Anticommons in Public International Law: Consideration of a New Approach for Legal Research

Abstract

The theory of the anticommons opens up a new approach for legal research into Public International Law. This article demonstrates that anticommons structures can be readily located in the legal rules and legal institutions of public international law and its many affiliated substantive areas of law, such as in International Environmental Law. It provides an introduction and survey of the existing research into anticommons and sets out a list of the known potential solutions to anticommons structures. As such, it is demonstrated that legal researchers would benefit from a greater familiarity with current research in the field of anticommons theory. This article provides legal researchers with the frameworks necessary to begin research on anticommons in Public International Law. The model knowns as the ‘Tragedy of the Anticommons’ is a symmetrical reflection to the ‘Tragedy of the Commons,’ in that both models work on the extremes of having or not having exclusionary rights over a common resource or completion of a joint endeavor. Both models result in reduced benefits, or welfare, from the underlying resource albeit on different mechanisms. When this common resource or joint endeavor is a legal service, legal right, or legal procedure, one can have a legal anticommons; when the issue is based in complementary or competitive regulatory processes, one can obtain a regulatory anticommons. Evidence is presented that both legal and regulatory anticommons can be found in Public International Law. Given that there are anticommons in the rule sets and legal institutions of Public International Law, policy makers should be able to locate and characterize those anticommons to better identify which problems are thus created and which frustrations in public international law can be avoided or ameliorated.