Strategic research agenda

Rethinking public interests in international and European Law:
Pairing critical reflection with perspectives for action

In the first months of 2021, the notion of public interest has featured in various legal and political debates. For one, in the debate on global vaccine justice. The suspension of intellectual property rights of vaccine producers is both propagated and contested in the name of public interest. The pharmaceutical companies argue that their R&D is only sustainable – and thus the public interest of global health served – if their IP-rights are respected and their R&D has a significant return on investment. Others contest this with the argument that waiving of IP-rights in the name of global health and equality is proportionate and just. This is only one – be it topical – example of how the indeterminacy of the public interest gives way to struggles, and of how public interests are mobilised in both public policy and legal discourses.

'The indeterminacy of the public interest gives way to struggles, and of how public interests are mobilised in both public policy and legal discourses'

In the Institute’s previous research agenda, ‘International and European Law as a Source of Trust in a Hyperconnected world (2016-21)’, concern for the public interest was implicit. Inspired by examinations of the backlash against globalisation and against international and European law and institutions by such renowned international scholars as Martti Koskenniemi and Anne Orford, this concern further came to the fore in our discussions. The loss of public trust in international and European law and institutions seems strongly related to the perception that these norms and institutions fail to serve ‘public interests’. Data on the rise of inequality or the deepening of the climate and earth system crises only fan this perception of failure and untrustworthiness.

Stark contrast
Critical research into international and European public and private law and institutions moreover has shown that these legal regimes and institutions are implicated in the increase of global inequality and in our imminent crash into our Earth’s planetary boundaries. This is in stark contrast with what is expected by the public: that these regimes and institutions play a role in the confrontation of the aforementioned crises and in the protection of public interests and/or public goods at the local, national, regional and international level.

The implication of international and European institutions in global inequality, climate crises, etc, is not for want of appeals made to public interests, nor even for want of best intentions. But the presuppositions that live behind public interest arguments and their effects in action are not yet well understood. The identification, formulation and interpretation of public interests are discursive exercises. That said, their value for constructive legal research and in particular for the development of legal arguments and answers to address societal challenges is hard to overestimate.

'What a public interest or public good entails, is always claimed, never a given, and sometimes agreed on'

While public interests are central to legal arguments and normative orders, what they are and imply is often essentially contested. What a public interest or public good entails, is always claimed, never a given, and sometimes agreed on. For most lawyers, this is no surprise. The law functions through many open norms and concepts, such as the public interest, and, as such, it needs to be contextualised, interpreted and applied.

Crucial legal notion
Thus, it is fair to say that the ‘public interest’ does not exist. The notion may refer to many different public interests of either a social, political, cultural, economic or ecological nature. And yet it is a crucial legal and political notion that is omnipresent at all levels of law and governance - the local, national, regional and international – and in all substantive legal domains. We have chosen the notion of ‘public interest’ for the reason that it is such a crucial legal concept and category commonly used also in public debates. That said, the concept in which we are interested may sometimes be called ‘public interest’, and sometimes ‘public good’, ‘common concern’, or even ‘shared values’, etc.

The concept of public interest or public good, singular and plural, is a concept that refers to the public and the public sphere of a political society. As such, in its more general sense it is traditionally foundational to legal and political systems as a whole. Both law and government are understood and presented to operate in the interests of the public, in the name of the public interest. This more general conception of the public interest – public interest sensu lato – grounds legal and political discourse and the making of law and policy. As such, it is a normative concept with a long history in legal and political philosophy.

This strategic research agenda is, however, not an agenda for research in political philosophy or the history of philosophy. It is not pre-set in a particular tradition, utilitarian, liberal contractarian, Marxist or otherwise, but accepted to be a concept theorised in both political and legal philosophy (ultimately) in pursuit of a fair and just society.

Deserving further scrutiny
With the concept of public interest sensu lato as a general basis for authority and legitimacy of international and European public and private law and government, public interests sensu stricto or, rather, area-specific public interests, unsurprisingly permeate reasoning and judgements. ‘Public interest’ features frequently as a legal concept or category that is weighed and taken into account in a wide variety of cases in order to come to a judgement or policy decision. It means to give to the work of public institutions at all levels of governance the aura of authority and legitimacy. As a normative concept or standard aiming to contribute to a legal framework that best serves society, from the urban to the global, it can be in the foreground or in the background of a particular research project. In all of its abstract and concrete legal uses and manifestations, the ‘public interest’ deserves scrutiny.
Finally, we note that feminist critiques of international law have long problematised a public/private split. In so doing, they have destabilised discursive and doctrinal constructions of the public behind public international law. By paying attention to whom and what is excluded from international law’s public, or publics, feminist critiques expose the exercises of power that sustain regressive global distributions of resources and political capacity. Mindful of this tradition, we aim to be rethinking and reclaiming public interests in the coming five years.

Rethinking public interests 
It is, in short, high time to turn to the public interest and to examine how it is understood and how it functions within international and European law and institutions today. While research is ongoing on ‘publicness’, ‘community interests’ or ‘global public goods’ 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 less at the forefront of the scholarly debates. Public interests are neither given nor clearly defined. Rather, they are continuously negotiated and redefined in legal and political argumentation/argumentative practices. Public interests are continuously constituted and reconstituted discursively within the public sphere.

Continuously constituted and reconstituted
Numerous questions arise from this understanding, to name but a few:
In the interest of which publics is law and policy made within institutions like the EU, the WTO or the UN? What are the distributive effects of a particular use of a public interest? How do these legal processes and institutional practices create and (re)produce a public interest? In turn, how do international and European law and policy shape the publics and public spheres involved in the (re)constitution of a public interest? Who are these publics engaged in the production of public interest at the global, European, domestic and local level? Which actor is included, which actor is excluded from the processes and institutional practices that constitute a public interest? How are public interests understood in the context of a specific legal regime? Who or what is served by a public interest as shaped by these specific areas of international or European law? Who decides on the prevailing conception or interpretation of a public interest? How can competing or conflicting views on what constitutes public interests be reconciled? How is a public interest understood and (re)constituted in the social practices of international courts and institutions? How are (global) public interests weighed in particular cases or decisions at hand? What regulatory action is needed to safeguard a public interest? With whose interests is the public interest aligning: the powerful or the powerless? 

With whose interests is the public interest aligning: the powerful or the powerless? 

The language of ‘reclaiming’ the public interest expresses a sensitivity to the way in which powerful groups in local, national or global society can disguise their interests as ‘public interest’. The public interest then becomes a legal notion that reproduces political domination and/or private interests as public ones. This should alert us to the fact that while the notion of public interest is regularly used in legal arguments and judgements, it is – especially as an open norm or category – also a concept that may legitimise the existing social, economic and political order (and its vested interests). This realisation is all the more important in light of the expectations of the public projected onto this legal and political notion that is so central to legal regimes and public institutions. To many, the public interest, in its colloquial meaning, is a concept with emancipatory force and with potential for transformative politics and law.

'Neoliberal globalisation'
In the age of late capitalism, after decades in which international and European public and private law have been implicated in neoliberal globalisation, it is fair to examine critically how the public interest is currently understood in these legal regimes, and what its implications are. Research has shown how received  ‘public interests’ have been largely 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. 

The ‘public interest’ has been invoked for decades in arguments for deregulation. Within the prevalent neoliberal mindset, an economic approach to the public interest has dominated. 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. In the Post 9/11 decades of counter-terrorism, UN experts have warned how in counter-terrorism measures in the (public) interest of security have put pressure on the open space for NGOs and human rights organisations and 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, and where does it have, or fail to have, redistributive effects or emancipatory potential? In other words, one cannot escape the thought that rethinking public interests in international and European law may also amount to an exercise of reclaiming the public interest. Critical scrutiny of the use of public interest may open up a space for alternative conceptions of the public interest to guide law- and policy-making and for raising questions of distribution.

In conclusion, understandings of public interest constitute and are (re)constituted by (specific areas of) international and European public and private law, and how public interests are understood and function in international and European law and governance has significant - distributional and ideational - consequences. Hence, the struggle over interpretations.

With this agenda, the Asser Institute examines this problematique within four research strands: