A new year and a new research agenda: 'Rethinking public interests in international and European law'

By Janne E. Nijman

On Friday January 14, Australian minister for immigration, citizenship, migrant services and multicultural affairs, Alex Hawke, stated that he exercised his power ‘to cancel the visa held by Mr Novak Djokovic on health and good order grounds, on the basis that it was in the public interest to do so.’ (Italics mine.)

A few days earlier, public interest considerations were on the - virtual - table at the World Trade Organisation (WTO) in Geneva. On that day, the General Council met to discuss a comprehensive WTO response to the pandemic, including the proposal to waive certain provisions of the Agreement on Trade-related Aspects of Intellectual Property Rights (TRIPS) for COVID-19-related vaccines, therapeutics, and diagnostics.

Director general Okonjo-Iweala argued ‘We at the WTO now have to step up urgently to do our part to reach a multilateral outcome on intellectual property and other issues so as to fully contribute to the global efforts in the fight against COVID-19’. Private patents and public interests, such as (global) health, have to be discussed and weighed by the General Council and the TRIPS Council. The relationship between intellectual property and the public interest is debated by WTO members and by the international community more widely.

Throughout the pandemic, we are struck by how a very few big-tech companies such as Facebook and Twitter control large parts of our globe’s digital infrastructure and as such may control public debate, but at the same time serve their private - and profit-making - interests. In ‘The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power’, Shoshana Zuboff shows how the data economy cannot take care of our common goods and public interests. Public interest technologists try to find ways to respond to this dire conclusion.

These are just three examples of how the notion of the public interest often is central in current debates and in political and legal arguments in a variety of issue areas.

Rethinking public interests
At the Asser Institute, we start the new year with a brand-new research agenda (2022-2026), entitled ‘Rethinking public interests in international and European Law: Pairing critical reflection with perspectives for action’. It is organised around questions pertaining to the public interest in international and European public and private law.

In the coming years, we aim to further the understanding of how public interests in international and European public and private law are understood, identified, used, (re)constituted and how they function within institutions. We envision a world in which local, national and transnational public interests are protected and promoted by international and European public and private law. And we think that critical reflection on how this legal notion is used, will offer perspectives for action to help confront our global challenges.

While the theme was already present in our previous research agenda, we will now bring questions around public interest to the core of our research, relegating them to the various legal domains covered by the Asser Institute. Our research agenda also aims to support and strengthen the Institute’s academic identity and profile more broadly, as it provides a substantive basis for the Institute’s education, knowledge dissemination activities, and advisory work. Overall, it sets out the substantive direction for the Institute in 2022-2026.

To give you a sneak preview, the agenda aims to focus our work on questions around accountability of the state and the prosecution of crimes, regulation of disruptive technologies in peace and security, international and European institutions and their practices, and the constitution of transnational public interests.

Crucial legal and political concept
With the theme of public interests in international and European public and private law, we have chosen for a notion that is central to legal parlance and current global and societal challenges. It is omnipresent at all levels of law and governance -local, national, regional and international - and in all substantive legal domains. But what public interests are, and what they imply, is often subject of fierce debate. 

‘What public interests are, and what they imply, is often subject of fierce debate’

See, for instance, the discussions on global vaccine justice to which I referred above. While low-income countries still struggle to launch vaccination programmes, wealthy countries are stockpiling surplus doses or they are speeding up programmes for a third booster jab. The suspension of intellectual property rights of vaccine producers, which could increase access to Covid vaccines, is both propagated and contested in the name of public interest.

The pharmaceutical companies argue that their research and development (R&D) is only sustainable - and thus the public interest of global health served - if intellectual property rights are respected and R&D has a significant return on investment. Others disagree, and think that the waiving of intellectual property rights in the name of global health and equality would be proportionate and just: health should be reclaimed as a public good rather than a commodity.

The debate on global vaccine justice is only one example of how the indeterminacy of the public interest gives way to struggles, and of how the category of the public interest is mobilised in both public policy and legal discourses. 

Pressing challenges
The idea to organise our research agenda around questions pertaining to the public interest in international and European law, emerged long before the Covid-19 pandemic. Triggered by pressing challenges such as climate change and ecocide, transnational terrorism, unsustainable capitalism and a growing social inequality, global migration and our planetary boundaries rapidly coming in sight, we asked ourselves: ‘How do we take care of our (social and natural) world, and what role does law play in this?’

In our previous research agenda, ‘International and European Law as a Source of Trust in a Hyperconnected world (2016-21)’, the concern for the public interest was implicit. Inspired by the examinations of the backlash against globalisation, and against international and European law and institutions by international law scholars as Martti Koskenniemi and Anne Orford, this concern became more pressing.

The loss of public trust in international and European law and institutions, seems strongly related to the - public - perception that norms and institutions are failing to serve public interests. Data on the rising inequality and the deepening of both climate and earth system crises, only support this perception of failure and untrustworthiness.

Moreover, critical research into international and European public and private law and institutions has shown that legal regimes and institutions are implicated in the increasing global inequality, and in the imminent crash into our Earth’s planetary boundaries.

This forms a stark contrast with what the public expects: namely that our institutions and regimes confront these crises. And that they protect public interests and public goods at the local, national, regional and international level.

‘What exactly a public interest entails, is context-dependent and always a claim, never a given, and sometimes agreed on’

Elusive and contested
It is fair to say that ‘the public interest’ simply does not exist. The notion may refer to many different public interests of many different social, political, cultural, economic or ecological natures. What exactly a public interest entails, is context-dependent and always a claim, never a given, and sometimes agreed on. Sometimes it is called ‘public interest’, and sometimes ‘public good’, ‘common concern’, ‘common good’ or even ‘shared values’. The concept is as self-evident to legal and political debates, as it is elusive and contested. Public interests are neither given nor clearly defined. Rather, they are continuously negotiated and redefined in legal and political debates.

Shaped by market fundamentalism
However, we do see that within the prevalent neoliberal mindset, an economic approach to the public interest has come to dominate. For decades, the public interest has been invoked in arguments for deregulation. And research has shown how public interests have largely been shaped by market fundamentalism to support capital and business – including big tech and social media platform companies - over labour, maintenance of the public sphere, and the environment.

Similarly, in an era in which illiberal democracies are on the rise, judicial reform in, for example, Poland has been argued to be in the public interest while objectively straining rule of law principles (See for instance ECtHR Baku v. Hungary). And in the Post 9/11 decades of counter-terrorism, UN experts have warned how counter-terrorism measures in the (public) interest of security have put pressure on the open space for NGOs and human rights organisations and - to use former UN Special Rapporteur Emmerson’s words - therewith ‘choke[d] the public interest.’

This leads to questions such as: what are the implications of a particular use and/or understanding of a public interest? How do legal processes and institutional practices create and (re)produce a public interest? How are public interests understood in the context of a specific legal regime? How are (global) public interests weighed in particular cases or decisions at hand? What regulatory action is needed to safeguard a public interest?

And, to make it more concrete: in the interest of which publics is law and policy actually made within institutions like the EU, the WTO, or the UN?

The phrase ‘the global public interest’ features frequently in ‘UN speak’, with a view to moving beyond the divide between the Global North and Global South in access to information and communication technologies. But how does this play out when put under critical - post-colonial - scrutiny? And which interests and whose values will be protected - and how - in the ongoing UN debates on autonomous weapons systems? That of the powerful or the powerless?

The act of rethinking public interests in international and European law may also amount to an exercise of reclaiming the public interest. We believe a responsible research agenda includes both possibilities, and a willingness to sustain the tension between them.

Further scrutiny
In short, at the Asser Institute, we think that, in all of its abstract and concrete uses and manifestations, the public interest deserves further scrutiny. While research on ‘publicness’, ‘community interests’ or ‘global public goods’ is ongoing in international law and European public and private law scholarship, the notion of public interest (and the work it does in international and European law and governance) is remarkably understudied. So that is what, in the coming years, researchers at the Asser Institute are aiming to do.

Four interrelated ‘research strands’
In the work of the Institute, the overarching theme of our new research agenda will be unpacked in four interrelated research strands (follow the hyperlinks for focus area and research questions):

Research strand A: ‘In the public interest: accountability of the state and the prosecution of crimes’

Research strand B: ‘Regulation in the public interest: Disruptive technologies in peace and security’

Research strand C: ‘Public interest(s) inside/within international and European institutions and their practices’

Research strand D: ‘Transnational public interests: constituting public interest beyond and below the state’

New educational programmes
In the coming years, our new research agenda ‘Rethinking public interests in international and European Law’ will be the substantive basis for the Asser Institute’s education, knowledge dissemination activities and events. In 2022, we will continue with, and expand on our educational programmes, which bring students from all over the world to The Hague. Well-known training courses such as our upcoming Winter academy on artificial intelligence and international law, and our Spring academy on doing business right, will be supplemented with new educational  programmes aimed at (legal) professionals.

Driven by responsibility and a commitment to aim for a just society, both the Asser Institute and the Amsterdam Law School (University of Amsterdam) share the ambition to contribute to knowledge enhancement and scientific solutions to societal problems. Early 2022, we will develop joint professional education programmes, such as an Advanced Master programme. Building on our strong track record in public interest litigation and advocacy programs, the Asser Institute will further initiate a School of Public Interest Advocacy and Strategic Litigation.

Abiding by our long history as an inter-university institute, the Asser Institute will also continue to facilitate all Dutch Law Schools through the coordination of successful research networks such as CLEER on European external action, and the NNHRR platform on human rights. In 2022-2026, we will further initiate a new (inter-university) research network on international arms control law. Together with IJI, knowledge centre for private international law and foreign law, we will start work on a shared knowledge platform on private international law.

Last, but not least, on May 10 2022, we will organise our 7^th Annual T.M.C. Asser Lecture. In the Peace Palace, professor Brigid Laffan, an internationally recognised expert on the European Union will analyse the challenges facing Europe in a ‘world of geopolitical shift and shock’. The title of her lecture is: ‘Europe’s role in the world: player or plaything?’ Do not forget to register, as we look forward to meeting you there.

On behalf of the team at the Asser Institute, I wish you an inspiring year in which we explore collectively how law can contribute to a more just and common future for all of us.