Subglobal Regulation of the Global Commons : The Case of Climate Change

In this Article, the authors challenge the conventional wisdom in the legal, economics, and policy literature that unilateral (as opposed to collective) action by individual countries to restrain despoliation of the global commons is presumptively irrational. The conventional view flows from Garrett Hardin's classic "Tragedy of the Commons" analysis, in which commons preservation, though collectively desirable, is economically irrational when undertaken by individuals, hence the tragedy. Motivated by the unexpected actions of many individual nations and states to address climate change (a classic global commons problem) even in the absence of an unambiguous global framework, the authors show that the market imperfections that characterize some global commons problems, including those of climate change, can diverge from those underpinning the standard "Tragedy of the Commons." The authors argue that this divergence makes room for significant rational unilateral action towards commons preservation, and that this has been underappreciated by many scholars who instinctively disparage unilateral action. In place of the conventional wisdom, the authors suggest that short of the ideal "full glass" of optimal collective action, there exists a "glass half full" of suboptimal unilateral action by larger subglobal governments that is better than no regulation (and hence no benefits) at all, and, indeed, the evidence shows that some larger subglobal governments, the United States in particular, should actually be doing more to address climate change. Furthermore, action by both large and small subglobal governments may function as a mechanism by which individual governments can help trigger the implementation of the preferred solution of an international framework for collective action