governance Studies, University of Leuven, pod duas falhas no seu argumento. . De um lado, ao considerar o COMMONS exclusivamente no sentido operado por Elinor Ostrom, desconsiderando que tal visão é apneas uma, entre em muitas outras, como aponta Rafael A. F. Zanatta, do Departamento de Filosofia do Direito da USP.. Do outro, lado, por ao evidenciar com pertinência as diferenças entre os conceitos de GLOBAL PUBLIC GOODS (GPGs) e os COMMONS insinua com “impertinência” um conflito entre as duas abordagens, já que elas se remetem a universos estruturalmente distintos, com o pretexto de ressaltar uma ameaça de privatisação:
“My argument is that, instead of assimilating commons to GPGs, both analytical and normative frameworks should be cautiously distinguished as they imply different legal principles and institutions for development. Indeed, in contrast to the commons approach that promotes more collaborative input in governing common resources, decisions in the GPGs model appear to be largely legitimised through a narrow criterion of economic efficiency. So whereas legal institutions based on commons favour bottom-up initiatives of
citizens to counter the traditional private-State divide and to respond to threats to our common heritage, the urgency to produce GPGs seems to justify a turn to new public-private partnerships and trust funds in development cooperation – such as the Gavi Alliance or the Global Fund to Fight AIDS, Tuberculosis and Malaria in the case of the World Bank’s operations. The risk with the GPGs rhetoric is then to reintroduce privatisation as a method of development and narrow development pro”
REFERÊNCIA
INSTITUTIONAL ANALYZES OF THE COMMONS: THREE SCHOOLS ANDTHEIR DIFFERENCES do Rafael A. F. Zanatta http://migre.me/vCgCJ
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