International Law and the Future of Freedom 9780804791083

International Law and The Future of Freedom is the late John Barton's exploration into ways to protect our freedoms

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International Law and the Future of Freedom

International Law and the Future of Freedom John H. Barton

Edited by and with an Introduction by Helen M. Stacy and Henry T. Greely

S TAN F ORD LAW b o o k s An imprint of Stanford University Press

. Stanford, California

Stanford University Press Stanford, California © 2014 by the Board of Trustees of the Leland Stanford Junior University No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Library of Congress Cataloging-in-Publication Data Barton, John H., author.   International law and the future of freedom / John H. Barton ; edited by and with an Introduction by Helen M. Stacy and Henry T. Greely.      pages cm.    Includes bibliographical references and index.   isbn 978-0-8047-7669-1 (cloth : alk. paper)   1.  Human rights.  2.  Liberty.  3.  International organization.  4.  International law and human rights.  I.  Stacy, Helen, editor, writer of introduction.  II.  Greely, Henry T., editor, writer of introduction.  III.  Title. k3240.b373 2014 341.4'8—dc23       2013043861   isbn 978-0-8047-9108-3 (electronic) Printed in the United States of America on acid-free, archivalquality paper Typeset at Stanford University Press in 10/14.5 Minion


foreword by julie barton






1. Prolegomenon


Part I: Defining Freedoms 2. Security and Freedom


3. Economy and Equality


4. The Intangibles of Governance


Part II: National and International Institutions 5. The International Executive


6. The International Legislature


7. The International Judiciary


8. Where to Begin?







John Barton was my husband of fifty years, and I never ceased to be amazed at him. Perhaps the only way to describe him would be as a modern Renaissance Gentleman. Gentleman he was: forever civil and courteous. He was also husband, father, grandfather, teacher, mentor, friend, lawyer, and scientist—and by avocation, a musician, artist, theologian, and football fanatic. I think he would have been perfectly happy to live in a world without any borders whatsoever, and because of that, he never hesitated to talk to anyone, however unlikely they might seem to be, who might help to further the cause of peace and justice. He had great hope for the world and the physical, moral, and spiritual health of its people. He traveled tirelessly (sometimes to my great consternation!) to live out his commitment to eliminating the intellectual boundaries that keep people from engaging in civil discourse with each other. My family and I hope that this book, completed shortly before the tragic accident that took his life, will be an inspiration to those who read it and work to keep his legacy alive. Julie Barton Los Altos, California


Traditional political theories, such as those of Locke and Montesquieu, were based on the assumption that each nation was sovereign and independent. Individual freedoms could be protected at the national level in those nations that had the institutions to do so. International law and organization limited national independence only slightly, as through regimes for the protection of foreign business or prisoners of war, and rarely affected individual freedom. This pattern is failing. The need to reach beyond borders to achieve military security, the globalization of economic trade and investment, the rise of planetary-level environmental issues, the extension of human rights ideals, and the increased role of transnational religious groups have all weakened assumptions of national sovereignty and independence, and have, in some cases, undercut national mechanisms for the protection of individual rights. All these trends have also given increased power to international organizations, which only rarely have mechanisms to protect individual freedom. Consider the following examples: In response to terrorism, the United States has extended its military power throughout the world, and is applying its own version of criminal law through extraterritorial prisons and interrogations. The need to be competitive in international trade is creating strong pressures for corporations to weaken pension and health plans and for nations to weaken security nets for labor. The United Nations has provided the effective government for close to 10 million people in areas such as Kosovo and Sierra Leone. The decisions of the World Bank and of the International Monetary Fund create the effective economic law in nearly all the world’s poorer nations, and shape the organization of the banking system in middle-income nations such as Korea and Thailand.



International financial markets are affected by global investment policies of the sovereign wealth funds held by a number of emerging national governments. Agreements negotiated in the World Trade Organization profoundly affect national standards for genetically modified foods; those negotiated in the International Conference on Harmonization affect the regulation of pharmaceuticals; those negotiated in the UN Economic Commission for Europe affect the regulation of automobile tires for safety. All of these international regulatory processes transfer significant effective power from legislatures to executives. These examples reflect strong and probably irresistible economic, technological, and social trends. Unlike many critics, particularly those on the left, I do not oppose these trends—in fact, I think that many aspects of these various forms of globalization will benefit humanity and will help to integrate the poorer nations of the world into a more prosperous and more healthy community. However, these trends pose many threats to our freedoms and to our traditional methods of protecting those freedoms. In this book, I therefore attempt to develop a new approach to deal with this global system, and to define ways to protect our freedoms in the new global international order that is emerging from an anarchical state of nature of nations. That global order is, in part, imposed by the dominant power, the United States, and, in part, created through the strengthening of international institutions. It requires an extension of political theory to consider the international aspects of rights more fully and to recognize that there will be a division of authority and responsibility among different international organizations and national governments and among different institutions within these organizations and governments. I, of course, build on traditional political theories, such as those of Locke and Montesquieu, that have sought to explain the rise of the nation-state from a presumed anarchic state of nature of individuals, and to define principles to prevent the misuse of political power. And I have attempted to build on traditional work in the international arena, such as that of Vattel, Grotius, and Kant, as well as more recent work, of which I have found the best to be Allen Buchanan’s Justice, Legitimacy, and Self-determination: Moral Foundations for International Law (2004), and John Rawls’s, The Law of Peoples (1999). I have

Preface xi

been particularly impressed by the logical care taken by both authors, and have attempted to model my analysis on theirs, even though I believe that I am dealing with quite different questions. Because I am dealing so much with ideas, I have minimized footnotes, and concentrated rather on attempting to give credit to those authors I have found particularly helpful in particular sections. The following (first) chapter provides a prolegomenon, and seeks to clarify the definitions of freedoms, to provide insight into the behavior and legitimacy of multilevel government, to indicate how stability and freedom can be maintained in such systems, and to deal with the special role of the United States in the existing world system. The next three chapters define the new and changing need to assert our freedoms and the appropriate international scope of our freedoms. They do so, in turn, in the context of the three central issues that our global system must resolve: the balance between security and freedom, the balance between economic equity and opportunity, and the balance between community and religious freedom. With the new need for freedoms thus defined, the subsequent three chapters explore the institutional ways in which those rights can be protected, using a globalized version of the traditional balance of powers division into the global executive, the global legislature, and the global judiciary. In these chapters, the roles of national institutions in shaping and constraining international institutions are considered, as well as the roles of the international institutions themselves. The final chapter then presents a more detailed and explicit short-term reform package to help us protect our traditional freedoms as we live together in this new world. Many have helped and encouraged me, but a number deserve especial credit. I’ve been privileged to consult on a number of issues with a variety of international organizations, including the Food and Agricultural Organization, the World Bank, the World Health Organization, and the World Trade Organization; these experiences provided nonacademic insights into the operations of international organizations. Participation in the Carnegie Foundation’s Commission on Preventing Deadly Conflict’s project on peacekeeping, and collaboration with Melanie Greenberg, Margaret McGuinness, and all my other colleagues on the resulting book, Words over War (2000), helped in my understanding the evolving role of the United Nations in international security. My coauthors of The Evolution of the Trade Regime: Politics, Law, and Economics of the GATT and WTO (2006), Judy Goldstein, Tim Josling, and Richard



Steinberg, helped me to understand a variety of issues about the interplay of domestic and international politics. Further, I want to thank Stanford Law School and my students in the International Institutions course I taught there three times, and the Reform of International Organization seminar—it was during these courses that many of the ideas in this book were developed. I owe a special thank-you to Frank Lovett and Larry Temkin, my colleagues during a year at the National Institutes of Health’s Department of Clinical Bioethics; they helped me immensely in finding my way into areas of political theory that were new to me. And I want to thank my clinical bioethics colleagues for their feedback during a seminar on the predecessor of Chapter 3, and many colleagues at Stanford for feedback during seminars in the law school, the philosophy department, and the Freeman-Spogli Institute, as well as friends at RAND for feedback during a similar presentation there. Thanks, too, to all those who came to critique the work at a special seminar funded by the Law School in October 2007. Most of all, I want to thank my wife, Julie, for all her encouragement. The goal of this book is ambitious. Yet the needs of the time require an ambitious effort. The growth of the international order is far ahead of the debate about how we protect our freedoms in this new and changing world. I hope this book can contribute to that debate, most of all by the questions it raises. J.H.B.

International Law and the Future of Freedom


John H. Barton (1936–2009) was our colleague and our friend. John had retired from full-time teaching at Stanford Law School in 2002, but, in his view, retirement was just an opportunity to become a more productive scholar, as well as a more active husband, father, and grandfather. His Golden Years were cut short by fatal injuries from a bicycle accident, cheating us of more good years and good works from John, but leaving us with warm memories and a lifetime of scholarship. As it turned out, his scholarly contributions have continued from beyond the grave. He had nearly finished this book at the time of his death. It has been our honor, and pleasure, to help guide his last contribution to publication. John grew up in the Chicago suburbs, going East to graduate from Phillips Exeter Academy in 1954 before returning to the Midwest and Marquette University. His studies at Marquette presaged some aspects of his future career—he graduated in 1958 with joint majors in physics and philosophy. After college he served in the Navy for three years, then went to work as an engineer at Sylvania Electronic Defense Laboratories, a very secret defense contractor, in Mountain View, California. John was a twenty-eight-year-old engineer, with a wife and four children, when he started Stanford Law School in 1965. During law school he continued to work thirty hours a week for Sylvania and to be an active parent in a growing family. (His and his wife, Julie, became parents of a fifth and final child during winter break of his second year of law school.) In spite of his other obligations, John was a spectacular student. Professor John Merryman remembered John Barton as a first-year Property student. It was “the first time I realized the school was getting so good that some of the students were smarter than



the faculty.” He even had first-year student John teach one of his class sessions. After graduation, John left Stanford for Wilmer, Cutler, and Pickering, a leading Washington, DC, law firm, but after only a year he came back to Stanford as a member of the law school faculty. He began teaching in fall 1969, won the teaching award (bestowed by a student vote) his first year, and stayed at Stanford Law School, with only temporary exceptions, for the next forty years. John remained an excellent, and innovative, teacher until his 2002 retirement—and beyond, as he was regularly called back into service from retirement. He pioneered new courses, from Technology as a Business Asset, to Law in Radically Different Cultures, to Biotechnology Law and Policy. He was particularly important for Stanford Law School’s foreign graduate students. These students are lawyers from other countries who bring vastly different backgrounds, as well as widely varying knowledge of the American legal system and American legal thinking. Even in retirement, John always mentored far more than his share of foreign students. He was truly tireless in that role, through which he helped populate and improve law faculties and law firms around the world. But in spite of his vital role as a teacher, John was first and foremost a scholar—not an ivory tower scholar, but one who wanted to help make policy, with the dirty hands and the occasional scar to prove it. John’s work covered a very broad range, but four aspects of it are especially noteworthy. First, he was interested in how science and law intersected, including but not limited to intellectual property. Second, he was interested in the whole world, not just the United States. Third, John was thoroughly interdisciplinary before interdisciplinary was cool—when it was unconventional and even a bit odd. He did work that he thought was important, in the ways that it could best be done, whether or not that fit into the traditional mold of a law school, or law professor—a mold that has changed, in part because John helped break it. And fourth, he was interested in concrete problems, where solutions would make the world a better place. In the first three, he was decades ahead of his time— forty-five years ago he picked out fields that had not yet begun their enormous growth in importance to law schools. In the last, he was timeless. John’s first topic as an academic was nuclear weapons control. He then became interested in agriculture—in the Green Revolution and its possible successors. And eventually he came to focus on human health, particularly but not solely through vaccines. To all of these he brought a close engagement with science along with a deep knowledge and interest in the legal tools that shaped

Introduction 3

these problems and their possible solutions—public international law, trade law, environmental law, antitrust law, and, increasingly, intellectual property law. He mastered these legal fields not just because they were fascinating but, primarily, because they were important for people’s lives—including the lives of billions of people who did not know they existed, and whose existence these areas of law often ignored. And so he fought for more food, better drugs, and improved vaccines, but he did it by working with all sides: governments, nongovernmental organizations (NGOs), and multinational corporations. He idealized none of them, he demonized none of them—he recognized that all had essential roles to play in any solutions. In his last decade, John may have been happiest about his role in 2001 and 2002 as chair of the Commission on Intellectual Property Rights. The Commission’s report, “Integrating Intellectual Property Rights and Development Policy,” was an evidence-based effort to understand what kind of intellectual property regimes could promote economic development. Its conclusions reflected John’s appreciation for the power of technology, and the incentives that create innovation, as well as his commitment to improving the lot of the poor: We need to ensure that the global IP system evolves so that the needs of developing countries are incorporated and, most importantly, so that it contributes to the reduction of poverty in developing countries by stimulating innovation and technology transfer relevant to them, while also making available the products of technology at the most competitive prices possible. The report was extraordinary; so is the fact that the British government, which created this commission, reached out to an American scholar to chair it. But then, John was an extraordinary American scholar. It may seem ironic that this book, John Barton’s last publication, departs from his general approach. John’s work dealt mainly with specific, concrete problems and required rich descriptions of the settings of those problems. This book is a much more theoretical and normative effort. And yet, in a way, this book is the culmination of all his work, a result of John’s taking the insights he had gathered from a forty-five-year career in and around international law and using them to propose a whole new framework for international law—and, indeed, for the world.



Concern for human flourishing lay at the heart of everything John Barton did—whether teaching students who were eager to learn from him, in the many intellectual projects John tackled over his academic career, or in his personal relations with friends and colleagues. That concern underwrites the footprint of this book. Barton wished the affairs of the world, from the international to the individual, to be ordered by a global constitutional culture: one that would take seriously the goals of freedom, democracy, and participation in public deliberation. While human rights are the normative heart of this book, the principal intellectual insight is that globalization has altered the nature of relationships between people and their government through the creation of international bodies and institutions. These institutions have arisen not only because the post–world war economy has encouraged national governments to formalize the ways in which they deal with other governments, but also because the last decades have seen a surge of human rights claims at the individual level, and these claims are increasingly being channeled through international organizations. The first three chapters of this book provide a careful and balanced analysis of three different domains of human rights that have become crucial catalysts in both the formation and critique of international institutions. While these three domains are divided into the familiar categories of international human rights—civil and political rights, social and economic rights, and cultural rights—this division is not presented as a hierarchy. Rather, this book adopts an approach opposite to virtually all U.S.-based academic work on human rights. That work all too reflexively mimics the U.S. Constitution’s focus on civil and political rights and, as a result, diminishes social, economic, and cultural rights as lesser (sometimes even dismissing them as artifacts of “socialism”). Instead, this book notes that the formation and continuation of contemporary international institutions has in many ways elided these outdated divisions. These first three chapters make a superb and lawyerly case for the need for intellectuals and policy-makers in the United States to step fully into a world that is less defined by the old categories of human rights and more defined by human well-being. Like the careful “lawyer’s lawyer” and academic that he was, John makes the case for a United States that opens itself to the new realities of rights and international institutions. John’s goal for the United States is that it both govern better at home and ensure that its footprints abroad are humane

Introduction 5

and appropriate. His goal for humanity is that international institutions learn to serve both individuals and governments. John is clear on issues that for some remain controversial: he clearly believes that new media technologies have a vital role in expanding international freedom of speech; that a balance can and must be struck between intelligence and security concerns and the international prosecution of the harmful actions of governments; and that much greater attention must be paid to the “democratic deficit” in international organizations through expanding participatory rights. Within the United States, the iconoclastic and oftentimes parochial actions of U.S. policy-makers must be routinely tested against countervailing international trends. And at the level of the United Nations, the UN Security Council must loosen the stranglehold of its five permanent members. John’s approach to administrative matters is similarly practical. People, rather than governments, should be able to present their human rights claims to international institutions in ways similar to how Europeans can take their claims to the European Court of Human Rights in Strasbourg. The international system must provide participatory mechanisms not only for governments but also for citizens. To ensure that participation in such institutions is effective, new international scientific and statistical institutions must be created—all people must have the chance to know about the fundamental health and environmental issues that confront them, and that will confront future generations. And John calls urgently for an international freedom of information act, in part to keep international institutions honest, but also to national governments to apply international principles consistently over time. Within the United States, this could be achieved by simply ensuring that the U.S. Administrative Procedure Act demands U.S. participation in the international regulatory process, as John explains in his treatment of “Economy and Equality” in Chapter 3. Most important, John argues, consistent with key philosophers, sociologists, and anthropologists, that one can no longer assume that the dotted line of a nation-state’s border is in any way coterminus with a single homogeneous culture of its citizens. Rather, countries contain myriad cultures that need to be encouraged to engage in constant dialogue—within and across national borders. That dialogue is most fairly conducted within institutional frameworks that are not overdetermined by any particular religious ideology; John makes



clear that he believes secularism supports the best procedural mechanisms for ensuring equal representation in a heterogeneous country. And in a world of shifting populations, the basic rights of the immigrant must be protected within a system that bestows full citizenship rights within a reasonable timeframe—even if longer-term residents retain voting and subsidy preferences over noncitizens. Crucially, cultural disputes within and between nation-states need international forums in which they can be properly aired. These locations may quite likely be outside formal international institutions such as the World Trade Organization (WTO) and the International Monetary Fund, but they must nonetheless have channels to the social and economic institutions that vitally affect the daily lives of the world’s poor and underrepresented. The second half of this book adopts the governance template that began first in the U.S. and French constitutions and has since become the taken-forgranted model of good governance: the traditional division of government into the three branches of the executive, legislative, and judicial. The purpose in so doing is to note the differences in their operation at the national and international levels, and to restructure all of them so that the protection of human rights is at the heart of how they work. John’s sweeping analysis of international organizations includes the United Nations, most especially the UN Security Council; the WTO; the World Bank (together, and with ancillary agencies known as IFIs, or international financial institutions); and the International Court of Justice. John makes a brilliant and novel proposal, in two steps. First, that these institutions have bills of rights and judicial procedures that apply to both governments and individuals; and second, that the G-8—those countries in the world that among them hold all the power that the United Nations, the World Trade Organization, and the World Bank so often neutralize—should form a de facto international executive that would oversee pre-existing international institutions. This new body ought similarly to ensure procedural rights to both governments and individuals. Perhaps the most challenging, or possibly incomplete, chapter of this visionary book is Chapter 6, which deals with the prospect of an international legislature. This currently comprises the treaty system, and also the WTO, which means therefore that it is driven by the interests of governments­—both good governments, representative and functional, and bad ones, autocratic and

Introduction 7

dysfunctional. John would temper this with national mechanisms that ensure the voice of civil society as represented by international NGOs and subject it to an international budgetary oversight process. These are laudatory aims, but of all John’s hopes for the international community, this one seems farthest from reach, not least because of the multiple incentives, both good and bad, that drive political parties within national governments. The third branch of international organization is the judiciary. In short, John foresees the development of an international common law. He argues that greater development of human rights norms is essential at the level of national systems, both in receiving more of the standards adopted in current international judicial bodies like the International Criminal Court, and also in sharing the jurisprudence coming from regional human rights courts and from the most human rights–respecting national systems. Lest it be thought that this book proposes wildly utopian aims that will never gain traction, each of John’s design proposals and normative injunctions functions to strengthen already existing institutions, taking the best of what already exists and adapting it elsewhere. At heart, John’s starting wish is to strengthen national constitutions with real democracy and participation, and to extend such participation to international institutions that themselves have bills of rights—especially procedural rights. Such bills of rights notwithstanding, John wants an international organization watchdog agency that ensures democratic participation and due process as a necessary check on national interests. John Barton’s last work is a tour de force that fully reflects his spirit. Just as he held everything he did to a high standard of meticulous care, so he holds us all—and all our governments and international organizations—to a high standard of care for our world and for each other. His valedictory is both the culmination of his forty-five years of scholarly work and a distillation of his own, fundamentally caring and decent approach to the world. We are all bereft by his death; we are all enriched by his parting gift of this, his last work. H.M.S. H.T.G.

chapter one

Prolegomenon Under a series of resolutions beginning in 1999, the United Nations Security Council, acting under its powers to issue mandatory decisions, has authorized creation of a list of individuals and entities designated as associated with terrorist networks. These individuals and entities are subject to asset freezes and travel sanctions. Individuals and organizations have no right to contest their designation. If a nation applies a sanction against an individual, should that individual have the right to contest the designation as a matter of a fundamental human right to due process or should the sanction stand without judicial review on the grounds that the Security Council resolution overrides national law?1

Our emerging global political system governs at several political levels: local, national, and international. At the national level, a number of nations, most particularly the United States, exercise significant power well beyond their borders. At the same time, and even in spite of the U.S. Bush administration’s emphasis on unilateral rather than multilateral action, the power of international organizations is increasing. The United Nations has been playing an increasingly important role since the end of the Cold War and seems likely to gain new power in nation-building contexts. The World Trade Organization (WTO) has become a dominant world legislative body, and international financial institutions, such as the International Monetary Fund (IMF) and the World Bank, are essentially shaping the economies of all but the wealthiest nations of the world. At the regional level, the European Union (EU) retains enormous power, in spite of the failure of the proposed new European constitution, and is being imitated in several other areas such as Mercosur in the Southern Cone of Latin America. Even though international organizations are increasing their power, the nation-state is not disappearing. Moreover, international organizations are often dominated by a few members, so that they respond to the interests of those



members. The world will necessarily therefore have power divided between different levels of government. This can be a source of conflict; it can also be a source of opportunity, because divisions of authority can help avert misuse of power. This book begins by exploring multilevel governance itself, building in particular on the two leading historical examples—the construction of the United States and the construction of the European Union. But before detailing the lessons of these histories, it is essential to explore the shift of power to international organizations, the meaning of freedoms in a multilevel context, and the incrementalism through which the international order is being built and through which freedoms can be protected. The chapter begins, therefore, by reviewing these areas and then exploring the possibility of dividing sovereignty. It next looks at the specific processes that are shifting power to international organizations, and then turns to the factors that strengthen or weaken international institutions, looking at those factors deriving from the interests of the member governments, and at those deriving from citizen loyalty to the different levels. It then turns to some of the practical issues that affect the sustainability of dividing governmental responsibility. It finally draws lessons for the analysis of the current global governance system. The key lessons are that the effective authority of centralized government systems derives in large part from political evolution that takes place separately from, and after the formal creation of, the centralized authority, and that creating new protection for freedoms generally requires a constitutional crisis. Institutions become facts that create their own dynamics; control of the dynamics requires confrontation.

1.1.  Globalization and international organization In today’s world, the exercise of power beyond national boundaries and the transfer of power from the traditional nation-state to international organizations are neither avoidable nor per se undesirable. Much economic activity achieves economies of scale only at levels beyond the size of most nations. Important environmental effects occur on global levels and not just on national levels. Security threats may be posed in a poorly governed area of one nation, and yet be a threat to all. There will thus inevitably be action beyond national

Prolegomenon 11

boundaries. In this book, “globalization” will be taken to describe all these trends that effectively override national boundaries. Likewise, there will inevitably be stronger and stronger international mechanisms for the coordination of national policies and sometimes for direct international action. For industry to provide the benefit of economies of scale, there must be ways to negotiate over the political costs of economic change and to define mechanisms to resolve trade disputes. For the environment to survive, there must be new mechanisms of exchanging information and shaping economic development. For security threats to be met, there must be ways to authorize national and international action—even, sometimes, at the cost of impinging on traditional national sovereignty. These developments are often good, and they can bring benefit to all human beings. Hence, this book starts with a presumption that globalization and international organization are generally good things. Yet we traditionally protected our rights through mechanisms that operated within nation-states and sometimes only within the territory of nation-states. Obviously those mechanisms need to be revised to deal with globalization and international organization. And developing and strengthening such new mechanisms will help make it politically possible to expand the powers of international organizations.

1.2. Rights In order to deal with global issues, it is necessary to distinguish four groups of rights. Each group translates in a different way to the international order. The first group, or inherent rights or freedoms, comprise those that inhere specifically in the individual—that is, rights of freedom of religion, of speech, of privacy, and protection against unreasonable searches, and of freedom from torture, together with trial-oriented rights such as rights to hearings, to counsel, to confront witnesses, not to be forced to testify against oneself, and the like. These are the rights found in the eighteenth-century U.S. Bill of Rights, in the French Declaration of the Rights of Man, and in more recent formulations such as the 1966 International Covenant on Civil and Political Rights; they can be viewed as at the heart of any rule of law. The even more recently formulated rights against torture and the right against capital punishment (accepted in Europe but not in the United States) clearly also belong in this category, as do



the rights of business and individuals to hearings and to due process in administrative proceedings. Although the details will be analyzed in subsequent chapters, this book takes the position that these rights are valid against all governments under nearly all circumstances, with only limited exceptions deriving, for example, from the need sometimes to permit a government to collect intelligence information about foreign nationals by means that would not be permissible against nationals. This is a matter of taking seriously the freedoms of all. Approaches to protecting these rights against extraterritorial and international action and to carefully defining the exceptions are central to this book. The second group of rights includes just one right, that of equality. This right is much more a nineteenth-century than an eighteenth-century one; its key formulation in U.S. law was in the 14th Amendment following the Civil War. Conceptually, this right depends on a comparison between one group or person and another group or person—and therefore raises the question of defining the group against which the comparison is to be made. As one thinks internationally, there is a question of when that comparison should be made just within a nation, and when it should be made also with groups in other nations. The degree of equality demanded within a nation is itself frequently debated, and there are significant differences in the practice of different nations. Consider, for example, the U.S. debates over affirmative action, and the great tensions over the status of women in Muslim nations. And the degree of equality demanded when groups in different nations are compared with one another is clearly less than that demanded within a nation. The third group of rights is that demanded by the late-nineteenth and early- to mid-twentieth-century move to provide a social and economic safety net. These include the rights to education and health, a right to unionize, and perhaps a right to a broader safety net in unemployment, disability, or old age. These rights were first strongly applied by Bismarck in nineteenth-century Germany, but they spread to many other European nations, and, with the New Deal, to the United States in the twentieth century. They are today codified in the International Covenant on Economic, Social and Cultural Rights (also 1966). Some would add the right to a healthy environment. Some leaders in developing nations argue that these rights override the inherent rights discussed above, and many human rights scholars, emphasizing the need for economic development in poorer nations, argue that these rights (at least the economic

Prolegomenon 13

and social ones) have equal priority to civil and political rights. Yet it is clear that these rights are much less well defined than civil and political rights, and that they are enforced in a different way as well. Moreover, like the equality right, these rights become ambiguous in the international context—the scope of the duty of an individual nation’s government to provide for, for example, the health of its own citizens is itself in debate, and a nation’s (or the international order’s) obligation to provide for the health of the citizens of other nations may be real, but is certainly less strong. Yet the ability of individual nations to provide for the exercise of these rights is weakening in the face of globalization; achievement of the rights in each nation may therefore itself require changes in the international system. Thus the definition and achievement of these rights pose an additional set of challenges to the international order. A final group of rights includes those oriented toward political participation in a government. These include, for example, the right to vote, the right to be represented in a legislature, the rights to participate in elections and to vote out a government, the right to petition, and the right to bring certain kinds of litigation against a government. Arguably, the right of free speech is included in this group as well as in the group of inherent rights—and these participatory rights are meaningless unless there is a rule of law and a civil society with free speech. Certain aspects of administrative law—for example, the obligation of an administrative agency to follow the rules imposed on it by a legislature, and the freedom of information principle to help restrain a government—are among these rights. This group is reasonably defined to include structural features of government: for example, depending on the particular society, the right to a government that incorporates a balance of powers concept or a form of parliamentary responsibility. It is these participatory rights that were most important in the American Revolution of 1776. They are spelled out, for example, in the political structure of the U.S. Constitution, in the U.S. federal guarantee of a republican form of government, in quasi-constitutional statutes such as the Administrative Procedure Act and the Freedom of Information Act, and in many of the provisions of the International Covenant on Civil and Political Rights. Arguably, these rights are complemented by obligations, such as that to pay taxes or to participate in military action in defense of one’s country. Clearly, this group of rights is oriented to participation in a particular society or community—rarely would we



expect noncitizens to have a right to vote. Nevertheless, although these rights currently run only rarely against international organizations, many should be extended against such organizations under at least some circumstances. Moreover, it is important that certain of these rights be respected in each nation in order to make it less likely that the nation will become a threat to others.

1.3. Incrementalism Much political theory assumes a prior state of nature of some form. Thus Hobbes begins with a state of nature in which there is no government; Rawls envisions a state in which people choose certain justice principles in the face of a veil of ignorance in which they do not know whether they will be winners or losers. This book, however, resists such an approach, and builds instead on a concept of incrementalism. Under the analysis of this book, justice is achieved by a series of incremental changes and improvements, built on a constantly changing vision of improved justice as a reform to what is always an imperfect system. In that sense, the book reflects Burke’s insights of the value of inherited systems—but is much more ready than Burke to criticize those systems and to seek to improve them. At least by some versions of evolutionary anthropological and historical development, this incrementalism is accurate. Going back to primate group structures, there must always have been some form of authority, whether of parents or of the more powerful. Most historical states were formed by actions of power, almost always extraconstitutional in some sense. Afterward, through one or another political process, restraints were imposed on this power, and a body of political and constitutional limitations evolved. Consider, for example, the steps of Magna Carta, the seventeenth-century English Revolution, and the nineteenth-century reform efforts in leading Britain from arbitrary authority to a representative democracy. In the United States, one would consider the political institutions inherited from England, the revolution, the Confederation, the Constitution, and the post–Civil War amendments as part of a similar process. Although there are exceptions such as the nineteenth-century British reforms, the imposition of these restraints typically required confrontation or crisis—the U.S. Bill of Rights was a political price that had to be paid for the acceptance of the Constitution; the 14th Amendment derived from the U.S. Civil

Prolegomenon 15

War, and many of the key concessions in British constitutional history emerged from civil war or its threat. Moreover, many would say that the nineteenthcentury move to economic and social rights was an effort to avoid stronger socialistic reforms. At the international level, the world is, of course, much closer to a state of nature. In that sense, any creation of an international organization is similar to a Lockean social contract. Yet, there has long been some sense of an international law, going back well before Grotius and Vattel (in fact, before the creation of the nation-state system). This has grown. The Congress of Europe was an attempt to govern the post-Napoleonic system. The development of new law was intensified with the institutionalized Hague conferences of the turn of the nineteenth to twentieth centuries. Beginning with the nineteenth-century International Telecommunications Union and Universal Postal Union, and going on to the post–World War I League of Nations, the post–World War II United Nations, and World Bank and IMF, and an enormous flowering since then, international organizations have evolved and strengthened. Force played a role in creating some of these organizations; for example, the United Nations was created by the victors of World War II. Moreover, there has been (and still is, as exemplified by the British role in Sierra Leone in 2000) a Pax Britannica, and there is a Pax Americana. Yet at each stage and for over a century, there have been efforts to strengthen international order—through new organizations or new law or new roles for existing organizations. The United States may have struggled against the United Nations in going to war in Iraq in 2003—yet it has also sought to strengthen international economic and antiterrorist organizations. There is already a complex of mechanisms contributing to an international order. And there will be further steps. The implication of incrementalism is that the political theorist’s task is generally not to rethink things from the ground up, but to improve what is there. There will never be an international conference completely restarting the international system—rather there will be conferences to improve what is there and, in between conferences, there will be political changes and evolutions that make particular international institutions more or less powerful. There may even be revolutions against particular aspects of the international system, but they are likely ultimately to lead to entities that build on their predecessors, as the United Nations built on the League. Moreover, the task of construction of a



more just international order will never be finished. What is needed today is to define the changes that are essential to protect the rights and freedoms that are currently affected by international organization and by globalization, and to define incremental improvements that will effect these protections.

1.4.  Sovereignty is (somewhat) divisible Much discussion of international organization begins with a distinction between systems in which, in the one case, sovereignty remains at the national level and a confederation is created and, in the other case, sovereignty is transferred to the international level and a federation is created. This is a false distinction, because sovereignty can be divided, most typically along functional lines. Thus, in the United States, the federal government is sovereign with respect to international affairs and interstate commerce. At the same time, the individual states retain at least a formal sovereignty, and have nearly absolute control over many aspects of life, such as marriage and inheritance law. And in the European Union, EU authorities have effectively sovereign control over many economic areas, while national governments retain effective sovereignty over foreign policy. One can argue that there is still a question as to the “real” sovereignty of the states in the United States or of the international system in the EU. Typically, one of the levels possesses a monopoly of force—one of the traditional definitions of sovereignty. After all, as demonstrated by the Civil War, a state is no longer effectively free to leave the U.S. system—in that sense, the U.S. states are not “really” sovereign. Similarly, the member states of the EU are certainly able, freely, to leave, and the central authorities of the EU are not in a position in which they can override strong national sentiments—in that sense, the EU is not “really” sovereign. Yet, before the Civil War, it was not clear where the monopoly of force resided—its locus was ultimately measured in a test of wills and military capabilities. In general, the extreme situations that test the location of sovereignty are just that—extreme. They are situations avoided by politicians and the public whenever possible. In the United States and in the European Union, both levels of government, state and federal in the one case, and national and European in the other, serve important functions. Each level provides benefits to the other

Prolegomenon 17

and to the public. There are citizens strongly loyal to and interested in the preservation of each level. Each level has its resilience and its ability to stand up to the other level.

1.5.  Constitutional moments: the creation and reform of multilevel government The incremental analysis presented above recognizes two ways in which a group of nations (or sovereign states, in the case of the United States) can create a higher level or international government. These are by agreement and by power. The classic example, of course, is the creation of an institution by an agreed treaty or document: the Philadelphia Convention leading to the U.S. Constitution of 1787, the nations of the world creating the United Nations at San Francisco in 1945, or six nations of Europe creating what became the European Union at Rome in 1957. What is needed for this process to happen is a constitutional moment, based on a strong sense of need and on a careful crafting of the political balance in such a way as to persuade the essential component-members to participate. Major changes are unlikely to happen except through a crisis. The United Nations was organized in the wake of a world war. The Philadelphia Convention of 1787 was called in response to a widely shared sense that the Confederation wasn’t working, and perhaps to James Madison’s sense that there needed to be a balance to the activities of state legislatures. The acceptability of the Constitution that was negotiated there depended on a large number of compromises, such as representation by (a shamefully modified measure of) population in the House and by state in the Senate, as well as on the later addition of a Bill of Rights. Similarly, the creation of the European Union depended on a felt need to integrate in order to compete economically with the United States, to avoid further Franco-German war, and perhaps to compete politically with the Soviet communist bloc. The key treaty of 1957 followed the failure of a military integration project and involved a package of initial economic compromises on internal tariff reductions together with an agricultural subsidy program. These components provided reciprocal benefits to the leading nations. And the institutional package reflected a variety of elaborate weighted voting systems



and institutional balances between the national governments and the new international organization. Sometimes, the evolution of power in an international organization evolves after the organization is created, and is reflected in renegotiation of the constitutional structure of the organization. For example, although reform of the U.S. constitutional structure has been rare, the post–Civil War amendments created a fundamental strengthening of the federal government, as did the 1913 authorization of the federal income tax. The renegotiation procedure is used dramatically in the EU, whose leaders have regularly negotiated revisions to the fundamental agreement, reflecting both the changing legitimacy of the organization and its expanding roles. These revisions, occurring slightly more frequently than once a decade, are, not surprisingly, package arrangements offering something for all the members and combining both policy and operational components with constitutional components. The result over the years, however, has been dramatic. There has been little formal renegotiation at the global security level, because reform of the United Nations has appeared to be essentially impossible owing to the difficulty of obtaining agreement on amendments. Nevertheless, there have been major changes in the role, institutions, and capabilities of the United Nations over the years, as the institution took on peacekeeping, developing-nation concerns, and the negotiation of a variety of international agreements. Renegotiation of international economic institutions has been a little easier, including rather fundamental revision of the General Agreement on Tariffs and Trade (GATT) in the 1995 creation of the WTO, and significant changes to the authority of the IMF. The global economic analogue to the regular rethinking of the EU system is the consultation process provided by the regular meetings of the heads of state of the leading economic and military powers (G-7 and G-8), which have initiated new programs in the economic context. These nations (Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States in the more economically oriented G-7, and the same nations plus Russia in the G-8) have essentially controlling blocks of votes in the IMF and the World Bank, and include three or four of the five permanent members of the Security Council, depending on whether one is considering the G-7 or the G-8. There are also historical examples of the creation or reorganization of inter-

Prolegomenon 19

national institutions by conquest and power rather than by broad agreement. Clear examples are the Roman Empire, and later on the British Empire, still later reformed into a Commonwealth. A power mechanism effectively underlay the post–Civil War amendments to the constitutional structure. These amendments greatly strengthened national authority at the expense of state authority; they would have been inconceivable without victory by the North. And the pattern is still being used. Consider also the 1995 creation of the WTO, in which the leading trading nations threatened to withdraw their commitments to the old GATT unless developing nations would accept a new package that included a variety of additional linked commitments, such as those on intellectual property and services. Similarly, it is hard to see the IMF’s ability to impose restrictions on borrowing nations as anything other than a (perhaps economically sound but nevertheless real) exercise of economic power. Power as a source of integration may be especially significant in the next generation, because the emerging global political system will reflect a combination of unilateral U.S. power (and perhaps that of other powerful nations) along with increased acceptance of international organizations at least outside the United States. The extensive U.S. assertions of extraterritorial criminal-like jurisdiction made in order to counter terrorism are leading, at least in the short run, to a redefinition of national sovereignty for everyone else. It remains to be seen whether these assertions will be regularized through creation of more formal international authority under a new or existing international institution. It will probably be more difficult to compel governments and international institutions to recognize and strengthen human rights than it will be to strengthen international organization. Although some recognition may occur through evolution, these constitutional moments may be rare, for rights can rarely be protected without crisis. Consider, for example, the enactment of legislation restricting government power in the United States in the aftermath of Watergate, and the weakening of these protections in the aftermath of 9/11. Or consider the way the EU moved to impose human rights protections on itself after the German Constitutional Court decided in 1974 in Internationale Handelsgesellschaft that, in the then existing state of EU law, German constitutional restraints should be applied against EU actions.



1.6.  The authority of the centralized level A.  Intergovernmental aspects National governments do not generally negotiate the creation of international organizations under direct pressure from their citizens. Rather they normally create international organizations or enter into them because their leaders believe that the creation or use of the organization is in the national (or the leaders’) interest. International organizations thus serve an intergovernmental interest. They are ways to exercise national power more effectively. Indeed, one of the thrusts of the Bush II administration has been for the United States to work through international organizations as a way to exercise its power, and to avoid such organizations when they would constrain its power. Although this may be an extreme case, it is certainly fundamental that international organizations are generally a way that national governments can achieve their goals more effectively, and that the organizations may wither if national governments find it more useful to act bilaterally. Three examples make this clear. The first is the EU, viewed as a technique of economic governance. One way to analyze the initial structure of the EU is to view it as a bargain between France and Germany to create an agricultural subsidy system and a free trade zone. Taking a greatly oversimplified perspective, the agricultural subsidy system was expected to benefit French agriculture and the free trade zone to benefit German industry. By cooperating—and building international institutions to help manage the various agricultural and subsidy programs, these nations were able to gain the economic efficiencies of free trade in industrial goods and (although many would regard it as economically unsound) to achieve their common goal of an agricultural subsidy system. Similarly, in its traditional pattern, the International Atomic Energy Agency (IAEA) provided a way to conduct agreed and credible inspections of nuclear energy programs in such a way as to decrease the risk of diversion of nuclear materials from these programs. Nuclear power exporters were able to market their products in a way that they deemed prudent. Importing nations were provided a way to demonstrate that they were not using their peaceful energy programs for military purposes. Third, the GATT and WTO provide national political leaders with a way to negotiate free trade agreements that are, in general, beneficial to all parties.

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Without the institutional structure that these organizations have provided for negotiations and for dispute settlement, it would have been extremely difficult to achieve such free trade agreements. B.  Legitimacy and citizens But international organizations are more than intergovernmental.2 Particularly in the last several decades, international organizations have begun to gain a strength beyond that which derives from the agreement of governments. Maybe sometimes in the case of the United Nations, perhaps in the case of the EU, and certainly in the case of the U.S. federal system after the Civil War, the power of the centralized organization is based significantly on the interests of citizens themselves in the effective operation of the organizations, and not just on the benefits of international cooperation to national governments. Few nations would pass a referendum to abolish the United Nations, nor would the United States pass a referendum to abolish either state governments or the federal government. This public support depends on the legitimacy of the particular institution in the eyes of the citizens. Legitimacy is a matter of degree, but it can be tested by asking about the extent that individual citizens (and other powerful subnational actors such as economic interests) place the demands of one level of government over that of another. In a crunch, which institution wins the loyalty? Thus, the states of the Confederacy seceded in 1861, for the states had more legitimacy than the Union in their citizens’ eyes. But for the North, which ultimately had more military and economic power, the legitimacy of the Union was so great that the Civil War was fought on the political grounds of preserving the Union. As noted above, however, one should not think only of the extreme cases. Part of the complexity of federalism or multilevel governance is that one level of governance may have greater legitimacy in one area, while another level has greater legitimacy in other areas. Thus during the 1950s, many of the citizens of the U.S. South thought that the federal government lacked legitimacy in its antisegregation campaign, but gave strong support to the federal government in its military and security actions. And, in a different way, the EU obviously lacked sufficient legitimacy to prevail in France and the Netherlands in its desire for a stronger constitution in 2005—but how voters would feel about significantly weakening the EU is a far different question.



Max Weber describes legitimacy as deriving from three sources: a traditional source, a charismatic source, and a rational source.3 In the global arena, tradition is most often supportive of traditional national states against international organizations. And, at the national level, it is no longer the case, as it was during the seventeenth-century British Revolution, that a king is needed to provide legitimacy. Nevertheless, some in the Islamic tradition view legitimacy as deriving from the application of sharia law and from the integration of religious and civil leadership. Moreover, in almost any culture, legitimacy depends in part on history—the government to which one’s parents looked is likely to receive one’s own assent, unless it has acted very badly. As an institution survives, its legitimacy may therefore increase. To this extent, both the United Nations and the EU have lasted long enough to gain significant support. Put in a slightly different way, at an ultimate Rousseauian level, the support for the broader level depends on the extent to which citizens have a sense of community at the broader level as well as at the local level. There may not yet be a European demos or a world demos,4 but a sense of global community is already present in some sectors—particularly, for example, among global corporations and within the global environmental movement—and this sense is one of the reasons that international organizations are generally increasing their power in spite of the concerns of some citizens and some national governments. The charismatic source of legitimacy is certainly important to international organization—consider Jean Monnet in the construction of Europe, or Dag Hammarskjold in the expansion of the UN’s power. Behind almost any major step in the construction or expansion of power of any more centralized organization, there are charismatic people willing to take the risk of placing long-term interests over short-term interests. Consider Abraham Lincoln in strengthening the Union in the Civil War. For the future, it is possible that leaders of international organizations will be able to take advantage of media communications to appeal to citizens of member nations. This is still very risky for an international organization leader, but on a very few occasions, Kofi Annan, while UN secretary general, appealed over the heads of national leaders to the citizens of nations. Charismatic leaders of nongovernmental organizations (NGOs) have also built constituencies in the environmental and human rights arena that have contributed to the power of international organizations. Nevertheless, the typical source of legitimacy of international organization

Prolegomenon 23

is the rational-legal source, which arises when the organization serves the interests of actual citizens (or other pressure groups), and it is seen as operating fairly and subject to some form of ultimate accountability to citizens. As an organization gains this kind of legitimacy, it attracts power that is not subject to the control of national governments. Global corporations and some NGOs often support expanding the power of international institutions because they believe that the organizations provide a mechanism for achieving goals they want. For example, the industries seeking global intellectual property protection have been successful in lobbying the European Parliament as well as the WTO and the World Intellectual Property Organization (WIPO). After success at the global level, they find it easier to persuade Congress to give them what they want. Similarly, the community of NGOs seeking greater access to medicine for sub-Saharan Africa was successful in lobbying national delegates at the WTO. For nations such as the United States, that lobbying will be in Washington as much as at the seat of the international organization. But the delegates of many nations are likely to have less detailed instructions and to be movable by arguments made by NGOs at the seat of the negotiations. Some lobbying groups do best by trying to keep issues at the national level, and others benefit from taking them to the international level—so there will often be debate over the level at which to face an issue. The same debate is exemplified in U.S. politics where the environmental community, for example, sometimes seeks to take an issue to Washington and sometimes seeks to keep it at state capitals, depending on the appeal of the issue and the receptivity of the different administrations. But the fact that a particular international organization becomes the locus of deliberation on a particular issue builds the organization’s power and gives it at least the beginnings of legitimacy. Moreover, in some sectors—such as economics, human rights, and global environmental concerns—the underlying communities are, at least in part, already global. This is partly a result of trends in communications. Ideas are now freely exchanged on a global level, and the major news media of the world operate globally. Thus there is wide public acceptance of the idea of the international human rights movement. It matters to a judge in Spain whether a human rights violator in Chile is prosecuted, and the judge gains widespread political support for initiating such a prosecution. In spite of the fact that many



recent specific exercises of power by the U.S. government, U.S. concepts of democracy have spread. Communications makes it possible for people to observe the operations of international organizations in their living rooms; this gives these organizations much greater immediacy, and, sometimes, therefore, legitimacy. And in some cases, such as global economic and environmental issues, the communities are necessarily global. But legitimacy for an international organization depends not just on whether there is movement toward a relevant community and whether power is most effectively exercised through the international level; it also depends on whether citizens view the actions of the international level as legitimate in a more justice-oriented sense. Is the international organization democratically accountable directly, or is it controlled by governments that are themselves democratically accountable? In the short run, accountability is a procedural matter—for the most commonly accepted source of legitimacy today is procedural accountability, achieved either by representation through an election or by confidence that an agreed rule of law is being accepted. In Europe, one of the standard criticisms of the actions of the EU is that the decisions in Brussels are taken by a batch of unelected bureaucrats. The demonstrators in the streets against the WTO argue that this organization is dominated by Great Powers and global corporations, and that it does not represent the real world community. In contrast, conservatives within the U.S. government argue that the contents of those global environmental and international criminal law agreements that have been negotiated over U.S. opposition reflect the actions of nondemocratic governments or unelected NGOs, rather than of elected governments. In many cases, legitimacy of the decisions of international organizations is achieved through the fact that the actions taken are approved by elected national governments. Yet where there is a decision that the nation is compelled to accept whether it likes it or not (as in the case of certain WTO or IMF decisions), and there is question about the way the international decision itself was made, there will be popular reaction. Thus, legitimacy of decision-making processes within the international institution becomes significant. That legitimacy is closely related to the political processes discussed in this book—and it can sometimes be strengthened by providing greater citizen representation in either the national diplomatic processes that shape international organization

Prolegomenon 25

decisions or by providing such participation in the international organization decision-making processes themselves. In most international organizations, the organization still currently interacts primarily with national governments, and with a few lobbying groups that want to affect its policies. The citizen rarely has a direct way to affect the international organization. As this changes, there may be a significant impact on legitimacy. Consider the impact in the United States of the fact that senators are now elected directly by voters rather than indirectly by state legislatures, as they were before the 17th Amendment in 1913, or of the fact that federal courts act directly on individuals and that individuals (not just states) can bring an issue before a federal court. The power of the federal level thus grew as citizens turned to it to achieve justice through the civil rights campaigns of the 1960s. Consider the difference it might make if citizens rather than national governments were to choose UN representatives, or if they were to be able to bring litigation against national governments in the International Court of Justice (ICJ). In only a few cases does international organization play this kind of role for the citizen. Europe is the exceptional case of an international organization in which citizens have substantial connection to the international level, both through elections and through citizen access to international courts. Even here, however, there have been significant criticisms of a “democracy deficit” within the EU, deriving from the facts that the national delegates to the Council can act together to shape important policies, sometimes without approval by their national parliaments. Moreover, the Commission is unelected. In response, the EU has, since 1976, permitted direct election of members of the European Parliament. The arrangement, however, has not been particularly successful in attracting voter interest, perhaps because the European Parliament plays a quite weak role in the EU legislative process. Voter turnouts are small, and the effect on policy has been present but weak. The European Parliament’s role is increasing; the effect on its political position remains to be seen. On the more judicial side, the balance in Europe is much more positive. The European Court of Justice (ECJ, the supreme court of the EU) and the European Court of Human Rights (ECHR), which is operated by a separate international organization, the Council of Europe, have substantial legitimacy, arising from the fact that these bodies apply a restricted and agreed group of



principles and generally do so impartially. These court systems (unlike the ICJ or the WTO dispute settlement panels) permit citizens to bring many of the same kinds of suits that citizens can bring in U.S. federal courts. When they were first formed, both European courts were very careful not to make significantly controversial decisions; it was only after they gained legitimacy that these courts began issuing more controversial decisions. The parallel to the U.S. Supreme Court is striking—the famous and controversial Marbury v. Madison decision was not issued until 1803, more than fifteen years after the Constitution was written, and the decision gave the president what he wanted, while also stating a powerful principle of judicial review. The parallel decision in the EU was Costa/ENEL, issued in 1964, seven years after the creation of the organization. These courts have significantly affected national legal systems, and are important to a variety of private actors, both corporate and NGO. Moreover, by shaping and controlling the power of the international organizations of Europe, they contribute to the legitimacy of these organizations. Thus, in spite of the problems of ratifying the proposed EU Constitution in 2005, it is likely that the EU is politically irreversible, and that national governments would have great difficulty in significantly reducing its powers.

1.7.  The power of international organizations as reflecting a changing equilibrium Long-term trends have created strong pressures on national governments to create international organizations and to give more power to them. This is especially clear in the economic arena, where economies of scale are taking place at ever larger and larger levels. The response is global action to integrate markets and to regulate at global levels. Thus governments have readily given additional power to such institutions as the WTO, the international financial institutions, and the enormous variety of international functional organizations. It really has become essential to harmonize technical automobile safety standards and the testing of pharmaceuticals, to coordinate communications frequencies at the global level, to develop global safety arrangements for maritime shipping, and to coordinate banking regulation, so the international organizations dealing with such issues have been given great authority. Such integration is often strongly supported by business, which benefits from global markets and

Prolegomenon 27

from the predictability of law. But the trends go beyond the economic arena— many (albeit not all) nations want to enter international institutions to help them cooperate to deal with environmental problems, and with terrorism, and with the proliferation of weapons of mass destruction. Once an institution is created, it plays a role in the world. That role may gain political support, and the institution may attract new tasks and powers and therefore gain the support of new governmental or popular constituencies. Thus its effective power evolves and changes. Fifty years after it is created, an international institution is often very different from the organization that was planned fifty years earlier. This is obvious for the EU, which has been deliberately reformed over the years. But it is also clear for other major institutions. Consider, for example, the WTO, created initially in 1948 as a mechanism of organizing trade negotiations. Along the line, it built an ad hoc dispute settlement mechanism, somewhat different from that envisioned in the initial plans. It has since attracted responsibility for many new areas—for example, trade in services, in large part because that dispute settlement mechanism was so effective and its negotiation process offered unique opportunities for coordinating reciprocities across different subject matter areas. And then it was formally reorganized in 1995 to reflect its increased responsibilities. Similarly, the United Nations was created as a way for the five permanent members of the Security Council to maintain peace in the rest of the world. As these members diverged during the Cold War, this mission became impossible. But the organization responded by developing a concept of peacekeeping during the 1960s, and, through peacekeeping arrangements with nations in areas of conflict, successfully helped prevent these conflicts from escalating to nuclear war. As the Cold War ended, the organization became more involved in nation-building, taking over, for example, the nation-building process in Bosnia. Now, it may become a way for the rest of the world to maintain some form of pressure on the overwhelmingly powerful United States. And, all the while, the organization has maintained an expanding interest in the needs of developing nations and has convened conferences on topics ranging from human rights to the environment. Little of this was within the vision of the founders in 1945—and what has taken place has given the organization strengths beyond those that were envisioned in 1945. The changes in the IMF are as remarkable. The IMF was initially designed to



facilitate the operation of a global fixed exchange rate system. In the early 1970s, that system was changed to a floating exchange rate one, which technically left the organization with nothing to do. But with the concurrence of its most powerful members, the organization successfully reinvented itself, using its funds and its analytic capabilities to lend money to nations in need, first as a result of the oil price increases that followed on from 1973 and later as a result of debt crises. Together with the World Bank, it has used this power to compel developing nations to accept economic policies that are probably generally sound and supported by donor governments and the world financial community, but are certainly unpopular in the developing nations. In this change of focus, it has ending up sharing its original role of coordinating international monetary policy with other institutions such as the Bank for International Settlements and the regular G-7 meeting of finance ministers of leading nations. The way the power of an international institution evolves depends, of course, on whether the institution provides a service wanted by the world—for example, economic dispute settlement for the WTO, peacekeeping for the United Nations, and developing-nation economic policy management for the IMF. But access to financial resources is particularly significant. In the U.S. case, consider, for example, the growth in the power of the federal government as it gained access to the income tax in 1913. If one political level is dependent on another level for revenue, it will tend to weaken compared with the level with independent resources. Because nearly all international organizations are still dependent on national governments for resources, they are politically at the mercy of the national governments. (The key exceptions are that a portion of the EU’s budget comes without formal national control, and that the World International Property Organization derives a large portion of its income from the services it provides to patent applicants under the Patent Cooperation Treaty.) In the large group of international organizations that give members equal voting power but require financial contributions based on ability to pay, the threat of major donors to withdraw support gives these donors expanded power compared with others. This is exemplified in the case of the U.S. withdrawal from the UN Educational, Scientific, and Cultural Organization (UNESCO) in 1984, as a protest against waste of resources and against specific policies of the organization that the United States saw as infringing U.S. freedom of the press principles. Both the U.S. policy goals and its administrative efficiency goals were taken more seriously by other international organizations thereafter. The

Prolegomenon 29

United Nations even developed a special committee, the Committee for Programme and Coordination, to provide representation of large donors’ concerns in a way not envisioned in the Charter. Similarly, the IMF and the World Bank are weak in relationship to major donors such as the United States (and take those donors’ concerns strongly into account), but they are powerful compared with poor nations who receive resources from them. Ultimately, the power of an organization reflects an equilibrium. Technically, of course, any nation can simply withdraw at any time from part or all of the international organization network—but that is not so easy, because each organization brings a mix of benefits along with costs. As noted above, some of these benefits and costs are purely intergovernmental, and some are political, because important national nongovernmental actors (such as businesses or environmental groups) see benefits and costs from the organization and will press the government to remain in or leave the organization. For most if not all nations, the net benefits of belonging to particular organizations are generally much greater than the costs of particular adverse decisions by the organizations. Nations become effectively enmeshed in a system that does not always serve their interests but does serve them often enough that departure would bring so many costs as to be nearly unthinkable. The equilibrium reflects more than simply the possibility of withdrawal— there is also the possibility of remaining in the organization but working outside its framework. The United States, for example, is powerful enough that it can frequently conduct bilateral diplomacy rather than work though international organizations—and it has done so, for example, in its bilaterally international trade diplomacy and, most conspicuously, in its decision to attack Iraq in 2003. If many nations see operating outside an international organization as a preferable alternative, that international organization will weaken—but the reality is that international organizations have generally grown in power, and are likely to continue to do so.

1.8.  The costs of dividing responsibility There are costs of multilayer systems. The obvious one is inefficiency. Decision-makers at the various levels will struggle to maintain their power, they will duplicate their efforts, and there will be difficulties in resolving conflicts. This is clear in the United States in domestic contexts such as education, marked by



tensions between the federal and state levels, and between the state and local levels. Obviously, in the international case, the higher-level decision-makers are sometimes not genuinely independent—in such a case, as is typical of some trade diplomacy, the tensions are not between the different levels but between the various actors and nations trying to push the international system in the direction they desire. There is also a risk of paralysis caused by divided or shared authority. To the extent that the policies of the different levels differ, either because of institutional actors taking a position different from members or because of significant differences among states, and, to the extent that responsibility is not clearly at one level or the other, there will be tensions, possibly paralysis, and possibly serious conflict. The tensions, reaching the level of war, are exemplified in the conflicts of loyalty leading up to and associated with the U.S. Civil War—conflicts that made it impossible for either the states or the federal government to resolve the differences over slavery without war. The tensions between the United States and its UN partners (France and Russia) in connection with the invasion of Iraq are a more recent example. The policy difference over the action to take in Iraq was intensified by policy differences over the role of the United Nations and the scope of UN obligations against unilateral use of force. And the long-run effect for the UN of the event and its sequel involving U.S. difficulties in rebuilding Iraq is likely to be significant, even if still unclear. Differences such as these are unavoidable; the existence of multiple tiers of governance can certainly complicate them. As an obverse to the perennial difficulty that many international organizations face in finding funding, there is also the problem that lower-level entities face in funding tasks imposed on them by a higher level. This is a familiar problem in U.S. federalism—the national government requires states to contribute to the resolution of certain social costs—and the money provided by the federal government is not enough to enable the state to live up to the federal requirements. In state politics, states and local entities (for example, school districts) are in similar combat. Globally, developing nations must live up to a host of environmental, intellectual property, and human rights requirements created by international agreement—but do not have or receive the funds needed to meet these demands. Further, multiple tiers are complex, especially when they attempt to operate

Prolegomenon 31

according to a rule of law. Sometimes the international tier is managed relatively informally, as in the case of the G-7 and G-8, or in some of the Asian and Pacific regional international organizations. But where there is more formal power, the contemporary way to define and maintain allocations of power among different tiers is through constitutions and treaties. Frequently these power allocations are policed, at least in part, by courts. The resulting law is often unbelievably and unavoidably complex, as demonstrated by the U.S. law of federal jurisdiction or the corresponding principles of EU law (which are complicated still further by the balance between the EU’s economic constitutional jurisprudence and the ECHR’s human rights jurisprudence). It is no accident that a large portion of the framers of the U.S. Constitution were lawyers. Yet there is a real cost in operating through law—legal arrangements may tend to look to the past and to transfer disputes to legal specialists while operating, though policy ideally looks to the future and may be conducted by those with responsibility to the electorate. These issues were noted in the United Kingdom’s acceptance in 1998 of human rights review by courts—there is a strong positive in achieving more effective control over the executive, but there is an unavoidable negative in the way the debate over constitutional issues may be shifted away from Parliament. In general, this book will support and emphasize the use of law, because informally exercised power can corrupt just as well as can formally exercised power, and informally exercised power is more likely to be misused—but it is important to recognize the associated costs. Finally, and probably most important, in the real international system, the presence of the international tier unavoidably affects national arrangements for separation of powers. With rare exceptions, international organization (and globalization itself) transfer power from legislatures to executives. It is almost always the executives who have the power to participate in international organizations, and they frequently can exercise this power without much control by the national legislatures or courts. Even where there are mechanisms for such control, the executives have the power of initiative at the international level, and other institutions are hesitant to interfere in international issues or to upset an internationally negotiated arrangement. This shift of power is one of the most important aspects of contemporary international organization; appropriate responses make up much of the heart of the second half of this book.



1.9.  The benefits of dividing responsibility At the same time, there are significant benefits in a multitier system. First, it can sometimes be more efficient. One reason is the possibility of allocating tasks efficiently among different levels. There are tasks best managed at a local level (for example, education) and tasks best managed at a global level (certain economic and environmental tasks). A multitier system provides the benefits of subsidiarity, a European concept for the obvious point of doing things at as low a level as possible. It would be absurd to believe that the world can cope with its problems without stronger international institutions—but it would be equally absurd to globalize many of the problems that local and national governments have long been engaging with reasonable success. For those problems that can be managed at either level or in different ways in different places, the existence of multiple levels permits experimentation among strategies. Often, it isn’t clear how to handle a problem, but it may be possible to settle in on a broad solution after seeing how different approaches succeed and fail in different contexts. This has long been viewed as a benefit of U.S. federalism. The other significant benefit is that the use of multiple levels provides new opportunities to maintain freedom through the separation of powers. Provided that each level is reasonably responsive to public or constitutional concerns, each level is available to intervene in behalf of freedom at other levels. There are many examples in U.S. history, such as the role of the federal government in intervening at the state level in favor of racial equality, or the contemporary efforts at campaign finance and political reform being pursued at both federal and state levels in ways that may deal with abuses at the other level. One of the contemporary roles of the United Nations is to help bring freedom to failed nations. And part of the point of the European regional institutions has been to build political constraints on Germany to attempt to make it impossible for that nation to repeat the events of the Hitler era. In a different pattern, there is a useful international tension between the more expertise-oriented institutions such as the World Bank and the IMF and the more politically oriented institutions such as the UN-associated functional organizations like the World Health Organization and the Food and Agricultural Organization. In another example, the rise of democracy at the national level has restricted executive power enough that the autonomy of international diplomacy is changed—the

Prolegomenon 33

pre–French Revolution diplomatic pattern is forever gone. This change has good aspects as well as bad, and it can be built upon to control both executives and international organizations more effectively. These multilevel separations of power work through quite different processes from that involved in Montesquieu’s traditional analysis of the balance of power among executive, legislative, and judicial branches. They require that both levels of government be responsive to public concerns and to constitutional demands—otherwise, one level could more likely bring tyranny on the other level.

1.10.  The special role of the United States It would be unrealistic to conduct this analysis without a serious consideration of the special role of the United States. Other nations also play a special role, and in parts of the book, it will be important to consider important nondemocratic actors such as China, but the role of the U.S. is so great as to deserve particular consideration at this point. First of all, the United States has enormous international influence, almost as if it were an international organization itself. With its economic, foreign assistance, and military powers, its network of all kinds of bases, and its control over many private economic actors, it strongly affects the actions of all foreign governments in much the same way that an international organization does. It may be a more effective centralizer than was the Roman Empire. Thus, the way it exercises its power, and the mechanisms of control over that power are crucial. As an example, congressionally imposed standards for U.S.-affiliated prisons throughout the world would be, at least in the short run, a far more important step to protect human rights in this context than would be a new treaty. Second, the United States has enormous power over current international organizations. As a major funder, it can compel organizations to change their policies, and can require investigations, such as the UN investigation of the Oil-for-Food program, an investigation led, not surprisingly, by an American. Similarly, it (de facto, albeit not de jure) appoints the head of the World Bank. As a host, it has substantial informal power over the World Bank, the IMF, and, in many ways, the United Nations. Further, it is the United States that can most of all strengthen or weaken an international organization through its decisions whether to pursue a policy through a series of bilateral discussions or through



the international organization. It should not be forgotten that the existing international organization system derives in large part from a U.S. blueprint and U.S. diplomacy at the end of World War II. And, together with a number of other leading nations, the United States acts through the G-7 and G-8 to set the agenda of many of the more important international organizations. The importance of this power is heightened through U.S. exceptionalism—a sense, strong within many political circles, and hyperstrong within the George W. Bush administration, that the United States is different from other nations and should be entitled to act by different rules. There are strong political roots for this tradition. The U.S. was, in fact, created as a new state designed to protect freedoms that were not available within Europe. The U.S. has historically operated on a continental level and has not, until recently, needed to learn to accommodate its interests to those of other nations. Further, many in the United States bring a religious perspective that supports U.S. national sovereignty. An important aspect of this exceptionalism is that many in the U.S. view international organizations as acting properly only when they assist the U.S. in achieving its policies, and view such organizations as acting improperly if they constrain the U.S. Even though this position is closely associated with the Bush administration, it is likely to survive that administration. The character and power of the United States gravely affect what can be done to support rights and freedoms within the international system. In some cases, such rights can be protected by international organization reform; in others, the key actions may have to be based on U.S. constitutional structures. A very positive source of opportunity is that the U.S. structures are, on the whole, protective of individual freedoms. Nevertheless, every international organization must recognize the tension with the United States. From one perspective, the U.S. is likely to be the key member—and the international organization must be responsive to U.S. demands and needs. From another, the organization will be viewed by its other members as a way to control and manage the United States—and the organization must respond to these concerns as well. Moreover, from a normal realpolitik perspective, the U.S. is a status quo power that would benefit from a stable global system; it remains to be seen whether future U.S. policy-makers will understand the long-term benefit to the U.S. of a stable and legitimate international order. There is much pressure today for stronger international institutions—and

Prolegomenon 35

the international institutions that we have need to be made more politically responsive and legitimate. This is only in part a task of creating new constitutional structures for these organizations—for they gain their strength from political and intangible factors deeper than their formal constitutional structure. International organizations may be created in one model but they will then be reshaped and will evolve under continuing pressure from circumstances and from their members—the entities created in 1787 or 1945 or 1957 changed radically and became entirely different entities even just a generation later. At the global level, most of the strengthening since World War II has, in fact, derived from increased legitimacy of, and transfer of increased responsibilities to, international organizations without formal constitutional change. It is the effect of continually evolving forces and attitudes that will most shape the future of international organizations. At the same time, the reshaping needed to protect freedom will require an outside intrusion into the “business-as-usual” pattern of international organization behavior, as well as into the behavior of nations acting globally in new ways. This will most likely take place during crisis, in response to particular problems, or in connection with efforts to reorganize international organizations. It will require a constitutional moment, and will involve a politics of its own that, depending on the particular situation, may rest ultimately on U.S. congressional concern about particular organizations (as in the case of the Meltzer Commission, created in 1998 by the Congress to study changes in the IMF as part of the political price of providing new financing to the organization), on other nations’ concerns about U.S. treatment of prisoners in its war on terrorism, or on public fears that the existing international system is effectively eliminating the welfare state. Europe is the major example of continued explicit reform. For only a few does the EU yet have the benefit of a strong sense of community—yet the sense of community in Europe is certainly much stronger than it was a generation ago, and the dream of those who seek full integration is that this will evolve over a number of generations, as did the integration of Germany through a customs union in the nineteenth century. But Europe has also had a regular program of rethinking its constitutional structure roughly once a decade. The source of this is unclear. It may reflect changing circumstances as leaders saw fit to bring new issues to the European level—for example, when they began har-



monizing market regulation as well as simply removing trade barriers. It may reflect the continuing and unsettled tension between those who want Europe to be a single integrated nation-state and those who want it to be a relatively weak intergovernmental organization. And it may reflect the need to reorganize in accepting the entry of new members. Although it is not clear that this regular rethinking will continue, it has been a very valuable process that has regularly strengthened the process of integration and corrected earlier mistakes—and has kept rights and freedoms at the forefront. At the global level, the current institutions offer space for taking on stronger roles. Economic pressures (although not necessarily security pressures) are toward increased international authority. Over the long term, these pressures will lead to greater and greater international organization power. Whether or not they will be accompanied by increased public interest in strengthening international organization is not clear, but they will almost certainly be accompanied by increased interest in participating in international organization and very possibly in protecting freedom against such organizations. For each particular situation, the need will be to find and utilize the constitutional moments at which reform can be organized.

ch a p te r t wo

Security and Freedom The U.S. takes a person prisoner in Afghanistan, believing that the person represents a terrorist threat and imprisons the person in Guantanamo. It argues that its war on terror represents a new kind of conflict, and that neither traditional domestic criminal law protections nor traditional protections for prisoners of war should be applied.

This chapter is the first of three to consider the protection of freedom against today’s combination of national governments and international organizations. It considers the needs associated with the balance of security with freedom. The subsequent two chapters consider the parallel needs in the economic arena, where economic opportunity and equity must be balanced, and in the cultural arena, where community and tolerance must be balanced. Like all but the first and the last chapters of this book, this chapter begins with a description of the traditional regime. In this chapter that regime is one in which the protection of intrinsic human rights in any one nation is of only limited legal concern to other nations, and there is a special legal arrangement for war and international affairs. The chapter then turns to the ways in which that regime is now obsolete—in particular as a result of terrorism and of the potential proliferation of weapons of mass destruction. It next considers the protection of intrinsic rights in the international criminal law context, first against governments and then against international organizations. It will then consider the role of international diplomacy in protecting these rights, in particular through decisions to intervene, both unilateral and multilateral. In many of the areas involved, there is need for new balances between security and human rights concerns. Although the text attempts to define such balances, what is most important at this point is to initiate debate on the wisest ways in which to make the balances. The conclusion will define priorities for the most important current tasks for strengthening the protection of rights in the security arena.


Defining Freedoms

2.1.  Achieving freedom A.  Achieving freedom in the traditional regime Security and freedom are both complementary and contradictory. One cannot have freedom unless one has security from intrusions by others. Yet, efforts to protect the security of others can restrict one’s own freedom. The definition of an appropriate balance has been at the heart of traditional political theory, and many political theorists have attempted to define precise ways that freedom might be protected within a political system, as through definitions of fundamental individual rights, elections to control the terms of political leaders, standards for the legislative and judicial processes, balances of powers among the organs of national government, and judicial procedures to review and control the exercise of government power. Achieving such protection requires not only formal principles; more important, it also requires a willingness on the part of citizens and political leaders to accept the constraints of those formal principles, even when the principles cut against their apparent or short-term interests. Indeed, as suggested by English history, acceptance of unwritten principles may define a successful and free polity even in the absence of precise definition of those principles.1 Although there were predecessor theories such as those of Grotius and Vattel for the relatively international political structure of the late medieval era and the early years of the evolution of the nation-state system, the political theories that shape most of our current thinking arose in Western Europe in the context of the relatively independent nation-states that followed. In this system, in a pattern we will see reflected in today’s world, military relationships determined national political structure. Nations centralized power in order to achieve security against external threats, and to maintain the economic and human base, and later the political loyalty, to be able to provide for military defense. The transfer of power to the national center was exemplified by the centralization of France in the seventeenth and eighteenth centuries and of Germany in the nineteenth century, and the need to obtain political loyalty derived from the rise of the citizen army originating in France at the end of the eighteenth century. The resulting system, which lasted from roughly the eighteenth until near the end of the twentieth century, is what I here describe as the traditional system. It shapes our current view of protecting rights.2

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In spite of the common theme, the details were different in different nations. Each nation chose to protect freedoms in its own somewhat different way, as tensions between regional nobility, central monarchy, and rising bourgeoisie played out differently in different nations. Although centuries apart in the cases of England, the United States, France, and Germany, the processes led ultimately to free systems in all. Tensions between Catholic and Protestant states and between Anglican and Dissenter were ultimately resolved in ways that created our concepts of religious freedom. The Bill of Rights, the separation of powers, and judicial review were, at first, nearly unique to the United States, but they are approaches now used widely. These different national processes were linked intellectually, as through the influence of British law on U.S. political theory or of U.S. independence and the U.S. Constitution on the French Revolution. In all the nation-states that emerged, it was assumed that foreign affairs concerns could be pretty much detached from domestic ones, on the assumption that the individual nation-state could define its own mechanisms to achieve the freedom of its citizens essentially as that polity might choose. The pursuit of freedom—the very subject of political theory—took place within a single polity (or possibly a federal system). The nation defined its own constitutional processes, seeking on its own to balance the freedoms of individuals against the need for internal order and security, driving a sense that rights were defined at the national level and against national governments. Foreign affairs were separated from citizen freedom in the traditional nation-state, in spite of the fact that the evolution of the nation-state was driven in significant part by concerns of national defense. For the nations of the traditional system to be able to achieve the freedom of their own citizens in their own ways, it was necessary for each nation to respect each other nation’s national sovereignty. This nonintervention principle was embedded in the UN Charter. At least in theory (although the theory was often not followed), outsiders did not intervene, and the nation was free to define its own mechanisms of freedom. In the traditional system, freedom was optional. National governments were allowed to choose against freedom, and it was up to their own citizens to attempt to achieve freedom if they so desired and were able. An important implication of the duty of nonintervention was that nations would not normally exercise their criminal law processes extraterritorially.


Defining Freedoms

There were only very narrow exceptions to the obligation not to intervene; the exceptions applied, for example, to the right to protect one’s citizens against certain kinds of mistreatment abroad, and to the procedures that could be used in the pursuit of war, which was viewed as an exceptional event. War, viewed as acceptable in national defense, might be waged extraterritorially, but, in general, criminal law was not. The national authority to maintain security through criminal law was limited to the national boundaries, save for rather limited exceptions such as those involving ships on the high seas. B.  Achieving security in the traditional system International security in the traditional nation-state system was achieved through a balance of power among nations. The basic eighteenth-century concept was for each nation to build adequate force to deter attack and to engage in balancing alliances so that no alliance would feel strong enough to confidently attack another. This approach continued rather effectively through the nineteenth century under the regime created by the Congress of Vienna. The alliance patterns failed in major ways in the first half of the twentieth century, through communication and negotiation failures leading to World War I and through failure to build and exercise adequate counterbalancing force, leading to World War II. The pattern resumed after World War II with the emergence of a bilateral nuclear balance of power between the United States and the Soviet Union. The elaborate theories of nuclear deterrence were a successful evolution of the balance of power theories that had earlier been the basis of peace. The League of Nations and its successor, the United Nations, were designed on the assumption that states were essentially totally independent and sovereign. What the international organization brought was a way to enable the power system to operate more effectively. The League was designed to improve diplomatic communication, building on the judgment that it was failures in this dimension that had led to World War I. The United Nations, built on the judgment that inadequate force had been available to block Hitler, emphasized a Security Council whose five permanent members—actually the coalition that had defeated Germany and Japan in World War II—would have so much power that they could deter others. Although this proved irrelevant and was replaced by U.S.-Soviet bilateral deterrence, both it and deterrence were still based on balance of power theories. Even peacekeeping—the process, beginning in the

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1950s under Dag Hammarskjold, through which the United Nations worked within nations or in helping to settle disputes—was done by the permission of the nations. What was new in the UN Charter was a clear right for the Great Powers of the Security Council, after going through the procedures of Chapter VII, to intervene against a threat to the peace—this was a primary limitation of the sovereignty of the nation found to create the threat. Effectively, of course, the permanent members of the Security Council were immune to this limitation, because of their veto. The UN Charter’s principles on the use of force fundamentally allowed such use only when authorized by the Security Council, which required a finding of a “threat to the peace, breach of the peace, or act of aggression,” or in cases of self-defense, as defined in Article 51 of the Charter. But this body of principles was frequently viewed as more political than legal, and the United States certainly made clear, during the domestic debates over Iraq, that it would not be constrained by UN prohibitions on the use of force, should it view such use as essential to its own security. The United States is not alone here; many other nations have also ignored the prohibitions of the Charter. There is also a relatively strong—and often respected—body of legal restraints on the way force can be used; these are the restraints of the law of war. This body of law applies to the conduct of war, rather than to whether a war is appropriate. The restraints are weak, but they have worked in many areas, especially where they are supported by reciprocity. One of the most successful areas (at least until recently), for example, covers the treatment of prisoners of war. There was reciprocity because each combatant normally held prisoners from the other side, and each side had prisoners being held by the other—so it was beneficial to both sides to maintain a reasonable standard of treatment. There are treaties spelling out the detailed standards—and the existence of the treaties makes it easier to avoid tit-for-tat retaliations that would significantly lower the effective standard. In this context, national constitutional principles governing foreign policy could be based on the assumption that a nation’s foreign policy could be substantially separated from its domestic policy. Protection against outside threats was viewed as a way to protect domestic freedom. Usually, foreign policy was placed under the control of the executive, and national political and constitutional review processes were weaker than for domestic action. The judicial


Defining Freedoms

and separation of powers mechanisms of protecting freedom were deemed to be applicable in only an attenuated way in the foreign policy context. This was regarded as acceptable because the foreign actions usually affect citizens only rarely and indirectly. In one important case in U.S. constitutional history (United States v. Curtiss-Wright Export Corp., 299 U.S. 304 [1936]), for example, the Supreme Court declared that constitutional restraints do not apply in the foreign affairs context. (This case is not always followed.) After all, the rights of citizens were not generally involved in the foreign policy arena, and the need to protect the polity was deemed paramount. Perhaps more important, citizens were (and are) generally more willing to accept direction from the national government when they believe the nation’s security is at stake. In a good way, support for the nation, even laying down one’s life in war, is an obligation of citizenship; in a less good way, patriotism can stifle judgment. As a result, human rights are less protected in the international and foreign policy context, reflecting the fact that the domestic balance between freedom and security is at its most difficult when the issues involve security against outside threats. For example, searches that would not be permissible elsewhere are viewed as permissible at border entries. The detailed search restrictions applicable to criminal investigations are not applied to restrict national intelligence collection, on the theory that the latter is used to shape general national actions rather than in specific criminal prosecutions. International economic and financial transactions are much more restricted than their domestic analogues, and often subject to much greater government discretion. Foreign citizens are given fewer legal rights than domestic citizens, even in areas of intrinsic rights, where there may be weaker protections for freedom of speech or against police misbehavior. Even within the traditional system, however, there did evolve some domestic political restraints upon the international actions of national governments. In the late eighteenth century, for example, the U.S. Constitution required formal approval of a legislative body for a declaration of war. The rise in the early nineteenth century of the Napoleonic concept of a nation in arms made it essential for leaders to seek to justify military action to their citizens. Such justification is almost necessarily cast in the terms of a just war theory to argue that the war is morally and politically justified, or perhaps of an evolution of that theory based on the detailed legal provisions of the UN Charter.

Security and Freedom 45

It would be foolish not to recognize that this need for justifications often amounts more to a demand for appropriate rhetoric than to an effective restraint—and, as demonstrated many times, Congress (or the House of Commons) will follow an executive into war even on the basis of relatively limited justification. Moreover, executives claim the right to short-circuit the process. At the same time, the presence of the constitutional process certainly has some restraining force, and has affected the conduct of international relations. Part of this effect derives from the demands of justice that are likely to be made in the argument—these demands are not far from the demands of common sense or of just war theory: that wars be defensive, that they be undertaken only as a matter of last resort, that they be properly authorized by legitimate authority, and that their expected costs be consistent with the expected benefits. Part derives from the fact that a war must be justified in terms of national interest. Even in the face of the inherent willingness of a legislature to support an executive on a foreign policy issue, there is some constraint. C.  Security-related pressures on the traditional regime The assumptions of this regime are crumbling in the face of trends in the character of security and criminal threats and of trends in human rights thinking. In the international security area, crime in internationalizing, particularly in the case of terrorism, and the capability of developing weapons of mass destruction (WMD), such as nuclear and biological weapons, is spreading to new nations and to subnational groups. Criminal groups in one nation can contribute to harm in another nation. Among the longest-term examples are the international traffic in women for prostitution and in narcotics. And most recent is international terrorism, as shown by 9/11 in the United States, the Madrid train bombings, and 7/7 in the United Kingdom. Small international groups can take advantage of major vulnerabilities in advanced societies, and can plan and organize in one nation to carry out activities disadvantageous to another. Importing nations have failed to deal well domestically with narcotics issues and have created a market for producers in other nations. In the Mideast, many people have grievances that may lead them to participate in terrorism. In many of these cases, the target nations have sought to exercise their criminal law authority extraterritorially, sometimes through cooperation with foreign police forces, and sometimes through direct action, as that of the U.S.


Defining Freedoms

military in Afghanistan and Iraq. In some cases the counteraction is more like traditional war, against a government or against non-national entities. And in all these cases, the use of intelligence techniques has grown, as have efforts to control international financial transactions. Some of these expansions of power arose with the Cold War in the conflict against nongovernmental entities sponsored by the Soviet Union and other communist entities, but they have greatly expanded in more recent times, especially after September 11, 2001. Further restructuring of the national and international regime derives from the fact that WMD are now becoming accessible to many governments as well as to subnational groups. The nation-state system has survived changes in war up to and including possession of nuclear weapons by a small number of national governments—but, especially as subnational groups gain WMD, it is not so clear that deterrence and balance of power approaches will work. There is now a much greater chance of the failure of deterrence, or even the failure of effective management controls over WMD. It is possible, of course, that the threat of these changes is being overestimated, and that the next serious conflict will turn out to be a traditional war. Nevertheless, there are genuine reasons for concern, and the threats are certainly driving current policies and institutions and creating pressure toward a new regime. One component of this regime, seen in the conflicts between the United States and both Iran and North Korea, is an effort to make it much more difficult for new nuclear weapons states to emerge. Under traditional principles, a nation is not required to join the 1971 Nuclear Non-Proliferation Treaty (NPT), which attempts to restrict the spread of nuclear weapons and provides for inspection by the International Atomic Energy Agency (IAEA). Moreover, a party to the NPT may, in the name of pursuing a civilian nuclear power program, move quite close to a nuclear weapons capability. Both these possibilities are today viewed by many nations, including the United States, as loopholes in the regime, and increasingly strong political pressure is being placed on nations not to exercise these rights. Moreover, there are efforts to turn to the mandatory authorities of the Security Council to fill the “loopholes,” as in the 2004 Resolution 1540, which lays out rules to be applied to all nations to keep WMD from falling into the hands of terrorists. The result is viewed by some nations as an important restriction on sovereignty, with the Security Council going beyond its traditional role to become a legislative body. Moreover, in the case

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of Iraq, before the 2003 war, the Security Council authorized mandatory IAEA inspection (a right that the IAEA was sometimes able to exercise) over the opposition of the Hussein regime. Another equally important component of the new regime is an effort to deal with subnational WMD threats—this will necessarily involve further use of international criminal processes, and may involve further powers for the IAEA, and perhaps for bioweapons analogues. Another issue is that failed regimes are likely to be havens for terrorist groups and for subnational groups interested in obtaining WMD. Not only has this led to military action, as in the case of the U.S. intervention in Afghanistan; it has also led to UN interest in finding ways to build stronger governments in these regions. This has provided additional support for another contemporary trend—that of humanitarian intervention in failed states or in states suffering serious conflicts or genocide. Although this latter trend has rested more on human rights grounds than on security grounds, the two trends have combined to support UN intervention in circumstances far beyond those envisioned when the Charter was signed in 1945. The importance of these changes is suggested by the U.S. response to 9/11. Although the September 11, 2001, attack was not technically one using WMD, it produced enormous casualties, and led the United States to fear the spread of WMD to terrorists and “rogue nations.” The U.S., in a militarily dominant position, has claimed the right to act unilaterally outside the existing international regime, and has issued a policy paper stating in effect that, if it sees a threat to its security, it will act preemptively if necessary, regardless of traditions of nonintervention or just war theory. Further, the United States has created an extensive military and covert-force network all over the world that looks more like the global enforcement of criminal law than like war—with prisoners being taken and held without being granted the rights of either criminal defendants or prisoners of war. Finally, some in the United States appear to believe that, because of the limitations of the IAEA and UN, the evolution of international organizations is a mistake and possibly even dangerous. They envision the maintenance of a more imperial system in which the United States is absolutely dominant and does not have to consider the restraints that might be imposed by the United Nations. Not surprisingly, many in the rest of the world disagree with this position.


Defining Freedoms

2.2.  Human rights trends and the scope of intrinsic rights In analyzing the protection of rights in the new order, it is useful to begin by considering what rights different individuals have in the international context, and then to ask about the extant mechanisms by which those rights can legitimately be vindicated in today’s world. With respect to intrinsic rights, the focus of this chapter, the answer of law, until recently, has been that citizens of certain nations have full intrinsic rights, but that this depends on the law of the nation. Foreigners also had certain rights, to see a national consul, and, in the view of the wealthy world, corporations had certain rights against expropriation by foreign governments. Beyond that, the law left rights to national principles. This can no longer be accepted. Today, any citizen in France, any Mujahideen in Iraq, or any peasant in Rwanda must be viewed as having the same intrinsic rights as a U.S. citizen—for example, the rights to respect for privacy, to freedom of speech and religion, to protection from torture, and to a full trial with a lawyer and due process before incarceration. This has long been the case in political theory, even if not always recognized in the law. The concepts of these rights arose in the context of political and religious dissent: the revolutionary United Kingdom of the seventeenth century, in the revolutionary colonies of America in the eighteenth century, and in France in the eighteenth century. And theorists such as John Locke and Immanuel Kant rested the source of human rights on the individual, not the state. There is nothing about the rights that is not universal. As the Declaration of Independence states, “[A]ll . . . are endowed by their Creator with certain unalienable Rights.” Different nations may differ on some of the details of the precise scope of these rights and of how they are to be protected, but there is no basis for distinction among people with respect to these rights. This kind of universalism is essential if freedom is to be taken seriously in the future. This universalist position rejects the theme in some U.S. Supreme Court cases such as United States v. Verdugo-Urquidez, 494 U.S. 259 (1990) which argue that (at least with respect to certain rights), the Constitution was meant to protect the people of the United States from the government, not to protect aliens from the government. This is by no means a unanimous position, however; the scope of rights must be considered on its own merits, not on the basis of a particular theory of the construction of the Constitution. And, at

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least for intrinsic rights, the universalist position appears unassailable. Those who wrote the Constitution include many of the same people who signed the Declaration—a philosophical statement that applies to all. This position also rejects the theme, put forward by a number of Asian nations in international human rights contexts, that these intrinsic rights are a Western construct and do not apply to more communitarian Eastern societies. Such a counterargument is understandable for a government to take, and there may appropriately be differences in enforcement mechanisms in different societies—but it is very unlikely that the people of such a society accept the counterargument. Even with respect to arguments that economic rights come first for poor people, it should be remembered that these intrinsic rights were initially formulated in quite poor societies (and, in the cases of England and France, of quite unequal societies). Most important, the universalist position rejects the positivist view that rights and freedoms are created by law rather than being inherent, or, using the concepts of the Declaration of Independence, God-given. Although I do not attempt in this book to develop a general theory of the origin of rights, it is clear that rights are meaningless if they are treated in a purely positivist way. After all, rights are about controls on governments—and governments do not willingly restrict themselves. Whether or not one uses a formal natural law perspective, justice-based arguments necessarily involve a call to a law beyond the positive. And, from any such perspective, there is no reason to distinguish the inherent rights of one person from those of another. This position is supported by a global change in attitudes toward human rights. Perhaps because of improved international communication, travel, and migration, citizens in each nation increasingly recognize the rights concerns of citizens in other nations. The various international human rights conventions are—formally—accepted by nearly all nations, and the 1948 UN Universal Declaration of Human Rights is considered as binding international law. There is an elaborate but relatively international human rights legal system at the global level, and a world network of regional human rights conventions—most strong in Europe, moderately strong in Latin America, and relatively weak in the rest of the world. These systems include a formal bill of rights and some form of enforcement, ranging from mechanisms for diplomatic dispute at the weakest to a formal (and generally obeyed) court in Europe.


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This change in attitude and the evolution of the treaties build in part on pragmatic factors. The European Convention on Human Rights (ECHR) was negotiated in part because of the sense that a failure of freedom in Germany led to World War II, and that such failures should not be permitted to happen again. The existence of failed states, in which rights are not respected, is a threat to all of us. It is generally assumed that democracies (which, of course, require far more than respect for intrinsic rights) are less likely to participate in war. And certainly, the failure of freedom of speech in any nation makes it more likely that that nation will have dangerous misperceptions of other nations. The 1975 Helsinki Agreement that recognized the Soviet-created borders in Europe received as a quid pro quo an international agreement about human rights. This agreement became the basis for diplomatic and political pressure against the Soviet bloc’s failures in human rights, and contributed significantly to the collapse of that bloc at the end of the 1980s. Thus there are many pragmatic reasons for concern about respect for rights in other nations. And national autonomy no longer permits a nation to argue that the rights of its citizens are internationally irrelevant. These concerns reinforce the much more fundamental point that it is the people themselves who have rights. Admittedly, human rights debates are often matters of words alone. But the underlying points are still accurate—individuals do have rights, there are formal standards available, there are many citizens concerned about the rights of those in other nations, and (although the language of the Charter has not been changed) it is now legitimate under international law for governments and international organizations to be concerned about the status of freedom in all nations. A.  International freedom of speech It follows from the universality of rights and from the increased dependence of security in each nation on political developments in other nations that the rights associated with the freedom of speech must now be interpreted to transcend national boundaries. The inability of an opposition party leader to speak in one nation affects other nations, as does the inability of the citizens of one nation to have free access to the ideas being developed in other nations. Certainly, the human rights documents state this principle—the International Covenant on Civil and Political Rights (ICCPR) defines a “freedom

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to seek, receive, and impart information and ideas of all kinds, regardless of frontiers.” Nevertheless, many nations reject this position with respect to satellite transmissions into the nation, foreign television channels are blocked out (sometimes satellite dishes are even prohibited), and access to sensitive Internet sites is controlled. The corporations that provide access to television and the Internet often accept these restrictions as the price of access. Clearly, this is wrong. There are understandable areas of disagreement as to the precise scope of freedom of speech, going to such issues as possible restrictions on Nazi or ethnically defamatory speech, to pornography and the definition of obscenity, and types of advertising that may be permitted. Yet there is a broad category of speech—that is still prohibited in some nations on the grounds that it threatens stability—but that is clearly within a core of political and cultural speech and beyond the areas of reasonable disagreement. And it is this speech that is most important for political freedom. Because of the areas of reasonable and unreasonable disagreement, there is little chance of effective global agreement to permit the freedom of such speech. But there is a chance of such agreement, formally or informally, among the free nations—and these nations can also seek to manage the international media corporations to discourage or prohibit private acceptance of such restrictions. This may even be possible through a code of conduct developed by the media itself. B.  The right to revolution It follows from the existence of intrinsic rights and of the right to participate in one’s own governance, that, at least under some circumstances, oppressed citizens have a right to revolution.3 Locke recognized this point (in somewhat different language) in his discussion of tyranny and of the dissolution of government in his 1690 Second Treatise of Government. It was statements of intrinsic rights that provided the philosophical basis for the American Revolution, as well as for the British and French revolutions, and even for the U.S. Civil War. Along with concerns about equality, these rights were also the basis for many of the anticolonial revolutions of the 1950s and 1960s. Together with the desire to have democratic mechanisms to protect these rights, they were the support of the revolutions that replaced communism in Eastern Europe, as of the movement in Spain from fascism to democracy. Although the rights involved were


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more participatory rights than intrinsic rights, they were the intellectual supports of the recent revolutions in Ukraine and Georgia. Before considering the scope of the right to armed revolution, it should be noted that revolutions fall along a continuum, and that there are often many ways short of military revolution that the citizens of a nation can strengthen their rights. As noted in Chapter 1, the achievement of rights is a progressive and incremental process. Thus rights have been supported by nonviolent revolutionary changes within an existing polity: the reformulation of U.S. governance from the Confederation to the Constitution in 1789, the reform of the rotten borough system in the United Kingdom in the early nineteenth century, the democratization of post-Franco Spain, the mid-twentieth century movements of civil disobedience that led to a (later bloody) independence for India, and the late-twentieth century democratization of Mexico. Or, in a somewhat less dramatic way, consider the impacts of U.S. Supreme Court decisions on racial equality and criminal procedures, or the similar impacts of the growing move toward judicial review in Europe at both the national and the international level. The ECHR has become a mechanism for law reform. Clearly, such peaceful methods are preferred when possible—the right to revolution is one in which the permissible procedures and approaches vary deeply with the circumstances. The scope of the right to armed revolution is obviously a sensitive question—and, not surprisingly, it has not been the subject of a significant body of constitutional or international law. Nations do not generally agree on formal laws that may shape their own dissolution. The right to revolution is in some way a collective right, and is one that will be found in no national constitution, but it is implicit in the origin of many constitutions and is an essential, even if usually unspoken, principle in any international determination that a particular government is so unjust that it should be changed. Even revolution’s close and more politically legitimate cousin, national self-determination, is handled with suspicion in international law. At the same time, the scope of the right to revolution is crucial because the right to revolution is the obverse of the crime of terrorism. It is essential to draw a line such that one man’s freedom-fighter is not another man’s terrorist. A formal or de facto definition of terrorism that overly narrowed the right to revolution would harm the cause of justice in the world. In turn, a definition of the right to revolution that overly narrowed the

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definition of terrorism would subject us all to insecurity while ultimately most benefiting warlords and thugs. It is extremely important to be very careful in defining any limitations on what can be done in the promotion of freedom, for governments are always ready to look for justifications to limit freedoms. This is exemplified by the U.S. executive’s desire to protect a national legal possibility of torturing prisoners as a way to prevent what it regards as the greater evil of terrorism. Such justifications must never be permitted. But it is also true that a military or revolutionary effort to restore rights can have enormous negative consequences—and may not restore the rights at all. This means that there are proper ethical and prudential restrictions on when such a military or revolutionary effort should be undertaken to overthrow a particular government—but parallel weighing should not be applied to weaken government respect for intrinsic rights. Although it is hard to be confident, several themes can be considered in a definition of the appropriate scope of armed revolution. The principle of incrementalism presented in Section 1.3 implies that change is to be considered in terms of the possible. Like the initiation of war, the initiation of revolution unleashes forces that can be far more destructive than constructive. Hence, the principles of just war theory—which derive from traditional analysis of ethical situations involving actions that have both good and bad effects—are appropriately considered. Although there are various statements of these principles, they generally require that the war be initiated by appropriate authority, that it be a last resort and that the costs be proportional to the evils being prevented, that the war offer a good probability of success, and that it be fought in a way that produces as few bad effects as possible. In the context of revolution, the requirement of appropriate authority for the decision to initiate armed activity can here only be one of ability to assemble a group of domestic allies that are themselves generally representative of the people of the society. The classic American example was the Continental Congress. The next group of requirements is certainly that the situation be bad, in the sense that individual rights are seriously affected, and that there be inadequate mechanisms of relief within the society. The more democratic a society or the more open to reform it is, the less justified is any form of revolution. A further group of requirements involves the question whether the revolutionaries can or are likely to actually organize an effective and democratic govern-


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ment. Some efforts at revolution, most dramatically the 1789 French Revolution and many of those of decolonization, have led to disorder, and typically ultimately to a strongman leader rather than to a successful democracy. Note that this criterion has significant implications for international movements to impose sharia law—a revolution to gain religious freedom is clearly legitimate, but one to deny such freedom to others is not. Further, there are certainly questions of what means can be used. Moreover, this is a point that must be related to the definition of terrorism—definitions of terrorism that would link terrorism to anarchism or communism or antidemocratic or religious goals can be serious threats to freedom. Hence the definition must emphasize means—attacks against military groups are genuinely different from attacks against civilians. It would also be a deprival of the right to revolution to require that all members of an insurgent group wear uniforms and be organized like a conventional army. In some cases—for example, the Ukraine—a serious mass demonstration may be enough. But it goes too far the other way for any form of irregular action against the military or police of a regime to be regarded as acceptable. Certainly, action against civilians falls on the terrorist side. This is the area in which there is most law, because there has been an effort to define a law of war applicable to civil conflict. Revolutions have different styles—the recent Ukraine and Georgia cases made it look easy. But there were many underlying factors making these cases more straightforward. There are many contexts in which revolution may be justified but is more difficult, as when a group wishes to detach from another pre-existing polity. The clear messy contemporary examples are Chetchnya, unhappy with Russian rule, and Palestine, where the Palestinians wish to reassert their rights over a territory held effectively by Israel. The nation against which the revolution is being conducted can use military force with apparent legitimacy; those who support independence risk being branded as terrorist if they attack those military forces (and, of course, are terrorists if they attack civilians). Moreover, actions against those from abroad who support one side of the conflict will also be branded as terrorist—as exemplified by the London bombings carried out by the Irish Revolutionary Army. In fact, these bombings were directed against civilians; they would have been much more problematic had they been directed against military targets. It is important that the definition of terrorism take these concerns into account—as the world becomes

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more globalized, revolution, even in one country, may necessarily have to be more global.

2.3.  Implications of the universality of intrinsic human rights for the extraterritorial criminal process and the war on terrorism The universality of human rights (and the associated right to revolution) have very important implications for the way that extraterritorial criminal law can be conducted, implications that are particularly important in the counterterrorism context.4 Extraterritorial criminal prosecution will not and should not be renounced—too much crime is conducted internationally. Hence, there is need not only for cooperation among police departments but, sometimes also, for unilateral action by national policing forces in territories in which the local police are either absent or corrupt. Although there are many other extraterritorial criminal issues, the “war” on terrorism raises especially important issues and difficulties. The U.S. government has taken prisoners in Afghanistan and Iraq (and perhaps elsewhere) and has defined a status of “enemy combatant,” which gives these people neither the rights of prisoners of war nor those of criminal defendants. U.S. actions under the Patriot Act with respect to the sharing of information between intelligence and criminal prosecution agencies, as well as the U.S. desire to interrogate its captives without giving them access to lawyers, also raise serious constitutional and human rights issues. The United States may argue that new circumstances in effect blur the distinction between the criminal law and the military law worlds, and the president has stated that the war on terrorism is a war and not a criminal action. Government resistance to respect for human rights in the antiterrorism context is likely to be stretched to nonterrorist contexts as well, such as efforts to deal with drugs, with money laundering, and with large-scale corporate fraud. The fact that national exercise of transborder power has become common implies that rights will be meaningless unless they can be exercised in the transborder context as well as the traditional domestic context. Many will be without rights if they are not extended in these cases. Pragmatically, the United States (and any other extraterritorial criminal prosecutor) will lose legitimacy if it does not extend such rights—resistance and resentment will grow unless


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fairness is seen to be provided. How is the choice between the military and the criminal law perspective to be resolved? Some of the issues are clear; some may need new balances. The detailed standards for the various rights need not necessarily be those of the U.S. Constitution; instead, they may—and probably should—be those of the international human rights regime. Hence there is room for some flexibility, as contrasted with the technical principles that have evolved from the specific wording of the Constitution on issues like trial by jury. In certain circumstances, military actions are clearly part of a necessary and legitimate defense against terrorism. Few have any doubts about the fundamental legitimacy of U.S. actions in Afghanistan and the need to use military force as a way to combat the home base of a major international terrorist organization. Therefore, on the military battlefield, the law of war applies. There are important implications. For example, it would be absurd to require Miranda warnings, but, when practical under battlefield conditions, opponents should be offered the opportunity to surrender rather than be killed. Prisoners can certainly be taken and held, but would seem logically to be subject to prisonerof-war rules that permit them to give only the equivalent of name, rank, and serial number. The prisoners can certainly be held for a reasonable period—but, because the war on terrorism is not one that will end with a truce or treaty providing for a prisoner exchange, they cannot be held indefinitely. Preventive detention without trial violates all codes of human rights, so if prisoners are to be held beyond some reasonable period, it can only be under criminal law principles. This is an obvious implication of the universality of human rights. The prisoner of war principles offer no way to maintain long-term custody over prisoners without violating their intrinsic rights. Detention for preventive reasons is inconsistent with fundamental criminal law and human rights concepts, unless one has already committed a crime or is clearly engaged in a plan to act that satisfies traditional criminal law principles. There is clearly no right to engage in any form of torture—or even of interrogation beyond that consistent with normal domestic criminal law principles. A person threatened with criminal prosecution has a right to a lawyer and to independent fact-finders, as well as to a precise definition of offenses for which he or she is being held. A person has a right not to be sent to another jurisdic-

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tion where he or she may be tortured or prosecuted in violation of intrinsic rights. Likewise, there should probably be a strong principle against targeted assassinations. This principle was recognized during the U.S. Civil War.5 In a military context, it is understandable that opposing leaders might be targeted. But for this to go too far allows governments, in essence, to decide unilaterally on the guilt of individuals and to execute them without any form of hearing. The situation is very different from that of combat by uniformed troops who, almost by definition, make themselves acceptable targets for military action. Developing lists of organizations subject to sanctions for support of a prohibited activity such as terrorism seems reasonable, as do the various forms of financial sanction imposed on such organizations and individuals. But, again, there must be an opportunity for a hearing with due process—at least as part of a way to contest being placed on a backlist. It is extremely important that the freedom of speech and association associated with the organizations not be undercut. Among the most difficult issues are those of intelligence and evidence. Traditional principles allowed intelligence data to be collected on foreign nationals with essentially no limitations on means (wiretapping, warrantless searches, paid informers, and so forth), but data for criminal prosecution could be obtained only in ways consistent with national constitutional privacy protections. The integrity of the criminal process was protected by a refusal to allow intelligence data to be used for criminal prosecution, if not collected in accordance with constitutional privacy provisions. Ideally, this principle would still be applied in the trials of alleged terrorists. But it may be reasonable to make limited exceptions to allow intelligence data collected on a battlefield to be used in prosecutions of defendants taken on the same battlefield. But, if such an exception is created, it must be kept narrow and restricted to battlefield contexts in order to keep citizen privacy from being eroded through expanded intelligence operations. And it is clearly unacceptable to allow use of evidence gained through torture in any judicial proceeding. There are concerns associated with any form of international police and prosecution cooperation. There is a risk that the human rights standards will sink not just to those of the most lax of the cooperating groups but even lower—clearly this implies the need for special review and control over such


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collaborative activity. This is a particularly significant issue in the context of the increased ability of governments to track citizens through various governmental and private databases and surveillance systems. Currently, national legal systems seem willing to allow full surveillance of foreigners (as in the case of the U.S. Project Echelon, said to involve interception of essentially all international messages); it seems plausible that governments may collaborate to use one another’s surveillance systems to overcome restrictions on tracking their own nationals. This is an important and difficult future issue. These issues are, in large part, so far, U.S. issues, and within the U.S. system they can be dealt with through the courts, provided the courts are willing to step up to the task. There is hope in this direction, in light of Rasul v. Bush, 542 U.S. 466 (2004), in which the Supreme Court held that U.S. courts have jurisdiction to consider challenges to the legality of the detention of the prisoners at Guantanamo. And there has been a judicial tradition of attempting to protect the right to revolution through use of the political offense exception to extradition—a doctrine under which a political offender (for example, a losing rebel) could not be extradited. This has not been an entirely respected body of law, nor have its principles always served its policies, but it is an additional basis for judicial review of international criminal prosecution. European nations have gone further to restrict extradition to nations without adequate criminal law human rights protections. It is important that the U.S. Supreme Court—and its foreign analogues—review the extraterritorial actions of their governments as well as the internal actions of those governments. More broadly, the risks in this area suggest the need for a supplement to existing bills of rights and human rights codes to define requirements that human rights be recognized in international contexts, and to develop definitions of the precise scope of human rights in the various contexts, such as terrorism, in which security concerns and human rights concerns enter into tension. Such restrictions are not popular, particularly in the United States. That nation views itself as being in a mortal combat—its administration been willing to shift the balance away from freedom and law on the one hand toward security and executive flexibility on the other. This may change with a new administration—but a substantial portion of the nation’s population is supportive of the emphasis on security. This reflects the basic fact that the population of any nation is more concerned about its own freedom than about that of citizens

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of other nations—globalization in human rights sentiment has gone only so far, and is, at the moment, not keeping up with globalization of military and criminal prosecution.

2.4.  Implications for international organizations in the international criminal law context Alongside the international criminal process being organized by the United States, international criminal law systems are evolving. One part of this is an international system of cooperation among national governments designed to assist international prosecution of crime, as through extradition and the sharing of evidence. Some of this is obligatory under specific international treaties, such as those on hijacking and terrorism. This is coordinated through Interpol and through bilateral and regional arrangements, most strongly in Europe. Generally, prosecution is ultimately envisioned to be by a specific national government. There are also potential international evidence-collecting systems under the IAEA and its analogues in reaching and controlling WMD, probably generally oriented toward political action but plausibly relevant to criminal prosecution. There is also an emerging system of international criminal courts, such as the International Criminal Court (ICC) and the similar Security Council–created entities designed to provide international prosecution of a number of crimes such as genocide and crimes against humanity, typically committed by especially brutal dictatorships. These courts involve an international prosecutor that indicts defendants and an international court that tries them. Although it has not yet happened, there is no reason to think that this process cannot be applied to terrorism. Moreover, there have now been efforts—such as that in Lebanon in 2005 to create UN-based investigation groups that have responsibilities similar to those of criminal investigators. It is likely that these systems will be strengthened over time. And it is probably better that this system be strengthened than that the United States continue to act unilaterally and extraterritorially to enforce its own vision of criminal law. The international criminal process will require widespread support if it is to be successful; to achieve this support, authority over it will have to be shared, and the scope of the obligations of different nations will need to be clear. This


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will require full international negotiations to establish the details and mechanisms and controls for the stronger cooperation envisioned. With the background of a general consensus reached in such negotiations, the system can gain legitimacy. But it should be recognized that consensus is not always necessary—the Security Council can, as it has with IAEA authority in Iraq before the second Iraq war, impose the system on a few (but politically on only a few) states that do not want to participate, on the grounds that their recalcitrance is a threat to the peace. These new criminal law processes raise the same kind of intrinsic rights concerns as those raised by extraterritorial criminal law enforcement by an individual nation. There are, of course, already some protections. The charters for and authorities given to international criminal courts generally require respect for human rights. The negotiation of future IAEA authorities may involve careful consideration of the procedures governing the collection and use of evidence. But, in the case of the investigative tribunal set up by the United Nations in 2005 after the assassination of Rafiq Hariri in Lebanon, the only human rights provisions were based on Lebanese law, rather than international human rights law. Thus more protection is needed here, especially since the Security Council has already exercised the authority to set up new international criminal processes and tribunals, and may do so again. There is no reason to believe that the political balance within the Council will always ensure that individual rights are protected. And no international court currently has the authority to review IAEA or ICC actions to ensure that human rights are protected—there is no international analogue to the U.S. Supreme Court. (The International Court of Justice [ICJ] plays a very different role, dealing primarily with state-to-state disputes.) Thus it is essential that there be a bill of rights defining the intrinsic rights available to suspects and defendants in their relationship with the newly emerging international criminal prosecution system. This should clearly cover such issues as the protection of privacy in connection with the international entities’ collection of evidence, whether or not there should be warrants, access to lawyers, due process norms in any trials, and recognition of the rights of dissent and freedom of speech. Further, human rights concerns also apply to the less centralized, but still often formal, international cooperation that takes place among national jus-

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tice and police authorities. These cooperative efforts have a tendency to mix intelligence data and supervision with justice data and supervision, and may have a tendency to adopt standards of protecting the defendant that drop below the lowest common denominator of the standards used by the various national governments. Thus it is essential to regularize these procedures through careful definition of the scope of the cooperation, of the activities that may be used, and of the protections that must be granted to suspects. The mechanisms here—perhaps a statement of principles for such cooperation—may be somewhat different from those applicable to national extraterritorial prosecution or international organization prosecution—but the rights to be protected are essentially the same.

2.5.  Diplomatic action to protect rights in other countries Not every government is really that concerned about freedom. What obligations are owed to help the citizens of a nation under such a government? That is, to what extent should the international community—or other nations—intervene to help citizens in a nation where rights are not being respected? This is not just a question of when it is appropriate for a nation like the United States to intervene to “spread democracy.” It is also a logical underpinning of the international human rights system, which was intended, for example, to ensure that a Nazi regime never again come to power. And it is a fundamental issue in contexts like Darfur, where a government is acting against a portion of its population. Thus, rights in one nation are a legitimate subject of concern in other nations. According to the logic of this book, the citizens of all nations have full intrinsic human rights; those rights should be respected and encouraged by other nations and the international community. It is still best, however, for people to obtain their rights by themselves. This is primarily because internal action is more likely than external intervention to have legitimacy within the polity and to assist in building the internal community that is essential to the survival of a polity and to the protection of rights within that polity: the United States remembers its U.S. patriots in the Revolutionary War far more than it does the French assistance that helped that revolution succeed. Democracy cannot be imposed. Moreover, the residents of a nation understand the politics of that


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nation better than does anyone else. And there is still some scope for the principle against foreign intervention—we do not yet have a legitimate enough global order or a legitimate enough set of international principles and procedures governing intervention that we should rely on such intervention except as a last resort. Hence, a first principle is that nations should, in general, be left alone from formal intervention to pursue their freedoms in their own way. This is a human rights version of the medical principle: “First, do no harm.” One area in which there is international legitimacy is the international human rights treaty and enforcement system involving national and international courts and international review mechanisms. In the nations that generally respect human rights—for example, Europe and some of Latin America—the network of treaty standards and special purpose courts provides a mechanism of law reform, application of human rights principles to new situations, and strengthening of national human rights protection institutions. In some cases, as exemplified by electoral reform, the consequences may be quite substantial. In nations less respectful of human rights, this network creates a continuing pressure on the government, serving as a constant reminder of the need to protect human rights, and providing a basis for external intervention. This may work through diplomatic shaming, as in the presentations that national representatives must make to regular review meetings in connection with, for example, the 1969 Convention for the Elimination of All Forms of Racial Discrimination. It may work through providing intellectual ammunition to groups within the nation that may become the seed of resistance. The clearest example is the role played by the Helsinki Accord, noted above, in the breakdown of the European Soviet Empire: the continuous pressure created by the treaty and by the legitimation of international discussion of the Soviet Union’s policies was certainly a contributing factor in the restoration of democracy in much of Eastern Europe. The fact that the intrinsic rights of citizens in one nation are a legitimate concern of other nations also justifies stronger types of diplomatic intervention—that is, diplomatic representations, international assistance in building institutions to protect rights, and conditioning of international assistance on respect for rights. The question of what is wise is quite difficult, however. International civil assistance to support democracy-building—as through election observation, election training, support for civil society, and the like—is

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quite reasonable and sometimes desirable. Support by foreign political parties or labor unions themselves, as to create a global conservative party or global labor union movement, is likewise quite reasonable. This is part of the international freedom of speech discussed in Section 2.2A. For foreign governments to support such efforts may be another question—it is not clear whether such support for national political parties or movements is likely to legitimate or delegitimate those parties in the eyes of citizens. A reasonable beginning principle is that independence of international civil society is essential; foreign government intervention in the political process beyond that which is consented to may be appropriate only in particularly serious cases. And it is also clear that repression should not be supported, as in sale of torture equipment or assistance to the police or military of a repressive state. (There are, of course, fine questions as to the extent to which training should be supplied in situations where there is hope that the behavior of a repressive police force can be improved as a result.) The question of punishment for failure, as in the form of embargos or suspensions of foreign assistance is also extremely difficult. In some cases, regimes are so bad that they should not be aided. But suspension of aid or trade may actually harm the citizens more than it discourages the government. Moreover, suspension of communications or of student access to foreign universities deprives a society of some of the forces that can resist repression. Embargos that affect the flow of ideas fly in the face of an important human freedom and should never be imposed. In the current world of imperfect institutions, diplomatic consistency in enforcing human rights is impossible. It is not a good criticism of human rights policy to say that a nation is inconsistently pushing for human rights reform in another nation and ignoring human rights abuses in a third nation. Such inconsistency is an unavoidable result of the incrementalism and the rarity of constitutional moments noted in Chapter 1—it is always the case that a foreign demarche may appear very wise in one situation and not in another. And it may sometimes be wiser to offer a treaty or foreign assistance to a nation that has not been respecting human rights but is improving a little, rather than to one that has long been somewhat respectful of human rights but is not improving at all. The hardest questions arise when the inconsistency results from factors outside the human rights area. Thus, the United States has ignored serious human


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rights violations in Pakistan, presumably because of the need to maintain the nation as an ally in its conflict with terrorist groups based in Afghanistan. Another obvious example is the campaign mounted during the Kissinger era to weaken leftist governments in Latin America. Should there be any limits on the extent to which realpolitik motivations should be allowed to trump human rights concerns? In an imperfect world there must be a balance—but at some degree of harm, international assistance should be avoided if it would deeply damage human rights in a third nation, even if it provides other benefits. This is a direct application of the principle of double effect. A.  Military intervention to protect rights: the substantive issues In some cases, nations have gone beyond diplomatic intervention or boycotts and embargos to act directly with military force to intervene to protect human rights.6 This may be done by an individual nation or by the United Nations, or in some cases a regional organization acting much like the UN. There are obvious questions as to when this should be done. First, for all the reasons discussed at the beginning of the previous section, nations are best off protecting their own liberties. And if this gives rise to legitimate hesitation at political intervention, it should give rise to even greater hesitation at military intervention that risks enormous harm to life—and often to freedom as well. But, there are exceptions. The most clear are those in which the failure of freedom in a particular nation affects the security of other nations. This pattern, viewing Hitler’s Germany as such a threat, was one of the intellectual sources of the ECHR. And the argument that an apartheid-ridden South Africa was a threat to the peace was the legal basis for UN sanctions against that nation. It is important to be careful with this argument—the argument is certainly more persuasive in the German case than in the South African case; the threat in Germany was based on a political faction that ignored rights and preached expansion through war, while the issues in South Africa were more fundamentally internal. The link between democracy and peacefulness may be intellectually solid but is unlikely, at this point, to be a solid basis for a right to intervene militarily in any but extreme cases. Another group of solid cases is that in which a government is an effective repressor—and its citizens are eager to throw off the yoke but are unable to do

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so because of the overwhelming power of the repressive government. This may be the case in contemporary Zimbabwe, and Germany may have been in this situation under Hitler. In some of these cases, an outside power may conceivably be able to intervene militarily and reorganize the political structure in a way that makes freedom possible. And there are less controversial examples, including the UN intervention in East Timor in 1999, and intervention to prevent genocide or the slaughter of one ethnic group by another, as in Rwanda in 1994 or Kosovo in 1999. But it should be remembered that these arguments may essentially be those of an intervenor rather than of the nations’ citizens. A third group of examples includes those in which a nation has—typically through corruption or descent into warlordism—lost effective government, so that citizens face the costs of anarchism, and the nation may also become a haven for terrorists. This is a pattern in which intervention is today often justified, as in Afghanistan in 2001–2 or in Sierra Leone in 1999. And this is also the pattern of humanitarian interventions supported by the 2001 Axworthy Commission.7 What are the principles appropriate for such interventions? They will be substantially similar whether the intervention is taken unilaterally or through global cooperation. As with the right to revolution, it is hard to avoid turning to just war principles. Again, the situation has to be genuinely bad. Further, there is the need to have a reasonable possibility of success—that is, of successfully installing a democratic government. An intervention may, as in the case of Iraq, turn out much more difficult and costly in life than expected. The case of Iraq offers lessons for international intervention as well as for unilateral intervention. UN humanitarian interventions have often proven less successful than might have been expected. The situation in a nation is often very bad and crying for intervention—but it is not always clear that the intervenors are really able to improve the situation. The evaluation of both the situation and the possibility of success must take into account the fact that outsiders are generally able to do a less effective job than insiders. And it should be remembered that the destroyers of rights may act in the name of protection of rights. Nevertheless, it is probably the case that the international society intervenes less often in these situations than it should.


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2.6.  Issues of participation and control A particularly difficult question is that of authorization for an intervention—such authorization was required in the traditional just war theory. For making decisions on intervention, there is now a formal legitimate authority, the UN Security Council. It is part of the fundamental structure of the United Nations to provide mechanisms to authorize the use of force, as through the Security Council, and to balance the creation of these mechanisms with the imposition of restrictions on the unilateral use of force. There is thus an obvious question whether intervention to protect human rights is ever justifiable without international authorization, save perhaps in certain cases of enormous immediacy. It is also clear, however, that action is sometimes still taken outside the authority of the United Nations, and not just in the case of Iraq. In some circumstances, as exemplified by Bosnia in 1995, there is a strong case for intervention, and the Security Council is deadlocked. In that case, through use of the North Atlantic Treaty Organization (NATO), a different source of legitimacy was sought. The United States is the nation most likely to take such action—and there will be a practical balance between U.S. and UN authorization of action, based on the military and political ability of the United States to act outside the boundaries of UN authorization. Certainly, the U.S. may be less likely to intervene militarily for a period following the experience of the Iraq war, just as it was following the Vietnam war. But it will long intervene in many other economic and political ways. And to the extent that the United States sees importance in maintenance of an imperial regime or global Pax Americana, and sees it as necessary to exercise authority outside the UN framework, it will have to find mechanisms of legitimacy. People from throughout the Roman Empire gloried in their Roman citizenship—the U.S. has not built similar mechanisms to provide those affected by its actions with a sense of stake in those actions. It is unlikely that the world will long allow the United States to rule it without stronger mechanisms to ensure that U.S. actions reflect the concerns of the rest of the world’s citizens. Indeed, dominance without representation may contribute to the growth of terrorism. Thus, if the United States wishes to continue its current course of both military and nonmilitary intervention—and it is hard to see how it can avoid a role

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of significant responsibility in much of the world—it will be important for it to develop mechanisms for providing participation by those affected. Over the long run, this unavoidable problem will be partly resolved by transfer of some responsibilities to international organizations. But it is wise to integrate a response into the domestic governance process as well. The Security Council has also extended its authority to reach a number of humanitarian issues that are beyond the traditional threats to the peace. Whether or not it is acting legitimately within its own constitutional framework in doing so, it certainly brings a benefit in the cases it deals with, for it shows the world that a proposed intervention is supported by a substantial number of people. The need to build a coalition within the Security Council certainly provides a solid test for the ideas of the nation that is leading the move to intervene. This is, of course, the preferred mechanism for authorizing intervention. But there are reasonable sources of concern. One is that the Council is probably exceeding its scope of authority by acting for purely humanitarian purposes. Formal Charter amendment is probably impossible, but some form of statement as to the appropriate scope of humanitarian intervention is desirable. The other source of concern is the broader problem of the membership of the Council, including its relative nonrepresentativeness and its inability to act in some important situations. There is a long-term legitimacy problem for the United Nations as well as for the United States. Statements of law alone are unlikely to overcome the large forces at stake in the definition of authorization procedures for various forms of intervention. For some time at least, these issues can be handled only by informal understandings and careful diplomacy. But there are more legal or quasi-constitutional approaches that can help over the midterm, including principles for both unilateral and multilateral intervention, stating the circumstances in which intervention is likely to be wise and perhaps renouncing some forms of intervention. Even serious thinking about such circumstances would be better than the traditional and false assumption that intervention is never appropriate. Another possibility is to adopt procedural commitments to talk and discuss issues in the Security Council, perhaps to explain decisions more fully, and perhaps to consult at least with the General Assembly and perhaps outside the existing international bodies—these could be steps toward creating the kinds of responsibility that will be essential to protect our rights against abuse by


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individual nations or international organizations acting in the name of protecting rights. There is no reason that the Security Council cannot inaugurate a question time or expand its procedures for hearing and questioning particular national representatives. Other UN bodies can similarly hold hearings. Which reforms are politically possible is, of course, unclear—all commentators agree that reform of the Security Council is politically intractable. Yet the tensions are serious, with the world’s leading power disaffected with the organization’s strategic capabilities, and likely to need its legitimacy in the future. If formal reform is possible at all, it is only in a time of crisis—and it is possible that the next several years will bring such a crisis. In the absence of such a crisis, informal reform might help the organization achieve additional effectiveness. Such informal reform would include the traditional agenda of strengthening UN internal military and information capabilities; more important, it would include a greater recognition by the entities’ members of how they must conduct their diplomacy in the UN if the institution is to act as a legitimizer of stronger military intervention in risky situations, and in turn strengthen the political barriers to unwise unilateral action by the United States.

2.7.  Restrictions upon international organizations to ensure that they protect rights and freedoms in their political and humanitarian actions No matter how well the decision to intervene is made, it is important as well to protect rights in the course of the intervention. Indeed, as noted above, there is doubt as to the ability of outsiders to intervene well. Serious intervention in humanitarian situations necessarily means nation-building, playing a role in the political processes that shape a new government, and sometimes taking sides between different warring forces. The traditions of UN peacekeeping call for neutrality among the engaged parties, while the prevention of genocide or the building of a nation requires much more active exercise of force. The military strategy and appropriate rules of engagement for such active intervention are still unclear—and, because nations are understandably more willing to send their sons and daughters to peaceful situations than to combat in other nations, the forces are always understaffed. The global sense of community has not become deep enough that intervention in combat is politically feasible for

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long, except in national self-defense. Nevertheless, this form of intervention has become a central component of the contemporary international process of protecting freedom. There is little disagreement about certain elementary aspects of protecting rights in the course of intervention. Few would disagree that there is need for traditional military discipline to be imposed to deal with concerns about the lamentable treatment of the civilian population by a few in UN intervention forces. Likewise, there is little doubt that UN-supervised elections should measure up to solid standards of fairness. Preparing the equivalents of bills of rights to deal with these issues is relatively easy; it is enforcement that is difficult—although there is much experience to build upon in most of these circumstances. The issues that are more difficult are those involved in actually building a democracy. This is a genuinely difficult task, as seen by the many failures of democratic governments emerging from dictatorships, particularly in divided countries. Any form of freedom requires the growth of internal cultural forces to build respect for the rule of law, and effective democracy requires the evolution of a political space and of political parties as well. Although the United Nations is now reasonably formally committed to human rights, it is not formally committed to democracy, and has no current legal basis for preferring democracy over reasonably benign authoritarianism. Further, even when the UN or another international institution is committed to human rights, the institution is always tempted to overlook violations in order to deal with the realities of a destroyed nation. For example, in a nation recovering from a profound ethnic conflict, where does one draw the line between incendiary speech and free dissent? Moreover, security is often the first step in nation-building. Consider how tempting it is to overlook the human rights failures of a strong leader who offers promise in bringing a nation out of chaos—in fact, it is hard to review cases of nation-building without seeing heavy dependence on the creation and support of strong-man leaders, such as Museveni in Uganda, or Aristide in Haiti—and these leaders may themselves turn out to ignore human rights. For dealing with such situations, it is essential to develop what amounts to a set of principles of democracy—dealing with issues such as free speech, representativeness, the status of women, the status of minorities, and the separation of powers—for example, an operational definition of the rule of law


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and of democracy. This goes beyond intrinsic rights to include political rights and also alternative institutional implementations of those participatory rights. Otherwise intrinsic rights will not survive for long. As will be seen in the next chapter, parallel principles will be necessary for supervision of IMF and World Bank management of nations. It is crucial to develop the principles and to apply them to all forms of official interventions. They must be much more democracy-oriented than the traditional principles of military occupation, because the goal is to develop a new polity that respects human rights, not just to respect an existing polity that lost a war. The United Nations may resist this, because many members of the UN are not democratic, and the principles will be an implicit critique of such members. Moreover, under a traditional interpretation of the Charter, the United Nations is not technically permitted to favor one form of government over another. Clearly, that position is wrong if the rights of individuals are to be taken seriously. So far, this legal problem has been finessed in the intervention context, primarily because the leading powers in the UN—that is, the United States and its allies—are, in spite of some failures, substantially committed to human rights. A future issue is emerging in this area: wise preventive nonmilitary intervention by international organizations. Everyone agrees that it would be better to prevent genocide by providing, say, greater political and economic opportunity to a minority long before the genocide breaks out, rather than to come in with preventive military force at the last minute. There is little such preventive intervention because it is even harder to persuade nations to intervene before a crisis breaks out than after the crisis. Yet there will certainly be moves in such a direction, at least in particular sectors. Arguably, the global human rights regime, especially its components against racial discrimination, is itself a beginning of such intervention. The concepts of the Millennium Development Goals provide material goals that have some influence on international organization action. And international organizations are strongly committed to deal with corruption. The organizations may move further and further toward such intervention—and, as they do, it will be crucial to keep the rights of the citizens of the affected nations in mind, and perhaps to build new mechanisms to ensure that the rights are respected in the legislative process.

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2.8. Conclusions The analysis of this chapter indicates the need for several national and international reforms to ensure the protection of individual rights in the new order, in which national sovereignty is partially breaking down, and to ensure that international organizations have some—but limited—power. The key needs arranged in rough order of priority (based on both need and political feasibility), rather than in the order in which they were discussed in the analysis, include: Strengthening of mechanisms to protect the international freedom of speech and to ensure that the various new media work toward effective openness of currently closed societies. Extension of human rights principles to the international criminal prosecution action of governments, seeking thoughtfully to resolve the tensions between criminal prosecution concerns and intelligence concerns. Development of a set of human rights principles that cover both intrinsic and participatory rights and apply to international organization activity in nation-building, and perhaps in broader contexts as well. Strengthening of mechanisms for foreign citizen views to be considered in the political processes of the United States and other global actors. The diplomatic process and international communications already play such a role; more will be needed. Broadening of national and citizen participation in the decision-making of the United Nations and of other international organizations with security responsibilities that affect the protection of human rights. Finding a way to ensure that human rights concerns are taken into account in Security Council actions establishing criminal prosecution mechanisms or other mechanisms that affect individual rights. This must be done in a way that leaves the rights not dependent on the human rights goodwill of the leadership of the Security Council.

chapter three

Economy and Equality The Financial Stability Forum is a committee of representatives of twelve wealthy nations and of a number of public and private international organizations. It approves standards created by a number of international organizations for various aspects of banking, finance, and corporate governance. In 2007, it was asked to deal with the current volatility of international markets. The standards that it approves in areas such as banking law and financial transparency are, for all practical purposes, mandatory for many nations. Is this arrangement consistent with principles of political representation?

Until the nineteenth century, political theory supported the protection of property rights but did not otherwise emphasize economics and distribution. This did not mean that governments were not concerned about economics, nor viewed themselves as having an obligation to promote the economic good of their own societies. Rather, the way these concerns and obligations were to be met was viewed as a matter of politics rather than as a subject of rights. Beginning with the Industrial Revolution in the late eighteenth century and moving into and through the twentieth century, governments began to play a much greater role in education, research, the shaping of industrial structure and the shaping of labor policy. So also did the range of economic tools available: tax and fiscal policy, monetary policy, trade policy, encouragement and subsidy for particular industries, and direct grants, such as those of social security. The scope of the commitment expanded to include protection of consumers and protection of the environment. This was paralleled by the emergence of concepts of economic and social rights. Such rights were sought in the abortive revolutions of 1848 and remained part of the political dialogue. Political support for these rights, at least in Europe, was soon strengthened by the socialist ideas that emerged in re-

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sponse to the terrible inequalities of the early Industrial Revolution. Socialism, fear of socialism, the desire to alleviate unemployment, and the perceived political benefits of expanding the electorate led to implementation of many forms of moderate governmental actions in support of equality and social concerns. Thus, social security and health care systems evolved, first in Germany under Bismarck in the nineteenth century, then in much of the rest of Europe, and later in the United States during the New Deal of the 1930s. Human rights covering these economic and social issues are now being asserted to seek equity for poorer nations in the global arena, as well as to seek equity for the poor within individual nations. Just as was the case for security and freedom, these economic issues were once manageable on a national level. The international interactions were significant but did not fundamentally restrict the freedom of individual nations to choose their own policies. Today, however, these economic issues are unavoidably internationalized. The ability of individual nations to manage their own economies is significantly restricted, and an important portion of the relevant power has moved from nations to international organizations. The freedom of many (mainly poorer) national governments has been radically circumscribed by the international economy itself and by the power of international organizations. Unlike the United Nations, these economic international organizations have great power. Like the UN, however, they still significantly reflect the power of the United States and a few other leading nations. They have moved well ahead of political control, so much so that an absolutely dominant task in this aspect of the international system is to find ways to restore the links by which citizens can affect policy. The chapter begins with a review of the traditional system and describes the national-level political theory principles relevant to economic and social rights. It next turns to the implications of today’s globalization and to the actions of the powerful international economic organizations that operate in this area, and explains the appropriate changes in political principles needed for the new globalized world. These changes are detailed in four specific contexts: the survivability of the welfare state in today’s world, the control of the institutions designed to assist poorer countries in their economic development, the management of the global environment, and the internationalization of regulation.


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3.1.  The domestic concept of economic and social rights Governments have long been judged on the basis of how well the economy works: consider the concept of the “mandate of heaven” in traditional China, or the need to store grain against famine as based on Joseph’s interpretation of Pharaoh’s dream in the book of Genesis. Early modern political theory, however, did not emphasize the government’s economic role, save to require parliamentary consent to taxation and to ensure the protection of property against arbitrary seizure. Such protection was clear in Madison’s concept of the Constitution, as well as in Locke’s political theory; it would presumably encourage the economy as well as protect the wealthy against the poor. As economies became more complex with the Industrial Revolution, national governments undertook much more substantial programs of encouraging economies, not just with the trade restrictions that were at the heart of French mercantilism and of Hamilton’s “American Plan” but also with financing canals and railroads and telecommunications and with giving monopolies in the form of patents or franchises to encourage new industries. The role of government in supporting universal education emerged in the nineteenth century (taking over a function that had been left to religion in many socie­ ties) and extended to broad university-level access in the twentieth century. The inequities of the Industrial Revolution led to unions and a role for the government in the regulation of labor. Many nations moved to provide broader services to their populations—a safety net against unemployment, assistance in old age, and support of medical services. By the mid-twentieth century, governments undertook to support science and technology. And in the late twentieth century, a growing understanding of risks to consumers and of the harm being done to the environment led to new areas of regulation. Political theory responded. A sense of equality emerged from the U.S. and French revolutions and led to a wide belief that the nobility of earlier times should be assimilated to the population as a whole. Theorists such as Mill explored economic issues as well as more traditional political ones. The United States fought a civil war that arose at least in part over slavery, and that led to constitutional amendments. These amendments emphasized equality between those of different ethnic groups and gave the federal government enormous power to ensure that such equality was achieved at the state level. Still later,

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many nations adopted a principle of equality among men and women. Ethnic equality and protection principles were adopted globally in the post–World War II reaction to the Holocaust. Later on in the twentieth century, theorists such as Rawls explored principles of equality and inequality. But equality was not the only principle. Another tradition, reflecting both socialist principles and efforts to avoid socialism, provided rights for workers against employers, typically including a right to organize unions and a right for those unions to negotiate with employers. Although the details of labor protection diverge in detail among different national governments, there has emerged a small set of core principles, based, for example, on the right to organize and the rejection of unsafe working conditions. Further, there have emerged principles of entitlement to various benefits, such as education, health care, and a safety net for retirement and unemployment. The national variations are enormous, and there is a contemporary movement, particularly associated with the late-twentieth-century conservative movements in the United States and the United Kingdom, to argue that free market principles override certain of these rights or entitlements. Save for that exception, there is a broad understanding that these entitlements are rights. The political theories of the eighteenth century, which dealt with rights against the government (including the right of property), have thus been expanded through the rise of economic, socialist, Marxist, and Christian democratic theories. These new rights have been codified in an International Covenant on Economic and Social Rights, parallel to the International Covenant on Civil and Political Rights.

3.2.  The reality of economic and social rights— law, politics, and participation Many assert that the economic and social rights embodied in the International Covenants are as important as the civil and political rights, and there is an academic debate over the relative priority of the Economic and Social Covenant in comparison with the Civil and Political Rights. For some, developing nations may feel entitled to skimp on protecting civil and political rights in order to facilitate the development process. Or developed nations may be viewed as having an obligation to assist developing nations economically, even if these nations are not careful in protecting civil and political rights.


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These economic and social rights are different from the older ones. First, it is difficult to define rational standards for these rights—far more difficult than it is to define standards for the civil and political rights. Thus, the degree of equality demanded in different contexts is subject to debate—for example, equality in treatment before the courts may be required, but not absolute economic equality. In the economic and social context, to what extent are the equality goals satisfied by equality of opportunity, as opposed to equality of result? In these economic arenas, is there a plausible standard short of absolute equality, which is, of course, unrealistic? What are the reasonable minimum standards or targets in areas such as health or education? We are sometimes even unclear how to compare two different situations, finding it impossible to develop consistent principles for comparing different income distributions.1 What affirmative action is required in behalf of groups disadvantaged in the past? What equity obligations are owed to those believed not to have taken advantage of earlier opportunities? What subsidies are wise to achieve the various equity and social goals? These are difficult questions on which reasonable people will disagree, and the answers are contingent on circumstances. Second, the older intrinsic civil and political rights were typically enforceable through definable and predictable judicial action, as by a court protecting defendants’ trial or search rights, or directly prohibiting the government from interfering with freedom of the press or religion. In contrast, the legal enforcement associated with equality is much more restricted. In Europe, for example, the right to equality under the ECHR basically applies only to rights already specified in formal bills of rights, so it is not clear what the equality principle adds to the other rights. Moreover, in no nation does equality extend with substantial force to access to subsidies established by legislation. In the United States, for example, courts generally hold that legislation can discriminate among different groups as long as the discrimination serves a rational purpose, and unless the discrimination is based on suspect categories such as race. Access to a subsidy can thus be made contingent on practicing a particular occupation or living in a certain region, but not on being of a certain race. And, in neither the United States nor Europe is there substantial judicial enforcement of rights like those to education or health. Equality principles may be used to interpret statutes, and educational or health systems may be prohibited from discriminating on certain suspect ground, but there is, at least at the U.S.

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federal level, no rights-based requirement that there be public educational or health systems. The social and equity rights are, in large part, viewed as obligations of the legislature rather than as obligations of the courts; the primary sanction for failure of the legislature to live up to granting the rights is political, at the time of the next election. This means that the actual scope of the equality and welfare principles is determined by politics. Each legislative vote is, in essence, an instance of John Rawls’s sense that the level of inequality to be tolerated should be determined by the society—but, unlike the legislators in the original position in Rawls,2 the legislators in the real world have substantial knowledge as to where each group will be in the new income distribution. Hence, they can not make the same kind of unbiased decision that Rawls relies upon. This is once again a matter of incrementalism! In some cases, the legislators will find ways to support common goods of education or health or research. After all, there often is a common good—all, even the wealthy, are likely to be benefited by educational programs that invest in the health and education of the poor to strengthen the nation’s next generation of human resources. At the same time, it is true that legislative majorities will often vote as described by Buchanan and Tulloch to subsidize the constituents of the specific majority.3 The task of achieving these rights is one of finding the right political coalitions for incremental improvements. The greater the national sense of community and the stronger the voters’ understandings of their interests and their economies, the greater the chance that the legislative outcomes will be favorable to a broad enjoyment of economic and social benefit. The ultimate “real” rights in this context, then, must be defined on the basis of two standards: one going to the result and one going to procedure. There has to be some minimal standard for outcomes—as for equality or for access to education or health care. But it has to be a very minimal standard, for societies (and individuals) differ reasonably on the outcomes and on the feasibility, effectiveness, and wisdom of various governmental efforts to improve the outcomes. There will certainly be differences as to the visions of new programs and to the extent of equality or health or education that should be supported. The standards are not as clear as for the more traditional, judicially enforceable rights. Nevertheless, although it may be hard to define in any but the most extreme cases, there is a minimum permissible substantive standard.


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The other—and generally more important—standard goes to the procedure. These rights are in large part rights to participate in a political process in which the creation of programs favoring equity or the spread of health or education is a possible outcome. The procedural point is crucial—there must be a credible opportunity for all to have political input into defining a vision and making the ultimate balances. And this procedural standard can be defined in a way that has significant political bite—there must be an opportunity to participate in a legislative or electoral process that shapes the distribution of income and of the various social services. The American colonists were politically accurate in their argument against taxation without representation—an argument that was intellectually valid regardless of the wisdom of the actual level of taxation.

3.3.  Delegation, expertise, and restrictions on political control The spread of government into the new areas associated with a complex economy and with environmental and consumer protection concerns has also required recognition that some governmental judgments must be made on a basis of expertise rather than of political compromise. The intellectual demands of managing economies that are increasingly based on science and technology have forced legislatures to deliberately transfer some of their power to expert-based decision-makers. This delegation began with economic regulation, such as that of the Progressive era, and moved to science-based regulation such as that involved in pharmaceutical drug regulation and consumer protection and more recently in environmental regulation. In a few other situations, such as those of maintaining control over the money supply and of assembling packages of negotiated tariff changes, legislatures have also deliberately denied themselves power that they fear they might misuse by preferring short-term advantage to long-term benefit. Inflation would result, for example, if the legislature set the money supply itself using a short time horizon. The result of these developments is to remove certain issues from short-term political control, just as the use of courts removes the individual application of the law and sometimes the interpretation of the Constitution from political control. While the legislatures always retain a formal right to overrule the administra-

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tive experts, and the constitutional language of these administrative principles is usually one of delegation, wise government requires that some issues deserve nonpolitical judgment. This can be seen not only in the creation of expertbased decision bodies but also in the sharp reaction of many to the Bush administration’s efforts to politicize scientific advisory committees. Part of the right of participation is a right to scientific and economic data and judgments that are as accurate as possible. This rise of expert regulation is an unavoidable part of implementing social and economic rights. Because the rise of regulation has transferred power from the legislature to the executive, it has become logically necessary to develop mechanisms to keep the executive from misusing the powers and to ensure the possibility of ultimate legislative oversight. The techniques of doing so include the definition of administrative procedures and their enforcement through judicial review of regulatory agencies, freedom of information requirements, and legislative oversight processes. Although these control techniques were not required as part of traditional political or constitutional theory, they are now effectively and necessarily components of such a theory.

3.4.  Changes with globalization A.  The developed world The economically advanced nations were relatively free to follow their own patterns in essentially all economic and social contexts until late in the twentieth century. Some versions of the international monetary system, such as the pre-Depression gold standard, placed economic adjustment obligations on nations and forced them to retrench should domestic inflation make their products uncompetitive. But these constraints were quite limited—and nations could generally choose their economic systems with relative freedom. Thus Sweden could take a socialist pattern, and the United States a much more conservative pattern. The United Kingdom could adopt a socialist pattern shortly after World War II and its antithesis later under Thatcher, without giving rise to international concern. Even more dramatically, the Cold War was based far less on the fact that the Soviet Union followed a form of Marxism domestically than on the imperialistic actions of that nation. This relative independence changed sharply during the last quarter of the


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twentieth century. The most important factor was that the economic scale of industry expanded beyond the level encompassed by the economy of a typical nation. In order to gain the benefit of industrial economies of scale, the developed nations therefore built an international regime to support the freeing of international trade. The early postwar trade regime, the General Agreement on Tariffs and Trade (GATT), became a much more powerful World Trade Organization (WTO) in 1995. It includes the world’s most successful international negotiation process to develop new rules for trade, and also includes an international dispute settlement panel system that amounts to an international court to interpret those rules. For example, under the various WTO agreements, as interpreted by the WTO dispute settlement panels, the United States is prohibited from using a particular export tax break. Similarly, Europe is prohibited from banning beef grown with hormones (the way it is grown in the United States), or more precisely, Europe must provide trade compensation to the United States as recompense for not accepting the beef. In efforts to facilitate the efficiency of the global economy, the scope of the rules has been extended from traditional trade in goods to cover such new areas as services, intellectual property, and product standards. The Financial Stability Forum mentioned in the lead-in to this chapter may develop new rules to govern direct foreign investment and to order the global banking system. For many of these economic areas, the chosen, and sometimes unavoidable, model is the free market. The fundamental idea of opening markets to trade is to create a global market, and, to achieve the efficiencies of such a market, each nation’s market must be free. This applies as well to trade in services—it is probably impossible to align U.S., European, and Japanese banking regulation or transport regulation (or any other similar regulation) on any basis other than one that emphasizes free access and the achievement of a global market. Thus, national (and state and local) regulatory authorities are severely constrained by rule in what they can do. Power is shifted from regulation to the market. The free market provides its own discipline and may undercut the welfare state. For example, the U.S. practice under which employers provide particular health and pension benefits to their employees weakens the global competitiveness of U.S. producers, for some foreign employers are not subject to such a requirement. If these benefits were provided through taxation instead, there

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might be a different competitive problem of making the country a more expensive and less favorable place to locate business. Freedom of trade brings many benefits, and competitive markets provide great and beneficial pressure to provide efficiencies. But they may have made it difficult for employers and national governments to provide the social services traditionally provided. This international economic law is made in a way that gives the executive a much more dominant role than executives have in the national democratic process. It is the executive who shapes the negotiating position for the WTO agreements and, in negotiation with foreign governments, devises the overall package of an international bargain. In some nations, including the United States, the package must be approved by the legislature; in many, not. Even where the legislature must approve an agreement, the executive has the power to manage the agenda and to shape the package, powers that significantly affect what will be legislated. Moreover, it is the executive who participates in the international organizations that help manage monetary arrangements and specific economic sectors such as transportation or telecommunications. Thus the role of the legislature—which provides the basis for participation in achieving economic and social rights—is minimized. This shift of economic power to the international level is far greater in Europe, because European nations have transferred so much power to the European Union. The expansion of optimal scales of production was one of the primary factors underlying the creation of the European Union—there was no way for European industry to compete globally without a home market large enough that it could gain the kinds of economies of scale available to U.S. firms. This led to regional integration of labor and capital markets, and ultimately to the replacement of national currencies by the Euro. As a condition of membership in the Euro (and one that is unavoidable if the Euro is to be a sound currency), the nations must also honor various commitments vis-à-vis their national budgetary deficit. These transfers of power have important constitutional implications. The details of the principles of integration are set in the Council of the European Union (EU)—that is, by international negotiations among executives, with detailed texts developed within the EU Commission. Again, power is taken away from national parliaments and transferred to national executives and to the EU. Although the European Union has now evolved an international parlia-


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ment, the legislation is still shaped primarily by negotiations among national executives. It has even been suggested that national politicians transfer issues to the European level in order to avoid political difficulties in resolving the issues in the national constitutional system. In Europe, the term that has emerged to describe this transfer of power is “democracy deficit,” reflecting the facts that executives can make law by negotiations with other executives, often without significant legislative check, and that the details are worked out by an international bureaucracy that is not subject to any form of electoral control. But the same problem is present globally—WTO and international environmental agreements are made by executives, and the details are worked out by dispute settlement panels in the first case and by international committees or bureaucracies in the second. Certainly, the national executives are generally subject to election, and, depending on the particular nation’s constitutional system, may have to consult their legislatures before enacting an international agreement. And rarely will an executive negotiate an international agreement without domestic political consultations. But in the current regional and global context, executives negotiate an agreement that legislatures must usually, at the most, take or leave. The legislatures’ chance to make adjustments is limited, as is their more important power to control the agenda. And the agenda will reflect that of current ruling parties, rather than entire nations. It must be emphasized that there are important countervailing benefits in all these cases—by importing lower-cost products, for example, consumers gain and export markets are increased. For a nation to build barriers to imports would simply increase consumer costs and, if done on a broad scale, would increase the effective cost of its products in export markets. Free trade theory works and has greatly benefited the world over the last half-century. But the price of this efficiency is that nations may now be less free to adopt policies that attempt to improve national economic distribution. This gives rise to political costs that may ultimately be unbearable without changes in the system. On the left, these political costs are seen in the frustrations felt by the critics of globalization and of the WTO, critics who feel that they are disenfranchised, both by the underlying economic trends and by their inability to reach the institutions that are making the decisions. On the right, similar frustrations can be seen in those who criticize international environmental policy, on the grounds that the

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economy would be harmed by the changes that would be required by agreements responding to global environmental concerns. B.  The developing world For developing nations, the contemporary loss of domestic decision-making power is far greater than that for developed nations. Developing nations are facing all the losses of sovereignty implicit in the changes described above in the developed world. Further, for even the most successful developing nations, the loss of political control is intensified by heavy dependence on foreign investment as a source of capital and technology. This dependence means that the nations must maintain an investment climate appealing to multinational corporations. Much of what is needed to maintain such an investment climate is absolutely healthy and benefits all in society—for example, stability in government, rule of law, and avoidance of corruption. But some is more debatable. If a nation encourages strong labor unions, maintains a high minimum wage, or keeps its taxes high in order to provide for health and education, it is building a barrier to foreign investment, because it is in competition with others to be a favorable place for investment. Some recent international rules also close off traditional mechanisms of economic development. Thus the free trade principles of the WTO make it generally impossible to use the kind of infant industry tariff protection that Alexander Hamilton prescribed for the United States, and the intellectual property rules of TRIPS (the Trade-Related Aspects of Intellectual Property Rights component of the Uruguay Round) make it generally impossible to develop by imitation, as did the U.S. in the early nineteenth century and Japan after World War II. These and the other WTO rules are politically significant—it is clear, for example, that, as an internal political matter, the Mexican leaders who brought the nation into GATT (the predecessor of the WTO) in 1986 did so precisely in order to make their generally conservative policy changes effectively irrevocable. Nations such as Korea and Thailand that have had to turn to the International Monetary Fund (IMF) for economic relief have faced further restrictions, because the IMF (sometimes under pressure from the United States, which holds great power in the organization) requires them to live up to specific conditions in order to obtain financial relief. Such conditionality, now applied by


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both the World Bank and the IMF, goes back to the recycling of petrodollars during the 1970s and the debt crises of the 1980s. The conditions imposed have generally been those of the “Washington Consensus,” although there is some current move away from these principles. The Washington Consensus is an economically conservative orthodoxy that reflects faith in the operations of markets. It derives in large part from the political success of conservative economic regimes in the United States and the United Kingdom during the 1980s, as well as from a later reaction to the total collapse of the Soviet centrally planned economic system. Under the consensus, the subsidies implicit in artificial prices (for example, those that might be set high for the sake of agriculture or low for the sake of the consumer) are to be eliminated. Public sector industries are, in general, to be privatized. Free enterprise is preferred to government regulation. Regulation of industries is to be reduced in favor of protecting the consumer through competition. The Washington Consensus reflects a broader movement, favored by conservative regimes in the United States and United Kingdom, to integrate a right to free enterprise into the rights canon, as a concept parallel to and arguably implied in the concept of democracy. Certainly, in significant part, this effort was a response to the failures of socialism in nations such as the Soviet Union; there is no question that it was also a justification for a policy that favored the economic supporters of the governments of the U.S. and the UK. But it was arguably more—a recognition of the fact that economic goals, now clearly a responsibility of governments, could often best be achieved by giving individual businesses a philosophical basis to contest overly intrusive governmental regulation. This is obviously a contested point as of the early twenty-first century, and the movement often failed to recognize the ways in which business must be controlled for the common good and the possibility that direct governmental control of business may sometimes be more practical than regulation of a privatized business. Certain conditions are essential to meet the very reasonable concern of the international lending institutions that the loans they make be effective and be repaid—for example, that the nation bring its governmental budget into balance and that it move to a realistic exchange rate. But the imposed conditions sometimes go much further, and are designed not only to ensure that the loan be repaid but also to enable private lenders and investors (including foreign investors and lenders) to be more comfortable operating within the nation.

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In the case of Korea and Thailand, for example, the conditions imposed after the 1997 Asian financial crisis included quite reasonable requirements that the banking systems be made more transparent, reasonable because the lack of such transparency was one of the factors underlying the crisis. But the requirements also included much less clearly reasonable requirements that the financial systems be privatized and opened to foreign investment, which of course led to the shrinking of the national sector and to greater opportunities for foreign investors. The foreign investor may bring good technology and management practices, but the competition with the local investor may, under these circumstances, be unfair. Certainly, there has long been international economic compulsion, but today’s IMF and World Bank regulations leave many developing nations with only nominal economic sovereignty. (Note that there are, in contrast, no strong international mechanisms to compel sound economic structuring of U.S. or European agriculture.) In the really poor nations and weak states, as well as in those in which the international community is attempting to bring a government to a failed state, the political impacts are unavoidably much stronger. The process of attempting to help a very poor nation risks undercutting the nation’s own internal processes of political legitimacy. For example, in some nations, as much as 50 percent of the national budget derives from international donors. This may be impossible to avoid, but, in such a situation, a local politician must concentrate on courting international organization officials rather than voters. This hurts democracy. Sometimes, the United Nations, the international financial institutions, and the major lenders effectively choose a strong leader who is viewed as able to bring order out of chaos, and then showers that leader with the funds to improve the society. It is the donor community that is the real elector. And sometimes the donor community uses its power to support the citizens of the nations and to restrict authoritarian governments. It is certainly essential to help these nations and not clear how to help them well—but the current pattern encourages a permanent political adolescence (if not a childhood). Clearly, all these factors impose important policy limitations on the national governments of developing nations and effectively transfer power from the national institutions to the international organizations, investors, and lenders, as well as to the governments that have power in the international organizations. In this sense, the limitations are like those on developed-world governments,


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albeit much more extreme. Economic options are limited for any nation that has not been developing rapidly and that needs to look to investors for further development. Where the international financial institutions are involved, key economic policy decisions are made in discussions between national officials and international organization or donor officials, rather than in interactions between national officials and national legislatures. The impacts on the democratic process and on individual rights are clear. The economics of globalization have led to institutions and processes that take power away from the political institutions of developing nations. They have also weakened the opportunity for equity. The reality of the Washington Consensus and of conditionality—as well as of the pursuit of foreign direct investment—is that nations avoid an emphasis on equity, because taxes and safety nets may reduce incentives for investors. The poor in the developing world are facing not only the costs of poverty but also the costs of international pressures to reduce that poverty in ways that may disfavor national equity. But this effect must be balanced against the beneficial effects of donor policies encouraging democracy, supporting judicial systems, and protecting rights and civil society. The developing nations have little say in defining this international regime. In two of the key organizations, the IMF and the World Bank, a small group of developed nations controls the board. In the WTO, the importance of the U.S. and European markets gives these nations great power, in contrast to the developing nations. In the annual meetings of the G-7, seven leading donor nations set much of the agenda for these organizations, in a way that provides only limited opportunity for input from developing nations. Moreover, many developing nations, particularly the poorest, lack the institutional and diplomatic resources necessary to participate in the negotiations that shape the complex new international order. While the United States will send a team of delegates to a conference, some nations will be able to send only an official from a local embassy. Hence these nations are under a political regime in which their citizens have only limited opportunity for participation. Not surprisingly, counterforces are emerging. The strongest of these counterforces derives from China, which has been using its export-derived wealth to build relationships with nations that provide it a source of resources and potentially of markets, particularly in Africa. In general, in these contexts, it has been willing to make loans or grants to governments without the kinds of con-

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ditions imposed by the international development community. And the populism emerging in several Latin American nations, particularly Venezuela, offers another example, supported by new regional grants and loans. The donor-oriented development community sees this as undercutting the goals it hopes to achieve. This new development strengthens the sovereignty of the nations that receive such funds and protects such nations from certain of the policies of the donor-oriented community; at the same time, it risks undercutting those conditions that are oriented toward protecting the rights of the citizens of the recipient nation against the governments of those nations.

3.5.  The scope of the international equity rights Globalization and international organizations create two related but different equity issues. One is internal equity. For the richer nations this is exemplified by the international pressures on the welfare state, and for the poorer nations by the market ideology of the Washington Consensus. The other is international equity, dealing with the imbalance between those who live in wealthy nations and those who live in poor nations. The existing equity-oriented principles and treaties were designed primarily to deal with domestic equity issues. The U.S. equal protection principle is an obvious example, as is the 1966 International Covenant on Economic and Social Rights, which was initially addressed to national governments dealing with their internal concerns. But, especially in international academic and nongovernmental organization (NGO) debates, the extension of these principles and particularly of the Covenant has been proposed so that the principles apply as well to the relations between nations or between peoples. Typically, this is viewed as an obligation of the developed world to assist the developing world. This is exemplified by efforts to define and strengthen this obligation of the developed world as through defining specific assistance target levels as a percentage of GDP, or through the Millennium Development Goals of specific development targets, set by the General Assembly in 2005. At the ethical or political philosophy level, the leap from national equity— already an extremely difficult concept—to international equity is fraught with both logical and political hazards. Although this book takes an unequivocal position on the point, there are those who argue that it is nations whose posi-


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tion is to be balanced rather than people whose position is to be balanced. The definition of a standard is even more difficult internationally than it is domestically. At the international level, there are no relevant decision-makers to interpret a concept of equality or of right to health or education. Most important, as noted above, the equity rights are gained primarily through participation in a political assembly. Yet there is no international legislature to provide a basis for such participation. And the political motivations associated with a community—for example, to ensure that members of a society are educated for the sake of the future civic strength or economic capability of the society—are much weaker at the international level. The poor of a rich nation are in competition with the citizens of a poorer nation as possible beneficiaries of tax dollars to be spent for local or global health care or education—and may even be in competition with them for jobs. It is clear as a matter of fundamental political theory that these equality, economic, and social rights are rights of individuals, not of nations. In political theory, nations have political validity primarily as ways to help individuals achieve their goals. (There may be some roles in benefiting the community, but certainly the individual and the community are prior to the state.) In this sense, the economic and social rights are like civil and political rights. To the extent that there is an international obligation to help the poor, the obligation is to the people of the poorer nations, not to the government of those nations. It must, of course, be implemented in a way that takes into account the judgments and interests of the citizens and the (often weak) political process of those nations. It follows also that third nations and the international system may intervene in a nation to protect equity in that nation, just as they can to protect traditional freedoms, subject, of course, to all the limits on intervention discussed in the previous chapter. Second, the international obligations of the members of wealthy societies to poor societies are real. Whatever my obligations to the poor of my own nation, I also have obligations to the poor of other nations—for it is only an accident of political organization that they are in other nations. At the same time, these transnational obligations are attenuated, as compared with the parallel internal obligations. There is less sense of community, and such a sense of community may underlie the obligation, and certainly underlies the political feasibility, of responding. Scheffler, for example, gives ethical arguments as to why a com-

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munity might reasonably favor its own members over others.4 As a result, the substantive scope of the international right is even more vaguely defined than is that of the domestic right. It is certainly less than full equality of results or of opportunity. It might involve a comparison between what is done for the poorest in the developed world and the poorest in the developing world. It might involve a critique of the equity trends associated with current international structures.5 It might involve a Rawls-style approach to consider optimum levels of inequality at the global level as well as at the national level, although Rawls has deliberately rejected extension of his concept to the global level, 6 and it has been very difficult to turn his original position insight into a contribution to actual decision-making. It might involve specific standards such as those defined in the Millennium Development Goals (although one may doubt the political basis for the way in which these goals were defined). A further conclusion derives from the fact that these rights are necessarily defined in a political process. At the international level, the polity is, at best, inchoate, and the task is to find a way to strengthen that polity to allow reform of international (and perhaps domestic) systems to achieve greater equity. The “real” issues for international equity are thus to find ways to enhance the ability of the international community to move toward greater international equity. Because there is only a weak sense of community at this point, the reform to make equity stronger must be incremental, and a task for thoughtful political leadership. The citizens of the world have a right to a participatory process in which international equity can be achieved. Ultimately, this must logically be a constitutional process providing for actual representation. But that is currently unrealistic, and it is far from clear how movement toward such a process can best be begun—as through greater citizen participation in international negotiations, through new forms of parliamentary procedure or cooperation, through strengthening of international civil society, or even simply through greater transparency as to the workings of both national governments and international organizations.

3.6.  The status of equality Does the actual level of inequality exceed the ill-defined standards described above? There is extremely little accurate data on the level of inequality. At the


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national level, reasonably good information is available in only a few cases. In the United States, there is quite solid data that the level of economic income inequality decreased from the time of the Great Depression to the 1970s, and has been increasing almost continuously ever since.7 The reasons are not entirely clear. One possibility is the more conservative political trend that has arisen in the nation during this period. Another is changes in household composition. There is also strong argument that the trend derives from changes in international trade such as those discussed in Section 3.4A. There is evidence of a similar intensification of inequality in several (but not all) European nations during the last third of the twentieth century, although in no case is the increase as sharp as in the United States.8 And, although the evidence is much weaker, particularly as to trends, it seems clear that there are extremely high levels of inequality in a number of developing and transition nations such as Brazil, China, India, Mexico, and Russia. Evaluating the global pattern is still more difficult. It is important to recognize that, over the last half-century, the economies of many developing nations have been growing at a rate greater than those of the developed nations. Moreover, China has begun to grow extremely rapidly and India may follow, both representing enormous shares of the world’s population. However, there are also many nations left behind, particularly in Africa. And there are many individuals left behind—the total number of hyperpoor within China and India is probably more than in Africa. The conclusions of one of the most credible analysts show that between 1970 and 1999, the income level of the median group in the world doubled or tripled; this level in 1999 was on the order of $1,000 to $1,500 per annum. Another group of persons, totaling no more than a third of the number of median income people, were making $10,000 to $15,000. For this group, income has been rising, but the relative size of this group has been falling over the same period. The number of very poor has also been falling, and the number of very wealthy increasing.9 But the numbers are disputed, and much depends on how one evaluates what is happening in China, where it seems clear that internal inequality is increasing and that data are poor. It is important therefore to step back from the frightening generalizations that are sometimes made about the problems of poverty (and health and education) in the world. One quickly concludes first that inequality within nations (Brazil, China, and India, and perhaps a number of others) is probably gener-

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ally a more serious issue than is inequality between nations.10 This inequality within nations may be increasing in some (including in many developing regions)—this growth suggests that social and equitable rights are being inadequately respected at the domestic level. Second, one finds a serious special issue for sub-Saharan Africa (and a few other nations, such as Haiti and Myanmar), where development has been negative rather than positive over much of the last half-century. There is obviously an international equity issue here. The emphasis on domestic inequality and on Africa suggests that, as argued by many critics of international assistance, the problems derive significantly from the poor quality of the local governments. This is probably true—and is a strong argument for rights of transparency and local participation, but it is important to go on to recognize that there are sometimes international factors contributing to that poor quality. And for many (if not most) of the world’s population, there is obviously no transparency of the decisions or opportunity to participate in the decisions that affect their economic future. Neither the substantive nor the procedural requirements of international justice have been met.

3.7.  The achievement of the global right to equity and opportunity—in general Since inequality at the national level is probably as significant as that at the international level, it is useful to begin by exploring the conditions under which equity can most readily be improved at the national level. Precisely because these are issues of political processes within each nation, and because the processes are so contingent on specific factors in each nation, it is hard to generalize. Moreover, it is hard to identify the causes of equality or inequality—as noted above, the reasons for the increase in inequality in the United States over the last thirty-five years are not entirely clear. First, and most important, equity, domestic or global (and perhaps also the long-term perspective that encourages investment in areas like education and infrastructure), is most readily fostered in situations in which there is a strong sense of community. Consider the sense of community gratitude reflected in the desire to reward soldiers after a war that has public support—the GI Bill in the United States was a fundamentally egalitarian measure, as were certain of the subsidies for housing for veterans. And the sense of concern for


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the community implicit in the Confucian ethic is probably one of the reasons that Taiwan has emphasized education for all, leading both to equality and to economic growth. Similarly, the sense of community in Japan and in the Scandinavian nations is almost certainly part of the reason for the relatively equal income distribution in those nations. A less positive example is posed by recent California history, where the state was once willing to support public works and a broad and once successful educational program but has become much less supportive. One reason why this may have changed is that willingness to support the community declined as ethnic minorities grew and the white citizens, who voted in higher proportions, no longer felt that the benefit of their taxes was going to their own community. Second, the dichotomy between economic growth and movement toward equity is probably overstated. Admittedly, there is currently a political tension between conservative support for economic growth and liberal support for economic equity. And there is some basis for this. The seizure of economic opportunity is often accompanied by growing inequity—and the opportunity to gain a larger share for oneself is a strong motivator for business and individuals to invest and improve. Moreover, in at least some eras, those with economic power will generally have stronger political power and will organize the economy to seek their own ends. This is strongly reflected in today’s United States and Russia, and, more broadly, in the Washington Consensus. There may also be a natural human oscillation—to spend a generation seeking growth with little concern for equity (typically in response to failures in governments’ efforts at equity) and then to spend a comparable period de-emphasizing growth and emphasizing equity (typically in response to failures in the pursuit of growth). Thus one could view the Washington Consensus as a response to the failures of central planning and of communism, and the shifts to the left in 2005-era Latin American elections may reflect a counter-response to the failures of the Washington Consensus. In U.S. history one could easily view the growth periods of the 1920s and the 1950s as triggering the equity concerns of the Depression and the 1960s—and there are certainly analogous cycles in postwar France and Great Britain. Yet what is interesting is that the actual equality numbers for the United States do not at all reflect these cycles—as noted above, inequality declined from the late 1920s until the early 1970s and has increased ever since. This

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is hard to relate to political trends. It may even be that growth and equality are positively correlated. Certain kinds of equitable action—for example, for universal education or universal health—clearly contribute to growth. This is part of what has happened in Taiwan, and perhaps in a number of other Asian nations as well. Further, it is easier to support education or create subsidies beneficial to the poor when times are good—the sharing of a growing pie is politically easier and done more generously than is the sharing of a static pie. The same is true in labor bargaining. Governments oriented toward growth based on favoring business will disfavor labor. But, in general, the gains of labor movements have been greater in periods of boom than in periods of depression. In the boom times, labor is in shortage and has more power; in the depression times, employers will be more resistant, strike-breakers will be more available, and strikes will be more likely to fail. Although there are counterexamples, such as the institution of Social Security during the New Deal in the United States at a time when the economy was in terrible shape, it seems generally that equality is most readily fostered in economically good times. Third, at least in the short run, equity only rarely seems to be achieved through sharp confrontation between rich and poor, or by policies focused heavily on that conflict. There are rare exceptions in the deep revolutions in France in 1789, in Russia in 1917, and in Cuba in 1959—but none of these revolutions ultimately succeeded in achieving equality for long. Neither the British revolution of the seventeenth century nor the U.S. Progressive movement of the early twentieth century succeeded in achieving significant improvement of the lot of the poorer in society, even though both achieved fundamental constitutional change and both were based heavily on reaction against the insider power of the wealthy. Nor did the European middle-class- and intellectual-based revolutions of 1848 succeed in benefiting the disadvantaged. In all three cases, instead, moves to equity came later. And the key and successful programs were not programs of welfare focused specifically on the poor, but programs of general benefit focused on all—social security, health care, universal education and so forth. Perhaps the fear of conflict between rich and poor has led to moves—at more peaceful times—to provide equity as a way of heading off conflict. This may be the best explanation for the success of labor and social democratic movements in European politics during the early parts of the twentieth century. But the benefit typically comes after the


Defining Freedoms

confrontation; in the face of conflict, the middle classes are typically fearful of the poorer classes. Fourth, equity comes most effectively when there is broad participation in decision-making. The ultimate benefits from the British revolution, the Progressive era, and the 1848 revolutions were in the thrust they gave to democratic institutions, which led later to moves toward equality and long-term investment of types that would benefit the entire society. One of the real problems in resource-rich nations—Nigeria or Venezuela, for example—is that the government can obtain support from the natural resource rather than from taxation. Hence it is not effectively responsible to the people. Corruption is an enemy of equity, and transparency is an enemy of corruption. The general lesson is that national equity is most typically achieved through participatory institutions and where there is a strong sense of community. It will probably occur through small steps, built on as broad a set of motivations as possible, and is enacted most readily during boom times. It is ideal when the process can be politically self-sustaining, as through building a constituency—such as that for Social Security in the United States. Programs focused specifically on redistribution to the poorest, such as welfare, are unlikely to be politically sustainable for as long as programs that provide a broadly shared benefit, such as universal education. Corruption and lack of transparency are likely to slow both growth and movement toward equity. These points have strong implications for efforts to respond to domestic globalization-derived inequality in the developed world, and for the policies beneficial for the more unequal developing nations. They do as well for international organizations and donors seeking to combine growth and equity goals in their programs affecting nations such as China and India. For many nations, it is domestic policies that are needed to reduce inequality (and failure of domestic policy—especially through corruption or lack of transparency—is probably the most important source of economic inequality). Almost certainly, parallel judgments apply at the international level, and suggest the limitations of foreign assistance in dealing with such genuinely international poverty issues as those of sub-Saharan Africa. Statements of appropriate levels of foreign assistance and definition of specific development goals—such as the Millennium Development Goals—are unlikely to gain great developing-world taxpayer support, although they may provide some value in

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prioritizing international development activity. And the traditional political supports for foreign assistance are gone—it is no longer possible to support foreign assistance on the basis of Cold War competition or fear of socialism. The major remaining political motivation of the traditional type is fear of a developing world uprising, in which the developing world’s weapons would be those of terrorism. There is certainly likely to be political support for programs to help minimize the resentments that lead to terrorism. Where the global community acts out of desperation, as during the Marshall Plan or the current effort to fund Iraqi reconstruction, it is a desperation based more on a fear of chaos than on a fear that the poor will revolt. Neither motivations based on altruism nor motivations based on fear are currently likely to be successful in sustaining equity-oriented policies. What are most likely to be generally politically feasible are self-sustaining steps undertaken in areas in which there is an underlying sense of community, and started at a time when economies are relatively good. Examples are programs for international university education or for global disease eradication. The greater the participation of both donor and donee nation parliaments, the better; and the more that can be done to strengthen and institutionalize a sense of global community, the better. At least in the near future, the ways to create the necessary political representation will be very context dependent. A.  Example 1—minimum labor and welfare standards and the need for global participatory institutions This section and the next three explore four key situations posing international equity concerns. Because economic and social rights must be understood as rights to participate in a polity that can negotiate politically achievable packages, the discussion is necessarily sensitive to the political context. Moreover, some of the discussion in this section will shade into the discussion of the latter half of this book, which will seek to define international institutional changes to help achieve these rights. The four examples have been chosen to raise different important institutional issues. The first example is that of equity within the developed world.11 As noted above, globalization, as exemplified by the move to free trade, may have distributional consequences within nations. The example that is politically most important in the United States is the flow of jobs to low-wage societies that


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are able to produce products more cheaply and to export them to the United States at a price that undercuts any U.S. firm. This restricts the ability of the United States to conduct a minimum wage policy, as well as the ability of labor unions to negotiate for higher prices. Similarly, European nations may be finding that their broader welfare systems are also effectively restricted. By taxing more heavily to support a health or retirement system, a nation may make its exports less competitive. These issues are reflected in tensions over the WTO, and in concerns about the “democracy deficit” in Europe. There is debate as to the magnitude of these effects of globalization. The purpose of this chapter, however, is not to resolve the economic debate, but rather to envision plausible policy responses and then to define the consequent new international institutional and political theory issues. As is typical of almost all issues discussed in this book, the policy responses involve both the national level and the international level. At the national level, it is possible, for example, to improve the standard of education and to assist displaced workers to enable them to obtain jobs in other sectors. Enacting such responses is a traditional function of national political systems. But, as noted above, the current organization of the international economic system may make it difficult for some nations to respond to needs for national equity; is there a way that national governments can redefine the terms of the various international economic agreements to give themselves the benefits of free trade and more freedom to work for domestic equity? Although it is not at all clear what is best, there certainly are options. There might be a stronger global minimum standard to protect the freedom to organize labor unions, or there might be ways to encourage the strengthening of international ties among unions, so that international competition will not make it impossible for labor to maintain its bargaining position. There might be a new form of trade remedy to protect against low-cost imports based on unfair treatment of workers. To protect global equity, such a remedy would certainly need to respect the opportunity for developing nations to enter the global economy at wages that would be low by global standards, but reasonable in the local context. In other dimensions, it might be wise to define a global standard of education and health care services, requiring all nations to achieve particular minimum goals or to commit particular levels of resources to these tasks (even at the cost of military budgets!). This would weaken the extent to

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which competition to attract foreign investment could drive down the level of government services. Special taxation rules might be defined to reduce the appeal of tax havens that permit low-cost manufacture based on low standards of public service. The U.S. domestic precedent for such arrangements is the federal child labor law, enacted at the federal level because no state could afford to enact such a law on its own out of fear that employment would move to other states. As a suggestion of further possibilities, the European Union regulations include many Europe-wide rules designed to set minimum standards for human welfare and ensure fair competition between the different member states. Global proposals in any such direction have, so far, run afoul of three problems. One is that they are strongly disfavored by developing nations. This concern is partly a fear that such international arrangements would be used to discriminate against the exports of low-income nations. This problem can, at least in theory, be resolved by careful design of the details of a package in a way that takes developing-nation concerns into account. There might, for example, be graduation of the standards among nations of different per capita income levels, to recognize the concerns of the poorest nations that are unable to meet the standards and to ensure that higher standards are respected as nations advance economically. There is also sometimes developing-nation opposition based on leaders’ concerns that steps to encourage economic development might upset corruption-based benefits—this is especially the case where there are national export management systems, as is often the case for raw materials. Management of this kind of problem may require greater emphasis on transparency, as well as careful balancing of the interests of developed and developing nations. This is an area in which the imperfection of many developing-nation democracies is harmful to the entire world as well as to the citizens of the nations involved. The second problem is political. In general the developed-world constituency favoring more open trade has been a global business constituency, and the equity interest has been reflected by labor and antiglobalization constituencies who may not want free trade at all. And it has sometimes been difficult for strong free-trade constituencies to emerge in the developing world. Nevertheless, it seems possible to define balances that would provide some return to each constituency in order to obtain trade that brings some of the benefits of free trade and, at the same time, brings maintenance of labor and safety-net standards in the developed world and their rise in the developing world.


Defining Freedoms

But a key problem—and the one that arguably reaches the level of deprivation of a right—is that there is currently no appropriate international forum for dealing with these issues. Section 3.5, above, states in essence that there is a human right to participation in fora that enable compromises that advance equity. The needed political compromises are not simply between nation and nation, nor between different interest groups in a single nation, but rather among a variety of interest groups in a variety of different nations. The tasks are beyond the ken of individual national legislatures. The WTO, which is the obvious place for negotiating such arrangements, was once able to take into account the diverging interests within any one nation, but in a very indirect and ineffective way. The United States is better in this respect than its European negotiation partners, for unlike the parliaments of many European nations, Congress not only provides instructions to the U.S. negotiators but also has a veto over the negotiated package. In the past, when trade negotiations involved only developed nations, global business constituencies and international negotiators, together with labor and environmental interests in each nation, were able to bring the key interests into balance. Again, within the developed world, the regular G-7/G-8 summit meetings are an obvious forum for serious bargains of the type described here (even though they have often been structured to emphasize short-term public relations goals of national leaders rather than to provide a forum for thoughtful bargaining). But these mechanisms are not so effective in building coalitions and establishing balances that affect the citizens of developing nations. Nor are there other appropriate institutions. The United Nations is not helpful, for UN delegates are generally responsive to foreign ministries rather than to ministries that understand the various national economic interest groups whose interests are at stake. And, although there are various proposals for expansion of the G-7/G-8, this institution is normally limited to developed nations—yet the needed bargains, especially those designed to help with equity in developed nations, will require participation of developing-nation interest groups as well. Within a reasonable planning period—that is, a generation—it will be essential to design significantly stronger mechanisms for conducting international negotiations to provide more effective participation for many more of the interests affected by these issues. It will probably be essential to have some form of international legislative/parliamentary review of the negotiation pro-

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cess, probably through an international assembly composed of national parliamentarians. The feasibility of such reform is obviously affected by the very limited existing global sense of community. Even though such institutions must be viewed as a long-term goal, there may be incremental steps that can improve the system and strengthen the opportunity for stronger reform. For example, there might be stronger mechanisms of legislative participation in international trade negotiations. And there can be stronger links between and discussions among legislators in developed and developing nations. Even before the creation of such mechanisms, it is possible to attempt to develop some of the necessary new ideas and balances in the nongovernmental sector. The obvious example is think tanks that could critique and review proposed WTO and other agreements that affect people’s lives so directly, and to define reasonable package proposals in a thoughtful way, based on serious studies of current equity issues. After all, there is a plausible global macroeconomic argument that more rapid development in each nation provides markets to other nations and thus provides a reciprocal economic boost. Such package proposals could demonstrate the feasibility (or not) of balancing the trade and equity interests—and might also provide the political thrust for institutional reform. A related step is to intensify thought about this global macroeconomic interaction by collecting and maintaining relevant global statistical series. There need to be serious analytic efforts on a global level and dissemination of these studies and of data, so that people look to global economic and social trends as well as to national trends. These are expert tasks, as opposed to political tasks, but they can help shape the political agenda of existing institutions including the WTO, the United Nations, and the G-7. Some of this kind of thinking is done in think tanks, and some in institutions like the Organisation for Economic Co-operation and Development (OECD). But much more is needed. What is crucial is the opportunity for the different interest groups to identify ways in which complementary coalitions can be organized in different nations. B.  Example 2—international institutions and economic development The international financial institutions (IFIs), including the World Bank and the IMF, currently provide the primary mechanism of international assistance, and are likely to continue to do so—there is not, at this time, an ad-


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equate sense of global community to develop formalized international redistribution mechanisms such as a “Tobin tax”—that is, a tax on international capital transfers, that would be used for the needs of the poor in the world. Because these institutions shape developing-nation policies, they pose a new category of international constitutional issues, discussed in this section. The institutions’ power over the weaker nations is enormous; the constitutional issue is how that power can be exercised legitimately, in the face of the fundamental and unavoidable tension between the powers of the donors and the freedoms of the recipients. Conditionality is essential if any redistribution program is to be politically sustainable among donor nation tax-payers. And it ensures that funds are used well. Requiring, for example, that nations not receive international subsidies for education if they spend too much on arms makes a great deal of sense, both for the political feasibility of an expanded international subsidy program, and for the effectiveness of any such program. Moreover, where the funds are to be repaid, a lender has a solid interest in ensuring that the economy be managed in such a way that the funds actually can be repaid. And it is often the case that national policies are the reason why nations fail to develop or develop inequitably. In some cases, however, conditionality goes beyond the reasonable. One obvious case is the recent global imposition of the less reasonable parts of the Washington Consensus—for example, very strong privatization requirements. And there may be a tension between the growth-oriented polices favored by the IFIs and the equity-oriented policies favored by domestic critics—albeit this tension is often overemphasized. Even when the principles being used are reasonable, there are costs of conditionality. First, making good on the threat implicit in conditionality means that the benefit of the assistance is lost. A child may be left uneducated in a nation that spends too much on arms. This is an unavoidable problem—if the donor were to back down and supply the funds in spite of the offensive national policy, it would lose bargaining power in future confrontations with arms-happy borrowers. Second, conditionality undercuts the borrowing nation’s political process. In the lending process, as a result of conditionality, key economic decisions are taken in discussions between lenders and a few ministries, and then imposed on the legislature, in a take-it-or-leave-it manner. The normal domestic representative process is effectively bypassed.

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The response to the first cost is to design the conditionality in a way specific to the particular economic purpose, and to ensure that the terms of the conditionality be subject to broad discussion, and ideally some form of participatory review, at least by civil society and donor nation legislatures, but also, to the extent possible, by developing-nation legislatures. For example, the terms of conditionality should be no stronger than needed in light of the global goals being sought and the political imperatives faced in creating the specific program and achieving its benefits. Assistance in control of epidemics, for example, should probably be done without conditionality. In contrast, general-purpose support to a country, as through debt relief, may reasonably impose rather high levels of conditionality. Moreover, in some cases—for example, support to students to go to foreign universities or medical assistance funneled through NGOs—it may be possible to benefit the individual without benefiting that individual’s government. This still infringes on the traditional sovereignty of the nation being assisted. That is not a reason not to do it—the beneficiaries have a right not to be blocked by their government’s unjust policies. But there is an important concern that bypassing a government in this way makes it more difficult for the government to build sustainable institutions. Achieving wise judgments here requires greater openness on the part of the IFIs, and perhaps new kinds of participatory mechanisms involving the world community. The boards of the IFIs are dominated by donors, and generally operate in closed session. This may be understandable operationally, but, as will be seen in a moment, it is unacceptable. And there is no question that the IFIs should have stronger consultative mechanisms to provide broader input into policy formulation. The second cost arises from the tension between the lending process and the recipient’s internal political mechanisms. As a matter of participatory human rights, the people of the nations being assisted need to have greater input into the shaping of their assistance (and usually of their government!). This certainly requires greater IFI openness, and possibly full publicity during much of the negotiating process. Such openness would certainly slow the process, but it seems essential. The most simple—and an essential—next step is to open the relevant meetings of the boards of governors of these institutions. (There is an obvious need to protect the confidentiality of some deliberations, such as IMF discussions relevant to exchange rate changes, but this constitutes only a fraction of the overall discussions.) It is even more important for the IFIs to respect


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the constitutional processes of the nations being helped, as by discussion of reform and budget packages with national legislatures, so that the negotiations involve the people and the constitutional authorities, as well as the domestic executives and the international agencies. For the poorest recipients—and this includes many nations in Africa— there is the much more severe problem of the assistance-dependent state. As noted above, there is now a group of dependent states whose leaders’ policies are dominated by the need to satisfy the requirements of international donors. Subventions, although sometimes necessary, are always destructive of political responsibility. This problem will be intensified if the level of international subvention is increased, as is probably essential for sub-Saharan Africa. The officials of a nation receiving donations necessarily look to the donor—rather than to the citizens—as a source of legitimacy. A further problem is that, in dealing with a state in trouble, the international donor community often finds a strong leader with reasonably sympathetic ideas and sticks with that leader, whether or not the leader respects the rights of the members of the society. If the leader goes too far to deprive citizens of their freedom, the international community may react, but, until then, it will support the strong leader. The symbiosis leads both the international donor community and the donee government away from concern for development of mechanisms for citizen education and responsibility. In the face of bad government, the donors sometimes funnel aid through NGOs rather than through national governments. This arguably intensifies the constitutional problem by taking the issue completely out of the local government’s hands, but it may also provide citizens a benefit to which they have a right even over the opposition of the government. There have already been serious efforts to respond to these concerns. Thus, many IFI documents that were once confidential are now posted on the institutions’ websites. There are a variety of procedures for including NGOs in various deliberations. Many of the actions with respect to donee governments require public consultation. And the World Bank has created an inspector general process. But these must be regarded as just a beginning. The key step is to impose a further condition—that recipient governments be required to build toward political responsibility—and then to respect that condition. Obviously, the appropriate standard of political responsibility deserves discussion, because it

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demands much more than an election—most crucially, it involves following a government of law rather than one based purely on power, let alone on corruption. For the circumstances in which donor governments do collaborate with the host government, there must be a statement of standards for the national constitutional process and for the IFI’s work with the national government. This would be in essence a bill of participatory rights, defining the constitutional requirements and political goals of freedom to be achieved by the nation. It would certainly include requirements of transparency, of noncorruption, of equitable treatment among different communities, and of development of and respect for a national rule of law and national democratic institutions. And there must be institutional mechanisms to pursue this ideal. There might, for example, be an ombudsman. Or there might be a regular review process at which the failings of donors and donees can be discussed. There are near analogues in donors’ conferences, in the regular WTO review of nations for compliance with the trade principles of the WTO, in human rights review processes, and perhaps in the arrangements currently being introduced by the IMF and the World Bank for obtaining popular input to “Poverty Reduction Strategy Papers,” which a nation is required to develop as part of receiving certain forms of assistance. Whatever the process, it should cover constitutional issues as well as economic ones. Creating such a bill of rights controlling the IFIs when they act as a government is clearly a daunting task. Nevertheless, there is experience in bringing a dictatorship to democracy, as exemplified in Chile, Korea, and Spain. The constitutional and political goals must go beyond those of the Universal Declaration of Human Rights, because they must include constitutional goals of democracy and representation as well as human rights goals of a rule of law. This bill of participatory rights would, of course, be parallel to and ideally integrated with the charter described previously in Chapter 2, to govern UN interventions for nation-building. C.  Example 3—global environmental issues and the need for international intersector participatory institutions and for accurate scientific and economic advice Another factor undercutting national economic isolation is the fact that human actions are now affecting the global environment. Certainly some en-


Defining Freedoms

vironmental issues can be resolved domestically and some can be resolved between neighboring nations, although the nation creating pollution may have little incentive to make any commitment to other nations being harmed by that pollution. The problems among neighbors can sometimes be solved though packaging the antipollution agreement with agreements providing economic support or governing other issues, or even governing other forms of pollution. But an important portion of global environmental problems, including protection of the ocean, climate change, and protection of the ozone layer, requires action at the global level. These problems involve an effect on the global commons, rather than a combination of bilateral effects, and no single nation receives significant benefit from dealing with the problem unless other major nations deal with it also. A number of treaties have been reached and have already shifted some decisions away from the direct control of nation-states. For example, the parties to the Montreal Protocol now decide by a two-thirds vote which chemicals should be banned because they may affect the ozone layer, and the decision is binding on all parties. The international environmental restrictions are, however, still minor in terms of their political and economic impacts, and the ozone layer case presents the most intrusive example of international decision-making. In general, nations have only agreed, at most, to take environmental concerns into some account in making their other policies. Satisfying the need for stronger global environmental protection will be difficult most of all because it poses tensions between current consumption and the future environment, and these tensions are compounded when demands are placed upon developing nations. Resolving such tensions will require facing two kinds of international constitutional problems. The first is a variant of the participation problem discussed in Section 3.7—how can all the affected people be given a voice in the decision-making? For international environmental issues this problem is especially complex, because some of the international environmental issues involve a much longer time-horizon than the economic issues, and because the plausible cross-national coalitions needed in the environmental arena are much more complex than those needed in the purely economic arena. Current treaties are reached by executive agreement, albeit with legislative approval in some nations, so that there is a problem of the bypassing of the existing legislative arenas. Participation has been shaped heav-

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ily by NGOs, often with relatively limited national constituencies; these NGOs have sometimes been unable to deliver political support at the national government level. There are reasonable regulatory and market-based mechanisms to incorporate the economic costs and benefits of environmental protection into policy-making, but solid agreements are still difficult to achieve politically. The economic difficulties of dealing with global warming are among the reasons why no significant treaty has yet been reached in this area. As with economic agreements, part of resolving this problem requires finding an appropriate forum. No single international organization or group of national bureaucracies are able to deal with the issues. Reasonable resolutions of the various issues will involve both trade and environmental constituencies and balances. Negotiations on climate change at the UN Environmental Program will almost unavoidably involve issues generally dealt with at the WTO. Integration has to take place both in the negotiating context and back home in the policy-making and constituency-building context. Some nations are able thoughtfully to balance the concerns associated with the two different issues and to produce plausible international negotiating positions. But many nations cannot. What is institutionally most different from the economic case is that the necessary participatory institutions will have to have connections with much broader bureaucratic and political bases—not just with environmental ministries or with trade ministries, but with both. The difficulty has already been seen in the tension between the WTO and trade ministries on the one hand and the UN Environmental Program and environmental ministries on the other. In the future, there will be many other important issues (freshwater management? telecommunications?) in which it may be necessary to deal with a similar matrix of bureaucracies and constituencies from different issue areas and different nations, and to find solutions in that matrix. For economics, the problem is to coordinate legislative priorities that may be managed by different nations’ economic bureaucracies; for the environment, this has to involve both economic and environmental bureaucracies; for future issues, there may be even more bureaucracies. The other new kind of constitutional problem involves the need for international expertise and for ways to insert that expertise into the international negotiation process. As noted in Section 3.3, the need for scientifically rational decision-making poses a challenge to the domestic organization of democracy.


Defining Freedoms

It does, as well, for international negotiation. Consider the debate over the priority to be given to global warming. Part of this debate is genuinely scientific— what is the most reasonable prediction at this time? What are the uncertainties associated with it? How is our knowledge level likely to change over time? And part is genuinely political—what are the regulatory approaches most likely to be effective? What kind of special exemptions are wisely given to developing nations? If a right to participation is crucial to the political issues, a right to the best estimates available is crucial to the scientific issues. Yet, at this time, the key research is supported primarily by national governments, and, as can be expected of human institutions, there is no clear reason to believe that the scientific judgments put forward in international discussions are not sometimes shaded to reflect national interests. This has been an issue in the creation of the scientific advisory panels in the global warming arena, and in the wording of their reports. The need for solid advice is not confined to global warming—it is also exemplified in the debates over the safety of genetically modified organisms. The reasonable response is, of course, to improve the quality of national scientific advisory boards, and to expand and improve the independence of the existing international analogues. The U.S. National Academy of Sciences and the UK Royal Society have gained a reputation for as much independence and accuracy as is humanly achievable. Global analogues are essential. National institutions such as these two can, of course, play international roles, and they sometimes do so—but genuine globalization is crucial. Indeed, one can say that, in today’s world, citizens have a political right to accurate scientific advice, and that this right is properly globalized. Such a right may be properly extended to economic judgments as well as to scientific judgments. D.  Example 4—internationalization of regulation and the need for international analogues of the Administrative Procedure Act The final area to consider is administrative rule-making.12 As noted above, during the twentieth century, nations developed procedures under which executive agencies would make legislation under authority delegated by legislatures. At the time this began, the theoretical assumption, at least in the United States, was that the executive would be able to assemble expertise to deal with issues that would be beyond the capability of the legislature, and the principle that

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preserved democratic theory was that the legislature would enact guidelines for the administrative agency and the agency would then, in theory, simply follow those guidelines. In order to make this delegation acceptable to democratic theory, a new set of procedures evolved. In the United States, this was the 1946 Administrative Procedure Act, which generally required “notice and hearing” decision-making. Essentially, the agency is required to announce the area in which it is considering making a decision, to provide public drafts of its proposed decisions, and then to give everyone an opportunity to comment on the decision. It can then promulgate a revised version that takes the comments into account. Review by the courts deals primarily with whether the agency has statutory authority in the area and whether it follows the required procedures. Only rarely do courts review the policy decisions implemented by the regulation. Review by Congress is based on the possibilities of overriding the decision by new legislation or of manipulating the agency through control on its funding. The traditional (mid-twentieth-century) concept of controlled delegation to expert decision-makers has evolved into a sense that the agency should emphasize the opportunity for all to be consulted in the decision. Realistically, those who participate are the affected industry and the various lobbies (consumer groups or environmental groups and so forth) that want reform from the industry. It has become the hope that the agency can simplify its task by obtaining agreement by these various interests. The result is “negotiated rulemaking.” This, of course, is exactly what happens when lobbying groups negotiate a deal in the shadow of Congress. Because such deals may be negotiated among only some of the interests involved, there is no high likelihood that they will produce a technically sound result, and still less likelihood that they will produce a result that serves the public interest. The response must be to divide the decision-making into scientific and political components, and to seek to ensure that political decision-makers—who must retain the ultimate authority—recognize the importance of scientific integrity and of achieving the good of all the society, not just of part of the society. This administrative process has gone international for two reasons. The first is that harmonization of regulations is sometimes essential, and generally economical and good for industry. In most cases, the drug or tire that is safe in one nation is safe in another, and the less money wasted on producing different


Defining Freedoms

versions for different nations or on conducting duplicate tests and preparing different dossiers for different nations, the better (from everyone’s perspective, and not from just the industry’s perspective). This emphasis on harmonization is particularly important in the EU, which does not want regulatory differences to divide its continental-scale market. The second reason for internationalization is that many nations do not have the technical expertise needed to make the necessary decisions. In some cases—for example, drugs approved by the U.S. Food and Drug Administration—these nations may be willing to accept (formally or informally) the decisions of a leading developed-world national agency; in others—such as disputes over genetically modified organisms, they want to hear from a separate international decision-making entity. The result is that there are many international regulatory decision-making organizations, some under the EU and some under special-purpose global organizations. Some are technically mandatory and some technically advisory only—but the advice is very expensive to reject. Most involve committees, and the EU even has a concept of “comitology” to describe the different types of committees involved in EU regulation. Sometimes the members of the committees are national representatives—but there are often representatives from industry, since these are usually the people who most understand the actual issues or who are most directly affected by them. For example, the International Conference on Harmonization (ICH), which seeks to harmonize the input studies needed for pharmaceutical approval (but not the final decision) comprises representatives of the regulatory agencies of the United States, the European Union, and Japan, and of the industries of these nations. Although the World Health Organization and others have observer status, and consumer and patient groups can obtain a hearing in the process, this is clearly a process driven by the industry. The implications for democratic theory are quite significant. First, the effective decisions are made in the global group and then often accepted de facto by the national regulatory authorities. An example is that the documents issued by the ICH, just described, are issued by the U.S. Food and Drug Administration as “guidance” documents, meaning that they do not technically have to be followed. Nevertheless, the wise applicant for approval of a pharmaceutical product certainly will follow them. Moreover, industry may be happy to live up to de facto rules, because its interest is in the economies of scale derived from

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harmonization—thus the fact that the rules may not be issued formally may not keep them from being followed. Therefore, the effective rule may be a de facto one, and may be issued without necessarily following the national notice and hearing process. The power of Congress has therefore been effectively delegated to an international body that is, arguably, not effectively reviewable by the courts or Congress. Moreover, in the international context, the rule will be set through negotiation among executive branch officials of different nations, each, of course, consulting its own experts and individuals—there is perhaps a greater chance than in the national context that negotiation among affected groups will override scientific expertise, and therefore that the interest of the negotiating parties will override the common interest of the broader community. This problem can conceivably be resolved by ensuring that the international committee provides the equivalent of notice and hearing, that critics have access equivalent to that of industry, and that the international committee has access to solid independent real expertise. There would then have to be appropriate formal change in national laws so that these international procedures could be accepted as substitutes for national procedures. This has not happened so far in the United States. To make all this feasible requires a global administrative procedure act—for example, a treaty to ensure that global administrative decision-making follows reasonable rules of publishing intentions in advance and providing a hearing to affected parties, and consulting independent expertise. Public access to information about the operation of the various agencies is again essential, so the new arrangements should include a globalization of the U.S. Freedom of Information Act. Again, details will be considered later in the book.

3.8.  Implications and conclusion The examples shown above are representative of the kinds of international political coordination problems that face today’s leaders and that must be taken into account in any contemporary political theory. Obviously there will be other coordination problems arising in such areas as maritime and transportation regulation, international communications, and natural resources. And the concerns about expertise described above in the environmental and


Defining Freedoms

administrative contexts will extend to other areas, such as monetary management and dealing with international capital flows. Based on the examples just described, four key international constitutional issues can be identified. First, it is important to provide mechanisms for greater citizen participation in negotiating new international agreements, and to make it possible for politicians to structure new forms of international coalitions. In the short run, these might include, for example, arrangements at the national level requiring international negotiators in the economic areas to be provided with input from citizens or national parliaments and to be subject to questioning by these entities. But looking toward the future, it is essential to think about more formalized mechanisms that might range from stronger interparliamentary coordination mechanisms to a new international citizen parliament, a global parallel to the EU Parliament. Second, it is necessary to build new international analytic, scientific, and statistical institutions necessary to assist in thinking about global economic, social, and scientific problems. They must also provide the global community, and particularly developing nations, with access to solid scientific advice with respect to environmental and health questions that are often being effectively resolved for them by the scientific and government establishments of the developed nations. There is a human right to good science! These efforts will also, over the long term, assist in building a sense of global community. Third, it is necessary to create a set of principles for representative/constitutional government that can be applied by international organizations in their efforts to create, shape, reform, or assist national governments. These would be applicable to IFI economic efforts, and would be integrated with the principles for UN nation-building called for in the previous chapter. They would both guide the international organizations in their actions and create procedures by which individuals could question the actions of international organizations. This would, then, go much further than existing international human rights institutions. Fourth is the creation of an international analogue to the U.S. Administrative Procedure Act to ensure the democratic responsiveness of the international regulatory process. This also requires creation of an international freedom of information act.

chapter four

The Intangibles of Governance One of the most important current points of tension is whether a nation should be dedicated to a religious ideal, such as Christianity, Judaism, or Islam. Can this still be a matter of national choice, or are societies now so interdependent that the secular ideal is central to international survival and freedom?

Political systems are never purely about politics; they always involve human feelings and beliefs. These can be simple patriotism, a sense of one’s region, a sense of nationalism, a religious or ethnic tradition, or a secularized religion such as fascism. The shape of these beliefs varies from time to time and case to case: sometimes civilizations are important,1 sometimes nations, sometimes ideologies, sometimes religions, sometimes ethnicities. It is loyalty to such a community or society that matters to people and that may, depending on the circumstances, strengthen or weaken the legitimacy of governments. Loyalty is certainly often manipulated to support security or economically based policies, or even just to support the power of particular people.2 Thus, one should always maintain a sense of reality about the depth of such loyalties. Nevertheless, loyalties move many people, they are often more fundamental than and endure longer than a particular government system or state apparatus, and they greatly affect the effectiveness and power of governments. Ideas and identities do matter. In the pattern of the previous chapters, this chapter will first consider the traditional role of these intangible aspects of governance; it will then consider the way these roles have changed domestically and internationally in the current world. It concludes by identifying the implications for national governments and international institutions. At the present time, the implications for national governments are far more important than are those for international institutions.


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4.1.  The traditional link between culture and state During the period of its evolution in the seventeenth and eighteenth centuries, the nation-state identified itself fully with religion—in fact, the heart of the Westphalia settlement of 1648 that legally recognized the contemporary nation-state system was that religious unity was crucial to the nation-state: cuius regio eius religio. Today, an even stronger identity between the state and religion is required by much (but not all) Islamic political thought, as well as by some leaders in Israel and in India. In such past confessional states, the relationship between religion and state was typically complex. There were areas of autonomy for each, and frequently conflict between the two; but most fundamentally and most generally, state and religion were mutually supportive. Religion supported the government’s legitimacy, as exemplified by coronations by religious authorities. In return, the state assisted religious authorities by financing them and by helping them discourage heterodoxy. In some cases and eras, it was hard even to distinguish between religious authorities and secular authorities. But most of all, religion brought a sense of community and brought the citizens reasons to live in a way that respects others. If the state were to try to maintain order without the support of such an underlying source of citizen mutual respect, it would find itself having to be incredibly intrusive. It is probably impossible for a society to be organized by law alone, without a cultural tradition that supports harmony and a system of working obligations within the community.

4.2.  The emergence of tolerance and freedom of religion Nations with mixed religions emerged during the seventeenth through the twentieth centuries. Sometimes, this was the result of conversion of a portion of the society. Thus, the Huguenot minority in France and the nonconformist minority in England derived from the spread of Calvinist Protestant beliefs in what were otherwise Catholic or Anglican nations. Sometimes, the mixture was the result of migration, the most dramatic example being the United States, which emerged from a combination of Puritan, Catholic, and Anglican traditions, depending on the particular colony, and later received many other tradi-

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tions. And sometimes, the mixture was the result of the integration of regions that had held different religions. The Turkish conquest of the fourteenth and fifteenth centuries that evolved into the Ottoman Empire, the unification of Germany in the nineteenth century, and the unification of India in the eighteenth through twentieth centuries all led to multireligious communities, as did colonial fiat when it created nations that turned out to straddle the borders between Christian and Muslim communities in Africa. In these states with mixed religions, societies and governments had to define new relationships between state and religion. As long as the religious differences were not too great, there was an almost inevitable pressure toward tolerance and toward weakening of direct government support of any specific religion. This probably derived more from the need for different communities to live with one another than from any formal political theory. Thus, the Ottoman Empire’s millet pattern of allowing individual religious communities (Christian, Jewish, and Muslim) to apply their own religious law internally probably reflected an effort to get along rather than an elaborated political theory. And, in France, the rights extended to Protestants under the 1598 Edict of Nantes were fundamentally a recognition of reality and were revoked in 1685 when this became politically possible. But, soon, the practical tolerance was supported by a political theory defining religious tolerance on the basis of an individual right of conscience. Thus John Locke defined a right to religious freedom in his Letter on Toleration in the midst of the British Civil War. This was picked up by the 1789 U.S. Bill of Rights, which added a prohibition on the establishment of a specific church. The nineteenth and twentieth centuries saw the removal of many barriers to religious equality, including, for example, the actual integration of U.S. First Amendment religious freedom into state-level practice, the British removal of barriers to Catholics, and the development of French concepts of laicité. By the late twentieth century, a principle of religious freedom had become enshrined in international human rights agreements. The key such agreements do not, however, include a corresponding principle against establishment of a state religion. There was a norm of individual freedom of religion, but it was still assumed acceptable for a nation to maintain a position supporting a particular religion.


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4.3.  The emergence of nationalism The nineteenth and twentieth centuries also saw the evolution of new forms of cultural identity. No longer was religion the primary basis of national identity; now there were identities based on ethnic, linguistic, and cultural traditions, and, later on, on ideological traditions. The historical sources of nationalism are highly disputed, but a number of factors can be suggested. One was the nineteenth-century need for all governments to draw increased commitment from their citizens in order to gain military strength. Napoleon’s corvée en masse was a transition point—his army was no longer a mercenary army, but was based on a strengthened commitment of individuals to the nation. Its existence forced those nations he threatened to obtain similar commitments from their own populations. Hitler’s fascism and Mao’s Cultural Revolution were ways to mobilize a nation and to strengthen citizen commitments to national governments, as were some of the single-party political organizations created by leaders in many of the new nations that emerged from colonialism in the mid-twentieth century. Another source was the need of societies and governments to find alternative mechanisms of identity as religious identity weakened in Europe or as mixed religious identities were inevitable. How else could India or the United States find a common identity? Both were complex societies politically integrated for reasons that went beyond religion. Moreover, improved communications made it easier for leaders to use cultural traditions in their construction of new nations. Thus, language was crucial in constructing Germany in the nineteenth century, and ethnic identities were emphasized in redesigning the Austro-Hungarian Empire at Versailles in 1919 and in the 1990s breakup of Yugoslavia. The identities and groupings once associated almost exclusively with religion became associated with a variety of other factors such as ethnicity, language, and cultural tradition. This trend toward recognizing nationality was embodied in Woodrow Wilson’s Fourteen Points at Versailles in 1918, and stated in the UN Charter as a legal theory of self-determination, under which a group with a national identity should have its own government, more typically by autonomy than by actual independence. In the mid-twentieth-century phase of decolonization, independence was deemed essential for the colonial territories of imperial nations and contributed to the wave of newly independent nations at that time.

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In most other cases, however, political leaders have fudged on the self-determination concept, and only very rarely called for the separation of a subgroup from an existing political entity. The key recent exceptions are in the breakup of the former Yugoslavia and the Soviet Union.

4.4.  Globalization and the contemporary crisis in toleration Globalization has led to a new set of changes in the pattern of nationalism and culture. First, because of expanded migration, there are many more minorities, and they are interested in the status of their original communities. Second, cultural communities can now organize across borders, leading to new forms of international political dispute. And third, there has arisen a global, but intranational, conflict between those who look to global values of tolerance and those who look to traditional, typically religious, values. Immigration has produced enormous numbers of minority groups, particularly in North America and Europe. It is hard to imagine such immigration slowing, because of the aging of the developed societies and the substantially higher population growth rates of neighboring societies. Such factors seem likely to override the concerns about employment and terrorism that are leading many developed nations to resist immigration. The immigration leads to tensions concerning the integration or not of the immigrants within the host society, a point to be discussed below. Moreover, these immigrant groups, along with all other minorities, are now interested in the treatment of their compatriots throughout the world. This effect is strengthened by the growing ease of communications and travel. Thus, the United States is very concerned with the treatment of Israel and with the status of Cuba, and Mexico is concerned with U.S. government policy toward Mexican immigrants, whether the immigrants are legal or not. In some cases, this strengthening of local cultural politics has led to new international political disputes. Some cultures and religions require that the particular beliefs should be propagated globally, and such cultural demands can create global political divides. This concept of global cultural divide has achieved great notoriety in Samuel Huntington’s book The Clash of Civilizations, as the basis for a conflict between Judeo-Christian nations and Muslim nations (and arguably also, of course, as the basis for a conflict between terror-


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ists and the West). Clearly, this and the internal Muslim division between Sunnis and Shiites are the most important contemporary examples. It is significant that these divisions transcend particular national boundaries, and that they are associated with groups such as Hezbollah and Hamas, which are only partly identified with particular national governments. Such divisions are among the underlying causes of at least some terrorism, explaining why terrorism is sometimes directed against opposing human groups and cultures rather than just against particular governments. But there are other global debates based on ideology rather than on religion. The ideologies of fascism and of communism divided the world during parts of the twentieth century. Arguably the post–World War II ideology of anticolonialism did as well. Some of the U.S. foreign policy emphasis on free enterprise or on open markets may constitute a similar ideology and not just serve U.S. economic interests, but also reflect deeply held beliefs that are urged on others out of a belief that the policies are actually good for these others. There are also international tensions arising from the international flow of entertainment media, leading nations to make defensive efforts to protect their cultures, sometimes through protecting their cultural industries. Even more than during the wars of the Reformation, many of the most important sources of global conflict are now transnational and only partly associated with national boundaries. All these debates and tensions are now cross-cut by the fact that in most major states, there is an important divide between two political communities: one global and secular and one local and fundamental. In the United States, for example, the intellectual and much of the business communities, at least in the middle and late twentieth century, were generally urban, generally secular in their attitudes toward the state (although many members were religious in their personal lives and in their dedication to political activity), generally disposed to multiculturalism, generally supportive of active participation in international affairs, and generally respectful of the positions of other nations. This community is now often unconcerned about religion. Later in the century, this perspective was challenged by a different one, a perspective that took over policy power during the presidency of the second Bush. This perspective reflected more rural interests, saw Christianity as more central to the governance of the nation, often resisted the role of other perspectives within the nation or abroad, and believed strongly in the U.S. use of force for national advantage.

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It is easy to recognize similar parallel perspectives within the contemporary Mideast, and in Europe as well. The elite perspective is global and is shared by the elites of most nations, which thus form a common culture, generally English speaking (at least as a second language), generally secular in policy, and generally supportive of global economic integration and free trade. The contrasting fundamentalist perspective perhaps arises from concerns that the rate of change of contemporary society is unsustainable, and that the traditional values threatened by that change are essential to the fabric of society. These are probably among the factors underlying U.S. fundamentalism. The same is probably true for Muslim fundamentalism, although the underlying factors in this case certainly also include Islamic societies’ frustrations in dealing with the cultural onslaught of the West over the last two centuries. These globalist and fundamentalist perspectives thus derive from strong human and cultural forces, reflecting, on the one hand, the cosmopolitan interests of an economic and academic elite, and, on the other, the concerns of many that believe their traditional values and culture to be threatened. The tensions between these two perspectives, along with the tensions between different cultures, will be among the dominant shaping forces of the future international order.3 Paradoxically, as culture has become less defined by geography and by membership in a particular nation-state, tensions over the relation between culture and government have grown, and are probably among the root causes of terrorism. This is obvious in the cases of the fundamentalist groups which hope that governments will enshrine their particular cultural values. It is also obvious in the cases of immigrant groups seeking greater rights, or their opponents seeking to force assimilation or resist their entry into a society. Immigration and the relative rights of immigrants and of long-term residents are a subject of dispute everywhere. But there may also be other kinds of pressure leading toward such symbolic or cultural politics. In the United States, it is possible, for example, that the recent increased political emphasis on issues such as abortion and prayer in schools may derive in part from the fact that affluence has made traditional economic politics less relevant to many. And in Europe, it is possible that the increased role of the European Union (EU) has decreased the role of the state in solving economic issues; this may be an explanation for the increased political interest of local regionalism, such as that associated with Catalonia in Spain, UK devolution, or French provincial regionalism.


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The pressures associated with these cultural developments have given rise to important restrictions on freedom. As an obvious example, the new U.S. and UK investigatory powers, the asserted rights to hold prisoners on what amount to preventive grounds, and the controls asserted over advocacy groups and charities with Mideast ties are probably the most severe restrictions on freedom that have been considered by these societies since World War II, and possibly earlier. But these are not the only examples. The freedom of religion is severely restricted or threatened in much of the Mideast, and religious-based cultural practices are under pressure in nations such as France and Turkey, which are struggling to be secular. The restrictions come not only from the antiminority side; they also come from the global side, as in proposals to define freedom of speech in a way that prohibits hate speech against various minorities or prohibits blasphemy as viewed by various religious traditions. Certain of these responses may effectively prohibit speech that is central to the conduct of politics.

4.5.  The ideal requirement of multiculturalism It is impossible to see how national governments can today satisfy their citizens’ rights of religious freedom and the closely associated cultural freedom without national commitment to a form of multiculturalism—that is, at least to a political system in which all are free to practice their own cultures. There are various international treaties that attempt to protect against deliberate discrimination, with respect, for example, to language, education, religion, or employment. But it is essential today to go further and to seek global governmental commitment to multiculturalism, in the sense of permitting different cultures to flourish within the nation. Although such a commitment is accurately defined as a requirement of human rights, in today’s real world it is probably most realistically seen as a goal or vision, precisely because it is so hard to achieve and is somewhat beyond the control of governments, especially of democratic governments. Both normative and practical arguments support this requirement. Normatively, the citizen (not the nation!) is the bearer of the right of religious and cultural freedom.4 It is the individual’s right to practice his or her religion and culture.­Therefore governments must recognize the religious and cultural

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freedom of each citizen. There are grounds for reasonable differences as to the detailed scope of cultural rights (for example, as to teaching of particular languages in the schools) and as to the details of the way to accommodate different cultures, but substantial freedom to choose one’s religion and culture is essential. Practically, in today’s world, multiculturalism is also essential because it is impossible to achieve religious and cultural freedoms by creating separate polities for each culture. Boundaries drawn on a self-determination principle, as in the breakups of Yugoslavia or the Austro-Hungarian Empire, were designed to define separate homogenous ethnic or religious communities, but it was never possible to do so accurately. Efforts to draw boundaries to separate two ethnic groups usually leave new minority groups in each of the two new entities.5 Moreover, even if there were reasonable boundaries, the rate of migration makes it impossible for those boundaries to remain effective in separating cultures, and culturally based restrictions on migration are a clear violation of any sense of freedom of culture. Further, the practical and right-based need for dialogue among cultures, a point discussed in the next section, requires opportunity for representatives of different cultures to meet and talk with those of other cultures—something that is impossible without a commitment to multiculturalism on the part of all governments. There are great dangers arising when a government has too close a link to any particular culture or when cultural differences become aligned with differences between states. The government’s role of encouraging a multicultural system can be achieved in different ways. One approach is an explicit secular governing system in which the different cultures disappear from the governing process; another is a governing process that provides an active role for different religions and cultures. Consider the state itself: what symbols does it use? Does it, in the U.S. version, allow ethnic and religious festivals and use of the symbols of all the different ethnic or religious communities, or in the French version, avoid all ethnic or religious symbols and seek a goal of laicité? In this U.S. version, not long ago, regardless of the First Amendment, U.S. political ceremonies, such as state funerals, included Protestant, Catholic, and Jewish speakers, and more recently Muslim or other speakers. Under the U.S. system, it is expected that different cultural and religious groups will demonstrate their differences in public, even on the edge of political power. In the French case, it is clear that


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the legitimacy of the government is ultimately to rest on laicité itself (as well as other indigenous constitutional traditions). The government obtains less support from the cultures, and also provides the cultures less support (although there is also a history of real discrimination against Muslim communities). The U.S. pattern provides a greater role for the religious and cultural traditions. But certainly both directions seem reasonable. The vision does require that the recognition of each of the cultures must be real. There is certainly room for debate, for example, as to whether a government has the obligation to support education in a minority language, or which days should be legal holidays. But there is a strong suspicion on the part of many outside the West that the “tolerance” within the West toward non-Western religions and culture is, in fact, a very weak and condescending form of tolerance.6 The government may thus have to intervene to ensure that its society is open to minority cultures. Similarly, it may have to intervene to respond to histories of discrimination that have led to significant de facto inequalities. There are many different ways for a government to promote tolerance or equality, ranging from simply avoiding discrimination to various forms of encouragement of a minority group. Sometimes, governments are forced to intervene in ways that come close to recognizing particular cultures or favoring one over another. Such affirmative action violates the formal principles of equal treatment in an effort to achieve an equality in opportunity or result; this must sometimes be acceptable. Presumably, the more active forms of encouragement are called for in situations in which the historical discrimination has been particularly strong and its effects most abiding. The more passive forms are appropriate where the levels of actual inequality are lower. Another issue is whether specific cultures, such as indigenous or First Nation communities, should be given substantial autonomy and self-government. Nations will differ in how to respond to such communities. Based on the principle of this book, that cultural rights are individual, not group rights, it is important that the communities not be given governmental power that infringes freedom, as by overriding the rights of women or making it impossible for young people to explore beyond the culture. Nations differ in their perspective on all these issues, and neither international law principles nor the kinds of principles that can be defined in this book come anywhere near to providing substantial answers. The minimum requirement is governmental and societal openness to nonmajority cultures.

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This recognition of multiculturalism also has strong implications for the self-determination concept that entered political theory and international law during the twentieth century. The traditional concept of self-determination relied upon a recognition that intangible loyalties help make a group a community and help provide legitimacy to a government of the nation. This presumably made it easier to accept the costs of government, such as sacrifice in defense, taxation, and the inevitable disappointments deriving from majority voting. If a community was not treated well, it would wish to withdraw and create its own polity. This was an implication of the understanding that legitimacy ultimately comes from the people themselves. This was the traditional frame of discussion. But the multicultural perspective requires that the concerns of a number of groups must be considered. Where there are several groups, the practical question is whether it is better to have a combined polity in which the different communities are integrated, or for one of the groups to separate off and create its own polity. In what community structure will legitimacy be stronger for all? The security and economic factors may favor one approach or the other, but will more often favor an integrated polity. The way the individual communities are treated in the integrated polity, and the extent to which the needed political sacrifices and sense of community and legitimacy can be achieved in integrated or separated polities, are all factors, and they may cut either way. Better treatment within one polity is always a possible alternative to separation.

4.6.  The obligation to permit dialogue Further, both in the vision and to achieve the vision, dialogue between religious and cultural communities is to be protected and encouraged. Such dialogue is essential to the freedom of culture of each community; it is also essential to the construction of a working global polity and to the resolution of specific conflicts. Dialogue is an essential requirement of world political survival, which will require cultures to adapt and change their attitudes toward one another. Most important, it is the recognition of the right of a person of one culture to engage in dialogue with those in other cultures, to change his or her own beliefs and judgments, and to seek to change others’ beliefs and judgments. Thus there must be recognized a right to accept or leave a cultural


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community as well as a right to proselytize on behalf of one’s own religion or to seek to change a cultural community, including through the media, both within a nation and across national lines. The right belongs to the individual members of the cultures; and the cultures in contact with one another must be free to evolve, and to heal the differences, as has been occurring in South Africa, and, to some extent, with the racial and ethnic differences in the United States. This evolutionary process and dialogue are shaped by factors much deeper than those of formal law; dialogue cannot be imposed, but it can certainly be permitted and encouraged through maintaining open fora. Efforts to prevent assimilation are neither viable in the long run nor wise in the short run. The goal must be recognition of freedom, not establishment; the government must not build barriers, and the freedom involved is a right of the citizens. There are many ways in which this issue of encouraging dialogue is posed. Should schools be structured to encourage dialogue between groups of different cultures? What if some groups want separate schools? Should indigenous cultures be protected from homogenization? Should there be efforts, as in Belgium, to maintain a carefully balanced linguistic diversity? What about freedom of association with groups that many regard as subversive? Or denials of visas? The answer of this book is that individuals have the right to transcend cultural divisions. This is the case even in tasks such as restoring peace in the new nations created by the breakup of Yugoslavia. In the short-run aftermath of conflict, it may be necessary to separate the ethnic communities that had feuded in these nations, but it is crucial to bring them into dialogue with each other in order to increase the chances for long-term peace. There is an extremely important question as to the inclusion or not in dialogue of those whose principles undercut the possibility of dialogue. This was an issue in Northern Ireland; it is currently an issue in the Mideast, where some of the political and religious communities involved reject the possibility of a multicultural society. This is obviously a hard issue—as is the hard issue of elections that choose leaders who would end the freedom of societies. The answer is perhaps that in political contexts of negotiating settlements (or possibly defining rights to create political parties), some groups may reasonably be excluded. This is particularly true where there are no strong judicial or similar restraints on the misuse of electoral power. But the possibility for these groups to participate in political debate and in civil society dialogue seems essential

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both as a matter of human rights and as a matter of building mechanisms to help manage such deep disputes.

4.7.  The implications A.  The religious context: the requirement of a (reasonably) secular state In what is likely to be a very controversial implication of the vision, there is no longer room for religious states in the contemporary international system. A fundamental secularism of the state is essential. There are two reasons. First, it is hard to imagine how there can be freedom for other religions in a state that is at all strongly committed to a particular religion. Certainly, there are states in which there is a relatively benign commitment to an established religion— such as the United Kingdom—but this is tending to be the exception. Second, the identification of the state with a particular religion in a time of international religious conflict as intense as that of today is likely to intensify the religious conflict, and therefore the political conflict as well. The religious state is a threat to the peace. This is clear in the Mideast today. Although this can only be a goal at this time, it is wise to take off the table the notion of a religious state, whether Christian, Jewish, Muslim, Shiite, Sunni, or Wahabi. It is not easy to precisely define the secularism of a state or the scope to be given to the rejection of religious establishment. This derives from the unavoidable tension between religious freedom and the prohibition of the establishment of religion, a tension exemplified in U.S. First Amendment practice. For example, are military chaplains essential as a way to recognize the freedom of the soldiers to practice their religion, or prohibited as reflecting a form of establishment of those religions to which the chaplains belong? The nation’s formal commitment or not to a particular religion is among the least important of the issues. From the viewpoint of freedom, it is essential that religious courts be given no authority over anyone not willing to accept their jurisdiction, and that there be freedom to preach, attempt to convert others to one’s own religion, and to accept another religion. Law such as that of the sharia should not be applied in any way that violates fundamental human rights. And it is essential that there be no favoring of one religion over another in any way that directly affects the freedom of the individual citizen.


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Implementation of this requirement of secularism has important implications for both the cultures and the state. For the cultures, there is a serious risk of loss of identity or belief as a result of relativism or, alternatively, of encouraging a turn to a defensive fundamentalism to avoid the threat of other cultures. It is hard to work regularly with people with a different value system without either recognizing the value in that system and perhaps beginning to question the depths of one’s own beliefs, or alternatively demonizing the people with the other value system and moving to a less thinking support for one’s own system. Perhaps the decline of religion in some European societies is in part a result of the questioning response (as well as of the rise of the kind of transnational secular elite discussed in Section 4.4). Similarly, the rise of religiocultural issues such as abortion in the U.S. political system and of Islamic fundamentalism in the Mideast may be in part a result of the demonization response. Yet this risk is a necessary implication of freedom, and the experience in many nations has been that establishment of religion is dangerous to the survival of the religion. Moreover, to the extent that a nation’s citizens respond to multiculturalism by adopting a relativistic attitude to different cultures, the state becomes less able to gain legitimacy through religious or cultural symbols. This is unavoidable. With secularism and with multiculturalism, some citizens may find less basis for personal social morality, and others may find less reason to give legitimacy to a secular government. The problem is unavoidable as the link between specific governments and specific cultures weakens; it is intensified in a global society in which this link is deliberately attenuated. The rise of a more global, secular community itself weakens the power of the national government; citizens who view themselves as participating in a global community begin to recognize a variety of legitimate authorities beyond the national level. In such a situation, the government is likely to turn to other sources of legitimacy, perhaps a monarchy, perhaps a constitution, perhaps a flag, perhaps a history, perhaps a charismatic leader, or even a concept of multiculturalism or a melting pot. And if many in the nation are turning toward fundamentalism, the leaders may be tempted to seek legitimacy by identifying themselves with fundamentalist values; the politics of supporting prayer in schools in the United States are a good example, as are moves toward a religiously based state in Israel, several Muslim nations, and India. The more abstract and secular directions are the most healthy, but, because of their abstraction, they may have

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limited appeal. In the extreme, the leaders may create a set of dangerous symbols, such as those of Nazism or Peronism. Or leaders may respond by attempting to base their rule on pure power, as in the case of some military regimes. Some of these directions risk pathology or dysfunction; yet they are an understandable response to the fact that citizens seek more from their government than simply security and economic opportunity. Such risks are unavoidable in a culturally integrated world. B.  The immigration context The implications for immigration are as striking. Currently, international travel is becoming more difficult, primarily as a result of restrictions imposed out of concern over terrorism. And there is a strong reaction against immigration by many people who fear immigrant groups on economic and social grounds. Nevertheless it seems likely that, within a generation or two, citizens of any nation will be viewed as having the right to immigrate to any other nation at any time. The only restrictions are likely to be border formalities and an expectation that many rights in the new society will be available only after some form of waiting period. This was the case in significant part during the nineteenth century. Today it is the logical implication of a sense of equality of opportunity, and of the economic trend in which the most prosperous societies have aging populations and a strong need for workers, while many of the less prosperous societies have higher population growth rates. It seems likely that, over a few decades, the long-term trends in global population balance and in communications will overwhelm existing restraints. This is not just a matter of pragmatism, for there is a strong rights-based argument that it is unfair for one person to have access to a society offering great opportunity and for another not to have such access. This is an insight supported by a sense of global identity, and exemplified by the EU’s internal migration principles and the 1985 Schengen agreement, under which workers have the right to pursue employment in any member nation and to travel without border formalities within a significant portion of the union. For over a century we have recognized that differences in skin color or in sex should not restrict opportunity; difference in place of birth is likely to become viewed as a similarly inappropriate basis for discrimination. But taking into account the fact that it will be a long time before such a


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right to immigrate will be recognized, there must be strong immediate rights for those who have already immigrated, legally or not. From a rights perspective, this is essential as a matter of treatment of human beings, and as a matter of effective multiculturalism. From a pragmatic perspective, it is essential as a matter of avoiding conflict within nations that have many immigrants. In this area the European Union has done much less well than the United States, presumably because, in at least some important European nations, the sense of national identity is built more on traditional ethnic concepts, while in the U.S. there is still a melting pot image. The question is what rights to recognize on the part of those who have immigrated. Clearly the immigrants, legal or not, should have the basic intrinsic due process rights due in any legal or criminal context. They should have rights to the benefits of employment laws in order to protect them against exploitation, and their children should have rights to education. After some time, and certainly after a generation, they should have full rights of citizenship and participation in national welfare programs. Even though they may not have been expected to stay, depriving those who have been present a long time of citizenship, as has been the case with certain of the EU guest workers, is clearly wrong. The development of a bill of rights for immigrants, legal or not, is thus an important part of an international order that is affected so strongly by emigration, transnational employment, and refugeeship. It must go far beyond the existing refugee agreements, which, in many cases, do not require nations to grant access and thus allow migrants to be forced to third nations. It is probably best achieved by a separate code of conduct for the treatment of immigrants, governing basic rights and defining the point at which rights to welfare programs and rights to political participation become available. The issues have been carefully avoided in most of the international human rights agreements; yet they are crucial for the individuals involved and very significant for the future of political dialogue and tension between different nations. C.  The context for international openness Multiculturalism is not only a national ideal; it must also be an international ideal. If the world is to solve those aspects of its contemporary disputes that rest on cultural differences, the world as a whole, not just individual nations, must encourage mutual respect and dialogue among cultures. The most

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obvious implication is that governments must allow the international freedom of speech that is needed to permit the necessary dialogue. In general, the governments should not be conducting the speech, or even providing a forum for it, but rather making sure that the speech is possible. They must stay out of the way, and respect the relevant rights of individuals to speak across cultural boundaries. This cultural need reinforces the security-based need to respect the flow of ideas and communications that was discussed in Section 2.5. The flow of information and ideas contributes to the understanding needed to encourage peace; it also contributes to dialogue among cultures. Not only must communication not be prohibited; so also must visa policies and any policies designed to control terrorists, as by restricting their financing, take into account the need for the flow of ideas. This is a strong argument against security and antiterrorist approaches that attempt to isolate particular regimes or groups from international communications or to prohibit access to particular media. It is also an argument against any legal rules against blasphemy, as in the case of the cartoons showing Muhammad that were published in the Danish press, or the legal restrictions on insulting Turkishness or insulting the army that have been the basis of criminal prosecution in Turkey. At the same time, it seems reasonable to allow national cultural subsidy programs to favor home-grown cultural materials, as in the video and movie industries, in order to give local culture some chance against the dominant international culture. Thus Canada seeks to protect itself against U.S. television, and France seeks to protect its movie industry. If such approaches let in outside ideas freely they may be acceptable. Otherwise not. D.  The legal context for international organizations As confirmed by the 2002 report of the Axworthy Commission, the broad view of human rights held at the end of the twentieth century has made it legitimate for the international community to intervene to protect minorities. In fact, the majority of recent interventions by the United Nations (or by NATO, in the case of Bosnia) has been in civil war situations, and often in ethnic conflict situations. These include those arising from the breakup of the former Yugoslavia and the series of international interventions in the Great Lakes region of Africa. Regrets over failure to intervene in the Rwandan genocide only


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strengthen the point. Such situations will require great care in the always difficult task of building legitimacy within a new nation, for that legitimacy may, if the outside interveners are not careful, be exercised in behalf of one ethnic group against others. The goal, albeit difficult to achieve, must not be to build a state for each culture, but to build a basis for multiculturalism that protects the rights of minorities—only sometimes is division appropriate. Traditionally, UN peacekeepers have viewed their role primarily as one of either enforcing a truce, which is typically based on an agreed separation of two cultural groups, or, alternatively, as running a purely neutral operation, such as managing an election. But during the 1990s they realized that they might have to take a side, as in possible interventions to prevent genocide. There are now many circumstances in which a neutral presence alone is not enough; intervention to protect a minority, or to facilitate minority creation of an autonomous government, or to assist two groups to build bridges to each other, are all now needed. As noted in Section 2.7, such operations are much more difficult and are likely to be costly in lives and material resources. They fail to comport with the mystique of the UN blue helmet concept of intervention as a neutral. Yet sometimes it is now necessary to choose a side, and to make this legitimate, the decision and strategy for intervention must be clear and transparent, and the troops will need to be recruited and equipped with a different form of combat in mind. In all these cases, it is essential for the international organization to respect human rights, even at the expense of increased difficulty in the peacekeeping process. It is also essential for international organizations to provide stronger opportunities to deal with cultural conflicts through diplomacy and persuasion rather than waiting until tensions become so severe as to be threats to the peace. Such preventive efforts already occur in the economic area through the activities of the IMF and of the WTO surveillance process. And there is a beginning in the cultural arena through the work of the secretariat of the Convention for the Elimination of All Forms of Racial Discrimination. Additional international fora are needed in which members of groups being affected by discrimination can bring their complaints and propose reforms, as in education, through which problems can be avoided in the future. Examples of situations in which such efforts might be valuable are the tensions between Hutus and Tutsis in the African Great Lakes, the treatment of indigenous communities, and the treat-

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ment of immigrants. Consider the importance of Shiite-Sunni dialogue, or the benefits of a situation in which all nongovernmental movements in the IsraeliPalestinian dispute could talk, even if their governments did not want them to. Clearly, these are sensitive areas in which international intervention is initially likely to be rejected. Moreover, it is difficult to build consensus for intervention until a situation is quite bad. Yet fora are needed in order to be able to talk about the relevant issues, and it is sometimes difficult to create such fora within nations. Dialogue will not always be successful, but it is certainly essential in order to help head off disputes. The design of international fora for dialogue on cultural issues is obviously difficult, and obviously risks intervention into civil society. But the previous chapter showed that social and economic rights cannot be achieved unless there are strong mechanisms for dialogue among national parliaments and for the construction of transnational constituencies for new policies. The same is true in the area of cultural intangibles. The rights to religious and cultural freedom cannot be achieved without mechanisms for dialogue across traditional state boundaries and, in some cases, for new kinds of negotiations for problem solving. Such negotiations can no longer remain under the control of national executives. The discussions are often best conducted outside formal international organization and better conducted by private organizations, such as those that organize regular discussions between different religious communities, or those in Norway that set up the Oslo meetings between Israelis and Palestinians. Obviously, it is best if there can be a widespread debate at the level of civil society, but on occasion this debate will have to enter the international organization world itself. And in no case should states or international organizations resist dialogue or build barriers to it, as through imposing embargos that affect the flow of ideas. E.  The political context for international organizations Finally, international organization has to build its own bases for community. For an international organization to be successful, it must have some form of intangible support. It is human nature to be exclusive rather than global and to define one’s own group as being against an enemy rather than defining it as a group to which all belong. International organizations have generally been less successful in build-


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ing a mystique than have national governments, even when it is widely agreed that the role of the particular international organization is generally positive. Consider the way the European Union is envisioned as a group of faceless bureaucrats in Brussels, and its effort to respond through creating an EU flag, emphasizing historical efforts toward European unity, and naming facilities after Charlemagne. And consider also the debates as to whether the EU should self-identify as a predominantly Christian area or should emphasize secular bases of unity, and as to whether it should admit Turkey, an Islamic nation. (According to the principles developed in this book, it must, of course, avoid identification as a Christian institution.) Or, for further examples, consider the British Commonwealth’s effort to build unity on some basis ranging from the Queen to a broader shared history, or the UN’s effort to build an image of neutrality and blue helmets. Some of these symbols are persuasive to those who are already of an internationalist bias, and there is no question that, in the tension between the global and the local fundamentalist perspectives, those who build international organization will tend to identify it with the globalist perspective. Yet international organization must not let this globalist perspective totally dominate its position, or it will lose legitimacy. Recognizing the weakness of international organizations, some, especially in Europe, have emphasized a principle of subsidiarity under which decisions will be made at the lowest possible level. This is a necessary answer, but it is not adequate from the legitimacy perspective, for its implications are much more legalistic than cultural. The basic legitimacy for global organizations must be found in secular fairness: dedication to the broader cultural norms of particular sectors (for example, to good science in the case of international environmental organizations, or to solid economics in the case of international economic organizations), dedication to procedural fairness and constitutionalism, and dedication to fairness in action—for example, to the neutrality of the blue helmets. But as the directions suggested in this book are followed, it will be possible for international organizations to gain additional legitimacy, precisely by dealing with the difficult ethnic and cultural conflicts. By seeking to be available as defenders of cultural and religious freedom, they can (at least sometimes) extend their constituency beyond the secular globalists to reach the perspectives of those who fear secularism as well. International organization

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must be seen as playing a role in the protection of specific minority cultures, including fundamentalist ones. Over time, the dominant source of legitimacy can best be based on a history of success, and succeeding with respect for minority cultures (just as the U.S. federal government gained though its use of the Fourteenth Amendment to guarantee individual and group rights). The more that international institutions build linkages to the public and build a history of success in dealing with specific problems, the more they will create a supportive culture of their own.

4.8.  Summary of institutional implications In this area, the more immediate critical implications are those for nationstates, arising from the need to control and manage the risk of ethnic conflict within and between nations and, at the same time, to ensure that justice is provided to different ethnic communities. Because of the difficult tensions in this area, however, it is wise to place many of these implications in the category of visions rather than immediate requirements. First, the international vision should identify states and cultures less closely with each other than now. Thus there should be multicultural states that encourage dialogue among the cultures within the state, and there should be a presumption in favor of secular states and against established religions. Second, the vision of migration should be of freedom of migration. In the short run this requires a strengthened normative code for the protection of immigrants. This must protect basic rights, while permitting long-term citizens a reasonable preference in areas such as political representation and access to subsidies. But it must also ensure that full rights of citizenship are available within a reasonable time. Third, it is important to ensure dialogue among different cultures. This requires nations not to place limitations on dialogue, as through their visa or freedom of speech policies. Fourth, the bill of rights for citizens of nations subject to political or economic intervention by international organization must reflect religious and cultural rights, as well as today’s multicultural ideal. This particularly implies recognizing the rights of women, even when that is politically difficult.


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Finally, there must be an international forum in which cultural disputes can be aired and discussed, and in which there can be dialogue among different religious and cultural groups. Although these discussions can often best be held outside the formal international organization system, there must be a forum available, a forum which might be integrated with that needed in the social/ economic arena.

chapter five

The International Executive In the Oil-for-Food scandal, an arrangement to provide food for Iraqi citizens in return for oil during the time of Saddam Hussein was corrupted by Hussein. Among those who received pay-offs were senior members of the governments of certain of the permanent members of the Security Council. Quis custodiat ipsos custodios?

The previous three chapters have considered the new human rights demands arising from globalization and from international organization. This chapter and the following two take a complementary approach and explore the institutions and institutional changes needed to meet the human rights demands. The chapters are organized following the traditional division of government into three branches—that is, executive, legislative, and judicial. They consider the way these functions work differently at the international level than at the national level, as well as the ways that they can be redesigned to protect human rights. Because these chapters must choose between reasonable alternative institutional designs, they are necessarily more empirical and more tentative than the preceding chapters. It is already a stretch to apply the traditional division of powers into executive, legislative, and judicial to today’s national governments. In most nations, for example, the executive does far more than execute legislation; moreover, many might describe administrative agencies as constituting a fourth branch. Further, the relations between the different organs are heavily shaped by the structure of political parties. Nevertheless, the distinction among the three traditional functions is useful1—and, with even more stretch, can be made a framework in analyzing the international system. Most international organization actions are taken by the executives of international organizations or the national governments that make up the organization. Although the international executives are often weak, some of the


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national executives are strong—and indeed, in general, gain power from cooperating with other national executives in international organization. Thus the international executive is often de facto one of several national executives operating under the aegis of the international organization. Controls upon the power of these executives must then come from within the process by which different executives negotiate an international action, from national or international processes, and from informal controls from outside the official government processes. As will be seen, the controls within international organizations themselves are much weaker than those within national governments. Thus the task of this chapter is to describe the international executive power, including that of the relevant national executives, and to begin to suggest the kinds of restraints and balances that may be available from national governments or from other or new branches of the international system. Because following chapters will consider the roles of the international legislative and judicial processes (which will also be seen often to be linked to national executives), detailed judgments will be made in this chapter only for those restraints that do not fit readily into the legislative or judicial discussions. This chapter begins with a discussion of what the domestic executive does, and how the power of that executive is both facilitated and controlled by the governmental structure within which the executive operates. It then turns to the differences between the international executive and the domestic executive, and finally to the appropriate methods to facilitate and control the international executive. The chapter next considers the implications of this analysis in the context of functional organization, of the United Nations, of the international financial institutions (IFIs), and of the G-7/G-8. The chapter concludes with integrated recommendations.

5.1.  The domestic executive In traditional (domestic) separation of powers theory, the executive executed the laws. The legislature created the laws, providing a set of principles that shaped the executive’s scope of action. And the judiciary ensured that the application of the laws was fair in specific cases. This analysis remains generally correct for the role of the law in maintaining domestic order. Even there, the executive has significant discretion in deciding how to enforce the law in an

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Anglo-American legal system, although that discretion is, at least formally, limited in a Continental civil law system. But when applied to most of the actual activity of today’s national governments, the traditional analysis is greatly oversimplified. In most nations, the initiation of legislation has moved to the executive branch, with the legislature serving a blocking and amending function rather than an initiating function. This means that the most important powers of the legislature may be those related to appointment of officials of other branches. More important, the overall role of the state and therefore of the executive has changed greatly since the days of the classical balance-of-power theorists. The executive is now involved in a variety of economic and administrative issues, including the provision of public services (education, research, social security) and in the very discretionary regulation of many sectors of the economy (insurance, aviation, environment, and so forth). These activities may be authorized and shaped by legislation defining regulatory and administrative goals and procedures, and they may sometimes involve the courts—but the executive usually has great independent power both in setting and in implementing goals. Finally, the management of war and foreign policy are everywhere, par excellence, within the executive role—and the power of other branches of government in these international contexts has often been limited, sometimes effectively narrowed to a rarely used power of the purse. In a democracy, the chief executive (elected directly in a presidential system and indirectly in a cabinet system) supervises the bureaucracy—whether military, service-delivering, or regulatory. But that bureaucracy often has significant independence. Sometimes this independence is simply de facto because the bureaucracy naturally builds its own motivations and internal networks, regardless of what its formal superiors say. But sometimes it is also de jure. Thus, there are civil servants whose duty is to obey particular statutes (as is typical in many administrative agencies in the United States) or particular constitutional traditions (as is typical in the United Kingdom), regardless of how they are instructed from above. In some Continental political theory traditions, this effective independence of the bureaucracy is viewed as defining a “state” or state apparatus, significantly independent of the political and social system within which it is inserted. It is crucial that the executive have adequate power to deal with the issues confronting the nation. But it is also crucial that the executive’s activity be con-


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trolled, lest the executive become tyrannous. There are usually many controls, depending on the particular constitutional structure. Typically, the chief executive is elected for a fixed or limited term and possibly subject to recall. The executive is, in many areas, entitled to act only in accordance with existing law (“a government of laws, not of men”). Discretion is thus limited, and the legislature given the power to change the executive’s action. The executive is typically subject to financial and oversight control by the legislature. The limitations may be strengthened by requirements that some actions—certainly including the enforcement of criminal law—be conducted only through actions in the courts, or in accordance with some other defined procedure that is controlled in part by courts. In many nations, the executive is also subject to informal control by the press, sometimes operating with a freedom-of-information authority. Finally, in some nations, the division of authority between federal or national and state or local levels provides further restriction on the executive’s effective authority. Political parties play an especially important role in shaping the effective power of the executive—and it is significant that they are frequently found even in nations without effective constitutional restraints on executive power. Where there is a working legislature, political parties assist the executive in dealing with it and passing the legislation that it seeks. Sometimes they may effectively supplant the legislature by centralizing legislative deliberation within the party or a subgroup of the party. Even where there is no effective legislature, they assist the executive in recruitment and in ensuring that the executive’s policy is reflected throughout the various institutions of the government and even the society. They also help provide the executive with insight into what is happening in the society.

5.2.  The international executive In some respects, the secretary general of the United Nations and its secretariat, or the managing director of the International Monetary Fund and its bureaucracy, make up an independent executive, exactly parallel to a national executive. Similarly, the leadership and bureaucracy of special-purpose international organizations often act as independent executives—this is true in cases as different as the nuclear inspection services of the International Atomic

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Energy Agency (IAEA), the Patent Cooperation Treaty filing services of the World Intellectual Property Agency (WIPO), and the educational and technical cooperation services of such agencies as the Food and Agriculture Organization and the World Health Organization (WHO). These are bureaucracies providing a global service, and the member nations generally recognize the importance of respecting the independence of the bureaucracies in order for the needed services to be performed. In some cases, such as the secretary general of the UN, where there are many different national pressures, the official or the staff may be able—but only with caution—to take positions that reflect the organization’s (or possibly the world’s) interests, rather than those of any one member. Such independence of the leaders and bureaucracies is strengthened by outside respect for the organization. It is also strengthened by the natural internal esprit de corps of the particular bureaucracy and by the international civil servant’s normal oath that he or she will act in the interest of the organization’s obligations and will not take instructions from national governments. The oath, which is how international civil servants are legally distinguished from national representatives, is obviously not always honored—but it usually is. And the international civil servant’s natural inclination to emphasize ideas and values from his or her national background is balanced by the culture of the organization and by the fact that the members of an international bureaucracy typically derive from many different backgrounds. But this bureaucratic independence is limited, and international organizations are often merely channels for national government action rather than independent actors. De facto, the international executive power is often little more than an extension of the power of leading member nations. Thus, in many respects, it is not the United Nations that intervenes in a political dispute; rather, it is realistically one or several Security Council (SC) members who choose to intervene and undertake the task of drafting a resolution and negotiating it through the Council. Similarly, when one speaks of the World Bank or International Monetary Fund (IMF) making a loan to a member nation, one often really means that the nations controlling the boards of these entities agree to a proposal developed in the international organization’s bureaucracy for a loan—and these nations may have played a role in working out the key details of the terms. In fact, the regular summit meetings of the G-7 frequently define an agenda for the international financial organizations and, together with Rus-


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sia and possibly China, even for the United Nations. Moreover, in extreme cases, particularly after the U.S. withdrawal from the United Nations Educational Scientific and Cultural Organization in 1984, or the UK withdrawal the following year, or in the threats that were made in the United Nations in the spring of 2006, nations contributing substantial financial resources can significantly shape the activity of an international organization’s executive. Certainly, the point must be balanced. National leaders are sometimes subject to significant constraints from domestic power groups. The secretary general of the UN can exert some power on his or her own, and can certainly work to help build a coalition of Security Council members to deal with a specific problem. Many aspects of the lending policies of the international financial institutions are likely, in most cases, to be determined by the bureaucracy and the chief executives of these organizations, subject to interference by a member government only if that government is outraged. But it is only within a limited area that the international bureaucracies have this kind of independence—and the area will change depending on the need for expertise in the activity of the international organization and the varying attitudes of the more powerful member governments. The enormous role of members goes beyond the definition of policy and the funding of a budget to effect the implementation of policy as well. Thus, when the United Nations intervenes militarily, it does so using troops supplied by member governments—who therefore have significant control over the organization’s action. When the World Health Organization organizes a vaccination campaign, it normally does so through the national governments of the areas in which it operates, and often with funding from donor nations. And when the World Bank organizes an educational program, it is normally through making a loan to a member government, which then carries out the program. In all of these cases, there may be significant independent decisionmaking by the international organization, but the implementation of the decisions is, at least in part, in the hands of national governments.

5.3.  Implications for the power of the domestic executive As emphasized throughout this book, the current processes of globalization and of strengthening of international organizations are strengthening the

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powers of the national executives of powerful nations. This strengthening reflects the generally increasing ability of executives to act without meaningful supervision by national courts or legislatures, or even by a rule of law. New rules and regulations may be developed without the normal review processes. And the discretionary powers of executives in the international context may be exercised toward strengthening a government’s political base or even simple personal aggrandizement. This reflects the fact that most nations give their executives greater latitude in the foreign policy context—and that context has become more important with globalization and more powerful international organization. Consider, for example, the enormous role of executives and executive bureaucracies in areas such as international trade, international capital movement, global transportation and communications, and the international environment. In these areas, national executive power is often subject to minimal legislative control. The processes of international organizations also transfer power to the executives of the stronger members. It is these national executives who define the agenda for the organization and who shape the important compromises in defining the organization’s directions. Not only do they restrain the policies of the weaker members; they also strengthen the domestic power of the executives of the stronger members, for a negotiated position brought home with the imprimatur of an international institution is almost always more likely to be accepted than one put forward as a simple executive proposal. These trends with respect to internal distribution of power apply to nearly all nations. At the same time, globalization may sometimes weaken the powers of the executives of weaker nations, because it is weakening the powers of these nations generally. A.  Inherent restrictions on national executives in dealing with international institutions Nevertheless, national executives still face some restrictions in dealing with international institutions. For example, the U.S. executive is restricted domestically by its political and constitutional process, such as the obligation to respect the power of Congress. Certainly, many of these internal restrictions can be evaded, and, when pressed by the executive, Congress will rarely choose to exercise a restraining power in the foreign policy context. But the restraints are


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nevertheless real, and a failure to recognize them may have long-term consequences. They have, for example, radically shaped policy in dealing with global warming, in trade negotiations, and in the U.S. role in UN peacekeeping. The nondemocratic nation certainly has fewer internal restrictions on what positions it can take, but it is rare today that a national government has such a powerful domestic position that it does not need to be concerned with internal responses to its international policies. Special modifications to the usual legislative procedure have sometimes been made to facilitate international negotiations, and have typically further ceded power to the executive. Thus, one approach has been the use of authorizing legislation to create a “fast track” procedure. Under this U.S. procedure, used in trade agreements, the executive is authorized to enter into a trade agreement; specific restrictions may be placed upon the provisions of the agreement. Congress promises in advance that it will not consider amendments to the agreement and that it will vote on the implementing package as a whole within a specified period after the executive submits the agreement. This provides a way that the executive can make concessions in international negotiations and then be reasonably confident that those concessions will not be undercut when the negotiated package is submitted to Congress for approval. But this process in fact transfers power from the legislature to the executive, for the executive can control the political balances and insert extra commitments as necessary to obtain a legislative majority. The power of controlling the agenda is shifted to the executive—and this power is at the heart of legislative activity. Another special approach once used in the United States was the legislative veto (not restricted to the foreign policy area, but frequently used in that area). This approach delegated power to the executive on a particular issue, with a provision that the legislature could veto executive decisions through a specified vote (one-half or two-thirds). Although the power balance in this case is less clear, it is certainly possible that the perceived ability to reject an executive decision made it easier to transfer power to the executive in the first place. The procedure was declared unconstitutional as a violation of the separation of powers in I.N.S. vs. Chadha, 462 U.S. 919 (1983). There are obvious further alternatives, such as extensive informal consultations or procedures permitting legislators to participate in the negotiation processes. Although what is effective is likely to vary from nation to nation, the most

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effective congressional inputs in the United States have been through the budget process. A number of times over the years, Congress has (wisely or not) used its leverage over the UN budget to press for specific reforms of the organization. The need for Congress to approve an international financial institutions replenishment process led to the 2000 Meltzer Commission study and report, which delved deeply into Bretton Woods policy issues and probably had some impact on the IMF. This is supported through requiring executive-branch officials who participate in international negotiations to make themselves available for grilling before parliamentary committees. This has been a pattern in the United States and is formalized in a number of European nations, as exemplified by the UK Parliament’s European Scrutiny Committee. In general, however, the most important restrictions on the key members’ unilateral use of power—whether through an international organization or outside of such an organization—are those based on the global political realities of the time. During the Cold War, the United States and the Soviet Union were restricted, both within and without the UN, by their relationship of bilateral balance. Today, the U.S. can, as the recent action in Iraq has made clear, act outside the United Nations when it chooses. Nevertheless, it is still bound by limitations based on economic and political costs and on the need for allies to carry out certain of its policies. It must balance the pros and cons of operating outside an international organization, typically being able to act with greater freedom, with those of operating inside the organization, presumably with greater legitimacy. Although the United States may sometimes choose not to work through an international organization, it will sometimes also find it politically or strategically impossible to act other than through the organization. When it does so, it is forced to respect the organization’s procedures and principles, which may necessarily imply a certain degree of respect for the independence of the organization’s executive. But even realpolitik cautions a great power in its exercise of power vis-à-vis an international organization. A powerful nation normally wishes to conserve its power and therefore to build an international system that has adequate legitimacy to restrain disorder. Certainly not all in the U.S. government share the perspective that this is better done through independent international organization than through the unilateral use of power—but the approach favoring unilateral action is likely to be self-defeating if such action is taken too often.


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From this perspective, the legal principles of international organization, albeit weak restraints, are real restraints. A reputation of failing to honor international commitments or restraints can harm a nation in the long run. The calculus for less powerful and for nondemocratic powers is quite different. For less powerful nations, the chance of shaping an international organization’s policies is much smaller; these nations are compelled to accept the organization’s decisions, and they may be much less able to operate outside the framework of the organization. Hence their power may be weakened. B.  International restrictions on international executives Although most international organizations have a structure that divides power between an executive and an assembly of members, this structure is far less effective in controlling international executive power than might be expected. First of all, most of the components of the international organization are ultimately subject to the control of the executives of member nations; as a result, they will not be counterbalances to one another. A national representative to the General Assembly (GA) reflects exactly the same interests as the national representative to the SC, and may, in fact, be the same person (although deputies or more senior officials may participate in particular sessions). Second, de facto—or, in cases where there is weighted voting, de jure—key members of the organization have substantially greater power than the weaker nations. For example, if the GA pursues goals too divergent from those of the most powerful member nations, the latter will threaten to restrict their budgetary support of the institution. Thus, these weaker members can only rarely use their position on the GA as a basis for control of the stronger members; their role is at most one of being “spoilers” in such contexts as bureaucratic reform. Third, only a few international organizations have any outside mechanism to hold the organization to its designed authorities. If a member of the IMF or World Bank believes that the organization is acting ultra vires, its only way to test the point is through a vote in the board of governors of the particular organization—but this is the very organ that may be acting beyond control. There are limited possibilities of appeal of constitutional authority issues to the International Court of Justice (ICJ) in the UN context—but the worst activities of the organizations (such as total inefficiency, or the corruption or misuse of regulatory power) are likely to be legitimate, in the sense of being within

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the power of the organization. Fourth, the budget is only sometimes a useful means of control—in many organizations, when there is donor-nation concern that the voting majority will dilute the donor nations’ desires, the desired activities will be funded through a special trust fund outside of formal international budgetary control. The organization is asked to perform a specific task, but effective control by one or a few nations is maintained through the independence of the trust. Thus, about 70 percent of the WHO’s budget is controlled in ways that remove the actions from the normal control of the organization’s assembly. In international organizations, then, separation of powers works very differently than it does at the national level. Probably the most important genuine control on such an organization’s executive is the typically limited term of office. And the choice of a new senior executive is usually a highly political and negotiated matter in which key members will have substantial power—thus the United States generally chooses the president of the World Bank. There has been a donor move, called the “Geneva Rule,” to hold senior officials of UN organizations to a two-term limit, but the threat of non re-election is somewhat weakened by the difficulty of achieving agreement on a new person, and a capable and clever international executive is in a relatively strong position. The European Union (EU) is an exception here, and its special procedures deserve attention. First, its international executive is the Commission, a group of bureaucracies headed by a committee. This is an international institution that has formal power over a substantial portion of the economic policies of Europe. Its members are not subject to direction by national governments. But its power is subject to control in a number of ways. There is a legislative process, which involves the Council, which is a group of national representatives, and the Parliament, a body directly elected by the people of Europe. Although there are elaborate procedural and voting rules designed to give some independence to the Commission, the Council holds much of the effective policy power of the organization, subject to some check by the Parliament. Nevertheless, these last three bodies reflect three genuinely different interests. Moreover, under some circumstances, the Parliament can remove the Commission from power. Further, there is an effective supervisory court, the European Court of Justice (ECJ), which reviews the Commission’s actions for consistency with existing legislation, and all the other organs’ actions for consistency with the con-


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stitutional principles contained in the EU’s basic documents. Thus, in this case, there is an elaborate separation of powers. In contrast, and the difference shows the importance of culture, many of the international institutions of Asia are shaped and supervised by a meeting of national government leaders, operating in a much less formal and legalistic way. These institutions are much more a tool of the member governments. It should also be recognized that there are methods of separation of powers available at the international level that may not be available at the national level. The international organization structure is itself divided. The most significant international executives are those of the United Nations on the one hand and of the World Bank and IMF on the other. The two groups are separated, both institutionally and philosophically. This provides a protection against the possibility of international tyranny, as do the parallel divisions within the UN organizational community—between the UN itself and the various functional organizations such as the WHO, the Food and Agriculture Organization (FAO), and so forth. One can go further. Each international organization has a constituency within national governments—and they are all different. The United Nations works with military and diplomatic ministries. The World Bank works with development ministries. The IMF works with monetary and financial ministries. And on and on for the various special-purpose functional organizations. It is far harder to coordinate these entities internationally than to coordinate their associated ministries at home. At this broad level, there is also a dimension of separation between national governments and the international organization. In a pattern reminiscent of federalism, members can raise issues and look for checks on the international organization, and vice versa. Thus, on the one hand, the U.S. Government Accounting Office and House International Relations Committee conducted the initial investigations that led to independent investigations of the corruption in the UN’s Oil-for-Food Program in Iraq. On the other, an international organization such as the World Bank’s Department of Institutional Integrity can conduct an investigation that may create the pressure needed to initiate a corruption trial within a national government. This is also a basis of checks and balances.

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5.4.  Functional organizations—their power and ways to control it For two reasons, it is important to think out ways that checks and balances can be imposed on international organizations. In both the short run and the long, this is needed for the protection of freedom. In the longer run, devising checks and balances may make it politically possible to strengthen international organizations. In thinking about the possible checks, it is useful to begin with functional international organizations, because the reasonable remedies are more easily defined and implemented than for the special cases of the United Nations and the IFIs. In most cases, functional organizations provide a way for the national bureaucracies involved in the particular area to coordinate their activities globally. Such coordination is essential. Indeed, in a globalized world, each nation’s activities in each substantive area must be coordinated with the corresponding activities of other nations. Thus, U.S. health policy will be necessarily coordinated with other nation’s health policies, in part through the WHO. At the same time, U.S. health policy must be coordinated with other U.S. national policies, such as those for agriculture or the environment. This is typically done through interdepartmental procedures at the national level. There is effectively a global matrix in which national policies in each area are coordinated with those of other nations through international organization and with national policies in other areas through national mechanisms. There is obviously a problem: should the policies in different areas have to be coordinated globally as well as nationally, this requires links between several special-purpose international organizations and several sets of national bureaucracies, and is difficult. Typically, the functional international organizations act to help resolve the international concerns of the various national bureaucracies that participate in the organization. In many cases, the national processes that control the particular bureaucracy (for example, legislative inquiry and oversight and relevant administrative procedure principles) will provide adequate control. In the areas of regulatory harmonization, discussed in Section 3.7D, new international control procedures may be needed over the actions of the international organization, but they will follow the Administrative Procedure Act pattern. These are the straightforward cases.


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If, however, the bureaucracies at the national level are corrupted in their relationships with those they regulate (or at least overly supportive of these industries’ interests), the global organization will probably be similarly corrupted as well. Consider two examples. The International Air Transport Agency (IATA), an association of airlines, not of governments, albeit encouraged by governments, was at one time a way that the airlines maintained cartels to control the price of international air travel. The national regulators had taken the side of airlines against their passengers; this was extended to the international system, and national regulators granted antitrust exemptions. This changed when the United States changed its position and decided to apply antitrust law against airlines serving the nation. And many of the staff of WIPO have a strong belief that stronger intellectual property is, in essentially all cases, better, whether or not that is what is shown by economic studies. Recently, for example, the holders of copyright in digital material wanted to strengthen their rights against the new forms of copying that are feasible for on-line digital material, and to make illegal certain technologies that could be used for this purpose. They were unable to obtain the legislation they sought from Congress. They succeeded, however, in obtaining a new treaty at WIPO that included the provisions they sought. Congress was then willing to implement the treaty with a statute giving them what they wanted. In short, in at least some cases, the traditional “iron triangle” (regulatory agency, regulated industry, and Congress) has become an iron quadrangle in which the international organization becomes the fourth corner and makes it harder to change policy. It is perhaps likely that such situations will become more common as a result of the increased importance of corporate funds in many nations’ political processes. But this kind of capture is not the only possible pathology—as exemplified by the Oil-for-Food case, there are also simple failures to use funds well, and there are tendencies to set priorities in ways that miss crucial and important issues, as well as basic incompetence. In many organizations, there have been significant—and probably justified—criticisms of management perks and of nepotism. Pressures toward regional representation in staffing may lead to choice of less competent staff. Individual programs that may once have made sense are likely to remain many years past their need. As a matter of practical politics, responding to these situations is difficult. In the case of regulatory capture, the executives and parliaments of the world

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may be sympathetic to the regulated industry (sometimes either out of their own corruption or out of nationalism). In few cases do the activities of the more technical international organization gain much attention from the press. Parliaments are unable to question the officials of the international organization, because (and properly, under international law) such officials generally have a form of diplomatic immunity that protects them from, among other things, being called to testify before national parliaments, and will also protect them from certain forms of court proceedings. Thus, the normal way for parliamentary concerns to be expressed is through inquiries in which a nation’s own representative to the organization is called to testify, and through legislative actions directing the nation’s representative to vote in a particular way in the international organization, or through threats to reduce funding to the organization. In some cases, even testimony by the representative raises legal questions, for the representative may be formally an international official as well as a national official. (There is always, of course, the possibility of informal meetings.) As noted above, internal controls work only somewhat well within international organizations. Limits arising from informal review and the press have also often been ineffective—probably because of relative lack of interest by the press and the public, rather than because of any structural characteristic of the international organization. Generally, the functional international organizations are followed primarily by a specialist public, press coverage is quite limited, and even the fairly well-informed public rarely has more than a superficial knowledge of what is happening within the organization. And, as noted above, action in response to problems is likely to be resisted by the executives, and sometimes even the parliaments, of member states. Hence, this has rarely been a source of effective control. Even so, it is the informal review that probably offers the most promise for defining a response—and it can be strengthened. One support would be a solid Freedom of Information Act applicable to the international organizations, and to the activities of associated national bureaucracies as well. That would make press coverage more feasible. Certain negotiations will of course be conducted informally to shield them from such revelation; but the net effect is almost certainly positive. Another related support is stronger nongovernmental organization (NGO) watchdog activity, presumably reflecting both consumer and


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environmental interests and the like on the one hand, and business interests on the other. This could be strengthened by developing more analytic and think tank organizations and giving them greater resources to examine international organization activities and to propose alternatives to those currently evolving from international organizations. A further approach is a new international audit agency, ideally ultimately reporting to a combination of national parliaments. Such an agency might combine the characteristics of a regular financial audit operation, a fact-finding organization such as the Congressional Budget Office, and an analytic organization such as the Office of Management and Budget. Such an agency would help immensely in bringing abuses to attention and could be used by reformers in efforts to deal with such abuses. Assuming it had been available at the time, it would have been an ideal mechanism to handle the Oil-for-Food investigation. A more detailed proposal toward creating such an organization is presented in Chapter 8. Finally, there could be some form of interparliamentary investigative body—that is, a mechanism in which the international organization’s formal immunity is waived for certain types of investigations by a committee created by a group of parliaments, with the group designed to provide a viably broad international perspective in its inquiry.

5.5.  The UN and controlling the international security function Certainly, in some sense, the United Nations is not strong enough; disagreement among the members of the SC often leaves it unable to exercise power. This problem is nowhere near as bad as it was during the Cold War, but it is still a real problem, especially when a nation seeking to avoid UN sanctions can find a supportive permanent member of the SC. The organization constantly faces difficulties in raising the funds and the troops necessary for peacekeeping. And the United Nations as a whole has been unable to play any effective role in coordinating the activities of the various functional development organizations that are associated with it. Yet, from the perspective of accountability, the five permanent members of the SC can do essentially anything they want, as long as they can agree upon it and persuade enough of the other members of the SC. These members are, in

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an important sense, the executive of the organization, and exercise substantial control over the formal executive, the secretary general. The SC has the formal responsibility for controlling and utilizing force in the international system. The SC has authorized important sanctions. It has become a central player in the effort to place teeth into troublesome findings of the IAEA. It is looked to in efforts to prevent genocide or to hold elections in a troubled nation. And it has created criminal courts, albeit against alleged war criminals rather than alleged terrorists. It has acted quasi-legislatively in Resolutions 1373, imposing antiterrorism measures in 2001, and Resolution 1540 to impose restrictions against the spread of weapons of mass destruction. These measures have provoked serious question.2 And the SC is now holding many more meetings than it used to.3 Indeed, the SC’s authority is far greater even during the Bush administration than it was two decades earlier—and this trend is likely to continue in spite of domestic U.S. doubt about the organization. Thus nations other than the permanent five are reasonably fearful whether the United Nations can succeed in encouraging the great powers to exercise their power wisely. Although there is no question that the Secretariat must be independent, and must, at the same time, execute the mandates of the SC and answer to the GA, the key accountability issue for the United Nations is to define effective restraints on the SC. Doing so may make it possible for the organization to be given more effective power. There are two fundamental underlying tensions. The first is between the United Nations and the United States, the world’s sole superpower. The U.S. has shown itself able to ignore the UN and to act unilaterally (or with a group of allies chosen outside the UN framework), as it did (typically with praise) in Bosnia and (typically without praise) in Iraq. The United Nations is certainly not the preferred institution of the Bush administration, and the U.S. has formally stated that it will not regard itself as bound by the Charter’s prohibitions on the use of force. Realistically, these differences can be worked out only over time, through political change in the United States, and through a continuing willingness of the other permanent members of the SC to respond to reasonable U.S. concerns—for example, vis-à-vis nonproliferation and terrorism. Absent some unlikely new global bargain, formal U.S. acceptance of the Charter’s limitations is highly unlikely (in spite of the fact that the limitations are included in a treaty signed by the United States). But, de facto general respect for these limitations is likely—and the experience of Iraq may well lead future


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U.S. executives to take the advice of other members of the SC more carefully. The long-term trend has been for the institution to play a greater and greater role in global security, and for it to be looked to more and more often for the authorization of military action. The other tension is between north and south, and can also be described as one between developed and developing worlds, or between SC and GA. In the original UN design, the GA was intended as a weak control on the SC, which was intended to have great power. If anything, the GA’s ability to serve that control function has weakened. The SC has made many of its deliberations confidential, although these deliberations were long ago more public. The major donors, who overlap in part with the permanent members of the SC, have substantial control over the organization’s budget. And even though the GA has a number of relevant powers, it has operated through committees that are much too large, and has been ineffective as a deliberative body. The tension is shown in the 2006 debate over UN administrative reform, in which several of the great powers, led by the United States and Japan, sought to give the secretary general greater flexibility in reallocating the budget, but the developing nations were very concerned that this would weaken some of the GA’s current authority. In developing responses to these tensions, it is frequently assumed that Charter amendment is politically unrealistic. This may be so today, and certainly there seems no chance of amendment for SC restructuring (on which the 2004 High Level Panel was unsuccessful in its efforts to develop a consensus proposal). In fact, however, there have been several amendments, one adopted in 1963 to expand the membership of the SC, one in 1965 to create a procedure for a review conference, and two entering into force in 1965 and 1973 to expand the Economic and Social Council. But contemporary amendment seems unlikely, except as part of the kind of major global restructuring that might be associated with the resolution of a very serious crisis. Hence, it seems wiser to concentrate on procedures and understandings that could create, in essence, an informal revision of the system—and may build what amount to new constitutional practices. This is the way, for example, that the Uniting for Peace resolution was developed in 1950 to give the GA a role when the SC was unable to act, and the way the Committee on Program and Coordination was created and first used in 1966 to give the major donor nations a greater effective role in the UN Economic and Social Council’s budget process.

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Significant restraints could be imposed by defining guidelines as to the circumstances and procedures through which the SC will intervene in various contexts.4 Obviously, there is no way that all discretion can be eliminated in international intervention, nor is it legally possible for the SC to bind itself in advance in a way that it could not override. But were guidelines to be thought out, accepted in advance, and then followed in a series of particular cases, the SC could, over time, provide increased legitimacy (and perhaps predictability) to its decisions. The guidelines might be substantive—for example, the SC might not intervene in a nation unless (a) the nation lacks an effective government, (b) there is an immediate threat of genocide, (c) there is an immediate threat of development of weapons of mass destruction, or (d) the nation is supporting or harboring a terrorist group that has done harm to citizens. The 2004 High Level Panel suggested guidelines on the use of force, taking a somewhat different but parallel approach; its guidelines relied on the classical principles for a just war. The guidelines might also (or alternatively) be procedural—the SC would not intervene without perhaps (a) notice to the world that it is considering such intervention, or (b) providing an opportunity to the nation in whose territory it is intervening to present the counterarguments in a public session of the SC. Or the members of the SC might not use the veto to prohibit intervention in behalf of a nation threatened by weapons of mass destruction. Such quasi-legislative guidelines might be stated by the SC as rules that its members will follow in the future, and perhaps be coordinated in advance with entities such as the IAEA. They could also be debated before or resolved by the GA. The GA does not have the formal mandatory power of the SC, nor does it have power to bind the SC, but its participation would increase the legitimacy of the guidelines and make it harder for the SC later to modify its positions. The GA might even take the lead in defining such rules, and thus increase pressure on the SC to adopt them. This process has already been used in the GA adoption of many of the High Level Panel recommendations through the 2005 “World Summit Outcome Document.” And if an interparliamentary body, such as that to be proposed in the next chapter, were created, it might be an ideal place—perhaps informally at first and more formally sometime in the future—to ratify or urge changes in the standard. Arrangements of this type could amount to de facto Charter reform and could build legitimacy through continued respect. Similar devices have been used to obtain constitutional re-


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form in other contexts, as in the commitments by a variety of EU entities to honor human rights in their Charter of Fundamental Rights of 2000. There are also ways to build countervailing power in the other organs of the United Nations. The secretary general is, of course, in a politically weak position, but might also be able in some cases to direct and restrain the SC through increased ability to present alternative courses of action publicly. This legal right is already there; the problem is giving the secretary general the practical ability to exercise the legal right. This would require giving the secretary general additional access to data, presumably through a network of representatives, and additional strategic analytic capability. There might also be ways in which the GA could be given a stronger capability of evaluating the action of the SC, presumably through reports or perhaps hearings and a more effective committee structure. The High Level Commission proposed a Peacebuilding Commission that would be required to provide “early warning analyses”; this could have been a start on developing ways to raise new issues to the SC, but in the 2005 UN acceptance of some of the Commission’s principles, the proposal was restricted to a way of helping failing states. In some cases, issues—such as whether the SC has the power to carry out a particular kind of action—might regularly be referred to the ICJ under that court’s power to hear cases under its advisory jurisdiction. This is likely to be useful in only some cases, for the timeframe for judicial procedures is much greater than that often needed for SC action, and ICJ decisions are only rarely likely to be relevant to the hard problems the SC faces in its security decisions. Nevertheless, the ICJ might be asked to review the statements of policy just described in order to verify (or not) that they are consistent with the purposes of the organization. Moreover, and more important, the United Nations and its affiliated organizations could provide judicial review of the ways in which their enforcement actions affect individuals. The SC has already set up courts to try those leaders who violate certain human rights through actions such as genocide. It could similarly set up a court to provide judicial review of official UN actions against individuals, including those arising out of peacekeeping operations, out of interventions in failed states, and out of antiterrorism and antiproliferation actions. Existing bodies are not appropriate for these purposes. The ICJ is de-

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signed for nation-to-nation disputes; the existing international criminal courts are designed for serious war crime prosecutions. What neither institution provides is a forum for a citizen to complain that he or she was mistreated by UN enforcement action. New arrangements are necessary here and could be created by the SC, presumably under its quasi-legislative power. It is relatively easy, for example, to envisage a commitment by the United Nations that, in its enforcement actions, it will honor the various human rights covenants (perhaps with some adaptations to meet the special issues of international operation) and establish a judicial procedure, open to individuals to protect violations of human rights by the agents of the United Nations. And the same kind of system could readily be extended to the actions of organizations such as the IAEA. Further, similar procedures could be used to create the human rights provisions needed to control the United Nations in its nation-building, including both protection of the rights of individuals and protection of the rights of the societies in which peacekeeping is being conducted to organize democratic institutions. The need for such arrangements was pointed out in Section 2.7. Ultimately there would certainly need to be a review institution such as a court to ensure that the rules are actually followed in particular cases. Although they might best be created by treaty (to allow unification with the similar institutions needed for the IFIs), precursors could be accepted by or even be created by the mechanism described in this section. In addition, the concept of an international audit commission, proposed in the previous section for the functional organizations, could reasonably be extended to the United Nations. It is more adapted to monitoring the Secretariat than to monitoring the SC, but it could still conduct studies that might, on occasion, encourage the SC to deal more effectively with different kinds of problems. (After all, even Oil-for-Food derived in large part from failures by the SC members to monitor action under the resolution that set up the program.) Similarly, the international freedom of information act concept certainly applies to some of the Secretariat’s and perhaps the SC’s activities. Thus the problem of protecting democracy within the UN system is far less a problem of Charter reform than one of defining the appropriate needs and persuading the SC and perhaps the GA to accept policies that could gain stronger and stronger legitimacy over time.


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5.6.  The IFIs and the development process The IFIs, particularly the World Bank and the International Monetary Fund, but also including regional international banks, are among the most powerful international organizations today, and their bureaucracies are today’s most powerful international executives. Through the conditions they impose on their loans and drawings, they control much of the economic activity of many of the poorer (and even middle-income) nations of the world. These conditions almost always affect, for example, the exchange rate and the government budget deficit. Sometimes they go further and require the elimination of particular subsidy programs that affect prices. In some cases, they have required privatization or regulatory liberalization of particular sectors, as exemplified by the banking law changes imposed upon Korea as part of the IMF Asian bailouts of 1997. Moreover, in some African nations, lowering of trade barriers has been demanded, even without the nation’s obtaining the reciprocal concessions that are typical when such barriers are lowered in the WTO context. Similarly, when the poorest developing nations receive support, they are required to prepare a Poverty Reduction Strategy Paper (PRSP) that outlines their economic plans— and the terms of the PRSP are, in some part, effectively imposed on the nation. As noted in Chapter 3, some of these conditions are unavoidable. There is no value in loaning when the recipient will waste the money with bad policies. The IFIs must manage their resources prudently and therefore grant loans only when the loans are likely to be repaid. And there is no question that the IFIs sometimes benefit national governments by serving as a “fall-guy” to bear the responsibility for politically unpopular policies that many government officials recognize as prudent. But there remain two kinds of political issues. First, sometimes the strategies may be wrong—there has, for example, been debate over whether the type of financial market opening demanded in the Asian bailout was really economically sound. Thus there need to be global checks and balances in the conditionality formulation process, which is heavily (and unavoidably) weighted in favor of the most economically powerful developing nations. To a certain extent, these nations will, of course, vote to support their own interests and ideologies; the banking sector reforms imposed on Korea during the Asia bail-out certainly reflected U.S. policy and benefited the U.S. banking industry.

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Second, borrower-nation policies are sometimes imposed through private discussions between IFI officials and national government officials, rather than by the borrowing nation’s constitutional processes. Although the policies may still have to be formally accepted through domestic legal processes, the evasion of proper procedures can significantly weaken the constitutional fabric of national governments, and the domestic processes are sometimes ignored. Moreover, national leaders may end up granting their effective allegiance to the IFIs rather than to their human constituents. National constitutional processes—likely already to be vulnerable—are displaced in favor of international processes. And both in the policy formation process, where the IFI’s directors are controlled by the executive, and in the borrowing process, where the IFI negotiates with executives, executives are privileged at the expense of legislatures. These problems have been recognized, and there have already been several kinds of responses.5 Legislatures in key donor nations are beginning to seek to impose policies on the IFIs. In some cases, those who doubt the wisdom of particular programs have lobbied the developed nation governments to use this power in ways that encourage reform. For example, lobbying in the United States led to the adoption of a provision (Section 596 of the FY 2001 Foreign Operations Appropriation Bill) that directed the U.S. executive directors of the IFIs to oppose loans that would require user fees for health or education. Likewise, in the creation of the Meltzer Commission in 1999, Congress pressed the U.S. government to exercise its power in responsible ways and toward certain reforms. The UK Parliament held hearings on conditionality in 2005. Similarly, European NGOs have encouraged their nations to take actions at the IFIs that, they believe, will benefit the developing nations. But it must be recognized that this reliance on donor-nation legislatures is an indirect approach. Certainly developed world-experts can help in discussing and evaluating particular loan policies. But neither Congress nor European NGOs are necessarily good representatives of the interests of the citizens of poor nations. For developing country interests to change the policies of their own nations by arranging for lobbying in the United States and Europe is the long way around. The IFIs have recently made much more data public; conditionality documents that were at one time secret are now generally available to any researcher or activist. This clearly strengthens political visibility and permits more in-


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formed discussion domestically within the nations, as well as in the global economic community. Formally, these documents are not made public as a matter of course, except as agreed by the government of the borrowing nation. It would be good for that government not to have such a veto. The World Bank set up an Inspection Panel system in 1993, under which affected people can require specific Bank activities to be reviewed by an independent panel for compliance with the Bank’s various guidelines on issues such as the environment and the treatment of people displaced by large-scale development projects. The Panel is, for all purposes, a form of court; it helps ensure accountability in the execution of a project, although it does not help with the conditionality aspects of a loan decision. The Panel system is particularly valuable when there is no effective local court system or when national statutes or constitutional provisions are not available to govern the issues. When a nation has a functioning judicial system, it is not at all clear, however, why the legitimacy of a development project should be measured against World Bank standards in an international quasi-judicial form rather than against national law in a national judicial forum. Another new IFI approach, at least for the World Bank, relies on obtaining local opinion through contact with NGOs. In some cases, this contact occurs with global or developed-world NGOs at the headquarters (in Washington or at large-scale meetings elsewhere), where NGOs attempt to affect the overall policy positions of the organizations. This is an important form of outside input, but it may reflect developed-world NGO perspectives rather than local perspectives. The Bank is now seeking therefore to cooperate with NGOs in the countries it assists, as by including these entities in consultations on the poverty reduction strategy documents discussed above. (It must be noted, however, that some of the documents read as if they were drafted in Washington!) Part of the Bank’s goal here is to help build up a “civil society” in the hope that this will contribute to the stability of the government of the nation involved and to that government’s ability to follow a rule of law. There are certainly risks that the reliance on civil society will undercut reliance on domestic constitutional institutions (which are likely to need legitimization) and that the positions of the local NGOs will be shaped more by the international NGOs with which they may be cooperating than by local considerations. This is a topdown concept of achieving legitimacy through consultation with NGOs, rather

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than a bottom-up process of actual democratic review.6 Nevertheless, this is a healthy direction—in the short term, civil society may well be more effective than legislatures, and in the long term, legislatures will be unable to work well without civil society. There are two big gaps in these reforms. The first is that the basic policysetting process, that in which overall conditionality principles are designed, is still dominated too much by the executives of the most powerful nations, with a little input from NGOs and from policy analysts, primarily within the developed world. This issue will be discussed in the next section, which focuses more specifically on the G-8 as the key framers of these policies. Second, the consultations within the developing nations are much too likely to slight or ignore national constitutional processes. To fill this second gap, it is essential that the IFIs respect the constitutional processes of the nations to whom they provide funds. This means at the very least that conditionality provisions with significant political or economic impact should not simply be negotiated in private with treasury ministers and then imposed on the Parliament. Constitutional processes (perhaps unless manifestly unreasonable in the particular nation’s political system) should be respected as part of the process of building a rule of law and genuine democracy in the nation. Depending on the details of the nation’s process, this would normally be through procedures such as presenting a draft to a legislature, and providing testimony by officials in legislative hearings.7 It is also necessary to improve the way in which the IFIs interact with those national governments that have not yet incorporated a solid rule of law. The IFIs are often called in to help a nation that is emerging from civil war or other disaster—and, as already noted, the temptation is to help the nation create a strong leader who can resolve the difficult issues by power and will. The IFIs should be required to help these nations to develop constitutional procedures that move toward a rule of law and toward democracy. The reasonable approach is probably for the IFIs to follow a general timetable and group of requirements for the various logical steps in creating a constitutional democracy—for example, for steps such as creating a consultative body, for creating a constitutional convention for drafting a more detailed constitution, for establishment of a working independent judiciary, and for conduct of elections. In many cases, this would be done in cooperation with the United Nations in


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its peacekeeping and nation-building functions. The particular design of the democracy would, of course, vary from nation to nation. Policies to move in these directions are not enough, for the key officials in the IFIs cannot be counted on to police themselves. It is essential to have a bill of rights, which the IFIs would commit themselves to honor in all their activities. The IFIs have already developed special rights documents governing such issues as displacement of people under land development projects and treatment of indigenous persons. These should be expanded to include broader principles governing equality of women, respect for property rights, recognition of participatory rights including consultation, and creation of and compliance with democratic constitutional processes, especially with respect to major reforms required by loans or conditionality, and perhaps a principle on fair economic distribution. In some cases, such rights will be defined in a national constitution and be enforceable through national courts against the national government. Where such courts do not exist or where they are corrupt or ineffective, the traditional inherent and equality rights can best be enforced by giving an international body, perhaps based on the existing Inspection Panel, jurisdiction over cases initiated by individuals against the international organization alleging that the international organization has failed to live up to the rights in its structuring of the nation. This requires that the reviewing body have a set of principles to define whether a nation has an effective judiciary—something which is certainly touchy but is also essential. For the more abstract distributional and participatory rights, judgments are necessarily more difficult and more political, and review perhaps best carried out in a more informal consultative way. At least until recently, the IFIs regarded their charters as prohibiting them from favoring one sort of legal system, for example, democracy, over another, such as autocracy. This is no longer acceptable. The IFIs have already decided to interfere with national government processes in order to control corruption. They must go further. Although the easiest approach may be one based on expansion of the existing IFI treatment of particular rights, there must be congruity between the bill of rights applicable to the IFIs and that applicable to the UN in its nation-building. There are obvious options of joint programs or of the UN building analogues to the existing IFI systems. And a free-standing bill of rights could more readily be applied to bilateral assistance programs, which raise some of the same questions.

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In addition, of course, it is important to require the IFIs to accept a strong Freedom of Information Act and an international analogue to the GAO, as suggested above for other international organizations. The arguments for this are particularly strong in the IFI context, where questions of military surprise are minimal and where there are enormous impacts on national budgets and on individuals’ economic situations. Beyond the World Bank’s Inspection Panel system, there are already internal groups performing such functions, the Operations Evaluation Group in the Bank and the Independent Evaluation Office in the IMF. They could be part of the basis for a more fully independent audit system.

5.7.  Security and economic coordination: the G-8 as the de facto global executive Arguably, the global division of responsibility between the United Nations on the one hand and the Bretton Woods or IFI institutions on the other produces a form of separation of power that protects the world from the power of either organization. There is some force to this point. But this is a very different separation of powers from that of Montesquieu’s division of legislative, executive, and judicial powers. In today’s international system, there is a division between the two groups of institutions; institutional separation does complicate joint action and therefore decreases the risk of tyranny. The problem is that there is substantially common control of the two groups of institutions. The institutional separation is particularly significant when the two groups of institutions are attempting to assist in building nations. For example, in the settlements in El Salvador in 1992 the United Nations negotiated arrangements with the rural insurgent forces that involved access to land and the like. At the same time the IMF negotiated financial arrangements which included restrictions that effectively made it impossible to live up to the commitments to the rural forces.8 Clearly, avoiding this kind of problem requires coordination of bureaucracies. There are important differences between the bureaucratic cultures of the more political United Nations, with greater input from developing nations, and the more technocratic IFIs, with greater input from donor nations. These really complicate the coordination, as do the cultural differences among the different relevant ministries within the nations involved. Nevertheless, the ultimate power in both the SC and the IFIs currently re-


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sides in a relatively small group of nations that are often willing and able to impose their agenda on the organizations. This is the G-7/G-8, which is the world’s most significant international executive (just as the WTO is the world’s most significant international legislature). Traditionally, the G-7 was a group of the world’s leading democratic economically powerful nations. It has expanded for some purposes to the G-8, which includes Russia. The group evolved in the mid-1970s as a way to deal with financial coordination in the wake of the collapse of the traditional fixed-rate exchange system, and has been meeting regularly ever since. The location of the meetings rotates among the members, and the host nation has significant power to shape the agenda. Generally, the key negotiations are at the staff level before the meeting, which becomes a combination of ratification session and photo-op for the political leaders. The members of the G-8 have enough voting power to impose their agenda on the IFIs, and, with negotiation with China, on the Security Council as well. (There are also serious proposals to bring China into the group, because of that nation’s growing economic power.) And the G-8 members are able to direct the actions of many of the special-purpose international organizations. On occasion, the same group of nations holds meetings of ministers interested in other topics, such as justice, health, or agriculture—although those special-purpose meetings will sometimes include a much broader membership (either from all EU nations in the case of the EU, or from a major sample of the world in the case of ministerial-level meetings of special-purpose international organizations). This power of the G-7/G-8 is essentially uncontrolled. It is probably this group, for example, that took the lead in placing the issue of corruption within developing nations on the global agenda. And it was probably also this group that defined the effective terms of debt relief and of some aspects of antiterrorist activity. It will almost certainly be this group that devises a new international economic architecture in response to the financial problems of 2007–8. There are internal limits to the power of the G-7/G-8, because the members must be able to achieve at least partial consensus in order to be able to act effectively. Moreover, there are limited checks and balances within the institutions that the G-7/G-8 attempts to control. And there are limited checks and balances within the policy-making processes of each of the member nations. But even with these limits, the group’s power is significant, creating a potential for resentment in the rest of the world and for loss of legitimacy of organizations dominated by the group.

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There are many ways to proceed to gain legitimacy and avoid resentment, and there will be strong pressure on global leaders to do so de facto. Side discussions among national leaders such as the G-8 members are a reasonable and necessary part of the international organization process, and they are an important part of defining the international agenda. Certainly, the G-8 members frequently have the power to proceed without obtaining agreement from anyone else—but they will almost certainly recognize that it is often unwise to do so. Hence, they may expand their group, or they may find ways to consult with others (as they are already doing). One obvious approach is to expand the group to include key developingnation leaders along with the developed nations that make up the current core group. Thus, as just noted, there are proposals for including China, to take into account that nation’s increasing financial power; this would also include the five permanent members of the SC. There are also proposals for expanding the G-8 to a G-20 (sometimes called an L-20) to include a much larger number of developing nations. Such expansion has been happening informally through arrangements for a number of developing nations to participate in parts of the G-7/G-8 discussions. There has also emerged an entirely separate G-20 or G-20+ of developingnation leaders seeking to counterbalance the power of the G-7/G-8 and to formulate common developing-nation positions, particularly in the area of trade. This is an appropriate and understandable response. It reinforces the northsouth division of the international system, so it must be balanced by increased opportunities for negotiations between representatives of the developed and of the developing-nation groups. In response to the problems associated with any of these choices of expanded membership, the best approach is probably to define membership in an ad hoc way according to topic. There might be a series of meetings, with the choice of member nations depending on the topic, and allowance for a cycle of several discussions on each issue area. If the issue is primarily monetary questions, a G-8 plus China might be ideal; if the issue is debt relief, it is essential to include some debtors. A discussion dealing with nuclear proliferation might similarly involve a very different membership from one involving terrorism with conventional weapons. Moreover, depending on the topic, it may be more important to bring together a selection of trade ministers or justice or agricultural ministers than heads of state. Enlargement of the G-7/G-8 is already


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fairly common on an ad hoc basis for dealing with particular issues and topics. But the G-7/G-8 nations have always maintained the core role, with representatives of the developing world as guests rather than participants in the core discussions. The need is to give a broader group of nations a key role—but it is essential that there be only a reasonable number of such nations—there is relatively little value in bringing all nations together. And it would be wise to have a stronger process for reporting to both national legislatures and the GA. It is obviously hard to choose the membership of each of the working groups, because that choice should not be entirely in the control of the existing G-8. Participants in the particular meetings might best be chosen through regional caucuses or through discussions in the relevant special-purpose international organizations, because the representatives to these organizations would know the most about the different kinds of interests and perspectives and who might best represent the various important viewpoints. Conceivably, also, this task could be undertaken by a committee of the General Assembly or of the Economic and Social Council (ECOSOC). The interests of nonparticipants could be protected through norms of rotation, through the demands they would make as part of agreeing to the choice of participants, and through obligations of reporting to the broader community. Small-group discussions would also often still need to be implemented through larger meetings in which normal international negotiation or international organization constitutional procedures would apply, again protecting the nonparticipants. Regardless of how participants are chosen, there should be an obligation on them to provide adequate staffing in preparation for the meetings. Once again, there is the issue that all these groupings strengthen executives at the expense of legislatures. An easy response here is to require that (at least the democratic) participants consult their legislatures as part of the staffing for the meetings. As in other areas, the rational response is through a move toward global review by national legislatures But this is not enough to institutionalize legislative review and to provide nonexecutive positions an opportunity to shape the agenda. As will be seen, what is probably the best approach in the G-X context is to hold interparliamentary discussion meetings integrated with or in parallel with the high-level executive discussions. The membership of these meetings would presumably comprise members of the relevant subject matter committees of the parliaments of the participating nations. This would

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provide a focus and basis for parliamentary interest; it would permit the beginning of the construction of cross-national political coalitions; and it could provide the beginning steps toward standing interparliamentary bodies on specific topics. Such bodies would sooner or later be able to affect the agenda in their areas of expertise, at least among the democratic members of the G-X.

5.8. Conclusions The various steps essential to democratization of the international executive can now be summarized: The equivalent of a Freedom of Information Act should be imposed on all international institutions. A new international auditing and investigating body (analogous to the U.S. Congress’s General Accountability Office, the U.S. executive’s Office of Management and Budget), and the World Bank’s Independent Evaluation Group, should be created and given authority over all international organizations. It should ultimately report to the parliaments of member nations. The United Nations and the IFIs should adopt a bill of rights, and create a judicial procedure by which individuals affected by the actions of these bodies can ensure that the organizations’ actions are taken in accordance with the bill of rights. This bill of rights should include requirements, perhaps enforced in more political ways, that the organizations act in accordance with national constitutions (at least where those constitutions satisfy reasonable standards) and that they build democracy in the nations they assist. In the case of the United Nations, the SC and the GA should work out arrangements through which the SC accepts procedural and substantive limitations on its action in order to provide more predictability and legitimacy. The G-8 should be expanded to include regular consultations with a wider group of nations, on a repetitive basis, so that, with respect to each topic area, there is a focus of developing world participation and expertise. It should also include regular parallel interparliamentary sessions (a point that will be discussed in the next chapter).

chapter six

The International Legislature Negotiations in the World Trade Organization, and its predecessor, the General Agreement on Tariffs and Trade, have led to important international rules affecting such areas as food safety and intellectual property. Those nations with the largest markets naturally have especially strong influence over the negotiations. In some nations, the negotiators are subject to essentially no democratic control. Are such agreements consistent with democratic theory?

The international legislative function is exercised in treaty negotiations, in the World Trade Organization (WTO), which is probably the world’s most successful global legislature, in regional organizations such as the European Union (EU), and in functional organizations such as those managing radio spectrums and setting safety standards for international tankers. The chapter begins by reviewing the functions of a legislature—which go well beyond lawmaking— and then turns to the differences between national and international methods of lawmaking, as well as the differences in other legislative roles such as fiscal governance and oversight. (Some of the oversight points were discussed in the previous chapter in connection with the control of the international executive.) The present chapter concludes with a discussion of the many difficulties facing effective international legislative representation, and specifically recommends special-purpose interparliamentary bodies as the most effective immediate international constitutional goal.1

6.1.  Introduction: law and the functions of a legislature At the national level, legislation is typically viewed as providing a set of rules to help maintain order. Yet the reality is often rather that legislation serves to control the government’s efforts to enforce order. In a society subject to the rule of law, only legally specified crimes can be prosecuted, and national governments are restricted in what they can do to individuals. And for a policy to

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take the status of law, it must, directly or indirectly, be ratified by a legislature. Indeed, the European Convention on Human Rights sometimes permits the executive to derogate from central general rights only “as is in accordance with a law and as is necessary in a democratic society.” The intended meaning of the first part of this proviso is that the executive can act only after the legislature defines a set of goals and procedures. But legislation is not only part of the criminal enforcement process. It also serves to regulate noncriminal relations among private citizens. It authorizes freedom of contract, and enforces those contracts that do not violate public policy; it allocates the cost of accidental harms and other injuries. It provides a mechanism to resolve inheritance disputes. In these areas, law provides uniformity and predictability—were it not for the law, one would not know what insurance to buy or what contracts would be enforced. Further, law, not necessarily in the form of legislation, often controls the institutional structure and procedures of the government. The constitution of a society is a form of law, as are the administrative procedures and goals under which the government acts to regulate the economy and protect the environment. This form of rule of law may, depending on the particular society, be enforced by judicial review of certain government allocations of authority. Many of these forms of law—whether criminal or constitutional—are generally obeyed from a sense of obligation and from a recognition that the costs of disobedience might well be harmful anarchy, rather than from a fear that actual enforcement mechanisms would be applied in the particular case. Few executives would be unable to overrule the rule of law if they so chose; they recognize that they generally must not so choose, and that so choosing is likely to precipitate a crisis. In lawmaking, our traditional picture is of a body of wise representatives defining the terms of legislation in a deliberative process that directly or indirectly reflects the desires of those who vote for the representatives. What is provided by the legislature is transparency and an opportunity for participation in making the various rules to be used to control criminal behavior, to resolve disputes among economic groups, and to control or give discretion to the executive. Not only is the legislator in some sense closer to the people than the executive, but the deliberative process may help in finding solutions that are better for all or many parties. The result is an increased legitimacy in the rules. Although this idealized picture of thoughtful deliberation must be highly qualified, it is cer-


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tainly accurate in many respects. Within this picture, there are many theories of the extent to which the representative should vote as we would have voted or, alternatively, should exercise significant independent expertise and judgment. Similarly there are debates over the extent to which the representative should pursue totally the interests of the district he or she represents or, alternatively, should take into account the interests of a larger community. Nevertheless, the picture must be qualified in extremely important ways. First, the actual text of proposed legislation often originates in the executive branch, typically because of a need for special technical skill in drafting or policy-making that may not be shared by the legislature. In such a situation, the legislature provides an opportunity for public discussion to identify unintentional problems in the draft and to revise the draft to correct those problems. The legislature plays more a ratification and a checking process than an agenda-shaping process. It does, however, confirm that a group directly elected by the citizens is supportive of the legislation. Second, the legislative process is often much more one of log-rolling than of deliberation.2 Much (albeit not all) legislation today amounts effectively to a tax on all to provide a subsidy for a few. This effective tax may take the form of an actual tax, but it is more often a restriction that amounts to an implicit tax. Thus a tariff restricts imports to raise prices for all to benefit a particular industry, and a product regulation may benefit the supplier of the approved product while prohibiting competitive products that might bring down the price. (The regulation may still be wise.) To a great extent, this redistributive effect is essential to legislatures, permitting a legislator to attempt to favor his or her own district at the expense of others. In this perspective, what makes legislation possible is that a coalition of half plus one of the legislators can benefit their districts by combining support for the special-interest legislation that helps their districts, and thus produce a package that, on net, benefits the districts represented in the majority coalition. This is a highly indeterminate process, since a different package could be defined to benefit a different majority of legislators. A large part of the legislator’s task is to ensure that his or her own preferred package components are in the successful overall package. The power of political parties in defining alliances and of the executive in initiating legislation has a significant impact on the structure of the successful coalition. Third, and to an extreme extent in the United States, but in a pattern shared with other nations, the loyalty of the legislator is partly to the groups contrib-

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uting to campaigns. Because these contributors make up only a portion of the community, only a portion of the community is represented—this favoritism is denied, and certainly violates democratic theory, but is nevertheless a reality. As a result, a common form of legislation is often ratification of a deal cut by a negotiation among interest groups outside the legislature. The threat of one-sided legislation pushes the negotiation; having a negotiated result makes it easy for the legislators to act without offending their contributors on both sides. Examples range from the U.S. reaction to the Arab embargo of Israel in which 1977 legislation was effectively negotiated between the business community and American Jewish organizations, to the 1998 Digital Millennium Copyright Act, negotiated between Internet interests and intellectual property interests. In both cases, Congress simply enacted the terms of the compromise. But the phenomenon is clearly a broader one—contemporary legislation reflects the growth of a variety of strong pressure groups, and the bargaining between these groups in the shadow of the legislature strongly influences the outcome. The boundaries of the legislature are effectively amorphous. Beyond producing legislation, legislatures often have the power to approve budgets. This power has probably been associated with the legislative function because both roles need the kind of support and review that is associated with a legislative representative’s presumed closeness to the people. Indeed, it is possible that, in feudal times, the raising of taxes—and the making of laws—were activities in which the middle-level lords—who had the power to make life very difficult for the emerging central government—actually agreed to tax or legislate for themselves for the good of the community. It is also quite reasonable for the legislature to emphasize oversight of the way that the money it is granting will be used, as well as to evaluate the effectiveness of existing programs or review those programs for ways in which they might be improved. Thus an effective legislature today needs an oversight capability, which requires a right to investigate the executive’s actions and supporting institutions such as a committee system or an analogue to the U.S. Government Accounting Office. In particular systems there may be other legislative roles such as control over executive appointments—this is exemplified by the role of parliaments in a cabinet system in choosing the executive and the role of the U.S. Senate in confirming certain executive appointments. All these processes are more successful if the legislature has a constitutional jealousy to protect its prerogatives against the executive.


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6.2.  Political parties Electoral processes and therefore political parties are essential in order for the legislature to fulfill its role of making rule-making legitimate and acceptable to the people. There are obviously many different reasonable structures of legislative/executive relations, of representation procedures, and of political parties. But, for success, there must be a way by which the people choose the legislature—otherwise the legislature can provide only the benefits of deliberation and cannot provide the benefits of representation and legitimacy. Practically, the effective conduct of elections and of the legislative function requires parties. Parties provide predictability for the citizens—for the legislative process is, as described above, underdetermined. Parties clarify the dimensions along which legislative coalitions are likely to be formed and the likely way in which the executive and the legislature will interact. Without them, the citizen has less basis for deciding how to vote, and there is significantly less confidence that the legislation obtained will be reasonably close to that sought by the larger number of voting citizens. Depending on the situation, parties can also provide a mechanism for rapid change (as in the first hundred days of the New Deal) or for thoughtful compromise or for stalemate. In some situations, the parties may represent perspectives based on political theories, as in the case of the European Socialist or Christian Democratic parties. In other situations, the parties’ perspectives are more those of serving the interests of particular sectors of the society, such as labor or capital. Because the demands of campaign funding are becoming so significant, these latter perspectives are probably becoming dominant, and the parties are becoming intermediators among different interest groups. Finally, parties provide a role for direct participation and give people the opportunity of being recruited into more powerful positions. The actual recruitment patterns vary from system to system, ranging from a cabinet system in which executives evolve from the legislature to a federal system in which they may come to power at the state level—but the party plays an important role in such recruitment, and therefore in making an effective executive possible. The legislature/party system is thus a support to the executive as well as a control on the executive.

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6.3.  The limitations of legislatures In spite of the enormous need for representation and participation in lawmaking, it is important to recognize that there are fundamental limitations on what it is appropriate for legislatures to do. The limitations fall into three groups: those needed to protect individual rights, those needed to recognize expertise, and those needed to respect institutional allocations of power, including powers associated with foreign policy. The first of these is probably the most familiar and the best thought out. The U.S. Constitution has a prohibition against “bills of attainder,” essentially against a decision by the Congress that a particular individual is guilty of a crime. The underlying recognition is that a legislature is not a good trial court, and the mechanisms of a legislative decision could easily lead to injustice if used to deal with the actions of an individual. But there is also an issue of whether general-purpose legislation respects the demands of freedom; the United States and many nations now have judicial review processes by which a legislative action can be tested against standards that are designed to protect individual rights. The traditional contexts are whether a majority is properly treating a minority, whether a social goal is being achieved through regulation that deals unfairly with individuals, such as landowners or businesses, who may be disfavored by the regulation, or whether a criminal law is adequately respectful of the concerns of possible defendants. In these cases, we recognize that a legislature has incentives to act in a way that may be unfair to various rights, and build in mechanisms to prevent such unfair legislation. This is a subcategory of a larger issue—legislatures, and sometimes voters, do make mistakes. We would not have judicial review unless we recognized that legislatures sometimes exceeded their powers or threatened human rights; on a broader level, we need to recognize that international society should not be paralyzed in responding when a nation votes itself into one or another form of tyranny. The second group of limitations is much less developed in theory, but clearly present in reality, especially in the contemporary administrative state. In some situations, national decisions are needed, but the decisions are ultimately better made by expertise than by voting. These include scientific and engineering issues; they may also include some economic and monetary issues. Majority voting is not the right way to resolve such issues. The normal contem-


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porary pattern is that the legislature devises an administrative procedure that creates an expertise-based mechanism. There are obvious problems, in that the administrative procedure may be captured by special interests and in that it may be very difficult to separate the expertise-based issues from intimately related politically based issues. The working resolution—through legislation that creates a role for expertise—is one that is ultimately based on a supremacy and voluntary abdication of the legislative function. The underlying logic may properly be stronger: that to protect what amounts to a right to reality-based (or science-based, or economics-based) regulation, the legislature should defer to expertise in some situations. The third group involves the same kind of deference as the first, but rests on institutional grounds rather than on rights grounds. There are ways in which a legislature must respect the independence of the executive, and ways in which it must respect the independence of the courts. This is, in fact, the ultimate separation of powers argument. The potential tyranny of any one organ is controlled by the checks of the other organs. If the various checking powers are too weak or too strong, the balance would fail. In particular, in almost all national constitutional systems, legislatures are expected to provide the executive some special freedom in dealing with foreign policy issues. This is partly a result of the practicalities that executives have better access to information in the foreign policy area than does the legislature, and that they need to make decisions more quickly than can the legislature. It is partly also a reflection of the chaosbased structure of international relations, in which deals must often be made and respected without the kind of review given domestic actions. Clearly, these practical factors are still present, but foreign policy areas are growing, and more and more foreign policy areas are becoming reasonably subject to law. Hence power has been shifted to the executive, and must certainly be shifted back if freedom is to survive globalization.

6.4.  International law and its making International law serves functions analogous to the three domestic law functions identified above. The role in shaping law enforcement is the one most obviously different from its analogue in domestic law. This is because the executive powers of international organizations are generally weaker than

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those of government; hence the control of those powers is less central. Nevertheless, the sanctions imposed on states by the Security Council or on individuals by the various international criminal courts raise precisely parallel concerns. With a lesser or greater degree of success, the task of making these sanctions fair and somewhat predictable falls upon international law. The biggest scope for international law is in the parallel to the second function discussed above: international dispute resolution, the analogue to domestic contract and tort law. Here there are many legal principles, made effective by a combination of mutual benefit and of the fear that violation will cause reciprocal violation or a loss of ability to negotiate agreements in the future, as well as, to some extent, by a sense of obligation. Finally, there is law affecting the institutional and constitutional structure of international organizations, sometimes, as in the parallel domestic case, shaped by a judicial review process. Certainly, all these areas of law are relatively weaker than in the domestic case, and enforcement is often less effective. Nevertheless, they exist, and, as described in the first half of this book, they can have implications for individuals as well as for nations. International law is created in a different way from national law, because there is no standing international legislature. The traditional definition of the sources of international law is found in the rules of decision enshrined in the charter of the International Court of Justice, and includes treaties, customs, general principles of law, judicial decisions, and the work of scholars. The customary process is that reflected in the practice of states, typically in internal legal opinions applied by the executive and in unilateral diplomatic notes acquiescing in or protesting the actions of other states. And the treaty process is that of formal international negotiations. These negotiations may be bilateral or multilateral; a diplomat seeking to obtain commitment to a new principle will often choose among the options of a series of bilateral efforts and a multilateral process, depending on where the diplomat sees the greatest likelihood of achieving the nation’s goals. Bilateral treaties may thus sometimes define very important legal principles, especially when part of a pattern of parallel treaties, such as those governing certain kinds of investment relationships. Nevertheless, the use of multilateral approaches, which provides greater representation for the less powerful nations, may lead to a result that possesses more legitimacy than do bilateral approaches.


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Several important international multilateral negotiation contexts look very much like legislatures. The UN General Assembly (GA) is not really one, even though it looks like a legislature and plays some supervisory functions similar to those of a legislature. Its resolutions are not generally considered to create international law, although there are exceptions in which the resolutions are regarded as declarative of customary international law. The United Nations, however, is also the sponsor of important negotiations such as those on the law of the sea or the environment, and the most important legislative role of the GA is probably in setting the agenda for these negotiations. The GA can also use this power to create a pressure for negotiations to include all rather than a subgroup of interested states; the classic example is that, as a result of using the UN context, the law of the sea negotiations gave a role to landlocked states. These negotiations that the United Nations organizes are clearly lawmaking, and the treaties that they create often establish regular meetings of the parties that amount to standing institutions that attempt to develop and improve the relevant area of law. This has been particularly important in the environmental context, where such “meetings of the parties” have become very important legislative bodies. The most important real international legislative bodies are rather the Security Council (SC) and the WTO. The SC has now undertaken, as in Resolution 1540 on nuclear proliferation, to create a form of international law binding on all in the same sense as conventions. This power is only rarely exercised, but is an example of a small number of nations making law for all. The WTO is much more representative, since it acts by consensus. Nevertheless, it has been quite successful in negotiating a wide variety of rules—some with important domestic effect. This is because of the representatives’ ability to arrange package deals across different sectors and because of the availability of a solid dispute settlement process within the organization. Hence, in terms of important output, it is probably the leading global legislature. In addition, some specialpurpose institutions such as the International Telecommunications Union and the International Maritime Organization create a wide variety of law. Finally, it would be hard not to describe some of the IMF’s and World Bank’s lending principles as other than law—they certainly have the effect of law on those nations that turn to these organizations for assistance. In addition, to the explicit lawmaking process, there is much effective law made through formal and

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informal harmonization processes among relevant bureaucracies, an area that was explored in Chapter 3.

6.5.  The implications of the consensus requirement and the dependence of representatives on national governments There are important differences in the way an international treaty negotiation and a national legislature make law. Most critically, in the international case, a majority is rarely adequate; rather a consensus is generally needed, radically changing the character of negotiation. (Among the rare exceptions are UN SC lawmaking, the weighted voting system of certain EU institutions and of certain international financial institutions, and an amendment process for adding new chemicals to the list of products controlled for purposes of protecting the ozone layer.) This need for consensus formally makes log rolling in the public choice pattern impossible, for one group of nations cannot gang up on another. Nevertheless, this effect may be less significant than one might expect. Realistically, many nations will be concerned about only some of the issues involved in a negotiation and will be willing to accept almost any resolution on other issues. And, in almost any negotiation, there will be several different issues that divide nations. The UN Law of the Sea Treaty negotiations involved, for example, a negotiation between navigating states and coastal states over issues such as the width of the territorial sea, straits passage, and environmental obligations of ships going near a coast, and an essentially separate negotiation between developed and developing nations over access to and management of deep-sea mineral resources—and these were not the only dimensions. In such a context, there will be a search for a package deal that offers something for everyone—a nation may lose something in one area but gain more in others. Thus the character of the bargaining is to some extent similar to that of a contemporary legislature—and the example just presented shows the important role that interest groups (here such groups as shipping and ocean-mining interests) play in international negotiations. The consensus requirement certainly implies that the net benefit has to be positive for each actor, not just for 51 percent of the actors, but if the treaty offers actual non-zero-sum positive benefits (as through, in the example, providing overall environmental benefits, or providing clear title to resources believed to be important), there may be ways


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to provide positives to all, if only by side arrangements. One reason the World Trade Organization has become so important is that, by affecting a number of different areas of economics, it provides a basis for more elaborate trade-offs, in which a nation may lose in one area but gain in others. Nevertheless, because of the need for consensus, there will be agreements that would be in the global interest but are unachievable because of the concerns of one or a few nations—it isn’t always possible to find the side arrangement or confident enforcement measures that ensure that an agreement in the global interest actually provides benefits to all nations. Historically, this has been particularly serious in areas such as agreements to control weapons of mass destruction, for some nations do not want to be controlled. For the future, it may be most serious in global economic reform and in environmental law, where consensus among important nations may be essential. Some important nations may not wish to, or find it politically feasible to, participate, and others may simply seek to obtain overly large concessions in return for their participation. Where possible, nations seeking legislation will seek to overcome these problems through side deals and through multi-issue bargaining to compensate losses in one area with gains in another. But the problem is fundamental, reflecting both the weaker sense of community at the global level and the limited ability to coerce a nation to live up to an agreement that has been forced upon it. There is no way in which the international legislative system can provide a conclusive determination of a hotly contested issue, as do domestic legislatures, albeit rarely. The background of national legislation is normally that the districts represented by losing representatives will still live up to a legislative deal; this is not the case internationally. One might even argue that the efforts to resolve disputes about the future of slavery in the nineteenth-century United States were doomed by the same kind of legislative impotence until the Civil War changed the structure of the national system. Nearly as significant, delegates are not free to bargain as they choose; instead the representative to an international organization or international conference is required to support the national position, and is normally instructed how to vote. This is essential, for the national governments will not be committed unless they accept the negotiated agreement. This contrasts with the domestic case, in which the members of a representational district are committed to the

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outcome of legislative decision-making whether they like it or not. Certainly, many national representatives have relevant independence, sometimes based on expertise, and they may well take global goals into account along with national ones, but they will normally do so only in coordination with their national governments. However, in general, in contrast to the pattern of national legislatures in which background information is largely developed in common, as through hearings, the staffing at the international level is primarily back home in national ministries; they will have the relevant expertise and may also consult the public or the national legislature. To some extent, in the negotiation process the representative will represent the rest of the world to his or her own government in efforts to reshape a national position; again, however, he or she will always act ultimately in accordance with the government’s decisions. The need for consensus, the more naked role of power, and the decentralization of staffing combine to mean that, in comparison to national legislation, international lawmaking is relatively more a matter of bargaining than of deliberation. In essence, representatives to international organizations know what they want, and spend less time developing a common understanding than do representatives in national parliaments. It would be naive to assume that national legislation is not also in large part a matter of bargaining and horsetrading—but there is a necessary deliberative component if legislation is to be rational, and there is effort at deliberation, particularly in the committee process in contemporary legislatures. Moreover, there may be deliberation in the public discussion of proposals and in the preparations for the power-based negotiations among interest groups. At the international level, the deliberative aspect is more buried and may be less subject to public comment and participation. Much will occur within the bureaucracies of the nations taking the lead in particular negotiations. Little will take place in the formal negotiations. Some will take place in the community of special interest groups, nongovernmental organizations (NGOs), and academics that may follow the negotiations. But general press coverage is less effective, and ideas are less broadly visible in international lawmaking than in national lawmaking. Consider, for example, the role of the TRIPS (Trade-Related Aspects of Intellectual Property Rights) component of the Uruguay Round—it was clear that accepting the U.S. and European demands for stronger intellectual property protection was something that the developing world would regard as a concession and that there


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would have to be a balance in other aspects of the negotiations. But it seemed not to be noticed that the economics of intellectual property was very different from the economics of trade barriers, a point that was realized only later.

6.6.  The inequalities intrinsic in international lawmaking Nations do not participate from a background of equality. Even though the consensus process masks the importance of power, the United States and a few other nations have significantly greater power in international legislation than do smaller or weaker nations. In some cases, this is reflected in formal voting power in the SC and the international financial institutions (IFIs). Moreover, a powerful nation can sometimes exit from an international negotiation and operate on its own. In contrast, a district can exit a national legislature only in a society on the verge of dissolution. At the international level, the United States, for example, has rejected negotiations on global warming and on creating an international criminal court, based on its dislike of the outcomes that appeared to be emerging. The threat of such exit, at least by a major nation relevant to the negotiations, certainly affects the dynamics of the negotiation. But only a powerful nation is able to affect the negotiations by exit in this way. Further, a powerful nation has greater ability to offer side deals (or threaten various forms of punishment) in order to encourage others to accept a particular agreement. Moreover, in many cases an agreement is relatively meaningless unless it includes particular powerful nations. Finally, a powerful nation has the choice of whether to pursue its goals multilaterally in a global negotiation or to pursue them bilaterally in a series of bilateral negotiations—and it may be able to use its power more effectively in the bilateral pattern. In the “Ottawa Process” used in negotiating international regulation of military mines, a number of like-minded nations were able to negotiate an agreement and gain great support for it—but not the support of the most powerful nations. In contrast, a poor nation may not only lack bargaining power but also lack the human and institutional resources to participate adequately in global international negotiations. Thus, at the Uruguay Round of the General Agreement on Tariffs and Trade, which created the WTO, many representatives of developing nations were making important decisions about such issues as intellectual property and the regulation of insurance and telecommunications without ad-

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equate knowledge of the implications of particular provisions. Many nations lack the careful interagency processes that more wealthy nations use to define their negotiating positions and to evaluate possible compromises. Sometimes, nations even hire developed-world law firms to represent themselves in negotiations, or need foreign assistance to be able to send delegates to negotiations. This failure of representation is obviously a problem. It is currently resolved in part by assistance by various donors. And it is also resolved in part by the fact that a variety of international NGOs seek to provide advice to developingnation delegations. There is an obvious question whether these organizations, which are especially active in Geneva, actually represent developing-nation interests. Although they are generally well intended, they are no substitute for a national position and may not contribute to the legitimacy of the outcomes as perceived by citizens back home. There are more fundamental reasons why international negotiations, whether standing alone or in the framework of an international organization, fail to satisfy basic requirements of representation. First, in a pattern already familiar in this book, the international negotiation process transfers power from legislatures to governments, and specifically therefore to the leaders and political parties that happen to be in power. This “democracy deficit” is most typically exemplified in the decision-making of the European Union. In spite of a variety of checks and balances in the EU system, the key legislative entity is still the Council, a group of instructed representatives of national governments (and sometimes of members of the national governments themselves) who meet regularly. They operate formally under a weighted voting supramajority procedure, but practically under a near consensus procedure. When these representatives make decisions (and, under EU rules, when they act unanimously, they have nearly complete power), they will make the decisions in the interests of the governments they represent rather than of the whole nations they represent. This may be a barrier to the consideration of alternatives. Admittedly, in the EU, these representatives receive directions from governments that are chosen ultimately through free elections, but the international legislation will still reflect the working international power of those who happen to hold domestic power. The minorities not in office may not even get to participate in the international legislative process by putting forward alternatives for consideration, an option that is available to them at


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the national level. The EU pattern increases the effective power of those in office, since the international negotiations will be designed to achieve a result desired by these subgroups of the national societies. A weaker version of the same pattern occurs in the United States, where the “fast track” process used for congressional approval of international trade agreements such as those negotiated at the WTO deprives Congress of the ability to amend the agreement. The executive can use its ability to define a package to achieve legislative goals that might not make it through Congress on their own, but will be accepted as part of an overall package. This is viewed by negotiating partners as the only practical way to ensure that the U.S. Congress will accept what it views as the negatives of an international bargain along with what it views as the positives. But the result is to give the executive control over the agenda and the structure of the coalition to be organized in Congress. The shift of power to the executive that is associated with international legislation is a shift to particular branches of the executive. The most dramatic example is the shift of power from the more traditional ministries to trade offices as the WTO becomes more important and produces international agreements in areas such as intellectual property and the regulation of telecommunications. It is unavoidable that there be a global matrix pattern in which legislation on, say, banking or agriculture is shaped by the relevant ministries negotiating with other national ministries at the national level and negotiating with counterpart foreign ministries at the international level. There is no reason to believe that the intellectual property offices of a nation will have the same goals as the trade ministries, so there is a chance of inconsistent outcomes of different negotiations. This can be avoided when a nation does a capable job of organizing its participation in negotiations, but not all nations do. Power within the executive shifts from the substantive ministries to those who coordinate this elaborate negotiation process—traditionally foreign ministries but now, more often, trade ministries or cabinet offices. In the process, the national legislatures may lose some of their oversight power over the various ministries. Second, the international system necessarily includes unrepresentative governments. In the eyes of some critics, the fact that many governments are undemocratic makes the international process itself undemocratic. On some issues it is possible to negotiate only with other representative democracies—but in many cases, it is essential to negotiate with the de facto leaders, whether they

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are democratic or not. Nevertheless, agreements based on such negotiations lack the legitimacy of domestic law legislated in a democracy. (Indeed, one of the traditional and related tensions in international law is that agreements imposed at the end of a war must—ultimately for pragmatic reasons—be viewed as enforceable and legitimate, in spite of their probable unfairness.) The result of these two limitations, and of the inequality of nations in international negotiation, is that many citizens are effectively excluded from democratic input into policies that affect them deeply. For many issues, there are no fora; for many citizens there are no inputs into the fora that exist. The international system fails the requirements of representation set up in Chapter 3. The failures of legitimacy of the international order also make us, as citizens, less willing to accept results that are negative to our nation’s interest, whether or not the results serve a global interest. The value of legislation is measured more parochially than in the national case. Consider the way inequality among nations leaves losers in negotiations bitter—as exemplified by the German reaction to Versailles or the developing-world reaction to the Uruguay Round. The sense of community that makes legislative defeat easier to swallow in the domestic context is weaker in the international case. Because of this lack of legitimacy, many nations, including the United States, have a ratification process by which the domestic legislature is consulted before treaty-made law becomes effective within the nation. Legislatures are often suspicious of what was negotiated internationally, and this provides a screen against treaty undertakings that the legislature dislikes. Legislative review also provides a bargaining tool for the executive in attempting, at the international negotiation level, to shape agreements in a way that the legislature is likely to approve. Moreover, the United States, like a few other nations, has a process by which the legislative approval of a treaty may not automatically create law to be applied by national courts. Rather, such law will be created by a separate enactment. These various processes vary from nation to nation—at the other extreme from the United States, some nations make treaties automatically binding on national courts, without any form of legislative review. But the goals of any form of legislative approval process are both to avoid creating international law that is unacceptable to the legislature and to give greater legitimacy to that international law that is actually created.


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6.7.  International political parties Now it is possible to turn to the global analogues of political parties. There are at least three kinds of groups that play partylike roles in international negotiations. One group comprises coalitions of nations with similar interests, such as the G-77 group of developing nations or the Cairns group of agricultural exporters, who brought a common interest to WTO negotiations and served as a bloc. Clearly, this kind of coalition can perform partylike functions within the international system, by providing the political power of a bloc where raw numerical power is likely to be important and by providing ways to share expertise and participate more effectively in the small-group subnegotiations within which many issues are typically resolved. Developing nations are likely to continue to be weak in the international system until they can form stronger coalitions. This has happened in the WTO and perhaps the General Assembly; it is not clear that it has happened elsewhere in the international system. A second group is transnational political parties, as exemplified by the European Christian Democrats or Social Democrats. These groups were extremely important in the creation of the EU. They had built common traditions in a number of European nations, they provided the leadership which actually negotiated the creation of the European Economic Community (the predecessor of the EU), and then they helped obtain ratification within the nations in which they held office. They have not since played such a significant political force; in spite of the fact that there are now international party groupings within the EU Parliament. And there are very mild current analogues in the global democratic activist groups such as those supported by the U.S. National Endowment for Democracy (a government agency, not a party agency, although there is a party role in its governance), which distributes funds in developing nations under Republican and Democratic auspices, or the parallel international foundations of the German Christian Democratic and Social Democrat parties. The third group includes NGOs that operate on an international level. In several cases, such groups have been extremely successful. Thus the leaders of corporate groups interested in intellectual property were able to lobby the WTO negotiators to produce the TRIPS agreement on intellectual property in the Uruguay Round. Similarly, the leaders of medically oriented NGOs were able to lobby the developed world and collaborate with a coalition of develop-

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ing nations to achieve the Doha agreement in 2001 weakening the TRIPS agreement in the medical context. Certainly these NGOs act less like parties than like lobbying groups. Nor are they representative—this is one of the problems with the current approach of the World Bank to consult these groups as a way to achieve an approximation to democratization. Yet, in many cases, they, along with business and religious organizations, are more genuinely global than any other existing political institution. And they often bring expertise to help in the understanding of international issues. In thinking about the future, it must be recognized that none of these groups are anywhere near as institutionalized as are national political parties. In general, only transnational and national political parties provide a mechanism for recruitment of talent. The NGOs, including those associated with business, are likely to have the strongest secretariats. The blocs of national governments can help provide predictability in negotiations, and can also help in organizing intellectual input to help define negotiating agendas. And it is certain that there will be broad coalitions of interest groups—including affected economic interests, NGOs, and sometimes national political parties. These kinds of NGO and informal coalitions will be the closest we have to international political parties for the midterm, and will have to be the basis for current international coordination of national political activities. Depending of course on the way political parties evolve in an era of mass media and the Internet, the most likely long-run role in providing legitimacy to international legislation will almost certainly have to be provided by the transnational coalitions of national parties. It is the national parties that are in contact with the voters, that bring significant ideological perspectives, and that can help coordinate the positions of national governments. This will be essential for a global representative politics to emerge. Any such emergence will necessarily be around a series of specific issues, such as issues associated with economic standards, with the environment, or even with the protection of rights.3

6.8.  The international budget function Legislatures do far more than lawmaking. They also exercise financial or other oversight to constrain the executive from activities believed wrong or silly. In this respect, the legislature plays a counterbalancing role—and may


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also facilitate the maintenance of peace in multiethnic entities, through ensuring that the executive is unable to play a “winner take all” approach.4 In essentially all international organizations, the budgetary power is placed in the organization’s general assembly of members, which is usually the closest equivalent to a legislative body in the organization’s constitutional structure. Normally, this group must approve the organization’s budget—typically by less than unanimity. Since the members of this group are representatives of national governments, the concept of “no taxation without representation” is respected in form, but only to the extent that the members of the organization are responsible to their own voters. Moreover, given that, with few exceptions, international organizations have essentially no funding save that deriving from members’ contributions, this arrangement reflects a political reality that individual nations, working as a group, have substantial effective control over the organizations’ budgets. The dynamics of the process are generally similar to those of legislative budgetary review at the national level. In traditional theory, as exemplified by the role of taxation in the American colonies’ struggle for independence from the United Kingdom, the national representatives are hesitant to tax their own districts, and thus hesitant to expand the operations of government, save as they see it essential. In reality, there is the possibility of log-rolling to tax other districts for the benefit of one’s own district, and therefore a serious possibility of profligacy. This is especially likely if taxes can be increased by a less than unanimous vote, or if the taxes can be designed to be relatively invisible to the voters. At the global level, however, the possibility of making the contributions invisible to national governments is nearly nonexistent—they normally have to be paid through national budgetary contributions, which are, in turn, reviewed by national legislatures. Nevertheless, where the approval process requires less than unanimity, there is a possibility of log-rolling, especially by a large number of relatively poor developing nations to obtain higher contributions from the richer developed nations. This is carefully resisted by the developed nations, which have on occasion threatened to withdraw their participation—and thus decrease the financial support available to the organization. (In one case, UNESCO, in the mid-1980s, the United States and UK actually did withdraw— this made future threats much more effective.) The reality then becomes a bargain in which the richer nations use the threat of withdrawal to force the other

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nations to moderate their budget proposals. This is generally an unofficial process, but has been institutionalized in the United Nations in a special budgetary committee, the Committee for Programme and Coordination. There are a few exceptions to this pattern of international organization dependence on national budgetary allocations. For example, the World Intellectual Property Organization has substantial independent revenue (about 90 percent of its budget) deriving from fees from inventors for services it provides under the Patent Cooperation Treaty. This means that its bureaucracy may be less subject to pressure by the national governments that make up its governing body. In a different way, the major international financial institutions, such as the IMF and the World Bank, derive significant income from their operations and are able to borrow on public markets. But their initial working capital comes from national governments, and is supplied under a graduated scale under which wealthier nations pay more. These nations also have an explicitly greater say in the activity of the institutions, typically controlling the institutions under a weighted voting system in which their votes are weighted in proportion to their financial contribution. But even these institutions are vulnerable—the U.S. Congress, for example, created the Meltzer Commission in 1998 to reexamine the role of the IMF and Bank, using as its leverage the need for an appropriation of additional funds to the institutions. And the European Union has an elaborate budgetary system under which the organization has some resources independent of national control, but still under carefully defined restrictions. As one might expect, the details of these arrangements are negotiated among national governments, even though the Parliament and the Council have formal review authority over the budget. In all cases the financially more powerful nations have found a way to have their power reflected in the formal or informal control of the budget of the organization. In addition to using the processes described above, donor governments have also set up special funds to support programs they want accomplished and to protect these programs from the regular budgetary process of international organizations. This has been the case, for example, with the WHO, as noted in the previous chapter. Thus there is no way so far that developed-world nations have been willing to delegate to international institutions the decision to tax their citizens for the benefit of economic development. Nor have proposals for international taxes for development generally been suc-


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cessful. Certainly, there has been no support for the Tobin tax, a proposal to tax foreign exchange transactions to create a fund to be used for development, although there has been some support for a French proposal for a similar tax on airline tickets. As a result, the actual levels of funding for international organizations are quite small—and almost certainly less than is wisely spent. The budget of the United Nations, together with that of all the UN agencies, totals about $20 billion, which is less than half that of New York City’s government. The ultimate reason why international organizations do not receive substantial funding is, of course, that their beneficiaries don’t vote in wealthy nation elections. There are a few exceptions—for example, contractors who supply services and commodities used in carrying out World Bank or foreign assistance projects. But another important reason is that the review processes available to control corruption and evaluate the execution of policies are quite weak, as pointed out in the previous chapter. After all, those who might investigate, as members of the international organizations’ assembly, are representatives of the national governments exercising the control. For these members to investigate the organization’s activity is for them to investigate themselves. They are unlikely to welcome study of their mistakes and still less study of their corruption. Improvement of this review process, as distinguished from any broader reform of the budgetary process, is probably the key immediate goal to pursue in the financial area.

6.9.  The international oversight function In addition to control over the budget, legislatures bring several other forms of oversight. In a cabinet system, the legislature/parliament has the right to vote out the executive. This power can obviously lead to many forms of informal control. It has been exercised at the international level, in the European Parliament’s forcing the European Commission to resign in connection with a financial scandal in 1999. Another approach is a straightforward audit. Audits are, in fact, regularly carried out, and the UN systems have an “auditor general” process. And there are special investigation procedures, such as those used by the United Nations to investigate abuses in the Iraqi Oil-for-Food Program (initiated in part under U.S. congressional pressure). The European Union has pioneered in the cre-

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ation of a special auditing entity, a Court of Auditors, as a component of the entity’s overall institutional structure. Almost certainly, such auditing needs to be expanded; this can best be done through the kind of watchdog agency called for in the previous chapter. The audit systems have not typically been subject to the GA or other analogue of a legislature; such a development is, however, certainly possible. A further possibility is through national oversight committees, as with a hearing mechanism or an analogue to the EU House of Commons or European Parliament’s question time. There is the possibility of investigation by national parliaments, and the United Kingdom has a “European Scrutiny Committee” to investigate what is going on in EU policy. Certainly, national legislatures might have the right incentives; they are often, however, unable to compel the international institution to provide information, for that organization typically has diplomatic immunity, and will testify before national legislatures only voluntarily. Far more important, the political incentive is often absent. Only rarely are politically useful headlines available from an investigation of an international organization—the international issues are not usually high on the agenda of national politicians. The 2004 Oil-for-Food scandal was a rare exception, in which the United Nations was managing an unusually large program, and the potential of criticizing the UN and implicating opponents of U.S. policies was appealing to some in Congress. Because national legislatures are generally so uninterested in international organizations and generally so unwilling to contest their executives in foreign policy areas, the key oversight in the near- and midterm future will have to come from NGOs and civil society. This has the weakness that it fails to provide legitimacy to international organization. But it can help protect against international organization activities that affect human freedom, and can provide the long-term basis in intellectual support and constituency recruiting that will be essential to stronger political control in the long run.

6.10  The future structuring of the international legislative function A.  The needs The international legislative arena is the weakest part of current international organization. Most fundamentally, the current system does not respect


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the individual citizen’s rights of participation, as described in Chapter 1 and exemplified in Chapter 3. The interests of national oppositions can be ignored. The interests of the peoples of some societies can be ignored. Executives define the relevant fora and shape them in ways that leave important issues non-negotiable. There are no fora for some important issues. Nondemocratic governments have as much voice as those that are democratic. There is little serious oversight, nor is there yet a good control mechanism for any new watchdog organization. Auditors with independence are good; auditors with a constituency supporting their independence are better. Improvement in any of these areas would, in the long run, make international legislation somewhat easier, and might make it possible to deal with the circumstances in which international legislation is strongly needed but is unavailable under today’s consensus requirements. Improvement would also make international legislation more legitimate—greater input into the process would contribute to greater willingness to accept the result of the process. Most immediately, improvement would provide stronger control over international organizations and, to some extent, over national governments acting through international organizations. For the short run, it is clear that it is international civil society that will have to provide informal mechanisms to represent the unrepresented and to play the oversight role. In the long run, something more formal is needed; there are three obvious alternatives. One is to strengthen the role of national legislatures in making international policy. A second is to create an international legislature, along the lines of the European Parliament. A third is a hybrid, an international parliament based on representation by national legislators. This is the way the Parliamentary Assembly of the Council of Europe works; an analogue was used as the predecessor of the European Parliament until 1979. B.  The problems and the necessary limitations This choice involves important difficulties. First is the problem of achieving representation in a world of entities of vastly different sizes. The international legislative function must ultimately recognize people rather than nations. But any mechanism that does so must take into account the population differences among different nations—China, on a strict population basis, would have more than twice the voting power of the entire European Union. There are ways to

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avoid this problem: having two houses with one based on population and one on traditional government entities as in the case of the compromise underlying the U.S. Constitution, or designing some form of weighted representation system that balances economic weight or the need to represent traditional political entities along with population. Second, there is the problem of representatives from nondemocratic nations. If dictators have the same voting power as democracies, the results will lack legitimacy—this is why decisions of the UN Commission on Human Rights were so highly criticized in the United States. For legitimacy, democracy on the part of member nations is essential—a rule of law, in which a dictatorship follows a set of laid-down rules, may be adequate for encouraging foreign investment, but it is not adequate for legitimizing global legislation. This means that if a representative would clearly be voting as an instructed delegate of a dictatorship, the person should be excluded from any global parliament, for there is no legitimacy benefit in including such a person in an institution. It is certainly essential to have international organizations that include nondemocratic nations, and to negotiate with such nations—but this is currently much more an issue for executives than for legislatures. For representation, there is a serious option to include representatives from nondemocratic nations, hoping that over time the nations will become democratic. But it is almost certainly better to reject participation by nondemocratic nations, at least in representative bodies. Finally, in structuring any form of representative body, the limitations of legislative power must be taken into account. There must be controls designed to protect individual rights (and presumably some rights of states as well), and there must be recognition of the appropriate role of expertise. This may turn out to be a case-by-case matter, as it has been in the domestic context. C.  A recommendation toward the long run In the short run, as noted in Section 6.10A, the most practical way to provide stronger oversight over international organizations is through civil society. In the long run, if power continues to shift to the international level, it is important that there be a democratically elected global parliament. But this is politically impossible at this point. There is no constituency to create such an institution through a formal agreement among governments. And efforts to create one informally are almost certain to fail.5 Such an informal parliament


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could at best be advisory to the various existing international institutions and would be unlikely to attract strong support. After all, even the directly elected European Parliament has faced serious difficulties. This Parliament has been in existence since 1952 and has been directly elected since 1979. Its powers have grown over the years with the various reorganizations of the European Union. Yet the European public is relatively uninterested in the elections to this Parliament. The key problem is almost certainly the chicken and egg issue—as long as its powers are limited, how can it attract interest and good people—and as long as it hasn’t attracted public interest and good people, how can its powers be expanded? Admittedly, the Parliament is beginning to become a significant player in European Union politics, being a significant target for both business and public interest lobbyists, supervising the Commission, as exemplified by its role in forcing the commissioners to resign in 1999, and also beginning to be a forum for negotiation in the case of services and chemicals directives in 2006. But it has not excited the interest of the European public, which has turned out at only very low rates for the elections of its members. Experience with the Inter-Parliamentary Union is significantly less instructive, perhaps because the body has essentially no authority. The organization serves an important educational role for new legislatures, and it focuses attention on issues of general concern to legislatures such as the freedom of legislatures from executive interference. These examples caution against beginning with entities with advisory power only. Down the road, however, a global parliament is an essential goal, with powers that might include supervisory oversight over existing international organizations, control over any new watchdog functions, perhaps a review right for legislative activity by other international organizations, and perhaps a right to propose treaties for consideration by national governments. The easiest midterm step (outside the civil society world) is to involve national legislatures more fully in the legislative decision-making of international organizations. National representatives are in close contact with their voters, and they will, for a long time, have greater power than any international counterparts. In many nations they participate in the ratification process, and in all democratic nations they have some power over the executive. The national legislators can be given (or can often simply exercise) increased power in defining negotiating goals, greater opportunities to participate in negotiations, and greater opportunities for formal hearings with national representatives

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to international organizations and informal hearings with international organization officials. Foreign individuals—and not just national government leaders—might be given greater chances to participate in national legislative hearing processes and in any form of question-time process. Existing national constitutional restraints and principles of executive secrecy in the international area could be modified to allow fuller democratic and legislative responses to globalization. Indeed, such changes are almost certain to be part of the U.S. political agenda for a new administration in 2009. The problem here is obtaining the representatives’ interest. On the whole— and there are important exceptions—neither citizens nor legislatures are currently very interested in international constitutional issues. As noted above, the direct elections to the European Parliament are not attracting significant interest among voters. But these patterns are very likely to change as more and more decisions are made at the international level. And they may change more quickly as NGOs and other interest groups begin to attempt to lobby for specific actions and reforms at the global level. Press and think-tank interest in such international issues will also contribute to national legislative interest. This is where civil society can be a basis for further institutional development. National legislative reform can help bring legitimacy—but more is needed to reflect demands for participation and to build the way toward a stronger global system. Here, the best immediate response is almost certainly a much stronger and more intense global collaboration among democratic national parliaments. Democratic nations—or their legislatures—could create advisory interparliamentary groups to help them define positions in international negotiations. An institution designed this way would be essentially a broader analogue to the Parliament of the Council of Europe—an entity that has played a major role in both human rights and law reform and harmonization in Europe. There is already a substantial global tradition of interparliamentary discussion, which has helped in training legislators in developing nations and in supporting the independence of legislators. Unfortunately, the current connotation of such discussions is one of junketing rather than one of substance. Bringing the discussions to the mainstream of legislative negotiations is most likely to be possible by providing specific contexts. The ideal is for legislators to see the national needs for resolving particular international issues, to understand and discuss the related issues with legislators in the other involved nations, to find


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some alternatives, and to be able to come home to say that they see a possible solution to a negotiation problem and see the possibility of global support for that solution. The tangible outputs would be proposals for specific new actions in these areas. The intangible outputs would be new forms of cooperation among national legislatures, experience toward strengthening the process, along with bases for international cooperation among political parties and among the interest groups that might support them. It is these combinations of interest groups and political parties that might become the global political parties of the future. To gain legitimacy, any such organization must be made up of only democracies. (In this respect, it would differ from the existing Interparliamentary Union.) Appropriately, a small number of legislators from each major party in each major nation would participate, along with a smaller number of representatives from a few smaller nations. There might initially be only focused meetings, or there might be a more elaborate structure with standing committees on specific issues. The most immediate efforts might be in areas like the globalization/income distribution debate, the international antiterrorist criminal law debate, and the climate change debate. Other areas might include the various topics discussed at the WTO, including agriculture, the standing negotiations conducted in the context of conventions such as the biodiversity convention and climate change conventions, as well as the legislative activity of harmonization and functional organizations. There are issues—for example, in the trade and economic area—that appeal to conservatives, just as there are issues, such as in the environmental and human rights areas, that appeal to liberals. There might be reviews of the more legislative activities conducted by the IMF and World Bank, such as their conditionality rules, as well as reviews of the nationbuilding and developmental activities of the United Nations. Most important, there might be such meetings in coordination with the regular meetings of the G-7/G-8. Because these meetings are sometimes so important for world decision-making, the parallel parliamentary meeting should not be restricted to parliamentarians from the G-7/G-8 nations. What is crucial in such cooperation is that the legislators of each nation have the ability to understand the political concerns in other nations, and to build independent legislative movements to devise alternative approaches to those of the executive-level negotiations, or reshape the executive outcomes in

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ways that may be more responsive to public concerns. Power will come only in connection with specific issues. As a tradition of consultation emerges (executive with parliament, international institution with parliament, parliament with parliament, and all with relevant pressure groups), the tradition may grow in importance and ultimately become the basis for political pressure toward a stronger parliament with genuine powers, shaped by parties with genuine connections to the people and with the ability to evolve global positions. In the shorter term even an informal process with the participation of only the democratic nations may bring enough power that some international institutions will be compelled to respond to the parliament and permit investigation and oversight. Moreover, as power accretes to these democratic groups, there will be pressure on nondemocratic governments to become democratic, in order to participate in the groups.

6.11. Conclusions In their support of NGOs and similar activities, national and foundation donors should seek to build the capabilities of these institutions to serve as the predecessors of global political parties, of fora within which new international agreements can be conceived and evaluated, and of watchdogs to review and criticize the activities of international organizations and the foreign policy activities of national governments. National legislatures of democratic nations should seek mechanisms of cooperation that will strengthen their ability to review and criticize the actions of their own governments and of international organizations, and to define new patterns and balances for resolving particular international problems, such as those of the global economy and of the environment as well as the protection of human freedoms in the global context.

chapter seven

The International Judiciary Under the auspices of the United Nations Framework Convention on Climate Change, there is a tribunal to evaluate specific programs for reducing greenhouse gas emissions via cooperation with developing nations. Some of the firms who submit programs to this tribunal argue that it fails to provide rational decisionmaking. How should the international community respond?1

This chapter, the final one of the three dealing with the institutional components of international organization, explores the international judiciary. In parallel to the preceding two chapters, this chapter first examines the role of the judiciary in the national legal system, and then explores the way the parallel judicial functions are carried out at the international level. It concludes with an analysis of the possible role of judiciaries in protecting human rights in the global and international organization contexts, taking particular account of the role of judicial review.

7.1.  Introduction—the judiciary at the domestic level Nations turn to judicial systems because they have found that some kinds of decisions are best made on the basis of principles and facts (to the extent humanly possible), rather than on the basis of executive power or of representative politics. In general, nations have found three such areas in which they turn to judiciaries. The first area is the settlement of disputes between individuals (or other legal entities), exemplified by litigation over torts, over property rights, or over contracts. In asking the courts to resolve these disputes, society and the parties expect fairness and impartiality, based on a confidence that the parties can bring appropriate evidence before the decision-maker, and that the decisionmaker will decide on the basis of the facts and of a body of principles (that is,

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law) alone. Ideally, it will be these facts and law that matter, rather than friendship or power—and society assigns disputes to courts precisely because it fears that power would dominate over principle if the same decisions were made by the legislature or the executive. The principles will still necessarily reflect the political beliefs of the time, for the law is always evolving, whether defined through a scholar-derived civil law, a judicially derived common law, or a legislatively derived code. Moreover, original texts and prior cases always leave room for interpretation and thoughtful choice. Even so, the use of principles as spelled out in reasoned decisions provides substantial predictability and is thus valuable for those who need to plan on a particular body of law for the future. Indeed, a common role of the courts is to be there to decide a case and provide a reasonably predictable result, so that the parties can plan and negotiate to a resolution. This kind of law predates the nation-state—rules and a rule- and fact-oriented decision-making process have a long history and were used to resolve disputes between family or tribal groups even before the development of central authority. The second role of judiciaries is in enforcing the criminal law. Here, the impartiality of the judiciary is needed in order to avoid the potentially tyrannical use of the criminal sanction by a government. In the absence of a court, a government might not have to provide evidence to support its desire to fine, incarcerate, or kill an individual, nor would it have to give the accused the right to reply and make whatever counterarguments may be available. In contrast, a court provides fair procedures and protects fundamental trial rights, such as those to an attorney, to a hearing, and to challenge improperly secured evidence. Similar rights are now arising in administrative proceedings, where, in the absence of courts, the government could use its economic powers arbitrarily. In both contexts, courts apply the traditional “negative” human rights that protect against arbitrary arrest, evidentiary, and trial procedures. The third role of courts is to maintain the political balance spelled out in a nation’s constitution. There are many relatively uncontroversial examples of this role, as in the judiciary’s role in the United States to maintain a balance between the rights and powers of the states and those of the federal government, and to ensure a similar balance between the executive and the Congress. But the most controversial example of this role is the practice of judicial review, which began in the United States in the nineteenth century and has spread


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to most other Western developed nations. In the name of protecting a constitutional balance or a specific human rights principle, a court will sometimes strike down a piece of legislation that, as viewed by the court, goes beyond the powers of the legislature. The judicial review process thus overrides the will of the majority, as expressed by the legislature, but helps protect human rights. Depending on the details of the nation’s process, the process may protect constitutional balances, trial rights, non–trial-oriented negative rights, such as those to freedom of the press, and even positive rights, such as those to health or education. As noted in the previous chapter, there are other, very diverse decisionmaking activities deliberately taken out of the political process and, thus out of democratic responsibility. These include, for example, the provision of scientific advice in as unbiased a way as possible, the conduct of the census, the development of economic statistics, and the management of the currency. The precise mechanisms of independence are different in each such area, and the organization of the area is typically defined by statute, so each such area could be returned to political control, but all recognize that there would be a cost in such return. Decision-making in these areas is not generally regarded as judicial, but it raises many of the same issues of ensuring neutrality against political influence.

7.2.  Judicial review It is a problem for democratic theory that power is taken from legislatures, the representatives of the people, and given to courts. Nevertheless, political decision-making has certain essential limits. As Justice Jackson said in 1943: The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. West Virginia State Board of Education vs. Barnette, 319 U.S. 624 (1943)

The need for judicial review derives from a tension between representational rights and individual rights or institutional balances—a legislature may sometimes vote to override individual rights or an institutional balance. Because the rights of individuals precede the authority of the state, the scope of

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participatory rights must be limited to protect other rights. The court is looked to as a mechanism to decide when the legislature’s action must be rejected. In an important sense, all judicial independence deliberately restricts the power of the elected legislature and executive. Even the dispute settlement and criminal prosecution roles of the judiciary are designed to avoid abuses expected to be associated with the more political organs. The judicial review role of courts as well as the courts’ special role in the protection of human rights is thus an extension of authority that is essential to the operation of an independent judiciary. Courts are assumed to be able to abstract themselves, at least somewhat, from self-interest and from the pressures of politics, to undertake decisions for which it is essential to choose wisely among conflicting statements of fact, and to follow a group of principles. The importance of this form of impartiality is one of the reasons why an “independent judiciary” is prized.2 In some cases, a judicial review authority of the court is defined in the nation’s constitutional provisions. This is the case, for example, for the constitutional courts in France and Germany. The precise scope of the judicial review authority of the U.S. Supreme Court is much less clear—in the United States, judicial independence is included in the Constitution, but there is nothing explicit on judicial review. And constitutions may also set up courts as arbiters to maintain the overall institutional balance of a political system. This is true for the U.S. Supreme Court and the balances of federalism; it is also the case for the European Court of Justice (ECJ), which defines the limits between European Union (EU) authority and the authority of member nations. A court’s efforts to control the other branches of the government can succeed only if the court is respected and citizens and the other branches are willing to comply with the court’s decision. Sometimes, of course, a court has access to government-based means of coercion, such as the sheriff in private cases and the government criminal apparatus in criminal cases. But coercion is not available to enforce a judicial decision in which it is the government itself that is restrained. As President Andrew Jackson is apocryphally reported to have said: “John Marshall [the Chief Justice] has made his decision; now let him enforce it.” Jackson may not have accepted the decision (on Native American rights), but many presidents have accepted equally weighty restraints—and the public did so after the U.S. Supreme Court’s resolution of the disputed Florida election of 2000. This acceptance derives from recognition that the over-


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all process of government will work better if the court’s decision is honored. Governmental actors and the public are willing to accept unfavorable decisions because they know that they may sometimes benefit from favorable decisions (and sometimes all recognize that it is important to have a justifiable decision, whether that decision is favorable or not). For a judicial review process to be acceptable, the court’s authority must be limited and its decisions fair. The need for limitation derives from the fact that a court would displace the representative function if it went too far, so it must be restrained in its changes of legal doctrine. And, clearly, fairness and perceived fairness are essential to legitimacy. This is why judicial officers are protected from influence through life or long fixed terms, why they are not supposed to decide any questions other than those necessary to the resolution of a particular case, and why their jurisdiction is often limited to a particular group of questions. The judiciary is necessarily designed to make decisions in a way different from the executive and the legislature. Further, legitimacy is aided if the court derives its authority from a law (for example, the U.S. Constitution) that has legitimacy within the society. This legitimacy may be that of written law; it may also be that of a common law in which the courts’ decisions reflect values that are based on the traditions of the society. In some nations, institutions other than courts have historically played a comparable role. Thus there have been traditions in nations as different as those of Latin America, Thailand, and Turkey, under which the military views its role as defending particular underlying principles against elected governments, and therefore replaces a government that, in its judgment, has gone too far. And in Iran, a clerical body plays a similar role. There are several reasons to reject such approaches. First, the approach usually fails to provide reasoned justifications or standards. Second, the principles under which such interveners act are rarely respectful of human rights—for example, in some of the Latin American cases, the actions were often primarily to protect against changes that were expected to benefit the poor. Where judicial institutions are so weak that they cannot play a judicial review role, it is far better to turn (to the extent possible) to the available mechanism of political debate than to the military. Political debate can sometimes be a workable alternative to using courts to protect fundamental constitutional balances. This is demonstrated by UK constitutional history before the adoption of the 1998 Human Rights Act, which

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created a form of judicial review by authorizing British courts to test parliamentary actions against the European Convention on Human Rights (ECHR). The earlier “unwritten” British constitution was in essence an ethos of restraint by Parliament, based on the willingness of Parliament’s members to shape legislation in accordance with their views of human rights and of the long-term interests of the society. In that situation, ideally, the Houses of Parliament debated the wisdom of particular actions that might affect individual rights or institutional balances. In contrast, with judicial review, the corresponding debate is instead conducted by lawyers in a judicial and text-oriented context. And Larry Kramer has argued that Madison intended a somewhat similar approach for the United States, in which the process of selecting leaders would produce people who were wise and had a long-term perspective.3 In comparison with the judicial approach, the political approach permits more fundamental and broader analysis of constitutional issues by a broader group. The debate goes beyond the legal community and the texts of historical documents. The political process is probably preferable if the issues have not yet been well anticipated by the authors of the original balances and bills of rights. It is valuable also as an alternative to asking the judicial system to make broad policy judgments that would be hard to overrule if they prove wrong. But the political approach is effective only if the members of the legislature share a commitment to self-restraint. The approach is also likely to fail if political actors feel the pressure to override constitutional protections during an emergency.

7.3.  Judiciaries, international dispute settlement, and the emergence of global special-purpose common law The international analogue of civil dispute settlement is quite different from the domestic version. This is because, at the international level, there is often no working basis to force a defendant to participate in judicial proceedings or to accept the outcome of such proceedings. National governments provide such mechanisms in the national civil and criminal law contexts as part of their tasks of maintaining public order and ensuring that disputes get settled. But in the international context, jurisdiction can be created only by consent of governments (or by consent of private parties agreeing across national lines to


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have their private disputes resolved in a particular way, as by arbitration). The number of international disputes has grown greatly with globalization, and this has forced nations to create mechanisms to resolve disputes, and, where they see appropriate mutual benefit, to give those mechanisms compulsory jurisdiction over themselves or their citizens at the request of a foreign government or citizen. Such consent is sometimes expressed in governmental agreement to submit a particular dispute to a particular international court, and in other cases in governmental agreement to submit a category of disputes to an international process. The most traditional international court is the International Court of Justice (ICJ), created together with the United Nations to replace a predecessor, the Permanent Court of International Justice, associated with the League of Nations. This court plays an all-purpose role of resolving state-to-state disputes through the application of general international law. Its only restrictions on state-to-state jurisdiction are those included in national submissions to the general jurisdiction of the court. These are very substantial, however, and many nations have not accepted a general obligation to appear as respondents. The United States, for example, withdrew its acceptance of compulsory jurisdiction in 1986 after a proceeding against it in connection with military activities in Nicaragua. The ICJ hears very few cases—roughly the same as its League predecessor, which sat three-quarters of a century ago in a much simpler time. There are important reasons that underlie nations’ hesitation to use such a court. On the whole, governments do not like to restrict their freedom, as they would if they were expected regularly to accept international court jurisdiction and decisions. Moreover, bringing of international litigation is still normally viewed by the defendant nation as a diplomatic affront. Both governments involved in a dispute generally prefer to resolve the dispute by a diplomatic agreement, and they will go to a court only in special circumstances. For example, the United States sued Iran before the ICJ during the 1979–81 hostage crisis—this was presumably as part of a diplomatic strategy of building international support for its position. And package settlements often leave some issues to courts—the settlement of corporate claims against Iran as part of the 1981 agreement to release hostages was an example. Having an international court (or panel) may allow a government to concede in situations that may affect a powerful internal lobby. And in a few cases—for example, the territorial

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division of the North Sea to define oil rights in 1969—an international court appears to be a very reasonable way of dealing with a complex multilateral dispute. But such situations are rare. In contrast to the ICJ, special-purpose international courts are flourishing and have much more substantial case loads. These courts typically have compulsory jurisdiction over possible defendants, but that jurisdiction is restricted to the interpretation and application of a particular international agreement. The most important of these is the panel process of the World Trade Organization (WTO), which deals with many disputes. Although its panel is not called a court, it operates in a judicial way, using judicial procedures and logic. Other similar bodies are available to deal with interstate disputes arising under treaties such as the Law of the Sea Treaty. The case load of the WTO is the greatest by far, involving some ten to twenty-five cases per year. The jurisdiction of these special-purpose courts and tribunals is restricted to interpreting and applying a particular treaty, so they are more limited in their power and more predictable than the ICJ, which is applying a much less well defined body of law. This is probably the primary reason why national governments are willing to set up such entities—the governments see a category of disputes that could benefit from a court, they know that they will win some and lose some but believe they will benefit on net, and they define a body of law that is acceptable to them for the entities to apply. In the WTO case, the availability of such decision-making makes it easier to negotiate trade rules that are beneficial to all. And an international rule-based system supported by decent decision-making gives business valuable predictability. In these restricted contexts, governments are also more willing to authorize remedies. For example, the decision of a WTO panel is a formal determination that a nation’s particular law is or is not consistent with the WTO treaties; under the rules set up for the system, trade sanctions may be taken by affected nations if a nation fails to bring its laws into conformity. In contrast, although the ICJ has the power to issue a binding judgment against an individual nation, it does not have a general way to force an unwilling defendant to appear or to satisfy the judgment. A further reason for the difference between the weak ICJ system and the stronger special-purpose systems is that the legitimacy of international judges is limited by the law-abiding (or not) policies of the nations from which they


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come. Even though international judges are always directed not to accept instructions from any nation, this may not be the reality. Independence is perhaps more likely (or potential bias better understood) in particular contexts. And the cultural basis for global law is generally weaker than for domestic law. But in special areas such as the WTO, there is a general group of principles that can be agreed upon by weak and powerful alike and can gain enough general political support to restrain the powerful. There are also situations in which national courts and administrative procedures are used to resolve international disputes. Many international disputes are ultimately less disputes between two nations than disputes between individuals from one nation and the government or individuals from another nation. As a result, there are many areas in which nations have effectively accepted the jurisdiction of one another’s national courts over their own citizens. These include extradition, international shipping disputes, international antitrust issues, and on and on. In some of these areas, individuals have the right to initiate what amounts to international litigation, albeit in national courts. This means that the national governments lack the ability to avoid submitting the dispute to the tribunal or to “settle out of court.” The result is a much more predictable rule of law, which can help the businesses or individuals involved. These areas often see the development of international treaties (covering, for example, the technicalities of international maritime transport) and of an effective international common law, in which the courts of different nations go back to the same precedents, cite one another, and seek to develop a coherent and workable body of law. This is sometimes done essentially by the courts themselves; it is sometimes facilitated by international agreements. There are also arrangements under which an individual can bring to an international panel a dispute with his or her own or a foreign government. A leading example is the human rights area, where both the European and the Latin American systems authorize such suits. A more mixed example has been defined by the bilateral investment agreements under which an investor is entitled to bring international arbitration proceedings against a nation for failure to observe certain investment guarantees. There is clearly an important role for such decision-making, especially in situations in which the investor would have reasonable doubts about the quality of the nation’s legal system in vindicating rights. Analogous provisions, however, have recently been applied in the

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North American Free Trade Agreement context, based on arguments, for example, that certain Canadian environmental regulations and certain U.S. legal safeguards amount to investment barriers. These applications have been quite controversial, because the tribunals involved combine compulsory jurisdiction with a subject matter competence that permits them broad freedom with little opportunity for effective revision of mistaken decisions. There will definitely be need for narrowing the jurisdiction of the tribunals to issues that more specifically affect investment. In all of these areas, a global common law can be expected to emerge, sometimes involving decisions by national courts in different nations, sometimes involving international judicial decisions, sometimes involving both. Such a global common law is crucial to international society, especially where national jurisdictions overlap, as will be increasingly the case. For the sake of both fairness and predictability, courts will be the best decision-makers in many of these international areas. And the courts of each nation will reasonably take into account the decisions of other nations, for the problems will be similar and the rules of different nations will have to be reasonably consistent. This kind of situation has long led to a global common law in admiralty; it will necessarily be expanded to many other areas. Nevertheless, a global common law does have to be viewed differently from a national common law, because there may be less possibility of legislative revision if the society believes that the courts have made a mistake. The problem at both the domestic and the international level comes when the common law turns out unduly to ignore an important social trend or to favor a powerful interest, as when the common law rejected labor union activities in the early twentieth century in the United States. Obviously, international analogues are possible. Moreover, even for a court with power restricted to a particular statute or treaty, there is a tension between interpretation of the text to achieve a coherent but expansive doctrine and interpretation to avoid controversial issues. The choice between these two perspectives has arisen as a sharp dispute between the United States and the European Union with respect to the WTO panel process. The U.S. argues that lacunae in the substantive treaties mean that the relevant national trade practices were meant not to be subject to international review; Europe, in contrast, looks for a more coherence-oriented decision-making strategy. This is perhaps because it is more comfortable with


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international court decision-making and with an ECJ that has interpreted the European constitutional documents as creatively as the U.S. Supreme Court has interpreted its constitutional documents. The strongest argument favoring the U.S. position is that the practical possibility of revising the WTO documents if the panel process makes a “mistake” is limited. The strongest argument favoring the European position is that, for precisely this reason, the international panel should use a process that recognizes changes that may have been unforeseeable to the drafters of the text. In the short run, the United States has the more defensible position; as the texts survive longer and longer, the European position is more persuasive. It is important to develop legitimate international judicial systems and international common laws for a variety of areas. In some areas, such as maritime law, a solid global common law system has emerged; in other areas, it is still controversial for a U.S. court to cite foreign opinions. As noted above, the legitimacy of a global common law depends on the quality of the underlying principles, the quality of the judicial system, and the reasonableness of replacing legislative decision-making with judicial decision-making in the particular context. These principles are pretty well satisfied in the technical areas discussed in this section; the problem will be to ensure that they are satisfied in the more political arenas discussed in the next two sections.

7.4.  Controlling the international activity of national governments As noted in Chapter 2, nations are exercising their criminal enforcement powers internationally. National legal systems deal with crimes that have significant international components: money-laundering, drug-dealing, hijacking, international terrorism. Governments have strengthened their abilities to prosecute such crimes. There are growing principles authorizing universal jurisdiction under which national courts can prosecute suspects for actions abroad, such as those affecting the forum court’s cocitizens and those viewed as globally prosecutable evils such as genocide. This activity is supported by a combination of formal global arrangements and informal or bilateral cooperation covering procedural issues such as extradition and the exchange of evidence. In addition there are treaties covering specific offenses, such as aircraft

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hijacking, that typically require the parties to cooperate in exchanging evidence and in prosecuting or extraditing suspects. There are also less formal and often secret arrangements. For example, U.S. actions against possible terrorists (and against drug dealers) have apparently included a variety of transborder abductions, special arrangements for holding and possibly torturing prisoners, and use of probably inadmissible intelligence data as a basis for holding prisoners, often in third countries. The transnational criminal law issues may be the most significant for many specific rights, but they are not the only extraterritorial issues that will affect human freedoms. For example, securities law, antitrust law, banking law, Internet law, privacy law, and environmental law all have significant international aspects today, along with such traditional areas as transportation law and communications law. In all these areas, nations are acting more extraterritorially; in some cases their actions directly affect rights, including the right to property and a variety of other rights, and in all cases, their action may or may not be exercised in a procedurally sensitive way. As also noted in Chapter 2, international society has already developed norms to protect human rights. It has also developed international courts to protect these rights. The human rights courts in Europe and Latin America typically allow state-to-state jurisdiction to evaluate a nation’s law or action against a bill of rights contained in a human rights treaty, and, under some circumstances allow individuals to seek a similar judgment. The individual-based jurisdiction is much more significant than the state-to-state jurisdiction, for it is not subject to governments’ inhibitions against international litigation. The consequent judicial decisions are quite effective in the European case, in which the ECHR (different from the EU’s ECJ) has issued judgments as far reaching as many of those of the U.S. Supreme Court, and nations have changed their policies or legislation in response. It must be recognized that these nations are all committed to a basic standard of human rights, so that the application of the judicial review provides legal reform more than protection against imminent tyranny. The emergence of international judicial systems that have the formal authority to tell a nation that its policies are not in accordance with a bill of rights is striking. After all, governments rarely restrict their own authority. The political force behind this phenomenon derives most strongly from Europe’s desire


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to condemn Nazism and help avoid the rise of another similar regime. Some human rights offenses, it was believed, could be preludes to war, or at least the basis of political instability that could lead to war. And in Europe, international human rights law helped the Western European nations differentiate themselves from the unfree states of the Soviet bloc. It became a basis for building a political community, and was part of the Continent’s move toward supranationalism. Outside Europe, the political processes have been somewhat weaker. In Latin America, there has been a long-term tradition of legal harmonization, and more recently there has been a desire to offer international legal assistance to once-authoritarian national governments seeking to commit themselves to democracy and a rule of law. The same is true in Eastern Europe in its hope to join the European Union. And some similar commitment may come in Africa as well, as at least some nations seek to put authoritarianism behind them. But much of East Asia has been resistant, sometimes using the argument that a more Confucian, antilaw approach is better. This could reflect a desire to work out rights issues through politics rather than through law—but it may also be just an excuse. Neither the Middle East nor China has been willing to participate significantly in the international trend toward human rights. The United States is not convinced either, at the public or the governmental level. The U.S. was a leader in creating the initial UN human rights regime, but U.S. objection began relatively early, and was reflected in the Bricker Amendment debates of the 1950s. This derived initially from efforts to protect segregation in the South against possible legal attack on the basis of human rights conventions. Today, it reflects much broader concerns. One group of concerns is ad hominem—the appointing process for the global international courts is essentially in the hands of governments, and many of the appointing nations are not, in fact, respecters of human rights. Hence there is not the confidence in judicial legitimacy that there is for the ECHR. But the most important source of U.S. doubt is almost certainly U.S. exceptionalism. The United States views itself—accurately—as having originated some of the most important mechanisms for protecting human rights, including judicial review. And being a continentally scaled nation, it has developed its legal institutions in much greater isolation than have the European nations. Moreover, the United States has not had a background of recent authoritarian government and does not feel the

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need to look to foreign institutions to ensure protection of its citizens against its own government. There is also concern to protect the particularistic U.S. support for capital punishment, a support that is shared by few democratic political systems (and may be weakening in the United States). Perhaps for these reasons, when it does accept an international human rights agreement, the Senate regularly includes provisos that the agreements remain only norms applicable to the government and cannot be enforced by the U.S. courts, let alone by foreign or international courts. U.S. critics have even objected to the U.S. Supreme Court’s relatively rare citation of foreign judicial opinions. Both within Europe and globally, national courts and international human rights courts do tend to cite one another’s opinions, particularly those of the ECHR, and of the U.S. Supreme Court. Thus there is emerging a global common law of human rights, in which judges throughout the world are in stronger and stronger judicial dialogue with one another. This pattern is parallel to that of the more technical international common law in areas such as maritime law—but it is supported by a tradition of long-standing judicial concern with human rights. Hence even in the absence of detailed treaties or a revision process, it has legitimacy. Crucially, however, these efforts have concentrated on traditional rights in a national context, and the law has often failed to reach the international actions of national governments; the leading exception is an emerging norm against extraditing a defendant to a nation where that person may not receive fair treatment. Nations have been relatively willing to recognize a role for an international court in supervising domestic human rights activity (as well as trade), but have been far less willing to do so in contexts such as immigration and international criminal law enforcement. Yet it is this international criminal area where the new problems lie. In the economic area, in contrast, human rights–like norms are emerging to protect international investors against expropriation and unfair regulatory treatment. Here, the most important development is the WTO General Agreement on Trade in Services, enforceable through state-to-state processes in the WTO, but there are also many bilateral and regional agreements, including the Bilateral Investment Treaties discussed in Section 7.3. These typically provide for compulsory arbitration at the request of an affected firm. This arbitration can be before a special tribunal, such as the International Centre for the


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Settlement of Investment Disputes (ICSID), or before arbitration panels. In addition, many arbitration decisions can be enforced much like domestic judicial judgments against assets found in nations that are members of ICSID or of the New York Convention on arbitral awards. The set of rights found in the WTO agreement or in the decisions of the various arbitral tribunals is much less well defined than that for the treatment of individuals before courts. Nevertheless, there is a body of common law emerging, based on principles similar to those found in the U.S. Administrative Procedures Act, that require, for example, that regulations be public, and there are also restrictions to ensure that expropriation is for public purposes and with compensation. These processes have been growing greatly, in spite of the severe nongovernmental organization (NGO) reaction in the United States against a number of arbitrations brought against U.S. and Canadian government entities. The NGOs also reacted against a proposal to multilateralize the standards through a proposed Multilateral Agreement on Investment. This agreement was modified in response to NGO concerns and, following its modifications, became unacceptable to business. The United States has been a leader in this context of creating international mechanisms for the protection of international business against unfair legislation and government action. Creating international decision-making bodies and arbitral tribunals with strong enforcement powers has long been a central goal of U.S. foreign policy, and the United States has been willing to accept parallel restraints upon itself and its own business. Here, it makes the assumption that its own system is already quite fair and effective and recognizes that reciprocity is inevitable in the international diplomatic process. In considering how to proceed, it must be recognized that some supervision of the extraterritorial actions of national governments is taking place in national courts. For example, there have been important decisions of the U.S. Supreme Court in 20044 and 2006,5 in the United Kingdom with important decisions of the House of Lords in 20046 and 2007,7 and in Canada in 2007,8 all vindicating particular rights of those detained in the international terrorism context. But there are barriers to such supervision. There is often a sense that constitutional human rights protections are there for one’s own nationals and not for the protection of others. This book’s premise that all human beings have certain human rights is not yet accepted in all nations’ legal systems. And

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national courts also often give their executives significant latitude in the foreign policy area. Another problem here is that neither national courts nor international human rights systems have yet developed reasonable principles to deal with the more difficult extrajurisdictional human rights problems. There are important exceptions, such as those associated with the treatment of prisoners of war. But courts are often concerned about their jurisdictional ability to manage situations such as those in which several nations are cooperating in a prosecution. They may sometimes fear that their decisions will impede a military effort or be ignored by an executive. Nor is this an area where statutory or treaty law is being developed very rapidly, because legislatures may not want to restrict their executives, and national governments certainly do not want to restrict themselves. And considering that many times, at least some of the governments involved do not respect human rights, it is extremely difficult to negotiate reasonable global arrangements that do respect human rights. This is why the existing international human rights efforts have often slighted these areas. The long-run protection of rights in these situations must be based on detailed and explicit understandings of the precise ways in which national and treaty bills of rights should be applicable to the international criminal process. As quickly as possible, codification is desirable and should reflect serious dialogue between the intelligence and military communities on the one hand and the traditional justice and human rights communities on the other. Considering that the actions involved are typically executive actions and that there will be strong temptations to ignore human rights, a judicial process seems generally superior to any approach based on an expectation that political actors will rein in executives. And although national courts may play a substantial role, ultimately there will need to be an international court to deal with conflicts of national perspectives. The key initial steps are to define reasonable balances between the human rights and the security concerns and to attempt to codify them in as many places as possible. The fora for definition might include congressional and parliamentary hearings, working groups in international parliamentary assemblies such as the Council of Europe, international legal groups, and committees and study groups created within existing international human rights institutions. These efforts would provide a set of understandings and principles that deal


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with the hard issues and that have substantial legitimacy. In some cases these could benefit from empirical studies (some of which might build on national security information). This would lead to balances dealing with the tensions between intelligence and privacy in the collection of data, the management of prisoners taken in irregular military operations, and guidelines for international criminal law cooperation. And parallel efforts could deal with such situations as the effective enforcement of the international freedom of the press, the use of extraterritorial freezing of banking assets, the flow of ideas on the Internet, and the standards for foreign participation in a nation’s electoral campaigns. These discussions and codification efforts would provide the basis for the international common law of human rights to include jurisdictional and international criminal law issues. The new common law would deal with extraterritorial assertions of power—that is, the principles of international criminal law, and situations like terrorism and the control of terrorism. In general, in the more technical areas of international law (going back to admiralty), courts have ultimately managed to develop reasonable principles to define the boundaries of different nations’ power. The same is needed here. And they could build on a combination of existing substantive principles of human rights and new procedural principles that might be debated in the nonjudicial discussions considered in the previous paragraph. Moreover, the evolution of an international common law dealing with these questions would embolden national courts to stand up to their own executives. Such an international common law does raise concerns about democratic authorization.9 The legitimacy of judicial review at a national level depends in part on its authorization by the community that created a constitution setting out a balance of power between a legislature and a court. The judicial review envisioned here would rely in part on that authorization, but would respond to global senses of the appropriate scope of each nation’s rules. There are solid arguments supporting such a judicial approach here. First, by most political theories, the individual rights do precede the creation of the national governments. Second, inasmuch as the issues are ones of rights (and of the most clear negative criminal and trial rights), the scope of the judicial review is limited. Third, national supreme courts can, for many years, be effectively overruled by national legislatures and constitutional processes. Moreover, the

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political mechanisms to create norms decrease the risk of judicial mistake and strengthen the legitimacy of judicial action. Finally, the global (or at last democratic nation) judicial review will evolve over a period that may see the evolution of some form of global demos supporting it. The overall process could be speeded, the standards set better, and the new stronger institutions emerge more quickly if there were an early explicit focus on those democracies in which the judiciary is independent. Within the limited-membership group of the world’s democratic community, nations are most likely to devise reasonable new human rights provisions dealing with issues such as international communications, international migration, or international criminal processes. There might well be a role for the solid international human rights systems of the ECHR and of Latin America. These systems could be strengthened, perhaps integrated over time, and certainly expanded to other democracies, such as India. Administrative human rights might be included along with traditional human rights. The courts of these nations are more effective and trustworthy than their parallels at the global UN level, and it is only these courts that can conceivably be given more sensitive authorities. After such arrangements are accepted among the democracies, they could serve as models for negotiations or political pressure to reach those less accepting of human rights. And the system could become a beacon to help in the democratization of nations that are not now democratic.

7.5.  The protection of human rights against international organizations There are already international criminal law courts created by international organizations. A bill of rights is therefore needed against international organizations as well as against national governments. Beyond the criminal prosecution areas, the examples are legion: concerns about treatment of international organization employees, concerns about sexual exploitation by peacekeeping forces, concerns of lack of due process in the UN list of terrorist organizations and its climate change project review procedures, and concerns about whether the national institutions structured in nation-building by the United Nations and international financial institutions are adequately representative and responsive to human rights. The example of the terrorist list is particularly significant,


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for it has already led to litigation in Europe over the desire of those affected by a terrorist listing to obtain an opportunity to contest the designation.10 In many of these situations, individuals should have a judicial-type review process to contest improper international institution actions; in some, particularly certain of the nation-building examples, there should at least be a political process to ensure that adequate national constitutional structures are created. And the concerns apply in the economic area as well as the human rights area. The international organization community is already responding, as described in Chapter 5. Thus, most international organizations have review procedures dealing with employee grievance questions. The World Bank has an Inspection Panel process, under which those affected by a Bank-funded development project can obtain a determination whether the project is consistent with the Bank’s various rules protecting, for example, the rights of indigenous communities. When the UN Security Council (SC) creates an international criminal court, it includes provisions to protect the rights of the subjects. The issue of soldier discipline is covered in standard UN Status of Mission Agreements. There is SC discussion of ways to contest an entities’ inclusion on the terrorist list. The WTO is finding ways to recognize public concerns about participation in its panel process. In these existing international courts and dispute settlement mechanism, a procedural and trial-oriented bill of rights can relatively readily be enforced by the entities themselves. It is certainly possible to develop standards to be included in such a bill of rights—and this seems immediately feasible and valuable in the administrative procedure context. Some such standards are currently generally included in the charters of the international criminal courts, whether created by treaty or by SC decision. But it is desirable to have a commitment that they will be included in future charters, together with a way to evolve a common law of interpretation of the standards and a basis for argument if the particular court’s procedures do not follow the standards. Although rights granted as a matter of grace are not granted strongly enough, they may be all that is available for some time. There are too many temptations. Consider the terrorist list. It is already difficult enough for the UN to find peacekeeping forces; an effort to strengthen military discipline may make it harder for it to obtain troops. There will be many more temptations as international organizations are enlisted to help in anti-proliferation and en-

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vironmental contexts. Ultimately, therefore, there will need to be a new treaty creating appropriate standards and, for some situations, an appellate court open to individuals. Because such a court would be so powerful, it would have to be limited in its authority, to a very specific list of rights, and be recruited in such a way that it be recognized to be fair. Otherwise it will neither serve its purpose nor be acceptable to the more powerful nations who are interested in using international organizations to protect their security. Such a court might also help maintain the constitutional balances reflected in international organizations. The ECJ provides an example—this court has explicitly been given the task of ensuring that the EU organization respects its constitutional boundaries. It is required to apply the European Union constitutional documents and to do so with respect to disputes between the organization and its member states, between the various institutions of the organization, and between individuals and the organization, as well as with respect to disputes between nations as to the interpretation of the constitutional documents. It has acted much as has the U.S. Supreme Court—protecting the interest of the international organization, but, in some case respecting the concerns of the member nations, moving cautiously at first, but later more dynamically, and paying attention to the general intellectual trends of the community. The ICJ already has somewhat similar authority to provide advisory opinions upon the request of certain international organizations. This can relate to the authority of the organization or to the interpretation of the political balances built into the organization. One of the leading ICJ cases, for example, interprets those provisions of the UN Charter that deal with the rights of a member that does not pay its dues.11 And in some institutions such as the World Bank, the interpretation of the constitutional documents is through the highest decision-making organ of the organization. Precisely because such boards are controlled by those who generally shape organization’s decisions, such review procedures are likely to be far less significant than those within the control of individuals. For the rights associated with nation-building, there needs to be a more political review mechanism. The initial task is thinking out minimum standards for the United Nations and the international financial institutions (IFIs) in representation, sexual equality, treatment of minorities, and the like. Conceivably, the new UN Peacebuilding Commission could play a role in this process.


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Then there can be thought about a discussion/hearing process in which key arguments could be posed about the wisdom of imposing a particular constitutional structure, or accepting a particular election process, or a particular approach to a minority group. In the meantime, civil society and open debate can accomplish much in these situations. The important difficulty in all of these directions is that reform of international institutions requires the agreement of a supermajority of the members of an international institution (depending on the particular institution)—and not all members of the institutions are likely to be democratic or supportive of human rights. Hence, formal constitutional reform is nearly impossible in many organizations (except perhaps for the Bretton Woods financial organizations, where the voting power is more concentrated). Probably the best halfway steps are based on three approaches. The first is, once again, to consider the hard problems and define the appropriate balances in all appropriate and possible official and unofficial fora. If the standard status of mission agreement fails to resolve the problem of sexual exploitation, there is a need to think about alternatives. If the World Bank has difficulty in relating to national parliaments, the issue and possible responses need to be discussed. And, these preliminary fora might create declarations or similar statements that might be made by various bodies of international organizations. It is possible to envision, for example, a Security Council or General Assembly statement that might embolden national or international courts to apply human rights principles against the UN when needed. This sort of effect was intended in the case of the 2000 EU Charter of Fundamental Rights—it was not issued in any formally binding way, but was still a statement that helped toward the future. Second, it is essential to continue the ad hoc approach that now dominates. This is important for the protection of human rights in the particular situations involved, and can provide experience and tradition that will help in moving more broadly in the future. Thus the World Bank created its Inspection Panel in 1993 following the Narmada dam dispute in India—and the panel is now relevant to broader types of concerns. It is conceivable that a similar approach could be used for review of certain kinds of UN actions in nationbuilding operations. As such arrangements are made more often, there will be more political possibility of broader institutionalization and of de jure submis-

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sion to judicial review. This might involve a new court with initial authority over a category of individual complaints against international organizations, or the ICJ might be modified to deal with such complaints. And the ad hoc approach could readily be expanded to international administrative procedure, where a code, which might amount at first to a best practices standard, could be negotiated. This could, for example, be applicable to some environmental issues, such as the global emissions trading procedures noted at the beginning of this chapter. The alignment of interests in these contexts is more positive than in the criminal-oriented context, and comparable issues, such as intellectual property, have already been brought into the WTO because of the attractiveness of that organization’s dispute settlement process and the possibility of cross-sector bargaining in the organization. Third, those nations that are concerned with human rights—that is, the democratic nations—might again move out in front to apply stronger procedures where they are involved in shaping or responding to international organizations. Thus they can define the ways in which they will ensure that human rights are respected in their voting behavior in international organizations. In some cases, existing national and regional courts can sometimes usefully take jurisdiction to consider the effects of an international organization’s actions. In Europe, for example, the German Constitutional Court has historically made a number of decisions that implied the need for the European Union to apply human rights principles, if EU law is to be constitutionally applied within Germany.12 This is clearly a risky approach, since it potentially undercuts international law, but principled human rights rejections by national courts can contribute to building a common law and can also, over the long run, place pressure on international institutions to respect human rights.

7.6.  Protecting the impartiality of scientific and economic advice It is also necessary to have judicial-like independence in maintaining the accuracy of certain kinds of information, such as scientific judgments, and in making the balances for certain kinds of policies, such as those affecting the monetary supply. There is a problem here. Information published by some international organizations is frequently criticized as inaccurate, typically on


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the grounds that the organization is politically required to accept the information provided by national governments, whether that information is accurate or not. Moreover, governments often lack adequate resources to develop the information or have incentives to be inaccurate in the information they report. This can be true of basic population and economic statistics; it is perhaps likely to be even more true of environmental or medical statistics. Processes such as those used by the International Panel on Climate Change (IPCC) show a further problem because of the risk of massaging of the scientific data by political representatives. Moreover, groups that are supposed to be expert are created by appointment by member nations. The IPCC is certainly a solid effort to balance scientific accuracy with political realities, but it is not as persuasive as a more independent group such as one organized by the United States National Academy of Sciences. There must be ultimate political control over many international expert groups, particularly in categories such as the monetary area. But in many cases, a greater real working independence is essential. There are a number of ways to achieve it. There might be a strong international academy of sciences, and perhaps analogues in the economic arena, with the task of ensuring that statistics and other databases are accurate. There are many ways to mix political responsibility and midterm independence, as with pre-fixed budgets and staggered terms for key officials. There might be international funding to help poor nations collect data of importance to all. Some major institutions might be funded privately (although this can also create biases) or by endowment. There can also be guidelines that can be used when new expert groups are created. Such guidelines already exist, created by particular international organizations or national governments. Conflict of interest is one of the important concerns—and there should be protection against conflicts based on national government pressures as well as against conflicts based on corporate pressures.

7.7.  Conclusions for the international judiciary New international norms are needed in a number of areas: the conduct of extraterritorial criminal prosecution, the human rights aspects of international activities such as transborder speech and migration, the protection of rights

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in international administrative procedures, and, finally, rights against international organizations themselves. To protect the rights spelled out in these norms, courts are frequently essential. Many of the controls can come from national courts, but some, particularly the controls on international organizations, will require new international courts or expansions of the powers of existing international courts. Individual access to such courts will be essential, and there will, in general, be strong resistance to such courts and strong political concern that the courts not overstep their bounds. The important exception is in the economic and administrative area, where the issues are unique, technical, and extremely important to business. Here new procedures might early on be created to provide a right of individual access to enforce what amounts to a global administrative law against international organizations. In the shorter run, however, these tasks will have to be dealt with by a variety of ad hoc mechanisms, based on national courts, on existing international human rights courts, and on mechanisms developed in connection with specific areas of responsibility, such as those of the SC. This will amount to expanding the current global common law of rights against national governments, to deal as well with rights against international organizations and with extraterritorial actions of national governments. Such a common law is almost certain to emerge; the need will be to make it balanced and solid. And it can best evolve within the more democratic nations, where it can be shaped by existing courts in the light of debates in existing legislatures.

chapter eight

Where to Begin?

This chapter begins with a brief summary of the threats that globalization brings to our rights and liberties. It then, also briefly, describes an ideal international system as a reminder of our long-term goal. It next turns to the political situation within which reforms must be implemented. It finally considers the reforms that appear most immediately achievable and important, how to achieve them, and where to begin. The reforms chosen as key are (1) strengthening national constitutional institutions for democratizing global policies, (2) extending national bills of rights to apply extraterritorially, giving priority to the international flow of information and ideas, (3) creating bills of rights for international organizations, beginning with administrative procedure rights, (4) developing interparliamentary cooperation among democracies, (5) creating an international organization watch-dog agency, and (6) creating a global constitutional culture.1 The reforms proposed here are quite different from those typically proposed by critics of globalization or of current international organization. This book makes no immediate proposal for a far-reaching world parliament or world court.2 Nor, like many proposals deriving from Congress, does it focus on increasing efficiency and reducing unnecessary expenditures (not that those are not desirable goals). Nor does it emphasize greater effectiveness in specific areas, as in peacekeeping or international development (again clearly desirable goals). The reforms considered here are rather focused on the basic constitutional structure of globalization and of international organization—what we must do to protect our freedoms as we inevitably cooperate internationally in new ways. In the short run, these reforms will almost certainly be difficult to achieve,


Where to Begin?

and they may sometimes embarrass existing international organizations. In the long run, they will certainly contribute to the strength of international organization. And, as author of a book such as this, I would be foolish to expect that my reform proposals will be nearly as significant as my identification of issues deserving attention. Globalization threatens our traditional freedoms in three ways. First, national governments acting extraterritorially and international organizations threaten specific rights. The examples range from violations of individual rights as part of the U.S. “war on terrorism” to failures of international financial institutions (IFIs) to respect the constitutional processes of member nations. Second, executive branches are typically gaining power at the expense of traditional constitutional checks. Foreign policy is often less subject to legislative or judicial control than is domestic policy, and more policy is now foreign. Moreover, the decisions of international organizations are almost always the result of negotiations among executive branches, with limited opportunities for the counterbalancing branches. Third, our ability to be represented is failing as issues are resolved outside legislatures and as the scope of issues important to us expands beyond the scope of individual legislatures. Life is international, but there is no international legislature.

8.1.  The goal Before looking at the next steps, it is useful to envision a goal. In my mind, that is one of a multiple-tiered structure of international governance. Some issues, such as climate change and some of the responses to terrorism, will be handled globally, because they cannot otherwise be resolved; most will be handled at the national or at another local level. The international organization system will probably remain institutionally divided—there is no reason to believe that the reforms of the foreseeable future will include integration of the UN system with the Bretton Woods system. All levels of governance will be subject to appropriate bills of rights defining both the traditional negative freedoms and a number of other negative and positive freedoms, including, for instance, administrative procedure rights and freedom of access to information. These various bills of rights will be enforced by various national and international courts that are available to affected in-

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dividuals, not just to governments, and there will be an international court or courts ensuring the balances of responsibility among the different national and international institutions. There will be both national parliaments and an international one, providing, at the various levels, checks on the power of executives, strong investigative and hearing processes, and an opportunity for the emergence of alternative views and the negotiation of alternative transnational coalitions. These parliaments will be chosen independently of national executives. At the national level, constitutional adjustments will take place to protect against the grant of too much power to executives. Reporting to the international parliament, there will be a strong watchdog agency, able to investigate and analyze the activity of international organizations. Finally, there will be a robust transnational political process. The press will be free everywhere; there will be globally oriented think tanks; there will be credible information about events throughout the world and thoughtful analysis of the global impact of national policies and the national impact of global policies. Although there may not be strong global political parties, there will at least be global ad hoc coalitions of national political parties around a variety of issues. These will build upon nongovernmental organizations (NGOs), but be able also to coordinate political action across different nations. And this political process will take seriously the idea that not just the rights of those in my nation but the rights of all in all nations are deserving of respect.

8.2.  The political context Nothing like what has just been described can be achieved without a crisis. After all, the League of Nations was created in the aftermath of World War I (and designed to prevent such a war), and reformed into the United Nations in the aftermath of World War II (and again designed to prevent such a war). A financial crisis precipitated the New Deal; fear of such a crisis at the end of World War II precipitated creation of the contemporary international financial system. Yet, as noted in Chapter 1, some change is possible between these constitutional moments. To a great extent, the change occurs in a gradual and informal way between constitutional moments (which are typically but not always times of crisis), and is then recognized and consolidated during those moments.


Where to Begin?

There is an example in the reorganization of the General Agreement on Tariffs and Trade (GATT) into the World Trade Organization (WTO). Here, the pressure came from the existence of strong lobbies that sought greater reduction of barriers to international trade (and also stronger intellectual property protection) and found it impossible to achieve those changes without a change in the framework of the relevant international organization. Similarly, the pressures toward strengthening international human rights commitments have grown over the years. Three important political tensions affect the achievement of the reforms described here. The first derives from national governments. National governments do not want restrictions on their power, and every arrangement to protect rights is such a restriction, even when it is a restriction on exercising power through an international organization. Moreover, every government routinely faces a number of urgent demands; tasks such as reform of international organization are likely to fall to the bottom of the task list. The second tension is between those constituencies who are interested in a global system and those who reject such a system. Most NGOs and most business entities are aligned in holding a cosmopolitan perspective of globalism, with a concern for rights and predictability of law throughout the world. There will be differences within these groups, but they are still the strongest constituency for reform. As noted in Chapter 4, there is a strong global countermovement exemplified by the anti-immigrant groups in the United States and Europe, isolationists within the U.S., and some wings of Muslim fundamentalism, which reject the extension of rights to those outside one’s own nation, and, in some areas, such as the rights of women, to some of those within one’s own nation. These groups are likely to oppose almost everything proposed in this book. Finally, there is a third tension: the defensive attitude toward human rights adopted in many developing nations. The states most likely to be barriers are powerful nondemocratic states such as China and Russia, future challenging states such as Iran that do not like the secular direction of international policy, nations such as Egypt that have not moved toward democracy, and a variety of developing nations that are in the grasp of corrupt leaders. These are the nations that have made the UN human rights process such a travesty. Dealing with them is likely to be the hardest task in implementing the reforms suggested here.

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8.3.  Relying on an alliance of democracies? Ideally, reforms would be global. However, it may be reasonable to begin some of the reforms with arrangements among democracies. Such an alliance of democracies has been controversial in recent political thinking, but there are good reasons to begin some of the reforms among those nations, where the reforms are most feasible, and then to use what it is hoped will be the growing power of the democracies over time to achieve change in the rest of the world. Save for some extremely important differences on a number of specific issues, the basic right questions will find general agreement among democracies and within the cosmopolitan political community. In spite of its failures in its “war on terrorism,” the United States, for example, has a strong commitment to due process and the protection of rights. Moreover, there are strong human rights movements within the nation, as well as business interests strongly desirous of obtaining due process from international organizations as well as from national governments. And a future U.S. administration is likely to accept strengthened human rights to protect the nation from the fall-out of the current administration’s human rights abuses. Perspectives from Europe and from democratic developing nations are likely to be quite supportive. European leaders, some developing-nation leaders, and the citizens of all these nations will be interested in stronger human rights guarantees. Many Europeans are already concerned about the democracy deficit of the European Union (EU), and at least some will be concerned about similar deficits at the global level. Thus there is space for substantial movement among the democracies. The U.S. Congress, and its foreign democratic analogues, may, at some point soon, recognize that their powers weaken as a result of globalization, and therefore be willing or even supportive of a package that provides a greater and more direct role in supervising international organizations. It is still the case that national legislatures are generally reactive and parochial in foreign policy contexts—consider the U.S. Congress’s desire to include stronger labor protections in international trade agreements or to restrict the peacekeeping role of U.S. soldiers out of anger over the treatment of U.S. peacekeepers in Somalia in 1993. Yet international military, financial, and economic trends are such that Congress will almost certainly realize that it needs to deepen its participation in international policy-making if it is not to become irrelevant. This will be


Where to Begin?

paralleled in other nations, and may lead not only to efforts to strengthen the role of parliaments (and perhaps national courts) within the national foreign policy world but also to efforts to achieve stronger communication among the parliaments of democracies. And getting parliaments involved and communicating better may help in defining and implementing new kinds of international deals. International legislative cooperation may be essential to build the more and more complex constituencies necessary to resolve the problems associated with international trade and the environment, just as international political party cooperation assisted in the building of the European Union. The same nations are interested in international organization reform, but, because of the need to obtain supermajorities for constitutional reform of such organizations, will not generally be able to achieve such charter-based reform in the near future. They will, however, in many cases, be able to obtain working and ad hoc reforms that amount to an intensifying recognition of rights. Such recognition produces the kind of creeping change that can, sometime in the future, be codified. Thus the United States and many in the developed-world democracies are very concerned about corruption within international organizations, and should, therefore, be very interested in the development of stronger audit principles. A stronger audit process is a quite appropriate outcome to the Oil-for-Food Program scandal facing the United Nations—and many in Congress would be strongly supportive. Europeans and many developingnation leaders are likely to support strengthened democratic input to international organizations. There is experience in the democratizing of the European Union. And, because of the voting structures and the great possibility of working informally, this group has great power over the International Monetary Fund (IMF) and the World Bank in contrast to the UN institutions. In the IFIs there can also be a bargain that gives developing nations greater representation in return for greater acceptance of rights. Thus it seems reasonable to begin with the democracies, which can apply rights more strongly in their own transnational relations and use their power in international organizations for the benefit of human rights. This must, however, go beyond concepts such as the current “Community of Democracies,” which emphasizes the executive level and possible bloc activity in the United Nations. That may be good, but far more is needed at the legislative and the judicial level. As suggested in the last chapter, the existing strong human rights

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organizations—that is, those of Europe and of the Americas—might play a key role. There would, of course, need to be arrangements to expand the participation to African and Asian democracies such as those of South Africa and India. Further, it is important to bring together legislatures to discuss ways to protect rights—and also to discuss global economic issues; and it is important that judiciaries join to build a strong common law on transnational issues. They would, of course, need expansion to include developing nations. How then does one deal with the resistant nations—the Asian nations that have put growth over democracy, the corrupt dictatorships, and the clerical nations? The answer is a combination of efforts to build a basis for long-term change with a demonstration effect. Thus the international lenders, including even just a partially re-formed World Bank, can exercise significant power to intensify the rule of law and to strengthen civil society, representative institutions, and education. Over the long run, these can help. And the demonstration effect derives from the appeal of the parliamentary system over the long run. Certainly China is today undercutting some of the efforts of the World Bank and the Western donors to bring reform to Africa—but sooner or later, any system it creates will succumb to democratization. Consider the implications for the Soviet system in Eastern Europe of the long-term appeal of the European Union. And consider also the role that the Helsinki agreement of 1975 served in bringing openness and ultimately political change to the Soviet Union.

8.4.  Strengthening counterbalances to national executives There are several ways to provide citizens (and national legislatures) an input into those aspects of foreign policy that significantly affect rights and are, at this time, dominated by the ability of executives to act unilaterally. But it is very difficult to make these work effectively, because legislatures have been declining so greatly in their oversight efficacy. As “Tip” O’Neill is reported to have said, “All politics is local,” so that legislatures are typically much more interested in domestic issues than in international ones. Moreover, depending on the national party structure, parties may not be interested in questioning their executive out of fear of creating political embarrassment. (The party structure may nevertheless provide a way in which the members of the legislature can have an informal input into the executive’s


Where to Begin?

actions.) Legislators are often interested more in hearings that will make headlines than in hearings that will explore hard issues. This is perhaps the case in some of the hearings surrounding the Oil-for-Food scandal in the United Nations. And legislatures are likely to hesitate to criticize an executive when the nation is threatened. These, not constitutional traditions, are the real problems in making parliamentary review effective. But there is a basis for change as international organization activity becomes more significant politically—this is seen in the fact that Congress is generally much more effectively interested in the WTO than in, say, the United Nations or the World Bank. It is the WTO that currently takes the politically significant decisions that affect constituents. As globalization proceeds, it is almost inconceivable that there will not be many more such situations. Hence the trend is likely to be one of increasing legislative interest in foreign policy. The beginning point is much stronger freedom of information arrangements within national governments. Beyond this, the political systems of different nations are so different that it is hard to define a general international obligation that executives should be balanced more effectively. It is clearly up to individual nations to puzzle out how to fit more intensive review within their own constitutional processes—and debates over specific politically important global issues will almost certainly provide the contexts for doing so. At this point, what is needed is careful consideration in each nation of ways to respond to the shift of power to the executive. This might come, in the United States, for example, in the context of reconstructing domestic constitutional institutions after the Bush administration, just as much similar thinking took place after Watergate. And it will be useful to have informal international discussion of the success or failure of different approaches in different contexts.

8.5.  Extending national bills of rights National bills of rights must be expanded to protect human beings against international activities of national governments. The expansion of the bill of rights may be politically difficult but is relatively easy to define. Using this book’s conception of “rights” (and of “bill of rights”) to include central principles of governance, regardless of whether these principles are found in traditional bills of rights, they include the following:

Where to Begin? 227

Application of basic political and conscience-oriented rights (speech, assembly, religion) to all individuals, whether citizens or not. Of particular importance, this should include a right to transborder speech, a right to proselytize, and a right for national and foreign groups to bring their ideas to bear to the domestic political process. Special principles may be needed to protect national political processes against foreign influence while permitting transborder speech. Application of basic individual rights (limitations on search, right not to be tortured, right to property, and so forth) to all parties, national or foreign. Clearly, the search provisions will require exceptions designed to deal with the need to collect intelligence information, and there will have to be consideration of whether the intelligence data (and its fruits) should be usable in judicial proceedings. Likewise, there may need to be special principles for extraterritorial effects of national actions to control or freeze assets. Application of basic trial rights (fair trial, access to a lawyer, no double jeopardy, due process, independent judge, and so forth) to all parties, national or foreign, involved in litigation before the courts or administrative agencies of any nation. Global definition of administrative rights to ensure, for example, that all regulations be published in draft and final versions, that there be a comment or hearing process between the two versions, and that administrative bodies live up to trial-type rights in dealing with individual cases. Extension of freedom of information procedures to many more issues affecting international relations. There will, of course have to be certain exceptions to respond to such concerns as the protection of national security and of negotiating positions. Ultimately freedom of migration, but, realistically, at this time a requirement that immigrants be treated fairly with respect to access to courts and basic freedoms, as well as given the benefit of minimum standards of ultimate access to the positive benefits of a nation such as education and health care. Historically, bills of rights have been created and enforced through unilateral action within national political systems, typically in response to excesses. But it remains that national interest will often resist acceptance of such restrictions, no matter how justified they might be as a matter of principle. The efforts of the U.S. government to avoid jurisdiction of the International Criminal


Where to Begin?

Court or criminal application of the Geneva Conventions against U.S. officials demonstrate this point. Hence, the task is to have ideas ready for the constitutional moments noted above, and to move to enshrine the ideas as political moments arise. And it is certainly possible that there will be a constitutional moment within the United States in a successor administration’s effort to turn away from some of the activities of the Bush administration. When those moments arise, it may also be possible to reach international agreements on the basis of reciprocity, perhaps initially just among the democratic nations. Such agreements may amount to extensions of existing human rights treaties, and might ultimately depend on the enforcement mechanism of such treaties. The body of nations protected by solid international human rights agreements is close to the body of democracies—negotiations to bring in those not currently included, such as India, could be an important step toward strengthening the human rights regime as well as making its application to extraterritorial activity effective. The starting point is international freedom of speech, a goal shared by most democracies. For it, and for the other issues buried within these proposals, it is important for official and unofficial entities to think about the difficult issues and then to develop plausible codifications. This will provide a stronger basis for national courts to impose rights-based restrictions on national extraterritorial activity, and to extend appropriate rights to foreign nationals. This definition process will help place the various specific issues on the national and global agendas. And it will identify the situations in which nations are wise (initially at least) to grant the rights only on a reciprocal basis. This will also encourage legislatures, NGOs, and (at least in the case of administrative procedure standards) business to move toward adoption of the various standards. A.  Bills of rights against international organizations There should also be a bill of rights governing international organizations and mechanisms to ensure the effectiveness of that bill of rights. As noted in the previous chapter, such a bill of rights is politically difficult to achieve and involves much new thinking, reflecting the different contexts in which international institutions must respect rights: employment, participation in the criminal prosecution process, issuance of regulations, and nation-building. In some

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of the contexts, it is necessary to draw a line between those rights best protected in a traditional judicial style (such as the treatment of prisoners taken by a UN force) and those that are best protected in a more political style (such as ensuring ultimate political equality among ethnic groups involved in a conflict in which the United Nations intervenes). Although it is possible that there will be special needs for particular international institutions, it is probably best to attempt to define as uniform a system as possible. A plausible bill of rights against an international organization might contain the following elements: A strong freedom of information act, under which the public can obtain access to international organization information, save for obvious exceptions dealing with such situations as individual privacy, bargaining positions, and private trade secrets. Recognition of due process type trial rights, privacy rights, speech rights, and individual equality rights in all cases in which an international organization is dealing with individuals, whether in a criminal context, in an employment context, and in some political and military contexts. This is particularly important in the context of the control of UN peacekeeping forces, who have sometimes lacked adequate discipline. An international administrative procedure act to deal with all regulatory or harmonization activities of international organizations. Although there might be flexibility in the process, this should include at least transparency, and preferably an opportunity for hearings or other input between the time a regulation or regulatory decision is proposed and the time it is issued. Principles that all international organization activities designed to affect the evolution of the political system of a community (that is, the activities of the United Nations in a nation-building context or of the IFIs in a lending context) (1) respect the community’s national constitutional structure (unless that structure is so ineffective or unjust that it is properly overruled under a humanitarian intervention principle), (2) respect the equality of persons and groups, (3) to the extent possible respect consultative institutions already present in the nation, and (4) ensure that the institutions they create respect basic due process and criminal law human rights principles, as well as human rights of equality and of participation. These standards would be similar and coordi-


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nated to the “charters” proposed by Paul Collier to deal with the reconstruction of nations after civil war.3 All of these will require difficult new thinking. The last topic is the most difficult, considering the underlying difficulty of carrying out nation-building or economy-building, particularly in failed states. Moreover, it will require facing issues of sexual and racial discrimination as well as making a deliberate choice for democratic governments when engaged in nation-building. The charters of international institutions will ultimately have to be amended to permit the kinds of reforms proposed here. What will be required of essentially all international organizations are commitments to honor the bill of rights, to respond to information demands (documents and hearings), sometimes to accept the jurisdiction of a court, and to honor injunctions and financial remedies demanded by the court. Similar demands are appropriate also for the treaty secretariats that act like international organizations (such as the secretariat for the ozone treaty). Special provisions would be appropriate to deal with the UN’s exercise of authority in peace-building and with the IMF and the IBRD’s (International Bank for Reconstruction and Development) arrangements for conditionality. In the short run, much can be done on an ad hoc basis. The first step is for groups of experts to define and explore the hard issues. These obviously include the definition of appropriate exceptions to a freedom of information act and the definition of an appropriate global version of an administrative procedure act. They also require a very fundamental analysis of the problems of nationbuilding, where international organizations are often attempting to bring order to Hobbesian situations and must attempt to act as responsibly as possible in very difficult situations (and often with sharply inadequate resources). They further include the definition of enforcement institutions—something which will certainly vary from context to context. As the opportunities arise, those standards could be applied to international organization. In some cases, the role and membership of a particular international organization may make it possible to achieve a full reform with adoption of a bill of rights and of a judicial enforcement institution. It is likely, for example, that administrative procedure rules could be enacted by the boards of essentially all international organizations that negotiate regulations, such as those for environmental and consumer protection. Such rules amount to “best

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practices,” and are likely to be supported by both NGOs and business groups. In other contexts, nations may be willing to commit themselves to exercise their power in international organizations in a way that respects human rights, and might even be willing to do so as a group of democratic members. Even in organizations that lack a formal commitment to human rights, it may be possible to conduct specific operations in a way that respects human rights—the World Bank, for example, has long been concerned with the rights of indigenous peoples affected by its projects, and has made formal commitments at the Executive Director level to do so. The UN Peacebuilding Commission and other international institutions may also be able to adopt significant statements of principles, parallel to the General Assembly’s Universal Declaration of Human Rights, and the EU’s Charter of Fundamental Rights. Such limited approaches are not as good as full commitments. But they offer a beginning, and are likely to make some difference, and they will make it easier to make full—and institutionally effective—commitments to human rights in the future. Ultimately, the political motivations supporting reform here are much like those for strengthening national bills of rights, and may sometimes depend on reactions to specific abuses. Those who fear international organization would be happy to vote to limit powers; those who support such organization would be willing to build rights protections in order to strengthen the legitimacy of the organizations. In some contexts it will ultimately be essential to have a court (or courts) that can be invoked by a person who believes that he or she is a victim of an action of an international organization in violation of the international bill of rights. This cannot be a national court, for that would undercut the powers of the international organization. (Immunity from some forms of national legal jurisdiction is typical of international organization charters and host-nation agreements.) And the court must be able not only to deal with appellate-style law determination—the traditional capability of the International Court of Justice (ICJ)—but also able to consider factual issues, as in the context of habeas corpus petitions against an international entity. It is too early to describe the appropriate court—what is needed now is experience, such as is provided by the ECJ, the European and American courts of human rights, and the World Bank’s Inspection Panel. Further courts—or mechanisms to expand the jurisdiction of existing courts—can be created on an ad hoc basis to deal with par-


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ticular specific situations. And the international human rights courts of the democratic nations may be able to act in some regional situations. It is this kind of experience—together with the emergence of a set of standards—that will provide the political basis for stronger judicial review of international organization activities as the constitutional moments arise. A judicial process is probably not appropriate for the broad rights to democracy and to participation needed in connection with peacekeeping and with economic assistance. Here is the international organization analogue of the U.S. judicial “political question” doctrine that leaves certain issues to the political branches. (There is a reason why courts do not pay much attention to the clause in the U.S. Constitution that guarantees each state a “republican form of government.”) Clearly, the approach here must be one based on attempting to ensure that the relevant political branches—that is, the Security Council (SC) and the World Bank—respect rights in their deliberations and seek to ensure that their decisions respect rights. There is already ad hoc activity in this direction, but again, work toward a statement of principles is likely to be helpful in anticipating problems, and one could be adopted by the Security Council or the General Assembly.

8.6.  Building toward interparliamentary cooperation At some point, it will be essential to devise a global parliamentary system that can provide a representative input to international decisions and organizations as well as political control of executives acting internationally. The greatest need is in the economic arena, where the activities of international organizations affect, for example, the wage levels in different nations. But certainly, there is a need for legislative balance to the executive G-7/G-8, whether or not the G-7/G-8 summits are expanded to include developing nations. There are questions of security and freedom, and there are questions of nation-building, all of which may go beyond the economic area. Thus the ultimate goal is a single global parliament that would be associated in some way with both the United Nations and the Bretton Woods organizations. Even if such a parliament is created, its most important activities will for a long time be consultative and hearing and oversight activities. Only way in the future is it likely that there will be significant budgetary authority, legislative authority, or appointments

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authority (perhaps a nomination right, perhaps a control over executive appointments as in a cabinet system or in U.S. Senate review of executive appointments). As discussed in Chapter 6, there are serious problems in making this work. Many members of international organizations do not want legislative participation. And representation is difficult: a representation system based on numbers of nations (like the UN General Assembly) greatly overprivileges smaller nations, a system based on power (like the SC) greatly overprivileges a few more powerful nations, and a system based on population greatly overprivileges China and India, compared to what is likely to be politically acceptable. Chapter 6 also pointed out several structural choices to be made in the long run. One is to create a genuinely new entity, perhaps initially chosen by national parliaments and eventually chosen by local elections, as is the case with the European Parliament. Another is to create a mechanism for members of national parliaments to meet together as a way to create an international parliament. This is the method used by the Council of Europe, and it was also used in the early years of the EU. And a UN commission has already proposed such an arrangement, in the form of an “exploratory global public policy committee” of legislators.4 It seems clear that steps toward an international parliament should focus initially on creating opportunities for serious political discussions of particular issues. The group should be interparliamentary rather than a separate new organization. In this way costs are decreased, while representation is maintained and ties to national legislatures are guaranteed. And on the membership side, it is wisest to create a parliament of just those nations that are genuinely democratic. This is the clear implication of the strategic analysis of Section 8.4. By restricting the effort to democracies, legitimacy is greatly increased. Moreover, many of the problems of asymmetric sizes of nations become easier to resolve. India would be included, although China would not. It would still be essential to follow a principle of weighted membership, presumably combining both power and population in the index. This seems feasible, and yet sets a precedent that can be lived with—because the organization should, over time, lead to a genuinely representative body. On the topic side, it would be wisest to concentrate the discussions on areas in which there is likely to be political interest in dialogues that look ultimately to transnational coalitions or to the desirabil-


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ity of developing alternatives to executive-proposed solutions. These include the areas discussed in this book, as well as global economic and environmental issues. This has already taken place in response to global warming, and the U.S. Congress has invited members of the EU parliament to discuss human rights issues. In spite of the political difficulty in doing so, it is essential that the parliament have a committee structure, with attached expertise, so that it can play an effective oversight role. What would be accomplished is first the intended goal: creation of a forum for the members of many legislatures—both developed and developing world—to meet to deal with transnational rights and difficult international issues of broad political interest and to devise responses different from those proposed by executives. Second, the interparliamentary group would create the ability, initially on an informal basis, to supervise the watchdog agency proposed later in this chapter, and generally to question international organizations, and to put forward new agenda and issues for them. It would not initially be able to have a broad formal legal relationship with the organizations, because it would not include all members of those organizations, but it could, if well led, provide effective advice and criticism. It could certainly also reach the organizations through reaching executive representatives in member nations (and might be in part a way of coordinating national legislatures in their oversight activities). As noted earlier in this book, this task of improving oversight is probably initially the most important one. Finally, the interparliamentary group could serve as a catalyst for encouraging democracy and respect for human rights in unrepresented nations, for focusing NGO and political party consideration of international issues, and for assisting in the organization of transnational political parties. The interparliamentary body might early on have a stronger relationship with the G-7 and the IMF and World Bank, for the democracies alone hold enough power in those organizations to create the potential for reform. This is important, for it is these organizations that shape many global economic decisions—precisely the decisions for which stronger representation is important. Indeed, a very reasonable first step might be for the G-7 to hold a legislators’ meeting sometime before the heads-of-state meeting on the topics to be discussed at the G-7. This would permit the beginnings of serious broad debate and input on the relevant issues, even though some of the legislators would

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probably at first simply support their own government’s expected position. But the group should include more than the legislators from the G-7 nations—for one of the important benefits is to improve dialogue among developed and developing nations’ legislators, and the group would certainly include representatives from Brazil and India. The group might also be consulted informally on various other issues, particularly those associated with the WTO. In the IFI context, the organization might ultimately be given formal authority to call international organization officials to formal hearings, to obtain documents from the organizations, and to comment on budgets and perhaps key appointments—but this is a long ways away! Obviously, this institution would not for a long time be accepted by the United Nations as a formal reviewing entity. Perhaps, however, it could in some way meet with the Economic and Social Council (ECOSOC)—in recognition of the fact that part of the UN probably has the greatest potential role in integrating policy and budgetary expenditure across different organizations.

8.7.  An international organization watchdog agency Because parliamentary oversight and the quality of press coverage are so weak in the international organization context, the most urgent institutional need is a global accountability institution with power to review the budgets, the finances, and the operations of international organizations. Such an institution would also help in building legitimacy of international organizations. The models include the General Accountability Office, which reviews U.S. executive actions on behalf of Congress, the Office of Management and Budget, which reviews U.S. executive branch actions on behalf of the White House, the UK Treasury, which similarly reviews UK government actions on behalf of the Cabinet, the European Court of Auditors with a comparable role in the European Union, and the Organisation for Economic Co-operation and Development (OECD), which has undertaken such a role in respect to international assistance. Moreover, the new UN Peacebuilding Commission is playing a somewhat similar role through its study of particular peace-building examples. Ideally, this organization would provide three functions: independent audit, cross-comparison of the budgets and activities of different organizations, and investigation capability. Although there are already many auditing entities


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within the existing international organization system, international organization budgets are often not very transparent. Ultimately, there should be a consolidated budget for all global international organizations to permit thoughtful analysis of overlaps and efficiencies. And there is need for greater standing capability to review the operational effectiveness, and not just the financial status, of different international organizations. Commissions, such as those reporting to the secretary general, are important, but a group able to review international organizations on a regular basis would be desirable.5 As usual, the problem is that the consensus needed for such a step is absent. Hence, a first step would be to set up such an entity unofficially among the democracies, with a major supervisory role for the interparliamentary body discussed in the previous section, in part on the theory that “if you build it, they will come.” Organizations will on occasion accept audits or studies without full legal obligation, as in the investigation of the UN Oil-for-Food program. Examples will build a tradition, and having an institution available would facilitate building the tradition. Independence can be gained by such mechanisms as placing the group’s governance in the hands of a group of commissioners, appointed by executives or conceivably by legislators for staggered fixed terms. The commission could then initiate an investigation on its own behalf, or it could initiate an investigation upon the request of a member nation or a member nation’s legislature. It is essential that it have a budget that cannot be manipulated to control the activities of the organization. Even if the entity cannot initially be guaranteed the right to subpoena data and testimony from international organizations and their international civil servants, it might be able to obtain such authority in specific cases, and it could certainly subpoena national officials from participating nations. And the entity could report to the public, to any international parliamentary group, and perhaps to the General Assembly, as well as to the national governments requesting a particular audit or study.

8.8.  Building a global constitutional ethos The formal constitutional principles for international organization are irrelevant unless they are supported by a culture of respect for the protection of human rights in the activities and overall structure of the international system.

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As Zakaria has pointed out in the domestic context, respect for constitutional processes is crucial for the maintenance of democracy, and its absence renders democracy impossible. Great Britain has maintained a constitutional government on the basis of a set of evolving traditions and ethical restraints that have enabled it to adapt and change its unwritten constitution, while providing a significant level of respect for individual rights. The proposals made in this book are those of a lawyer, typically looking for legal ways to protect rights. Often, such legal approaches may be essential—but sometimes the political approaches will be better, and it is crucial that the political culture of international organizations and of foreign policy respect the global demands of respecting freedoms and of designing institutional structures that will recognize the need for representation and be robust against misuse and tyranny. The way such protections can be achieved globally is quite different from the way they can be achieved at the national level. With a constitutional ethos that takes human freedom seriously, much can be done informally. Such an ethos would, for example, ensure that the Security Council took human rights concerns into account in designing antiterrorist regimes. It would facilitate efforts by the Security Council and encourage efforts by the G-7 (or expanded G-7) to take both citizen and developing-nation concerns into account. In the short run, the difficulty of achieving amendment to the structures of important international institutions means that it will be a variety of informal fixes and traditions that will have to be our basis for protecting human rights. Much of this is already happening, as in the development of informal mechanisms for the expansion of the G-7. More fixes will come from nongovernmental and governmental discussions of the needs and of practical alternatives for the informal fixes. Moreover, as a global common law of transnational rights emerges, it would both strengthen and be strengthened by the wider ethos. Since the global demos is still weak, there is yet no strong international constitutional culture. It is difficult to conceive of the constitutional culture evolving unless there is a stronger sense of the unity of the world. There already does exist such a sense in the private economic sector and in the scientific community. It is important to expand it, as through the activities of NGOs, and the greater the globalization of the reform discussion, the better off we will be. There are ways to encourage it, as through global statistics, global analyses of


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economic, security, and environmental issues, and most of all global thinking about the impact of the global system on the citizen. The international demos will also evolve and be fostered as a result of dealing together with a sequence of particular issues over time. At this point, the strongest policy thrusts toward globalization come from economics and from protection against terrorism. Both these thrusts risk ignoring citizens, for the economic pressures may ignore the concerns of labor and consumers, and the terrorism concerns may ignore the concerns of due process. Yet citizens are now protesting in precisely these areas, and, in some nations, they have legislative support. The citizens are facing the difficulties that foreign policy has traditionally been a matter for the executive rather than the legislature or courts. But consultation will happen; it is crucial for the survival of the system. It is where there is vibrant global debate that there is most likely to be effective global policy. National governments can find ways to bring their legislatures and their publics into the international diplomatic process. And international organizations can recognize the need to consult with publics and parliaments. Such consultation will contribute to an ethos of global concern for human rights in the international system, and, in the long run, perhaps, to a stronger global demos. Here there are especially important roles for foundations and civil society. The international legislative process and international political organization are currently weak. Foundations have funded many international activities focused on specific technical problems and on seeking to support ongoing negotiations such as those in Geneva. It would be wise to go further to include legislators and political officials from home nations—and not just representatives to international conferences—in order to help build the basis for deeper future negotiations and organizations. Civil society can also help by creating independent international scientific and economic organizations designed, in the fashion of the U.S. National Academy of Sciences, to evaluate scientific and statistical uncertainties, in politicized contexts. This already happens informally, as in expert groups of the World Health Organization, or committees of the International Council for Science (formerly the International Council of Scientific Unions). Such institutions could also serve as global intellectual secretariats for those seeking to fashion international negotiations that span several issue-oriented bureaucracies and

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agencies. And they could provide a forum for global economic thinking—for example, to explore the economic basis (or not) for a global Keynesianism in which growth in the developing world contributes to economic well-being in the developed world. Doing international organization well will require a process of continuing renegotiation. Such renegotiation has been typical of Europe and of the WTO. It has occurred, but at a somewhat hidden level and with little institutional evolution, in the IFIs and the United Nations. Formal organizational change is difficult, and amendment of the UN Charter is, at this point, unrealistic. Yet there are certainly ways that the overall system can be usefully improved— whether in internal reform of specific organizations, in formal reform of some, or in new arrangements to improve cooperation among organizations or to achieve the elements of democracy discussed in this book. Regular rethinking about issues like those raised in this book is essential to the protection of our freedoms.

8.9.  The very first steps The culture of reform cannot realistically be one of original intent or of a detailed long-term vision; it must rather be one of understanding how the rights of citizens, including their rights to decide as to their government, can be protected in an incremental and evolutionary way as the world evolves. It is premature to schedule a Bretton Woods, Maastricht, or Doha conference to consider overall reform of the international system; it is not premature to schedule discussions of the next reform steps that should be taken. To sharpen even the narrowed agenda of this final chapter, I would propose the following: Serious discussions with both expert and political input, looking to define freedom-oriented standards for the extraterritorial application of force in the drug, finance, and terrorist contexts. This is essential to the effective transnational extension of bills of rights. Development of principles and procedures to strengthen the international free flow of information and ideas in an era of the Internet and satellite television—and also of growing restrictions on and assassination of reporters, and concern about intellectual property rights and offense to minority groups.


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Similar development of standards for international organization administrative procedure, including relevant transparency and freedom of access. This is the most politically plausible beginning place for the reform of international organizations. Development of a combination of expert analysis and of political linkage designed to explore possible responses to crucial north-south issues such as labor standards and climate change. It is issues such as these that will ultimately be the political driving force toward interparliamentary cooperation and the creation of international political alliances. The think tanks and the unofficial international community can help by considering if these reforms make sense, if others are better, how the reforms would actually work out in institutional and financial terms, and how they might be achieved. The four tasks just raised provide an initial agenda. Each— and more—must be faced for the sake of our future freedom.

notes and index


Chapter 1 1. See C. Lehnardt, “European Court Rules on UN and EU Terrorist Suspect,” ASIL Insight 11, no. 1 (January 31, 2007). 2. In the thinking underlying this section, I was greatly helped by Thomas Banchoff and Mitchell P. Smith, Legitimacy and the European Union: The Contested Polity (Routledge, 1999). 3. See Max Weber, Economy and Society: An Outline of Interpretive Sociology, Vol. 1, ed. Guenther Roth and Claus Wittich (University of California Press, reprinted 1978), 215. 4. See J. H. H. Weiler, “The State “über alles”: Demos, Telos and the German Maastricht Decision.” NYU School of Law, Jean Monnet Center, working papers, 1995.

Chapter 2 1. I am indebted to Fareed Zakaria, The Future of Freedom: Illiberal Democracy at Home and Abroad (New York: W. W. Norton, 2003), for his emphasis of this point in the current nation-building context. 2. I am indebted here to Charles Tilly, The Formation of National States in Western Europe (Princeton University Press), 1975. 3. For this section, I found helpful and provocative T. J. Pressly, “Bullets and Ballots: Lincoln and the ‘Right of Revolution,’” American Historical Review 67, no. 3 (1962): 647–62. 4. In preparing this section, I’ve been particularly benefited by a thoughtful presentation by Allen Weiner and by a conversation with Tino Cuéllar. 5. U.S. Army General Orders No. 100 (1863). 6. In preparing this section, I’ve benefited greatly from the insights of Helen Stacy. 7. International Commission on Intervention and State Sovereignty, the Responsibility to Protect, December 2001.



Chapter 3 1. See, for example, Larry S. Temkin, Inequality (Oxford University Press, 1993). 2. John Rawls, A Theory of Justice (Harvard University Press, 1971). 3. James Buchanan and Gordon Tulloch, The Calculus of Consent (University of Michigan Press , 1962). 4. See Samuel Scheffler, Boundaries and Allegiances: Problems of Justice and Responsibility in Liberal Thought (Oxford University Press, 2001). 5. See Thomas Pogge, World Poverty and Human Rights (Polity Press, 2002). 6. The Law of Peoples (Harvard University Press, 1999). 7. Thomas Piketty and Emmanuel Saez, “Income Inequality in the United States 1913–1998,” National Bureau of Economic Research, working paper no. 8467, 2001. 8. See R. Foellmi and J. Zweimüeller, “Inequality and Economic Growth: European v. U.S. Experiences,” Institute for Empirical Research in Economics, University of Zurich, working paper no. 158, June 2003. 9. Yuri Dikhanov and Michael Ward, “Evolution of the Global Distribution of Income in 1970–99,” available at For a solid general discussion and comparison, see B. Milanovic, Worlds Apart: Measuring International and World Inequality (Princeton University Press, 2005). 10. In this respect I’m providing a different priority from that of P. Collier, The Bottom Billion (Oxford University Press, 2007), who emphasizes the poor nations and offers very innovative responses. Clearly, both issues are significant. 11. In this section, I’ve built on Jürgen Habermas, The Post-national Constellation (MIT University Press, 2001). 12. In this section, I’ve attempted to build on the insights of Anne-Marie Slaughter, while taking into account the cautions of Daniel Drezner, All Politics Is Global: Explaining International Regulatory Regimes (Princeton University Press, 2007).

Chapter 4 1. See, for example, Samuel P. Huntington, The Clash of Civilizations and the Remaking of World Order (Simon and Schuster, 1996). I want to acknowledge my debt to this book for its many insights, some of which I have used in this chapter. But I also believe that the book makes great oversimplifications and that civilizational identity is only one of many identities that matter at one time or another in governments and international affairs. 2. This is a point strongly pushed by Eric Hobsbawm in Nations and Nationalism since 1780: Programme, Myth, Reality, 2nd ed. ( Cambridge University Press, 1992). A parallel point—that ethnic differences do not necessarily imply ethnic conflict—is

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made in Stefan Wolff, Ethnic Conflict: A Global Perspective (Oxford University Press, 2006). 3. Note that the global antiglobalism movement, such as that which protests the WTO and the IFIs, is not generally part of the local culture, but rather part of the global secular culture that disagrees with the specifics of actual current globalization. 4. In making this statement, I’m comforted by the work of E. H. Carr, The Future of Nations (Kegan Paul, Trench, Trubner and Co., 1941), who emphasized that the right to self-determination is a right of the individual citizen, not of the group. 5. See Radha Kumar, “Settling Partition Hostilities: Lessons Learned, Options Ahead,” in Michel Seymour, ed., The Fate of the Nation State (McGill-Queens University Press, 2004), for a discussion of the difficulties of partition. 6. See, for example, G. Borradori, ed., Philosophy in a Time of Terror: Dialogues with Jürgen Habermas and Jacques Derrida (University of Chicago Press, 2003).

Chapter 5 1. In this part of the book, I rely heavily on insights from M. J. C. Vile, Constitutionalism and the Separation of Powers, 2nd ed. (Liberty Fund, 1998). 2. See S. Talmon, “The Security Council as World Legislature,” American Journal of International Law 99 (January 2005): 175–93. 3. Security Council Report, Special Research Report: Security Council Transparency, Legitimacy and Effectiveness, no. 3 (October 18, 2007). 4. In thinking about these issues, I’ve been greatly helped by the analysis in F. Kirgis, Jr., “The Security Council’s First Fifty Years,” 89 Amer. J. of Int’l Law (1995): 506–39. 5. I am particularly indebted here to my former student, Dominic Ayine, as well as to the fine article by Ngaire Woods, “Making the IMF and the World Bank More Accountable,” International Affairs 77 (2001): 83–100. 6. See the very provocative piece, Mark Bevir, “Democratic Governance,” Institute of Government Studies, University of California, Berkeley, 2004, paper WP 2004’5. 7. The Bank is already moving in this direction. See K. Scott Hubli and Alicia P. Mandaville, “Parliaments and the PRSP Process,” World Bank Institute, 2004. 8. See A. de Soto and G. del Castillo, “Obstacles to Peacebuilding,” Foreign Policy 94 (Spring 1994): 69–83.

Chapter 6 1. In writing this chapter, I have found helpful the work of several scholars who have emphasized the extent to which legislatures help in enabling a society to choose among several different reasonable courses of action. In particular, I found very helpful



the discussions in Jeremy Waldron, The Dignity of Legislation (Cambridge University Press, 1999); and John Rawls, The Idea of Public Reason Revisited (bound with The Law of Peoples) (Harvard University Press, 1999). 2. See, for example, James Buchanan and Gordon Tulloch, The Calculus of Consent (University of Michigan Press, 1962). 3. My thinking here is helped greatly by the detailed analysis of the interaction of political positions and institutional goals in the EU example, presented by L. Hooghe and G. Marks, “The Making of a Polity: The Struggle over European Integration,” European Integration Online Papers 1, no. 4, 1997, available at texts/1997-0041.htm. 4. This point emerges sharply from M. Fish and M. Kroenig, “Checks and Balances Key to Avoiding Civil Conflict,” San Jose Mercury News, January 11, 2008, 17A (written for the Washington Post). 5. This is suggested, for example, by R. Falk and A. Strauss, “Toward Global Parliament,” Foreign Affairs 80 (January/February 2001): 212–20.

Chapter 7 1. This example was discovered by two of my Stanford students to whom I wish to express appreciation, Sam Headon and Nicholas Rouleau. 2. In thinking out the importance of this form of “rule of law,” I have been greatly aided by Fareed Zakaria’s book The Future of Freedom (2003). 3. Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (Oxford University Press, 2004). 4. Rasul vs. Bush, 542 U.S. 466 (2004). 5. Handan vs. Rumsfeld, 126 S.Ct. 2749 (2006). 6. A and Others vs. Secretary of State for the Home Department, [2004] UKHL 56. 7. Al-Skeini vs. Secretary of State for Defence, [2007] UKHL 26. 8. Charkaoui vs. Canada (Citizenship and Immigration), 2007 SCC 9. 9. In thinking about these areas, I’ve benefited greatly from T. A. Aleinikoff ’s article, “International Law, Sovereignty, and American Constitutionalism: Reflections on the Customary International Law Debate,” American Journal of International Law 98 (2004): 91. 10. See, for example, Organisation des Modjahedines du people d’Iran vs. Council of the European Union, EU Court of First Instance Case T-228/02, December 12, 2006. 11. Certain expenses of the United Nations, 20 July 1962. 12. See, for example, Solange I, May 29, 1974, and Solange II, October 22, 1986.

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Chapter 8 1. In preparing this chapter, I have found to be especially helpful Edward C. Luck, “Reforming the United Nations: Lessons from a History in Progress,” International Relations Studies and the UN Occasional Papers, no. 1, 2003; and the work of Paul Magnette, for example: “European Governance and Civic Participation: Can the European Union Be Politicized?” Jean Monnet Working Paper, no. 6/01, Harvard. 2. See, for example, R. Falk and A. Strauss, “Toward Global Parliament,” Foreign Affairs (January/February 2001). 3. See P. Collier, The Bottom Billion (Oxford University Press, 2007). 4. Report of the Panel of Eminent Persons, June 11, 2004, ¶¶106–13, A/58/817. 5. In this part of the analysis, I have been greatly benefited by the work of Philipp Dann, especially his “Looking through the Federal Lens: The Semi-Parliamentary Democracy of the EU,” Jean Monnet working paper 5/02, NYU School of Law; and Gregory Shaffer, especially his “Parliamentary Oversight of WTO Rule-Making: The Political, Normative, and Practical Contexts,” Journal of International Economic Law (2004): 629– 54.


Accountability: electoral, 25; of international financial institutions, 73, 101, 157–58, 160–61; of international organizations, 24, 25, 235–36; procedural, 24; reform proposals, 149– 50, 235–36; watchdog agency proposal, 221, 234, 235–36 Administrative Procedure Act, U.S., 13, 107, 110, 208 Administrative procedures: delegated authority, 78–79, 106–7, 109; expertisebased, 106, 171–72; international coordination, 107–10; in international organizations, 147, 215, 229; legislation, 13, 107, 110, 137, 167, 208; purpose, 79; rights in, 12, 227. See also Bureaucracies; Regulation Affirmative action, 12, 76, 120 Afghanistan War, 56, 65 Africa: Chinese aid and investment, 86–87; democratic transitions in, 206; Rwandan genocide, 65, 127–28. See also Developing countries Alliances, 42 American Revolution, 13, 51 Annan, Kofi, 22 Asia: financial crisis, 85, 156; legal systems, 206; views of rights, 49. See

also China; Developing countries; India Audits: EU Court of Auditors, 186–87; in international organizations, 186–87, 224, 235–36; proposed agency, 150, 155, 161, 187, 235–36 Authority, centralized, 10, 21–27, 40 Axworthy Commission, 65, 127 Bills of attainder, 171 Bills of rights: enforcement, 231–32; expansion, 226–32; international, 205–6, 211, 220–21, 228–32; procedural, 212; United States, 11, 14, 41, 113, 123 Biological weapons, see Weapons of mass destruction Bosnia, 27, 66, 127, 151 British Empire, 19. See also United Kingdom Buchanan, James, 77 Budgets: of European Union, 185; of international organizations, 145, 183– 86, 235–36; legislative responsibility, 142–43, 169, 183–86 Bureaucracies: corruption, 148; of European Union, 24, 82, 130, 145; independence, 137, 139; international, 82, 138–39, 140, 141; international


coordination, 147, 161; of international financial institutions, 138–40, 156–61; international negotiations and, 105; regulatory capture, 148–49; of United Nations, 138, 151, 155, 161. See also Administrative procedures; Regulation Burke, Edmund, 14 Bush II administration: American exceptionalism, 34; human rights abuses, 223, 228; relations with international organizations, 20, 34, 151; scientific advisory committees, 79. See also War on terror Bush v. Gore, 197 Business interests, 26–27, 48, 169, 208, 223. See also Investment; Trade Cairns group, 182 Centralized government systems, 10, 21–27, 40 Charismatic leaders, 22, 124 Chechnya, 54 Checks and balances, 147, 157, 162, 172 Child labor laws, 96 China: aid and investment in developing countries, 86–87; economic growth, 90; economic power, 162, 163; inequality in, 90 Christianity: cultural conflicts, 115–16; fundamentalists, 116, 117, 124; minorities, 112. See also Religions Citizens: legitimacy of institutions, 21–26; power, 25; rights, 13–14, 48 Citizenship procedures, 126, 131 Civilians, as terrorist targets, 54 Civil rights: of immigrants, 126; inherent, 11–12; judicial protection, 195; procedural, 212, 227. See also Rights


Civil servants, 139. See also Bureaucracies Civil society, 63, 129. See also Nongovernmental organizations Civil War, U.S., 14–15, 16, 19, 21, 30, 57, 176 Climate change, 105, 106, 194, 216. See also Environmental issues Cold War, 27, 42, 46, 143 Collier, Paul, 230 Commission on Intellectual Property Rights, 3 Common law: international, 202, 203, 204, 207, 208, 210, 217; national, 195, 196 Communications, global, 23–24, 116 Communism, 116 Communities: cultural, 115, 119; equity and, 88–89, 91–92, 94, 95; homogenous, 119; lack of in international context, 181; loyalty to, 111, 121; religious beliefs and, 112; selfgovernment, 120; types, 111 Community of Democracies, 224 Confederacy, 21 Confucian ethic, 91–92 Congress, see U.S. Congress Congress of Vienna, 42 Constitution, U.S., see U.S. Constitution Constitutional ethos, global, 236–39 Constitutional moments, 10, 17–19, 35, 221, 228 Convention for the Elimination of All Forms of Racial Discrimination, 62, 128 Corruption, 94, 97, 146, 148, 162, 222. See also Oil-for-Food Program Costa/ENEL, 26 Council of Europe, 25, 188, 191 Courts, see Judiciaries Crime: internationalization, 45; war crimes, 155. See also Corruption

Index 251

Criminal law: bills of attainder, 171; enforcement, 195; evidence, 57, 60; extraterritorial applications, 45–46, 47, 55–59, 204. See also International criminal law Cultural identities, 114, 124 Cultural rights, 12–13, 118–22, 130–31. See also Religious freedom; Rights Cultures: conflicts, 115–17, 122, 127–29, 132; dialogues among, 119, 121–23, 126–27, 129, 131, 132; elite, 116–17; global communications and, 116; mixing, 115, 116; relativistic attitude, 124; supporting local, 127. See also Ethnic groups Declaration of Independence, 48, 49 Declaration of the Rights of Man, 11 Democracy: building, 62–63, 69–70, 159– 60, 225; equity and, 94; in European Union, 24, 25, 82, 179–80, 223; judicial review and, 210–11; representative, 167–69, 170, 189; transitions to, 206. See also Nation-building; Political participation rights Democratic countries: bureaucracies, 137; developing countries, 225; electoral accountability, 24, 25; executive branches, 137, 138; human rights agreements, 228; interparliamentary cooperation, 233–35; lawmaking process, 167–68; reforms led by, 223– 25; wars among, 50 Deregulation, 80, 84. See also Regulation Developing countries: civil and political rights, 75; coalitions, 182–83; democracies, 225; economic growth, 90, 91, 99; economic policies, 100; environmental regulation and, 106;

foreign aid, 85, 86–87, 88, 94–95, 101–3; foreign investment, 83, 84, 85, 86, 96; income inequality, 90; international negotiations, 86, 178–79; leaders, 102; legislatures, 101, 102, 235; opponents of human rights protection, 222; political processes, 102–3; poverty, 88–89, 90–91; regulations, 108; relations with G-7/G-8, 163–64; resource-rich, 94, 97; roles in new order, 225; sovereignty losses, 83–86; trade policies, 83; at United Nations, 152, 222; wage levels, 95–96 Dictatorships, 59, 189, 225 Digital Millennium Copyright Act, 169 Diplomacy: dispute settlement, 200; human rights issues, 62–63; shaming, 62 Dispute settlement: arbitration, 207–8; by diplomacy, 200; international mechanisms, 199–204, 207–8, 212; by national judiciaries, 194–95, 199, 202; rights protections, 212; in World Trade Organization, 27, 80, 82, 174, 201, 203–4 East Timor, 65 ECHR, see European Convention on Human Rights; European Court of Human Rights ECJ, see European Court of Justice Economic and Social Council (ECOSOC), 152, 164, 235 Economic growth: benefits, 99; in developing countries, 90, 91, 99; equity and, 92–93, 100; intellectual property protection and, 3 Economic policies: conditions imposed by IFIs, 28, 83–85, 86, 100–101, 156–58, 159, 161, 230; data collection, 215–16;


expert decision-makers, 78–79; free markets, 80–81, 84, 116; government roles, 72–73, 74; international aspects, 73; national, 79; Washington Consensus, 84, 86, 92, 100 Economic rights: constraints of international organizations, 82; development, 72–73; enforcement, 76–77; expert regulation, 78–79, 99; free enterprise, 84, 116; globalization impact, 79–83, 86; as individual rights, 88; national legislatures and, 77; in new order, 75–78; political participation rights and, 78, 89, 91, 94, 101–3; politics and, 77; priority, 12–13, 49, 75; in traditional system, 74–75; of workers, 75. See also Equity ECOSOC, see Economic and Social Council Education: economic benefits, 93, 96; equity and, 91–92, 94; foreign aid, 100, 101; government roles, 74, 76–77; of workers, 96 Elections: as accountability mechanism, 24, 25; campaign contributors, 168–69, 170; to European Parliament, 25, 190, 191; to national legislatures, 170; UN supervision, 69. See also Democracy El Salvador, 161 Emerging markets, see Developing countries Employment, see Labor Enemy combatant status, 55 England, see United Kingdom Environmental issues, 103–6. See also Climate change Environmental regulation, 74, 78, 82–83, 104–6, 176 Equality, right to: application of,


12; debates, 12, 76; in developing countries, 86, 91; economic and social, 76–78; enforcement, 76, 88; of ethnic groups, 74–75; exceptions, 76; gender, 74–75; of minority cultures, 120; outcomes standard, 77; of religious groups, 113. See also Inequality Equality of opportunity, 76, 120, 125 Equity: among nation-states, 87–88, 89, 90, 94–95; economic, 73; economic growth and, 92–93, 100; within nation-states, 87, 89–94; political processes and, 89, 91, 92, 93, 94; promoting, 91–92, 93, 94, 95, 96–99; sense of community and, 88–89, 91–92, 94, 95. See also Inequality Equity rights, international, 87–89, 91–92, 94–95 Ethnic groups: conflicts, 127–29; migration, 115, 119; minorities, 115, 119, 120, 127–29 Ethnic identities, 114 Europe: human rights law, 205–6; income inequality, 90; regionalism, 117 European Commission, 25, 81, 145–46, 186, 190 European Convention on Human Rights (ECHR), 50, 76, 167, 199 European Court of Auditors, 235 European Court of Human Rights (ECHR), 25–26, 49, 52, 64, 205–6, 207, 211 European Court of Justice (ECJ), 25–26, 145, 197, 204, 213 European Parliament: budgetary review, 185; elections, 25, 190, 191; legislation, 81–82; limitations, 190; lobbying of, 23; oversight function, 186, 187, 190; party groupings, 182; powers, 145, 190

Index 253

European Union (EU): agricultural subsidies, 20; areas of sovereignty, 16; budgets, 185; Charter of Fundamental Rights, 214; constitutional boundaries, 213; Council, 81, 145, 179–80, 185; Court of Auditors, 186–87; creation, 17–18, 20; democracy deficit, 24, 25, 82, 179–80, 223; financial resources, 28; free trade zone, 20; fundamental agreement revisions, 18; future evolution, 35–36; human rights protections, 19, 215; identity, 130; immigrants, 126; institutions, 17–18; labor and welfare standards, 96; legitimacy, 21, 22, 26; migration within, 125; monetary integration, 81; power, 9, 81; regulatory harmonization, 108; separation of powers, 145–46; symbols, 130; transnational political parties, 182. See also European Commission Executives, international: democratization, 165; examples, 138–39; G-8 as, 161–64; independence, 139, 140, 144–45, 149; of international financial institutions, 156–61; oversight of, 183–84, 186–87; power, 139–40, 172– 73; relations with national executives, 135–36; restraints, 139–40, 144–50, 157; terms, 145 Executives, national: balancing power of, 225–26; discretion, 136–37, 138, 141, 142; foreign policy responsibilities, 172, 225; globalization impact, 140–41; independence, 172; international lawmaking role, 179, 180; legislation initiated by, 137, 168; power, 135–36, 140–41; recruitment, 170; relations with legislatures, 137, 138, 141–43, 164, 169, 172, 221, 225–26; restraints, 136,

137–38, 141–44, 166–67, 226; roles, 135, 136–37, 172. See also Administrative procedures; Bureaucracies; Regulation Executives, national, relations with international organizations: in Asia, 146; borrowing from international financial institutions, 156–57; functional coordination, 147; negotiations, 81–82; power shifted from legislatures, 31, 81–82; relations with international executives, 135–36; restrictions, 141–42, 143–44 Experts: impartiality, 215–16; international institutions of, 110, 238–39; in international negotiations, 177; political constraints, 215–16; regulatory decisions, 78, 105–6, 107, 171–72. See also Scientists Extradition, 58, 207 Failed states: foreign aid, 85; human rights issues, 69; international organizations and, 85; interventions in, 47, 65; as terrorist havens, 47; as threat, 50 Fascism, 111, 114, 116 “Fast track” negotiating procedures, 142, 180 Federalism, in United States, 16, 19, 21, 25, 29–30, 32 Financial institutions, see International financial institutions Financial Stability Forum, 72, 80 Food and Drug Administration, U.S., 108 Foreign aid: Chinese, 86–87; dependence on, 102; for education and health, 100, 101; equity rights and, 88–89; to failed states, 85; political processes and, 94–95, 101–3


Foreign investment, see Investment Foundations, 238. See also Nongovernmental organizations Fourteenth Amendment, 12, 14–15, 131 France: centralized power, 40; Declaration of the Rights of Man, 11; EU establishment, 20; military, 114; minority cultures, 119–20; religious tolerance, 113, 118; revolution, 51, 54; secularism, 118, 119–20 Freedom: balance with security, 39, 40–42, 44, 53, 58–59, 69; political, 51; religious, 113, 118–19, 123; restraints, 53, 118; in traditional system, 40–42, 43–44. See also Rights Freedom of information procedures: applying to international organizations, 149, 155, 161, 229; executives and, 138; globalized, 109, 110; strengthening, 226, 227; U.S. law, 13, 109 Freedom of press, 221 Freedom of speech: across cultural boundaries, 126–27; expanding, 227; hate speech, 118; international, 63, 126– 27, 228; international implications, 50– 51, 57, 60; issues, 118; political speech, 13; religion and, 118, 127; restrictions, 51, 127; scope, 51; transborder speech, 227 Free markets, 80–81, 84, 116 Free trade, see Trade French Revolution, 51, 54 Functional organizations, 146, 147–50, 166. See also International organizations G-7 (Group of 7): finance ministers’ meetings, 28, 162; interparliamentary


cooperation, 234–35; meetings, 18, 98, 139–40, 162, 192; members, 18, 162, 163– 64; possible expansion, 237; power, 18, 86, 161–63; U.S. leadership, 34 G-8 (Group of 8): as de facto global executive, 161–64; expansion, 163–64; meetings, 18, 98, 162, 192; members, 18, 162, 163–64; power, 18, 86, 161–63; U.S. leadership, 34 G-20 (Group of 20), 163 G-77, 182 General Agreement on Tariffs and Trade (GATT), 18, 19, 20–21, 27, 80, 83, 222 General Agreement on Trade in Services, 207 Geneva Rule, 145 Genocide: preventing, 65, 70, 128, 153; Rwandan, 65, 127–28 Georgia, 54 German Constitutional Court, 19, 215 Germany: centralized power, 40; EU establishment, 20; Nazi regime, 64, 65; religions, 113; unification in nineteenth century, 113, 114 Global governance: benefits, 26–27; goals, 220–21; multilevel, 9–10, 220–21; need for, 11; power in, 19. See also Reforms Global institutions, see Executives, international; Judiciaries, international; Legislatures, international Globalization: benefits, 11, 82; critics, 82, 222; economic, 79–80, 95–97, 238; equity issues, 87; impact on rights, 11, 23–24, 79–83, 86, 220; meaning, 10–11; trends, 10–11 Global warming, 105, 106, 216. See also Environmental issues

Index 255

Government Accounting Office, U.S., 146 Great Britain, see United Kingdom Group of 7, see G-7 Group of 8, see G-8 Guantanamo Bay detainees, 58 Hammarskjold, Dag, 43 Health, 76–77, 94, 101 Helsinki Agreement, 50, 62, 225 Hobbes, Thomas, 14 Humanitarian interventions: authorization processes, 67–68; coalitions, 67; in failed states, 47, 65; human rights protection during, 68–70, 128, 154–55; preventive, 70; to protect minorities, 127–29; by United Nations, 47, 65, 67, 127, 128 Human rights: international movement, 23–24; intrinsic, 48–50; universal, 48– 50, 56. See also Civil rights; Cultural rights; Economic rights; Rights; Social rights Human rights protection: diplomatic interventions, 62–63; in foreign policy context, 44; inconsistency, 63–64; international agreements, 207, 228; in international criminal law context, 55– 59, 60–61; by international financial institutions, 160; international law, 49–50, 62, 207, 210; against international organizations, 67–68, 154–55, 211–15, 228–32; by international organizations, 68–70, 128, 154–55; by judiciaries, 195, 196, 197, 202, 205–7, 208–11, 213, 215, 231–32; jurisdictional issues, 209; military interventions, 64–65, 66–69, 209; within nationstates, 41; in new order, 48–50, 71; against other governments, 50, 61–65;

strengthening, 19, 71, 209–15, 216–17, 220–21, 228, 237; traditional system, 40–42; by United Nations, 155 Huntington, Samuel P., 115 IAEA, see International Atomic Energy Agency IATA, see International Air Transport Agency ICC, see International Criminal Court ICCPR, see International Covenant on Civil and Political Rights ICH, see International Conference on Harmonization ICSID, see International Centre for the Settlement of Investment Disputes Identities: cultural, 114, 124; national, 114–15, 126 IFIs, see International financial institutions IMF, see International Monetary Fund Immigration: citizenship procedures, 126, 131; cultural mixing, 115, 119; of labor, 125, 126; restrictions, 115, 119, 125; rights, 125–26, 131, 227; tensions, 115, 117, 222 Income distribution, see Economic rights; Equality, right to; Inequality; Poor Incrementalism, 14–16, 53, 77, 89, 239 India: economic growth, 90; Narmada dam dispute, 214; national identity, 114; poverty, 90; religions, 113 Industrial Revolution, 74 Inequality: in international legislative function, 178–81; levels, 89–91; trends, 90, 91, 92–93. See also Equality; Equity Institutions: incrementalism, 14–15; legitimacy, 21. See also Executives; Judiciaries; Legislatures


Insurgencies, see Revolution I.N.S. vs. Chadha, 142 Intellectual property protection: copyrights on digital material, 148, 169; economic development and, 3; Patent Cooperation Treaty, 28, 139, 185; TRIPS agreement, 83, 177–78, 182–83; World Intellectual Property Organization, 23, 28, 139, 148, 185 Intelligence collection, 44, 57, 58, 210, 227 Interest groups: campaign contributions, 168–69; coalitions, 183; in legislative process, 169; parties and, 170; roles in international negotiations, 175, 177, 183. See also Business interests; Lobbying International agreements: on human rights protection, 207, 228; on investment, 202–3, 207–8; political participation, 110. See also Treaties; World Trade Organization International Air Transport Agency (IATA), 148 International Atomic Energy Agency (IAEA), 20, 46–47, 59, 60, 138–39, 151 International Centre for the Settlement of Investment Disputes (ICSID), 207–8 International Conference on Harmonization (ICH), 108 International Court of Justice (ICJ): advisory jurisdiction, 154, 213; charter, 173; enforcement powers, 201; jurisdiction, 60, 144, 154–55, 200; U.S. withdrawal, 200 International Covenant on Civil and Political Rights (ICCPR), 11, 13, 50–51, 75 International Covenant on Economic, Social and Cultural Rights, 12, 75, 87


International Criminal Court (ICC), 59 International criminal law: courts, 59, 212; future of, 59–60, 210; human rights protection, 55–59, 60–61; judicial review, 58; prosecutions, 59, 155, 204 Internationale Handelsgesellschaft, 19 International executives, see Executives, international International financial institutions (IFIs): accountability, 73, 101, 157–58, 160–61; bureaucracies, 138–40, 156–61; checks and balances, 157; conditionality of loans, 28, 83–85, 86, 100–101, 156–58, 159, 161, 230; constitutional issues, 100–103; consultation with aid recipients, 103, 159; evolution, 18; executives, 140, 156–61; funding sources, 185; G-7/G-8 control, 86, 139– 40, 161–62, 224; human rights issues, 211, 212, 213–14; legislative oversight, 235; legitimacy, 100; political issues, 156–60; power, 73, 100, 156; restraints, 157; rights protection by, 160; roles, 9, 26, 99–100; transparency, 101, 102, 157–58, 161; U.S. influence, 33, 143, 157. See also International Monetary Fund; World Bank International judiciaries, see Judiciaries, international International law: application by national judiciaries, 181, 203, 204, 207; common law, 202, 203, 204, 207, 208, 210, 217; consensus requirement, 175–76; dispute resolution, 173; functions, 172–73; human rights, 49–50, 62, 207, 210; incrementalism, 15–16; law of war, 43, 56; legitimacy, 181, 204; sources, 173–75. See also Legislative function, international

Index 257

International legislatures, see Legislatures, international International Monetary Fund (IMF): conditionality of loans, 28, 83–85, 161; countries controlling, 86; evolution, 18, 27–28; Independent Evaluation Office, 161; major donors, 28–30, 101, 185; managing directors, 138, 146; Poverty Reduction Strategy Papers, 103, 156; power, 19; U.S. power in, 33, 143. See also International financial institutions International organizations: accountability, 24, 25, 235–36; administrative procedures, 147, 215, 229; budgets, 145, 183–86, 235–36; checks and balances, 147, 162; creation, 20, 26–27; developingcountry representatives, 86; economic rights and, 82; employee grievance procedures, 212; evolution, 9, 27–28, 35–36, 239; executives, 138–39, 144–45; financial resources, 28–29; functional, 146, 147–50, 166; G-7/G-8 control, 161–63; human rights protection against, 67–68, 154–55, 211–15, 228–32; human rights protection by, 68–70, 128, 154–55; incremental development, 15–16; intergovernmental interests served, 20–21; internal controls, 136, 149; legitimacy, 21–26, 130–31; oversight of, 221, 224; power, 29, 85–86; reforms, 35, 110, 211–15, 224, 230–31; regulation, 80; relations with nation-states, 9–10, 20–21, 31; renegotiations, 18; roles, 9, 26, 27; support for, 129–31; watchdog agency proposal, 221, 235–36. See also Executives, international

International Panel on Climate Change (IPCC), 216 International trade, see Trade Interparliamentary cooperation, 150, 153, 164–65, 190, 191–93, 224, 232–35 Inter-Parliamentary Union, 190 Investment: in developing countries, 83, 84, 85, 86, 96; international agreements, 202–3, 207–8 IPCC, see International Panel on Climate Change Iran, 198, 200 Iraq: IAEA inspections, 46–47; Oil-forFood Program, 146, 148, 155, 186, 187, 224 Iraq war, 30, 65, 66, 151 Irish Revolutionary Army, 54 Islam: cartoons seen as blasphemous, 127; cultural conflicts, 115–16; fundamentalists, 116–17, 124, 222; sharia law, 54, 123; state and religion, 112; Sunnis and Shiites, 116. See also Religions Jackson, Andrew, 197 Judicial review: alternatives, 198–99; international, 173; laws enforced by, 167; of legislative actions, 171, 195–97; legitimacy, 210–11; by national judiciaries, 171, 195–97, 210–11; need for, 196–97; of United Nations actions, 154 Judiciaries: legitimacy, 25–26; religious, 123; trial-related rights, 11, 60, 195, 196, 212, 227, 229 Judiciaries, international: appellate courts, 213; criminal law, 59, 212; current system, 59, 60; enforcement powers, 201; human rights


protections, 60, 205–7, 231–32; independence, 202; individual access, 25, 202, 205, 217, 220–21; jurisdiction, 199–204, 217; legitimacy, 201–2, 204; national governments and, 201–2, 205–9; reforms, 59–60, 209–15, 216–17, 220–21, 231–32; special-purpose courts, 201–3. See also International Court of Justice Judiciaries, national: administrative procedures and, 107; enforcement of decisions, 197–98; expectations of impartiality, 194–95, 197, 198; functions, 194–96; human rights protection, 208–9, 215; independence, 172, 197, 211; international dispute settlement in, 194–95, 199, 202; international law application, 181, 203, 204, 207; judicial review function, 171, 195–97, 210–11; legitimacy, 25–26, 198, 210–11; limitations, 198; relations with international organizations, 31; universal jurisdiction, 204. See also U.S. Supreme Court Just war theory, 44, 53–54, 65 Korea, 85, 156 Kosovo, 65 Kramer, Larry, 199 Labor: child, 96; economic rights, 75; globalization impact, 95–98; government regulations, 74, 96; international standards, 96–98; migration, 125, 126; minimum wages, 96; outsourced jobs, 95–97; power, 93; social rights, 75; unions, 74, 75, 96 Latin America: democratic transitions, 206; human rights court, 205, 211; legal


harmonization, 206; military coups, 198; populism, 87; U.S. interventions, 64. See also Developing countries Law: constitutional, 167, 210; extraterritorial applications, 205; functions, 166–67, 172–73; incrementalism, 14–15; military, 55, 56; religious, 113, 123. See also Criminal law; International law; Rule of law Law enforcement: international, 172–73, 176, 201; international cooperation, 204–5; judicial role, 195, 201; by national governments, 166; restraints, 166. See also Police Lawmaking: in democracies, 167–68; international, 173–81. See also Legislatures Law of the Sea Treaty, 174, 175, 201 Law of war, 43, 56 Leaders: charismatic, 22, 124; of developing countries, 102; strongman, 69 League of Nations, 42, 221 Lebanon, 59, 60 Legislative function, international: budgets, 183–86; compared to national legislatures, 175–78, 184; democracy deficits, 179–80, 181, 187–89; of European Council, 179–80; examples, 166; future structuring, 187–93; inequalities in, 178–81; informal, 189–90; legitimacy, 181, 188, 189; limitations, 176–77, 178, 179–81, 187–89; oversight functions, 183–84, 186–87, 192; of UN General Assembly and Security Council, 46–47, 174; of World Trade Organization, 9, 166, 174. See also International law; Legislatures, international

Index 259

Legislative veto, 142 Legislatures, international: functions, 110; legitimacy, 192, 193, 233; obstacles, 233; oversight functions, 235; powers, 232– 33, 234; proposed, 188, 189, 190, 192, 221, 232–33; trade negotiations reviews, 98–99. See also Legislative function, international Legislatures, national: administrative delegation, 78–79, 106–7, 109; British Parliament, 31, 143, 157, 187, 199; budgets, 142–43, 169, 184; in cabinet system, 169; campaign contributors, 168–69, 170; checks and balances, 172; collaboration among, 150, 153, 164–65, 190, 191–93, 224, 232–35; deliberation, 167–68, 177; in developing countries, 101, 102, 235; economic and social rights and, 77; elections, 170; foreign policy issues and, 225–26; functions, 137, 166–69; international financial institutions and, 157; judicial review, 171, 195–97; limitations, 171–72; logrolling, 168, 184; oversight functions, 138, 166, 169, 187, 226; political party roles, 138, 168, 170; relations with executive, 137, 138, 141–43, 164, 169, 172, 221, 225–26; relations with international organizations, 31, 81, 82, 101, 102, 149, 190–92, 223–24; subsidies for specific groups, 76, 77; treaty ratification, 181. See also U.S. Congress Legitimacy: of centralized government systems, 21–26; of governments, 121, 124–25; of institutions, 21; of international financial institutions, 100; of international law, 181, 204; of international legislative function, 181, 188, 189; of international legislatures,

192, 193, 233; of international organizations, 21–26, 130–31; of judicial review, 210–11; of judiciaries, 25–26, 198, 201–2, 204, 210–11; in multicultural states, 128; religious, 112; sources, 22–23, 121, 124–25; strengthening, 24–25 Lobbying, 23, 107, 169, 182–83, 191 Locke, John, 51, 74, 113 Madison, James, 17, 74, 199 Marbury v. Madison, 26 Meltzer Commission, 35, 143, 157, 185 Migration, see Immigration Military coups, 198 Military defense, 40, 42 Military force: citizen armies, 114; in failed states, 47; for human rights protection, 64–65, 66–69, 209; justifications, 44–45; legal restraints, 43, 45; UN authorization, 66, 67; UN interventions, 43, 65, 68, 140, 152, 153; use of, 43; U.S. interventions, 66–67; veterans, 91. See also Revolution; War Military law, 55, 56 Mill, John Stuart, 74 Millennium Development Goals, 70, 87, 89, 94–95 Monetary policy: coordination, 28, 163; European integration, 81; expert roles, 78, 109–10, 171–72, 215, 216; national, 79 Montreal Protocol, 104 Multiculturalism, 116, 118–21, 124, 126–27, 131 Multilevel governance: allocation of tasks, 32; benefits, 32–33; complexity, 30–31; costs, 29–31; creation of higher levels, 17–19; division of sovereignty, 16–17;


funding for lower levels, 30; global, 9–10, 220–21; legitimacy of levels, 21–26; lobbying, 23 Muslims, see Islam NAFTA, see North American Free Trade Agreement Napoleon, 114 National Academy of Sciences, U.S., 106, 216 National Endowment for Democracy, U.S., 182 National executives, see Executives, national National identities, 114–15, 126 Nationalism, 114 National judiciaries, see Judiciaries, national National legislatures, see Legislatures, national National security, see Security Nation-building: challenges, 230; coordination with international financial institutions, 161; rights protections, 68, 69, 155, 213–14, 229–30; by United Nations, 27, 68, 155, 159–60, 161, 211, 213–14 Nation-states: alliances, 42; balance of power among, 42; centralization, 40; domestic political systems, 41; failed states, 47, 50, 65, 69, 85; foreign policy processes, 43–44; relations with international organizations, 9–10, 20–21, 31; religious unity, 112, 117, 123; restraints on power, 222; rights protection mechanisms, 11; security, 40–41, 42–47 NATO, see North Atlantic Treaty Organization


Nongovernmental organizations (NGOs): charismatic leaders, 22; environmental regulation and, 104–5; equity promotion activities, 99; foreign aid, 102; foundations, 238; future roles, 193; international financial institutions and, 157, 158–59; international negotiations roles, 179, 182–83, 189, 191; investment agreement concerns, 208; lobbying, 23; watchdog activities, 149–50. See also Civil society Nonintervention principle, 41–42, 43, 61–62 North American Free Trade Agreement (NAFTA), 202–3 North Atlantic Treaty Organization (NATO), 66 Nuclear Non-Proliferation Treaty (NPT), 46 Nuclear weapons, 42, 46. See also International Atomic Energy Agency OECD, see Organisation for Economic Co-operation and Development Oil-for-Food Program, 146, 148, 155, 186, 187, 224 Organisation for Economic Co-operation and Development (OECD), 235 Ottawa Process, 178 Ottoman Empire, 113 Oversight: by European Parliament, 186, 187, 190; of international executives, 183–84, 186–87; of international financial institutions, 235; by international legislature, 183–84, 186– 87, 192; of international organizations, 221, 224; by national legislatures, 138, 166, 169, 187, 226. See also Watchdog agency

Index 261

Palestine, 54 Parliaments, see European Parliament; Legislatures Participatory rights, see Political participation rights Parties, see Political parties Patent Cooperation Treaty, 28, 139, 185 Peacebuilding Commission, UN, 213, 231, 235 Peacekeeping, by United Nations, 27, 42–43, 68, 128, 150, 155, 211, 212, 229 Police, 55, 57–58, 59, 60–61. See also Criminal law; Law enforcement Political freedom, 51. See also Freedom Political participation rights: of citizens, 13–14; economic and social rights and, 78, 89, 91, 94, 101–3; environmental regulation and, 104–6; foreign aid and, 101–3; in new democracies, 69–70; revolutions to obtain, 51–52; in United States, 13. See also Democracy Political parties: international analogues, 182–83; international cooperation, 192, 221; national executives and, 138, 170; national legislatures and, 138, 168, 170; roles, 170, 183; transnational, 182 Political processes: in developing countries, 102–3; equity and, 91, 92, 93, 94; foreign aid and, 94–95, 101–3; reforms to, 221; regulation and, 107, 108–9 Political rights: of individuals, 11–12; in new democracies, 69–70; to revolution, 51–55. See also Political participation rights; Rights Pollution, see Environmental issues Poor: in developing countries, 88–89, 90– 91; health and education programs, 77,

94; obligations to, 88–89; rights, 49, 88; welfare programs, 94 Populism, 87 Poverty, see Poor Poverty Reduction Strategy Papers (PRSPs), 103, 156, 158 Power: economic, 162, 163; of European Union, 9; in global governance, 19; of international executives, 139–40, 172–73; of national executives, 135–36, 140–41, 225–26; of United States, 33–34, 178; of UN Security Council, 43, 67, 150–51, 152. See also Separation of powers Preemptive war, 47 Presidents and prime ministers, see Executives, national Press, 138, 149, 191, 221 Prisoners: at Guantanamo Bay, 58; preventive detention, 56; rights, 56–57, 208; torture, 53, 56–57, 205; of war, 43, 56, 209 Privacy, 44, 57, 58, 60, 210, 227 PRSPs, see Poverty Reduction Strategy Papers Rasul v. Bush, 58 Rational legitimacy, 22 Rawls, John, 14, 75, 77, 89 Reforms: in accountability, 149–50, 235–36; ad hoc implementation, 217, 224, 230–31, 236; alliance of democracies leading, 223–25; bill of rights for immigrants, 126; bills of rights extensions, 226–32; challenges, 219–20; constitutional ethos, 236–39; in cultural dialogues, 129, 132; in cultural rights, 131–32; executive power counterbalances, 225–26; to


G-7/G-8, 163–65; goals, 220–21; in human rights protection, 71, 209–15, 216–17, 220–21, 226–32; implementing, 239–40; in international coordination, 110; of international executives, 165; of international financial institutions, 157–61, 165; of international judiciary, 59–60, 209–15, 216–17, 220–21, 231–32; of international legislative function, 187–93, 221; of international organizations, 35, 110, 211–15, 224, 230–31; interparliamentary cooperation, 232–35; key, 219–20; of national legislatures, 190–92, 221; of nongovernmental organizations, 193; political context, 221–22; to political process, 221; in trade negotiations, 98–99; of United Nations, 67–68, 152–55, 165; watchdog agency, 221, 234, 235–36 Regulation: constitutional issues, 108–9; critics, 84; deregulation, 80, 84; environmental, 74, 78, 82–83, 104–6, 176; expert roles, 78, 105–6, 107, 171–72; international harmonization, 107–9, 147, 174–75; by international organizations, 80; of labor, 74, 96; by national executives, 137; political processes and, 107, 108–9; redistributive effect, 168. See also Administrative procedures Regulatory capture, 148–49 Religions: blasphemy, 118, 127; conflicts, 115–16, 123; fundamentalists, 116–17, 124; laws, 113, 123; mixtures within countries, 112–13, 114; state identification with, 112, 117, 123, 124; tolerance, 113, 120 Religious freedom, 113, 118–19, 123


Revolution, 51–55, 93. See also War Rights: of citizens, 48; of conscience, 113, 227; as controls on governments, 49; of corporations, 48; cultural, 12–13, 118–22, 130–31; globalization impact, 11, 79–83, 86, 220; of immigrants, 117, 125, 126, 131, 227; to immigrate, 125–26, 131, 227; intrinsic, 11–12, 48–50, 51; in national law, 48, 49; of noncitizens, 13, 44, 48, 227; positivist view, 49; of religious minorities, 113; trial-related, 11, 60, 195, 196, 212, 227, 229; types, 11–14; of women, 131, 222. See also Bills of rights; Economic rights; Equality, right to; Human rights; Social rights Roman Empire, 19, 66 Royal Society, 106 Rule of law, 11, 13, 24, 69–70, 159, 166–67. See also Law Russia: Chechnya and Georgia, 54; inequality in, 90, 92. See also Soviet Union Rwanda, 65, 127–28 Sanctions, 57, 63, 151, 173 SC, see United Nations Security Council Scheffler, Samuel, 88–89 Scientists: advisory committees, 79, 106; global warming issue, 106; impartiality, 106, 215–16; international institutions of, 106, 110, 216, 238–39; regulatory decisions, 171–72. See also Experts Searches, 44, 227 Secularism, 116–17, 118, 119, 123–25, 131 Security: balance with freedom, 39, 40– 42, 44, 53, 58–59, 69; evolving threats, 45, 46; military defense, 40, 42; in traditional system, 42–45; UN role, 152

Index 263

Security Council, see United Nations Security Council Self-determination, 52, 114–15, 119, 121 Separation of powers: benefits, 32; at global level, 161; in international organizations, 144–46; at national level, 135, 172; theory, 136 September 11 attacks, 47. See also War on terror Sharia law, 54, 123 Sierra Leone, 15, 65 Socialism, 72–73, 75, 79, 84 Social rights: development, 12, 72–73; enforcement, 76–77; expert regulation, 78–79, 99; globalization impact, 79–83, 86; of immigrants, 126; as individual rights, 88; national legislatures and, 77; in new order, 75–78; political participation rights and, 78, 89, 91, 94, 101–3; politics and, 77; priority, 12–13, 75; in traditional system, 74–75; of workers, 75 South Africa, 64 Sovereignty: divisibility, 16–17; nonintervention principle, 41–42, 43, 61–62. See also Global governance Soviet Union: collapse, 50, 62, 225; human rights issues, 50. See also Russia Speech, see Freedom of speech States, see Nation-states Subsidiarity, 32, 130 Surveillance, 58. See also Intelligence collection Taiwan, 92, 93 Taxes: on capital transfers, 99–100, 186; implicit, 168; income, 28; increasing, 184; international, 185–86; legislation, 169; representation and, 78

Terrorism: cultural motives, 116, 117; distinction from revolution, 52–53, 54; economic motives, 95; havens, 47; international, 45; Irish Revolutionary Army, 54; September 11 attacks, 47; threats to freedom, 54; UN terrorist organization list, 9, 211–12. See also War on terror Thailand, 85 Thatcher, Margaret, 79 Tobin tax, 99–100, 186 Torture, 53, 56–57, 205 Trade: benefits, 97; infant industry protection, 83; liberalization, 80, 81, 82, 83, 97, 222; negotiations, 98–99, 142. See also World Trade Organization Trade-Related Aspects of Intellectual Property Rights, see TRIPS agreement Traditional legitimacy, 22 Traditional system: economic rights, 74–75; freedom, 40–42, 43–44; human rights protection, 40–42; security, 42–45; social rights, 74–75 Transparency: of governments, 91, 94, 167; of international financial institutions, 101, 102, 157–58, 161; in regulation, 229 Treaties: bilateral, 173, 178, 207–8; dispute settlement mechanisms, 201; multilateral, 173–74, 178; negotiations, 173–74, 175–79, 180, 182; on prisoners of war, 43; ratification process, 181. See also International law Treaty of Versailles, 114, 181 TRIPS (Trade-Related Aspects of Intellectual Property Rights) agreement, 83, 177–78, 182–83 Tulloch, Gordon, 77 Turkey, 118, 127


Ukraine, 54 Unemployment, 95–96. See also Labor UNESCO, see United Nations Educational, Scientific, and Cultural Organization Unilateralism, 19, 47, 143, 151 United Kingdom: constitution, 199, 237; House of Lords, 208; Human Rights Act, 198–99; human rights review by courts, 31; IRA bombings, 54; Parliament, 31, 143, 157, 187, 199; Royal Society, 106; watchdog agencies, 235 United Nations: administrative reform, 152; budgets, 186; Charter, 41, 43, 70, 114, 151, 213; Charter amendments, 152, 239; Commission on Human Rights, 189, 222; Committee for Programme and Coordination, 28–29, 185; Economic and Social Council, 152, 164, 235; evolution, 18, 27; founding, 17, 27, 42, 221; General Assembly, 67, 87, 144, 152, 153, 174, 182; High Level Panel, 152, 153, 154; humanitarian interventions, 47, 65, 67, 127, 128; international courts, 59, 60; Law of the Sea Treaty, 174, 175, 201; legitimacy, 22; major donors, 28–29, 140, 143, 144, 152; military interventions, 43, 65, 68, 140, 152, 153; Millennium Development Goals, 70, 87, 89, 94–95; nation-building, 27, 68, 155, 159–60, 161, 211, 213–14; nondemocratic members, 69, 70; Oilfor-Food Program, 146, 148, 155, 186, 187, 224; Peacebuilding Commission, 213, 231, 235; peacekeeping, 27, 42–43, 68, 128, 150, 155, 211, 212, 229; reform proposals, 67–68, 152–55, 165; roles, 9, 18, 27; Secretariat, 138, 151, 155, 161;


secretaries general, 138, 140, 146, 151, 152, 154; security role, 152; terrorist organization list, 9, 211–12; United States and, 28, 151–52; Universal Declaration of Human Rights, 49, 103 United Nations Educational, Scientific, and Cultural Organization (UNESCO), 28, 140, 184 United Nations Environmental Program, 105 United Nations Framework Convention on Climate Change, 194 United Nations Security Council (SC): authorization of use of force, 43, 66, 67; G-7/G-8 control, 161–62; international tribunals established, 60, 212; lack of accountability, 150–51; legislative function, 46–47, 174; meetings, 151, 152; permanent members, 42, 43, 150–52; power, 43, 67, 150–51, 152; reform proposals, 67–68, 152–55; relations with General Assembly, 152, 153, 154; rights protection, 232, 237; terrorist organization list, 9 United States: Administrative Procedure Act, 107, 110, 208; bilateral diplomacy, 29; capital punishment, 207; child labor laws, 96; Civil War, 14–15, 16, 19, 21, 30, 57, 176; cultural conflicts, 116, 117; exceptionalism, 34, 206–7; executive branch, 141–43, 180; federalism, 16, 19, 21, 25, 29–30, 32; Freedom of Information Act, 13, 109; GI Bill, 91; global role, 66–67; human rights issues, 206, 223; immigrants, 115, 126; imperialism, 47, 66; income inequality, 90, 92–93; International Court of Justice and,

Index 265

200; investment agreements, 208; Iraq war, 30, 65, 66, 151; judicial review, 195–96, 197; military interventions, 66–67; multiculturalism, 119; national identity, 114; national security strategy, 47; outsourced jobs, 95–96; Patriot Act, 55; Pax Americana, 15, 66; political participation rights, 13; power, 33–34, 178; power of individual citizens, 25; relations with United Nations, 28, 151–52; religious groups, 119; special role, 33–34; unilateralism, 19, 47, 143, 151; watchdog agencies, 235. See also Bush II administration U.S. Congress: bills of attainder prohibition, 171; direct elections of senators, 25; “fast track” negotiating procedures, 142, 180; interest groups and, 169; international financial institutions and, 157; international human rights issues and, 223; Meltzer Commission, 35, 143, 157, 185; Oilfor-Food Program investigation, 146; regulation and, 148; relations with executive branch, 141–43, 180; treaty ratification, 181, 207 U.S. Constitution: amendments, 18, 19; Bill of Rights, 11, 14, 41, 113, 123; bills of attainder prohibition, 171; compromises, 17; Fourteenth Amendment, 12, 14–15, 131; framers, 31, 49; Philadelphia Convention, 17; war declarations, 44 U.S. Supreme Court: Bush v. Gore, 197; detainee rights, 208; foreign law citations, 207; I.N.S. vs. Chadha, 142; judicial review authority, 197; Marbury v. Madison, 26; Rasul v. Bush, 58; United States v. Curtiss-Wright Export

Corp., 44; United States v. VerdugoUrquidez, 48; West Virginia State Board of Education vs. Barnette, 196 United States v. Curtiss-Wright Export Corp., 44 United States v. Verdugo-Urquidez, 48 Uniting for Peace resolution, 152 Universal Declaration of Human Rights, 49, 103 Uruguay Round, 83, 178–79. See also General Agreement on Tariffs and Trade; TRIPS agreement Veterans, 91 Voting rights, see Political participation rights War: declaring, 44, 45; democracy and, 50; as exception, 42; just, 44–45, 53–54, 65; law of, 43, 56; preemptive, 47; prisoners, 43, 56, 209. See also Military force War crimes, 155 War on terror: extraterritorial jurisdiction, 19; human rights violations, 55, 56, 238; intelligence collection, 57, 58; prisoners, 53, 56, 205, 208; targeted assassinations, 57; unilateralism, 47 Washington Consensus, 84, 86, 92, 100 Watchdog agency, proposed, 221, 234, 235–36 Weapons of mass destruction (WMD), 42, 45, 46–47, 59, 176 Weber, Max, 22 Welfare states, 12, 73, 80, 93–94, 96 West Virginia State Board of Education vs. Barnette, 196 WHO, see World Health Organization


Wilson, Woodrow, 114 WIPO, see World Intellectual Property Organization WMD, see Weapons of mass destruction Women’s rights, 131, 222 Workers, see Labor World Bank: conditionality of loans, 28, 83–85; countries controlling, 86; Department of Institutional Integrity, 146; human rights issues, 212, 214, 231, 232; Inspection Panel system, 102, 158, 161, 212, 214; lending decisions, 140; major donors, 28–30, 101, 185; nongovernmental organizations and, 158–59, 183; Operations Evaluation Group, 161; Poverty Reduction Strategy Papers, 103, 156, 158; presidents, 145, 146; U.S. power in, 33, 145. See also International financial institutions World Health Organization (WHO), 108, 139, 140, 145, 185


World Intellectual Property Organization (WIPO), 23, 28, 139, 148, 185 World Trade Organization (WTO): agreements, 20–21, 80, 180; compliance process, 103; countries controlling, 86; critics, 82; dispute settlement mechanism, 27, 80, 82, 174, 201, 203–4; environmental regulation and, 105; establishment, 18, 19, 222; General Agreement on Trade in Services, 207; impact in developing countries, 83; lack of democratic accountability, 24; legislative function, 9, 166, 174; negotiations, 81, 98–99, 166, 174, 176, 182; roles, 9, 27; TRIPS agreement, 83, 177–78, 182–83 World War I, Treaty of Versailles, 114, 181 Zakaria, Fareed, 237 Zimbabwe, 65