Global Norms in the 20-1st Cen [Unabridged] 1904303986, 9781904303985

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Global Norms in the Twenty-First Century

Global Norms in the Twenty-First Century

Edited by

Klaus-Gerd Giesen and Kees van der Pijl

CAMBRIDGE SCHOLARS PRESS

Global Norms in the Twenty-First Century, edited by Klaus-Gerd Giesen and Kees van der Pijl This book first published 2006 by Cambridge Scholars Press 15 Angerton Gardens, Newcastle, NE5 2JA, UK British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Copyright © 2006 by Klaus-Gerd Giesen and Kees van der Pijl and contributors

All rights for this book reserved. No part of this book may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior permission of the copyright owner. ISBN 1904303986

TABLE OF CONTENTS CHAPTER 1 INTRODUCTION: GLOBAL NORMS AS A CHALLENGE TO THE NATION-STATE KLAUS-GERD GIESEN AND KEES VAN DER PIJL ..................................... 1 PART I NATIONAL SOVEREIGNTY AND THE NORMATIVE FRAMEWORK OF INTERNATIONAL RELATIONS CHAPTER 2 THE UNITED NATIONS AND INTERNATIONAL NORMS: A SUNSET INSTITUTION? ROGER COATE AND JACQUES FOMERAND ............................................. 20 CHAPTER 3 NORMS, SOVEREIGNTY AND THE AMERICAN EMPIRE RONEN PALAN ................................................................................................ 40 CHAPTER 4 INTERNATIONAL NORMS AND PREVENTIVE WARFARE: IMPLICATIONS FOR GLOBAL GOVERNANCE GREGORY A. RAYMOND AND CHARLES W. KEGLEY, JR. ................................................................... 55 CHAPTER 5 PARADIPLOMACY AS INTERNATIONAL CUSTOM: SUB-NATIONAL GOVERNMENT AND THE MAKING OF NEW GLOBAL NORMS NOÉ CORNAGO................................................................................................ 67 PART II THE POLITICAL ECONOMY OF GLOBAL NORMS CHAPTER 6 REDESIGNING SOVEREIGNTY: THE EFFECTS OF TRIPS ON THE SOVEREIGNTY NORM ELIZABETH DE ZUTTER ................................................................................ 84

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CHAPTER 7 OUTSOURCING JUSTICE: A NEW INTERNATIONAL ORTHODOXY? NOEMI GAL-OR ............................................................................................. 101 CHAPTER 8 INTERNATIONAL STANDARDISATION AND CORPORATE DEMOCRACY JEAN-CHRISTOPHE GRAZ ........................................................................... 118 CHAPTER 9 PRIVATE NORMS IN THE GLOBAL POLITICAL ECONOMY ANDREAS NÖLKE ......................................................................................... 134 PART III RIGHTS AND NORMS. POLITICAL AND PHILOSOPHICAL EXPLORATIONS CHAPTER 10 SOFT LAW, FUZZY LAW, NON-LAW : INTRICACIES OF THE NORMATIVE MARKET JEAN-PAUL CHIDIAC ................................................................................... 152 CHAPTER 11 THE NORMS DERIVED FROM SUSTAINABLE DEVELOPMENT MARJUKKA LAAKSO ................................................................................... 166  CHAPTER 12 NORMS OF GLOBAL DISTRIBUTIVE JUSTICE: KANTIAN PHILOSOPHY AND INSTITUTIONAL STRUCTURES JOHANNES KRAUSE ..................................................................................... 182 CHAPTER 13 INTERNATIONAL NORMS IN THEORIES OF INTERDEPENDENCE: TOWARDS STATE-LESS LAW? BARBARA DELCOURT ................................................................................. 197 CHAPTER 14 COMMUNITARIANISM: THE PRACTICE OF POSTMODERN LIBERALISM BOB BRECHER ............................................................................................... 212

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List of Contributors........................................................................................... 226

CHAPTER 1 INTRODUCTION: GLOBAL NORMS AS A CHALLENGE TO THE NATION-STATE KLAUS-GERD GIESEN AND KEES VAN DER PIJL Norms and Dominant Intellectual Production When Hans Morgenthau in 1934 published his work La réalité des normes, en particulier des normes du droit international (“The Reality of Norms, in Particular the Norms of International Law”), he simultaneously laid the foundations for the Realist theory of International Relations as it would emerge fifteen years later in the United States. The issue of international norms in this work thus was placed from the beginning at the centre of Morgenthau’s concern, revealing the rupture with the “Idealist” tradition in the field. Morgenthau argues that legal norms must be distinguished from other types of norms, notably moral ones, because they are not in any way dependent on the will of the individual.1 Their validity is ensured, instead, by the prospect of the application of sanctions. But as he notes in the further elaboration of his argument, the objective structure of the international community does not allow the sanctions attached to legal norms to be applied as a result of their very existence. The only way in which international law can be enforced, is by finding executors willing to uphold the norms and apply the sanctions and thus maintain the real order inscribed in the material norms of international law. Since only states can be the guarantors of such an order, The essential problem therefore resides in the nature and hence, the validity, of sanctions .... International law, deprived practically entirely of sanctions of its own, can find no other carriers of its normative reality than its own subjects.2

There is no possibility, in this perspective, for any valid norms that can impose themselves, as it were from the outside, on states. Indeed by emphasising the absence of sanctions capable of dealing with the breaking of international norms in the inter-war years, which condemned the League of Nations to impotence, Morgenthau dealt the death-blow to Idealist doctrines still riding high at that juncture. A year earlier, Morgenthau had published another work in French, entitled La notion du ‘politique’ et la théorie des différents internationaux (“The Concept of the Political and the Theory of International Disputes”). Relying

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Introduction

heavily on the work of Carl Schmitt, Morgenthau argues in that study that there simply cannot be common norms pursued by all or even a majority of states because they are in the end driven by a “will to power” that forcibly divide them into “friends and enemies”. “The specifically political distinction to which in the end all political acts and motivations lead, is that between friend and foe.”3 Certainly he characterises this Schmittian vision, propound-ed in the latter’s The Concept of the Political of 1932, and which Morgenthau quotes explicitly from that source, as a true “metaphysics of the elementary forces at work in international relations”. Hence, “all foreign policy is nothing but the will to maintain, increase, and assert one’s power”.4 This has the effect that whenever a certain level of pressure has been reached, the norms of international law will simply break apart. Thus elaborating the critique of the League of Nations formulated by Schmitt, Morgenthau traces the origin of the latent pressures at work in the tensions between states, to “a sphere beyond conceptual clarity”; a sphere that cannot be understood rationally.5 After World War Two, Morgenthau developed his theses in the United States, and in English. International norms, or rather their practical impossibility, continued to play a key role in them. Rejecting, with even more vehemence, the Idealist doctrines (responsible in his view for submerging international thinking in “half a century of ever more complete intoxication”)6, he characterises their universal principles as a plain absurdity which cannot be left to linger. In his celebrated Realist manifesto, Politics among Nations, Morgenthau repeats, often verbatim, his earlier theses on international norms, refining the original French formulas where necessary.7 Thus the Nietzschean concept of the “will to power” is transformed into the famous “struggle for power” as the ultimate (metaphysical) foundation of international anarchy. The rising tide of nationalisms and fascisms once and for all brought out the fragmentation of international society “into a multiplicity of morally selfsufficient national communities”, beyond which no common norm can durably persist.8 It is true of course that already in Morgenthau’s very first work, published in German and likewise dedicated to the norms of international relations, one finds not only the Schmittian references and general background of the Realist argument. He also refers there to certain “dark tensions” among states which can only be grasped intuitively, “instinctively”, rather than conceptualising them scientifically.9 These tensions stand in the way of any viable application of supranational norms. In other words, right from the publication of Die internationale Rechtspflege, ihr Wesen und ihre Grenzen, Morgenthau adopts the idea of the nation-state as the supreme and autonomous normative instance; henceforth, indeed for decades, he will wage his battle to defend and propagate this central concept in a range of writings.

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The above study, the only book Morgenthau wrote in German, was published in 1929, the year of the stock market crash that triggered the Great Depression. Now there is no doubt that one has to be careful not to make inferences too easily when the relationship between social and political development and scholarly work in the social sciences is concerned. Yet the hypothesis can be made that at this juncture, when the international political economy collapsed into an unprecedented, new phase, the Realist ideology gained new credence and cogency.10 Therefore we see the normative strand of Realist thought not primarily as the result of the Second World War and the cold war, but more profoundly as an attribute of changes in the international political economy associated with the Fordist accumulation regime. This took hold in the period from 1929 to the late 1960s, first in the United States, and extrapolated to Western Europe under the Marshall Plan.11 Already in the 1930s, Antonio Gramsci analysed Fordism as a new way of articulating mass production and consumption.12 However, it also entailed an intensified competition between large corporations of different nationalities and state-mediated wage compacts with workers, all framed in a rigorously interstate political system. States in this setting ensured the connection between the domestic accumulation regime (which in each case required specific class compromises and forms of stimulating productive capital) and the exchange relations with the outside world—utilising and exploiting the very differences in terms of the production conditions under their jurisdiction. Once the Fordist pattern became embedded in the Pax Americana of the cold war era, this role of the state was not suspended. Indeed the differences between state regulation in terms of applying the principles of Fordism, the compromises between social classes, support for national mass-production enterprises, national taxation of imports, and the degree to which states submitted to US leadership of the wider West, only enhanced the functional necessity of regulative autonomy for each state apparatus in its relations with others. Paradoxically, these national differences and the ways in which they worked out in terms of productivity and industry specialisation, ensured the coherence of the international Fordist system, anchored in the notion of the Keynesian state that was relatively strong and very much autonomous. A state autonomy of this kind, however, is ill-suited to serve as a relay of supranational or even international norms. On the contrary, it requires a doctrine that assigns absolute normative priority to the state. Morgenthau and other Realists in this light provided the ideological armoury for precisely that. As Joseph Starke has written, “reduced to its lowest terms, the doctrine of state primacy is a denial of international law as law, and an affirmation of international anarchy. International law becomes merely that portion of the law of the state which governs its relations vis-à-vis other states.”13 Indeed in the

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Introduction

more radical Realist view, the doctrine of the state as the supreme normative institution engenders the strand of discourse that goes back to the supposed international anarchy and to the “state of nature” in Hobbes’s formulation.14 Hence a world without common juridical norms, where power alone governs the relations between states, who are themselves not subject to ethical norms. In 1932, in his Moral Man and Immoral Society, Reinhold Niebuhr famously argued that “it is natural that national attitudes can hardly approximate the ethical”;15 whilst Edward Hallett Carr, in his equally renowned The Twenty Years’ Crisis of 1939 maintained that “there is no authority above the state capable of imposing moral behaviour on it.”16

After Fordism Now if the Realist theory of norms was an organic attribute and functional aspect of the Fordist accumulation regime, it certainly shared in its demise in the 1970s and 80s. We are looking here at a rupture inaugurating a systemic change in the international political economy: the cycles of trade negotiations in the context of GATT were progressively opening state borders; the end of the monetary system of Bretton Woods in 1973 and the complete liberalisation of the exchange rates between national currencies entailed a weakening of the individual national state relative to market forces; whilst the more and more prominent role of multinational firms definitively terminated the international autonomy and norm-generating capacity of the state. Initially, the ideological articulation of the changes underway crystallised in political science in theories of transnationalism and interdependence. Against the background of the quagmire of the Vietnam War, a growing number of political scientists and philosophers began to apply ethical norms to a moral evaluation of the acts of states.17 They started to codify the demise of the notion of the strong, truly sovereign state, and the necessity of adopting norms that were inter-national. Henceforth, it is the aspect of interstate cooperation that comes to prevail and this in itself modifies the process in which norms are created, spread and applied. From then on they definitely could originate outside the state, and also be applied to the state from outside. In this context, one of the first authors to theorise the multiplication of nonstate actors (from NGOs to multinational corporations) was Karl Kaiser. In 1969 he highlighted the permeability of national frontiers to all kinds of cross-border flows, creating dense webs of interaction between civil societies. According to Kaiser, this produces a “multinational politics” with two main characteristics: the possibility of a penetration of society from outside; and the growing interdependence between national political systems. Henceforth we may see

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truly inter-national norms which are bound to influence the internal of states, including their constitutional makeup.18 Robert Keohane and Joseph Nye and others developed this argument further.19 Thus Peter Katzenstein explained that “in the present era of [international interdependence], strategies of foreign economic policy depend on the interplay of domestic and international forces”.20 This lent credence to the role of international organisations in the generation and diffusion of international norms facilitating trade, communication and resource distribution. On the political level, such norms were initially proposed also by a coalition of Third World states clamouring for a New International Economic Order (NIEO). They were cast in a multilateral framework centring on the United Nations. The NIEO plan(s) sought to reduce economic precariousness of Third World countries which were facing rapid population growth without being willing or able to take full control of economic development in the sense of compulsory state planning and suspension of market forces. The NIEO movement crystallised at a juncture of severe disarray of the West’s global power and of détente with the Soviet bloc. When monetary disorder and dollar inflation was responded to the oil producers” cartel, OPEC, in the form of a substantial price hike, the Third World states obtained the clout to press their demands more forcefully and wrest concessions, or so it seemed. But the NIEO project of the Third World state classes did not itself break with state sovereignty, but merely extended it into an instrumental use of the quasiparliamentary majority system of the UN and its functional organisations.21 The material claims of the NIEO, by which the Third World state classes hoped to shore up their legitimacy at home whilst entrenching in their sovereign jurisdictions,22 had obvious normative implications. The argument made by the Third World NIEO coalition was that decolonisation had been unduly limited to a transfer of formal state independence, a constitution of political sovereignty which precisely by its liberal assumptions allowed the continued economic exploitation of domestic labour and resources by foreign capital. Against this state of affairs, the NIEO states raised the normative claim that each country is entitled to its own human and natural resources. In light of the colonial past and its consequences, the West was asked to respect this, and beyond that, to aid the countries it had formerly colonised to achieve real development. Hence the claim to state sovereignty was not formulated defensively, as noninterference, but offensively, as a set of rights which did involve interference, albeit on the conditions set by the claimants—as aid, technology transfer, and training. It was this particular interpretation of state sovereignty that was reflected in the central place accorded to the expanded United Nations system as main producer of international norms. The UN would provide the legitimate framework for a production of norms aiming the realisation of inter-state

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Introduction

cooperation for economic betterment.23 Whilst there is certainly no need to idealise the NIEO movement as democratic, or in any way morally superior to the forces resisting it, the normative mutation it represented remains meaningful.24 The response to the NIEO movement in Europe and among the personnel of multilateral organisations, was of a technocratic nature, but it also brought normative aspects to the broader NIEO concept. Each of these enlarged the Third World demands away from their state-centric economic foundations towards a more comprehensive inter-national approach. First and foremost, this approach posited the ethical imperative to adjust the mode of production and its consumption patterns to available global resources and preserve the biosphere as a life-sustaining condition. This position was pioneered by the 1971 MIT Report, The Limits of Growth (written for the Club of Rome).25 Secondly, it was considered inadmissible that the world’s population continued to live under the threat of nuclear annihilation. Hence the task of breaking out of the cold war stalemate, and the need to exit from the nuclear balance of terror (also in light of the threat of proliferation). But thirdly and crucially, this strand of NIEO thinking argued that the era of national sovereignty had passed. The world’s resources, the biosphere, and the imperative of averting nuclear catastrophe were issues of human survival that could not be left to single states and their parochial concerns. As a result, a convergence occurred between the aspirations of the NIEO and the dominant trend in political science on the need to articulate truly inter-national norms.

The Normative Structure of Neoliberal Globalisation In broad terms, the decade of the 1980s and the early 1990s, accelerated and deepened the liberalisation of trade and financial flows. Depriving states of considerable fiscal resources, capital movements were practically entirely liberalised across the West by the actions of the states themselves; this entailed, on a world scale, the triumphant ascent of speculative finance capital at the expense of productive capital and also, of the public sector. Finally, the number of multinational firms multiplied via a steep growth of foreign direct investment and the emergence of post-Fordist, “Toyotist” productive systems straddling borders. This created truly transnational “network firms” which put national spaces of social regulation in a relation of competition with each other. It put a severe strain and in many cases terminated Fordist compromises in capitallabour relations. Through new forms of enrichment such as junk bonds and leveraged buyouts, and backed up by middle class tax revolts against universal welfare provision, inflation, and trade union power, the new militancy of the property-

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owning classes in the English-speaking West translated itself into overt confrontation with the Soviet bloc and the Third World. Reagan and Thatcher effectively dropped the human rights theme for the Manichean idea of a global contest between the forces of freedom and the forces of evil, the latter residing in the Kremlin. Of course, this was not a matter of mere tactics, but reflected deeper trends across the globe and the need to adjust the mode of political control. As William Robinson writes, The emergence of “democracy promotion” as a new instrument and orientation in US foreign policy in the 1980s represented the beginnings of a shift—still underway—in the method through which the core regions of the capitalist world system exercise their domination over peripheral and semi-peripheral regions, from coercive to consensual mechanisms, in the context of emergent transnational configurations.26

The failure of the Gorbachev reform attempt in the URSS validated the selfconfidence of the supporters of a confrontation strategy, as testified by Fukuyama’s thesis on the “End of History”.27 The End of History theorem fundamentally recast the NIEO and Gorbachev versions of planetary consciousness and responsibility into a different version of globalisation. Arguing the historical necessity of possessive individualism, Fukuyama claims the world is a finished project, with the West being the norm for those not yet entirely up to the new standard. That norm is Lockean liberalism, prefigured already in the human rights and democracy promotion strategies.28 Fukuyama seeks to remove entirely the normative foundations of state sovereignty. Here indeed we encounter the “rogue state” for the first time in a comprehensive discourse: whilst there is an irreversible “global” stage of civilisation (liberal capitalism plus parliamentary democracy), states “mired in history” lack any legitimacy because on their own terms, there is no future for them. From attacking exploitation, unequal exchange, militarism, imperialism, and cultural degradation with their epicentre in the West (the perspective if not entirely of the NIEO, certainly of Gorbachev), the Fukuyama argument holds that with the end of the Cold War, the preparation for war to defend freedom against dictatorship can shift to policing the remaining pockets of nonintegration. This view warrants that while inside the post-historic world, the new norms that the modern world requires, such as peaceful settlement of conflict and other instances of civilisation (including “market economy”), have been achieved, these norms do not prevail outside this sphere. The hegemonic discourse thus was geared to a normative differentiation between the West and the world not conforming to its norms. The implication of this attitude that we represent civilisation (“the international community”) whereas the others lead an existence which is historically meaningless and

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Introduction

ultimately illegitimate, of course has a long pedigree. It effectively provides the moral grounds for imposing our will without reservations on the natives, whom we have first dehumanised, as Toynbee says, by considering them as part of the local “flora and fauna”.29 Indeed the Western approach, theorised by Fukuyama, and later hardened into Huntington’s “Clash of Civilisations” thesis, is not for global community but for Western community, with insiders and outsiders, and the right to go to war against the outsiders because they are outsiders is implicit in it. In contemporary Western liberal thought, this idea has been elaborated by various authors whose work serves as a central reference in contemporary debates on ethics, such as John Rawls.30 Obviously, the way international norms were henceforth conceived in the academic arena, developed along with these changes. Thus the theory of interdependence mutated into regime theory, in which international norms are understood in a less formal way. In hindsight this might be interpreted as the beginning of a normative deregulation in the sense of emptying the very concept of international norm. On the other hand, the idea of systemic (but still implicit) norms argued by the Neo-Realist theory developed in the same period, effectively reduces the normative sphere to the bare minimum. Finally, the ubiquitous literature on globalisation has effectively enshrined the idea of a complete subordination of the state to the transnational market forces. Regime theory from the start was focused on interdependence and cooperation in specific areas. “The regime literature ... considers norms to be one component of regimes” for each of these in particular.31 Indeed in the authoritative definition of Stephen Krasner, regimes are implicit or explicit principles, norms, rules, and decision-making procedures around which actors” expectations converge in a given area of international relations. Principles are beliefs of fact, causation and rectitude. Norms are standards of behaviour defined in terms of right and obligations. Rules specific prescriptions or proscriptions for actors. Decision-making procedures are prevailing practices for making and implementing collective choice.32

The relations between principles, norms, rules and decision making procedures have not been made explicit in the voluminous literature devoted to regimes. At best one may draw from it the conclusion that international norms as they emerge from inter-state, multilateral negotiations, can be explicit or implicit; in the words of Harald Müller, “a mixture of formal and informal arrangements,” juridical or non-juridical.33 Compared to the “hard norms” of interdependence theory, the concept of norm if obviously diluted. On the other hand, the theorem of hegemonic stability, originally developed by Kindleberger, stipulates that it is in the interest of all participants in a regime to have dominant norms provided if not actually imposed, by the hegemonic power.34 At the

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juncture of a new Cold War launched by the Reagan administration, this obviously provided an excellent justification of American foreign policy. The rival theory of the period, Neo-Realism, took a less benevolent view of interdependence and cooperation among states. As a structuralist theory it places the emphasis on the anarchic nature of state interaction which it describes with reference to micro-economics. “International-political systems, like economic markets,” Kenneth Waltz maintains, “are formed by the coaction of selfregarding units. [They] are individualist in origin, spontaneously generated, and unintended.” Hence, “international politics is structurally similar to market economy insofar as the self-help principle is allowed to operate in the latter.”35 Even so, the structures thus created bring forth a normative order, just as market forces, in the pursuit of self-interest, spontaneously generate a mercantile order. Indeed as Friedrich Kratochwil rightly notes, markets are probably the social institution which are most dependent upon normative framework. While markets are anarchical in the sense of lacking a central decision-making institution, it is unimaginable how they could function without the common acceptance of the convention of money, without contracting, which are governed by rules.36

This is not denied by Waltz: a normative socialisation takes places as societies “in spontaneous and informal ways … establish norms of behaviour… Socialisation brings members of a group into conformity with its norms.” Therefore, he writes, “the first way in which structures work their effects is through a process of socialisation that limits and moulds behaviour. The second way is through competition.”37 The systems analogy of market socialisation carries a powerful ideological message. In order to survive, an actor has no choice but to conform to the prevailing, structural norms and to the prescriptions of hegemonic actors. These norms, unlike those proposed by regime theory, remain informal and implicit. From there it is only a small step to simply conflate (as in so many globalisation theories), political and economic systems and claim that there is little else the state can do than to adopt to the new reality of globalisation; a reality usually presented, in a determinist fashion, as a force of nature which one has not choice but to accommodate.38

The Emergence of Global Norms In the last ten years, the systemic change in the international political economy described above has been consolidated. With the Marrakech agreements of 1994, which established the WTO, a truly global capitalism under a neoliberal accumulation regime has been unleashed. States now find themselves competing

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Introduction

to attract investments in a situation dominated by transnationally operating, speculative capital; a competition even more overtly pursued now that the cold war has come to an end. Neoliberalism compels the state to retreat in favour of a self-regulation of markets and society. Norms cannot be recast in their prior national-state frameworks; the concept of sovereignty itself has been eroded along with processes of globalisation of capitalist market discipline. This is not, we hold, because the “state” has been forced to recede in the face of overwhelming capitalist power. States are run by a political cadre class which on the whole takes the emerging global capitalist economy as its sole frame of reference, and the role of states has actually lost nothing in terms of upholding the conditions for capital accumulation on a world scale. If today, capital can take refuge in a vast off-shore sector to evade taxation and regulation, this owes much if not all to active state intervention and relatively conscious choices by state managers and politicians.39 The loss of sovereignty that confronts states today rather is a loss of legitimacy, because the same abrogation of the implicit social contract that underlay the decision to restore the freedom of capital to move in and outside the boundaries of states’ sovereign jurisdiction, also applies to the workers, education-age youth, pensioners, and those in ill-health or without jobs, within the national economy. The norm that being a citizen in the state entitles one to social protection, has been scuttled for all practical purposes. On the other hand, the idea that there have come into being global norms, has spread and is seen to project an alternative framework to the legitimacy enshrined in national sovereignty.40 This new global sweep of norms has been given a quantitative definition by Martha Finnemore and Kathryn Sikking, two leading constructivists who take as the lower limit of an effective global norm the adherence of at least a third of all states, or of a substantial number of directly affected states having ratified it or enacted it in their legislation. This is the required “critical mass” for a global norm.41 In the cases of the crusades against Milosevic and Saddam Hussein, the West appealed to global norms of justice and human rights. The power of this appeal resides in the sense that these norms are the truly universal ones, against which it is difficult to raise objections at first sight. The appeal the leaders of Yugoslavia and Iraq made to their “rights” was clearly of a different order. It rested on state sovereignty, which in the circumstances sounded awkwardly out of place, more as an excuse for maltreatment of one’s own citizens, than anything that can conceivably be argued to derive from a stock of normative principles that include the standard of individual liberty.42 But then, the West has equally strayed from the Enlightenment heritage in its actual policy. In the footsteps of Fukuyama, Huntington, and others leading the way, it has subjected the entire catalogue of rights and principles of justice to an aesthetic in which

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real problems are subsumed under a convenient scheme that pits unqualified civilisation against equally unqualified barbarity. This has meanwhile been exposed as profoundly fraudulent. Since the supposed threats (genocide in Yugoslavia, weapons of mass destruction in Iraq) were out of proportion with what really was the case, playing politics with what are genuine problems, may even have set back the chances of tackling ethnic cleansing or weapons proliferation; both of which remain highly topical issues with potentially grave consequences.43 The derivative nature of state sovereignty was also cast in a specific conception of world politics containing, specifically, the right by the “international community” to intervene in the sovereign jurisdictions of states somehow defined as not belonging to this community. Paradoxically, the UN, its functional organisations and the entire system of public international law as the principal potential producers of global norms, were downgraded by walkouts, non-payment, and non-observance by precisely the states claiming to represent the “international community”; whilst several normative codes, notably those in the ecological domain, are made largely ineffectual by these selfsame states.44 There is also a growing reliance for the settlement of international disputes on private law. The UN system was seriously restructured in that non-UN organisations replaced or eclipsed those UN bodies that had specifically articulated the NIEO drive. Thus, to name only the most conspicuous examples, the WTO eventually eclipsed UNCTAD in the trade area, and the UN Centre for Transnational Corporations was abolished, and transnational corporations through their main pressure group, the International Chamber of Commerce, instead was able to impose itself on the UN through the so-called “Global Compact”.45 Even under Clinton, the US Congress kept the administration under fire by demands to reduce the American contribution to the peacekeeping budget and the regular UN budget (aiming to bring these contributions to around $100 million a year, one-tenth of New York City’s firefighting budget). For an author like Philip Bobbitt, legitimacy of a state resides in its deference towards international capital. Malaysia on this count is a rogue state because it imposes currency controls; indeed even the EU is under suspicion to the extent that it may reconstitute a political sovereign sphere privileging “public over private purposes”.46 Bobbitt thus shares the assumptions of the Bush Jr. administration that the West led by the US should not just defend itself against challenges, but pre-emptively go after any potential adversary as well. The right for liberal states, Bobbitt’s “market states”, to “punish” the outlaw regimes by economic measures or by force for their non-observance of rights, is the common starting point for the project to remake the world after the US image. As Joseph Nye has accurately put it in connection with his concept of

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Introduction

“soft power”, “If [a state] can establish international norms consistent with its society, it is less likely to have to change.”47 These normative constructions, conceived to accompany and back up the 21st -century world projected by Western power, only illustrate the quest for a moral justification of our society as the ultimate achievement. The need for the aestheticisation of the relations of the wealthy West with the rest of the world (mired, if not in history, certainly in misery) as a life-and-death struggle with evil, forms the backdrop of the development of global norms in the current period. The dominant trend in the production of ideas unsurprisingly gravitates to a frame that is broadly consonant with this state of affairs. The concept of “global governance”, a notion derived, significantly, from that of corporate governance, as well as the notion of a “post-national” or “cosmopolitan democracy”, both evoke the transcendence of the state in its capacity of a producer of norms and meaning—as well as the flattening of the hierarchies between private and public actors. The “Third Way”, whether in the versions of Anthony Giddens, David Held, or Jürgen Habermas, charts the new course of thinking here, leading the way for philosophers and political scientists. The highly fashionable concept of global governance rests, in the words of the French Conseil d’analyse économique, on procedures of different status, ranging from simple consultation between governments to the adoption of common legislation, and including the formulation of a consensus on goals to be reached, mutual recognition, or the definition of good practice (soft law). It rests on intergovernmental cooperation or on action taken by specialised multilateral institutions endowed with appropriate instruments; in certain cases also on the normalising behaviour of private operators … It derives its legitimacy (or not) from delegation by states, from the ratification of treaties by parliaments, and from taking into account the expressed viewpoints of the different sectors of civil society.48

This definition reveals the semantic and ideological mechanism at work here: by increasing the number of the various types of international actors involved in setting international norms, these lose their formal and authoritative character to a considerable extent. It amounts to a radicalisation of the regime approach in the sense that governance goes well beyond simple intergovernmental cooperation (whether institutionalised or not) by bringing in private actors in the formulation and adoption of new norms. Thus transnational social movements and other non-governmental organisations, conveniently labelled “international civil society”, or private regulation agencies (rating agencies and technical standards bodies) are brought into the process of norm creation alongside independent authorities. There is concern whether this levelling of the playing field does not unduly elevate the standing of, say, lobby

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activity for private interests, with little in the way of legitimacy except for the claim they can handle things more efficiently than states, in the global hierarchy. Are they entitled to be treated as equals of states that derive their legitimacy from democratic elections, and with multilateral organisations mandated by such states? A second problem resides in the non-binding nature of norms which enlarge international public law, from the classical norm to tacit agreements between NGOs or self-regulation standards of private sector operators. Highly informal regulatory mechanisms thus become validated and acquire a status comparable to juridical norms carrying sanctions. The “quality” of norms thus is brought into question because private actors are no longer the subjects of normative intervention by public authorities but even so, take part in the formation of norms. Governance thus conveys the idea that governments and international organisations no longer enjoy the monopoly of legitimate authority, whilst international norms become implicit and informal. This only confirms to which degree the concept of state power has become fluid in the current circumstances.49 Those advocating the theory of “post-national” or “cosmopolitan” democracy, rely heavily on the concept of global governance, too. Jürgen Habermas puts it thus: “quite clearly, traditional power politics is not only normatively constrained by the rules of the [UN], but even more effectively curtailed by the use of “soft power”.”50 David Held, Anthony Giddens and Michael Zürn are even more explicit here. Zürn simply qualifies as a “transnational regime” those “norms and rules agreed upon and applied by nonstate transnational actors, without the involvements of governments (governance without government)”—e.g. the anti-doping rules of the International Olympic Committee.51

A Critical Take on Global Norms The contributions brought together in the present volume have in common that they seek to critically assess the phenomenon of global norm creation and its recent evolution, in ways that depart from the often convenient rationalisations of regime theory, the governance approach, or “post-national/cosmopolitan democracy”. Originally presented at a bi-lingual conference (French and English) held in September 2003 at the Institut d’Etudes Politiques in Aix-enProvence, France (with Christian Joly as coorganiser), all papers have been rewritten and edited for inclusion as chapters in the present collection. The contributors hail from a range of countries and academic cultures (cf. the biographical details at the end of the volume). It was felt by the organisers that widening the horizon beyond political science and include the reflections of

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Introduction

philosophers and international legal scholars was equally important as recruiting the participants from such a varied geographical background. Part I deals with the shift of norm creation from the national setting to the global arena. Roger Coate and Jacques Fomerand analyse in this respect the performance of the UN as a source of global norms, taking the Millennium Development Goals as the focus of their analysis. Ronen Palan discusses these norms in the context of how sovereignty is eroding. Gregory Raymond and Charles Kegley, Jr. more specifically investigate the implications of the concept of military preemption for global governance. This part of the collection closes with the chapter by Noé Cornago discussing the new role of subnational entities in the creation of global norms. The second part of the book deals with global economic norms. Elisabeth de Zuttter analyses the norms involved in the international negotiations on traderelated intellectual property; Noemi Gal-Or develops a legal scholar’s perspective on the phenomenon of international commercial arbitrage which represents a key vector of how private norms not only become part of the overall normative structure but also are adjudicated by private bodies. The same applies to what Jean-Christophe Graz calls the “entrepreneurial democracy” involved in the normalisation of technical standards. Finally, Andreas Nölke in his chapter argues that there is more common ground between topical experts and critical scholars on the issue of private norms than often assumed. The third and final part of the collection brings together reflections on the status of global norms in different disciplines and areas of application. Jean-Paul Chidiac discusses the concept of “soft law” ands it impact on juridical thought; Marjukka Laakso in her contribution investigates the difficulties of applying international environmental norms. In his chapter, Johannes Krause discusses the critiques of arguments on international distributive justice from the point of view of Kantian philosophy, whilst Barbara Delcourt analyses the tradition in international law that seeks to transcend, in the perspective of interdependence, the principles of state primacy in the constitution of global norms. In a concluding chapter, Bob Brecher, finally, makes the claim that the “Third Way” from which so much mainstream thinking on global norms has emerged, should not be accepted as the “communitarianism” which it claims to be, but traced to the neoliberalism from which it really stems.

___________________ 1. H.J. Morgenthau, La réalité des normes, en particulier des normes du droit international (Paris: Félix Alcan, 1934), p. 24. 2. Ibid., p. 243.

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_______________________________________________________________________ 3. H.J. Morgenthau, La notion du politique et la théorie des différents internationaux (Paris: Sirey, 1933), p. 45. 4. Ibid., p. 61. For a more detailed discussion of the links between Hans Morgenthau and Carl Schmitt, see K.-G. Giesen, L’éthique des relations internationales (Brussels: Bruylant, 1992), pp. 53-59. 5. Morgenthau, La notion du politique..., op. cit., pp. 77-78; cf. C. Schmitt, Die Kernfrage des Völkerbundes (Berlin: Dümmler, 1926); cf his Der Begriff des Politischen (München/Leipzig: Duncker & Humblot, 1932). 6. H..J. Morgenthau, “The Mainsprings of American Foreign Policy: The National Interest vs. Moral Abstractions”, American Political Science Review 46:4 (1950) p. 854. 7. E.g. H..J. Morgenthau, Politics among Nations (New York: Alfred Knopf, 1964) [3rd edition], pp. 228-229. 8. Ibid., p. 253. 9. H..J. Morgenthau, Die internationale Rechtspflege, ihr Wesen und ihre Grenzen (Leipzig: Universitätsverlag von Robert Noske, 1929), pp. 88, 137-138. 10. On ideology in IR see: K.-G. Giesen (ed.), Ideologien in der Weltpolitik (Wiesbaden: VS Verlag für Sozialwissenschaften, 2004). 11. K. van der Pijl, The Making of an Atlantic Ruling Class (London: Verso, 1984), chapters 4 to 6. 12. “Americanism and Fordism”, in A. Gramsci, Selections from the Prison Notebooks (New York: International Publishers, 1971). 13. J.G. Starke, “Monism and Dualism in the Theory of International Law”, in S.L. Paulson and B. Litschewski Paulson (eds.), Normativity and Norms. Critical Perspectives on Kelsenian Theories (Oxford: Clarendon Press, 1998), p. 547. 14. R. Aron, Paix et guerre entre les nations (Paris: Calmann-Lévy, 1962), p. 568; cf. H. Bull, “Hobbes and International Anarchy”, Social Research 48:4 (1981) pp. 717-738. 15. R. Niebuhr, Moral Man and Immoral Society (New York: Charles Scribner’s Sons, 1932), p. 88. 16. E.H. Carr, The Twenty Years’ Crisis (London: Macmillan, 1939), p. 204. 17. Ch. R. Beitz, “Bounded Morality: Justice and State in World Politics”, International Organization 33:3 (1979) 405-424. 18. K. Kaiser, “Transnationale Politik. Zu einer Theorie der multinationalen Politik”, Politische Vierteljahresschrift Sonderheft 1 (1969) pp. 108-109. 19. R. Keohane and J.S. Nye Jr. (eds.), Transnational Relations and World Politics (Cambridge, Mass.: Harvard University Press, 1972); Power and Interdependence (Boston: Little & Brown, 1977). 20. P.J. Katzenstein, “Introduction: Domestic and International Forces and Strategies of Foreign Economic Policy”, International Organization 37:1 (1977) p. 587. 21. R.W. Cox, “Ideologies and the New International Economic Order: Reflections on some Recent Literature”, International Organization 33:2 (1979); S. D. Krasner, Structural Conflict. The Third World Against Global Liberalism (Berkeley: University of California Press, 1985).

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_____________________________________________________ 22. See P. Braillard, Mythe et réalité du non-alignement (Paris: Presses Universitaires de France, 1987). 23. K. van der Pijl, Vordenker der Weltpolitik (Opladen: Leske+Budrich, 1996), pp. 329-332. 24. P. de Senarclens, “La transnationalisation des clercs. Essai sur les experts internationaux”, Revue européenne des sciences sociales, 28:87 (1990) pp. 231-249; cf. R.W. Cox, “Ideologies...”, op. cit. 25. One of the first critical studies on the technocratic project behind this was published by P. Braillard, L’imposture du Club de Rome (Paris: Presses Universitaires de France, 1982). 26. W. Robinson, Promoting Polyarchy (Cambridge: Cambridge University Press, 1996), pp. 6-7. 27. F. Fukuyama, “The End of History”, The National Interest 16 (1989) pp. 3-18; The End of History and the Last Man (Harmondsworth: Penguin, 1992). 28. On the Lockean constitution of the West, cf. K. van der Pijl, Transnational Classes and International Relations (London: Routledge, 1998), pp. 64-97. 29. A..J. Toynbee, A Study of History (Oxford: Oxford University Press, 1935), vol. 1 , pp. 211-212, 465. 30. J. Rawls, The Law of Peoples (Cambridge, Mass.: Harvard University Press, 1999). For a critical study on this: K.-G. Giesen, “Charité paternaliste et guerre juste: la justice internationale selon John Rawls”, Les Temps Modernes, 54:604 (1999) pp. 40-62. 31. A. Florini, “The Evolution of International Norms”, International Studies Quarterly 40:3 (1996), p. 364. 32. S. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables” in: S. Krasner (ed.), International Regimes (Ithaca: Cornell University Press, 1983), p. 2, emphasis added. 33. H. Müller, Die Chance der Kooperation. Regime in den internationalen Beziehungen (Darmstadt: Wissenschaftliche Buchgesellschaft, 1993), p. 40. 34. R.O. Keohane, “The Theory of Hegemonic Stability and Changes in International Economic Regimes 1967-1977”, in: O.R. Holsti, R.M. Siverson and A.L. George (eds.), Change in the International System (Boulder: Westview Press, 1980), pp. 131162. 35. K. Waltz, “Political Structures”, in: R. Keohane (ed.), Neorealism and Its Critics (New York: Columbia University Press, 1986), pp. 84-85. 36. F. Kratochwil, “Norms and Values: Rethinking the Domestic Analogy”, Ethics & International Affairs 1: 1 (1987), p. 137. 37. K. Waltz, “Reductionist and Systemic Theories”, in Keohane, Neorealism..., op. cit., p. 65, emphasis added. 38. See for example K. Ohmae, The Borderless World: Power and Strategy in the Interlinked Economy (Pensacola: Ballinger, 1990). 39. R. Palan, The Offshore World. Sovereign Markets, Virtual Places, and Nomad Millionaires (Ithaca: Cornell University Press, 2003). 40. B. Badie, Un monde sans souverainté (Paris: Fayard, 1999).

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_______________________________________________________________________ 41. M. Finnemore and K. Sikking, “International Norm Dynamics and Political Change”, International Organization 52:4 (1998) pp. 887-917. 42. On the background of NATO’ war against Yugoslavia see K. van der Pijl, Global Rivalries from the Cold War to Iraq (London, Pluto and New Delhi, Sage, 2006), chapter 8. 43. A. Chua, World on Fire. How Exporting Free-Market Democracy Breeds Ethnic Hatred and Global Instability (London: Heinemann, 2003); D. Jenkins, The Final Frontier. America, Science, and Terror (London: Verso, 2002). 44. See for instance M.-C. Smouts, Fôrets tropicales jungle internationale. Les revers d’une écopolitique mondiale (Paris: Presses de Sciences Po, 2001). 45. J.A. Paul, “Der Weg zum Global Compact: Zur Annäherung von UNO und multinationalen Unternehmen”, in: T. Brühl, T. Debiel, B. Hamm, H. Hummel and J. Mertens (eds.), Die Privatisierung der Weltpolitik: Entstaatlichung und Kommerzialisierung im Globalisierungsprozess (Bonn: Dietz, 2001), pp. 104-130. 46. P. Bobbit, The Shield of Achilles. War, Peace, and the Course of History (Harmondsworth, Penguin, 2002), p. 470; see also p. 639. 47. J. Nye, “Soft Power”, Foreign Policy 80 (1990), p. 8. 48. Conseil d’analyse économique, Gouvernance mondiale. Rapport de synthèse (Paris: La Documentation française, 2002), p. 3. 49. K.-G. Giesen, “Mondialisation économique et gouvernance mondiale”, in: F. Charillon (ed.), Les relations internationales (Paris: La Documentation française, 2006), pp. 17-19. 50. J. Habermas, Die postnationale Konstellation (Frankfurt: Suhrkamp, 1998), p. 109. For a critical study on his view: K.-G. Giesen, “The Post-National Constellation: Habermas and the ‘Second Modernity’”, Res Publica 10: 1 (2004) pp. 1-13. 51. M. Zürn, Regieren jenseits des Nationalstaates (Frankfurt: Suhrkamp, 1998), p. 172, emphasis deleted.

PART I NATIONAL SOVEREIGNTY AND THE NORMATIVE FRAMEWORK OF INTERNATIONAL RELATIONS

CHAPTER 2 THE UNITED NATIONS AND INTERNATIONAL NORMS: A SUNSET INSTITUTION? ROGER COATE AND JACQUES FOMERAND Although news coverage of the United Nations tends to focus largely on issues of war and conflict, it is development, not war, which dominates discourse and practice throughout the UN system. The debates have at times been bitter and development paradigms have come and gone—temporarily subsuming UN politics and then giving way again to some new challenging thesis. All the while, the gap separating the very rich and the extremely poor has been getting larger and larger. The dawn of the new millennium witnessed yet another new development synthesis around a more or less coherent and seemingly consensual framework of development goals, objectives, and sectoral policies. The focus is on eliminating poverty and promoting sustainable human development and human security. This new synthesis was embraced by UN member states in the United Nations Millennium Declaration adopted at the 2000 New York Millennium Summit. The Declaration enjoined the international community to eradicate extreme poverty, create enabling environments conducive to development, promote good governance, mobilize financial resources for development, address the special needs of LDCs and heavily indebted developing countries, promote gender equality and the empowerment of women, develop and implement strategies to increase employment opportunities, make essential drugs more widely available in developing countries, develop strong partnerships with civil society and ensure that the benefits of new technologies, especially information and communication technologies, are available to all.1 The Declaration also spells out specific goals and associated targets and indicators, the so-called Millennium Development Goals (MDGs). They all originate from the extensive series of global conferences and activities over the past decade and, taken as a whole, can be viewed as being mutually reinforcing, poverty reduction being their overarching objective. Six quantified and timebound objectives focus on the eradication of extreme poverty and hunger, the achievement of universal primary education, the promotion of gender equality, the reduction of child mortality, maternal health, and the spread of HIV-AIDS, malaria, and other diseases. The other goals contained in the Millennium

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Declaration focus on policy means. They call on governments and the international community to integrate the principles of sustainable development into country policies and programs and reverse the loss of environmental resources; to develop global partnerships based on an open, rule-based, predictable, nondiscriminatory trading and financial system; to make firm commitments to good governance, development, and poverty reduction—both nationally and internationally; to address the special needs of the least developed countries through tariff- and quota-free access for exports; and to develop national and international measures designed to deal comprehensively with the debt problem of developing countries in order to make debt sustainable in the long term and to provide more generous official development assistance (ODA) for countries committed to poverty reduction. Since the Millennium Summit, the MDG process has been accepted throughout the UN system, including the Bretton Woods institutions, as an overarching normative objective as well as a framework for assessing progress. A consensus thus appears to have emerged that new forms of cooperation and partnerships are needed among states, markets, the private sector, voluntary and civic organizations, local communities, and other ‘stakeholders.” How “real” is this development consensus? The question needs to be posed because, over time, the United Nations has legitimized and contributed to the formation of alternative and widely different development paradigms. In fact, the organization was based at its inception on a set of normative liberal assumptions that were subsequently challenged. This chapter explores the development discourse and practice in the UN in order to uncover the nature and evolution of these socially constructed development worlds. As shall be argued, three key factors underpin what we see as the fragile political consensus on which the MDGs vision was based: the distribution of political and economic power among UN members and, in particular, the ideological hegemony of the United States which shaped the UN system’s original underlying normative liberal ideological foundations; the evolution of multilateral processes and changes in global political economy; and the modest but significant role of the United Nations which is neither an impotent mirror of the world’s divisions nor a sheer effector of great power agreements in these processes.

Normative Underpinnings: The UN System as a Promoter of Liberalism The United Nations Organization (UNO) was but one of a “family” of intergovernmental agencies established during and following the Second World War. In the light of current public discourse about an “erosion of sovereignty,”

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it would be imprudent to ignore the sovereignty-penetrating liberal and functionalist foundations of the system of international institutions that was envisioned and created by the United Nations Alliance during and after the Second World War. In this regard, it is all too often overlooked that the UN Charter was the outgrowth of a process of reflection and planning undertaken as early as 1941 within the American government. In the light of the flawed settlement of World War I at Versailles and the failure of the United States to join the League of Nations, from the very outset, a key self-evident “lesson” of the past that guided American planners was that the long-standing isolationism of the United States had to give way to a robust and proactive leadership in the international arena. The cardinal principle of America’s new internationalism rested on the recognition that wartime great power cooperation should continue in the post war era, especially in the field of peace and security. The avoidance of future wars also involved the creation of a variety of institutional instruments for conflict prevention. U.S. membership in an international organization endowed with a wide array of powers to maintain international peace and security and a mandate to sustain its economic underpinnings was the linchpin of this overall scheme. The logic of the ideology was clear. Growth and prosperity at home in a liberal capitalist world order were directly linked to growth and prosperity in the larger global political economy. For obvious reasons, peace was a prerequisite for economic growth and prosperity. Democracy and the promotion of human rights were prerequisites for sustainable peace. In turn, creating and sustaining democracy in an undemocratic world order required social and economic stability and growth. UNESCO, the origins of which go back to 1941, for example, was assigned the responsibility of promoting democratization through mass education, mass media, scientific cooperation, and cultural preservation. Also important to stress here is the fact that the UN’s role in the economic and social areas was limited, with the main work in those fields being carried out by the specialized agencies and the Bretton Woods institutions in particular. “We are not thinking of a superstate with its own police forces and other paraphernalia of coercive power,” warned Roosevelt in mid 1944.2 Indeed, the Anglo-American scheme was not to endow a voluntary association of nationstates with discretionary roles and functions but merely to empower it as “a town meeting of the world where public opinion is focused as an effective force.”3 As a centre for the harmonization of national policies, the United Nations was thus meant to function merely as a catalyst and a facilitator or, in Roosevelt’s words, as an instrument “to assist the creation, through international cooperation, of conditions of stability and well being necessary for peaceful and friendly relations among nations.4 Furthermore, the contribution of the United

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Nations to the welfare of individual nations remained residual and was intended to complement the efforts of national governments.5 Even within the narrow confines of these parameters, the United Nations might be steered into discussion of controversial issues traditionally considered to fall within the framework of national jurisdiction. American planners thus built into the Charter an elaborate cordon sanitaire of institutional and constitutional devices all designed to prevent the Organization from getting into areas that might be construed as infringements on national sovereignty. Thus, even though the Economic and Social Council was made a “principal organ” of the United Nations (a token gesture to developing countries at the San Francisco conference), it was confined to the subordinate status of an “auxiliary executive agency” of the General Assembly. Possible transgressions by the General Assembly were in turn checked by a built-in system of nullification by member states. The norm of non-intervention was paramount in the Charter, and at San Francisco the United States succeeded in having inserted in the records of the conference a provision stating that none of the responsibilities assigned to the United Nations in economic and social affairs should be construed as giving authority to the United Nations to intervene in the domestic affairs of its members. Article 2.7 thus applied not only to political questions but also to economic issues. The Bretton Woods institutions that occupied centre stage in American thinking in international economic cooperation and had real decision making powers could intrude on national sovereignties. But the allocation of power to members in accordance with the size of their financial contributions and the sheer weight of the U.S. economy simply made it implausible for either the Bank or the Fund to embark on policies colliding with American views and interests. Whatever the relationship between social and economic well-being, human security, and peace, the multilateral system of international cooperation for development sprang from an overall liberal capitalist vision. The primary purpose of the United Nations would be to deter aggression. Economic questions would come under the purview of the specialized agencies and the Bretton Woods institutions with the United Nations cast in the peripheral role of standard setter and town meeting of the world. An international trade organization in the making would soon complement this edifice, which blended motivations guided by Realpolitik, Wilsonian populism, pragmatic functionalism, and the sheer commercial interests of an economic Behemoth.

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The Normative Challenge to Liberalism The evolving East-West conflict, the process of decolonization and the subsequent emergence of a bloc of impoverished Third World countries which had a development agenda of their own at odds with the optimistic view of laissez-faire economics, private markets and liberal trade stood as significant impediments to this liberal, democratic and economic international vision embodied in the United Nations system. Already in the war years there were signs of trouble in the liberal paradise envisaged by the United States. At the 1943 UN conference on food and agriculture, there were discussions—albeit inconclusive—about the need for “international arrangements” to eliminate excessive short term fluctuations in the prices of food and agricultural commodities.6 At Bretton Woods, there were loud grumblings that developing countries no longer wished to be considered merely as providers of raw materials and they did succeed in securing a more balanced treatment of development and reconstruction in Europe in the Articles of Agreements of the Bretton Woods institutions.7 Skirmishes on the same subjects also flared up at the 1944 Inter-American Conference on the Problems of War and Peace held in Mexico. At the San Francisco conference and in a language foreshadowing the rhetoric of the New International Economic Order some thirty years later, developing countries argued that peace was “indivisible” and forcefully called for the creation of “equitable foundations” in international economic relations.8 Lurking not far below the surface of polite diplomatic discourse stood an alternative and decidedly illiberal development concept that originated from Latin America (the majority of “backward peoples” remained conspicuously absent from the political scene until the 1960s) and then came to be embraced by most developing countries as they won their independence from their colonial masters. For this group of countries—soon to be known collectively as the South—development meant industrialization. If North and South could agree on the desirability of international cooperation measures in support of sectoral improvements in such areas as food production, nutrition, education, labour, transportation and health, they also remained locked in antinomic positions on key questions. First and foremost among them was the priority accorded by developing countries to the international structural problems that stood in their relations with industrial countries. The protection of their nascent industries was an overriding policy concern and for that reason they viewed with diffidence the American-inspired vision of a liberal multilateral international regime. As they were dependent on the sale of their primary commodities as their main source of foreign exchange, international markets could not be left to the vagaries of erratic price fluctuations but had to be tamed

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through regulatory agencies. Back home the state, not the market, had a critical role in planning the allocation of scarce resources for development plans. These “statist” views were soon given credence by the studies that the Economic Commission for Latin America began to churn out in the late 1940s—studies that documented the existence of a long-term process of deterioration in the region’s countries’ terms of trade and called for the creation of regulatory regimes in international trade and financial markets. Such studies guided many economists working in the UN Secretariat in the early 1950s. They were the progenitors of influential ideas about the structural factors and conditions of the development process that provided credible alternatives to the major tenets of neoclassical political economy espoused by the United States.9 Latin American doctrinal thinking thus progressively became the “conventional wisdom” of development economics for some twenty years and gave an aura of intellectual respectability to a wide range of demands by Third World countries in the United Nations. These demands included calls for a reconsideration of orthodox Western development views, a revamping of international institutions and relations to a broadening of the role of the United Nations in the determination of aid and trade policies, and denunciations of the exploitative designs of Western capitalist countries bent on perpetuating the dependence of developing countries on the North, not to mention demands for compensation of past wrongdoings. At the same time, the Cold War turned the relatively benign UN “town meetings of the world” into arenas of bitter confrontation where winning on the score card of world public opinion was the ultimate objective. In fact, one of the most disquieting consequences of the politicization of public parliamentary diplomacy at the United Nations was the subordination of practically all economic and social questions to the strategic imperatives of the Cold War. In the highly charged atmosphere of Cold War politics, the challenge was to identify a mix of policies that at one and the same time laid to rest the appeal of Communist sirens in the Third World, swept away lingering doubts about the West’s determination to promote better standards of living in developing countries, and raised no undue expectations about the role of the United Nations and the contribution of Western nations to their development. The difficulties of steering a policy course that would reconcile these by and large inconsistent objectives were painfully evidenced by the inglorious demise of the International Trade Organization. Originally a pristine statement of economic liberalism, the 1948 Havana Charter—the ITO constitutive charter—sought to accommodate the interests of developing countries to such an extent that it was variously portrayed either as a betrayal of liberalism for the excessive number of escape clauses and exceptions that it allowed or, conversely, as a threat to American sovereignty. Persisting scepticism in the American Congress and the

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The United Nations

misgivings of a divided but generally uneasy business community sealed its fate in the Senate.10 The so-called Point Four initiative which President Truman announced in his inaugural address before Congress in 1949 for the purpose of “making the benefits of our scientific advances and industrial progress available for the improvement and growth of underdeveloped areas,” initially seemed to be slated for a more promising future.11 But promoting economic growth required resources other than technical assistance. Finance capital and infrastructure development were other important pillars necessary for starting and sustaining economic growth. These early skirmishes over technical assistance financing prefaced the much larger battle to come over development financing, as the Expanded Programme of Technical Assistance (EPTA) did not put to rest the developing countries’ drive throughout the 1950s to create a Special United Nations Fund for Economic Development (SUNFED) designed to augment technical assistance activities with long-term low-interest loans aimed at building infrastructure. The move to create such a fund which would have come under the authority of the General Assembly, was opposed by major donors, especially the United States. To forestall a further move leading to the establishment of SUNFED, the United States reversed its earlier standoffish position and endorsed the establishment of an International Finance Corporation in 1954 as an affiliate of the World Bank with the mandate to foster economic growth by promoting private-sector investment through loans and equity investment without government guarantees. In keeping with liberal economic preferences for promoting growth through private investments while resisting pressures for the creation of a large-scale public capital grants fund and after discussions that by and large took place outside of the United Nations, the Board of Governors of the IBRD approved in 1959 the creation of an International Development Association, also as an affiliate of the World Bank, with the power to make soft loans to less developed countries. In 1958 the members of the General Assembly agreed to create a special fund to provide “preinvestment” capital to be used to stimulate private as well as public investment to complement technical assistance and facilitate economic development projects. Clearly, while losing some of their political clout, the United States and other donors were still able to dictate the terms under which the funding they supplied would be given and used. At the same time, however, the process of decolonization radically reshaped the political dynamics and agenda of the world organization. Although economic growth in the Third World advanced at a relatively rapid pace during the 1950s and early 1960s, frustration grew over the restrained response by multilateral institutions to development needs. The emerging tensions inherent in the gap between affluent and poor societies took shape as members of the world organization met in Geneva in 1964 at the

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United Nations Conference on Trade and Development (UNCTAD). At this conference representatives of developing countries now in control of the proceedings of the General Assembly formally joined to form a caucusing group, the Group of 77 (G-77), which would shape the global value dialectic for the next decade and a half. Rallying behind the ideas of Raúl Prebisch, the Group of 77 moved to institutionalize both the conference and itself by creating an international secretariat for both. At UNCTAD, the Group of 77 forced the conference, over the opposition of most major donor states, to adopt a set of demands for promoting national economic development that framed intergovernmental debate for the next two decades. The North-South split that was manifest in the voting over the twentyseven principles passed by the conference would serve as the starting point from which a concerted program of action would be developed by the G-77. These institutional foundations represented only the beginning of a more massive, ambitious, and ultimately unsuccessful attempt to change the shape of international economic relations. Over the following decade the Group of 77 launched a broad-based initiative to create the New International Economic Order (NIEO), which aimed to change the rules of the international economic game and channel greater benefits to developing countries. The NIEO demands were wide-ranging but can be classified into four broad themes: economic sovereignty, regulated international trade, more public aid, and more democratic modalities of participation by developing countries in multilateral governance.12 These issues were raised time and again in various ways and in various settings during the remainder of the decade. The North-South battle lines quickly became unambiguously drawn and a very different version of “cold war” appeared imminent. “Global ad hoc conferences” focusing on specific issues, such as population and food, and the more broad-based Conference on International Economic Cooperation, which met in December 1975 and June 1977, provided additional forums for expanding at the global level what some called “ dialogue” and others “invective.”13 Over the decades, “development” thus has taken on various meanings as the global political context has shifted. As we have seen, in the early years development was defined largely in terms of national economic growth as measured in aggregate and per capita income. Then it took on the additional meaning of national self-reliance of Third World states. Slowly the added, and somewhat different, value of satisfying the basic needs of people crept onto the scene, but in a much subordinated role. This definition slowly yielded ground to the incorporation of popular participation and local self-reliance in the satisfaction of basic needs. There were, however, clear signs that the pendulum was swinging back to earlier conceptions of development more congruent with liberal and

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functionalist views. As far as substance goes, the Reagan administration’s advocacy of economic free market and liberal democratic principles was hardly novel. What was new was the pugnacity of the tone and the determination to restore American control over United Nations processes and policies. The Administration’s decisions to suspend U.S. participation in the negotiations over the Law of the Sea, to withdraw from UNESCO and to stir Congress into applying financial pressures on the Organization with the avowed aim to “reform” it were unambiguous moves designed to “match power and responsibility” in the United Nations. Within a few years span, this objective was by and large achieved. Crushed by the weight of its debt crisis and locked into a debilitating “lost decade of development”, the Third World coalition collapsed as an organized political force at the UN. Its “politicization,” advocacy of “statist” theories of development, and excessive administrative and budgetary growth were curbed. In the late eighties, novel streaks of “pragmatism” in UN public debates were apparent. Disputes over “a” or “the” new international economic order faded away, yielding to emerging new concerns. The focus of attention decidedly shifted from regulatory or redistributive schemes to export promotion and the search for incentives and ways and means to create an atmosphere favourable to direct foreign investment. Less than fifteen years after its solemn proclamation, all signs pointed to preparations for a requiem in the memory of the NIEO. With U.S. prodding and fuelled by the demise of the Cold War, a new development paradigm, driven by debates over the so-called Washington Consensus, was beginning to take hold of the United Nations agenda.

Conference Diplomacy in the Post–Cold War Era: Toward a Normative Synthesis? Indeed, as the Cold War ended, the decade of the 1990s brought a new order— one that laid bare many of the previously suppressed challenges to the status quo world that characterized the preceding four decades and claims of absolute national sovereignty and autonomy. The decade of the 1990s was marked at the multilateral level with an intensive series of international conferences from which there emerged a more or less coherent programmatic framework of liberal development goals, objectives, and sectoral policy paradigms encapsulated in the United Nations Millennium Declaration. As inferred above, this consensual priority focus stands in marked contrast to the oftentimes heated North-South debates of previous decades. Building on the activities of the United Nations’ first three development decades (1960–1989), numerous important events over

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the last dozen years have transformed the global development debate and, indeed, UN discourse in general. Conference diplomacy in the 1990s assuredly helped to build a certain degree of mutual understanding and a common, or at least compatible, orientation toward North-South issues within the Group of 77. At the same time, it also tended to foster disenchantment in some major Western governments and led to a heightened degree of mutual mistrust and a deterioration of relations between the North and the South. From the mid-1980s onward, ecodevelopment, particularly as translated into sustainable development, provided a focal point for the development dialogue. Riding the tide of the sustainable development credo, this crest of the second major surge of global environmental diplomacy was marked by a series of events, negotiations, and other activities in connection with the 1992 United Nations Conference on Environment and Development (UNCED), which came to be known as the “Rio process.”14 The negotiations and debates surrounding the Rio process were not, of course, without tensions. Delegates from the Global South continued to be sceptical of northern pressures to impose ecological imperatives on the global development agenda. While environmental concerns, such as resource depletion, water contamination, deforestation and air pollution were seen in the South as serious threats to improving the overall quality of life, many other issues being pressed by the North, such as ozone depletion, hazardous waste pollution and global warming, were not. Many participants from developing countries viewed these conditions as being historical products of industrialization and as byproducts of Northern overconsumption. Dealing with these problems should not come at the expense of promoting and facilitating development. As in Stockholm, the argument was made that northern donor governments should make additional financial and technical resources available as the price for southern participation. After all, if these environmentally degrading conditions continued to intensify in the Global South, the security of all the peoples of the world would be adversely affected. At the heart of the debate was the issue of development finance. Many northern countries, led by the United States, wanted multilateral development financing channelled through the Bretton Woods institutions, especially the Global Environmental Facility (GEF). Doing so, however, would mean that the largest donor governments would, in effect, have a veto over all related decision making. Southern participants pressed for a more democratic governance arrangement. Some called for the creation of a new “green fund,” which would be based on more egalitarian governance principles. Northern donor states rejected this proposal, and a compromise was found that in effect enhanced southern participation in GEF by revising its rules to provide for decision

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making by consensus among equally represented groupings of donors and recipients, while, at the same time, retaining donor state ultimate control. The Rio process and the associated debates made sustainable human peoplecentred development at the core of the UN’s development framework. This focus on people-centred development was given enhanced visibility through the reports of a series of special high-level, independent global commissions comprising eminent persons, including the Independent Commission on International Development Issues (the Brandt Commission), the World Commission on the Environment and Development (the Brundtland Commission), the South Commission, the Commission on Sustainable Development, and the Commission on Global Governance. As Weiss et al. have suggested, The important point here is that there was a growing awareness that dealing with global issues required a perspective and responses that were simultaneously holistic, historical, interdisciplinary, and structural. It was not helpful and actually harmful to view the world as being divided into discrete spheres of reality. Narrowly conceived functionalist thinking and logic slowly gave ground to more dynamic and synthetic approaches.15

This new development focus became more and more formalized throughout the 1990s as member states underwent an almost continuous process of global conferencing on a multitude of interrelated issues.

The Window of Opportunity for Norm Setting by the United Nations Conferencing, however, was only one among many important evolving activities shaping the UN’s development agenda and framework.16 In May 1994, for example, Secretary-General Boutros Boutros-Ghali presented the General Assembly with his vision for development in his An Agenda for Development.17 He saw development as being inherently linked to peace, economic prosperity, democracy, social justice, and environmental sustainability. It should be considered, he argued, a fundamental human right. Development means more than economic growth; it means improving the quality of human life. The 1980s had witnessed the merging of environment and development into the concept of sustainable development. During the 1990s, the development debate evolved further to merge the concepts of sustainable development and human development into the concept of sustainable human development (SHD). At the centre of this amalgamation was the UNDP, which adopted ‘sustainable human development” as its primary mission.

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In its Human Development Report 1993, the UNDP specified a framework that served to frame much subsequent development discourse. The Human Development Report 1993 proposed five “new pillars” of development: new concepts of human security, new models of sustainable human development, new partnerships between states and markets, new patterns of national and global governance, and new forms of international cooperation. Then, in each subsequent annual edition of the Human Development Report, UNDP staff elaborated on various aspects of the development–human security relationship. In doing so, participation and empowerment emerged as two of the top priority themes. In this formulation, making development sustainable and eradicating poverty require the meaningful participation and empowerment of all relevant stakeholders, including especially women, youth, the poor and other marginalized elements of society. During the last half of the decade, it slowly became apparent that UNDP thinking was spreading throughout the UN system, including the Breton Woods institutions. The “Washington consensus”—that had suggested that the private sector and the market can do better anything that governments can do—began to fade. In its World Development Report 1997, the World Bank acknowledged that the state had an important role to perform in producing welfare-enhancing outcomes.18 The Bretton Woods institutions came to place more serious focus on promoting substantive democracy, human rights, the role of law and individual access to justice and basic freedoms. The World Bank and IMF’s “Heavily Indebted Poor Countries” (HIPC) initiative was a move in this direction. It required debtor countries to undertake sustained implementation of integrated poverty reduction and economic reform programs. Moreover, Bank and Fund have moved to integrate poverty reduction with macroeconomic policies in their lending practices. The concept of “good governance” has come to take on a less sinister connotation. The concept stresses improving the leadership and management of democracies and enhancing the role of civil society and the private sector in development. Since assuming office in 1997, Secretary-General Annan has focused on improving UN system wide coordination, including cooperation with the Bretton Woods institutions. To this end, a significant attempt has been made to revitalize the coordinating role of the Administrative Coordination Committee (now rechristened the Chief Executive Board) and make it more effective by focusing on the implementation of the MDGs. Since that time, working relations between the United Nations and the Bretton Woods institutions have improved dramatically, and a wide variety of collaborative partnership arrangements now exists among UN agencies and programs, specialized agencies, and the Bretton Woods institutions. These activities have served to reinforce the evolving consensus over the global development strategy. This has been reflected in both

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negotiations and outcomes from both the Ministerial Conference of the World Trade Organization held in Doha, Qatar, in September 2001 and the summitlevel UN-sponsored Conference on Financing for Development in Monterrey, Mexico, in March 2002. The “Monterrey Consensus,” emerging from the latter, for example, acknowledged the need to increase ODA significantly in order to meet the MDGs. Similarly, the 2002 World Summit on Sustainable Development (“Johannesburg Summit 2002”) was an attempt to reinvigorate the UN’s sustainable development activities. The summit, in part, reflected an attempt to democratize global governance processes. It incorporated a dialogue among major stakeholders from governments, civil society, and the private sector. Instead of concentrating primarily on the production of treaties and other outcome documents, the conferees focused heavily on the creation of new partnerships for bringing additional resources to bear to support and enhance implementation of sustainable development initiatives. Secretary-General Annan also has placed high priority on establishing working partnerships with civil society and the private sector. The SecretaryGeneral holds a firm conviction that development cannot occur through governmental or intergovernmental means alone, even with the support of nongovernmental development assistance organizations. Creating local, national, and international enabling environments is essential, and a broad-based partnership involving all relevant “stakeholders”, including most especially the private sector, is required. A centrepiece of this partnership-building strategy has been the “Global Compact” with business. It brings together UN agencies, private businesses, business associations, labour organizations and various elements of civil society to support ten principles in the areas of human rights, labour and the environment. Since its inception in 1999, the Global Compact has been growing steadily, and, as of February 2003 more than seven-hundred corporate partners had joined the agreement. One of the principles that underpins the Global Compact is that UN agencies in dealing with private sector partnerships should “undertake a deeper examination of issues related to corporate governance” in the context of developing countries” specific legal, social, and cultural environments in order “to develop and implement international accounting, reporting and auditing standards.”19 While encouraging information sharing about potential investment opportunities in LDCs, the UN development framework cautions that “international institutions involved in supporting FDI flows should evaluate the development impact of investment flows in recipient countries, including social development concerns.”20 The Global Compact reflects only one dimension of UN agencies partnership-building activities. In the context of the UN’s development mission, the partnership function has been wide-ranging and partnerships have taken on

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an endless array of forms. It is underpinned by the conviction that “people should guide both the state and the market, which need to work together in tandem, with people sufficiently empowered to exert a more effective influence over both.”21 Perhaps the most striking thing about the Global Compact and all this partnership-building activities is the fact that it is occurring at all in the context of a system of intergovernmental organizations. Clearly there was a window of opportunity open in the 1990s and early 2000s that served as an enabling environment for it all. But how can we account for this window of opportunity and should it be expected to last? What are the implications for the future of the United Nations as a norm setting institution for development?

Concluding Thoughts: Systemic and Political Determinants of UN Norm Setting What contextual factors account for this evolution in normative development thinking at the United Nations from the tenets of economic liberalism to the currently prevailing notion of sustainable human development as a bridging theme in the international development debate? The following may be identified: x

The Unequal Distribution of Economic and Political Power among the Members of the United Nations.

The hegemony of U.S. power has cast the United Nations into the role of legitimizer of a liberal economic development agenda. Frontal political assaults on the U.S. liberal agenda have failed and this normative paradigm still overshadows multilateral policy outcomes. The demands coming from the global South for the establishment of the NIEO stalled, and the viability of the Group of 77 as a cohesive mobilizing and caucusing force fizzled out. It has become clear that developing countries lack the power to compel developed countries to respond positively to their policy demands. As the members of the United Nations moved ahead—at least rhetorically—into the Third Development Decade in the 1980s, Northern donor states seemed fatigued by the entire process. With a new administration in Washington bent on reassessing all U.S. multilateral commitments and a likeminded conservative prime minister in charge in Britain, the stage was set for a general lull, followed by hostility, in the global development debate. A more pragmatic, less accusatory approach by Third World diplomats was clearly noticeable at the General Assembly Special Session on Africa in 1987.

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Attacking the West had gotten them little. Fast-breaking changes in world politics further undermined their calls for an NIEO. Economic conditions affecting the poorest countries had changed dramatically for the worse. The abstract issues of global equity and social and economic justice that had sustained the North-South acrimony during the NIEO years lost their immediacy. In the context of the early 1980s the full attention of many Third World countries had to be focused on their debts and the deteriorating social conditions that debt-inflicted austerity was causing. Others, particularly the governments and peoples of Africa, had to deal with the combined effects of civil war, economic collapse, and ecological disaster. Some states, especially in Asia, showed dramatic economic improvements. But many developing countries did not. x

The Systemic Structure of the International Political System: the Impact of the Cold War and Post-Cold War Eras

As pointed out astutely in the Report of the International Commission on Humanitarian Intervention and State Sovereignty, the forty-plus years of the Cold War fostered a bipolar system in which international intervention (for whatever ends) by the two superpowers was common place, although not frequent, and sovereignty of others open to violation.22 The Cold War also enabled the United States in its relations with others to perpetuate a dominating liberal ideological perspective that divided human social life into discrete spheres of reality. Thus politics was equated with government and economics with markets and so on and so forth, and states and markets were best kept at arms length, relegating the allocation of values and goods in a way that was in practice authoritative (that is “politics”) to a set of processes outside of state control. As long as the Cold War persisted, the inherent contradictions of the assumptions underlying this constitutive order remained suppressed. The end of the Cold War, the collapse of communist control in central Europe and the break-up of the former Soviet Union distracted attention in the North away from Third World development concerns. This was especially true in Washington, where the South had suddenly become strategically much less important, but this was true more generally throughout the West. Those calling for greater attention to Southern development were searching for a way to capture the attention of Northern donors as development assistance monies, in real terms and as a percentage of gross domestic product (GDP), decreased.23 Also associated with the collapse of the Soviet Union was a profound delegitimization of the state as authoritative actor in the economic realm. In addition, there has been a steady decline in the capacity of the state to help fulfil basic human needs, and the report called for the development of new patterns of

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national and international governance. “The nation-state now is too small for the big things, and too big for the small,” the 1993 UNDP report said. Sustainable development provided developing countries a potential means to recapture some of the lost focus and garner the support and power that they had lost with the demise of the Cold War. But the scope of feasible normative change remains incremental as it had been during the Cold War, the realities of power discussed above determining clear boundaries which cannot be crossed. In addition, in contrast to the Cold War era, the pendulum now has clearly swung closer to the original liberal agenda assigned to the United Nations as evidenced by the prevalence of good governance, partnerships with the private sector and civil society, democracy and human rights. At the same time and notwithstanding public parlance about better relations between the UN and the Bretton Woods institutions, calls for overhauling and “democratizing” the structure of the system have remained unheeded. Under these conditions, by virtue of their situation, developing countries still make their long standing demands for debt relief, development capital, technical assistance, access to markets, stabilized commodity prices, food aid, and the wherewithal to satisfy other basic human needs. A good deal of development activity has continued in the UN system. But much of this activity has been in the form of relief measures, emergency relief, or other stopgap moves designed to stem deterioration rather than to promote development. The eruption and continuation of civil wars in such places as Somalia meant that dwindling resources were devoted to stopgap military and humanitarian operations rather than to investment or aid to development. Pragmatism and fragmentation came to characterize the global South in the 1990s, and the ideas associated with sustainable human development seemed to fit well with these attitudes. In all of this, the United Nations came to be looked upon more as a conduit for immediate aid and less as a legitimizer of new principles of global order. The organization became, as one Third World representative expressed in an interview, “no longer a forum for defining together what is wrong, [because] the only thing people are interested in is how to get assistance in the midst of a deteriorating situation.” x

The Role of Conference Diplomacy

A key point to be highlighted is that conference diplomacy forces participants to accept issue linkages that provides for a new dynamics of the negotiating process with unanticipated results. Or results which, in any case entail compromises the ambiguity of which forces new rounds of negotiations. A case in point is the outcome of the Monterrey conference.

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Nevertheless, signals regarding real shared commitment coming out of the Monterey parley were mixed. In preparation for the conference, the U.S. President announced an increase in US ODA of $5 billion over the subsequent three years, and President Bush did attend the conference. However, discord reigned behind the scenes as the United States, EU, and other donor-state delegates found insufficient common ground for meaningful consensual action. Yet, at the same time, the event demonstrated a new—what Secretary-General Kofi Annan referred to as “extraordinary”—level of partnership between the UN and the Bretton Woods institutions. The two old foes were now committing themselves to a unique partnership whereby “development,” traditionally a UN preserve, was integrated with “financial instruments,” the traditional turf of the international financial institutions. The evolving series of global conferences during the 1990s helped to refocus and redirect the global development agenda. As discussed earlier, one of the most striking outcomes to emerge from these conferences was that the development debate took on a new character as the concepts of human development and sustainable development became fused in the concept “sustainable human development.” The role that sustainable development has played in traversing the turf and ideological divide that otherwise separates actors in the global arena provides a key for speculating about the future of the UN’s development work. In the Rio process and beyond, sustainability has served as an important bridge in institutional bargaining. The associated political process has been characterized more by bargaining among autonomous and self-interested participants striving for consensus and less as a regime-building process dominated by consensual knowledge communities. Operating under a veil of uncertainty about the likely effects of their alternative choices, these participants engage in transnational alliance formation and politics that link issues. Many participants may be associated with specific communities of knowledge, but the political process is a pluralistic one in which groups of participants perceive and act on differing conceptions of problems, values, interests, and stakes. Also, heightened concern in the North since the mid-1980s over the depletion of the ozone layer, climate change, and the loss of diversity of biological species helped to focus attention on environmental issues and to raise their status and visibility on national and global policy agendas. Growing scientific evidence seemed to support the observation and intuition among many citizens that environmental degradation and poverty are dynamically linked. Projections of likely future trends for undesirable global changes suggested that developing countries would need to be brought on board the environmental protection wagon in order to prevent future degradations of the global physical environment.

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The Persisting North-South Divide and the Role of the UN

The normative capacity of the UN to influence this process cannot be underestimated, especially the moral authority of the Secretary-General, as head of a universal world organization, to speak as the conscience of the world. Through its studies and reports, the UN placed on the agenda of the organization the issue of development and to a certain extent shaped its contours. That role was possible in the first place because of the wide chasm between rich and poor countries in the 1950s. As long as the North-South divide persist, the UN can be expected to remind the international community of its “commitments” to the values of fair play. The series of UNDP Human Development Reports issues throughout the 1990s painted a very bleak picture of global development. Although about a dozen-and-a-half countries in the global South have demonstrated remarkable economic growth since 1980, for most residents of the developing world, poverty is increasing, and the gap between the rich and poor is growing. Despite the rhetoric about popular participation, the vast majority of the world’s people continue to be excluded from active involvement in economic and political decisions that affect them. The reports suggest that in much of the South, economic expansion has, in fact, been “jobless growth.” Employment has lagged behind increases in economic output. Growth has not been translated into empowerment, which lies at the foundation of sustainable development ideas. Moreover, most of the developing world experienced only limited success in sustaining growth at levels needed for poverty reduction. For many countries conditions got even worse with the wave of privatization in the early 1990s and following the global financial and economic crises of late 1997 and 1998. Of the 4.4 billion people in developing countries, nearly three-fifths lack basic sanitation. Almost a third have no access to clean water. A quarter do not have adequate housing. A fifth have no access to modern health services. A fifth of children do not attend school to grade 5. About a fifth do not have enough dietary energy and protein. Micronutrient deficiencies are even more widespread. Worldwide, 2 billion people are anaemic, including 55 million in industrial countries. In developing countries only a privileged minority has motorized transport, telecommunications and modern energy… In 70 countries with nearly a billion people consumption today is lower than it was 25 years ago.24

These figures underline the magnitude of the development challenge confronting the developing world’s, most particularly the Least Developed Countries, most African countries and others strapped with large external debt

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servicing problems. In addition, net concessional assistance to developing countries has fallen by a third during the last decade, and Japan, the United States, and Germany have all significantly cut aid as a percentage of GDP.25 Private investment flows continue to be erratic and very unevenly distributed. Against this background, it is not surprising that the World Bank’s World Development Indicators 2002 report indicates that progress thus far toward achieving the Millennium Development Goals has been mixed but overall disappointing. Secretary-General Kofi Annan, has repeatedly warned that poverty is a major threat to global security. But, it is not clear that the world organization’s largest and most affluent member state, the United States, is really on board. The so-called “G-1” more often than not seems to prefer unilateralism to multilateralism and, in doing so, projects an arrogance that oftentimes disgusts even its closest partners. It seems unlikely the current U.S. administration will change its posture substantially enough to make a real difference. Without the United States, others will need to make up the difference, and it is not at all clear who those “others” will be. Furthermore, in the context of the globalization versus anti-globalization debates, numerous actors and forces in the civil society realm vehemently oppose what is sometimes referred to as the “partial privatization /commercialization of the UN system.”26 For the consensus to hold, results must be forthcoming, especially as related to significant movement toward achieving the Millennium Development Goals. Targets are set. Indicators have been specified. Results now need to be forthcoming. The specificity of the MDG process has played a major role in securing general wide-spread consensus. In the future, however, it may well be that same specificity that provides the greatest challenge to moving the UN’s development agenda forward. 1. UN Document A/AC.257/12, December 18, 2000. 2. Cited in T. Hoopes and D. Brinkley, FDR and the Creation of the UN (New Haven: Yale University Press, 1997), p. 128. On the same point, see G. Schild, Bretton Woods and Dumbarton Oaks. American Economic and Political Post War Planning in the Summer of 1944. (New York: St. Martin’s Press, 1995), p. 57. 3. J. F. Dulles, ‘The General Assembly’, Foreign Affairs (October 1945), p. 165. 4. Cited in C. Hull, The Memoirs of Cordell Hull, 2 vols. (New York: The MacMillan Company, 1948), pp. 1646-47. 5. Cited in C. Archer, International Organizations, (3rd edition), (Routledge, London and New York, 2001), p. 5. 6. United Nations Conference on Food and Agriculture. Hot Springs, May 18 – June 3, 1943. Final Act and Section Reports, (Washington DC: US Government Printing office, 1943), p. 3. 7. Proceedings and Documents of the United Nations Monetary and Financial Conference. Bretton Woods, New Hampshire, July 1-22 1944, volume two, Department of State Publication 2866, International Organization and Conference

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9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26.

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Series I, 3 (Washington D.C.: US Government Printing Office, 1948), pp. 429-432, 484, 1167-1168, 1175-1177, and 1205-1206. On these points, see Inter-American Conference on problems of War and Peace, Mexico City, February 21-March 8, 1945. Report Submitted to the Governing Board of the Pan-American Union by the Director General, Congress and Conference series, No. 47 (Washington D.C.: Pan American Union, 1945). For an early useful overview, see S. Dell, ‘Contributions of the United Nations to Economic Thinking and Action,’ Journal of Development Planning, 17 (1987), pp. 113-123. For a more recent treatment which still draws on Dell’s insights, see L. Emmerij, R. Jolly and T. G. Weiss, Ahead of the Curve? UN Ideas and Global Challenges (Bloomington: Indiana University Press, 2001). For a useful overview, see R. N. Gardner, Sterling-Dollar Diplomacy: The Origins and Prospects of Our International Economic Order, revised edition (New York: McGraw-Hill, 1969). On the origins of EPTA, see A. Baker Fox, ‘President Truman’s Fourth Point and the United Nations’, International Conciliation, CDLII (February 1949), pp. 465-85. See R. S. Jordan, ‘Why an NIEO? The View from the Third World,’ in H. K. Jacobson and D. Aidjanski (eds.), The Emerging International Economic Order: Dynamic Processes, Constraints and Opportunities (Beverly Hills, CA: Sage, 1982). See T. G. Weiss and R. S. Jordan, The World Food Conference and Global Problem Solving (New York: Praeger, 1976). For useful analysis of the Rio process, see P. S. Chasek, Earth Negotiations. Analyzing Thirty years of Environmental Diplomacy (Tokyo: United Nations University, 2001). T. G. Weiss et al., The United Nations and Changing World Politics, fourth edition (Boulder: Westview Press, 2004), p. 272. This section of the chapter draws heavily on Ibid., pp. 274-278. B. Boutros-Ghali, An Agenda for Development 1995 (New York: UN, 1995). World Bank, World Development Report 1997: The State in a Changing World (New York: Oxford University Press, 1997). U.N. Doc. A/AC.257/12. Ibid. UNDP, Human Development Report 1993. International Commission on Intervention and State Sovereignty, The Responsibility to Protect: Research, Bibliography, Background (Ottawa: International Development Research Centre, 2002). O. Young, ‘The Politics of International Regime Formation: Managing Natural Resources and the Environment,’ International Organization 43:3 (Summer 1989), pp. 349–375. See T. German and J. Randel (eds.), The Reality of Aid 1999–2000 (London: Earthscan, 1999). United Nations, World Economic Situation and Prospects for 1999, (New York, 1999). CorpWatch Press Release, 22 March 2001.

CHAPTER 3 NORMS, SOVEREIGNTY AND THE AMERICAN EMPIRE RONEN PALAN The status and political significance of international institutions and norms in shaping international affairs has been a source of a long-standing debate in the discipline of International Relations. The dominant tradition of International Relations, so-called Realism, holds that military and economic power are determinant forces in international affairs. Conversely, norms (and institutions) play only a secondary role in shaping state policy. Realists accept, of course, that international conventions and norms of conduct help ease some of the tensions associated with an anarchical system of sovereign states. But, so the argument goes, these behavioural conventions cannot significantly modify the Realpolitik of sovereign nation-states jealous of their interests. And yet, despite the apparently unassailable rationale of the Realist argument, international norms are important inasmuch as even the most powerful states routinely appeal to some conventions and standards of international behaviour and justice to account for their actions. It is noticeable, for instance, that the US and the UK went to war in Iraq on the flimsiest of excuses. Most probably, the war was planned and eventually executed by these two governments without paying much attention to international norms and conventions. Nevertheless, there must have been a reason why the two felt compelled to go embark on the rather tortuous, futile and often humiliating journey in the United Nations system and other international bodies in order to appear legitimate in the eyes of an amorphous body they called, “the international community”. As theories of performative discourse demonstrate,1 performance, ritual and habitual appeal to international standards of behaviour cannot be dismissed as mere rhetoric; they modify the behaviour of “actors” and may hence be considered a factor shaping the character of international relationship. Not surprisingly, therefore, International Relations scholars are increasing paying attention to the subject of international norms. Serious consideration was given to the matter of international norms by Regime theorists, followed more

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recently by a myriad of “Constructivist” accounts that maintain that institutions and norms are the deep structures of international affairs. But despite considerable work on the subject of international norms, I argue that they are still treated rather narrowly and schematically within a theoretical framework that presents international norms as an inhibiting factor in international affairs. International norms are conceived in terms of the boundaries they establish between what is considered to be legitimate and illegitimate behaviour which states (i.e. governments) normally feel reluctant to transgress. Certain types of behaviour, whether in the political or economic spheres, are deemed to conform to international norms and standards of behaviour. It is assumed that governments would, on the whole, tend to conform to these standards, however, vaguely defined, out of inertia unless they affect their core security interests. This “mainstream” view of the normalising impacts of norms and institutions has been challenged, however, by Evolutionary Institutionalists such as John Commons and Thorstein Veblen,2 as well as—and that is perhaps less well understood—by Institutional thinkers inspired rather by Jacques Lacan, such as Gilles Deleuze and Félix Guattari, Jean-François Lyotard, and the like.3 Both traditions of thought regard norms (and institutions) less as factors delineating spaces of acceptable behaviour, and more as boundaries that structure areas of possibilities. Any type of rules and norms, whether explicit or implicit, serves simultaneously to restrict and prescribe behaviour, as conventional Institutionalists argue. In addition, however, they serve as pointers for transgression, change and evolution. Institutions and norms account, in other words, not only for what is allowed or not, but also, crucially, they stimulate, through prohibition, patterns of transgression and change, thus creating new possibilities and new worlds. Change takes place, therefore, not only within the boundaries of institutional path-dependency, but also by re-imagining these very boundaries, moulding and transgressing them. At first sight these ideas may appear far removed from the daily concerns of students of International Relations and International Political Economy. Yet, they inform my interpretation of some recent important developments in concepts of sovereignty, hegemony and power in the context of what I see as the relative decline of US hegemony. The complex interplay of globalisation and sovereignty produces, I argue, a certain array of structured possibilities, as much as it has generated new potentialities for action that are shaping the policies of the US empire.

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Actors, Interests and Power Every discipline of the social sciences contains at its very core contested theories of order and change in society. The theoretical scheme of order and change that has dominated IR scholarship since its inception centres on what may be described as a rationalist, or interest/power network theory. Once actors in international affairs are identified (be they states, social classes or “domestic” interest groups—the nature of the “actors” is an important source of dispute in IR), these actors are assumed to pursue rational interests.4 As actors’ interests may conflict, scholars deduce from this that power must be the principal mediated factor determining outcome in international affairs.5 If this is indeed the case, if power is the mediating factor in international affairs, International Relations scholarship had to contend with a specific puzzle: Why do powerful states tend, on the whole, to abide by international norms and conventions also when these norms restrict their room for manoeuvre? In answering this puzzle, International Relations theorists have come up, implicitly, with two sets of explanations, the first of which may be described as a variant of “transaction cost” theory. The theory, advanced primarily by international lawyers, maintains that institutions facilitate international transactions. By rendering much of international affairs habitual, they reduce the “transaction costs” involved in the day to day conduct of international affairs. The spectacular and headline-grabbing aspects of international affairs, according to this view, are the exception to the rule. There is an enormous amount of daily cross-border transactions world-wide, be they of an economic, diplomatic or social nature. It is advantageous to all, including the populations and governments of the most powerful states, to follow certain accepted rules and avoid being bogged down in trying to “reinvent the wheel” by developing new rules and norms for each and every transaction. Such a rationale provides a strong incentive for compliance even when international norms and conventions from time to time will appear to be limiting the freedom of action of powerful states. The limitations on power imposed by institutions and norms, in other words, are really self-imposed: states (or rather, statesmen) are perfectly aware of the advantages of institutions, norms and conventions, and follow those as long as they believe they have more to gain by following than lose. This theory may go some way in explaining the longevity of fictional governing concepts in international affair such as the concept of sovereignty. However unrealistic the principle of sovereign equality may be in a world consisting of states of such incredible variety of size, prosperity and power, the

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concept of sovereignty and sovereign equality has proved its worth by establishing and simple apparently straightforward norms of behaviour that are understood by all. The principle of sovereignty is a core institutional principle framing interaction among sovereign governments who have sole responsibility within their territories and possess the exclusive right to write the laws within these domains. Within this framework, transborder transactions, economic, cultural or technical nature (such as commercial aircrafts flying over different territories) are subject to the laws of the territories in which they traverse. In that way, there appears to be a clear set of principles and rules that facilitate orderly and habitual, routinised forms of international transactions. Since the entire web of international relationships that we call the “world market” or the “world economy” takes advantage of these principle,6 even the most powerful states are reluctant to transgress the norms of behaviour associated with sovereignty. The other theory of institutions and norms may be described as Poulantzasian. In this I follow Nicos Poulantzas, who famously argued that social classes seek to normalise their political gains into the institutional fabric of state and society.7 In time, social institutions, including the state, evolve into mildly sclerotic structures as a result of the piling up of layers upon layers of past social struggles and compromises. Hence they appear at any given moment as an alienated force, separated from “civil society”. This alienated governing structure, the “state” (in capital letters) appears to be restraining and prescribing behaviour—restraining even those that are considered to be the “ruling classes”. But in reality, Poulantzas argues, these institutions have no independence of power; nor are they an alienated social force independent of society. They merely represent sedimented historical power structures, which through careful historical analysis can be “peeled off” layer by layer to reveal the sheer violence that ensures the dominance of one class by another. The institutions of the modern capitalist state, including sovereignty, therefore, may appear independent of the capitalist class but an historical analysis will easily reveal that they represent such a sedimented structure, through which the power of this class is maintained. It is not surprising, therefore, that the ruling classes are very reluctant to transgress the very institutions that maintain their power, however frustrating the existing institutions and the barriers they impose, may be. Compliance with the institutions and norms of international affairs is driven again by self-interest and rational calculations. These two perspectives, and a combination of the two, have dominated theories of International Relations for a long time. There is, however, a third perspective that is rapidly gaining ground in sociology and anthropology but which has as yet made little impact in political science and International Relations. This perspective can be detected in the work of institutionalists such as Veblen and Commons, and more overtly in Deleuze and Guattari’s theory of

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desire. In their critique of psychiatry and what they consider, its idealistic leanings, Deleuze and Guattari point to a certain structure of desire which is indicative of the way they, as well as others (such as Michel Foucault), interpret the normalising forces in society. The mistake of Freud and Lacan, argue Deleuze and Guattari, lies in the assumption that desire stems from some primordial “real” lack, or “human need”, which is inscribed in the biology and psychology of the subject.8 Such a theory is idealist in the sense that it suggests that human beings are motivated by some quest for transcendence. Freud and Lacan may be thought of, therefore, as sharing a Kantian perspective that is founded on the presumption of some pre-theoretical categories that emerged as part of the evolutionary development of humanity. These primary psychobiological functions are believed to have evolved in order to ensure the fulfilment of the basic necessities of life: food, security, shelter. This underlying Kantian assumption drives Freud and Lacan, argue Deleuze and Guattari, towards idealism and the functionalist fallacy. The factual lack, or real human “need”, according to conventional psychoanalysis generates a biology and psychology of fulfilment, in which the human psyche produces certain complex individual and socially generated structures of desire. Desire, in turn, is the motivating force that gives energy (identified by Freud as the libidinal instinct) to ensure they are able to fulfil their needs. However, the complexity of delayed reaction (it takes time, for instance, between sowing of food and eating) necessitates a complex psychological makeup and intermediating institutions, which through evolutionary time, and mediated through human institutions, lose touch with the original biological functions of the desire. For example, pack animals such as dogs evolve genetically to work together as a pack for the hunt. These traits have generated a biology and psychology of the dog. Today’s pets are no longer hunters, but they still need the daily “walk” with their master, in which they simulate a hunting pack, fulfilling an independent psychological need for working as a pack. The “hunt” then is simulated in the psychology of the dog and although the dog need not go hunting anymore, a simulated desire is still there. This functionalist theory is at the heart of modern theory of the subject: it argues that the human psychology is a perverted, or socially mediated structure of fulfilment of basic needs and the complex development of the psyche. Freud was, of course, aware that humans often adopt counterproductive strategies of survival that do not match with any notion of needs. Why, asks R. D. Laing (1970), have the “sane” people of the world felt compelled to kill a hundred million of their fellow “sane” people during the twentieth century?9 Freud of course introduced a complementary basic instinct, the death instinct, to explain that puzzle. But that is not an explanation, argue Deleuze and Guattari. For them the structure of desire of human psyche operates at two levels. A socially

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constructed prohibition serves, simultaneously, to prohibit, but also to generate a desire (now experiences as “lack”) to transgress prohibition. By analogy, we can employ the same idea for the role of institutions and norms in human society. They serve simultaneously as limits, boundaries and restraints, but also generate a psychology of transgression as the very thing that is not allowed, now becomes an object of desire. We can apply these three theories to sovereignty and power in international affairs. Sovereignty is generally seen as a juridical concept that combines, under one heading, an expression of the unity of the legal system, a definition of the source and origins of law within the territory, as well as a de facto supreme authority in a community. States nowadays claim an absolute sovereignty over their territory, by which we mean, they claim supreme authority in law-making within the territorial boundaries of the state. But since all states claim an absolute sovereignty within their territories, it follows that a system of states is founded on the twin principles of sovereignty and sovereign equality, namely, each state accepts the other’s authority and sovereignty over its territory. They all consider themselves as sovereign equal, whatever size or shape they may be. This is the theory. The reality, of course, is that these ideals of sovereign equality are constantly being transgressed. In fact, claims to sovereign absolutism are subject to three layers of compromises, and each successive layer ensures that sovereignty is limited and circumscribed. Each of these layers also has evolved as a form of transgression of the previous one. Indeed in line with my argument above, the accepted definition of sovereignty or popular sovereignty not only limited and circumscribed states” policies. It also has served as a pointer towards transgressions of sovereign absolutism. In other words, it is impossible to understand the reasons and function of the three layers of compromises that have evolved in connection with sovereignty, without understanding first the ideals of sovereignty, as well as the evolution of transgression. For analytical purposes, let us separate them into three principles.

First Principle of Sovereign Compromise: Power The simple and most widely acknowledged source of limitation on sovereign power is power itself. Whatever the theory of sovereignty and sovereign equality might be, philosophers, lawyers, historians and political scientists have recognised throughout the centuries that the power of states plays a crucial role in determining their de facto degree of sovereign absolutism. The limitation that power can place on sovereignty and sovereign equality is a built-in consequence of the concept of sovereignty: since sovereignty is a claim to a supreme authority within a given territorial domain, the claim can be compromised by external power. That is why it is generally understood that small states are

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sovereign only in intent, or possess a lesser degree of autonomy in decision making than their more powerful brethren. Equality among nations is something that may be desirable, but it is impractical. In reality, sovereignty in the way that it is understood in international law or the sociology of the state, is something that only the larger states enjoy.

Second Principle: Multilateralism The debate about sovereignty becomes far more interesting once it is recognised that the first, so-called Realist theory simplifies things to the extreme. In fact, powerful states have never enjoyed the degree of sovereign independence the theory assumes, nor were the smaller states, including the smallest of them all, the “micro-states”, entirely devoid of sovereign independence. In fact, there are considerations that render the question of sovereignty far more complex. These other considerations are primarily related to with the dual role of sovereignty—something that the experts on sovereignty tend to ignore. As a juridical concept, sovereignty expresses, in the words of Poulantzas, “the exclusive, unique institutionalised and strictly public dominance over a territorial national ensemble and the effective exercise of central power without the extra-political restrictions of juridical, ecclestial or moral order which characterise the feudal state”.10 This concept of sovereignty, as Poulantzas notes, is constitutive of the modern concept of the individual in society as a bearer of rights and duties. The “individual” of modern society is a politicojuridical concept that can be applied to either “real” persons or corporate entities. In fact, the “real” person has no existence as such in law.11 The state, through the principle of sovereignty, ensures the rights and duties of these individuals and corporate entities. In that sense, the concept of the juridical individual is linked to the concept of sovereignty. Conversely, capitalist market relationships, which are contractual relationships, are conducted among these juridical persons. Hence the concept of sovereignty not only defines and underpins the nature of the entities that enter commerce, but also guarantees the contractual relationship between them. The concept of sovereignty, therefore, serves as an anchoring concept not only for the state as an institution of power, but also the entire capitalist market economy.12 This is significant on two counts. First, the nearly universal commitment to the principles of sovereignty and sovereign equality is rooted not simply in the commitment to some abstract liberal ideals or to the ideology of the nation-state. Sovereign equality is a necessary fiction that provides the legal foundations of the modern world economy. We can anticipate, therefore, that despite of the theories of the erosion of sovereignty and the coming of the global state, there will be great reluctance to give up these “ideals”—after all the entire web of

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contractual relationships that we call the capitalist economy, relies on the principle of sovereignty and sovereign equality. Furthermore, power in its brute form cannot undermine this aspect of sovereignty. Sovereignty as the sole right to write the law can be transgressed, as will see below, in different ways by the “powerless” states. Secondly, considering that the reasons for universal adherence to the principles of sovereign equality are not ideological, the fast and accelerating pace of internationalisation of capital, particularly since the late 19th century, has created very specific problems concerning the conflict between the fiction of sovereignty and sovereign equality and mobile capital. Indeed, just as globalisation is not a new thing, so the problems associated with the internationalisation of capital in the context of a sovereign state system, each claiming supreme authority over whatever traverse their territorial domain, are not new either. Many of the problems and solutions to the possible conflicts and contradictions generated by mobile capital operating within a territorial carved system of states, were discussed already in the late 19th century, and have matured over a long period of gestation and thought. It is well understood today (and has been understood for a good while), that an expanding capitalist system, founded on transborder movements of goods, people and capital in the context of a sovereign state system, requires certain compromises on the part of both state and capital. States that are over-jealous in protecting the supreme authority over their territories are likely to drive foreign capital away; while mobile capital in turn has had to adapt, however reluctantly (as the long history of complaints by business attest to), to the reality of the sovereign state. The advent of an increasingly integrated market in the context of a state system necessitated, therefore, certain compromises in the interpretation of both sovereignty and capital liberalisation. A functioning world economy, in the aforementioned sense of a gigantic web of contractual relationships, necessitates a more or less stable substratum of a common legal space transcending national boundaries. Otherwise, the grid of contractual obligations and title exchanges that makes up the capitalist economy, would unravel and cease to exist. But such a transborder legal space could only be obtained through compromises on the principle of sovereignty. In theory, states are still considered fully and absolutely sovereign. In practice, however, sovereign states have learned to arrive at agreements or follow conventions and norms, which effectively restrict their sovereign rights within their own territory; although these also, paradoxically, extend their sovereignty to foreign lands in certain respects. Historically, many of such deviations from the ideal of the supreme and absolute sovereignty were put in place through a system of “pooling” of sovereignty in a web of bilateral and multilateral treaties. Since these were largely voluntary agreements, the assumption is that sovereign governments can enter and depart

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from such agreements and hence maintain, at least in theory, their claim to “full sovereignty”. It is generally agreed that the most significant of these treaties was the 1860 Franco-English treaty of commerce (usually called the Cobden Treaty), which became the model for numerous subsequent commercial treaties and produced what Nussbaum calls an “international bill of rights.” Under such treaties, nationals under the jurisdiction of the signatory powers were granted personal and property protection in the other country, free sojourn, admission to trade and industry including the right of permanent establishment, protection from discriminatory treatment in taxation and similar imposts, free access to courts, freedom of ownership, and exemption from military service.13 Many of these treaties were supported by stock clauses, such as the “national treatment clause” that promised the nationals of another country the same rights, in certain respects, as those enjoyed by the nationals of the promising country. Some treaties were signed for mutual assistance in the enforcement of the law among governments and “among courts of civilized nations”.14 Over time, the intensity of commercial interactions demanded a more thoroughly universal set of agreements regarding commerce, and these were pursued through a variety of multilateral treaties which became the central mechanism for generating the rudimentary forms of global governance. In some celebrated cases they pushed the principles of sovereign compromise further towards the principles of pooling and delegating sovereignty. Multilateral treaties gave rise to the emergence of international organisations committed to the principle of club membership. State membership in these clubs is voluntary, but once joining the member states agree to abide by the club rules, which de facto implies a delegation of certain degree of their sovereignty to the club. The best-known case among those is, of course, the EU, but any trade organisation, such as GATT, NAFTA and now also the WTO, follows broadly similar principles. Bilateral and multilateral treaties served, therefore, as a second layer of compromises, supplementing sheer power as factors eroding absolute sovereignty in reality. They established norms of conduct, founded on the principles of voluntary association, reciprocity, negotiated exempt clauses, voting rights, and maintenance of sovereign independence, which effectively limited and circumscribed sovereign independence. The second layer of compromises was not forced upon states. Rather, as the representatives of their commercial and business interests, the powerful states, including the hegemonic state, were clearly at the forefront in establishing this second layer compromises, even though these compromises seriously influenced their ability to pursue independent course of action in international affairs. Indeed, the history of international affairs in the post World War II period can be narrated to

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a certain extent as the history of a conflict between the two type of compromises, power and multilateralism, a conflict which in itself produced ambiguities and inconsistencies in the exercise of sovereign power.

Third Principle: Market Forces Multilateralism may be thought of as a functional/technical response to the intricate problems generated by an expansive capitalist system operating in the context of the state system. Multilateralism, however, generates a Deleuzian moment of its own transgression. International agreements after having been concluded are used, in turn, to defeat the compromises forced by a multilateral system. There is evidence, indeed, that multilateralism is currently in the process of being supplanted by a third principle of sovereign compromise. Or, at the very least, after two decades of neo-liberal dominance, we find stronger voices advocating a third principle of sovereign compromise, namely, the market principle. The idea has been mooted in various forums for a while now, but has become particularly notable with regards to the debates on the future of tax havens and harmful tax competition. In the late 1990s, and for a variety of reasons, the EU and the OECD began almost simultaneously to pursue steps intended to curb what they call, harmful tax competition.15 The practice by which states use their sovereign prerogative to enact tax and regulatory rules that in reality are intended to attract fictional business into their territories.16 Corporations establish fictional subsidiaries and bank accounts in tax havens, for the purpose of avoiding tax and regulation in their own countries. In light of the development of tax havens and offshore more generally, the OECD is following the EU example, by calling, in effect, for tax harmonisation on an unprecedented scale—although they do not use the term. Tax harmonisation, driven by the combined economic and diplomatic powers of OECD states, is an extension of the first principle of sovereign compromise employing the second, multilateral principles. During the heyday of the Clinton administration, the US seemed to be broadly in favour of these measures. However, it changed its policies once the Bush administration came to power. Paul O’Neill, the first Treasury secretary under the Bush administration announced the new principle: I was troubled by the notion that any country, or group of countries, should interfere in any other country’s decisions about how to structure its own tax system. I felt that it was not in the interest of the United States to stifle tax competition that force governments - like businesses - to create efficiencies. I also was concerned about the potentially unfair treatment of some non-OECD countries.17

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Paul O’Neill argued (among other things) that US interests are in maintaining competition among governments in tax issues, because market competition is likely to generate efficiencies in tax rules. The idea is very simple, and it originates in the rent-seeking theories of the New Political Economy.18 Rent-seeking theory maintains that governments are effectively another type of business organisation seeking to maximise income. Governments abuse their monopolistic powers to harvest “rent” from the economy. The so-called “new” political economists seek to uncover the various mechanisms to limit and control government’s propensity to do so. One of the better mechanisms is the one proposed by Charles Tiebout with regard to the incorporation of municipalities. The so-called Tiebout-efficiency paradigm proposes that in the context of an increasingly competitive deregulation among the states that make up the United States, states provide individuals and firms with a bundle of public services and tax regulations. He argues that individuals and firms are likely to choose jurisdictions that offer them more desirable bundles of regulations by moving to them, and reject the states that offer less desirable bundles of regulations by moving away from them. Since states are assumed to want the business of these individuals and companies, they are compelled to compete with each other by offering the kind of regulations that the market wants. Tiebout maintains that such a “market” in bundles of regulations results in an optimal public services as taxpayers adapt to the economic system.19 O’Neill makes a similar point in his address. His argument is that the multilateral principle of sovereign compromise (imposed as it were by the sheer combined power of the OECD states) should be replaced by a market principle of compromise—which is nothing but a new principle of transgression of sovereign absolutism and sovereign equality. The idea is that states can use their sovereign rights to enact any laws, rules or legislation they wish, but rather than getting embroiled in a lengthy process of bilateral and multilateral compromises, the “market”, i.e. the mobile consumers of state “services”, will judge which bundles of laws and regulation are the most appropriate for their purposes. It will be up to each respective state to strike a compromise to the best it can between its wish to enact legislations, regulation and taxation, and its developmental goals. Governments” ability to pursue policies and goals as sovereign entities is comprised then, not by the power of other states, nor by the multilateral agreements, but by the market itself. The principle of the market in inhibiting sovereign autonomy can only work, of course, as long as there is a real market; in other words, as long as individuals and corporations have the exit option if their voice is not heard. Hence, O’Neill

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is keen to safeguard the principle of competition in the world economy. Competition thus becomes the abiding principle guiding US foreign policy. Notwithstanding the theory behind the market principle in sovereign compromise, I would argue that these ideas draw primarily from the experiences of the relationship between the global financial market and the state, and in particularly the dramatic events of Black Wednesday and capital flight during the Mitterrand government. Mobile capital in the international financial markets, or offshore finance, has long ago curbed states’ capacity to pursue independent economic policies. Sovereignty became heavily compromised in the past three decades not so much due to the direct power from the hegemonic state, nor due to the web of multilateral treaties, but simply because of the power of the “market”. The spectacular effect of market power on state policy certainly appeals to dominant interests in the Anglo-Saxon world. “There Is No Alternative” (TINA) became the favoured weapon of the Thatcher government. The market principle changes the understanding of the relationship between state and sovereignty. There are certain similarities between the market principle and multilateralism, in that both principles accept certain limits on governments’ ability to enact laws in their own territories, and both appeal to the international sphere as a limitation of states’ absolute sovereignty. But here the similarities end: the market principle advocates an important modification to sovereignty. According to this principle, states (or governments) are still regarded as absolute sovereigns, and they can ultimately make choices as they wish—in that sense, they have a supreme authority over a territory—but the principle of market competition, rather then the use of other states power, forces them to pay a penalty for erroneous decisions. It is often argued that the past twenty years have witnessed an important shift of power from states to markets. In this context it is important to bear in mind that the shift is not purely structural, but political. It is driven in part by political decisions to let market forces apply to the issue of tax harmonisation and sovereignty. The beauty of this approach is that the fundamentals of sovereignty as the central institution supporting the contractual relationship of the world economy are not undermined, and yet, the power of democratically elected (or not so democratic governments) is eroded. What we are witnessing, therefore, is clearly an attempt to introduce new norms into the equation, to change the fundamental norms of international relationships.

The Commercialisation of Sovereignty How do states respond to what amounts, in effect, to a serious erosion of absolute sovereignty? (Erosion in the sense that under the circumstances

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described above, there is a growing gap between what politicians can promise their voters, and what they can actually deliver). One of the more intriguing phenomena encouraged by these developments in sovereignty is what I called elsewhere, the commercialisation of sovereignty.20 I have argued that under these conditions certain governments have learned to convert their sovereign rights, or the right to write the law, into a sources of income, thus effectively commercialising their sovereignty. For a number of small states, sovereignty is not a source of great pride and ambition. Their sovereignty is so circumscribed anyway under the triple conditions of power, multilateralism and market forces that they possess sovereignty in name only. Yet, they have learned to take advantage of this situation, to make money out of it, by selling virtual citizenship for individual and corporations for money to evade taxation. This appears as an abuse of sovereignty, but it is here that we may see the Deleuzian principle in action: a particular interpretation of sovereignty, as the right to write the law within the territory, points to possibilities of transgression and new mode of utilisation. Of course, the inhibiting principles of power and multilateralism mean that such tax havens need to be vigilant, because if the advanced industrialised countries wish to ‘shut them down” they will be able to. So they make certain moves to appease the advanced industrialised countries—a diplomatic game they have perfected as well. It is a cat and mouse situation. The commercialisation of sovereignty, in turn, lends support to market discipline for sovereignty.

Conclusion: How Hegemony Deals With the Triple Layer of Sovereign Compromise How do powerful states react to this myriad of practices that evolved around the principle of sovereignty and sovereign equality? The U.S. under the stewardship of the Bush Junior administration gave us one possible answer, and that answer has been interpreted by many as the reassertion of a new vision of the American “empire”. But I am not the only one to believe that this empire is a sign of weakness rather than of strength. The problem is as follows: it is normally assumed that international norms are a straightforward affair, to be followed or not, as the case may be. The problem, however, is that the practice of transgression has created, as we saw in the case of sovereignty, a complex myriad of practices and norms of behaviour. This complex network of different practices and norms, like the sticky filaments of a spider web, engulfs states in an increasingly constricting, rigid embrace. The problem faced by hegemonic states is rather complex. The Realist theory of International Relations presents an image that is extremely favourable to these states. But the reality, as we saw, is far less promising for those in

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power; multilateralism and market forces are seriously eroding the degree of sovereign independence exercised by the hegemonic states—even though, paradoxically, such states have been the main contributors to these developments. This momentum towards multilateralism began to seriously circumscribe the US ability to act independently. Multilateralism undermines power as a system of transgression of sovereign absolutism. The Bush II administration, which operates from a power base that is not associated with the universalist tradition in American politics, felt hemmed in by multilateralism. Indeed, seeking to escape the clinching embrace of the very system it helped to shape, the US sought to escape by removing itself from it and instead adopt a unilateralist stance. Faced by the daunting task of reshaping the entire international arena, the Bush administration chose to turn multilateralism into a weapon against the architecture of the existing multilateralism by trying to achieve international agreement supporting market principles. But like a tanker in mid flow, it is almost impossible to re-direct such a long-term, institutional evolution of rules, custom, norms and practice of behaviour, which evolve in support of multilateral forms of sovereign compromise. We already noted there is an on-going conflict generated between the first and second principles of sovereign compromise, between power and multilateralism. By adopting the market principle, the Bush administration hoped to resolve these issues. It forced states to discipline themselves rather being disciplined by the US brute power, or through a web of multilateral treaties which place certain limitations on states power. The hegemonic state uses the third principle as a cheap and effective instrument of asserting its own authority over a system organised on the principles of sovereignty and sovereign equality. Nonetheless, as O’Neill hints, market principles can only operate in a system of competition, and competition in the world market in turn requires a thick web of multilateralism to support it. The market principle is a transgression of the second, multilateral principle. There is, therefore, a momentum built into the system towards multilateralism in every sphere of international affairs. 1. A. Cameron and R. Palan, The Imagined Economies of Globalisation (London: Sage, 2004). 2. J. A. Commons, Institutional Economics (Madison: University of Wisconsin Press, 1961); T. Veblen , Essays In Our Changing Order (New York: The Viking Press, 1934). 3. G. Deleuze and F. Guattari, Anti-Oedipus: Capitalism and Schizophrenia (London: Athlone Press, 1984); J.-F. Lyotard, The Postmodern Condition : A Report on Knowledge (Minneapolis: University of Minnesota Press, 1984).

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4. R. O. Keohane and H. Milner (eds.) Internationalization and Domestic Politics (Cambridge: Cambridge University Press, 1996). 5. H. J. Morgenthau, Politics among Nations: The Struggle for Power and Peace. 4th ed. (New York: Alfred Knopf, 1967). 6. R. Palan, The Offshore World: Sovereign Markets, Virtual Places, and Nomad Millionaires (Ithaca: Cornell University Press, 2003). 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

N. Poulantzas, Political Power and Social Classes (London: Verso, 1973) . Deleuze and Guattari, Anti-Oedipus…, op. cit. R.D. Laing, Knots (London, Tavistock Publications, 1970). Poulantzas, Political Power… , op. cit., p. 162. G. Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford: Stanford University Press, 1998) R. Palan, “Offshore and the Institutional Environment of Globalization” , in R.J.B. Jones and Y. Ferguson (eds.) , Political Space: Frontiers of Change and Governance in a Globalizing World (New York: SUNY Press, 2002) , pp. 211-226. A. Nussbaum, A Concise History of the Law of Nations (New York: The Macmillan Press, 1961), p. 204. Ibid., p. 212. OECD Committee on Fiscal Affairs, International Tax Avoidance and Evasion : Four Related Studies, Issues in International Taxation, 1 (Paris: OECD, 1987). Palan, “Offshore and the Institutional…”, op. cit. . US Treasury Secretary O’Neill Statement on OECD Tax Havens. From The Office Of Public Affairs. PO-366, May 10, 2001 (www.ustreas.gov/press/releases/ po366. htm). C. K. Rowley, R. D. Tollison, and G. Tullock (eds.) The Political Economy of RentSeeking. (Boston: Kluwer Academic Publishers, 1988). C. M. Tiebout, “A pure theory of local expenditure”, The Journal of Political Economy (October 1956) pp. 416-424. R. Palan, “Tax Havens and the Commercialisation of State Sovereignty”, International Organization, 56: 1 (2002), pp. 153-178; and Palan, The Offshore World, op. cit.

CHAPTER 4 INTERNATIONAL NORMS AND PREVENTIVE WARFARE: IMPLICATIONS FOR GLOBAL GOVERNANCE GREGORY A. RAYMOND AND CHARLES W. KEGLEY, JR. When you see a rattlesnake poised to strike, you do not wait until he has struck before you crush him. Franklin D. Roosevelt Persons who regard any sort of fear as a just ground for precautionary killing of another person are themselves greatly deceived. Hugo Grotius

On 5 February 2003, US Secretary of State Colin L. Powell delivered a lengthy address to the United Nations Security Council, charging Iraq with a material breach of its disarmament obligations under UN Security Council Resolution 1441. American intelligence agencies, Powell asserted, had evidence that Saddam Hussein’s regime possessed weapons of mass destruction. “This is true. This is well-documented,” he insisted. After emphasizing the gravity of the threat these weapons posed, Powell reminded his audience of the Iraqi leader’s ruthlessness and warned that he would ‘stop at nothing until something stops him.”1 Over the next few weeks, US President George W. Bush and other members of his administration reiterated these accusations. On 17 March, Bush claimed that Iraq “continues to possess and conceal some of the most lethal weapons ever devised,” and threatened military action if Saddam Hussein did not leave the country within 48 hours. When Hussein failed to comply, the United States and its allies launched a series of precision air strikes and swarming ground attacks that quickly overwhelmed Iraqi defenses. Speaking to the nation from the flight deck of the USS Abraham Lincoln on 1 May, Bush announced that “major combat operations in Iraq have ended.” Yet a year after declaring victory, American and allied troops were locked in fierce fighting with Sunni insurgents in the central Iraqi city of Falluja, and with

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Shiite militia loyal to the firebrand cleric Muqtada al-Sadr in various southern cities. Though expecting to be welcomed with rice and rose petals, coalition forces came to be seen as occupiers rather than liberators. Meanwhile, the much-touted Iraqi weapons of mass destruction had yet to be found. In a news conference on 2 April 2004, Secretary Powell conceded that some of the intelligence the Bush administration relied upon was not ‘solid.” Acknowledging criticism of the sources used by the Central Intelligence Agency and the Defense Intelligence Agency, he admitted in a 16 May interview on the television program “Meet the Press” that the sources were “inaccurate and wrong . . . . And for that, I am disappointed and I regret it.” As the miscalculations about Iraq illustrate, confusion has permeated the US foreign policy-making process since the 11September 2001 terrorist attacks on the World Trade Centre and the Pentagon. Things were in disarray, writes one observer, because Bush’s “war cabinet had a loose grasp on the basic facts, did not identify strategic goals, made no attempt to relate means to ends, and acknowledged obvious, massive realities and choices only after have proceeded for weeks as if they didn’t exist.”2 Unprepared for what happened and uncertain about how to respond, American leaders desperately searched for a strategy to deal with frightening new threats.3 The security strategy that the administration eventually adopted in its socalled “war on terror” claims for the United States the prerogative to use military force in a preventive manner, even if it must act unilaterally. While we believe that preemptive military actions are warranted when facing a credible, imminent threat (what former US President Franklin D. Roosevelt once called “a rattlesnake poised to strike”), we agree with Grotius that it is folly to initiate war over suspicions of an incipient, contingent threat. The purpose of this chapter is to describe the Bush strategy of preventive warfare, and explain how it can encourage the growth of a permissive normative order that undermines the prospects for global governance on security issues.

Terrorism and National Self-Defence Political terrorism entails the deliberate use or threat of violence against noncombatants, calculated to instil fear, alarm, and ultimately a feeling of helplessness in an audience beyond the immediate victims.4 Because perpetrators of terrorism often strike symbolic targets in a horrific manner, the psychological impact of an attack can exceed the physical damage. A mixture of drama and dread, it presents people with a danger that seems ubiquitous, unavoidable, and unpredictable.

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When Osama bin Laden announced his 1996 “Declaration of War Against Americans Occupying the Land of the Two Holy Places” and issued a fatwa (or religious ruling) two years later calling for Americans to be killed anywhere in the world, he laid the rhetorical foundation for the current conflict between the United States and Al Qaeda, a loose network of terrorist cells and front organizations. Prior to 11 September 2001, Al Qaeda conducted a series of spectacular attacks against US citizens and facilities, including the suicide truck bombings of the Khobar Towers military housing complex in 1996 near Dhahran, Saudi Arabia, and the American embassies in Nairobi, Kenya, and Dar es Salaam, Tanzania in 1998, as well as the suicide boat bombing of the USS Cole in Aden, Yemen in 2000. What made the need for a new approach to dealing with nontraditional threats seem so compelling for the Bush administration was the prospect that Al Qaeda, through the support of Saddam Hussein’s Iraq, would eventually gain access to weapons of mass destruction. When an attack on one’s homeland appears inevitable on decreasingly favorable terms, the urge to adopt a preventive-based security strategy can feel overwhelming. Thus it is not surprising that the administration’s new strategy, as outlined in the 17 September 2002 report The National Security Strategy of the United States of America (NSS), declared that it was imperative to act in a preventive manner against terrorists and the states that harboured them. Building on the proposition that “nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger,” the report asserted that the acquisition of weapons of mass destruction by terrorists with global reach provided the United States with a compelling case for anticipatory self-defence, even if it was not clear when and where an enemy might attack. As President Bush explained in a speech delivered in Cincinnati on 7 October 2002: “We have every reason to assume the worst, and we have an urgent duty to prevent the worst from happening.” America must be proactive; it “cannot wait for the final proof—the smoking gun—that could come in the form of a mushroom cloud.”5 To support the position that the United States could not wait to find a “smoking gun,” Bush advanced two arguments. On the one hand, he pointed out that modern technology makes it possible for shadowy terrorist networks to launch catastrophic attacks against the United States. On the other hand, he maintained that these networks could not be deterred by traditional military means because they had no fixed territory or population to defend. “We must take the battle to the enemy,” the president exhorted, “and confront the worst threats before they emerge.”6 Defining the war on terror as “an inescapable calling,” he insisted that “no concession will appease their hatred. No accommodation will satisfy their endless demands… Any sign of weakness or

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retreat simply validates terrorist violence, and invites more violence for all nations. The only certain way to protect our people is by early, united, and decisive action.”7 Self-defence is perhaps the oldest rationale given by states to justify their use of military force. Although international law recognizes a right to defend oneself against aggression, legal scholarship has not reached a consensus on when that right may be invoked. Traditionally, the right of self-defence has been understood as allowing states recourse to force when repelling actual as well as imminent armed attacks.8 As expressed by US Secretary of State Daniel Webster in the 1837 Caroline incident, to exercise this right a state must face an “instant, overwhelming necessity… leaving no choice of means, and no moment for deliberation.”9 In addition, the defensive reaction must be proportionate to the danger and cannot serve as a reprisal. Self-defence is thus restricted to protection, not excessive or punitive military measures aimed at redressing injuries. Following the promulgation of the United Nations Charter, appeals to this customary right of self-defence became controversial. The Charter addresses self-defence in two places. First, Article 2 (4) stipulates that “all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.” Second, Article 51 states that “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken the measures necessary to maintain international peace and security.” Whereas one school of thought about the Charter regime interprets Articles 2 (4) and 51 as superseding customary law and limits forcible self-defence to cases where the Security Council has not yet responded to an armed attack, a second school highlights the concept of “inherent right” in Article 51 and argues that pre-Charter rules of self-defence continue in place. The Bush administration’s new national security strategy hinges on the second interpretation, which alleges that states have an independent right to use military force in an anticipatory manner so long as the criterion of overwhelming necessity is met. The difficulty in evaluating appeals to anticipatory self-defence lies in determining what constitutes such a necessity. Throughout history, political leaders have invoked military necessity to justify violations of prevailing legal norms when allegedly defending some vital national interest against grave danger, often blurring the difference between expediency and a supreme emergency.10 Whereas the former involves doing what is advantageous based on considerations of utility, the latter implies that one cannot help but act in a certain way in order to survive.

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When clear, convincing evidence exists of an impending attack, the logic of supreme emergency dictates that the victim need not wait until the perpetrators have crossed the country’s geographic boundaries; preemption is warranted.11 But what if an attack is merely foreseeable rather than imminent? Are military actions justifiable when, in the words of the Bush NSS, “uncertainty remains as to the time and place of the enemy’s attack”? In the absence of reliable intelligence that an armed attack is forthcoming, can forcible measures be legally justified in order to prevent an adversary from acquiring the means of launching an attack sometime in the more distant future?

Framing Preventive Military Action as Preemption According to the Bush administration, the world of the twenty-first century faces radically new security threats that challenge the international community to rethink its position on the use of military force. Old security doctrines must be reassessed, contends US Secretary of Defence Donald H. Rumsfeld, because of the difficulty in defending against terrorism. “You can’t defend at every place at every time against every technique,” he complained. “You just can’t do it, because they just keep changing techniques, time, and you have to go after them… and that means you have to preempt them.”12 Although from the president on down, members of the Bush administration have told the American public “to be ready for preemptive action”13 and have proposed that preemption should not be “particularized to Iraq,”14 a close examination of the NSS and official statements about the new strategy reveal that preventive military action is being cloaked with language of preemption. A preemptive military attack entails the use of force to quell or mitigate an impending strike by an adversary. A preventive military attack entails the use of force to eliminate any possible future strike, even when there is little or no reason to believe that aggression is planned or the capability to launch such an attack is operational. Whereas the grounds for preemption lie in evidence of a credible, imminent threat, the basis for prevention rests on the suspicion that of an incipient, contingent threat. Although preventive military action may seem expedient, a significant body of scholarship wrestles with the question of whether it is legally permissible attempts to justify preventive wars are a bottomless pit of elastic normative principles.15 For example, the so-called “father” of international law, Hugo Grotius, insisted that preemption was only lawful when a danger became “immediate, and, as it were, at the point of happening.”16 Preventive uses of force were inadmissible. He considered taking up arms in order to weaken a state that might someday use violence against you as “repugnant to every

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principle of justice.” Likewise, another pioneering leader of modern international jurisprudence, Emmerich de Vattel, counseled that acting merely on vague suspicions risks transforming the initiator of preventive war into an aggressor.17 What we find problematic about the Bush administration’s strategy of “forward deterrence” is its framing of preventive military action as preemption. While we acknowledge that military preemption is justifiable whenever an attack is truly imminent, we contend that a doctrine countenancing preventive warfare will ultimately undermine national and international security. The decision by the Bush administration to take preventive military action against Iraq under the guise of preemption has many precedents. In fact, it is hard to find many cases of states that did not claim that in initiating war, they were merely acting in anticipatory self-defense. Yet preventive strikes couched in the idiom of preemption do not always yield long-term benefits. Among other things, they can engender domestic disruptions within the initiating state, strengthen the determination of the target state, and elicit international condemnation. While a number of scholars have pointed to “Woodrow Wilson’s occupation of Haiti in 1915, Lyndon Johnson’s dispatch of US Marines to the Dominican Republic in 1965, and Ronald Reagan’s invasion of Grenada in 1983” as probable examples of preemptive military action, most concur that “no president heretofore has so explicitly elevated the practice to a doctrine.”18 On April 9, 2003, three weeks after the symbols of Saddam’s power in Baghdad were toppled, President Bush reiterated the new strategic doctrine, declaring his aim was to send “a clear warning” to other governments “that support for terror will not be tolerated.” Within the context of forward deterrence, military preemption served as a “demonstration of American will and capability” that he believed would dissuade Iran, North Korea, Syria, and other so-called “rogue states” from aiding terrorists. But would forward deterrence be successful? Would other countries emulate the United States? And if so, what would be the long-term ramifications for the international legal order?

World Leadership and Norm Transmission Power can be distributed in many ways within the international system. It may be concentrated in the hands of one preponderant state, spread between two roughly equivalent states, or diffused among several states. How power is distributed has significant implications for those international norms that pertain to the use of military force.

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At the dawn of the twenty-first century, the United States is the world’s dominant military power, with defence expenditures in 2004 estimated to exceed all other nations combined. Complementing American’s military might is its economic strength, which accounts for 43 percent of the world’s production and 50 percent of its research and development.19 What is more, America wields enormous cultural influence as the hub of global communication. This rare confluence of military, economic, and cultural power gives the United States an extraordinary ability to shape international norms. No country is better endowed with hard and soft resources than the United States, writes Joseph Nye.20 The test of American statecraft during this unipolar moment will be whether Washington can convert its preeminence into a normative order that ushers in a period of peace and justice. General standards of prudent behaviour have almost always existed among all autonomous, independent political entities engaged in sustained interaction. Frequently, they reflect conventional equilibria that solve coordination problems among actors with common interests or common aversions. Occasionally they emanate from “focal point” solutions to problems that arise in mixed-motive situations where mutually dependent actors possess divergent interests. In both cases, these standards rest on collective expectations about what a given political entity will do in specific circumstances based on calculations of expediency. When independent political entities share certain fundamental values, they are more than members of a state system that observe rules of prudence; they are participants in an international society whose behaviour is guided by shared norms. Simply put, international norms are social phenomena with deontological content. They advance a collective evaluation of what ought to be done, a collective expectation as to what will be done, and particular reactions to compliant versus noncompliant behaviour. Communicated through a rich lexicon of legal symbols and reinforced by diplomatic ritual, global norms are more than modal regularities; they are intersubjectively shared understandings that express a consensus about the obligations of international actors to behave in a certain way.21 International norms do not exist in isolation. They fit together in a complex mosaic to form a normative order. At the base of every normative order is a set of foundational norms that define its axiology, or value orientation. Not all normative orders mitigate the most pernicious aspects of international anarchy. Some orders are highly permissive insofar as they give national leaders considerable latitude to do what they believe must be done to protect the state and advance its position relative to competitors. Other orders are more restrictive, giving leaders far less leeway to engage in unbridled self-help.22 We believe that the new Bush strategic doctrine encourages the growth of a

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permissive normative order. How the United States acts exerts an enormous influence on the behaviour of others. When the reigning hegemon promotes a new set of norms, the code of conduct changes for virtually everyone. What the strongest do eventually defines what everybody should do, and when that practice becomes common, it tends to take on an aura of obligation. As Stanley Hoffmann observes, in the evolutionary course of the world system rules of behaviour become over time rules for behaviour.23 Why would a permissive normative order be dangerous? In judging the impact of norm transformation, it is worth recalling Immanuel Kant’s famous principle, the “categorical imperative”. When contemplating an action or a policy, Kant proposed that the only ethical activity is one that would be advantageous for humanity if it were to become a universal law practiced by all. Applying this principle to the policy of preventive war, we should ask: What is likely to result if international norms permit all states to strike suspected threats in advance, before an enemy launches an attack or inflicts an injury? What if the new Bush strategic doctrine became every state’s policy? If other states act on the same rationale that the United States has proposed, and accept preventive military action as a legitimate response to potential threats, “a messy world would become a lot messier”.24 Once the United States proclaims anticipatory self-defence to justify prophylactic military policies, “nothing will stop other countries from doing the same”.25 Still another problem with the Bush “nip-it-in-the-bud” strategy lies in its impact on long-standing jus in bello restrictions on the conduct of warfare. A policy of preventive war would not only weaken restraints on when states might use force, but also on how they may use force.26 Following the traditional legal rules of proportionality and discrimination would be difficult in a preventive war. Any state acting in a discretionary, preventive manner against some hypothetical attack from a latent adversary must make a subjective judgment about how much force is needed to ensure a reasonable chance of success. Faced with such uncertainties, reliance upon worst-case analysis would be likely. Yet the devastation wrought by a full-scale first strike emanating from worst-case assumptions might outweigh whatever benefits the initiator hoped to gain. The short-term gain of neutralizing a possible threat would be eclipsed by the long-term rancour created by a disproportionate use of military might. The Bush administration’s strategy thus raises anew timeless moral and legal issues about the conditions under which, and the purposes for which, anticipatory self-defence is permissible to counter potential threats to national and international security. What are the obligations of the powerful? How should they behave in asymmetrical conflicts? Does strategic necessity absolve them from observing the UN Charter regime’s limitations on the use of force? Do unconventional security threats excuse behaviour that would otherwise be

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morally repugnant? Or, do preventive-war strategies run the risk of casting those who its use it as aggressors?

Warning and Surprise According to the Bush administration, innovative thinking is necessary when dealing with the radically new security threats presented by elusive terrorist networks with global reach. To reduce not only US vulnerability, but also that of the global community at large, it is imperative to deal with these non-state actors and the states that support them. But how can one thwart nameless, faceless enemies who are willing to engage in indiscriminate, suicidal attacks against noncombatants? Security strategies that embrace preventive war may yield short-term gains against such foes, but we predict they will also produce ominous long-term repercussions. Because the non-traditional security threats now faced are embedded in the context of wider issues, there is a need to reconsider how the Bush administration’s proposed solution of today’s problems may generate new problems tomorrow. If a latent adversary’s mere potential becomes a justifiable cause for preventive war, then every truculent, selfindulgent ruler will have a rough-and-ready pretext for launching a first-strike. It was awareness of this possibility, and fear of it, that led US policymakers to suggest that while Washington might have the right to use preventive war, it should not brandish it indiscriminately. Such behaviour would isolate the United States internationally, and could result in what the US Central Intelligence Agency describes as “blowback”—unintended negative consequences spawned by supporting groups that eventually become new security problems themselves. So instead, a measure of prudence has been proposed. Forward deterrence is to be used selectively—applied to some threats to US security but not others. As US National Security Advisor Condoleezza Rice explained in the Wriston Lecture she delivered at the Manhattan Institute for Policy Research in October 2002, preemptive military action “must be treated with great caution. The number of cases in which it might be justified will always be small ... The threat must be very grave. And the risks of waiting must far outweigh the risks of action”.27 Foreign policy decision-making cannot be divorced from the normative climate in which it occurs. Within permissive normative orders, mistrust is endemic and suspicion pervasive. Unsure of the motives of others, leaders become fixated on the hostility they perceive, exaggerate the susceptibility of their opponents to coercion, and overlook the long-term side effects of their national security policies. It was this principle that prompted Harry S. Truman

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to warn that “there is nothing more foolish than to think that war can be stopped by war. You don’t ‘prevent’ anything by war except peace”.28 The Bush administration has been vocal about the need to arrest foreign developments that may mature into attacks on the US homeland and its interests abroad. It has been silent about the consequences that are likely to follow from a doctrine of forward deterrence. The Realist theoreticians John Mearsheimer and Stephen Walt have argued that preventive war was an inappropriate policy response to the threat posed by Saddam Hussein.29 We extend their critique by arguing that the permissive normative order engendered by the American practice of preventive war under the cloak of preemption would undermine the institutional structures on which global governance is based. As Paul Schroeder warns, it would “invite imitation and emulation… justifying any number of wars hitherto considered unjust and aggressive.” Indeed, “one can easily imagine plausible scenarios in which India could justly attack Pakistan or vice versa, or Israel or any one of its neighbours, or China, Taiwan, or South Korea, North Korea, under this rule that suspicion of what a hostile regime might do justifies launching preventive wars to overthrow it.”30 To sum up, while we believe that preemption is warranted when facing what US Supreme Court Justice called an “uplifted knife,” we doubt that waging preventive wars against other states is a viable path to international security. Forward deterrence heralds the arrival of a new, muscular form of unilateralism. Rather than simply reflecting the traditional American preference for autonomy in world affairs, it seeks to establish rules for Washington that are different from those governing other members of the international community. Unfortunately, disregarding customary and Charter restraints on the use of force will only erode America’s reputation and squander its ability to exercise leadership on pressing global issues. 1. According to Bob Woodward, as assistant managing editor at the Washington Post, Powell had previously been skeptical of US intelligence on Saddam Hussein’s capabilities and intentions, and had cautioned against war with Iraq. In contrast, Vice President Richard B. Cheney was a “powerful steamrolling force” that pushed for removing Hussein by force. Together with his chief aid, Lewis Libby, Deputy Defense Secretary Paul Wolfowitz, and Undersecretary for Defense Douglas Feith, Cheney advocated military action from the onset of the Bush presidency. B. Woodward, Plan of Attack (New York: Simon & Schuster, 2004). 2. A. M. Codeville, “Confusion and Power,” Claremont Review of Books, 3 (2003), p. 23. Also see B. Woodward, Bush At War (New York: Simon & Schuster, 2002), pp. 31, 182. 3. Insight into the administration’s focus on threats emanating from sovereign, territorial states rather than nonstate actors can be derived from positions taken by key officials on the eve of the 11 September 2001 attacks. In a meeting with

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4. 5. 6. 7. 8.

9.

10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

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Republican congressional leaders on 2 August, for example, Vice President Cheney described a bold new security plan that would emphasize “missile defenses and modifications to our offensive strategic arms.” Similarly, in the text of an undelivered speech by national security advisor Condoleezza Rice, which had been scheduled for 11 September, ballistic missile defense was promoted as the cornerstone of a new US security strategy, while no mention was made of potential terrorist attacks by Osama bin Laden, Al Qaeda, or any other Islamic extremist groups. R. Wright, “Rice Speech Focuses on Missile Defense,” The Guardian International, 1 April 2004 (www.guardian.co.uk/international/story/0,3604,1183735,00). See G.A. Raymond, “The Evolving Strategies of Political Terrorism,” in C.W. Kegley, Jr. (ed.), The New Global Terrorism: Characteristics, Causes, Controls. (Upper Saddle River, NJ: Prentice-Hall), pp. 71-83. G.W. Bush, Cincinnati speech (www.whitehouse.gov/news/releases/2002/10/ print/20021007-8). G.W. Bush, West Point speech (www.whitehouse.gov/news/releases/2002/06/ print/20020601-3). G.W. Bush, Remarks from the East Room (www.whitehouse.gov/news/releases/ 2004/03/print/20040319-3). See A.C. Arend and R. J. Beck, International Law and the Use of Force: Beyond the Charter Paradigm (London: Routledge, 1993), p. 72; O. Schachter, “Self-Defense and the Rule of Law”, American Journal of International Law, 83 (1989), pp. 25977. The British took a similar position when they defended their 1807 bombardment of Copenhagen, claiming that the danger they faced “was certain, urgent and extreme, as to create a case of urgent, paramount necessity, leaving his Majesty’s ministeres no choice.” R. Taoka, The Right of Self-Defense in International Law (Osaka: Osaka University Institute of Legal Study, 1978), p. 39. See G.A. Raymond, “Necessity in Foreign Policy”, Political Science Quarterly, 113 (1999), pp. 673-88. C.H.M. Waldock, “The Regulation of the Use of Force by Individual States in International Law”, Recueil des Cours (Paris: Sirey, 1952), p. 498. Quoted in Woodward, Plan of Attack, op. cit., p. 34. G. W. Bush, West Point speech, op. cit. R. Rumsfeld, quoted in Woodward, Plan of Attack, op. cit., p. 138. M. A. Kaplan, and N. B. Katzenbach, The Political Foundations of International Law (New York: John Wiley, 1961), p. 213. H. Grotius, The Law of War and Peace, (New York: Walter J. Black, 1949), pp. 73, 77. E. de Vattel, The Law of Nations (Washington, D.C.: Carnegie Foundation, 1916). B. Keller, “Pre-emption”, The New York Times Magazine (December 15, 2002), p. 115. F. Zakaria, “The Arrogant Empire”, Newsweek (March 24, 2003), p. 23. J. Nye, The Paradox of American Power (New York: Oxford University Press, 2002), pp. 12, 169.

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21. G. A. Raymond, “Problems and Prospects in the Study of International Norms”, Mershon International Studies Review 41 (November, 1997), pp. 216-222. 22. G. A. Raymond, “Normative Orders and Peace”, in John A. Vasquez (ed.), What Do We Know About War? (Landham, MD: Rowman & Littlefield, 2000), pp. 283-298. 23. S. Hoffmann, “International Law and the Control of Force,” in K. Deutsch and S. Hoffman (eds.), The Relevance of International Law (Garden City, NY: DoubledayAnchor, 1971). 24. Keller, “Pre-emption”, op. cit., p. 115. 25. G. J. Ikenberry, “America’s Imperial Ambition”, Foreign Affairs 81 (September/ October, 2002), p. 57. 26. M. E. O’Connell, The Myth of Preemptive Self-Defense (Washington, D.C.: American Society of International Law, 2002), p. 19. 27. C. Rice, “A Balance of Power That Favors Freedom”, The Wriston Lecture (New York: The Manhattan Institute for Policy Research, October 2002). 28. H. S. Truman, Memoirs, vol. II: Years of Trial and Hope (New York: Doubleday, 1956), p. 383. 29. J. Mearsheimer and S. Walt, “An Unnecessary War”, Foreign Policy 134 (January/February, 2003), p. 51-59. 30. P. Schroeder, “Iraq: The Case Against Preemptive War,” The American Conservative 1 (October 21, 2002) p. 13.

CHAPTER 5 PARADIPLOMACY AS INTERNATIONAL CUSTOM: SUB-NATIONAL GOVERNMENT AND THE MAKING OF NEW GLOBAL NORMS NOÉ CORNAGO Introduction At a time when mainstream international theory seems to discover the value of conventional international law as a form of regulation of the global system, it can be interesting to revisit one of the most classic debates in the field of international norms. We are talking about international custom, that is, the unwritten norms which nevertheless are legally binding for states. The particular conditions required for the formation of a new international custom are complex and subject to controversy among international lawyers. However, the corresponding theoretical debates seem more concerned with the structure of legal argument, than with its substantial content. But then, formal disagreement among lawyers about custom, is ultimately a form of political disagreement, since “arguments about law are arguments of political preference”.1 According to conventional wisdom, the formation of customary international law depends on the more or less fortunate articulation of two elements: the existence of a generalized and relevant practice carried out by the community of states, and the general acceptance, or belief, that this practice is legally binding, and not merely a common usage or courtesy. Both elements, state practice and legal conviction, are frequently difficult to operationalize, but it seems reasonable to suggest that this formative process assumes different forms depending on historical circumstances.2 Thus in the case of diplomacy, the ability to conduct diplomatic relations is usually considered as one of the primary attributes of state sovereignty. Indeed, it may seem that the basic condition for the extension of diplomatic relations throughout the world was the existence of independent states able to develop political relations among themselves. However, it is beyond dispute that the origins of diplomacy were the multiple customary practices of communication among different political entities which have existed since ancient times.3

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Certainly these practices underwent different historical transformations before becoming conventionally redefined as a supposedly exclusive attribute of the sovereign nation-state.4 Through these changes, the old diplomacy was gradually adapted to the growing functional and legitimizing needs of world capitalism. Yet contemporary students of diplomacy tend to exclude a wide range of practices, such as corporate, nongovernmental, and sub-national governments’ involvement in international affairs, in spite of their increasing relevance.5 Indeed the widely held view of diplomacy as an exclusive attribute of sovereign state is more a matter of political and legal discourse than empirical reality. The codification of diplomatic law greatly facilitated this centralization of diplomacy. But the 1961 Vienna Convention on Diplomatic Relations recognises that diplomatic law has been always fundamentally customary, and that it remains so. The Convention’s preamble even affirms that the rules of customary law should continue to govern all questions not expressly regulated by its contents. But custom is not always the residue of the past that some practitioners and scholars use to imagine. As Langhorne reminds us, even nowadays “new customary rules of the game are emerging to allow international system to function securely and efficiently”, adding that “the difficult task at this historical juncture is to identify and describe them accurately”.6 But common approaches to diplomatic law are narrowly formalistic, frequently reducing the legal content of diplomacy to a more or less detailed commentary of the corresponding codifying conventions.7 The purpose of this chapter is to ascertain whether the increasing involvement of sub-national governments in foreign affairs all over the world, is becoming normalised (in spite of the obvious resistance to it on the part of states) into an area of customary diplomatic law. The argument will be structured as follows. I will first offer some evidence about “paradiplomacy” as a generalized practice in the global system, indicating some of its more prominent highlights in the most disparate contexts. Next, I will briefly analyse these developments in the light of the contemporary understanding of how international custom is created, before arriving at a conclusion. I will argue that the contemporary process of creating new global norms is a contentious process in which the preferences of states, even the more powerful among them, have to be adjusted by taking into account the wider social force-field of the global political economy, its functional needs, and the changing requirement for legitimacy in late-modern capitalism. Consequently, my points of departure will not be state sovereignty or the convoluted decisions of international courts, but the much more pervasive dynamic of the global political economy.8

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Paradiplomacy as a Relevant Global Practice Paradiplomacy can be defined as sub-national governments’ involvement in international relations, through the establishment of formal and informal permanent or ad hoc contacts, with foreign public or private entities, with the aim to promote socioeconomic, cultural or political issues, as well as any other foreign dimension of their own constitutional competences. The concept refers, simultaneously, to the tension with established diplomacy, and the fact that it is itself an art of the state.9 Paradiplomacy does not preclude other forms of subnational participation in the foreign policy process, which are often more directly subordinate to central governments priorities and objectives; or the increasing role of sub-national governments in multilayered structures for multilateral governance. Nor is it a particular feature of the constituent units of federal states, since the practice can be observed across the world, in the most diverse political systems. Indeed in spite of important constitutional differences among sovereign states, paradiplomacy displays a number of common characteristics which tend to be related to the wider institutional context created by the new regionalism.10 On the other hand, paradiplomacy is not a simple reflection of the structural transformations of the global political economy; it is, perhaps unexpectedly, one of its most lively driving forces. Consequently, as Lecours has suggested, it has to be approached in terms of the complex relation between structure and action.11 Although recent research has established that sub-national involvement in foreign affairs today has become a phenomenon which is no longer a characteristic only of western OECD countries,12 the European Union (EU) and North American Free Trade Agreement (NAFTA) have had important implications at sub-national level, establishing new structures of opportunity, and fostering regional governments’ activity in domestic as well as foreign affairs. In both cases the controversial issue of the scope and limits of subnational involvement in foreign affairs has been redefined as a result of integration. The EU has certainly undermined important regional competences, but its institutional framework establishes a favourable political context for subnational mobilization, having transformed substantially intergovernmental relations and administrative cultures among member states, facilitating the normalization of inter-regional cooperation across the continent.13 Although very different in nature and scope, NAFTA has also activated subnational governments in the United States, Mexico and Canada. In the process it has revealed serious institutional shortcomings of its political design early on.14 Canadian provinces and US states have been particularly active denouncing the implications of the World Trade Organization (WTO) on sub-national political competences all over the world. Their complaints about the erosion of

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constitutional prerogatives of sub-national authority as a result of global trade liberalization occasionally acquired the tone and vocabulary of a crisis in federal structure, both in the United States and in Canada; but the controversy has also resulted in a broader recognition of the role of sub-national government in global trade negotiations.15 States and provinces are discovering that due to their economic power and social legitimacy, they are able to influence federal positions on relevant international issues such as global trade, security, human rights, or environmental problems. As Howard suggests, the controversial law passed by Massachusetts trying to deter business activity in Burma on grounds of human rights violations in that country, has raised key questions on the limits of US states’ participation in foreign affairs.16 The US Supreme Court declared the law unconstitutional but its decision has served ultimately to assert that subnational governments are competent to participate in international relations as long as they do not ignore the primacy of federal government on foreign affairs.17 In fact, albeit widely unknown, the federal government in Washington is increasingly taking in account the constituent units of the United States in its foreign policy design and implementation. This not only concerns the economic or environmental domains, but even the more sensitive international security issues. In the case of Mexico, the combined effects of structural adjustment and regional trade liberalization under NAFTA, has increased regional inequalities, posing serious challenges to the country’s political stability. In response to this, the central government has tried to revitalize Mexican federalism, fostering subnational mobilization and involvement in both domestic and international policy-making.18 The Australian case also deserves particular attention. Due to its geographic situation and the competitive nature of its political system, the Australian states were among the first sub-national governments that tried to add a foreign dimension to their policy priorities. This has caused serious tensions in the past, and triggered constitutional conflict on the issue of federal powers and the limits of the states’ involvement in international affairs. However, during the last few years, sub-national foreign policies seems to have been increasingly normalized, and controversy has significantly subsided.19 Now in order to show the global dimensions of the growth of paradiplomacy, let us explore the situation beyond the OECD countries. Thus the successor states of the USSR have displayed a particularly high level of activity in this domain. After the Soviet collapse in 1991, the administrative boundaries of numerous Russian republics and regions became international frontiers of the new federation. Demarcating and controlling the new limits was obviously a very difficult task, and Moscow encouraged its new border regions to make their own arrangements with their neighbours. Consequently, the new

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federation assigned a special role to sub-national involvement in foreign affairs. In accordance with the new constitution, the major elements of foreign and security policies remain a federal responsibility, but in order to assure its new legitimacy the federal government decided to take into account regional interests in a way that Soviet foreign policy never did.20 The central government cannot reach agreements with neighbouring states, nor subscribe or modify international treaties without consulting the relevant regions. New legislation allowed the regions to maintain international relations and sign certain international agreements on the basis of their own competences. The regions can also establish missions abroad and are entitled to receiving official delegations from equivalent regions of foreign states, whilst governors are routinely included as delegation members in official diplomatic missions and international negotiations.21 This tolerant attitude has allowed the Russian Federation to try both to reduce ethnic demands and to facilitate its own integration into the global economy. Certainly, that tolerance is much more restricted regarding the efforts of the Caucasus regions to internationalize.22 But the rise of regional power in Russia does not necessarily mean that the federation faces disintegration. Again with the exception of the Caucasus republics, regions only rarely have adopted foreign policy positions that radically differ from those of the federal government.23 Another area which has seen remarkable developments in terms of subnational involvement in foreign affairs, is the wider Asia-Pacific region. Since the beginning of its experimental transition to capitalism, China has been promoting, directly or indirectly, international involvement of its provinces. When following the Tiananmen crisis, China adopted a new diplomatic strategy to avoid international isolation, and sought to develop new policy instruments, sub-national involvement in foreign affairs was among them, although this remained out of bounds for Tibet and, if less strictly, Xingjian.24 Occasionally it was on the initiative of the central government in Beijing that the regions sought to insert themselves into the transnational trade and capital flows of the global economy. In other cases, the regional governments acted under their own steam in deciding which international contacts to pursue, increasing inter-regional competition in domestic as well as in foreign affairs.25 Begun in the coastal regions with the aim to promote de facto economic integration with Hong Kong, Taiwan, and Japan, the process entailed increasing economic disparities between these provinces and the more depressed northern, inland, and western provinces. This led some regional governments to criticize Beijing’s priorities by developing their own foreign strategies.26 Due to these overlapping dynamics, during the last few years Chinese provinces have developed a dense network of transnational contacts. They participate in numerous cross-border cooperation

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schemes, sending and receiving international missions and signing cooperative agreements with partners from all over the world.27 Paradiplomacy has developed differently in Southeast Asia. Instead of overseas representation and missions around the world, the internationalization of Indonesian, Malaysian, Thailand’s, or Philippine’s regional governments has been largely the result of a variety of informal economic cooperation schemes with a very specific territorial content. Through the configuration of the socalled “Triangles of Growth”, sub-national governments have pursued their own political power and economic success, even if they have subsequently been forced to deal with new problems associated with increasing social turmoil. The oldest and more celebrated “Triangle” is the one that links Singapore, Malaysia’s Johor province and Indonesia’s Riau Island. Transnational economic experiments like this have important social implications, notably by engendering growing income inequalities, territorial imbalances, and ecological distress, and over time they may become a catalyst for political change.28 The federal system of India did not likewise facilitate sub-national paradiplomacy, at least until very recently.29 Ethnic and territorial problems have all along complicated Indian foreign policy, and the idea that ethnic ties across borders, as in the case of Kashmir, Punjab or Assam, may be turned into a channel for cross-border cooperation beneficial for economic development and regional stability, is relatively new.30 In addition, during the last years, and due to the considerable economic success of a number of southern Indian states, a certain north-south cleavage seems to have crystallised. The triangle formed by Karnataka, Andra-Pradesh, Tamil Nadu, and Maharastra is becoming increasingly dynamic, influencing both domestic and foreign affairs. However, the most relevant force driving the constituent units of the Indian federation to develop new transnational ties, are the disciplinary schemes resulting from Indian membership of the WTO, and those dictated by World Bank financing of sub-national debts.31 In non-NAFTA Latin America, disputes over borders and political authoritarianism have long prevented the emergence of powerful regional government.32 However, the extension of formal democracy and the renewed efforts to rekindle regional integration such as Mercosur or the new Andean Community, have favoured decentralization across the subcontinent, too. In this changing context, and learning from the failures of the past, Latin American governments are increasingly aware of the value of paradiplomacy for the promotion of regional integration.33 Simultaneously, sub-national governments have started to experiment with different modes of paradiplomatic activity, with the aim to promote foreign trade and investment as well as greater international cooperation on security, infrastructures or environmental issues. The case is particularly clear in Argentina and Brazil; both due to their strong federal

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systems and the growing sub-national implications of Mercosur. In Argentina, the central government in 1992 took several legal and administrative measures in order to keep control of the growing internationalization of the provinces.34 Brazil has followed a similar pattern. Since the early nineties, sub-national government has been involved in numerous cross-border integration projects. The governors of the Brazilian states are becoming so active in the international field that the federal government in 1997 reorganized the Ministry of Foreign Affairs in order to adapt to this new reality. In the new political climate, the World Bank offered important loans directly to Rio Grande do Sul, Rio de Janeiro, Minas Gerais, and Mato Groso do Sul. Although in a more complex political context, Colombian and Venezuelan sub-national authorities, too, have begun to develop their own activities.35 Finally, the African case. Although socioeconomic and political conditions of the vast majority of African states hamper the development of paradiplomacy, during the last few years significant developments have taken place. It has been argued that to foster and support general objectives of state building and democratization, starting off from the potential of some border regions might give a new impetus to preventive diplomacy and economic development. Presently, this trend is particularly clear in the case of South Africa, but in the near future it could be extended to other African countries. New regional cooperation schemes such as the renewed Southern African Development Community (SADC) have increased opportunities for subnational mobilization, as testified by the celebrated Maputo Corridor. Certainly the social benefits of these new transnational projects are still far from demonstrable. But they are setting important examples for countries such as Nigeria, Ethiopia, or Uganda.36 Broadly speaking, then, under the conditions created by the far-flung trade and capital flows of contemporary global capitalism, sub-national governments all over the world have begun to respond to social and economic problems in ways that go far beyond the conventional imaginary of a differentiation between domestic and foreign policy. This structural change imposes the need to create new institutions, new modes of attributing responsibility and legitimacy, and ultimately, new global norms.37 Let us see then whether these paradiplomatic practices are currently part of a process of international normalization and recognition that would acquire, in due course, the features of new international custom.

Paradiplomacy as Emerging International Custom According to Article 38.1(b) of the Statute of the International Court of Justice, international custom can be defined as “evidence of a general practice accepted

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as law”. This definition contains the two fundamental elements—objective and subjective—which are needed in order to identify a practice as customary law. The first element is the material precedent, also called usus; the second, he subjective acceptance of this practice as legally binding, is the so-called opinio iuris, or spiritual element. The form in which the articulation of these elements materialises is nevertheless open to discussion, giving rise to one of the most frequently recurring debates in the field of international law. Different positions can be identified on this score today, depending on the understanding of the relative weight of practice versus legal conviction in the formation of international custom. But if approached historically, there is an obvious shift from the primacy of practice towards the assertion of opinio iuris as the specific mechanism for the creation of new customary law. In the past, consistent state practice was unanimously accepted as the prior and fundamental requirement for the emergence of international custom, but current understanding of international custom assigns a much more prominent place to opinio iuris. The existence of customary law is even assumed in cases where it still lacks a consistent practice supporting it, as happens frequently in the fields of environmental or humanitarian law.38 The primacy of legal conviction over practice has become the point of departure for contemporary advocates of legal idealism. Conversely, an emphasis on practice has proven particularly seductive for pragmatic liberals, as it supposedly demonstrates the relevance of spontaneous rule making based on shared expectations of reciprocity as the basis for social order. Primacy of practice also fits perfectly within realist approaches oriented towards the unequal capabilities of states to influence the evolution of international custom.39 Finally, practice is also the key reference for those who regard custom as a form of states’ adaptation to the functional requirements of the international system.40 Nonetheless, all those approaches ignore the extent to which the evolving character of international custom reveals the changing historical conditions of global capitalism and the regulatory needs it entails quite irrespective of the will of states. After all, as Hamer has pointed out: “Custom is not solely a matter of identifying actual practice, but also is a reflection of the social condition and historical development that influence and change the actions of a state”.41 However, in any discussion of the nature and formation of international custom it is important to note, as Kratochwil does, that the key issue is the change of character in the rule: “from an imputed or generally observed rule of behaviour to a rule for behaviour”.42 This change takes different forms depending on circumstances, but may generally be interpreted as a process by which international custom emerges more or less deliberately. Indeed, Cassese suggests, when participating in this process, states “do not act for the primary

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purpose of laying down international rules, but in order to safeguard some economic, social, or political interests”.43 A similar argument can be made concerning the formation of a corresponding legal conviction. Instead of pretending its sudden crystallization, the formation of opinio iuris can be seen as a gradual process, in which states can first accept a certain practice as legally irrelevant, then “legally useful, later legally emerging, and finally legally binding”.44 Both the duration and uniformity of the practice are very much a matter of appreciation, but the consistency of custom depends greatly on these two aspects. The evidence for custom formation meanwhile can be very diverse. Brownlie presents an extensive list, including, among others, diplomatic correspondence, policy statements, press releases, the opinion of official legal advisers, official manuals on legal questions, comments by governments, state legislation, international and national judicial law decisions, the practice of international organs, and related treaties.45 Moreover, the relevant practice may be carried out not only by the organs charged with responsibility for international relations, but also by the administrative, judicial or legislative organs of the state.46 The question of the generality of practice, too, deserves to be briefly commented on. One feature which clearly differentiates custom from other sources of international law is that international custom refers to a class of rules which applies, prima facie, to all states.47 According to this view, customary rules are binding upon all members of the world community (or regional community in the case of regional customs), whereas treaties only bind those states that ratify or adhere to them. Certainly, in order to become customary law, a practice must be subjectively recognized as binding by states. But the fact that there will be states objecting to it does not itself impede the formation of a new customary law, as long as the conviction that such practice is necessarily binding—opinio iuris sive necessitatis—is held by widely by states.48 If universality is not required, therefore, the real problem (following Brownlie again), is “to determine the value of abstention from protest by a substantial number of states in face of a practice followed by some others”, since ‘silence may denote either tacit agreement or a simple lack of interest in the issue”.49 On the other hand, against the voluntarist conception which considers international custom as the result of a tacit and but reflective agreement among states, some scholars have also argued that the emergence of new rules may be more often an unexpected result of various political constraints and expectations of reciprocity.50 From this point of view, the formation of international custom is less frequently the result of a deliberate lawmaking process, than a consequence of the necessary adaptation to the functional and normative needs of the world system.

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It is precisely in this broad sense that we may view the global spread of subnational involvement in foreign affairs as indicating the emergence of a new international custom in the field of diplomatic law.51 Certainly, states, and more properly speaking central governments, initially have been reticent to accept the international activities of their constituent units. But during the last few decades they have developed a wide variety of legal or political mechanisms aimed at normalizing a practice which as we saw, is becoming generalized across the world. Against conventional wisdom, these developments are not a peculiarity of federal countries or of well established democratic systems: in fact, the most diverse types of state, in highly divergent regional contexts, have established legal and institutional mechanisms meant to recognize and even incorporate this reality into established foreign policy mechanisms. Given the heterogeneous practice they try to regulate, these mechanisms are not fully uniform. Yet they are sufficiently widespread to have an effect, not only on the constituent units of each of the affected states, but also for the community of states as a whole. Indeed sooner or later, all states will need to consider, a) the treatment they are expected to offer to foreign constituent units, and b) the treatment they understand other states should offer to their own constituencies. Consequently, it is precisely the explicit or implicit consent of sovereign states that has allowed the extension of paradiplomacy all over the world during the last few decades. Therefore, the binding content of the new custom we are trying to identify is not merely a descriptive statement about what paradiplomacy is. It is equally a normative statement about what paradiplomacy ought to be.52 Paradiplomatic practices and discourses are not primarily controversial because of their material scope, or the supposedly undesirable legal consequences for the affected states; rather, controversy will result from the extent to which they appear to be symbolically relevant, and express values questioning precisely those values that are seen to sustain the normative optimum of centralization international relations by states. It can also maintained that this symbolic dimension to a large extent supports the political relevance of paradiplomacy.53 Precisely for that reason, states need to establish criteria for judging a certain paradiplomatic practice as conforming to the custom they are reluctant, but ultimately inclined to accept; mainly as a result of the increasing complexity of the world political system. As Kratochwil puts it, “precisely because even widely accepted customary practices are far from uniform, actors need some type of Gestalt to recognize both behaviour that is deviant—but which still resembles the customary practice—and criteria for judging conduct which would indicate the absence, or desuetude, of custom”. Hence we may agree with the author’s conclusion that “that it is largely the underlying rule or norm and not the observable overt behaviour which gives a customary practice its recognizability and coherence”.54 The underlying rule here is easy to identify: the maintenance

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of paradiplomacy as a relatively low profile activity, always submitted to the ultimate consent of the affected sovereign states.

Conclusion International custom is generally ignored in current debates on the making of new global norms. Its somewhat outdated parlance seems to deter new generations of scholars from entering the debate, even apart from a concern to give preference to elaborating one’s own analytical starting points. According to its critics, international custom is obsolete and unable to deal with the global challenges, which demand new regulatory mechanisms. But even the most cursory overview will bring out that international custom can cast light on how international norms are being formed and observed, raising important questions and suggesting definite answers. The attention that customary law gives to the objective and subjective elements in the making of norms, and the two corresponding sides of the reality it pertains to, are a case in point. The formation of customary international law is an intriguing process. It depends on the more or less fortuitous articulation of two elements: the existence of a generalized and relevant practice carried out by the community of states, and the general acceptance, or belief, that this practice is legally binding, and not merely a common usage or courtesy. The articulation of these elements, state practice and legal conviction, undoubtedly is an issue riddled with controversy. But if we consider this debate historically, we may observe a clear displacement from the primacy of practice, towards the assertion of legal conviction, or opinio iuris, as the specific mechanism for the creation of new customary law. Our exploration of sub-national paradiplomacy, then, seems to suggest that the growing sub-national involvement in foreign affairs is a phenomenon that is subtly transforming diplomacy all over the world. The making of new customary norms is a contentious process; but the priorities and preferences states will have to be tempered by taking into account the broad array of social forces operative in the global political economy. Sub-national entities engaging in paradiplomacy are a key vector by which contemporary politics deals with the growing and ever more complex requirements of late-modern capitalism in the areas of functional regulation and legitimation. 1. M. Koskenniemi, “The normative force of habit: international custom and social theory”, in M. Koskenniemi (ed), International Law (Aldershot: Dartmouth, 1992) p. 288.

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2. See R. Kolb ‘Selected problems in the theory of customary international law”, Netherlands International Law Review, 50 : 2 (2003), pp. 119-50. 3. N. Cornago, “Diplomacy”, in L. Kurtz (ed.), Encyclopedia of Peace, Violence and Conflict (San Diego: Academic Press, 1999), pp. 559-566. 4. J. Der Derian, Diplomacy: A Genealogy of a Western Estrangement (Oxford: Blackwell, 1987). 5. Cf. M.S. Anderson, The Rise of Modern Diplomacy (New York: Longman, 1993) and G.R. Berridge, Diplomacy: Theory and Practice (London: Prentice Hall, 1996). 6. R. Langhorne, “The Diplomatic Representation of Non-State Entities: A New Element in the Machinery of Global Governance”, paper delivered at the CEEISA/ISA Convention, Budapest, 2003. 7. Cf. E. Denza, Diplomatic Law: A commentary on the Vienna Convention on Diplomatic Relations (Oxford: Clarendon Press, 1998). 8. See C. Cutler, “Locating “Authority” in the Global Political Economy”, International Studies Quarterly 43 (1999), pp. 59-81. 9. B. Hocking, Localizing Foreign Policy: Non-Central Governments and Multilayered Diplomacy (London: Macmillan, 1993); A. Lecours, “Paradiplomacy: Reflections on the Foreign Policy and International Relations of Regions”, International Negotiation, 7 (2002), pp. 91-114; S. Paquin, Paradiplomatie et relations internationales: Théorie des stratégies internationales des régions face à la mondialisation, (Brussels: Peter Lang, 2004) . 10. N. Philips, S. Breslin, C. Hughes, and B. Rosamond, New Regionalisms in the Global Political Economy: Theories and Cases (London: Routledge, 2002) 11. Lecours, “Paradiplomacy…”, op. cit. 12. On subnational involvement in foreign affairs beyond the OECD, see N. Melvin, Regional Foreign Policies in the Russian Federation (London: RIIA, 1995); D. Goodman and G. Segal (eds. ) China Deconstructs: Politics, Trade and Regionalism (London: Routledge, 1995); M. Thant, M. Tang, and H. Kakazu, Growth Triangles in Asia: A New Approach to Regional Economic Cooperation (New York: Oxford University Press, 1994); M. Keating and J. Loughlin (eds.) The Political Economy of Regionalism (London: Frank Cass, 1997); E. Chen and C.H.Kwang (eds.) Asia’s Borderless Economy: The Emergence of Subregional Zones (Sydney, Allen & Unwin, 1997); S. Breslin and G.D. Hook, Microregionalism and World Order (London: Palgrave, 2002); J. Tapia (ed.), El marco jurídico-institucional de la integración fronteriza subregional (Iquiqu: Universidad Arturo Prat, 2003): T. Vigevani and L.E. Wanderley (eds) A dimensão subnacional e as relações internacionales (Sao Paulo: Cedec/EDUC-EDUSC, 2004). 13. See M. Perez Gonzalez (ed.) La acción exterior y comunitaria de los Lánder, Regiones, Cantones y Comunidades Autónomas (Oñate, IVAP/HAEE, 1994); B. Jones and M. Keating (eds) The European Union and the Regions (Oxford: Clarendon Press, 1996); J. Loughlin, Subnational democracy in the European Union: challenges and opportunities (Oxford: Oxford University Press, 2001).

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14. D. Conklin, “NAFTA: Regional Impacts”, in Keating and Loughlin (eds.), Regionalism…, op. cit., pp. 195-214; M. Gutierrez, “América del norte: Las regiones de México ante el TLC”, Revista de Comercio Exterior, 44: 11 (1994) pp. 1008-14. 15. D. Brown and E.H. Fry, States and Provinces in the International Economy (Berkeley: Institute of Government Studies, 1993); S. de Boer, “Canadian Provinces, U.S. States and North American Integration: Bench Makers or Key Players”, Choices, 8: 4 (2002) pp. 2-24. 16. P. Howard, “The Growing Role of States in U.S. Foreign Policy: The Case of the State Partnership Program”, International Studies Perspectives, 5: 2 (2004), p. 186. 17. R. Stumberg and M. Porterfield , “Who Preempted the Massachussetts Burma Law? Federalism and Political Responsibility under Global Trade Rules”, Publius, 31: 3 (2001), pp. 173-204. 18. See Gutierrez, “América del norte: Las regiones de México…”, op. cit.; M. Polese and S. Perez, “Integración económica norteamericana y cambio regional en México”, Comercio Exterior, 45: 2 (1995), pp. 132-9; J. Saxe-Fernandez, “Mexamerica o la dialéctica entre macro y micro-regionalizacion”, Nueva Sociedad, 143 (1996), pp. 5157; J. Morales, “NAFTA: The institutionalisation of economic openness and the configuration of Mexican geo-economic spaces”, Third World Quarterly, 20: 5 (1999), pp. 971-93. 19. J. Ravenhill, “Federal-State Relations in Australian External Affairs: A New Cooperative Era”, in F. Aldecoa and M. Keating (eds.) Paradiplomacy in Action: The Foreign Relations of Sub-national Governments (London: Frank Cass, 1999), pp. 134-52. 20. M. Nicholson, “Towards a Russia of the Regions”, Adelphi Paper, 330 (1999), p. 63. 21. See M. Rykhtik “The Russian Constitution and Foreign Policy: Regional Aspects”, PONARS Memo Series, 160, 2000. 22. As an illustration of the reasons for this concern it will suffice to mention that in 2001, US State Department officials received the Chechen minister of foreign affairs in Washington, provoking a furious diplomatic démarche by Moscow. 23. Among the exceptions I mention that in 1998 representatives from the republics of Bashkortostan, Dagestan Yakutia, Tatarstan, Tuva, Khakassia and Chuvashia attended a conference in Istambul which recognized the Turkish Republic of North Cyprus, to the annoyance again of Moscow. 24. J.C. Hsiung, “China´s Omni-Directional Diplomacy”, Asian Survey, 35: 6 (1995) pp. 573-586. 25. D. Goodman and G. Segal (eds) China Deconstructs…. , op. cit.; G. Segal “China Changes Shape: Regionalism and Foreign Policy”, Adelphi Paper 287 (1994). 26. J. Rimmer, “Regional Economic integration in Pacific Asia”, Environment and Planning A, 26 (1994) pp. 1731-59. 27. Y.N. Zheng, “Perforated Sovereignties: Provincial Dynamism and China’s Foreign Trade”, Pacific Review, 7: 3 (1994), pp. 309-21; Y. Zinberg, “Sub-national Diplomacy: Japan and Sakhalin”, Journal of Borderlands Studies, 10: 2 (1996) pp. 87-108; Segal, “China Changes Shape…”, op. cit.

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28. Thant, Tang, and Kakazu, Growth Triangles…, op. cit.; Chen and Kwang, Asia’s Borderless Economy…, op. cit. . 29. K. Sridharan, “Federalism and Foreign Relations: The Emerging Role of Indian States”, paper presented at the 43rd International Studies Association Annual Convention, New Orleans, 2002. 30. F. Chopra, “Relations with its neighbours challenge India’s federal system”, Federations, special issue, 2002, pp. 9-10. 31. R. Jenkins, “India’s States and the Making of Foreign Economic Policy: The Limits of the Constituent Diplomacy Paradigm”, Publius, 34: 1 (2003). 32. R. Bernal Meza, “Papel de las regiones en la formulación de la política exterior y potencial de articulación con regiones de países limítrofes”, Integración Latinoamericana, 156 (1990) pp. 28-39; J. Tapia, “Globalización, descentralización y paradiplomacia: la actividad internacional de la regiones”, Revista de Derecho, 23 (2002) pp. 153-72. 33. Tapia, El marco jurídico-institucional…, op. cit. ; Vigevani and Wanderley, A dimensão…, op. cit.. 34. M. Colacrai and G. Zubelzú, “El creciente protagonismo externo de las provincias argentinas”, in A. Bologna (ed.), La política exterior argentina 1994-1997 (Rosario: CERIR, 1998), pp. 319-34. 35. V. Torrijos, “La diplomacia centrífuga: preámbulo a una política exterior de las regiones”, Desafíos, 2 (2000) pp. 2-12. 36. I. Taylor, “The Maputo Development Corridor: Whose Corridor? Whose Development?” in Breslin, and Hook, Microregionalism..., op. cit., pp. 144-66. 37. As a critical observer has recently pointed out: “Through efforts to attract transnational corporate investment and create transnational business networks, ... sub-national states become the structural site around which the local social foundations of transnational liberalism are built”, adding that “this is a key element in the re-scaling of the state and the production of new geographies of global regulation in the twenty-first century” (D.E. Paul, “Re-scaling IPE: sub-national states and the regulation of the global political economy”, Review of International Political Economy, 9: 3 (2002) p. 1. 38. Among those who suggest that this displacement implies the twilight of international customary law see N.C.H. Dunbar, “The Myth of Customary International Law”, Australian Yearbook of International Law, 8 (1983) pp. 1-2, and J.L. Goldsmith and E.A. Posner, “A Theory of Customary International Law”, University of Chicago Law Review, 66 (1999) pp. 1113-36. Conversely, advocates of the enduring relevance of international customary law, albeit through very diverse arguments, include, among others, K. Wolfke, Custom in Present International Law, (Dordrecht, Martinus Nijhoff, 1993) and T.E. Swaine, “Rational custom”, Duke Law Journal, 52: 3 (2000) pp. 559-627. 39. A. D’Amato, “Trashing Customary International Law”, American Journal of International Law, 81 (1987); M. Byers, “Custom, Power, and the Power of Rules: An Interdisciplinary Perspective on Customary International Law”, Michigan Journal of International Law , 17 (1995), p. 109.

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40. M. Reisman, “The Cult of Custom in the late 20th Century”, California Western Journal of International Law, 17 (1987) pp. 113-40; M. Mendelson, “The Formation of Customary International Law”, Recueil des Cours-Académie de Droit International/The Hague Academy of International Law, 272 (1998), pp. 155-410. 41. L. Hamer, “Transgressing Problems of Customary International Law via Foucault”, paper presented at the XXI World Congress of the International Association for the Study of Philosophy of Law, Lund, Sweden, 2003, p.1. 42. F. Kratochwil, Rules, norms, and decisions: On the conditions of practical and legal reasoning in international relations and domestic affairs, (Cambridge: Cambridge University Press, 1989), p. 88. 43. A. Cassese, International Law (Oxford: Oxford University Press, 2002), p. 119. 44. Kolb, ‘Selected problems…” op. cit., p. 139. 45. I. Brownlie, Principles of Public International Law ( Oxford: Clarendon Press, 2003), pp. 5-7 46. O. Casanovas, Unity and Pluralism in Public International Law (The Hague: Martinus Nijhoff, 2001), p. 30. 47. Ibid., p.27. 48. R. Huesa, El nuevo alcance de la opinio iuris en el derecho internacional contemporáneo (Valencia: Tirant lo Blanch, 1991). 49. Brownlie, Principles…, op. cit. p. 6. 50. I. Detter, The International Legal Order (Aldershot: Darmouth 1994). 51. My suggestion that subnational foreign action is presently acquiring the features of a new custom has a precedent in S. Beltran, Los Acuerdos Exteriores de las Comunidades Autonomas, (Barcelona: University of Barcelona, 2001). Beltran however centrally addresses the specific issue of treaty making power by constituent units in the European context, whereas I argue we are looking at a global phenomenon. 52. On the distinction between descriptive accuracy and normative appeal of custom see A.E. Roberts, “Traditional and modern approaches to customary international law : a reconciliation”, American Journal of International Law, 95: 4 (2001) pp. 757-91. 53. Lecours, “Paradiplomacy…” op. cit.; Paquin, Paradiplomatie et relations internationales, op. cit.. 54. Kratochwil, Rules, norms, and decisions, op. cit., p. 72.

PART II THE POLITICAL ECONOMY OF GLOBAL NORMS

CHAPTER 6 REDESIGNING SOVEREIGNTY: THE EFFECTS OF TRIPS ON THE SOVEREIGNTY NORM ELIZABETH DE ZUTTER

From 1986 until 1994, delegations from around the world participated in the eighth round of multilateral trade negotiations (the Uruguay Round). One key outcome of the negotiations was the World Trade Organization (WTO) supplementing the General Agreement on Tariffs and Trade (GATT); another the Agreement on trade related aspects of intellectual property (TRIPS). The delegations that negotiated the TRIPS agreement did not intend to contest or transform the sovereignty norm. Rather, “the real debate is about the balance between state and society, and the particular form of international intervention.”1 Nevertheless a homogeneity of protection of intellectual property emerged, which has a potential impact on the sovereignty norm through the world-wide membership to the Agreement. This chapter seeks to show how in the negotiations on intellectual property, ideas on international trade, intellectual property and economy, converged into a single strand. I will take the structure of ideas of international negotiations as the ensemble of institutions and ideologies affecting the subject matter of the negotiations in a specific time period. The structure of ideas consists of (a) a constitutional level (sovereignty and market); (b) international regimes; and (c), ideas and ideologies that support or challenge the existing order embedded in the regimes and the constitutional level. In the course of the Uruguay Round negotiations, the dominant ideology that emerged has become known as the Washington Consensus. The Washington Consensus incorporates a specific view on the relation between state and market, but it is of course itself contested: the set of ideas embodied in the 1970s drive for a New International Economic Order (NIEO), constitutes an important counterpoint to it. NIEO ideas and alternative development theories certainly resonated in the negotiations on intellectual property. These ideas exist in a dynamic tension

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with the existing institutions associated with TRIPS. Two regimes are relevant here: the international trade regime (ITR) and the International Intellectual Property Regime (IIPR). The principles of the GATT/WTO as well as the weak basic intellectual property right standards of the IIPR are part of the structure of ideas of Uruguay Round negotiations on intellectual property. This structure worked towards an international homogenization of intellectual property rights, in a way broadly conforming to the more general process of harmonizing rules and regulations affecting the economy and finance, and restructuring the relation between state and market.2 This process of homogenization, I will argue, potentially results in a new quality of sovereignty as the conditions for sovereignty, and thus for statehood, are expanded to include the internationally homogenized regulations and laws on intellectual property.

The Concept of Sovereignty Sovereignty is not only the organizing principle of international politics; it organizes domestic policies as well. Notwithstanding its importance in shaping the political realm, no single definition exists. Sovereignty, it has been argued, is the constitutional norm of the international society.3 It defines the nature of states, which are the constituent parts of an international society, and outlines the realm of legitimate action by states. The right to represent people living in a certain geographical area in their relations with other states, and the right to rule people without interference of other states, are key here. In international public law, a state is considered sovereign if it fulfils a set of conditions such as “(a) a permanent population; (b) the defined territory; (c) a government; and (d) the capacity to enter into relations with other states.”4 In the course of history conditions have vanished and new conditions have been added. The international treaties on human rights have added new conditions: by accepting these treaties, states included respect for human rights in the conditions for sovereignty. The example on human rights illustrates how states, through their actions, not only reproduce, but also potentially transform the sovereignty norm. However, actions by non-state actors also influence sovereignty. Actions by the bourgeoisie and later by the working class resulted in the gradual evolvement of popular sovereignty whereby sovereignty notions changed and domestic rule became conditioned in a different way.5 More generally, a whole range of actors including transnational corporations, transnational social networks, classes and international economic organizations, have an impact on the quality of sovereignty. Here I will use sovereignty as the ability of a state to make policy choices and to govern independently from external (foreign, international or non-state) interference. This definition leaves open three lines of critique. First,

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the description refers to an ideal-typical sovereignty norm and fails to describe accurately the characteristics of any actual state today and in the past.6 Yet it is an influential ideal-type that framed political theory as well as political discourse. Secondly, all international cooperation aims at influencing state behaviour (or the behaviour of subjects to their jurisdiction) and involve the agreed restriction of policy options and hence, their sovereignty. Taken to the extreme: every cooperative effort among states has the potential of changing the sovereignty norm, but it does not necessarily have this consequence. Finally, there is a discussion whether the ability of a state to decide independently on its economic policy, really concerns sovereignty, or merely involves the “economic autonomy” of a state.7 International agreements on intellectual property, sanitary standards, product standards or subsidy regulations, restrict the room of states to manoeuvre. One cannot easily dismiss these as mere aspects of economic autonomy because such agreements restrict policy choices on politically sensitive issues that reach beyond borders. Thus intellectual property relates not only to innovations of products and product processes, but also to educational material, cultural issues etc. Here we touch on how the sovereignty of states to decide on economic, but also social, cultural and development issues, becomes restricted as result of the international homogenization of regulations and laws affecting trade and finance. Advocates of such homogenization tend to reject that economic and other differences may justify heterogeneity in rules and regulations. Indeed they argue in favour of “the need to extend the horizon of international negotiations from the liberalization of strictly border measures, such as tariffs and goods, to the coordination of various areas of domestic policy that substantially affect the ability of firms to conduct their operations worldwide”.8 This takes us to the Washington Consensus and its rival concept, the New International Economic Order, and their respective roles in the Uruguay Round negotiations.

The Washington Consensus and the NIEO The relation between state and market, and the autonomy of state and market vis-à-vis each other, has been argued differently in the ideology that has gained the epithet of the Washington Consensus and in the Dependencia strand of thought permeating the New International Economic Order (NIEO) ideology. The Washington Consensus gained ground during the Uruguay Round negotiations and its final results are an illustration of that ascendancy. Yet, although NIEO ideas were on the retreat during the Round, they were nevertheless present in the negotiations. Certainly an overtly protectionist position was and remains problematic in the ITR, because it contradicts the prescribed reduction of barriers to trade. But protectionism had and has many

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adherents in the everyday practice of international trade. In the 1980s, a growing emphasis on free trade and laissez-faire had effectively begun to roll back the protectionist wave of the prior period. The free trade and laissez-faire ideas spread unevenly: the spearheads were the US under Reagan and the UK under Thatcher. Over time, the developing countries, and at the end of the decennium, also the post-Soviet transition countries, broadly converted to this set of ideas as well. The conversion of several developing countries did not always reflect genuine changes in the ideological preferences of the domestic constituencies; often they were the result of their disastrous external debt positions and the conditions attached to new loans (structural adjustment programmes, SAPs) by the World Bank and the IMF. These two institutions were among the most vehement promoters of the Washington Consensus. The national delegations most committed to it, then transmitted this ideological preference during the TRIPS negotiations. The new ideology was baptised Washington Consensus by Williamson in 1990. Its original formulation had been inspired by economic reforms in the states of Latin America that followed the debt crisis of the 1980s. There was a one-size-fits-all quality to these policies in that they were based on identical recommendations for all countries.9 The Washington Consensus sums up the reform agenda under 10 headings, all derived from neoclassical economics. Its strength is its simplicity, and the claim of scientific neutrality: the Consensus is presented as the miracle solution to economic problems. Its recommendations chart a route to economic growth, in which it is assumed that economic development through the trickle-down effect will eventually eradicate poverty. Three recommendations are of specific interest for international trade and intellectual property protection: trade liberalization, property rights, and foreign direct investment (FDI). Trade liberalization in its elaborated form means immediate “tariffication” (the replacement of quantitative trade restrictions by tariffs), and a uniform tariff level of 10 to 20 per cent (Williamson actually had recommended a phased reduction of tariffs). The second recommendation on property rights prescribes that “the legal system should provide secure property rights without excessive costs, and make these available to the informal sector”.10 The establishment of a property system is a general precondition for a market economy. There is an indirect relation between intellectual property protection and FDI as well; during the preparation of the Round, firms argued that the weaker protection of intellectual property and shorter periods of protection offered by developing countries in comparison to protection in most OECD countries, amounted to impediments to investment. The weaker or absent enforcement of these rights in developing countries was also perceived as a barrier to FDI. The Washington Consensus recommends that “barriers impeding the entry of foreign

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firms should be abolished”.11 From this point of view, intellectual property protection is merely a broadening of property rights, and a beneficial one at that. The Washington Consensus in its 1990 version12 implicitly prescribes some general features of a state. It recommends its being scaled down, while assuming that the state has no role to play in the economy except for providing the formal and institutional conditions for a market economy to operate. Hence the state, informed by the ‘scientific” recommendations laid down in the Washington Consensus, decides on regulations, standards and laws concerning trade and finances in such way as to enhance the “efficiency of the market”. In addition, it must ensure the enforcement of property rights and contracts. The state concept that corresponds with the Washington Consensus, is the Schumpeterian competition state. This concept emphasizes the need to develop a knowledge-based economy and stresses that the state is a player on the global market. It is this knowledge-based character of the economy which makes intellectual property rights protection indispensable. In matters of trade, international cooperation and harmonization of standards affecting trade in order to create one integrated market, are further implications of the concept.13 There is a parallel here with Ruggie’s notion of “embedded liberalism”14: while in embedded liberalism, the Keynesian welfare state at the domestic level was complemented by the Bretton Woods structures and GATT at the international level, the Schumpeterian competition state corresponds with the adherence of international economic institutions to the Washington Consensus. Sovereignty as a result is being reduced to a formalistic skeleton. The NIEO programme in the 1970s united the developing countries on a reform agenda concerning the ITR and IIPR, but in the 1980s lost its position as focal point in the development discussion. The debt crisis was now perceived as the factual falsification of the NIEO principles; simultaneously it provided the Washington Consensus institutions like the IMF and the World Bank with the chance to implement policies reflecting their ideas on development. Yet the international discussion on intellectual property, and the efforts by US-based firms to integrate intellectual property rights into the ITR, were influenced by the NIEO programme if only because they can be understood as part of the response to it.15 The debate on the international protection of intellectual property from the IIPR to the ITR occurred because the OECD countries were able to exert more leverage in the ITR even though several developing countries, especially India and Brazil, continued to rely on NIEO arguments in the TRIPS negotiations. The key objective of the NIEO was the realization of true self-determination, perceived as instrumental for the achievement of socio-economic development. As such the NIEO programme had been part of a broader effort by the developing countries to restructure international economic organization,

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including its regulator institutions such as the World Bank, the IMF, and GATT. The aim was to mutate the world economy away from its capitalist/free-market foundations, and build a redistributive international economic order.16 Consequently in this perspective, it is the state that must decide on the objectives of economic policy. In an attempt to achieve sovereignty in matters of economic policy, the developing countries were to “decouple” from the international economy, in order to develop. Or, to put it in “NIEO-speak”: they claimed full sovereignty to end not only political colonisation, but also the “de facto economic colonization”.17

Competing Ideas on Intellectual Property As can be expected, the Washington Consensus and NIEO appreciate the appropriate level of intellectual property rights and protection quite differently. The TRIPS impact on sovereignty is inherent in the characteristics of intellectual property, and both the Washington Consensus and the NIEO ideology attribute a key role to the state in this area. There are several types of intellectual property, including patents, trademarks, and copyrights, protection of industrial design and integrated circuits, trade secrets and geographical indications. All have different implications, which I cannot detail in this chapter. The general characteristic of intellectual property is that it concerns intangible creations of the mind. These creations are non-excludable: once invented, others can take the idea at (almost) no cost. Furthermore consumption is non-rivalrous: an idea does not diminish by using it.18 The rationale for intellectual property rights and their protection, then, is the imbalance between the fact that consumption of these intangible creations tends to be cost-free, whilst the creator has invested (time, money, know-how) in their production. Two principles underlie the case for intellectual property protection. The first is the moral principle: an inventor or author should be rewarded for his/her work. The other is the economic principle: any invention is considered a mainspring of economic growth and wealth creation. The establishment of intellectual property rights is a balancing exercise between the incentive for the innovator/creator to inventive activity (moral principle) and the public interest to enjoy the fruits of this activity (economic principle).19 It is the state which must decide on how to establish this balance when it develops intellectual property law. The (financial) benefits of the invention should be an incentive for creative and innovative activities; the temporary20 protection by intellectual property rights ensures that nobody is allowed to make use of the innovation without the consent of the right-holder. In the case of patents, protection is conditional upon disclosure of essential information on the invention. Others

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can rely on this information for further research and thus a genuine contribution to technological progress is realized. In this way intellectual property rights create a temporary monopoly on intellectual property. However, this monopoly may harm the pubic interest: the right-holder can raise the price to such a level that the innovation is not longer a stimulus for economic growth. Or, as in the infamous HIV drugs case, the price of essential medicine can be raised to a level out of reach for many patients. Solutions to this have included imposing time limits on certain intellectual property rights to avoid the negative impact of the monopoly, or developing various instruments to limit such excesses as compulsory licenses. In the end, however, intellectual property protection depends on a state’s legislative capacities; intellectual property does not exist unless sanctioned by state authority. This is a difference with tangible property. If someone steals your food, you can beat him up and take it back, but this will help little if someone steals your idea. In the case of intellectual property, the state is not only responsible for the enforcement of property rights, but also for establishing them.21 In the case of TRIPS, all these issues are being decided on an international level. The NIEO view was that intellectual property rights and protection should serve the objective of self-determination and economic development. In this perspective, the state has a key role to play.22 It is the state that should decide on how intellectual property rights might serve development goals. For instance, developing countries tended to restrict the period of protection for pharmaceutical patents, or not recognise them in the first place. Hence under the NIEO concept, the balance between the incentive for the innovator or creator, and the public interest, was tilted towards the latter. The developing countries made an effort to change the focus of the debate on intellectual property from its legal protection, to technology transfer. Such demands were typical of the NIEO mind-set, and the rejection of a market-led process of technology diffusion fits into the same pattern of a voluntarist and state-led approach. Now the value of intellectual property for the economy, as well as the balance between incentives for innovators versus public interest has itself developed over time.23 As far as the OECD states are concerned, the perceived importance of the protection of intellectual property as a source of economic growth changed in at the end of 1970s and beginning of the 1980s. Technological and industrial innovation were now seen as a prime source of wealth creation for advanced industrial economies.24 An example of this change is the “pro-patent” period in the US. Whereas in the 1970s, American judges and the administration in Washington still considered patents as monopolies impeding competition, a decade later they evaluated them instead as a source of economic growth and wealth creation.25 The more aggressive unilateral

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measures by the United States to enforce intellectual property rights in developing countries were the translation of this ideological change of position. The US was not the only OECD country with changing views on intellectual property: the European Union and Japan, too, were changing the goalposts in this area.26 The balance between the incentive for the innovator/creator and the public interest, under the Washington Consensus (and in line with the Schumpeterian state concept)27 thus became tilted towards the interests of the right-holders of intellectual property.

The International Intellectual Property Regime In the Uruguay Round negotiations on intellectual property, the ITR and IIPR finally “met”. In these negotiations the delegates did not reinvent the wheel, but integrated the core treaties of the IIPR into the TRIPS and thus into the ITR. The existing IIPR was the result of a relatively long history.28 Although a World Intellectual Property Organization (WIPO) was established only in 1967 (coming into force three years later), its origins date back to the nineteenth century—the Paris Convention for the protection of industrial property of 1883 and the Berne Convention on copyright of 1886.29 At that time, several industrialized states had developed domestic intellectual property rights, but integration into world markets made international cooperation necessary to achieve genuine protection. The formal principles of both the Paris and Berne Conventions are reciprocity and national treatment. They provide minimal standards, and the nineteenth-century version indeed left a large degree of discretion to the member states, who could decide on the balance between the moral and economic principles. Both conventions have been revised since, reflecting technological changes, and in the case of the Berne Convention, also reflecting changes in ideas on the function of intellectual property and on the balance between incentive for creator/innovator and public interest. In the latest revision (of 1971), special provisions for developing countries were accepted. A similar revision of the Paris Convention failed, however. In the discussions at the revision conference of the Paris Convention, the developing countries claimed the right to mould their domestic intellectual property rights system along lines conforming to their development objectives.30 The property regime lacks the coherence of the ITR. The IIPR included (and still does) many treaties in addition to Berne and Paris Conventions. Along with technological changes and growing international trade, older agreements were revised and new treaties regulating new areas and issues emerged; these were not integrated until the conclusion of the TRIPS agreement. In addition, the various intellectual property treaties had different memberships. To make the

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picture even more complex, not all the parties to these treaties did ratify the relevant revisions and amendments. All in all, the IIPR was a patchwork of rights without any consensus on a core set of rights. On top of that, the IIPR was also characterized by an absence of enforcement. The Paris and Berne Conventions for instance lack agreed rules on the domestic enforcement of rights, or a binding dispute settlement mechanism on the international level. Advocates of introducing intellectual property in international trade negotiations perceived the weak or absent enforcement as a fundamental flaw of the preTRIPS international intellectual property regime.31

The Evolution of the International Trade Regime Whereas the history of the IIPR is often presented as a history of failure until the TRIPS-agreement rescued it, the history of the international trade regime emerges as what appears as a linear evolution towards an integrated world market. The TRIPS therefore would seem a straightforward continuation of this trajectory. The GATT or ITR was established in 1947, entering into force a year later. It was conceived as an interim agreement.32 The parties negotiating the (perhaps too) ambitious Havana Charter on the International Trade Organization (ITO), switched to a different round of negotiations on tariffs as a temporary way out.33 The resulting tariff reductions, in combination with a set of “general clauses” thus became the General Agreement on Tariffs and Trade (GATT).34 Between 1947 and 1995, eight multilateral trade rounds ensued, in which the members continued to reduce tariffs on goods, whilst also bringing non-tariff barriers into the negotiations. The Uruguay Round (1986-1995) as we saw, then resulted in the establishment of the WTO, the elaboration of GATT provisions in several agreements and understandings, and the broadening of the scope beyond goods. The members agreed on agreements on services (GATS), on trade-related investment measures (TRIMS) and on trade-related intellectual property (TRIPS). The Dispute Settlement Understanding was a further result adding to the list which must remain incomplete here.35 The original GATT, however, articulated a structure of ideas associated with “embedded liberalism”, which had been inspired by a particular reading of the experience with the laissez-faire of the nineteenth century, and the protectionism of the 1930s. As contemporaries saw it, both extremes had led to war. Embedded liberalism therefore was a compromise combining free trade on the international level with possibilities for individual states to cushion the domestic economies from vehement changes in the international economy. This ideological compromise left the state with the capacity to protect its domestic economy without decoupling it from the international market economy. GATT

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in this sense was a building block of the post-war institutional infrastructure, based on multilateralism and aimed at guaranteeing peace. States agreed to limit their policy options in the area of international trade, but retained instruments to respond to changes in the international economy. The compromise presupposed the existence of welfare states on the domestic level. The overriding regime norm is the (gradual) reduction of barriers to trade. Other formal norms are nondiscrimination, transparency and reciprocity. The Most Favoured Nation and National Treatment rules elaborate the non-discrimination norm. Reciprocity expresses the idea that the sovereign and equal parties exchange concessions in international trade negotiations. In the 1960s, the ITR departed from non-discrimination and reciprocity principles by accepting special and differential treatment. But since the formal norms were not changed fundamentally, the inclusion of special and differential treatment never became an inherent part of the ITR. So when a weakened embedded liberalism was replaced by neoliberalism in key OECD countries in the beginning of the 1980s, the debt crisis could effectively suspended the legitimacy of special and differential treatment at the same juncture. Notwithstanding formal continuity, the structure of ideas of the ITR in the decades that followed also mutated. This happened in response to two factual changes: the membership and the economic circumstances. In addition, the reduction of tariffs had reached a point where the major barriers to trade were no longer tariffs but non-tariff barriers (NTB). The membership increased, first, as a result of decolonisation; a further wave of new members followed in the second half of the 1980s.36 It was in response to the first broadening that special and differential treatment for developing countries was accepted in the ITR. This reflected the idea that the best way forward for developing countries was to temporarily uncouple from the world economy to achieve an appropriate level of economic development. Under special and differential treatment, developing countries enjoyed trade concessions by OECD states without having to make concessions of their own. With the acceptance of UNCTAD’s Generalized System of Preferences (GSP), OECD countries in addition could make unilateral, i.e., discriminatory concessions to developing countries.37 So if the ITR limits the policy options of states, special and differential treatment exempted developing countries to a large extent from their obligations under the ITR. All this reflected the notion that economic sovereignty must complement formal sovereignty of the developing countries. A second evolution was the relative decline of US economic dominance and the rise of Western Europe, Japan and eventually, the Newly Industrialising Countries (NIC). If we confine ourselves of the post-1970s period, two developments gave a particular edge to this changing balance of forces, prompting the quest for a restoration of American pre-eminence. First, there was

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a rising protectionist tide legitimized by “fair trade” ideas.38 This led to developing countries being labelled “free riders” supposedly enjoying the benefits of the ITR but not accepting its obligations. Secondly, there was the growth of a knowledge-based and service-oriented economy. The growing prominence of knowledge, and hence, of intellectual property (as well as trade in services) then created the impetus for renewed international cooperation in which the United States took the lead. The ITR meanwhile had broadened its scope substantially. Partly this evolution can be interpreted as an internal dynamic of the ITR: as mentioned above, tariff reduction been largely successful and restrictions on market access or NTBs, such as domestic policies affecting trade through standards, subsidies and anti-dumping provisions, now emerged as the obvious next aim in liberalising trade.39 In combination with the shift to services and the knowledgebased economy, this engendered a pattern of regulation “beyond borders”— restricting states” policy options not only in connection with foreign trade and trade-related matters, but also in terms of their domestic economy and even their social, environmental and developmental policies.

Synthesising the Intellectual Property and Trade Regimes in the Uruguay Round Controversy in both the IIPR and ITR centred on the capacity of states to obtain, foster and control the rights and the production of intellectual property. The two regimes “met” in a structure of ideas dominated by the Washington Consensus, with profound implications for the sovereignty norm. Although any form of international cooperation potentially affects sovereignty, the dominance of Washington Consensus and Schumpeterian state model went much further. In combination they promoted the idea that a state must provide the framework for the market economy: this it must do in cooperation with other states, harmonizing rules and regulations on market principles whilst ensuring their domestic enforcement. In addition, the Washington Consensus stimulated a trend towards homogenisation in the ITR, a response as we saw to the proliferation of non-tariff barriers and the exceptionalism for developing countries. It also put an end to the discussion on technology transfer along the lines of the NIEO programme that had stalemated negotiations on the revision of the Paris Convention once the Washington Consensus effectively prescribed a one-size-fit-all approach to economic development. Developing countries only reluctantly accepted intellectual property on the agenda of the Uruguay Round. The Punta del Este Declaration, which was the negotiation mandate of the Uruguay Round, reflected the conflicting ideologies

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and the difficult compromise between them. The section on intellectual property states that “in order to reduce [obstacles] to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and ensure that the measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade, the negotiations shall aim to clarify GATT provisions and elaborate as appropriate new rules and disciplines.”40 For the OECD countries—especially the United States—insufficient protection of intellectual property constituted a barrier to trade. For several developing countries on the other hand, the level of protection of intellectual property rights should reflect the balance between the domestic costs and benefits of protection: costs to society of intellectual property rights, and economic benefits for society from incentives to innovations and inventions, should be in balance.41 This is not a matter of mathematics, but about choices a society must make. Hence the traditional discussion on the balance between incentive for the inventor/creator and the public interest resurfaced, but was decided in favour of the Washington Consensus.42 Several general features of the WTO treaty as it stands today, contribute to the homogenization trend. First, the WTO treaty is a “Single Undertaking”: states become party to the whole treaty, or must forego membership.43 Secondly, the unified Dispute Settlement procedure gives the complainant the right to retaliate against a state judged in violation of TRIPS discipline; not only by withdrawing concessions under TRIPS, but also under other treaties. If this is not a reason to adapt policy for strong economies, for a weak and vulnerable one it certainly is. The TRIPS treaty itself with its standards for intellectual property rights and their domestic enforcement, has three main sets of provisions. First, a set of minimum standards of substantive protection for each category of intellectual property right which members must incorporate into their national laws. The protection is comparable to the protection in most developed countries at the time of the negotiations, and it provisions are based on the exiting treaties of the IIPR. Secondly, the agreement requires enforcement at the domestic level: the members must provide procedures and remedies for enforcement although the form of such enforcement is not prescribed. A third set of provisions concerns dispute settlement.44 The reinterpretation of special and differential treatment reinforces the homogenization trend in intellectual property rights. Developing countries are not exempted from the TRIPS disciplines, except for being granted longer periods to bring their legislation into conformity with the TRIPS provisions: after the entry into force of the WTO, the developed countries were given one year, less-developed countries five and least-developed countries eleven to do this.45 But eventually, all WTO members

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will have the same basic standards for intellectual property protection whatever their level of economic development.

Sovereignty Copyrighted by the WTO? The sovereignty norm organizes the international and domestic political realm. Sovereign states themselves transform it through international cooperation, intentionally or involuntarily. The negotiations on such international cooperation take place in a structure of ideas, including a constitutional level, regimes and ideologies, which frames negotiations and influences its eventual results. For the Uruguay Round negotiations on TRIPS, the relevant regimes were the ITR and IIPR; the relevant ideologies, the Washington Consensus and the NIEO ideology. They formed the structure of ideas of the negotiations on TRIPS. The IIPR contained basic standards on the international level for the protection of intellectual property, which were scattered over a large number of treaties, conventions etc. The standards were set by industrialized countries. As long as there was no binding dispute settlement procedure on the international level and no enforceable international obligation to provide and protect intellectual property rights domestically, these standards had no real impact on the policy options of states. At the time of the Round, the evolution in the IIPR pointed in different directions in this respect. TRIPS eventually incorporated the standards of the core treaties in the ITR. At the start of the Uruguay Round, the ITR was in bad shape as a consequence of the protectionist tide and many trade conflicts. Most developing countries were exempted from GATT disciplines, to the annoyance of OECD countries. At the same time, the trend to regulate beyond borders had obtained a precedent with the codes on non-tariff barriers, announcing the homogenization trend in the ITR and the ascendancy of the Washington Consensus. In the TRIPS agreement, this was further confirmed and states now find themselves compelled to adopt regulations and laws in the property rights area tailored to the smooth functioning of the market economy. All this is part of a broader homogenization of rules and regulations, of which international economic institutions and organizations such as the WTO are the main promoters. The membership of the WTO makes it an almost universal organization, especially since the accession of China and negotiations on accession with Russia. The TRIPS agreement, as part of the WTO treaty, globalizes a prescribed minimum level of intellectual property protection which every member must enforce within its jurisdiction. In this respect the TRIPS agreement has changed the quality of sovereignty by inserting homogenized intellectual property protection into the sovereignty norm.

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1. F. Weiss, “WTO Dispute Settlement and the Economic Order of the WTO Member States”, in: P. van Dijck and G. Faber (eds), Challenges to the New World Trade Organisation (The Hague: Kluwer Law International, 1996), p. 78. 2. See, among others, S. Gill, “Globalisation, Market Civilisation, and Disciplinary Neoliberalism”, Millennium: Journal of International Studies, 24:3 (1995), pp. 399424; and R. H. Wade, “What Strategies Are Viable for Developing Countries Today? The World Trade Organization and the Shrinking “Development Space”“, Review of International Political Economy, 10: 4 (2003) pp. 621-644. 3. C. Reus-Smit, “The Constitutional Structure of International Society and the Nature of Fundamental Institutions”, International Organization, 51: 4 (1997) pp. 555-589. 4. M. N. Shaw, International Law (Cambridge: Cambridge University Press, 1997), p. 140. 5. On the history of sovereignty, cf. F. H. Hinsley, On Sovereignty (Cambridge: Cambridge University Press, 1986, orig. published 1966) and C. Reus-Smit, The Moral Purpose of the State. Culture, Social Identity, and Institutional Rationality in International Relations (Princeton: Princeton University Press, 1999). 6. J. Quiggin, “Globalization and Economic Sovereignty”, Journal of Political Philosophy, 9: 1 (2001) p. 56. Krasner reformulates the (neo)realist presupposition that norms do not affect international relations and that power is the main explaining variable in world politics. In the international system institutions are less constraining and more subject to challenge and change than in domestic context because anarchy characterizes the international system. Consequently socialization, positive reinforcement between structure and agents, path-dependency are less constraining on the international level than domestically: S. D. Krasner, “Compromising Westphalia”, International Security, 20: 3 (1995) p. 117. 7. R. Jackson, “Sovereignty in World Politics” in R. Jackson (ed.), Sovereignty at the Millennium (Malden: Blackwell Publishers and the Political Studies Association, 1999), p. 23. 8. I. Frank, “Post-Uruguay Round Trade Policy for a Global Economy”, in O. Krishner, The Bretton Woods-Gatt System. Retrospect and Prospect after Fifty Years (Armonk: M.E. Sharp, 1996), p. 241. 9. The Washington Consensus is often used as a synonym for neoliberalism; however Williamson opposes this identification. He is convinced that this consensus exists in relations with his recommendations. (J. Williamson, “Democracy and the “Washington Consensus”“, World Development, 21: 8 (1993) pp. 1329-1336). More recently he has argued that the neoliberal and “market-fundamentalist” interpretations of the Washington Consensus cannot lead to an eradication of poverty, seeking to dissociate the Consensus from an even less popular neoliberalism (J. Williamson, “What Should the World Bank Think About the Washington Consensus?”, World Bank Research Observer, 15: 2 (2000) pp. 251-264. H. Overbeek and K. van der Pijl (“Restructuring Capital and Restructuring Hegemony: Neo-Liberalism and the Unmaking of the Post-War Order”, in H. Overbeek (ed.), Restructuring Hegemony in the Global Political Economy the Rise of Transnational Neo-Liberalism (London: Routledge, 1993) pp. 14-16) also distinguish the

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10. 11.

12.

13. 14. 15.

16. 17. 18. 19. 20.

21.

22. 23. 24.

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Washington Consensus from neoliberalism, but on different grounds: neoliberalism is for them the Washington Consensus plus a conservative values set. Williamson, “Democracy…” op. cit., p. 1333. This recommendation is similar though not identical with a fourth recommendation on deregulation: “governments should abolish regulations that impede the entry of new firms or restrict competition and ensure that all regulations are justified by such criteria as safety, environmental protection, or prudential supervision of financial institutions.” (Ibid., p.1332) The consensus broadened during the 1990s to such an extent as to cover democracy, human rights, and institutions and leading to the inclusion of good governance: see M. Naim, “Fads and Fashion in Economic Reforms: Washington Consensus or Washington Confusion”, Third World Quarterly, 21:3 (2000) pp. 505-528. R. Jessop, The Future of the Capitalist State (Cambridge: Polity Press, 2002) pp. 126-140. J. G. Ruggie, “International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order”, in S. D. Krasner (ed.), International Regimes (Ithaca, NY: Cornell University Press, 1995), pp. 195-232. M. P. Ryan, Knowledge Diplomacy. Global Competition and the Politics of Intellectual Property (Washington D.C.: Brookings Institution, 1998); S. K. Sell, Private Power, Public Law. The Globalization of Intellectual Property Rights (Cambridge: Cambridge University Press, 2003). P. N. Agarwala, The New International Economic Order. An Overview (New York: Pergamon Press, 1983); E. A. Brett, The World Economy since the War: The Politics of Uneven Development (Houndmills: MacMillan, 1985). Agarwala, The New International...., op. cit., p. viii. S. Carter, “Owning What Doesn”t Exist”, Harvard Journal of Law and Public Policy, 13:1 (1990) p. 2. R. Kaplinsky, “Industrial and Intellectual Property Rights in the Uruguay Round and Beyond”, Journal of Development Studies, 25:3 (1989) p. 375. Patents and protection of industrial design integrated circuits are limited in time. Copyright is granted for long periods. Trademarks, and geographical indications disappear when they fall into disuse: WIPO, WIPO Intellectual Property Handbook (Geneva: WIPO, 2001). B. Bouckaert, “What Is Property?”, Harvard Journal of Law and Public Policy, 13:3 (1990) pp. 775-816, argues that protection of intellectual property rights constitutes a too high level of government intervention and the protection could be realised by guaranteeing contracts among market actors. S. K. Sell, Power and Ideas. North-South Politics of Intellectual Property and Antitrust (New York: State University of New York Press, 1998), pp. 66-77. For a history of intellectual property rights, see S. K. Sell and C. May, “Moments in Law: Contestation and Settlement in the History of Intellectual Property”, Review of International Political Economy, 8: 3 (2001) pp. 467-500. A. Dunkel, Trade Policies for a Better Future : The “Leutwiler Report”, the GATT and the Uruguay Round (Nijhoff: Dordrecht, 1987), pp. 18-19.

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25. O. Granstand, The Economics and Management of Intellectual Property.Towards Intellectual Capitalism (Cheltenham: Edward Elgar, 1999), p. 4-8. 26. J. Croome, Reshaping the World Trading System. A History of the Uruguay Round (Geneva: World Trade Organisation, 1995); A. Otten, “Improving the Playing Field for Exports: The Agreements on Intellectual Property, Investment Measures and Government Procurement”, in T. Cottier (ed.), GATT-Uruguay Round (Bern: Verlag Stämpfli + Cie AG, 1995); H. Paemen and A. Bensch, Du GATT à l’ OMC : La Communauté Européenne dans l’Uruguay Round (Leuven: Leuven University Press, 1995). 27. Extreme neoliberals, like Bouckaert, are horrified by the degree of state intervention that is necessary to create and protect intellectual property rights (see Bouckaert, “What is Property”, op. cit. ). 28. Patent Cooperation Treaty (1970), International Convention for the Protection of New Plant Varieties (UPOV Convention, 1971), Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes of Patent Protection (1977), Agreement on the International Deposit of Industrial Design (1925), International Convention on Protection of Performers, Producers of Phonograms and Broadcasting Organizations (1961), Convention for the Protection of Producers of Phonograms against Unauthorised Duplication of their Phonograms (1971), Agreement concerning the International Registration of Marks (1891). Universal Copyright Convention (1952) administered by UNESCO. (Ryan, Knowledge Diplomacy, op. cit.; WIPO, Intellectual Property Handbook, op. cit.). A complete overview in MTN.GNG/NG11/W/13, 2 September 1987. 29. WIPO, Handbook, op. cit. p. 4. 30. Sell, Power and Ideas, op. cit. 31. See D. Gervais, The TRIPS Agreement. Drafting History and Analysis (London: Sweet & Maxwell, 1998). 32. To bring the GATT quickly into force a Protocol of Provisional Application was adopted: WTO, The World Trade Organization. A Training Package (WTO, 2004, orig. published 1998), p. 5; protocol in W. Hummer and F. Weiss, Vom GATT ‘47 zur WTO’94. Dokumente zur alten und zur Neuen Welthandelsordnung. (Wien: Nomos Verlaggesellschaft, Verlag Österreich & Schultess Polygraphischer Verlag, 1997), pp. 6-7. 33. The Havana Charter was never ratified by its signatories. 34. B. Hoekman and M. Kostecki, The Political Economy of the World Trading System. From GATT to WTO (Oxford: Oxford University Press, 1995), pp. 12-15; S. Woolcock, “The Multilateral Trading System into the New Millennium”, in B. Hocking and S. McGuire (eds), Trade Politics : International, Domestic and Regional Perspectives (London: Routledge, 1999), p. 27. 35. The WTO secretariat gives the whole list of agreements, understandings and decisions on www.wto.org/english/docs_e/legal_e/final_e.htm 36. Hoekman and Kostecki, World Trading system…, op. cit. , Annex 1. 37. R. Z. Lawrence, “Regionalism, Multilateralism and Deeper Integration: Changing Paradigms for Developing Countries”, in M. R. Mendoza, P. Low and B. Kotschwar

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38. 39. 40. 41. 42. 43. 44. 45.

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(eds.) Trade Rules in the Making. Challenges in Regional and Multilateral Negotiations (Washington D.C.: Organization of American States & Brooking Institution Press, 1999); UNCTAD, Handbook on Special Provisions for Least Developed Countries (under the Schemes of E.C., Japan, U.S., Canada) (UNCTAD, 2001). The exception was the protectionist Multifibre Agreement. J. H. Jackson, The World Trading System (Cambridge Massachusetts: The MIT Press, 1989), chapter 10; B. E. Moon, Dilemmas of International Trade (Boulder, Col.: Westview Press, 2000). B. Hocking, “Introduction. Trade Politics: Environments, Agendas and Processes”, in: B. Hocking and S. McGuire (eds), Trade Politics : International, Domestic and Regional Perspectives (London: Routledge, 1999), pp. 7-8. S. Golt, The GATT Negotiations 1986-90: Origins, Issues & Prospects (London: British-North American Committee, 1988), p. 42. Otten, “Improving...”, op. cit., p. 7. Not all developing countries opposed stronger intellectual property protection. Even India, which opposed the TRIPS vehemently, had its film industry and its interests to consider. The procès verbaux of these negotiations are included in MTN.GNG/NG11 and MTN.GNG/TRIPS. In addition to the formal negotiations, informal sessions took place. Hoekman and Kostecki, The Political Economy..., op. cit., chapter 2. Ibid., chapter 6; Otten, op. cit., pp. 73-74. The period has recently been extended for least-developed countries.

CHAPTER 7 OUTSOURCING JUSTICE: A NEW INTERNATIONAL ORTHODOXY? NOEMI GAL-OR Introduction The neo-liberal consensus of the 1990s, presaged by decades of intergovernmentalism, and tailed by millennial and centennial apocalyptic apprehensions, together have propelled a tsunami of studies we might categorise under the heading of “soul searching humanity”.1 Scattered over many disciplines and focusing on different aspects of society, politics, culture and the economy, these studies share the urge for certainty but even more so reassurance, in a time of turbulent change. If constructing this knowledge is likened to an onion, then this chapter belongs to the part of the onion’s skin representing the interface between justice, law, and governance. It focuses on the role of alternative dispute resolution (ADR) in commercial and trade matters in the context of regional market integration and global trade liberalisation institutions. The underlying proposition, which I have already introduced in earlier research,2 addresses the contours of “benefit” from regional and global market integration. I argue that this benefit encompasses vital questions of justice; that lack of universal access to justice at these levels amounts concurrently to a non-tariff barrier (NTB) to trade, and a “trade barrier to justice” (TBJ). Universal access to justice has been tinkered with by shifting the previously reasonably well established delineations in international law between public and private. The practice whereby private international law facilitated by international commercial and trade ADR (chiefly arbitration) has been permeating into public international law and has produced a privatised legal enclave—and has resulted in a new international orthodoxy. In this chapter, I will illustrate how the New Orthodoxy has been institutionalised into a convention taken for granted in the dispute resolution law governing regional and international market liberalisation. I will specifically focus on processes of institutionalising legitimacy as a pre-requisite for the development of an orthodoxy. I will then outline the methodological and theoretical approaches I use to assess (in the following section) the legitimacy of some aspects of the dispute resolution mechanisms as articulated in the NAFTA

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Chapter 11, the WTO Appellate Body (AB), and bilateral investment treaties (BITs). I conclude with an evaluation of the legitimacy of the New Orthodoxy.

Orthodoxy, Legitimacy, and Institutionalisation Orthodoxy, legitimacy, and institutionalisation are concepts intricately interconnected and intimately relevant to the establishment of any order, whether fair or unfair. The Shorter Oxford Dictionary defines “orthodox” as “2. of opinions or doctrines: Right, correct, true, in accordance with what is authoritatively established as the true view or right practice; … 3. Conventional; approved …”. Orthodoxy thus means “the quality or character of being orthodox; belief in or agreement with what is, or is currently held to be, right”. Legitimacy stands for “the condition of being in accordance with law or principle …. Conformity to rule or principle or [Logic] to sound reasoning”. Legitimacy is therefore the qualitative essence of orthodoxy; without legitimacy an opinion or doctrine cannot develop into an orthodoxy. Institutionalisation represents the process whereby formal institutions and democratic procedures acquire both value in the eyes of the population and stability to withstand pressure.3 Institutionalisation is hence the vehicle by which an opinion or doctrine gains legitimacy. Orthodoxy is then the outcome of bringing the opinion and legitimacy together through the mediation of institutionalisation. Another way of looking at orthodoxy, legitimacy, and institutionalisation is to perceive them as being in the service of law and order, when joined in the institutionalised regulation or resolution of conflict.4 Institutionalised conflict regulation prevails when actors have internalised common rules to govern the conflict. When faced with change, and when rules are externalised, e.g. by the introduction of new NAFTA-made conflict resolution mechanisms for investors, by establishing a final appeal instance such as the WTO AB, or by the proliferating BITs, re-internalisation becomes indispensable.5 Out of reinternalisation, facilitated by institutionalisation, a new orthodoxy arises, provided that the process allows legitimacy to establish itself. Franck’s analysis of fairness is pertinent here. In the socio-philosophical discourse, legitimacy represents the procedural aspect, and a necessary condition, of fairness, “for it accommodates a deeply felt popular belief that for a system of rules to be fair”, formal requirements of rule making, rule-interpretation, and rule-application must be satisfied.6 It is important to distinguish it from the substantive aspect of fairness, referred to as distributive justice and representing the condition where burdens and entitlements are shared in a way that encourages voluntary compliance. Legitimacy—as the condition of being in accordance with law or principle—

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facilitates the reconciliation of moderate scarcity by reciprocity and reasonableness. If we break it down further, legitimacy accomplishes this feat by means of four indicators7: x Determinacy, i.e. clarity and transparency through the language of the law necessary to communicate the law’s essential meaning; x symbolic validation, i.e. reinforcement of the conformity by signalling that authority is institutionally recognised and confirmed; x coherence, i.e. generality of the rule evidencing its sound reasoning and explaining why a rule compels; and x adherence, i.e. the connection between primary and secondary rules, the jus cogens of “peremptory norms” where rules are validated or invalidated by other rules. Depending upon the discursive context, legitimacy may be “operationalised” into different, albeit complementary, indicators by which the condition of legitimacy can be “empirically” ascertained. Thus, for Corten and Delcourt, legitimacy arises in the context of the study of the “new world order” and the nexus between law and foreign policy regarding security decisions and humanitarian action. Legitimacy is discussed as legitimisation, consisting of two processes effecting the condition and the recognition of legitimacy.8 It is a process central to political analysis and arising within three politically relevant discourses – the justifying, argumentative, and power discourse—each of which is colouring legitimacy with a distinctive nuance. The justifying discourse may consist of a ploy in which the true intentions or motivations of the persuading party remain hidden. The argumentative discourse is focused on persuasion, and the power discourse is designed to bolster the two preceding variations by implication of an already prevailing legitimacy. Thus, the process represents an ensemble of discourses, which together culminate into effecting legitimacy. If considered from this perspective, the presentation of reality is more important than reality itself. Consequently, it could be argued, that the indicators of legitimacy identified by Franck can be “manipulated” in the process described by Corten and Delcourt, to accommodate different audiences.9 In an earlier paper, I have already applied the triangular discursive linkage of justifying, arguing, and power (symbolic capital) to an explanation of the rise of trade and commercial ADR in trade liberalisation regimes.10 Considered from this angle, the politics of the process of legitimisation/institutionalisation have already been exposed. In the present chapter, I choose to center on Franck’s indicators of legitimacy in order to insulate the analysis from the motivation and interests in promoting ADR. A new legal orthodoxy, I argue here, is being entrenched in international trade relations. It is epitomised by the privatisation

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(outsourcing) of dispute resolution mechanisms within public international law. Measuring the new rules against Franck’s indicators of legitimacy, reveals a fundamental contradiction with basic tenets of public international law—clearly a condition of illegitimacy. In the next section, I will explore the institutionalisation process leading to this paradoxical result.

Institutionalisation: Phases and Routes International trade and commercial dispute resolution mechanisms can be studied as social, political, cultural, economic, or legal phenomena. Through the intermediary of institutionalisation, they will acquire (or lose) aspects of their legitimacy as coordinates of these particular spheres. The chronological distinction of phases in the process of legitimisation, namely that “there is (a) pre-positive law as universally recognized by society; (b) positive law as established by the political instances; (c) post-positive law as the sphere from which politicians justify their legislation”, is of assistance here.11 In general terms, in the process of globalisation, the first “pre-positive law” refers to the socio-economic mindset of celebrating private property and economic growth. Although the process of institutionalising this mindset is material to the legitimization of international trade and commercial dispute resolution mechanisms, I will defer this discussion for another time. In this chapter, I will address the institutionalisation process of phases (b) and (c) only. In phase (b), political authorities assume the role of the institutionalising agent. The political authorities represent the state in negotiating, drafting, and concluding international inter-governmental and state-to-private party agreements. They directly engage in organisation-building and regime-building. Phase (c) represents the entire spectrum of reactions to, and discourse arising from, phase (b) ranging from government, non-government, judicial, scholarly, to public opinion. I will address a few of the issues relevant to both phases. The process of institutionalisation traverses two main routes: Organisationbuilding and regime-building. Organisation-building centres on the setting up of structures and their operating procedures; regime-building focuses on the essence to be administered by the structures and operating procedures, i.e. on the subject matter of rule-making, on legislation. Both are necessarily complementary and inter-connected; there are no rules without bodies to create and enforce them, and there are no organisations that can survive lawlessness. Organisation-building and regime-building represent change, whether revolutionary or reformative. Essential to the successful completion of the institutionalisation process is the condition of irreversibility, which of course, is temporal by definition.

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The Process of Institutionalisation of the New Orthodoxy Generally speaking, the New Orthodoxy is a doctrine of international trade liberalisation, according to which the practice of ADR in private domestic and international law is, and should be, transposed into, and adopted within, public international law. This doctrine has worked to carve out a privatised legal enclave within public international law. I will address the following instances of the New Orthodoxy: the NAFTA Investor Chapter Eleven, the WTO AB, and BITs based on the US BIT model, and elaborate the process of institutionalisation (phases b and/or c) in them. Organisation-Building: The Private-Public Dimension in the WTO—the Political Aspect From a theoretical realist, and a formal legalist, perspective, the intergovernmental organisation is state-created and depends on state co-operation (whether voluntary or deliberate or other).12 As such, it represents an extension of the state. One would therefore expect entities such as the WTO, intergovernmental BITs, and the NAFTA (the latter two are not organisations per se but contain structural organisational characteristics in their agreements) to follow the conventional logic of state-based international organisations. That this assumption is misleading is mostly evident in the area of foreign direct investment (FDI), where international organisations have played an important role in adopting, and consequently participating in, the legitimisation of extra-judicial (i.e. court-like) practices (even if these practises were originally intended to facilitate negotiations rather than arbiter disputes).13 The ADR mechanism offers a reasonable choice between various means ranging from informal negotiated settlements all the way through to arbitration; and while the ‘softer” instruments, e.g. consultation, facilitation and conciliation mesh easily within the logic of public international law, it is the recent developments in arbitration which mark the deviation from the paradigm. Albeit indirectly, this trend is being recognised even by the United Nations (UN) (an intergovernmental organisation). As a United Nations Conference on Trade and Development (UNCTAD) publication suggests: An extensive network of bilateral investment promotion and protection treaties has come into existence. They are highly standardized, yet they appear to be capable of adapting to special circumstances. … Regional and plurilateral international arrangements, while binding on a limited number of countries in each case, are increasingly important in matters FDI. They help to change pre-

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Students of international relations have been detecting a bifurcation of transnational regimes into public and private spheres, and have largely focused on the influence exerted by the private sector’s established private authority over the public authority. Some have concluded that “private authority does not necessarily undermine the role of governments—the latter, are at least in principle, able to reverse this form of authority allocation”.15 The reversibility option is suspect for, according to my argument, governments have wilfully subscribed to norms and standards developed to facilitate the functioning of the private authority. This voluntary submission has resulted in a deflection from the once much clearer distinction between the private and public realms of international law. The sidetracking manifests itself differently in the case of the WTO (a plurilateral organisation) when compared with the NAFTA (a regional agreement), and BITs. Representing a global multilateral trade framework, the GATT dispute settlement mechanism successfully rivalled the International Court of Justice (ICJ) and other international dispute resolution mechanisms.16 The WTO, which extended its Dispute Settlement Understanding (DSU) also to the GATT sectors, formally continues to retain the basic formula for dispute resolution within the realm of public international law: it is a state-to-state matter, as the agreement excludes non-states actors (NSAs) from the immediate reach of this mechanism. As a subject of international law and legal person, the state is free to enter agreements whether they be similar to, or different from, contracts in private law. Arbitration, which represents a more flexible form of adjudication, and which originates in the private law of contract, is hence a legitimate recourse. Therefore, the blurring of boundaries between private and public law arises precisely at the moment when arbitration begins to shed off extra-judicial procedural and competence characteristics, and assumes court-like abilities. Then, the paradigm starts to shift: arbitration, which originates in the private realm, is not simply adopted as an alternative tool in the public sphere; it permeates the underpinnings of the public sphere. This is exactly the course embarked on by the drafters of the WTO DSU AB. Investing the AB with powers as a final instance of appeal heralds two significant developments: (a) The empowerment of a public extra-judicial body with court-like judicial competences, yet without securing procedures that are necessary for, and correspond to, such an institution (e.g. the selection of arbitrators who become

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de facto judges, the development of rules of evidence, etc.); and (b) the weakening of an available international judicial institution, namely the ICJ, on the one hand, and the national court, on the other. If measured against Franck’s legitimacy indicators, the ICJ, which is tailored according to the raison d’état of state sovereignty, represents a model closest to the domestic judiciary state authority. It is reasonable to expect for both courts—international and national—that determinacy, i.e. clarity and transparency in the language of the law, be satisfied thanks to the judges” professionalism in rendering adjudicative decisions. They represents the most, and perhaps only,17 authoritative interpreter of the law. Symbolic validation, i.e. reinforcement of legitimacy by signalling that authority is institutionally recognised and confirmed, almost automatically emanates from the fact that the decisions are rendered by judges recognised as the highest judicial authority available, subject to a hierarchy in authority, not only domestically but also internationally. An arbitral tribunal under an appeal court’s cloak cannot guarantee these legitimacy conditions. The Justificatory Aspect The paradox of an ADR mechanism aspiring to become a jurisdictional forum had not escaped the government of Canada, which identified several WTO DSU key issues requiring improvement. In its communiqués, Canada recommends enhancing panel professionalism, efficiency in the dispute settlement process, and transparency as pertinent issues meriting improvement.18 For instance, the DSU stipulates that the AB comprise of “persons of recognised authority”,19 while contending with panel members who are “well-qualified governmental or non-governmental individuals”.20 This in itself represents an inconsistency detrimental to the coherence of the adjudicative process as well as to adherence. The efficiency of the DSU is compromised where the AB refuses to rule on certain issues due to absence on the record of sufficient findings by the panel. Such refusal may leave a complainant without a resolution of the dispute, and require the re-commencing of an entirely new set of proceedings. “Canada therefore supports proposed amendments to the DSU that would provide the Appellate Body with the authority to refer factual or legal issues back to the original panel to address issues not covered earlier or to re-examine factual findings.”21 In other words, re-modelling based on the national court practice (the re-trial) will assist in circumscribing the legal conundrum arising out of the finality of the arbitral appeal award. To be sure, a direct correlate to securing the cohesion and teleology of suggestions for efficiency improvements, is the assurance of authoritative professionalism - also of the panellists and not the AB members alone. Hence,

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Canada agrees with many of the observations made by the European Communities …, including the … insufficient number of qualified panelists. … Panellists are to be selected with a view to ensuring the independence of those serving on a panel, a sufficiently diverse background and wide spectrum of experience. … The qualifications for panelists should be no less stringent than those for Appellate Body Members.22

The proposals for increased transparency are explicitly linked to legitimacy: transparency is requisite to “reinforce the legitimacy of WTO dispute settlement”.23 In an effort to reconcile the logic of ADR proceedings with legitimacy concerns arising from the public domain (governments being accountable to the public, not to private interests), Canada distinguishes between the diplomatic and the legal process. The argument advanced is that unlike other ADR mechanisms (e.g. consultation, good offices, conciliation), The rationale for keeping consultations confidential does not apply to panel or Appellate Body proceedings. Members do not engage in negotiations at panel and Appellate Body meetings. Likewise, Members do not negotiate with one another through their written submissions to panels and the Appellate Body.24

The upshot of the above proposals of amendment to the DSU is the following. First, presumably, adjustments at the bottom of the hierarchy (the panels) is expected to effect commensurate modification at the upper level so as to align the entire ADR mechanism. Second, short of a better solution to reconciling the paradox inherent in the DSU, introducing reforms that, in fact, will bring the WTO DSU panels closer to an administrative tribunal, and remodel the AB closer to a court of justice, seem inevitable in order to mobilise public approval, i.e. legitimacy. Implicitly, this reflects a recognition that by placing the WTO AB as an authority of appeal from the DSU panels, and by declaring its decisions as final, the DSU created an untenable legal androgynous entity made up of an ADR mechanism cum court of justice competence.25 Organisation-Building: The Private-Public Dimension in NAFTA and BITs—the Political Aspect Both the NAFTA Chapter 11 and international investment agreements (IIAs)26 represent a situation different from the WTO. Their provisions cross the demarcation line between private and public international law by de facto recognising a particular private legal person, namely the investor, as subject of international law, equal to the state, for the purposes of the resolution of

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investment disputes arising between a private party and a state. NAFTA, which is a treaty establishing a regional free trade zone, and which provides for minimal organisational structures, creates an international private-public legal hybrid of a sort entirely different from the WTO’s. BITs, specifically designed to deal with investment, which is normally offered by a private party to a host country, have become standard practice, particularly against the backdrop of the 1965 Convention on the Settlement of Investment Disputes between States and Nationals of other States. Similar to NAFTA, BITs lack institutional structures.27 However, both NAFTA and the BITs have contributed to the development of, at least, a new mindset regarding international law: they have made the insertion of private party-state dispute resolution a standard provision in the drafting of inter-governmental agreements. Because this private-public legal amalgam manifests itself in regime-building rather than in organisationbuilding, I will address it in the next section. Regime-Building: The Private-Public Dimension in the WTO, NAFTA and BITs—the Political Aspect Riesman, who studies systems of control in international adjudication and arbitration, points to a habit in international law where the distinction between inter-state public international tribunals on the one hand, and inter-NSAs international commercial tribunals on the other hand, is getting blurred: “The great public international tribunals have often served as models for private developments and vice versa. Thus, there has been a certain amount of interstimulation in which the experiences of one are shared and sometimes transferred to another.”28 As discussed above, while applying to the organisation-building aspect of legitimacy, e.g. the WTO AB’s evolution in direction of a final appeal court, the observation of a process of inter-stimulation holds even stronger in regards to the regime-building facet of institutionalisation. The mutual fertilisation between the arbitration realm and that of national and international courts, as well as the tenor of the scholarly discourse, have been charting the course for rule interpretation, and hence indirectly of rule making; they are affecting the role played by the judiciary bodies in legitimising the New Orthodoxy. Lex mercatoria, i.e. law merchant, represents the body of law dealing with commerce, which has been developing chiefly in the area of private international law. It has been nurtured by two worlds: private and public international law on the one hand, and the commercial “code” created by agencies such as the International Chamber of Commerce (ICC), on the other hand.29 To be sure, in the process of inter-stimulation between public and private international law, the international legislative process of developing the

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lex mercatoria has come to nourish also the ADR regime of state-based trade liberalisation with new international legal substance. Among the factors distinguishing law interpretation by international courts and commercial arbitration tribunals from domestic courts is the doctrine of stare decisis. Unlike the latter, the former are not institutionally required to cite or to found their judgments/awards in their previous or other courts”/tribunals” holdings. Consequently, their awards do not fall within the doctrine of stare decisis governing the domestic judiciary. In practice, however, to secure consistent interpretation of the law, the legal precedent by definition, “performs a special, if latent control function in international adjudication”,30 and eventually in the development of international law. Accordingly, a body of soft law gets transformed into a body of hard law; a body of law designed to address private concerns and interests is instructing public international law, intended to address state interests; which in turn speaks to the public, not private, good. In this “merry-go-round” a New Orthodoxy is established (even where it runs counter to international public law). Like Riesman, others as well have found that while not binding, stare decisis is an implicit fact in arbitration. For instance, investment treaties, e.g. BITs, have incorporated substantive trade provisions developed in the course of a century of international arbitration, and more specifically, decisions by the NAFTA tribunals may be considered as persuasive authority in subsequent cases.31 To be sure, such observations reflect the fact that no justice system can escape the need for predictability of the court’s or tribunal’s behaviour, which ultimately, is a constituent factor of legitimacy. Predictability is best served by two of the legitimacy indicators. Coherence represents the generality of the rule by evidencing a principled approach (sometimes inconsistent but never capricious), and explaining why a rule compels. Adherence assures the connection between primary and secondary rules, the jus cogens of “peremptory norms” where rules are validated or invalidated by other rules. The paradox of rejecting stare decisis but at the same time requiring predictability for the sake of legitimacy, “appears to be bedevilling … certain international commercial tribunals with regard to party-designated law, the latter through the device of the so-called lex mercatoria.”32 Arbitral awards arising out of lex mercatoria, represented in decisions rendered by the WTO AB as well as, e.g. the NAFTA Chapter 11 arbitration tribunals, have come to operate as de facto sources of international law. Such development has been facilitated largely by two factors. For one, organisationbuilding operates as a factor by which, for instance, the creation of a WTO final appellate body with competences, and incrementally procedures, reminiscent of an appeal court’s, is contributing to an air of authority necessary for the creation of a legal regime.

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At another level, an arbitral stare decisis arises out of not only organisationbuilding, but as in the case of the NAFTA, from the process of judicial oversight.33 In other words, the position taken by domestic courts to which arbitral awards are appealed for want of arbitral jurisdiction, reflects an avenue for the institutionalisation and subsequent legitimisation of rules of private international law within public international law. The NAFTA Ch. 11 arbitral award in Metalclad is a case in point. It is the only NAFTA award so far to have been appealed to a NAFTA domestic court (Canada). It suggests a pattern of “cautious” court deference to a tribunal’s jurisdiction typical to arbitral-awardsreviewing-courts of findings that the tribunal did not exceed its jurisdiction.34 In Metalclad, Justice Tysoe sent a message to courts to keep out of the “other” justice system, i.e. the arbitral one founded in a separate teleology of justice. At least by default (absent court reasoning), the judiciary is thus letting the arbitral tribunal to develop new international law. Yet another inconsistency affecting the legitimacy of the incorporation of private international law ADR within inter-governmental treaties relates to the arbitrator’s source of adjudication. It is the contract between the private parties, which stipulates the arbitral jurisdiction and limits the arbitrator to do only that which is authorised by the parties: arbiter nihil extra compromissum facere potest.35 In the WTO dispute resolution mechanisms, this principle is being upheld for the DSU which governs only state-to-state disputes. However, both BITs (and larger IIAs) and the NAFTA have introduced a new “practice” (contrary to ADR’s intrinsic logic itself) of “arbitration without privity”. In this arrangement, the state sets the terms governing the claimant, but the claimant— an NSA—is not party to the agreement. Moreover, it is mostly impossible to evaluate the impact that this development (must undoubtedly) has on the “international legislative” process for most BITs disputes have remained confidential.36 The extent to which the practice can be considered a source of arbitral jurisdiction underpinning Chapter 11 and similar BITs provisions, is therefore unclear. A further teleological complication arises from the dilemma whether arbitration in state-to-private-party disputes should be governed strictly by the treaty, e.g. NAFTA law, or by lex arbitri as customary in state-to-state trade disputes.37 In S.D. Myers. v. Government of Canada, a NAFTA (partial) award from 2000, the arbitration tribunal, faced with the absence of NAFTA guidelines on compensation, chose to turn to international law. However, since an arbitration tribunal is restricted to interpret the “contract”, and lacks jurisdiction on issues which are beyond the purview of the “contract”, the government of Canada asked the Federal Court to set aside the award based on jurisdictional excess (and conflict with Canada’s public policy).38 Indeed, as most Chapter 11 cases have raised at least some sort of jurisdictional objection, a clarification of

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this dilemma will require addressing also the legal principles created by the jurisprudence of lex mercatoria.39 Evidence for lack of predictability caused by the New Orthodoxy is to be found in the fact that the NAFTA Free Trade Commission saw itself required to issue a joint interpretive statement to clarify main aspects of the Chapter 11 process (including transparency) for the purposes of future arbitrations.40 The Justificatory Aspect It is not a secret that the institutionalisation of new international norms has been a product of collaboration between the private and public sectors where NSAs (mostly multinational corporations and civil society non-governmental organisations) have been playing an important role.41 On the public side, governments have taken pain in explaining the re-institutionalisation of norms, which previously would not have been accepted, by highlighting the material benefit supposedly accruing to all. A case in point is the outburst of diplomatic exclamations that has crescendoed at the occasion of the tenth anniversary of the NAFTA. Declarations as to “NAFTA at Ten: A Success Story” surfaced already a year earlier, leading to the celebration of NAFTA’s anniversary. According to former Mexican President Carlos Salinas, “almost all jobs created in Mexico between 1995 and 2000 came from activities linked to exports and the associated investment”.42 Moreover, the gains from the NAFTA, suggested former Canadian Prime Minister, Brian Mulroney, created an “obligation [on the NAFTA partners] to spread the benefits of free trade to the hemisphere’s 34 democratic nations”, thus preparing the ground for a second round of broadening the scope of re-institutionalisation of the new norms.43 The tone was magnifying throughout 2003, however not without addressing the areas sensitive to criticism. At the NAFTA Commission meeting in Canada, then Canadian Minister of International Trade, Pierre Pettigrew, reinforced the legitimacy of the NAFTA stating that to further improve the transparency and efficiency of the [sic] Chapter 11, the investment dispute settlement process, the three ministers approved guidelines for submissions from non-disputing parties and a standard form for notices of intent to submit a claim… so ministers also directed officials to continue seeking ways to improve implementation of the investment chapter. 44

Yet while the three foreign ministers emphasised the commitment to a legitimate investment chapter by recounting the consultation process with an NSA (the Investment Experts Group (IEG)) as “much of the work that led to the IEG’s recommendations was informed by input from the stakeholders”,45 a

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Canadian government discussion forum setting a 2003 research agenda on the NAFTA remained mute with regard to ADR.46 Interestingly, it was the Canadian Bar Association periodical that featured an article reflecting the perplexing effect of the new norm which allows a private claimant to elevate itself to the international level and essentially step into the shoes of its government to argue an international law claim—an unprecedented development in international law. [… also] when signing these kinds of treaties in the past, Canada and the U.S. wouldn’t normally have expected to be sued by investors from other countries because the investment flows were generally going one way, [… and] the fact that private corporations of all sizes have access to such a high-level process is a new and fascinating twist on the concept of bilateral investment treaties. … “It’s just like at the World Trade Organization, where everything gets appealed.” … Cases being decided in North America have major implications globally. “You could almost call the NAFTA the epicentre of investor-state arbitration in the world. … When it’s early days and you see the law emerging, it’s quite exciting.”47

When shifting to move to the other extreme of the spectrum of institutionalisation by political justification, one finds explicit criticism challenging the principal and general tenets of globalisation, regionalism, and trade liberalisation, indirectly embracing also the NAFTA Chapter 11, BITs ADR provisions, and the WTO AB regime-building. Joseph Stiglitz not only criticises but also cautions that “if we don’t learn from our mistakes, for which the private sector and the government both bear responsibility, we may not be so lucky next time.”48 The literature about labour and environment has for long been most conspicuous in setting hurdles to the institutionalisation of legitimacy. And in the ripple effect created by this polyphony, the most recent Australia-US Free Trade Agreement (AUSFTA) emerges as setting a precedent by fact of lack of investor-state dispute mechanism.49 Well then, is the New Orthodoxy reaching the beginning of its end?

An Interim Conclusion While institutionalisation may be irreversible because the newly legitimate norms will never completely reverse themselves to the preceding stage, institutionalisation is of temporal quality. With any re-institutionalisation, a new orthodoxy emerges. In this chapter, I have examined part of the role of institutionalisation in legitimising the legal status of international trade and commercial arbitration, culminating in a New Orthodoxy.

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My study has sought to show that the WTO AB, with final jurisdiction, largely emulates the characteristics of a national court of appeal instance, although the legal foundations of the WTO AB do not support endowment with such competencies. Thus, the WTO AB fails to conform to the legitimacy indicators, but to expect a reversal back to, for instance, the GATT procedure is unrealistic. The new wisdom therefore consists in the initiative, already underway, to legitimise the WTO AB by turning it into an institution even closer to a court of justice. This, it must be admitted, is bolstering the New Orthodoxy. Irrelevant to organisation-building but significant as precedent setting for regime-building, an examination of the NAFTA Chapter 11 and BITs (most of which have replicated NAFTA Chapter 11) also reveals an aberration from the presumed legitimating authority imputed to their quasi-legislative impact. In response to criticism, the NAFTA Commission has stepped in to correct the course. While softening the privatisation of public international law, the phenomenon remains the same in principle, and is being carried on to the FTAA. The AUSFTA might however be an early warning for the limits of the New Orthodoxy. 1. Several sections of this paper are drawn from the following texts: “Private vs. Public International Justice: The Role of ADR in Global and Regional Economic Treaties”, in R.C. Thomsen and N.L. Hale (eds.), Canadian Environments: Essays in Culture, Politics and History, Vol. 2 (Bruxelles: Peter Lang 2005), pp. 205-226, and “Outsourcing of Justice: Applying the Legitimacy Test of Fairness to the Institutionalisation of International Commercial Arbitration”, in J. Angermüller, D. Wiemann, R. Kollmorgen, and J. Meyer (eds.), Reflexive Representations: Discourse, Power, and Practice in Global Capitalism (Münster/London: Lit Verlag/Transaction Publ., 2004), pp. 127-138. 2. Ibid. 3. S.P. Huntington, Political Order in Changing Societies (New Haven: Yale University Press, 1968). 4. A. Siedschlag, “Institutionalization and Conflict Management in the New Europe – Path-Shaping for the better or Worse?” The XVIII World Congress of the International Political Science Association, 1-5 August 2000. 5. Three components are necessary to re-institutionalise conflict management: Welldefined general procedures of conflict management, reliable expectations based on well-defined actors and reciprocity, and typifying of the conflict according to types of actors, based on A. Siedschlag. These conditions have only partly materialised in the GATT/WTO and the NAFTA. 6. T.M. Franck, Fairness in International Law and Institutions (Oxford: Clarendon Press, 1995), p. 7. 7. Ibid., pp. 30-46. 8. O. Corten and B. Delcourt, “Droit, légitimation et politique extérieure: Précisions théoriques et méthodologiques” in O. Corten and B. Delcourt (eds.), Droit,

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9. 10. 11.

12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22.

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légitimation et politique extérieure : L’Europe et la guerre du Kosovo (Bruxelles: Bruylant, 2001), p. 23. Here, legitimacy is discussed as legitimisation and therefore, appears to overlap with institutionalisation, which nevertheless is of little significance regarding the “operationalisation” of legitimacy. Ibid., p. 28. Corten and Delcourt further elaborate on the legal, moral, and political registers of the legitimacy discourses, which are less material to this chapter. Gal-Or, “Private vs. Public International Justice...”, op. cit.. A.A. Boehmler and R. A. Dominguez, “Economics, Politics and Religion. A Philosophical Approach to Problems Facing Society.” Keynote address, “Managing Business in A Volatile Environment: Balancing Global Challenges,” The 8th International Conference on Global Business and Economic Development (Guadalajara, January 7-10, 2004, unpublished), p. 3 (my emphasis) Other perspectives, e.g. the broadly so-called pluralist perspective, are important largely in the context of Phases a and c of the institutionalisation process. I leave the study of the non-state actors and their role for another opportunity. J.H. Jackson, “Dispute Settlement and the WTO: Emerging Problems”, in WTO Secretariat (ed.) From GATT to the WTO: The Multilateral Trading System in the New Millennium (The Hague: Kluwer Law International, 2000). Trends in International Investment Agreements: An Overview. (Geneva: UNCTAD Series on issues in international investment agreements, United Nations Publications, 1999) pp. 2, 7 (my emphasis). See chapter by Andreas Nölke in this volume. Jackson, “Dispute Settlement…”, op. cit., p. 68. I will leave the discussion regarding the exclusivity of the court judge’s authority for a later date. Canada Department of Foreign Affairs and International Trade, “Update on Canada’s Participation in the WTO DSU Negotiations,” January 2003 (www.dfaitmaeci.gc.ca/tna-nac/update_wto-en.asp),1/3. Inventory of Dispute Settlement Mechanisms, Procedures and Legal Texts Established in Existing Trade and Integration Agreements, Treaties and Arrangements in the Hemisphere and in the WTO. Derestricted FTAA.ngds/w/08/Rev.4, February 7, 2000 (www.ftaa-alca.org/NGROUPS/ngds/ publications/dsw8r4e2.asp), p. 20 Ibid., p.17. “Update on Canada’s Participation…” op. cit. , 3/3. “Contribution of Canada to the Improvement of the WTO Dispute Settlement Understanding,” undated, Canada Department of Foreign Affairs and International Trade, (www.dfait-maeci.gc.ca/tna-nac/wto_dispute-en.asp,) pp. 3-4/16, my emphasis. See “Contribution From the EC and Its Member States to the Improvement and Clarification of the WTO Dispute Settlement Understanding,” 20 January 2003, European Commission, Directorate-General for Trade, Ref. 009/03-Rev2, which raises the issues of panelists” expertise, rules of conflict, and particularly the remand procedure—all of which suggest a more litigious and less compromise oriented process hence a shift closer to a court-like situation. For a general legal reasoning of

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23. 24. 25. 26. 27. 28. 29.

30. 31.

32. 33. 34.

35. 36. 37. 38.

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the WTO AB, see R. Behboodi, “Legal Reasoning and the International Law of Trade: The First Steps of the Appellate Body of the WTO”, in P. Mengozzi (ed.) International Trade Law on the 50th Anniversary of the Multilateral Trade System (Milano: Dott. A. Couffre Editore, 1999). “Contribution of Canada…” op. cit., 5/16. Ibid., 6/16 (my emphasis). J.L. Gelander, “Judicial Review in International Arbitral Awards: Preserving Independence in International Commercial Arbitration.” Marquette Law Review, 80 (1997), pp. 627, 642. Mostly BITs, about 1700, the majority of which have been concluded in the 1990s. (Trends in International Investment Agreements…, op. cit, p. 44). Ibid., p. 47. M.W. Riesman, Systems of Control in International Adjudication and Arbitration. Breakdown and Repair (Durham, NC: Duke University Press, 1992), p. 29. Mistelis refers to this as international legislation and international commercial custom, respectively. (L. Mistelis, “Is Harmonisation A Necessary Evil? The Future of Harmonisation and New Sources of International Trade Law,” in I. Fletcher, L. Mistelis, and M. Cremona (eds.), Foundations and Perspectives of International Trade Law (London: Sweet and Maxwell, 2001), p. 13. However, “international commercial custom” must not be confused with international customary law, which is a source of law of Westphalian statist foundations. Riesman, Systems…, op. cit., p. 31 (my emphasis). See, respectively, I.A. Laird, “NAFTA Chapter 11 Meets Chicken Little.” Chicago Journal of International Law, 2: 1 (2001), pp. 223-229, and A.K. Bjorklund, “Contract Without Privity: Sovereign Offer and Investor Acceptance.” Chicago Journal of International Law, 2: 1 (2001), pp. 183-191. Riesman, Systems…, op. cit., p. 34. The question of judicial oversight is mute in the case of the WTO for this organization has its own final instance – the WTO AB. C. Tollefson, “Metalclad v. United Mexican States revisited: Judicial Oversight of NAFTA’s Chapter Eleven investor-state claim process,” Minnesota Journal of Global Trade, 11: 2 (2002) pp. 183-231. Cf. United Mexican States v. Metalclad Corporation, May 2, 2001 BCSC 664, Docket: L002904, Registry: Vancouver, 1-30, (www.courts.gov.bc.ca/jdb-txt/SC/01/06/2001BCSC0664.htm). Riesman, Systems…, op. cit., p. 6. Bjorklund, “Contract Without Privity …” op. cit. Tollefson, “Metalclad v. United Mexican States…” op. cit. “Canada Seeks Application to Set Aside NAFTA Tribunal Award in S.D. Myers Arbitration,” February 8, 2001, Canada Department of Foreign Affairs and International Trade, (wwww.maeci.gc.ca/minpub/Publication.asp?FileSpec=/ Min_Pub_Docs/) The expedient argument that “Ch. 11 is a new remedy for investors to make claims against governments in their own names, rather than through traditional diplomatic

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40. 41. 42. 43.

44. 45.

46. 47. 48. 49.

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methods and politics” (Laird, “NAFTA Chapter 11..”, p. 224) is a political, not legal, argument. Tollefson, “Metalclad v. United Mexican States…” op. cit. See chapter by Andreas Nölke in this volume. Quoted in S. Miller, “Former Leaders Bush, Mulroney, Salinas Celebrate NAFTA Anniversary,” December 9, 2002, Washington File ( http://usinfo.state.gov/) p. 2. Mulroney quoted in ibid. (my emphasis). I discuss this aspect in “The “New Orthodoxy”: NAFTA Chapter Eleven and the Implications for the FTAA.” Prepared for “Trade and Investment in the Americas: The Challenge of Globalization”, CSWHT 9th Annual Conference, Texas A&M International University, Laredo, Texas, March 10-12, 2004, 26pp. “NAFTA Commission Meeting Press Conference,” October 8, 2003, Press Conference (www.dfait-maeci.gc.ca) “Text: NAFTA Partners Celebrate Tenth Anniversary of Trade Agreement.” October 8 2003 (www.dfait-maeci.gc.ca/tna-nac/stories-e.asp), 2/6. See also the “Report on NAFTA Chapter 11 Multi-stakeholder Consultations,” May 28, 2003, Further Opportunities (www.dfait-maeci.gc.ca/tna-nac/other/multistake-nafta-sn.asp) for a description of the actual process and outcomes of Chapter 11 consultations. “The North American Linkages Project: Focusing the Research Agenda.” Discussion Paper. Policy Research Initiative, March 2003 P. Ryan, “David vs. Goliath.” National, November 2002 ( www.cba.org) pp. 32, 33, 36 (my emphasis). J. Stiglitz, “The Roaring Nineties.” The Atlantic Online. October 2002 (www.theatlantic.com), p. 14. L.E. Peterson, “Negotiation Watch:” INVEST-SD: Investment Law and Policy Weekly News Bulletin, February 16, 2004 (www.iisd.org/investment), p. 5.

CHAPTER 8 INTERNATIONAL STANDARDISATION AND CORPORATE DEMOCRACY JEAN-CHRISTOPHE GRAZ Introduction This chapter1 explores the role of international standards in governing the world economy. There is a growing literature on how norms of behaviour explain rules of collective action. Here, however, my entry point in the debate will be standards as technical specifications used in production, consumption, and exchange. Wedged in between domestic voluntary measures and global rules, standards affect virtually every aspect of our daily life. Thousands of standards define the interoperability of computers, credit cards or mobile phones, but also the resistance of plate glass. Few people are familiar, however, with the struggles between consortia of multinational enterprises and state regulators for defining standards that allow economies of scale and market access across borders, or not. Current initiatives to develop international standards for funeral services, personal financial planning, healthcare and education, only highlight the manifold implications. The proliferation of standards is not so much an issue of (inter-) governmental versus non-state norm-setting practices; these have been found to be largely complementary and much less an area of conflict.2 International standardisation rather points towards an emerging model of “corporate democracy”. According to Heiskanen, corporate democracy departs from the Enlightenment ideal of popular sovereignty or universal citizenship, and represents a rupture with classical liberalism. Instead, “the participation of individuals in transnational governance is not viewed as a matter of universal, formal right, but as a consequence of an individual’s holding of certain contextspecific professional interests or concerns”.3 Standard-setting bodies are highly influential in this domain but provide only biased participation capabilities in this respect. They operate in the interstices between contractual relations and the mandatory rule of the law, remaining largely outside the purview of democratic institutions and therefore, liable to questions concerning their legitimacy.

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Current developments in this area are riddled with conflict. On the one hand, large multinational corporations aggressively lobby to limit the scope of standardisation to specifications conducive to economies of scale; on the other hand, most official standards bodies are rather inclined to expanding the public authority of standards by widening their scope. Rather than a public/private, or state/market divide, we are looking at a rift confronting the advocates of further socialisation of international standards (that is, bringing standard-setting bodies into a universal legal domain), and advocates of a commodification of technical standards (minimal sector and market-based standards, universally recognised). Four dimensions can be distinguished here. The first two map out the comprehensive topology of standard-setting organisations: one, on a continuum that runs from a market of private technology to public law; the other, on a continuum from natural and invariable physical measures (e.g., weights and measures), to constructed and historically specific societal values (e.g., health and safety measures). The two other dimensions concern the differentiated processes of standardisation once definition and content have been agreed, and organisational procedures and territorial competences involved in implementation, are at issue.

The Changing Context of Standardisation Standards refer to voluntary technical specifications explicitly documented and published for use in the organisation of production and exchange and, more broadly, for regulating the domestic and the international economy. Standards codify technical specifications regarding measurement, design, performances, or side effects of products, industrial processes, or services. It is more than two decades now since major developments began to take place in this domain. Previously, technical specifications were mainly confined to state regulations, corporate standards emanating from management decisions, or domestic standard-setting bodies. Today, technical specification has become, to a large extent, the outcome of voluntary standards developed in a set of public and private bodies at the global or regional level. At the regional level, the European Union is in the forefront of international standardisation.4 In 1985, Council Resolution 85/C 136/01 on a “New Approach” to technical harmonisation and standardisation has instigated a completely new regulatory technique and strategy. The resolution was a response to the growing role of the European Court of Justice in solving conflicting regulatory policies in the internal European market. It was also an early move towards the completion of the Single Market by devising procedures to avoid turning technical specifications into a structural impediment to trade. Although member states were wary about seeing regulation in this domain

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transferred to the European authorities, they did perceive the threat of a race to the bottom in public purpose standards as integration progressed. The New Approach provides a framework for the harmonisation of EU public law only on the general and essential requirements of goods and services traded on the European market, in particular in the field of health, environment, safety, and consumer protection. Depending on the sectors affected, technical specifications, performance criteria and quality requirements are either based on mutual recognition of national standards, or delegated to European standardsetting bodies such as CEN (Comité européen de normalisation), Cenelec (Comité européen de normalisation électrotechnique), and Etsi (European Telecommunications Standards Institute). In most sectors, the procedure for monitoring standards is a matter of business self-regulation, since products put on the market are granted a presumption of conformity through the sole declaration of the manufacturer (CE marking). Thus, the European New Approach has not only strengthened the importance of voluntary standards in the Single Market. By avoiding costly third party testing and certification, and providing the procedural means for a simultaneous adoption of European standards as international ones (through the so-called Dresden and Vienna Agreements), the EU has also won over third countries to its standardisation system. The (largely unintended) outcome has been a powerful strategic positioning of European standards in the global market.5 In contrast, standardisation in the United States hinges upon hundreds of private sectoral bodies, with public agencies involved when societal concerns or defence contracts are at issue. The recognition of standards is still largely made through the costly procedures of third party certification; manufacturers” declarations of conformity are only used in specific sectors.6 For decades, the prominent position of the United States in technological innovation granted de facto international acceptance for numerous standards developed and tested by these bodies. But for more than a decade, a widening rift has emerged between the United States and Europe on international standardisation. The controversy has erupted in a context of competing industrial policies, opposed legal systems, and disagreements on the respective role of private actors and public authority in standards development and implementation. No single international organisation encompasses all aspects of standardsetting. The International Organization for Standardization (ISO), the International Electrotechnical Commission (IEC), and the International Telecommunication Union, Section Standardization (ITU-T), are the three organisations that embody the universal potential of international standardisation most emphatically.7 ITU-T is a specialised agency of the United Nations system. Unlike other UN bodies, however, its membership not only includes states, but also private operators, manufacturers, regulatory bodies and

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other intergovernmental and non-governmental organisations in the field of telecommunication. ISO and IEC on the other hand have a membership of around 140 non-governmental national bodies “most representative of standardisation in their country”. Only one body in each country is eligible to membership. Thus there is a mixture of private and public bodies when it comes to official international standard organisations. Mixed private-public bodies have lately claimed a greater degree of autonomy through performance-oriented contractual relations with government ministries and by creating subsidiaries specialising in the most profitable activities. Recent statutory changes of the British Standards Institute (BSI), or the Association française de normalisation (Afnor) illustrate this trend. At the international level, the World Trade Organization (WTO) has given fresh impetus to the standardisation process. The entry into force of the WTO Technical Barriers to Trade (TBT) Agreement and the revision of the Sanitary and Phytosanitary Measures (SPS) Agreement in 1995 marked the formal devolution of power to international standards-setting organisations. Unlike the loose provisions regarding technical regulation of the old GATT, the TBT and SPS Agreements (and the same applies to certain provisions of the General Agreement on Trade and Services, GATS) give international standards a major role in harmonising the technical specifications of goods and services traded in the global market. In the manner of the European New Approach, state regulation in this domain must comply with “legitimate objectives”, such as health, safety and environmental concerns. The goal of removing “unnecessary” barriers to trade is to be pursued, where possible, by substituting domestic standards by international ones.8 To sum up, the European New Approach and the improved discipline of the WTO have worked to shift a large set of technical specifications hitherto in the domain of production, or covered by domestic public regulatory policies, to voluntary international standards. But who is in charge of defining international standards—and in which areas? Who assesses conformity to an agreed standard? In fact, as a recent World Bank study concludes, a host of private and public bodies decide “what can (or cannot) be exchanged, and outline the procedures under which such exchanges are or are not permissible”.9 The reason why standards epitomize an emerging model of corporate democracy, I would argue, is because they represent a hybrid form of power and authority in the global political economy, removed from established democratic institutions.

Conceptualising Standards Today there exists a well-developed literature on standardisation, written by academics and practitioners alike. Even so this literature remains “one-sided, as

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it mostly concentrates on standards battles and examples are mainly taken from information and communication technology”.10 From a political economy perspective, the question of standards is closely linked to the relationship between the drive for technical specifications and the institutional framework required to ensure some order in this area at the transnational level. As Mattli points out, “the literature on standards setting generally lacks a sustained theoretical argument to explain or assess institutional standards arrangements past or present”.11 Some neo-institutional approaches have tried to explain the nature of the relations between private actors involved in standardisation and the institutional environment in which their actions take place. Borrowing the concept of transaction costs from institutional economics, these studies consider how the practices of agents can be defined by their environments to a considerable extent. From this perspective, standardisation provides an institutional guarantee for improving trust in transactions and curbing free riding risks. Mattli and his co-authors are representative of a majority of studies relying on rational choice and game theories to formalise systematic explanations of cooperative games and conflicts of distribution in the institutional framework of standardisation. In this view, the logic of action trumps its content and the understanding of the power relations involved in standardisation is confined to quantifiable and a priori defined criteria.12 Other studies adopt a more critical perspective on the socially and historically constructed institutional frameworks of standardisation and their diversity across the globe. They provide an account of beliefs underpinning standards, democratic controls of so-called independent regulatory authorities, or conflicts of power in specific negotiations.13 Such analyses shed light, for instance, on the debate between the strongly institutionalised ISO and European systems, the more competitive pattern in the United States, and the oligopolistic nature of consortia agreements.14 Yet, they fail to recognise the structural nature of power relationships in the organisation of a capitalist world economy. The concept of structural power refers to material and discursive structures able to affect (intentionally and unintentionally) the practices of agents; hence those able to wield this power can modify the general environment for their own benefit.15 The structural power of standardisation epitomises one among several new forms of non-state authority that have evolved over the past decade in the global political economy. According to a recent OECD study, up to 80 percent of world trade is affected by standards or associated technical regulations.16 The scope of international standards not only pertains to their potential worldwide reach, but also to the whole range of conflicts emanating from the industrial system.17 Assessments of the relationship between standard-setting agencies and society

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as a whole are therefore bound to be controversial. Workers will look to standards to ensure a safer workplace (e.g., standards on machine safety or maximum noise pollution) or obtain quality guarantees on the wage goods they purchase; industrialists on the other hand will equate standards with market access, technological progress, and strategic competitive behaviour. Let us pursue this from a structural power perspective.

A Comprehensive Topology of Standards The topology of international standardisation begins with the subjects involved in defining standards and the distinction between the private and public spheres in which they operate. Market mechanisms and policy choices both affect the agents involved in the field, but they do so in various ways, which may be seen as located on an institutional continuum. Technical specifications belong to the private sphere of economic activities governed by market constraints, and affect social and technological change from that angle. Yet, they can also be related to the public sphere of political action directed to the general interest of society— for instance by determining a certain level of risk or by setting principles of liability. Hence, even in the circumscribed field of technical specification, norms relate as much to capital accumulation and technical progress as to social improvement or various instruments of the welfare state. When mandatory, enforceable and general, technical specifications are a matter of public law and enjoy the status of government regulation. Many environment, health and safety measures belong to this class of measures, such as the environmental and sanitary policy of the European Union based on the precautionary principle. Likewise, a whole battery of regulatory requirements in health and safety are part of the labour laws of the United States and other industrialised countries. Issues of labelling food packaging have become part and parcel of market regulation policies focused on consumers’ protection. In fact, all these regulations usually include voluntary standards in one way or another, as countries include or refer to them in their national regulatory framework. In such cases, technical specifications bring in standard-setting organisations into the regulatory arena. As we have seen, the institutional mix of public and private bodies involved in the official process of international standardisation varies considerably across the globe. But there is usually a privileged relationship with states. If we move further in the direction of the private domain, we come across strictly private organisations specialised in setting and providing standards. Here, standards are developed by bodies resembling industry and trade associations seeking to ease the burden associated with expanding the scale of their activities. Yet, many of the standards set by private collective agreement

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set the goalposts for government regulation as well. The complex web of private standards agencies in the United States, involving hundreds of sectoral bodies, is a key example. A dozen of these set more than 90 per cent of standards in the oil, automotive, and electro-technical industry and areas of application. Two key players stand out here: the American Society of Mechanical Engineers (ASME) and the American Society for Testing and Materials (ASTM). Further into the private sphere, de facto or consortium standards are marketbased to an even greater extent. These standards reflect the convergence towards an agreed technical specification that is openly accessible, yet developed by a restricted number of manufacturers who are the leaders in technological change in their industry. Until recently, they dealt primarily with the compatibility of components required for the development of new products (like CD-Rom or DVD), or with the modes of interoperability in the field of telecommunication and information technology (e.g. the TCP-IP protocol used for connecting computers into a single worldwide network). Of late, however, a range of initiatives have been taken to promote such standards with a much broader scope. Corporate social responsibility benchmarks are a case in point. Consortium standards involve collective action of a distinctly oligopolistic nature, which hence must be situated at the private end of the institutional continuum of standardisation, notwithstanding the tight imbrication with government industrial policy on certain strategic issues.18 When consortium standards relate to technical choices only, they generally include technological sequences protected by legal intellectual property rights (IPR). However, companies owning patents in this connection do not necessarily make full use of their rights. They may also prefer to ensure the widest diffusion of a key technology within the industry in which they are prime movers. This explains oligopolistic arrangements like the strategic alliances adopting the GSM standard in mobile telephony, or through monopolistic behaviour, as in the case of the algorithms of the Windows operating system owned by Microsoft and applied on most computers around the world. Such an ability to control or subvert the standardisation process and guide technological innovation in an entire sector with a combination of patents, licensing agreements, and IPR protection, engenders profound company rivalries. It epitomizes the extremes of the privatisation of standardisation.19 The recent developments of private standards consortia, their de facto power, and their extending scope, have clearly impacted upon the official institutional framework of international standards. For companies, consortium standards enable a great procedural flexibility and a shorter time-span needed to reach agreement (often less than a year). This is a considerable advantage, given that economies of scale are required to ensure quick returns on the huge investments in prior research and development and product cycles are in the range of 12 to

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18 months in new technologies. Accordingly, official institutions such as ISO and CEN have developed new procedures and so-called “new deliverables” for technical specification, which are obligatory and must be published swiftly. This may reduce the degree of consensus necessary for an agreement, whilst the process also is speeded up by electronic voting. Consortia as a result have become more inclusive with more participants involved, including public and NGO participants—a sign of the enhanced respectability of de facto standards. Clearly this process of regulation by technical standards for goods and services exchanged across borders, is not so much a matter of a conflict between public laws and standards. It involves the entire institutional continuum along which public and private agents compete for defining how, and to which extent, markets should be integrated. Objects covered by technical specifications also structure the comprehensive topology of standardisation. Whereas the private/public nexus of the subjects involved in defining standards can be located on an institutional continuum, this second dimension should be situated on a material continuum delineating what can be standardised. This goes back to the relation between human beings and nature. What we call technical specifications, range from natural and invariable physical measures (with undisputable properties), to constructed and historically bounded societal values, which are always contestable. Here we encounter a range of issues which have been relegated to the margins of the political agenda for perhaps too long. The stages by which standardisation has moved from one pole of this material continuum to the other, are to some extent historical. The French Revolution invented, ex nihilo, the decimal metric system. The increasingly large scale of capitalist industries and rapid technological innovations of the Second Industrial Revolution then led to material product standards defining performance and interoperability, notably in spare parts, iron and steel properties and dimensions for structural material used in railways or shipping, electrical systems and communication. Health and safety concerns linked to the welfare state prompted the development of standards in domains more directly related to consumers rather than producers. More recently, outsourcing in the development of global value chains and increasing concerns about environmental regulations potentially used as non-tariff trade barriers, have contributed to a shift towards quality and environmental management standards in the 1980s and 1990s, and so on to the still largely untouched territory of standards in the service sector. The image of a continuum on this dimension is to some extent contradicted by the fact that the extremes (nature/history) occasionally overlap. For instance, the invention of the decimal metric system by the French revolutionaries vindicated the Enlightenment belief in the power of Reason and abstraction in

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the domain of measurement by defining the metre as one millionth of a quarter of the Earth’s meridian. Yet it was also a way to abolish the arbitrary system of “two weights, two measures” used by lords to manipulate the peasants” grain levy. More generally, following the political homogenisation of human beings under the Declaration of Rights of Man and Citizen in 1789, French revolutionaries took the planet Earth as the basic standard of all measures: length, surface, volume, mass, taxes, coinage, etc. As Denis Guedj puts it in his history of the invention of the decimal metric system, in their pursuit of a truly universal, invariable and natural standard, Talleyrand, Condorcet and others searched for a concept that was both social and “hard”, and which by its inherent natural quality would prove binding to all of humanity.20 So if regulatory policies are closely related to technological change and innovation issues, they also reflect broader social concerns. Against the widely accepted instrumental view of technology as a neutral tool, a critical appreciation of the objects falling within the scope of international standardisation reveals to what extent technology remains an ambivalent process embedded in constellations of power entailing different possibilities. Feenberg characterises technology as a “parliament of things in which civilizational alternatives are debated and decided”.21 In brief, the object of standardisation inevitably blends the physical and social requirements of a material civilization.

Differentiated Processes of Standardisation Beyond the stage of agreement reached on definition and content, standardisation can be differentiated depending on the various ways standards are implemented. We need to distinguish here between standardization per se and recognition of standards. While international standardisation is driven by the attempt to homogenise specifications across national jurisdictions, processes of standards recognition allow for the acceptance of a plurality of standards or means of assessing conformity with them. In other words, this second analytical grid does not focus on the content of an assumed greater uniformity of standards worldwide, or of the competing bodies involved in this agenda. Its main concern is with the conditions under which a plurality of standards can operate without contradiction and the conformity of their implementation be mutually recognised, Even if the process of unifying standards is continuing, disparities in the method of assessing how firms comply with them can still be a persistent source of trade tensions. A set procedure for testing physical resistance of a product does not mean, for instance, that any laboratory able to do the test will be recognised as a certified tester. Regulation can drastically limit conditions for such recognition. Or, if the process of standardisation runs into difficulty in the attempt to achieve global harmonisation, those seeking integration of world

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markets may resort to mutual recognition as an alternative. In Europe, for instance, products not subject to technical harmonisation at the EU level should in principle be exchangeable freely and just conform to domestic specifications and regulations of a member state. The differentiated processes of standards recognition worldwide thus can be understood on two dimensions: the organisational procedures involved in standards recognition on the one hand, and the territorial competence on which the assessment of conformity is predicated, on the other. The first dimension concerns the organisational procedures for recognising conformity to an agreed standard. To comply to a set of technical specifications, market agents follow different procedures, framed in various ways by the institutional bodies in charge of conformity assessment policy. Such procedures can again be located on a continuum with the public and private spheres at each extreme, as in the case of the institutions defining standards. A public system of standards recognition hinges upon established authorities, whereas a private one mostly involves contractual relations and market mechanisms. Of course there are issues of trust and power involved in the choice between public organisational procedures and privately organised market relations. Our willingness to move from one end of the continuum to the other depends how much we trust agents and institutions involved in conformity assessment. Theoretically, while standards per se already signify a transfer of trust from price signals to technical specification, standards recognition implies a further shift in the level of trust. The concept of trust has become widely used in economic sociology to account for the embeddedness of market relations into wider organisational, social and political arrangements. Some authors even consider that the issue of trust may eventually challenge the traditional organisation of capitalism because the centrality of market pressures as the reference for political power is not necessarily an acceptable condition for society at large.22 More broadly, the issue of trust reminds us of Durkheim’s argument that the social contract must involve something else than itself, otherwise contractual solidarity would suffer by the reliance on upholding the social contract by the threat or the use of force.23 In practice, the trust continuum runs across a wide range of organisational procedures. At the extreme of private relations, we find declarations of conformity directly supplied by the manufacturer and generally accepted as such (as most products conforming to the CE mark found on packaging). At the opposite public extreme, we may still find numerous organisations that provide “third party” certification, testing or inspection services, whose competence and integrity is itself assessed by a public accreditation body (accreditation understood as the procedure by which an authority extends formal recognition that a body or person is competent to carry out specific certifying tasks).24 As

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Tronel notes, “for a given requirement of conformity, there are an increasing number of possible distinct responses”.25 Organisational procedures run from suppliers’ autocertification to verifications with tests and controls for each product placed on the market by a public certification body, itself publicly accredited. In between, one can find all sorts of arrangements such as quality insurance systems relying on ISO 9000 standards series certified by publicly accredited private companies (like Inspectorate or SGS), or declaration of conformity based on private “peer assessment schemes” between companies active in the same industry. The second dimension on which differentiated processes of standards recognition are executed worldwide is territorial competence. In order to understand this issue, we need to distinguish between exogenous and endogenous principles of standards recognition. These opposing mechanisms of recognition have implications in terms of a transfer of authority and legitimacy in contemporary democratic states. As Nicolaïdis and Egan observe, “domestic regulators accept unprecedented transfers of regulatory sovereignty by recognizing non-domestic standards as valid under their jurisdiction, whether they have taken part in their development (standardization) or not (recognition)”.26 Indeed, recognition of standards may or may not involve domestic regulatory bodies. It depends on the domestic acceptance of certificates issued in foreign countries. Theoretically, if fully accepted on a worldwide basis, the various ways of assessing conformity to a given standard would ensure market access on a purely exogenous basis. In practice, a supplier would only need one certificate to satisfy the entire market and all governments—as in the motto of the advocates of the system, “one market, one standard, one test, globally accepted”. On the other hand, if none of the various ways of assessing conformity to a given standard were recognised on an international basis, the technical specification for market access would come to rely on a strictly endogenous basis. Concretely, this would involve multiple replications of tests and certifications before gaining clearance for entering each domestic market. Various instruments have been negotiated to define the territorial competence of conformity assessment procedures. In order to increase the confidence of both private and public agents in the market, cross-border cooperation has been developed on a bilateral or plurilateral basis among conformity assessment and accreditation bodies. Under so-called Mutual Recognition Agreements (MRAs), governments agree to recognize the results of each other’s testing, inspection, certification or accreditation bodies in specified industries. Platforms such as the Transatlantic Business Dialogue aggressively lobbied for such arrangements in the 1990s, but the difficulties involved in finalising the agreements and the role that continues to be given to third party

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certification, have meant that MRAs did not in the end become the avenue to world market integration that had been expected.27 Recent developments appear to point in two directions. On the one hand, there are calls for a greater scope for self-declaration of conformity, in which companies would avoid the costs of third-party assessment by taking their market reputation as a licence to dispense with independent assessment of conformity. On the other hand, there is an attempt to focus on a superior level of territorial competence, the one involving accreditation bodies. As Pierre explains, “This is the last level of control (there is no accreditation for accreditors). Therefore, accreditory bodies should not be competing, neither between themselves, nor with [certification] bodies which are or are expected to be accreditated [by them]”.28 Indeed after more than a decade of mutual ignorance, the two private bodies in charge of promoting an international acceptance of accreditation of laboratories and certifiers in 2004 established a high-level working group with the ISO.29 Its purpose is to act as a clearinghouse for dealing with issues surrounding conformity assessment policy and extend the scope of mutual recognition across borders. Included in their agenda is the expected status to be given to numerous multilateral agreements negotiated between private parties involved in certification and testing. The world’s first truly international system for acceptance of test reports deals with the safety of electrical and electronic products, as developed in the IECEE CB Scheme of the International Electrotechnical Commission (IEC). For standardisation officials and experts, the territorial competence for recognising conformity assessment procedures, boils down to the extent to which “global relevance” for implementing standards can be reconciled with social acceptance.30 According to Helmut Reihlen, former Executive Officer of the Deutsches Institut für Normierung (DIN), “the bottom line remains the relationship between the process of scientific discovery and democratic control on the use of science”.31 Ultimately, the debate concerns the autonomy of a society not only to define a standard, but also to control compliance with any given standard. This presumes a capacity to assess science, technology, and democracy in ways that do not lock out others and to provide, as Feenberg puts it, “a coherent civilizational alternative based on a system of mutually supporting transformations of social institutions, culture, and technology”.32 Accordingly, each time we recognise an exogenous territorial competence to standards recognition processes we end up giving up an additional fragment of autonomy.

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Conclusion This chapter has explored the shift in the balance between private and public norms along with the expansion of the scope of regulation by private actors into virtually every aspect of our daily life through international standardisation. In contrast to rational and public choice approaches or neo-institutional analyses dominating most studies in this area, I have drawn on the critical tradition of global political economy to appraise the structural power involved in the broader context of capitalist regulation and reforms. International standardisation should be situated in a configuration of power that defies the simple opposition of states and markets, and raises the question, wo exactly defines which standards will be set, how, where and from where will they be set and their conformity assessed. What is at stake here is the definition of what Heiskanen calls, ‘stakeholderhood” in the context of corporate democracy, the shift from universal democratic rights to functional entitlements. To clarify these issues, I have provided a comprehensive topology of international standardisation that sheds light, on the one hand, on who defines standards along an institutional continuum extending from the market of private intellectual property rights on patented technology, to the public law realm of regulatory policies. On the other hand, it involves what can be expected to be standardised along a material continuum stretching out from natural and invariable physical measures to constructed and historically-bound societal values. The differentiated processes of standardisation provide further explanation on how and (from) where standards can eventually be recognised and implemented after agreement has been reached on definition and content. This framework resembles to some extent the work of scholars who distinguish between private and public rule-making in standardisation, and between centralised and decentralised modes of governance in both public and private rule-making environments.33 But my argument also takes into account issues of implementation and compliance related to conformity assessment, and specifically addresses the range of objects expected to fall within the scope of standards. And where most those studies in this area are guided by rational and public choice theories and a nomothetic epistemology, I develop my argument from a critical standpoint that understands social relations in terms of constructed categories subject to continual contention. There are no independent explanatory variables in this perspective; on the contrary. The proper balance between the four dimensions along which standardisation takes place is subject to an ongoing social and political process, the meaning of which can only be grasped through theoretically informed research.

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1. I am grateful to the Swiss National Science Foundation for funding the research for this chapter. 2. A.C. Cutler, Private Power and Global Authority. Transnational Merchant Law in the Global Political Economy (Cambridge: Cambridge University Press, 2003); A.C. Cutler, V. Haufler, and T. Porter (eds.) Private Authority and International Affairs ( New York: SUNY Press, 1999); R.B. Hall and Th. J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge: Cambridge University Press, 2002); R. Higgott, G. Underhill, and A. Bieler (eds.), Non-State Actors and Authority in the Global System (London: Routledge, 1999). 3. V. Heiskanen, “Introduction”, in J.-M. Coicaud and V. Heiskanen (eds.), The Legitimacy of International Organizations (Tokyo: United Nations University Press, 2001), p. 12. 4. There are regional standardisation bodies in the Americas (Pan American Standards Commission, COPANT) and in Asia-Pacific (Pacific Area Standards Congress, PASC). As compared to the European system, however, their influence is still weak. 5. M. Egan, Constructing a European Market. Standards, Regulation, and Governance (Oxford: Oxford University Press, 2001); D. Vogel, Trading Up. Consumer and Environmental Regulation in a Global Economy (Cambridge, Mass.: Harvard University Press, 1995). 6. The importance of third party certification is not so much a response to a lack of trust in the market of standards and the devolution of authority by the state than a matter of massive market pressures exerted by insurers. Historically, such a mix of private and public bodies and processes in US standardisation runs from the prototype role that American economy has had in the development of what is now called the regulatory state . 7. In addition, the United Nations Food and Agriculture Organization (FAO) and the World Health Organization (WHO) have drawn up food standards in the Codex Alimentarius, created in 1962, which applies for food hygiene and safety, labelling, and methods of analysis, inspection and certification. 8. See in particular article 2 and Annexe 3 of the WTO TBT Agreement and article VI:4 of the GATS. For a detailed legal analysis, see G. Marceau and J.P. Trachtman, “The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade. A Map of the World Trade Organization Law of Domestic Regulation of Goods”, Journal of World Trade, 36: 5 (2002), pp. 811-881; for a political economy perspective on the transfers of regulatory sovereignty involved, see J.-C. Graz, “La gouvernance hybride du commerce mondial : l’OMC et la politique réglementaire”, in L. Boisson de Chazournes and R. Mehdi (eds.), La gouvernance internationale (Bruxelles: Bruylant, 2005), pp. 227-244. 9. J. Wilson and V. Abiola (eds.) (2003) Standards and Global Trade: A Voice for Africa (Washington: The World Bank, 2003), p. xxvii. 10. H. de Vries, “Standardization – Mapping A Field of Research”, in S. Bolin (ed.), The Standards Edge (Ann Arbor: Bollin Communications, 2002), p. 105. For a review of literature, see G.M.P. Swann, The Economics of Standardization. Final Report for

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11. 12.

13. 14. 15.

16. 17. 18.

19. 20. 21. 22. 23. 24.

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Standards and Technical Regulations Directorate Department of Trade and Industry (Manchester: Manchester Business School, 11th December 2000). W. Mattli, “The politics and economics of international institutional standards setting: an introduction”, Journal of European Public Policy, 8: 3 (2001), p. 331. W. Mattli, (ed.), Governance and International Standards Setting. Special Issue of the Journal of European Public Policy, 8:3 (2001); W. Mattli and T. Büthe, Tim “Setting International Standards: Technological Rationality or Primacy of Power?” World Politics, 56: 1 (2003), pp. 1-42.. S.K. Schmidt and R. Werle, Coordination Technology. Studies in the International Standardization of Telecommunication (Cambridge, Mass.: MIT Press, 1998). Egan, Constructing a European Market…, op. cit.; K. Nicolaïdis and M. Egan, “Transnational market governance and regional policy externalities: why recognize foreign standards?” Journal of European Public Policy 8: 3 (2001), pp. 454-473. S. Gill and D. Law, “Global Hegemony and the Structural Power of Capital”, International Studies Quarterly, 33: 4 (1989), pp. 475-499; S. Guzzini, “The use and misuse of power analysis in international theory”, in R. Palan (ed.) Global Political Economy: Contemporary Theories (London: Routledge, 2000), pp. 53-66. OECD, Regulatory Reform and International Standardisation, (Paris: Organization for Economic Cooperation and Development, Trade Committee Working Party, 1999). C. Murphy, International Organization and Industrial Change. Global Governance since 1850 (Cambridge, Mass.: Polity Press, 1994). The GSM standard for mobile phones has become a notorious case of a consortium of private manufacturers developed through the impetus of state support. GSM stands for the “Groupe Spécial Mobile” (now translated as “Global System of Mobile Telecommunication”) developed in 1982 by European telecommunications authorities and a consortium of European manufacturers to compete with the rapidly growing progresses made by American consortia in this area. Another example is the implication in 1986-7 of the US administration in the creation of the Sematech consortium, including initially 14 American semi-conductor companies in an attempt to meet the competition from Japan. I. Liotard, “Les droits de propriété intellectuelle, une nouvelle arme stratégique des firmes”, Revue d’Economie Industrielle, 89 (1999), pp. 69-84. D. Guedj, Le mètre du monde (Paris: Seuil, 2000), p. 202. A. Feenberg, Critical theory of technology (New York: Oxford University Press, 1991), p.14. C.U. Stephens, A. Kieser, C. Heckscher, and P.S. Adler, “Market, hierarchy, and trust: the knowledge economy and the future of capitalism”, Organization Science 12: 2 (2001), pp. 214-246. E. Durkheim, De la division du travail social (Paris: PUF, 1996 [orig. 1883]), p. 375. The history of Underwriters’ Laboratories (UL) provides a clear example of third party certification. This globally recognized US certifier has now almost 200 inspection centres in more than 70 countries. Its success was the result of a total lack of trust in the market. In the late nineteenth century, there were indeed increasing

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28. 29. 30. 31. 32. 33.

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concerns about the major fires caused by faulty electrical components in American cities. UL provided a seal that guaranteed sustainable competition, safety for consumers, and objective risk assessment for insurers. See D.B. Klein (ed.), Reputation. Studies in the Voluntary Elicitation of Good Conduct, (Ann Arbor: University of Michigan Press, 1997). L. Tronel, “Normes de références pour l”évaluation en conformité”, Annales des mines. Série Réalités Industrielles (November 2002), p. 44. Nicolaïdis and Egan, “Transnational market governance…”, op. cit. p. 455. Interview off the author with Thomas Hagdahl, TABD Group Manager on Standards and Regulatory Policy, Paris, 12 November 2001; see also Th. Hagdahl, “Opportunities and Risks. Views of the TABD”, Hearing before the European Parliament: Mutual Recognition Agreements, (Brussels, 10 November, 1999). D. Pierre, “Le rôle de l”accréditation dans le contexte international”, Annales des mines. Série Réalités Industrielles (November, 2002) p. 61 These two organisations are the International Accreditation Forum (IAF) and the International Laboratory Accreditation Cooperation (ILAC). Interview of the author with Florence Nicolas, Head of international relations, Afnor, Paris Saint-Denis, 31 January 2003; see also “Bilateral U.S./European Meeting of Standardization Officials”, ASTM Standardization News, January 2003. Interview with the author, Berlin, 29 September 2001. Feenberg, Critical theory …, op. cit., p.18. See for instance H. Spruyt, “The supply and demand of governance in standardsetting: insights from the past”, Journal of European Public Policy 8: 3 (2001), pp. 371-391.

CHAPTER 9 PRIVATE NORMS IN THE GLOBAL POLITICAL ECONOMY ANDREAS NÖLKE Introduction In a traditional perspective, the norms regulating the global political economy are set and enforced by governments, as well as by intergovernmental organizations (IGOs) such as the WTO and the IMF. Depending upon the theoretical framework utilized, governments are driven by self-interest, are lobbied by domestic interest groups, or are instrumentalized by class interests.1 Although some of these frameworks incorporate a certain role for private interests such as business and labour, it is always governments that finally are calling the shots. More recently, however, increasing attention is being given to private actors in global economic regulation. Transnational private actors are considered to play a role of their own, besides governments and IGOs. Two different aspects of this new role are being distinguished. Firstly, business and NGOs are participating with governments and IGOs in global or transnational (public) policy networks.2 Although governments may still formally make the final decisions in these public-private networks, the decision-making process cannot be properly understood without taking the independent positions and resources of private actors into account. Most examples for transnational policy networks are found within EU multi-level governance, but there are also some cases on the global level, such as the UN Global Compact3 or the World Commission on Dams.4 An even more radical departure from the traditional government-centred model of international relations is undertaken within the discussion on global or transnational private authority.5 Here, private actors themselves are setting and enforcing norms, particularly concerning the behaviour of business. Governments or inter-governmental entities are relegated to a background role, but still, explicitly or at least implicitly supporting the exercise of private authority. Private authority here can be considered as a particular case of the

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broader category of private norms, with a particular emphasis on the acceptance of private norms as legitimate, enjoying a high degree of authority and the backing by governments: First, those subject to the rules and decisions being made by private sector actors must accept them as legitimate, as the representations of experts and those “in authority”. Second, there should exist a high degree of compliance with the rules and decisions. Third, the private sector must be empowered either explicitly or implicitly by governments with the right to make decisions for others.6

In a more general perspective, (transnational) private norms simply comprise rules or regulations that are decreed by (transnationally acting) private entities. Some of these norms will not necessarily be accepted and complied by all other (private) actors, or will not be supported by governments, as we shall see in case of voluntary standards for corporate social responsibility. Thus, transnational private authority designates a sub-category of transnational private norms that distinguishes itself by a high degree of compliance. Given the considerable enforcement problem of private norms, this common focus on private authority is understandable. Still, an exclusive focus on private authority may just exclude one of the core questions regarding this type of institution, namely why some norms are complied with and others not. For different reasons, the issue of transnational private norms more recently has become quite fashionable. x From an analytical perspective, it symbolizes the most radical challenge to the established inter-governmental models of International Relations (IR). None of the established theories can be used to analyze this issue, because of their government-centric bias. If mainstream IR authors talk of international relations, they usually mean inter-governmental relations. Furthermore, it is assumed that governments act as unitary actors. Finally, the governments-centric heuristic assumes that governments are the only important actors within international politics, thus generally discounting the role of private actors.7 x From a public policy perspective, transnational private norms frequently are perceived to be one of the most attractive options to compensate for the perceived “retreat of the state”,8 and to replace it with an alternative mode of governance. Cooperation between business and NGOs in the context of corporate codes of conduct in particular has been acclaimed as a solution to governance deficits in the field of environmental protection or labour standards, given that existing intergovernmental standards have little impact.9

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x From a critical perspective, finally, the increasing role of private norms is associated with furthering the current dominance of neoliberalism. Private regulation by business here replaces the established and democratically accountable ways of public regulation, and is perceived to be a key aspect of solidifying neoliberal orthodoxy. Given the different expectations implicated in these three perspectives, it comes as no surprise that the discussion on transnational private norms that has evolved during the last five years is very much fragmented and hardly cumulative. The critical and the governance perspectives, notably, do not communicate with each other and as a result have developed highly divergent perceptions of the issue area. While the critical discussion focuses on cases of private self-regulation in the general business infrastructure such as law, finance and technical standards,10 the governance branch is primarily occupied with the activities of NGOs and business to promote corporate social responsibility.11 This fragmentation of research has led to a rather sorry state of the discussion. Thus we neither find a generally accepted definition of transnational private norms, nor a typology of its most important forms; let alone agreement on more substantial findings such as the mechanisms and the context of these norms.12 Given the state-centric bias of established (mainstream) theories of IR/IPE,13 these theories are also unable to address the issue of transnational private norms. Furthermore, existing theories on private norms on the national level14 can be transferred to the transnational level only to a limited extent, because they are frequently linked to certain features of corporatism which are absent outside of the domestic context (especially a strong central authority and the comprehensive participation of organized labour). The purpose of this contribution, therefore, is to explore options for a consolidation of the dispersed discussions outlined above. How can they contribute to a middle-range theory on private norms in the global political economy that explains and normatively assesses the workings of this type of institution in a generalized way? My core argument is that the study of transnational private norms has to combine both discourses, in particular the more substantial and historical arguments about structural forces and power relations of critical political economy on the one side, with the wealth of knowledge on institutional details and pragmatic issues that is provided by the governance perspective on the other. In order to further this argument, I will take stock of the existing literature. For both strands I will briefly identify the most important arguments and research results, as well as their shortcomings. In a conclusion, I will compare the relative merits of both strands, and will identify some options how these debates might be integrated to allow a more fruitful discussion in the future.

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The Governance Debate: When Do Firms Obey Norms That Are Not Set by States? The point of departure for the governance debate is the perception that some problems of transnational economic regulation cannot be solved by governments (alone). This appears to be particularly true for the regulation of business, although the larger structures of trade and monetary regulation still clearly belong to the realm of intergovernmental cooperation. But the public character of currency and trade issues which makes a certain degree of intergovernmental cooperation necessary, is absent in case of business regulation. Furthermore, there is a broad popular perception that the state command-and-control approach to business regulation is too inflexible and costly, and should rather be substituted by the market-based incentives of voluntary business selfregulation.15 Although some international organizations have been set up in order to facilitate markets for new industries16, business regulation by international organizations and regimes is very limited. Moreover, some recent intergovernmental initiatives to regulate global business have failed spectacularly, such as the UN-driven codes of conduct for multinational enterprises and the Multilateral Agreement on Investment (MAI) sponsored by the OECD.17 The transnationalization of economic activity, however, demands regulation that transcends the abilities of single states. While there is some limited transnational co-regulation by industry and governments, particularly in the field of technical standards18, the focus of the governance approach is clearly on industry self-regulation as well as on social regulation involving business and NGOs.19 In particular, cooperation between companies and civil society actors in the context of concepts such as “corporate social responsibility”, “business ethics” and “corporate citizenship” has attracted much attention. From the perspective of the governance approach, these forms of private voluntary cooperation might be able to compensate for the inability (or unwillingness) of governments and IGOs to cater for global business regulation themselves. Transnational NGOs here replace national civil societies and governments as a counter-weight against irresponsible business behaviour. The aim is to limit capitalist externalities such as environmental degradation and the mistreatment of workers through standards developed and overseen by private institutions. Examples of such standards include, among others, the ISO 14000 norm on environmental management20, the Coalition for Environmentally Responsible Economies (CERES), as well as the Forest Stewardship Council21, or the human rightsoriented Social Accountability Standard 8000.22

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Given the voluntary character of these institutions, the core task then becomes to identify the circumstances under which private actors in fact obey norms that are not set by states. The governance discussion has already tentatively identified some of these factors, although most of them still rest on a limited empirical basis: x The degree of competition between the participating firms: The adherence to environmental or social norms can be a clear disadvantage in a very competitive environment. In contrast, the existence of a monopolistic or oligopolistic structure can be helpful to facilitate private norms: “Rules and standards that come from industry alone, without the participation of or enforcement by third parties, tend to be difficult to sustain due to competition among firms... other types of governance must supplement it—either by government regulation, or the dominance of a single private player”.23 x The type of company involved: Not all companies appear to be equally suited to participate in a code of conduct. Since the enforcement of private norms very much depends on consumers being able “to respond to the signals being sent to reward those companies behaving well and punish those behaving badly”24, big manufacturing companies with wellknown brand names are particularly affected. Somewhat less prominent are (coordination) service firms such as insurers or institutional investors. Under certain circumstances, these firms find it useful to incorporate political, social or environmental risks when deciding on contracts with other (non-service) firms. Thus, coordination service firms can also take on the role of third party enforcer outlined above. Again, this role is very much facilitated if these firms act from an oligopolistic position. x The type of issue involved: The success of corporate social responsibility initiatives also depends on the nature of the problem that is addressed.25 While improving social and labour practices can be very costly, improving environmental performance may be less expensive—indeed it can even be profitable in the long run through eco-efficiency gains. It also chimes better with core business concerns such as efficiency, competitiveness and technological innovation than do social issues. x The further development of post-materialist orientations: Codes of conduct that rely on the support of labour unions have much less impact, if compared with those that are based on the environmental or human rights movements. Given that most social groups supporting initiatives for corporate social responsibility recruit their supporters among middle classes with a post-materialist orientation, the sustainability of private norms depends on the socio-economic development of these groups.

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Thus, transnational private norms may be negatively affected by global economic crises26, but they may be supported again by an expansion of the middle classes in the societies of the global South. In a more pragmatic perspective, authors involved in the governance debate have sought to design concrete mechanisms that can solve the enforcement problem necessarily implicated in private governance.27 This has lead to a list of conditions to be fulfilled in order to make an initiative for corporate social responsibility truly effective. In this perspective, preference is given to externally developed codes that claim validity for an entire business sector or type, over a code developed by one company for its own (frequently publicity) purposes. In order to be effective, codes also have to be backed up by specified sanctions under the jurisdiction of external, independent institutions, rather than administered by internal ones, or by those paid by companies themselves. But even if independent external controls do exist, there is no guarantee for a systematic enforcement of private codes, given the potential consequences such as unemployment. Enforcement thus appears to be the most crucial issue for private codes of corporate conduct. But the codes themselves also have to be measured against certain quality criteria in order to be truly effective. Here, a whole variety of options emerges. Thus standards might be oriented towards the product or the production process. If they are process-based, should they only cover the particular production process or the whole life-cycle? What about prior production processes in the commodity chain? Should company behaviour be measured against an absolute standard or against best practice? Also, the very proliferation of new codes may make the overall effectiveness of corporate codes problematic. These issues point to a broad range of preconditions that have to be met in order to make private corporate social responsibility norms an effective alternative to the conventional regulation of business. But even if these preconditions would be met, one might still have reservations about this kind of governance, as testified by researchers concerned about the democratic quality of these institutions.28 Outside the purview of national democratic institutions, transnational private norms suffer if not all participating actors have equal power, and some are not represented at all. This applies to the wider public and to developing countries, which each lack the detailed knowledge necessary to meaningfully participate in private norm-setting and enforcement. Also, decision-making within transnational institutions may not fulfil the usual domestic standards of accountability and transparency. Certainly much is being expected from the ability of NGOs to compensate for these weaknesses. However, their contribution to legitimacy is limited by the

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fact that they can only be mobilized for certain issues. Studies about the participation of societal actors in transnational policy networks suggest that homogeneous interests not traditionally reliant on the state, tend to benefit most from NGO representation.29 On the other hand, the advantage enjoyed at the transnational level by big multinational enterprises relative to unions and consumer groups, tends to be replicated within the NGO community. Here too, a considerable power differential can be observed, with mainstream “Northern” interests the main beneficiary. In addition the reliance on NGOs may create problems of democratic legitimacy itself. Imagine for instance that private codes based on an agreement between multinational enterprises and Western NGOs force the democratically elected government of a developing country to introduce labour or environmental standards that it considers disadvantageous to its infant industry. These standards might have a positive impact on some workers, but potentially highly detrimental consequences for the wider population. Even so we may conclude that the governance debate is characterised by a pervasive optimistic spirit. Private norms are being considered an important option to cover the regulatory deficit created by the absence of (inter-) state regulation of transnational business. Although existing codes may have serious shortcomings in terms of both effectiveness and democratic legitimacy, the academic debate seeks to highlight these shortcomings and to contribute to the identification of superior solutions. It has identified some of the key mechanisms of how private norms work in practice; several proposals as to how these existing mechanisms could be improved, have been formulated. This pragmatic orientation, however, simultaneously has prevented governance theorists from focusing on a more general theory of transnational private norms situating them in the wider economic and historical context.

The Critical Debate: Transnational Private Norms in the Evolution of Capitalism From a critical political economy perspective, most contributions to the governance debate are in the category of “problem-solving theory”. Following on Robert Cox’s famous dictum, “theory is always for someone and for some purpose”30, critical theorists argue that these studies mainly help to make the existing capitalist system work more smoothly. The focus of critical theories, therefore, is to contextualise transnational private norms in capitalist development. This is rooted, among others, in an awareness that the separation between public and private underlying the debate about private norms, is not fixed. Instead it has to be understood as contingent in time and space.31 Traditionally, this separation has been rather blurred: commercial standards

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such as the lex mercatoria for instance were first developed by private actors and only later adapted by states. Also, state ownership of economic assets in the past was widespread (and still is in some societies), but institutions such as the East India Company in turn had broad regulatory competences. It took until the late 20th century (and then mainly in the OECD area) before the separation of public and private, apparent since the industrial revolution, became as clear-cut as it is today. Critical theorists see this in the context of the general framework of capitalist development and in terms of the structural forces and power relations involved in this development. The rise of privatized authority in this perspective accompanies the parallel development of the competition state, the deterritorialization of capital, and the related process of flexible accumulation. It is also connected with the rise of neoliberalism as a political ideology, which inspired the policies of the Reagan and Thatcher governments and henceforth spread across the globe. In this neoliberal perspective, the private sector is considered to be far more efficient than the public sector, with privatization and deregulation meant to free private business from unnecessary state controls. Transnational private norms thus aim to secure a minimal level of public international regulation of business operations, in line with other forms of contemporary global governance.32 Having corporate codes of conduct in place legitimizes the retreat of the state; the existence of these codes can be used as a foil, should major popular discontent with economic globalization result in calls for a re-regulation of business. Form and content of regulation therefore cannot be treated separately. There is no point in discussing the mechanisms and forms of private governance in a purely analytical fashion without taking the particular role of this type of governance for the development of global capitalism into account. In addition to the role of transnational private norms for the legitimation of the neoliberal model of the global economy, critical theorists also tend to shift the focus onto other norms than those central in the governance debate; the emphasis on coordination service firms illustrates this.33 Firms such as rating agencies, institutional investors, trade exchanges, investment banks as well as multinational law, accounting, insurance and management consultancy firms enjoy real authority by setting and enforcing standards of acceptable company behaviour (according to neoliberal standards). Institutional investors for instance develop and enforce codes for corporate conduct that are based on crucial elements of the neoliberal economic model, such as the preoccupation with shareholder value. Rating agencies shape the behaviour of market participants by limiting the range of legitimate behaviour for companies based on similar principles—otherwise companies risk a downgrading of their debt and higher costs for refinancing. Finally, private norms developed by accounting firms

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undermine alternatives to the neoliberal business model, e.g., the long-term perspective of German business based on considerable hidden reserves. Coordination service firms like the above not only further the neoliberal orthodoxy on their own. They are also supported in this role by states. The concept of transnational private authority by definition requires support, if only implicitly, by public authorities. States these days frequently model their public regulation on norms set by private actors, as for instance with the Basle II bank regulation (which followed rating agencies’ norms) and EU accounting regulation modelled after the International Accounting Standards.34 By favouring standards currently set by coordination service firms, states at least indirectly support the further spread of the neoliberal model and Western hegemony, not least because so many transnational private norms originate with Anglo-Saxon companies. One particular version of the critical argument is that of Kees van der Pijl. Van der Pijl situates transnational private norms in the context of the historical evolution of capitalism, too, but primarily focuses on different classes and class fractions within that process. Transnational private norm-setting and enforcement are associated here with a so-called “cadre class”, those salaried employees entrusted with tasks of direction and conception in production, and of normative unification.35 The cadre class dominates the coordination service firms. “The tasks assumed by this particular cadre in the context of global market socialization can be summed up as standardization along the lines of best practice—defined by reference to the extremes of exploitation”.36 Perhaps ironically, the same capitalist development that brings forth this cadre class and the role in transnational private norm-setting and enforcement it performs, also contains the seed for a possible transformation of this social formation. Private norms undermine the all-encompassing logic of capitalist market socialization by bringing political struggles into the economic core. The current impact of initiatives to confront business with the social consequences of its operations may be limited, but they nevertheless challenge the neoliberal model by politicising areas which before were the autonomous preserve of capital. Thus, transnational private norms have a greater potential to drive forward social transformation, than the current global governance by national governments and intergovernmental coordination structures. In contrast to the governance approach, however, the transformative potential of private norms in this case is less a matter of NGO activists and their codes for corporate social responsibility, than of the capitalist cadre class itself: The cadre, much more than the sedentary owner of capital (both property dynasts and the average owner of stock) are a highly mobile and dynamic element in the global political economy. They apply the norms emanating from best practice

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benchmarks throughout the global political economy, and have to have a presence in the places where these norms are actually being applied … But their very presence ... as a result tends to be more directly confronted with natural and social consequences of the increasingly exhaustive impact of neo-liberal capitalist discipline on the planet... As the splendour and promise of boundless wealth associated with capitalism are waning, the threads of hard and soft consultancy woven across global society to somehow keep it together as a 37 functioning whole, may become channels for the formulation of alternatives.

Thus, the development and enforcement of private norms by coordination service firms and the cadre associated with these firms are not only the spearhead of neoliberal market discipline, but could at the same time be the most promising option for a transformation of capitalism as such. All of these critical studies are strong on the historical, political and economic context of transnational private norms, and carry a considerable explanatory potential in terms of structural forces and power relations. They also offer a clear normative perspective and a forceful critique of this type of authority. On the other hand, critical political economists are relatively weak on the concrete mechanisms of how transnational private norms are working. Although some studies, particularly the analyses of merchant law by Claire Cutler and the work on rating agencies by Timothy Sinclair38, do go into detail, they do not come up with a more general and empirically testable theory of transnational private norms in contemporary capitalism. This can be traced back to a more general feature of theories of critical political economy: first, there are obvious limitations in terms of complexity reduction for a strictly holistichistorical theory. Secondly, the critical argument sometimes is phrased in a way that makes it very difficult to refute empirically, certainly if opposite tendencies to what is presented as an inevitable rise of neoliberal capitalism, are simply declared to be part of the dialectical process. Finally, the broad transformative perspective of critical theories usually are not matched by more concrete proposals on how to overcome the current deficits of transnational private norms.

Overcoming The Divide: A Research Agenda The above review of the two most important current debates on transnational private norms has demonstrated that they are rather limited if taken on their own, but in combination reveal a profoundly complementary quality. While the critical discourse is strong on over-all historical context and on explanations based on power relations, it is rather weak in coming up with a more generalized theory of private norms, or with concrete proposals how to use these norms for a

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transformative agenda. The governance discourse, on the other hand, has clear comparative advantages in the concrete analysis of institutional mechanisms and the identification of practical proposals. Its disadvantage is the absence of a comprehensive explanatory and normative concept, for which it offers a rather descriptive and mostly inductive picture of private norms. Thus, when Haufler makes some very important observations of the changing nature of the historical relationship between private and public, he confines himself to an inductive listing which obviously would profit from the sort of comprehensive explanation offered by critical theories.39 Empirically, too, the two debates very much complement each other. Whilst the critical debate has accumulated a wealth of knowledge about some of the key capitalist infrastructures such as finance, law and technical standards, the governance debate has explored attempts to combat certain negative external effects of capitalism such as the depletion of the natural environment, or violations of workers’ rights. Indeed, although phrased in different terminologies and hardly engaging in a dialogue, the critical and the governance debates share much more of a normative orientation than meets the eye. Both sides worry about the negative effects of unrestrained capitalist expansion; both are concerned over the democratic legitimacy of transnational private norms; and both are in search of ways of overcoming this state of affairs. Hence it should be possible to agree on the need for a more general theory motivated by the desire to transform the current neoliberal capitalist model. The two approaches also share an emphasis on the transnational dimension of contemporary politics that sets them apart from government-centric approaches. By highlighting the importance of private norms, they both argue that government-centric orthodoxy is unable to account for important forms of cross-border co-operation. In terms of developing analytical alternatives to this orthodoxy, the two strands of debate discussed in this chapter are again complementary: Whereas governance approaches offer a fairly precise analytical framework for the development and enforcement of transnational private norms, critical political economy approaches locate these microprocesses in the overall development of capitalist societies within the current world order. In studying the role coordination service firms play in private transnational regulation of corporate governance standards, for example, a governance approach such as the policy network model, highlights the importance of resource dependencies between coordination service firms and other business; whereas a critical political economy approach points towards the fact that these resource dependencies have only become important as a result of the process of financial disintermediation. Hence private norm enforcement based on inter-firm resource dependencies, works to erode the Rhineland model of capitalism.40

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This is not to deny that there will remain differences, if only because of the fundamentally different ontological assumptions dividing the two strands of research. But rather than declaring these differences immutable and restrict the debate to a conversation among the converted, we might as well try to clarify at least some of the contested issues by empirical research. Thus the core controversy concerning transnational private norms, I would argue, is whether these norms are able to significantly affect business behaviour in any other direction than the neoliberal impetus currently driving the global political economy. While most critical theorists would argue that this is impossible and that private norms tend to foster neoliberalism, governance theorists assume that here resides the very potential of transnational private norms. But if there were a measure of agreement on what would count as a substantial, transformative impact of private norms on the current neoliberal organization of capitalism, what would stand in the way of trying to answer this question empirically?41 Let me draw up, from this vantage point, an empirical research agenda. On the one hand, governance-oriented studies of corporate social responsibility might focus on private norms which, at least in principle, will really hurt business if it behaves in a socially irresponsible way. This would obviously revolve around a viable external enforcement capacity, enjoying broad societal support. In this light it is questionable whether the current focus on codes that depend on enforcement by individual consumers, would be a promising perspective when it comes to redirecting corporate behaviour. Critical studies of the capitalist infrastructure, on the other hand, should be less obsessed with the ways in which transnational private norms are facilitating capitalist exploitation along neoliberal lines. Instead they might try identifying those options capable of restricting exploitative mechanisms and thus contributing to a social transformation of capitalism. Clearly such options have to be broad-based and effective and cannot remain confined to marginal problem-solving. An example of transnational private norms meeting that criterion in principle, could be standards for labour-dominated pension funds42, socially responsible investment43, or alternative rating practices that focus on social/political transformation and ecological preservation.44 In these areas it would then have to be demonstrated that alternative courses of action are indeed possible. During the last few years, the prerequisites for such alternatives have been in fact created by the decline of public pension systems and the tremendous rise of pension fund assets. Since pension funds are mostly financed by company employees, they (or their unions) could now decide to put these assets to a better or less socially harmful use than those prescribed by the current neoliberal norms. Lastly, both strands of research might want to take up the task of developing standards of democratic legitimacy matching transnational private norms and

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perhaps differentiate these norms according to their degree of legitimacy. In combination with developing the complementarities outlined above, this then might enable us to develop a middle-range theory of transnational private norms that explains and normatively assesses the workings of this type of institution in a generalized way, without losing sight of the broader capitalist context. 1. An earlier version of this contribution has been presented at the Politicologenetmaal in Antwerp (27-28 May 2004). I am grateful to the participants for their helpful comments, especially to Markus Haverland. Research for this article has been sponsored by the Nederlandse Organisatie voor Wetenschappelijk Onderzoek/NWO under the programme “The Transnational Political Economy of Corporate Governance Regulation”. 2. A. Nölke, Transnationale Politiknetzwerke. Eine Analyse grenzüberschreitender politischer Entscheidungsprozesse jenseits des regierungszentrischen Modells, (unpublished doctoral thesis, 2003) and “The Relevance of Transnational Policy Networks: Some Examples from the European Commission and the World Bank”, Journal of International Relations and Development, 6: 3 (2003), pp. 277-299; W.H. Reinicke, Global Public Policy: Governing without Government? (Washington, D.C.: Brookings Institution Press, 1998). 3. L. Brozus, I. Take, and K.-D. Wolf, Vergesellschaftung des Regierens? Der Wandel nationaler und internationaler politischer Steuerung unter dem Leitbild der nachhaltigen Entwicklung (Opladen: Leske+Budrich, 2003), pp. 184-189; L. Rieth, “Corporate Social Responsibility in Global Economic Governance: A Comparison of the OECD Guidelines and the UN Global Compact”, in S. A. Schirm (ed.), New Rules for Global Markets: Public and Private Governance in the World Economy (Basingstoke, Palgrave Macmillan, 2004), pp.172-192. 4. K. Dingwerth, “Globale Politiknetzwerke und ihre demokratische Legitimation: Eine Analyse der Weltstaudammkommission”, Zeitschrift für Internationale Beziehungen, 10: 1 (2003), pp. 69-109. 5. A.C. Cutler, V. Haufler, and T. Porter (eds.), Private Authority and International Affairs (Albany, N.Y., State University of New York Press, 1999); R.B. Hall and Th.J. Biersteker (eds.), The Emergence of Private Authority in Global Governance (Cambridge: Cambridge University Press, 2002); R.A. Higgott, G.D. Underhill, and A. Bieler (eds.), Non-State Actors and Authority in the Global System (London: Routledge, 2000). 6. Cutler, Haufler, and Porter, “Private Authority and International Affairs”, op. cit., p. 19 (emphasis in original). 7. E.g., F. Halliday, “State and Society in International Relations”, in M. Banks and M. Shaw (eds.), State and Society in International Relations (Hemel Hempstead: Harvester-Wheatsheaf, 1991), p. 197. 8. S. Strange, The Retreat of the State: The Diffusion of Power in the World Economy (Cambridge: Cambridge University Press, 1996). 9. V. Haufler, A Public Role for the Private Sector: Industry Self-Regulation in a Global Economy (Washington, D.C.: Carnegie Endowment, 2001), p. 19.

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10. See A.C. Cutler, “Artifice, Ideology and Paradox: The Public/Private Distinction in International Law”, Review of International Political Economy, 4: 2 (1997), pp. 261285; “Private Authority in International Trade Relations: The Case of Maritime Transport”, in Cutler, Haufler, and Porter, Private Authority…, op cit., pp. 283-329; and her Private Power and Global Authority: Transnational Merchant Law in the Global Political Economy (Cambridge: Cambridge University Press, 2003); J.-C. Graz, “Between Global Markets and Lex Republica: The Hybrid Power of Standards”, paper prepared for the British International Studies Association annual conference, London 2002; T.L. Sinclair, “Passing Judgement: Credit Rating Processes as Regulatory Mechanisms of Governance in the Emerging World Order”, Review of International Political Economy, 1: 1 (1994), pp. 133-159; and his “BondRating Agencies and Coordination in the Global Political Economy”, in Cutler, Haufler, and Porter, Private Authority..., op cit., pp. 153-168; K. van der Pijl, “Socialisation of Labour and Middle Class Recomposition in Contemporary Capitalism”, paper prepared for the Conference on International Norms, Aix-enProvence, 2003. 11. R. Braun, “Konzerne als Beschützer der Menschenrechte? Zur Bedeutung von Verhaltenskodizes”, in T. Brühl, T. Debiel, B. Hamm, H. Hamm,and J. Martens (eds.), Die Privatisierung der Weltpolitik: Entstaatlichung und Kommerzialisierung im Globalisierungsprozess (Bonn: Dietz, 2001), pp. 257-281; J. Clapp, “The Privatization of Global Environmental Governance: ISO 14000 and the Developing World”, Global Governance, 8 (1998), pp. 295-316; V. Haufler, Dangerous Commerce: Insurance and the Management of International Risk, (Ithaca: Cornell University Press, 1997) and “Self-Regulation and Business Norms: Political Risk, Political Activism”, in Cutler, Haufler, and Porter, Private Authority…, op. cit., pp. 199-222; A. Kolk, R. van Tulder, and C. Welters, “International Codes of Conduct and Corporate Social Responsibility: Can Transnational Corporations Regulate Themselves?”, Transnational Corporations, 8: 1 (1999), pp. 143-179; K. Ronit and V. Schneider, “Private Organizations and their Contribution to Problem-solving in the Global Arena”, in K. Ronit and V. Schneider (eds.), Private Organizations in Global Politics (London: Routledge, 2000), pp. 1-33. This is obviously not a clearcut divide, and there are studies of general business infrastructures such as insurance, credit rating, law and technical standards from a governance view (e.g., V. Haufler, Dangerous Commerce, op. cit.) as well as studies of private codes for corporate social responsibility from a critical political economy perspective, e.g. E. Altvater, “Vernetzung ungleicher Partner: NGOs und Gewerkschaften in der Kampagne für “Codes of Conduct”, in A. Klein, H.-J. Legrand, and Th. Leif (eds.), Neue soziale Bewegungen: Impulse, Bilanzen und Perspektiven ( Opladen,: Westdeutscher Verlag, 1999), pp. 320-337. 12. Ironically, the discussion on transnational private authority has been kicked off by a joint publication involving both strands of research (Cutler, Haufler, and Porter, Private Authority…, op. cit.) and only later evolved into different directions. 13. A. Nölke, “Intra- und interdisziplinäre Vernetzung: Die Überwindung der Regierungszentrik”, in G. Hellmann, K.-D. Wolf and M. Zürn (eds.), Die neuen

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14. 15. 16. 17.

18. 19. 20. 21. 22. 23. 24. 25.

26. 27. 28. 29. 30. 31. 32. 33.

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Internationalen Beziehungen: Forschungsstand und Perspektiven in Deutschland (Baden-Baden: Nomos Verlag, 2003), pp. 519-554. E.g., W. Streeck and Ph. Schmitter (eds.), Private Interest Government: Beyond Market and State (London: Sage, 1985). Cf. J. Blundell and C. Robinson, Regulation Without the State, Occasional Paper 109 (London: The Institute of Economic Affairs, 1999). C.N. Murphy, International Organization and Industrial Change (Oxford: Oxford University Press, 1994) . K. van der Pijl, “The Sovereignty of Capital Impaired: Social Forces and Codes of Conduct for Multinational Corporations”, in H. Overbeek (ed.), Restructuring Hegemony in the Global Political Economy: The Rise of Transnational NeoLiberalism in the 1980s (London: Routledge, 1993), pp. 28-57; F. Engerling, “The Multilateral Investment Agreement”, Transnational Corporations, 5: 3 (1996), pp. 147-166. Graz, “Global Markets…”, op. cit. V. Haufler, “Public and Private Authority in International Governance: Historical Continuity and Change”, paper prepared for the conference on New Technologies and International Governance, Washington DC, 2002, pp. 6-9. Clapp, “Privatization…”, op. cit. Both discussed in Ph. H. Pattberg, “Private Environmental Governance and the Changing Nature of Authority”, paper prepared for the International Studies Association Annual Meeting, Montréal, 2004. Braun, “Konzerne…”, op. cit., p. 271. Haufler, “Public and Private…”, op. cit., p. 10. Ibid., p. 11. K.L. Kollmann, “Marketing Good Behaviour. The Role of Transnational Business Networks in Promoting Standards of Corporate Responsibility”, paper prepared for presentation at the CEEISA/ISA International Convention, Budapest, 26-28 June 2003. Rieth, “Corporate Social Responsibility…”, op. cit., p. 189. Kolk, van Tulder, and Welters, “International Codes of Conduct…”, op. cit., pp. 167170. J. Sundgren, “Self-Regulatory Initiatives in the Global Economy: Exploring the Concept of Private Regimes”, paper prepared for the International Studies Association Annual Meeting, Toronto, 1997. Nölke, “The Relevance…”, op. cit. R.W. Cox, “Social Forces, States and World Orders: Beyond International Relations Theory”, in R.O. Keohane (ed.), Neorealism and its Critics (New York: Columbia University Press, 1986), p. 207 (emphasis in original). Cutler, “Artifice...”, op. cit., and Haufler, “Public and Private…”, op. cit., pp. 2-6. H. Overbeek, “Global Governance, Class, Hegemony: A Historical Materialist Perspective”, Working Papers Political Science No. 01/2004 (Amsterdam: Vrije Universiteit, 2004). Cutler, Haufler, and Porter, Private Authority ..., op. cit., pp. 10-12.

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34. A. Nölke, “Private International Norms in Global Economic Governance: Coordination Service Firms and Corporate Governance”, Working Papers Political Science, No. 06/2003 (Amsterdam: Vrije Universiteit, 2003), pp. 10-5. 35. van der Pijl, “Socialisation…”, op. cit., p. 4. The term “cadre” in this sense is borrowed from the French. 36. Ibid., p. 10. 37. Ibid., pp. 12-13. 38. See the previously cited works by Tim Sinclair and King and Sinclair. 39. Haufler, “Public and Private…”, op. cit., pp. 2-6. 40. Nölke, “Private International Norms...” op. cit., pp. 8-15. 41. Although critical theorists will often dismiss “positivist” methodologies, they will on occasion accept that these do have a place in critical studies, cf. R. W. Cox, “Social Forces, States…”, op. cit., pp. 209, 244. 42. R. Blackburn, “The New Collectivism: Pension Reform, Grey Capitalism and Complex Socialism”, New Left Review, 233 (1999), pp. 3-65; T. Ghilarducci, Labor’s Capital: The Economics and Politics of Private Pensions (Cambridge, Mass.: MIT Press, 1992). 43. P. Kinder, S.D. Lydenberg, and A.L. Domini, Investing for Good: Making Money While Being Socially Responsible, (New York: Harper Business, 1993). 44. E. Hillebrand, “Schlüsselstellung im globalisierten Kapitalismus: Der Einfluss privater Rating-Agenturen auf Finanzmärkte und Politik”, in Brühl et al., op. cit, pp. 150-173.

PART III RIGHTS AND NORMS: POLITICAL AND PHILOSOPHICAL EXPLORATIONS

CHAPTER 10 SOFT LAW, FUZZY LAW, NON-LAW: INTRICACIES OF THE NORMATIVE MARKET JEAN-PAUL CHIDIAC The market is replacing the nation, imposing itself upon the state, and becoming the law: law is being made into a commodity and the law of the market into a market in law.1

The landscape of today’s globalised markets has cast law, and particularly international law, on to centre stage as “globalised law”. However, internationalisation, regionalisation and even re-nationalisation of law are equally involved in the process.2 The question how to regulate globalisation— whether advocated, as by the World Economic Forum, or resisted (e.g., by the World Social Forum)—will be decided by the changing balance of power between the different actors involved. In this chapter, I will address how law, and the shifting boundaries between states and market forces in its development, is involved in this regulatory dynamic.3 In the same process in which, to quote Robert Boyer, “the most globalised businesses attempt to redefine the rules of the game, previously imposed by nation-states, to their own advantage”4, new normative territories and new forms of regulation are opened up. These in turn raise a number of issues about the legal nature, opposability and enforceability of non-state norms. The use of the legal face of globalisation by governments in fact serves to establish the market’s autonomous status, as the private sector driving forward the process also appears to be better suited to the “new space”. The sovereign state under these circumstances gives way to three types of private authorities: the power of the market, moral authority (exercised by non-governmental organisations and transnational social movements), and unlawful powers. New actors (private and mixed) have come to challenge the international state monopoly, capturing the ground abandoned by states and very much setting the parameters of how the states will operate in the changed context.5

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The question that emerges against this background, is how states resisting the liberal order can be held to account. The global market already penalizes any deviance; indeed for governments in search of credibility, the “loss of market confidence evokes the image of the Sword of Damocles”.6 After all, as Ulrich Beck underlines, for smaller or weaker states, there is only one thing worse than being invaded by foreign investors, and that is not being invaded by them. Willingly or unwillingly, the state itself has become an element in the international market.7

The Market and its Meanings For Mireille Delmas-Marty, the market is a vague concept of universal value, but that does not suspend widespread use of the term. The fear is of a sovereign market, and the imposition of its rules on society at large.8 The legal system, too, appears to be changing from a pyramidal structure to a network one, along with the mutation of nationally embedded corporations into global corporate networks. Consensual relations, governed by exchange and contract (raised to the level of what Alain Supiot calls a “universal abstract”), and capable of crossing borders, enjoy preference over rule-based relations. Neoliberalism after all is concerned with the ability of “the economy to release itself from the paradigm that is the nation-state and to provide itself with working rules of a transnational nature”.9 Self-regulation (or co-regulation), which suggests itself as the solution here, does not exclude public actors; nor does it aim to free actors from their responsibilities or endow professionals with a kind of autoamnesty. Yet in banking, accountancy, finance, the standardisation of products, and in telecommunications, private regulation is already stealing a lead on public regulation.10 The political, philosophical and legal consequences of this new distribution of power on the principles of sovereignty and territorial integrity are enormous, and the proliferation of legal norms and their sources certainly contradicts the widespread use of the term “deregulation”. Under the conditions of neoliberal globalisation, legal norms of an apolitical or de-politicised nature, easily develop, and a soft/fuzzy/flexible law will spread as a result. This, critical voices suggest, is “in accordance with the wishes of transnational firms, assisted by state funds provided by the Great Powers”.11 International economic law has all along prided itself on being fluid, flexible, variable and progressive. Nonformalism is a feature of this strand of law; it may emerge from agreements between “non-traditional” subjects. This in contrast with general international law with its emphatic formalism, based on political instead of economicfunctional solidarity. The sanctions available to international economic law are

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specifically designed to ensure the cooperation between members, and to facilitate the return into the fold of troublemakers without resort to punishment. But the contrast between a spontaneous international economic law and a backward-looking, classical international law, has also been contested. What is at stake is not the disappearance of the state but its restructuring—or in the words of Charles Lindblom, “If the market system is a dance, the state provides the dance floor and the orchestra”.12 Obviously, the principal economic actors, the transnational corporations, are predisposed to adjusting global regulation to fit their own logic. In this perspective, the resulting legal regulation, like so much “non-law”, has simply become one of the many tools available to the “market”.13 It is this aspect to which I will confine myself here: the rules of the market as tools for selfregulation. In such areas as the environment or communications, I shall argue that there are pertinent reverberations of the laws of the market that result in law of weak legality.

The Market as a Producer of Law The soft law (droit mou) associated with the economy, must be distinguished from fuzzy law (droit flou), as found in human rights’ law.14 However, each in its own way contributes to a wider process, enabling the market to develop norms of which the legal character is itself contested. What, then, can be said about the role of market forces in developing law and the ability of the market to be the law ? Rules of an informal nature appear in a number of areas—this is what “soft law” refers to.15 Soft law rules are distinguished by the discretion left to the liable party to meet them. In parallel to the distinction introduced by the political scientist, Joseph Nye, between the ability to coerce (hard power) and the ability to persuade (soft power), law which obliges (hard law) can be distinguished from law which brings together (soft law). The margin of discretion in soft law is considered as guaranteeing efficiency and adaptability, as for instance the voluntary regulations in the area of information and communications technology put in place by interested corporations. Although the expression “soft law” does not have a precise legal meaning, it broadly indicates that the guiding principles and recommendations that come under this heading are not legally binding, and thus distinct from hard law (decrees and orders). In the traditional perspective of legal positivism, what is specific about the rule of law is state constraint. The rule of law consequently depends on the authority imposing and sanctioning it.16 Once we accept that law is a normative

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effect of current practice and particular patterns of behaviour, this state-centric perspective becomes less relevant. Soft law instead brings forth “soft constraint”. This is a porous form of law which allows a norm to “legally” emerge outside the state, which thus loses its monopoly over the production of legal norms. The phenomenon of deregulation—a semantic illusion of what in fact is a reconstitution of the normative process—denotes this transfer of power over determining rights and responsibilities. The relocation of norms within the changed set-up (including incentive, negotiation and flexibility), makes it possible that temporary norms emerge; norms that can be improved, reversed, or shifted to self-regulation altogether.17 This soft law does not always replace law in its traditional form, i.e. hard law based on injunctions, constraints and penalties. It may be understood as developing in conjunction with it. Whilst deregulation means that the state no longer has a monopoly in its production, the (actual) quantity of law is not reduced, because norms remain just as necessary.18 Deregulation does not mean less law, but more of a different type of law. Thus arbitration, along with deregulation, contributes to the disengagement of the state. Private merchant law, lex mercatoria, is a further, revealing example of this proliferation of sovereignties.19 The resulting transnational legal order effectively amounts to the export of the predominant legal system. Likewise, lex economica marks the emergence of a world legal order in response to the internationalisation of competition law, and so on and so forth. A treaty imposing legal obligations, can be regarded as hard law, but not every agreement without legal obligations leads to the birth of soft law. The effects of such agreements are quite imprecise. Sometimes they create political or natural (moral) obligations but without being termed soft law.20 Although the result has been variously characterised as a “delegalised order” (Delmas-Marty), or one of “tangled-up hierarchies” (Chemillier-Gendreau), constraint may yet emerge out of recognition of the positive effects of soft law, and allow the law to be hardened. The question may therefore be asked whether the true purpose of such a law is indeed to avoid having “hard” measures in place. Rather, selfregulation (self-contained systems of regulation like lex petrolea, lex internautica or electronica) is seen as preferable to the application of “active” rules of law.21 In other words, the tactic is to break away from law through creation of a law with every bit the same appearance. The environmental field is illustrative of the voluntary approach often adopted in business agreements.22 Examples include corporate social and environmental responsibility, and the concept of eco-efficiency based on the explicit link between improving the environmental and economic performance of business. The Earth Summit held in Rio in 1992 put forward new responsibilities for business with regard to sustainable development, favouring the participation of the private sector in formulating global norms and

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regulations. But should commitment to sustainable development be imposed through public regulation (financial penalties, loss of financial privileges, legal action against businesses and their management), IMF or World Bank conditionality; or be left to companies” free judgment, perhaps reinforced by market incentives such as peer group or consumers pressure? And, as for the content, should the regulatory instrument include precise technical rules, or should it be limited to general principles with a view to it being flexible and adaptable to the various country contexts ? Turning from ambiguous voluntarism to the avoidance of agreement, we get to “fuzzy law”. This type of law, as indicated already, features in protecting human rights, which are indeterminate or at best, weakly determined.23 In the economic sphere, private powers will usually seek to free themselves entirely from legal constraints (e.g., ILO conventions) in favour of an all-powerful contractual freedom.24 Their concern with ensuring protection for investment and related property rights has worked to blur “the line between law and nonlaw… Law has become flexible and fuzzy, it is moulding itself on society rather than imposing on it the rigidity of the old imperial law”.25 The norm of good governance today requires that law be soft, local, relational and fuzzy; this relational law in turn is based on fuzzy norms. This ‘socialised” legal order, shaped by current practice, thus is ‘structured and informed by the social order to which it belongs”. But then, Rocher continues, “rules which are not legal can represent an effective normative discourse, as for example with moral rules and highly respected traditions. These non-legal rules can be even more effective than legal rules. But they are a normative discourse of a different nature to law.”26 Lawyers and legal scholars, C.-A. Morand claims, have not understood that the legal structure has been transformed by a succession of innovations, tending towards a law founded on persuasion and influence. “The model of modern law, which allowed the solution to an infinite number of individual cases to be automatically deduced from the legal norm, is being supplanted by other forms of reasoning which involve weighing up the balance of interests of the relevant parties. This is a unique process which is carried out by applying guiding principles contained in finalised pieces of legislation. These principles play an essential role in the functioning of public policy law, which in the pursuit of specific aims is at the same time exploited and overdetermined”. This ensures the coexistence of heterogeneous public policies and norms. Thus, “guiding principles generate a fuzzy, flexible, complex law structured into networks.”27 Hence what appears as patently incoherent legally, proves to be perfectly logical from an economic point of view. Private transnational powers also intend to impose, in certain areas, zones of non-law: regulation based on “moral imperatives”—a form of self-regulation with a perfectly relative effectiveness—

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being increasingly invoked in the place of political law.28 Non-law operates in between what is legal and illegal, in the space of the extralegal which yet is necessary and valuable for some, specifically where the market economy’s rules of the game are similar to the rules of law.29 The legal void—the absence of law for example where a new social practice or a new piece of technology is concerned—is sometimes a good thing. “Internet-style law” tends to fill the gap.

Variable Modes of Enforcement The field of the environment provides evidence of this normative market. Private actors have learned how to influence the agenda of state discussions, for example, during international negotiations in Rio (biodiversity), Kyoto (climate change) and Cartagena (biosecurity). After Rio, businesses took up the challenge of sustainable development by developing strategies and voluntary instruments. Generally in favour of less formality, and opposed to agreements that are binding, restrictive, prescriptive, technical in form or carrying sanctions, business organisations such as the International Chamber of Commerce or the World Business Council on Sustainable Development favour soft law, with agreements based on voluntary initiatives and adaptability. In areas such as the Internet, which are complex and subject to frequent changes, regulation is often through essentially formal rules that are still labelled under the term soft law.30 This leaves a high degree of discretion to the liable party to set particular thresholds or achieve certain results. The texts setting out general principles give actors a significant margin of discretion over the means and strategies designed to bring about the desired outcomes. The state confines itself to supervising from afar, preserving the option of intervening in only the most problematic situations. In the area of information, the new ways of regulation reveal how law is increasingly challenged by normative sources arising from a “privatisation of the rules”. The technical protocols and technological choices of network actors, along with their chosen patterns of behaviour, contribute to this. In the information and communications sector, voluntary regulation by businesses— the lex informatica—is defined by the method of self-regulation. This remains the case even when the limits of this method are quickly reached; modest results are nonetheless preferable to a traditional but inappropriate state system of regulation. As to the means of intervention, the tacit aim of business is to stay ahead of the public authorities to avoid additional constraints, to manage the risks associated with the market (industrial accidents, defending the brand name, handling internal unrest by employees), and to gain access to new markets

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(privatisation of parts of the public sector, ethical/eco-friendly consumer niches, promoting the brand name, access to ethical investment opportunities). Companies thus have developed a good range of ethical instruments to help implement their agreements: x Guiding principles shape global agreements as regards the environment, social issues and business governance. The aim is for these to be acceptable to all firms in international business. They cover the whole of their activities and dealings with all concerned parties. Established on the initiative of international organisations (OECD, United Nations, ILO, European Union), they do not necessarily mention how these agreements are to be enforced or assessed. Some are satisfied with guiding principles alone (Global Compact, the OECD’s guiding principles, the ILO’s tripartite declaration), others attempt to indicate precisely how these are to be implemented (Global Reporting Initiative, Echo-Management and Audit Scheme). x Codes of conduct and sector charters are instruments of self-regulation which are voluntary, non-restrictive and of a private nature. They may relate to a specific sector (environment, transport, food, human rights, workers” rights) or to particular companies (Auchan, Levi’s, Nike, Adidas).31 They enable self-control as the instruments are placed under the authority of the sector concerned, and allow some NGOs to retain the practice of “naming and shaming”. The codes (the choice of the term reveals a willingness to create norms or at least to give the appearance of doing so) are most often progressive in form. Although they are not obligatory in law, the codes are obligatory in the sense that they give proof of professional discipline and incur a certain moral responsibility. Codes of conduct are distinguished from social labels by the fact that firms are always associated with their definition (labels are generally proposed by those outside of the business). The professional sector in question has at its disposal adequate means of pressure and dissuasion. If the need arises, the judge and arbiter would be able to put the same code into law and make it obligatory. In other words, the codes could add to the availability of “hard law”.32 If the codes are a way to give definite form to new professional practices, the purely promotional nature of some codes has come to discredit them. At the legal level, the failure to apply a code can be taken as evidence of duplicitous publicity and as a means of unfair competition. There remain questions over how the codes are checked and how the system of product traceability works. Examples of sector charters are the World Business Council For Sustainable

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Development, World Responsible Apparel Product, the Fair Labour Association, and the International Council of Toy Industries. x The codes also contribute to the growing development of procedures of international standardisation. Norms of social and environmental production represent terms of reference concerning the performance of business, a product chain, or their relationship with all concerned parties. A neutral certification body typically guarantees respect of these terms. Standardisation, despite its purely technical appearance, has acquired the status of a private source of law. It contributes to the complex process of creating law, and to transferring the sources of law to private economic powers. The setting up of ISO norms is one example of proposals coming from groups of private economic interests. Examples include ISO 14000, SA 8000, AA 1000, and the Forest Stewardship Council.33 x Product labels have the same logic as norms of production with the difference that certification is about the final product and not applied to the whole business. A business may label only one part of its range of products. These instruments are a specific response to market incentives emerging out of “informed”, “eco-friendly” and “fair” consumer niches. Examples of fair-trade labels (Flo-Max Havelaar-Transfair, Forest Stewardship Council, European Eco-labels, Ifoam Seal, Belgian Social Label). The enforceability of these instruments has seen real changes and invited further proposals. Environmental law has moved from soft law to one increasingly adopting restrictive legislation, in particular as far as manufacturers are concerned. This has occurred as a result of greater public awareness of environmental issues, but also because of the increasingly frequent and publicised pressure exerted by movements concerned with the protection of the environment and by institutions, both community as internationally based. The instruments referred to above contribute to this “self-referential” or “selforganised” order, and have the advantage of being flexible and adaptable. However, there is the risk that they also encourage “self-legitimisation”. International civil society organisations are unanimous in denouncing the fact that the voluntary approach alone is used to implement business agreements on sustainable development. All the more so because organisations within the United Nations seem to be accepting this—see, for instance, the Global Compact partnership. Given that the entire cost of implementing the voluntary approach is borne by business, this risks leaving only multinationals from industrialised countries with sufficient means to be “responsible”. Furthermore, without external checks, the voluntary approach can be seen as an alternative to conventional strategies associated with public relations and protection of the

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brand name—the view, notably, of the International Federation for Human Rights. Business agreements essentially set out qualitative objectives (which are difficult to check), whilst voluntary instruments are likely to have little impact compared to conventional instruments of environmental policy (taxes, restrictive norms). The voluntary approach equally raises the issue of “privatising” international law, with the risk that the common interest loses out to business interests. Finally, the proliferation and range of (voluntary) instruments available to businesses—the same multinational may take advantage of the whole range without there necessarily being an overall consistency—makes it difficult for a third party such as an NGO, to monitor and appraise them. Some nongovernmental organisations have therefore proposed to create an economic and social court in the United Nations. Likewise, codes of conduct could become restrictive and be subject to sanctions, thus suspending the softness of this law. Several international NGOs, in the lead-up to the summit in Johannesburg in September 2002, also put forward reforms to direct business agreements towards a more restrictive approach. These would be agreed within the framework of international organisations, starting with the UN system. Besides the idea of an international convention of multinational corporations, proposed by Friends of the Earth International, the International Forum on Globalization has suggested creating a United Nations agency on corporate responsibility.34 Its aim would be to investigate reprehensible management practices and to support potential legal action. Similarly, Christian Aid proposes creating a global authority to regulate multinationals’ standards and codes of conduct. Other NGOs are calling for the reestablishment of the Centre on Transnational Corporations in the United Nations, which existed from 1974 to 1993. This might follow a recommendation from a special reporter on multinationals to the Commission on Human Rights, or through including multinational activities within the new International Criminal Court’s area of competence. The aim is to bring about a synergy between economic efficiency and social justice in international economic relations, and to move the economy closer to its subject—humanity.

Conclusion: Which Form of Governance for Which Problem? As Paul Valéry put it in one of his aphorisms, “We are facing a threat from two disasters: order and disorder”. Might “governance” be the solution? The term, not unlike the concept of globalisation, owes its success to its wide acceptance, to its dynamic nature and to a welcome neutrality. The flexibility, softness and vagueness of the concept are its strengths, as indeed is the case with law which

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governance could end up incorporating to the degree it invades the space previously occupied by formal state law.35 Good governance, implying political democracy (globalisation for the people) and neoliberal globalisation for the economy, would then incorporate the processes by which collective international rules are elaborated, decided, justified, implemented and checked. However, the risk is that flexible forms of regulation replace legal norms, and that the state no longer upholds the public interest. Markets, too, require law for their proper functioning. Here the concept of governance becomes the victim of its superficial attractiveness, which encourages ambiguity and confusion and allows for very different interpretations. As a modern instrument of social and economic regulation, governance works to diminish the role of the state: civil society, and in particular market actors, are lowering their expectations of its presence and performance. Contemporary theories of legal pluralism, complemented by theories of reflexive law and inter-normativity, call into question the traditional status of the state as the sole producer of law. Even so they do not deny the state its capacity to legitimise the workings of the current legal system, which should resist “a “doctrinaire” pressure from the world of business” and prevent “the economisation of democracy”. For, as François Crépeau puts it, “what is seen to give the market its legitimacy is its efficient productivity whilst democratic legitimacy must, according to the principle of equality, be identified with the distribution of wealth, and not simply with producing it”.36 Global governance could be the political response to economic globalisation, which has left the centralised and institutionalised model of the nation-state behind. Does this mean, as the American political scientist Raymond Vernon believes, that “the world is sliding into an era of inevitable conflicts between transnational corporations and states?”37 Despite the vagueness of the concept of globalisation (and its equally imprecise counterpart, governance), there remains the idea that globalisation is still a “political issue” which opens up a new cosmopolitanism combining universal values, concerns for the common good and political participation. But at the same time, transnational corporations are seen as organising their own, autonomous economic system that threatens to replace the interstate international order, or at least to seriously undermine it.38 Whilst law retains an appearance of sovereignty in the process, this is rather “a reflection of the will of dominant economic interests”.39 Idealisation of the market and its laws, presented as a virtuous alternative to centralised and overbearing state regulation, leads to demands for autonomy for those who in one way or another are professionally associated with the process of globalisation. Yet, in the words of Michel Beaud, “between three to twelve firms alone are responsible for the big strategic choices for each “global” product, and every “global” market. In total, a few hundred firms. Only a small

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number of capitalist oligarchies bring their leading merchandise on to the global stage”. Globalisation therefore is the outcome of strategies of private and public actors to impose their interests, described as the “only rational form of universality”.40 Hence the fact that a global market may produce its own rules and means to regulate disputes only raises further questions about its legitimacy and about democracy.41 Simply evoking the notion of civil society is not enough to resolve this, however often civil society is mentioned as the only body able to respond to state failings. It does, however, constitute a third area between the public and the private spheres, and whilst civil society is set apart from the market and the state, it retains an influence over both.42 International law, then, remains essentially interstate. It tends to be more about harmonising interests than about “consecrating” values, even though the 21st century has witnessed a definite growth on the ideological dimension.43 But will this law serve the interests of the few against the many? After all it remains to be seen how an ideology supporting a system that benefits only the upper third of the population will retain its legitimacy; certainly those who have brought about and benefited from it, find themselves facing a growing mood of confusion, to say the least. The law meanwhile has changed, renewed itself, and has become international, giving rise to the diffuse and often uncertain descriptions I have discussed above. Whilst it is and remains international, it could equally be termed “transnational”;44 other labels suggested include “postnational” and “alter-national”, corresponding with different understandings of the political space created by the process of globalisation and the potential for a reinsertion of democracy into it.45 Law meanwhile remains the art of controversy founded on a dialectic in which none of the parties is ever completely right or wrong. Gaining the upper hand is never just about assertion, and indeed much more a matter of convincing. Since the economic and political environment affect how law is produced and implemented, law cannot remain torn between how it appears and what it claims. Whether the law in the making will enjoy legitimacy, depends on the solution found to deal with the slackening of its normativity.46 Instrumental law, which has emerged from economic globalisation, must give way to a highly political law to reconcile international commercialisation with the lives and interests of those no longer willing to suffer its negative effects. According to the sociologist Alain Touraine, inequality is not the result, but the driving force of the current economic system.47 There have been many changes in the system: industrial society gave way to capitalist society; the market economy has brought the market society and an energy-based economy into being; the last few years have seen the emergence of an information-based economy. This information (so long as it is not an instrument of ideological

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propaganda as it was when it initially appeared) will allow those at the sharp end of the liberalisation of international business to actively participate in improving its most objectionable traits. Whether the law that has emerged in the context of globalisation and governance will facilitate or block this participation, remains to be seen. Translated from the French by Mark Thomson 1. J.-A. Mazères, “L’un et le multiple dans la dialectique marché-nation”, in B. Stern (ed.), Marché et nation: regards croisés (Paris: Montchrestien, 1995), p. 146. 2. M. Chemillier-Gendreau and Y. Moulier-Boutang (eds.), Le droit dans la mondialisation (Paris: Presses Universitaires de France, 2001), p. 6 ; G. Devin and C. Gautier, “Mondialisation et droit international public: Entre réalismes juridique et politique”, in J. Laroche (ed.), Mondialisation et gouvernance mondiale (Paris: Presses Universitaires de France, 2003), p. 257. 3. B. Stern, “How to Regulate Globalization”, in M. Byers (ed.), The Role of Law in International Politics (Oxford: Oxford University Press, 2000), pp. 247-268 ; M-A. Frison-Roche (ed.), Droit et économie de la régulation (2 vols.), (Paris: Presses de Sciences Po/Dalloz, 2004). 4. R. Boyer, “Globalisation. Quatre définitions pour un mot fétiche”, in S. Cordellier (ed.), La mondialisation au-delà des mythes (Paris: La Découverte / Poche, 2000), pp. 15-16; D. Mockle, Mondialisation et Etat de droit (Bruxelles: Bruylant, 2002). 5. R. Higgott, Non-State Actors and Authority in the Global System (New York: Routledge, 2000). 6. P. Hugon, “L’évolution de la pensée économique et la mondialisation”, Regards croisés sur la mondialisation 26 (1998) p. 53. 7. U. Beck, “La fin du néolibéralisme”, Le Monde, 9 November 2001; D. Carreau and P. Juillard, Droit international économique (Paris: Dalloz, 2003), p. 28. 8. M. Delmas-Marty, Le relatif et l’universel - Les forces imaginaires du droit (Paris: Seuil, 2004), pp. 96-119; J.-P. Fitoussi, La démocratie et le marché (Paris: Grasset, 2004). 9. U. Beck in Le Monde, 9 November 2001; G. Al-Khatib, La part du droit dans l’organisation économique internationale contemporaine - Essai d’évaluation (Bruxelles: Bruylant / Université libre de Bruxelles, 1994). 10. J. Chevallier, “De quelques usages du concept de régulation”, in M. Miaille (ed.) La régulation entre droit et politique (Paris: L’Harmattan, 1995), p. 71; A. Jeammaud, “Introduction à la sémantique de la régulation juridique”, in J. Clam and G. Martin (eds.), Les transformations de la régulation juridique (Paris: LGDJ, 1998), p. 47. See also chapter 8, this volume. 11. R. Charvin, “Régulation juridique et mondialisation néolibérale. Droit mou, droit flou et non-droit”, Actualité et Droit International, January 2002 (www.ridi.org/adi). 12. C. Lindblom, The Market System. What it Is, How it Works and What to Make of It (New Haven: Yale University Press, 2001), p. 42 ; J. Chevallier, L’Etat post-moderne (Paris: LGDJ, 2003).

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13. P. Weil, “Vers une normativité relative en droit international ?”, Revue générale de droit international public 1 (1982) p. 12. 14. M. Delmas-Marty, Trois défis pour un droit mondial (Paris: Seuil, 1998), pp. 76104. 15. T.-G. Wesierski, “A Framework for Understanding Soft Law”, Mc Gill Law Journal 30 (1984) p. 37. M.E. O’Connell, “The Role of Soft Law in a Global Order”, in D. Shelton (ed.), Commitment and Compliance - The Role of Non-Binding Norms in the International Legal System (Oxford: Oxford University Press, 2003), pp. 100-114. 16. D. de Béchillon, Qu’est-ce qu’une règle de droit ? (Paris: Odile Jacob, 1997), p. 239; L. Boy, “Normes”, Revue internationale de droit économique, 2 (1998) p. 129. 17. Delmas-Marty, Le relatif et l’universel…. , op. cit., pp. 9-11. 18. M. van de Kerchove, “Les différentes formes de baisse de la pression juridique et leurs principaux enjeux”, Cahiers de recherche sociologique 13 (1989) p. 11. 19. J. S. Bhandari and A. O. Sykes, Economic dimensions in international law. Comparative and empirical perspectives (Cambridge: Cambridge University Press, 1997), pp. 285-286. 20. The distinction between law (“obligatoriness”) and morality as a specific feature of the legal domain. Imperfect law (moral rules) is opposed to perfect law (legal rules) which obliges in a restrictive way (Pufendorf, Thomasius). In international law, “obligatoriness” would not be a feature of the considered object (the norm) but would depend on how certain bodies (state or not) look upon the object. 21. Al-Khatib, La part du droit…, op. cit., p. 32. 22. Y. Otani, “Un essai sur le caractère juridique des normes internationales, notamment dans le domaine du droit humanitaire et du droit environnemental terrestre”, in M. Prieur and C. Lambrechts (eds.), Mankind and the environment : what rights for the twenty-first century? Hommage à A. Kiss (Paris: Frison Roche, 1998), pp. 45-54. See also chapter 11, this volume. 23. Compare the non-objectivity of law and the theories of non-fulfilment of the legal system: the vagueness of law (M. Delmas-Marty), the concept of open texture (H.L.A. Hart) or the concept of undefined terms (P. Amselek) of the norm. 24. Charvin, “Régulation juridique…”, op. cit. 25. G. Paquet, “Le droit à l”épreuve de la gouvernance”, Evolution des systèmes juridiques, bijuridisme et commerce international, Ottawa (20-21 octobre 2000). 26. G. Rocher, “Pour une sociologie des ordres juridiques”, Cahiers de droit 91 (1988) pp. 103-105 ; J. Chevallier, “L’ordre juridique”, in Le droit en procès (Paris: Presses Universitaires de France, 1984), pp. 7-49. 27. C.-A. Morand, Le droit néo-moderne des politiques publiques (Paris: LGDJ, 1998). 28. J. Carbonnier, “L’hypothèse de non-droit”, Archives de philosophie du droit (1963) p. 553; Delmas-Marty, Trois défis…, op. cit., pp. 71-74. 29. P. Jestaz, Le droit (Paris: Dalloz, 2002), pp. 74-76 ; Al-Khatib, La part du droit…, op. cit., pp. 46-50. 30. P. Amblard, Régulation de l’Internet – L’élaboration des règles de conduite par le dialogue internormatif (Bruxelles: Bruylant, 2004), pp. 97-96.

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31. O. Boiral, “Certifier la bonne conduite des entreprises: enjeux et perspectives d’avenir”, Revue internationale du Travail 142:3 (2003) pp. 345-369. 32. Delmas-Marty, Trois défis…, op. cit., pp. 58-60 and 65-70. 33. L. Boy, “La valeur juridique de la normalisation et de la certification”, in Clam and Martin, Les transformations…, op. cit., p. 183; see chapter 8 of this collection. 34. For Julien Freud, “the sovereign person is the one who holds or assumes the power to decide in the last instance” (L’essence du politique) or “Nowadays, to be sovereign is to be responsible” according to Kofi Annan. 35. D. Held, Un nouveau contrat mondial - Pour une gouvernance social-démocrate (Paris: Presses de Sciences Po, 2005), pp. 203-257 ; L. Cohen-Tanugi, “Le droit sans les Etats ?”, Archives de philosophie du droit (APD) 47 (2003) pp. 285-289 ; Solagral (solidarité agricole et alimentaire), “Gouvernance locale : la scène et les acteurs”, Courrier de la Planète 58 (2000) (www.solagral.org). 36. F. Crépeau (ed.), Mondialisation des échanges et fonctions de l’État (Bruxelles: Bruylant, 1997). 37. W. Uchatius, “Konzerne gegen Nationen”, Die Zeit, 13 July 2000 ; R. Vernon quoted in U. Guérot, “Une nouvelle interdépendance entre l’économie et le politique?”, Problèmes économiques, 2713 (2001) p. 3. 38. Carreau and Juillard, Droit international économique, op.cit., p. 27. 39. L. Gimalac, “Mondialisation et souverainetés: les termes juridiques du débat dans le cadre du commerce international”, Nouveaux Monde 11 (2000) pp. 104-105. 40. M. Beaud quoted in Regards croisés sur la mondialisation, 26 (1998) p. 58. 41. Delmas-Marty, Trois défis…, op. cit., p. 141; P. Bourdieu, Contre-feux 2, (Paris: Raisons d’Agir, 2001), p. 87. 42. D. Leydet, “Mondialisation et démocratie: la notion de société civile globale”, in Crépeau, Mondialisation des échanges…, op. cit, pp. 255-279 ; B. Frydman, “Vers un statut de la société civile dans l’ordre international”, Droits fondamentaux 1 (2001) p. 152 (www.revue-df.org). 43. C. Vallée, Droit international public (Paris: Montchrestien, 1981), p. 612; J. Combacau and S. Sur, Droit international public (Paris: Montchrestien, 2004), p. 30 ; R. Rich, “Bringing Democracy into International Law”, Journal of Democracy 12 (2001) pp. 20-23. 44. “All law which regulates actions or events that transcend national frontiers”. P. Jessup, Transnational Law (New Haven : Yale University Press, 1956), p. 2. 45. P. Lamy, La démocratie-monde - Pour une autre gouvernance globale (Paris: Seuil, 2004), pp. 59-85. 46. Devin and Gautier, in Laroche, op. cit., p. 256. 47. Quote taken from the television programme ”Bouillon de culture” on the subject: “La nouvelle économie : rock ou toc ?”, September 2000. A. Touraine, Un nouveau paradigme - Pour comprendre le monde d’aujourd’hui (Paris: Fayard, 2005).

CHAPTER 11 THE NORMS DERIVED FROM SUSTAINABLE DEVELOPMENT MARJUKKA LAAKSO In 1972, an international environmental conference in Stockholm established the United Nations Environmental Programme (UNEP); twenty years later, environmental conservation programmes undertaken in several countries and separate agreements between them culminated in the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro.1 In the meantime the concept of ‘sustainable development” was coined and popularised by the 1987 Brundtland Report. Although never formally defined by UNCED, sustainable development henceforth has remained a key item on the global agenda.2 In the formulation of the Brundtland Report, sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs.3

The concept, then, reaches well beyond the ecological aspect. It combines notions of development and human well-being, as well as economic and social sustainability. There are several normative ideas implied in sustainable development besides environmental concern, such as equity, participation, prudence, and welfare. As Lafferty and Meadowcroft have argued, sustainable development signals a shift in our understanding of the linkages between the environment and development, between different policy domains and between local, regional, national and international political processes.4 However, the very acceptance of a broad and abstract term like sustainable development has given rise to different, sometimes conflicting interpretations of the concept, complicating its operationalisation and implementation.

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Analysing Sustainable Development Sustainable development is a contested concept, and concern over its precise meaning can arise for either technocratic or political reasons.5 The technocratic view maintains that sustainable development can only be made operational in policy terms if a single and precise meaning can be agreed upon. Political concern arises (especially among environmentalists) on account of the free for all that may result from a vague definition. If we do not unequivocally establish the meaning of sustainable development first, there is no limit to what can be brought under its heading: even excessive economic growth can then be declared sustainable. Definition of a concept occurs at two levels. The level of core ideas (where it is often easier to define what is not in accordance with a core idea than defining what is); and at the level of its application in practice.6 Sustainable development is contested at both levels, but here I will investigate the core idea. Let us therefore investigate the most obvious implications of the concept as such, before discussing the actual global norms that can be argued to derive from it. The Concept of Sustainability ‘Sustainable use”, ‘sustainable growth” and ‘sustainable development” have been used interchangeably, as if their meanings were the same. But ‘sustainable growth” is a contradictory concept because nothing can grow indefinitely. “Sustainable use” can be applied only to renewable resources, where it refers to the use of a resource at a rate allowing its regeneration. “Sustainable development”, then, must mean something broader.7 Sustainability can be categorized in several ways. From the definition of sustainable income by Sir John Hicks in 1946, which stresses that consumption enabled by that income should not negatively affect the level of welfare over time, to that of sustainability by Robert Solow nearly 50 years later (which emphasises the obligation to conduct ourselves in such a way that future generations will be able to enjoy the same welfare as we do), the concept evolved from a purely economic notion to a broad conception of human wellbeing and development.8 But this does not make ‘sustainability” as such a normative concept; it only describes a factual condition; the moral goodness or badness of sustainability is not at issue. Not all sustainable practices or systems are necessarily good: slavery for instance was broadly sustainable without being morally acceptable.9 Sustainable processes, Attfield writes, are simply those

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Sustainable Development capable of being maintained indefinitely and which undermine neither themselves, nor the segments of nature on which they depend, nor other sustainable societies, nor the segments of nature those societies depend, nor a potentially sustainable world system.10

Before going into the question of the nature of the system to be maintained by sustainable development, let us briefly reflect on its variability. Degrees of Sustainability If we consider the different resource categories (nature, humanity) as “capitals”, the issue of their interchangeability is one aspect of sustainability, and a difficult one at that. Alan Holland’s taxonomy presents natural capital as utilized or potentially utilizable in human society. I have added “wild nature” as those aspects of nature beyond utilization. Human-made capital then consists of both artefacts (buildings, machinery) and human capital (knowledge, skills, virtues). Cultivated capital attached to both natural and human-made refers to cultivated animals, plants and their concomitants.11 In Figure 11.1, these different categories of capital are presented schematically. Weak sustainability (traditional economic sustainability) applies when an economy saves more than the combined depreciation of natural and humanmade capital.12 It is based on the assumption of perfect substitutability between the different types of resources. Weak sustainability attaches only an instrumental value to nature: eco-systemic processes derive their value only from human use—there are no inherent reasons to preserve natural processes or resources as such. From the environmentalist viewpoint, this is unacceptable, because it might entail substitution of practically all forms of natural capital. As Goodland and Daly point out, society would be worse off in this case, because natural and human-made capitals are not perfect substitutes—we only have to think of clean air, clean soil, or biodiversity.13 Intermediate sustainability means that in addition to keeping the total amount of capital intact, its composition from natural, human-made and human capitals should also be taken into account, and critical levels of each type of capital set. This assumes that human-made and natural capitals are only

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Figure 11.1. A Taxonomy of Resources as Capitals Total capital

Natural capital

Human-made capital

[Wild nature] Cultivated capital

Artefacts

Human capital

Source: A. Holland, ‘Sustainability: Should We Start Here?’, in A. Dobson, (ed.), Fairness and Futurity. Essays on Environmental Sustainability and Social Justice, (Oxford: Oxford University Press, 1999), p. 51, ‘wild nature’ added.

substitutable within limits. The main problem is the definition of these limits.14 These “margin” problems will have to be solved, but if they are, intermediate sustainability looks like the most viable degree of sustainability. Strong sustainability, finally, presumes that certain forms of natural capital are deemed critical and not substitutable by human-made capital.15 Basically each different form of capital must remain intact separately. This would imply that when a resource is sought in one sphere of capital, the compensation must be found within that same sphere, and indefinitely so. Therefore, strong sustainability claims the next generations to have the same opportunities to use the non-renewable natural resources as we have, implying in practice no usage at all now. Goodland and Daly consider this as the most preferable form of sustainability, but I think its implications and constraints on human action are too dramatic to be feasible.16 In addition to capital stocks of resources, sustainability must also include the future ability to manage pollution and waste. Hence we need a scale for classifying these risks. Norton suggests a scale that runs from inconvenience (for example, higher real resource costs) via different forms of impoverishment, to extinction (irreversibility of damages). Whilst some of our obligations to future generations may be negotiable since they only incur small risks (substitutability of different resources, labour etc.), the ability or possibility of negotiating decreases as the probability of irreversible damage increases.17

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Dimensions of Sustainable Development Sustainable development is made up of economic, ecological and social sustainabilities. They present different aspects and necessary conditions for human well-being, and only by combining them, we obtain the full view of the system to be sustained—human society in its entirety and its well-being. Economic Sustainability Both the Brundtland Report and the Rio Declaration require a certain amount of economic growth and development in order to relieve global poverty and achieve a sustainable society. Economic sustainability is simply defined as the maintenance of capital and is therefore not case-sensitive to the type of resource. The nature of economic growth is the topic of a vivid, ongoing debate. Does growth mean increasing material welfare or could it be—at least in developed countries—about increasing the quality of life? And do finite environmental resources not always place a limit on economic growth irrespective of these effects? Sustainable development surely might consist of a qualitative improvement (e.g. richer environmental diversity or social relations) rather than material growth, but economic growth remains important in order to achieve the fulfilment of basic needs of all humans. Stenmark’s principle of economic growth states that we ought to strive for economic growth provided that: “a) such growth contributes to ensuring that the basic needs of all human beings are satisfied and b) such growth takes place in an ecologically sustainable way.”18 Hence, the environment as a limited resource is primary to economic growth in this sense—economic growth is important only in order to achieve the fulfilment of basic needs of all humans. We can also separate the concept of development from that of (economic) growth. Sustainable development tries to combine quantity-growth and qualitive improvement. “To grow means to “increase in size (amount, degree) by assimilation”; to develop means to “expand, bring out potentialities, capabilities; to advance from a lower to a higher state”.19 So development is sustainable, throughput growth is not. Sustainability demands that we separate what part of a value-added increase is due to quantity change and what part to quality improvement. For example, population growth demands some economic growth in order to meet the needs of the present and future generations, but development, especially in the developed and rich countries, refers to something other than pure and simple economic growth. According to Goodland and Daly, the majority of the environmental damages (e.g. air and water pollution, climate

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change, soil erosion) are due to throughput growth in developed countries. While some economic growth is needed in developing countries in the name of equality and justice (as stated in Brundtland Report), the rich Western countries can afford to limit their growth and concentrate on development. One of the key problems here is substitutability. The economic concept does not separate out the forms of capital; hence the status of nature, natural capital and the environment is very low. For instance, the material consumption that is a vital aspect of western culture is economically desirable but ecologically untenable. Also, sustainability as purely economic resource sufficiency is not enough to secure the environment, say, as an aesthetic and recreational resource. When the spheres of different resources or capitals are not kept separate, monetary aspects may as a rule override all other values. Ecological Sustainability Ecological sustainability refers either to the carrying capacity of nature or maintaining natural capital. Ecological sustainability seeks to improve human welfare by protecting the sources of natural materials used for human use and ensuring that the sinks for human waste are not exceeded.20 Sustainable development is a process rather than an institution; its defining characteristic is the sustenance of development, not the conservation of nature. This implies, first, that not every environmental problem is a problem related to sustainable development; an activity with negative environmental effects is not necessarily contradictory to sustainable development, it is the context that decides whether an activity is sustainable or not. Also, an activity that is not sustainable itself, can yet be part of a broader process that is. Otherwise, nonrenewable materials for instance could not be consumed at all. Likewise, there is nothing inherently wrong with clearing forests for farming, as long as this is done prudently and the land thus used is not withdrawn from other, more useful destinations.21 In the final analysis, as far as the environment is concerned, the ethics of sustainable development are anchored in anthropocentrism. This anthropocentrism differs from the traditional anthropocentrism on at least one central issue: we have obligations to people living now and to future generations. Intergenerational justice and ecological principles (like the finite quality of natural resources and the vulnerability of nature) dictate that the use of natural resources should be as efficient and far-sighted as possible.22 The environment, in other words, imposes limits on human action where irreversible damage would threaten ecosystems and hence, humans themselves. Ecological sustainability, then, refers to the level below which biodiversity, environmental integrity and the ability of ecosystems to regenerate, become

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endangered. Below that level, negotiations, substitutions, or compensations between different forms of capital are no longer acceptable. The primary motive behind this is always the concern over a possible decrease in human well-being, and ultimately, human life itself. Social Sustainability and Societal Continuity How are we to conceptualise social sustainability? Here we have to think of, for example, systematic community participation, a strong civil society including maintaining the human capital, i.e., social cohesion, cultural identity, institutions, feeling of community, laws, shared values, rights, etc. It should be emphasized that social sustainability does not automatically include ecological sustainability, or even an environmentally friendly attitude. One might even argue that in principle, society can be sustained whilst certain aspects of the natural environment such as clean air, are substituted by artificial means. It seems obvious that in practice, however, this would be a near impossible task, to which the preservation of natural air quality would always be preferable. Although the concept of sustainable development is rooted in an awareness that economic growth and ecological limits over time become more closely connected, the Brundtland Report prioritises human beings and their welfare over ecological sustainability per se. It introduces, notably, a concept of social equity. It has therefore been argued that social sustainability is the fundamental goal of sustainable development, since the environment is seen as the basis for human existence and an instrument to further its well-being.23 Agreeing with the view that sustainable development is an anthropocentric notion aiming at human well-being, I would suggest that social sustainability relates these aspects at individual level. Sustainable development, then, as pulling together the different sustainabilities, concerns also broader and more political issues, which for the sake of conceptual clarity I would describe as societal continuity. Societal continuity constitutes the overall aim of sustainable development, and from it flow the norms that the concept prescribes: in addition of individual human well-being (i.e. social sustainability), the norm of justice between members of the present generations (intra-generational or global justice) and justice between generations (inter-generational justice). Sustainable development, then, at the core includes ideals of democracy, justice, equality and well-being—the ideals, in other words, that create the possibilities for continual development both nationally and internationally. In Jacobs’ terms, sustainable development consists of a level of core ideas (societal continuity), and an interpretational level (“a conception” in Jacobs’ terms) that involves practice and politics based on dimensions of sustainability.

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Now if sustainable development has to be safeguarded on all three dimensions—the economic, social and ecological—it is obvious that neglecting one aspect threatens the process of societal continuity as a whole. This is what the three dimensions converge on, and around which priorities should revolve.24 So even if we might think of certain trade-offs between the social and the ecological at the level of intermediate sustainability, there are limits to what is negotiable or can be compensated. In terms of Norton’s scales, inconvenience in the social sustainability sphere, e.g., a reduction or higher costs of consumption, might by acceptable in exchange for avoiding extinction in the environmental sphere; but not beyond. Let me now look at the specific global norms that flow from sustainable development.

Global Norms of Sustainable Development The norms of sustainable development as societal continuity may be listed as follows: 1. Overall well-being of humans within the limits of ecological sustainability; 2. Global equality; 3. Equality between present and future generations. Items 2 and 3 require a closer inspection to establish their normative implications of terms of justice. Intragenerational Justice Sustainable development unequivocally prescribed equality between and among generations. The overall aim of human well-being means securing the basic needs of all people. Social justice constitutes the very core of sustainable development and its primary developmental goal; it presumes the fulfilment of basic needs and equal opportunity and hence, it entails a commitment to redistribution between rich and poor—both nationally and globally.25 Indeed poverty is seen as “a major cause and effect of global environmental problems”.26 Poverty is one of the drivers of population growth, which in turn has serious implications for future ecosystems and natural resources. The idea of equity is linked to environmental conservation through the so-called “environmental poverty thesis”. This asserts that poor people are forced to overuse the environmental resources near them, threatening the viability of local ecosystems; hence they must access other resources in order to survive. This is

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often ensured through international beneficence and redistribution of wealth. It certainly requires a concentration on the future; not only do the presently wealthy nations and people have to assist today’s poor, but future generations as well.27 Lafferty and Meadowcroft call this the principle of differentiated responsibility: the rich countries have a special responsibility they need to take seriously. They after all are mostly to blame for consuming natural resources, causing climate change and environmental degradation; but they are also in a position to compensate for their own actions. If these societies do not take action, no one will.28 The economic growth required to meet the needs of people translates into a huge burden on ecosystems; if this burden is not dealt with now, future generations will not have the chance to satisfy even their most basic needs. The problem is that if the present generation has no chance of providing a similar level of well-being for their own children, why bother about intergenerational equity at all? Intergenerational Justice Traditional theories of justice concentrate on national societies, and on one and the same generation. Bringing the future in creates a new challenge, one that entails new normative constraints. It raises the ethical question how present generations should take people who live in the future into account if by “future generations”, we refer to distant generations (not our immediate descendants). This is not a trivial matter. Once we assume that future generations have “rights”, and we understand by rights, claims that override other claims of a more practical nature, this would impact on the present ordering of society. Certain needs of present-day people might remain unaddressed if the rights of future generations are recognised. Even a drastic curtailing of, say, nutritional needs today would be legitimate in light of future survival if key resources were at stake. According to Edith Brown Weiss, every human being, irrespective of when their lifetime occurs, is entitled to worthy treatment and to satisfactory living conditions equal to all. This is stated for example in the Declaration of Human Rights (equal and inalienable rights of freedom, justice and peace in the world). Equality among generations means that each generation has a right to inherit a viable planet, which is at least in a condition as good as during previous generations.29 This claim of intergenerational equality consists of three, quite generous, principles:

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A. Conservation of options: each generation should conserve the diversity of the natural and cultural resource bases in order not to restrict the options available to future generations. B. Conservation of quality: the planet is passed on in no worse a condition as to previous generations. C. Conservation of access: each generation should provide its members equal access and rights to the legacy of previous generations and should conserve this for future ones.30 These principles would create very strong obligations to those alive today, because fulfilling these rights would require restraining at least the Western, consumerist way of life; restrictions not only on the want satisfaction, but also on the need satisfaction of the present generations, would be highly probable. On the other hand, some philosophers also have suggested that so-called non-correlative obligations31 (in which there is no correlative right as a counterpart) would be the only logical and feasible way to take the future into account. These obligations include more negative than positive ones: thus the obligation to avoid intentional and specified harms and wrongdoings would override the obligation to produce well-being at a given level.32 In Norton’s view, sustainability and intergenerational justice call for ideas or conceptions which set critical limits with physically measurable indicators attached to them. These limits define what is to be sustained, because if not, future generations would be worse off irrespective of their actual economic status or welfare.33 The Problem of Justice When considering intra- and intergenerational equality, two main problems arise: first, how can we attach notions of rights, obligations or claims for equality to distant persons living in different societies? Traditionally, these questions have been examined on the national level, for one and the same society. However, Onora O’Neill has argued that transnational justice is nothing new in political philosophy. Both socialist and liberal thinkers after all base their conception of justice on an idea of universal scope, with obvious cosmopolitan implications.34 Secondly, a problem arises once we recognise that justice implies institutions, and consists of defining the rights and obligations of the members of these institutions; in particular, how they should distribute the fruits of success and cooperation. Consequently, non-existing entities such as future generations, cannot have rights and one cannot deal with these issues as justice. The mere fact they cannot have rights, however, does not mean that future

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generations cannot be morally meaningful. We still have obligations toward the future, because as morally significant entities, future generations have a presence in our moral system and we therefore owe them some general obligations—at the minimum, to avoid intentionally destroying their life chances.35 Indeed the obligations any generation has towards future ones do not consist so much of bequeathing assets, but of behaving in ways that will not condemn future generations to poverty or otherwise inflicting serious harm to them. This applies equally to obligations we have to our contemporaries. These we can harm, or have a beneficial effect on, in the same way as those who will live in the future.36 Now some welfare economists argue that whilst we must undoubtedly consider the future effects of our own actions, we are morally justified to use a so-called social discount rate. This means we discount very remote effects in the further future, at a rate of n percent per year. Derek Parfit however has rejected such a discount rate argument as indefensible: though remoteness in time is not meaningless (it reduces for instance the predictability needed to evaluate effects of actions in the present), remoteness as such cannot be a valid ground for judging an act as morally relevant now but irrelevant in the future. Remoteness in time has, in itself, no more significance than remoteness in space. What determines the degree of difference of future people from present-day humans, after all includes what we do today in those areas that will affect the future humans’ identity. 37 Most of the decisions we make will have an impact on the quality of life in the future and will also affect those who will actually exist in that future. Two kinds of effects may be distinguished here: the identities of future people, and the number of them. Parfit’s Paradox, as it has been called, is how we can owe a duty to future persons if the very act of discharging that duty wipes out the very individual to whom we allegedly owed that duty? This can be argued as follows. The implementation of a social policy will have widespread and detailed effects on people’s lives—who will encounter whom, who will marry whom, and under which conditions will people conceive and rear their progeny. This therefore contributes to determining who will actually exist in a distant future. But, if it is true that a future person would not have existed had a certain policy not been implemented in the past; then there is no point in claiming that his or her life (unless it is not worth living) would be the worse for it. Thus even policies that pollute the environment or deplete resources, may not be worse for future people, or violate their rights, since those people may owe their very existence to the fact that those policies were implemented. Parfit and others have therefore concluded that our obligations with respect to future people must be based, not on facts about how our acts affect individuals for better or worse, but on considerations that are more impersonal in character. This is the nature of

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the, non-correlative, obligations that “we” in the wealthy West have towards both the poor of today, and to future generations.38 But again, problems arise. First, how far into the future do our obligations extend? Do we have to take into consideration the well-being of generations living 500 years from now, at the same level that of as our great-grandchildren? Do we have obligations to satisfy the needs of all people living today, whether they are our compatriots, or live anywhere else on the globe? And secondly, to what extent do we need to take present or future generations into account? Are we to guarantee them the level of our own well-being, a well-being better than our own, or does satisfying our present needs come first, and we leave them what remains? The Savings Principle One alternative way to define and motivate these intra- and intergenerational obligations in philosophical theories of justice has been through the just savings principle by John Rawls. Since a society is a cooperational scheme over time, some savings are required by each generation. The original saving principle of Rawls’s Theory of Justice states that “each generation passes on to the next a fair equivalent in real capital”.39 In his Political Liberalism, this is differentiated as follows: the correct principle is that which the members of any generation (and so all generations) would adopt as the one their generation is to follow and as the principle they would want preceding generations to have followed (and later generations to follow), no matter how far back (or forward) in time.40

In the “original position”, individuals are not interested in the fate of the others, but they do care about the benefit of their own. Hence, the modified savings principle in Political Liberalism appeals to the very basic condition of rational individuals: self-interest. If they agree on this principle, they will benefit from it themselves as well as the future generations, or, as Wissenburg puts it, it makes the principle mutually beneficial.41 The savings principle creates an obligation relying on trust towards present and next generations. There is no guarantee of hundred per cent compliance, only trust in the others” sense of justice. Indeed one central aspect of Rawls’s thinking in this area is that generations are not separate or disconnected, but cooperating over time and existing as contemporaries. This creates a continuum necessary to the sense of justice and trust. If one generation defects, it imposes a cost upon that society itself because the basis of trust is destroyed; that in itself is not helpful for the survival of that society or that generation. Therefore, it is in the self-interest of

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all to cooperate and obey the savings principle. It is the survival of society, the societal continuity, which is the ultimate objective of self-interestedness, both in the context of global justice and the context of intergenerational justice. Wissenburg suggests an extrapolation of the savings principle, a restraint principle, which demands that no goods shall be destroyed unless unavoidable and unless they are replaced by perfectly identical goods; if that is physically impossible, they should be replaced by equivalent goods resembling the original as closely as possible; and if that is also impossible, a proper compensation should be provided.42

This principle can be overruled only if the survival of the present people is being threatened. The savings principle, with this extrapolation added, thus provides a further theoretical justification for intra- and intergenerational justice and for the idea of societal continuity as the ultimate aim of sustainable development.

Conclusion The normative claims posed by sustainable development are human well-being, instrumental ecological concerns, equality within the present generation, and equality between present and future generations. The inter-national community has so far succeeded in agreeing on some principles conducive to the implementation of these norms of global and intergenerational justice: trying to maintain ecological integrity and bio-diversity as a precondition of human wellbeing; economic development as a means to satisfy human needs and to guarantee both social and cultural conditions for satisfying life for all humans now and in future; and the desirability of adopting the precautionary principle in decision-making processes nationally as well as internationally. However, sustainable development requires political involvement of all stakeholders, i.e. their participation. This claim is derived from the claim of equity. Participation is about implementing sustainable development, not a norm of sustainable development as such. Ideally this should not be a “top-down” participation of only the major stakeholders, but a “bottom-up” process rooted in the values of local stakeholders. But here there is a risk that participation may will eventually lose sight of the original objectives, for example those of intergenerational equity.43 Sustainable development also raises issues of knowledge and risk in the context of the environment. This is what the precautionary principle refers to. It holds that lack of adequate knowledge of potential environmental effects should not be used to block policies and actions designed to prevent environmental

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degradation. In other words, scientific uncertainty about the risks and consequences of an action should be always applied in favour of the environment. The precautionary principle also reflects the significance of the environment in human actions. This is also compatible with Norton’s ideas about defining critical levels, and not crossing critical limits. It would also strengthen societal continuity if the precautionary principle were to be applied to human well-being now—nationally and globally, and with an eye to future consequences as well. Sustainable development appears very different when applied to forests and other natural resources than when it is applied to varieties of human culture, or the advancement of global justice. Operationalising and implementing the norms of sustainable development to these arena remains a formidable task. 1. UNCED is also known as the Earth Summit. The five major agreements attached to UNCED are the Rio Declaration, Agenda 21, the Convention on Biological Diversity, the Statement of Forest Principles and the Framework Convention on Climate Change (www.un.org/geninfo/bp/enviro.html). 2. World Commission on Environment and Development, Our Common Future (Oxford: Oxford University Press, 1987); W. M. Lafferty and J. Meadowcroft (eds.), Implementing Sustainable Development. Strategies and Initiatives in High Consumption Societies, (Oxford: Oxford University Press, 2000), p. 13. 3. World Commission, Our Common Future, op. cit., p. 43. 4. Lafferty and Meadowcroft, Implementing…, op. cit., p. 16. 5. M. Jacobs, “Sustainable Development: a Contested Concept”, in A. Dobson (ed.), Fairness and Futurity. Essays on Environmental Sustainability and Social Justice, (Oxford: Oxford University Press, 1999), pp. 24-25. 6. At this level, the term “conception” is often used to differentiate it from the core conceptual level (ibid.; see also C. Swanton, “On the “Essential Contestedness” of Political Concepts”, Ethics, 95:4 (1985) pp. 811-27. 7. W. Achterberg, “Can Liberal Democracy Survive the Environmental Crisis? Sustainability, Liberal Neutrality and Overlapping Consensus”, in W. Zweers and J.J. Boersema (eds.), Ecology, Technology and Culture. Essays in Environmental Philosophy, (Cambridge: The White Horse Press, 1994), p. 141. 8. R. Goodland and H. Daly, “Environmental Sustainability: Universal and Nonnegotiable”, Ecological Applications, 6: 4 (1996) p. 1005. 9. A. Holland, “Sustainability: Should We Start Here?”, in A. Dobson (ed.), Fairness and Futurity..., op. cit., p. 48. 10. R. Attfield, “Sustainability, Global Warming, Population Policies and Liberal Democracy”, in J. Barry and M. Wissenburg (eds.), Sustaining Liberal Democracy, (London, Palgrave, 2001), p. 149. 11. Holland, “Sustainability…”, op. cit., p. 50. 12. G. Munda, “Environmental Economics, Ecological Economics, and the Concept of Sustainable Development”, Environmental Values, 6 (1997) p. 217. 13. Goodland and Daly, “Environmental sustainability…”, op. cit., p. 1006.

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14. 15. 16. 17. 18. 19. 20. 21. 22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

37. 38.

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Ibid. Munda, “Environmental Economics…”, op. cit., p. 225. Goodland and Daly, “Environmental sustainability…”, op. cit., p. 1006. B.G. Norton, ‘sustainability, Human Welfare, and Ecosystem Health”, Environmental Values, 1 (1992) pp. 102-3. M. Stenmark, Environmental Ethics and Policy-Making, (Gateshead: Ashgate, 2002), p. 28. Goodland and Daly, “Environmental sustainability…”, op. cit., p. 1004. Ibid., p. 1003. O. Langhelle, “Sustainable Development: Exploring the Ethics of Our Common Future”, International Political Science Review, 20 (1999), pp. 133-5. Stenmark, Environmental Ethics..., op.cit., pp. 27-8, 37. O. Langhelle, “Sustainable Development and Social Justice: Expanding the Rawlsian Framework of Global Justice”, Environmental Values, 9 (2000) pp. 295-323, and W. M. Lafferty, “The Politics of Sustainable Development; Global Norms for National Implementation”, in J. Dryzek and D. Schlosberg (eds.), Debating the Earth. The Environment and Politics Reader, (Oxford: Oxford University Press, 1999 [2nd. ed]). Langhelle, “Sustainable Development and Social Ethics…”, op. cit., p. 315. Ibid., pp. 299-300, 304. World Commission, Our Common Future, op. cit., p. 44. Stenmark, Environmental Ethics..., op.cit., pp. 21-23. Lafferty and Meadowcroft, Implementing…, op. cit., pp. 2-3. E. B. Weiss, “Our Obligations to Future Generations for the Environment”, The American Journal of International Law, 84 (1990), p. 200. Ibid, p. 202. There are numerous classes of obligations, both legal and non-legal, that are not logically correlated with the rights of other persons. J. Feinberg, Social Philosophy, (Englewood Cliffs, NJ: Prentice-Hall, 1973), p. 63. B. G. Norton, “Ecology and Opportunity: Intergenerational Equity and Sustainable Options”, in A. Dobson, (ed.), Fairness and Futurity..., op. cit., p. 294 endnote. Ibid., pp. 149-150. O. O’Neill, “Transnational Justice”, in D. Held (ed.) Political Theory Today, (Cambridge: Polity Press, 1991), p. 280. W. Beckerman and J. Pasek, Justice, Posterity and the Environment (New York: Oxford University Press, 2001), pp. 12-15. Both John O”Neill and Avner de-Shalit argue that in addition of the present effecting on future, future generations can benefit or harm us, too, through either accepting those norms, values and “projects of life” we see important as worth continuing or not. See J. O”Neill, Ecology, Policy and Politics: Human Well-Being and the Natural World, (London: Routledge, 1993), pp. x, 227; and A. de-Shalit, Why Posterity Matters: Environmental Policies and Future Generations (London: Routledge, 1995). D. Parfit, Reasons and Persons, (Oxford: Clarendon Press, 1984), p. 357. Ibid., pp. 364, 444.

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39. J. Rawls, Theory of Justice, (London: Oxford University Press, 1973) p. 288. See also chapter 12 of this collection. 40. J. Rawls, Political Liberalism: (with a new introduction and the reply to Habermas) (New York: Columbia University Press, 1996), p. 274. 41. M. Wissenburg, “An Extension of the Rawlsian Savings Principle to Liberal Theories of Justice in General”, in A. Dobson (ed.), Fairness and Futurity. Essays on Environmental Sustainability and Social Justice (Oxford: Oxford University Press, 1999), pp. 175-178. 42. Ibid., p. 193. 43. Jacobs, “Sustainable Development..”, op. cit., pp. 34-35.

CHAPTER 12 NORMS OF GLOBAL DISTRIBUTIVE JUSTICE: KANTIAN PHILOSOPHY AND INSTITUTIONAL STRUCTURES JOHANNES KRAUSE Introduction Every hour more than 1,000 children under five years old are dying from easily preventable diseases.1 Over 800 million people world-wide are chronically malnourished; the income of the wealthiest 20 per cent of the world’s population is 74 times higher than the income of the poorest 20 per cent; the richest one per cent earn as much as the cumulated income of the poorest 57 per cent. Almost every second person on this planet lives on less than 2 US$ per day, and the daily budget of 1.2 billion people is below 1 US$. The indicators of social welfare show similar differences in access to health care, education, water, sanitation and so on.2 These enormous differences in living standards are a relatively recent phenomenon; they have emerged only in the past 200 years.3 It is this global inequality, on a scale we can no longer ignore, that gives rise to the philosophical problem of global (or international) distributive justice.4 What is distributive justice? The understanding of the term differs according to the various conceptions and theories of justice. As a first approximation, we may take Charles Jones’s definition: “Distributive justice has to do with the proper distribution of benefits and burdens among persons. A just distribution is one where each person receives what is his or her due.”5 In liberal-democratic societies, the moral common sense that extreme socioeconomic inequalities are unjust, and that the better-off bear the responsibility to compensate those worse off, is widely accepted for the domestic sphere. Only a few extreme libertarians (or neoliberals) deny such duties. It is quite different in the international realm, where inequalities between rich and poor are not generally acknowledged as a problem of justice. The theory of distributive justice must examine whether there are good philosophical reasons beyond common sense morality for distinguishing between the norms of distributive justice on the domestic and on the international level.6 Different philosophical

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approaches to global distributive justice have been elaborated; in this chapter I shall confine myself to the main strands in the Kantian tradition.7 With the term Kantian I refer to those ethical conceptions that are principle-based, agentcentred and morally individualistic.8 My starting point is the moral individualism characteristic of the Kantian tradition, which implies a cosmopolitan perspective in ethics.9 In this chapter I will examine three philosophical approaches to the problem of global distributive justice which derive their plausibility from Kantian premises: the human rights approach, O’Neill’s obligation-based theory, and Rawlsian contractualism. I will argue from these three strands of theory that a commitment to global distributive justice requires that global institutional structures, which determine the primary distribution, must satisfy certain principles and obligations of justice (rather than redistribution, material or financial, from the rich to the poor). I will discuss this on the assumption that an alternative distributive structure, which would imply less inequality, is feasible.10

The Main Approaches To Global Distributive Justice The Right To Subsistence During the last few decades, the notion of human rights has become central in international ethics. But the content of universal human rights is highly controversial even among human rights theorists. Minimalist conceptions, such as the ones defended by libertarian authors, recognize only negative rights (that is, liberty rights, rights to non-interference) as general human rights.11 The right to life and physical security as well as basic political liberty rights are included as well. Others advocate also social and economic human rights, the so-called welfare rights.12 Such rights are often labelled positive rights, because they require action to validate them; say, to obtain material goods. The reason why (positive) welfare rights are more difficult to justify than negative liberty rights, is because the duties presupposed by the notion of rights are more easily carried out when it comes to a negative duty of avoidance than when an obligation to perform an action is involved.13 Yet Henry Shue, Charles Jones and other defenders of universal welfare rights, claim that everybody has a right to the fulfilment of basic needs, a right to subsistence. Food, water, shelter, basic health care, and education part of every reasonable conception of what constitutes an adequate human life, not specific to a given culture; hence they are assumed to be universal.14 If human rights are to be effective norms and not just manifesto rights, they cannot simply be postulated without justification. There is a direct and an

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indirect way of justifying the human right to subsistence. Henry Shue uses the indirect justification: if human beings have any rights, the right to subsistence must be among them. The effective use of any negative liberty right is dependent on the capacity of the agent to act autonomously, which requires that his/her basic subsistence needs are met. It is thus a question of consistency for the proponents of liberty rights to accept the human right to subsistence as well.15 Charles Jones on the other hand prefers the direct justification of this right. In his view any human interest that can be considered as essential for a decent life is enough reason to acknowledge a right to the good in question. If one accepts this premise, one has to accept the human right to subsistence as well, for the satisfaction of basic needs must be at least as important to a human being as any other interest.16 Neither justification of the human right to subsistence, the indirect or the direct one, will convince someone who does not accept the existence of human rights to begin with. There is, as Jones concedes, no deductive argument to prove the existence of those rights.17 But since nowadays, the concept of human rights is widely acknowledged, a philosophical argument establishing that if there are any human rights, then the right to subsistence must be among them, is relevant. It would make it an injustice to leave the basic needs of certain (millions of!) human beings in abeyance. Opponents of welfare rights claim that only negative rights can be acknowledged as rights, because they bring about “perfect duties”, (negative) duties of avoidance which can be completely fulfilled by every agent. “Positive rights” in this perspective are not possible, because they entail positive duties, which can never be perfect.18 It is, for example, possible to demand that everyone in the world should refrain from torturing people, and hence the (negative) right not to be tortured is feasible. A (positive) right to food, however, would require that somebody supplies all the needy with food. This is not only a difficult exercise by itself, but it is a duty impossible for any one person to carry out completely and hence raises the problem of determining who has to do how much to fulfil it.19 Yet Shue defends, convincingly in my view, the right to subsistence by considering the distinction between positive and negative rights untenable: all rights, both “negative” and “positive”, imply duties, and some of these will be positive, while others are negative.20 The right not to be tortured requires not only a (negative) duty of forbearance (the duty to avoid torturing), but also a (positive) duty of the community of duty-bearers to protect people who are threatened by potential torturers (by providing police forces and so on); as well as a positive duty to assist those who have been tortured (for example by providing a juridical system that guarantees the prosecution of torturers). Similarly, the right to food does not only bring about a (positive) duty to assist the needy, but also—indeed in the first place—a negative duty, not to deprive

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anybody from his/her sources of food. Following this train of thought, then, the distinction between negative and positive rights is not sound, and it is therefore inconsistent to attack the right to subsistence while defending liberty rights on the ground of refusing positive duties. In addition, while it may be impossible for any single duty-bearer to provide all people who cannot feed themselves with food, this is not a problem for the fulfilment of the right to food. There can be what Shue calls a “division of moral labour” among the duty-bearers. If the human right to food is to be respected, it must be ensured, collectively, that every person’s right is fulfilled. For the right-bearers it matters little which agency carries out the positive part of the duties in each individual case. However, the problem of determining which duty-bearer is responsible for fulfilling which part of the overall duties remains open. We are not helped much by the vague reference to the “ability to pay” as part of a “reasonable criterion” 21 for the allocation of positive duties, by which Shue seeks a way out . Even so I would argue from the above that if we subscribe to the idea of human rights at all, we have to acknowledge subsistence rights, too. There is no categorical difference between them, and if any rights are accepted as fundamental, subsistence rights should be among them. This leaves us with a first plausible account of the duties of global distributive justice on the basis of the rights approach. The Categorical Imperative and the Obligations Of Justice The rights approach, as we have seen, has to take the corresponding duties into consideration. Onora O’Neill’s theory begins with these duties. O’Neill insists that the notion of obligations is, historically and conceptually, prior to the notion of rights. Obligations have been central in nearly all ethical traditions of the West, while rights advanced to a central ethical category only in the 17th and 18th centuries. Conceptually speaking, obligations are prior to rights, according to O’Neill, because in ethics it is more important to deal with the perspective of agents than with that of recipients. The agents and their conduct are guided by the obligations that bind them; rights are merely claims that can be constructed as counterparts of certain obligations, which O’Neill calls obligations of justice.22 O’Neill’s account of international ethics is directly based on Kant’s categorical imperative. The categorical imperative reads as follows: “Act only according to that maxim by which you can at the same time will that it should become a universal law.”23 Hence it excludes principles of action which cannot be universalised without a contradiction. Principles involving coercion are such principles. If everybody acted according to an ethical maxim that permits coercive acts, autonomy of action, which is a basic prerequisite of any morality,

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would become impossible, and hence, O’Neill concludes, it is a matter of justice to refrain from it. Thus we arrive at a perfect obligation not to coerce.24 This has important implications for the international realm. O’Neill insists that to fulfil the obligation not to coerce, it is not enough for the powerful to demonstrate good commercial practice and to point to the voluntary character of deals with weaker partners; the weakness and vulnerability of poor countries and people which often leave them no other choice but to agree to the propositions of the powerful, have to be taken into account. The categorical imperative prohibits disguised coercion of this kind; non-coercion requires a real option on both sides to say no, and there is obligation for the powerful agents to act with special caution towards their more vulnerable partners.25 Today, the obligation to refrain from coercion is often ignored in international practice. Conditions of foreign direct investment, development projects and structural adjustment programmes are in many cases rather imposed by the rich countries and transnational corporations (TNCs) than agreed to voluntarily by poor countries. Hence, the stronger profit from the vulnerability of the weaker, and thus from a form of coercion prohibited by the categorical imperative.26 Justice then requires an end to this kind of hidden coercion and a reform of institutions that systematically resort to it; just as the vulnerability of the weak and the global differences in power must be reduced to diminish the incentives to act in this way. O’Neills theory of international obligations thus presents us with a second approach to the problem of global distributive justice. In fact, the rights approach and the obligations approach are closer to one another than the disputes between their proponents would suggest, and according to Jones, can even be considered as “two sides of one coin”.27 The Contractarian Approach I now turn to the third important approach within the family of Kantian theories: the contractarian conception, certainly the most hotly debated one. The contractarian account of global distributive justice is based on John Rawls” Theory of Justice of 1971, which still was addressed to domestic society. But some of Rawls’s followers soon claimed that their master’s theory ought to be applied globally. The main proponents of this cosmopolitan expansion are Charles Beitz and Thomas Pogge. What are the main arguments of the Theory of Justice? Rawls understands society as a “cooperative venture for mutual advantage”.28 In a just society, the institutional basic structure, which is responsible for the distribution of the benefits and burdens, rights and duties that stem from social cooperation, must conform to certain principles of justice. In Western societies, these basic

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institutions are the Constitution and the major social and economic conditions, for example the legal warranty of basic liberties, the market economy, private property of the means of production, the monogamous family and so on. The way the institutional basic structure of a society is arranged has a crucial impact on the chances and opportunities of each individual in the society. This is why the conformity of the institutional basic structure with certain principles of justice is of utmost importance. In Rawls’s conception of “justice as fairness”, the principles of justice must be those which reasonable and rational people would agree on in a (theoretical) situation of equality and liberty. As a thought experiment, Rawls describes this situation as an “original position”, in which pre-social individuals agree on principles of justice for the society they are establishing. These hypothetical individuals do not know their personal identity nor their social status, living conditions, gender, descent, natural capabilities and so on, all of which is hidden behind a “veil of ignorance” so that the quest for principles of justice is distorted by egoistic considerations. Under these conditions (of ignorance and fairness), the individuals in the original position would agree on two principles of justice, which can be summarised as follows: According to the liberty principle, the system of liberties is to be arranged in a way that will maximise the equal individual liberties of each member of society. The difference principle requires social and economic inequalities to be to the greatest advantage to the worst-off individual in society.29 The difference principle is of special importance for distributive justice. It holds inequalities to be just, if the worst-off people in a relatively unequal society are still better off than the worst-off would be in an alternative, more egalitarian society. In The Law of Peoples, first published in 1999, Rawls takes up the issue of international justice himself. Based again on the contractarian theoretical framework of his earlier work, he modifies his original analysis by adding a second, inter-national “original position”, where representatives of different societies agree on inter-national principles of justice, the “law of peoples”.30 With regard to inter-national distributive justice, this law of peoples, Rawls suggests, would contain a duty to assist societies that suffer so much from extremely unfavourable conditions, especially poverty, that they are unable to establish just domestic institutions.31 This is an honourably progressive suggestion: if this duty were followed by the rich countries, the situation of many desperately poor societies should improve noticeably.32 However, the duty of assistance is considerably less far-reaching as a principle of justice than the relatively egalitarian difference principle Rawls proposes for domestic liberal society. Beitz and Pogge, then, have criticised Rawls for being inconsistent, because he refuses to apply his conception of domestic justice directly to the

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international sphere.33 Their argument is twofold. First, they claim that the participants in Rawls’s second, inter-national original position would agree on a much more egalitarian principle of distributive justice than on Rawls’s duty of assistance. Given the arbitrariness of the distribution of natural (and inherited social) resources of a country, the parties in the original position would for instance try to secure the societies they represent from resource scarcity. They would therefore agree on a principle of distribution that condones inequalities in the primary distribution of resources only if the least endowed country still benefits.34 And then, why would the international delegates not opt for a general inter-national difference principle for the distribution of the overall global wealth? The delegates would always seek to choose principles of international justice that would protect them from the risk of being desperately poor. As in the domestic gathering in Rawls’s Theory of Justice, the inter-national delegates would certainly agree on an egalitarian principle of inter-national distributive justice on the lines of the difference principle.35 The second line of Beitz’s and Pogge’s arguments attacks Rawls’s two-level conception of international justice. Why should the domestic societies and their respective principles of justice be presupposed as already fixed, when the representatives in the international original position meet? Rawls’s original account of domestic justice was limited to the one-society level, because Rawls considered it easier to develop the principles of justice for a single society, assuming that it was self-sufficient. But this assumption is not appropriate for the relations between different societies. Rawls’s theory of justice would, according to Beitz and Pogge, be more consistent, more plausible and more adequate for the conditions of the contemporary world if the “original original position”36 was conceived as a unique, global one from the beginning.37 The nationality of the individuals would need to disappear, as would the other personal characteristics, behind the veil of ignorance in order to secure a fair situation of liberty and equality, so that an agreement on impartial principles of global justice could be reached. Following Rawls’s original theory, Beitz and Pogge conclude that the institutions of the global basic structure would need to be arranged according to a global difference principle, that is, in such a way that inequalities among the world population would be to the greatest benefit of the worst-off person on the globe.38 Such an account of international justice, which takes the well-being of individuals as the ultimate criterion of global justice, rather than considerations about the relationships between states (or “societies” or “peoples”), is more consistent with Rawls’s own Kantian-individualistic moral premises than his Law of Peoples.39 Hence, in their very Rawlsian reasoning, Rawls’s disciples, Beitz and Pogge, prove themselves to be “more royalist than the king”, and indeed their cosmopolitan approach has been rejected by Rawls himself.40

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The arguments against the Beitz/Pogge line of reasoning can be grouped under two headings. One is that that the world simply is not the appropriate context for the application of Rawls’s theory. That theory was developed for a society understood as a “cooperative venture for mutual advantage”; but this not an adequate characterisation of the contemporary world.41 To a large extent the dispute here seems to be one of empirical judgement: Does international interdependence today constitute a good foundation for considering the world as a “cooperative venture for mutual advantage”, or not? Of course social cooperation does exist on the global level; and within a single society, there are always “closely-knit regions” within which cooperation is still more intense; but this does not mean that principles of justice can hold only within these regions and not in society at large.42 Today there are lots of economic, financial, political, cultural and other social relations and transactions across borders. Even if within state borders these relationships are usually tighter, they are not different in character and quality from the trans- and inter-national ones. And then, even if social cooperation on the global scale is not advantageous for everybody, it cannot be denied that there is a global basic structure: the institutions of the global political economy, such as the international trade, financial and other regimes, the system of property rights, international organisations and so on all profoundly influence the life and the opportunities of practically every person in the world. If principles of justice are needed first and foremost for the institutional basic structure, it must today be considered as crucial to develop principles of justice for our global institutions.43 In addition, there is the element of the equality of all human beings as moral persons, who must all be taken into consideration when principles of justice are elaborated— not because they are collaborators, but just because they are human beings.44 The second main objection against Beitz’s and Pogge’s one-stage-conception refers to inter-cultural tolerance. This objection is communitarian-particularistic in its content: Since conceptions of justice vary between different cultures, it would be oppressive and unjust to universalise a Western conception of justice. Rawls’s Theory of Justice was conceived for liberal-democratic, Western societies. It cannot simply be assumed to be acceptable within non-liberal cultural contexts. Therefore the application of Rawls’s principles of justice to the world as a whole would represent an intolerant imposition of particular Western values on a culturally diverse set of societies and individuals.45 In response to this objection, Pogge has argued that the members of poorer, non-Western societies would not reject egalitarian principles of justice as an expression of Western cultural imperialism. Indeed, Given that institutional progress is politically possible, it would be perverse to oppose it by saying to the rest of the world: ‘We care deeply about equality, and we would very much like it to be the case that you are not so much worse off than

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Distributive Justice we are. But, unfortunately, we do not believe that you ultimately care about equality the way we do. Therefore we feel entitled to refuse any global institutional reforms that would lead to greater international equality’. 46

Certainly tolerance requires that we leave room for lifestyles, values and conceptions of justice that differ from our own. But that is still compatible with a commitment to a world order which is organised in accordance with liberal principles. A liberal world order leaves ample space for a pluralism of particular conceptions of justice in individual societies. It would be illiberal to impose particular liberal principles for the internal structures of individual societies, but when the global order is at stake, it is not intolerant, but a matter of consistency, that liberals defend liberal principles of justice which ensure tolerance and pluralism. If, as Rawls argues in the Theory of Justice, a singular society ought to be arranged according to general liberal principles of justice, although it contains persons who do not share liberal values, then this must apply, by analogy, to the problem of global justice as well. I would definitely concur here with Beitz’s and Pogge’s elaboration of the contractarian approach: If we endorse Rawls’s original Theory of Justice, it is hard to dismiss arguments for its global application.

The Priority of Just Institutions over Re-Distribution From a sympathetic review of three philosophical approaches to the problem of global distributive justice which share Kantian premises, I now turn to the practical question, What does a commitment to global distributive justice require? Cosmopolitan theories of distributive justice have often been misunderstood (or even consciously misinterpreted) as claims for mere financial or material transfers from the rich to the poor. But to see them as a programme for some kind of world welfare state would be mistaken. Principles, duties and demands of global distributive justice are first and foremost addressed to the global institutions that set the conditions for the primary distribution of socioeconomic goods. Here I follow John Rawls’s understanding of an institution: By an institution I shall understand a public system of rules which defines offices and positions with their rights and duties, powers and immunities, and the like. These rules specify certain forms of action as permissible, others as forbidden; and they provide for certain penalties and defenses, and so on, when violations occur. As examples of institutions, or more generally social practices, we may think of games and rituals, trials and parliaments, markets and systems of property.47

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Thus if we take the right to subsistence as an example, we see that although it is an individual right, the duties it implies are to a large extent institutional duties. The right to subsistence as we saw brings about the positive duty to assist those in need, but also negative duties, such as the duty not to deprive anyone from his/her sources of subsistence. This negative duty is a perfect one; it must be observed by all agents at all times. This implies that it must be observed by institutional agents, too. In view of the great impact the powerful institutional agents (governments, TNCs, international organisations, and so on) have on the life of the individual people, their duty to honour the human right to subsistence is very important.48 In O’Neill’s obligations approach, the obligation not to act according to principles involving coercion is similarly perfect, bearing on every agent. Again, the institutional agents on the international scene are of particular importance. If coercive acts are unjust and the strict obligation not to coerce requires special caution with regard to the vulnerable, then this requirement of justice applies especially to the powerful institutional agents which influence the life chances of the poor so decisively.49 These duties of justice meanwhile do not apply only to institutional agents in the narrow sense of the word, such as the World Bank, Nestlé or the European Commission. They also should but also to institutional structures, such as the system of international property rights, the world market, or various international regimes. Shue in this connection points to the need of “an adequate analysis of the critical social forces and institutions: a reasonably accurate account of the political economy of why so many people on a planet this wealthy lack adequate food and how that can be changed”.50 To this O’Neill adds that A full commitment to international distributive justice would be a matter of seeking to transform the present institutional structure into one better able to ensure that the powers and abilities it constructs and fosters serve rather than exploit actual needs and reduce vulnerabilities.51

The institutional focus is even more obvious in the Rawlsian account of global distributive justice. Here the principles of justice are, as we saw, explicitly designed to be applied to the institutional basic structure, whether in individual society in Rawls’s original theory, or in Beitz’s and Pogge’s cosmopolitan extrapolations. All three approaches, then, concur in seeing the key task in bringing about distributive justice as obtaining institutional reforms reducing the injustices in the primary distribution of resources and goods brought about by the present institutional structures, rather than achieving re-distribution. Now this does not itself invalidate claims for a global redistribution of wealth; a human right to subsistence, for example, can require redistributive measures, if there are people

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whose needs have remained unmet, in spite of global efforts to avoid the active violation of their right. Moreover, global social cooperation can be seen as a sufficient reason to demand that those who benefit most from it, must compensate those who carry the biggest burdens of the cooperative arrangements. The unequal and morally arbitrary initial distribution of natural and (inherited) social resources constitutes a further independent reason for redistribution in order to correct this inequality. Other grounds for international redistribution, for example, compensation payments of the (wealthy) formerly imperialist powers to the population of the countries they exploited as colonies, might also be mentioned.52 But the justice of the institutions generating the primary distribution must be given priority over the claim for redistribution for the following reasons. First, to the extent philosophical objections to global distributive justice are valid, they concern the claim for global re-distribution, not the demand for a just institutional framework. Redistribution can be argued to be feasible only in a context of very intense social cooperation, or within a substantive community comprising special internal ties and mutual obligations. But even we accept these in my view questionable arguments, the demand to arrange the global institutional basic structure which influences the lives of the people world-wide in a just way, is independent of such presuppositions.53 Secondly, redistribution involves positive duties: people are obliged to give something. Positive duties face the problem of the appropriate allocation (who has to do how much and what towards whom), and the criteria for the allocation of duties have not yet been satisfactorily defined. But again this problem does not challenge the claim for just institutional structures, because there these problems do not apply. In addition, redistributive policies meant to correct the injustice of primary distribution would themselves be made less urgent if efforts were directed at obtaining institutional structures that ensure a just initial distribution of benefits and burdens. Finally, there is a pragmatic, instrumental argument in support of the priority of structural justice. Justice-oriented institutional reforms must be considered as far more efficient for the alleviation of hunger and poverty and for bringing about distributive justice than large-scale redistribution. I cannot provide an analysis of the efficiency of different instruments of development policy here. But in contemporary development theory, it is a commonplace that reforms of the international economic order aiming to ensure that all agents, also the weaker ones, have their fair chances in the world economy, improve the situation of the poor far more than (mere) financial or other material transfers. As Pogge points out, it would be misleading to perceive “our moral failure as a case of insufficient assistance to the poor, when in reality it consists in the

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imposition upon them of a skewed global order that obstructs and hampers their development”.54

Conclusions According to the rights-based approach, there is a human right to subsistence that gives rise to certain negative and positive duties. The requirement of distributive justice consists in institutional arrangements guaranteeing that nobody is deprived of her means of subsistence and that those whose basic needs remained unmet are assisted. The obligations-centred theory, which is founded on Kant’s categorical imperative, underlines the obligation not to coerce, as one of the most important norms of justice in the international realm. Justice here demands of the powerful not to exploit the advantages they enjoy in their relations with the powerless. Finally, the contractarian approach claims that the considerations that justify egalitarian conceptions of distributive justice within liberal societies, also hold in the global arena. If we accept the theses of Rawls’s Theory of Justice for domestic society, there is good reason to apply them to the world at large. The global institutions are then to be appraised with respect to their fulfilment of the global difference principle. Once the underlying philosophical conceptions on which these approaches rest (the existence of human rights as such, the construction of the categorical imperative, and Rawls’s theory of domestic justice) are considered valid, it follows that these basic theories are applicable to the issue of global distributive justice as well. The embrace of the universalist, Kantian premise of moral individualism that declares individuals free and equal, reasonable and autonomous moral agents, and hence, the “ultimate units of moral concern” (Pogge), by its own logic prescribes a cosmopolitan understanding of distributive justice, too. As I have tried to show, this justice is ideally obtained through just institutional structures, rather than through corrective redistribution. But individuals can never rid themselves of their responsibility by reference to institutions and institutional reforms. As social artefacts, institutions depend entirely on human action, they up to us. We create them, we shape, sustain, modify and abolish them. The global institutions which bring about the distribution of our overall wealth and which have such a great impact on the lives of the people sharing this world, are particularly dependent on those of us who are among the privileged citizens of the rich and powerful countries. We can support them through our collaboration or we can advocate and promote institutional reforms. Let me quote, by way of conclusion, Pogge’s view on the responsibility for the global injustice and the suffering of the poor:

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Distributive Justice Our present global economic regime produces a stable pattern of widespread malnutrition and starvation among the poor (with some 20 million persons dying every year from hunger and trivial diseases), and there are likely to be feasible alternative regimes that would not produce similarly severe deprivations. In such a case of avoidable deprivations, we are confronted not by persons who are merely poor and starving but also by victims of an institutional scheme— impoverished and starved. There is an injustice in this economic scheme, which it would be wrong for its more affluent participants to perpetuate.55

If then the suffering of so many of the poor is at least partially caused by elements of the global institutional structure, supporting and sustaining these structures must be considered an injustice. To promote institutional reforms instead of continuing to impose a global order that implies avoidable injustice, thus becomes our individual and collective duty. 1. I am greatly indebted to Klaus-Gerd Giesen, Cornelia Sorger, Bettina Engels, Friederike Hachmeier and Claudia Knepper for valuable comments on previous versions of this chapter. 2. All data from Human Development Report 1999. Globalization with a Human Face, published for the United Nations Development Programme (UNDP) (New York: Oxford University Press, 1999); and Human Development Report 2002. Deepening democracy in a fragmented world (New York: Oxford University Press, 2002) 3. C. Brown, International Relations Theory. New Normative Approaches (New York: Columbia University Press, 1992) pp. 156-157. 4. I will use the terms “international” and “global” justice to refer to those instances of justice that are not limited to the realm of individual societies and when I focus specifically on the relations between states or between single societies, I will use the expression “inter-national”. 5. C. Jones, Global Justice. Defending Cosmopolitanism (Oxford: Oxford University Press, 1999), p. 3. 6. Ibid, p. 15. Justice is not the only possible reason for international duties of the rich towards the poor. There may be obligations of humanity, too, although their relation to obligations of justice is subject to discussion (B. Barry, “Humanity and Justice in Global Perspective”, in B. Barry, Liberty and Justice. Essays in Political Theory (Oxford: Clarendon Press, 1991), vol. 2, pp. 182-183; P. Jones, “Global Distributive Justice”, in A. Valls (ed.), Ethics in International Affairs. Theories and Cases (Lanham: Rowman and Littlefield 2000), pp. 180-182. 7. Authors from other philosophical traditions have been dealing with the problem of global distributive justice as well, but the Kantian tradition is, in its different variants, accountable for the greatest contribution to the theorisation of the issue. 8. T. Donaldson, “Kant’s Global Rationalism”, in D. R. Mapel and T. Nardin (eds.), Traditions of International Ethics (Cambridge: Cambridge University Press, 1992), pp. 136-142. 9. Pogge describes moral cosmopolitanism as an ethical perspective characterised by three main qualities: individualism – human beings are the “ultimate units of moral

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10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33.

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concern”, not collectivities of any sort; universality – every human being has the status of “ultimate unit of moral concern”; generality – persons are “ultimate units of moral concern” for everyone (T.W. Pogge, “Cosmopolitanism and Sovereignty”, Ethics, 103: 1 (1992) pp. 48-49. Brown, International Relations Theory… , op. cit., pp.162-164. For example, R. Nozick, Anarchy, State, and Utopia (New York: Basic Books, 1974). Cf. O. O’Neill, “Hunger, Needs and Rights”, in S. Luper-Foy (ed.), Problems of International Justice (Boulder: Westview, 1988) p. 71. H. Shue, Basic Rights, Subsistence, Affluence, and U.S. Foreign Policy (Princeton, N.J.: Princeton University Press, 1996) [2nd ed]; Jones, Global Justice…, op. cit. O’Neill, “Hunger...”, op. cit., pp.70-71, 76. H. Shue, ‘solidarity among Strangers and the Right to Food”, in: W. Aiken and H. LaFollette (eds.) World Hunger and Morality (New Jersey: Prentice Hall, 1996) [ 2nd ed.] pp. 14 and 114-115; Jones, Global Justice…, op. cit., p. 58. Shue, Basic Rights, Subsistence…, op. cit., pp. 24-25. Jones, Global Justice…, op. cit. , pp. 61-62. Ibid., pp. 55-56. O. O’Neill, Faces of Hunger. An Essay on Poverty, Justice, and Development (London: Allen & Unwin, 1986), pp. 101-102. O. O’Neill, “Transnational Justice”, in D. Held (ed.), Political Theory Today (Oxford: Blackwell, Polity Press, 1991) pp. 295-296. Shue, Basic Rights, Subsistence…, op. cit., pp. 51-64. H. Shue, “Mediating Duties”, Ethics, 98:4 (1988) pp. 687-690, 703. O’Neill, “Hunger...”, op. cit., p. 78 and O’Neill, “Transnational Justice”, op. cit., pp. 286-287. The use of either the term “duty” or “obligations” does not imply any difference of meaning here. I. Kant, Foundations of the Metaphysics of Morals, [transl. L. White Beck, 2nd edition] (London 1990) [orig. 1786], cited in C. Jones, Global Justice…, op. cit. , p. 86. O’Neill, “Hunger...”, op. cit., pp. 79-80; O’Neill, “Transnational Justice”, op. cit., pp. 297-298. O’Neill, “Hunger...”, op. cit., p. 81; O’Neill, “Transnational Justice”, op. cit., pp. 300302. O. O’Neill, “Ending World Hunger”, in W. Aiken and H. LaFollette (eds.), World Hunger and Morality, op. cit., pp. 100-101. Jones, Global Justice…, op. cit., p. 99. J. Rawls, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 4. Ibid., p. 302. J. Rawls, The Law of Peoples (Cambridge: Harvard University Press, 2001) [3rd ed.], pp. 32-34. Ibid., p. 37. C. R. Beitz, “Rawls’s Law of Peoples”, Ethics, 110:4 (2000) p. 694. Beitz and Pogge have formulated their criticism towards Rawls and their own conceptions separately from one another, but their positions are so close to each other that I discuss them together.

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34. C. R. Beitz, “Justice and International Relations”, in C. Beitz, M. Cohen, T. Scanlon and A.J. Simmons (eds.), International Ethics. A Philosophy and Public Affairs Reader (Princeton: Princeton University Press, 1985) [4th ed.], pp. 289-292. 35. T.W. Pogge, “An Egalitarian Law of Peoples”, Philosophy and Public Affairs, 23: 3 (1994) pp. 209-13. 36. S. Luper-Foy, “Global Distributive Justice”, in S. Luper-Foy (ed.) Problems of International Justice, op. cit, p. 9. 37. Beitz, “Justice and ...”, op. cit., pp. 302-304; C.R. Beitz, “Social and cosmopolitan liberalism”, International Affairs, 75: 3 (1999) pp. 423-424; Beitz, “Rawls’s Law…, op. cit., pp. 694-695; T.W. Pogge, Realizing Rawls (Ithaca: Cornell University Press, 1989), pp. 240-244, 254-257. 38. Beitz, “Justice and International Relations”, op. cit., pp. 299-300. 39. Pogge, Realizing Rawls, op. cit., pp.247-250. 40. Brown, International Relations Theory… , op. cit. p. 175. 41. Barry, “Humanity and Justice..”, op. cit., pp 193-194. 42. Beitz, “Justice and International Relations”, op. cit., pp. 302-303. 43. Ibid. pp. 296-297; Beitz, “Social and cosmopolitan...”, op. cit., pp. 523-525; A. Buchanan, “Rawls’s Law of Peoples. Rules for a Vanished Westphalian World”, Ethics, 110: 4 (2000) pp. 708-711; Pogge, Realizing Rawls, op. cit., pp. 273-274. 44. C.R. Beitz, “Cosmopolitan Ideals and National Sentiment”, The Journal of Philosophy, 80: 10 (1983) pp. 594-595. 45. Rawls, The Law of Peoples, op. cit., pp. 113-120. 46. Pogge, “An Egalitarian Law…” op. cit., p. 218. 47. Rawls, Theory of Justice, op. cit., p. 55. 48. Shue, “Mediating Duties” , op. cit., pp. 693-694, 697; Shue, “Solidarity…” op. cit., pp. 128-129. 49. O’Neill, “Hunger...”, op. cit., pp. 80-81. 50. Shue, “Solidarity…”, op. cit., p. 125. 51. O’Neill, “Transnational Justice”, op. cit., p. 303. 52. There are many problems with this claim for compensation, cf. W. Rodney, How Europe Underdeveloped Africa (London: Bogle-L’Ouverture Publications, and Dar es Salaam: Tanzania Publishing House, 1972) among others. 53. Pogge, Realizing Rawls, op. cit., p. 256. 54. T.W. Pogge, “Rawls on international justice”, Philosophical Quarterly, 51: 203 (2001) p. 253. 55. Pogge, “Cosmopolitanism…”, op. cit., p. 56.

CHAPTER 13 INTERNATIONAL NORMS IN THEORIES OF INTERDEPENDENCE: TOWARDS STATE-LESS LAW?

BARBARA DELCOURT

At the end of the nineteenth century, the positivist and voluntarist conception of international law that eclipsed the natural law conception, articulated a system of rules governing the relations between “civilised” European states, as against a universal juridical order.1 International law was to rediscover its original universal vocation only in the wake of the foundation of the United Nations (UN) and in particular, after decolonization. From that point on, it established itself as positive law elaborated by states who voluntarily limit their sovereignty via bilateral or multilateral frameworks in accordance with their own interests, those of their population, or even those of humanity in its entirety. In this sense, international law constitutes a limit to state power, which states have agreed to, either directly (by participating in the creation of these rules) or indirectly (by tacitly or explicitly accepting their imposition). However paradoxical this autolimitation may appear, it was to constitute a real limit on the legal freedom of states.2 Contrary to the widespread view that sees sovereignty as the absolute power of the state on its own territory, to the point where it has the right to massacre its own population, the state’s liberty is more often limited by conventional and customary rules, notably those concerned with the protection of persons. As the Permanent Court of Justice stated in 1923 (in the steamship “Wimbledon” case), it is precisely by virtue of the principle of sovereignty that states bind themselves internationally and can renounce certain competences.3 Hence, In the international order, the supremacy of state power implies that the state cannot be curtailed by any other state or group of states. It can, however, voluntarily renounce, in agreement with other states, the individual exercise of certain prerogatives: to respect these limitations is therefore not to renounce, but to fulfil state power.4

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An absolute conception of sovereignty therefore is not grounded in international law doctrine. Whilst the “dogma” of sovereignty as an unlimited power under domestic law is being abandoned, in international relations the state only enjoys full and complete sovereignty in those areas in which it has not entered (tacitly or expressly) into any particular agreement. This link between law and sovereignty has important repercussions for the juridical principle of non-intervention in internal affairs. Third party states (or international organizations) are justified in demanding that a state respect its engagements, in which case, the “target” state cannot put in a plea under the rule of nonintervention; because it was by virtue of the very principle of sovereignty that it committed itself to respect certain norms.5 The positivist and voluntarist conception of international law, then, rests on the principle of the sovereign equality of states, and, more generally, on the principle of independence. The doctrines I will examine hereafter, are critical of the principle of sovereignty in its traditional sense, and disconnect law and state sovereignty; sometimes under the influence of theories imported from political philosophy.

The Primacy of the Rights of Individuals and Communities The strand of thought which maintains that the principle of state sovereignty has eroded in the face of the growing scope of international organization, developed notably after the First World War, e.g. in the work of Léon Duguit and Nicolas Politis.6 Well before the current questioning of the principle of sovereignty, certain legal scholars had already proposed to replace the notion of independence that underlies sovereignty with that of interdependence. For Charles Rousseau, an international jurist sympathetic to this point of view, the notion of sovereignty is defective in several respects: the imprecision of its content, its non-correspondence with social realities, and its dangerous political implications (limitation of the domain of arbitration and obligatory jurisdiction, non-compliance with international decisions, refusal of supranationality, disdain for the rights of weak states, resort to violence etc.).7 Two types of legal doctrine illustrate this imperative of transcending a statecentric international order to the benefit of individual and collective rights: the “solidarism” of Georges Scelle and the “normativism” of Hans Kelsen. Scelle challenges the usefulness of the notion of sovereignty, suggesting to replace the principle of independence with that of interdependence.8 According to the “objectivist” conception he defends, the state is first and foremost a social phenomenon linked to the existence of bonds of solidarity. It is characterised by the fact that it is certainly the most strongly integrated, the most powerful and

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the best organised political society. However, Scelle’s analysis (which he claims is realist and objective in the sense that it applies to law the demands of positivism developed in the social sciences) leads him to consider the state, juridically speaking, a chimera. Indeed, the true subject of law can only be the individual because “the norm is an imperative that can only address itself to an intelligence capable of comprehending it”.9 The state is therefore merely a “national constituency of international global society of which its nationals are members”.10 Positive law is objective in the sense that it expresses the mechanisms of social solidarity that are indispensable for the cohesion of the international community. It frames and limits the powers of that which is formally described as ‘sovereign”. Positive law is not conceived as immutable natural law deduced from Reason, or even as law emanating from the will of the governing rulers. The political authorities do not “create” law, they only ascertain and express “pre-existing” rules of objective law that correspond to concrete social realities. From the normativist perspective of Hans Kelsen, state sovereignty is challenged on different grounds. In this view, the state does not exist outside of law: it is a community instituted by law—more precisely, by international law as the sole juridical order that determines the realm of the personal, territorial and temporal validity of national legal orders.11 No line of demarcation separates the juridical order of the state from other juridical orders, be they infra- or supra-state orders. The only differences between the diverse political entities corresponding to these orders will be quantitative differences linked to the degree of the centralization of authority and competence.12 The principle of sovereignty does not represent a “fullness of power” that expresses itself at the heart of a state or in the international sphere; it simply signifies that the state is subordinate only to the international legal order.13 For Kelsen, who dedicated himself all along to the establishment of an “international democracy”, the idea of peace through law only becomes conceivable with the neutralization of the differences between domestic and international spheres and the renunciation of the traditional principle of the sovereignty of the state. In fact, by consecrating a plurality of powers as “supreme”, the principle of sovereignty undermines any possibility of regulation by law.14 The primacy of international law necessitates the submission of state juridical orders; it justifies itself essentially by the fact that it reflects the unity of mankind, an idea that goes back to Christian Wolff’s civitas maxima and ultimately to the Roman ius gentium.15 The primitive state of international law must then be corrected by the creation of a legal authority that seeks to interpret and enforce the application of the law in a binding way. Finally, in order to affirm its normative character, the international legal order must provide for a sanctions mechanism that allows the use of coercive means to instil respect of

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the law.16 Thus Kelsen understands the ethical notion of just war as the foundation of the legal nature of international law, even as a precondition of its effectiveness.17 For all their differences, the doctrines of Scelle and Kelsen both rest on the demands of international solidarity and, in particular, on the willingness to empower individuals and communities by restraining the power impulses of states. It is hardly surprising therefore, that from 1990 on, their ideas gravitated to the centre of attention again. The defeat of communist ideology, the atmosphere of suspicion surrounding the state (and hence, the principle of sovereignty) and the consequent revival of the debates on the rights of the person, of minorities, of peoples, on the “right of inference” and on the process of institutionalization of international relations, all contributed to the topicality of Scelle’s and Kelsen’s thinking, just as they have worked to revive pluralist theories inspired in particular by the work of Cole and Laski in the second decade of the twentieth century.18 In a theoretical perspective, the revival of the ideals contained in this type of doctrine can also be understood as a radical challenge to the Soviet doctrine of international law. This tradition, associated with the figure of G.I. Tunkin, rested on a voluntarist conception of international law championing highly traditional conceptions of sovereignty. Indeed Tunkin explicitly attacked the “bourgeois” doctrines of Kelsen and Scelle when he wrote that “projects to create a world state and the calls for the abolition of state sovereignty objectively reflect the tendencies of the imperialist powers to try to use international organizations for their own reactionary aims.”19 Carl Schmitt was arguing along comparable lines during the inter-war period, when he criticised the detrimental influence of juridical discourses inspired by the Kantian project: When a state fights its political enemy in the name of humanity, it is not a war for the sake of humanity, but a war wherein a particular state seeks to usurp a universal concept against its military opponent. At the expense of its opponent, it tries to identify itself with humanity in the same way as one can misuse peace, justice, progress and civilization in order to claim these as one’s own and to deny the same to the enemy. The concept of humanity is an especially useful ideological instrument of imperialist expansion, and in its ethical-humanitarian form it is a specific vehicle of economic imperialism.20

In seeking to expose the political risks underlying such discourses, Schmitt showed that from this perspective, neither positive law nor “rational’ or “natural’ law could be considered neutral, and the political implications of a global rule of law should therefore be carefully investigated. Either it refers to existing positive laws and law-giving methods, in which case we are merely

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looking at the legitimization of a specific status quo; or it appeals to a higher or better law (natural law, law of reason). In this latter case, Schmitt wrote, it ‘signifies the rule and sovereignty of men or groups who can appeal to this higher law and thereby decided its content and how and by whom it should be applied.”21 It must be conceded that in much writing influenced by either anti-positivist or anti-voluntarist conceptions of law, the question of the entities called upon to determine the content and interpretation of the norms of reference (quis judicabit) has been neglected. Serge Sur, addressing the issue of a transcendence of the state, distinguishes between optimistic and tragic implications. In the optimistic version, it may lead to the progressive realization of a cosmopolitan federalism; a perspective referring back to the normative and solidarist ideals of Kelsen and Georges Scelle. In this scenario, The return of the judge does not express a minimalist conception of the law, because the legalization of social life can be extremely complex; instead, it articulates a conception that is reactive rather than active, based on natural law rather than voluntarist, ethical rather than statist.22

The tragic scenario, on the other hand, may entail a return to the state of nature and the rule of power, especially once the principle of the sovereign equality of states has been discarded. Effectively, the two outcomes have been projected on separate categories of states according to their political structure and ideology. This suggests a hierarchy of legitimacy between a zone in which Kantian liberalism has been realised, and one beyond it. In the words of Benedict Kingsbury, “the theory of liberal and non-liberal zones proposes differential treatment where boundaries of the liberal zone are crossed, conferring privileges based on membership in the liberal zone, and setting high barriers to entry.”23 In law, this tendency would be realised by the application of international norms according to a criterion of political legitimacy; a perspective long suspect because of its “imperialist” implications.24 Recently, however, thinkers such as John Rawls have turned to distinguishing between well-organised societies (democratic or hierarchical) and those that are not. Like Jürgen Habermas, who has come up with comparable distinctions, Rawls considers this in light of the need to universalise human rights.25 These thinkers aim to justify a right of humanitarian intervention, for which the principle of state sovereignty must be sacrificed to individual or collective rights. Today, the willingness to rethink the international order according to criteria of political legitimacy is evident in the desire to create a caucus of democratic states within the UN, although the aims of such a division are rarely made

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explicit.26 In the context of the war on terrorism, however, arguments in favour of the introduction of a double standard have been made with reference to a new “liberal imperialism”. In coining this phrase, EU policy adviser Robert Cooper has argued in favour of the European model of peaceful expansion, “on the basis of laws and open cooperative security.” Only “when dealing with more oldfashioned kind of states outside the post-modern continent of Europe, we need to revert to the rougher methods of an earlier era—force, pre-emptive attack, deception, whatever is necessary to deal with those who still live in the nineteenth century world of every state for itself”.27 Despite his obvious intention to demarcate a European approach, Cooper’s arguments have not laid to rest suspicions concerning the motives behind the differential legitimacy approach. In fact the experience of European integration has given rise to more legalist critiques of state independence and sovereignty. But the perspective of decoupling law from the principle of state sovereignty wholly or partially, continues to elicit certain reservations and poses the question as to the coherence and effectiveness of “stateless law”. This I turn to in the next section.

Cosmopolitan or Ethnic Democracy? Confining myself to the consequences for the principle of sovereignty of arguments for a cosmopolitan democracy, I will argue that they approximate the consequences of integral federalism, even though the motives and the politics of the two models are different in many respects. For the proponents of integral federalism, the aim is to give the principle of self-determination pride of place in order to hasten the demise of the model of the sovereign state in Europe and replace it with “ethnic” democracy. For the advocates of a cosmopolitaninspired democracy, it is the exercise of power itself which must be rethought in order to allow political citizenship in the European Union to be fully exercised. A dissolution of the different aspects of sovereignty also occurs this framework. This leads, given the primacy accorded to the law, to a weakening of the positivist and voluntarist model. “Ethnic Democracy”: A Europe Respectful of Its Nations “Integral federalism” (as opposed to political federalism which still rests on a traditional conception of sovereignty) is inspired by pluralist theories that deny the principles of the unity and indivisibility of state sovereign power, as well as the principle of its exclusive competence and its competence “in the last instance”. According to Guy Héraud:

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It is the only doctrine that surmounts the contradictions of statism, and which unites two natural polarities in one simple dialectic: the centripetal and the centrifugal, social discipline and the autonomy of subjects, order and liberty.28

By acknowledging the multiplicity of social groups and sectoral collectives, integral federalism produces a harmonious law in which the duality of internal and external order disappears, as the “state-nation” “returns to infra-national entities their confiscated autonomy and transfers to international institutions the powers they demand.”29 Thus every entity receives the powers that derive from “its proper nature” and the “principle of adequacy”. In a decentralised federal system, the principle of subsidiarity is then called upon to play a determining role in relation to the distribution of competences.30 In this framework, selfdetermination is a central and predominant concept. It can be further broken down into a principle of self-affirmation (who are the members of the community of reference?) and a principle of self-definition (according to which criteria?). Authentic democracy implies in addition a principle of selforganization (what status?) and self-management (which goes back to the right to self-government).31 The right to self-determination therefore naturally and logically precedes democracy. In Héraud’s words, Ethnic democracy is the regime where each people choose their state of belonging—whether this be a sovereign state, as it is today, or a member state in a federated world, as it will be tomorrow. It is evident that there can be no democracy if a people or a group of a people are enclosed in a state that it did not choose and in which it is dominated, be it with kindness, by another people. These considerations lead to an important truth: the self-determination of peoples precedes internal democracy.32

Backing up his advocacy of a Europe of the regions by standing as a candidate for European elections,33 Héraud has welcomed the reduction of the levels of power, their autonomy and the emancipation of sectoral collectivities as positive contributions to the dissolution of the political into the social and to the withering away of the state. Cosmopolitan Democracy: A Europe Respectful of the Values of Citizenship At the basis of most of the recent developments of these political-philosophical doctrines lies the realization that democracy, once inserted into a state framework, becomes more and more of a formality. The nation-state no longer has the capacity to impose its exclusive authority, to control its population and to turn the latter into an authentic “deliberative community”, because this

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community now comprises transnational actors as well.34 Hence the quest for a better adapted political framework for the exercise of rights and liberties is in order.35 Politics, if it is to be authentically deliberative, can only emerge as a reality from the interaction between the political system and public space; therefore, as Philippe Gérard puts it, “the discursive and intersubjective conception of sovereignty implies a decentred vision of society… supplanting all reference to a unified sovereign subject (the state, the people) by interaction between political institutions and civil society”.36 We should therefore, in this perspective, abandon the dangerous and problematic utopia that the political can be thought of as a hierarchical order. Order, Bertrand Badie has argued, “no longer depends on a more or less imagined verticality, but on the irradiating effect of every decision, even the smallest.”37 Responsibility, rather than sovereignty, becomes the focus of politics, and the consequences of an action rather than the submission to a fixed hierarchy, are what determines its rationality. “Good governance” hence becomes less the result of the relations of authority between vertical administrations, than of the horizontal coordination of social sub-systems and sectoral cooperation. In this framework, the organization of authority conforms to a criterion of functional diversity.38 The emergence of this “deterritorialised” political space is therefore not due to its being part of a model of unique and indivisible sovereignty. Indeed, in Habermas’s view, the postulate of the national interest erodes as the effects of a decision in light of global governance take precedence.39 This systemic transformation suggests restraint when it comes to turning Europe into a sovereign super-state again. First and foremost, the aim must be to develop a public space governed by the principle of the rule of law, but without a state. A common sovereignty (anchored in several demoi) would thus engender a cosmopolitan law that no longer aims to assure the rights and liberties of states, but the positive rights of citizens—in Europe and the world. It does this by anticipating that above and/or despite the state, these rights will be guaranteed by the existence of procedures and institutions capable of applying and imposing them.40 Jacques Commaille understands this tendency as a quasimetaphysical pursuit: societies search for new models and for a novel rationality, as suggested by the calls for law-abiding states, or the pervasiveness of the notion of “contract”.41 The juridical management of social relations under this new “meta-reason” would be part of a general model of “permanent negotiation” governed by an “ethics of discussion”.42 The notion of multiple loyalties enshrined by such concepts coincides with the European project; it aims to turn each individual into a citizen of his/her home state and of the European Union. Postulating such an ontological diversity, and given that individuals and groups interact and thereby build a certain social order, implies

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the advocacy of pluralism; the political and juridical dimensions of such a pluralism break with a monist conception of law and the hierarchical model on which the authority of the sovereign state rests. Instead, organised civil society, “actors” or “clients”, are called upon to play a role at two levels (that of the elaboration, and that of the implementation of public policy) in order to mitigate the shortcomings of the classical model of representation. Thus they impart a degree of legitimacy to the system. A new type of law thus has to recognised; a type of law that rests on the right of every person (“party”) potentially affected by a decision to submit his/her comments, and on the obligation, for the decision-maker, to respond. This would express a more procedural than instrumental conception of the law.43

Critiques of Cosmopolitan or Federalist-inspired Law The developments put forward by those doctrines most inclined towards cosmopolitan or federalist ideas have been criticised on the basis of sometimes very different considerations and motivations. For some, these doctrines contribute to international disorder; for others, accepting a new interpretation of sovereignty supposedly more effective in guaranteeing individual rights and democratic liberties (including those beyond states), is evidence of an erroneous assessment of the evolution of the international situation, or worse, a suicidal utopia. Georges Lebel, for one, argues that the development of normative subsystems portending to be autonomous as well as the proliferation of international standards (such as soft law) are seen as undermining the unity of the international order by introducing a new form of “legal feudalism”.44 AndréJean Arnaud claims that interactions between the “global” and the “local” lead to a weakening of the state and simultaneously, to a “segmentation of juridical reason hitherto normalised and legalized on the basis of national sovereignty.”45 For this reason, legal norms are perceived more and more as resources solicited and shaped by actors according to their needs and existing power relations. But this would lead to a post-modern legal theory which, in the words of Commaille, would entail “the destabilization, the loss of foreseeability and of ‘calculability’ [of the law] that would threaten the essential attributes of rationalization according to Max Weber.”46 The problems which such a transcendent and absolute normative order would give rise to, and which would produce a law that is both soft and inconsistent, have worked to constrain state actors otherwise keen to emphasise the “sovereignty of law”.47 Indeed, it is generally believed that an evolution in this direction would indicate that the functions traditionally handled by a juridical system based on a “formal and rational”

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positive law can no longer be fulfilled.48 Hence if states, European states in particular, tend to privilege the law, then this is precisely with regards to the traditional functions that the law can fulfil in relation to the legitimization of states’ power. The notion of a “suicidal utopia” refers to the work of Simone GoyardFabre. For her, the model of “society against the state”, and the dismissal of the channels of political authority and of the sovereignty of power, ends up in a pluralism without limits, from which no new conception of political law can emerge.49 Indeed the question of authority and power, which the principle of sovereignty has attempted to define throughout its development, thus becomes confounded again in a conceptual haze. As a number of empirical analyses of global governance have brought to light, the issue of the hierarchy between actors is often neglected. Often the exercise of political power is confused with forms of authority exerted by certain actors on others. Thus, the notion of governance, highly valued by critics of the notion of sovereignty, has come under fire for its “technocratic tropism and pretence to govern by excluding politics, through a market-like mode of decision-making”. But as Ali Kazancigil argues, “democratic politics is about the representation and the mediation of general interests; the market concerns only exchange and negotiation between sectoral interests”.50 On a conceptual level, this approach starkly poses the question of how, and not really that of why. A “managerial” perspective easily shirks from the analysis of socio-political interests, relations of power and hegemony, and political conflicts.51 In any case, the system founded on sovereignty continues to function according to its own logic in practice in many respects; in particular between states who benefit the most from their rights as sovereigns. If today, “extrasovereign” processes are operative and lend credence to a post-sovereign reality, this does not yet mean that they have replaced the system based on the principle of sovereignty already.52 Also, contemporary changes are arguably not truly substantial, neither with regard to political organization nor in relation to legal issues; it is perhaps more realistic to acknowledge that “the transnational coincides with the phenomenon of states, and vice versa”.53 Robert Keohane relies on the distinction between zones of different political legitimacy when he writes, in this respect, that “in the zone of peace, characterized by complex interdependence, sovereignty will become more a resource to be traded off in exchange for partial authority over others” policies than a set of barriers to intervention.” In the “zone of conflict”, on the other hand, the traditional function of sovereignty—to clarify boundaries, institutionalize practices of reciprocity, and limit intervention—will probably be more salient than its use as a source of bargaining over issues involving transnational

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networks. Global institutions, designed to deal with the zones of conflict, will only incrementally be able to alter traditional conceptions of sovereignty, since the danger that sovereignty was invented to deal with—chronic, ideologically justified intervention—will remain prominent.54

The uncertain meaning of sovereignty thus remains. In some circumstances it is a norm we are interested in maintaining, in others it presents itself as an obstacle to be overcome. Certainly this does not mean that the international order is static or that the Westphalian system would not susceptible to tensions, or even in need of replacement.55 But it does appear that there is no proper consensus on the reach and meaning of a new world order governed by the methods of “good governance” (as it emerges from the field of economics) and legitimated by reference to the principle of responsibility (as emerging from the field of ethics).

Conclusion The idea of turning a legal system into a referential order that makes the harmonious coexistence of peoples possible in a society in which interdependence calls for heightened solidarity and co-operation, is not new. The idea takes on diverse forms depending on the ideological convictions of its advocates. It comes therefore as no surprise that these rival visions have produced a range of conflicting views on the concept of sovereignty. These have either sought to demonstrate the central role of sovereignty in the effective functioning of international society, or to pinpoint the risks brought about by a system where its traditional role is being challenged by the primacy accorded to the nation (in the “ethnic” version of democracy) or to law (in the normativist version), relative to the state. For Max Weber, it was already clear that the transposition of the logic of modern law to the relations between states and the implied limitation on sovereignty, which was based on values claiming to be universal, could not surmount the irrationality of domination. On the contrary, it would favour the outbreak of a “war of the gods”.56 For the “sovereignists”, the only way to avoid this imminent confrontation is to ensure that the state remains the exclusive interface between the internal and international spheres. This is a condition both of the effectiveness of international norms and of their legitimacy in a world that, quite obviously, does not share the same set of values and does not function according to a common ideological mode. In order to thwart the critiques of these attempts to reactivate a form of law transcending states, it has been suggested that they might be accompanied by certain guarantees. These can generally be found in reflections on the

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development of an ethics of discussion that could be implemented within multilateral institutions.57 But as Jürgen Habermas has averted, in certain situations (such as the one currently arising from the war on terrorism) this solution would be absurd.58 The idea of an ethics of responsibility is sometimes also called upon to fill the void left behind by the marginalization of sovereignty. At any rate, the model of governance that would tend to replace it, by establishing a form of polyarchy (weakly institutionalised at the international level), does not seem conducive to establishing a political responsibility. In certain situations, it effectively is difficult to identify the pertinent level of power for decisionmaking, as proved in the case of the war against Yugoslavia over Kosovo.59 In an intricate and complex political configuration, political responsibilities rather tend to attenuate and difficult to attribute unequivocally. In the situation that arose from the attacks of September 11th, on the other hand, the American President and his former Secretary of State Colin Powell were well served by the argument that the particular responsibility that fell upon the United States as the sole superpower, gave it a status of exception allowing it to free itself from the constraints weighing on other states.60 This misguided form of an ethics of responsibility indirectly legitimizes the politics of double standards in relation to the application of the law mentioned above. In this case, we are back in a legal regime resembling that of the nineteenth century, in a period when legal norms were applied depending on the degree of civilization and at the discretion of a handful of powers. Translated from the French by Susanna Rust 1. R. Jackson, “Sovereignty in World Politics: a Glance at the Conceptual and Historical Landscape”, in R. Jackson (ed.), Sovereignty at the Millenium (Oxford: Blackwell, 1999), pp. 20-21. 2. C. Chaumont, “A la recherche du contenu irréductible du concept de souveraineté internationale de l’Etat”, in Hommage d”une génération de juristes au Président Basdevant (Paris: Pedone, 1960), pp.144 and 122. 3. Ruling of August 17, 1923, C.P.J.I., Série A, no.1, p. 25. 4. S. Rials, “La puissance étatique et le droit dans l’ordre international. Eléments d’une critique de la notion usuelle de ‘souveraineté externe’”, Archives de philosophie du droit 32 (1987) p. 209. 5. O. Corten and P. Klein, Droit d”ingérence ou obligation de réaction? (Brussels: Bruylant, 1996), pp. 221-222. This intervention must, however, always respect the prohibition against the threat or use of force as stated in art. 2 §4. 6. L. Duguit, Traité de droit constitutionnel (Paris: E. de Boccard, 1927, vol. 1); N. Politis, “Les problèmes de limitation de la souveraineté”, Receuil des cours de l’Academie de droit international, (hereafter, R.C.A.D.I.) 6:1 (1925) pp. 6-7. 7. C. Rousseau, Droit international public (Paris: Sirey, 1974, vol. 2), pp. 59-61

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8. G. Scelle, Manuel de droit international public (Paris: Domat-Montchrestien, 1948), pp. 100 - 101. 9. G. Scelle, “Règles génerales du droit de la paix”, R.C.A.D.I. 46 (1933), pp. 341-343. 10. Ibid. 11. H. Kelsen, “Théorie du droit international public”, R.C.A.D.I. 84 (1953) p. 11. 12. H. Kelsen, Théorie pure du droit, (Paris/Brussels: L.G.D.J./Bruylant, 1999), pp. 318331. 13. Kelsen, “Théorie du droit…” op. cit., pp. 81-85. 14. D. Zolo, “International Peace Through International Law”, European Journal of International Law, (hereafter, E.J.I.L.) 9:2 (1998) pp. 306-307, who bases himself on Kelsen’s Das Problem der Souveränität und die Theorie des Völkerrechts, written during the First World War. 15. Zolo, “International Peace…”, op. cit., pp. 309-310. 16. C. Tournaye, Kelsen et la sécurité collective (Paris: L.G.D.J., 1995), pp. 9-14. 17. Kelsen, Théorie pure du droit, op. cit.,. pp. 311-3. 18. O. de Frouville elaborates at length on the legal doctrine of Scelle in “La Cour pénale internationale: une humanité souveraine?”, Les Temps Modernes 610 (2000) pp. 257258; J.-D. Mouton, “La notion d’État et le droit international public”, Droits 16 (1992) p. 56. 19. G.I. Tunkin, Droit international public: Problèmes théoriques (Paris: Pedone, 1965), p. 152. 20. C. Schmitt, The Concept of the Political (Chicago: University of Chicago Press, 1996), p. 54. 21. Ibid., p. 66 22. S. Sur, “L’État entre éclatement et mondialisation”, Revue Belge de Droit International, 1 (1997) p. 12. 23. B. Kingsbury, “Sovereignty and Inequality”, E.J.I.L. 9:4 (1998) p. 622; cf. A.-M. Slaughter, “International Law in a World of Liberal States”, E.J.I.L. 6:4 (1995) pp. 503-504. 24. O. Corten, “Droit, force et légitimité dans une société internationale en mutation”, Revue interdisciplinai e d’études juridiques 37 (1996) p. 75. 25. J. Rawls, Les droits des gens (Paris: Ed. Esprit, 1996), p.47; Habermas believes that the Kantian project remains too dependent on the principle of the sovereignty of states, and shows himself to be rather sympathetic to a right of intervention, cf. his La paix perpétuelle. Le bicentaire d’une idee kantienne (Paris: Cerf, 1996), pp. 55-63. 26. This idea is already taken up by J. Rawls, Les droits des gens, op.cit., p. 82; an initiative of this type is supported by the European Parliament, Report on the relations between the EU and the UN (2003/2049 (INI)), December 16, 2003, p. 24. 27. R. Cooper, “The New Liberal Imperialism”, Observer Worldview, April 7, 2002. Cf. E. Remacle, “La stratégie européenne de sécurité. Plus ‘occidentale’ qu’ ‘européenne’”, in B. Delcourt, D. Duez and E. Remacle (eds.), La guerre d”Irak. Prélude d’un nouvel ordre international? (Brussels: Peter Lang, 2004) pp. 41-42. 28. G. Héraud, “Un anti-étatisme: le fédéralisme intégral’, Archives de philosophie du droit, 21 (1976) p.171. 29. Ibid.

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30. V. Giscard d’Estaing, “La régle d’or du fédéralisme européen”, Revue des Affaires européennes, 1 (1991) pp. 63-66. 31. G. Héraud, L’Europe des ethnies (Brussels/Paris: Bruylant/L.G.D.J., 1993), pp.191192. 32. Ibid.., p.187. 33. First and foremost, of course, Professor at the Strasbourg Faculty of Law 34. Cf. B. Badie, “Vers une responsabilité cosmopolitique?”, Les Temps Modernes 610 (2000) p.102. 35. See for example J. Habermas, Après l’État-nation. Une nouvelle constellation politique (Paris: Fayard, 2000) p.157. 36. P. Gérard, “Entre puissance et autonomie: la souveraineté”, Les Cahiers: la souveraineté, (Brussels: Facultés universitaires Saint-Louis, 1997), p. 106. 37. Badie, “Vers une responsabilité…”, op. cit., p. 97. 38. See Fritz W. Scharpf, “Essais sur la démocratie dans les systèmes de négociation”, in M. Telò (ed.), Démocratie et construction européenne (Brussels: Ed. de l’Université de Bruxelles, 1995), pp. 145-170; cf. B. Delcourt, Droit et souverainetés: Analyse critique du discours européen sur la Yougoslavie (Brussels: Peter Lang, 2003), pp. 313-314. 39. Habermas, Après l’État-nation…, op. cit., p. 123. However, Habermas distances himself from certain “post-modern” proposals because of their convergence with the neoliberal model: ibid., p. 88. 40. Habermas, La paix perpétuelle…, op. cit., pp. 121-122. 41. J. Commaille, “Le juridique dans le politique. De la relation entre ‘sciences’ à l’évidence de l’objet”, in: J. Chevallier (ed.), Droit et politique (Paris: PUF, 1993), p. 281. 42. J. Commaille, “Normes juridiques et régulation sociale. Retour à la sociologie générale”, in F. Chazel and J. Commaille (eds.), Normes juridiques et regulation sociale (Paris: L.G.D.J., 1991), p.18. 43. See in particular the work of O. de Schutter, N. Lebessis and J. Paterson (eds), Governance in the European Union (Luxembourg: Office for Official Publications of the European Communities, 2001), p. 22. 44. G. A. Lebel, “La mondialistion: une hypothèse économique galvaudée aux effets dramatiques”, in F. Crépeau (ed.) Mondialisation des échanges et functions de l’État (Brussels: Bruylant, 1997 ), pp. 29-31. 45. A.-J. Arnaud, “De la globalisation au post-modernisme en droit” (leçon 5), in Entre modernité et mondialisation. Cinq leçons d”histoire de la philosophie du droit et de l’État (Paris: L.G.D.J., 1998), p. 31. 46. Commaille, “Normes juridiques...”, op. cit., p. 16. 47. S. Sur, “Système juridique et utopie”, Archives de Philosophie du Droit, 32 (1987) p. 45. 48. In particular in relation to legitimization, see my “Usages du droit international dans le processus de légitimation de la politique extérieure européenne”, Droit et Société 49 (2001) pp. 769-790. 49. S. Goyard-Fabre, Les principes philosophiques du droit politique moderne (Paris: PUF, 1997), p. 395.

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50. A. Kazancigil, “Gouvernance et science: modes de gestion de la société et de production du savoir empruntés au marché”, Revue internationale de sciences sociales, 155 (1998), p.76. 51. F.-X. Merrien, “De la gouvernance et des États-providence contemporains”, Revue internationale des sciences sociale, 155 (1998), p. 6, 101-102. 52. See also Eric Hobsbawn, Les enjeux du XXIième siècle (Brussels: Complexe, 1999), especially pp. 52, 72. 53. A. Chauprade, “Table ronde: la fin des souverainetés?”, Revue politique et parlementaire, 1012 (2001), p. 21. 54. R. O. Keohane, “Hobbes’s Dilemma and Institutional Order in World Politics”, in H.-H. Holm and G. Sorenson (eds), Whose World Order? Uneven Globalization and the End of the Cold War (Boulder: Westview Press, 1995), pp.184-185. 55. See J. G. March and J. P. Olsen, “The Institutional Dynamics of International Political Orders”, International Organization, 52:4 (1998) p. 946. 56. P. Raynaud, “La guerre et le droit: les limites de la rationalisation. Max Weber et sa postérité”, Archives de Philosophie du droit, (1987) pp. 104-105. 57. D. Archibugi and D. Held (eds), Cosmopolitan Democracy – An Agenda for a New World Order (Cambridge: Polity Press, 1995), p. 190. 58. See “Qu’est-ce que le terrorisme”, interview with Jacques Derrida and Jürgen Habermas, Le Monde Diplomatique, February 2004; see also my “De quelques paradoxes liés à l’invocation de l’État et du droit” in T. Christakis, K. Bannelier, O. Corten and B. Delcourt (eds), Le droit international face au terrorisme (Paris: Pedone, 2002), pp. 203-215. 59. The attempt to establish the appropriate level of power in the decision-making concerning the NATO operation against the Federal Republic of Yugoslavia proved to be extremely complicated, see my “La decision de recourir à la force contre la Yougoslavie: quels niveaux de pouvoir? Quel rôle pour l’Europe?” in Corten and Delcourt, Droit, légitimation et politique extérieure…, op. cit., pp. 31-48. 60. In this light, see “Existing Rights, Evolving Responsibilities”, by Ambassador Richard Haass. State official explores rights, responsibilities of nation-states”, January 15, 2003, http://www.uspolicy.be, and my “Les modalités de gestion de l’après-guerrre en Irak: des révélateurs intéressants des enjeux de pouvoir dans le ‘Grand Moyen-Orient’”, in K. Bannelier, T. Christakis, O. Corten, and P. Klein (eds.), Les aspects juridiques de la crise et de la guerre du Golfe (Paris: Pedone, 2003), pp. 347-58.

CHAPTER 14 COMMUNITARIANISM: THE PRACTICE OF POSTMODERN LIBERALISM BOB BRECHER Introduction: the “Third Way” What better way of introducing the concept of the “Third Way” than in the words of one of its key proponents, British prime minister Tony Blair? This is what he had to say in February, 2003: The Third Way to me consisted of ... ‘flexibility plus’ to cope with market failure ... [a] rights and responsibilities approach based on conditionality in welfare, strong on law and order, but also social programmes to address the causes of crime ... equality of opportunity, but also restructuring and reform to build more diverse, individually tailored services built around the needs of the modern consumer .... [and] in foreign policy ... pursuing a broad agenda of engagement with the aim of building a new global partnership based on shared values.1

Gibberish though this is, it is, unhappily, significant gibberish. The concept of the “Third Way” in earlier versions already included Mussolini’s original interpretation, as a compromise between socialism and capitalism which purported to surmount both; and the post-war attempt to steer clear of the cold war antagonists whilst pursuing a programme of the Left. But in this case, the Third Way is simply neoliberalism in practice. Blair’s use of the term, at a time when Anglo-American plans to invade Iraq were in an advanced stage, and after a silence of some three years, should give pause to all those concerned by the Bush-Blair axis’ determination to spread “freedom” across the world. For the Third Way also entails action, in this case military action that brought US forces to Baghdad within a fortnight, and the British to Basra—only to get stuck in the quagmire of occupation. Never mind that the invasion of Iraq was illegal; never mind that there were no weapons of mass destruction; never mind that the “democracy” in whose name it was carried out extends only to those who agree with the Bush-Blair agenda. Never mind Abu Ghraib,

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Guantanamo Bay and all the rest. For Blair—like Bush—is a righteous man, and knows even the mind of God, as he revealed in an interview in 2003: What does [prime minister Blair] feel about the deaths of children that are the direct results of his own decision? ... ‘It really gets to you,’ he says, as though he were talking about someone other than himself. ... Aides have spoken of how much he has felt the responsibility of shedding blood. He speaks of being ready ‘to meet my maker’ and answer for ‘those who have died or have been horribly maimed as a result of my decisions’. He accepts that others who share belief in his maker, who believe in ‘the same God’, assess that the last judgment will be against him.2

Clearly, however, he knows better than they; God will judge in his favour, not in theirs. There is much, indeed very much to be said about the nature, provenance and implications of the international norms newly resurrected from the Roman Imperium, from early nineteenth century free-market liberalism and from later nineteenth-century colonialism by the fundamentalist free-market Christian currently holding the office of President of the USA; and about why these norms are being so energetically proselytized among the heathen by his British disciple. Of course, there are important differences in how Blair and Bush sought to justify themselves with regard to the invasion of Iraq: “While many in the Bush administration see the war as a unilateral exercise of military power in defence of American security and values—and some celebrate the fact that the United Nations is a sullen bystander—Blair defines the war in the framework of international institutions and the global community.”3 Given Blair’s obediently having followed Bush round the obstacle of the UN Security Council, however, it is hard to decide whether his “Doctrine of the International Community” is self-deluded, entirely cynical or both. What is central here is that it is the “thinking” of the so-called philosophy of the “Third Way” that allows the unjustifiable to be justified. Gideon Calder puts it particularly clearly: As a political philosophy, the Third Way is an attempt to find free-floating, flexibly re-interpretable values which reconcile perceived contradictions. It thus hinges on the rejection of purportedly false oppositions: between left and right, capitalism and socialism, state and market, or whatever. But what is most distinctive about the ideological moves made under its banner is a certain, halfexplicit, theoretical manoeuvre. For while Third Way thinking does indeed arise from certain historical currents, both ideological and in terms of political economy, its aim is to sever, as far as possible, all reference to such continuities.4

The “shared values” beloved of “Third Way” propagandists may after all be imposed on those who do not, or are deemed not to, share them. For these

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values are the right ones. And how do “we” know they are? Because they are “ours” and because “we” believe in them very sincerely indeed. What is this but a crudely political version of communitarian philosophers” insistence that we “simply drop the distinction between rational judgment and cultural bias”?5 Leo Panitch’s and Colin Leys’ characterisation of the “Third Way” as manifesting “a distinctive kind of idealism, co-existing with the insistence on ‘realism’ about the new globalized economy”6 is no less apt with regard to communitarian epistemology, and in particular its moral epistemology, than to the “Third Way” politics which it underpins. However different communitarianism might appear to be from naked neoliberalism’s individualistic, egocentric, greed-driven and rapacious view of the world, it cannot but offer succour to precisely such a view. That is to say, the neoliberals” use of communitarianism is not simply opportunistic; it is not a deliberate, ideologically driven distortion of it, along the lines perhaps of George Orwell’s “Newspeak”. Rather, communitarianism is no more than pre-Millian liberalism regurgitated to suit today’s agenda: a “liberalism with a human face”, one might say, a liberalism re-written at once for postmodern sensibilities and deluded humanitiarian sensitivities—that is to say, a “Third Way”. Consider, for instance, the very idea of “humanitarian intervention”, with all its contradictions, epistemological no less than moral and political.

Why Communitarianism? Let me start, then, by saying a little about the roots of communitarianism. Over the last fifteen years or so, communitarianism has become increasingly fashionable, both on a theoretical level and as everyday politics. Originating with Amitai Etzioni in the USA,7 where it arose in response both to a sense of dissatisfaction with increasing social alienation and a loss of confidence in American liberalism’s attempted self-justification, it has come on this side of the Atlantic to underpin the European “Centre Left”. Communitarianism offers a reconceptualization of the individual, society, and their relation to each other that avoids the atomization of the Anglo-American liberal model. As such, it allows us to pursue what its advocates regard as a “politics of responsibility”, whether in respect of the provision of social welfare or the creation of political theory: no right to unemployment benefit without the concomitant duty to take the work there is; away with liberalism’s unencumbered and impossibly abstract individual; in with the specificities of difference. Both theoretically and practically, then, communitarianism is claimed by its proponents to offer an alternative to the rampantly libertarian individualism inherent in the liberal tradition and epitomised by the contemporary neo-liberal consensus. The impossibly universalised individual roaming the pages of Rawls’s Theory of

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Justice and propping up his Difference Principle is replaced by the concretely, and very differently, situated incarnations of individuals to be found in the real world. Now that is not all. For socialists would readily agree that we are primarily social beings, with duties as well as rights. Why, then, are communitarians not socialists? Because, they claim, socialism has failed, in theory no less than in practice. What is needed, rather, is to strike a balance between the rootless and finally identity-less liberal individual (Rawls’s impossibly disembodied and disinterested “person”) and the all too rooted—and so just as identity-less— member of a putatively socialist order (Marx’s impossibly social “person”). Communitarians thus claim to be pursuing a “Third Way”—at once politically and epistemologically—between socialism and free-market liberalism. Communitarianism, however, just like its actually existing political instantiation, the “Third Way”, fails to achieve what its proponents hope for. Far from being a genuine alternative to what it criticises, it is no more than a postmodern variant of the liberal tradition. Crucially, furthermore, it is a variant which is bereft of just that feature of liberalism which was the Enlightenment’s central bequest, no less to liberalism than to socialism: its universalistic conception of reason. And it is postmodern aversion to universalism (decried as socialist-style totalization) which allows communitarians hermetically to seal their claims against “external” criticism. Nevertheless, and despite its substantive shortcomings, there is something important to be learned from communitarianism. For it illuminates the inescapably ideological nature of the liberalism it disguises, and in so doing neatly illustrates how material interests give rise to intellectual fashion. As Alasdair MacIntyre puts it (perhaps over-optimistically): “In the social and political order at large the ugly realities of money and power are increasingly badly masked by the games played with the concepts of utility, rights and contract. The spectre haunting contemporary liberal theorists is not communitarianism, but their own irrelevance.”8 Communitarianism, far from being an alternative to the neoliberal reality, merely masks its theoretical difficulties and its political realities.

Liberals and Communitarians I shall start by drawing out something of what apparently separates communitarians from liberals. For liberals of the Anglo-American tradition,9 going back to Hobbes, Locke, Smith, Mill and Hayek, individuals are atomic units who come together to form associations insofar as these function in their interests: in brief, so as to avoid a life which is “nasty, poor, solitary, brutish and short” as Hobbes famously has it.10 According to that tradition, then, our

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relations to others are predicated on a contract, whether explicit or implicit; and so ultimately on self-interest. A person is not of itself a political, or moralpolitical, entity, but rather just a self-aware human being, a psycho-physical entity. A person’s identity consists in what is specific to him or her as an individual—despite their being also a rational animal, in common with all other persons.11 The proper form of relations between persons is therefore understood as contractual, whether this takes explicit or implicit form: we trade off duties against rights, and restrictions on ourselves against protection from others. The individual person remains sovereign, and it is, or ought to be, entirely up to them which contracts they choose to enter into; any imposition is an undue interference in their autonomy. As Mill puts it, a person’s “own mode of laying out his existence is the best, not because it is the best in itself, but because it is his own mode”: “neither one person, nor any number of persons, is warranted in saying to another human creature of ripe years, that he shall not do with his life for his own benefit what he chooses to do with it”.12 Communitarians, by contrast, locate the very possibility of being an individual within particular societies, cultures or communities: duties, rights, restrictions and protections constitute—to varying degrees—a framework into which we are born and which makes us who we are. A person is a moralpolitical construction, and not simply a psycho-physical entity. What exactly it is to be a person depends on the society, culture or community in which particular persons find themselves: the person (both materially and conceptually) of the liberal tradition is just that, one historically and culturally particular sort of person, and not at all something that persons universally consist in. On such a model, a person’s identity is determined largely by the sets of social relations within which he or she finds themselves; it is socially and culturally bound, rather than something that a person might individually choose for themselves—the antithesis of Rawls’s unencumbered “person” or Camus’ Meursault. Not only is the liberal notion of the autonomous individual a historically and intellectually specific conception rather than a universal one, but it represents an abstract ideal unrealisable even under the most liberal of dispensations. It is duties, rights, restrictions and protections which inevitably constitute, in various ways and to varying degrees, a non-contractual framework which people can reject, if at all, only by formal exit from their community. Society, far from being no more than an agglomeration of individuals, is more than the sum of its parts: there is no question of a contract, whether explicit or implicit. Our relations with others thus have an organic structure, rather in the manner of an extended family: we do not choose all the ties that bind.

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Postmodern Liberalism Those, then, are the apparent alternatives. What are we to make of them? Let me start by praising liberalism. For however over-extended and exaggerated the autonomy of its “individual”, the writ of reason in the liberal tradition runs universally. It is its universalism that is the crucial epistemological legacy of the liberal tradition, intellectually no less than historically; and the great moralpolitical achievement of the Enlightenment lay precisely in that tradition’s political corollary, in the French Revolution’s extension of the status of “person” to the whole of humanity (whatever the vicissitudes and imperfections of its realisation). The nineteenth century emancipation of the Jews; the gradual, if incomplete, abolition of slavery; the even more protracted and less complete liberation of women: all these are in a critical respect the achievement of liberalism. To argue, for example, that Enlightenment rationality—liberalism’s inheritance—made possible the worst horrors of the twentieth century by at once insisting on “humanity” as the object of concern and responsibility and failing to recognise as members of humanity all sorts of groups of people— especially the Jews—and thus excluding them from “the human” is to confuse use with misuse; intention with outcome; substance with circumstance.13 Nor is there any question that Kant’s view of women and of Blacks was of its time: but it was also Kant’s theoretical universalism which set the intellectual conditions within which just such views, including of course his own, could be rightly overturned—and which he himself would have to recognise if he were to remain consistent within his position. Of course one can, and some did, argue that because Jews or Blacks aren’t (really) people, the respect due to people isn’t due to them: but to observe that one can so argue is not at all the same as to say that it is rationally legitimate so to argue. Not even reason can give a guarantee against its own misuse. But it does offer a means of detecting, even if not necessarily remedying, such misuse. And nothing else can do that. So much, then, for the praise. It ought to come as no surprise that liberalism should be attempting to dispense with its traditional universalism. For it is in no mood for criticism. But then it also abandons any possibility of rational self-defence. Its contemporary attempts to do justice to multicultural considerations, for instance, founder on the paradox, whether real or apparent, of the need to tolerate decidedly illiberal views and practices. Absent the universalism either in which liberals have lost their confidence or from which they seek refuge in postmodern denials of its possibility to avoid having it turned against them, all there is left for them is to say, with Rorty, that this is how we do things here. Postmodern liberalism—or, which is the same, epistemologically communitarian, anti-universalist, liberalism—can do no more than “expand the reference of the terms ‘our kind of

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people’ and ‘people like us’”14 both to Afghanistan and Iraq and to Afghan and Iraqi refugees—if we happen to share Rorty’s own more traditonally liberal tastes. If his brand of communitarian liberalism is not to our taste, however, then, following the taste of New Labour, we shall limit that expansion to the states of Afghanistan and Iraq alone and certainly not to the people of those countries, let alone to Afghan and Iraqi refugees. And, as with the more traditional conservatives who differ from “us” only in their not recommending any Rortyan “generosity” at all, there are no reasons to be given for any of these positions, since “rational agency is synonymous with membership in our moral community”.15 All that is left to Rorty is expressly to champion liberal democracy as the “least bad option”, however critical he may be, as a communitarian liberal, of the fact that “millions of children in American ghettos grew up without hope while the U.S. government was preoccupied with making the rich richer—while assuring a greedy and selfish middle class that it was the salt of the earth”.16 No less a liberal in practice than was that exemplary liberal, John Rawls, he simply believes, on postmodern, communitarian grounds—if that is not too much of a contradiction—that liberalism cannot be justified; that, like any other political philosophy, it must remain groundless. Rawls, by contrast, while he ceased believing that liberalism could be universally (or “metaphysically”) justified— the liberal epistemology of A Theory of Justice gave way to a more relativistic approach—nonetheless thought that liberalism could justify itself within particular liberal democracies on the basis of a “public reason” which is suitably politically neutral, while being epistemically available only within such democracies themselves, and thus not a universal, or “metaphysical”, tool. But even if Rawls’s “public reason” is adequate for the modest task he sets it,17 the task remains far too modest. There are no good reasons why anyone but liberal democrats should take the slightest notice; nor any grounds on which even liberal democrats might suppose they themselves should do so on pain of rational inconsistency. Again, they are left with nothing to say but that that is what they do—and that ought not to be sufficient to convince even themselves. The point is that communitarianism, committed as it must be to both normative and epistemic relativism—we should “simply drop the distinction between rational judgment and cultural bias”18—cannot but collapse into a continuation of whatever status quo prevails in particular communities. For if we do drop that distinction, then cultural bias is all we have left. And if critique is rationally ungroundable, since one must “refuse to contrast the world with what the world is known as”,19 then whether or not a particular status quo (whether normative or epistemic) continues, or is challenged, dissolved or overturned, cannot depend on rational assessment (unless it so happens that the culture concerned happens to have a bias in its favour, or in favour of whatever

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its own conception of “rational assessment” might be). As Norman Geras puts it, for Rorty “not rationality, enquiry or theory, but imagination and various genres of narrative—”ethnography, the journalist’s report, the comic book, the docudrama, and, especially, the novel”—are the medium of moral persuasion and conviction.”20 Of course, Rorty’s position is self-contradictory: for on his own epistemological view, he cannot legitimately offer any general view about the norms of other cultures, since he can speak only from within his own. At best, the novel, etc., rather than rational argument, is appropriate as a means of moral debate in Rorty’s own (sub-)culture. So, for example, the offensiveness of his apparently wider claim that “the wisdom of the novel ... encompasses a sense of how Hitler might be seen as in the right and the Jews in the wrong”21 is at least mitigated by its being, on his own “grounds”, no more than an expression of the view prevailing on whatever (sub-)culture he inhabits, rather than actually making any trans-cultural claim about the nature of novels or understandings of Hitler. For if a particular culture chooses not to regard (its own, one must assume) novels or understandings in this way, then that is that: cross-cultural judgements and critique are impossible. It turns out that no sincerely held view within a particular culture can be mistaken unless that culture thinks it is (and whatever it might mean for a culture to do this or not). Nor is that all. While liberal philosophers ponder multiculturalism, neoliberal politicians are busy imposing their New World Order, and without relativistic reservations. And it is here that communitarianism is so helpful to the latter: whatever the logic of the matter, the ideology is doing all too well. Neoliberalism, it turns out, can be imposed after all: it turns out to be “our” duty to root out intolerance, fundamentalism, terrorism and all the rest of it wherever we find it. Hence “humanitarian intervention” with a communitarian face: since “we” believe the imposition of neoliberalism to be right, “we” are right to impose it. Recall again the realities of the “Third Way”. While Rorty’s taste in these matters is very different from Bush’s and Blair’s, it remains just that, a matter of taste. The point is, as David Wiggins puts it, “that there is a difference between there being nothing else to think and there being nothing else for us to think ... and ... that what we are concerned with is the first of these things, not the second”.22 Philosophically unimpeachable as this is, however, that is not enough to ensure its ideological force. For since “propaganda is often aimed at persuading people to do things that are not in their own best interests, it frequently seeks to bypass the rational brain altogether and manipulate us on a more primitive level.” 23

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Communitarianism: Postmodern Liberalism in Disguise Let me attempt to give my brief critique of communitarianism a little more substance by taking as an example an article by Philip Selznick, one of its leading philosophical exponents. This article, moreover, is clearly aimed at a wider audience than just the philosophical community. Selznick’s declared intention in the piece is “to reaffirm, and to clarify if I can, the communitarian commitment to social justice”.24 Here is what worries him about liberalism as it is played out in American life: As we observe the weakening of institutions, the blurred line between liberty and license, the widespread preference for short-run gains, we see the need for more extensive responsibility in every aspect of personal experience and social life.25

And here is his response to those who might think of communitarians as basically conservative: I am troubled, however, by a selective concern for personal responsibility, personal virtues, personal morality. While these themes are music to the ears of conservative writers and politicians—whose main concerns are crime, illegitimacy, and similar offenses, and who see immorality as a lower-class evil addressed by punitive measures—they pay little attention to the responsibilities of the affluent, or of business leaders. Most important, the moral responsibilities of the community as a whole are only dimly perceived and given short shrift. There is plenty of truth in the conservative critique of modern culture. Communitarians do not shrink from recognizing that truth. We have joined in calls for more responsible parenting, more discipline in schools, and safe streets and homes. But we part company with conservatives insofar as we look to collective as well as personal responsibility; and insofar as we understand that collective responsibility includes obligations of care for the vulnerable and the disadvantaged.26

Now, there is a good deal to be said about these affirmations, not least about the differences between what “liberal” indicates in the context of American and of British politics, and between those and the mainland of Europe. There is also a good deal to be said about their relation to the specificities of the Blairite neoliberalism that is the “Third Way”. However, what I wish to focus on here is not the content of Selznick’s concerns but the form of his argument. For it is that which, I maintain, which provides the basic succour that communitarianism offers neoliberalism, inasmuch as it offers either protection against criticism (however mistakenly) or a fundamentally liberal defence (which is at least intellectually honest).

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One might (or indeed might not) wish to agree with his thought that responsibility starts at the top and that “the community as a whole” (whatever exactly that might constitute) has specific responsibilities (which, perhaps, ought not to be devolved to private agencies just on that account). But Selznick offers us no grounds on which we might do so. It may be the case, as he affirms, that “At bottom, responsibilities arise from social involvements or commitments”27: but where is the argument, whether against the liberal egoist, the libertarian or simply the a-social psychopath? The absence of such an argument ought not of course to be surprising. If rationality, argument and such truths as there may be are merely local, limited to specific communities, whether of language-users, political or religious co-believers or whatever, then there simply are no arguments to be given across such boundaries. Communitarianism’s epistemological convictions are exactly those of Rorty. That Selznick should in his concluding paragraph seem to recant and to rely on a remarkably classical liberal view of reason’s role in criticism is simply a contradiction—indeed, an inevitable one, since any thoroughgoing relativism is self-refuting. Or consider his “pluralistic image of community”, such that “what we prize in community is not unity of any sort at any price but unity that preserves the integrity of the parts”.28 Again, whatever one’s view of the substance of Selznick’s conception of community, what is immediately evident is how it mirrors liberals” difficulties with multiculturalism: what if preserving the integrity of one part of the community requires accepting its rejection of this conception of community? This attempt to have it both ways is of course characteristic, again recalling as it does the “Third Way” with which we started: but more needs to be done than merely to restate the two “ways” as against which a communitarian conception defines itself. “Community”, Selznick tells us, “presumes separateness as well as integration. To be sure, people need strong communities if they are to develop and flourish as fully realized persons. Nevertheless every person is unique, separate, and morally autonomous.”29 Maybe so: but then the problem—no less political than intellectual—is the tension between these two states of affairs: merely to (re-)state it does precisely nothing to resolve it. Finally, and most tellingly, consider Selznick’s final thoughts on “the interplay of critical [liberal, universalistic] and conventional [communitarian] morality”,30 his attempt, it might be thought, at least to suggest how some of the tensions I have outlined might be approached: Because critical morality looks to the authority of reason, it is often identified with universalist ideals. But reason and reflection, properly understood, are empirical as well as theoretical; they rely on facts as well as arguments. Critical

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Communitarianism morality can readily appreciate, on the basis of reflection and experience, the moral worth of special obligations and the implicit truths in convention and tradition. This sensitivity is wholly compatible with the idea that parochial experience is not self-justifying, not morally final, not an unqualified good. We must always be ready to criticize a particular culture, including our own, from within in the light of its own premises, and from without in the light of other experiences and more comprehensive interests.31

It is apparently a concern with facts that saves “critical morality” from a mistaken universalism. “The authority of reason”, then, is not limited to any particular culture which happens, or which chooses, to submit to it; it is facts which ensure a proper localism. Furthermore, it appears to be reason which allows us to choose which facts and “other experiences” are relevant to any particular consideration. Now, even if one were to subscribe to this division and to this understanding of “reason” and “fact” (both only briefly adumbrated here) “the authority of reason” remains a classically liberal, that is to say universalistic, one. What Selznick finally does in this article is to attempt to protect communitarianism against exactly the sort of charge of postmodern relativism which I have been laying at its door. The trouble is that, however much one might agree that he is right to make such an attempt (and of course I do) it is not a move that is available to him if his argument is to be consisent: for it invokes precisely that classically liberal conception of reason to which his communitarianism objects. His attempted justification of communitarianism is an anti-communitarian one. Consider the final reference to “comprehensive interests”: what are these, if not politically and intellectually “comprehensive” in just that universalist sense which communitarianism denies in its objections to liberal “totalization”? Having so far adopted a Rortyan position, Selznick finally rejects it. But with communitarianism it has to be so: to the extent that it is defended by argument rather than being merely asserted, it has to rely on the liberal understanding of reason that it is at the same time committed to rejecting.

Conclusion Communitarianism is indeed the “postmodern bourgeois liberalism”32 that Rorty, probably the leading avowedly epistemological, rather than political, or merely political, communitarian, describes himself as espousing. For, rooted in the particular as it is, it cannot but reflect the values, beliefs and attitudes of the particular community in which it is located; and as things stand, that “community”, whether “international” or not, is a neo-liberal one. As MacIntyre puts it in another context, “[Daniel] Bell’s is a communitarianism which is anxious to accommodate liberal concerns. It offers itself as a complement to, as

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well as a correction of, liberal principles. And how could it do otherwise, since the institutional frameworks within which its values are to be realized are those of the modern nation-state and market economy?”33 Let me put it more bluntly. The “Third Way” is based on a lie. Indeed neoliberalism rests on a foundation of lies—centrally, on lies about “human nature” and the “free” market. Such a judgement, however, is not open to communitarians to make. That is why communitarianism is so convenient a disguise for neoliberals; and also why those opposed to its depredations are utterly mistaken to seek solace from communitarians. For, as Norman Geras has so memorably put it, “if there is no truth, there is no injustice.”34 1. Tony Blair, “Where the Third Way goes from here”, at www.progressivegovernance.net/php (21 February 2003), p. 1. For a definitive statement of the “Third Way”, see Tony Blair and Gerhardt Schröder, “Europe: the Third Way/Die Neue Mitte”, in Ken Coates (ed.), The Third Way to the Servile State (Nottingham: Spokesman Books vol. 66, 1999).; and for an excellent critique, Alex Callinicos, Against the Third Way (Cambridge: Polity Press, 2001). 2. Peter Stohard, “A Portrait of Power”, The Times Magazine, 3 May 2003, p. 46. 3. Glenn Frankel, “Blair’s Politics Driven by International Vision”, Washington Post, 3 April 2003, p. A25. 4. Gideon Calder, “Third way philosophies”, paper given at ISSEI Conference, Aberystwyth, UK, 2002 (unpublished, unpaginated). 5. Richard Rorty, Contingency, Irony and Solidarity (Cambridge: Cambridge University Press, 1989), pp. 207-8. 6. Leo Panitch and Colin Leys, The End of Parliamentary Socialism: From New Left to New Labour (London: Verso, 2001, 2nd ed.), p. 248. 7. Amitai Etzioni, The New Golden Rule: Community and Morality in a Democratic Society (London: Profile Books, 1997). See also his The Third Way to a Good Society (London: Demos, 2000); The Common Good (Cambridge: Polity Press, 2004), and From Empire to Community: A New Approach to International Relations (Basingstoke: Palgrave, 2004) and with Stuart Hall, The Spirit of Communitarianism: Rights, Responsibilities and the Communitarian Agenda (London: Fontana, 1995). For the British version, see Henry Tam, Communitarianism: A New Agenda for Politics and Citizenship (Basingstoke: Macmillan, 1998) and David Archard’s review of it, “British Communitarianism”, Res Publica, 6 (2000), pp. 227-235. 8. Alasdair MacIntyre “The Spectre of Communitarianism”, Radical Philosophy 70 (1995) in which he reviews Daniel Bell, Communitarianism and Its Critics (Oxford: Oxford University Press, 1993) and Stephen Holmes, The Anatomy of Antiliberalism (London: Harvard University Press, 1993). Here, p. 35. 9. A tradition that is considerably different from what might be termed the social liberalism of L.T.Hobhouse (Liberalism, Oxford: Oxford University Press, 1964 [1911]), and from the continental tradition of liberalism stemming historically from neo-Kantianism rather than from British empiricism—see for example G. de

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10. 11. 12. 13.

14. 15. 16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32.

Communitarianism

Ruggiero, The History of European Liberalism (Boston, Mass.: Beacon Press, 1959 [1927] ). Thomas Hobbes, Leviathan (Harmondsworth: Penguin Books, 1968 [1651]), p. 186. I explore this conception and its place in the Anglophone tradition in B. Brecher, Getting What You Want? A Critique of Liberal Morality (London: Routledge, 1998). John Stuart Mill, On Liberty [1859] in Mary Warnock (ed.) Utilitarianism (London: Fontana, 1969), pp. 197, 206. The classic critique is Theodor Adorno and Max Horkheimer, Dialectic of Enlightenment (London: Allen Lane, 1972 [1944]). For a good argument on its behalf, if in my view an ultimately unsuccessful one, see Berel Lang, Act and Idea in the Nazi Genocide (Chicago: Chicago University Press, 1990). Richard Rorty, “Human Rights, Rationality, and Sentimentality”, in Stephen Shute and Susan Hurley (eds.), On Human Rights: The Oxford Amnesty Lectures 1993 (New York: Oxford University Press, 1993), p. 123. Ibid. Richard Rorty, Essays on Heidegger and Others (Cambridge: Cambridge University Press, 1991), p. 135. See John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971), and Political Liberalism (Columbia: Columbia University Press, 1993), respectively. Rorty, Contingency…, op. cit. pp. 207-8. An excellent critique is Norman Geras, Solidarity in the Conversation of Humankind: the Ungroundable Liberalism of Richard Rorty (London: Verso, 1995); for a trenchant defence, see Jonathan Rée, “Rorty’s Nation”, Radical Philosophy 87 (1998), pp. 18-21. Richard Rorty, Objectivity, Relativism and Truth (Cambridge: Cambridge University Press, 1991), p. 12. Geras, Solidarity…, op. cit., p. 95, quoting Rorty, Contingency…, op. cit. p. 16. Richard Rorty, “Truth and Freedom: a Reply to Thomas McCarthy”, Critical Inquiry, 16 (1990), p. 639. David Wiggins, “Moral Cognitivism, Moral Relativism and Motivating Beliefs”, Proceedings of the Aristotelian Society XCI (1990-91), p. 71. Sheldon Rampton and John Stauber, Weapons of Mass Deception (New York: Jeremy P Tarcher/Penguin, 2003) p. 134. Philip Selznick, “Social Justice: a Communitarian Perspective”, The Responsive Community 6(1996), p. 13. Ibid. Ibid., pp. 13-4. Ibid., p. 14. Ibid., p. 15 (original emphasis). Ibid. Ibid., p. 24. Ibid., pp. 24-5. Richard Rorty, “Postmodern Bourgeois Liberalism”, The Journal of Philosophy, 80 (1983), pp. 583-9.

Global Norms

33. MacIntyre, “The Spectre…”, op. cit., p. 35. 34. Geras, Solidarity…, op. cit., p. 106.

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LIST OF CONTRIBUTORS Bob Brecher is Reader in Moral Philosophy at the University of Brighton. His publications include Getting What You Want? A Critique of Liberal Morality (1999); Torture and "The Ticking Bomb" is forthcoming. Jean-Paul W. Chidiac is Attaché Temporaire d'Enseignement et de Recherche (ATER) of Public Law and Ph.D. Candidate in Public International Law at the Université Paris I Panthéon - Sorbonne. He was previously a Visiting Scholar at Boston University School of Law. His research focuses on non-state actors and international law. Roger Coate is Professor of International Relations at the University of South Carolina. He is the author or coauthor of numerous monographs on world politics and coeditor of the journal Global Governance. Noé Cornago is Associate Professor of International Relations at the University of the Basque Country. He has published widely on contemporary transformations of diplomacy and multilateralism. Barbara Delcourt is Professor of International Relations at the Faculty of social, political and economic sciences and at the Institute of European Studies (Université libre de Bruxelles, Belgium). Her publications include Droit et souverainetés (2003) and La guerre d'Irak (2004, ed. with Denis Duez and Eric Remacle). Jacques Fomerand has been the director of the United Nations University's Office in North America and has widely published on international organizations. Noemi Gal-Or is Director of the Institute for Transborder Studies and Professor in the Department of Political Science at Kwantlen University College, British Columbia, Canada. She has published widely in international law, on trade liberalisation, and terrorism.

Global Norms

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Klaus-Gerd Giesen is Professor of Political Science at the Universität Leipzig and Professeur associé at the Université d’Auvergne. His latest book publication is Ideologien in der Weltpolitik (2004). Jean-Christophe Graz teaches International Relations at the Université de Lausanne and is coeditor of A Contrario: Revue interdisciplinaire de sciences sociales. His publications include La gouvernance de la mondialisation (2004) and Aux sources de l'OMC (1999). Charles W. Kegley is Pearce Professor of International Relations at the University of South Carolina and former President of the International Studies Association. He has published four dozen books and many articles on world politics, recent ones including The New Global Terrorism (2002) Johannes Krause is PhD student in Political Science at the Universität Leipzig. His research topics are international relations theory, european integration and political philosophy. Marjukka Laakso is Ph.D. student and a project researcher at the Department of Social and Moral Philosophy, University of Helsinki. Her research themes are sustainable development, its conceptual analysis and compatibility with individual-based theories of social philosophy. Andreas Nölke is Senior Lecturer in International Relations at the Vrije Universiteit Amsterdam. He recently edited a special issue of Business and Politics on the Politics of International Accounting Standard Setting (2005). Ronen Palan is Professor of International Relations and Politics at the University of Sussex. Among his book publications are The Offshore World (2003), and The Imagined Economy (2004, with A. Cameron). Kees van der Pijl is Professor of International Relations and Director of the Centre for Global Political Economy at the University of Sussex. His publications include Transnational Classes and International Relations (1998) and Global Rivalries from the Cold War to Iraq (2006). Gregory A. Raymond is the Frank Church Professor of International Relations and Director of the Honors College at Boise State University. His most recent books include The Global Future (2005), From War to Peace (2002), and Exorcising the Ghost of Westphalia (2002).

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List of Contributors

Elisabeth de Zutter is Assistant Professor of International Relations at Maastricht University. She recently obtained her doctoral degree with Myth of Common Ideas in World Politics. Ideologies in the International Trade Regime GATT/WTO (2005).