The Parched Earth of Cooperation: How to Solve the Tragedy of the Commons in International Environmental Governance

This article proposes a way to strengthen international environmental agreements, such as the Paris Agreement and the Kyoto Protocol. Multilateral environmental agreements such as these are extremely fragile. At the heart of the problem is what is known as the tragedy of the commons—a unique dynamic that viciously sabotages cooperation. The cause of this tragedy is that no one can trust that other actors will conserve the common resource, which triggers a race to the bottom—a race to deplete. Global warming and our inability to halt it is perhaps the ultimate example of a tragedy of the commons on a truly massive scale. On a domestic level, the tragedy of the commons is easily solved through regulation. However, on a supranational level, where there is no overarching authority, governance mechanisms tend to collapse. The hard truth is that without robust enforcement of some kind, international cooperation is extremely difficult to maintain. This article proposes the following idea: governments joining (or already party to) an agreement, contribute an upfront deposit to an international regulatory body (the Commons Management Fund (“CMF”)) with the understanding that their contribution will be forfeited if they fail to honor their treaty commitments. The idea, while ostensibly simple, is deceptively complex. The focus is not the penalty, but rather the ability of governments to credibly signal commitment. In game theory, credible signaling can prevent a tragedy of the commons by generating confidence that everyone will stick to their commitments. The CMF is designed to exploit this effect. Now, more than ever, a solution to the tragedy of the commons on a supranational level is desperately needed—the CMF is such a solution

Planting Seeds of Order: How the State Can Create, Shape, and Use Customary Law

This paper argues that government can strategically trigger the emergence of customary law in order to achieve specific policy ends. While much has been written on customary law, the idea that the State can stimulate its emergence is a radical notion with clear policy implications. Harnessed correctly, such an approach could be a powerful legislative weapon to create, sustain, and even redirect social order. Building upon basic insights from game theory, the paper posits a way to do this: policymakers can deliberately recreate the social conditions that foster the emergence of customary order. The paper, however, draws a sharp divide between the technical and the normative. After laying out how this may technically be achieved, the paper considers the normative legitimacy of this kind of socio-legal engineering, concluding that, while it may be theoretically possible to trigger the emergence of customary law, the normative implications of doing so are quite another matter, and as such it is difficult to see how such policies could ever be casually pursued

Anarchy, Order, and Trade: A Structuralist Account of Why a Global Commercial Legal Order is Emerging

While still fragmented, the world is witnessing the emergence of a global commercial legal order independent of any one national legal system. This process is unfolding both on the macrolevel of state actors as well as on the microlevel of private individuals and organizations. On the macrolevel, the sources of this legal order are complex international agreements; on the microlevel, private contracts employing commercial customary practices and arbitration are driving this process forward. Yet there is no comparable evolution occurring (in any substantial sense) in noncommercial areas of law such as criminal, tort, or family law. There is an overall asymmetry in the development of transnational legal order. But why is this occurring? This Article argues that the emergence of a global commercial legal order may be partially attributed to the unique structural nature of trade. The Article gives a structuralist account, positing that, unlike legal order of a non-commercial nature, commercial legal order has built-in mechanisms that make it particularly suited to evolve in a transnational context--that is, to evolve and sustain itself in the absence of a central legislative or coercive authority. The Article identifies and explores these built-in mechanisms. The Article concludes that, because commercial legal order is uniquely predisposed to emerge without the state, this asymmetry should not only continue but likely grow even more extreme

Can the Liberal Order be Sustained? Nations, Network Effects, and the Erosion of Global Institutions

A growing retreat from multilateralism is threatening to upend the institutions that underpin the liberal international order. This article applies network theory to this crisis in global governance, arguing that policymakers can strengthen these institutions by leveraging network effect pressures. Network effects arise when networks of actors—say language speakers or users of a social media platform—interact and the value one user derives from the network increases as other users join the network (e.g., the more people who speak your language, the more useful it is because there are more people with whom you can communicate). Crucially, network effect pressures produce what is called ‘lock-in’—a situation in which actors are unable to exit the network without incurring high costs and as a result become locked into the network. For example, because of their powerful network effect pressures, users of Facebook and the English language cannot easily exit these networks. International organizations such as the UN, the WTO, the IMF, etc., are networks of sovereign states that likewise produce network effect pressures. As such, intensifying their network effect pressure can lock countries more firmly into these institutions. To that end, this article proposes a suite of strategies policymakers may use to manipulate the network effect pressures generated by international organizations to strengthen these institutions and the multilateral treaties that establish them—an approach the article calls treaty hacking. The article offers a toolkit from which policymakers can draw to bolster the liberal order in the face of growing global instability and change

Opening the Machinery of Private Order: Public International Law as a Form of Private Ordering

Does legal order always need the enforcement power of the State? The concept of private order says no. Private ordering is traditionally defined as the coming together of non-governmental parties in voluntary, self-enforcing arrangements. This Article radically expands the concept of private order to include not only individuals, but also governments themselves, arguing that the ingredients for private ordering exist in both spheres. State actors, perhaps even more so than individuals, are producers of private order in that they regularly establish sophisticated legal order in the absence of centralized enforcement. The Article constructs a theory of private order which focuses on the unique structural properties of contract, and then applies this to the emergence of public international law, arguing that successful treaty-based law should be thought of as a form of contract-based private ordering—one able to emerge because it assigns ongoing positive obligations between parties thereby facilitating signaling

The Theatre of Punishment: Case Studies in the Political Function of Corporal and Capital Punishment

Michel Foucault famously argued that punishment was an expression of power—a way for the State to shore up and legitimize its political authority. Foucault attributed the historical shift away from public torture and corporal punishment, which occurred during the 19th century, to the availability of new techniques of social control; however, corporal and capital punishment (what we term “shock punishment”) persists in many penal systems to this day, suggesting that these countries have for some reason not fully undergone this penal evolution. Using the experiences of Hong Kong and Singapore as case studies, we attempt to explain why this is the case. We argue that, while a range of factors contribute to why countries employ shock punishment, retention is often linked to the political stability of a government’s rule. Punishment, as a visceral expression of power, makes shock punishment particularly appealing to States grappling with political insecurity. In the post-war period, Hong Kong’s colonial government did not feel their rule challenged to the same extent as the newly independent government in Singapore. The result is two radically divergent stories with regards to corporal punishment, with Hong Kong abolishing the practice altogether in 1991 and Singapore not only retaining it, but greatly expanding its usage. As further support for our thesis, we offer empirical data regarding the use of shock punishment and the political freedom of the societies that retain it. We identify a fairly robust, positive correlation between the use of shock punishment and authoritarian and semi-authoritarian governments desperate to legitimize their rule. The final conclusion we reach is that, while many factors undoubtedly contribute to the retention of shock punishment, its expressive power plays a significant role in why many States continue to employ it

Can the Liberal Order be Sustained? Nations, Network Effects, and the Erosion of Global Institutions

A growing retreat from multilateralism is threatening to upend the institutions that underpin the liberal international order. This article applies network theory to this crisis in global governance, arguing that policymakers can strengthen these institutions by leveraging network effect pressures. Network effects arise when networks of actors—say language speakers or users of a social media platform—interact and the value one user derives from the network increases as other users join the network (e.g., the more people who speak your language, the more useful it is because there are more people with whom you can communicate). Crucially, network effect pressures produce what is called ‘lock-in’—a situation in which actors are unable to exit the network without incurring high costs and as a result become locked into the network. For example, because of their powerful network effect pressures, users of Facebook and the English language cannot easily exit these networks. International organizations such as the UN, the WTO, the IMF, etc., are networks of sovereign states that likewise produce network effect pressures. As such, intensifying their network effect pressure can lock countries more firmly into these institutions. To that end, this article proposes a suite of strategies policymakers may use to manipulate the network effect pressures generated by international organizations to strengthen these institutions and the multilateral treaties that establish them—an approach the article calls treaty hacking. The article offers a toolkit from which policymakers can draw to bolster the liberal order in the face of growing global instability and change

A Plan to Strengthen the Paris Climate Agreement

Sustainable use of common-pool resources is extremely tricky to maintain. Indeed, the failure of the Kyoto Protocol is a stark testament to this challenge. This short discussion offers a potential solution to this crisis of coordination. This Article proposes a mechanism to mitigate the impact of the tragedy of the commons and help ensure that the world’s nations live up to their commitments under the Paris Agreement. The challenge to international cooperation that the tragedy of the commons creates is pernicious. The question of how to tackle the tragedy of the commons—and I say this without a trace of exaggeration—is arguably the most pressing problem we face as a species. We need a stable framework for collective action now. The Paris Agreement offers our best hope yet for rallying international cooperation. Yet a cloud of cynicism already surrounds the agreement. After the collapse of Kyoto, a failure of the Paris Agreement could fatally hobble global environmental governance