Criticizing Global Governance

Criticizing Global Governance

Edited by Markus Lederer and Philipp S. Müller

CRITICIZING GLOBAL GOVERNANCE

© Markus Lederer and Philipp S. Müller, 2005. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in 2005 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN 1–4039–6948–5 Library of Congress Cataloging-in-Publication Data Criticizing global governance / edited by Markus Lederer and Philipp S. Müller. p. cm. Includes bibliographical references and index. ISBN 1–4039–6948–5 1. Globalization. 2. International relations. 3. International cooperation. I. Lederer, Markus, Dr. phil. II. Müller, Philipp S. JZ1318.C755 2005 327—dc22

2005046429

A catalogue record for this book is available from the British Library. Design by Newgen Imaging Systems (P) Ltd., Chennai, India. First edition: November 2005 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

For Dominic, Helena, and Marlene

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Con t e n t s

List of Figures and Tables

vii

List of Contributors

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Preface Introduction Challenging Global Governance Philipp S. Müller and Markus Lederer 1

Inside Global Governance: New Borders of a Concept Konrad Späth

2

Global Governance as the Hegemonic Project of Transatlantic Civil Society Jörg Friedrichs

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45

3

The Globe and the Ghetto Fleur E. Johns

4

Democratizing Global Governance: Beyond the Domestic Analogy Heikki Patomäki

103

Shifting Political Identities and Global Governance of the Justified Use of Force Anna Leander

125

5

69

6

Global Governance through the Institutional Lens Matthias Finger

7

Global Governance and Domestic Politics: Fragmented Visions Bauak Çalı and Ayça Ergun

161

Reconstructing the Balkans: A Global Governance Construct? Rebecca J. Johnson

177

8

145

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9 10

11

The International Lawyer as Agent of Global Governance Andreas L. Paulus

195

Human Rights as Civil Religion: The Glue for Global Governance? Julie Owen

221

Transnational Private Litigation and Transnational Governance Robert Wai

243

Index

262

List of Figures and Tables

Figures 2.1 4.1 4.2

The governance triangle Assumptions of symmetry and congruence The hierarchy of territorial layers in the model of cosmopolitan democracy 4.3 Linear time in the theory of cosmopolitan democracy 4.4 Mechanisms of democratic governance 4.5 Possible paths of world history

55 106 108 110 116 119

Tables 2.1

International politics, global economics, and transnational society 2.2 International public law, international market law, and international society law

57 64

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List of Contributors

Bauak Çalı is Lecturer in Human Rights at the University College London. She received her doctorate in International Law from the University of Essex in 2003. Current research interests include the relationship between human rights theory, law and policy, and the history and theory of international law and international organizations. She is currently writing a book on perceptions of human rights in Europe and coediting (with Saladin Meckled Garcia) a collection of essays entitled “The Legalisation of Human Rights: Multidisciplinary Perspectives” (Routledge, forthcoming). Ayça Ergun is assistant professor of sociology at the Middle East Technical University, Ankara, Turkey. She received her doctorate in Government from the University of Essex. Her research interests include state–society relations, democratization, political elite, civil society and human rights in the Southern Caucasus. She is the coeditor of the book Black Sea Politics: Political Culture and Civil Society in an Unstable Region (2005, IB Tauris). Matthias Finger is currently Chair and Professor of Management of Network Industries as well as Dean of the School of Continuing Education at the Swiss Federal Institute of Technology (EPFL). He focuses on the liberalization of the main network industries’ sectors— postal services, telecommunications, energy, public transport, water, and air transport—on the changes undergone by the historical operators in these sectors, and in issues of regulation and public service. He is particularly interested in the implications of the new information and communication technologies. He has written numerous articles and books on this subject and consults with public enterprises, as well as with public administrations and political authorities in Switzerland and internationally. Previously, he was a professor in the United States at Syracuse University (1989–1991) and Columbia University (1992–1994) and at the Swiss Graduate School of Public Administration (1995–2002).

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Jörg Friedrichs is research associate at International University Bremen. His research interests are global governance, new medievalism, international relations theory, and the political sociology of the state. Jörg Friedrichs is currently working on a research project about the internationalization of the monopoly of force. Fleur Johns teaches international law, international human rights law, and professional ethics at the University of Sydney Faculty of Law (Sydney, Australia). Fleur is a graduate of the University of Melbourne (B.A./LLB(Hons), 1994) and Harvard Law School (LLM, 1996; SJD 2003) and a member of the New York Bar, with experience in U.S. legal practice across Latin America. Fleur’s research work focuses on international law and legal theory: in particular, questions surrounding the spatial dimensions of legal authority and the making of jurisdiction. Rebecca Johnson serves as the academic Director for South Carolina’s Washington Fellows Program and editor for the Helsinki Process on Globalization and Democracy. Her research focuses on transatlantic security cooperation in a changing global context. Dr. Johnson received her Ph.D. in government at Georgetown University in 2003. Anna Leander is associate professor at the University of Southern Denmark, Odense, department of political science and public administration. Contact details at www.sam.sdu.dk/staff/anl. Markus Lederer is a research fellow at the Chair of International Politics of University of Potsdam, Germany, where he teaches International Relations, Development Policy, and IPE. He holds a Ph.D. and an M.A. from the University of Munich and has studied at the Universities of Munich, Free University Berlin, Institut d’Etude Politiques Aix-enProvence and at Columbia University New York. He has taught in Munich, Berlin, and Erfurt. His research interests include International Relations Theory, Financial Regulation (especially dirty money), and Global Governance. He is cofounder of the research and policy network Critical Perspectives on Global Governance (www.cpogg.org). Philipp S. Müller is Professor for International Relations at the Graduate School for Public Administration and Public Policy of Tecnológico de Monterrey (EGAP—Tec de Monterrey). Until 2003, he was Senior Research Associate at the German Institute for International and Security Affairs in Berlin. He received his Ph.D. in International Relations, International Law, and Philosophy from Ludwig-Maximilians-University, Munich. In his research, he focuses on questions of global governance,

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state transformation, e-governance, and the politics of the internet. He is cofounder of the research and policy network Critical Perspectives on Global Governance (www.cpogg.org). Julie Owen practiced law for eight years at the largest law firm in Canada before obtaining her B.C.L. in European and Comparative Law (Oxon., Distinction) and then her LL.M. (Columbia, Kent Scholar). She is presently practicing in the areas of civil litigation and constitutional law at Hunter Voith Litigation Counsel in Vancouver, Canada. Heikki Patomäki is Professor of International Relations at the University of Helsinki and also the Research Director of NIGD, the Network Institute for Global Democratisation. Until Summer 2003 he was a Professor of World Politics and Economy at the Nottingham Trent University, UK. His research interests include critical realism as a philosophy of social sciences; theories and issues of peace research and global political economy; and global democratization. His most recent books include Democratising Globalisation: The Leverage of the Tobin Tax, Zed Books, 2001; After International Relations: Critical Realism and the (Re)Construction of World Politics, Routledge, 2002; and A Possible World: Democratic Transformation of Global Institutions with Teivo Teivainen, Zed Books, 2004. Andreas L. Paulus is Wissenschaftlicher Assistent (assistant professor) and lecturer at the Institute for Public International Law at the LudwigMaximilians-University. Paulus studied law at the Universities of Göttingen, Geneva, Munich, and Harvard. In 2000, he was awarded his doctorate by the LMU Munich. In 2003/2004, he was Visiting Assistant Professor of Law at the University of Michigan Law School. In 2003, he received the Bavarian Habilitation Scholarship Award. Paulus served as counsel of the Federal Republic of Germany in the LaGrand case (Germany vs. United States) and as advisor in the Certain Property (Liechtenstein vs. Germany) case before the International Court of Justice. His publications include various articles on international legal theory, international criminal law, and the law on the use of force. Konrad Späth is research student in the department of international relations at the Ludwig-Maximilians-University, Munich. He is currently writing his Ph.D. thesis on the generative impact of security on political order in the context of global governance. Robert Wai is Associate Professor at Osgoode Hall Law School, York University, Toronto, where he has taught since 1998. He completed his

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LLB degree at the University of British Columbia, an M. Phil. in international relations at Oxford and his SJD doctoral degree in international law at Harvard Law School. He served as law clerk to Justice Gérard La Forest of the Supreme Court of Canada, and worked at law firms in Vancouver and New York. His current research focuses on the relationship between public and private law in areas such as international trade regulation and transnational litigation.

Preface

Challenging Global Governance plays with the grammatical indeterminacy of its meaning. And this indeterminacy has been the driving force for our project. It is also the basis of a community of scholars that has learned to speak a common (meta-) language that meets about once a year. This research and policy network “Critical Perspectives on Global Governance—CPOGG” (www.cpogg.org) aims to reflect both the theory and the practice of global governance in order to improve global public policy-making. With this book we hope to introduce you to some of this thinking. This book was a journey during which we have accrued many debts: Funded by the Volkswagen Foundation and guided by Alfred Schmidt we set out on our first academic adventure in the summer of 2002. Our mentor and dissertation-advisor Friedrich Kratochwil (now European University Institute), David Kennedy (Harvard Law School), Thomas Risse and Andrea Liese (both Freie Universität Berlin) were extremly helpful in shaping the project and without their initial guidance CPOGG would have never been possible. We were lucky to have the castle Amerang as a meeting place in October 2002 and thank Ortholf von Crailsheim for his hospitality that made the event special for all participants. The secludedness of the place in the Bavarian mountains played an important role in freeing our minds and in creating a community. Otto Lampe and Thomas Fitschen from the German Foreign Ministry invited us to co-organize the next event in the German Foreign Ministry in Berlin (January 2003). This allowed us to reflect together with foreign policy makers who actually were confronted with governing globally. In October 2003, David Kennedy organized an amazing gathering in Cambridge, where people like Janet Halley or Nathaniel Birnbaum or Karen Engle critically reflected on our critical project. The National Forest Service offered us access to their lodge in Big Sur for a workshop

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in April 2004 and in November 2004 we finalized the volume at the CPOGG conference Challenging Global Governance at the Graduate School for Public Administration and Public Policy (EGAP) of Tecnológico de Monterrey in Monterrey, Mexico. Katie Tobin played a big role in the editing process working diligently with all of us; she has been involved in the CPOGG-Community since the beginning and has gone above and beyond her call to duty. Toby Wahl from Palgrave has been a great advisor shepherding us through the process. Without him, the volume would still be a collection of articles gathering dust on our hard drives. We thank the institutions that allowed us to pursue this project, the German Institute for Security and International Affairs, Potsdam University, and EGAP—Tecnológico de Monterrey and our partners Alexandra and Mareile. We are also very grateful to our authors for their dedication and for their patience with us and finally we would like to thank all those individuals who participated at the various CPOGG events and from whom we learned tremendously how to challenge global governance. We dedicate this book to our children Dominic, Helena, and Marlene. January 2005 Markus Lederer and Philipp S. Müller

Introduction Challenging Global Governance Philipp S. Müller and Markus Lederer

Introduction Just as every book on the international realm from 1991 to 2000 has referred to the end of the Cold War as a historical starting point, books in the twenty-first century refer to globalization, that is, the transformative changes in the international system (Fuchs and Kratochwil 2002). Globalization has thus created a need to find a new framework or vocabulary to describe and act in the international world. This theoretical problem is linked to the following practical and political problem: How can we legitimize political action in a post–nation-state world? Global governance addresses these twin questions. In 2003 there was an explosion of articles and books on global governance (Arts; Börzel and Risse; Held and Koenig-Archibugi; Holzinger et al.; Kahler and Lake; Messner and Nuscheler; Steffek; Weiss, etc.). As latecomers we will join this list. Why should this particular addition be interesting? Global governance is, of course, not the only term that competes to imagine and legitimize world order. For International Relations (IR) conservationists, there still is the notion of the “Westphalian state system” or of “Uni-, Bi-, and Multipolarity”; and frameworks such as “Global Anarchical Society” (Bull 1977), “World Government” (Griffin 1999; Harris 1999), “Neo-medievalism” (Friedrichs 2001), “Empire” (Hardt and Negri 2001), and Donald Rumsfeld’s dictum of the “Coalitions of the Willing” are vying for supremacy. However, global governance seems to have a chance to become the main perspective and we argue that there are three historical forces that are confronting us with the need to reconceptualize world order along such lines: the emergence of global issues, the contestation of the legitimacy of political entities, and changes in how we think and do things in the world.

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The first force consists of problems in our physical world, such as global warming, the integration of global financial as well as trade flows, and cultural globalization that have all led to the emergence of the idea of global issues as legitimate arguments in policy debates on the domestic, international, and global levels.1 The idea of global issues is being circumscribed by a number of terms such as globalization, global commons, global public goods, and global public bads. The second historical force is the crisis in our understanding of the main political institution of modernity: the nation-state both internally (blurring of the boundary between private and public spheres) and externally (blurring of the boundary between the inside and the outside). And the third force is a shift in our understanding of instrumental rationality, that is, how we get things done in the world, from institutional to functional solutions of problems. Together, these historical forces are presenting us with the challenge of governing the post–nation-state world. The world order framework that seems to be able to address these three forces most appropriately is global governance. Therefore, as a political idea, global governance has the chance to supersede the other understandings of world order discussed earlier. In academia the concept is emerging as an important framework to imagine the global realm, and for policy makers global governance is a political vocabulary that is referred to legitimize political interventions. It has become a contemporary social practice to legitimize oneself by arguing that one practices governance at a global level. The vocabulary of ( global) governance, for example, is used to argue for or against the reorganization of international organizations, the signing of new international treaties, the extension of human rights principles as a guidance book for international politics, the introduction of new public policy instruments (Private–Public Partnerships, New Public Management, etc.), and to explain foreign policy measures. Global governance is a concept that is challenging both academics and policy makers. In what follows, this introduction asks what global governance is, however, only to show in the third part that the question of how we use the concept is much more important. The fourth part introduces strategies of criticizing global governance and in the final pages we provide you with a short road map of the book. What is Global Governance? It may seem like a rather straightforward question, but so far no single definition of global governance exists that is accepted by all or even by

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the majority of scholars or policy makers. The reason for this is not incompetence or incoherence, but lies in the type of concept that is involved. The act of defining global governance brings about political moves; therefore unanimity cannot and, we argue, should not be achieved. However, before we can argue that a definition of global governance hides more than it shows, it is important to know some of the most important attempts to define it. In the literature, three strategies to categorize global governance have emerged. The first offers a non-definition consisting of the denial that something like global governance exists at all, the classical position of mainstream IR; the second is to offer a positive definition that often very idealistically assumes that a new form of managing global affairs has developed that can be characterized through specific actors, instruments, or practices. The third is by juxtaposing global governance to a term with which we feel more comfortable. Strategy of Denial Mainstream IR theory continues to have difficulties with global governance because of its foundational conceptualization of the international system as an anarchic realm ( Jahn 2000). Thus, for many, governance is nothing new per se but merely a continuation of the interdependence literature of the 1970s or of the discussion about regimes in the 1980s. Given the strongly state-centric focus of IR theory (especially regime theory) this position makes sense (Hasenclever et al. 1997; for an exception see Haufler 1993). Even those who have started to take other actors more seriously do not conceptualize them as independent agents, but still define their roles in relation to the nation-state or to the intergovernmental system of the UN (e.g., Messner and Nuscheler 1996). It is therefore no surprise that James Rosenau—an early and vivid contributor to the debate—has rather pessimistically concluded that the discussion on global governance has not really abandoned the notion of an anarchic international system and has not yet contributed to a global political order (Rosenau 2000, 189). Strategy of Finding a Positive Definition In total contrast to the strategy of denial is the attempt to catch all new practices that have developed within the global realm in one positive definition. The most prominent example of such an exercise is the definition of the Commission on Global Governance, which stated that global governance is “the sum of the many ways individuals and institutions,

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public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative action may be taken” (1995, 2f.). This allinclusive perspective gave respectability to global governance studies as an academic field and a policy area; however, because of its overinclusiveness it cannot suggest research avenues, operationalizable hypotheses, or policy recommendations. A scholarly, more ambitious project is James Rosenau’s analytic attempt to focus on “systems of rule at all levels of authority” (1995, 13) and on “spheres of authority” that are able to set norms on various levels. For Rosenau, global governance thus compromises “all the structures and processes necessary to maintaining a modicum of public order and movement toward the realization of collective goals at every level of community around the world” (1997, 367). As Späth in chapter 1 rightly points out in his critique of Rosenau’s definition, such a broad understanding of the term allows us to account for the evolution of new instances and forms of governing but the price to pay is that the definition itself becomes so open that it is bound for theoretical overstretch. Another way to define global governance in a positive strategy is to use the term only in relation to the empirical fact that actors other than governments have become important agents on the international scene. Because of this, a large portion of the debate over global governance is dedicated to conceptualizing which actors are influential in international life and how they exert their influence and legitimize it in relation to their principals. Substate groups or regions (Ohmae 1996), supranational organizations (Rittberger and Zangl 2003) as well as intergovernmental groups, transnational corporations (TNCs) and their associations (Fuchs 2004), individual nongovernmental organizations (NGOs) of all aspects and civil society as a whole (Higgott et al. 2000; O’Brien et al. 2000) have all been identified as relevant actors. While these actorcentered approaches have convincingly shown that new actors have indeed become relevant agents in global affairs, they nevertheless could not capture in a systematic way what positively defines global governance as a practice.2 Strategy of Defining Global Governance through Juxtaposition Because many scholars dismiss defining global governance in positive terms as fruitless, some researchers have taken to juxtaposing it to a “known” and “familiar” term. Examples are seeing global governance as not government or the idea of global governance as a political answer to economic globalization.

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One early notion of defining global governance in juxtaposition comes from Rosenau and Czempiel, who speak of Governance Without Government (Rosenau and Czempiel 1992). Similarly, Lawrence Finkelstein states that global governance is “governing, without sovereign authority, relationships that transcend national frontiers. Global governance is doing internationally what governments do at home” (Finkelstein 1995, 369). Such a perspective is, however, problematized by comparative political scientists who discuss governance mechanisms as being part of the transformation of the state itself (Pierre 2000). Thus, if one separates governance and government too strictly, one assumes that the international realm itself is not connected to the domestic one. However, as many of the following chapters show, global governance is not only a multilevel game that sometimes includes domestic institutions and sometimes does not; on the contrary, global governance very often fuses both realms in such ways that they become one. The second juxtaposition is to argue that global governance is the political answer to an economically determined process of globalization (e.g., Messner 2001, 3f.). Most NGOs also use the term to offer an alternative to the neoliberal Zeitgeist: In such a situation the concept of global governance presents itself. It is combined with the demand to resolve the problems of a neoliberal globalization. The concept is presented as a progressive alternative to neoliberalism. (Brand et al. 2000, 13—own translation)

This is of no surprise as the process of globalization has raised doubts in how far a more internationalized system is of value for individuals and beneficial for the general public as a whole. The argument is that the compromise of “embedded liberalism” (Ruggie 1983) in which the increase of international trade flows was accompanied by protective measures to ensure social stability has been abandoned and no substitute seems yet at hand. Opponents of globalization such as ATTAC (www.attac.org) argue that global governance has the chance to become the political alternative to the economistic hegemonic project of globalization that oppresses the underprivileged classes both in the North and the political South. They, as well as many parts of the established social-democratic Left, thus argue for mechanisms that would decrease economic inequality on a global scale. On the academic side, doubts about the legitimacy of globalization had been raised at a very early stage (Messner and Nuscheler 1996; Altvater and Mahnkopf 1996), but until the first organized resistance at Seattle, Gothenburg, and Genoa neither public

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officials nor academic institutions had paid much attention to the developing resistance movement (Klein 2001). However, although this usage might be very sympathetic, by juxtaposing political global governance and economic globalization, the political aspects of both are lost. Globalization is not the economically determined fate of humankind, but instead has, for example, been advanced by states even in the critical case of international financial markets (Helleiner 1994). Similarly, global governance is also much more than the “good politics” that heals the bad effects of globalization and thus has often unintended, and sometimes very detrimental consequences (for examples, see the chapter 8 by Johnson; chapter 7 by Cali and Ergun; chapter 6 by Finger in this volume). In short, important political developments are missed when one overestimates either globalization as the bad or global governance as the good. In the end, both processes are depoliticized. Neither of these strategies has been very successful as none could capture global governance in an all-encompassing mode. It is furthermore also not possible to combine all of the above and then be able to say, “global governance is . . .” The reason is that defining global governance is a political act. Therefore, the differing and sometimes opposing views on global governance should be taken as a positive sign, meaning that a lively intellectual debate is taking place and that political actors care about the vocabulary they use. Not having a definitive definition should, however, not discourage us, because there is an alternative approach to dealing with issues than to cry for its essentials—and hyperventilate when you cannot get at them. We first need to ask how we use a concept, which is a critical strategy that allows us to understand how a concept captures our imagination, and then to ask what forms of critique are possible. How do we Use the Term Global Governance? If we now take a step back from the term global governance and focus on the discourse and practices to politicize it within its academic as well as policy appearances by asking the question “how do we use the concept?” we can dissolve our call for definitional clarity.3 This type of argumentative move is necessary, because acts of definitions are political acts, especially in times of transformative change. Any definition has its blind spots, and it demarcates between just and unjust claims, legitimizes types of authority, and includes and excludes actors from political participation. What is needed is thus a change of perspective of what the concept does and can do and what it cannot. Because global governance allows us

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to imagine alternative world orders, the politics of global governance takes place by imagining these alternatives. And that means that what is interesting are the acts of defining. Only by foregrounding these questions that are usually hidden and by turning the assumptions into dependent variables can we uncover and demarcate their politics. In times of transformative change, it is exactly on the level of defining the rights of participation where the politics of a new political idea takes place. Therefore, what we need is a critique of the fundamental aspects of contemporary understanding of global governance and an open eye for the political consequences wrought by various ways of understanding global governance. We challenge contemporary academic and political practice by focusing on the usage of the vocabulary of global governance. Nevertheless, we believe that global governance can be well defended as the upcoming alternative concept to imagine world order both politically and theoretically (see e.g., chapter 2 by Friedrichs). As shown earlier, a vibrant discourse on global governance has developed that disagrees on fundamentals. The underlying diversity can neither be ignored nor can it be subdued through introducing a “right” definition, but should be fostered and its political aspects demarcated. During times of transformative change, when the world changes in a way that the concepts we have to describe it lose their descriptive power, such a critical approach allows us to describe this process of transformation in basic understandings of how societies and collectivities function. Thus, a perspective focusing on the academic discourse alone is not enough to actually access the politics that take place on this level. Only (a) the acceptance that theory influences policy, and (b) the inclusion into the discourse of policy makers, who actually shape the world by imagining it and acting in it, allow us meaningful access to the politics of global governance. And because IR is an elitist and abstract practice both on the policy and theory levels, allowing individuals to play a large role in imagining the world we think about and act within (Müller 2003). Therefore counterintuitively, for the very challenges global governance poses, real-world relevance is not acquired by an empirical research design, but by a critical reflection of the vocabulary we use to describe and explain in order to achieve a better understanding of what we are actually saying and doing when we talk about and practice global governance. As academics and policy makers we must therefore focus on global governance as a heuristic tool and a political project. This is a moment where political theory has policy relevance, because it takes its role in constructing the world seriously.

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Critical Perspectives on Global Governance An important strategy to avoid the problem of not being able to talk about global governance without knowing “What is global governance?” is to ask “What does global governance do?” and, “What are its consequences?” Indeed this is what has happened recently, as the critical voices challenging global governance grew. Three examples can illustrate this phenomenon: global governance as an ideological project, global governance as lacking legitimacy, and global governance as the hegemonic project of the United States. Global Governance as an Ideological Project Most traditional critical approaches aim to uncover ideologies that stand behind the vocabulary of global governance. Some critiques therefore identify global governance as a technocratic and apolitical concept (e.g., Latham 1999). Mainstream global governance is seen as making moves analogous to the functionalist theories of governance in the 1950s and 1960s, when political scientists favored the idea that politics has to be managed technically, a bias also inherent in theories of the European integration (Schmidt 2001). Similarly, Brand et al. (2000) criticize that the vocabulary of global governance, utilizing terms such as management, steering, and partnerships, entails a pragmatic and neoliberal connotation that papers over the real conflict that is taking place, ignoring terms such as racism, patriarchy, or class (143f.). These authors are thus saying global governance is neoliberalism in a new disguise. Global Governance as a Project that Lacks Legitimacy Another form of critique is less fundamental, but takes issue with the way global governance practices are legitimized. In particular the positive reference of private–public partnerships to corporatism is seen in this perspective. Critics oppose the idea that networks and new governance structures are more democratic because they include various groups from the business world and NGOs in multi-stakeholder decisionmaking processes. The argument is therefore advanced that the existence of special interests often dominates the discourse and the often un-representative nature of those civil society actors asked to participate in governance structures questions the beneficial effect of their inclusion. The legitimacy of multi-stakeholder decision making is doubted because NGOs themselves are not elected nor are they responsible toward a broad constituency. On the contrary, most NGOs push a very narrow

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agenda and can be classified as single-issue movements that might do a lot of good but which do not constitute a public space. Critics have thus lamented the disappearance of a general public (Kratochwil 1997), while others have questioned global partnerships because they cannot even guarantee the pluralism of domestic systems and are thus nothing else but a convenient way to hide power structures (Ottaway 2001). Again and again the argument is brought forward that there are not only good NGOs but also those that fight for rather dubious aims. Finally, the various interests, ideologies, and perspectives of different NGOs cannot be subsumed under the heading of civil society. Taken together, these critics argue that global governance is a very naive ideal of how pluralism works. Global Governance as a Hegemonic Project Power considerations are important for Realists, who claim that the notion of global governance only disguises the fact that specific actors are influencing world affairs more than others. In such a view global governance is thus another term for U.S. hegemony. Gilpin, for example, has recently challenged the concept by asking “ ‘governance for what?’ What are the social, political and economic purposes that governance is to serve?” (Gilpin 2002, 246). Gilpin thus points to the fact that in his view any system of rule making reflects the underlying power structures of the status quo. Similarly, for many neo-Marxists global governance is an institutionalization that tries to buy off the weaker elements of the world society in order to strengthen the status quo. In their view, global governance practices are thus structurally similar to the modern welfare state, because the poor are bought off by the capitalist classes. Naomi Klein’s No Logo (2001), Antonio Negri and Michael Hardt’s Empire (2000), and Manuel Castells’s The Rise of the Network Society (1999) therefore aim to organize the masses into political movements. By defining the political as a struggle between private enterprise and the public, U.S. hegemony and cultural diversity, the self-organizing nodes of the network and the social democratic welfare state, the authors offer political manifestos, stating global governance is a disguise of U.S. power or at least one manifestation of the Empire. Strategies of Challenging Global Governance We agree with many of these critical inquiries of global governance, but we argue that we should not start with the substance of the critique as this brings us back to the problems that we had with defining global

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governance. In the end global governance is not only narrowed down, but possibly again depoliticized. What we offer instead, is that we start by focusing on possible strategies, which we as critics have at our disposal.4 Such a step back forces us to inquire initially where we actually stand and why we choose the topic we focus on. We therefore first have to ask ourselves, “Which forms of critique are possible?” In the following we identify three different strategies of critique which are distinguishable (a) by the distance the critic has from her object (b) by the methodology employed and (c) by the legitimacy on which the critique rests.5 In the first instance, the author takes on the role of an external observer who claims to be as distant from the object of inquiry as possible. Through the methodology of alienation it is then possible to foreground the backgrounded and to bring hidden agendas into the open. The legitimacy of such an approach is given through recurring on one’s own political agenda and does not at all have to be compatible with the approach being criticized. The second way of criticizing is the strategic engagement within a debate. The author is still trying to distance herself from the project she is facing, however, contrary to the first one she now takes part in the criticized discourse attempting to hijack existing structures and injecting a new vocabulary and a new direction within it. The method is thus one of colonization or the one of the Trojan Horse. The legitimacy of the critique still comes from the outside, for example, from the belief that another discourse is better than the one being hijacked. The third mode of being critical is the attempt to improve theory and practice within the field being criticized. The presupposition of such a strategy is that existing theories and practices are already of much value and only need some refinement to work even better. Pursuing such a project the methods one will choose are those that are already used within the mainstream and they will most likely neither transcend political or academic boundaries.6 Similarly, the legitimacy of such a critique is also the one on which the object of inquiry rests. Knowing that different forms of critique are possible, two trajectories are open for criticizing global governance. We can either agree that we all share one common standpoint or we pursue as many different paths as possible. In this book we have pursued the latter: Some of the authors attempt to be as distant from the mainstream global governance discourse as they can. They, for example, retreat to sixteenth-century Venice in order to criticize contemporary writing (chapter 3 by Johns), conceive of global governance as a language game that creates new outsides (Späth), focus on the micro-level to show that global governance practices can

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restructure local places (chapter 7 by Calı and Ergun), or they think sociologically about identity formation, which eventually allows them to criticize our global governance of security issues (chapter 5 by Leander). Other chapters attempt to hijack contemporary discourses of global governance and to subject their own political agendas. One chapter thus shows that global governance is in reality a hegemonic project of a transnational civil society (Friedrichs). Another author criticizes global governance through the prism of democracy and is hopeful to overcome some of the space or time restrictions the contemporary discourse faces and to install patterns of real democratization (chapter 4 by Patomäki). By focusing on institutions, the attempt is made to provide us with an analysis that in the end will allow the state or the state-centric system to regain some room for political maneuvering from NGOs and TNCs (chapter 6 by Finger). Finally, one chapter also criticizes global governance, hoping to preserve the essentials of religious freedom (Owen). In this book you also find essays that are highly optimistic of global governance and which “only” criticize that certain specifics went wrong. For example, the analysis of the reconstruction effort of the European Union (EU) in the Balkans is evaluated as having many faults but it is also made clear that some of these could be undone by taking the local more into account and demonstrating that no better alternative exists (chapter 8 by Johnson). From an international law perspective, the argument is made that a close reading of prominent cases at the WTO dispute settlement body shows that lawyers are aware that they act within a political context and their decisions thus sometimes reflect values from functionally separated systems (chapter 9 by Paulus). Finally, an analysis of international private law can also be hopeful, as contemporary practices of transnational litigation show that claims that even have a distributional effect have the potential to succeed on the global level (chapter 11 by Wai). The important question this introduction has to answer at this point is whether these different strategies of critical engagement with global governance are compatible with each other. A good case could, for example, be made that theoretically and practically one cannot follow all of the three venues described at the same time. Theoretically, this might be so because an external critique and one deeply engaged within the project of global governance have not only different objectives but they also start their inquiries from different levels of abstraction and use opposing means to get to their specific ends. In this logic, juxtaposing the analogy of the globe as a ghetto in sixteenth-century Venice to reconstruction efforts of the EU in the Balkans makes no sense, as both chapters tell different stories.

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Practically, the question arises whether the sum of these different critiques is more than its individual parts or, in other words, whether the reader (no matter whether the academic or the policy maker) gains any insights by following three modes of critique instead of one. To no great surprise our clear answer is that a combination of all three critiques does not only provide the reader with a compendium of possibilities, but that there is also a value added. This added value has three components: First, different critical venues also offer different alternatives. Criticizing global governance from various standpoints is, in our view, the most promising way of re-politicizing world politics. Politics is by definition neither technical problem-solving nor a simple coordination game, but is exactly that sphere of social life where (often incompatible) values clash which have to be reconciled. We should therefore see it as an enrichment that every serious political question can be challenged from within as well as from outside, there are possibilities of hijacking as well as of constructive engagement, and neglecting any of them does not solve the problem. Second, an “inter-critical” dialogue is feasible. It is certainly not possible to reproach the theory and practice of global governance from different standpoints and then to extract the essence of each critique in order to find out what is the “true” statement everybody in the end agrees on. Party meetings of all colors may end that way, but no serious academic endeavor. We are therefore well aware that incompatibilities, and very often also incommensurabilities, will remain if different critical approaches engage with each other. Third, combining different, often opposing, sometimes even incompatible modes of critique is the best way to avoid finality. The 1990s were full of ideas of how history will end and of completely failed projections of who will clash with whom. Similarly, many global governance theories and practices project specific patterns or structures into the future delineating how the world will look like in the future. We can only warn of any such attempt and pursuing a critique on all levels is a good check against any utopianism or dys-topianism. In sum we are therefore not only defending but rather are advancing an ambiguous character of what follows. Ambiguity is a virtue—not a vice—because it is again only a question of honesty to declare that global problems, global governance, and the critique of it are neither subject to clear-cut rules nor to standardized homogeneous solutions. What can you expect when reading on? From what was said before, it is evident that we neither have the right definition of global governance nor the one and only valid critique of its consequences. The advantage of

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continuing is thus not related to the category of truth. You can, however, expect that the chapters of this book tell you something about the possibilities of criticizing the theories and practices of global governance exemplified in the conceptualization, the institutionalization, and the juridification of global governance. The following therefore re-politicizes the whole discourse and shows that a meaningful understanding of global governance requires variety, ambiguity, and alternatives. Road Map for the Book In these last pages of the introduction, we provide a short road map of how the following chapters reflect on global governance and how they provide a better critical understanding of the various practices often discussed under the label of global governance. Overall, the book is divided into three parts: Chapters 1–5 challenge the concept of global governance from various angles, chapters 6–8 focus on organizational and institutional aspects, and chapters 9–11 examine the rule systems that are being implemented by global governance practices. Challenging the Concept of Global Governance In the first part of the book, the authors uncover the political moves of global governance as an analytical framework. The chapters take issue with definitions and the idea of global governance being something fixed in the global realm. Chapters 1–3 are concerned with questions of definition or with ways of how to tell the story of global governance. Chapter 1 by Späth, for example, claims that a once-and-for-all definition is not possible and that it is thus necessary to free the concept of global governance from its conceptual boundaries and to politicize it by placing it into the context of speech act theory thereby showing the pragmatic implications of presumably neutral description. Another perspective, offered in chapter 2 by Friedrichs, is that contemporary definitions hide what is really behind global governance as the discourse of global governance is dominated by three projects with hegemonic ambitions and these have to be named and one can then either join them or fight them. In chapter 3, written by Johns, the global governance discourse is described as a narrative that tells us how people see the world around them. The strategy employed is to contrast legal writings off global governance with the unfamiliar historical parallel of the Ghetto and the creation of “worldliness” of sixteenth-century Venice in order to grapple with the debate in a mode of uncertainty.

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Chapter 4 by Patomäki provides a critique by problematizing global governance against the background of democracy arguing that if we criticize global governance as a concept, we must also search for alternative conceptualizations. However if we do this, it means that we have to address questions of transformative change and thus of power. Leander in, chapter 5, is also highly critical of contemporary conceptions of global governance and how they eliminate important political aspects of our global Lebenswelt. However, her essay does not engage in the question of how democracy can best be achieved, but rather probes the question of how to think of global governance in the context of the extent to which including security concerns in global governance requires and rests on a revision of statist notions of which uses of force are legitimate and which are not. Challenging the Organization and the Actors of Global Governance Chapters 6–8 focus on the institutional and organizational design in which the actors of global governance confront each other. The authors are focusing in particular on the activities of international organizations and how they or the agents acting upon their behalf influence the practices that are now all subsumed under global governance. The authors strongly challenge the idea that these processes set in motion are always for the better and they can therefore be seen as clarifications of the argument developed in the first part of the book of what happens when global governance is not criticized enough but taken as a concept that relates to an outside truth like for example, the idea of global governance being good governance. As a starting point for reflecting what is happening, chapters 6–8 understand global governance as an organizational phenomenon in which new institutions develop, new actors become important, and new dichotomies have to be politicized. For example, in chapter 6 Finger challenges the common understanding of global governance as a pragmatic technocratic and neutral approach allowing us to describe global problem-solving and instead he focuses on global governance, from the perspective of organization theory, as an institutional phenomenon. The chapter thereby shows that globalization exerts certain pressures on state and non-state organizations, in particular the UN system. In chapter 7 Calı and Ergun examine the relationship between global governance and domestic politics by offering a study of how human rights organizations in Turkey and Azerbaijan are affected by global governance practices in the “human rights sector”; they show on the one

introduction / 15

hand how global governance practices shape and transform domestic sites and actors, and on the other hand how domestic actors appropriate global governance practices. Chapter 8 by Johnson also focuses on the distance between the global and the local, however with a stronger focus on governments and a more optimistic tune describing post-conflict reconstruction in the Balkans and analyzing how international money and personnel have provided power incentives for individuals in the region to profess adherence to a new understanding of political, economic, and social organization, despite potential dissonance between these norms and local customs. Challenging the Legal Practices of Global Governance Chapters 9–11 focus on the role of norms in global governance and they politicize some of the most recent legal developments. In particular they investigate the role of public international law, of human rights, and of private litigation. First, in chapter 9 Paulus focuses on the question of hierarchies in international law and what role they play in a world where global governance has become a fact of life arguing that there exists neither a clear hierarchy between different issue areas, nor a hierarchically superior institution that would be capable of coordinating and deciding conflicts of values and norms. In chapter 10 Owen challenges the ability of human rights and the global ethic to serve as a civil religion that legitimizes Global Governance. In her view, human rights alone provide an inadequate moral foundation for world order, and viewing human rights as civil religion could threaten freedom of religion itself. In chapter 11 Wai focuses on the role of transnational private litigation as transnational governance exploring whether transnational litigation of private law claims in national courts could constitute part of a pluralist regime for the governance of transnational economic activity. The chapter shows that contrary to conventional expectation, private litigation can be an alternative way of doing politics on a global level, as it can substantially make a difference, for example, by redistributing assets from MNCs to private actors. In 2003 there was an explosion of articles and books on global governance and we hope that this addition will contribute toward a politicization of the discussion. Criticizing global governance is relevant, because as a world order concept, global governance offers a vocabulary to describe and legitimize governance and it should therefore not be uncontested—and contestation necessitates diverse strategies.

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Notes 1. We do not engage in the debate whether globalization, in particular economic internationalization, is something new or just a repetition of the past. We do, however, argue that the perception that we live in a globalizing world is extremely strong today and thus has to be taken into account. 2. In our view it is thus no surprise that the most refreshing and promising way to capture what role private agents are playing in the international realm is not one that starts by a definition of global governance, but one that takes the old notion of authority as its starting point (see Cutler et al. 1999; Cutler 2003; also Hall and Biersteker 2002). 3. For a theoretical discussion of such a strategy see Kratochwil (2002). 4. This is a move introduced most prominently by Edward Said, who in his book The World, the Text, and the Critic (1983) emphasized that the best starting point for understanding is to focus on how the critic relates to the world through interpreting the text. Said took a very subjective approach by focusing on the critic and his life world. We believe that the same movement can be made with subjectivism by focusing on the critique instead. 5. For highlighting these forms of critique and for pointing out that they are part of our project, we are most thankful to Thomas Skouteris, our “inquisitor” at the CPOGG/ELRC Harvard workshop in November 2003. 6. An example for such an approach where global governance is criticized but the general assumptions of the discourse are accepted is the volume Taming Globalization where the authors “focus on economic globalization and recognize that it could be a force to the good, but maintain that this potential can be realized only if market forces are checked and balanced by a political framework capable of ensuring social sustainability and justice” (Koenig-Archibugi 2003, 1).

References Altvater, Elmar, and Birgit Mahnkopf. 1996. Grenzen der Globalisierung. Münster: Westfälisches Dampfboot. Arts, Bas. 2003. Non-State Actors in Global Governance. Three Faces of Power. Preprint, Max-Planck-Projektgruppe, Recht der Gemeinschaftsgüter, 003/4. Bonn: Max-Planck-Gesellschaft. Börzel, Tanja, and Thomas Risse. 2003. Public–Private Partnerships. In Complex Sovereignty, edited by E. Grande and L. Pauly. New York: Columbia University Press. Brand, U., A. Brunnengräber, L. Schrader, C. Stock, and P. Wahl. 2000. Global Governance. Alternative zur neoliberalen Globalisierung. Münster: Westfälisches Dampfboot. Bull, Hedley. 1977. The Anarchical Society. A Study of Order in World Politics. New York: Columbia University Press. Castells, Manuell. 1999. The Rise of the Network Society. Malden: Blackwell. Commission for Global Governance. 1995. Our Global Neighborhood. Oxford: Oxford University Press.

introduction / 17 Cutler, C. A., V. Haufler, and T. Porter. 1999. Private Authority and International Affairs. In Private Authority and International Affairs, edited by C. A. Cutler, V. Haufler, and T. Porter, 3–28. New York: State University of New York Press. Desai, Meghnad. 1995. Global Governance. In Global Governance. Ethics and Economics of the World Order, edited by M. Desai and P. Redfern, 6–21. London: Pinter. Finkelstein, Lawrence S. 1995. What is Global Governance? Global Governance 3 (1): 367–372. Friedrichs, Jörg. 2001. The Meaning of New Medievalism. European Journal of International Relations 7 (4): 475–502. Fuchs, Doris. 2004. The Role of Business in Global Governance. Habilitationsschrift an der Sozialwissenschaftlichen Fakultät der LudwigMaximilians-Universität München. Fuchs, Doris, and Friedrich Kratochwil. 2002. Transformative Change and Global Order. Münster: LIT-Verlag. Gilpin, Robert. 2002. A Realist Perspective on International Governance. In Governing Globalization. Power, Authority and Global Governance, edited by D. Held and A. McGrew, 237–248. Cambridge: Polity Press. Griffin, David, 1999. Global Government: Objections Considered. In Toward Genuine Global Governance, edited by E. Harris and J. Yunker, 57–68. Westport: Praeger. Hall, Rodney Bruce, and Thomas J. Biersteker. 2002. The Emergence of Private Authority in Global Governance. Cambridge: Cambridge University Press. Hardt, Michael, and Antonio Negri. 2000. Empire. Harvard: Harvard University Press. Harris, Errol. 1999. Global Governance or World Government? In Toward Genuine Global Governance, edited by E. Harris and J. Yunker, 69–92. Westport: Praeger. Hasenclever, A., P. Majer, and V. Rittberger. 1997. Theories of International Regimes. Cambridge: Cambridge University Press. Haufler, Virginia. 1993. Crossing the Boundary between Public and Private. In Regime Theory and International Relations, edited by V. Rittberger, 94–111. Oxford: Clarendon Press. Held, David, and Mathias Koenig-Archibugi. 2003. Taming Globalization. Frontiers of Governance. Cambridge: Polity Press. Helleiner, Eric. 1994. States and the Reemergence of Global Finance. From Bretton Woods to the 1990s. Ithaca: Cornell University Press. Higgott, R., G. Underhill, and A. Bieler. 2000. Non-State Actors and Authority in the Global System. London: Routledge. Holzinger, K., C. Knill, and D. Lehmkuhl. 2003. Politische Steuerung im Wandel: Der Einfluß von Ideen und Problemstrukturen. Opladen: Leske und Budrich. Jahn, Beate. 2000. The Cultural Construction of International Relations: The Invention of the State of Nature. London: Palgrave. Kahler, Miles, and David A. Lake. 2003. Governance in a Global Economy. Political Authority in Transition. Princeton: Princeton University Press.

18 / philipp s. müller and markus lederer Klein, Naomi. 2001. No logo. Der Kampf der Global Players um Marktmacht; ein Spiel mit Verlierern und wenigen Gewinnern. 3rd ed. München: Riemann. Koenig-Archibugi, Mathias. 2003. Introduction: Globalization and the Challenge of Governance. In Taming Globalization. Frontiers of Governance, edited by D. Held and M. Koenig-Archibugi, 1–17. Cambridge: Polity Press. Kratochwil, Friedrich. 1997. International Organization: Globalization and the Disappearance of Publics. Global Governance, edited by J.-Y. Chung, 71–123. Seoul: Sejong. ———. 2002. Globalization: What It Is and What It Is Not. Some Critical Reflections on the Discursive Formations Dealing with Transformative Change. In Transformative Change and Global Order. Reflections on Theory and Practice, edited by D. Fuchs and F. Kratochwil, 25–44. Münster: LITVerlag. Latham, Robert. 1999. Politics in a floating world. In Approaches to Global Governance Theory, edited by M. Hewson and T. J. Sinclair, 23–53. Albany: State University of New York Press. Messner, Dirk. 2001. Architektur der Weltordnung. Strategien zur Lösung globaler Probleme. Vortragsbegleitende Unterlage zur Anhörung der EnqueteKommission “Globalisierung der Weltwirtschaft—Herausforderungen und Antworten” des Deutschen Bundestages. Messner, Dirk, and Franz Nuscheler. 1996. Global Governance, Organisationselemente und Säulen einer Weltordnungspolitik. In Weltkonferenzen und Weltberichte, edited by D. Messner and F. Nuscheler, 12–36. Bonn: Stiftung Entwicklung und Frieden. ———. 2003. Das Konzept Global Governance. Stand und Perspektiven. INEF Report 67. Duisburg: Institut für Entwicklung und Frieden. Müller, Philipp. 2003. Unearthing the Politics of Globalization. Hamburg: LITVerlag. Murphy, Craig N. 2000. Global Governance: Poorly Done and Poorly Understood. Foreign Affairs 76 (4): 789–803. O’Brien, R., A. Goetz, J. A. Scholte, and M. Williams. 2000. Contesting Global Governance. Cambridge: Cambridge University Press. Ohmae, Kenichi. 1996. The End of the Nation State. The Rise of Regional Economies. New York: The Free Press. Ottaway, Marina. 2001. Corporatism Goes Global: International Organizations, Non Governmental Organizations, and Transnational Business. Global Governance 7 (3): 265–292. Pierre, Jon. 2000. Introduction: Understanding Governance. In Debating Governance, edited by J. Pierre, 1–12. Oxford: Oxford University Press. Pierre, Jon, and B. Guy Peters. 2000. The New Governance: States, Markets, and Networks. London: Macmillan. Rittberger, Volker, and Bernard Zangl. 2003. Internationale Organisationen: Politik und Geschichte. 3rd ed. Opladen: Leske und Budrich. Rosenau, James N. 1995. Governance in the Twenty-First Century. Global Governance 1 (1): 13–43. ———. 1997. Along the Domestic-Foreign Frontier. Exploring Governance in a Turbulent World. Cambridge: Cambridge University Press.

introduction / 19 ———. 2000. Change, Complexity, and Governance in a Globalizing Space. In Debating Governance, edited by J. Pierre, 167–200. Oxford: Oxford University Press. Rosenau, James N., and Ernst O. Czempiel. 1992. Governance without Government: Order and Change in World Politics. Cambridge: Cambridge University Press. Ruggie, John G. 1983. International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order. In International Regimes, edited by S. D. Krasner, 195–231. Ithaca: Cornell University Press. Said, Edward W. 1983. The World, the Text, and the Critic. Cambridge: Harvard University Press. Scharpf, Fritz. 1999. Regieren in Europa: effektiv und demokratisch? Frankfurt: Campus Verlag. Schmidt, Vivien A. 2001. Discourse and the Legitimation of Economic and Social Policy Change in Europe. In Globalization and the European Political Economy, edited by S. Weber, 229–272. New York: Columbia University Press. Steffek, Jens. 2003. The Legitimation of International Governance: A Discourse Approach. European Journal of International Relations 9 (2): 249–275. Weiss, Linda. 2003. States in the Global Economy. Bringing Domestic Institutions Back In. Cambridge: Cambridge University Press.

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C h ap t e r 1 Inside Global Governance: New Borders of a Concept Konrad Späth

Introduction Concepts matter in the way we conceive of our world. Global governance is no exception. What is more, concepts fundamentally shape our social reality and constitute the boundaries of what is possible and what is not. Global governance—as such a concept—opens up our social reality to new opportunities and choices while simultaneously excluding previously available options. This chapter engages with the political implications of “talking global governance.” Instead of looking for an appropriate definition that is presumably able to correspond to realworld features and to reflect the nature of global governance “as it is,” this chapter engages with the conceptual basis of global governance and shows what this means in political terms. As a possible answer to the question of political order, it is argued, global governance provides a concurrent model to state sovereignty as the basic principle of political organization. With the focus on the proper place of the political, the purpose of this essay is twofold: In a first step, the essay is intended to show that the discursive practice of global governance establishes new boundaries and creates a new form of the “inside/outside” distinction originally found in the principle of sovereignty. In a second step, the content of the envisaged distinction between inside and outside is critically examined regarding the possible implications and consequences. I argue that, with the subversion of the political space of territorial sovereignty, the global governance discourse comes up with an impoverished conception of order that is exclusively based on efficiency and structural necessities and leaves no room for a sensible account of the political.

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Aporia: Global Governance as an Analytical Concept The study of global governance has become a growth sector. Various approaches to world politics and recent global developments have been produced under this label, and many different aspects have been subsumed under the concept. However, what global governance really is about or when it is sensible to speak of global governance, still remains in a nebulous area of faint remarks. To make things worse, the concept of global governance comes up with a wide range of competing definitions. Beyond the common ground in the negatively phrased stance that “governance is not government” (Desai 1995, 7), no generally accepted definition exists, yet global governance “appears to be virtually everything” (Finkelstein 1995, 368). As an analytical notion, global governance comprises a wide array of possible perspectives on the emergence and nature of world politics or international organization(s) respectively. With the impression of a “shrinking world” in mind, characterized by an accelerated internationalization, an increasing political and economic liberalization, and technological innovation and revolutions fueling the trend toward transnational operations and linkages (Woods 2002), the answers given by a system of states living in anarchy appear to be insufficient. The state as the dominant organizational form, the story goes, comes more and more under pressure by the growing interdependencies between and across state borders and the ever closer linking of economies, societies, and individuals. The effects of negative externalities and the inadequate provision of international public goods put exigencies on the sovereign state that, due to their transnational or global nature, can increasingly not be met by a single state alone. Whole issue areas and traditional functions of the sovereign state, once solely under the purview of domestic politics and jurisdiction, become successively a matter of international or global concern and tend to blur the established boundaries between domestic and foreign policies. The provision of particular functions increasingly exceeds the material, organizational, or epistemic resources of a state or even a system of cooperating states. All this taken together is said to establish the need for regulation and rules beyond the state or, to put it shortly, the “demand for global governance” (König-Archibugi 2002). What then follows is the description of various—and often diverging, sometimes even contradictory—trends in the global realm that are subsumed under the heading of global governance. The emergence and establishment of governance in the global realm is traced back to various actors engaging in institution building, standard setting, and rule

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formulation beyond the state. In some instances, this may still take the form of multilateral state cooperation with the purpose of global regulation, accompanied by the increasing interest in regimes and the establishment of a “system of international governance” (Zacher 1992). In other instances, the research focus on global governance results in a discontent with the assumption of the state as the central or dominant actor. Here, global governance paraphrases the shift of attention to various non-state actors that are identified as contributing to the creation and operation of rules at the global level. What is more, in addition to the varying perspectives on possible origins of governance mechanisms, the literature offers a wide range of issues and objects that fall—or should fall—under the ambit of global regulative efforts. As such, the concept of global governance provides a sort of “container function” to disparate and multifaceted research agendas. As a result, beyond the common denominator that global governance is a kind of regulation or rule system with a global scope or impact, the very concept does not offer any precise account of what the analytical concept is meant to encompass. Global governance as an analytical term is associated with different theoretical perspectives and divergent research agendas that ascribe various differing factors, causes, and consequences to one single concept. There is neither theoretical convergence regarding the origins of a global governance system, nor is there a consensus which elements or characteristics could be discerned as the basic fabric of such a governance system. This conceptual confusion is seriously aggravated if we additionally follow the shift in the meaning of “global,” implicitly suggested by Rosenau (Rosenau 1997, 2002). If the analytical attention is moved from a “governance that is global” to a “governance in the global,” then the term circumscribes not only steering mechanisms at the global level or with a global reach, but refers to all the various governing efforts that occur throughout the global (dis-) order. The advantage of such a perspective is an openness to account for the evolution of new instances and forms of governing due to the processes of global change. However, the price to pay for this openness is the loss of any coherent boundary of the analytical concept and the theoretical overstretch of its applicability.1 In sum, the very term global governance comprehends a whole range of diverging, if not opposing views of what is described by the concept. Whatever the merits of the different perspectives on global governance and however fruitful certain definitions may be for the specific analysis at hand, the meaning or function of the term itself becomes more and more overloaded and thereby further obscured with the growing

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proliferation of possible definitions and foci. At first sight, the open and diffuse characteristics of the concept may seem to be “attractive qualities in an era of ambiguity, uncertainty, and flux” (Latham 1999). If used for the purpose of analysis, however, global governance is susceptible to the same criticism that was brought forward against regime theory and its concept of regimes, namely its “wooliness” and “imprecision” (Strange 1983). An awareness of this conceptual ambiguity would consequently lead to the conclusion that global governance is “a theme in need of a focus” (Groom and Powell 1994). To that extent, the only cure for the imprecise quality of the concept would be to refine the definition and to give a less diffuse account of the underlying characteristics of the term. However, even though this may be a sensible strategy in certain cases, it does not solve the fundamental impediment that there is no external Archimedean point from which global governance can be seen as it truly is. There is no concrete entity corresponding to the term of global governance and waiting to be eventually discovered. Global governance remains a conceptual creation and therefore will always be a contested and contestable term.2 A Fresh Look: Global Governance as a Social Practice An awareness of the contested nature of the global governance concept opens the way to critically reflect upon the role and function of the concept in our analytical and political discourse. In this chapter, I intend to introduce a different perspective on the discourses of global governance that helps to lay bare the political implications of the concept and its application. For this purpose, it is necessary to give up the idea of a neutral, merely descriptive language and to turn to the usage of our vocabularies and its effects on political practice. Only by and through the turn to the discursive function and conditions of use inside a specific language game, we are able to comprehend the social and political meaning of our concepts and to understand their implications to our social reality. The investigation of the constitutive function of our language makes it necessary to engage with the well-known fallacy that a concept has meaning only if it corresponds to a reality “out there,” that is, we can describe the world as it “truly” is. Along with this descriptive fallacy comes the idea that, in order to make a concept fruitful for explanatory analysis and construction of hypotheses, we need to reconstruct a “descriptive” and neutral meaning that fits best with the corresponding segment of our reality. However, this ideal of conceptual neutrality in

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describing reality has, at least, two major drawbacks: First, even if we use concepts only for the purpose of theory construction, the meaning of a concept cannot escape the meta-theoretical context of the underlying theoretical framework and, therefore, highlights certain features of the (conceptual) reality, but neglects others. In this way, a “neutral” definition of a concept seems elusive, exactly if used for explanatory purposes, because any theoretical framework comes up with a dependence on a priori given assumptions and thereby depends on fundamental metatheoretical commitments (Guzzini 2002, 1993). The second drawback of the idea of a neutral reconstruction of concepts seems even more severe: In trying to pin down the meaning of our terms by their correspondence to a reality out there, these approaches disregard the constitutive function of language. It is through our concepts that we make sense of our world and language is fundamental to our understanding of what the world is or what it is not. What counts as belonging to the world is “given for us in the language that we use” (Winch 1958, 15; see also Rorty 1989, 5–6). In this reality-constructing rather than reality-representing fashion, conceptual analysis has to turn away from the occupation with an ever better definition of our terms. Instead, it should pay attention to how we use our concepts in order to make sense of our world and what the use of a concept does in the construction and shaping of our social reality (Guzzini 2002, 17). Therefore, instead of asking which observable phenomena correspond to the concept of global governance and how a definition of global governance should look, we should concentrate on the social function of the concept and try to reconstruct the meaning of the term in the way the concept is used in an intersubjective context. If we place the concept of global governance in the context of a legitimizing or justificatory discourse, we can ascertain its constitutive function in setting up a specific “language game” and in characterizing certain practices as appropriate, permissible, forbidden, and so on. In order to deal with the discursive function of global governance, it is useful to recall the specific circumstances in which this concept is most likely to occur. When the language of global governance is evoked, typically lurking somewhere nearby is an implicit idea that the move toward global rules and regulation is intended to become a substitute for the authority and rule of the territorial state. It does not matter if this move is accomplished by the initiative of the states themselves or through the emergence of social and political forces beyond the world of states: the resulting mechanisms of governance are supposed to undertake the functions the state is no longer able to perform. At first glance, being

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intended as a substitute for the state, the role of global governance seems to consist in a regulative counterpart to the world market or an emerging transnational economy. Here, the conceptual relationship between—or even the conceptual opposition of—market and governance may appear to be dominant. In other readings, global governance as an expression of transnational society stands in a tripartite conceptual relationship to the market on the one hand, and the traditional state system on the other.3 Yet, however global governance may be conceptually allocated to different institutions and players in the global; if pursued from the perspective of political order the central conceptual framework is found in the dichotomous confrontation of global governance and state sovereignty. It is the aforementioned adoption of state functions and authority by mechanisms of global governance that creates the conceptual link between global governance and the sovereignty of the territorial state in the first place and puts the concept of global governance in opposition to the principle of sovereignty. From the conceptual opposition of global governance and sovereignty follows that the presumed emergence of global governance is often accompanied by debates about the decline of state sovereignty, that is, whether the state still has the power to exercise full control internally and to remain independent externally. The increasing importance of global regulations, rules, and institutions beyond the state has led many scholars to conclude that the principle of sovereignty is less and less corresponding to the reality of the states’ authority and control over their internal and external affairs (Rosenau 1990, 2002; Ohmae 1995). The observation of a consistent divergence of the concept of sovereignty and the actual state of affairs in political practice has even led to the conclusion that sovereignty is little more than “organized hypocrisy” (Krasner 1999). Against the thesis of the decline of state sovereignty, others have argued in defense of the sovereign state holding that states have not lost as much of their ability to rule as some scholars want us to believe (Philpott 1995, 1999; Sørensen 1999). In both cases, however, the question is not if the evidence provided is right or wrong; rather, the meaning of the evidence is contested and, once again, brings to bear the dependence of conceptual analysis on meta-theoretical assumptions, showing that the whole enterprise of discussing normative concepts along the lines of empirical data is mistaken (Kratochwil 2001). As Werner and de Wilde have shown, the function of the principle of sovereignty must be addressed in a different way. Sovereignty should not be seen as an actual state of affairs reflecting a de facto internal control and external independence of the state. The idea of the sovereignty of

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states has not disappeared despite the increasing international interdependencies and the establishment of more and more global regulations. On the contrary, the authors hold that the various challenges to the principle of sovereignty have reinforced the claims to authority and independent rule in the name of this principle. Sovereignty becomes especially important “in times when the perceived ability of states to ensure effective internal rule and freedom from external interference is called into question” (Werner and de Wilde 2001, 287). To account for this fact, it would be insufficient to point to the factually exerted control and the current performance of the state in terms of the underlying features of the principle of sovereignty. In order to do justice to the specific structure and function of the sovereignty concept in normative discourses, the authors propose to view sovereignty as a speech act or discursive claim that establishes a link between an institutional fact (“being” sovereign) and the rights and duties that follow from the existence of this institutional fact (Werner and de Wilde 2001). As in the case of the principle of sovereignty, the concept of global governance is repeatedly submitted to empirical scrutiny as regards the actual influence, authority, and state of implementation of its regulations and rule mechanisms. The existent (or nonexistent) capacity of the respective institutions to make binding decisions and to ensure compliance is taken as evidence of the (in-)effectiveness of global governance mechanisms. As in the case of the debate on sovereignty, however, the discussion about the actual status and influence of global governance treats the concept as an approximation of identifiable and definable social phenomena. The problem with this discussion is that it suffers from a multiplication of definitions that suggest diverging results of the inquiry depending on the chosen criteria. Admittedly, the concept of global governance can be substantiated with a whole range of institutions, organizations, and rule systems established at a global scale and with a global reach. There is nothing inherently or objectively wrong with the assertion that the term global governance corresponds to certain processes, rules, and institutions according to a given definition. However, the results of the scrutiny will vary across the chosen definitions of global governance, and what is eventually missed by the discussion is the constitutive function of the concept establishing a certain pattern of meaning. To bring this constitutive function to bear, we should leave the realm of definitional exercises and turn to the discursive role global governance plays in the political context. To begin, global governance comes up with a certain claim to authority. While sovereignty sues for the exclusive

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authority and independence of the state, the appeal to global governance conveys an opposite claim to the necessity of global regulation beyond the exclusive rule of the state. The call for global governance is implicitly about “the failure of the entities we have hitherto called society and state” (Palan 1999, 68). In this way, the concept of global governance represents a kind of speech act that relates an institutional or social fact (“there are global problems”) to a normative structure of right or wrong conduct (“they have to be regulated globally”). In terms of speech act theories, the structure of the speech act “global governance” then could be reconstructed as follows (see e.g., Searle 1969, 175–198): First, a social relation is asserted as a matter of institutional fact following the pattern of “X counts as Y in Z.” In the context of the global governance concept, this is done by the designation of certain issues or problems as being problems of a global nature and impact, not susceptible to solutions at the level of the state. Second, the meaning of the institutional fact is set forth in terms of appropriate norms of conduct. In case of global governance, the global nature of the designated issues implies the normative demand that they should be handled by mechanisms and rules at the global level and with global reach. And third, the established and explicated institutional fact is used to justify the validity and applicability of certain norms of conduct in a particular case. At this stage, the discursive identification of issues of a “global kind” justifies the critique of any particularistic endeavor to solve the perceived problems and to suggest a global solution instead. The report of the Commission on Global Governance may help to illustrate the case in point. Even though the report appears to be a neutral description of the present state of affairs, it may be reconstructed along the lines of the given scheme: in a first step, the report brings forward an enormous set of identified problems—from economic issues such as poverty and malnutrition to security issues such as civil conflict and the massive violation of human rights. These problems, although not of a global kind by nature and, in certain instances, falling under the competence of national governments or local steering mechanisms, are then defined to be of a global concern. And in a last step, these identified “realities of the emerging global neighbourhood” (Commission on Global Governance 1995, 55) are said to imply the demand for some kind of global management, which requires the consent on and the legitimization of the suggested policies to enable “leadership at the international level” (Commission on Global Governance 1995, 355). Through the linkage of identified issues and their global scope and nature, the

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implicit claim is made that the appropriate norms and rules of conduct can only be found at the global level (namely the Commission itself ), while any other way to handle the designated problems is indirectly sketched as inappropriate and not permissible. In terms of speech act theory this may be reformulated that, through the speech act “global governance,” an institutional fact comes into being, which is consequently accompanied by a specific set of rules and norms of (right) conduct. Speech act theory, of course, is somewhat limited to comprehend the complex pattern of meaning associated with the concept of global governance, but it helps to illustrate the basic constitutive function of language and to show the normative implications of a certain conceptual apparatus. What it is meant to convey, is that the introduction and installation of a concept is never a neutral act. Language matters in the way we conceive of something and the introduction of new vocabularies, like the invention of new tools, creates opportunities and limits to emerging social practices (Rorty 1989). As such a new vocabulary, global governance shapes the way in which we see our world and act in it. With global governance understood as a discursive practice, we should be aware that the redescription of the familiar elements of social reality through new vocabularies always means challenging the conceptual boundaries of the existing vocabularies. Along with the introduction of new vocabularies and narratives comes the transformation and reshaping of our social reality, opening up new opportunities to social practices while, at the same time, establishing new boundaries and limits. The impact of the global governance discourse on existing social practices and conceptual relationships and the emergence of new opportunities and limits through this discursive formation is what should be of interest in the next section. Inside/Outside: Global Governance and Conceptual Boundaries “Once upon a time, according to a well-known story, the world was not as it is now” (Walker 1993, 88). This repeatedly used phrase in Walker’s book on the principle of sovereignty may be the perfect starting point to tell the story about sovereignty in a nutshell. Like every good story, the tale of sovereignty contains a birth, covers a life, and is full of excited anticipation of a possible death. The birth of the principle of sovereignty fundamentally transformed the medieval landscape of political and social organization and established a territorially based pattern of

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“inside/outside” around the globe. However, this story of success is nowadays increasingly challenged and the rumors of the death of sovereignty are getting louder. One of the possible avenues to tell the end of sovereignty is the narrative of the emergence of global governance. And indeed, at first sight, the conceptual challenge of global governance seems to ferociously question the very tenets of the principle of sovereignty. This discursive challenge of global governance to the conceptual borders of sovereignty will be the subject in the next section, followed by a discussion of the new conceptual boundaries introduced by the current discourses on global governance. What both sections are intended to show is that the subversion of the “inside/outside” distinction embedded in the principle of sovereignty does not end the distinction itself. To make good on this claim, I argue that the discursive formation coming along with global governance is just a strong call for replacing the inside of the sovereign state with a functional inside of its own making. The Challenge to the Principle of Sovereignty: The End of “Inside/Outside”? Until recently, the dominant mode of social organization has been the modern nation-state. The conditions for an orderly conduct of social activity have been provided by the state as the modern solution to the problem of the realization of historical progress and order in the sense of the achievement of a common good. The state, formulated in the principle of sovereignty, has been “the crucial modern political articulation of all spatiotemporal relations” (Walker 1993, 6). Coming along with the principle of state sovereignty, is the image of “inside/outside” as shorthand for a particular formulation and practice of locating political community in space and time. The distinction of “inside/outside” is central to the logic of sovereignty, and to the whole configuration of practices associated with it, because it has provided the key to solve the modern predicament of universality and particularity in view of the waning medieval order. With the loss of a common religious purpose and a shared idea of the common good due to the raging wars of religion, the medieval answer to the question of universality was replaced by the territorial solution given in the principle of sovereignty. According to the conceptual framework of sovereignty, the proper place to realize universalist aspirations to the good, the true, and the beautiful is found only within sovereign states. The spatial placement of authority within a given territory opens the way to law, justice, order, reason, progress, and political community. All this, however, is restricted to the spatially delimited territory of the

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particular state, while the outside is characterized by the negation of what is possible within. Only by and through the recognition that universality is ruled out beyond the particular territory of the sovereign state, the realization of universality inside the sovereign state becomes possible. In this sense, the claims to universality within states are paradoxically dependent upon the recognition that these universalist claims are in fact derivative to the particularistic separation in space (Walker 1993, 151–152). In addition, the spatial demarcation between life inside and outside a political community is complemented by a temporal corollary. Within the boundaries of the territorial state, the path to the potential achievement of the common good is opened up to the actualization in time, while the lack of community between states implies “the impossibility of history as a progressive teleology” (Walker 1993, 63). The claim to universality and progressive history within states becomes the ground against which the relations between states are depicted through a discourse of negation. Life between states then is characterized by anarchy, structural necessities, eternal return, and mere contingency, while the realization of authority, legitimate order, and progressive history may only take place inside of the state. The only alternative to the negation of all what is presumed to be possible inside is the hope to reproduce at the international level those institutions that sustain order, justice, and progress domestically and to transfer thereby the domestic aspirations to universality into a global space. Thus, along these lines of the domestic analogy problematique, the principle of state sovereignty not only suggests how to think about life within and between territorial states, but also projects a specific way to think about the delineation of political possibility into imaginary realms in both space and time (Walker 1993, 175; see also Suganami 1989). Along the lines of shared institutions and common rules of conflict resolution, the pattern of inclusion/exclusion given in the territorial separation of political units falls together with the metaphorical distinction of inside and outside in the sense of belonging to the same political realm. In this way, the territorial borders of the state are complemented by the metaphorical boundaries of political possibility drawn by legal and political notions of (state) authority and citizenship.4 The principle of sovereignty, in this view, provides a powerful vocabulary establishing a conceptual relationship of “inside/outside” in regard to the possibility of political community. Sovereignty can therefore be read as a claim to a monopoly of legitimate authority in a particular territory that, through the distinction of inside and outside, enables the realization of political

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community and the achievement of a common good within the spatially and temporally drawn borders. However, with the ascendancy of the pattern of argumentation associated with global governance, this claim to exclusive authority within the state is challenged. The rhetoric of global governance introduces a specific narrative or logical path that counters the claims of sovereignty to the monopoly of legitimate rule and authority within a closed territory. The claim of global governance imputes a certain line of reasoning, a kind of rationality that is posed in opposition to the sovereign state and its distinction of “inside/outside.” The logic of the global governance concept undermines the specific configuration of sovereignty as the modern solution to questions of order and progressive history with a double move: Perceived problems are first designated to the global and then characterized as unsusceptible to an effective solution at the state level. By this double move, the order and authority inside of the state is taken outside into the “global” and substituted by governance beyond the state. Spatially, the invocation of the global governance logic implies the “unbundling” of territorially defined rights and a shift toward a differentiation along functional lines (Ruggie 1998, 172). To deal with issues that are deemed to be trans-territorial in scope, the function of the territorial border of the sovereign state has to be transformed through untying the bundle of rights normally associated with full territorial sovereignty. Thus, the claim to global governance questions the simplifying device of territorial borders as boundaries of political possibility and thereby undermines the “all-or-nothing principle of territorial sovereignty” (Kratochwil 1986, 50). Temporally, the exclusive place of progressive history inside the nation-state and its corollary of an only repetitive flow of time in relations between states is broken up and gives way to the actualization of a common good and progress in time beyond the exclusionary borders of the territorial state. By contesting the established pattern or framework of time embedded in the principle of sovereignty, the nature of the issues that are perceived to require a response as well as the types of possible responses perceptible through the lenses of this framework are portrayed to be in need of adjustments (Ruggie 1998, 156). Thus, the specific understanding of space and time and the set of “spatial demarcations” embedded in the principle of state sovereignty (Walker 2000, 31) are challenged by the turn to the new social script of global governance. The conceptual setting of an inside, in which we can have an ordered space that permits the possibility of progressive history in turn, and an outside that is characterized by the inevitability of

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contingency and the eternal return of conflict, is subverted and destabilized by the new conceptual script of global governance. Conceptual Boundaries: A New “Inside”? The shift to the discursive configuration of global governance fundamentally challenges the separation of “inside/outside” associated with the principle of sovereignty. Yet, even though it does blur the existent conceptual picture of sovereignty and international relations, the following section argues that the global governance script reproduces the pattern of inclusion and exclusion at a different level. Global governance is itself a political act setting up new forms of inclusion and exclusion and establishing its own conceptual boundaries. The structural necessities of a world of states is taken from the outside to the inside and supposedly replaced by the new rule system and authority of global governance. However, the emergent system of global governance does not do away with the distinction of “inside/outside” and the drawing of borders delineating what is included and what should stay outside. Within the proposed realm of global governance, universalist aspirations strangely join together with new, though more implicit necessities and structural features, setting up different conceptual boundaries and exclusions and thereby forming the new inside and outside of the global governance discourse. Efficiency at Any Price: A Story of Success The turn to governance in the global is presumed to be the answer to problems of a global kind and the inefficiency of state governments to provide the necessary problem-solving capacity. The script of global governance then takes these deficiencies of political regulation as evidence of the “need” or “demand” for the constitution of better designed and more effective modes of steering capable to meet the emerging challenges of a global kind. In this social script, the necessity of global rule mechanisms and a functionalist or technocratic understanding of problem solving form the implicit background condition. The prerequisite for this modernist notion of governing is provided by the construction of all-encompassing, but empty catchwords and metaphors such as “global neighborhood,” “global village,” or “global policy network” or by the appeal to the concerns of a “common humanity” (e.g., Commission on Global Governance 1995; Annan 2000). The presumed openness of these terms successfully distracts the attention from existing contradictions, conflicts of values or interests, and inconsistent ways of conduct, and thereby allows to easily

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strive for ever more effectiveness of global institutions without taking potential disagreements and clashes into account (Brand et al. 2000, 131). The “global” becomes the infinite repository of troubling developments, turbulent patterns of change, and identified issues of concern that evade the control of territorial governments. In turn, “governance” of a global kind becomes the repository of all efforts and attempts to calm the odd consequences of this global upset. The infinite number of existing difficulties is met by assumption of an amazing variety and diversity of governance institutions all working together for the general benefit of mankind. The Commission on Global Governance tellingly gives expression to this conception of global governance: Although institutional diversity may complicate the process, it could also greatly increase the capacity of the governance system to meet the complex demands placed on it. Problems that may go unobserved by one set of institutions may be detected by another; those beyond the capacity of certain organizations may be easily addressed by others. (Commission on Global Governance 1995, 34–35)

If we were to believe in this image, the world of institutional rivalry, clashing values, and vested interests seemed to disappear with the move to the better world of global governance. The reliance on the vocabulary of global governance allows to assume the identity of interest and to directly turn to the implementation of the already identified common vision. The complex and overwhelmingly difficult situation associated with the “global” is paired with the open and flexible idea of governance that allows to envision a common project of successfully governing this global chaos, as opposed to the inefficient political struggles between different conceptions of order. Through the reference to the vocabulary of global governance, it becomes possible “to avoid articulating a single vision of order” (Latham 1999, 24). This avoidance strategy is additionally strengthened by the trend to foster the replacement of old-fashioned representative institutions through more flexible and efficient forms of regulation. Inspired by the idea to make governance more rational and less entangled in domestic politics, a “network minimalism” incorporating special technical and truly independent expertise is supposed to be more efficient and productive than state-based, hierarchical institutions (Keohane and Nye 2000). Based on functionalist assumptions, the arguments of “network governance” focus more on the quality of outputs and results, and less on the just or legitimate process by which the respective outcomes are

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achieved. The efficiency or output rationale underlying arguments of global governance thereby reduces the question of governing global affairs to the streamlining of the implementation process without paying attention to questions of legitimacy or participation (Woods 2002, 34–37). Even though a multitude of new actors and institutions are integrated into the “network of global governance,” the functional orientation on efficiency and technical expertise is more concerned with the improvement of the institutional performance by this inclusion than with the representative share of the participants or the accountability of rule-making bodies. The argument of progressive development toward ever more efficiency, embedded in the global governance discourse, however, does not stop here. First and foremost, global governance is a story of success. Even if it possibly fails to integrate the highly complex and differentiated global processes at the moment, this is seen only as a temporary failure of governance to be overcome with more efficiency and better regulation. At the same time, the persistence of at least some degree of order is taken as argument for the enduring effectiveness of global governance. Possible failures are erased from the deliberative process by definition because inefficiency is something that is supposed to stay outside of the governance realm. Progress thereby becomes a self-evident structural feature of global governance in that the very definition of governance already incorporates the successful achievement of given functional purposes. It is a kind of structural functionalist logic (Latham 1999, 31) that permits to assume that “governance is always effective in performing the functions necessary to systemic persistence, else it is not conceived to exist (since instead of referring to ineffective governance, one speaks of anarchy and chaos)” (Rosenau 1992, 5). It is exactly this functional necessity implied by the global governance concept that produces implicit borders of inclusion and exclusion and demarcates the proper place of authority and order from places of anarchy and disorder. Progress and efficiency seem to be the only ingredients acceptable to the delicate mixture of global governance. Whoever is able to contribute to this common endeavor, belongs to the inside, while any disturbances that could slow down the progressive development have to stay outside. Cave Canem! No Resistance Allowed At first sight, global governance is directed against a set of global problems. Economic, security, and environmental issues are observed to be in need of global management and submitted to global mechanisms and institutions. In this view, the outside of global governance consists

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in any resistance to the global management of the respective issue areas. In the next step, however, since the initiatives and measures of global governance are meant to produce solutions to the issue areas at hand, any forces that might challenge the governance effort are treated as undesirable disruptions. The necessity to sustain governance in order to cope with the identified problem areas leaves no place for the possibility of resistance to a global governance system. The disturbing character or, better, the inadmissibility of any resistance is clearly reflected in Rosenau’s focus on compliance as evidence of the authority of global institutions and rules. The increasing influence and importance of global governance is evidenced by the emergence and rule capacity of “spheres of authority” beyond the power and rule of the territorial state. These spheres of authority are marked by “their capacity to generate compliance” and to “lead people to comply with their directives” (Rosenau 2002, 72). In compliance becoming the dominant feature of authority, Rosenau expresses the fundamental logic of the global governance discourse: As long as global institutions are able to effectively generate compliance from the side of their addressees, the challenges of a “fragmegrative world” can be met and order can be maintained. The worst case that can happen to the world of global governance is noncompliance and resistance naturally leading to disorder and chaos understood as an inability of the global institutions—or spheres of authority—“to frame goals, to implement them, to realize them” (Rosenau 2002, 75). Here, the only alternative open to the global recipients is to comply with the global regulation of any kind or to risk to be swallowed by disarray and chaos. Any resistance, even if pronounced on the grounds of legitimate public concerns, becomes a hindrance to governance in the global: For all kinds of reasons, however, some fragmegrative situations are fragile, deleterious, violence-prone, and marked by publics who resent, reject or otherwise resist the intrusion of global values, policies, actors or institutions into their local affairs. It is these situations that pose problems for global governance . . . corrective steering mechanisms that upgrade the quality of global governance seem urgently needed. (Rosenau 2002, 78, emphasis added)

Nothing is allowed to stay outside the grip of the “seamless fabric” of global governance. Situations that are “woefully lacking in appropriate steering mechanisms and thus [are] in need of enlightened rule systems” (Rosenau 2002, 79) seem to be unacceptable to the progressive development of an ever more needed global governance.

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The implication of this logic is not only that any resistance is placed outside of global governance, but rather “that it is something to be overcome with effective governance” (Latham 1999, 36). Dissidence may occur—as was the case in Genoa or Seattle—but is placed outside the boundaries of the governance discourse since the efficient handling of the new circumstances does not allow for dissident voices. Resistance either yields to the project of global governance and may accordingly contribute to its success, or it is simply placed outside the proper realm of the “common” endeavor. With the starting point that asks the question of how global problems can be handled, the discourse on global governance is so preoccupied with the question of how order is possible that it finally ends up in a single encompassing logic that leaves no place beyond governance where alternatives could be formulated or resistance could occur. Global Politics without Politics: The Political Atrophy of Global Governance The envisaged all-encompassing nature of global governance with the shift of any resistance to the outside could possibly offer a viable solution if it were not complemented by the construction of an inside that falls short of a desirable political space. As a corollary to the functional necessity of global governance and the exclusion of any resistance, the script of global governance makes up a space of efficient regulation in which politics as the choice between different alternatives is left aside. The global governance discourse obviously sets in after common values are chosen, objectives are set, and the right path to an orderly world is selected. Otherwise, the exclusive stress on efficiency and implementation could not be explained. If we take, for example, the path of argumentation offered in the literature on global governance, there is a given demand of regulation at the global level that has to be met by global institutions. From this, the discussion of global governance is inclined to directly jump into the debate on the supply side of global governance. The governance structures necessary to meet the demand are either said to be existent but insufficient or not properly in place and therefore to be established. What then follows is the analysis of possible steps to improve the performance of global governance institutions (e.g. König-Archibugi 2002; Rosenau 2002). With the emphasis on the performance, the debate on the definition of proper goals and objectives for the governance endeavor is left aside. The given perspective on the demand side as well as the chosen means on the supply side are closed to any further scrutiny. There is no place for a process of defining the

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proper aims and objectives of governance that would allow to sensibly assess the efficiency of the chosen means. To make things worse, any deliberation on alternative values, purposes, and objectives is depicted as a mere hindrance to the progressive accomplishment of the envisioned order and is seen as obstacle to the effective installation of global institutions. The realization of efficient regulation beyond the nation-state, the argument goes, does not allow for hesitant deliberation and weighing up of different possibilities. In this way, the inside of global governance is characterized as an apolitical quest for identified and already set goals, while political disputes and conflicts represent a severe obstacle to the realization of the envisaged order. As the Commission on Global Governance formulates it: Political differences and conflicts between states, sensitivity over the relationship between international responsibility and national sovereignty and interest, increasingly serious national domestic problems, and the somewhat disorderly nature of the international system of organizations and agencies—all these constitute considerable obstacles to leadership at the international level. (Commission on Global Governance 1995, 354–355)

The intended exclusion of political differences and possible clashes of interests is telling in regard to the orientation of the global governance discourse. The “principally optional character of politics” (Thaa 2001, 516) is submitted to the idea of efficiency and progress that leaves no room for conflicting arguments and contests over substantive issues. By this move, any form of deliberative judgment is made conclusive from the beginning because the direction and purpose of global steering is already given right from the start and is protected by the uncontestable realm of efficiency. In this way, the reliance on the compulsory judgment of the already given global governance discourse paves the way for an exclusive necessity destroying any room of pluralistic and free choice between potential alternatives. The already mentioned issue of network governance is another case in point. The focus on ever more expertise through the gathering of technical and sophisticated knowledge disguises the fact that the decision about whom to include as contributor of knowledge is already a political act. In this way, the idea of neutral knowledge networks in a certain issue area with its emphasis on technical and efficient outcomes cannot offer a substitute for public procedures of decision making that help to make decisions based on comprehensible processes and thereby enable accountability. The reliance on nonhierarchical networks of any

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kind leaves the question unanswered who finally and ultimately decides about who is allowed to participate, who sets the agenda, and in which range of parameters the expected outcome should fall (Woods 2002, 37). The retreat into universally accepted principles or “a set of core values” (Commission on Global Governance 1995, 48) that are supposed to offer guidance to the proper and informed conduct of governance functions does not offer a substitute to missing channels of political mediation, since the determination of the “public good” always remains contestable and therefore subject to conflicting interests and arguments (Dahl 1999, 27; see also Kratochwil 1998). Global governance becomes somewhat “postpolitical” because it is something that takes place after values are chosen, goals are set, and political deliberations have designed the future path to a better world. Because political struggles and contests would be counterproductive to the emerging consensus of global regulation, governance itself has to become a sort of boundary for the political. Instead of the legitimization of political decisions through the weighing up of different alternatives, giving a real choice to the affected addressees of global governance, the discursive formation of global governance offers a unidirectional and one-dimensional path that shifts the presumed legitimization of authority and rule systems into the sphere of a mere naturalization in which alternatives to the dominant discourse become unthinkable.5 What falls by the wayside is a concept of politics that is concerned with questions of which affairs are to be pursued, how problems are to be identified, and who possesses the ultimate and supreme competence to interpret a certain state of affairs as some-thing. Global governance is functionally happening, while increasingly “the bridge between governance and politics becomes obscured” (Latham 1999, 42). Global governance takes place after the relevant issues are identified and the course of action is selected. Inside the global governance system, the type of problems and the form of solutions that should guide governance are already identified and are waiting for implementation. Any form of politics is supposed to stay outside, because it would undermine the effective operation of the governance system. Conclusion Global governance does not end “unitness.”6 Even though the discursive formation of global governance fundamentally challenges the established “inside/outside” distinction of the sovereign state, the conceptual configuration implied by global governance creates new boundaries of

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“inside/outside.” The modern solution to the predicament of universality and particularity given by the system of sovereign states is fundamentally transformed by the claim of global governance to offer a new and viable form of political organization beyond the nation-state. However, the close scrutiny of the substantive import of global governance has shown that the proposed political order underlying the dominant global governance discourse constructs a dubious inside characterized by the quest for ever more efficiency at the price of excluding any possible disturbances and eventually any politics at all. This essay has taken three stages to make good on this claim: the first was the epistemological argument that we need a different way to approach normative principles and concepts if we do not want to end up at endless definitional clarifications. To understand the function of our conceptual apparatus, we need to turn to the question of what the concepts do in our (political) discourse. This epistemological argument opened the way to the analysis of the conceptual relationships associated with global governance. It was argued that global governance as a discursive practice represents a claim to authority that is directed against the exclusive rule of the sovereign state. This challenge of the existing order was shown to simultaneously undermine the distinction of inside and outside as established by the territorial borders of the sovereign state and to establish a new boundary of what may be included or excluded into the universe of global governance. From this, a substantive argument finally became possible in which the problematic content of the new inside had been discussed. Despite of—or, indeed, because of—all the criticism launched against it, global governance probably remains one of the few vocabularies powerful enough to provide the necessary horizon for a new and sensible political order beyond the nation-state. There is no inherent necessity for the territorial state as the only possible boundary of the political. Yet, if we move beyond the political space and time of the sovereign state, then we need to be careful about the proper “circumstances of political action.” There must be an appropriate notion of time and place that is able to provide an accepted and intelligible institutional setting to deal with occurring conflicts, clashes of values, and to allow for the necessary political judgment (see O’Neill 1998). Perhaps these circumstances of political action may be found in a global civil society that allocates values by way of para- and meta-politics (see Friedrichs in chapter 2). Perhaps a utopian construction of a pluralist security community may help to overcome the shortcomings of a linear conception of time (see chapter 4 by Patomäki,). However this may be conceived,

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a concept of global governance that suffers from severe deficiencies as regards the place of politics and the mediation of aspirations to universality with claims to particularity, falls short from an approach to world order that could show ways to raise and hopefully answer questions about “what concepts like political community, obligation, freedom, autonomy, democracy or security can mean in the context of contemporary rearticulations of political space and time” (Walker 1993, 79). Notes 1. A similar argument against Rosenau’s governance in the global’ is made by Väyrynen (1999); but even though Rosenau mentions this fundamental critique of his approach in a more recent article, in my point of view, he does not offer any solution or remedy for this theoretical flaw (Rosenau 2002). For an analogous argument against Rosenau’s conceptualization of global governance also see Latham (1999). 2. For the basic idea and importance of contested concepts in our political language and discourse see Gallie (1962); Connolly (1983); for a discussion regarding the lack of an external Archimedean point in the context of regime theory and epistemological/ontological questions also see Kratochwil and Ruggie (1986, 763–766). 3. See chapter 2 by Friedrichs in this book, in which the Weberian distinction between state, market, and society is taken as basis for the construction of a ‘governance triangle’ between transnational society, transnational economy, and international politics. 4. The interdependence of territorial borders and metaphorical boundaries of political imagination is, indeed, more complex and fundamental than it is possible to discuss here; on the intrinsic relationship between territorial borders and boundaries of political thinking in the context of justice see O’Neill 1998; an illuminating discussion of different functions of borders can be found in Kratochwil 1986. 5. The difference of legitimation and naturalization where the latter is characterized by the lack and even unthinkability of alternatives is made by Hopf (2002). 6. This phrase is borrowed from Ole Waever who uses the idea of ‘unitness’ to refer to different political units and their self-referential performance of inclusion/exclusion in the context of securitization processes (Waever 1998); see also Waever (1997).

References Annan, Kofi A. 2000. “We, the Peoples.” The Role of the United Nations in the 21st Century. New York: UN Department of Public Information. Brand, U., A. Brunnengräber, L. Schrader, C. Stock, and P. Wahl. 2000. Global Governance. Alternative zur neoliberalen Globalisierung? Münster: Westfälisches Dampfboot.

42 / konrad späth Commission on Global Governance. 1995. Our Global Neighborhood. New York: Oxford University Press. Connolly, William. 1983. The Terms of Political Discourse. Princeton: Princeton University Press. Dahl, Robert. 1999. Can International Organizations be Democratic? A Skeptic’s View. In Democracy’s Edges, edited by I. Shapiro and C. HackerCordón. Cambridge: Cambridge University Press. Desai, Meghnad. 1995. Global Governance. In Global Governance. Ethics and Economics of the World Order, edited by M. Desai and P. Redfern. London: Pinter. Finkelstein, Lawrence S. 1995. What Is Global Governance? Global Governance 1: 367–372. Gallie, W. B. 1962. Essentially Contested Concepts. In The Importance of Language, edited by M. Black. Englewood Cliffs, NJ: Prentice-Hall. Groom, A. J. R., and Dominic Powell. 1994. From World Politics to Global Governance: A Theme in Need of a Focus. In Contemporary International Relations, edited by A. J. R. Groom and M. Light. London: Pinter. Guzzini, Stefano. 1993. Structural Power: The Limits of Neorealist Power Analysis. International Organization 47 (3): 443–478. ———. 2002. “Power” in International Relations: Concept Formation between Conceptual Analysis and Conceptual History. Edited by C. P. R. Institute. Working Paper No.7. Copenhagen: Copenhagen Peace Research Institute. Hopf, Ted. 2002. Making the Future Inevitable: Legitimizing, Naturalizing and Stabilizing. The Transition in Estonia, Ukraine and Uzbekistan. European Journal of International Relations 8 (3): 403–436. Keohane, Robert O., and Joseph Nye. 2000. Introduction. In Governance in a Globalizing World, edited by J. Nye and J. Donahue. Washington: Brookings Institution. König-Archibugi, Mathias. 2002. Mapping Global Governance. In Governing Globalization. Power, Authority and Global Governance, edited by D. Held and A. McGrew. Cambridge: Polity Press. Krasner, Stephen D. 1999. Sovereignty as Organized Hypocrisy. Princeton: Princeton University Press. Kratochwil, Friedrich. 1986. Of Systems, Boundaries, and Territoriality: An Inquiry in the Formation of the State System. World Politics 39: 27–52. ———. 1998. Vergeßt Kant! Reflexionen zur Debatte über Ethik und internationale Politik. In Politische Philosophie der Internationalen Beziehungen, edited by C. Chwaszcza and W. Kersting. Frankfurt am Main: Suhrkamp. ———. 2001. Sovereignty: Myth, Organized Hypocrisy, or Generative Grammar? The Case for a Conceptual Approach. LMU, Munich (xerox). Kratochwil, Friedrich, and John G. Ruggie. 1986. The State of the Art on the Art of the State. International Organization 40 (4): 753–776. Latham, Robert. 1999. Politics in a Floating World: Toward a Critique of Global Governance. In Approaches to Global Governance Theory, edited by M. Hewson and T. J. Sinclair. Albany, NY: State University of New York Press. Ohmae, K. 1995. The End of the Nation State: The Rise of Regional Economics. New York: Free Press.

inside global governance / 43 O’Neill, Onara. 1998. Justice and Boundaries. In Politische Philosophie der Internationalen Beziehungen, edited by C. Chwaszcza and W. Kersting. Frankfurt am Main: Suhrkamp. Palan, Ronen. 1999. Global Governance and Social Closure or Who is to Be Governed in the Era of Global Governance? In Approaches to Global Governance Theory, edited by M. Hewson and T. J. Sinclair. Albany, NY: State University of New York Press. Philpott, Daniel. 1995. Sovereignty: An Introduction and Brief History. Journal of International Affairs 48 (2): 353–368. ———. 1999. Westphalia, Authority, and International Society. In Sovereignty at the Millenium, edited by R. H. Jackson. Oxford: Blackwell. Rorty, Richard. 1989. Contingency, Irony, and Solidarity. Cambridge: Cambridge University Press. Rosenau, James N. 1990. Turbulence in World Politics: A Theory of Change and Continuity. New York: Harvester Wheatsheaf. ———. 1992. Governance, Order, and Change in World Politics. In Governance without government: Order and Change in World Politics, edited by J. N. Rosenau and E.-O. Czempiel, 1–29. Cambridge: Cambridge University Press. ———. 1997. Along the Domestic-Foreign Frontier. Exploring Governance in a Turbulent World. Cambridge: Cambridge University Press. ———. 2002. Governance in a New Global Order. In Governing Globalization. Power, Authority and Global Governance, edited by D. Held and A. McGrew. Cambridge: Polity Press. Ruggie, John G. 1998. Constructing the World Polity. Essays on International Institutionalization. London: Routledge. Searle, John R. 1969. Speech Acts. An Essay in the Philosophy of Language. Cambridge: Cambridge University Press. Sørensen, George. 1999. Sovereignty: Change and Continuity in a Fundamental Institution. In Sovereignty at the Millenium, edited by R. H. Jackson. Oxford: Blackwell. Strange, Susan. 1983. Cave! hic dragones: A Critique of Regime Analysis. In International Regimes, edited by S. D. Krasner. Ithaca, NY: Cornell University Press. Suganami, Hidemi. 1989. The Domestic Analogy and World Order Proposals. Cambridge: Cambridge University Press. Thaa, Winfried. 2001. “Lean Citizenship.” The Fading Away of the Political in Transnational Democracy. European Journal of International Relations 7 (4): 503–524. Väyrynen, Raimo, ed. 1999. Globalization and Global Governance. Lanham: Rowman & Littlefield. Waever, Ole. 1997. Concepts of Security. Copenhagen: Institute of Political Science, University of Copenhagen. ———. 1998. Unitness under Post-Sovereignty: Why Inside/Outside Outlives Territorial Exclusivity in an International Relations Perspective. Paper for a workshop on Identities, Borders, Orders: New Directions in IR Theory, Aschaffenburg, Germany, January 10–12, 1998.

44 / konrad späth Walker, R. B. J. 1993. Inside/Outside: International Relations as Political Theory. Cambridge: Cambridge University Press. ———. 2000. Both Globalization and Sovereignty: Re-Imagining the Political. In Principled World Politics, edited by P. Wapner and L. E. J. Ruiz. Lanham: Rowman & Littlefield. Werner, Wouter W., and Jaap H. de Wilde. 2001. The Endurance of Sovereignty. European Journal of International Relations 7 (3): 283–313. Winch, Peter. 1958. The Idea of a Social Science and Its Relation to Philosophy. London: Routledge. Woods, Ngaire. 2002. Mapping Global Governance. In Governing Globalization. Power, Authority and Global Governance, edited by D. Held and A. McGrew. Cambridge: Polity Press. Zacher, Mark W. 1992. The Decaying Pillars of the Westphalian Temple: Implications for International Order and Governance. In Governance without Government: Order and Change in World Politics, edited by J. N. Rosenau and E.-O. Czempiel. Cambridge: Cambridge University Press.

C h ap t e r 2 Global Governance as the Hegemonic Project of Transatlantic Civil Society Jörg Friedrichs

Introduction There is an old tradition of politics claiming supremacy over the market and civil society. One may reasonably doubt whether politics was ever able to make good this claim. But whereas it was somewhat plausible to talk about the supremacy of politics during the nineteenth and twentieth centuries, after the end of the Cold War this claim has come to be more and more questionable. More often than ever before, economic and societal actors bypass their governments and challenge the autonomy of political decision making. At the international level, it has become an accepted wisdom that globalization and global governance are making inroads into the sphere of politics among nations. This implies that the time-honored concepts provided by the academic discipline of International Relations (IR) are less and less adequate to capture the reality of world affairs. Accordingly, it is increasingly important to engage in the conceptualization of novel analytic instruments. The concepts of globalization and its offspring, global governance, both hold the promise to facilitate such a novel conceptualization. Without denying the importance of globalization, this essay focuses on global governance. My endeavor is not an analytic exercise in the conventional sense. Every epoch needs some worldviews to get along and make sense of reality. In the present historical juncture, we should therefore honestly embrace the production of worldviews as something unavoidable, rather than filling new empirical wine into old analytical bottles. In order to construct a better analytical framework for the understanding of the present historical juncture, I deliberately undertake an exercise in conceptual reformulation (Rorty 1989).

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In the course of the chapter I make four main arguments. The first argument is dealing with substance. I claim that global governance is the hegemonic project of transatlantic civil society. Let me briefly explain what I understand by the expression hegemonic project. The term hegemonic means that there is a predominant actor type promoting a specific normative trade and raising universalistic claims vis-à-vis all other actors. The term project means that the predominant actor type is trying to realize a certain vision of order. In the case of global governance, the predominant actor type is nongovernmental organizations (NGOs). Its specific normative trade is the liberal values that are dear to transatlantic civil society: namely human rights, democracy, and perhaps sustainability. NGOs are raising universalistic claims vis-à-vis all other actors, based on the normative content of their values. All this amounts to a certain vision of order, although it is not completely clear whether NGOs are going to stay more powerful than other actors from the societal sphere (such as transnational social movements, organized crimes, or even terrorists). My second argument is relational. It is about the relationship between global governance, international politics, and transnational economics. Following Max Weber in using the conceptual triangle of State, Market, and Society, I claim that the advent of transatlantic civil society has led to a situation where there are as many as three hegemonic projects concerning the conduct of world affairs. In the political realm, the Western model of the democratic constitutional state continues to challenge all other forms of political organization. In the economic realm, transnational corporations (TNCs) are the key actors of global business. In the sphere of transnational society, a galaxy of mostly liberal NGOs is raising claims for superior moral authority. Among each other, these hegemonic projects are engaged in a set of sometimes cooperative, sometimes antagonistic relationships. When taken together, these relationships make up the post-Westphalian, or neomedieval, world order. My third contention is plain logic. I claim that governance cannot be understood, at the same time, as “governance without government” and as “political” in the conventional meaning of the word. To understand governance as “governance without government” implies, by exclusion, a conventional understanding of politics as government, that is, as the “authoritative allocation of values” (Easton 1971). It is precisely this conventional understanding of politics against which global governance is defined as an alternative. But even if global governance is understood as an alternative to conventional politics, this does not necessarily mean that it is apolitical, that is, politically neutral in its intentions and outcomes. It may be political in a higher sense, namely in the “truest” sense

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of free deliberation and republican virtue. It may be the continuation of politics in the societal sphere. Or it may be political in a more derivative sense, by trying to assign to states and markets their proper place in the conduct of public affairs. This leads me to my fourth contention: Global governance is best described as a muddled blend of parapolitics and metapolitics, that is, as a Janus-faced combination between the continuation of politics within the societal sphere on the one hand, and the assignment of roles to international politics and transnational economics on the other. By contrast, it is hard to believe that global governance should be apolitical just because it is “governance without government.” In a similar way, to consider global governance as political in a morally higher sense would mistake an idealized (self )image for the phenomenon itself. The advent of global governance does not warrant the optimistic idea of an Aristotelian global polis, nor does it provide an arena for a Habermasian “herrschaftsfreier Diskurs” (domination-free discourse). In order to circumvent the fallacies of the concept, the first two sections of the essay are dedicated to a conceptual critique. The first section starts off with some critical reflections on the theoretical evolution of the concept; in continuation, the second section cuts back some false aspirations and tells some uncomfortable truths about global governance. Having thus cleared the table, the third section places global governance within the governance triangle, that is, the conceptual triangle formed by international politics, transnational economics, and transnational society. As I show in the fourth section, the most serious conceptual weakness of global governance is at the same time its most important strategic asset. Both in theory and in practice, global governance oscillates between parapolitics as the continuation of politics beyond the organizational sphere of the state system, and metapolitics as the allocation of organizational purpose and substantive demands to political and economic actors. The fifth section contains a brief parenthesis about global corporatism as a problematic strategy to settle the unavoidable conflicts between politics, economics, and civil society. At the end of this conceptual odyssey it becomes possible, in the conclusion, to pin down global governance as a political project in the making, that is, the hegemonic project of transatlantic civil society. The Evolution of the Concept During the Cold War most IR scholars were primarily concerned with international politics, that is, the political relations among states. In the

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late 1960s and during the 1970s, there was an increasing awareness that the primacy of international politics was challenged by the transnational economy. Accordingly, the rising importance of economic transactions was addressed by (neo-)liberal and (neo-)Marxist scholars. In more recent times, and after a short comeback of state-centrism during the 1980s, economic globalization has become the catchword for the increased leverage of market forces vis-à-vis individual states and the state system as a whole. The international political system and the transnational market economy are often seen as the two engines that make the world go round. At the same time it is debated which of the two realms has more impact on the other. However, the picture is still not complete. It can be argued that transnational society is a third force beyond international politics and transnational economics. But whereas international politics and transnational economics have been extensively theorized, the role of transnational society was broadly neglected until recently. Ever since the 1940s, when realists silenced liberal scholars as incorrigible utopians, the great majority of IR scholars have downplayed the importance of civil society. Only in the last five or ten years, transnational society has once again become a concern to a significant part of IR scholars, mostly under the label of global governance. This means that, maybe for the first time after World War II, world affairs can be understood in the tradition of Max Weber, that is, from a macro-sociological perspective, as the interplay between politics, economics, and society. Of course, the term “governance” has often been used for other conceptual purposes as well. For example, there is the idea of “international governance” by the United Nations and other international organizations (IOs), and there is the idea of the transnational market regulating itself by virtue of “world economic governance.” However, it does not seem to make very much sense to place global governance in the political and/or economic sphere. The term bureaucratic internationalism would be sufficient to characterize the pretensions of some IOs to determine their own political agenda and part of the political agenda of their member states. In a similar way, the term transnational oligopoly would be perfectly adequate to characterize the tendency of large TNCs to regulate the market. There is simply no need for a neologism such as global governance to characterize the well-known regulative pretensions of some IOs and/or TNCs. It is therefore advisable to place the concept of global governance within the societal realm. The advent of transnational society is the core assumption that conveys the concept its meaningfulness. As soon as this

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is openly recognized, the concept of global governance can be recovered in such a way as to have clearer conceptual contours than is commonly the case. As a matter of fact, global governance is more than just a stylish catchword. To many practitioners in national administrations, IOs, TNCs, and nongovernmental organizations, global governance is the attempt to establish a novel agenda in the conduct of world affairs. To many theoreticians in the social, economic, and political sciences, global governance is the crystallization point for a brand-new vocabulary about politics beyond the state system. Reading the signs of the times, private and public foundations redirect their research funding from the academic discipline of International Relations toward the research agenda about global civil society and global governance. As is usually the case with new ideas, young intellectuals are linking their personal career opportunities with the latest academic development that promises to challenge conventional wisdom. At the same time, global governance is invoked as an attractive problem-solving device by professionals involved in international affairs. In short, a growing network of practitioners and theoreticians alike is committed to global governance as an operational and conceptual agenda. In 1992 a group of international relations scholars launched the first book about Governance without Government (Rosenau and Czempiel 1992). Three years later a group of senior statesmen and experts, gathered in a UN-sponsored commission, came to the conclusion that, if the nation-state system is becoming unable to deal with the planet’s most urgent problems such as market regulation and environmental degradation, transnational networks of goodwilled people must work together to do the trick (Commission for Global Governance 1995). In the same year a review named Global Governance was founded. In all these early publications, the theoretical concept of global governance sets a challenge to the traditional understanding of international relations as “politics among nations.” It contains the promise that, if successful, the cosmopolitan commitment of world citizens will rescue the planet from the negative externalities of the capitalist market and the associated crisis of government. At any level, from the local to the global, and from the civic to the governmental, people are called to take over responsibility and to deal with the world’s most urgent collective-action problems (Lipschutz 1996; Young 1997). In the meantime, the inherent wooliness of the concept has created tremendous confusion. Take for example, the definition offered by the Commission for Global Governance (1995, 2): “Governance is the sum

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of the many ways individuals and institutions, public and private, manage their common affairs. It is a continuing process through which conflicting or diverse interests may be accommodated and co-operative action may be taken. It includes formal institutions and regimes empowered to enforce compliance, as well as informal arrangements that people and institutions either have agreed to or perceive to be in their interest.” In this definition, a multitude of actors and factors are contributing to global governance, such as intergovernmental and nongovernmental organizations, civic movements, multinational corporations, the global capital market, and global mass media (ibid., 3). Another author defines global governance as “the ensemble of regulation mechanisms, formal and informal, that organize and coordinate socioeconomic relations, from the household and the family to governmental policies and international agreements” (Massicotte 1999, 139). By this and similarly expansive definitions, the idea of global governance has become almost all-inclusive. It can take virtually any meaning, covering a vast conceptual space to be filled with content by those involved into the theory and practice of world affairs. Of course one might say that global governance is an essentially contested concept. To the theoretician, however, this is cold comfort. The theory of world politics is a field where almost everything is contested, and there is definitely no need for further concepts to quarrel about. Accordingly it might be tempting to dismiss the concept as cheap and frivolous talk, as Susan Strange tried to do in the early 1980s with the incipient debate about international regimes (Strange 1982). Notwithstanding, I am convinced that global governance is too interesting a theoretical development to be thrown into the conceptual dustbin. If we want to rescue the concept from its wooliness, it is all the more important to get it right by telling some very simple, but partly uncomfortable truths. This may turn out to be annoying to some. But since these truths are so often disregarded, it is certainly not redundant to dwell on those features of the concept that all too often go unsaid. Five Truths about Global Governance 1. Global governance is an offspring of economic globalization. It is conventional wisdom that global governance is intimately linked to economic globalization (Prakash and Hart 1999). In a time of borderless production and finance, capital is increasingly endowed with an exit option vis-à-vis territorial statehood. The adherents of orthodox economic liberalism foment and celebrate this emancipation of the market

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from the territorial state as a sort of redemption from the inefficiencies associated with the public sector. Others point to the fact that, although there are clearly developments in the real world that point into this direction, the economic orthodoxy of liberalism is at least as important as the empirical evidence to make globalization appear inevitable (Hirst and Thompson 1996; Forrester 1996, 2000; Garrett 1998; Bernauer 2000). Some critical observers warn that the crisis of government unleashed by economic globalization may undermine the very foundations of the liberal market society. And indeed, there are serious concerns that globalization is leading to a retreat of the state and to a crisis of the embedded liberalism compromise (Ruggie 1982, 1998; Vogel 1996; Strange 1996, 1998; Scholte 1997; Mathews 1997). Insofar as one agrees that globalization leads to a crisis of “politics as usual,” and insofar as one does not subscribe to the hyper-liberal vision of the market regulating itself, it is clear that globalization generates the need for some functional equivalent to regulation by political government. This is where the idea of global governance, or “governance without government,” steps in. If the state loses the capacity to perform as the final arbiter in world affairs, the unregulated pluralism of “global public policy” appears as an interesting alternative (Reinicke 1998). To support this idea it may be assumed that economic globalization does not only lead to the retreat of the state, but also to the formation of global civil society. Not only does the retreat of the state create a demand for some functional equivalent to political government, but the advent of global civil society does also create the possibility for global governance to perform as a substitute for international politics. Accordingly, the promise of global governance is that global civil society is in a position to fill the regulative gap created by economic globalization and the concomitant retreat of the state. Governance is supposed to take over where government has lost its steering capacity. 2. One should be careful not to romanticize civil society. Unfortunately, the high hopes set in global civil society rest on a series of naive assumptions. It is indeed naive to presume that global society is always or predominantly civil, since it is far from self-evident that global society consists only, or primarily, of goodwilled and liberal-minded people. Transnational terrorism and organized crime are part and parcel of global society, whether civil or not. There is no reason why world society should be more immune from corruption by criminal elements than domestic societies. Quite to the contrary, the absence of a global Leviathan would rather point to the opposite direction (cf. Mittelman and Johnston 1999).

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Ignoring these practical problems, some authors maintain that global governance can lead to the provision of universal public goods to be financed by the Tobin Tax and other sources (Mendez 1995; Patomäki 2001)—but it is not quite clear who can be realistically expected to collect these revenues. In a similar way, it has been said that global governance offers an opportunity for saving the planet from ecological disaster (Litfin 1999)—but it is not clear who can be realistically expected to coordinate which efforts at what level, nor is it clear how the disparate efforts of global civil society should aggregate at the global level. Against such liberal naivete it is worth recalling the realist adage that can does not derive from ought. Let’s face it. In some instances global governance will turn out to be a good thing, while in other instances it will turn out to be a mess. In some instances the aggregation of particular interests into a global civic movement may be an option, while in other instances there is no alternative to politics as the authoritative allocation of values. In some instances global society is morally superior to either national governments or the market economy. In other instances civil society is either completely indifferent toward urgent problems or even corrupted by criminal elements. Global governance should be welcomed as a possible solution to some problems, but it is no panacea against all dilemmas of collective action. 3. Global governance has an Anglo-American cultural imprint. It is hard to translate “governance” into languages other than English, where the Oxford English Dictionary traces the term back well into the fourteenth century. Thus, the French “gouvernance” is easily discernible as a loan translation. Whereas “governação” and “governança” have conquered a firm place in the Portuguese vocabulary, “gobernanza” still sounds odd to Spanish ears. The Italians have simply assimilated the English term into their domestic vocabulary, and the same is true for the Germanic languages. Given its difficult translatability into languages other than English, it is reasonable to assume that the term “global governance” is culturally not neutral. Indeed, “governance” as opposed to “government” transports the very optimistic and typically AngloAmerican belief that things can happily “work out” as the result of polycentric interaction, rather than being always the result of power relationships (cf. the well-known economic myth of the “invisible hand”). With its adoption into other linguistic environments, global governance transports part of the conceptual universe of English language in general, and of American social science in particular, into different cultural and academic contexts. By the way, it is relatively clear

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that the diffusion of the term into other language areas would be unthinkable if the United States were not the center, and if English was not the lingua franca, of the IR discipline. Just imagine that scholars in Continental Europe or Latin America had coined a conceptual innovation that is not translatable into English. It is fairly unlikely that, in this not so hypothetical case, there would be a similar diffusion effect as can be observed with regard to global governance. With the important exception of dependencia in the 1960s, theoretical concepts are much more likely to flow from the English language area to the rest of the world than the other way round (another partial exception is the term subsidiarity from Neolatin/German). 4. Global governance has a transatlantic organizational bias. There is a broad consensus that without a strong field of non-state actors there is no “governance without government.” Among the most important of those non-state actors are nongovernmental organizations, which are unevenly distributed all over the world. This can be easily demonstrated by figures from the Yearbook of International Organizations (Union of International Associations 2002, Appendix 3.3, 1616–1621). According to this statistical source, 59 percent of all nongovernmental organizations have their headquarters in Europe. This is probably due to Europe’s national fragmentation, which leads to a multiplication of small and medium-sized nongovernmental organizations. When adding the American percentage to the European share, the Western world scores 85 percent of all NGO headquarters worldwide. The transatlantic bias of nongovernmental organizations becomes even more evident if one compares the absolute numbers of NGO headquarters in different states. In 2002 there were 19,873 nongovernmental organizations, 3,510 of which had their headquarters in the United States, 2,012 in the United Kingdom, 1,800 in France, 1,028 in Germany, and 517 in Canada. By comparison, there were only 293 headquarters in Japan, 212 in India, 96 in Russia, 57 in Nigeria, and 42 in China. One may deplore this reality, but the non-Western world in general and the Third World in particular is not at center stage of global governance. On the reverse, the statistical evidence shows that global governance has a transatlantic bias. To be sure, NGOs are neither better nor worse simply because they are most prevalent in the West. And no one should have to apologize if he struggles for such an inherently Western and liberal thing as civil society. Nor can it be excluded that counterhegemonic movements from the Third World may use global governance and turn it against Western society. As a matter of fact there is not only the concept of global governance by nongovernmental organizations,

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but also the counter-concept of global governance by transnational social movements (O’Brien et al. 2000). However, it is a matter of intellectual honesty to recognize that, insofar as the term global suggests universal applicability, one should talk about “transatlantic” rather than “global” civil society, and about “transatlantic” rather than “global” governance (Pollack and Shaffer 2001). 5. More often than not, ideas about global governance are inherently economistic. An important branch of the global governance literature is characterized by an ambiguous relationship with politics and political science. On the one hand, global governance is said to be the political answer to economic globalization and the retreat of the state. On the other hand, it is defined as “governance without government” and therefore must be different from the conventional image of politics as the authoritative allocation of values (Easton 1971). As a device to overcome market failures and collective-action problems, global governance is closer to the logic of rational-choice institutionalism than to the logic of political action. Paradoxically, it seems therefore justified to brand global governance as a form of antieconomistic economism. To bring this home, it is useful to take Richard Ashley’s (1983) analytical distinction of three modes of economism: ●

●

●

Historical economism: The empirically observable denationalization of the capitalist mode of production and trade is reified as a sort of historical necessity with no escape for political actors. Logical economism: The commitment of political scientists to the tenets of rational choice tends to reduce the logic of political behavior to the assumed behavioral characteristics of economic man. Variable economism: The realities of the market are understood as the confining conditions (independent variables) that determine regularities in political behavior (dependent variables).

This analytical distinction was designed by Ashley to criticize the debate of the late 1970s and early 1980s about power and interdependence. It neatly applies to the literature about global governance as well. More often than not, this literature is characterized by the same antieconomistic economism as the literature about power and interdependence. First, the historical nemesis of globalization is held responsible for the shift from government to governance (historical economism). Second, governance is praised for being more compatible with the market logic than government (logical economism). Third, the global market is treated as the independent variable to explain the occurrence of global governance (variable economism).

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The Governance Triangle After this conceptual critique, let us turn to more general concerns, namely to the role of global governance in post-Westphalian order. As I have argued elsewhere, in the post-Westphalian or neomedieval world a fragmented society is held together by the competing universalistic claims of the state system and the transnational economy (Friedrichs 2001, 2004). To better understand the coordinates of post-Westphalian order, it is helpful to hark back to a time-honored tradition of classical sociology: the distinction of Max Weber between State, Market, and Society. Projecting this well-known triptych to the global level, it is possible to trace a governance triangle with the state system, the world market, and transnational society at its corners (figure 2.1). The shape of the triangle conveys an implicit normative claim concerning the hierarchy of the three components that are making up its corners. It is easy to trace at least two more triangles, with either the state system or the world market on top, depending on whether one is inclined to privilege the hegemonic aspirations of international politics or transnational economics. Altogether, one may trace three possible triangles. Accordingly, it is possible to distinguish between three competing hegemonic projects: the supremacy of politics, the preponderance of the market, and the priority of civil society. Just as in other areas of social reality, where you stand determines what you see. By the way, this is hardly surprising given the trend toward functional self-referentiality in late modernity (Luhmann 1997; cf. Teubner 1993).

Allocation of purpose and substantive demands

Transnational society (governance)

Authoritative allocation of values

International politics (government)

Figure 2.1

Allocation of purpose and substantive demands Decentralized allocation of values

Antagonistic organizational modes

The governance triangle

Transnational economy (market)

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To spell this out a little bit: According to the Hobbesian view of international politics, only sovereign states are in a position to impose order on the market and civil society. Only sovereign states are capable and entitled to determine the world political game. In this view, the political and military interaction among governments and armies is on top of the triangle. But of course, such a Hobbesian viewpoint can be challenged by the Cobdenite advocacy of unrestrained free trade. An extreme freetrader would probably deny the need for either the state apparatus or organized civil society to allocate organizational purpose and substantive demands to the market. By virtue of the reputed impartiality of the invisible hand, the market should be on top of the triangle, assigning to politics the role of providing law and order, and to society the role of consuming goods and providing labor. The third possible configuration of the triangle is the hegemonic project of transnational civil society. In this optic, transnational civil society is in a key position, being the ultimate source of organizational purpose and substantive values for both the state system and the transnational economy. In this essay I am primarily concerned with the third hegemonic project, as is graphically illustrated by the governance triangle: NGOs make up transatlantic civil society and try to impose their liberal values on states, markets, and on their fellow societal actors. Nevertheless, it is important to note that global governance is only one among three hegemonic projects. In this context, it must also be admitted that the symmetry suggested by the triptych of competing hegemonic projects requires a series of caveats. First, the unparalleled success of the globalization discourse is a strong indicator that in the present situation the weights are not evenly distributed. Economic reasoning is making inroads into the realms of politics and society, rather than the other way round. All the more, politics and society must struggle not to be assimilated too much by the market, and encroachments from the economy should be rebuffed. The market must not be allowed too much to supplant political and/or societal dynamics. If it is true that the global economy is on the advance and the state somewhat on the retreat, transnational civil society should be expected to balance against rather than to bandwagon with the economy. Of course, this is only a hypothesis. The opposite might also prove to be true. In that case, the global economy might carry the day and ultimately overdo both government and governance. Second, there is a difference in kind between political and economic actors on the one hand, and societal actors on the other (see table 2.1). Politics and economics can be understood as two different organizational

transatlantic civil society / 57 Table 2.1 International politics, global economics, and transnational society

Hegemonic actors Organizing principle Normative ethos

International Politics ≈government

Global economics ≈market

Transnational society ≈governance

Liberal constitutional states Authoritative allocation of values Claim to legitimate representation

Transnational corporations Decentralized allocation of values Claim to superior efficiency

Nongovernmental organizations [Free association of individuals] Claim to substantive values

modes supported by two distinct forms of legitimacy. Politics is based on the hierarchical allocation of values and derives its legitimacy from the claim to act on behalf of society as a whole. Economics, by contrast, is ideally based on the decentralized allocation of values and derives its legitimacy from the claim that the market is more efficient than any other sphere of human intercourse, let alone the public realm. Each of these two organizational spheres can protect itself against colonization from the other by raising claim to its particular form of legitimacy. In the long run this might very well lead to a functional equilibrium between international politics and transnational economics. The components that make up society, by contrast, are not distinguished by a specific organizational mode. Instead, they derive their legitimacy from the substance of the values they represent. Whether they struggle for democratic participation, minority rights, environmental protection, or religious fundamentalism, societal actors always refer to intersubjectively held values. They are therefore fundamentally different from political and economic actors. They derive their legitimacy from the substance of their normative claims rather than from the virtues of a specific organizational mode. Whether nongovernmental organizations or transnational social movements—the key actors of world society are united by their reliance on values, while at the same time being also divided by the different content of those values. Third, civil society is logically and ontologically prior to the state and the market. The generally held belief that both the state and the market are for civil society, and not the other way round, purveys an additional portion of legitimacy to civil society. Moreover, there are powerful normative arguments to support the hegemonic pretensions of civil society. It is intuitive from the standpoint of “We the People(s)” that the primacy

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of either politics or economics is not desirable at the domestic or at the global level. At the domestic level, the primacy of politics has led several times in the twentieth century to the horrors of totalitarianism, whereas the primacy of the market engenders the alienation of human beings from their social context and from their ecological environment. The failure of both totalitarian politics and the free market can be turned into a powerful argument for the hegemonic project of civil society. Nevertheless, it must be admitted that societal actors lack the formal legitimacy of the state to speak on behalf of society as a whole. There is a certain consensus that societal actors are less efficient than either the market or the state when it comes to the allocation of values. The fundamental difference between the substantive legitimacy of civil society on the one hand, and the organizational legitimacy of the state and the market on the other, is not only an asset but also a liability for societal actors vis-à-vis their political and economic counterparts. Despite the hegemonic pretensions of global governance, it seems therefore unlikely that civil society is ever going to prevail over the state system and the world market. Finally, it may raise some perplexities that I have represented the three hegemonic projects as competing among each other. To smooth these perplexities, it must be emphasized that conflict is certainly not the only mode of competition. In the real world, compromise among the hegemonic projects is often unavoidable. Thus, TNCs will sometimes undergo public–private partnerships in order to shape their sociopolitical environment. States will sometimes work together with nongovernmental organizations to hold TNCs at bay. Human rights activists will sometimes try to convince TNCs that it is in their interest to outdo authoritarian states. The open clash between the three hegemonic projects will be the exception rather than the rule. Nevertheless, it would be naive to assume a stable harmony of interests among the three hegemonic projects (Zumach 2002). It is completely normal that one realm will try to colonize the other, and it is equally normal that each realm will rebuff attempts by the others to curtail its domain. To be competitive in this game, each realm must construe itself as an autonomous sphere of action, even if it is clear that functional autonomy can never be attained at the operational level. Parapolitics and Metapolitics The penultimate section has dampened some high-flown expectations with regard to the problem-solving capacity, universal applicability, and

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value neutrality of global governance. In particular, it has become clear why the advent of global governance is neither political in the conventional meaning of the word, nor tantamount to the advent of politics in a morally higher sense. At the basis of global governance, there is too much inequality and injustice to justify its representation as an arena for a Habermasian “herrschaftsfreier Diskurs” (domination-free discourse). In a similar way, there is not enough communal solidarity and commitment for the common good to warrant the equation of transnational civil society with an Aristotelian global polis. Given its mainly liberal ideological content, however, it would be foolish to maintain that global governance is simply apolitical. Despite a somewhat complicated relationship, global governance and politics is not a contradiction in terms. Of course, it still holds true that global governance is not political in the traditional sense of politics as the “authoritative allocation of values” (Easton 1971). As I have argued earlier, if global governance is understood as “governance without government,” it cannot be political in the very sense that is excluded by definitional fiat. Nevertheless, global governance is political in a more derivative sense. It oscillates between, on the one hand, parapolitics as the continuation of political activity beyond the organizational sphere of the state, and, on the other hand, metapolitics as the allocation of organizational purpose and substantive demands to political and economic actors. As a shortcut to illustrate what is meant by these two terms, it may be helpful to introduce the following equations: first, military relates to paramilitary as politics to parapolitics; second, theory relates to metatheory as politics to metapolitics. Accordingly, global governance as parapolitics is the continuation of politics beyond the organizational sphere of the state. In this optic, governance has its organizational locus in the societal sphere as opposed to the political system. “The state is engaged in government; civil society, in governance” (Lipschutz 1996, 249). As every attentive observer of dayto-day politics will recognize, the settlement of political issues is often rather negotiated among societal actors than allocated by sovereign authority. Although this is certainly true within the liberal constitution state, it is open to debate whether and to what extent it is also true at the international level. But at least in principle, transnational societal actors may sometimes settle on issues that are political by nature. Indeed, problem solving by direct negotiations among societal stakeholders looks like an attractive substitute for intergovernmental coordination in the absence

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of world government. The very understanding of global governance as “governance without government” suggests that there is a viable option for parapolitics at the transnational level. “What we need is a conceptualization that enables us to penetrate and understand the governmentlike events that occur in the world of states even in the absence of government” (Finkelstein 1995, 368). To be sure, there are practical problems with global governance, such as limited impact, high transaction costs, and the risk to fall victim of the least common denominator. Despite these disadvantages, however, there are problems that otherwise could not be solved since they are not amenable to intergovernmental coordination. The possibility of solving some of these problems conveys a certain, albeit limited, amount of legitimacy to global governance (cf. Scharpf 1998). Although global governance may be a solution to some specific problems, however, it would be naive to presume a harmonious relationship between politics and parapolitics. Especially when it comes to the question of who is entitled to allocate which values, governance enters into an acute competition with government. This is necessarily so since, as we have seen, governance clashes with the traditional understanding of politics, according to which the state is the paramount agency in charge with the authoritative allocation of values. According to this view, politics is either done with the state as the final arbiter, or it is illegitimate. Just as paramilitary activities are suspicious from the standpoint of the regular troops, parapolitics is suspicious from the standpoint of the political establishment. At the international level, this is exasperated by the absence of a consolidated civil society and by the questionable democratic legitimacy of nongovernmental organizations and transnational social movements. On the other hand, global governance is also about metapolitics. As argued earlier, global governance presumes a separation of the world system into three spheres of action: the state system, the transnational economy, and transnational society. This leads to the question how these three spheres should relate to each other. Insofar as global governance tries to give an answer to this question, it is a metapolitical enterprise. Most stakeholders of global governance are committed to a leading role for civil society in world affairs—just as supporters of economic globalization tend to emphasize the paramount importance of economic actors, and just as conventional ideas about international order stress the supremacy of politics. The concept of global governance tends to represent the world as an arena of multilevel governance, where societal actors provide guidance to political and economic actors at the local, national, regional, and global level.

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For some enthusiastic supporters of global governance the world is the stage for global public policy networks, where governmental and nongovernmental actors are working peacefully together in private–public partnerships (Reinicke 1998). Nevertheless, it seems unwise to presume a preestablished harmony of interests between State, Market, and Society. In some issue areas there are strong incentives for the three functional spheres to cooperate, whereas other issue areas are distinguished by latent or patent antagonism. Thus states cannot allow for too much tax evasion by the market, and they cannot surrender minimal control over transnational migration. Markets often have an interest in evading environmental standards dictated by the state, and in manipulating the consumptive behavior of their customers. Society sometimes is subversive of public authority and critical of corporate power. Therefore it is somewhat inadequate to celebrate global governance as the spontaneous self-regulation of the world by global public policy and private–public partnerships. It is much more complicated than that. Even if we take global governance in the narrow sense of problem solving, it is very difficult to figure out which problems should be decided at what level. As parapolitics global governance is by definition different from international politics. As metapolitics, by contrast, it encompasses, among other things, political relations among governments. From a strictly logical viewpoint, this is a staggering contradiction. How can global governance at the same time exclude and include international politics? It is indeed hard to conceptualize global governance as both beyond and above government. However, this apparent contradiction becomes less confusing as soon as global governance is understood as a hegemonic project. If we understand global governance in a broader sense, it comes close to a social superstructure in the sense of Antonio Gramsci. In this view, global governance is a political project that wants to contribute to the “maintenance and reproduction of a hegemonic order, able to reach compliance without having to resort to force” (Massicotte 1999, 136). From this perspective it turns out that, at least for practical purposes, the Janus-faced elusiveness of global governance is also a strategic asset. To provide the glue for world capitalism and to maximize the influence of civil society, global governance is sometimes construed as beyond and sometimes as above politics. The Lures of Global Corporatism As has been argued earlier, the constitutive units of world society range from nongovernmental organizations to transnational social movements

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and from organized crime to religious groups (cf. Keck and Sikkink 1998, O’Brien et al. 2000). The substantive values represented by these actors may range from human rights to sustainable development and from proletarian emancipation to Islamic rectitude. One should not forget that, at the domestic level, even the National Rifle Association is part and parcel of civil society. But be that as it may, in the present historical juncture it is the hegemonic project of the liberal part of world society that matters most. Over the last decade, mostly liberal NGOs have been striving for more participation in the policy-making process and for an improvement of their status within the UN family. At least in part, NGOs have been successful in going beyond ARTICLE 71 of the UN Charter concerning consultative status with ECOSOC (Willetts 2000). They have acquired a certain say in the international policy-making process, which even includes economic organizations such as the WTO and the IMF (Tussie and Riggirozzi 2001; Alger 2002). As Marina Ottaway (2001) has pointed out, global corporatism is a tempting but highly problematic strategy to institutionalize the participation of NGOs in the global arena. On the one hand, it is tempting to call for tripartite arrangements between the international public sector, the multinational private sector, and transnational civil society. The final report of the UN Vision Project on Global Public Policy Networks has called for such a tripartite model of global corporatism (Reinicke and Deng 2000). The underlying idea is that the United Nations should coordinate policy cooperation at the global level between the public sector, the private sector, and civil society networks (Reinicke 1998). This is broadly in line with Global Compact, an initiative sponsored by UN Secretary General Kofi Annan (Zumach 2002). Unsurprisingly, NGOs have often called for tripartite arrangements, most prominently at the 2000 Millennium Forum in New York. There is an understandable enthusiasm amongst NGO advocates for corporatist bodies such as the World Commission on Dams. On the other hand, one should be aware of the fact that global corporatism, just as its domestic counterpart, is not unproblematic. While increasing their legitimacy from above, global corporatism may alienate NGOs from their constituents and thereby diminish their legitimacy from below. Corporatist endeavors at the national level have shown that, at least in the long run, elite cronyism is a constant danger. To illustrate this point it is sufficient to take the example of Austria, where tripartite arrangements between political parties, trade unions, and employers’ associations have led to a deep crisis in political culture. To be sure, NGOs are eager to demand their formal incorporation into the global decision-making process. But although NGOs often

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claim to act on behalf of ordinary people, there is no a priori reason to believe that they are more representative of “We the People(s)” than governmental actors. Of course NGOs are right in pointing to substantive values and in trying to convey organizational purpose and substantive demands to political and economic actors. That is their raison d’être. However, it may actually become more difficult for NGOs to fulfill this task when they are tied together with the international public and private sector by virtue of corporatist schemes. Marina Ottaway (2001) is therefore right that, instead of tripartite arrangements, the exercise of political pressure and “good old” lobbying is a more appropriate way for NGOs to put forward their claims vis-à-vis political and/or economic actors. Conclusion At the end of this conceptual Odyssey, let us briefly turn back to the governance triangle (figure 2.1). Together with the other actors that populate world society, NGOs inspire organizational purpose and substantive values into international politics and global economics. For a very simple reason, this is easier with regard to international politics than with regard to global economics. In the political realm there are established procedures for societal participation, at least as far as democratic politics is concerned. Societal actors may choose whether to operate on national governments, IOs, or even trans-governmental networks. Economic firms, by contrast, are less permeable to the substantive claims raised by societal actors. Almost by definition, market actors are reluctant to attempts of societal influence other than spontaneous shifts in consumer behavior. Only under very exceptional circumstances will they voluntarily consent to codes of conduct, and the like. At the same time the globalization discourse suggests that the global market has gained, and the state system has lost relative power over world political outcomes. Therefore, transatlantic civil society should have a genuine interest in joining the efforts of states and transnational social movements to prevent the colonization of the public domain by the market. Accordingly, global governance should be complementary rather than antagonistic to government, and antagonistic rather than complementary to the market (cf. Drache 2001). On the other hand, recent attempts by the U.S. government to establish its supremacy over political and social developments in other parts of the world show that the market is not the only menace to the values promoted by global governance. It is therefore easy to understand

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that global governance must strive to become a sphere of action in its own right, aiming at the (self )organization of the public domain and the creation of sanctuaries outside political oppression and the market logic. For those who subscribe to the liberal values shared by most NGOs, there should be a strong interest in the progressive development of international society law, which until now is mostly conspicuous by its absence (cf. Friedrichs 2004). It is important to recall that both international politics and global economics are distinguished by the preponderance of a specific organizing principle, normative ethos, and legal superstructure. It would greatly enhance the legitimacy and effectiveness of transatlantic civil society if NGOs could formally subscribe to some organizational standards, a code of substantive values, and an embryonic body of international society law. Moreover, it would be good for the cause of transatlantic civil society if international lawyers routinely became part of global governance networks (Toope 2000, 104–108). Along with interstate law and international economic law, international society law might thus become a third branch of international adjudication (see table 2.2). In a word, global governance should be further institutionalized and legally codified. In the final analysis this is also a matter of fairness. When NGOs are distinguished by a clear body of legal rules and some discernible institutional form, it will become easier to pin down global governance as what it actually is, namely the hegemonic project of transatlantic civil society. It is clear that non-liberal actors such as transnational social movements and organized crime tend to be excluded by such an arrangement. They will develop their counterstrategies. At Table 2.2 International public law, international market law, and international society law

Organizing principle Normative ethos Legal superstructure

International politics ≈government

Global economics ≈market

Transnational society ≈governance

Authoritative allocation of values Claim to legitimate representation International public law

Decentralized allocation of values Claim to superior efficiency International market law

[Free association of individuals] Claim to substantive values [International society law]

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the same time, nostalgic movements such as radical communitarianism and religious fundamentalism will continue to challenge the legitimacy of the liberal design. There is no reason to believe that global governance shall be more harmonious or less antagonistic than international politics or transnational economics. To the contrary, it will turn out that global governance is characterized by power relationships and shifting alliances just as any other realm of human intercourse. But again, this is also a matter of fairness and political honesty. One may like the liberal vision of civil society, and one may be critical about it. It should have become abundantly clear that I am suspicious about the potential arrogance of liberalism as a political project. Ever since the Greek pre-Socratics we know that the becoming-in-reality of one thing precludes the realization of other things, and that it is in the course of justice that in the end all things must pay for having displaced other things. To the extent that the transatlantic vision of world order becomes reality, there will be only limited space for alternative visions of human society. Some of these visions will be suppressed, while others are going to disappear altogether. More and more attitudes will be branded as criminal or even terrorist, while the last residua of self-contained tribalism are fading away in sub-Saharan Africa and the Asia-Pacific. Of course this is not to disqualify the moral standing of either liberalism or transatlantic civil society. Nor is it to exclude the viability of non-liberal counterprojects, either from the part of transnational social movements or from non-Western parts of world society. However, I claim that it would be unwise not to pose the question “Who governs?” with regard to global governance. I deplore that the conventional image of global governance is that of a global nébuleuse that is hard to be nailed down. At least analytically, we can do much better. I have tried to show that, for better or for worse, global governance is the hegemonic project of transatlantic civil society. But of course one should be careful not to take the universal claims of transatlantic civil society at face value. Nor should one equate Western NGOs with world society simply because they frequently claim to act on behalf of world society. To understand both the importance of global governance and its limitations, it is appropriate to recall Antonio Gramsci’s understanding of civil society as the space where hegemony is negotiated and maintained without the direct use of force (cf. Bocock 1986). There is no logical reason why the present historical block should be more resilient to political subversion, economic obsolescence, and normative erosion than its predecessors. In the eyes of many people who are committed to one particular worldview or the other, this perspective may sound

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excessively detached from the world they are living in and/or the changes they are struggling for. From a world historical perspective, however, it is quite normal that opinions are divided on global governance as the hegemonic project of transatlantic civil society. References Alger, Chadwick. 2002. The Emerging Roles of NGOs in the UN system: From Article 71 to a People’s Millennium Assembly. Global Governance 8 (1): 93–117. Ashley, Richard K. 1983. Three Modes of Economism. International Studies Quarterly 27 (4): 463–496. Bernauer, Thomas. 2000. Staaten im Weltmarkt: zur Handlungsfähigkeit von Staaten trotz wirtschaftlicher Globalisierung. Opladen: Leske⫹Budrich. Bocock, Robert. 1986. Hegemony. Chichester: Ellis Horwood. Commission for Global Governance. 1995. Our Global Neighborhood. Oxford: Oxford University Press. Drache, Daniel, ed. 2001. The Market or the Public Domain? Global Governance and the Asymmetry of Power. London and New York: Routledge. Easton, David. 1971. The Political System: An Inquiry on the State of Political Science. New York: Alfred A. Knopf, 2nd ed. Finkelstein, Lawrence S. 1995. What is Global Governance? Global Governance 1: 365–372. Forrester, Vivienne. 1996. L’horreur économique. Paris: Fayard. ———. 2000. Une étrange dictature. Paris: Fayard. Friedrichs, Jörg. 2001. The Meaning of New Medievalism. European Journal of International Relations 7 (4): 475–502. ———. 2004. The Neomedieval Renaissance: Global Governance and International Law in the New Middle Ages. In Governance and International Legal Theory, edited by I. R. Dekker and Wouter G. Werner, 3–36. Leiden and Boston: Martinus Nijhof. Garrett, Geoffrey. 1998. Partisan Politics in the Global Economy. Cambridge: Cambridge University Press. Hirst, Paul, and Grahame Thompson. 1996. Globalization in Question: The International Economy and the Possibilities of Governance. Cambridge: Polity Press. Keck, Margaret E., and Kathryn Sikkink. 1998. Activists beyond Borders: Advocacy Networks in International Politics. Ithaca: Cornell University Press. Lipschutz, Ronnie D. 1996. Global Civil Society and Global Environmental Governance: The Politics of Nature from Place to Planet. New York: SUNY Press. Litfin, Karen T. 1999. Constructing environmental security and ecological interdependence. Global Governance 5: 359–377. Luhmann, Niklas. 1997. Die Gesellschaft der Gesellschaft. Frankfurt am Main: Suhrkamp, 2nd vol. Massicotte, Marie Josée. 1999. Global Governance and the Global Political Economy: Three Texts in Search of a Synthesis. Global Governance 5 (1): 127–148.

transatlantic civil society / 67 Mathews, Jessica T. 1997. Power Shift. Foreign Affairs 76 (1): 50–66. Mendez, Ruben P. 1995. The Provision and Financing of Universal Public Goods. In Global Governance: Ethics and Economics of the World Order, edited by M. Desai and P. Redfern, 39–59. London: Pinter. Mittelman, James H., and Robert Johnston. 1999. The Globalization of Organized Crime, the Courtesan State, and the Corruption of Civil Society. Global Governance 5: 103–126. O’Brien, Robert, Anne Marie Goetz, Jan Aart Scholte, and Marc Williams. 2000. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge: Cambridge University Press. Ottaway, Marina. 2001. Corporatism Goes Global: International Organizations, nongovernmental Organization Networks, and Transnational Business. Global Governance 7 (3): 265–292. Patomäki, Heiki. 2001. Democratizing Globalization: The Leverage of the Tobin Tax. London: Zed Books. Pollack, Mark A., and Gregory C. Shaffer, eds. 2001. Transatlantic Governance in the Global Economy. Lanham: Rowman and Littlefield. Prakash, Aseem, and Jeffrey A. Hart, eds. 1999. Globalization and Governance. London and New York: Routledge. Reinicke, Wolfgang H. 1998. Global Public Policy: Governing without Government. Washington: Brookings Institution. Reinicke, Wolfgang H., and Francis M. Deng. 2000. Critical Choices: The United Nations, Networks, and the Future of Global Governance. Ottawa: IDRC Publishers. Rorty, Richard. 1989. Contingency, Irony, and Solidarity. Cambridge: Cambridge University Press. Rosenau, James N., and Ernst-Otto Czempiel, eds. 1992. Governance without Government: Order and Change in World Politics. Cambridge: Cambridge University Press. Ruggie, John Gerald, 1982. International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order. International Organization 36 (2): 379–415. ———, 1998. Globalization and the Embedded Liberalism Compromise: The End of an Era? In Internationale Wirtschaft, nationale Demokratie: Herausforderungen für die Demokratietheorie, edited by W. Streeck, 79–97. Frankfurt: Campus. Scharpf, Fritz W. 1998. Demokratie in der transnationalen Politik. In Internationale Wirtschaft, nationale Demokratie: Herausforderungen für die Demokratietheorie, edited by W. Streeck, 151–174. Frankfurt: Campus. Scholte, Jan Aart. 1997. Global Capitalism and the State. International Affairs 73 (3): 427–452. Schröder, Gerhard, ed. 2002. Progressive Governance for the 21st Century. München: Beck. Strange, Susan. 1982. Cave! Hic Dragones: A Critique of Regime Analysis. International Organization 36 (2): 479–496. ———. 1996. The Retreat of the State: The Diffusion of Power in the World Economy. Cambridge: Cambridge University Press.

68 / jörg friedrichs Strange, Susan. 1998. Mad Money: When Markets Outgrow Governments. Ann Arbor: University of Michigan Press. Teubner, Gunther. 1993. Law as an Autopoietic System. Oxford: Blackwell. Toope, Stephen J. 2000. Emerging patterns of governance and international law. In The Role of Law in International Politics: Essays in International Relations and International Law, edited by M. Byers, 91–108. Oxford: Oxford University Press. Tussie, Diana, and Maria Pia Riggirozzo. 2001. Pressing Ahead with New Procedures for Old Machinery: Global Governance and Civil Society. In. Global Governance and the United Nations System, edited by V. Rittberger, 158–180. New York: United Nations University Press. Union of International Associations, ed. 2002. Yearbook of International Organizations: Guide to Global and Civil Society Networks 2002 / 2003, 39th ed., 2nd vol. München: Saur. Vogel, Stephen K. 1996. Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries. Ithaca: Cornell University Press. Willetts, Peter. 2000. From “Consultative arrangements” to “Partnership”: The Changing Status of NGOs in Diplomacy at the UN. Global Governance 6 (2): 191–212. Young, Oran R., ed. 1997. Global Governance: Drawing Insights from the Environmental Experience. Cambridge, MA: MIT Press. Zumach, Andreas. 2002. Der “strategische Handel” des Generalsekretärs: ernüchternde Erfahrungen mit dem Globalen Pakt von Davos. Vereinte Nationen 50 (1): 1–5.

C h ap t e r 3 Th e Gl ob e an d t h e Gh e t t o 1 Fleur E. Johns

The hybrid European . . . simply needs a costume: he requires history as a storage room for costumes. To be sure, he soon notices that not one fits him very well; so he keeps changing . . . again and again a new piece of prehistory or a foreign country is tried on, put on, taken off, packed away, and above all studied: we are the first age that has truly studied “costumes”—I mean those of moralities, articles of faith, tastes in the arts and religions—prepared like no previous age for a carnival in the grand style . . . Perhaps this is where we shall still discover the realm of our invention . . . say, as parodists of world history . . . —perhaps, even if nothing else today has a future, our laughter may yet have a future. Nietzsche 2000, 340 Liberty, equality, fraternity, love, honour, patriotism and what have you. All this did not prevent us from making anti-racial speeches about dirty niggers, dirty Jews and dirty Arabs. High-minded people, liberal or just soft-hearted, protest that they were shocked by such inconsistency; but . . . with us there is nothing more consistent than a racist humanism since the European has only been able to become a man through creating slaves and monsters. Sartre 1967, 22

Introduction The term global evokes a single, spherical shape. Above all, “globalism” and its etymological siblings lay claim to comprehensiveness. Compare the terms “internationalism” and “transnationalism.” Both these suggest a bridging of space between nationals and nations. They evoke a sense of exchange and conflict between territorially and politically distinct sites. Similarly, “cosmopolitanism” suggests a “politan” (from the Greek polites, citizen) acting within a “cosmo” (from the Greek kosmos, universe).

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This term implies a sense of locale or rootedness, ideological or spatial. In contrast, the term “global” is notable for its claim to uprooted wholeness. Commensurate with this semantic posture, contemporary scholarship on “global governance” lays claim to a field of extraordinary compass (see, e.g., Hall and Biersteker 2003; Hewson and Sinclair 1999; Held 2000; Held and McGrew 2002; Mendes and Mehmet 2003; Nye and Donahue 2000). Experiences of the “global” remain, nevertheless, elusive, relative to the “imagined communities” of nationhood (Anderson 1991). It is difficult to know how one might plausibly claim to have detected the global by sight, smell, or sound. One does not cross a border emblazoned “welcome to the realm of the global,” nor have one’s passport stamped with a global exit stamp (cf. Rose 1996). One simply must believe in globalization (whatever one understands of the term)—as well as the fact of it being “governed,” or at least susceptible to “governance”—in order to enter into discussions of global governance. This is what the literature of global governance asks its writers and readers to do—to have faith in the possibility or inevitability of systematization on a global scale, whether for good or for ill. It is this faith that I wish to begin to probe in this chapter. What is the effect of our tendency to believe in global coherence (whether prevailing or impending)? What does this belief entail? What forces give it shape, direction, and authority? How are believers governed by their (our?) belief in the possibility, necessity, or unavoidability of global governance? In posing these questions, I ascribe a degree of unity or uniformity to the literature or field of global governance that will readily dissipate upon reading the divergent contributions to this book. The “global governance” of this chapter differs from that of other chapters. I examine global governance here not as a concept, a regime, an institutional practice, a coherent normative program, or a documented phenomenon. Rather, this chapter approaches global governance as a field of prevailing narratives about or experiences of the world: narratives characterized by an orientation toward convergence, regularity, and interpenetration, frequently cast as a reaction to something called “globalization” (cf. Bourdieu 1984, 466). As such, this chapter itself, like this book, is a work both on global governance and of global governance. The force of global governance, in the mode of this chapter, may operate regardless of its expression in institutional architectures or regulatory edicts. It is involved in myriad activities, including writing, publishing, reading, and teaching. Particular attention will be paid here to the work of U.S. legal scholars concerned with globalization and its ordering

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through law. The arguments put forth in this chapter regarding this field will, accordingly, be illustrated by reference to selected articles by U.S. legal scholars. Those selected are relatively influential figures in the shaping of these narratives, at least within the legal academy: Professors John C. Coffee, Jr., Richard Falk, Andrew Strauss and Anne-Marie Slaughter (Coffee 1999; Falk and Strauss 2000; Slaughter 2000). Nevertheless, the archetypal global governance believer or agent of this chapter is a composite caricature drawn from a rather motley assortment of texts. In the early part of this chapter, I delineate some recurrent characteristics of writing on global governance. In particular, I describe a triangle of social forces appearing regularly in this writing. This configuration arises in the relation between scholarly and institutional elites writing about global governance, activist or populist elements engaged in global governance debates, and the absent constituencies that both these sectors purport to represent. Writings on global governance are riddled with tensions, but also signal unacknowledged collaborations—each is vital to the assertion of wholeness. Out of these collaborations, a belief in the inevitability or desirability of global governance is being entrenched and reproduced. As Francis Snyder has argued, scholarly work on global governance “does more . . . than simply provide the rules of the game. It also constitutes the game itself, including the players” (Snyder 1999). The bulk of this chapter, however, compares some recent writings on global governance to some sixteenth-century Venetian accounts of a “worldly” city-state. This historically heretical comparison suggests ways in which overarching “cultural frame[s]” of worldwide (or global) reach come to be written, thought, or lived into being as “fact” (contra Heger Boyle and Meyer 2002, 67). As depicted in this chapter, this process implicates participants more modest and varied than world-dominating moguls. It involves forces less cogent than formal initiatives for regulatory (or deregulatory) harmonization. Claims of Venetian writings to worldly singularity for the city-state emerged from the effort to straddle Catholic impunity and infidelious prosperity in the face of apparent social corrosion. Similarly, contemporary work in the field of global governance defends various forms of rational organization (whether rightsbased, faith-based, market-based or network-based) against perceived threats of dissolution, while seeking to accommodate the latter in the diffuse sovereignty of its explanatory circle. In each case, this chapter argues, ghettoizing, Empire-building effects ensue, but countering impulses are also manifest (cf. Hardt and Negri 2000). Global governance narratives, this chapter suggests, may be experienced as much as works of dissonance and uncertainty as works of hierarchy.

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In short, this chapter works from the intuition that those drives manifest in contemporary accounts of global governance have been seeded among our most humdrum humanist habits, as well as in the spheres of economics and technology on which others focus. Modern habits of ordering, constitutionalizing, explaining, and charting, for example, and fearing that which defies such handling, are as significant to contemporary understandings of global governance as any of the technological and economic developments said to underpin it. The remembrances of Venice that follow also suggest that would-be dominions of worldly or global scale may be ill-fated for completion, whether constitutional or otherwise. Redolent intimations of bedlam seem too vital to accounts of the global whole for those accounts to sustain assurance of progressive emancipation or homogenizing decline. Narratives of global governance may engender a will to order and completeness. Yet they also, this chapter argues, summon a potent, seductive disorder that, at risk of impugning their claim to entirety, they cannot dispel. Transgressive potential is not exterior or opposed to global governance: it is there at its every inception. The critical strategy enacted in this chapter is to interpolate the language of global governance with unfamiliar, often jarring historical counterpoints. Its goal is twofold: first, to draw attention to the persistence (indeed, the centrality) of hierarchy in and to contemporary accounts of global governance; second, to suggest the possibility that even within that ghettoized grid of governance, much remains unstable, ambivalent, and yet to be decided. The Field of Global Governance Accounts of globalization and, in particular, global governance have become so ubiquitous as to make it almost implausible to delineate a singular field of scholarship spanning the various incarnations of this term. Yet writing about global phenomena does exhibit certain nodal points around which it accumulates some cultural thickness. Current talk and writing about global governance tends to involve scholars and policy makers working in law and the social sciences, as evidenced by the contributions to this book. Those engaged in these discussions are often people who work in universities, international agencies, and nongovernmental organizations and who are members of the educated elite in their respective social settings. These days, members of this group often exhibit a normative commitment to pragmatism.2 Those who produce writings on global governance also tend to be concerned about the rise of

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various forms of dogmatism—whether anti-immigrant sentiment, religious fundamentalism, economic rationalism, or national protectionism. This concern is likely to be combined with some degree of concern about upholding standards, whether of analytical rigor, economic efficiency, or human rights. A forward-looking inclination and an ecumenical and adventurous spirit with regard to cross-disciplinary explorations are also characteristic of these works. As Yves Dezelay and Bryant Garth have observed, “the current general interest in the notion of “governance” [is attributable to the fact that it] allows all disciplines to meet” (Dezalay and Garth 2002, 311). At the edges of most global governance gatherings (such as those that resulted in this book) are those for whom these gatherings often claim to be working. Depending on a participant’s politics, these may be composed of the disenfranchised poor, war-torn and angry or, alternatively, those commercial or financial actors whose efforts to maximize wealth and efficiency are said to be impeded by arcane legal structures ill-adapted to current realities. Consider, for example, a recent book published by Cambridge University Press entitled Contesting Global Governance. In their introduction to this book, the editors write that “[a]lthough the U.S. scholarship ignores the distributional effect of international institutions . . . , there is little doubt that for hundreds of millions of people institutions such as the IMF, World Bank and WTO matter a great deal.” “[T]he foundations of global governance go beyond states and firms to include social movements,” they argue, and “[p]roposals for change in the[se] institutions’ structures and roles should be cognizant of this dimension” (O’Brien et al. 2000, 1, 22). Compare the introduction to another recent book on global governance entitled New Directions in Global Economic Governance. In this instance, the editors express concern that “[t]he new information economy still lacks a defined, comprehensive global governance structure and institution to provide the coherent regulatory framework it may need to serve the economic, social, political and security needs of members of the international community.” They continue: the WTO “has yet to take up the new demands of the world of services and e-commerce, foreign investment, integrated production, and business alliances . . .” (Kirton and von Furstenberg 2001, 18). In each case, the writers do not claim to be among the constituents whose interests they defend—they are not themselves members of social movements or part of the world of services and e-commerce. Nevertheless it is from these absent constituents that their scholarship claims its mandate and derives its impetus. Third parties of these

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kinds—popular social movements and economic entrepreneurs—figure prominently in accounts of global governance, yet they are rarely heard from directly within these accounts. It seems implicit in these accounts that those on whose behalf they are written are either too underprivileged or simply too busy to advance their own interests in written form. Instead, scholars of governance must write for them. Also appearing on the margins of much global governance work are those understood to represent its untamed activist or populist extremes. These may hail from “grassroots” political groups, media organizations, or student bodies (Independent Media Center Network News 2001). They are notable for the relatively shrill terms in which they voice their views. These people too seem to understand themselves to be working for and in the name of an absent constituency. For example, Views from the South—a collection of essays by activists representing a range of organizations in Africa, Asia, and the Americas—offers “news of the on-theground effects among people and governments in the Third World.” Writers of this type maneuver around institutionally sanctioned global governance work. They partake of some of its terminology, yet keep their stylistic and political distance. Their writings bear shoot-from-the-hip titles (such as that of Martin Khor’s contribution to the afore-mentioned essay collection: “How the South is Getting a Raw Deal in the WTO”). Their footnotes cite pamphlets, web sites and press articles alongside scholarly and institutional studies (Anderson 1999, 5, 7–53). In response, the scholars ignore them—writers of an activist ilk are rarely cited in the academic literature on global governance. Instead, outlets for these activist or populist elements range from Internet sites to various spaces of public demonstration. At these locations, attitudes range from liberal exuberance to radical social reformism. Like the members of the academy and policy-making agencies writing about global governance, these people seem bound to their role as much by matters of social class, temperament, taste, generation, and peer group as they are by affirmative conviction. After having attended antiglobalization demonstrations in Washington DC, Seattle, and Quebec City, one 25-year-old Canadian protestor observed: “It’s like following the Grateful Dead” (Ratnar 2001). A curious feature of the relationship between scholarly and policymaking work on global governance and its more populist or activist tangents is the extent to which they till some of the same discursive ground. The official statement that emerged from the Group of Eight (“G8”) meeting in Genoa in July 2001 phrased one of its goals as follows: “Drawing the poorest countries into the global economy is the

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surest way to address their fundamental aspirations” (Text of the Genoa G8 Summit Meeting 2001). Join the fold and power will be yours, this statement seemed to say. Meanwhile, those protesting the conference in the streets of Genoa offered their own plan for enclosure and management: We can now envision the formation of a truly global movement capable of challenging the most powerful institutions on the planet . . . progressive organizations are drawing up plans for how we could run the global economy in a life-centered way rather than a money-centered way. . . . (Danaher and Burbach 2000, 9)

At Genoa in 2001, the G8 asserted the inordinate, transformative power of the faithful, contingent upon their adherence to a particular creed, only to find these assertions mirrored by antiglobalists’ claims. “Another World is Possible” those protesting at Genoa declared (Genoa Social Forum Announcement 2001). Like the institutionally sanctioned discourse that it attacks, the language of the activist reveals a characteristically modernist belief in the possibility of “mak[ing] the world different from what it had been and better than it had been, and expand[ing] the change and improvement to a global, species-wide dimension” (Bauman 1998). Activists and protesters are vying with scholars and policy makers to manage the globe’s constitutionalization. These two constituencies may be opponents at a site, like Genoa in July 2001, but their writing nevertheless entrenches some of the same conventions. What of the often-absent constituencies whose colors these elite and activist contributors all purport to wear? These constituencies also exert force upon the field of writing about global governance. In part, they offer inspiration and prospects for renewal. According to the editors of Contesting Global Governance, for example, new social movements offer “the best hope for global governance.” Yet, they also pose threats to this field, among them the dangers of obsolescence. Without further effort, the editors warn, the model of global governance that they outline may prove to be “an imperfect answer to a perplexing problem” (O’Brien et al. 2000, 234). An unlikely alliance between the global financier and the impoverished immigrant arises, therefore, from the efforts of scholars, policy makers, and activists alike to keep these figures at bay in their writings on global governance. From the sidelines of these accounts, these agents proffer promises of causal determinacy as well as threats of irrelevance. Authoritative standing within accounts of global governance thus seems to be assessed in inverse relation to centrality in these accounts.

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Those scholars and policy makers who position themselves at the center of narratives of global governance tend to cast themselves as conduits for forces emanating from these narratives’ margins. Their assumption of a central interpretive location implies dominance over other contributors. As Dezalay and Garth have suggested, “academics . . . must compensate for their lack of power by over-investing in scientific or moral authority. In making such investments, . . . they necessarily embed themselves as actors and producers in the story that has also produced them” (Dezalay and Garth 2002, 310). Yet, at the same time, this self-assertion amounts to an act of self-denial, for the scholars in question characterize themselves as merely interpreting and responding to developments beyond their control or responsibility. This both fuels the sense of inevitability associated with the social and economic developments described by those scholars, and directs attention away from the preferences shaping their accounts. These are among the possible forces operating in the field of work on global governance and they are not equal. Far from being “non-hierarchical, postnational . . . without an identifiable locus of clear authority,” as one scholar has suggested, this field is marked by strong, albeit conflicting lines of allegiance and authority (Neyer 1998, 419). Writing and reading texts about global governance are, moreover, actions that acculturate their participants to these relationships and configurations of power. However, the production of this predisposition cannot be understood or addressed through a search for hidden goals, underlying networks or original meanings. The hierarchies that accounts of global governance present as incontrovertible—such as that constituted by classifying the “democratic” and the “nondemocratic” or the “traditional” and the “contemporary”—are not rooted in some hidden purpose, malevolent will, or organizing logic. Neither motive (i.e., discriminatory intent) nor context (i.e., cultural background) wholly precedes the written work of global governance: these are made (and remade) simultaneously. The classifications that I have described are being created and recreated in relatively mundane and often well-intentioned ways, including through writing about global governance in books such as this one. Moreover, boundaries and distinctions affirmed within global governance writing do not tend to be articulated in terms of territorial edges or broad-based geographic divisions (North and South; West and East; empire and colony; the “City of Light” and the “Dark Continent”). Margins are cross-hatched across places and people that lie within this field’s compass. Even as particular places and people are propelled to the edges of the global governance field, they are made part of the story of

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the whole. Quests for socioeconomic inclusion have been largely preempted by the generous embrace of contemporary global governance scholarship. Islamic piety, for example, has been remade by some scholars as “an alternative construction” of globalization. The Muslim world is said to offer a version of global governance “cognizant of nonmaterialist dimensions of progress” (Pasha and Samatar 1996, 191). Pariah countries such as Iran are regarded by some as capable of producing a compliant, “democratizing and synthesizing Islam” (Pasha and Samatar 1996, 200). Similar hopes continue to buzz around the detritus of U.S.-occupied Iraq (Powell 2004). Even as people and places are divided and ranked within it, the field of global governance is constructed as an anonymous, unanimous everywhere where all are welcome. A Global Burlesque: Venetian Worldliness In the first part of this chapter, I have argued that writings on global governance classify constituencies within their purview in pursuit of some sense of overriding, rational order. This chapter is not exempt from these habits. Like other writings on global governance scrutinized here, this chapter tends to overemphasize the commonality of writings on this topic and de-emphasize their peculiarities and disagreements. Likewise, as is common in such writings, this chapter seeks to embolden its “model” of global governance by contrasting it with a historical “model” ostensibly refuted, evolved, or surpassed: namely, life in the city of Venice half a millennium ago.3 Yet rather than trace an evolutionary link between Venetian worldliness and contemporary globalism, this chapter dresses up contemporary notions of global governance in historical garb and parades them before a mirror.4 This chapter turns to Venice in order to question and interrupt, if only momentarily, the progress-oriented historical trajectories upon which global governance narratives so frequently rest (cf. Cho and Westley 2000, 1409). One effect of this comparison might be to kindle questions as to the integrity of contemporary social and political “cores”—whether conceptual or otherwise. Recognition of the porosity of Venice’s worldly political identity might cast doubt upon the framing of contemporary global governance debates in terms of “exclusion” and “inclusion.” Instead, one might ask questions such as the following: Why, having lived through factionalized, tangled histories such as those of the city of Venice, do we continue to insist so strenuously upon secular narratives of comprehensiveness? Second, this chapter’s juxtaposition of contemporary and Venetian legal writing brings to light a lasting incongruity begging further inquiry.

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In the republican heritage of the Venetian city-state (upon which so many constitutionalists, including Americans such as William Penn, have drawn over time), one can discern a paradox that endures today (Fink 1962, 28; Muir 1981, 55). That paradox is one of equating a particular jurisdiction’s freedom and strength with its exclusion or containment of foreign influences, while equating that jurisdiction’s liberty and prosperity with its openness and access to foreign people and resources. This is a paradox with which contemporary writings on global governance continue to grapple. These and other backward- and forward-looking questions (along the lines of “from where?” “why?” “what if?” and “where to next?”) are bracketed in this chapter. The parallels drawn by this chapter between globalism and ghettoization may point suggestively in the direction of such inquiries, and others still. Yet this chapter is directed less toward their resolution than their invitation. A final word of caution to preface this chapter’s discussion of Venice: throughout the forthcoming section, reference is made to “Venice” and “Venetians,” even as the plasticity of these terms is emphasized. I often invoke these terms as though, by reading a limited array of writings by a privileged, literate class, I had gathered sixteenth-century Venetians together in some piazza and polled them to ascertain their fears and desires. A similar caveat applies with respect to references to “foreigners,” “outsiders,” and “Jews” in the following account.5 In each case, it is difficult to say where the protagonists end and the writing of them begins, or vice versa. It is difficult to say how the authenticity of one or other voice or identity might be secured, and yet some accounts do seem more influential than others (whether by circulation, reading, repetition, citation, institutional association, or formal promulgation). As is characteristic of the scholarly accounts that I have studied, this chapter re-instantiates the very rankings and singularities that it sets out to problematize. The Politics of Worldliness Sixteenth-century Venice was a place not perceived in relation to nationstates. It was a place of recurrent rites and rituals; a place of enslavement and aristocratic authority; a place of multiple publics and noncontiguous dominions; a place of wars and conquest (Lane 1973; Pullan 1971; Contarini 1599). In Venetian writings of the sixteenth century, the city was characteristically depicted in a state of flux. Between the twelfth and the eighteenth century, the population of the city oscillated between 100,000 and 190,000 (Lane 1973, 21, 324; Braudel 1984, III: 132–133;

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Mackenney 1989, 6–45; King 1990, 36). Throughout the sixteenth century, Venetians’ ranks were alternately ravaged by famine, disease, and emigration and bolstered by waves of immigration from the Italian mainland and further afield (Lane 1973, 19–20; Botero 1956, 255). Craftspeople and seasonal workers, as well as refugees from religious persecution, moved continually in and out of the city in the course of their wandering migrations through sixteenth-century Europe (Sassen 1999, 9–11). It was also noteworthy for Venetian writers of this period that the ambit of the city’s authority contracted radically over the course of the sixteenth century (Gilbert 1973, 275). When the century opened, Venetian rule extended to Chioggia, Murano, and the cities of Istria in the immediate vicinity; to Padua, Verona, Vicenza, Brescia, and Bergamo on the mainland of Italy (the Terraferma); and to Crete, Cyprus, Candia, Corfu, Modon, and Zante in the Mediterranean. Venice had also maintained control over the cities of Dalmatia since the first quarter of the fifteenth century. Over the course of the sixteenth century, the city lost its hold over a number of these territories. Modon fell to the Turks in 1500. Venice lost significant parts of the Terraferma to the French king and the German emperor in the Battle of Agnadello in 1509, only regaining the key portions of its mainland territory (after seven years’ battle) in 1516. Turkish forces seized control of Cyprus in 1571 (Lane 1973; Machiavelli 1981, 49). Notwithstanding these challenges and ruptures, the city was cast in much literature of the day as an enduring emblem of humanist achievement. Throughout the sixteenth century, accounts of Venice championed the city’s openness and open-mindedness, in opposition to the centralizing inclinations of the Papacy in Rome, the doctrinal formalism of the Council of Trent, and the rigidity of papal policy toward the Levant (a vital source of Venetian wealth and power) (Mullett 1999, 145; Setton 1984; Bouwsma 1968, 80–81; Jones 1995; Grendler 1977). To Francesco Petrarch (the fourteenth-century humanist read avidly in sixteenth-century Venice), the city was “the one home today of liberty, peace and justice, the one refuge of honorable men, the one port to which can repair the storm-tossed, tyranthounded craft of men who seek the good life” (Petrarch 1966, 234).6 Writing late in the sixteenth century, Giovanni Botero likewise explained Venice’s appeal by observing that “[m]en are . . . drawn together in society through the delight and pleasure that . . . the art of man doth minister and yield unto them . . .” (Botero 1956, 231). The greatness of the “art of man” for which the city of Venice stood was not, in many writers’ esteem, to be measured by the city’s capacity to

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shelter its people from tumult. Those who championed Venice did not aspire to shut people away from the world, or vice versa. Rather a city’s might was to be assessed by its capacity to attract and interact with a diverse multitude from all over the world: For as plants cannot prosper so well nor multiply so fast in a nursery where they are set and planted near together as where they are transplanted into an open ground, even so men make no such fruitful propagation . . . where they are enclosed and shut up within the walls of the city they are bred and born in as they do abroad in divers other parts where they are sent unto. (Botero 1956, 246)

Historical writings of the period promoted the city’s interpenetration with “divers other parts” as a testimony to its “fruitful[ness]” and uniqueness. So important to Venice’s singularity was its image as a haven for strangers that its ability to accommodate diverse multitudes was regarded by some as an element of the city’s climatic makeup: The air of Venice is exceedingly good, because it is continually purged with the ebbing and flowing of the tides, carrying every six hours away with it whatever is corrupt or unclean . . . But above all other things this is most strange, that this air by a special privilege of nature doth agree with the complexions of all such strangers, as resort thither, of what nation, or under what climate soever they be born, whether the same be subtle and persing [sic], or thick and foggy. (Contarini 1599, 192)

Bolstered by such accounts, Venetians “thought of themselves as [part of ] a city apart and international” (Lane 1973, 431). Theirs, they claimed, was a city “so strange and singular in itself, that it brooketh no comparison or resemblance with any other City, either of this present or former ages” (Contarini 1599, 169). Contemporary literature of global governance makes somewhat similar claims. As in sixteenth-century Venice, the contemporary regime of global governance recounted in these writings is characterized as an order emerging from instability. In an article entitled “Judicial Globalization,” Anne-Marie Slaughter’s writings are both representative and influential in this respect. Professor Slaughter postulates a normative vision of a “global community of law” in which judges and courts might become “[n]ot U.S. courts, French courts, German courts, Japanese courts, and associated international tribunals, but simply adjudicative entities engaging in resolving disputes, interpreting and applying the law as best they can” (Slaughter 2000). Elsewhere, Professor Slaughter contends that we are

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experiencing “not only the devolution of state power upward to supranational institutions and downward to regional or local governments, but also sideways to a fast-growing array of nonstate actors, both civic and corporate . . .[while] the state itself is changing, disaggregating . . . and thus itself becoming . . . multifaceted” (Slaughter 2002, 15–16). Accounts of global governance herald the possibility of human triumph over this chaos, just as sixteenth-century Venetian accounts of worldliness did. As Venetian writers claimed of their patrician city government, the emergent “system” of global governance is understood to be all the stronger and more durable for its open-ended, dynamic character and its inclusiveness. Envisaged as a chorus of “common governance functions,” the “global community” of contemporary accounts is, as Venice was, attributed with “a special privilege of nature” by which it “doth agree with the complexions of all . . . strangers” (Slaughter 2002, 28–29; Contarini 1599, 192). In the sixteenth century, a discourse of openness and multiplicity served in part to fortify Venetians in the face of Turkish threats to their city’s trading-led prosperity and German and French claims upon their landed territory. This discourse also reinforced a sense of Venice’s exceptionalism from the dictates of Counter-Reformation Catholic doctrine and Papal incursions upon its legal autonomy. Perhaps more importantly, it helped to shore up a sense of the city’s distinct and enduring cultural and political identity in the face of apparent dangers of dilution and disintegration. In the contemporary writings on global governance examined earlier, the devolution of causal authority to a globe-spanning “community” similarly reinforces the authority of those jurisdictions and constituencies understood to be active in that “community.” These writings—and those who feature in them—seem to gain assurance from the sense of being part of a “system” larger than themselves whose characteristics they may record, but for which they do not bear responsibility. In Venice, the politics of worldliness was a defensive politics prompted by challenges to extant power structures and demands for their remaking. Its tactics endure in current work on global governance. Worldliness as a Thirst for Diversity Defensive impulses were manifest in sixteenth-century Venice as a thirst for variety—variety by which the “singularity” of Venice and Venetians might be defended. The drive for multiplicity as a means of entrenching the power of those in authority was actualized through many of Venice’s laws and legal institutions. Gasparo Contarini’s influential sixteenthcentury book Der magistratibus et republica Venetorum, libri quinque

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(published in English as The Commonwealth and Government of Venice), for example, reads as a powerful polemic for patrician governance through specialization and diversification (Contarini 1599).7 Contarini promoted his city throughout Europe for its “wonderful concourse of strange and foreign people, yea of the farthest and the remotest nations, as though the City of Venice only were a common and general market to the whole world” (Contarini 1599, 1). Contarini maintained that the success of Venice’s complex network of legal and political institutions was in part attributable to their reflection of the great diversity of the people that those institutions served (Contarini 1599, 110). Law, understood as a guide to living, thus did part of the work of making the city in this worldly image—secure in its openness (Paruta 1852a, 372–373). In order to do so, law was understood to be responsive to the specific circumstances of a given political community. Law was to be developed, interpreted, and enforced by local Venetian secular authorities, notwithstanding its purported responsiveness to the mandates of Catholicism (Bouwsma 1968, 451; Contarini 1599, 142, 148; Monter and Tedeschi 1986, 131–132). Leonardo Donà, for example, advanced this view in an exchange with Pope Gregory XIII concerning Venice’s assertion of rights over Aquileia. When Donà explained that he had delayed his response to the pope because of the need for consideration of the matter in Venice, the pope replied: “It is not sufficient to consider, Signor Ambassador, as you put it. It is necessary to consider secundum iura [according to law], and you in Venice are not doctors of law.” Donà responded that “as his Holiness knew very well, we had in Venice, thank God, our own conception of legality and our own laws, with which we are governed; and that it could be said on this point that [Venice] had the most capable advisors” (Bouwsma 1968, 337; Paruta 1852b, 25–26, 101–106, 210). While Donà was here defending a sphere of legal autonomy that was citywide in scope, writings of the period suggest that this principle was carried through on multiple scales and for the benefit of various groups. The power of the landowners of a parish to elect their parish priest, the authority of Venetians Jews to elect their own arbitrators, and the liturgical autonomy afforded the Greek Orthodox community in Venice, for example, manifest widespread support for local deviation from generalized legal norms (Lane 1973, 98–100; Contarini 1599, 96–97; Pullan 1971, 561; Prodi 1973, 423; Ravid 1987). “Laws,” Marc’Antonio Capello observed, “are to behavior like medicine to illnesses; and therefore, just as a different illness requires a different medicine, so different times, different customs, different conditions, require various, diverse,

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and sometimes contrary laws” (Bouwsma 1968, 451). Venetian writings thus associated worldliness with the devolution of authority to disparate, overlapping legal spheres. Contemporary accounts of global governance likewise promote a multilayered, multi-jurisdictional mode of governance. Efforts to institutionalize multipolarity are, however, combined with countering impulses—those of harmonization and integration. In Professor Slaughter’s account (cited earlier), for example, the rise of “global community” is contingent upon the disempowerment of “distinct legal spheres” in favor of “an integrated global legal system.” Similarly, in an article entitled “The Future as History: The Prospects for Global Convergence in Corporate Governance and its Implications,” John C. Coffee, Jr. envisages convergence upon U.S.-style practices and principles arising from “a global process of self-selection and migration.” He speculates, “the law of securities markets [may] effectively overshadow local substantive law on a global basis.” This convergence upon U.S.-centered, common law models of corporate governance is anticipated to occur at the expense of “traditions” identified with Europe and Asia, the “relative importance” of which “should decline” (Slaughter 2000; Coffee 1999). As in Venice, particular preferences become routinized through collective fixation on the prospect of singularity. To share in the all-integrating visions propounded by Professors Slaughter and Coffee, one must stand in a specific professional locale, focus on a particular set of problems, and adhere to certain discursive conventions. In these writings, wholeness is to be achieved through isolating and distinguishing particular constituencies and then promoting among them an aspiration for convergence (whether among the judiciary or among securities market regulators). In Venice, the city’s wholeness was likewise to be composed of “different customs, different conditions, require[ing] various, diverse, and sometimes contrary laws,” but the terms and spaces of their difference would be delimited by Venice’s “most capable advisors”—its patrician rulers. Venetian writers’ thirst for diversity as a way of securing their city played itself out in a variety of ways. Sixteenth-century Venice received large numbers of refugees and immigrants from other cities and continents (Pullan 1971, 18, 250; Lane 1973, 273). Venice was a city “where strangers came and went incessantly” (McNeill 1974, xvii; contra Burckhardt 1958, Vol. 1, 87). Those identified as “strangers” or “foreigners” were recruited to the cause of defending Venetian ideals of a worldly life and were among the most active contributors to this endeavor. Foreigners enjoyed certain special privileges under Venetian

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law, including a separate, accelerated procedure for the administration of their civil claims. Contarini explained that this was “to the end that foreigners and strangers (of whom according to the precepts of many great Philosophers there is special regard to be had) should not be molested and lingered off [sic] with long delays, but quickly come to an end of their suits” (Contarini 1599, 105). Utilizing these benefits, foreigners developed familial and commercial networks that spanned continents, using Venice as a hub (Mattingly 1962, 68–69; Lane 1973, 138–140; Blumenkranz 1961; Ravid 1978; Poliakov 1977; Roth 1930; Roth 1948; McNeill 1974, 185). In the military and educational ranks of Venice, immigrants likewise rose to prominence (Branca 1973, 220; Contarini 1599, 130–131; Geanakoplos 1962; Lane 1973, 215; McNeill 1974, 159, 177–179; Mallett 1973; Russell 1992). In recognition of their contributions to Venetian civic life and prosperity, foreigners were entitled to ascend to the rank of citizen upon satisfaction of certain criteria and were, on occasions, accepted into the nobility (Contarini 1599, 131–132; Mallett 1973, 128; contra Pullan 1971, 106). Conversely, Venetians who made their fortune in foreign trade were often accorded social status higher than their birthright, since foreign trade was acknowledged to be “the nutriment and profit of the city” (Lane 1973, 104; McNeill 1974, 63). The perceived interpenetration of the city’s insiders and outsiders thus played a vital role in shaping and defending the image, institutions, and laws of Venice, and was in turn shaped by them. The structures through which this sense of worldly order was sustained were, to a significant degree, the work of “outsiders” (contra Allen and Seidl 1995, 840). Contemporary narratives of global governance likewise depend upon the presence of newcomers in order to sustain their claims to completeness. Writers on global governance leave no geographic, or interdisciplinary stone unturned in their drive for inclusion. Moreover, those perceived to be on the institutional, geographic, or discursive outer of the global governance field collaborate in the construction of this field and their locale within it. Activists writing on global governance position themselves self-consciously below or on the margins of a “mainstream” scholarly and institutional discourse (Anderson 1999, 5; Danaher and Burbach 2000). In doing so, they exploit the indispensability of that “outer” to the narratives of totality with which writings on global governance are replete. Like the singularity of Venice, the unity of contemporary globalism is constituted by gestures of distinction and embrace in which both opponents and proponents of globalism become involved. In the global governance field, as in sixteenth-century Venice, openness and diversity are, in part, rallying

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calls for constituencies that perceive themselves under threat. Yet in each instance, the call is particular to the threat. Worldly Governance: The Body of the Modern Citizen In shaping their city in this way—as a city secure in its distinctive worldliness—Venetians had to build ports and armories. Yet they also had to develop a sense of themselves, as Venetians, which was constitutive of such a city. Venetian aspirations for durability and strength within the world required walls of a different nature to the stone walls that had surrounded medieval townships. These walls had to be effective as dividers and constraints in the face of insurgency and protest (Cozzi 1973, 338; Davis 1994, 24, 32–35, 45–46; Pullan 1971, 9–10). Yet they could not displace Venetians’ experience of life in their city as free. Bodies, in a certain guise, afforded these walls. Bodily health, cleanliness, moderation, and equilibrium were topics of great concern within the city. Venetian law was propagated on a daily basis through the bodies of people who passed through the city, by ascribing to them divergent status and meanings. Against the medieval notion of an integrated body subjugated to the mind, Venetian writings promoted an image of the worldly body as a concert of disparate forces often in conflict, both among themselves and with the thinking, reasoning intellect. The Venetian constitutionalist Gasparo Contarini offered, for example, a body comprising distinct parts as a metaphor for Venice’s political and social order (Contarini 1599; cf. Davis 1970, 227; Bouwsma 1968, 167; Bembo 1954, 139–140; Allen 1964, 31). The nobility, he argued, played a role analogous to the eyes, while the citizens and popolari functioned as the limbs. Each was dependent to a certain degree on the other, but the former retained the powers of sight and direction (Contarini 1599, 148–149). This fractured image of the body promoted in Venice, and the popular metaphoric correlation between the body and the city, served Venetian purposes well in political and religious debates surrounding the papal interdicts levied against the city during the Counter-Reformation. These were threats of excommunication issued in connection with Venice’s assertion of secular authority over members of the clergy (Bouwsma 1968, 421; Martin 1985; Martin 1987a; Martin 1987b). However, the body-city metaphor also worked to justify strategies undertaken to preserve the city’s health, literally and figuratively. While divergent prescriptions for bodily health circulated during the sixteenth century, moderation was one of the strongest teachings of the day. In his study of the fear of disease in early modern societies, David Gentilcore

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has found that “[t]he key to health lay in the maintenance of bodily balance, avoiding excess or extremes” (Gentilcore 1997, 194, 197; Botero 1956, 52–53, 62–63). The health of the city was likewise understood to depend upon its balance. So Contarini argued that “this just mixture and temperature . . . maketh the perfect measures and means of government to be united in the true form and shape of commonwealth” (Contarini 1599, 83). These arguments for the avoidance of extremes frequently doubled as arguments for the repression of identified excesses, such as agents of popular protest (Pullan 1971, 9). Contarini maintained that it was critical for Venice’s political and legal organs to be able to quell the “corruption and putrefaction” signified by acts of sedition among its people (Contarini 1599, 77–78). The image of the body as made up of contending “humors,” and the need for balance among these, thus served as a premise for the containment of dissidence. Frequently, however, outbreaks of plague and syphilis posed more imminent threats to the equilibrium of the city than outbreaks of political dissidence. These outbreaks were regarded both as indicators of the moral “putrefaction” of the city and auguries of its impending socioeconomic decline (Gilbert 1973, 277; Davis 1970, 199ff.). Venetian historian Andrea Morosini, writing in 1576, maintained that “[i]f . . . it were noised abroad that the city was in the grip of a pestilential disease, terror would arise in every estate, customs revenues would be diminished, the traders of Europe and Asia would recoil from the city, and the enemies of the Republic would be incited to revolt” (Pullan 1971, 317). Sixteenth-century Venetian writings, moreover, encouraged their readers to trace these threats to the bodies of foreigners within their midst (Pullan 1971, 22; cf. Sontag 1988, 47). This connection was borne out in Venetian legal texts of the period. A decree of the Provveditori all Sanità issued in August 1522, for example, warned that “[t]he time is now approaching when the rogues, beggars and vagabonds from various regions repair to the city, who, . . . because they might be coming from unknown places infected with disease, could easily infect our own city with the pestilence” (Pullan 1971, 221). On the strength of this connection between the diseased and the foreign, the closure of Venice to outside influence became the city’s preferred strategic response to disease (see generally McNeill 1989; Sontag 1978). A decree issued in March 1528 stipulated that “[n]o paupers from outside Venice were in future to be admitted to the . . .[city’s] hospitals” (Pullan 1971, 247, 320, 322). People identified as outsiders within the body-city were accommodated to an extent. A 1550 report of the Provveditori all Sanità

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affirmed Venice’s commitment to serve as a way-station for “poor pilgrims, soldiers and other foreigners” to whom it would always show an “exemplary charity” (Pullan 1971, 361). Beyond a certain ill-defined level, however, foreigners’ presence was characterized as pathological imbalance (Pullan 1971, 515). The legally enforced removal, repulsion, or containment of outsiders in times of crisis offered promise that equilibrium might be reestablished and the city’s health restored. Accordingly, by decree issued on March 29, 1516, all Jews resident in Venice were ordered to move to the Ghetto Nuovo (the “new foundry” in Venetian dialect), a walled area with a single entrance that was thereafter guarded at night by police. Jews (other than physicians) who were caught outside the Ghetto at night were liable to be fined and imprisoned (Pullan 1971, 476–477, 487–488). When, in 1571, the Venetian Senate took this a step further, resolving to expel all Jews from the city of Venice and from the entire Venetian dominion, the following declaration was issued: It should above all be noted that whenever steps have been taken to expel the Jews, both the state and private individuals have been seen to prosper, and whenever contracts have been made with them, the contrary has clearly appeared. (Pullan 1971, 537)

The presence of Jewish bodies within Venice was acknowledged to be essential to the city’s prosperity and worldly political identity (Pullan 1971, 432–601; Blumenkranz 1961; Ravid 1978). “[J]ust as one cannot make war without soldiers or a port without merchants,” Daniel Rodriguez argued before the Doge in 1591, “[so one cannot make] a most rapacious nation . . . without the aid of . . . the Levantine and Ponentine Jewish nations” (Pullan 1971, 569). Yet fear of “contamination” and discord was seen to justify the segregation of Jewish bodies from those of Christians in all but certain specified commercial endeavors (Stow 1992; cf. Botero 1956, 101, 110). Other groups were similarly segmented by direct or indirect measures (Ravid 1992; Pullan 1971, 247–248, 284, 427). Legal acts designed to eliminate or restrain outsiders’ bodies within the urban area served as acts of collective, ritual cleansing. They reassured Venetians that their body-city would soon be purged of disease and confusion; its singular politico-legal meaning restored. From out of the dissonance of a body-city in “disagreement with [it]self,” Venetian writers maintained, one could produce a synthetic, harmonious order. Paolo Paruta, for example, argued in his Discorsi politici (published posthumously

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in 1599) that “a state should keep every order from either rising too high or falling too low lest, like a tone that is either too flat or too sharp, it produce dissonance” (Bembo 1954; Bouwsma 1968, 271). Recent writings on global governance share something of Venetian writers’ preoccupation with the suppression of discord. In the name of convergence, scholars of global governance work to quell forces that they identify as immoderate, while affirming the fundamentality of particular institutional bodies, such as the WTO, the World Bank, the U.S. Securities and Exchange Commission, or Falk and Strauss’s global parliament (whether supportively or derisively). In Professor Coffee’s account, for example, the possibility of global convergence depends upon the extinguishment of the “European habit of ‘relationship-based investing’ ” and other parochial traditions. Professors Falk and Strauss similarly work to suppress forces of intemperance and unreason. They warn that the creation of a global parliamentary assembly will not occur “until sufficient pressure could be brought to bear by transnational democratic forces” upon those governments that will not allow elections to occur in their countries “on acceptable terms” (Coffee 1999; Falk and Strauss 2000, 214). Only through the vigorous containment of discordant forces and interests, it seems, may “global community” come into being. The discourse of global governance requires the labeling of certain realms as nondemocratic and regressive so that they may function as both spurs for, and tests of, the potential boundlessness of the democratic spirit. “Global” human rights norms, for example, demand the isolation of the extreme and the unknowing in order to make way for their normative redemption, as Falk’ and Strauss’s article demonstrates. Venetians reached out to the world, recognizing that they could not make “a most rapacious nation . . . without the aid of . . . the Levantine and Ponentine Jewish nations” (Pullan 1971, 569). Yet the strength and prosperity of Venice was seen to hinge upon the containment or temperance of Jewish and other “outsider” influence within the body of the city. Contemporary writings on global governance reach out to the world with similarly ambivalent impulses. In staking out “intermediate position[s]” and “oneworld[s]” in their work, Professors Coffee, Falk, Strauss, and Slaughter, for example, champion a disposition that “keep[s] every order from either rising too high or falling too low lest . . . it produce dissonance” (Bouwsma 1968, 271, quoting Paolo Paruta). The Persistent Pleasure of Disruption In Venetian writings, the ordering implications of the body-city metaphor were, nevertheless, elaborated in tension with countering

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allusions and impulses. Among these were Venetian writers’ apparent desire to savor the pleasure and dissonance of the body-city. An anonymous chronicler of sixteenth-century Venice reports, for example, that factional brawls known as the guerre dei pugni (wars of the fists) or battagliole (little battles) were held on Sundays and holidays on the bridges of Venice and that these were “loved and esteemed by all the Venetian people, as well as by foreigners” (Davis 1994, 4). In this context, the body-city metaphor seemed to take on an entirely different connotation. It suggested passion, violence, and physical contact rather than health, moderation, and physical separation. According to the said chronicler, these public brawls were representative of a people who “always lived unaccustomed to calmness [and were] easily reinfected with faction” (Davis 1994, 78). In the action of the battagliole, the image of the body-city of Venice as perpetually in conflict with itself reemerges. However, in this instance, legal attempts to mediate this conflict appear to have been half-hearted (Davis 1994, 130). The battagliole were outlawed by the Council of Ten in 1505, yet officially prearranged fights were organized to mark the visits of foreign dignitaries over the course of the sixteenth century (Davis 1994, 129, 208ff.). Moreover, the heads of fighting factions (caparioni) reportedly evaded the Lords of the Night by hiding “in the courts of the ambassadors, others in monasteries and the most secret houses, and this one or that one in the houses of the [noble] protectors of the famous” (Davis 1994, 152). Venetians and foreigners of all social classes participated in these public celebrations of the body-city’s physicality and factionalism and defended them by reference to customary law (Davis 1994, 17, 43, 53, 57, 82, 135–141). The sensuality and creative disharmony of the body-city were also celebrated through the exaltation of courtesans in Venetian writings. Antonio Brocardo is credited with an oration contending, “the manners and modes of courtesans, if they are properly understood, are the way that leads upwards to the understanding of God” (Masson 1976, 101). According to Georgina Masson in her study of Italian Renaissance courtesans, “women who had risen from a class hitherto regarded as outcasts, were now apostrophized as if they were goddesses, or even equated with saints” (Masson 1976, 15). Seductiveness and sexual skill were only partial elements of the courtesans’ appeal. In equal measure, courtesans were acclaimed for their colorful lifestyles and their ingenuity and playfulness with costume. These qualities were exemplified by their propensity to dress up in men’s clothes and the exotic animals with which they often traveled (Masson 1976, 9, 31).8

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In response to these celebrations of sensuality in some Venetian writings, Girolamo Priuli, among other Venetian writers, registered disapproval and concern. Priuli attributed the spread of moral corruption within Venice to the openness with which Venetians, including senators and other “high officials,” engaged in homosexual practices, linking this to Venetian political decline (Gilbert 1973, 275). Speeches by Doge Loredan (in office from 1501 to 1521) similarly attributed the decline in Venetian power (signified by the resumption of foreign control over the Terraferma) to the prevalence of immorality and extravagance within the city of Venice. Fear of moral degeneration and ensuing political emasculation occasioned the introduction of various initiatives for bodily restraint. In 1510, the Venetian Senate established a permanent magistracy of three provveditori sopra le pompe charged with responsibility for the prevention of “immoral and excessive expenditure.” In 1512, these provveditori issued a decree that reaffirmed and expanded existing laws regulating the public display of luxury, restricting expenditure on dress, jewelry, interior decoration, and marriage celebrations. This decree also banned the performance of certain foreign dances, including the “most shameless dance of the cap and other French dances full of lecherous and sinful gestures,” and prohibited the wearing of masks in city streets (Gilbert 1973, 277–280). Law, in this instance, was promulgated as a moderating force upon the expressive potential of the worldly body-city, restricting its movement and stripping it of embellishment. These legal measures reacted, in part, to the sense of confusion engendered by the “indulgent” practices described. The actions of street fighters, courtesans, and other costumed and playful Venetians blurred distinctions within the city. Courtesans, in all their finery, seemed interchangeable with gentlewomen. Foreigners and Venetians as well as rich and poor realigned along neighborhood lines for purposes of the battagliole, overrunning administrative bounds defined by the city. The preamble to a set of sumptuary laws enacted in 1543 registered this sense of confusion and reacted against it: [Courtesans could be seen] in the streets and churches, and elsewhere, so much bejewelled and well-dressed, that very often noble ladies and women citizens [of Venice], because there is no difference in their attire from that of the above-said women, are confused with them, not only by foreigners, but by the inhabitants [of Venice], who are unable to tell the good from the bad . . . therefore it is proclaimed that no prostitute may wear, nor have on any part of her person, gold, silver, or silk, nor wear necklaces, pearls or jewelled or plain rings, either in the ears or on their

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Law thus modified the bodily appearance of people in Venice in order to establish a clear distinction between “the good” and “the bad,” while acknowledging the apparent interchangeability of the two. Religious outsiders, in particular, posed as a convenient stand-in for the “bad.” A March 1517 decree required all Jews within the city to wear yellow hats and shortly thereafter, Jews were barred from wearing the ducal sleeves of professional men, even as they continued to provide professional services to the people of Venice (Pullan 1971, 488). Jewish bodies were marked so that the bodies of Christians might appear clean and virtuous in contrast. Yet the very regulation of dress in Venice conceded a dissonance to the body incommensurate with a singular, stable civic identity. By adopting dress restriction as a mode of civic regulation, Venetians were participating in the very performances against which they were ostensibly directing their efforts. In stripping away certain types of bodily embellishment and demanding others, Venetian law enfolded Venetians’ bodies in another garment professing to bear meaning. By speaking to people through the mode of dress, Venetian law foregrounded a mode of interaction that did not correlate to the powers of reason or the dictates of divine or human will. Venetians immersed themselves and their laws in the uncertainties of bodily expression, even as they sought to quell these uncertainties. Against this backdrop of ineffective (perhaps half-hearted) restraint, the body-city metaphor—taken from Contarini—may be recast. The “eyes” of the city may appear as those of willing spectators gorging themselves on the visual delights on offer within the city. The “limbs” might be envisaged as the sweaty shoulders of a fighter in the battagliole or the soft, plump arms of a courtesan. Rather than the eyes guiding and supervising the limbs, this configuration suggests the eyes being seduced by the limbs and both the eyes and the limbs taking pleasure in the eroticism of play and display. Venetian writings of the sixteenth century thus imported a host of images that did not fit within the model of temperance circulating within Venice at this time. The examples of contemporary global governance writing on which I have focused earlier likewise exhibit ambivalence—both repulsion and compulsion—toward those practices and people that they would regularize in the name of global governance. Professor Falk and Professor Strauss’s description of “noisy street protests . . . challenging the anti-democratic nature of international economic decisionmaking” seems to sound a note

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of longing. Could there similarly be a twinge of titillation in Professor Slaughter’s lineup of “Serbian soldiers, officers, and political leaders guilty of war crimes”? (Falk and Strauss 2000; Slaughter 2000). Like Venetian writings of the sixteenth century, contemporary works on global governance are oriented toward—one might say seduced by— those immoderate or outmoded forces that they work to distinguish, contain, or surpass. Professor Slaughter’s account of “judicial globalization” derives its sense of cogency and purpose from the imminent threat of “abuses of state power.” Professor Coffee’s predictions gain consequence from the prevalence of disparate “blockholder and cross-ownership systems” across Europe and Asia. Professors Falk and Strauss extract motivation from those “unrepresented . . . in the formation of global regulatory policy” (Slaughter 2000; Coffee 1999; Falk and Strauss 2000). In each case, the figures and situations in the margins of these accounts seem to exude more potency than those characters and scenarios that are ostensibly at these narratives’ cores—the Brussels bureaucrats and aging judges deciding questions of jurisdiction. Like Venetian works, these writings highlight the failings of “nondemocratic” constituencies as a means of promoting the “rightness” of those identified as “democratic.” Yet the tone in which they do so suggests some residual indecision. Professor Slaughter works hard to get excited about the prospects embodied by the latter. “What a vision[!]” she writes (Slaughter 2000). Yet ultimately, the force of these accounts seems to be derived (at least in part) from that by which they are most threatened— namely, those who are resistant to progressive, harmonizing trends. Conclusion: Globalism and Worldliness Writers in the sixteenth-century city of Venice asserted their city’s cultural and economic supremacy and political autonomy by staking out a divine realm on earth (O’Malley 2000). Venetians sought to demonstrate, in their worldly city, their capacity to “procure all things necessary to [humanity], not only to live as the animals do, but to live humanly: that is to say, with a certain elegance and dignity as required by the civil life that is proper to man” (Bouwsma 1968, 211, quoting Paolo Paruta). This would, it was hoped, eliminate the need for Venetians to choose between their divine and secular allegiances. Instead, they could have it all: the wealth and the virtue; trade with the Levant and membership of the Holy League. The fifteenth-century Venetian writer Giovanni Caldera argued, for example, that, as the Republican virtues underpinning Venetian government were identical to the cardinal virtues of Christian

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teachings, “obedience to the state was metaphorically obedience to the will of God . . . patriotism equaled piety” (Muir 1981, 16). The contemporary work in the field of global governance that I have examined in this chapter similarly entrenches the idolatry of “man” through a secular order of far-reaching extent. The space of global governance, as described in these writings, is a realm aspiring to be one of coherence and predestination. It is a space in which earthly divisions are to melt away before the final judgment of the market or the universal decrees of human rights. In this domain, the actions of governments, corporations, laborers, employers, even refugees are fused into preinscribed patterns of convergence. The global arena envisaged in these narratives is a secular space, yet it is all-encompassing on a scale more familiar as divine. One is no longer forced to choose (or perhaps even capable of choosing) as a political matter between convergence and divergence, resistance and conformity. One need only follow the momentum of human progress, working to repel or convert residual elements of intransigence and ignorance, in order to demonstrate one’s faith and to be assured of the inordinate power and safety of the faithful. The writings on global governance on which I have focused are forever working to create conditions under which such wholeness might seem possible—whether that union is to be achieved under the auspices of the market, by adherence to human rights, or by virtue of some theoretical scheme disclosing far-reaching networks of interpenetration. Paradoxically, this preoccupation with completeness inclines these writings toward that which defies this impulse. In order to enact the possibility of a convergent, democratic globalism, the looming presence of divergent, threatening anti-globalism must be cultivated and maintained. “Nondemocratic” outsiders are thus crucial, powerful figures in the narrative crafting of globalized sites in perpetual expansion. The drive toward unity with which much writing on global governance is inflected relies upon these peoples’ separation, while remaining enthralled by the fantasy of their conquest or combination en route to oneness. To paraphrase one of the quotes with which this chapter began, the world only promises to become global through the creation of slaves and monsters (Sartre 1967, 22). Writings on global governance thus demand the production and reproduction of ghettoes. In order to understand globalization as a coherent, integrated process susceptible to “governance,” one must engage in continual processes of conceptual and physical segregation. The concerns of the market are separated from the concerns of politics. People and ideas tainted with an institutional identity are distinguished from

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those associated with the authentic, truth-bearing “grassroots.” Human movement is differentiated from the movement of goods and capital. Concepts of “security” are divorced from perceptions of violence. Questions of “freedom” are set apart from questions of resource allocation. The “Third World” is delinked from the “First World,” and so on and so forth. Yet the written record of sixteenth-century Venice reminds us that the “original” ghetto was a product of a wide variety of activities and initiatives, not all of which worked toward closure or division. When we write and speak about global governance, we articulate similarly unresolved yearnings, and become implicated in the conflicts and disparities that these fuel. If, as this chapter has suggested, contemporary accounts of global governance seem to engender cravings for hierarchy in the face of uncertainty and diffusion, this may be a response learned over the course of the modern era. Neologisms notwithstanding, there may be more of global governance amid the tangled histories and habits of humanism than most contemporary writers care to admit. The goal of this chapter has been to begin to explore the ambiguous role that our modern political inheritance might play in contemporary patterns of thought. Among constitutions past, early modern Venetian constitutionalism is exemplary of efforts to unite the professedly freedom-seeking and tradeloving in a singular, self-sufficient order of reason. Yet it is indicative too of the contending impulses bound up in this effort: desires for purity and absolution; fears of corruption and dissent; delights in dissonance and disguise. Likewise, the will to govern and be governed cannot overcome the riotous sensations and forces at work in our understandings of globalism. The heralds of today may be proclaiming the dawning of a new era of global governance, but the carnival continues. Notes 1. This chapter derives from research submitted toward the Doctorate of Juridical Science (SJD) degree at Harvard University, awarded to the author in 2003. Closely related material appeared in Fleur Johns, “Global Governance: An Heretical History Play” Global Jurist: Advances (2004) 4 (2) Article 3. 2. Pragmatism refers here to claims and assumptions derived from the philosophical movement that emerged in the last decades of the nineteenth century, gained precedence during the progressive era of the early part of the twentieth century, and experienced a renaissance in the late twentieth century. In brief, pragmatism advocates a cooperative search for truth (or possibilities for truth) grounded in problem situations, in lieu of radical

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3.

4. 5.

6. 7.

8.

doubt or the pursuit of certainty. Action and perception are said to be rooted in unreflective beliefs—beliefs that encounter resistance and devastation in “the world.” The reconstruction of such beliefs in the face of worldly change depends, it is said, upon creative action against the established patterns of unreflective habit. Such creative action takes place in problem situations that demand resolution. Pragmatic truth can only be realized in these situations through a process of agreement or the success of an action, rather than through correspondence with a determined or determining reality. See generally Mead 1934; Peirce 1992; Dewey 1963; James 1907; Thayer 1981. Genealogical and evolutionary arguments about global governance include the contention that globalization germinated in the Renaissance (Robertson 1992, 58–59; Scholte 2000, 62–63; Dunning 1983, 86). Contrast arguments that little of note has changed over the recent period to distinguish “globalism” from prior states of being (Held 2000, 22–23; Scholte 2000, 18–19, 37–39; Hirst 1997; Logan 2000, 159). This chapter’s performative mode of history has been informed by Berman (1999); Foucault (1990); Frug (1980); Fustel de Coulanges (1873); Gordon (1984); Vico (1982). The Jews of Venice are, e.g., often referred to in this chapter en masse, a categorization upon which Venetians sometimes relied in regulating and segregating the Jewish population within the city (Calimani 1987). However the heterogeneity of the Jews of sixteenth-century Venice is evidenced by the philology of the Jewish-Venetian dialect. This was a distinct language composed of borrowings from Portuguese, Spanish, derivations from German, and a hybridization of Hebrew and Venetian (Fortis and Zolli 1979). Reference to the “Jews” thus obfuscates the variegated cultural and linguistic heritage, dissimilar religious rites, and divergent political attitudes of those gathered under this term. Venetians themselves recognized the eclecticism of Jewish identities within their city in their differential regulatory treatment of, and popular nomenclature for, the various groups comprising the city’s Jewry (Brandes 1997, 108–119). On the experiences of Jewish people in Venice during the sixteenth century, see generally Pullan (1971, 432–601); Pullan (1983); Roth (1930). On the publication, circulation and influence of Petrarch’s work in Renaissance Venice, see King (1986). According to Bouwsma, Contarini’s book was written in 1523 or 1524, though first published in 1543 (Bouwsma 1968, 145; cf. Gilbert 1967). For a brief discussion of the dilemmas confronted by Lewkenor and choices made by him in the course of translation, see Skinner (1989). On Contarini’s life, see Gleason (1993); Gilbert (1967). William Bouwsma notes that “the works of Contarini . . . were widely translated and went into many editions, [and] were [among]. . . the most important examples of a vast body of literature, both native and foreign, which for decades advertised the finished excellence of the Venetian constitution” (Bouwsma 1968, 160). Extravagance in bodily adornment and delight in disguise were not restricted to the courtesan class or to women. According to the merchant Girolamo Priuli, “[y]oung men made themselves look like women: they wore jewels;

96 / fleur e. johns they perfumed themselves; and their clothes exposed most of their naked bodies” (Gilbert 1973, 275). Young Venetian men organized themselves into social clubs that became known as compagnie delle calze (companies of stockings) in reference to the multicolored hose worn by members to display their affiliation to a particular club (Lane 1973, 253). In his popular courtly manual of instruction, Baldessar Castiglione recommended that courtiers “give variety to [their] lives by changing [their] activities . . . let [them] laugh, jest, banter, frolic, and dance” (Gundersheimer 1993, 156). Among the events held in Venice to celebrate Carnival, Muir describes a transvestite ballet sponsored by the German merchants of the Fondaco dei Tedeschi (Muir 1981, 166).

References Allen, Anita L., and Michael R. Seidl. 1995. Cross-Cultural Commerce in Shakespeare’s The Merchant of Venice. American University Journal of International Law & Policy 10: 837. Allen, Don Cameron. 1964. Doubt’s Boundless Sea: Skepticism and Faith in the Renaissance. Baltimore: Johns Hopkins Press. Anderson, Benedict. 1991. Imagined Communities: Reflections on the Origin and Spread of Nationalism. Rev. ed. London; New York: Verso. Anderson, Sarah ed, 1999. Views From the South: The Effects of Globalization and the WTO on Third World Countries. San Francisco: International Forum on Globalization. Bauman, Zygmunt. 1998. Globalization: The Human Consequences. New York: Columbia University Press. Bembo, Pietro. 1954 [1505]. Gli Asolani. Translated by Rudolf B. Gottfried. Bloomington: Indiana University Press. Berman, Nathaniel. 1999. In the Wake of Empire. American University International Law Review 14: 1521. Blumenkranz, Bernhard. 1961. Les juifs dans la commerce maritime de Venice. Revue des études Juives 120: 143. Botero, Giovanni. 1956 [1606]. The Reason of State and the Greatness of Cities (Ragione di stato; Delle cause della grandezza delle città). Translated by P. J. and D. P. Waley, Robert Peterson. New Haven: Yale University Press. Bourdieu, Pierre. 1984 [1979]. Distinction: A Social Critique of the Judgement of Taste (La Distinction: Critique sociale due jugement). Translated by Richard Nice. Cambridge: Harvard University Press. Bouwsma, William J. 1968. Venice and the Defense of Republican Liberty: Renaissance Values in the Age of the Counter Reformation. Berkeley: University of California Press. Branca, Vittore. 1973. Ermolao Barbaro and Late Quattrocento Venetian Humanism. In Renaissance Venice, edited by J. R. Hale, 218–243. London: Faber. Brandes, Francesa, ed. 1997. Venice and Environs: Jewish Itineraries, Places, History and Art. Marsilio: Regione del Veneto.

the globe and the ghetto / 97 Braudel, Fernand. 1984 [1979]. Civilization & Capitalism 15th—18th Century (Civilisation matérielle, économie et capitalisme: XVe-XVIIIe siècle). 3 Volumes. Translated by Siân Reynolds. New York: Harper & Row. Burckhardt, Jacob. 1958 [1929]. The Civilization of the Renaissance in Italy (Die Kultur der Renaissance in Italien). S. G. C. Translated by Middlemore from 15th German ed. New York: Harper & Row. Calimani, Riccardo. 1987. The Ghetto of Venice (Storia del ghetto di Venezia). Translated by Katherine Silberblatt Wolfthal. New York: M. Evans and Company. Cho, Sumi, and Robert Westley. 2000. Critical Race Coalitions: Key Movements that Performed the Theory. University of California Davis Law Review 33: 1377. Coffee, John C. Jr. 1999. The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications. 93 Northwestern University Law Review 93: 641. Contarini, Gasparo. 1599 [1543]. The Commonwealth and Government of Venice (Der magistratibus et republica Venetorum). Translated by Lewes Lewkenor. London: John Windet. Cozzi, Gaetano. 1973. Authority and Law in Renaissance Venice. In Renaissance Venice, edited by J. R. Hale, 293–345. London: Faber. Danaher, Kevin, and Roger Burbach. 2000. Globalize This! The Battle Against the World Trade Organization and Corporate Rule. Monroe: Common Courage Press. Davis, James C. 1970. Pursuit of Power: Venetian Ambassadors’ Reports on Spain, Turkey and France in the Age of Philip II, 1560–1600. New York: Harper & Row. Davis, Robert C. 1994. The War of the Fists: Popular Culture and Public Violence in Late Renaissance Venice. Oxford: Oxford University Press. Dewey, John. 1963. Freedom and Culture. New York: Capricorn Books. Dezalay, Yves, and Bryant G. Garth, eds. 2002. Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy. Ann Arbor: University of Michigan Press. Dunning, John H. 1983. Changes in the Level and Structure of International Production: The Last One Hundred Years. In The Growth of International Business, edited by M. Casson, 84–139. London; Boston: Allen & Unwin. Falk, Richard, and Andrew Strauss. 2000. On the Creation of a Global Peoples Assembly: Legitimacy and the Power of Popular Sovereignty. Stanford Journal of International Law 36: 191. Fink, Zera S. 1962. The Classical Republicans: An Essay in the Recovery of a Pattern of Thought in Seventeenth-Century England. 2nd ed. Evanston: Northwestern University Press. Fortis, Umberto, and Paolo Zolli. 1979. La parlata giudeo-veneziana. Assisi: Beniamino Carucci Editore. Foucault, Michel. 1990 [1980]. A History of Sexuality (Histoire de la sexualité). Translated by Robert Hurley. 3 Vols. New York: Vintage. Frug, Gerald. 1980. The City as a Legal Concept. Harvard Law Review 93: 1059.

98 / fleur e. johns Fustel de Coulanges, Numa Denis. 1873 [1864]. The Ancient City: A Study of Religion, Laws and Institutions of Greece and Rome (La cité antique). Translated by W. Small. Boston: Lee and Shepherd. Geanakoplos, Deno J. 1962. Greek Scholars in Venice: Studies in the Dissemination of Greek Learning from Byzantium to Western Europe. Cambridge: Harvard University Press. Genoa Social Forum Announcement. 2001 [online]. Available on the World Wide Web: http://www.genoa-g8.org/gpf-eng.htm. Gentilcore, David. 1997. The Fear of Disease and the Disease of Fear. In Fear in Early Modern Society, edited by W. G. Naphy and P. Roberts, 184–208. Manchester: Manchester University Press. Gilbert, Felix. 1967. The Date of Composition of Contarini’s and Giannotti’s Books on Venice. XIV Studies in the Renaissance XIV: 172–84. ———. 1973. Venice in the Crisis of the League of Cambrai. Renaissance Venice, edited by J. R. Hale, 274–494. London: Faber. Gleason, Elizabeth G. 1993. Gasparo Contarini: Venice, Rome, and Reform. Berkeley: University of California Press. Gordon, Robert W. 1984. Critical Legal Histories. Stanford Law Review 36: 57. Grendler, Paul F. 1977. The Roman Inquisition and The Venetian Press, 1540–1605. Princeton: Princeton University Press. Gundersheimer, Werner, ed. 1993 [1956]. The Italian Renaissance. 2nd ed. Toronto: University of Toronto Press. Hale, John R., ed. 1973. Renaissance Venice. London: Faber. Hall, Rodney Bruce, and Thomas J. Biersteker. 2003. The Emergence of Private Authority in Global Governance. Cambridge; New York: Cambridge University Press. Hardt, Michael, and Antonio Negri, 2000. Empire. Cambridge: Harvard University Press. Heger Boyle, Elizabeth and John W. Meyer. 2002. Modern Law as a Secularized and Global Model: Implications for the Sociology of Law. In Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy, edited by D. Yves and B. G. Garth, 65–95. Ann Arbor: University of Michigan Press. Held, David, ed. 2000. A Globalizing World? Culture, Economics, Politics. London: Routledge. Held, David, and Anthony McGrew, eds. 2002. Governing Globalization: Power, Authority, and Global Governance. Cambridge: Polity Press. Hewson, Martin, and Timothy J. Sinclair, eds. 1999. Approaches to Global Governance Theory. Albany: State University of New York Press. Hirst, Paul. 1997. The Global Economy: Myths and Realities. International Affairs 73: 409. Independent Media Center Network News. 2001. “Genoa G8: What is Really Happening?” [online] [ July 21, 2001]. Available on the World Wide Web: http://www.indymedia.org. James, William. 1907. Pragmatism: A New Name for Some Old Ways of Thinking. New York: Longmans, Green & Co.

the globe and the ghetto / 99 Jones, Martin D. W. 1995. The Counter-Reformation: Religion and Society in Early Modern Europe. Cambridge; New York: Cambridge University Press. King, Anthony D. 1990. Global Cities: Post-Imperialism and the Internationalization of London. London: Routledge. King, Margaret L. 1986. Venetian Humanism in the Age of Patrician Dominance. Princeton: Princeton University Press. Kirton, John J., and George M. von Furstenberg, eds. 2001. New Directions in Global Economic Governance: Managing Globalisation in the Twenty-First Century. Aldershot: Ashgate. Lane, Frederic C. 1973. Venice: A Maritime Republic. Baltimore: Johns Hopkins University Press. Logan, John R. 2000. Still a Global City: The Racial and Ethnic Segmentation of New York. In Globalizing Cities: A New Spatial Order? edited by P. Marcuse and R. van Kempen, 158–185. London; Cambridge: Blackwell Publishers. Machiavelli, Niccolò. 1981 [1513]. The Prince (Principe). Translated by Daniel Donno. New York: Bantam Books. Mackenney, Richard. 1989. The City State, 1500–1700: Republican Liberty in an Age of Princely Power. Basingstoke: Macmillan. Mallett, Michael. 1973. Venice and Its Condottieri, 1404–54. In Renaissance Venice, edited by J. R. Hale, 121–145. London: Faber. Martin, John. 1985. Out of the Shadow: Heretical and Catholic Women in Renaissance Venice. Journal of Family History 10: 21. ———, 1987a. Popular Culture and the Shaping of Popular Heresy in Renaissance Venice. In Inquisition and Society in Early Modern Europe, edited by S. Haliczer, 115–128. London: Croom Helm. ———, 1987b. The Roman Inquisition and the Criminalization of Religious Dissent in Early Modern Venice. Quaderni storici 66: 777. Masson, Georgina. 1976. Courtesans of the Italian Renaissance. New York: St. Martin’s Press. Mattingly, Garrett. 1962 [1955]. Renaissance Diplomacy. Baltimore: Penguin Books. McNeill, William Hardy. 1989 [1976]. Plagues and Peoples. New York: Doubleday. ———, 1974. Venice: The Hinge of Europe, 1081–1797. Chicago: University of Chicago Press. Mead, George Herbert. 1934. Mind, Self and Society. Chicago: University of Chicago Press. Mendes, Errol, and Ozay Mehmet, eds. 2003. Global Governance, Economy and Law: Waiting for Justice. London: Routledge. Monter, E. William, and John Tedeschi. 1986. Toward a Statistical Profile of the Italian Inquisitions, Sixteenth to Eighteenth Centuries. In The Inquisition in Early Modern Europe: Studies on Sources and Methods, edited by G. Henningsen, J. Tedeschi, and C. Amiel, 130–157. Dekalb: Northern Illinois University Press. Muir, Edward. 1981. Civic Ritual in Renaissance Venice. Princeton: Princeton University Press. Mullett, Michael A. 1999. The Catholic Reformation. London: Routledge.

100 / fleur e. johns Neyer, Jürgen. 1998. Binding Territoriality and Functionality? Globalization Meets the Law. In Emerging Legal Certainty: Empirical Studies on the Globalization of Law, edited by V. Gessner and A. C. Budak, 401–426. Aldershot: Dartmouth Publishing Company. Nietzsche, Friedrich. 2000 [1886]. Beyond Good and Evil: Prelude to a Philosophy of the Future. Basic Writings of Nietzsche. 179–435. Translated by Walter Kaufmann. New York; Toronto: Random House. Nye, Joseph S. Jr., and John D. Donahue, eds. 2000. Governance in a Globalizing World. Washington, DC: Brookings Institution Press. O’Brien, R. A. M. Goetz, J. A. Scholte, and M. Williams, eds. 2000. Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements. Cambridge; New York: Cambridge University Press. O’Malley, John. 2000. Trent and All That: Renaming Catholicism in the Early Modern Era. Cambridge: Harvard University Press. Paruta, Paolo- 1852a [1579]. Della perfezione della vita politica. Opere Politiche di Paolo Paruta precedute da un discorso di C. Monzani e dallo stesso ordinate e annotate. I:33–405. Firenze, F. Le Monnier. ———. 1852b [1605]. Historia vinetiani. Opere Politiche di Paolo Paruta precedute da un discorso di C. Monzani e dallo stesso ordinate e annotate. II:1–371. Firenze, F. Le Monnier. Pasha, Mustapha Kamal, and Ahmed I. Samatar. 1996. The Resurgence of Islam. In Globalization: Critical Reflections, edited by J. H. Mittelman, 187–201. Boulder: Lynne Rienner Publishers. Peirce, Charles Sanders. 1992. The Essential Peirce: Selected Philosophical Writings, edited by N. Houser and C. Kloesel. 2 Vols. Bloomington: Indiana University Press. Petrarch, Francesco. 1966. Letters. Translated by Morris Bishop. Bloomington: Indiana University Press. Poliakov, Leon. 1977. Jewish Bankers and the Holy See from the Thirteenth to the Seventeenth Centuries. London; Boston Routledge & K. Paul. Powell, Colin L. 2004. “What We Will Do in 2004” The New York Times. January 1, 2004. Available from World Wide Web at http://www.state. gov/secretary/rm/27644.htm. Prodi, Paolo. 1973. The Structure and the Organization of the Church in Renaissance Venice: Suggestions for Research. In Renaissance Venice, edited by J. R. Hale, 409–430. London: Faber. Pullan, Brian. 1971. Rich and Poor in Renaissance Venice: The Social Institutions of a Catholic State to 1620. Oxford: Basil Blackwell; Cambridge: Harvard University Press. ———. 1983. The Jews of Europe and The Inquisition of Venice, 1550–1670. Oxford: Blackwell. Raffini, Christine. 1998. Marsilio Ficino, Pietro Bembo, Baldessare Castiglione: Philosophical, Aesthetic, and Political Approaches in Renaissance Platonism. New York: P. Lang. Ratnar, Romesh, “The Anarchists’ Ball” Time Magazine. 19 July 2001. Available on the World Wide Web at http://www.time.com/time/world/article/ 0,8599,168274,00.html.

the globe and the ghetto / 101 Ravid, Benjamin C. I. 1978. Economics and Toleration in Seventeenth Century Venice. The Background and Context of the Discorso of Simone Luzzatto. Jerusalem: American Academy for Jewish Research. ———. 1987. The Legal Status of the Jews in Venice to 1509. Proceedings of the American Academy for Jewish Research 54: 169–202. ———. 1992. From Geographic Realia to Historiographical Symbol: The Odyssey of the Word Ghetto. In Essential Papers on Jewish Culture in Renaissance and Baroque Italy, edited by D. B. Ruderman, 373–385. New York: New York University Press. Robertson, Roland. 1992. Globalization: Social Theory and Global Culture. London: Sage. Rose, Gillian. 1996. Place and Identity: A Sense of Place. In A Place in the World? Places, Cultures and Globalization, edited by D. Massey and P. Jess, 87–118. Oxford: Oxford University Press. Roth, Cecil. 1930. History of Jews in Venice. Philadelphia, The Jewish Publication Society of America. ———. 1948. The House of Nazi; The Duke of Naxos. Philadelphia, Jewish Publication Society of America. Russell, Jocelyne G. 1992. Diplomats at Work: Three Renaissance Studies. Gloucestershire; Wolfeboro Falls: A. Sutton Publishers. Sarpi, Paolo. 1940 [1624]. Istoria dell’Interdetto e altri scritti editi ed inediti. Giovanni Gambarin and Manlio Duilio Busnelli eds. 3 Vols. Bari, G. Laterza. Sartre, Jean Paul. 1967. Introduction to Frantz Fanon. The Wretched of The Earth. Translated by Constance Farrington. 2nd ed. London: Penguin Books. Sassen, Saskia. 1999. Guests and Aliens. New York: The New Press. Scholte, Jan Aart. 2000. Globalization: A Critical Introduction. New York: St. Martin’s Press. Setton, Kenneth. 1984. The Papacy and The Levant, 1204–1571. 4 Vols. Philadelphia: American Philosophical Society. Skinner, Quentin. 1989. The State. In Political Innovation and Conceptual Change, edited by T. Ball, J. Farr, and R. I. Hanson, 90–131. Cambridge: Cambridge University Press. Slaughter, Anne-Marie. 2000. Judicial Globalization. Virginia Journal of International Law 40: 1103. ———. 2002. Breaking Out: The Proliferation of Actors in the International System. In Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy, edited by Y. Dezalay and B. G. Garth, 12–36. Ann Arbor: University of Michigan Press. Snyder, Francis. 1999. Global Economic Networks and Global Legal Pluralism, Florence: European University Institute Working Paper Law No. 99/6. ———. 1978. Illness as Metaphor. New York: Farrar, Straus, and Giroux. Sontag, Susan. 1988. AIDS and Its Metaphors. New York: Farrar, Straus, Giroux. Stow, Kenneth R. 1992. The Consciousness of Closure: Roman Jewry and Its Ghetto. In Essential Papers on Jewish Culture in Renaissance and Baroque Italy, edited by D. B. Ruderman, 386–400. New York: New York University Press.

102 / fleur e. johns Text of the Genoa G8 Summit Meeting 2001. [Online]. Available from World Wide Web: http://edition.cnn.com/2001/WORLD/europe/07/22/summit.text/. Thayer, Horace S. 1981. Meaning and Action: A Critical History of Pragmatism. 2nd ed. Indianapolis: Hackett Publishing Co. Vico, Giambattista, 1982. Vico: Selected Writings. Edited and translated by Leon Pompa. Cambridge; New York : Cambridge University Press.

C h ap t e r 4 Democratizing Global Governance: Beyond the Domestic Analogy * Heikki Patomäki

Introduction Criticism of global governance leads to the search for alternatives. Would it be possible to make systems of global governance more responsive to the most salient problems of humanity, such as poverty and oppression, ecological threats and disasters, and the enormous destructive powers of modern weapons systems? How could the systems of governance be made more responsive? Would it be possible to break the dual hegemony of neoclassical economics and the United States, and refashion the principles of global economic governance? What should these alternative principles be? Some may conceive the problem of responsiveness only at the level of substantial policies. If we only could reprioritize and allocate more resources to developmental or environmental policies, for instance, things would turn out much better. Or, perhaps the main problem is to substitute a better economic theory for the false orthodoxy of neoclassical economics. This raises the question of change. There seem to be obstacles to changes. Not everything is possible. Twenty-five years of reports on better global governance have not resulted in better governance (cf. Patomäki and Teivainen 2004: chs. 1–4). One begins to speculate as to why. Perhaps at the heart of the problem lie relations of domination and mechanisms of power that would somehow seem to prevent changes from happening. Or perhaps those social forces arguing for changes are not powerful enough. How can this be remedied? Should the relevant relations of power be restructured to make actors more equal? Or should the weaker actors be empowered? In other words, should global governance be democratized?

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Many have also realized that the reforms of the 1980s and 1990s— including making the United Nations (UN) system financially accountable, turning the GATT into the WTO, and using the debt problem to consolidate the supremacy of the Bretton Woods institutions—have amounted to further deepening and entrenchment of neoliberalism. By regulating and controlling governments, neoliberal global governance delimits the area of democratic decision-making within states. If this is seen as a problem, there are two main possibilities. Either global governance should be reduced in scope and power, or democratized, or both. The quest to democratize global governance is thus emerging as the key issue of world politics. However, this quest involves deep conceptual problems. What does democratic governance mean? How could we get from the current situation toward a more democratic system of global governance? How could we maintain and develop the would-be democratic system of governance? Indeed, who are “we,” where should “we” be going, and what should “we” do to get there? Perhaps the most articulate response to the quest to democratize global governance is the theory of cosmopolitan democracy, as developed by David Held and his associates (Held 1991, 1995; Archibugi and Held 1995; Archibugi et al. 1998; McGrew 1997; Holden 1999). Held has developed in great detail a model of cosmopolitan democratic governance to be realized in multiple layers (from global to local) and exercised by democratized, overlapping authorities. In what follows I shall discuss the problems of Held’s account of cosmopolitan democracy and lay out a critical realist1 alternative to it. Although Held’s way of framing the problem and in particular some of his concrete proposals remain useful, the spatio-temporal assumptions of his model are deeply flawed.2 This essay is an argument for overcoming the domestic analogy according to which the experience and institutions of modern, Western men in domestic polity can and should be applied to the society of states or the world as a whole (cf. Bull 1977, 46–47). What is needed instead is a realist theory of peaceful democratic emancipation as an open-ended process. This essay is also an argument against totalizing blueprints that are not grounded in realist analysis of the relevant context, its concrete embodied actors, its social relations and mechanisms, and its transformative possibilities. “We” is relational. In any concrete context, self-other relations are both materially grounded (i.e., embodied and presuppose material resources) and dynamic (i.e., learning and changes take place in interaction with others). Both explanatory social criticism and the design of concrete utopias have to take this general condition as their starting point.

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The Model of Cosmopolitan Democracy David Held (1995, 145–146) maintains citizens “should be able to choose freely the conditions of their own association” and determine the “form and direction of their polity.” This implies certain rights and obligations from the side of citizens and “a common structure of political action” that is, “a ‘neutral’ basis of relations and institutions which can be regarded as impartial or even-handed with respect to their personal ends, hopes and aspirations” (Held 1995, 153–156). Held’s (1995, 99) basic argument for extending the reach of the principles of democracy beyond state governance is that “there are disjunctures between the idea of the state as in principle capable of determining its own future, and the world economy, international organizations (IOs), regional and global institutions, international law and military alliances which operate to shape and constrain the options of individual nation-states.” Over time, due to globalization, the discrepancy between (i) the idea of democratic self-determination within a nation-state and (ii) the realities of regional and global flows and transnational sites of power has grown worse. Moreover, state capabilities have also been undermined. Territorial boundaries are therefore arguably increasingly insignificant in so far as social activities and relations no longer stop—if they ever did— at the “water’s edge” . . . The intensification of regionalization and globalization, particularly in the post-Second World War era, has contributed simultaneously to an expansion of the liberal democratic state’s functional responsibilities and to an erosion of its capacity to deal effectively alone with many of the demands placed upon it. (Held 1995, 121)

Figure 4.1 illustrates the assumptions of traditional democratic theory and makes the fundamental problem of national–territorial democracy very clear (Held 1995, 224–225). Mainstream democratic theory has assumed a symmetrical and congruent relationship between the allegedly representative political decision-makers and the recipients of political decisions, at two crucial points. The assumption is that both accountability of decision making and the consequences of decisions are confined to citizens in a delimited territory. In other words, democratic theory has been based on the metaphor of a territorial state as a spatial container, with a clear-cut inside/outside distinction. Held sets the contemporary realities against this metaphor. In most cases, most states are rule takers rather than rule makers (see Braithwaite and Drahos 2000). In the multilateral and often hierarchical systems of

106 / heikki patomäki Decision makers: representatives, leaders, etc.

Accountability

Output (Decisions and their consequences)

Citizen-voters

Figure 4.1

The people in a bounded territory

Assumptions of symmetry and congruence

regional and global governance, decision makers are legally and/or politically accountable for their decisions, not only to their citizens, but also to the great power and various IOs. Moreover, the territorial borders of states do not bind the impact of decisions or their often unintended consequences. (Inter)dependencies of all sorts ensure that many decisions have impacts across borders, some on neighboring states, some regionally, some globally. Many states and other actors, such as transnational corporations, are positioned in such a way that whatever they do will have widespread impacts independent of their intentions. This is one of the senses of the term “structural power.” Under these circumstances, it seems obvious that the ideals of autonomy and democracy can only be realized in a cosmopolitan setting. Since many sites of power are transnational or international, “democratic public law within a political community requires democratic law in the international sphere” (Held 1995, 227). Inspired by Kant, Held (1995, 227) calls this cosmopolitan democratic law, which he conceives as a “necessary complement to the unwritten code of existing national and international law, and a means to transform the latter into a public law of humanity.” Held develops a detailed model of cosmopolitan democracy. It “is a system of diverse and overlapping power centres, shaped and delimited by democratic law” (Held 1995, 234–235). The first step toward making this model real would be to develop the UN system to live up to its Charter, and even extending the charter’s mandate. The main point would be to cultivate the rule of law and impartiality—thus challenging the current prevalence of double standards—in international affairs (Held 1995, 269).

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The first priority is to establish components of cosmopolitan democratic law, for instance, by extending the reach of international courts and changing the constitutions of national and international assemblies. Held also envisages the widespread use of transnational referenda and the establishment of a global assembly (a world parliament). First, the world parliament acts within the UN system, and then becomes independent. Although only a “framework-setting institution,” the global assembly could become “an authorative centre for the examination of those pressing global problems which are at the heart of the very possibility of the implementation of cosmopolitan democratic law,” such as health and disease, food supply and distribution, the debt problem and the instability of global financial markets (Held 1995, 274). Held’s plan also incorporates the strengthening of civil society and regional organizations as well as democratization at various sites of power, including those of the global political economy. Last but not least, Held also argues, “it is dangerously over optimistic to conceive the cosmopolitan model without coercive powers, because tyrannical attacks against democratic law cannot be ruled out.” (Held 1995, 276). Cosmopolitan democracy seems to have enemies as well. Post-Structuralist Interrogations: Is the Model of Cosmopolitan Democracy Just Another Potentially Dangerous Political Blueprint? The post-structuralist suspicion is that the model of cosmopolitan democracy is just another modern political blueprint. As such, it is also potentially dangerous. Held’s cosmopolitan solution is based on the liberal distinction between rightness (justice) and goodness: “Democracy has an appeal as the ‘grand’ or ‘meta-political’ narrative in the contemporary world because it offers a legitimate way of framing and delimiting the competing ‘narratives’ of the good” (Held 1995, 282). In fact, he goes even further and claims that: . . . without a politics of coercion or hegemony, the only basis for nurturing and protecting cultural pluralism and a diversity of identities is through the implementation of cosmopolitan democratic law: the constructive basis for a plurality of identities to flourish within a structure of mutual toleration, development and accountability. (Held 1995, 283, italics added)

But this “only basis” would presuppose that cosmopolitan democratic law is neutral with respect to different values. This kind of procedural universalism is problematic. There is no neutral procedure. The idea of

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cosmopolitan democracy as the “grand meta-narrative” thus gives rise to suspicions in many different ways. First, the project of cosmopolitan democracy is, amongst other things, about building a sense of identity of citizenry as a whole. Then the problem becomes one of transforming people and collective actors to accord with the preferred democratic world order. It is also clear that differences are inevitable between the states and areas with respect to their progress toward the requirements of the model of cosmopolitan democracy, and that many actors, including many states, would also straightforwardly oppose such a development. The ideal of cosmopolitan democracy might then give rise to a definition of higher and lower beings—others—located territorially in different parts of the world. This implies moral and political distance from the different others (on the axes of self-other relations, see Todorov 1984, 185). The others may then be treated as innocents to be converted, as amoralists to be excommunicated or simply as outsiders (the faraway antidemocrats) who can impose a threat of violence on us, that is, the potential enemies (cf. Connolly 1989, 325). Thus there also arises the perceived need for coercive powers to “protect” the territory of cosmopolitan democracy. Moreover, although the move from a national–territorial definition of democracy toward the “all-affected” principle seems right, the “allaffected” principle takes the form of instituting new, permanent, territorial layers of government (see Saward 2000, 34). It is for this reason that Walker (1995, 34), for instance, complains that the whole edifice of cosmopolitan democracy is based on a simplistic hierarchical account of layers, giving rise to a “great chain of beings” metaphor, but at first assuming the form depicted in figure 4.2. In this model, the principles of representation and accountability remain territorial, although the

Global

Regional

National Local

Figure 4.2 democracy

The hierarchy of territorial layers in the model of cosmopolitan

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territorial scope is expanded to cover the world as a whole—or at least the democratic part of the world. The hierarchy of territorial layers in the model of cosmopolitan democracy is also the logical outcome of conceiving democratic representation exclusively in the modern European way. In this conception, only a well-defined territorial area can spawn and elect representatives. The wider the spatial reach of the democratic community, the more there must also be constituencies. These can then be combined into bigger communities only by forming hierarchically higher layers of organization, corresponding to wider territorial area (e.g., municipal council—national parliament—regional parliament—world parliament). However innocent this may sound, if we take the modern European conception of democratic representation for granted, this conception also excludes for instance, overlapping relations of authority or cross-cutting political spaces. The territorial conception of political space has far-reaching ethico-political consequences. It establishes clear-cut boundaries between people. Those outside the land area are physically—and thus totally— excluded. Political space becomes a container with an absolute inside and outside. Those outside the hierarchically highest level of organization pose potential problems to the insiders, who may feel potentially exploited or threatened by them. Very often, as Connolly (1995, xxii) has explained, “territory is sustaining land occupied and bounded by violence. By extension, to territorialize anything is to establish exclusive boundaries around it by warning other people off.” There is a further problem. Held’s model of cosmopolitan democracy also makes standard Western assumptions about linear world historical time. The assumption of linear time can be explicated as follows. There are three universal primary metaphors that conceptualize states of affairs and changes in terms of basic spatial movements: (i) “Remaining In A State Is Going In The Same Direction”; (ii) “Changing Is Turning”; and (iii) “Long-Term Activities (Projects) Are Journeys.”3 At the time of the French Revolution, an additional deep assumption emerged: History is expected to be a movement toward something better, toward the ultimate destination (for the relevant conceptual history, see Koselleck 1983). Together these three primary metaphors and the deep Enlightenment assumption constitute a vision of a linear world historical time. The specific form that this vision assumes in Held’s model of cosmopolitan democracy is depicted in figure 4.3. Note that as Better Is Up (another universal primary metaphor), the movement is also from lower to higher levels. This also gives rise to the hierarchy of beings (“great chain of beings”).

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The era of centralized nation-states — centralized control of means of violence & territory — clear–cut inside/outside — Westphalian system

The era of cosmopolitan democracy Globalization erodes nation-states (UN Charter as a transition era)

Modernity emerges Medieval era — multiple overlapping authorities with weak administrative capabilities

Figure 4.3

Linear time in the theory of cosmopolitan democracy

A consequence of this conception of linear time is a twofold eurocentrism. First, the history of Europe is simply presented as the history of the entire world. It is not only that the great American or African or Eastern—including Chinese and Indian—civilizations have no role to play in this account but also that the “era of centralized nation-states” is an abstraction and idealization of some selected European and, later, American experiences exclusively. The expansion of the capitalist world economy and the complicated colonial practices of governance are ignored, although they were essential parts of the complexes that led to the original European expansion and to the gradual and dialectical transformations elsewhere on the planet (see Barkawi and Laffey 2001). Second, as a special instance of this eurocentrism, cosmopolitan democracy comes to be modeled on—and is also idealized and abstracted from— the process of European integration. Indeed, Held’s model has been explicitly inspired by the European integration process, although he does not always acknowledge this in his theoretical texts.4 By exposing these simple, misleading, and also potentially dangerous assumptions of time and space, post-structuralist interrogations shed a shadow of suspicion over the entire project of building “cosmopolitan democracy.” However, Connolly, Walker, and other post-structuralists do not necessarily oppose the idea of global democracy per se. To the contrary, Connolly (1991, 1995, ch. 5), in particular, has been among the first to question the territorial assumptions behind the standard accounts of democracy, arguing that democracy should be de-territorialized and globalized; Walker (1993, ch. 7) has also explored these issues.

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Moreover, Connolly in particular has also taken some steps toward outlining a more concrete alternative. Instead of providing a detailed blueprint of future institutional arrangements, he advocates a strategy based on (i) democratic politics of problematizing and questioning the relations of identity and difference on which any territorial state is founded; and (ii) mobilizing and legitimizing those “democratic energies already exceeding the boundaries of the state” (Connolly 1995, 149ff.). Connolly thus focuses on the ethical problems of the open-ended process of global democratization. He also emphasizes that democracy is also a cultural condition that “encourages people to participate in defining their own troubles and possibilities” (Connolly 1995, 153). Democratic theory cannot stay outside this open-ended process, imposing its own categories and visions upon others (including those literally or metaphorically outside modern Europe), rather than engaging with the categories and aims of concrete people and movements. A Critical Realist Interrogation: The Consequences of the Split between Moral Reason and the World From a critical realist perspective, there is a further problem in the cosmopolitan theory of democracy. In many ways, Held’s account of cosmopolitan democracy merely updates and complements Immanuel Kant’s moral theory of peace and human development. Thus Held has inherited the Kantian dichotomy between moral reason and the phenomenal world. Held’s basic argument can be summarized as follows: HELD: RG (reality of globalization) & IA (ideals of autonomy) → CD (cosmopolitan democracy)

In this inference, the implication (→) also includes a moral obligation to realize the model of cosmopolitan democracy. The argument is analogical to Kant’s argument for perpetual peace: KANT: SW (Hobbesian “state of war”) & IA (ideals of autonomous reason) → PP (perpetual peace)

Logically, this seems to imply the need for a new social contract that once and for all would establish the desired state of global affairs (perpetual peace or cosmopolitan democracy). Kant in fact had the idea that an international conference should be convened to establish the legal principles of perpetual peace and a league of nations. Although Held distinguishes

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between short- and long-term objectives, he must have something similar in mind, for at present only sovereign states can enact international law. Kant’s ontological dilemma stems from his acceptance of the empiricist account of social reality. Although trying to provide a philosophical alternative to the empiricism of David Hume, Kant nonetheless concurs with Hume that empirical science is basically about a systematic analysis of regular sense-impressions of contiguity and succession between A and B. Kant thus assumes that the world of phenomena consists of constant conjunctions between As and Bs. In contrast, Kant’s moral and critical reason is autonomous and free, and, by implication, disembodied. There is thus a split between the world and moral reason. Kant’s problem was that this kind of moral reason can do very little to change determinist chains of constant conjunctions in the world of phenomena. What practical use was his argument for perpetual peace? Kant was thus at pains to demonstrate that it is at least possible to assume a teleological “cunning of nature” that will lead toward the formation of a league of nations and that there are all kinds of “secret mechanisms” that would eventually help to establish and maintain the legal order of perpetual peace. Held seems to be repeating the fundamental antinomies of Kant. However, his theory is in fact thinner than Kant’s in its response to the suspicion “that may be true in theory but is of no practical use” (cf. Kant 1983 [1793]). Held is concerned with detailed prescriptions about how global governance should be organized but has very little to say about who could (or would like to) realize his vision, under what circumstances, and with what consequences. There are only two brief passages in his Democracy and the Global Order that would seem to address this problem. They make essentially the same argument: To lay out the objectives of a cosmopolitan model of democracy is not to claim that they can all be immediately realized—of course not! But who imagined the peaceful unification of Germany just a few years ago? Who anticipated the fall of the Berlin Wall and the retreat of communism across Central and Eastern Europe? The political space for a cosmopolitan model of democracy has to be made—and is being made by the numerous transnational movements, agencies and institutional initiatives pursuing greater co-ordination and accountability of those forces which determine the use of the globe’s resources, and which set the rules governing transnational public life. (Held 1995, 281)

This argument consists of two parts: (i) surprises are possible; and (ii) there are already actors who are pursuing goals compatible with those

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of the model of cosmopolitan democracy. However, besides being rather vague about the reasons to believe that a fundamental global transformation toward the desired direction is possible, Held also remains silent on how his vision could or should be realized in practice. Held’s silence is not an accident, but a direct consequence of the Kantian antinomies inherent in his account. A criticism of these antinomies is not an argument against global democracy per se. It is, however, an argument against totalizing blueprints that are not grounded in realist analysis of the relevant context, its concrete embodied actors, its social relations and mechanisms, and its transformative possibilities. Reintroducing Real Geo-History: Time, Space and the Process of Peaceful Democratic Emancipation Held’s starting point is mostly well taken. Democracy is also about collective self-determination by equal and free citizens, about autonomous determination of the conditions of collective association. As Held argues, the conventional assumptions of symmetry and congruence do not hold. Even in Western Europe, territorial states have never really been spatial containers, with a clear-cut inside/outside distinction. In spite of modern European preconceptions, territorial societies and states have developed as parts of wider wholes, in particular the international society and expanding capitalist world economy. Moreover, Held is probably also right in claiming that recent developments—often associated with the vague catchword “globalization”—have made a real qualitative difference (cf. the debate between Hirst and Thompson 2000; Perraton 2000). Thus the assumptions of symmetry and congruence hold even less today than they did in the past. Held’s model of cosmopolitan democracy is nonetheless built on misleading, even if deeply rooted, accounts of time and space, which tend to give rise to problematic and potentially violent self–other relations. Moreover, repeating the antinomies of Kant, the model does not include any account of transformation from here (i.e., somewhere in between the Westphalian and Charter systems) to there (i.e., cosmopolitan democracy). In fact, because the designated endpoint of this journey appears problematic and ill-defined, are there really good reasons to start this particular journey in the first place? Or would it be better to define the coordinates of the movement toward global democratic governance in terms drastically different to those of Held? Indeed, there is an alternative. A critical realist conception of time, space, and peaceful process of democratic emancipation can overcome

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the simple territorial spatiality, linear history, potentially dangerous self–other relations and Kantian antinomies of the model of cosmopolitan democracy. What emerges instead of a model of cosmopolitan democracy is a vision of an open-ended process of global democratization produced causally by concrete—embodied and relational—actors, who will also have to address the problem of violence in their own categories and being. This vision presupposes another project, namely that of building a global security community. It also presupposes the possibility of world politics in the wide sense of the term. Space The first notion to be overcome is the mythical view that, once upon a time, the world was governed by exclusive sovereign states that were like spatial containers, with strict inside/outside borders. A few modern sovereign states evolved in Western Europe in the seventeenth and eighteenth centuries (with parallel but dependent developments in North America), a few others elsewhere in the Americas and Europe in the nineteenth century. In the wake of the French Revolution and the global success of European modernization, some non-European empires in decline such as Turkey and China or feudal societies such as Japan started to mimic European developments and build similar state structures in the course of the nineteenth century. At the time when Kant articulated the international problematic, the principle of free trade was already legitimizing both the further expansion of capitalism and the British Empire (and also to a lesser extent, other European empires). Moreover, in the nineteenth century, the sustenance of order was not only based on conservative power-balancing policies. The concert of conservative great powers was meant, first and foremost, to discipline and marginalize potential or actual European revolutionaries and rebellious nationalists. Moreover, trade, the gold standard, and the transnationally operating European financial system maintained the nineteenth-century order.5 Hence, even within Europe, the very basis of the fragile nineteenthcentury “order” was built on social relations that in no way followed the neat inside/outside distinction. Besides, most sovereign states emerged in the course of the twentieth century, due to the disintegration of the vast European empires following both world wars and the related processes of decolonization. This did not, however, create a world of exclusive spatial containers called “nation-states.” It is generally the case that rules, relations of authority, and systems of domination do not follow the principle of territoriality. In existential

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and causal terms, many of the essential social relations and causal mechanisms have never followed legal definitions of sovereignty or been contained by the borders of the territorial nation-states. The immediate aftermath of World War II in the victorious and neutral European and American countries, as well as in the Soviet Union, may have been an exceptional era, due to disintegration of the world economy, the climax of nationalism, and the wartime (or the Leninist–Stalinist) planning techniques applied by states. John Ruggie (1998, 192–197) argues that states have continued to engage in external economic relations with each other. “In the nonterritorial global economic region, however, distinctions between internal and external once again are exceedingly problematic, and any given state is but one constraint in corporate strategic calculations.” The non-territorial economic “region” of the world is rule-governed. The terms of these engagements are largely set in systems of multilateral governance. Some fundamental rules, such as those regulating contracts and private property rights, originate in the European medieval trading practices and were formalized and universalized in the course of the seventeenth-century expansion of the capitalist world economy. Other rules and principles are sedimented in various historical layers. Free trade and internationally regulated monetary arrangements emerged in the eighteenth century and were consolidated in the nineteenth century. The Bretton Woods system, which was created during World War II, regulated economic activities in detail and also created three new organizations: the International Monetary Fund (IMF), the World Bank, and the General Agreement on Tariffs and Trade (GATT). In the early twenty-first century, the economic policies of many dozens of countries, particularly in the southern hemisphere, are directly dictated by the IMF and the World Bank. The GATT has been turned into the World Trade Organization (WTO), which holds, despite widespread resistance and the failure of the Seattle and Cancun WTO summits, an ever-increasing mandate to regulate the terms of economic activities anywhere. The global financial markets reemerged in the 1970s and have consequently given rise to new heteronomic relations of domination, which have also been rendered into the service of reviving the hegemony of the United States. The global financial markets are also governed multilaterally, in part by the IMF, but also by the Bank for International Settlements (BIS). (See e.g., Patomäki 2000; 2001, ch. 3.) Complex global regulatory systems also have been developed in areas such as environment, consumer product safety, food standards, occupational health and safety, transport safety, chemicals, prescription of drugs, illicit drugs and tobacco, discrimination

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in employment, freedom of association, slavery, child labor, accounting standards, corruption, securities and money laundering, just to name a few (for a thorough study, see Braithwaite and Drahos 2000). Many or most parts of contemporary contexts of action across the globe are causal products of relational complexes that exist neither merely “inside,” nor merely “outside,” the state borders. Modern sovereign states are thus best seen not merely as real collective actors but also as open social systems with structural differences and asymmetries, co-constituted and determined by relational complexes that are often difficult to locate exclusively in the inside or outside. The past, outside, and relations to other beings are massively—and in a complicated manner—present in any social being, including concrete embodied actors and collective actors such as states (see Bhaskar 1993, 54, 199–200). Hence mutual interconnectedness and collective self-determination are much deeper and more complex problems than indicated by the model of cosmopolitan democracy. The principle of territoriality—even when enlarged to cover a larger part of the surface of the planet earth—may thus be quite off the mark. This insight seems to question the idea that the “all-affected” principle must take the form of instituting new, permanent, territorial layers of government—adding regional (e.g., the EU) and global (e.g., a reformed and democratized UN) to local and national layers. Are there alternatives to this way of thinking about the spatiality of global democracy? Saward (2000) has argued that there are many possible mechanisms of democratic governance, permanent territorial layers being only one of them. Figure 4.4 (from Saward 2000, 39) outlines four different possibilities. Permanent

A

B Governmental

Nongovernmental C

D

Temporary

Figure 4.4

Mechanisms of democratic governance

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The vertical axis accounts for whether decision mechanisms are permanent or temporary; the horizontal axis for whether the mechanism concerned is primarily informal and nongovernmental or formal and governmental. For instance, global parliament and courts would fall within category B. Cross-border referenda could be employed as a type B or type D mechanism, depending on the issue and legal framework. Some of the special UN conferences are typical type D mechanisms. However, the more intensive and extensive is the involvement of nongovernmental organizations (NGOs) and movements, the closer these would get to C and A. Importantly, Saward (2000, 40–44) also discusses deliberative forums (involving a microcosm of a larger political community meeting to deliberate in depth on issues and also having a formal say in decision making); reciprocal representation (of national or regional parliaments); identity-based representation (seats allocated to identity-categories such as language or religion, rather than people within territorial areas); and complex accountability (separating participation and accountability and respecting organizational autonomy) as devices that would “enshrine the all-affected principle further than Held envisages.” These arrangements are clearly attempts to mix and fuse territorial areas in complex and innovative ways. The latter two, in particular, are also non-territorial forms of democratic accountability and representation. However, perhaps for that very reason, they do not fall neatly into any of the categories of figure 4.4. They may be permanent but they do not seem to fit anywhere in the governmental–nongovernmental axis, at least if “government” is understood in the contemporary sense as the government of a territorial state. Moreover, although useful up to a point, figure 4.4 is deficient for other reasons. There is no reason to think that permanent or semipermanent governmental structures (B) must be inclusive territorial layers (the lower one adding up to and being included in the higher ones). Modern social worlds are functionally differentiated. Most of the existing IOs are functional rather than territorial. Different functional organizations have different memberships, consisting mostly of states and NGOs. In other words, their membership may be overlapping but it is not identical, inclusive, or exclusive, territorially or otherwise. Also new organizations can be founded. Whether old or new, any of these organizations can be (re)constructed on various democratic rules and principles. Logically, what would emerge would be a noncentralized, non-territorial, and nonexclusive system of complex global governance.

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It might even be possible to think about coordinating, say, global economic policies of states and these organizations without creating an overarching territorial layer above all these other spaces and layers of global governance. Yet, the coordinating body could be a globally elected representative assembly, with only limited and relational (i.e., nonsovereign) powers. The constituencies of this body may be defined in terms of functional areas and/or identity rather than territorial location—or a combination of these. A part of the seats could be allocated by means of lottery among those NGOs interested in taking part in the functioning of this body. Institutionalized opt-out mechanisms could ensure that not everybody would have to follow (all) the rules and principles of this assembly all the time. Once we have relieved our institutional imagination from the standard categories of modern Europe, all kinds of possibilities might suddenly appear plausible and worth exploring. Time There are no closed causal systems in society (see Bhaskar 1979, 11–14; Sayer 1992, 121–125). This implies that the future—including the future of humanity—must remain open. It also undermines belief in any particular account of linear world history. However, the linear history depicted in figure 4.2 is not really a prediction. It is simultaneously a sketch of the past and an attempt to envisage a possible and desirable future. Together the past and the future are conceived as a continuous single path journey from one location to another. Is this scheme plausible? Figure 4.2 fails as an interpretation of the past. Before the European expansion there were multiple largely independent or separate paths for different parts of humanity living in different continents, cultivating different—although in many crucial regards also similar—cultures or civilizations. When these paths gradually came together in the course of centuries of the expansion of capitalism and European imperial states, it did not result in a simple imposition of the abstracted and idealized system of mutually exclusive nation-states, that is, the Westphalian system. The other pasts of humanity did not disappear without leaving a causally efficacious trace of any kind. To the contrary, what emerged was a complex dialectical interplay of resistance and attempts to appropriate and modify the European—and later Western—modernity to fit various local circumstances (in some cases with disastrous results). One of the reasons for the spread of nationalism and state sovereignty was that they provided a legitimate platform for fighting the imperial rule and capitalist exploitation that the majority of humanity experienced outside the core regions of the world economy (cf. Linklater 1990, 67–72).

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Instead of an inevitable and universal “phase” in the single path of human development, the spread of state sovereignty was thus an outcome of the first coming-together of humanity under the rule of industrializing capitalism and the European empires that represented themselves at home, as it were, as national sovereign states. History remains open and thus multiple paths are available from any specific location (state of affairs). Past struggles can always be reopened in new present contexts, which may be more favorable to the possibilities that were previously suppressed; new combinations of the existing elements of social contexts can be invented and innovated; new social forces can emerge; and also genuinely novel elements may be innovated and fed into the processes of present and near-future political struggles. In one sense it is almost megalomanic to impose one possible and desirable future upon all the transformative possibilities that open at the current outset of world history. Thus it seems that figure 4.2 also fails as a prescription for the future. Figure 4.5 is an attempt to draw a more plausible picture of world history. The gray ellipse of figure 4.5 represents the coming-together of separate paths of humanity (cf. also the philosophical argument of Patomäki 2002a). Obviously, figure 4.5 fails to display the asymmetry of this integration. It can only represent the separate timings of integration and metaphorical ups and downs of different cultural parts of humanity. However, the thickest arrow in the middle represents the European and later Western modernization toward which other cultures have thus far moved (although in some regards there have also been transformations the other way round).

Figure 4.5

Possible paths of world history

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World history should be analyzed as an open process, in which choices of actors do make a difference, sometimes to the intended direction, but also often not. Many world order models have had farreaching—and sometimes destructive—unintended consequences (cf. Alker 1981; Alker et al. 1989). As the future is open, there can be an overall movement upward or downward. Within any wide, overall path, there are possible crisscrossing paths for separate yet deeply interconnected cultural parts of this whole (which of course would not remain unchanged through these journeys). A totally (self-) destructive conflict is possible, as is development toward the better. A particularly apt metaphor to grasp the possible development toward “better” might be that of gradual unfolding of progress. While the social world is frequently dilemmatic (Sayer 2000, 163), and while we usually cannot see very far from any given point, in the ideal world of mutually reinforcing and cumulative reforms, humankind may triumph over anything we can now imagine (see Patomäki 2002b, 158–160). Progress—also in terms of global democratization—is thus possible without any linear conception of time or final destination.6 Conclusions “We” are not somewhere between the Westphalian and the Charter models, moving toward the model of cosmopolitan democracy. Rather, the first (and often rather violent) coming-together of humanity occurred in terms of the European empires and capitalist world economy. This was made possible by industrialization in the core, thus yielding unprecedented productive and destructive capabilities to the new sovereign states and colonial and capitalist companies. This coming-together of humanity meant, however, that a multiplicity of different times—both as developmental ups and downs and as identity-constituting narratives—began to exist in the shared global geohistorical space. Interconnectedness of human beings assumed a new global reach, in the context of uneven developments and imperial relations of domination. The first global recognition of universal agency and autonomy—at the time of decolonization—should be seen as the beginning of world history proper. The struggles over agency and autonomy continue, in constantly changing world historical settings. This is where we are at the moment. I have argued for global democratization in contextual and processual terms. The aim should be to revise social frameworks of meanings and practices by means of cumulative—but contingent and revisable—reforms,

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which must be based on the related cultivation of trust and solidarity. Emancipatory change must also be a gradual dialectical process where the change of context(s) induces learning and thereby change(s) of actors. Any essential change—in relation to the relevant background context—should, in turn, enable further emancipatory changes. In terms of space, visions of global democratization should not follow, at least not exclusively, the logic of territoriality. This is not an argument against all forms of territorial representation. For instance, the proposal for the currency transactions tax organization—in effect, regulation and governance in a particular functional area—combines territorial representation (in the form of representatives of governments and democratically elected national parliaments) with a non-territorial civil society component.7 In some cases, emancipation may assume the form of the reduction of scope and powers of existing systems of global governance such as the WTO, thereby making territorial states more autonomous in some regards. The point, instead of opposing territoriality and its consequences in toto, is rather that as the early modern Europeans invented new forms of democratic governance so should we, in the twenty-first century, with a postcolonial globalist consciousness, work for new forms of democratic participation, representation, and accountability. Instead of writing straightforward global blueprints based on the selected set of past domestic experiences, the task is to analyze realistically the transformative possibilities of different world political contexts as well as the feasibility and real consequences of different concrete models.8 Notes * This is a slightly modified version of the paper “Problems of Democratizing Global Governance: Time, Space and the Emancipatory Process,” European Journal of International Relations 9 (3): 347–376, reprinted by permission of Sage Publications Ltd (© Sage Publications Ltd. and the European Consortium for Political Research (ECPR) Standing Group on International Relations 2003). 1. For a collection of “essential readings” of critical realism, see Archer et al. (1998). For further developments in the context of IR, see Patomäki and Wight (2000) and Patomäki (2002b). 2. However, for Held’s response to these points, please see Held and Patomäki (forthcoming). 3. Here I follow George Lakoff and Mark Johnson (1999). A metaphor is notified “X Is Y” (all with capital letters). 4. However, in passing, Held (1995, 113), does compare the conditions of Europe and the rest of the world: “Although the challenge to national sovereignty

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5. 6. 7.

8.

has perhaps been more clearly debated within the countries of the European Union than in any region of the world, sovereignty and autonomy are under severe pressure in many places.” On the EU as an ideal, see also Archibugi (1998, 220). This is one of the great insights of Karl Polanyi (1957/1944). See Patomäki (2003, 365–371), for further details on the conditions of global progress in this sense. I have developed this concrete utopia in more detail in my book Democratising Globalisation. The Leverage of the Tobin Tax (Patomäki 2001). With Lieven A. Denys, I have also devised a fully fledged “Draft Treaty on Global Currency Transactions Tax” (Patomäki and Denys 2002), which has been discussed and also supported by a number of global civil society actors. For a systematic analysis of global democracy initiatives from this perspective, see Patomäki and Teivainen (2004).

References Alker, H. 1981. Dialectical Foundations of Global Disparities. International Studies Quarterly 25 (1): 9–98. Alker, Jr., H., T. Biersteker, and T. Inoguchi. 1989. From Imperial Power Balancing to People’s Wars: Searching for Order in the Twentieth Century. In International/Intertextual Relations. Postmodern Readings of the World Politics, edited by J. Der Derian and M.Shapiro, 135–162. Massachusetts: Lexington Books. Archer, M. et al. 1998. Critical Realism: Essential Readings. Routledge: London. Archibugi, D. 1998. Principles of Cosmopolitan Democracy. In Re-Imagining Political Community. Studies in Cosmopolitan Democracy, edited by D. Archibugi, D. Held, and M. Köhler, 198–228. Stanford: Stanford University Press. Archibugi, D., and D. Held, eds. 1995. Cosmopolitan Democracy. An Agenda for a New World Order. Cambridge: Polity Press. Archibugi, D., D. Held, and M. Köhler, eds. 1998. Re-Imagining Political Community. Studies in Cosmopolitan Democracy. Stanford: Stanford University Press. Barkawi, T., and M. Laffey. 2001. Retrieving the Imperial: Empire and International Relations. Millennium: Journal of International Studies 31 (1): 109–127. Bhaskar, R. 1979. The Possibility of Naturalism. A Philosophical Critique of Contemporary Human Sciences. Brighton: Harvester Press. ———. 1993. Dialectic. The Pulse of Freedom. London: Verso. Braithwaite, J., and P. Drahos. 2000. Global Business Regulation. Cambridge: Cambridge University Press. Bull, H. 1977. The Anarchical Society. A Study of Order in World Politics. London: Macmillan. Connolly, W. 1989. Identity and Difference in World Politics. In International/Intertextual Relations. Postmodern Readings of World Politics,

beyond the domestic analogy / 123 edited by J. Der Derian and M. Shapiro, 323–342. Lexington, MA: Lexington books. ———. 1991. Democracy and Territoriality. Millennium: Journal of International Studies 20 (3). ———. 1995. The Ethos of Pluralization, Minneapolis: University of Minnesota Press. Deutsch, K. W. et al. 1957. Political Community and the North Atlantic Area. International Organisation in the Light of Historical Experience. Princeton, NL: Princeton University Press. Held, D. 1980. An Introduction to Critical Theory: Horkheimer to Habermas. Cambridge: Polity. ———. 1991. Democracy, the Nation-State and the Global System. In Political Theory Today, edited by D. Held. Cambridge: Polity Press. ——— 1995. Democracy and the Global Order. From the Modern State to Cosmopolitan Governance. Oxford: Polity Press. ———. 2003. “The Will to Change the World,” an interview of D. Held by A. Lent. Available at http://www.fabianglobalforum.net/forum/article020.htm. Held, D., and H. Patomäki. (Forthcoming). A Dialogue on the Underpinnings of Global Democracy. In Theory, Culture & Society (special issue on global democracy). Hirst, P., and G. Thomson. 2000. Global Myths and National Policies. In Global Democracy. Key Debates, edited by B. Holden, 47–59. Routledge: London & New York. Holden, B., ed. 1999. Global Democracy. Key Debates. London: Routledge. Kant, I. 1983. Perpetual Peace and other Essays. Indianapolis: Hackett Publishing Company [“May be true in theory, but is of no practical use,” 1793]. Koselleck, R. 1983. Time and Revolutionary Language. Graduate Faculty Philosophy Journal 9 (2): 117–27. Lakoff, G. and M. Johnson. 1999. Philosophy in the Flesh. The Embodied Mind and Its Challenge to Western Thought. New York: Basic Books. Lijphart, A. 1981. Karl W. Deutsch and the New Paradigm in International Relations. In From National Development to Global Community. Essays in Honour of Karl W. Deutsch, edited by R. Merritt and B. Russett, 233–251. Boston: Allen & Unwin. Linklater, A. 1990. Beyond Realism and Marxism. Critical Theory and International Relations. London: Macmillan. McGrew, A., ed. 1997. The Transformation of Democracy, Cambridge: Polity Press, in association with the Open University. Patomäki, H. 2000. Republican Sphere and the Governance of Global Political Economy. In Value Pluralism, Normative Theory and IR, edited by M. Lensu and J.-S. Fritz, 60–95. London: Macmillan. ———. 2001. Democratising Globalisation. The Leverage of the Tobin Tax. London: Zed Books. ———. 2002a. From East to West: Emergent Global Philosophies—Beginnings of the End of Western Dominance? Theory, Culture and Society 19 (3): 343–365. ———. 2002b. After International Relations: Critical Realism and the (Re)Construction of World Politics. London: Routledge.

124 / heikki patomäki Patomäki, H., 2003. Problems of Democratising Global Governance. European Journal of International Relations 9 (3): 347–376. Patomäki, H., and L. A. Denys. 2002. Draft Treaty on Global Currency Transactions Tax. NIGD Discussion Paper 1/2002: Helsinki & Nottingham, page 24. Patomäki, H., and T. Teivainen. 2004. A Possible World. Democratic Transformation of Global Institutions. London: Zed Books. Patomäki, H., and, C. Wight. 2000. After Postpositivism? The Promises of Critical Realism. International Studies Quarterly 44 (2): 213–237. Perraton, J. 2000. Hirst and Thompson’s “Global Myths and National Policies.” In Global Democracy. Key Debates, edited by Barry Holden, 60–72. Routledge: London & New York. Polanyi, K. 1957 [1944]. The Great Transformation. The Political and Economic Origins of Our Time. Boston, MA: Beacon Press. Ruggie, J. 1998. Constructing the World Polity. Essays on International Institutionalization. London: Routledge. Saward, M. 2000. A Critique of Held. In Global Democracy. Key Debates, edited by B. Holden, 32–46. London: Routledge. Sayer, A. 1992. Method in Social Science. A Realist Approach, 2nd ed. London: Routledge. ———. 2000. Realism and Social Science. London: Sage. Todorov, T. 1984. The Conquest of America: The Question of the Other, translated by R. Howard. New York: Harper & Row. Unger, R. M. 1998. Democracy Realized. The Progressive Alternative. London: Verso. Walker, R. B. J. 1993. Inside/Outside: International Relations as Political Theory, Cambridge: Cambridge University Press. ———, 1995. “Ajallisia yhteyksiä ja moninaisia identiteettejä: kohti uutta maailman-politiikkaa?” [Temporal Connections and Plural Identities: Towards New World Politics?], an interview of R. B. J. Walker by H. Patomäki, Kosmopolis 25 (4): 23–37.

C h ap t e r 5 Shifting Political Identities and Global Governance of the Justified Use of Force Anna Leander

Today little vitality remains in the idea that force is justifiable only to the extent that it is used to protect the common interest or well-being of society. This norm has ceased to operate as a limit because the interest of society no longer coincides with either the geographic boundaries of society or the foreign commitments of a society. Wolin 1963, 28

Introduction This is not a quote from a contemporary scholar discussing the impact of globalization on the way that the justified use of force is viewed. It is taken from Sheldon Wolin’s discussion of violence in Western political thought in the 1960s when the word globalization did not yet enjoy its current, seemingly irresistible, appeal. It nonetheless adequately describes a tension deepened since Wolin wrote his article: namely the tension between the inside/outside (state) boundaries that are used when thinking and reasoning about the justified use of force and the geographic boundaries and foreign commitments of society. This tension has increased as a result of two parallel developments in political identities. The first of these is the development of transnational political identities articulated in relation to issues that have boundaries different from those of the state. The interest of the community no longer coincides with the geographic boundaries of the state in Wolin’s wording. The second development is the parallel affirmation of the rights of individuals to resist oppressive states (and their use of force) that creates uncertainty about the foreign commitments of society to intervene in support of that

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right. These developments have opened up the questions that are the stuff of the global governance debate. They have pushed the perennial dilemmas of deciding whether and when authority belongs at the public, private, state, international, or transnational levels onto the practical agenda of everyday international politics. Who Defines the Justified Use of Force? A Bias for States Before taking stock of the ways in which shifting political identities are leading to a rethinking of the use of justified use of force, it is important to underline that although there has never been an uncontested agreement on what constitutes a justified use of force, modern political thinking (and even more so modern international relations (IR) thinking) has relied heavily on the idea that a priori states have the ultimate authority to define which uses of force are justified and which are not. The most accepted and widely used definition of the state is the Weberian one: the state successfully monopolizes the legitimate use of force. In historical perspective, this is a reasonable way of thinking about states. European states were established by claiming a monopoly on the use of legitimate force within their territories. States did actually manage to wrestle the control of justified use of force from various alternative authorities and in the process of doing so developed the administrative and legal apparatuses that we have come to identify as states. Moreover, in the course of the nineteenth century the state claim to monopolize the legitimate use of organized force was extended to cover also the international realm (Thomson 1994). Clearly, this state monopolization was never total. There were pockets—even in Europe—where non-states authorities (e.g., the Sicilian Mafia) successfully continued to claim control over organized force and internationally piracy and mercenaries never fully disappeared (Gambetta 1993). But it became broadly and hypocritically (Krasner 1999) accepted that states should claim to monopolize the use of force. This discussion about monopoly, however, says little about whether or not states were justified in establishing and using their monopoly control over the use of force. Weber himself is curiously silent on the nature of the legitimacy he invokes. One can read him as resting it on an exclusionary version of German nationalism (Walker 1993, 144–146). Most other authors prefer simply to let legitimacy drop. Tilly refers to “controlling the principal means of coercion within a given territory” (Tilly 1975, 638) and Giddens to the “direct control of the means of internal and external violence” (Giddens 1985, 121). When the reference

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to legitimacy is there, it has a disturbing tendency to be devoid of substance. It tends to become totally circular: the state is legitimate in its use of force because it is the state and hence sets the criteria of legitimacy. Obviously, “if we take states themselves as the assessors of legitimacy, it is clear that the state is the legitimate deployer of coercion. Rebel groups, separatist movements, and transnational groups are not viewed as legitimate deployers of coercion by the states or statesmen as a group” (Thompson 1994, 8). This is precisely what has tended to happen in IR. The peace of Westphalia in 1648 is widely read as setting the stage for the modern state system where it became part of the accepted international practice that polities should be allowed to determine the norms according to which they were governed on their own. The religious wars, where an essential goal was to change these norms, were to be a thing of the past. Interference was to be replaced by a bias in favor of states, allowing states to define for themselves according to which norms their polities should be ruled and which uses of force should count as (un)justified. On this account, thinking about the use of force internationally was confined to thinking about which uses of force between states were (un)justified ( jus ad bellum) and which means could justifiably be used in these wars ( jus in bello). This reading of Westphalia and its implications for thinking about the justified used of force is shared (for opposite reasons) by the two grand traditions for thinking about the relationship between violence and politics (Arendt 1969). The first of these traditions (which most IR scholars would call realist) backed it because it seemed the best way to ensure order. In their understanding, violence is always an inevitable part of politics (because of human nature, the irreducible and conflicting nature of norms, or because of some structural logic of anarchy). In such conditions, the question becomes how to manage inevitable and omnipresent violence and how to keep it from propping up. Relying on states to monopolize violence within and possibly to establish some kinds of norms and institutions (if one follows the so-called English school) for how to regulate it without seemed an obvious way of diminishing conflict. The other tradition (which most IR scholars would call idealist or liberal ) backed it because it seemed the most adequate way of allowing polities to rule themselves. Indeed, on this account, politics can (and sometimes does) take place without violence. In fact, a crucial question is how to keep violence out of political processes and hence make it possible for polities to determine their own fate according to unimposed

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rules. Relying on states to keep violence out of politics (by legislation and law) within and by noninterference (and possibly the development of international law) without is a necessary, but not sufficient, condition for preventing violence from interfering with politics. It is hence not surprising that liberals such as Frost or Walzer have the principle of noninterference figuring as high on their agenda as do classical realists such as Kissinger or Morgenthau. The agreement around an a priori stance that makes states central in defining and the justified use of force within their boundaries and that by the same token reduces the international discussion of which uses of force are (un)justified to the use of force in wars between states has of course never been absolute. There are three obvious (and widely acknowledged and discussed) cases with no way around taking a stance on the substance of claims that internal uses of force are justified. The most obvious of these are when competing authorities claim statehood (and hence the right to monopolize the justified use of force) on the same territory. Thus, in wars of secession as well as in civil wars or revolutions, it is impossible to ignore the question. There is no way around deciding which authority is right in its claim. It is a practical matter of deciding whom to deal with as a state. The second case is when state violence is so enormous that we cannot ignore it because it “shocks the moral conscience of mankind” (Walzer 1994, 107). However, as amply illustrated by history and present debates, reactions to human rights abuses may come with delay if at all and our common moral understanding and our interpretations of legal norms tend to be very elastic. But gross state violence certainly does place the norm of arguing that states define the justified use of force on their territory under considerable strain. The third case is when there is no state to refer to and hence no appeal to a state that defines the justified use of force is possible (Hassner 1995, 352). The question of how to think about the justified use of force is clearly a profoundly vexed one. While modern political thinking rests on the idea that states monopolize the justified (legitimate) use of force, this idea is either a tautology or in need for further elaboration. In IR, there has been a broad agreement to keep the door closed on the question of how states define the justified use of force, except as it touches the use of force between states. The generally accepted norm has been (in crude terms) that “once a population is incorporated into complete citizenship, a nation-state is given almost complete authority to subordinate the population. It can expropriate, kill, and starve with relatively little fear of external intervention” (Meyer 1980, 119). But, as indicated by the

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“almost” and “relatively” in the quote, this closure has never been total. The two next sections argue that because of the ongoing redefinition of political identities, the breach in the bias for states is growing. The Development of Transnational Political Identities Political identities are increasingly defined in relation to political communities that have borders different from those of the state. Consequently the claim that “all normative issues in world politics today refer, either directly or indirectly, to the state, interstate relations and the role of individuals as citizens of states” (Frost 1996, 79) is decreasingly valid, except as a triviality: with few exceptions (stateless people in particular), people belong to states since states cover the entire globe. Instead, with the development of transnational political identities, the polity in relation to which the use of force is (and has to be) justified has boundaries frequently diverging from those of the state. Political identities are increasingly defined in relation to issues and borders, which are different from those of states. There has been an enlargement of the political space people refer to, take part in, and feel concerned by. There has been a transnationalization of the polity in relation to which they define their political identities. In part this is due to the increasing mobility of people. As tourists, migrants, or neighbors of migrants, people feel concerned by what goes on in a much wider polity than that of their own state (Beck 2000, 72–77). Thus, migrant networks play an important role in reshaping politics both in the “host” and “home” states. Their involvement is growing not only as a consequence of the increasing number of diasporas/migrants. They grow also because of the growing possibilities of using these communities to organize (illegal) trade to finance political movements, raise “taxes” [namely, the PKK or the UCK in Germany], disseminate propaganda, or even simply to get votes in regular elections. Migrants play an important role in creating a transnational political space that can be used for contesting the use of force by states (Angoustures 1993). Even if there is no immediate personal reason to feel concern, people may well enlarge the polity with which they identify and in which they participate. The media brings developments in a much larger polity to people’s daily lives. “Wars [and one might say more broadly the use of violence] lose their spatial location, and, through their telegenic (re-)presentation, become political crises in which questions of justice and intervention must also be publicly discussed and decided in the far-off centers of global civil society” (Shaw 1996).

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The making of transnational political identities is further accentuated by enlargement of the political agenda to inherently transnational issues. Indeed, the sphere of the political expands as “previously de-politicized areas of decision-making now find themselves politicized” (Beck 2000, 99; Pizzorno 1987). Ecology, science, food safety, or the gender relations have been placed solidly on the political agenda. The way that states use and/or sanction the use of force in relation to these issues becomes a matter of concern for issue-specific groups. For example, family law in Morocco is of concern to women in the United States. For many, questioning state uses of force elsewhere is a central aspect of their activities. On some issues, (human rights being a prime example), this questioning extends far beyond the issue-specific groups. One might even argue that since the defeat of fascism after World War II, there is an attachment to human rights and democracy and a belief that these are principles that demand universal respect (Habermas 1998, 71–79). Finally, it is important to avoid an overly voluntaristic picture of the redefinition of political identities. It is not only a matter of changing self-definitions, universal values, or expanding political agendas. The expansion is just as often imposed by linking up social spaces through what one might term structural changes. This is not only true in the sphere of the economy where it is most often argued and situated. Also political, cultural, and social space is directly affected. International networks, education, funding, and media play an important part in setting local political and cultural agendas (Loureiro 1998). Moreover, studies of states in Africa (and more generally the developing world) concur on the importance of the international granting of statehood rather than its internal constitution.1 “The international system is increasingly penetrating” (Buzan 1995, 195). This has not escaped activists who consequently view the source of their troubles as rooted far away from home, and act accordingly. As a commentator of 9/11 expressed it: they aimed at the symbols of an unjust global financial, political, and military might on which they depend (Bauman, Information, 15.09.2001). The consequence is that any state use of force and its justification can be (and is) challenged, contested, or approved by a wide range of actors and movements. First, it is contested by individual citizens who do not necessarily lobby directly, but still have firm beliefs about what is justified or not for other states to do. They find it important that children should not be used as soldiers in Colombia, Falun Gong members not be tortured in China, or tribal law be applied in Pakistan. It is further contested by a wide array of advocacy groups of various forms, including private business and Nongovernmental organizations (NGOs) who try

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to influence the ways in which force is used. Lobbying by Amnesty International in the United Nations is a way of contesting the legitimacy of the Myanmar government’s use of violence against the Karen, and blocking Shell stations in Germany a way of contesting the Nigerian government’s violent treatment of the Ibo. Finally, groups that have a direct stake in a conflict contest it (more or less violently). Thus, Kurdish attacks on Turkish-owned shops in Germany become a way of contesting the Turkish state’s claim to use force in a justified way. The overall consequence: “Where the dominant political image of modernity was Leviathan, the moral standing of national powers and superpowers will, for the future, be captured in the picture of Lemuel Gulliver, waking from an unthinking sleep to find himself tethered by innumerable tiny bonds” (Beck 2000, 72). Second, the redefinition of political identities also increases the pressure on governments to interfere with the uses of force (and its justification) elsewhere. Indeed, much of the transnational politization runs through states. The individuals, expert communities, advocacy groups, or NGOs who mobilize around questioning the use of force often do so by putting pressure on their own states. Concretely translated, this means that there is pressure on states to intervene with the definition of what is a justified use of force in other states. The most spectacular illustration of this is humanitarian interventions. It certainly is no longer the case (as conventionally argued by e.g., Frost 1996) that only interventions have to be justified. On the contrary, as shown by the debates surrounding Algeria or Rwanda (Barnett 2002), governments also are under strong pressure to justify nonintervention. But the increased international involvement in the definitions and debates about the justified use of force nationally is also visible in less spectacular—but equally important—policies. Governments use sanctions, political conditionality on loans and aid. There is growing pressure by states on firms to become “good citizens” and shoulder their “social responsibilities” in particular by checking that their activities do not encourage or benefit from “illegitimate” practices in other countries (as illustrated e.g., by the Kimberley process to limit the trade in so-called blood diamonds). Political identities are increasingly conceived in relation to polities and issues that are transnational in nature. This makes it more difficult to fall back on the state as the institution with ultimate authority to define which uses of force are (un)justified within its territory. Claims about justified uses of violence are decreasingly taken at face value but submitted to transnational scrutiny. There is deep breach in the bias in favor of accepting states as the ultimate authority.

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The Centrality of Political Identities Formulated against the State The breach in the bias in favor of states has been further widened by the increasing formulation of political identities against the state, rather than in relation to or as constituted by it. In much contemporary thinking about the relationship between political identity and the state, the state is construed as the main threat to political identities and also the key source of violence (i.e., of unjustified use of force). This line of thinking runs straight against influential understandings of the relationship between the state and political identities such as the Hegelian one (where individuals are constituted and given political identity through their relationship to the state) (Frost 1996, 147–150) or the communitarian one (where morality is “thick” inside states and “thin” outside) (Walzer 1994). This section outlines three reasons for this “de-statization” of political identities, in order to argue that it is difficult today to defend any a priori assumption that sovereignty and the state system are positive and important per se. The first reason for revisiting the relationship between the state and political identities has deep roots in modern political understandings of legitimacy. Indeed, the dilemma of how to reconcile the multiplicity of individual political identities and the dominance of the state is a fundamental and persistent part of modern political thinking stemming from the disenchantment of enlightenment. Indeed, “the issue of legitimacy blossoms when appreciation of the conventional character of social norms and institutions becomes widespread” and we can no longer ground legitimacy in some religious or transcendentally derived understanding (Connolly 1984a, 2). This dilemma is all the more pronounced as the state expands its role and gets involved with everything from labor relations to filmmaking and the constitution of the family. This has far-reaching implications for the credibility of the state in defining the justified use of force. Indeed, with state expansion comes a centralization and mobilization of power and “this very mobilization of power endows it [the state] with awesome potential for evil” (Connolly 1984b, 17). This “potential for evil” may become a key source of oppression of identities at odds with the “hegemonic identity of the state” (Connolly 2000). The state may be fundamental in creating those identities (by defining nationals, criminals, madness etc.). Awareness of the conventional nature of the norms on which it rests make unreflected acceptance of these identities impossible. This does not justify a total rejection of the state and even less of democracy, but it does have a sobering effect on thinking about the relationship between the state and political

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identities. It underscores the need for caution and reflexivity in regard to states—definitions of which uses of force are justified. It highlights the importance of adopting a “perhaps” position (Connolly 1991, 220–222). The second revision is similar in that it also poses the potential that the major threat to political identities might come from the state, in a very immediate and physical manner. This revision is tied to the rereadings of the history of the twentieth century, where the state stands out as anything but an institution that can be counted on to use force in justifiable ways. Indeed, one reading of the history of totalitarian state violence is as a sign of the fragility and potential reversibility of the process of state monopolization of the legitimate use of force (this is Elias’s (1982) argument). It can also be read more strongly: as a logical consequence of that process. Bauman’s work on the Holocaust epitomizes the latter position. He argues that it is precisely the concentration of power in the state and the development of bureaucratic culture that is the cause of the Holocaust. The development of the bureaucratic culture gives the Holocaust its peculiar shape and efficiency. More than this “the light shed by the Holocaust on our knowledge of bureaucratic rationality is at its most dazzling once we realize the extent to which the very idea of the Endlösung was an outcome of the bureaucratic culture” (Bauman 1989, 155). The monopolization of the use of force with the state had the effect of freeing the use of violence from moral calculus (Bauman 1989, 28). Hence, “in the face of an unscrupulous team saddling the powerful machine of the modern state with its monopoly of physical violence and coercion, the most vaunted accomplishments of modern civilization failed as safeguards against barbarism. Civilization proved incapable of guaranteeing moral use of the awesome powers it brought into being” (Bauman 1989, 111). The Holocaust disconfirms the widespread Hobbesean idea that: the estate of Man can never be without some incommodity or other; and that the greatest, that in any form of Government can possibly happen to the people in generall, is scarce sensible, in respect of the miseries, and horrible calamities, that accompany a Civill warre; or that dissolute condition of masterlesse men, without subjection to Lawes, and a coërcive Power to tye their hands from rapine, and revenge. (Hobbes 1651 [1985], 238)

Bauman’s point is that the modern state is not necessarily a lesser evil; rather it can turn out to be the key source of evil in some contexts.

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A third kind of revisiting of the state, which has led to a growing acceptance of political identities articulated against it stems from rethinking of the state outside the European context. While with some stretch of imagination (and neglect of the violence entailed in the process) one can argue that state building in Europe was based on some kind of community-building process, a similar move is literally impossible in the rest of the world. Most blatantly in Latin America and Africa, existing political organizations, communities, and boundaries played a very limited role as states were established by European colonial powers (Clapham 1996). But also elsewhere (post) colonial states developed in conditions that are very different from those in Europe and that make it difficult to imagine states as picture polities sharing a thick moral and political culture. To imagine this is made all the more difficult because of the oppressive, exclusionary nature of many states, confirmed in any counting of instances of internal wars, violent deaths, and ethnic cleansing. To denote that a “state is not a state,” scholars (as well as policy makers) attach adjectives to states who become quasi-states (Jackson 1990); failed-states (Bilgin and Morton 2002); rogue-states (Chomsky 2000); criminal states (Bayart 1997); war-lord states (Reno 1998), and so on. These “states with the adjectives” cannot—or do not want—to control the use of force on their territories. The lines between public and private authority, between police forces and criminal gangs, and between the armed forces and private militias are blurred to the point of disappearance (Howe 2001). In such conditions, it is hard to grant the state any a priori bias in defining the legitimate use of force and on the contrary find it easy to sympathize with the many political identities articulated against state violence. These revisions of the link between the state and political identities are (obviously) far from uncontested. But they are a part of contemporary political thinking and practice. Just as the transnational identity construction referred to earlier, they make state claims to define (and monopolize) the justified use of force questionable. States might be justified in their definition and use of force; but they might also not. The bias in favor of the state in judging the matter has suffered a substantial downgrading. An ill-articulated perhaps has slunk into thinking about states’ claims to have a monopoly on the justified use of force. Conventional doubts about the boundaries of the polity have taken on gigantic proportions, as has conventional distrust of states and their oppressive powers. Simultaneously, private claims to define the justified use of force are increasingly legitimate. There is a denationalization and de-statization of politics.

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Shifting Political Identities and Dilemmas of Global Security Governance Placing conditions on states’ right to define the justified use of force opens a Pandora’s box of questions. If states do not define the justified use of force, then who does? From where does the authority to do so derive? What exactly are the standards according to which the justified use of force is judged? Are these standards equitably defined and applied? What can possibly be done about the infringements of these standards? These questions are the stuff of the debate about global governance of security. They turn around how political rule over the use of force in international “anarchical society” should be understood and reorganized. The redefinition of political identities has made these questions relevant far beyond the circles engaged in providing blueprints for a hypothetical world state or arguing for why such blueprints will not work or are not desirable. It is no longer a matter of scheming about potential future changes but rather of dealing with unfolding developments. Unfortunately, as is the case with most real questions, there are no easy—and even less agreed upon—answers to the questions of global governance in security. While there are important breaches in the bias for states’ rights to define the justified use of force on their territory (as a basic norm), it is clear that reform is difficult, risky, and perhaps not even desirable. In other words, we face genuine dilemmas. This section pinpoints four of these dilemmas because recognizing and admitting their existence is a precondition for discussing solutions. A first dilemma stems mainly from the development of transnational political identities and is related to the political processes and institutions involved in deciding on the justified use of force internationally (such as e.g. the UN, the OAU, the OSCE, and NATO). Indeed, with the transnationalization of political identities, these procedures and institutions become more important as politics is pushed upward. Various transnational movements pressure governments to intervene with uses of force elsewhere. Statesmen in turn rely on international institutions and reference to the international community to justify interventions, to coordinate and to contest them. The consequence is growing interest in, awareness of the importance of, but also contestation of international political processes and institutions. As the international politics matters more, it also matters more if the political processes and institutions, which play a central role, are seen as insufficient and inequitable. For many they are precisely that. Not all abuses of state violence are placed on the agenda, and even fewer provoke international reaction and condemnation. This underlines the need

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for an agenda setting less dependent on the interests of leading powers, the fads of the media, the presence of NGOs, or personal links. Obvious inequities in the handling of issues placed on the agenda further underlines the urgency of reform. Criticism abounds of the way that some conflicts are singled out to justify intervention (namely, Iraq or Kosovo) while some are left running their course (Rwanda, Sudan) and even more of the forms of interventions (see e.g., the chapters in van Ham 2002). There is biting criticism of the processes in which these choices are made, the domination of the great powers (and the United States in particular), and of the actual implications of the choices and calls for reform (including blueprints for such reforms)2 of existing institutions. In Neuman’s words (2002, 80), in Kosovo, the end of the legitimate warring state was at stake. Where is the political entity that may legitimately speak in the name of humanity? However, even if this criticism (or parts of it) is widely shared, the dilemma arises because there is an equally widespread conviction that reform is practically very difficult and possibly not even desirable. It is practically very difficult for the obvious reason that the resistance to reform on behalf of those who see the current order either as serving their interests or as better than any alternative are most likely to block it. Since the institutions to a large extent do benefit dominant states, the blocking is probably effective. But more profoundly, there is the question of whether or not moving politics upward is desirable. A point frequently made in the discussion about such “security communities” is indeed that more cooperation and institutions do not necessarily make for more security (Tilly 1998). The fate of the League of Nations is often used to point out that trying to move too much authority upward, or doing so in ways perceived as unfair, will simply have the effect that those who see themselves as the losers in this shift start ignoring the institution. The upward move will simply have been counterproductive. According to many observers, the institutionalization/legalization of international politics has already gone too far. The second dilemma also evolves around the desirability of moving politics upward. Indeed, there is awareness that a “thicker” international political community is emerging and that it pushes politics upward. But there is also a strong concern that this community might not be “thick” enough to justify moving politics—and the right to define the justified use of force—upward. Few deny the continuing centrality of the state in politics generally as well as for defining the justified use of force. This also holds both for those who think that we are heading toward an ever growing delegation of authority upward and/or that moving authority

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upward is important for moral reasons to follow the development of transnational polities (Held 1995; Shaw 2000). The bulk of cosmopolitanism is firmly Kantian: it does not suggest to do away with the state, but to organize international institutions on the basis of sovereign authority. However, even if only a part of state authority is moved upward, the question remains: what is the “glue” binding the political community behind that (partial) authority? What kind of “civil religion” (Rousseau) or basic common contextual understanding could make legislation possible and legitimate? Human rights are an obvious (the only?) contender for that role. But they are also a contender around which there is intense disagreement, partly because these rights privilege an understanding of the individual that is specifically Western. The concept of human rights developed in the West; it looks at the individual as detached from community religion and context, and it disregards alternative understandings of rights (Chapter 10 by Owen in this volume). But more centrally, human rights are often argued to provide too thin a glue to hold the community together. As argued by Habermas (1998, 162–163), “even a world wide consensus about human rights is no equivalent to the solidarity among citizens developed in the national frame. Solidarity among citizens has its roots in specific collective identities. However, solidarity among world citizens must rely exclusively on the moral universalisms expressed in human rights.” These “universalisms” are too weak to provide the bonding of a real existing moral community. They risk merely serving the purpose of depoliticizing politics by locating it at such a distance that citizens no longer can—or want to—participate (Kymlicka 2001). The third and fourth dilemmas of global governance of the justified use of force are related to the increasing weight of political identities formulated against the state. Once political identities are articulated against the state, and individuals, groups, movements, and various other non-state entities contend for the right to define the justified use of force, it is difficult to think about international political processes as involving exclusively (or even mainly) states. The boundary between international society and world society is blurring. A wide range of non-state actors claims a space in international politics. NGOs, representatives of ethnic, religious, and civil movements as well as firms and banks play an important role in already existing processes. They are consulted, have seats in the United Nations, and often are the institutions through which policies are channeled. Diplomacy has to be rethought to include non-state actors (Strange 1996). But they also act politically on their own account. Firms and private banks have their own conditionality (Friedman 1983; Porter 1999).

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NGOs negotiate truces, aid corridors and taxes with states as well as with non-state authorities. Politics is privatized and NGOized. This situation poses a third dilemma: it brings non-state actors into politics in a very immediate way but also makes clear that there is no adequate justification for this. Indeed, while it underscores the need for some procedure for singling out (and justifying) why some actors are granted the right to act on their own and/or are included in state-led processes, it also brings home the difficulty of any such exercise. Questions of whom these non-state actors represent and how representative they are seem impossible to circumvent, but also profoundly vexed. Many non-state actors make no claim (even theoretical) to represent any community at all. Such is the case of most firms and of many gang leaders who are driven mainly (and possibly increasingly as argued by e.g., Le Billon 2000) by economic interests. But even those who claim to represent some political identity find it hard to uphold such claims. By definition, they represent a specific group with a specific political identity. This paves the way for contesting the weight of that specific community. For example, how important is the community of battered women in Azerbaijan, which the women’s movement claims to represent or the international community of the women more generally, which international feminist movement claims to stand for? Did these communities exist at all prior to donors’ willingness to grant money? Are they displacing other more locally rooted communities? But even if the community (and its identity) is accepted as significant, there are considerable difficulties tied to establishing that a private actor represents a specific community in any meaningful way. How representative is the PKK of the Kurds in Turkey, Green Peace of the environmentalists, Amnesty International of human rights activists or the anti-landmine? If non-state actors represent no one but themselves, a very marginal part of some larger group, or a fraction of their own group, what is the justification for making them part of the political processes and what is the criteria according to which one can establish whether or not they should be allowed to take part? The rhetorical questions “Who elected the bankers?” (Pauly 1997) and “who represents the whales?” (Walker 1994) can reasonably be posed to an entire range of private movements. Obviously, the answer is no one. But the de-statization of politics entails that politics is conducted as if private movements were representative. This points to the fourth dilemma arising from the de-statization of political identities: the necessary inclusion versus the risk of including (and empowering) non-state actors. Even though Hobbes’s specter of the war of all against all might not be considered the worst prospect in

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all conditions, it is a fearful one. Even among the most adamant defenders of transnational civil society, there is acute awareness that empowering non-state actors might be counterproductive, in particular if it leads to a withdrawal (or weakening) of state institutions, so that large chunks of territory are simply abandoned and left at the mercy of whoever happens to possess most arms and/or the best contacts for getting those (Poirier 1993). It is difficult to ignore that this was the concrete result of the privatization policies (and the policies officially intended to encourage civil society development) pursued with great energy since the early 1980s. “Instead of forging a new more responsive relationship between state and society, as the civil society theorists of the 1980s had anticipated, the state simply withdrew from large part of society. What was revealed beneath the layers of state control was not civil society but uncivility [. . .] Civil society was ineffective because there was no rule of law; there was no public control of violence” (Kaldor 1999, 203–204). These dilemmas are a part of contemporary politics. Policy makers face them every day, as the definition of the justified use of force by states is increasingly conditional both on transnational scrutiny and on approval by a whole range of non-state actors. International institutions do take positions on which uses of force are justified and which are not both within and between states. There are procedures for dealing with this. It is assumed that there is a glue strong enough to hold world society together. All the time private actors are allowed to be part of politics and states are making choices about precisely which actors to give such roles and which to exclude. Consequently, just as the ills flowing out of Pandora’s Box could not be stuffed back into the box, so these dilemmas stemming from the attempt to develop some global governance of the use of force are bound to remain. A large share of what scholars in IR are busying themselves with are precisely these dilemmas, so there is no reason to rejoin the common wholesale complaints about the triviality of work done in IR and/or its irrelevance to international/world politics. However, as the conclusion returns to there is ground for wishing that more of this work opened up the grand questions of global governance. Conclusion This chapter has argued that shifting political identities has led to severe strains in the conventional notions that a priori (though not absolutely) states have the right to define the justified use of force on their own territory and that a priori discussions about the justified use of force internationally should be restricted to discussions about the use of force

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among states. It has also argued that as a result, global governance of the justified use of force has become a more salient issue in international politics. As the stakes grow, existing practices and institutions of global governance are under intense scrutiny and their reform is a key issue of contention. Yet, although there is a prolific production of books and articles on the topic, relatively few tackle the grand questions about what are the implications of these trends for thinking about and practicing global governance. In part, this might be because of the dominance of “reindorsement discourses” (Gellner 1959) that take the ordinary language usage to be the correct one: since our ordinary notion is that the state has a monopoly on the legitimate use of force, that claim is taken as a given. In part, it may be because the key challenge is located at the level of state building (not at the level of global governance): the trouble is that we need to construct more stable states and that is essentially a national process. Both miss the point. Even if there is undeniably a “weak state dilemma” (Holsti 1996) and even if we mostly continue to assume that states have a monopoly on the justified use of force, we also give increasing space to transnational and private political identities and this is leading to a reform of the institutions governing the justified use of force. An ostrich strategy is unlikely to dissipate the dilemmas posed by the evolving understanding of who is entitled to define the legitimate use of force. It is important to raise the big questions about what is happening to the substantive meaning of justified force, who gets a voice in reformulating it, what are the implications of this, and how to think about making it more equitable. The most promising way forward is to look critically and sociologically at the way the dilemmas created by the transnationalization and de-statization of the definition of the justified use of force are dealt with in actual politics. We need critical and reflexive sociology to spell out which reformulations of identity matter, when, and why. It is clearly not only what you say but also where you speak from which is of importance in this context. A better understanding of who is actually entitled to speak, where, when, and why on the definition of which uses of force are justified is central not only for thinking critically about the present system of “global governance” in security but also for any attempt to think about how it might be changed. Notes 1. For Africa, see Bayart et al. (1997), Clapham (1996), Reno (1998). Tilly’s monumental overview of state making concludes on a “drift from internal to

the justified use of force / 141 external state building” i.e., the increased importance of access and handling of external (as opposed to internal) capital and means of coercion (Tilly 1990). 2. Held is no doubt the key reference for this (1995,) but there are many others.

References Angoustures, Aline, and Valérie Pascal. 1993. Diasporas et financement des conflits. In Économie des guerres civiles, edited by François Jean and JeanChristophe Rufin, 495–543. Paris: Hachette. Arendt, Hannah. 1969. On Violence. New York: A Harvest Book Harcourt, Brace & World, Inc. Barnett, Michael M. 2002. Eyewitness to a Genocide: The United Nations and Rwanda. Ithaca: Cornell University Press. Bauman, Zygmunt. 1989. Modernity and the Holocaust. Ithaca: Cornell University Press. ———. 2001. Den explosive elændighed Information, September 15. Bayart, J. F., S. Ellis, and B. Hibou. 1997. La criminalisation de l’Etat en Afrique. Paris: Editions Complexe. Beck, Ulrich G. 2000. What is Globalization? Oxford: Blackwell. Bilgin, Pinar, and Adam David Morton. 2002. Historicising Representations of “Failed States”: Beyond the Cold-War Annexation of the Social Sciences. Third World Quarterly 23 (1): 55–80. Buzan, Barry. 1995. The Security Problematique in the “New World Order.” In On Security, edited by R. D. Lipschutz, 196–211. New York: Columbia University Press. Chomsky, Noam. 2000. Rogue States: The Rule of Force in World Affairs. Cambridge: South End Press. Clapham, Christopher. 1996. Africa and the International System. The Politics of State Survival. Cambridge: Cambridge University Press. Connolly, William. 1984a. The Dilemma of Legitimacy. In Legitimacy and the State, edited by W. Connolly, 222–249. Oxford: Basil Blackwell. ———. 1984b. Legitimacy and Modernity. In Legitimacy and the State, edited by W. Connolly, 1–20. Oxford: Basil Blackwell. ———. 1991. Identity/Difference. Democratic Negotiations of Political Paradox. Ithaca and London: Cornell University Press. ———. 2000. Speed, Concentric Cultures and Cosmopolitanism. Political Theory 28 (5): 596–618. Elias, Norbert. 1982. Civilization and Violence: On the State Monopoly of Physical Violence and its Infringements. Telos 16: 133–154. Friedman, Irving S. 1983. Private Bank Conditionality: Comparison with the IMF and the World Bank. In IMF Conditionality, edited by J. Williamson, 109–124. Washington DC: Institute for International Economics. Frost, Mervyn. 1996. Ethics in International Relations. A Constitutive Theory. Cambridge: Cambridge University Press. Gambetta, Diego. 1993. The Sicilian Mafia: The Business of Private Protection. Cambridge: Harvard University Press.

142 / anna leander Gellner, Ernest. 1959. Words and Things. London: Gollancz. Giddens, Anthony. 1985. The Nation-State and Violence. Volume Two of a Contemporary Critique of Historical Materialism. Oxford: Polity Press. Habermas, Jürgen. 1998. Die postnationale Konstellation. Politische Essays. Frankfurt a.M.: Suhrkamp. Hassner, Pierre. 1995. Par-delà le national et l’international: la dérision et l’éspoir. In La violence et la paix. De la bombe atomique au nettoyage ethnique, 335–355. Paris: Editions Esprit. Held, David. 1995. Democracy and the Global Order: From the Modern State to Cosmopolitan Governance. Cambridge: Polity Press. Hobbes, Thomas. 1651 [1985]. Leviathan. London: Penguin Books. Holsti, Kalevi J. 1996. The State, War, and the State of War. Cambridge: Cambridge University Press. Howe, Herbert M. 2001. Ambiguous Order: Military Forces in African States. Boulder CO.: Lynne Rienner. Jackson, Robert H. 1990. Quasi-States: Sovereignty, International Relations and the Third World. Cambridge: Cambridge University Press. Jean, François, and Jean-Christophe Rufin, eds. 1999. Économie des guerres civiles. Paris: Hachette. Kaldor, Mary. 1999. Transnational Civil Society. In Human Rights in Global Politics, edited by T. Dunne and N. J. Wheeler, 195–214. Cambridge: Cambridge University Press. Krasner, Stephen D. 1999. Sovereignty: Organized Hypocrisy. Princeton: Princeton University Press. Kymlicka, Will. 2001. Citizenship in an Era of Globalization. In Politics in the Vernacular, edited by W. Kymlicka, 317–327. Oxford: Oxford University Press. Le Billon, Philippe. 2000. The Political Economy of Resource Wars. In Angola’s War Economy: The Role of Oil and Diamonds, edited by J. Cilliers and C. Dietrich, 21–43. Pretoria: Institute for Security Studies. Loureiro, Maria Rita. 1998. L’Internationalization des milieux dirigeants au Brazil. Actes de la recherche en sciences sociales 121/122: 42–52. Meyer, John W. 1980. The World Polity and the Authority of the Nation State. In Studies of the Modern World System, edited by A. Bergesen. New York: Academic Press. Neumann, Iver B. 2002. Kosovo and the End of the Legitimate Warring State. In Mapping European Security After Kosovo, edited by P. van Ham and S. Medvedev, 66–81. Manchester and New York: Manchester University Press. Pauly, Louis W. 1997. Who Elected the Bankers? Surveillance and Control in the World Economy. Ithaca and London: Cornell University Press. Pizzorno, Alessandro. 1987. Politics Unbound. In Changing Boundaries of the Political: Essays on the Evolving Balance Between the State and Society, Public and Private in Europe, edited by Charles S. Maier, 27–62. Cambridge: Cambridge University Press. Poirier, Jean. 1993. Une nouvelle forme de violence institutionelle: la violence par prétérition. In La Violence et l’Etat. Formes et Evolution d’un Monopole, edited by E. Le Roy and T. von Trotha, 183–198. Paris: L’Harmattan.

the justified use of force / 143 Porter, Tony. 1999. The Transnational Agenda for Financial Regulation in Developing Countries. In Financial Globalization and Democracy in Emerging Markets, edited by L. E. Armijo, 91–117. Basingstoke and New York: Palgrave. Reno, William. 1998. Warlord Politics and African States. Boulder, London: Lynne Rienner. Shaw, Martin. 1996. Civil Society and the Media in Global Crises. London: Pinter. ———. 2000. Theory of the Global State: Globality as Unfinished Revolution. Cambridge: Cambridge University Press. Strange, Susan. 1996. The Retreat of the State: The Diffusion of Power in the World Economy. Cambridge: Cambridge University Press. Thomson, Janice. 1994. Mercenaries, Pirates, and Sovereigns: State-Building and Extraterritorial Violence in Early Modern Europe. Princeton: Princeton University Press. Tilly, Charles, ed. 1975. The Formation of National States in Western Europe. Princeton: Princeton University Press. Tilly, Charles. 1990. Coercion, Capital, and European States, AD 990–1992. Cambridge, Blackwell. ———. 1998. International Communities, Secure or Otherwise. In Security Communities, edited by E. Adler and M. Barnett, 397–412. Cambridge: Cambridge University Press. van Ham, Peter, and Sergei Medvedev, eds. 2002. Mapping European Security After Kosovo. Manchester: Manchester University Press. Walker, R. B. J. 1993. Violence, Modernity, Silence: From Max Weber to International Relations. In The Political Subject of Violence, edited by D. Campbell and M. Dillon, 137–160. Manchester and New York: Manchester University Press. ———. 1994. Social Movements/World Politics. Millennium. Journal of International Studies 23 (3): 669–700. Walzer, Michael. 1994. Thick and Thin: Moral Argument at Home and Abroad. Notre Dame, IN: Notre Dame University Press. Wolin, Sheldon S. 1963. Violence and the Western Political Tradition. American journal of Orthopsychiatry 33: 15–29. Zürn, M., G. Walter, S. Dreher, and M. Beisheim. 2000. Globalisierung und die Handlungsfähigkeit des Nationalstaats. Zeitschrift für Internationale Beziehungen 7(2): 297–331.

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C h ap t e r 6 Global Governance through the Institutional Lens Matthias Finger

Introduction There is, so far, little or no concern about the organizational and institutional dimensions of global governance. In the minds of our leaders and many academics, global governance still appears to be a simple mechanism—a technical fix, rather than a set of organizations and institutions, whose coming about is merely a matter of political will (Strong 2001). In other words, global governance is not seen as a matter of contingencies reflecting interests and power structures among strategic actors. Consequently, global governance has been viewed so far mainly from a functional—as opposed to an institutional—perspective (Held 1995), if it is not outright wishful thinking (Commission on Global Governance 1995). This chapter takes a different approach and examines global governance essentially in terms of historical and sociological constraints. In doing so, I proceed by first presenting a conceptual framework and then by reviewing the international institutional system as set about by the former colonial powers and cemented in the UN system. The pressures on the UN system, resulting in particular from the various dimensions of globalization, are highlighted in a third section. The fourth section describes how the international institutional system today is reacting, adapting, and rearranging itself in light of these pressures. Finally, I outline the possible future perspectives of institutionalized global governance. Conceptual Clarification In looking at the concepts of governance, organization, and institution, I use an organizational and institutional approach, which basically means

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looking into the behavior and strategies of the main actors (most of which are organizations, not individuals) of global governance. Organizations are viewed from a sociological perspective, that is, in particular by considering their goals, their behavior, and their strategies (Crozier 1963; Etzioni 1964). Organizations relate to each other by means of more or less formal rules, thus forming institutions and institutional arrangements. In the same way as there is a dialectical relationship between structure and action inside an organization (Giddens 2001), there is a dialectical relationship between institutions and organizations (or actors) at a macro level. Indeed, institutions shape the strategies and behavior of organizations, while the behavior and strategies of organizations in turn shape institutional outcomes. This organizational/institutional approach can also be applied to the global system. From this perspective, the passage from “government” to “governance” reflects in fact the evolution from one type of actor—that is, the nation-state—dominating institutional rules to global institutions reflecting a strategic interaction of numerous types of actors (Young 1994). In particular, one must distinguish today between three types of global actors behaving strategically vis-à-vis one another, namely nationstates, business, in particular Transnational Corporations (TNCs), and nongovernmental organizations (NGOs). Global governance can thus be seen as an institutional arrangement, composed of organizations (i.e., governments, NGOs, and TNCs), each of which no longer has enough power to “govern” by itself. My approach being sociological in nature, I am therefore mainly interested in the power relationships among the actors (organizations) involved in this increasingly global institutional framework, and in particular in knowing who is capable of shaping the outcomes by manipulating both rules and other actors. I am thus interested in the relative power of the various actors involved, in how they organize and strategize in order to increase their discretionary power, and ultimately in who wins and who loses in this new global institutional arrangement. Needless to say that this approach, by its very nature, is a challenge to the socio-democratic vision of globalization (Rosenau and Czempiel 2000). If this socio-democratic approach sees global governance, by definition, as a more appropriate approach to solving increasingly global problems, I instead see the transition to global governance as a moment in history during which existing rules, institutional arrangements, and power relationships among actors are being redefined. While this is not necessarily in contradiction with a “better” approach to global problems, the redefinition of these rules does not automatically have a positive

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outcome, as the new rules and institutional arrangements might well be detrimental to the common good, sustainable development, and other collectively desirable things, yet beneficial for these actors who win in the process. From an organizational and institutional perspective, globalization is therefore a process during which some actors may want change, while others might have an interest in maintaining the status quo. It is also a process in which actors can win or can lose depending on whether the new rules and institutional arrangements do or do not favor them. Globalization, as a process of redefining the rules, is thus also a challenge for each of the involved organizations and actors, obliging them to strategize and take actions in order to (i) shape the new rules and institutional arrangements, and to (ii) reposition themselves favorably within the new institutional framework. The Original International Institutional System Let me start by briefly sketching out the rules and institutional arrangements that prevailed on a global level prior to the substantial changes resulting from globalization in the 1980s and 1990s. The United Nations (UN) and the Bretton Woods institutions were the foundation of the institutional system, created in the aftermath of World War II. Their roles and modes of operation reflected the context of the time and the worldview of their architects, most notably the trio of experts U.S. Secretary of Treasury Henry Morgenthau, his chief economic advisor Harry Dexter White, and British economist John Maynard Keynes. The United Nations was set up in the quest for peace, human rights, and development, while the breakdown of the international monetary and trading system in the 1930s led world leaders to create the Bretton Woods institutions. In 1945, the nation-state became the major actor in both the conception and the design of this system called the “UN.” In organizational and institutional terms, the United Nations is a forum for negotiation among sovereign nation-states, all of which are equal on paper, but some of which are more equal than others in practice. This power distribution results from World War II, meaning that the winners (the United States, the former Soviet Union, Great Britain, France, and China) were rewarded with a seat in the Security Council, while the losers were not (i.e., Japan and Germany). As such, the United Nations is a sort of parliament composed of representatives of nationstates, currently 191. There is no real executive body in this parliament, except for the fact that there exists a Security Council, composed of the aforementioned five members (plus fifteen nonpermanent members)

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who have the power to veto or block the resolutions of the parliament, called General Assembly. There is also an administration which, like in any traditional national government, has two main functions, namely policy advice and service delivery (i.e., operations) along the main substantive areas of the United Nations (see later). And like for most national governments, the UN administration does not have a regulatory function, except for some very specialized and technical agencies, such as the International Telecommunications Union (ITU) or the Universal Postal Union (UPU). However, unlike traditional national administrations, the UN “administration” is subdivided into a set of specialized agencies with quite a substantial amount of organizational autonomy. This autonomy stems in particular from the fact that many of these agencies have their own members and boards and are financially autonomous. Historically, the largest among such autonomous agencies geared at policy advice are the International Labor Organization (ILO) and the World Health Organization (WHO), while the largest operational agencies are the High Commission for Refugees (UNHCR) and the United Nations Development Program (UNDP). In addition, there are numerous technical agencies, which specialize in a specific problem (e.g., FAO for food and agriculture, WTO for trade, UNCTAD for developing countries) and are mostly geared at policy advice. I have already mentioned the two oldest ones, whose origins actually precede the United Nations, that is, the ITU (1864) and the UPU (1874). But one should also mention the International Atomic Energy Agency (IAEA), the World Meteorological Organization (WMO), the World Intellectual Property Organization (WIPO), and several others. In substantive terms, the UN system is to be in charge of three main policy objectives, namely peace and security, economic growth (especially for developing countries), and human rights. Over the past 50 years, various UN operational agencies have played an increasingly significant role in development, human rights, and in securing peace and preventing conflict around the world, supported as they were by the various UN policy and technical agencies. In the field of development, the UNDP leads the pack of agencies in development and technical assistance. Of UNDP’s $2.83 billion annual resource in 2002, 40.22 percent was spent on governance programs, 26.6 percent on poverty reduction and gender, 17.3 percent on crisis prevention and recovery, and 16.11 percent on energy and environment programs (UNDP 2003). Altogether, the lead agencies (OCHA, UNHCR, WFP, UNICEF, and UNDP) have assisted millions of people around the world, and there is a clear shift from development support to humanitarian aid. Throughout

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1999, for example, the Office of the UNHCR provided international protection and assistance to some 22 million people who had fled war or persecution. Of these, some 17 million were refugees and returnees, and some 4.6 million were internally displaced persons. Internal conflicts have become the main cause of refugee crises. In the same year, the WFP assisted 29 million internally displaced people, refugees, and returnees, and 41 million victims of natural disaster; and UNICEF provided humanitarian assistance in 39 countries. The UNHCR is currently assisting 1.2 million asylum seekers and 2.6 million returnees (www.un.org). In the field of human rights, the Office of the High Commissioner for Human Rights (OHCHR) is mandated to promote and protect the enjoyment and full realization, by all people, of all rights established in the Charter of the United Nations and the international human rights instruments. The mandate includes preventing human rights violations, securing respect for all human rights, enhancing international cooperation in this field, coordinating relevant activities throughout the United Nations and strengthening and streamlining the UN machinery in the field of human rights. In addition to its mandated responsibilities, the office is leading efforts to integrate human rights throughout the entire UN system. The OHCHR is financed by the UN regular budget and receives voluntary contributions from governments and other donors. There are 37 special mandates, created by the United Nations to examine specific country situations or themes from a human rights perspective. The OHCHR supports the special rapporteurs, special representatives and working groups appointed by the Commission on Human Rights in carrying out their mandates. States’ participation in the treaty-body system has increased markedly over the last decade. In 1992, the total number of ratifications of states parties to the ICCPR, the “Covenant on Civil and Political Rights,” the “Convention against Torture,” the “Convention on the Rights of the Child,” and the “Convention on the Elimination of All Forms of Racial Discrimination” was 556. By August 2002, that number had increased to 776. All 191 members have become parties to the Convention on the Rights of the Child in the 12 years since it was adopted, representing an unprecedented rate of ratification. Two new optional protocols to the “Convention on the Rights of the Child” entered into force in 2002: the “Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography” and the “Optional Protocol on the Involvement of Children in Armed Conflict”; as of August 2002, more than thirty-five countries had ratified each protocol. While the impressive number of ratifications reflects the success of the treaty-body system, it is also

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straining OHCHR’s human and financial resources allocated to service that system (OHCHR 2003). Historically, there are two other functions that exist within the United Nations, even though in institutional terms they have been practically absent. I am thinking here of its financial function on the one hand, and of its trade liberalization function on the other. The financing function can be traced way back to the origins of the United Nations in the Bretton Woods institutions, in particular the International Bank for Reconstruction and Development, simply known as the World Bank, and the International Monetary Fund (IMF). Originally, the aims of the Bretton Woods institutions were to help rebuild a devastated postwar economy and promote international economic cooperation. The IMF was conceived as an institution that would ensure a stable monetary and financial system and provide the basis for a free-trade environment. This was to be achieved through a system designed to maintain a stable balance of payments and through surveillance powers. Such an approach is illustrative of the role of intervention and regulation. The World Bank’s main purpose was to assist in the economic and industrial reconstruction of Europe through the provision of long-term loans to governments for the financing of development projects and economic reform. Until the late 1970s, both Bretton Woods institutions were therefore securing loans, guaranteeing against investments risks, bailing out countries, and other finance-related activities. At that time, they did not yet have a development function. At the time of their inception, the Bretton Woods institutions included the policy objective of promoting international free trade. This was institutionalized in 1947 when the General Agreements on Trade and Tariffs (GATT) was formed, which only in 1994 translated into the more institutionalized form of the World Trade Organization (WTO). Therefore, though existent since the origins, both the financing and trade policy functions had been dormant within the United Nations until the 1980s, when globalization started to gain a serious foothold. Although both the World Bank (which has now grown into the World Bank group, including four additional organizations) and IMF are specialized agencies of the United Nations, they were able to carve out for themselves over the years a central role and authority in development. The original governance structures reflected the agenda for dealing with all aspects of international relations, be they economic, political, or social. Finally, I would like to insist on the fact that the international system is a state-centric system. Nation-states indeed remained, until the 1980s,

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the dominant actors on the international scene, and with a few exceptions also at the national level. There exist, of course, corporations, but most of them remain small and powerless compared to nation-states, while NGOs mainly exist only in their pre-institutionalized version, that is, as social movements. This state-centric system is furthermore cemented by the Cold War, as both Cold War powers basically work through nationstates and governments. Paradoxically, therefore, the state-centric UN system is both strengthened and weakened by the Cold War. Again, the emergence of non-state actors is mainly a phenomenon of the age of globalization, Globalization and Its Effects on the Nation-State Globalization has numerous dimensions, not all of which have emerged simultaneously. The main dimensions of globalization are technological (potentially universal in nature), financial (resulting from the liberalization of the financial markets during the 1980s), economic (globalization of production and consumption), ecological (increasingly global ecological problems), and cultural (cultural homogenization and local (backlash). All these dimensions are relevant to my organizational and institutional approach to governance. Indeed, they all directly or indirectly lead to the fact that problems—be they financial, economic, social, or environmental—are increasingly global in nature, while their implications are always local. In other words, the nation-state—or any other state-centric approach for that matter—is no longer necessarily the optimal unit for solving these problems. Better, such units might indeed be the global level, the regional level, or, depending upon the problem, the local level. Along with the question of the optimal unit of collective problem-solving comes the question of the actors involved or relevant for such problem solving, as I show later. There is no better illustration of this than the case of the environment. Indeed, starting in the 1980s, environmental problems increasingly came to be seen as global problems, requiring global solutions, or at least global attention. A look back over the past 20 years shows that during the 1980s, so-called global environmental problems were not only a major challenge to nation-states, but also to the state-centric UN system. I would even go as far as to say that it is the global environmental challenge that has triggered some of the most substantive institutional changes in the UN system, leading to its restructuring, as I show later on. Again, on the actors’ side, global environmental challenges have

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obviously led to including new actors, namely businesses and NGOs, and thus to the concept of “governance,” if not “global governance.” But not only have problems become global, so have the approaches that are increasingly being used to solve them. Again, the environment is probably a very good illustration of these by now global or rather universal problem-solving mechanisms, even though these mechanisms are by no means limited to environmental issues. I am thinking here in particular of problem-solving mechanisms such as the market—created by liberalization, and which must be global if efficient—and the new management methods, and information and communication technologies. As problems shift to the global level, and as traditional problem-solving mechanisms remain mostly limited to nation-states and agreements among them, the invisible hand of the market, universal management recipes, or the Internet, for that matter, appear to be credible ways to solve the problems that governments seem to be unable to address. This pragmatic approach is in itself the product of globalization, or rather the product of a new perspective created by globalization. As a matter of fact, globalization also means the end of development, or at least the end of the development perspective. From now on, there is no longer a flight ahead as the limits of the planet have been reached, at least in geographical terms. Problems have to be solved with the means at hand, involving all actors who can contribute to solving them. In contrast, the state did have a development—as opposed to an “end-ofdevelopment” perspective—leading it to plan strategically in order to develop its territory or otherwise conquer new territories. Not astonishingly, the development perspective that the nation-state had embraced is generally identical with a military perspective of conquest, with the nation-state as its chief and generally sole actor. In other words, globalization from an institutional and an organizational perspective simultaneously means the spreading of the nationstate as the only historically conceivable model for solving collective problems, and the emergence of non-state actors. This is only apparently a paradox: indeed, the state has emerged since the late eighteenth century as the model and unit of collective problem-solving. As such, the nationstate—despite its variations in the different cultures and continents—is quite a standardized model, which finds its origins in Europe and has been replicated, mostly thanks to colonialism, all over the planet. Consequently, it is all over the world that the nation-state runs into very similar problems once it becomes overwhelmed by its own “success.” By success I mean here the fact that it is mostly the nation-state which has given rise to globalization: indeed, it is the nation-states that have

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liberalized, opened up their borders, and promoted the type of science and technology, which in turn have contributed to bypassing the state. If there seems to be today a certain “return of the nation-state”—as part of a larger movement opposing globalization and liberalization—it is a very different phenomenon. Rather than a return to the old sovereign nation-state, it is an instrumentalization of the nation-state by some actors who either seek to defend themselves against globalization (e.g., trade unions) or, in the opposite, seek to use the state in order to further their global interests (e.g., TNCs). The overall picture, however, is that globalization has led to the emergence of global non-state actors as legitimate players in collective problem-solving. But, this is not only a matter of acceptability of these actors or, in parallel, a matter of decline of legitimacy of the state. Rather, it is also a matter of the growing power of these actors, mainly as a result of them becoming increasingly global. In other words, and more than 50 years after the creation of the United Nations and the Bretton Woods institutions, another set of new significant actors is indeed making its mark on the political and economic scenes. As globalization constrains or reduces the role of the nation-state, governments now share the stage with TNCs and NGOs. Their increasing influence is shaping the new forms of global governance. NCs, by their very nature, are mainly concerned with the reduction of their economic transaction costs and their balance sheet at the end of the day. Their influence is causing growing nervousness about the ineffectiveness of national government and international regulations to control their activities. TNCs are flexible when it comes to the use of national laws when it suits them, and the scale of activities of TNCs and the peculiar legal loopholes in which they operate create a threat to institutions, the environment, and the society in general. Again, it is in the field of environment where TNCs have made their mark. A most notable example, which opened the way for international regulation and environmental NGO advocacy, is the 1989 Exxon Valdez oil spill in Prince William Sound, Alaska. The controversy that followed the Exxon Valdez accident gave way to a voluntary code of conduct for environmentally responsible companies, now known as the CERES principles, and the U.S. Congress passed the Oil Pollution Act of 1990. In addition to TNCs and NGOs, there are two other types of new global actors that need to be mentioned. Although they are quite different in nature, both derive their success precisely from globalization, namely consulting firms and certifying agencies. While I will come back to certifying agencies later, I would like to say a few words about consulting

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firms. These firms are in my view very typical for the kind of organizations to which globalization has given rise: they offer a globally standardized product—despite their assertion that the product is tailored to national and even local specificities—they operate globally, and they have, in some ways, become more powerful than nation-states, given the fact that states also increasingly go by their (standardized) advice. It seems to me therefore undeniable that globalization already has, and increasingly will have, a significant effect on the state: globalization has given rise to powerful non-state actors, which are increasingly legitimate players in solving collective problems. In doing so, globalization has not only led to a multiplication of actors, but also to their fragmentation. Globalization and the end of the Cold War have thus weakened the state, and consequently all nation-state–based systems, particularly the United Nations. Let us now see how the United Nations reorganizes itself in order to face this new challenge. Reaction of the UN System Given in particular the fact that the United Nations is a state-centric system, it is imperative to first say a few words about the reactions of the nation-states vis-à-vis globalization. In my view, globalization poses four main challenges to the state: financial pressure, legitimacy problems, competition, and instrumentalization. Instrumentalization, I think, is by far the most serious challenge, but also the one that the state least recognizes, and where it will, as I argue later, be most vulnerable. The same four challenges apply to a state-centric system such as the United Nations. The responses of the state to these different challenges must be divided into substantive (policy), organizational, and institutional aspects. On a substantive level, it must be recalled how the state has acquired, over time, three central functions, namely security (law and order), repair (mainly for social and environmental problems), and production (i.e., operations or service delivery). It is easily understandable that the state will abandon the repair function, as this is the most costly one, as well as the production function, where the state is being lobbied for lucrative business. The state will keep the law and order function, as it is its core business, not to be abandoned under any circumstances. Furthermore, it will take on the new function or policy area of competitiveness, as states are increasingly competing against one another. On the organizational side, the state will seek to streamline activities and services it provides, eventually get rid of some, and privatize others. Generally, this is done along the New Public Management

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(NPM) principles, whereby the state restructures its operations. In doing so, there is a certain danger that each of the state’s organizational (and operational) units might pursue their own strategies, often leading to sell out to the highest bidder in order to survive. This, in my view, is a particular danger leading to what I call the instrumentalization of the state. On the institutional side, the state is known to react slowly, as any form of change inevitably affects the power relationships among the different actors involved in running public affairs, that is, the parliament, government, political parties, and administrative units. Generally, the state responds by offering power sharing to disenfranchised actors, such as associations or corporations, and new governance mechanisms, such as partnerships. But it also increasingly moves toward regulation (e.g., regulatory state), which again makes the state vulnerable to instrumentalization, notably by TNCs who want to influence regulation in a way favorable to them. To sum up, the nation-state will adapt to globalization by focusing on security when it comes to substance, and on regulation when it comes to institutions. The main danger of such restructuring of the state is that it increasingly becomes instrumentalized by ever more powerful global actors. A somewhat similar—yet much more complex—adaptation process can be observed when it comes to the United Nations. Again, one can distinguish between a substantive, an institutional, and an organizational dimension. Given the fact that the United Nations is a statecentric system, one will find numerous similarities between the reactions of the state and the reactions of the UN state-centric system. As in the case of the state, a state-centric system faces basically the same challenges: financial, legitimacy problems, and instrumentalization. It therefore also reacts in similar ways, notably by refocusing on the security function, by evolving toward a regulatory institution, and by selling out to powerful global actors. When it comes to substance, I have already mentioned earlier that the United Nations (excluding the Bretton Woods institutions and the WTO) have initially had three functions, namely peace and security, development, and human rights. We have seen that although much has been done in the area of human rights, development remains the main operational function. I have also shown earlier that the nation-state is increasingly abandoning operations in favor of regulation. It is therefore not astonishing that the United Nations is also increasingly focusing on peacekeeping and security. The main novelty here is probably that humanitarian affairs are increasingly associated with security, leading the traditional United Nations to mainly become an actor of humanitarian

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affairs and security (see later). The development function, however, is abandoned by the United Nations, mainly as a result of lack of financial resources. As in the case of the nation-state, a new function emerges, namely the function of regulation, resulting from the fact that there are private actors emerging, which in turn need to be regulated, if they are not calling themselves for regulation. This regulatory function is new and can probably not be assumed by the United Nations. In institutional terms, one can observe the same restructuring: the United Nations is being restricted to security and humanitarian affairs. Moreover, both are being linked together, as humanitarian problems have become security concerns, often used to justify military intervention. On the other hand, development, which was once one of the core businesses of the United Nations, has now been taken over by the Bretton Woods institutions, especially by the World Bank. Indeed, the Bretton Woods institutions are presenting themselves as development organizations with all that goes with it, such as poverty reduction, sustainable development, and so on. Finally, regulation is the domain of the WTO, mainly as a result of the fact that, after deregulation, some sort of global reregulation is needed. Again, environmental issues are not only an illustration, but even more so a crystallizer of this redefinition of functions and of institutions. As said earlier, the environmental question has triggered this transformation of the institutions, starting with the UN system. Environmental issues constituted new global problems that needed to be addressed collectively. In order to do so, the United Nations organized global conferences, the first one being the Stockholm Conference of 1972. In 1992, it organized the Rio Summit, which was a new approach to global problems, especially to environmental problems. This and all subsequent other summits (on women, poverty, etc.) gather other actors in addition to nation-states, namely NGOs, a category that also includes business. The goal was to solve all global environmental problems under the auspices of the United Nations. But already during the Rio Summit, the so-called global environmental facility (GEF) was set up as a joint venture between the United Nations (UNDP and UNEP) and the Bretton Woods institutions (World Bank and IMF). It was easily visible how, over time, the financing of the GEF and of sustainable development more generally would move over to the Bretton Woods institutions, especially to the World Bank. The United Nations was thus left with questions of environmental security and humanitarian relief resulting from environmental and other stressful issues. In parallel, the WTO became interested in environmental standards, first in order to remove it

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as an impediment to trade, but later as a means to reregulate trade (Finger and Tamiotti 2002). In short, the environment perfectly illustrates the transformations undergone by the international institutions as a result of globalization. Because of this pressure on the UN system—reinforced as it were by the UN’s financial problems—the main organizations within the United Nations try to adapt as well as they can (Dijkzeul and Beigbeder 2003). In doing so, they purse a dual-track strategy. To recall, many of the UN agencies do indeed have substantial latitude to adapt, given that they often have their own boards and financing. One track of their adaptation strategy responds to financial and legitimacy pressures: consequently, they link up with NGOs and with business. Indeed, they create all kinds of partnerships with private and nongovernmental actors, and quite quickly learn how some of their activities can be sponsored by the private sector, and how others can be outsourced to NGOs. The other track of their adaptation strategy responds to the erosion of the overall legitimation of the United Nations: as a consequence, UN organizations start to align themselves with either the Bretton Woods institutions or the WTO. Indeed, UN agencies active in development or technical assistance—such as UNDP, UNEP, and many others—increasingly rely on World Bank funding to execute their tasks and therefore become more and more dependent upon it. On the other hand, UN organizations, which are rather active in setting standards and norms, are seeking closer ties with the WTO. This, for example, is the case of the International Standardization Organization (ISO), UNCTAD, and others. These organizations that cannot align themselves with either one or the other seek to position themselves more clearly in the area of humanitarian affairs, relief and security, which is clearly becoming the core activity of what is left of the United Nations. The strategy to create partnerships with NGOs, particularly with TNCs, can also be observed of the United Nations in general. Indeed, the United Nations has announced a Global Compact, a partnership with financially potent TNCs. Similar strategies can be observed in particular sectors, such as health, with the creation of a Global Fund to Fight AIDS, Tuberculosis, and Malaria. Because of its financial problems, the United Nations will be particularly threatened and increasingly will have to rely on such partners. The Bretton Woods institutions, which do not have financial problems, instead become the subject of intensive lobbying by TNCs. In other words, they also become instrumentalized by the TNCs who would like to have a share of the development cake, that is, in particular infrastructure companies, public services TNCs,

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and consulting firms. Only the WTO will, in my view, keep some sort of independence from TNCs, given the fact that “independence” is the very source of legitimation of the WTO as a potentially global regulator. Future Perspectives on Global Governance from an Institutional and Organizational Perspective What is the future of global governance when viewed from an institutional and organizational perspective? This is the question I would like to address in conclusion, but is actually identical to the question of the future of the United Nations. The observation here is twofold: on the one hand, the world, in the age of globalization, is now confronted with global problems that no actor can solve on its own; on the other, no actor has sufficient power to command and control the overall system. This is true for the United Nations, as well as for the Bretton Woods institutions and for the WTO. But it is also true for nation-states, TNCs, and NGOs. Therefore, the different actors have to collaborate in order to address collective issues. Global governance is therefore not only a matter of collaboration, but also of compromise. The actors who will have it their way are the ones who are best capable of pulling the strings, that is, of manipulating the network of actors by means of defining network rules, playing network games, defining incentives and sanctions—in other words, by behaving strategically—which in the long run is primarily a matter of resources and strategy. Of course, some actors are better positioned than others to play these network games. This is particularly the case of TNCs, who command significant resources and have the potential to influence some of the global governance networks’ key actors: the United Nations, Bretton Woods institutions, and also governments (e.g., the United States, France). They also do have the appropriate approach to dealing with global governance institutions and networks, experienced as they are in both national and international lobbying. Other actors, such as nationstates, seem to be less suitable in dealing appropriately with the new global governance mechanisms. This is less a matter of means than it is a matter of focus and approach. Indeed, their focus increasingly is on security and their approach reflects mainly the old-fashioned command-andcontrol, both ill-suited for manipulating global networks. But then again, an organizational and institutional perspective will primarily look at the processes that limit the discretionary power of the involved actor, obliging them to strategize in order to achieve their

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objectives. This chapter has highlighted the fact that there is indeed a process of global institutionalization in which one finds nation-states, NGOs, and TNCs institutionalizing themselves in the United Nations, the Bretton Woods institutions, and the WTO. Each of these three global institutions specializes in a particular area (humanitarian aid and security for the United Nations, sustainable development for the Bretton Woods, and regulation for the WTO), and each of these three in turn aligns with certain nation-states, TNCs, and NGOs depending upon the advantage that can be drawn from such alignments. On the other hand, nation-states, NGOs, and TNCs are also linking up with the newly emerging global actors, in order to keep—or even increase—their discretionary power. References Commission on Global Governance. 1995. Our Global Neighborhood. The Report of the Commission on Global Governance. Oxford: Oxford University Press. Crozier, Michel. 1963. Le phénomène bureaucratique. Paris: Seuil. Dijkzeul, Dennis, and Yves Beigbeder, eds. 2003. Rethinking International Organizations: Pathology and Promise. New York: Berghahn Books. Etzioni, Amitai. 1964. Modern Organizations. Englewood Cliffs, NJ: PrenticeHall. Finger, Matthias, and Ludivine Tamiotti. 2002. The Emerging Linkage Between the WTO and the ISO: Implications for Developing Countries. In Development and Challenge of Globalisation, edited by P. Newell, S. Rai, and A. Scott, 89–101. London: ITDG Publishing. Giddens, Anthony. 2001. Sociology. London: Polity Press. Held, David. 1995. Democracy and the Global Order: From the Modern State to Cosmopolitan Governance. London: Polity Press. Office of the High Commissioner for Human Rights. 2003. Annual Report. New York: OHCHR. Rosenau, Jim, and Ernst-Otto Czempiel. eds. 2000. Governance without Government: Order and Change in World Politics. Cambridge: Cambridge University Press. Strong, Maurice. 2001. Where on Earth are We Going? Toronto: Texere Publishing. United Nations Development Program. 2003. Annual Report. New York: UNDP. Young, Oran. 1994. International Governance. Protecting the Environment in a Stateless Society. Ithaca: Cornell University Press.

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C h ap t e r 7 Global Governance and Domestic Politics: Fragmented Visions Basak Çalı and Ayça Ergun

Introduction Global governance is mostly studied as a top-down project. The meaning of the concept is analyzed and investigated from the perspective of a designated concept of the “global.” Such investigations focus rightfully on questions such as “How is the global defined?” “What does it replace?” “How valid is it?” “What and whom does it favor?” or more affirmatively, “How does it work?” and “How can it be done better?” In this chapter, we aim to alter the order of the investigation by focusing on how this influential contemporary Western idea can be understood by exploring its meaning and use in domestic settings. Our study of global governance thus aims to further the exploration of how global governance practices and discourses are produced and materialized in specific contexts.1 Within such a perspective, our focus is to identify and question the types of actors that emerge from the practices of global governance, the ways in which institutionalized power relations emerge amongst these actors, and how global governance practices frame or are reflected in domestic normative orders. This chapter investigates the manifestations of global governance by focusing on the domestic experiences of Azerbaijani and Turkish human rights organizations with respect to the penetration, implementation, and internalization of global governance practices in the political and practical life of these societal elites. Our main concern is the binary divide between global governance and domestic politics with particular reference to the relationship between agents of global governance, that is, international governmental and nongovernmental organizations (IGOs and INGOs) and domestic actors, that is, nongovernmental organizations

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(NGOs) in relation to what can be loosely termed “the human rights sector.” One of the consequences of the proliferation of the global governance project is the emergence of two sets of actors, namely the domestic and international.2 These actors operate on two different levels. The international actors are guideline providers, project designers, trainers, and supervisors. They are employed or affiliated with international organizations with funding, supervision, and consultation capacities. Domestic actors operating in the nongovernmental field, on the other hand, are implementers of the global governance projects. Domestic sites, despite the diversity of historical experiences, social background characteristics, and power relations between different domestic interest groups, transform into fields of implementation. Domestic actors falling short of performing their roles of implementation may be categorized by international actors as deviants or potential obstacles to the realization of the global governance projects. Global governance projects, however, are transformed, resisted, and appropriated every time they make their entry to their field of implementation by the characteristics of the domestic sites and domestic actors. In this respect, the relationship between the project and the field—between the international and domestic actors— should not be assumed but discovered. The ambiguities and the complexity of this interaction can enable us to trace how the project of global governance is altered and modified by specific contexts and how it also alters the contexts within which it operates. Our case studies enable us to identify and question the layers of articulations of global governance and patterns of persuasion and coercion such articulations entail. There lies a tension between the international and the domestic spheres of articulations of global governance. Domestic actors, societal or state, are not in the position of deciding or contributing to shaping the order of priorities of the international actors. Furthermore, the practices and priorities of domestic actors are often excluded in the study of how global governance is reflected and transformed in domestic contexts. Every time actors of global governance enter into a domestic sphere, agents of global governance become active players in shaping the domestic contexts. Thus, the shades of practices of global governance can only be understood through an analysis of the domestic sites with which they interact. The forms of imposition and voluntary acceptance, the nature of tensions between internationally recognized priorities and domestic preferences, the antagonisms due to the reproduction of a dichotomy between international and domestic actors, and the extent of

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resistance and the ambiguous position of domestic elites interacting with the international actors then become indicators of crucial importance. We take the realization of human rights to be one of the core concepts of the contemporary global governance project. We treat this concept in terms of the policy value that is allocated to it by the agents of global governance. Human rights has become a powerful institutional, technical, and discursive set of practices and principles assessing the legitimacy of politics, laws, and policies. (Forsythe 1999; Baxi 2002; Woodywiss 2003). Human rights clauses are mainstreamed into the policies of all international organizations promoting global governance ranging from the United Nations and its affiliated and specialized agencies, the World Bank, the International Monetary Fund (IMF), the Organization for Economic Cooperation and Development (OECD), the Council of Europe (COE), and the European Union (EU). All forms of contemporary social, political, economic, and cultural inequalities are formulated as human rights claims to receive recognition and validation by domestic and international actors alike. International institutions, governmental or nongovernmental, invariably declare the importance of protection and promotion of human rights to be at the heart of finding solutions to global problems at the local level (Charter of the Paris for a New Europe 1990; Vienna Declaration and Programme of Action 1993; Development and Human Rights: The Role of the World Bank 1998; United Nations Development Report 2002). In turn, this concept is often declared as an inseparable part of aid and funding packages offered to states and non-state domestic actors. Furthermore, membership to European organizations, namely the EU and the COE, is conditional upon meeting specified human rights standards (e.g., European Union Communications 975 and 976 1999). The agenda for the promotion of human rights is well supported by INGOs and donor institutions. This framework amounts to a declaratory and discursive consensus among the agents of global governance. It also purports to offer guidelines for their operations in different domestic contexts and the ways in which they construct their relationship with domestic agents. We assert that the promotion of human rights offers us strong clues in analyzing the nature of the relationship between global governance and domestic politics. The agents of global governance penetrate into domestic structures with a declared agenda to promote human rights. In the absence of full commitment of government agents to the human rights aims of international agents, domestic NGOs are considered as

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the main players for realization and implementation of global ideals (Risse et al. 1999). In the promotion of human rights, IOs establish links with domestic human rights organizations in various ways. They offer funding and form partnerships with local organizations. They also provide expertise and guidance. All these activities are realized by the means of funded projects, conferences, workshops, training, and the dissemination of published material. Consequently, this results in the internationalization of the work of domestic human rights NGOs. While intergovernmental organizations provide consultative and “implementing partner” statuses to local organizations, INGOs offer membership and partnership in projects, networks, umbrella groups, and federations. In looking at this interaction between the international and domestic organizations, our arguments unfold on two different levels: we argue that when the global matrix of human rights interacts with the domestic actors it alters material relations of power and the form of language that is used to address domestic political, social, and cultural demands. This interaction also leads to the transformation of domestic elites, creating a new generation of “global governance friendly” domestic elites. The relationship between the agents of global governance and domestic actors, however, is an unequal and asymmetric relationship where the guidance, expertise, and leading roles of the international actors can easily be observed. Our case studies demonstrate that the input and/or contribution by domestic actors in defining the terms and conditions of global governance remain very limited. In this unequal interaction, international agents encourage and contribute to the creation of a domestic elite compatible with them both ideologically and professionally. This newly emerged (or created) NGO elite facilitates the implementation of the practices of global governance in their respective countries. As a result, the issues and priorities of global governance become domesticated. But the extent to which these are the main and real concerns of domestic actors is yet questionable. The penetration of international actors into particular domestic contexts paves the way to the establishment of a new vocabulary and language in domestic spheres. This new vocabulary is internalized by the domestic actors and used extensively in their struggle for domestic change at the local level and in their interaction with their international counterparts. Praxis of Global Governance in Domestic Contexts: Turkey and Azerbaijan as Domestic Sites The two countries in question do not share striking domestic similarities as far as their internal dynamics, political culture, and history are

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concerned. They have not followed similar paths of political development. Azerbaijan is a post-Soviet country experiencing triple transformation of the state, economy, and society. The process of political transformation is also troubled by the transition to democracy, and the construction of a new nationhood and statehood. The emergence of civil society is a very recent phenomenon dating back only to the early years of independence. Turkey, however, has a consolidated nationhood and statehood. Even though its democratic experience has been interrupted by three military coups, Turkey has a democratic system of government and has been formally integrated into the global and European human rights regimes for a long period of time (Özbudun 2000). In this respect, Azerbaijan is a newcomer to the integration process into international institutions, and global governance processes, while Turkey is an old hand. The emergence of the direct involvement of international actors as guideline providers, donors, trainers, and consultants as part of the global governance projects since the beginning of 1990s is the basis of this comparative analysis. In both cases, the study of the interaction between the domestic contexts and the international element reveals similarities in terms of (a) the penetration of the international element into domestic contexts; (b) the attitude of the international actors to domestic actors; (c) the language and vocabulary introduced by the international element into the domestic context. The major differences with respect to political history and experience as well as the backgrounds of the NGO elite determine the divergences of attitudes of domestic actors to international ones in particular and toward the global governance projects in general. In Turkey, reference to “international standards” and “universal values” has a prominent historical place in advancing political struggles. The earlier Turkish human rights organizations were formed by groups made up of political activists, trade unionists, members of student associations of the 1960s and1970s (Samim 1981, 60; Aydınonlu 1992). These groups have survived two military coups. In the face of the extreme brutality and legal prosecution of the military coup of 1980 toward these groups, they regrouped under the label of human rights organizations. In this respect, the formation of human rights organizations had its roots in the internal dynamics of the society. In Azerbaijan, struggles for independence and attempts to democratize began as domestic movements without any input or support from the outside, including, in particular, from the IOs. Although the initial attempt at independence and democracy was purely domestic, the process of creating an independent and democratic nation-state then began to be shaped by interaction with international actors. These actors have come to

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Azerbaijan to provide what is needed and missing through technical, legal, and political expertise. In the case of Turkey, the international actors assume the role of reordering the domestic practices and are faced with an already existing set of deeply rooted domestic actors. In both cases, the IGOs and INGOs interact both with governments and civil society organizations in order to promote human rights and contribute to the establishment domestic structures that will comply with their vision of human rights implementation. In post-Soviet Azerbaijan, the efforts of the international element have been particularly focused on democratization and the protection of civil and political rights. In Turkey, the main concern of the international is the promotion of human rights, with an emphasis on civil, political, and minority rights (e.g., Amnesty International Turkey Human Rights Report 1996; Human Rights Watch Turkey Human Rights Report 1999; Freedom House Report on Turkey 2001). The activities conducted by IGOs and INGOs highlight the fact that the promotion of human rights is not only a question giving support to domestic actors in their domestic struggles. The promotion of human rights derives its legitimacy from a reference point of universality. This, in turn, means that international agents possess a self-defined authority to conduct these activities in the ways in which they have planned them. Both in Turkey and Azerbaijan, domestic human rights organizations see their international counterparts as equals who should support them in their domestic struggle. In Azerbaijan, however, the newly emerging domestic human right elite regards IOs as more competent and knowledgeable. The Azerbaijani human rights organizations (HROs) do not question the guidance provided to them by their international counterparts. In Turkey, on the other hand, the Turkish NGOs who come from older generations of political activists and who work in an amateur fashion have a more critical attitude. Their engagement with human rights empowers them to be critical of their own government as well as international organizations. The interaction with the practices and language of global governance has made these organizations skeptical about the very agents who promote them. Earlier NGO elites were engaged in the “human rights sector” because they saw this as a form of resistance to the violence and inequalities brought by the 1980 coup. This enabled them to question and make objections to the order of priorities presented to them. As newcomers to interaction with internationals, Azerbaijani HROs are not critical of how their international counterparts conduct operations and devise policies for Azerbaijan, whereas their Turkish colleagues at times openly confront the policies of IOs with

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regard to Turkey. However, this amateur spirit is under threat due to the diversification of the human rights sector paving the way to newly emerging, professional NGOs staffed with younger generations that resemble their Azerbaijani counterparts. IOs introduce new concepts to the Azerbaijani HROs through advice, training, guidance, and monitoring. They are treated as a source for encouraging the democratization of the country by providing assistance in incorporating and implementing international human rights standards. The international agents are the main financial providers for NGOs at the domestic sites. Many IGOs and INGOs allocate numerous grants for the implementation of research and training projects in the newly independent states. In this process, local NGOs then become the main grant receivers. These grants are predominantly used in the realization of projects, the organization of training, seminars and conferences, the publication and dissemination of leaflets, brochures, or handbooks. In this respect, IOs do not only provide financial assistance, but also show them how this assistance should be used. This relationship between donors and grant receivers has two consequences in Azerbaijan. First, local NGOs work more like research centers or institutes that conduct research and produce reports primarily for their international donors. Reports are mainly circulated among local and international NGOs; their coverage in the media is often very scarce. Audiences of conferences are low; training is short-term. With the financial assistance, local NGOs can only maintain their presence rather than promote grassroots activities or initiate larger projects. Moreover, any activities by local NGOs cannot be realized without funding, since they have no other material means for fund-raising such as membership fees and donations from the private sector. A part of the funding is also used for staff ’s salaries, technical equipment, and maintenance expenses. Thus international financial assistance is not only used to promote the sector of human rights but also to provide job opportunities for the NGO elite (Herzig 1999, 38). Second, the fact that the local NGOs are dependent on foreign financial assistance disrupts the continuity of their activities (Ergun 2003). NGOs that are willing and capable of implementing projects that fall into the priority list of IOs are more favorably received in the donor circles. The financial constraints on the activities of NGOs lead to the emergence of “favorite” NGOs that not only have the monopoly of grant-taking, but also the privilege of being invited to foreign countries, international conferences and trainings abroad, and presented as representing the human rights activists of their countries.

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The bulletins published by both local and international organizations invariably include guidelines on “How to Write a Project Proposal” and “To Whom to Apply to Get Funding” (ISAR Third Sector Funding 2001; Gayri Hökümet Teukilatları Informasya Bulleteni (Information Bulleting for Non-Governmental Organisations) 1999). Proficiency in the preparation of a project proposal becomes a precondition to be a successful and active NGO. Thus, the internationally oriented, project-based approach to the formation of civil society makes local NGOs compete on how to write a good proposal instead of improving their activities, gaining members, opening up channels of participation in state building or democratization. Therefore, international funding contributes more in the creation of new professional elite who have acquired the necessary skills in order to deal with the requirements of the international element but who are less equipped in functioning as an NGO. In Turkey, human rights organizations have a policy of not accepting financial aid directly from foreign states. Their main source of funding is through membership fees, donations, competitive grant bids from IOs, and project partnerships with international counterparts. The law on associations has a provision for approval from the Ministry of Interior for any foreign funds to be cleared through the bank accounts of local organizations.3 In the 1990s, due to the administrative practices to use this clause as a tool of control and punishment for “bad associations”, Turkish human rights organizations were frequently barred from receiving funding from IGOs and INGOs. They have mostly relied on their local sources, a limited number of professional staff, and a broad network of volunteers to carry out their campaigns.4 NGOs that focus more on economic and social rights, on the other hand, regard international funding as a dead end in itself. As one interviewee states, “When we apply for funding, for example the EU funds, we are almost certain of not getting it because we are not one of the favorites of the EU. International donors seem to prioritize issues such as torture or cultural rights and do not show interest in our projects on social injustice or the right to education.”5 The policy of the control of the flows of international funds to Turkish HROs and their inability to receive large sums of international funding have, though unintentionally, held off the emergence of funding-oriented human rights activism in Turkey in favor of a more amateur-spirited human rights groups. Such groups have also questioned the implications of receiving funding from non-state international actors arguing that even this may jeopardize their independence.6 Because the Turkish government has since relaxed its control over the flow of funding, Turkish human rights organizations now seem to be stuck in a vicious cycle. Their limited sources of international funding

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prevent them from implementing projects on a greater scale. Indeed, they sometimes face severe financial crises in meeting their basic needs. However, they have the advantage of remaining amateur, self-sufficient, (though with major difficulties) and independent human rights defenders, who are able to take a critical stand in relation to international funding networks. On the other hand, there is the risk of being alienated from the human rights sector, since the attractive funding opportunities are leading to the creation of new NGOs concerned with human rights. In contrast to amateur organizations that were born out of political and personal commitments to human rights, organizations with professional structures that are technically equipped to meet the demands of international agencies are emerging. The provision of EU funding is a case in point. The attractive funding packages offered by the EU have led to the creation of consulting firms whose aim is to obtain financial gain from such projects. These new organizations operate from urban Turkey and employ staff with foreign-language skills and expertise in project management. In cases where the EU funding makes a provision for the state agencies to allocate the funding, clientelism and political connections come into play in the determination of the beneficiaries. Such practices lead to the creation of alienated civic activity. To fulfill EU criteria for the project funding becomes an end in itself. The creation of professional NGOs does not lead to a new ideological commitment to human rights, but the creation of local implementers who do not possess a clear and critical vision about the project itself. Organizations with a critical and independent edge are prone to be excluded from linking with the institutional power structures created by such international agents. The milieu of interaction between international and domestic organizations both in Azerbaijan and Turkey, shape the latter’s relations with the state.7 IOs are treated as legitimate support bodies by local human rights NGOs. They constitute recognized and respected structures to complain about government’s antidemocratic practices and constitute channels through which they can challenge government. Their relations with international partners make them recognized as human rights activists internationally and protect them against the arbitrary practices of government locally. When local human rights NGOs cannot place pressure on the government, they ask international bodies to do so.8 Conversely in Turkey, human rights organizations do not think that their interaction with their international counterparts is making their work more effective vis-à-vis the government authorities. Human rights organizations make the ironic remark that it is easier for them to get appointments from ministers of foreign countries, or high-ranking

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international bureaucrats than civil servants in Turkey.9 Human rights organizations enjoy a considerable degree of prestige in international circles. This duality leads to a careful assessment by the human rights organizations on how far the international element can make an impact and further their cause for human rights in the domestic sphere. Similarly, human rights organizations in Turkey publish monthly and annual human rights reports, which are extensively cited by IOs and are put on the agenda when the IOs meet with government authorities. IOs, international NGOs, and other states, make use of the work of human rights organizations to criticize and demand further improvement in Turkey’s human rights record (e.g., European Union Normal Report on Turkey’s Progress Towards Accession 2001). Some human rights organizations point to the fact that their reports are selectively used by international bodies and that some cases receive more international attention than others (e.g., the torture of a Kurdish political prisoner makes it to a EU meeting, whereas the torture of an ordinary criminal does not). However, for these organizations, their reporting and disseminating of human rights violations has to continue despite the selective attention they receive from international agents. The Appropriation of Human Rights Language In Azerbaijan, the penetration of the agents of global governance initiated the interaction and learning process by which local human rights organizations began to use the vocabulary introduced by their international partners. In this respect, in a transitional state like Azerbaijan, the language of the international element to understand democracy and human rights has become part of the domestic language (Ergun 2003). The introduction of the internationally used concepts leads to the domestication of their usage at least among the political and societal elite. The terminology of NGOs, third sector, and citizen community inevitably become indispensable parts of the language that local NGOs use in communicating with their international partners. What is more striking, original English words, such as gender, manager, management, and monitoring have become a part of the vocabulary of Azerbaijani language. Therefore, the language of the agents of global governance—English— is internalized and become vital in order to deal with the issues promoted by them. Thus, the English language has replaced the predominant and excessive use of Russian in the country. Efforts in learning English also show the part of the world with which they are eager to become integrated. As a result, the practices of global governance create an

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internationalized political vocabulary that facilitates both interaction and integration. The internationalization of vocabulary paves the way for local HROs to formulate their domestic political struggles using the international language of global governance. In Azerbaijan, the nationalization or domestication of the international vocabulary only occurred in the recent years of political transformation. This does not, of course, imply that all these concepts are new in the post-Soviet political transformation. Concepts such as the extension of liberties, autonomy, human rights, and democracy were all incorporated in the agendas of independence movement. What is remarkable now is that all local NGOs—and political parties— use a new vocabulary in their domestic struggle for democratization and promotion of human rights. Until 1998, opposition groups (both NGOs and political parties) referred to political prisoners as “their friends who were unjustly imprisoned due to their activities against the existing government.”10 Later on, “injustices done to our friends in prison” have become “torture, degrading and inhuman treatment of prisoners in contravention of United Nations human rights treaties.”11 These new concepts and this new style in naming the previously addressed issues facilitate local HROs’ interaction with international counterparts. The use of an international vocabulary also creates a new audience for the domestic actors on international platforms. It increases their credibility and shows their competency in the sphere of civil society. They not only seek to influence public opinion, but also IOs. When local HROs come across antidemocratic practices exercised by the government, violation of the rule of law, and abuses of human rights, they complain to IOs. They try to attract their attention to domestic problems, ask for support, and for pressure to be exerted against the government. These also turn domestic struggles into international issues. However it should also be noted that this internationalized vocabulary is predominantly used in civil society and political elite circles. On the other hand, it is not clear to what extent the public at large appropriates the new language. Through the use of a new internationalized vocabulary together with training, guidance, and funding, the agents of global governance create a new elite that gradually adjusts to the international environment. They also contribute to the creation of professionals who speak from the framework of an international agenda, who know how to run projects and organize trainings for local people, and who learn how to be good human rights and democracy promoters. How the vocabulary of global governance was integrated into the Turkish context is rather different. Today’s human rights defenders admit

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that they consciously changed their language in the mid-1980s. In the 1960s and 1970s, a vibrant civil society, composed of trade unions and student unions, was fighting for “equality and social justice and redistribution of wealth for all.” One member of a human rights NGO admits that in those days they regarded human rights as the discourse of the “bourgeoisie” against whom they positioned themselves.12 In 1980, when the coup d’état brought comprehensive restrictions on associational life in Turkey, and left hundreds of thousands people missing and tortured, the same group of activists realized that human rights–based advocacy was the only safe platform to advance political struggle against regime. The bourgeoning human rights organizations also realized that it was much easier to mobilize international support if they used the international human rights language rather than using left-wing political slogans. At this juncture, the international human rights vocabulary became a tool for advancing domestic political struggles, and was rapidly domesticated. The leaders of most human rights organizations admit that they were not familiar with the theory of human rights, nor had they knowledge of how to build partnerships with IOs at the time. As one interviewee stated, “Human rights language had become our lifeboat. There were thousands of people tortured and missing and human rights language brought the otherwise fragmented political groups together under the umbrella of human rights organizations.”13 The emergence of the HROs after 1980 challenged three traditional binary divides in Turkish politics—Left/Right, Turkish/Kurdish, and Islamist/Secular—by reformulating these cleavages as stemming from the infringement of the rights of individuals by the state. The concerted efforts of these organizations on civil and political rights such as rights to life, liberty, security of person, and fair trial, as well as the freedom from torture, arbitrary arrest, detention, and imprisonment, without discriminating the multiple and overlapping identities of individuals have been a success of the appropriation of this language. Most of the sensitive and contested issues of Turkish politics have, therefore, become human rights issues in the domestic sphere. However, translating struggles for socioeconomic rights into the human rights lexicon and receiving support for these issues from international agents have not been successful. After 15 years of domestic struggle in the name of human rights, Turkish HROs admit to being more skeptical about their global counterparts. They, at times, find themselves in open confrontation with their international colleagues in approaching issues, such as human rights, globalization, and economic and social rights. As the president of one of

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the prominent human rights NGO states, “We are at times completely lonely. Nobody likes us in Turkey and we increasingly realise that our international friends have also started to despise us because we openly criticise their policies.”14 In Turkey, human rights organizations forcefully invoke the human rights language in domestic politics. In their interaction with IOs, however, they are doubtful about the commitment and capability of global agents to extend the human rights language to combat forms of political and social injustice that they link with neoliberal economic, political, and social policies. In this respect, the domestic agents identify their international counterparts not as guideline providers, but as powerless implementers of grand political projects themselves. Contrary to their Azerbaijani colleagues, human rights defenders in Turkey do regard the human rights discourse as a way of both affiliation and disaffiliation with their international counterparts. Conclusion The practices and the language of global governance do play a role in shaping political and civil societies in domestic contexts. They create professional agents of global governance at the domestic level who invoke a globally tuned language to transform domestic politics. However, the extent to which the domestic agents contribute to the agendas and are able to evaluate the outcomes of the policies of their global counterparts remains open to question. To what extent can domestic agents criticize their global counterparts? Is it possible for the domestic critiques to feed into the project? We have argued that the more domestic agents become parts of the institutional structures of global governance, the more tamed, professional, technical, and less critical they become. The assumed allocation of the role of the “implementing partner” to domestic agents presents us with a categorical map of misreading while understanding and explaining the practices of global governance and how these are materialized in domestic sites. The capacity to critique the system that creates them, even if they are willing to comply with it, is limited for domestic actors due to their “implementing” identity. Human rights is one of the least contested projects of global governance. As we have argued, domestic actors initially accept this project not out of imposition, but out of persuasion. However, the institutional power relationships brought by global governance practices transform the nature of imposition and persuasion. Patterns of inclusion and exclusion emerge. Practices of global governance favor the technical vis-à-vis

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the political, the professional vis-à-vis the amateur, and the tamed vis-à-vis the critical. Global governance practices, as they stand, remain a Western, top-down project with predetermined conceptions of how the local should be. It is a project that is imposed upon the domestic civil spheres, where the domestic contexts of the south or the east are understood as areas of implementation, practice, and “training of trainers.” Domestic NGOs are persuaded that they have to talk in the language of their international counterparts. The dependency of local HROs on the internationals in terms of financial assistance, the import of discourses, terminology, and expertise reveals an uneasy relationship. The lack of input from domestic actors in defining terms and conditions of global governance leads at times to a monologue. This unequal and asymmetrical relationship may be overcome only if international actors are able to perceive the domestic sites not solely as a field of implementation, but as a domain of mutual interaction. In cases where the agents of global governance are not fully aware of domestic circumstances and priorities, their contribution to promote human rights is far from achieved. Agents of global governance present their priorities as the main priorities or at least the priorities that should be incorporated into domestic agendas. In this sense, the domestic actors have no opportunity to change or modify the order of priorities. The way in which the relationship between the two levels is set up does not facilitate critical input from domestic sites. In this mutual interaction, however, international actors should carefully consider the local sociopolitical contexts and the perspectives of the domestic actors. The needs and priorities of the domestic actors should be taken into account instead of “full implementation” of projects of global governance formulated in different social, political, and cultural settings. Moreover, the perspectives of the domestic actors should be incorporated into international agenda settings, which would at the same time recognize their potential input. International actors should simultaneously engage themselves with alternative voices within domestic spheres and calculate carefully to whose advantage or disadvantage they are altering internal power relations within a country and the short- and long-term implications of this intervention for the values they seek to promote. Otherwise, not only will their contribution remain cosmetic but also local civil societies would become monopolized by “chosen favorite NGOs” who would lack the potential of mediating between state and society. In cases where local struggles are only heard when they are compatible with the lexicon and practices of international actors without the contribution of domestic

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sites, the project of global governance for the promotion of human rights proves to be fragmented. Notes 1. This chapter is based on fieldwork conducted in Turkey and Azerbaijan between 2000 and 2002. We would like to thank all those with whom we worked while in the field as well as participants in the Critical Perspectives on Global Governance Workshops in Amerang, Berlin, and Harvard Law School Eureopean Law Research Centre, Cambridge. 2. We use the terms “the internationals” and the “domestic”; the domestic actors and international actors; domestic agents and international agents interchangeably. 3. This practice was carried out by interpreting the Article 60 of the Law on Associations of October 6, 1983, published on the Official Gazette on October 7, 1983, in a restrictive manner. 4. Interview with the President of Turkish Human Rights Foundation, June 3, 2002. 5. Interview with the Board Member of Turkish Human Rights Institution, January 2, 2002. 6. Interviews with the presidents of HROs, June 2002. 7. Ergun (2003, 652–653) specifically discusses this point in relation to Azerbaijan. 8. Some examples include persuading the government to take into consideration their proposals concerning the legal framework for NGOs’ activities, eliminating obstacles during registration process, facilitating NGOs’ work in the regions, allowing NGOs to monitor elections, having more media coverage, and facilitating the release of persons detained or imprisoned on political grounds. 9. Interview with the Human Rights Association for the Oppressed, June 7, 2002. 10. Authors’ interview with opposition political party leaders, December 1996–January 1997. 11. These are the expressions that were frequently used during the interviews conducted with the representatives of human rights organizations in Azerbaijan (November–December 2002). The same change of vocabulary and introduction of new concepts can also be seen in other spheres of civil society. Active participants of women’s organizations were previously concerned with the antidemocratic practices rather than focusing on gender issues. For the last few years, however, Azerbaijani language acquired a newly acquired term “gender” which is used to capture “women’s problems”. Women’s problems, which were not previously expressed publicly as they were considered belonging to the private sphere, later became public issues and were integrated in the discourses of local NGOs following the funding and training provided by IOs. 12. Interview with the President of Turkish Human Rights Foundation, June 3, 2002.

176 / basak çalı and ayça ergun 13. Interview with the President of Turkish Human Rights Foundation, June 3, 2002. 14. Interview, President of the Turkish Human Rights Association, June 6, 2002.

References Amnesty International Turkey Human Rights Report. 1996. London: Amnesty International. Aydınonlu, E. 1992. Türk Solu: Eleutirel Bir Tarih Denemesi 1960–1971. 4stanbul: Belge Yayınları. Baxi, U. 2002. The Future of Human Rights. Delhi: Oxford University Press. Charter of Paris for a New Europe. 1990. Vienna: Organisation for Security and Co-operation in Europe. Communication 975 on the EU’s Role in Promoting Human Rights & Democratisation in Third Countries. 2001. http://www.europa.eu.int/comm/ external_relations/human_rights/intro/index.htm, accessed on July 30, 2003. Communication 976 on the EU’s Role in Promoting Human Rights & Democratisation in Third Countries. 2001. http://www.europa.eu.int/comm/ external_relations/human_rights/intro/index.htm, accessed on July 30, 2003. Development and Human Rights: The Role of World Bank. 1998. Washington DC: World Bank. Ergun, A. 2003. International Challenges and Domestic Preferences in the Post-Soviet Political Transformation of Azerbaijan. Perspectives on Global Development and Technology 2 (3–4): 635–657. Forsthye, D. 2000. Human Rights in International Relations. Cambridge: Cambridge University Press. Freedom House Report on Turkey. 2001. Washington DC: Freedom House. Gayri Hökümet Teskilatlari Informasya Bulleteni. (Information Bulleting for Non-Governmental Organisations). September 1999. Baku. No: 3. Herzig, E. 1999. The New Caucasus, London: The Royal Institute of International Affairs. Human Rights Watch Turkey Human Rights Report. 1999. New York: Human Rights Watch. ISAR. Third Sector. February–March 2001. No: 34. Özbudun, E. 2000. Contemporary Turkish Politics. Boulder, London: Lynne Rienner. Risse, T., S. C. Ropp, and K. Sikkink, eds. 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Samim, A. 1981. The Tragedy of the Turkish Left New Left Review 126: 60. United Nations Development Report. 2002. New York: United Nations. Vienna Declaration and Programme of Action. 1993. New York: United Nations. Woodywiss, A. 2003. Making Human Rights Work Globally. London: Glass House Press.

C h ap t e r 8 Reconstructing the Balkans: A Global Governance Construct? Rebecca J. Johnson

Introduction Several of the essays in this book examine global governance at a very abstract level—as a discourse or a rhetorical move that influences thinking on legitimate social organization in its broadest terms (Späth, Friedrichs, Johns, and Patomäki). Analyses span the theoretical and empirical spectrum so that an examination of sixteenth-century Venice immediately precedes this selection, blending fluidly with the development of a future vision for political life. Perhaps it is their disconnection from the world as it exists today that gives these articles their critical distance and analytical power. This essay adopts a different approach. It scrutinizes the specific in an effort to gain leverage over the general. Its distance is psychological rather than temporal or spatial. The power of the critique launched here derives from the unease that is created when one is confronted with the reality that something is broken, that it cannot be fixed, and that although broken, it is still better than its counterparts in good repair. When faced with this realization, some may prefer to ignore its brokenness; others may wish to insist it is fixable. This essay does neither: It exposes the brokenness of the global governance project through an empirical analysis of global governance “in action” in Southeastern Europe. It explains why small corrections are insufficient to mend its deficiencies, and it demonstrates that the only hope for the region is to rely on it anyway, broken or not. Briefly put, the argument is as follows. The underlying liberal norms that structure global governance projects internationally have been institutionalized in the post-conflict reconstruction efforts undertaken by the

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United Nations, the European Union (EU), and NATO. The West has offered a template for reconstruction in the Balkans that bestows legitimacy on the post-conflict governments of the region in proportion to their ability to comply with the liberal values of regional and European integration, development of domestic good governance institutions, and commitment to economic liberalization. One is left to question whether the method of reconstruction provided to Southeastern Europe resonates with the realities, expectations, or desires of the region’s leaders and citizens. Further, the invasive methods adopted by the international community to implement post-conflict reconstruction in the Balkans disappoint the liberal values that define global governance. The particular manifestation of the global governance project that is found in the Balkans demonstrates a complete betrayal of the general project’s core principles. The reader is left to judge whether this injury is fatal. On the other hand, there may be no other way to realize reform. Given the divergent positions of the many populations in the area, Western involvement serves as one of the few cohesive elements in Southeastern Europe. No matter how inappropriate, the social, political, legal, economic, and security “scaffolding” erected by the EU, the United Nations, and NATO may provide the necessary room for those in the region to rebuild on the ground in the long run. Because of this, a betrayal of liberal values may be the necessary price to be paid for improving the lives of those shattered by war. While this chapter attempts to distill the costs associated with maintaining the liberal principles that give life to global governance versus those associated with responding to human need, it cannot offer a satisfactory, objective answer to this dilemma. Rather, individual decision-makers and analysts must decide whether the liberal values of equality, enfranchisement, individual rights, and human reason must or should be sacrificed for the stability of particular groups of people. A Global Governance Approach to Post-Conflict Reconstruction in the Balkans The wars in the Balkans in the 1990s outraged many Europeans by shattering the illusion that the new Europe would be free of the bloodshed of the past. Leaders from across Europe proclaimed that the violence found in Croatia and Bosnia should never be seen again and developed a reconstruction program with the goal of binding Southeastern Europe tightly with European institutions. By tying explicit rewards to economic and political reforms, the international community sought to evoke

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domestic reforms in the region that would create the conditions needed to check any future regression to violence while at the same time providing economic incentives for peace. Reconstruction efforts have been coordinated primarily through three bodies: the EU, the United Nations, and NATO. While significant overlap certainly exists, each organization maintains a particular area of responsibility: The EU focuses on regional integration and economic development, the UN conducts civilian administration (with assistance from the OSCE), and NATO provides security. The policies adopted by the international community to realize its goal of regional stabilization are steeped in Enlightenment principles— equality, enfranchisement, individual rights, and the power of reason. They reflect not only the general understanding of global governance, outlined in previous chapters in this volume, which shifts the focus of investigation from the state to new forms of social organization and new arenas for and manifestations of authority. This understanding goes one step further to infuse governance practices with a traditionally liberal commitment to Enlightenment ideals. The product is not simply postconflict reconstruction in terms of rebuilding governmental and economic institutions, but a particular sort of governmental and economic institutions that comport with liberal values. The goal of this method is to obscure past fault lines for conflict by funding reforms that divert decision making to the local and regional levels (mirroring the same process that is currently under way among EU member countries). Educational and cultural policies are handled at the local level, while economic and political decisions are governed by European policies. New societal groups are also encouraged to participate in governing the states and region to serve as watchdogs over potentially corrupt government officials. In the more severely damaged entities of Bosnia and Kosovo, the international community plays an even more pervasive role in the composition and administration of the government. While laudable in their intent, the liberal global governance approach adopted to reconstruct the Balkans has severe side effects that highlight limitations to the effective implementation of global governance practices. This section outlines these side effects by examining post-conflict reconstruction efforts in Bosnia and Kosovo. While the Balkans is a far larger geographic and sociopolitical space than these two areas, they are the archetypical examples of the international community’s involvement in post-conflict reconstruction. Further, focusing on only two areas allows for a deeper analysis than a merely cursory examination of reconstruction efforts throughout the region.

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While the focus of the EU is regional integration (conducted through the Stability Pact for Southeastern Europe and bilateral EU accession talks), the actual administration of Bosnia and Kosovo is conducted under the auspices of the United Nations. Though it is involved in projects from curriculum development to police training, its most prominent role is in the general oversight of civilian implementation of the peace agreements in Bosnia and Kosovo. In Bosnia, this process is run by the Office of the High Representative (OHR). Though an independent office, the United Nations exerts control over the OHR by endorsing individual High Representatives. It is “the role of the OHR to bring Bosnia-Herzegovina to the point at which its peace is truly secure, so that the country can continue its journey towards Europe with confidence, supported by its friends, but relying, not on their efforts, but its own” (Ashdown 2004). To reach this goal, the OHR conducts four core tasks: (1) entrenching the rule of law; (2) reforming the economy; (3) strengthening the capacity of Bosnia’s governing institutions, especially at the State level; and (4) embedding defense and intelligence sector reform in ways that facilitate Bosnia’s integration into Euro-Atlantic structures (Ashdown 2004). OHR maintains ultimate authority over the administration of BosniaHerzegovina. Though democratically elected officials pass and implement legislation, their efforts may be reversed by the High Representative, should the OHR deem the government’s actions to hinder Bosnia’s reform. This control extends until the OHR is satisfied that the Bosnian government will administer itself in a manner that is pleasing to the international community. The remarks of the High Representative, Paddy Ashdown, are worth noting at length. In outlining OHR’s mission for 2004, Ashdown addressed the issue of transferring powers back to the Bosnian government. He wrote: It should be emphasised that the speed of BiH’s progress towards transition—and towards a reconfigured international presence that can relinquish its powers—will be determined not by rigid timelines, but by an ongoing assessment of the situation on the ground. Are the habits of stalemate and obstruction being replaced by a dynamic of compromise and reform? Is peace enduring? Has the rule of law been made secure? Is the state functional and viable? Is BiH on track for European integration? Only when we are satisfied that sufficient progress has been made in these respects will we be able to declare our mission fulfilled. It follows from this that the more energetically our BiH partners implement reform— and the more BiH becomes a normal transition country—the sooner OHR will be able to hand over to a more traditional international support structure. (Ashdown 2004)

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Both the goal and the structure of reform reflect OHR’s embodiment of liberal global governance principles. In the High Representative’s 2004 Mission Implementation Plan, Ashdown stated the mission’s goal succinctly: “To ensure that Bosnia and Herzegovina is a peaceful, viable state on course to European integration” (Ashdown 2004, 2). A similar liberal purpose underlies OHR’s specific goals with respect to Bosnia’s political institutions. The Mission Implementation Plan notes, “In the past, weak institutions and multiple layers of government have served to blur lines of official responsibility, inhibit accountability, and undermine the state’s capacity to combat crime. . . . The aim must be to put in place an affordable, effective and professional public administration—and one which is efficient, honest, and secure to interface with the public when issuing identity documents, licences, and the like” (Ashdown 2004, 9). Using the mandate issued by the Security Council, OHR representatives have unlimited authority to create a peaceful Bosnia with the efficient and accountable institutions needed to comport with Western ideals. Global governance practices are the legitimating enabler of this form of liberal post-conflict reconstruction. Without the mandate from the international community or the shift in thinking about the contours of what constitutes the sovereign choices of the state (in this instance it is the shift in thinking regarding the legitimacy of compelling states to make the “sovereign choice” to integrate regionally and adopt foreign governing practices and institutions) it is inconceivable to imagine the OHR undertaking such extensive and invasive reforms. Without the dominance of a liberal governance paradigm, OHR’s mission would be constrained to technical reconstruction, humanitarian assistance, and financial aid programs. It is only because the creation of liberal political and economic institutions is seen as a normative good and the existing government is deemed to be unable to build those institutions on its own that the OHR has been vested with the power it has. Further, the liberal governance paradigm is so entrenched that it is impossible to imagine post-conflict reconstruction efforts that are less invasive. Were OHR’s mission to be constrained to the tasks listed earlier (technical reconstruction and the like), the international community would be charged with negligence. A similar configuration exists in Kosovo. There, civilian implementation is coordinated through the United Nations Interim Administrative Mission in Kosovo (UNMIK). As outlined by Michael Steiner, former UN Special Representative of the Secretary General in Kosovo, at a speech given in London in early 2003, UNMIK’s mandate covers three areas: to administer Kosovo, “to create the institutions necessary for Kosovo to exercise substantial self-government,” and “to facilitate a political process

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to determine Kosovo’s final status one the time is ripe.” As with the mission in Bosnia, UNMIK’s objective is grounded in the values of liberal global governance—“to equip Kosovo with the institutions it needs to exercise substantial autonomy and to set it on the way to Europe.” To realize this objective, UNMIK has been given even greater administrative authority that the OHR. According to Steiner: . . . in Kosovo, Resolution 1244 has made UNMIK the ultimate authority. That gives us the power to carry out police investigations, the powers of arrest and the authority to try suspects and imprison criminals. Not advisory powers, as international police in Bosnia had, but executive powers. Powers that are critical to meeting the challenge of our mission—achieving fundamental standards that apply to all functioning societies.

Again, since the leaders in Kosovo lack the ability to build governing institutions that meet the criteria of the international community, an organ of the international community has been charged with creating those institutions on Kosovo’s behalf. Two additional factors make Kosovo a particularly interesting illustration of the strength of liberal global governance practices. First, Kosovo exists as a protectorate of the international community. While officially decreed by the Security Council to exist legally as a constituent part of Serbia, Belgrade lacks any jurisdiction over Kosovar affairs. The sole legitimate governing authorities in Kosovo are the international missions at work there. UNMIK has created “Provisional Institutions of Self-Government” (PISG), which are local governing bodies that follow the guidelines established by UNMIK, but they have no independent authority or capacity. The final status of Kosovo (Kosovo’s status once the international protectorate ends) will not be decided until the PISG “attain certain benchmarks— including free, fair and regular elections, free media and a sound and impartial legal system” that have been articulated by UNMIK. Again, liberal governance practices will be instilled by the international community until such time as Kosovo makes the “sovereign choice” to carry out these practices on its own. This “sovereign choice” must be made before the province will officially be given statehood. With regard to Kosovo, liberal principles trump the sovereign rights of Serbia or the potential sovereignty of Kosovo. International Efforts: The Effects of a Global Governance Approach How has the grounding of post-conflict reconstruction in liberal global governance principles influenced developments in these states?1 Clearly

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the region is better off than it was before international involvement, when ethnic strife and political repression existed without check. Violence has all but ceased in Bosnia-Herzegovina, and politicians from the three entities are currently debating constitutional reforms that may fundamentally alter the composition of the state in ways that promote further integration and normalization.2 This step marks substantial progress since Dayton. Progress has also been made in Kosovo. Though marred by the outbreak of violence in March 2004, UNMIK, working with Kosovar officials, unveiled the Kosovo Standards Implementation Plan, which outlines the necessary steps that must be taken to enable discussions to begin on Kosovo’s final status. The ultimate transfer of authority will not occur until the province’s final status is resolved—and that will not likely happen for several years—but the situation is moving in the right direction. Clearly, much work is needed in both Bosnia and Kosovo, but the lives of Bosnians and Kosovars (though perhaps not for Kosovar-Serbs) are better than they have been at any point in the past decade. One can also say with some degree of confidence that a decade from now, the situation will be better still. But the gains that have been made by international reconstruction efforts have not come without costs. This section examines the negative repercussions of imposing a liberal governance approach in post-conflict reconstruction. Some of the consequences of the liberal governance approach are remediable with tactical changes in how the international community undertakes reconstruction projects. Others are innate to the liberal governance approach, and not only inhibit reconstruction itself, but also undermine the strength of the liberal governance project as a whole. One is left to judge whether the benefits of reconstruction outweigh these inherent negative side effects. One oft-cited side effect of international efforts in the region has been the tendency of the international community to undermine local authority by retaining significant control over the reform process (European Stability Initiative 2001). According to this argument, the international community undermines its efforts to develop peaceful, democratic systems that respect human rights and foster economic prosperity because it strips state leaders’ authority and therefore their capacity to lead. In their effort to impose new systems of governance, the EU, UN, and NATO have had to usurp policy-making and implementation functions from governments and either carry out their own, or dictate the content and pace of the reform process to government officials, who

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then carry them out at the international community’s behest. Given the acute power disparity between the wealthy and militarily capable international community and the poor and weak local actors, it is unsurprising that international programs dominate reconstruction projects. The EU functions in Southeastern Europe not by popular consent or through legal channels, argues legal analyst Outi Korhonen, but by the soft coercion of economic need (Korhonen 2001). The negative ramifications of this are apparent: Individual leaders may say they are willing to integrate with the other states in the region out of their desire for Western aid, but the United States and its allies should view these pledges with a grain or two of salt. According to one regional expert, one should not take “the acceptance of economic and other ‘carrots’ ” as “any guarantee that the local parties will do what is expected of them. Most likely, they will signal acceptance of an agreement—and then try to find a way around it while still claiming as many of its benefits as possible”(Moore 2003). One example of this seeming willingness to strike international bargains in order to realize domestic gains is offered by Christoph Zoepel, a Balkan expert in Germany’s ruling Social Democratic Party (SPD), in his analysis in RFE/RL’s Balkan Report in January 2003. According to Zoepel, Kosovar President Ibrahim Rugova “once told him that an independent Kosovo could do without its own foreign minister and leave that job to the EU.” Of course it is easy to imagine Rugova making this argument while Kosovo is still a province and an international protectorate. Whether one would reasonably expect him to make good on this offer were Kosovo to be granted statehood is highly unlikely. It is easy to imagine the corrective to this side effect of the type of reconstruction undertaken by the international community. Administers must simply be cautious in accepting the promises of local officials who are enticed by the economic gain that accompanies reform. There is no reason to be unthinkingly distrustful of local leaders, but their words should closely track with their actions. The contradiction that exists between the underlying liberal principles that motivate reconstruction and the methods used to implement reforms is profoundly more troubling. In a purely theoretical sense, the fact that liberal principles must be instilled through illiberal practices is discouraging. Practically, it is counterproductive. In an open letter sent to Lord Ashdown in July 2003, Marcus Cox and Gerald Knaus write, “If the High Representative can set aside the constitution and the democratic process in order to advance a particular policy agenda, then why shouldn’t Bosnian politicians, if they get the chance? If the High

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Representative can simultaneously be the accuser and the judge of public officials, without due process or right of appeal, then why should Bosnians place their faith in the judicial process?” Cox and Knaus rightly point out an inherent and devastating side effect of the liberal global governance approach—it is impossible for a community to develop liberal mores when liberal institutions and practices have been imposed from without. Yet this has been the case. The extremity of international control is perhaps best illustrated by a report issued by the European Stability Initiative, a semiindependent “lessons learned” unit for UNMIK. In a report issued in July 2004, Gerald Knaus outlined the extent to which the OHR controls all aspects of the state’s government and economy. In Bosnia and Herzegovina, outsiders do more than participate in shaping the political agenda—something that has become the norm throughout Eastern Europe, as governments aspire to join the European Union. In BiH, outsiders actually set that agenda, impose it, and punish with sanctions those who refuse to implement it. At the center of this system is the OHR, which can interpret its own mandate and so has essentially unlimited legal powers. It can dismiss presidents, prime ministers, judges, and mayors without having to submit its decisions for review by any independent appeals body. It can veto candidates for ministerial positions without needing publicly to present any evidence for its stance. It can impose and create new institutions without having to estimate the cost to Bosnian taxpayers. In fact, the OHR is not accountable to any elected institution at all. It answers to a biennial gathering of foreign ministers, the Peace Implementation Council (PIC), which it chairs and whose report it normally drafts. (Knaus and Martin 2003, 61)

On one level, the OHR possesses undisputed legitimacy and authority for its operations in Bosnia. The signatories of the Dayton Peace Agreement are responsible for its creation, and its leadership and mandate were authorized by the UN Security Council. Procedurally, the Office came into being and assumed its position via legitimate channels. Its authority to manage civilian implementation of the Dayton Peace Agreement is unquestionable. On another level, however, this legitimacy and authority is highly suspect. The signatories at Dayton did not draft the agreement, but signed onto a U.S.-authored document. Their ability to negotiate the status of the civilian implementation was negligible. Neither the leaders nor the people can claim ownership of the arrangement in Bosnia (or Kosovo). This defies the very same liberal principles that have motivated the reform process in the region from the beginning. Political legitimacy,

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or “the terms by which people recognize, defend, and accept political authority . . .” lies at the heart of liberal global governance (Bukanovsky 2002, 2). In an insightful book on the effects of Enlightenment ideals on state organization, Mlada Bukanovsky outlines the necessary connection between legitimacy and state identity. She writes, “the mode of political legitimacy defines the identity of the polity” (Bukanovsky 2001, 3). For example, “Democratic governments legitimate themselves by the consent of the governed and conceptualize the polity as the body of the people, or a nation, making laws and governing itself through its representatives” (Bukanovsky 2002, 2–3). Though the governments in Bosnia and Kosovo have been certified democratic by official international elections observers, they fail the criteria for legitimation set out by Bukanovsky precisely because the international presence stands between the democratically elected government and the governing of the polity. So long as the OHR and UNMIK determine when Bosnia and Kosovo are fit to self-govern, their governments will be illegitimate democracies. Though both agencies have the best intentions for Bosnia and Kosovo, the legitimation of the state must come from the people of the state alone. Only they can decide the level of corruption that is acceptable to them, or how efficient the legal system must be in order to be deemed acceptable. The OHR and UNMIK cannot do this for them. Michael Barnett’s work on authority demonstrates how this disconnect between the international community and the populations under reconstruction may be problematic for reform efforts: “. . . authority suggests compliance that is secured through an appeal to reason, prior cultural beliefs, and community standards. The appeals and reasons given by an authority must be grounded in the beliefs, aspirations, and interests of the community . . .” (Barnett 2001, 56). The fact that Bosnian and Kosovar political leaders did not participate in the development of their countries’ postwar administration is troubling to a Westerner’s democratic sensibilities. However, Barnett makes the point that the repercussions of this arrangement are far more troubling. Authority of the type described by Barnett is clearly missing from Bosnia and Kosovo. This is not because the reforms that are being implemented in the region (as well as the new network of ties and systems of governance being introduced come from the outside) would not improve the quality of life in the Balkans, but because they do not resonate with the people there. This is clear in public opinion polling in the region. USAID contracted a poll in Bosnia in November 2003 that contains some very interesting findings concerning Bosnians’ perceptions of their governing institutions.

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Only 16 percent of Bosnians (18.8 percent in the Republika Srpska and 14.6 percent in the Federation) “had any contact with, sought assistance, [or] advice from an elected representative” in the year prior to the survey (Partner Marketing 2003, 7). Regarding improvement in different governing bodies’ ability to respond to citizen’s requests and needs, Bosnians see improvement at the municipal level (55.8 percent versus 33.0 percent who see the municipal government’s effectiveness worsening) while they are split in their assessment at the entity level. Forty-two percent of Bosnians see the entities as worsening in their responsiveness, while 40 percent have seen improvement in this area (Partner Marketing 2003, 24–25). Over 32 percent of Bosnians turn to members of their extended families when they need help, with 24 percent going to their close friends. Only 2 percent approach a humanitarian agency or NGO, and 2.5 percent turn to their elected officials (Partner Marketing 2003, 36). The arrangement created by international reconstruction efforts has stripped local leaders of any authority they may have held. Since they are totally dependent on the international community, they are (rightly) viewed as powerless by the community and ignored. Since they are seen as complicit with international administrators, their ability to persuade citizens to comply with reform efforts are also diminished, regardless of their actual lack of participation in developing the reforms underway in the region. How can Bosnian politicians change the culture in Bosnia to develop participation so long as effective participation is extended only to those on mission from the United Nations? The structure of reconstruction has other insidiously negative side effects. The governance evidenced in the Balkans sets up a sort of “soft dependency” whereby local and state leaders come to rely solely on internationally provided means of political, economic, and social engagement (in fact this is the explicit goal of the international community), limiting discussion on different policy approaches. In his investigation of human rights practices in Kenya in the 1980s and 1990s, Hans Peter Schmidt argues that strong international scaffolding “can have ambiguous long-term effects on domestic regime change. Not only do they offer protection and support; under certain conditions they create ‘blind spots’ for dialog and compromise” (Schmidt 2001, 150). By constructing certain communication channels as legitimate (specifically, by preferring international channels over local networks), and particular modes of interaction as authoritative, the international community closes off alternative policy options. Schmidt notes with respect to Kenya, “While the international contacts remained in the 1990s an important safeguard for human rights actors, long-term and sometimes even exclusive

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reliance on such networks with the outside world constrained actors in the domestic political struggle for political reforms. International contacts in the form of ‘vertical networking’ cannot substitute for the developments of a solid domestic political following and successful ‘horizontal networking’ . . . ” (Schmidt 2001, 150). This means that even if the international community were to increase the discretion available to local leaders, the presence of international “scaffolding” closes off certain avenues of discussion and courses of action. Since the international community possesses a very clear set of goals and preferred policies, local officials and civil society groups know that in order to secure international funds they must adopt projects that are known to be palatable to international donors. Alternative forms of organization or priorities are de facto de-legitimated in favor of those approaches that comport with Western assumptions concerning how liberal, democratic economies should be organized. Not only does this limit creative problem-solving measures, this situation prevents locals from developing the competence they need to govern once the international community leaves. Korhonen puts the point well and deserves to be quoted at length: The involvement of the local population in the state-building process is, however, the democratic purpose and justification of the international interference. It is also the only way to speedily train adequate human resources through a method of “learning by doing.” Moreover it is the only means to stabilize societies and, thus, to achieve the first and foremost goal of the international administration. If the local population is not involved in the decision making from the very beginning how can it possibly be able to take over the tasks of the UN or EU administrations after the withdrawal of the staff that had born the responsibility for everything necessary for a functioning society? The risk of creating the same administrative vacuum which the internationals came to remedy is high. (Korhonen 2001, 528–29)

In these ways, by exerting such explicit control over the reconstruction process, the international community undermines its goal of constructing functioning, authoritative administrative structures. A report by the International Crisis Group captures the dilemma well: More than seven years after Dayton, progress in BiH remains dependent on the country’s foreign guardians. But at least the rules of engagement are now clear. What is less clear is how and when international disengagement is to take place. A newly aggressive approach to state-building could well produce results in terms of institutions and legality without, at the

reconstructing the balkans / 189 same time, warranting the transfer of real power to local political leaderships that have lost both credibility and the habit of taking responsibility for their country’s fate. In other words, the (admittedly few) trains may be made to run on time, but the politicians could remain incapable of taking over the running of the state. (International Crisis Group 2003, 1–2)

Even if the international community provides the function typically undertaken by the states in the region—and the political will for this decreases over time—by removing state leaders from this role, or by largely directing the actions taken by those who serve in that role, the international community undermines its efforts to develop peaceful, democratic systems that respect human rights and foster economic prosperity. Is There a Viable Alternative? While a strong international presence may undermine authority, breed resentment, close off local reform initiatives, and retard the creation of an independent and functioning government, one may question whether there is a feasible alternative. First, as anyone even vaguely familiar with present-day Bosnia would observe, it is often the local leaders who are the main opponents of meaningful restructuring. If left to their own devices, much of Bosnia would be party to rank clientelism, corruption, and criminal activity. It is already home to thriving illicit networks that traffic small arms, drugs, and humans (and this with NATO patrolling many of the region’s borders). Many popularly elected government officials have vested interests in maintaining the broken political and economic structures that currently exist. The situation in Kosovo is little better. Following the outbreak of hostility in the province in March 2004, elected Kosovar officials blamed Kosovar Serbs for the violence and called the destruction of Serb cultural sites as justified by Serb provocation.3 Second, even those leaders who are committed to reform have a difficult time managing reconstruction without strong international leadership. While local leaders and citizens must buy into reconstruction efforts for them to truly take root, often these efforts are too technically and politically complicated for even the most committed reformer. One international watchdog group, the European Stability Initiative, views the EU accession process that is built into the Stabilization and Association Agreements as the only approach to institution building that may be strong enough to overcome comprehensive impediments to reform (European Stability Initiative 2000b). European officials have the experience needed to understand both how to construct political, economic, and legal infrastructures, and how to maintain them over time.

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Many leaders in the region have been educated in the United States and Europe and have some training in law, politics, and economics, but the region lacks the cadre of trained and experienced bureaucrats that are needed to conduct region-wide reform. Finally, externalizing the reform process not only provides clear benchmarks of what constitutes acceptable reforms, it also protects government officials from the popular dissatisfaction that often accompanies difficult political and economic reorganizations. The current batch of government officials and international managers may suffer a loss of authority and legitimacy, but they may be laying the groundwork for future generations of leaders who will possess both the authority and institutional capacity to govern effectively because of their efforts. No one views post-conflict reconstruction in the Balkans as a short-term project—one should evaluate success or failure in terms of decades, not years. If the current domestic and international leaders do not last long enough to reap the benefits of the new networks and social arrangements they are putting into place, it will be a small sacrifice for building functioning, ultimately legitimate, democratic, and responsive governing structures. Conclusion This chapter examined post-conflict reconstruction in the Balkans as a global governance project. What has this examination of the particular revealed about the global governance project more generally? The answer is profoundly disturbing. First, global governance is not “one size fits all.” In many respects, liberal global governance, while complementary to the prevailing norms in Western Europe, is inappropriate for postconflict societies. The very way reconstruction is being conducted in these states inhibits the ability of state leaders to either fulfill their sovereign rights and obligation or to lead their country to a hybrid form of social organization that balances the state with regional and European integration. States in the region find themselves caught between the sincere desire to join the European club, the earnest desire to retain the essence of their statehood, and the utter inability to move their polity in either direction. They remain reliant on the international community both for establishing strong domestic state structures and integrating with supranational institutions. This reliance strips their authority and legitimacy and is a direct result of the international imposition of liberal political, social, and economic institutions. Second, on a fundamental level, the liberal global governance approach that underlies post-conflict reconstruction in the Balkans is

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both hypocritical and self-defeating. Some may criticize the international community for poor intentions, but that is not the belief of this author. Rather, this analysis starts from the premise that the international community is working diligently to improve the lives of those who suffered horrific abuses during war. The hope of the international community is to build societies that embody the same liberal principles that support their own countries. Many see that as a laudable goal. Unfortunately, the method that has been employed to rebuild the states in the Balkans belies those values. It is impossible to persuade anyone to commit to a set of principles when those doing the convincing fail to live by them. Liberal norms of equality, enfranchisement, and individual rights ring hollow when they are merely preached and not practiced. It may be expedient to impose legislation and direct “democratically elected” representatives on the correct way to administer the state, but it does not build a democracy. Nor does it empower its citizens. Until the international community recognizes and accepts this fact, reconstruction will proceed slowly, citizens will continue to turn to the family and social networks they trust for their needs, and they will continue to associate the governing structures with ineffective, illegitimate rule. The states in the Balkans will languish; the international community will grow tired of funding meager, poorly performing projects; and alternative, potentially more effective local reform efforts will be silenced. Only if the international community takes the giant leap of allowing these states to accept responsibility for their own actions, can Bosnia and Kosovo fulfill the objectives of the international community to develop peaceful, functioning democracies on the road to integration with Europe. So long as the international community fails to trust the principles on which their own societies are based, those principles will never take root in the Balkans. Unfortunately, this leaves the region, and those committed to the global governance project, in an impossible position. Some are like those mentioned at the beginning of the chapter—unwilling or unable to admit that their zeal weakens the same liberal institutions they seek to build. They refuse to acknowledge that the global governance project is broken and continue the practical evisceration of liberal global governance principles by imposing them from without. Others, mainly those involved with the aid agencies working in the region, insist that the enterprise can be fixed, if only reconstruction were carried out differently. For them, the instillation of liberal political, social, and economic institutions is a worthy goal and is entirely possible, should the international community adjust its tactics to accept more local involvement.

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They fail to accept that local involvement is insufficient to entrench liberal institutions and that a strong external presence is needed to keep corrupt forces at bay. If one is willing to confront this tension one sees that the global governance project is either hypocritical or fruitless. In either instance it is broken, and cannot be fixed. Still, it is the only hope for the region—broken or not. Notes 1. To be clear, Kosovo is not a state, and it will likely not be a state for some time. But a consensus exists that statehood is Kosovo’s ultimate destination, and it is a more appropriate term than to refer to the two different “nations,” so it will be employed here. 2. See the section on constitutional reform on the European Stability Initiative’s website: www.esiweb.org. 3 For documentation of this period, see Report of the Secretary-General on the United Nations Interim Administration Mission in Kosovo, S/2004/348, April 30, 2004, 3–4.

References Ashdown, Paddy. 2004. Office of the High Representative. Mission Implementation Plan. Sarajevo. Barnett, Michael. 2001. Authority, Intervention, and the Outer Limits of International Relations Theory. In Internvention and Transnationalism in Africa: Global-Local Networks of Power, edited by T. Callaghy, R. Kassimir, and R. Latham, 47–68. Cambridge: Cambridge University Press. Bukanovsky, Mlada. 2002. Legitimacy and Power Politics: The American and French Revolutions in International Political Culture. Princeton: Princeton University Press. Coordinator of the Stability Pact for Southeastern Europe. 2001. 2 1/2 Years of the Stability Pact: Lessons and Policy Recommendations. Brussels. European Stability Initiative. 2000a. Reshaping International Priorities in Bosnia and Herzegovina. Part II: International Power in Bosnia. Brussels. ———. 2000b. Stability, Institutions, and European Integration. Brussels. ———. 2001. In Search of Politics: The Evolving International Role in Bosnia and Herzegovina. Brussels. International Crisis Group. 2003. Bosnia’s Nationalist Governments: Paddy Ashdown and the Paradoxes of State Building. Europe Report No. 146. July 22, 2003. http://www.crisisgroup.org/library/documents/report_archive/A401057_ 22072003.pdf. Knaus, Gerald, and Felix Martin. 2003. Lessons from Bosnia and Herzegovia: Travails of the European Raj. Journal of Democracy 14: 60–74. Korhonene, Outi. 2001. International Governance in Post-Conflict Situations. Leiden Journal of International Law 14: 495–529.

reconstructing the balkans / 193 Moore, Patrick. 2003. Mr. Holkeri Goes to Pristhina. RFE/RL Newline, July 25, 2003. www.hri.org/news/balkans/rferl/2003/03-08-01.rferl.html. Partner Marketing Consulting. 2003. Public Opinion Poll in Bosnia and Herzegovina. Banja Luka: Agency for International Development, November 2003. Schmidt, Hans Peter. 2001. When Networks Blind: Human Rights and Politics in Kenya. In Internvention and Transnationalism in Africa: Global-Local Networks of Power, edited by T. Callaghy, R. Kassimir, and R. Latham, 149–172. Cambridge: Cambridge University Press. United Nations Interim Administration Mission in Kosovo. 2004. Kosovo Standards Implementation Plan. Pristina. VanCreveld, Martin. 1999. The Rise and Decline of the State. Cambridge: Cambridge University Press.

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C h ap t e r 9 The International Lawyer as Agent of Global Governance Andreas L. Paulus

Introduction According to Niklas Luhmann, globalization is characterized by a shift from territorial borders to functional boundaries (Luhmann 1995, 571; Luhmann 1997, 158–160). Important issue areas (Leebron 2002, 6–10) such as the market, environment, or human rights, have left territorial boundaries behind. But states continue to be the main units of legitimate decision-making. The “democratic deficit” of regional and international institutions remains unresolved; alternative models of legitimacy—such as pure functionalism and market rationality—are based on a standard of efficiency that is itself in need of justification. Systems of rules and norms constructed “bottom-up,” that is, by a process of self-ordering of the relevant issue area (Teubner 1997, 3; Fischer-Lescano and Teubner 2004; Paulus, State 2004), incur problems of legitimacy, because they are self-imposed by the relevant power holders and brokers—and thus open to challenges from all those not participating in the process, but subject to the decisions made. The state has become unable to strike the balance between different values and interests associated with different issue areas. However, on the global scale, no mechanism is in place to substitute for this role of the territorial state (Leebron 2002, 8; Paulus, State 2004). According to a “club model,” different functionally defined “issue areas” can be separated in a way that the different professional “cells” administering the systems are not connected with each other (Keohane and Nye 2001, 265–272). Due to the expansion of the narrow schemes of interstate cooperation to institutions of global governance, however, the strict

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separation of the respective regimes has become unfeasible. In the process of institution building, politics and law—the areas in which legitimacy discourses traditionally take place—lag behind other issue areas. There exists neither a clear hierarchy between different issue areas, nor a hierarchically superior institution that would be capable of coordinating the different regulatory schemes and of deciding conflicts of values and norms (International Law Commission 2002, para. 15). Whereas the state accords this role to political and legal institutions acting within a hierarchy established by law, the international sphere lacks such hierarchies and sufficient rules for balancing the values involved. Several more or less institutionalized instances with overlapping competences decide conflicts of interests and values emanating from different issue areas. These instances being, in most cases, associated with one issue area rather than the other—such as the Tribunal of the Law of the Sea or the WTO Dispute Settlement Body (DSB)—a neutral or at least nonpartisan body for deciding conflicts of norms does not exist. In the words of Leebron: “We inhabit a world of ‘multi-multilateralism’— numerous multilateral regimes with sometimes overlapping, indeed sometimes conflicting, mandates.” (Leebron 2002, 17). Some have attempted to bridge the gap between established decisionmaking procedures, on the one hand, and the emergence of new centers of power beyond the state, on the other, by creating a “community model” of international legal reasoning (Allott 1990; Simma 1994; Tomuschat 1995; Paulus 2001). According to this model, state society has created overarching institutional regimes, such as the United Nations (UN), the International Labor Organization (ILO), or the World Trade Organization (WTO), to foster common values and to define common interests, thereby providing internationally recognized criteria for evaluating matters of global concern. However, it turns out that these institutional settings suffer from the same defect as the constituent units of the international system: They largely ignore new powerful actors and are incapable of enforcing their decisions on their constituent units, namely states, let alone on nongovernmental actors with a global reach, such as international corporations, religions, terrorist or criminal organizations, or altruistic nongovernmental organizations (NGOs) (Paulus 2001, 103–107). Thus, the international community approach cannot achieve a coherent institutional setting and is confined to a postulation of a transformation of the role of the state from a self-sufficient, all-encompassing unit to a provider of social services, of democratic self-governance, as well as of domestic and international legitimacy.

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This chapter first looks at the approaches to construct a global institutional structure providing the very legitimacy lacking at a global scale and thus capable of delivering the norms and values for international governance of functional issue areas beyond the realm of nation-states. One mechanism consists in the creation of quasi-constitutional overarching institutions to solve conflicts of values. Another is the establishment of hierarchies between rules (ius cogens) or quasi-constitutional conflict of law rules such as ARTICLE 103 of the UN Charter. However, complexity prevents the emergence of clear-cut rules both for the conflicts of different issue areas and between state and non-state actors. The latter do not even possess sufficient authority to participate in the process of decision making as a matter of right. The absence of legitimate procedures for the generation of global rules and principles results, at best, in a culture of mutual respect and accommodation between different issue areas, which will not strive for reaching “hierarchical” solutions to value conflicts, but will seek to find balancing solutions respecting the overlapping jurisdictions of different regimes (Fischer-Lescano and Teubner 2004). This requires a readiness for dialogue and discourse so as to find ad hoc solutions for the regulation of conflicts of interests and values. In that vein, one may speak of a move from constitution to discourse—a move that complements the ongoing move to institutions (Kennedy 1987) such as the WTO and the International Criminal Court, which do not result, however, in an overall quasi-constitutional structure. This chapter also looks to the solution of value clashes in international practice, in particular in the WTO Dispute Settlement Body’s Shrimp/Turtle-Decision (AB 1998-Shrimp). As it turns out, hierarchies of values are of little help in this respect. Instead, international adjudicatory bodies have developed an approach accommodating different value systems rather than strictly adhering to their own issue area or abstract hierarchies. However, in the absence of predetermined hierarchies of institutions and values, the international lawyer is much less constrained by established norms and processes than in traditional litigation. This is particularly the case when different normative systems clash, such as WTO law and the law on the environment. But this unconstrained exercise of power by lawyers raises questions of legitimacy. In the absence of an expression of the will of the community, the lawyer cannot easily point to another source of authority. Rather, the international lawyer must justify her authority by the acceptance of outcomes by her audience, not only states, but also nongovernmental actors and something akin to a

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global public. In global governance, the lawyer thus becomes a political actor, limited not by a preestablished outcome but by her method of balancing competing claims of authority. The Community Vision of International Law Global governance is based on the assumption that states and intergovernmental organizations are incapable of governing postmodern global society. Instead, a multiplicity of actors is making governance decisions. But international law does not currently recognize a more than procedural role for nongovernmental actors. A community vision of international law attempts to deal with this issue by creating overarching institutions that would be empowered to solve value conflicts and make decisions binding on non-state actors. This solution is based on the model of the nation-state. The territorial state of the “constitutional” type has established several instances to cope with conflicts of interests and values. In the legal system, there are two hierarchically organized systems trying to generate acceptable solutions: On the one hand, the “Stufenbau der Rechtsordnung,” the “hierarchical structure of the legal system” (Merkl 1931, 272–285), helps to identify superior substantive values that trump “ordinary” norms and contain the guiding principles of government. A procedural or institutional hierarchy reproduces this substantive hierarchy. Ideally, for all conceivable cases, there exists a successive order of instances to determine the balance of the values and interests involved. Thus, even if there may be no “right answer” in the material, substantive sense (but see Dworkin 1986, 239), a “final arbiter” exists—either a court, or a legislature, or the people, or the executive branch. When constructing an international community based on the rule of law, why not reproduce the experience of domestic legal orders in international law? And indeed, there exist numerous attempts to introduce stricter hierarchies in international law and to arrive at an international system modeled after the domestic one. The first candidate for such a reproduction of domestic structures is the United Nations, whose Charter attempts to establish a hierarchical structure within the international community in analogy to the domestic state. In substantive international law, ius cogens and obligations erga omnes are based on the idea of a hierarchy of norms that would place common or “community” values over the individual and short-term self-interest of states, and that would allow individual states, even in the absence of institutional support, to implement community values. The influence of nongovernmental actors

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would suggest their participation in the system. As it turns out, however, the existing body of international law cannot fulfill the requirements of such an order. The Charter as a Constitution of the International Community? The UN Charter seems to closely reproduce the constitutional state with executive (the Security Council), legislative (the General Assembly), and judicial (the International Court of Justice [ICJ]) branches (Simma 1994, 258–283). The Security Council may act against the consent of member states. Even nonmembers are addressed by it, and at least since Switzerland joined in 2002, the United Nations has reached true universality of membership. In its ART. 103, the Charter claims precedence over any other norm of treaty law. The Statute of the International Court of Justice, which forms an integral part of the UN Charter (ART. 92), contains the necessary rules for lawmaking (ART. 38 Statute) and its adjudication. ARTS. 57 and 63 of the Charter regulate the coordination of different issue areas. Some have seen in this structure an incipient constitutionalization of the international community (Fassbender 1998, 73–115; but see Paulus 1999). However, when looking at the text and, even more so, the reality of the Charter, this analysis turns out to be a half-truth, at best. The Charter itself combines two approaches: A political–realist approach, centering on the special responsibility of the great powers with veto power in the Security Council, and an idealist approach, making soft issues such as human rights and self-determination a cornerstone of the values of the new system (Paulus 2001, 284–318). As to the executive function of the Security Council, the United Nations possesses a monopoly of the legitimization of the use of force—except in cases of self-defense—but it does not have real forces at its disposal to control the implementation of this monopoly. In practice, the powerful states do not act as if they were conscious of a monopoly of force of the Council. The 2003 attack against Saddam Hussein’s Iraq by the United States and its allies is a case in point: Although the United States and the United Kingdom tried to receive Council backing for action against Iraq, they ultimately did not hesitate to act unilaterally, regardless of the objections of the majority of the Security Council and the international community at large (Taft and Buchwald 2003, 557; Paulus, Iraq 2004, 697–698). The veto power of the permanent members places them beyond the reach of the international law on the unilateral use of force, even if they pay, from time to time, lip service to the concept of collective security. Thus, the claim of Charter prevalence in security matters

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may be watertight in theory, but cannot be implemented in practice against the will of the major powers represented in the Council. The international law-making rules as contained in the Statute of the International Court of Justice do not recognize a truly legislative role for the General Assembly. ARTS. 10–13 confine the legislative functions of the General Assembly to giving nonbinding recommendations—and this limited function seems appropriate with regard to the doubtful legitimacy of a body in which member States as different as India and Monaco have an equal vote. In spite of being the “principal judicial organ of the United Nations” (ART. 92 of the Charter), the ICJ needs the specific consent of each party to exercise jurisdiction (ART. 36 of the ICJ Statute) and is thus often confined to an arbitral rather than judicial role. Its competencies as a constitutional check on both the Security Council and the General Assembly are limited to Advisory Opinions given at the request of either the Council or the Assembly (ART. 96 para. 1 UNC). Even in cases where it possesses jurisdiction, it will usually defer to the broad discretion of the Council, which can, in turn, rely on the prevalence of obligations arising under the Charter against all other international agreements (ART. 103)—and probably beyond. A “Marbury moment” (Slaughter and Burke-White 2002; Alvarez 1996), for example, the Court availing itself of an unequivocal right of judicial review of Security Council decisions, would not only be hampered by problems of enforcement—after all, the only enforcer of ICJ judgments would be the Council itself—but also revolutionize the consent-based jurisdiction of the Court and would thus meet with considerable resistance by most states. The Charter provisions on the prevalence of Charter law (ART. 103), on universality (ART. 2 para. 6), amendments (ARTS. 108, 109), and nonintervention into domestic affairs (ART. 2 para. 7), may possess constitutional characteristics, but fall far short of the standards of domestic constitutions. In particular, ART. 103, which provides for the prevalence of the obligations under the Charter over obligations under other international agreements, constitutes a conflict-of-law rule rather than an allout hierarchy of international law. A “constitutional” interpretation of this provision runs therefore into considerable difficulty (Bernhardt in Simma 2002, 1295). Concerning the integration of different organizations into a single coherent system, ARTS. 57 and 63 of the Charter endow the United Nations with an oversight function for UN specialized agencies. Some of the most important organizations, such as the World Trade Organization (WTO) founded in 1995, did not even acquire (and did not wish to acquire) the status of a specialized agency

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(Meng in Simma 2002, 947–948). Instead, its relationship with the United Nations is based on an Exchange of Letters, in which the WTO director-general and the UN secretary-general have reached an agreement “that a flexible framework for cooperation, liable to further review and adaptation in the light of developments and emerging requirements, is the most desirable course of action.” (UN-WTO 1995). Thereby, the United Nations has implicitly reneged on its duty to bring the various specialized agencies “into relationship with the United Nations” by virtue of ARTS. 57 and 63 of the Charter. But even with regard to specialized agencies in the proper sense of the term, ART. 63 para. 2 of the Charter limits the UN Economic and Social Council to consultation and recommendation. Thus, the United Nations lacks competencies of control in all fields except peace and security. In economic and social matters, the authority of the United Nations is considerably limited—in comparison, the WTO is far more powerful (cf. Petersmann 1997). But, the primacy of the Security Council is also subject to challenges in security matters by states acting unilaterally. As the Kosovo conflict demonstrates, the representation of the international community by the United Nations is challenged if and to the extent that it proves incapable of securing community values. When NATO claimed to act in the name of the international community in the liberation of Kosovo (Weller 1999, 495), India’s representative to the United Nations argued, “NATO would have noted that China, Russia and India have all opposed the violence that it has unleashed. The international community can hardly be said to have endorsed their actions when already representatives of half of humanity have said that they do not agree with what they have done.” (Gowlland-Debbas 2000, 376–377; Sharma 1999). This rather cursory analysis shows that an overarching institutional setting of the international community does exist only in very rudimentary forms. With the exception of the ambiguous language of ART. 103 of the UN Charter, there exists no judicial hierarchy between institutions regulating different issue areas (Leebron 2002, 20). The weakness of the institutional structure of the United Nations thus prevents it from effectively fulfilling a quasi-constitutional mission. Instead of a hierarchy between the United Nations and other international organizations, we find a horizontal structure of several functional institutions. In the absence of centralized decision-making, the balancing of interests and values cannot be performed in the same way as in the domestic legal system. There is no hierarchy between the World Organizations with its general competence and the functionally limited special agencies such as the World Health Organization (WHO) or the International Labor

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Organization (ILO); there exists no body with a “final” legal competence of interpretation and application of legal norms. Authoritative third party adjudication needs special acceptance by states, which is absent more often than not. But where international adjudication exists, as in the case of the dispute settlement system of the WTO, it is also functionally fragmented. There is no “final arbiter” of disputes involving several issue areas (or the fabric of international law in general). The general background rule is the so-called auto-interpretation by states, which means that international law often functions as an internalized means of self-evaluation rather than as an outside limitation on state discretion. In that regard, H.L.A. Hart’s famous analysis, according to which general international law lacks a coherent and complete system of “secondary rules of recognition, change and adjudication,” has not lost its validity (Hart 1994, 233). Substantive International Law In the absence of a formalized hierarchy of authoritative decision-making, norms guiding political and judicial authorities might still help in the search for solutions to value and norm clashes. In most of these cases, different institutional settings and different subsystems of rules and principles will render a decision based on “ordinary” primary rules difficult, however. Thus, international law is in need of rules about the conflict of norms—rules that require the existence of some normative hierarchy between different substantive values. This is exactly what the introduction of ius cogens and obligations owed toward the international community (or erga omnes) into international law intended to achieve by the establishment of norms of a higher order, which would not only trump conflicting norms but which would enable each member of the international community to restore the international rule of law. ART. 53 of the Vienna Convention on the Law of Treaties defines a “peremptory norm of general international law” (ius cogens) as “a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted . . . .” In its Barcelona Traction judgment, the ICJ opined that “an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection” (ICJ 1970, 32). Although the precise relationship between obligations toward the international community and ius cogens is difficult to determine, there seems to be general agreement that both terms designate an almost identical list of international norms (Crawford 2002, 244–245). The reasoning of the Court thus

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provides a rationale for the establishment of ius cogens: When the obligations flowing from ius cogens-norms are owed to the international community rather than to states “ut singuli,” two states alone cannot “opt out” of the system without the consent of the community. The term international community seems, however, to have lost its clear meaning by the end of the Cold War—until then, this “community” was conceptualized as consisting of the First, Second, and Third Worlds, that is, the capitalist West, the communist East, and the developing South (Cassese 1986, 32–33). But in the one superpower reality of the contemporary world (Byers and Nolte 2003), the contours of this community have become doubtful. Although organized in the General Assembly of the United Nations, the international community of states is not endowed with law-making power. How then is the international community able to designate certain norms as ius cogens? Whose consent to new norms of ius cogens is counted, whose opposition disregarded? Another oddity of ius cogens in the Vienna Convention concerns the comparison of “ordinary” general international law with ius cogens. If the progressive view is correct that ius cogens may be created by the will of the international community even if no preexisting rule of international law with identical content existed (Simma 1994, 291–293; Tomuschat 1993, 307), the question arises whether norms of a quasiconstitutional character can be created without even meeting the requirements for ordinary rules of international law, that is, the existence of positive state consent or at least acquiescence (customary law). A possible solution to this conundrum leads back to the pouvoir constituant, the raison d’être of international law. The leading English textbook, Oppenheim’s International Law, considers the international community itself as the final repository of international law: International law has come into existence because states prefer to belong to a system of rules than to live in anarchy, and this choice is regarded as the acceptance of the basic values of this legal community (Jennings and Watts 1992, 12; Franck 1990, 185–193). However, in absence of their explicit consent, it is doubtful whether states will be compelled by such arguments. In addition, the legal effects of ius cogens are underdetermined. In addition to the nullity of treaties violating ius cogens, as provided for in the Vienna Convention on the Law of Treaties, some claim that all unilateral acts of states, including purely domestic ones, are to be considered null and void if in violation of these norms (Rodrígez Cedeño 2002, 10). Others add that the violation of ius cogens norms triggers universal jurisdiction for the alleged individual perpetrators (ICTY 1999, 349–350). In its articles on state responsibility, the International Law

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Commission has introduced particular consequences for “serious breaches of obligations under peremptory norms of general international law” (Crawford 2002, 68). Thus, the best what can be said about ius cogens is that it is still developing. No clear content of the concept can be discerned, even if there seems to be some agreement that it comprises the prohibition of aggression, the prohibition of genocide, crimes against humanity, and war crimes, some fundamental human rights such as the prohibition of slavery, and may be a general duty not to severely and intentionally pollute the environment (Paulus 2001, 356). Nevertheless, instances of the application of the concept are rare. Thus, ius cogens will certainly nullify a treaty between secret services of several countries to murder or torture prisoners (even if alleged terrorists)—such as the “Operation Condor” in South America in the 1970s. It might also help to decide questions of the primacy of multilateral obligations, such as the prohibition on the use of force, over bilateral or even multilateral military alliances and troop deployment treaties. Ius cogens does not dispose, however, of most “ordinary” value conflicts, for example, between the promotion of free trade and the protection of the environment. Thus, the “domestic analogy” between international and domestic law seems not to lead very far. International law lacks both centralized organizations and a developed constitutional structure that would preserve the unity of the law and its uniform application. Any international decision on the hierarchy of values is open to contestation. Indeed, international adjudicatory bodies may well feel obliged to return a question to the political sphere. However, such an outcome leaves the parties where they had been before resorting to judicial settlement: with the need to negotiate a political solution, which they were unable or unwilling to find in the first place (ICJ 1997). If a “constitutional” solution of value conflicts appears impossible, the alternative might consist in the resort to a discursive analysis that pays due regard to all the values involved. But can the lawyer help to decide clashes of interests and values if the law does not give even the slightest indication of the solution? And what does the obvious element of arbitrariness or discretion mean for the authority of the decision? The Accommodation of New Actors A body as prestigious as the International Law Commission now regards non-state actors as a constituent part of the “international community as a whole.” This seems to be in line with global governance as far as interand non-governmental organizations (NGOs) are considered to be

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increasingly involved in global decision-making. In the wake of globalization, economic actors seem increasingly able to circumvent state regulation, which leads to a regulatory “race to the bottom” between states. Altruistic NGOs claim a place at the table as representatives of international civil society. But NGOs incur problems of legitimacy. Neither can they claim that a general consent has evolved in favor of their participation, nor do they possess control over territory and people and thus have the power to claim equal rights with the state as territorial unit. The factual influence and the power of many nongovernmental actors are thus not reflected in the formal decision-making procedures of international law. NGOs may considerably influence the decisions taken by states—for instance, the adoption of the Landmines Convention 1997 (critical Anderson 2000, 115–120) and the Rome Statute of the International Criminal Court (Pace and Schense in Cassese et al. 2002)—but the actual decision making on the incorporation of norms into the body of international law is reserved to states. Only states may legislate and delegate their power to others. The people (as holder of the right to self-determination) or minorities (Cassese 1995, 165, 333–334; Tomuschat 1993, 10; Paulus 2001, 239–246), or economic actors, are also excluded from such primary rights. Nevertheless, the boundary between lawmaking—which is reserved to states—and the application of the law, which is often exercised by bodies empowered by international legal rules—is sometimes fuzzy. The state remains the only “original subject” of international law that may determine both the lawmaking and the law application. However, its role begins to change: The state itself is in a crisis of legitimacy, because it seems incapable of solving most problems in a globalized world, on the one hand, but claims allegiance regardless of its own legitimacy. Recent trends toward “democratization” attempt to set up minimum conditions for the democratic legitimacy of states (Fox and Roth 2000). However, this approach involves considerable dangers of unilateral imposition of subjective concepts of democracy on others. Nevertheless, the state is here to stay, being the only institution in which political decisions can be legitimized by democratic means and where, in the absence of a functioning social regime on a global level, social services can be provided. Still, the loss of regulatory power of the state and the rise of new challenges for the whole of humanity create a demand for new structures and decision-making processes on the international plane. In this perspective, “Governance Without Government” (Rosenau and Czempiel 1992) constitutes the description of a problem rather than a solution, because government used to be embedded in an

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institutional structure that enjoyed (various degrees of ) democratic legitimacy, whereas the question of the legal and ethical underpinnings of “governance” remains unanswered. However, there may be a “third way” beyond the construction of a global community integrating both actors and values, and the retreat to an international law based on the illusion of the omnipotence of the nation-state. Providing legitimacy to non-state actors is not so much a question of the extension of rights beyond their participation in state delegations or their indirect influence on state representatives. International law may draw on its own premises according to which even sovereign subjects are bound by treaties, formal expressions of mutual consent; by customary law, coherent practice combined with the belief in its binding character or acquiescence in similar claims by others; and general principles of law, rules dealing primarily with the administration of justice and drawing heavily on established universal practices of domestic institutions. In the same vein, international law may regard consent and acquiescence as valid sources for obligations of non-state actors. Thus, global governance need not, even in the absence of a true international democracy, end in an exercise of brute power by powerful actors without regard to legal norms and principles. Ultimately, however, legitimate governance demands the emergence of a global polity with a minimum set of common values and institutions to bound the exercise of power by both states and non-states actors. The Unequal Institutionalization of International Society and Its Consequences for International Law As it turns out, the success of the alleged “constitutionalization” of international law remains doubtful, both in terms of its institutional structures and in terms of substantive law. However, it can hardly be doubted that we have witnessed a remarkable progress in the establishment of international institutions in the course of globalization. It is not so much the United Nations, but rather more limited, functional organizations and institutions that have carried the day, such as, for instance, the WTO or the International Criminal Court. These institutions have only a limited scope but they are much more institutionalized than “ordinary” international organizations. The most exciting, sometimes also the most troubling aspect consists in their elaborate dispute settlement mechanisms of a judicial or para-judicial character. By dealing with a clearly limited issue area, these institutions may develop a highly sophisticated jurisprudence. However, specialized judicial bodies have

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difficulty in balancing the values embodied in their statute with the values embodied in other institutions. This creates the danger of overreaching and of a biased approach to questions of clashes between different values and issue areas. Ultimately, the unity of international law seems at stake. Thus, the International Law Commission has recently initiated a study on the fragmentation of international law (ILC 2002, 19). Why does the diversification and expansion of international law create problems? Should it not rather be a reason for celebration (ILC 2002, 238–239; Koskenniemi and Leino 2002)? The expansion of international law to diverse areas leads to a lack of cohesion of international legal rules and concepts. The different issue areas of international law are unequally institutionalized: That is, some areas, in particular the law of trade and the law of the sea, have the benefit of highly organized and effective dispute settlement systems. Others, such as human rights or the protection of the environment, can only be implemented by decisions of individual state institutions or bargaining. To speak with Thomas Franck, the “compliance pull” (Franck 1990, 49) of trade law will be far greater, the rules being far more specific (and thus more determinate), the “pedigree” being tested more severely, and the “coherence” and “adherence” of the trade law system being preserved by quasi-judicial institutions. In this vein, one might thus conclude that trade law is “more” law than environmental law. Such a finding has definitive consequences. The main area in which these consequences have materialized so far is the “trade and . . .” problematic: If a trade body decides conflicts between free trade and environmental protection or free trade and social rights, the guess is that trade will prevail. This is, however, probably a hierarchy of values that not every observer will share. The existence of institutional means for dispute settlement in one case and their absence in the other does not imply such a substantive hierarchy of values. The argument that all agreements concerned are made by states does not solve the problem of priority either, because each treaty is as binding as the other. The classical “later in time” rule (Vienna Convention 1969, ART. 30) does not solve the problem in its entirety: By its purely formal nature, it disregards the substantive value questions that were usually neither intended to be solved at the time of the conclusion of the later agreement nor even contemplated. Two possible solutions come to mind: Either trade lawyers look to general international law in disregard of, or at least beyond the purview of, their basis of authority, or they limit themselves to interpreting their own system and acquiesce in the relativity of their pronouncements.

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Two general approaches can be discerned. One opinion (Petersmann 2002) views the judicialization of WTO dispute settlement as the best chance ever to develop binding adjudication on international legal issues. Accordingly, the WTO DSB should adopt a broad view of its task and not shy away from adjudicating issues of civil, economic, and social rights, health regulations, or the environment. In this view, a too narrow approach would not arrive at comprehensive solutions. Making that point even more sticking, one might imagine the WTO DSB as an incipient world court with real power over international economic and social actors and issues. However, this view refers non-trade issues to a trade body (Alston 2002, 815; Howse EJIL 2002, 651; Howse AJIL 2002, 105; Bagwell et al. 2002, 74–75). The WTO dispute settlement was not developed to serve as a world court substitute. It was supposed to center on the preservation of free trade among its member states, nothing more, but nothing less either. If a body of trade lawyers and practitioners adjudicates human rights, social issues, or the environment, those issues might be submerged under the primordial considerations of trade. On top of this, the trade lawyer has no special competence to deal with these issues. Thus, there exists a considerable danger of “trade bias” (Leebron 2002, 22; Trachtman 2002, 78). In particular, the exclusivity of the traditional human rights bodies serves a useful purpose: They are better equipped to effectively protect human rights than either a trade body with a built-in penchant toward free trade or even a general body without an exclusive focus on the protection of human rights. Thus, the Group of Fifteen, which comprises 17 WTO members, issued a statement demanding the exclusion of “non-trade issues such as labor standards and environmental conditionalities” from the WTO agenda (Charnovitz 2002). Of course, the problem of a split between general international law and specific areas does normally not appear in such a clear-cut fashion. Most international instruments, such as the United Nations Convention on the Law of the Sea (UNCLOS 1982, ART. 311, omitting customary law), the Statute of the International Criminal Court (Rome Statute 1998, ART. 311; Pellet in Cassese et al. 2002, 1067–1089; Simma and Paulus in Ascensio et al. 2002, 56–57), or, to a certain extent, the General Agreement on Tariffs and Trade (GATT 1947/1994, ART. XX), contain their own rules that determine their relationship with general international law. As we have seen, the question of whether the WTO DSB may rely on general international law is hotly disputed (Pauwelyn 2003, 25–40, 443–472; Pauwelyn 2001, 541–550; Trachtman 2002, 88; Schloemann and Ohlhoff 1999, 424–425). Some of these disputes

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may be solved by reference to general rules of treaty interpretation, as incorporated by ART. 3 para. 2 of the Dispute Settlement Understanding (DSU). Others are avoided by express recognition of the superiority of another treaty. For example, GATT recognizes in ART. XXI (c) the priority of obligations under the UN Charter for the maintenance of international peace and security under Charter ART. 103 (Schloemann and Ohlhoff 1999). In the absence of similar provisions regarding other value conflicts, however, these rules will not suffice to avoid clashes between different legal orders. “Self-contained régimes” claim to be independent of the background norms of general international law, but such regimes probably do not exist in a pure fashion (Simma 1985; Kuyper 1994; Pauwelyn 2001; ILC 2004, 288–293). Clashes of values and specialized legal system have an institutional component, too: Whereas, in some cases, a specialized body is called upon to deal with other areas of law, in others, two bodies of different systems deal with identical problems, with the apparent danger of opposing conclusions. This is not the place for a comprehensive study (ILC 2004, 2001; Hafner 2000). In what follows, we instead look at two examples in which the clash of legal systems has played a central role: The Shrimp/Turtle case, which dealt with a conflict between trade and animal protection, and the Swordfish case, which involved two different dispute settlement bodies, the WTO DSB and the Tribunal for the Law of the Sea. Value Clash and Unequal Institutionalization: The Example of the Shrimp/Turtle Case The supervision of the prohibition on nontariff barriers to trade belongs to the basic tasks of the WTO under GATT (GATT 1947/1994). GATT prohibits, inter alia, discrimination between domestic and foreign products (ARTS. III, XIII). However, these measures also serve political goals, such as the realization of social rights or the protection of the environment. The DSB must deliver delicate judgments on nontariff measures, adhering strictly to their term of reference in GATT and the DSU (DSU 1994). Since the establishment of the WTO in 1994, GATT benefits from binding dispute settlement contained in the DSU (DSU 1994). The most prominent example for value clashes in the jurisprudence of the DSB is the Shrimp/Turtle-decision (AB 1998-Shrimp), in which the DSB struck a balance between free trade and animal protection. The United States had unilaterally imposed an import ban on shrimp harvested with commercial fishing technology that may adversely affect sea turtles. Only states requiring trawl vessels to use Turtle Excluder Devices (TED)

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or tow-time restrictions and adopting enforcement measures similar to the requirements of the U.S. regulations could be spared. On the one hand, free trade rules required admitting fish caught in any WTO member state without further environmental conditions. On the other hand, protection of animal life demanded that the catch of fish in violation of the standards of environmental and animal protection be sanctioned. The U.S. measures unquestionably violated free-trade rules, namely ART. XI:1 of GATT 1947/1994, which prohibits the institution of import prohibitions or restrictions on goods other than duties. The other interest involved, animal protection, was only marginally present, namely in ART. XX GATT, which mentions the necessity to protect “animal plant life or health” and to conserve “exhaustible natural resources” among the justifications of such a violation of trade rules, as long as this does not lead to arbitrary discrimination between countries or disguised restrictions of international trade. The exceptions to free trade are narrowly circumscribed so that trade will usually carry the day (AB 1996, 22; AB 1998-Shrimp, 152). If this were not the case, states might create countless exceptions for their individual advantage. Thus, it is not surprising that both the original panel and the Appellate Body decided in favor of trade and against the particular measure concerned that was meant to protect animal life. What is of particular interest here is the methodology by which the Appellate Body reached its decision. In interpreting ART. XX, it did not limit itself to the wording of GATT in light of the purpose of the treaty and its drafting history. To the contrary, from the very beginning of its analysis, the AB took other values into account as contained in both authoritative and (only) persuasive, soft law documents. Thus, the AB also referred to the UN 1982 Convention on the Law of the Sea and the 1992 Convention on Biological Diversity, although some parties to the dispute were not parties to these treaties (AB 1998-Shrimp, para. 130), and used nonbinding documents such as Principle 11 of the 1992 Rio Declaration on Environment and Development and the Agenda 21. The AB came to the conclusion that fish is also an exhaustible natural resource. This part of the decision is of particular interest because it seems that the AB was more concerned with the other conventions than with its own case law. The AB describes its task as “essentially the delicate one of locating and marking out a line of equilibrium between the right of a Member to invoke an exception . . . and the rights of the other Members . . . so that neither of the competing rights will cancel out the other and thereby distort and nullify or impair the balance of rights and obligations” (AB 1998-Shrimp, paras. 159–160). In the case at hand, the balancing related

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to the legitimate purpose of the United States to protect animal life at sea, on the one hand, and the right of shrimp importers to free trade with the United States, on the other. Finally, the AB held the United States in breach of the GATT 1994 because of its discriminatory application of ART. XX, not because restrictions of trade for animal protection are generally unjustifiable. Nevertheless, the case is an example for the extensive interpretation of its mandate by the DSB and its respect for the specific regulation of another legal subsystem. The Problem of Overlapping Jurisdiction However, the problem gets even trickier if other decision-making bodies with a limited jurisdiction are involved. The Swordfish Case (WTO Panel Request 2000) has raised, for the first time, the specter of two international dispute settlement institutions with a special mandate confronting each other in the same case. The case concerned Chilean measures against alleged overfishing of swordfish in the High Seas by European Community (EC) fishermen. Chile prohibited the landing of boats carrying swordfish in its ports. Both Chile and the EC are members of the WTO and parties to UNCLOS. The EU first requested formal consultations for the establishment of a DSB panel pursuant to ARTS. 4 and 6 DSU (WTO Panel Request 2000). Chile requested arbitration pursuant to ART. 287 para. 3 UNCLOS. Later, the parties agreed on the referral of the case to a chamber of the International Tribunal for the Law of the Sea (ITLOS Chamber Constitution 2000). In the end, however, both parties understood that two—possibly conflicting—dispute settlement decisions would not be helpful to fulfill the very purpose of both the DSU and the UNCLOS rules—dispute settlement, not continuation of the dispute by judicial means. Thus, they suspended both proceedings and agreed on negotiations on a framework for the conservation and management of swordfish in the South-East Pacific (EU-Chile Settlement 2001; Neumann 2001, 529; Orellana 2001). This case demonstrates that, in cases of a threatening clash of different jurisdictions at the international level, state parties must find a solution themselves rather than risk a lengthy dispute settlement process without practical result. Thus, jurisdictional overlap will sometimes not lead to more, but to less judicial third-party settlement. World Trade and Other Values—Integration or Opposition? How would the AB decide without the benefit of explicit language in the treaty? Which criteria could it apply? Are not most trade restrictions related

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to a justifiable public purpose? In each of these cases, the lawyers serving on the AB will be hard-pressed to decide those questions in favor of trade. After all, the protection of free trade is their expertise. The temptation is strong to regard most justifications of trade restrictions as a cynical circumvention of international rules for individual interests (Howse AJIL 2002). Jagdish Bhagwati fears the “threat posed to the trading system by lobbies (in the North, of course) seeking to impose their own ‘trade-unrelated’ agendas on the GATT (and later the WTO) by simply adding the words ‘trade-related’ before whatever these agendas were” (Bhagwati 2002, 127). Bhagwati continues: “[T]he poor countries [which] have no lobbies anywhere like the sumptuous ones such as the Sierra Club and the AFL-CIO now find themselves at the receiving end of a growing list of lobbying demands that the northern politicians are ready to concede, cynically realizing that the bone thrown to these lobbies in their own political space is actually a bone down the gullets of the poor countries” (Bhagwati 2002, 127–128). In the absence of a political consensus among WTO members, is the DSB entitled to go beyond the narrow confines of the WTO agreements toward other areas of law? In Shrimp/Turtle, the AB included other international instruments, even if not yet in force, to determine the state of the international consensus regarding the exceptions to free trade by domestic regulation. There is no doubt that such decisions between different legitimate concerns by weighing all circumstances, including the resort to legal and quasi-legal norms and broad principles, will empower the judge or panelist to justify almost any result. And yet, the AB did not act without legal guidance. It did not substitute its own political convictions for those expressed by the international community, but it integrated them into its own system. There is, however, also a danger involved in this strategy. The controversy between Philip Alston and Ernst-Ulrich Petersmann on the inclusion of human rights in the WTO Dispute Settlement is a case in point. If the DSB adjudicates clashes between trade and human rights, it arrogates itself the power of a general court, basically taking over the functions of an ideal world court—not to confuse with the rather limited jurisdiction of the ICJ in The Hague. Alston speaks of the danger of a “merger & acquisition” of human rights by trade law. He particularly takes issue with the apparent conflation of economic freedoms with human rights in the proper sense of the term (Alston 2002, 823–828). Indeed, Petersmann largely equates economic rights, in particular property rights, but also the market freedoms of the EC treaty, with human rights (Petersmann 2002, 636–637; Petersmann 2000, 23). On the other hand, he is clearly not ignorant of the problematic involved (Petersmann 2002, 643).

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Nevertheless, the question arises whether Petersmann does not overload a trade dispute settlement procedure with other concerns. Being charged not only with promoting economic exchange, but also with the reduction of worldwide poverty, with health and human rights problems, the promise of free trade seems to be taken too far. In the words of Robert Howse, in the hierarchy of rights that Petermann is proposing, “[s]ocial and other positive human rights may only be pursued by governments to the extent to which they can be shown as ‘necessary’ limits on market freedoms. But why not the reverse? Why not subject free trade rules to strict scrutiny under a necessity test, where these rules make it more difficult for governments to engage in interventionist policies to protect social rights?” (Howse EJIL 2002, 655). Indeed, Petersmann criticizes traditional human rights doctrine for its blindness toward the liberating potential of free markets and sound competition laws (Petersmann 2002, 639). But the extension of the WTO system to questions of the balancing of trade with nontrade–related policy goals puts the legitimacy of the free-trade project at risk (Alston 2002; Howse and Nicolaïdis in Porter et al. 2001, 235–239). And yet, there is some truth to Petersmann’s insistence that human rights and social concerns are often (ab)used as disguise for the pursuit of individual interests (Petersmann 2002, 645). Unilateral trade restrictions for environmental or labor or human rights reasons are only an option, as a rule, for rich and powerful countries, not to small and weak ones (Bhagwati 2002, 133). Nevertheless, a better regard to conflicting policy goals might lead to a stricter check of the effects of trade-related measures on other human rights and values, such as development or the environment (Howse and Nicolaïdis in Porter et al. 2001, 225). Petersmann is correct to demand the respect of human rights, including social rights, in the interpretation of ART. XX GATT (Petersmann 2002, 646). However, such an approach would require a much more bold approach toward the construction of the exceptions contained in GATT (Petersmann 2002, 646; Charnovitz 1998). The question remains whether a body of trade experts and international lawyers constitutes the appropriate forum for such decisions, rather than national regulators and parliaments, which also enjoy much more democratic legitimacy (Petersmann 2002, 646; Howse EJIL 2002, 658). Conclusion: From Constitution to Discourse? For better or for worse, trade lawyers need to look to other functional systems in order to delineate their system. But how far can this exercise of

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“norm-” or “value-shopping” go? Are lawyers the right persons to decide those issues? Should they not be left to the “international legislator” (GATT Panel 1991; Bhagwati 2002, 134)? Such a hands-off approach would lead to the result that, for the time being, trade would prevail over all other values—until the conclusion of the current Doha round, at least (Doha Declaration 2001). Thus, legal decision-making substitutes for rather than executes a preexisting political agreement. On the other hand, the parties need a decision, here and now. In the end, the lawyer called to decide a trade dispute cannot avoid finding an ad hoc solution, which is always subject, however, to a contrary political decision by the parties. At times, however, legal problems of this kind may be “solved” by sending the parties back to the negotiating table. The insistence of the AB in Shrimp/Turtle on the priority of negotiations over legal sanctions demonstrates how a legal body may defer to political decisions without renouncing the claim to full compliance with the law. In cases involving difficult value problems, which are not preordained in WTO law or other international rules, a renvoi to the parties, with some guidance on the legal principles and issues involved, may thus be the best avenue to take (ICJ 1997; AB 1998—Beef Hormones; Howse and Nicolaïdes in Porter et al. 2001, 245). Thus, the judicial body must draw a line between deciding on the basis of existing laws and trends in decision making and an overreaching of legal adjudication into the purely political realm. Substantive balancing of values and the separation of powers between legal and political bodies thus go hand-in-hand. Adjudicating bodies such as the WTO dispute settlement must resist the temptation to preserve the prime value of their system as against others. Thus, they need to forego the attempt of hierarchization in favor of balancing, paying due regard to other issue areas (such as the protection of the environment and animal life in Shrimp/Turtle) and avoiding the dominance of institutionally strong over institutionally weak issue areas. It is the task of international lawyers to further develop a methodology that would allow for the respect of the values of other issue areas within institutional settings such as the WTO dispute settlement. Thus, the advent of pluralist functionalism may indeed imply a shift from constitutional solutions relying on hierarchical decision-making by superior bodies to mutual accommodation of different functional systems, a move from constitution to process. However, this approach also gives an ever larger margin of appreciation to lawyers. The lawyer ends up in a political role: The result of the application of abstract principles to the concrete circumstances of a specific case is not predetermined by legal rules. As one WTO practitioner

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has observed: “[T]he problems of scope and linkage are essentially political in nature. Therefore, the solutions will also be political” (Steger 2002, 135; see also Trachtman 2002, 77). But does the political (and therefore arbitrary) nature of the lawyer’s choices delegitimize the lawyer or transform her into a political actor? Where do we find the specificity of judicial—as opposed to purely political—settlement? One answer to this concern can be found in both the procedure and the criteria used in a “legal” decision. The specificity of a legal decision on value clashes is the orientation toward values and principles, not political expediency or exchange of benefits. Here we find the argument for the use of the traditional means of treaty interpretation, which might help to preserve the unity of international law in diversity, “because these norms are common to international law generally, including to regimes that give priority to very different values, and are not specific to a regime that has traditionally privileged a single value, that of free trade” (Howse AJIL 2002, 110). The lawyer is not entitled to find an unprincipled, political “tit-for-tat” solution. She needs to refer to established rules and principles to reason her decision. Neither party needs the lawyer to hide her ultimate value judgment, which will always be subject to critique from both sides—the legal-formalistic and the political/outcome-oriented. The political nature of legal choices also means that the results of such legal balancing of values, norms, and interests are subject to a more “political” critique than mere applications of the law. They are “hard cases” by definition, depending on the concrete circumstances and are difficult to generalize. In the absence of unequivocal, clear rules for the decision of value conflicts or independent enforcement authority, international decisions ultimately depend—even stronger than political ones— on the social acceptance of the outcomes by the political community at large. Such acceptance will only be reached if the lawyer strives to take all relevant legal pronouncements on values into account. Thus, in the end, only by remaining within the professional realm the international lawyer will fulfill her mandate. Only the professional attitude of the lawyer as an intermediary between socially accepted values translated into legal norms, and an often confusing and confused reality, can lead to acceptable solutions even in the absence of a preexisting political consensus (see the debate between Korhonen in Drolshammer and Pfeifer 2001, 373 and Paulus in Drolshammer and Pfeifer 2001, 385; Paulus, Postmodernism 2001, 737, 755). In other words, from an interpreter of the authoritative will of others, the lawyer transforms into an agent of global governance, constrained by a professional practice and the power of persuasion rather than the means of enforcement.

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References AB. 1996. United States—Gasoline, Report of the Appellate Body, WTO doc. WT/DS2AB/R. ———. 1998. Shrimp, United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WTO Doc. WT/DS58/AB/R, reproduced in: International Legal Materials 38: 121–175. ———. 1998. Beef Hormones, European Communities—Measures Concerning Meat and Meat Products, Report of the Appellate Body, WTO Doc. WT/DS48/AB/R. Allott, Philip. 1990. Eunomia: New Order for a New World. Oxford, New York: Oxford University Press. Alston, Philip. 2002. Resisting the Merger and Acquisition of Human Rights by Trade Law: A Reply to Petersmann, European Journal of International Law 13: 815–844. Alvarez, Jose. 1996. Judging the Security Council. American Journal of International Law 90: 1–39. Anderson, Kenneth. 2000. The Ottawa Convention Banning Landmines, the Role of International Non-governmental Organizations and the Idea of International Civil Society. European Journal of International Law 11: 91. Ascensio, Hervé, Emmanuel Decaux, and Alain Pellet, eds. 2000. Droit international pénal. Paris: Pedone. Bagwell, K., P. C. Mavroidis, and R. W. Staiger. 2002. It’s a Question of Market Access, American Journal of International Law 96: 56–76. Bhagwati, Jagdish. 2002. Afterword: The Question of Linkage. American Journal of International Law 96: 126–134. Byers, Michael, and Georg Nolte, eds. 2003. United States Hegemony and the Foundations of International Law, Cambridge: Cambridge University Press. Cassese, Antonio. 1986. International Law in a Divided World. Oxford: Clarendon Press. ———. 1995. Self-Determination of Peoples: A Legal Reappraisal. Cambridge: Cambridge University Press. Cassese, A., P. Gaeta, and J. W. D. Jones. 2002. The Rome Statute of the International Criminal Court. Oxford: Oxford University Press. Charnovitz, Steve. 1998. The Moral Exception in Trade Policy. Virginia Journal of International Law 38: 689–745. ———. 2002. Triangulating the World Trade Organization, American Journal of International Law 96: 28–55. Convention on Biological Diversity. 1992. United Nations Treaty Series 1760: 143–165, reproduced in: International Legal Materials 31 (1992), 818. Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction. 1997. United Nations Treaty Series 2056: 211. Crawford, James, ed. 2002. The International Law Commission’s Articles on State Responsibility. Cambridge: Cambridge University Press. Doha Declaration. 2001. Doha Ministerial Declaration, WTO Doc. WT/MIN(01)/DEC/1 (2001).

the international lawyer / 217 Drolshammer, Jens, and Michael Pfeifer, eds. 2001. The Internationalization of the Practice of Law. The Hague et al.: Kluwer Law International. DSU. 1994. Understanding on Rules and Procedures Governing the Settlement of Disputes. United Nations Treaty Series 1869: 401–424. Dworkin, Ronald. 1986. Law’s Empire. Cambridge, Mass.: Harvard University Press. EU-Chile Settlement. 2001. EU and Chile Reach an Amicable Settlement to End WTO/ITLOS swordfish dispute, Doc. IP/01/116, January 25, 2001. Available at http://europa.eu.int/comm/trade/index_en.htm (visited October 3, 2002). Fassbender, Bardo. 1998. UN Security Council Reform and the Right of Veto: A Constitutional Perspective. Den Haag et al.: Kluwer Law International. Fischer-Lescano, Andreas, and Gunther Teubner. 2004. Regime-Collisions: The Vain Search for Legal Unity in The Fragmentation of Global Law. Michigan Journal of International Law 25: 999–1046. Fox, Gregory H., and Brad R. Roth, eds. 2000. Democratic Governance and International Law. Cambridge: Cambridge University Press. Franck, Thomas. 1990. The Power of Legitimacy Among Nations, New York/ Oxford: Oxford University Press. GATT. 1947/1994. General Agreement on Tariffs and Trade. United Nations Treaty Series 1867: 190–199. GATT Panel 1991. United States—Restrictions on Imports of Tuna, August 16, 1991, reprinted in 30 ILM (1991), 1594 (unadopted), paras 6.3–6.4. Gowlland-Debbas, Vera. 2000. The Limits of Unilateral Enforcement of Community Objectives in the Framework of UN Peace Maintenance. European Journal of International Law 11: 361–383. Hafner, G. 2000. Risks Ensuing From Fragmentation of International Law, International Law Commission, Report on the Work of Its Fifty-Second Session, General Assembly, Official Records, Fifty-fifth Session, Suppl. No. 10, UN Doc. A/55/10 (2000): 321–330. Hart, Herbert L. A. 1994. The Concept of Law. 2nd ed. Oxford: Clarendon Press. Howse, Robert. 2002. Human Rights in the WTO: Whose Rights, What Humanity? European Journal of International Law 13: 651–659. ———. 2002. From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trade Regime, American Journal of International Law 96: 94–117. ICJ. 1970. Barcelona Traction, Light and Power Company, Limited, I.C.J. Reports: 3–51. ———. 1997. Gabcíkovo-Nagymaros Project case (Hungary v. Slovakia), I.C.J. Reports 1997: 7–84. ICTY. 1999. International Criminal Tribunal for the Former Yugoslavia, Prosecutor v. Furundzíja, International Legal Materials 38: 317–393. International Law Commission (ILC). 2001. Report of the Study Group on Fragmentation of International Law, August 1, 2002, UN Doc. A/CN.4/L.628 (2001). ———. 2002. International Law Commission, Report on the Work of Its FiftyFourth Session, General Assembly, Official Records, 57th session, Supplement No. 10, UN Doc. A/57/10 (2002).

218 / andreas l. paulus International Law Commission (ILC). 2004. Report of the International Law Commission, Report on the Work of Its Fifty-Sixth Session. General Assembly, Official Records, 59th session, Supplement No. 10, UN Doc. A/59/10 (2004). ITLOS Chamber Constitution. 2000. International Tribunal for the Law of the Sea, Conservation and Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean (Chile/European Community), Case No. 7, Constitution of Chamber, Order 2000/3, reproduced in: International Legal Materials 40: 474–479. Jennings, Robert, and Arthur Watts, eds. 1992. Oppenheim’s International Law. 9th ed. Harlow: Longman. Kennedy, David. 1987. The Move to Institutions. Cardozo Law Review 8: 841–988. Keohane, Robert O., and Joseph S. Nye, Jr. 2001. Power and Interdependence. New York: Addison-Wesley Longman, 3rd edition. Koskenniemi, Martti, and Päivi Leino. 2002. Fragmentation of International Law? Postmodern Anxieties. Leiden Journal of International Law 154: 553–579. Kuyper, P. J. 1994. The Law of GATT as a Special Field of International Law. Netherlands Yearbook of International Law (1994), 227–225. Leebron, David W. 2002. Linkages. American Journal of International Law 96: 5–27. Luhmann, Niklas. 1995. Das Recht der Gesellschaft. Frankfurt am Main: Suhrkamp Taschenbuch. ———. 1997. Die Gesellschaft der Gesellschaft. Vol. 1. Frankfurt am Main: Suhrkamp. Merkl, A. 1931. Prolegomena zu einer Theorie des rechtlichen Stufenbaues, Gesellschaft, Staat und Recht. Untersuchungen zur Reinen Rechtslehre. Festschrift Hans Kelsen zum 50. Geburtstage. Wien: Springer, 252–294. Neumann, Jan. 2001. Die materielle und prozessuale Koordination völkerrechtlicher Ordnungen: Die Problematik paralleler Streitbeilegungsverfahren am Beispiel des Schwertfisch-Falls, Zeitschrift für ausländisches öffentlichesRecht und Völkerrecht 61: 529–576. Orellana, Marcos. 2002. The EU and Chile Suspend the Swordfish Case Proceedings at the WTO and the International Tribunal of the Law of the Sea, ASIL Insight, February 2001. Available at http://www.asil.org/ insights/insigh60.htm (visited November 4, 2002). Paulus, Andreas. 1999. Book Review. European Journal of International Law 10: 209–211. ———. 2001. Die internationale Gemeinschaft im Völkerrecht. München: C. H. Beck. ———, Postmodernism. 2001. International Law After Postmodernism: Towards Renewal or Decline of International Law? Leiden JIL 14: 727–755. ———, Iraq. 2004. The War Against Iraq and the Future of International Law. Michigan Journal of International Law 25: 691–733. ———, State. 2004. Comment to Andreas Fischer-Lescano & Gunther Teubner. The Legitimacy of International Law and the Role of the State. Michigan Journal of International Law 25: 1047–1058.

the international lawyer / 219 Pauwelyn, Joost. 2001. The Role of Public International Law in the WTO: How Far Can We Go. American Journal of International Law 95: 535–578. ———. 2003. Conflict of Norms in Public International Law. Cambridge: Cambridge University Press. Petersmann, Ernst-Ulrich. 1997. How to Reform the UN System? Constitutionalism, International Law, and International Organizations. Leiden JIL 10: 421–474. ———. 2000. The WTO Constitution and Human Rights. Journal of International Economic Law 19–25. ———. 2002. Time for a United Nations “Global Compact” for Integrating Human Rights into the Law of Worldwide Organizations: Lessons from European Integration. European Journal of International Law 13: 621–650. Porter, R. B. et al., eds. 2001. Efficiency, Equity, and Legitimacy: The Multilateral Trading System at the Millennium. Washington: Brookings. Rio Declaration on Environment and Development. 1992. UN Conference on Environment and Development. Rio de Janeiro June, 3–14 1992, UN Doc. A/CONF.151/5/Rev. 1 (1992), reproduced in: International Legal Materials 31: 876–880. Rodrígez Cedeño, V. 2002. Fifth Report on Unilateral Acts of States, April 17, UN Doc. A/CN.4/525/Add.1 (2002). Rome Statute. 1998. Rome Statute of the International Criminal Court. United Nations Treaty Series 2187: 90–158. Rosenau, James, and Ernst-Otto Czempiel, eds. 1992. Governance without Government: Order and Change in World Politics. Cambridge: Cambridge University Press. Schoemann, H. L. and S. Ohlhoff. 1999. “Constitutionalization” and Dispute Settlement in the WTO: National Security as an Issue of Competence. American Journal of International Law 93: 424–451. Sharma. 1999. Statement. Security Council, Fifty-forth Year, 3989th mtg., March, 24 1999, UN Doc. S/PV 3989 (1999): 16. Simma, Bruno. 1985. Self-Contained Regimes. Netherlands Yearbook of International Law 16: 111–136. ———. 1994. From Bilateralism to Community Interest in International Law. Recueil des Cours 250: 217–384. ———, ed. 2002. The Charter of the United Nations: A Commentary. 2nd ed. Oxford: Oxford University Press. Slaughter, Anne-Marie, and William Burke-White. 2002. An International Constitutional Moment, Harvard International Law Journal 43: 1–21. Steger, Debra, P. 2002. Afterword: The “Trade and . . .” Conundrum— A Commentary. American Journal of International Law 96: 135–145. Taft, William, H. IV, and Todd F. Buchwald. 2003. Preemption, Iraq, and International Law. American Journal of International Law 97: 557–563. Teubner, Gunther, ed. 1997. Global Law without a State. Aldershot: Darthmouth. Tomuschat, Christian. 1993. Obligations Arising for States with or against Their Will. Recueil des Cours 241: 195–375. ———, ed. 1993. Modern Law of Self-Determination, Dordrecht/Boston/ London: Nijhoff.

220 / andreas l. paulus Tomuschat, Christian, 1995. Die internationale Gemeinschaft, Archiv des Völkerrechts 33: 1–20. Trachtman, Joel. 2002. Institutional Linkage. American Journal of International Law 96: 77–93. TRIPS. 1994. Agreement on Trade-Related Aspects of Intellectual Rights, Marrakesh Agreement Establishing the World Trade Organization, Annex 1 C, United Nations Treaty Series 1869: 299–331. UN-WTO. 1995. Exchange of Letters Constituting a Global Arrangement on Cooperation, September 29, United Nations Treaty Series 1889: 590–593. UNCLOS. 1982. United Nations Convention on the Law of the Sea, 1982. United Nations Treaty Series 1833: 397–581. Vienna Convention on the Law of Treaties. 1969. United Nations Treaty Series 1155: 331–353. Weller, Marc, ed. 1999. International Documents & Analysis 1. WTO. 1994. Marrakesh Agreement Establishing the World Trade Organization, United Nations Treaty Series 1867: 154–164. WTO Panel Request. 2000. Request for the Establishment of a Panel by the European Communities, WTO Doc. WT/DS193/2 (2000).

C h ap t e r 10 Human Rights as Civil Religion: The Glue for Global Governance? Julie Owen

Introduction The concept of human rights is often discussed in religious terms, although in and of themselves, human rights are hardly transcendental. The ideology of human rights is being embraced by the United Nations and academics, among others, as the moral foundation of global order, or the “glue” that holds the political project of global governance together by creating the common moral understanding necessary to legitimize global political authority. The definition of global governance adopted here is that of the Commission on Global Governance, which vaguely defines governance as “the sum of the many ways individuals and institutions, public and private, manage their common affairs” (1995, 2) and global governance as “a broad, dynamic, complex process of interactive decision-making that is constantly evolving and responding to changing circumstances” (4). Human rights and the “global ethic” are to be the ties that bind in the face of linguistic, religious, and cultural diversity. In the section, “Civil Religion, Human Rights, and the Global Ethic,” I suggest that human rights and the global ethic are being advanced as a civil religion or, at a minimum, as performing a religious function to legitimize the project of global governance. The concept of civil religion is used here as an analytical tool to critique both human rights discourse and its legitimizing role. This is not an empirical study of whether human rights are in fact replacing religion. Rather, the purpose is to consider some of the implications of the concept of human rights as civil religion in light of the fact that academics, international lawyers, and implicitly the Commission all assert this position.

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Viewing human rights as a civil religion poses a number of problems. The section, “Implications for Freedom of Religion” addresses possible implications for freedom of religion, itself a human right. The two implications discussed below are related: (1) the form of secularism that will be adopted in the global public sphere, and (2) the scope of freedom of religion. The section, “Legitimizing Global Governance,” considers whether human rights and the global ethic as civil religion can legitimize the project of global governance. I suggest that they are lacking as a civil religion because they offer an inadequate meaning system and moral vocabulary. Human rights simply do not capture the depth or breadth of human experience. Even if human rights could fill the role of a civil religion, the lack of determinacy and accountability of the political authorities seeking legitimacy would preclude human rights from providing the necessary legitimacy. I conclude that freedom and human flourishing, and consequently global governance, require a richer moral foundation than human rights alone can offer. Civil Religion, Human Rights, and the Global Ethic Describing human rights in religious terms as universal imperatives suggests a desire to have them demand loyalty above and beyond the state. Does that make them a global civil religion in the sense suggested by Rousseau (1762) or Bellah (1970)? The concepts of civil religion, human rights, and the global ethic are explored in turn before considering human rights and the global ethic as a global civil religion. Civil Religion While a variety of concepts (public philosophy, global ethic, public theology) address similar concerns, civil religion is the focus here. Rousseau used the concept of civil religion to describe a religious sense of purpose that would motivate citizens to act in a way that would be good for society and the state. He recognized the need for religion to provide a sense of meaning beyond the state. Yet he sought to distance civil religion from any particular Christian denomination. In political philosophy, the term has been used in efforts to address the tension between the authority of church and of state. In that respect, it has close ties to sovereignty and the development of the nation-state in the period following the Enlightenment. Rousseau’s delineation of civil religion aptly describes the Commission’s aspirations for human rights and the global ethic.

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Rousseau described civil religion as “a purely civil profession of faith whose articles the sovereign is competent to determine, not precisely as religious dogmas, but as sentiments of sociability, without which it is impossible to be either a good citizen or a faithful subject” (153). The subject can be banished not for impiety but for “being incapable of sincerely loving law and justice” (153). The sanctity of the social contract and the laws are among the positive dogmas of Rousseau’s civil religion. Negative dogmas he limited to one: intolerance. He excluded Roman Catholicism, Judaism, and Islam as incompatible with the sovereignty of the state because they purport to speak of absolute truth. (For Islam he may have allowed an exception if it were part of a unitary state.) Civil religion, like human rights law, is for the sovereign to determine. More recently, the term civil religion has taken on new meaning in the United States, with its revival by Bellah. The claim is made that not every state has a civil religion but that it is a good and necessary thing in a liberal democracy. It has also been suggested that civil religion in the United States has to some degree been the product of protecting freedom of religion. That appeared to work well when the majority of the population shared a Judeo-Christian worldview. But in the face of the Vietnam War and an American society characterized by growing atheism, agnosticism, Eastern spirituality, and, generally, greater diversity of religious traditions, by 1970 Bellah was mourning the decline of American civil religion. Use of the term religion to describe human rights or any other secular ideology, such as nationalism or socialism, is open to criticism on the basis that it diminishes the meaning of religion. Perry describes a “religious” worldview as etymologically understood as a vision of final and radical reconciliation, a set of beliefs about how one is or can be bound or connected to the world—to the “other” and to “nature”—and, above all, to Ultimate Reality in a profoundly intimate way. If a worldview is not grounded or embedded in a vision of the finally or ultimately meaningful nature of the world and of our place in it, it is a confusion, . . . to think of that worldview as “religious”—even if the worldview, like Marxism, is all-encompassing. (14–15)

As neither human rights nor the global ethic purports to engage Ultimate Reality or belief in God in the way that Rousseau’s civil religion does, it may be more accurate to speak of their functional similarities to religion. Nevertheless, because historically civil religion has been integral to Western efforts to legitimize political authority and sovereignty in the state as opposed to the church, it provides a useful framework for analysis.

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Human Rights The development of the content of human rights and related norms is an ongoing process, one that may be conceptualized as a transnational legal process (Koh 1996). Transnational legal process describes the theory and practice of how state and non-state actors interact in a variety of fora to make, interpret, enforce, and internalize rules of transnational law. The concept is both descriptive and normative in its efforts to explain why states obey international law. In that respect, it relates to efforts that are made to internalize international human rights norms. In some respects, transnational legal process describes the approach taken in this chapter. But in recognition of the need for a better understanding of the interplay between morality and law—especially at the transnational level where the law-making process is so amorphous—I consider the term transnational legal and moral process more apt. Examination of this transnational legal and moral process can reveal not only why nations comply with international human rights law but also who is setting and diffusing the norms. Those are the actors with a vested interest in the system that they seek to legitimize. The approach here is both descriptive and normative. It is descriptive of the process by which human rights discourse is being used to seek to shape and create a cosmopolitan identity supportive of global governance. It is normative in suggesting that the growth of human rights norms without reflection and greater agreement upon their content is a hegemonic liberal project that risks marginalizing religion. In this interactive process of norm and law creation and definition, new rules may be created, providing a particular liberal content for freedom of religion. Examining the process at work foregrounds the interplay between “values” and human rights and raises questions as to the adequacy of human rights as a moral vocabulary. The concept of human rights is far from clear. The term itself is vague yet compelling, representing an unsettled content. The broad concept encompasses rights as embodied in the International Bill of Rights, other human rights treaties and instruments (including regional accords), and domestic constitutions and legislation. The evolution of human rights law demonstrates the transnational legal and moral process in action. For present purposes, human rights would seem to mean international human rights. Generally these rights are set out in treaties. But they may also evolve in the jurisprudence of international criminal tribunals. Declarations, resolutions, comments from treaty bodies, and decisions of regional courts—all of these may become sources of international human rights law. It remains to be seen whether the Appellate Body of

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the World Trade Organization and the International Court of Justice will have the opportunity to elaborate on human rights questions (or whether they have a desire to do so). As a result of litigation under the Alien Tort Claims Act,1 U.S. courts are contributing to the development of international human rights as matters of customary international law.2 Certain fundamental principles that constitute jus cogens may also be described as international human rights. International human rights law suffers from an indeterminacy of content or a “certain normative thinness” (Carozza 2003, 58) and from inadequate mechanisms of supervision and compliance, leaving states significant latitude. The language of a particular treaty or constitution may be used to elucidate the meaning of a particular right, but that language is often indeterminate. For example, what does a right “not to be discriminated against on the basis of sex” mean? Does it require equal treatment for women vis-à-vis men? The strict language of the human rights law in question may not indicate whether equality is to be formal or substantive. A host of questions arise in deciding what nondiscrimination means. Treaty language setting out the right is also often accompanied by limitations and derogations clauses within the treaty. But to focus only on international human rights oversimplifies matters and ignores the process by which rights are created and applied. In interpreting constitutional rights, regional and national tribunals may also interpret international human rights norms. Comparative approaches to constitutional rights interpretation (e.g., borrowing and cross-referencing between the European Court of Human Rights and the Supreme Court of Canada or the South African Constitutional Court) (McCrudden 2000) are also important aspects of global governance and the “human rights mystique” (Cohen 1986, 70). Despite the connection between human rights and liberal democracy, serious questions may be raised as to the democratic legitimacy of comparative judicial approaches. Because of the cross-pollination both in human rights interpretation and in constitutional drafting, and with the increasing development of customary international law in domestic courts, domestic constitutional rights are also part of the human rights picture. On a more general level, human rights raise questions as to the obligations of the state and of other members of society. Do rights bind only public actors? How are fellow citizens affected, and what of their rights? Typically treaties and constitutions provide little guidance as to how to reconcile conflicts of competing rights. What happens when one person’s freedom of speech or religion clashes with another person’s right to equality? Domestic courts, and sometimes administrative bodies,

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struggle with these questions, as do regional human rights bodies. Different states have ratified different treaties and are bound by a variety of constitutional obligations. In addition, the relatively common practice of reservations and declarations allows states to limit the obligations they undertake. This results in quite different approaches to the regulation of hate speech, for example, in the United States as compared to Canada or the European Union (EU). The possibility of different answers to these questions makes the debate about universality and cultural relativism more complicated. And where, in all of this, do duties come into play? The philosophical and metaphysical foundation of human rights is no more settled today than it was in 1948 when the Universal Declaration was adopted (Glendon 2001). The need to resolve conflicts between rights can also highlight the tensions between civil and political rights and economic, social, and cultural rights. Are property rights and market liberalization consistent with a right to development? Is there, in fact, a hierarchy of rights, with equality taking precedence over freedom of religion (despite protestations of interdependence and indivisibility)? Should there be such a hierarchy? Or is another related hierarchy the promotion of civil and political rights, which are perceived as more supportive of the spread of liberal democracy and market globalization, at the price of social and economic rights? This is just a sampling of the kinds of questions that regularly arise in human rights discourse. In short, human rights law creates legal rights, often in very broad language. When reconciliation of competing rights is required, the courts often look to underlying values, such as tolerance, as the basis for their decision. The indeterminacy of human rights law necessitates reference to some other moral code or values in order to interpret and apply the law. Global Ethic Not surprisingly, then, on the international plane, values play an increasingly prominent role. The value of tolerance underpins the UN Charter and the global ethic (Commission 1995, 41–75). The Commission acknowledges the need for commonly accepted values and norms in order to establish legitimate forms of global governance (47). According to the Commission, the core values of a universal moral community where “people are bound together by more than proximity, interest, or identity” are respect for life, liberty, justice and equity, mutual respect, caring, and integrity (49). The Commission glosses over the interplay between these values and human rights norms, effectively backgrounding rather than illuminating the transnational legal and moral process at

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work. To explain what is meant by the value of liberty, primarily civil and political rights are listed, such as the freedoms to define and express one’s own identity, to choose a form of worship, to earn a livelihood, to be free from persecution and oppression, and to receive information (50–51). Free speech, a free press, and the right to vote are also cited. The values of justice and equity touch more closely on economic and social rights, with reference being made to a fairer sharing of resources and distributive justice (51–52). The right to development and protection of the environment also come into play. Mutual respect, defined as tolerance, is the basis for a plural society. Resort to violence by racial and religious extremists is described as antithetical to the global ethic because it exemplifies intolerance. International humanitarian law, with its human rights dimension, is encompassed in the value of caring. The importance of integrity to building trust is noted; fraud, bribery, and corrupt practices are inconsistent with the “value” of integrity (54). The Commission seems to limit the call for integrity to policy makers and those in positions of authority (in both public life and in the private sector). The limited use of integrity and caring hints at what is missing from the equation: the virtues that we would like members of the global neighborhood to practice. The global ethic has been slightly restated more recently. In his Millennium Report, the secretary-general identified six shared values as being of particular relevance to the twenty-first century: freedom, equity, and solidarity, tolerance, nonviolence, respect for nature, and shared responsibility (Annan 2000, 77). These values cover much of the same ground as the global ethic but caring and integrity seem to have lost their prominence. In 1993, the Parliament of the World’s Religions declared “that a common set of core values is found in the teachings of the religions, and that these form the basis of a global ethic” (Küng 1996, 10). Without purporting to advocate a single unified religion or the domination of one religion over all others, such a global ethic would be “a fundamental consensus on binding values, irrevocable standards, and personal attitudes” (Küng 1996, 14–15). Neither the Parliament of the World’s Religions nor its global ethic is mentioned in connection with the Commission’s aspirations to a global ethic, although some references are made to religious principles. Together with the concept of human rights, the global ethic articulated as part of the Commission’s cosmopolitan vision is intended to serve the function of a civil religion: provide the sense of common purpose necessary to motivate people to act in a way that is good for a cosmopolitan

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society. The global ethic does not rely solely on human rights. Instead, it buttresses them in two important ways: (1) by reference to the “global values” of respect for life, liberty, justice, and equity, mutual respect, caring, and integrity; and (2) by supplementing universal human rights with (a) a conceptual shift from thinking about rights in terms of people and governments to rights as between citizens,3 and (b) an emphasis on responsibilities such as due respect for the reciprocal rights of others (Commission 1995, 49, 57). In theory, democracy and respect for the rule of law are also integral to the global ethic. For the moment, it is significant that values have been included with rights as part of the global ethic. This demonstrates the transnational legal and moral process and the need for something more than human rights law as a legitimizing morality for global governance. The turn is to values for the necessary underpinning. But the Commission’s report is ambiguous on whether values, law or both, are to underpin the global ethic. Elsewhere the Commission relies upon law: “The emerging global neighbourhood needs to live by a new ethic that is underpinned by a culture of law” (331). Promoting respect for the rule of law and making the values of the global ethic part of that law through human rights are central to the legitimacy of global governance structures. The shift to values language does not clarify the tensions within human rights discourse but simply moves them to a different plane. Instead of having to interpret and define the catalogue of human rights or civil liberties listed in a constitution or treaty, the debate centers, for example, on the meaning of tolerance and secular principles in a pluralistic society. These are important questions. But the move to values language both in rhetoric and in legal argument creates additional blind spots. Where a court is interpreting and applying values that are reflected in a constitutional document, a bill of rights or an international human rights treaty, the focus on values such as tolerance may obscure the way that rights (such as equality and freedom of religion) are being shaped and the fact that that shaping process is being undertaken. A Global Civil Religion? The call for a common moral purpose as a necessary underpinning for world order is not new. In 1947, Ewing noted that “the fact that we have no sentiment for Humanity as a whole” makes successful international government more difficult but not impossible (262). The quest for such a sentiment has been a driving force behind international human rights. In 1984 Cohen asked whether human rights as an international legal and political phenomenon had reached a level of such intensity and

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scope that the world was witnessing the emergence of a transnational secular religious force (71). Is a communal ethos founded on human rights a form of international “secular faith”? (van der Vyver 1996, xi; Witte, Jr. 1996, 9) It has been suggested that national citizenship will become less and less important in the post-national age (Bosniak 2000). The notion of global citizenship helps provide the sense of identity and common purpose necessary to encourage allegiance to transnational institutions. The desire for global citizenship hinted at by the Commission reflects elements of Held’s cosmopolitan democracy (1995) and Habermasian cosmopolitan solidarity (2001). Citizenship and human rights, then, are inextricably linked in forming the foundation of a supranational order, but its ties to democracy are tenuous. The sovereign or political authority in such an order may include networks of NGOs and international bodies like the WTO or the Human Rights Committee. Human rights law, established by these multiple sovereigns, represents Rousseau’s “sentiments of sociability.” Because they are considered law, they are spread as part of the “liberating” rule of law. Religious metaphors abound in descriptions of international human rights law. As David Kennedy puts it: “Among well-meaning legal professionals in the United States and Europe—humanist, internationalist, liberal, compassionate in all the best senses of these terms—the human rights movement has become a central object of devotion” (2002, 101). Michael Ignatieff has called human rights “the lingua franca of global moral thought” (2001, 53). Ignatieff rejects the notion that human rights are a “secular religion,” arguing that to make them so is idolatry (humanity worshipping itself). Instead, he describes human rights as a “secular article of faith . . .[whose] metaphysical underpinnings are anything but clear” (77). Louis Henkin has considered religion as a competing ideology with human rights, concluding that the two are not in competition. “Religion explains and comforts, tradition supports, socialism cares, development builds; the human rights idea does none of these” (Henkin 1990, 193). Yet Henkin speaks of “spread[ing] the gospel of human rights.”4 Giorgio Sacerdoti, a member of the Appellate Body of the World Trade Organization, has asserted that: “The ‘religion’ of human rights and fundamental freedoms has replaced other religions and beliefs as the underpinning of social life in contemporary societies” (2002, 52). The religious thrust of human rights discourse reflects the need of people in a plural society to invest their activities with meaning. Human rights discourse can do that in a way that brings together people of diverse religious backgrounds.

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In terms of religious functionality or whether human rights are a civil religion, a distinction might be drawn between the present state of international human rights law and the cosmopolitan aspirations of international human rights advocates (including academics, governments, and NGOs) who extol human rights in religious tones. But on the view of international law advanced by the transnational legal process school, both are important. Particularly in the area of international law, where scholarly writing may be relied upon as a source of international law, the positions taken in articles and those taken by governments, international organizations (IOs), NGOs, corporations, and individuals in their dealings with one another are part of that process. It is through their interaction that norms are generated and interpreted. The functioning of human rights as a civil religion is also apparent in the shifting legal status of transnational corporations (TNCs), which are becoming increasingly subject to amorphous forms of global governance infused with human rights objectives and are being called upon to be global corporate citizens (Annan 2000, 14). The first principle of the Global Compact is that businesses are expected to respect international human rights and ensure that they are not complicit in human rights abuses.5 Transnational corporations have been described as “reluctant missionaries” of the human rights message (Ottaway 2001). The interplay of rights and values is also evident in human rights activity relating to TNCs. For example, it was observed in a recent ECOSOC report on TNCs that one NGO noted the need for a statement of ethics for TNCs and “emphasized that human rights law was the ultimate source of those ethics” (2002, para. 31). Human rights may not be an all-encompassing or metaphysical ideology, but the concept is being called upon to serve a religious function in global order, sometimes on its own and sometimes in the guise of a global ethic. The concept of human rights purports to speak not only as morality but also as law. Respect for human rights reflects respect for the rule of law. The concern that people will not respect the rule of law “unless it represents for them a higher, sacred truth” (Berman 1974, 74) relates to the problem of the legitimacy of political authority. With its overtones of morality, human rights law is intimately related to advancing the “sacredness” of law and respect for the rule of law. In that respect, it is part of the ideology being advanced as the civil religion supportive of global citizenship. At the same time that it purports to be a higher truth in itself, human rights law defines the process by which allencompassing ideologies or religions (higher, sacred truths) may be expressed or pursued.

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Implications for Freedom of Religion Religion is not defined in the UN instruments dealing with religious human rights. It is generally agreed, however, that protections of religious belief cover “theistic convictions, involving a transcendental view of the universe and a normative code of behaviour, as well as atheistic, agnostic, rationalistic, and other views in which both elements may be absent” (Lerner 2000, 37). Both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights protect freedom of religion. As well as being protected in many domestic constitutions, freedom of religion is a basic freedom in several regional human rights treaties, protected in varying forms. It encompasses an individual aspect (freedom of conscience and religion of the individual), a group identity aspect, and an institutional aspect. In global terms, however, even with regional protections, freedom of religion is far from secure. Religion can also be confused with tribalism, and religious beliefs may be instrumentalized in campaigns of national and ethnic violence. But just as the actions of some politicians are not the sole basis on which democracy should be judged, the actions of some people who are associated with religion should not be the sole measure of its value to society. Religion is a moral, social, and political force with which governments have to reckon not only domestically in mediating competing claims in the arena of religious pluralism, but also on the international plane. Issues such as proselytism, blasphemy, and the rights of women and children raise complex questions as to the place of religion and the reconciliation of religious freedom with other rights. It would be a mistake to suggest that there are easy answers to these questions. The discussion here focuses on how we find the answers. In particular, what model of secularism is appropriate and what is an acceptable exercise of freedom of religion? Another important question that is not tackled here is who decides the answers to these questions. Secular Public Sphere One likely implication of human rights as civil religion is the adoption of a secular or “separation of church and state” model in the public sphere. The degree to which secularism prevails will have a significant impact on how we answer questions about the place of religion and the scope of religious freedom. The desire for tolerance emphasized by the Commission and religious pluralism appear to lead inexorably to a secular international society. But the understanding of what that requires is significant. Just as the way we theorize, conceptualize, and analyze globalization prejudges

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the place and function we allocate to religion (Mendieta 2001, 61), the same is true for the way we theorize, conceptualize, and analyze global governance. It has been suggested that NGOs operating in a legal environment premised on U.S. First Amendment liberalism seek to maintain a formally secular international public sphere (Kingsbury 2002, 185). If a secular view of human rights is a global civil religion, are religions with truth claims heretical, as they would be under Rousseau’s negative dogma of intolerance? Has freedom of religion become freedom from religion? The vocabulary of “the secular” and “secularism” is itself fraught with confusion, even leaving aside the French notion of laïcité. Secular is defined as “[o]f or pertaining to the world”; “[b]elonging to the world and its affairs as distinguished from the church and religion.”6 Secularism, on the other hand, is defined as “[t]he doctrine that morality should be based solely on regard to the well-being of mankind in the present life, to the exclusion of all considerations drawn from belief in God or in a future state.”7 Secularism, therefore, has a strongly exclusionary aspect. Modern state sovereignty and the secular “separation of church and state” that is presumed to go with it (at least in Western liberal democracies) have their roots in the struggle for power between the state and the church. This is reflected in Rousseau’s prescription of civil religion. The temporal authority of the state has always struggled with the limits on its power inherent in the existence of an authority that concerns itself not only with this world, but with what happens after death. The struggle has been resolved differently in different times and places, with the degree of secularization throughout the world varying widely (Durham and Cole 1996). The phrase separation of church and state is both imprecise and inaccurate. First, the notion of church reflects a Christian bias and may alienate people of other religious traditions. (Separation of church, mosque, temple, synagogue, and state is simply too cumbersome, even if it were to be seriously considered.) Rather than church, it would be more apt to speak of religion. Second, in light of the shifting winds of state sovereignty and political units of global governance as competing or complementary political authorities, the reference to the state obscures more than it reveals. Neither the state nor government captures the potential array of actors who may exercise global political authority. Finally, the term separation does not capture the relationship between religion and political authority as a matter of practice, nor should it. Separation suggests isolation rather than dialogue and mutual understanding. The phrase

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coexistence of religion and political authority better describes what is at stake.8 The problem of reconciling religious and state sovereignty, which contributed to the development of the modern state, remains a pressing one. Challenges to state sovereignty are not limited to religious authorities but also include transnational and subnational forces with the growth of the city-state (Ford 2001). The diffusion of political authority from the state to transnational and local actors does not address the problem of reconciling temporal and religious authority. Local, transnational, and global forms of governance are replacing or supplementing state sovereignty. Rather than presume that a fictitious separation of church and state model should be diffused accordingly, we should view this moment for what it is: an opportunity to reexamine the coexistence of religious and political authority. What space is going to be made for religious organizations and religious beliefs in the changing public spheres? Scope of Freedom of Religion In addition to the link to secularism, the religious nature of the human rights vocabulary may serve to limit freedom of religion. As indicated earlier, religious metaphors abound in human rights discourse. Equality rights, for example, have been described as “perhaps the central altar in the modern cathedral of international human rights” (Cohen 1986, 67). If transnational or global religions are competing with international human rights as a secular civil religion, which is given the force of law, just what does freedom of religion mean? At least one expert on freedom of religion has argued that the time is not ripe for an international convention protecting religious freedom (such as exists for race and women’s rights) because of the international community’s reluctance to accept that “in the religious beliefs of others the dogmas of human rights are met with an equally powerful force which must be respected, not overcome” (Evans 1997, 261). Even if international human rights law at present does not interpret or define freedom of religion in a way that marginalizes it, the metaphorical religious language being used by human rights advocates may be translated into legal arguments either explicitly or implicitly having that effect or seeking that end. Assertions of human rights as religion—or even as serving a religious function—may limit debate about the unsettled content and meaning of specific rights and freedoms. The European Parliament, for example, has expressed an exclusionary view of religious tolerance in adopting the Report on Women and Fundamentalism

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(2002). The aim of the Report appears to be to relegate the influence of religions to the private sphere and to subject them to state control, using phrases like the “normalisation of religious pluralism[,]” “exercising the right of religious freedom in a satisfactory way[,]” and the “normal development” of religious organizations.9 Its token references to religious freedom are belied by the general tenor of the Report, which contemplates religious freedom only in so far as “religious precepts are compatible with national legislation, the rule of law, and international conventions.”10 A similar theme is apparent in the writing of Ignatieff, who suggests that rights “are worth having only if they can be enforced against institutions like the family, the state and the church” (2001, 66–67). Among other things, this approach gives short shrift to ARTICLE 16.3 of the Universal Declaration of Human Rights, which states that the “family is the natural and fundamental group unit of society and is entitled to protection by society and the State.” Despite his contention that human rights are not a secular religion but a language for deliberation, Ignatieff fails to recognize mediating institutions like religion and the family between the individual and the state. As Orentlicher points out, Ignatieff ’s belief that the “fundamental moral commitment entailed by rights is . . . to deliberation” is perplexing in light of his dismissal of reasoned deliberation of claims that ground human rights in religious or ultimate terms (2001, 155). To similar effect An-Na`im argues that “every state has the responsibility to remove any inconsistency between international human rights law binding on it, on the one hand, and religious and customary laws operating within the territory of that state, on the other” (1994, 167). In failing to engage religious freedom in their analyses, Ignatieff and An-Na`im implicitly limit its scope. An uncritical acceptance of human rights and the global ethic as a global civil religion may have the effect of marginalizing religion and limiting the protection of freedom of religion. Looking beyond the possible implications for freedom of religion, the next section of this chapter deals with the adequacy of human rights and the global ethic as a civil religion and their ability to provide the legitimacy that the global governance project requires. Legitimizing Global Governance As suggested earlier, the question of whether human rights can be described as a civil religion in the context of global governance— whether human rights are the glue for global governance—relates to the

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diminishing sovereignty of the nation-state and the desire for a sense of global citizenship and common purpose. Doubt has been expressed as to whether transnational forms of governance can inspire the identification and allegiance necessary to legitimize democratic authority (Sandel 1996, 339). As Sandel notes, self-government requires a sense of community and civic engagement. The global governance project does not expressly contemplate one world government but the Commission suggests that “globally, the democratic principle must be ascendant” (1995, 337). Human rights are posited as the glue for a diffuse political authority lacking transparency and accountability. Can human rights as civil religion provide the necessary legitimacy? The problems are twofold. First, human rights and the global ethic are inadequate as a civil religion because they offer an inadequate meaning system and moral vocabulary. Second, even if adequate as a civil religion, they would not legitimize global governance. The Commission’s global governance project has inherent limitations, not least of which are the indeterminacy of the political authorities seeking legitimacy and the amorphous way law is made. It is difficult to know whom to hold accountable for what. Inadequacy as a Civil Religion Two of the key components of Rousseau’s civil religion were its ability, first, to provide a sense of meaning beyond the state and, second, to operate as a moral code by describing the sentiments of sociability required of good citizens. The concept of human rights is unsatisfactory in both respects. Even some of human rights’ most vocal advocates have acknowledged that the human rights idea is not a comprehensive ideology and that it does not adequately address the tensions between rights and responsibilities, between the individual and the community, and between the material and the spirit (Henkin 1990, 187). Those tensions are intrinsically related to the understanding of human nature underlying human rights and the global ethic. The inability of human rights to address them arguably makes human rights an inadequate meaning system absent some other moral guidance. In the global governance project, the focus is on the cosmopolitan vision of the global neighborhood seemingly to the exclusion of local neighborhoods. Human rights discourse does not yet take into account the importance to the human person of interpersonal encounter and relationship. It can only do so with a deeper understanding of the nature of the human person and the moral foundations of rights.

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In the quest for a universal moral vocabulary or global ethic, the use of what is ultimately a legal human rights vocabulary is leading to an increased legalization of morality, of suffering, and of interpersonal relationships. The Holocaust is no longer an unspeakable evil but a massive human rights violation. There is a danger that human rights as civil religion will require that public discourse about the morality of particular conduct only be framed in terms of human rights violations. The mere fact that something is a human right does not determine whether or not the exercise of that right makes one a good citizen. Freedom of expression may permit me to make and sell pornographic and violent films, but that does not mean that it is the morally right thing to do. And whether or not pornography affects the equality rights of women does not exhaust the possible answers to the question of its morality. Inability to Legitimize Global Governance Even if human rights and the global ethic provided the meaning system and moral code contemplated by Rousseau’s civil religion, they would still fail to legitimize the Commission’s project of global governance because of the lack of transparency in decision making and the lack of accountability of decision makers. Rather than uniting the polity, human rights may be quite divisive in their application. Consider the effect of the U.S. Supreme Court’s decision in Roe v. Wade11 recognizing abortion rights as an aspect of privacy. It has been suggested that by helping to create a consensus as to the legal procedures and institutions necessary for the protection and promotion of human rights, lawyers also help solidify a consensus as to the associated moral values and social justice (Hurrell 1999, 277). The consensus decision-making approach to international human rights may magnify concerns as to legitimacy, transparency, and exclusion. It makes it that much more difficult for people to know whom to hold accountable for policy decisions affecting their lives. The counter-majoritarian criticism of judicial politics and human rights interpretation as undermining democracy is arguably exacerbated when norm creation and lawmaking occur by an amorphous transnational legal process that includes global policy networks. International human rights law is made by a variety of actors, including IOs such as the General Assembly that operate by consensus. In a democratic political system, votes are recorded and constituents can determine what position their representatives support. The expectation of voting by all representatives makes the result a more reliable indicator of the will of the political

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body than is the case in consensus decision making, where the chair has considerable power to determine when consensus has been reached. Arguably the common practice of consensus decision making in IOs is an antidemocratic trend. The Commission talks a great deal about leadership, acknowledging that “the somewhat disorderly nature of the system of international organizations and agencies” constitutes an obstacle to leadership at the international level (355). But the Commission says very little about accountability. Democracy without accountability is a sham. The Commission has suggested that “globally, the democratic principle must be ascendant” and that it is time “to think about self-determination in the emerging context of a global neighbourhood rather than the traditional context of a world of separate states” (337). The extent to which the General Assembly and the nascent Forum of Civil Society are to fill this role is not entirely clear. Transparency and accountability are presently lacking at the United Nations and at other IOs and agencies. It is highly unlikely that a legitimate form of global governance will be possible in their absence. Conclusion While presumably well intentioned, efforts to legitimize the project of global governance through human rights and the global ethic will not miraculously cure the inherent deficiencies in that project, namely its lack of transparency and accountability. As ever, global politics are in a state of flux. The project of global governance continues to evolve—in the meaning of the term itself and what it hopes to achieve. Norm-creation and law-making processes encompass global networks as well as more formal domestic and international structures. A greater variety of global actors are gaining recognition and liability with the changing status of individuals, NGOs, IOs, states, and TNCs in international law. New institutions are being created. Before a global ethic or global values are written in stone, we need a better explanation of their moral foundation: Why are they universal? Rather than being an occasion for recycling a human rights discourse that has shown its limitations, perhaps this is an opportunity for creativity and openness to other vocabularies. With respect to human rights discourse, recourse to values language has neither filled the gap left by avoiding the question of the moral foundation of human rights nor provided an adequate moral vocabulary. International human rights “law” is a field of legal inquiry, but at the same time international human rights is an area of moral and political

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philosophy. The time is ripe for a reinvigorated legal, moral, and political discourse that seeks to engage religious thought. The footsteps of Martin Luther King, Jr. provide an example of how to view law, politics, religion, and morality as interwoven (Holmes and Winfield 2002). Consider, for example, King’s use of universal moral principles to give meaning to rights enunciated in the U.S. Constitution and statements in the Declaration of Independence such as “all men are created equal.” The Declaration was made in 1776, but slavery continued until 1865. Words in a human rights document or constitution alone are not enough. In the U.S. civil rights movement, it was in part King’s call for justice and action consistent with the moral principles underlying those words that led to change. As an aspect of freedom of religion and as a matter of human rights discourse, religion has a key role to play in the debate about the universality of human rights. As Orentlicher put it, “universal acceptance of the human rights idea depends upon its legitimation within diverse religious traditions, and not just alongside them” (2001, 155; Witte, Jr. 1996, 2–3; Falk 2001, 8; An-Na’im 1990, 15). The variety of cultural, religious, and ethical perspectives among human beings should be engaged rather than simply dismissed as relativist resistance to universal claims (Waldron 1999, 313–314). As a prime source of identity, the significance of religion in a world in search of collective identity should not be underestimated (Rudolph and Piscatori 1997, 5; Mische and Merkling 2001). Any form of global governance that seeks to facilitate human flourishing (by which is meant here more than peace and wealth creation) and provide a sense of meaning beyond the state must think of the human person as more than matter, more than a cog in the managerial bureaucracy, more than a unit of production, a collection of atoms or genes. It requires at a minimum openness to—if not acceptance and affirmation of—the transcendental. Human rights alone cannot meet this challenge. The idea of human rights in itself does not take into account the capacity to love and be loved, an essential part of human nature. A sense of the importance not only of not harming each other, but of loving each other in the agape sense of love, is necessary for human flourishing. The admonition to love one’s neighbor and to do good to him is more compelling than an appeal to civic duty. A global ethic may reach minds, but it is unlikely to reach hearts. Human rights, or any ideology that purports to provide the moral foundation for social and political life on this planet, will need to allow for freedom and love. Then, perhaps, it may come to pass that in “building a true culture of freedom . . . we shall

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see that the tears of [the 20th] century have prepared the ground for a new springtime of the human spirit.”12 Notes 1. 28 U.S.C. §1350. 2. For example, Kadic v. Karadzic, U.S. Court of Appeals, Second Circuit, 70 F.3d 232 (1995), cert. denied, 518 U.S. 1005 (1996). 3. With respect to this conceptual shift, three points are worth noting: (1) the term citizen is used ambiguously to denote either national or transnational obligations; (2) because all people are rights bearers in a way that governments are not, the definition of rights may depend on this important contextual factor; and (3) the shift is not so new but is sorely underanalyzed. 4. Lecture attended by author November 11, 2002 at Columbia Law School. For a criticism of Henkin’s views see Makau Wa Mutua, “The Ideology of Human Rights” 36 Va. J. Int’l L. 589 (1996): 627, 629. 5. The ten principles of the Global Compact (addressing human rights, labor, the environment and corruption) are available at http://www.unglobalcompact. org/Portal/. 6. The Oxford English Dictionary, 2nd ed., Vol. XIV, 1989 at 848. Oxford: Clarendon Press. 7. Ibid. at 849. 8. This is different from Falk’s notion of a reconstructed secularism involving a collaboration between religion and politics (Falk 2001, 57–67). 9. Explanatory Note 3.1. 10. ARTICLE 29. See also Explanatory Notes 2.5 and 3.3. 11. 410 U.S. 113 (1973). 12. Pope John Paul II, Address to the Fiftieth Session of the General Assembly of the United Nations, October 5, 1995.

References An-Na’im, Abdullahi Ahmed. 1990. Human Rights in the Muslim World. Harvard Human Rights J. 3: 13–52. ———. 1994. State Responsibility under International Human Rights Law to Change Religious and Customary Laws. In Human Rights of Women, edited by R. Cook, 167–188. Philadelphia: University of Pennsylvania Press. Annan, Kofi A. 2000. We the Peoples: The Role of the United Nations in the 21st Century. New York: U.N., Department of Public Information. Bellah, Robert. 1970. Civil Religion in America. In Beyond Belief: Essays on Religion in a Post-Traditional World, edited by R. Bellah, 168–189. New York: Harper & Row. Berman, H. J. 1974. The Interaction of Law and Religion. New York: Abingdon. Bosniak, Linda. 2000. Citizenship Denationalized. Indiana Journal Global Legal Studies 7: 447–509.

240 / julie owen Carozza, Paolo. 2003. Subsidiarity as a Structural Principle of International Human Rights Law. American Journal of International Law 97: 38–79. Cohen, Maxwell. 1986. Towards a Paradigm of Theory and Practice: The Canadian Charter of Rights and Freedoms—International Law Influences and Interactions. In Can. H.R. Yearbook 47–73. Vancouver: Carswell. Commission on Global Governance. 1995. Our Global Neighbourhood. New York: Oxford University Press. Durham, Jr., and W. Cole. 1996. Perspectives on Religious Liberty: A Comparative framework. In Religious Human Rights in Global Perspective: Legal Perspectives, edited by J. van der Vyver and J. Witte, Jr., 1–44. Boston: Martinus Nijhoff. Economic, Social and Cultural Rights: Report of the Sessional Working Group on the Working Methods and Activities of Transnational Corporations on Its Fourth Session, E/CN.4/Sub.2/2002/13 (August 15, 2002). European Parliament. Committee on Women’s Rights and Equal Opportunities. 2002. Report on Women and Fundamentalism. Evans, Malcolm. 1997. Religious Liberty and International Law in Europe. Cambridge: Cambridge University Press. Ewing, A. C. 1947. The Individual, the State, and World Government. New York: Macmillan. Falk, Richard. 2001. Religion and Humane Global Governance. New York: Palgrave. Ford, Richard. 2001. City-States and Citizenship. In Citizenship Today: Global Perspectives and Practices, edited by T. A. Aleinikoff and D. Klusmeyer, 209–236. Washington, DC: Carnegie Endowment for International Peace. Glendon, Mary Ann. 2001. A World Made New. New York: Random House. Habermas, Jürgen. 2001. The Postnational Constellation. Cambridge: Polity Press. Held, David. 1995. Democracy and the Global Order. Cambridge: Polity Press. Henkin, Louis. 1990. The Age of Rights. New York: Columbia University Press. Holmes, Barbara A., and Susan H. Winfield. 2002. King, the Constitution and the Courts: Remaining Awake through a Great Revolution. In The Legacy of Martin Luther King, Jr. with L. Baldwin and R. Burrow, Jr., 173–211. Notre Dame, IN: University of Notre Dame Press. Hurrell, Andrew. 1999. Power, Principles and Prudence: Protecting Human Rights in a Deeply Divided World. In Human Rights in Global Politics, edited by T. Dunne and N. Wheeler, 277–302. Cambridge: Cambridge University Press. Ignatieff, Michael. 2001. Human Rights as Politics and Idolatry. Princeton: Princeton University Press. Kennedy, David. 2002. The International Human Rights Movement: Part of the Problem? Harvard Human Rights Journal 15: 101–125. Kingsbury, Benedict. 2002. First Amendment Liberalism as Global Legal Architecture. Chicago J. Int’l L. 3: 183–195. Koh, Harold. 1996. Transnational Legal Process. Nebraska Law Review 75: 181–207. Küng, Hans, ed. 1996. Yes to a Global Ethic. New York: Continuum. Lerner, Natan. 2000. Religion, Beliefs, and International Human Rights. Maryknoll, NY: Orbis Books.

human rights as civil religion / 241 McCrudden, Christopher. 2000. A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights. Oxford Journal of Legal Studies 20 (4): 499–532. Mendieta, Eduardo. 2001. Society’s Religion: The Rise of Social Theory, Globalization, and the Invention of Religion. In Religions/globalizations, edited by D. Hopkins, L. A. Lorentzen, E. Mendieta, and D. Batstone, 46–65. London: Duke University Press. Mische, Patricia, and Melissa, Merkling, eds. 2001. Toward a Global Civilization? The Contribution of Religions. New York: Peter Lang. Orentlicher, Diane F. 2001. Relativism and Religion. In Human Rights as Politics and Idolatry, edited by Amy Gutmann, 141–158. Princeton: Princeton University Press. Ottaway, Marina. 2001. Reluctant Missionaries. Foreign Policy 44–54. Perry, Michael. 1998. The Idea of Human Rights. New York: Oxford University Press. Rousseau, Jean-Jacques. 1953 [1762]. Rousseau: Political Writings, translated and edited by F. Watkins. London: Nelson. Rudolph, Susanne H., and James, Piscatori, eds. 1997. Transnational Religion and Fading States. Boulder, CO: Westview Press. Sacerdoti, Giorgio. 2002. The European Charter of Fundamental Rights: From a Nation-State Europe to a Citizens’ Europe. Columbia Journal of European Law 8: 37–52. Sandel, Michael J. 1996. Democracy’s Discontent. Cambridge, MA: Belknap Press. van der Vyver, Johan. 1996. Legal Dimensions of Religious Human Rights: Constitutional Texts. In Religious Human Rights in Global Perspective edited by van der Vyver and Witte, Jr., xi–xlvii. Waldron, Jeremy. 1999. How to Argue for a Universal Claim. Columbia Human Rights Law Review 30: 305–314. Witte, Jr., John. 1996. Law, Religion, and Human Rights. Columbia Human Rights Law Review 28: 1–31.

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C h ap t e r 11 Transnational Private Litigation and Transnational Governance Robert Wai

Transnational law perspectives share with global governance concepts a background vision of functionalism across borders, in which a wide range of public and private norms, and state and non-state actors, from a multiplicity of jurisdictions, combine to achieve internationalist dreams of worldwide cooperation in obtaining basic international security and in advancing shared interests such as environmental protection, trade regulation, and human rights protection. A closer examination of the private law component of transnational law reveals the limits of this shared functionalist vision. Private laws—such as those of contract and property—risk being considered essential but unproblematic background institutions to the operation of the global economy, but private law can also be understood as necessarily about conflict and contestation. In particular, the litigation of private law claims, especially in the Anglo-American tradition of adversarial legalism, fits only uncomfortably within a cooperative vision of governance. This chapter examines transnational private litigation as part of, but mostly as a critique of, global governance. Although not yet realized, adversarial legalism with transnational reach potentially is a vehicle for contestation of the particular policies advanced in the name of global governance. For example, in a contemporary global order where cross-border regulation of business actors and activities is often ineffective, litigation can perform a critical role in disrupting the excessively “smooth” functioning of the world economy. Damage awards and other forms of procedural pressure such as reputational threats may provide some countervailing regulation of transnational business harms such as environmental torts. Transnational private litigation could challenge closed systems of global governance,

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whether interstate, transgovernmental, or private systems such as business networks. Transnational litigation is a reminder that global governance processes, including legal processes, involve contested regulatory and distributive consequences. In this light, national private laws, as key locations of state and non-state linkage in the global era, should be understood and constructed not merely as facilitative venues for economic transactions, but as important sites for contestation of both the particular outcomes and the normative frames of global social processes. Introduction Studies of the legalization of international relations tend to focus on public international law and international human rights law (e.g., Goldstein et al. 2001; Byers 2000). In contrast, transnational private litigation involving private suits by private actors under private laws has generated less interest. To many internationalists, national private laws, if relevant at all, are tools for facilitation of international commerce and transactions. This narrow view is strengthened by reforms in many jurisdictions to private international law (including the rules related to jurisdiction of courts, choice of applicable law, and enforcement of judgments in private legal disputes that have connections to more than one law jurisdiction) that have increased party autonomy over forum selection and governing law, promoted the use of arbitration for dispute resolution, and aided enforcement of contracts and property rights across borders. This chapter explores how, with greater awareness by legal and nonlegal actors of the progressive potential in private law, transnational litigation of private law claims in national courts could constitute part of a plural regime for the governance of transnational economic activity, one that draws on international governmental treaties and institutions, state public laws, transnational nongovernmental actors, and local private actors (Trubek et al. 2000). From an international relations perspective, transnational private litigation may be best understood in relation to studies of transnational relations, where the focus is on cross-border relations among actors that include non-state as well as state actors.1 Lawyers, arbitrators, and judges involved in cross-border litigation have been studied as transnational governmental networks (Slaughter 1997). Legal strategies to address environmental goals and human rights exemplify the spread of transnational advocacy networks (Keck and Sikkink 1998; Risse et al. 1999). Laws related to international transactions, such as shipping laws (Cutler 1999), and international commercial arbitration as a means of private dispute resolution (Dezalay and Garth 1996; Mattli 2001), are increasingly

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studied by interdisciplinary scholars as key to the construction of transnational economic relations. In building on these earlier studies, this chapter more specifically explores whether transnational private litigation could play a “critical” role in global governance in disturbing existing practices and promoting concerns that are unlikely to be achieved by regular politics in the international order. The thesis explored is that a number of key transnational goals, including concerns about social regulation, restitution, and redistribution, are unlikely to occur through the normal course of international politics. In a world system vulnerable to democratic, regulatory, and legitimacy deficits, transnational litigation, for all its obvious drawbacks, may constitute part of a plausible second-best strategy. The critical functions of transnational litigation for global governance might be several. Sometimes transnational litigation will achieve substantive ends such as damage awards that provide compensation, restitution, or redistribution to victims of harmful transnational conduct. Transnational litigation may thereby also achieve cross-border regulatory concerns not adequately addressed by existing international institutions or ongoing interstate cooperation. Besides compensatory awards, litigation can contribute to transnational processes that assist in realizing such goals; for example, in producing information about and generating shaming pressure on private actors, or through constituting, sustaining, and energizing transnational networks. Of broader interest is whether transnational litigation can perform a critical ideational function, by challenging dominant normative frameworks of world politics. In this ideational function, litigation may be a means to contest dominant but problematically insular values inside existing normative systems, such as in networks of international business actors or within the operations of multinational enterprises (Teubner 1997a). Litigation, through processes such as discovery, trial, and judgment, may provide information and policy opinions to interested parties, and beyond to transnational networks and broader publics.2 Transnational litigation may produce both spectacular episodes and regularized practice in domestic societies that, especially with contemporary global communications,3 may help to challenge and to partly reconstruct the ideational and perhaps the emotive-sentimental foundations of global governance (Rorty 1993). Transnational Litigation: Anticipations Litigation is not an obvious venue for meaningful democratic governance or social change. With the spread of constitutionalism, however, awareness

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of how significant social change can be advanced through courts has increased. In particular, the role of human rights litigation suggests that litigation can be a technique for countering or advancing problematic or stalemated majoritarian politics. Although private law litigation may be still further removed from governance concerns than constitutional litigation, recent examples suggest that transnational private litigation could become a significant part of a pluralistic system of global governance (Scott 2001). For example, tort actions have been commenced against business actors for conduct in foreign jurisdictions. Often, claims are made against a company in the home jurisdiction of the company or its parent. Most famously, the Bhopal litigation saw Indian plaintiffs sue Union Carbide in the courts of New York for injuries suffered in the explosion at a Union Carbide subsidiary’s chemical plant in India.4 Although the New York court refused to assume jurisdiction for reasons of forum non conveniens,5 the court did impose a number of conditions on its stay, including that Union Carbide submit to the jurisdiction of the Indian courts and consent to the broad discovery procedures available under U.S. rules of civil procedure. All of this provided a basis for negotiations overseen by the Indian Supreme Court that resulted in a $500 million settlement, relatively large by previous Indian standards, although small by potential U.S. civil jury standards.6 Similar actions have been brought against various multinational corporations in their home jurisdictions for alleged harm arising from their foreign business conduct. In the United States, a number of suits have used the U.S. Alien Tort Claims Act as a basis for their claims (Stephens 2000). ATCA permits domestic private law suits by private parties in U.S. courts against defendants for violations of the “law of nations.” Claims, for example, are being pursued against Unocal and other oil companies for their activities in the Yadana oil project and oil pipeline in Burma, in particular for alleged complicity in forced labor, displacement, and torture by the Myanmar government.7 Similar claims are working their way through the U.S. courts against Texaco Oil for alleged environmental and health harm resulting from its activities in Ecuador.8 More recently, claims have been made in U.S. courts for compensation against foreign corporations for alleged forced labor during wartime. These suits, which again were based on ATCA, were brought by various U.S. plaintiffs against various German and other corporations, such as Ford Motor Co.9 Although much of this litigation seemed unlikely to succeed, it combined with broader political and reputational concerns to lead to the German Foundation “Remembrance, Responsibility and the

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Future,” a compensation fund reached through a complex transnational process involving plaintiffs, private industry, and various governments.10 This form of litigation need not rely only on legislation such as the ATCA. Private law suits can proceed in most jurisdictions for harms abroad.11 The main barriers are the preliminary procedural concerns of domestic courts under domestic rules of private international law, such as to whether they are the right venue for the suit (jurisdiction) and as to what law should be applied even if a court accepts jurisdiction (choice of law). For example, an NGO was formed in Québec to bring suit against the Quebéc-based mining company, Cambior Inc., on behalf of Guyanese plaintiffs for injuries allegedly suffered as a result of a massive cyanide accident at a Guyanese gold mine operated by a Cambior subsidiary. Although Québec civil law provided a substantive basis for such claims, the Québec court declined to hear the suit on its merits because it considered Guyanese courts to be a more appropriate forum for the case.12 Other recent jurisdictional decisions, however, suggest that transnational litigation suits may become more common outside of the United States.13 The Substantive Concerns of Transnational Litigation The application of private law through national courts are important parts of the institutions of democratic governance in many societies. Some substantive concerns that are not currently dealt with well in international society may be better addressed by private law claims in national courts, in a transnational context. Transnational litigation may offer at least two distinctive advantages: (1) Litigation is a better way of directly accessing and making claims against certain actors. In particular, litigation can be a means of making claims against other private actors, such as multinational corporations. While human rights claims or appeals to public regulators to regulate corporate actors in their foreign conduct are also possible, practical impediments are often severe. In both design and practice, state accountability for regulating private actors can be limited (Ratner 2001). Moreover, civil damage awards, including awards of punitive damages, are potentially far larger than the maximum or realistic levels of fines imposed by state officials. (2) Litigation can also be a more effective tool for making certain kinds of claims. For example, domestic litigation addresses compensation for mass accidents through tort litigation, restitution for

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unjust enrichment, contractual remedies related to misrepresentation and breach of contract, and breaches of trust and fiduciary duties. Private law claims may be an effective tool for individual or small group claimants seeking compensation for harm that is either restorative or corrective. Many of these claims are distributive claims. That these claims are based on justice, and not solely on positive sum cooperative gains, is widely understood to be in the nature of private law (e.g., Weinrib 1992). Tort law, but also contract law, has a variety of purposes, including corrective justice and paternalistic–protective functions that involve decisions concerning distribution among individuals (Kennedy 1982). In the domestic context, private law claims can sometimes provide a more accessible and effective point of access for disadvantaged groups or individuals than either legislative or administrative processes. This may be even more so in transnational contexts, where public international regimes to hear such claims are incomplete or otherwise unreceptive to claims involving distributive justice rather than cooperative gains. In addition to compensation of particular plaintiffs, transnational litigation may serve a broader regulatory function with respect to transnational economic actors. As is well understood in the domestic context, compensation to particular injured individuals also contributes to social deterrence (Calabresi 1970). Such deterrence is particularly useful when decentralized international regulatory systems face problems such as regulatory gaps, free-rider problems, and regulatory competition (Bratton et al. 1996). International regulatory gaps are increased by the weakening of traditional sovereign public regulation in the face of transnational economic activity, and the difficulty of responding collectively because of impeded international treaty processes. In response, national courts and national private laws (and the private international law linking them) may be able to leverage their role as a necessary “touchdown” point for international economic transactions (as the supporting venue for contract enforcement, property protection, and dispute resolution) into a transnational regulatory role (Wai 2002). The Procedural Benefits of Transnational Litigation In addition to substantive objectives, transnational litigation may contribute to beneficial transnational legal processes. First, some well-established if controversial practices can assist disadvantaged parties in litigation. For example, contingency fee arrangements, pro-bono public interest representation, jury trials, and punitive

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damage awards are all features of U.S. courts that could also benefit foreign litigants without significant resources to otherwise make political or legal claims.14 Such assistance, even when it might involve profits for the undeserving such as lawyers, enables some claims in national courts that might otherwise be unavailable because it is impractical. Second, the litigation process may generate advantages beneficial to particular plaintiffs, regardless of whether they succeed in a final judgment. Litigation can lead to discovery of important information as a result of mandated discovery of documents or examination of witnesses. Information so disclosed might otherwise have been shielded from outsider scrutiny and might be useful for other purposes. Information released in the course of litigation can also be helpful to nonparties; in this sense, it can contribute to “corporate social transparency” (Williams 1999). In addition, media coverage that sometimes accompanies trials can lead to further publicity concerning defendant practices,15 and be a method of seeking settlement. Beyond the particular dispute, litigation campaigns can provide a basis for building or strengthening transnational networks. One form of transnational network that clearly grows as a result of transnational litigation is the direct contact among relevant governmental actors, including judges (Slaughter 1997, 186–189). In addition, litigation can lead to contacts and alliances among public interest lawyers, academics, and activists from different jurisdictions. Most important, networks of NGO groups can be developed through legal campaigns that may lead to further cooperation, legal or otherwise (Keck and Sikkink 1998). In this latter respect, transnational litigation reinforces other transnational ties that challenge the idea of world politics as principally about state-tostate relations (Risse-Kappen 1995). Critical Ideational Functions Beyond benefits to particular plaintiffs, we can imagine transnational private litigation making distinctive contributions to the processes of transnational governance. In this respect, we can understand transnational private litigation as occupying a particular space in the processes of transnational politics less directed to particular substantive outcomes and more as an ideational function directed to disturbing dominant logics in other governance processes. Transnational litigation, for example, might be viewed as one way of countering the normative liftoff of international business transactions.

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Scholars such as Gunther Teubner have described how the conduct of international business transactions can increasingly take on the character of autonomous normative orders, in which norm generation, regulation, and dispute resolution are resolved without recourse to traditional state systems (Teubner 1997a). International business actors, whether organized into a multinational enterprise that internalizes conflicts within an overarching corporate entity, or legally independent actors that nonetheless work together in a network of repeat dealing, common values, and institutions associated with a common trade, can take on the character of an autopoietic social system (Teubner 1997b). Litigation may be one process to maintain the presence of broader social norms in the lives and practices of such business actors. Litigation could be used by individuals, but also by countervailing networks of social activists such as labor or human rights actors (Teubner 1997a). So long as private business actors need to rely on state systems for at least some functions, litigation can help to ensure that such systems remain, at least at the levels of norms, rooted in some other forms of social system. Transnational litigation might also be able to introduce other policy values (sometimes through new policy actors) into political negotiations or decision making in other venues, domestic or international. It may be that, in this way, other forms of social relations, such as negotiations, operate “in the shadow” of private litigation (Mnookin and Kornhauser 1979). This may have occurred, for example, in the context of the Third Reich forced labor cases, which essentially reopened interstate diplomatic settlements made in the immediate post–World War II political context.16 In this respect, again, transnational litigation may be a venue for the operation of countervailing networks of transnational civil society groups and social movements (Teubner 1997a). Litigation can also serve as a local and relatively accessible venue for initiating, concentrating, focusing, and expressing normative outrage. Finally, transnational litigation might be able to draw attention to and normalize broader concern for transnational practices in domestic societies that are otherwise insulated from global concerns and foreign interests. Repeated examples of transnational litigation might have broader effects in thinking among business actors, governmental officials, legal actors, and the broader public about their responsibility for transnational social goals such as regulation or restitution. A first step in such a link into broader political process for transnational litigation depends on it making use of some distinctive features of domestic adjudication as a political decision-making process.

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The Uses of Domestic Adjudication in Global Governance Obviously law is politics and legalism is an ideology (Shklar 1964). The issue becomes why the particular form of politics that is transnational litigation might be able to achieve transnational goals, at least initially, in a way that other political techniques cannot? Court-based adjudication has some familiar characteristics that mark it as a distinct arena for political change: the focus on individual, discrete claims; the relative distance of the adjudicator from majoritarian politics; the normative character of law as a communicative realm of argumentation and justification. These features may be useful where other forms of politics to achieve goals like regulatory control of powerful actors or redistribution are closed. Such features justify the independence of a judicial process in the separation of political powers and the use of courts as a central institution in the constitutional rights of individuals and minorities. Do the distinctive politics of adjudication also translate into the possibility that adjudication of transnational disputes by national courts might follow a different logic than the dominant logics of world politics as well? To use the terminology of Duncan Kennedy (1997), a turn to national court adjudication may have moderation effects, empowerment effects, and legitimation effects, with respect to transnational governance concerns such as social regulation, restitution, or redistribution. These might not always be beneficial, but at least one would expect that the political results will be different. Why this might be so may be understood through the position of the judge. For example, judges may have certain backgrounds, sentiments, or ideologies that are more liberal and internationalist than the general population.17 Judges may also be more sympathetic to foreign claims than the regular population because of the nature of the adjudicative function. The typical national judge is relatively insulated from immediate political pressures, such as reelections. Moreover, and perhaps most importantly, judges are required to engage and listen carefully to the arguments and the evidence presented by both sides. This puts them in an unusual position in hearing a transnational litigation claim. In contrast, the vast majority of domestic decisionmakers and the general population do not encounter injustices abroad, because of geographical and other forms of distance. Even with the expanded global capacities of modern communications, the control of media by a limited number of actors and the flattening simulacrum of media such as television tend to reestablish distance that technologically are smaller. Faced with detailed evidence of particular claims made by particular people, a domestic judge or a local jury may be more sympathetic

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than when the injustices or problems are too vast and not as salient. Moving out further, processes of law and ideologies of legalism might cause other actors, such as counsel, bureaucrats, and business people, to take foreign issues and concerns more seriously, perhaps effecting change in domestic sentiments (Rorty 1993). Limits and Challenges Clearly, litigation as a strategy of global governance has its limits. As compared to other forms of policy making, litigation can be slow, costly, inefficient, and inaccessible to the public. Moreover, litigation is closely associated with U.S. power and practices, and with the problematic values of private law. The Imperialism of U.S. Adversarial Legalism? Robert Kagan and Robert Kagan Most obviously, if international or domestic systems are completely dominated by power considerations, there is little room for strategies based on law. Law will simply reflect and be directed toward legitimating dominant power, and the rule of law will simply be procedures for the enforcement of the dominant order. Transnational litigation has a critical governance potential mainly in an intermediate zone of power configurations. Legal processes can function as norm contestation in domestic and international political “opportunity structures” (Khagram et al. 2002, 17–20). A domain that is not completely closed to dispute, but where the majority or controlling elite is likely to be cool or indifferent, is a classic terrain for legalistic strategy. In this respect, many states in the current international system have liberal institutional structures that include a commitment to the use of courts and law as a location to resolve real conflicts and to address distributive, restorative, and public interest claims (Slaughter 1995). An emphasis on litigation as governance may be suspect in the current world context where litigation as a form of domestic politics is so closely identified with the United States, current world hegemon. Robert Kagan, conservative foreign policy analyst of the rise of U.S. power and its consequences for multilateral cooperation and institutions (Kagan 2002), meets Robert Kagan, socio-legal scholar of “adversarial legalism” as the distinctively U.S. “way of law” (Kagan 2001). The latter has emphasized how U.S. policy-making and dispute-resolution is dominated by adversarial privately driven litigation, by “lawyers, legal rights,

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judges, and lawsuits” (Kagan 2001, 16). Acceptance of the values of transnational litigation risks increasing the use of U.S. norms, ideologies, and practices that are arguably not the most effective form of governance. Nonetheless, transnational litigation might still be attractive to those interested in critical approaches to global governance. It seems foolish to deny the relevance of U.S. modes of regulation given that U.S. governmental and private power are so important to the contemporary world system. With so many challenges for global governance projected from the United States, it is useful for those abroad to attend to the tools of regulation and governance that operate in the U.S. context. Activists have grasped this as a matter of strategy, for example, in the use of branding techniques that rely on the power of the market to resist the power of the market (Klein 2000). Second, partly as a result of U.S. policies under the current Bush administration, the hope for international institutions have dimmed. To use David Kennedy’s term (Kennedy 1994), the “metropolitan” vision of something like a European Union (EU) for the world, involving strong social welfare programs and public regulation, seems unattainable. This turn against old-style regulation at the supranational level is further weakened by domestic critiques of the social welfare state. Third, the international system now resembles the U.S. domestic order, one marked by an agglomeration of private and public entities, with overlapping domains and practices. Most of all, the international system is plagued by the near impossibility among sovereign states of achieving the underlying consensus required for more collective forms of regulation and distribution.18 In this situation, much is devolved to various sovereign or private entities to regulate, including via contests in the domain of private law. Kagan (2001, 9) notes that adversarial legalism is typically “associated with and is embedded in decisionmaking institutions in which authority is fragmented and in which heirarchical control is relatively weak.” In an international society marked by similar political features, transnational private litigation of conflicts might be a necessary tool, one that should be more fully explored in non-U.S. jurisdictions (Dodge 1998). It may be that the availability of transnational litigation in U.S. courts will become more constrained as U.S. courts raise procedural barriers, such as considerations of forum non conveniens or comity. Moreover, legislative reforms are being debated to restrict claims under the Alien Tort statute, and the executive branch has filed amicus curiae briefs in recent cases favoring a restrictive interpretation of the statute

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(see Koh 2004).19 However, domestic support for adversarial legalism remains strong in the United States, and the ability to narrowly segregate U.S. interests is more difficult where economic production and exchange has become globalized (Reich 1990). The Constrained Values of Private Law A second concern about transnational litigation as a vehicle for social change in the global order is that private law seems to draw on too narrow a range of possibilities or concerns. Clearly, national private laws reflect various forms of advantage and power. Many of the rules of contract or property law, for example, facilitate the rights and advantages of the economically and socially powerful in society. For example, the protections for intellectual property mandated for domestic regimes under the TRIPS Agreement in the Uruguay Round of the WTO can be understood as protection for the economic interests of the developed world, or at least for private interests that are mostly based in the developed world (Braithwaite and Drahos 2000, 39–87). More typically, national private laws also serve other purposes including paternalistic protection, distributive concerns, regulation and deterrence. Legal realist and critical legal studies approaches to private law have long emphasized how most forms of private law in liberal societies are filled with gaps, contradictions, and ambiguities, which mean that a number of different policy concerns are served and are arguable within any system of private law (e.g., Kennedy 1982). It is increasingly common for national private law systems to face disputes to which these other purposes of private law can be applied in transnational contexts. Partly, globalization of production and exchange means that it is harder to distinguish between domestic and foreign conduct, and even to disentangle domestic and foreign actors (Reich 1990). Moreover, national private laws and national courts are part of the constitutive foundations for the facilitation of international economic activity. International economic transactions are based on the existence of a set of background private laws to enforce contracts, protect property claims, and resolve disputes. This framework means that, although the use of lex mercatoria and commercial arbitration may be increasing, much international business activity still “touches down” in national legal systems (Wai 2002). In dealing with international transactions and transnational conduct, diverse policy purposes of private law could be considered: not just facilitation of commerce and economic efficiency, but also issues of social regulation, distribution, and compensation.

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The Constraints of Internationalist Policy Discourses from International Law Transnational litigation offers some distinctive advantages over the operation of public international law and institutions in global regulation and governance. Public international law and institutions are limited in their current ability to address concerns such as collective regulation, restitution, or compensation because of their origins in consensual international treaties or international custom. International law and institutions are dominated by policy discourses of sovereign consent, cooperative benefit, and mutual advantage (Wai 2001a, 225–239). International law and international institutions are least politically controversial when they can be viewed as the solution to problems of coordination under conditions of anarchy. This severely constrains the scope of problems and kinds of remedies that public international regimes address. Transnational private litigation, in contrast, traditionally concerns disputes with lower stakes, but disputes that usually involve “real conflicts” (Singer 1989) and therefore distributive consequences. As well as having different policy traditions, domestic court judges may be in a better institutional position to address distributive claims and real conflicts than judges in openly international venues, such as the WTO Dispute Settlement Body, who are constantly required to eye sovereign-state compliance and general support for the institution itself. The “institutionbuilding” concerns of most international bodies are not generally replicated in national court systems where transnational litigation claims are made. Recovering the Potential Governance Role of Transnational Private Litigation For national private laws to become a useful venue for transnational governance, national legislators and courts must adopt a policy understanding of private law in a transnational world that moves beyond the narrow internationalist conception of cooperation and facilitation that often characterizes international law. In the area of private international law, national courts and legislators have increasingly focused on policy concerns of consent, cooperation, and comity that are found in internationalist regimes such as the international trade regime.20 This focus has led to doctrinal changes that make it difficult to achieve the potential of transnational litigation for goals such as regulation. Examples include doctrines that encourage courts to decline jurisdiction over foreign matters (such as the forum non

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conveniens doctrine used in the Bhopal and Cambior cases); doctrines that courts should respect and defer to contractual choices concerning the forum for dispute resolution and the applicable governing law; and rules that promote the use of international commercial arbitration relatively free from interference of national courts. The influence of these policy frameworks in private international law is only partly the result of binding public international law treaties.21 Instead, reform flows as much from a shared internationalist policy consciousness among domestic legal actors, which rely on policy discourses of internationalism familiar from regimes such as international trade regulation (Wai 2001b). For example, reforms to restrict the broad jurisdiction of national courts over legal disputes for harm suffered in foreign jurisdictions are justified by economic policies related to facilitating international commerce, restricting state barriers to flows of goods and services, and reducing transaction costs by means of standardization and harmonization of rules of private international law and underlying substantive law (Brand 1997). Policy justifications for reform that draw from international relations emphasize the idea of harmonized national standards and practices as a tool to avoid cooperative game problems such as the prisoners dilemma (Brilmayer 1995, 169–218). These reforms also draw on ideas of international comity—due restraint in extraterritorial application of domestic processes or laws with respect to foreign conduct because of a concern to promote broader interstate cooperation. Finally, policy justifications are also drawn from a loose cosmopolitan ethics that calls for openness to foreign influences (including through goods and services), pluralism in values, and a concern for foreign interests. The spread of a partial and misguided sense of internationalism might lead national courts and legislatures to close off effective transnational litigation from achieving goals such as distribution, restitution, or social regulation. If transnational litigation is to play the role described earlier, national courts will need to recognize that the limited set of policy concerns of international law regimes such as the WTO regime may need to give way to a choice made by various domestic legal actors based on broader policy conceptions of the international order. Conclusion Transnational litigation may be a harmful distraction of political energies from more useful techniques for social change. Litigation is costly in money and time, and it often has a narrow, individualistic focus that only indirectly relates to the largest collective problems (Kagan 2001, 25–33).

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The current state of world politics, however, does not suggest an excess of strategies to advance concerns such as redistribution or restitution, and so it seems unlikely that transnational litigation strategies will displace the simultaneous pursuit of multiple strategies including international law and institutions, national public regulation, NGO activism, consumer boycotts, and voluntary codes. Transnational litigation seems to offer a vehicle in substance and process to contribute to these other strategies, and to build up a normal practice in domestic systems of attending to and protecting some global concerns. Litigation also is a useful reminder that there should be forms of governance that include serious contestation of policies and ideas, rather than simply the facilitation of frictionless transactions. Notes 1. Transnational relations are long established as the subject of legal and international relations scholarship; see e.g., Jessup (1956) and Keohane and Nye (1974). 2. In this respect, litigation may contribute to the “networks of discourses and bargaining” that are crucial to democratic opinion and will formation; see e.g., Habermas (1996, 452). 3. For example, direct action and other branding tactics. See Klein (2000), Dery (1993), and the journal Adbusters. 4. Re Union Carbide Corporation Gas Plant Disaster at Bhopal, India in December, 1984, 634 F Supp 842 (S.D.N.Y. 1986), aff ’d 809 F 2d 195 (2d Cir. 1987). 5. The Second Circuit concluded that the Indian courts would be a more appropriate forum, in spite of the submissions of the Indian government that the suit was better heard in the U.S. court. For critical commentary, see Baxi (1986). 6. The limits of the litigation from the victims’ perspective is described in Cassels (1996). 7. Doe v. Unocal, 963 F Supp 880 (C.D. Cal., 1997). 8. Sequihua v. Texaco, Inc., 847 F Supp 61 (S.D. Tex. 1994); Aguinda v. Texaco, Inc. 945 F Supp 282 (S.D.N.Y. 1996). 9. See e.g. Princz v BASF Group, et al., Civ. No. 92-0644 (D.D.C. September 18, 1995); Iwanowa v Ford Motor Co and Ford Werke AG, 67 F Supp 2d 424 (D.N.J. 1999); Burger-Fischer v Degussa AG, 65 F Supp 2d 248 (D.N.J. 1999). 10. See the description of this process in In re Nazi Era Cases Against German Defendants Litigation, 129 F Supp 2d 370 (D.N.J. 2001) and more generally, Eizenstat (2003). For critical commentary see Adler and Zumbansen (2001). 11. On the distinction between direct and surrogate claims, see Scott (2001, 62). 12. Recherches Internationales Quebec v. Cambior Inc, [1998] Q J No.2554 (Québec Superior Court, August 14, 1998).

258 / robert wai 13. Connelly v. RTZ Corp plc [1997] 4 All ER 335 and Lubbe v. Cape plc [2000] 4 All ER 268 (suit against British corporate parents of South African companies for asbestos related harm to workers). On similar developments in non-U.S. jurisdictions, see Kamminga and Zia-Zarifi (2000) and Scott (2001). 14. As Lord Denning famously observed, “[a]s a moth to the light, so a litigant is drawn to the United States”; Smith Kline & French Laboratories Ltd. v. Bloch (1983), 2 All ER 72 at 74 (C.A.). 15. This function of litigation can even operate where corporate actors are plaintiffs; see e.g., Vidal (1997). 16. Most governments and business are obviously less sensitive to this form of pressure. 17. See Kennedy (1994) and Koskenniemi (1997). Judges may share cosmopolitan education and professional cultures, as well as particular national traditions of internationalism; see Wai (2001b, 143–155). 18. One example is the decline of consensus among major states concerning the “embedded liberalism” of the Keynesian social welfare state after World War II; see Ruggie (1982) and Howse (2002). 19. The U.S. Supreme Court decision in Sosa v. Alvarez-Machain, No.03-339, June 29, 2004, recognized that the statute anticipates private cases of action for certain torts in violation of the law of nations, but urged caution in what international law norms are covered. 20. With respect to Canadian private international law, see Wai (2001b). 21. Outside of the European context, there are few significant international conventions in private international law. The most notable exception is that most major trading states have committed to support the use of international commercial arbitration through either the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38 (1959) and/or the UNCITRAL Model Law on International Commercial Arbitration, June 21, 1985, 24 I.L.M. 1302 (1985).

References Adler, Libby, and Peer Zumbansen. 2001. The Forgetfulness of the Noblesse: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich. Harvard Journal of Legislation 39: 1–61. Baxi, Upendra. 1986. Inconvenient Forum and Convenient Catastrophe: The Bhopal Case. Bombay: N. M.Tribathi. Braithwaite, John, and Peter Drahos. 2000. Global Business Regulation. Cambridge: Cambridge University Press. Brand, Ronald. 1997. Recognition of Foreign Judgments as a Trade Law Issue: The Economics of Private International Law. In Economic Dimensions in International Law: Comparative and Empirical Perspectives, edited by J. Bhandari and A. Sykes, 592–641. Cambridge: Cambridge University Press. Bratton, W., J. McCahery, S. Picciotto, and C. Scott, eds. 1996. International Regulatory Competition and Coordination. Oxford: Clarendon Press. Brilmayer, Lea. 1995. Conflict of Laws. 2nd ed. Boston: Little Brown.

transnational governance / 259 Byers, Michael, ed. 2000. The Role of Law in International Politics. Oxford: Oxford University Press. Calabresi, Guido. 1970. The Costs of Accidents: A Legal and Economic Analysis. New Haven: Yale University Press. Cassels, Jamie. 1996. The Uncertain Promise of Law: Lessons from Bhopal. Toronto: University of Toronto Press. Cutler, A. Claire. 1999. Private Authority in International Relations: The Case of Maritime Transport. In Private Authority and International Affairs, edited by A. C. Cutler, V. Haufler, and T. Porter, 283–329. Albany: SUNY Press. Dery, Mark. 1993. Culture Jamming: Hacking, Slacking, and Sniping in an Empire of Signs. Westfield, NJ: Open Magazine Pamphlet. Dezalay, Yves, and Bryant Garth. 1996. Dealing in Virtue: International Commercial Arbitration and the Construction of a Transnational Legal Order. Chicago: University of Chicago Press. Dodge, William. 1998. Extraterritoriality and Conflict-of-Laws Theory. Harvard International Law Journal 39: 101–169. Eizenstat, Stuart. 2003. Imperfect Justice: Looted Assets, Slave Labor, and the Unifinished Business of World War II. New York: Public Affairs. Goldstein, J., M. Kahler, R. Keohane, and A.-M. Slaughter, eds. 2001. Legalization and World Politics. Cambridge: MIT Press. Habermas, Jurgen. 1992, English translation 1996. Between Facts and Norms. Cambridge: MIT Press. Howse, Robert. 2002. From Politics to Technocracy—and Back Again: The Fate of the Multilateral Trading Regime. American Journal of International Law 96: 94–117. Jessup, Philip. 1956. Transnational Law. New Haven: Yale University Press. Kagan, Robert A. 2001. Adversarial Legalism: The American Way of Law. Cambridge: Harvard University Press. Kagan, Robert. 2002. Power and Weakness. Policy Review 113 (June–July 2002). Kamminga, Menno, and Saman Zia-Zarifi, eds. 2000. Liability of Multinational Corporations under International Law. The Hague: Kluwer. Keck, Margaret, and Kathryn Sikkink. 1998. Activists beyond Borders: Advocacy Networks in International Politics. Ithaca: Cornell University Press. Kennedy, David. 1994. The International Style in Postwar Law and Policy. Utah Law Review 7–103. Kennedy, Duncan. 1982. Distributive and Paternalistic Motives in Contract and Tort Law, with Special Reference to Compulsory Terms and Unequal Bargaining Power. Maryland Law Review 41: 563–658. ———. 1997. A Critique of Adjudication: fin-de-siecle. Cambridge: Harvard University Press. Keohane, Robert, and Joseph Nye, eds. 1974. Transnational Relations and World Politics. Cambridge: Harvard University Press. Khagram, Sanjeev, James Riker, and Kathryn Sikkink. 2002. From Santiago to Seattle: Transnational Advocacy Groups Restructuring World Politics. In Restructuring World Politics: Transnational Social Movements, Networks, and Norms, edited by S. Khagram, J. Riker, and K. Sikkink, 3–23. Minneapolis: University of Minnesota Press.

260 / robert wai Klein, Naomi. 2000. No Logo: Taking Aim at The Brand Bullies. Toronto: Vintage Canada. Koh, Harold. 2004. Separating Myth from Reality about Corporate Responsibility Litigation. Journal of International Economic Law 7: 263–274. Koskenniemi, Martti. 1997. Lauterpacht: The Victorian Tradition in International Law. European Journal of International Law 8: 215–263. Mattli, Walter. 2001. Private Justice in a Global Economy: From Litigation to Arbitration. International Organization 55: 919–947. Mnookin, Robert, and Lewis Kornhauser. 1979. Bargaining in the Shadow of the Law: The Case of Divorce. Yale Law Journal 88: 950–997. Ratner, Steven. 2001. Corporations and Human Rights: A Theory of Legal Responsibility. Yale Law Journal 111: 443–545. Reich, Robert. 1990. Who is US? Harvard Business Review, (January-February 1990): 53–64. Risse-Kappen, Thomas, ed. 1995. Bringing Transnational Relations Back In. Cambridge: Cambridge University Press. Risse, Thomas, Stephen Ropp, and Kathryn Sikkink, eds. 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Rorty, Richard. 1993. Human Rights, Rationality, and Sentimentality. In On Human Rights: The Oxford Amnesty Lectures, edited by S. Shute and S. Hurley, 111–134. New York: Basic Books. Ruggie, John. 1982. International Regimes, Transactions, and Change: Embedded Liberalism in the Postwar Economic Order. International Organization 36: 379–415. Scott, Craig., ed. 2001. Torture as Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation. Oxford: Hart Publishing. Shklar, Judith. 1964. Legalism: Law, Morals, and Political Trials. Cambridge: Harvard University Press. Singer, Joseph. 1989. Real Conflicts. Boston University Law Review 69: 1–129. Slaughter, Anne-Marie. 1995. International Law in a World of Liberal States. European Journal of International Law 6: 503–538. ———. 1997. The Real New World Order. Foreign Affairs 76: 183–197. Stephens, Beth. 2000. Corporate Accountability: International Human Rights Litigation against Corporations in US Courts. In Liability of Multinational Corporations under International Law, edited by M. Kamminga and S. Zia-Zarifi, 209–229. The Hague: Kluwer. Teubner, Gunther, ed. 1997a. Global Law without a State. Aldershot: Dartmouth Publishing. ———. 1997b. Breaking Frames: The Global Interplay of Legal and Social Systems. American Journal of Comparative Law 45: 149–169. Trubek, David, Jim Mosher, and Jeffrey Rothstein. 2000. Transnationalism in the Regulation of Labor Relations: International Regimes and Transnational Advocacy Networks. Law & Social Inquiry 25: 1187–1211. Vidal, John. 1997. McLibel: Burger Culture on Trial. London: Macmillan. Wai, Robert. 2001a. The Commercial Activity Exception to Sovereign Immunity and the Boundaries of Contemporary International Legalism. In Torture as

transnational governance / 261 Tort: Comparative Perspectives on the Development of Transnational Human Rights Litigation, edited by C. Scott, 212–245. Oxford: Hart Publishing. ———. 2001b. In the Name of the International: The Supreme Court of Canada and the Internationalist Transformation of Canadian Private International Law. Canadian Yearbook of International Law 39: 117–209. ———. 2002. Transnational Liftoff and Juridical Touchdown: The Regulatory Function of Private International Law in an Era of Globalization. Columbia Journal of Transnational Law 40: 209–274. Weinrib, Ernest. 1992. The Idea of Private Law. Cambridge: Harvard University Press. Williams, Cynthia. 1999. The Securities and Exchange Commission and Corporate Social Transparency. Harvard Law Review 112: 1197–1311.

Index

Accountability, 35, 38, 105–8, 112, 117, 121, 181, 222, 235–7, 247 Altvater, Elmar, 5 Ambiguity, 12–13, 24 Anarchy, 22, 31, 35, 127, 203, 255 Annan, Kofi, 33, 41, 62, 227, 230, 239 Archibugi, D., 1, 22, 37, 104 Arendt, Hannah, 127 Authority, 4–6, 25–8, 30–3, 35–6, 39, 40, 46, 59, 61, 70, 76, 78–9, 81–3, 114, 126, 128, 135–6, 179, 183, 186, 187, 189, 190, 197, 198, 204, 207, 215, 221, 227, 229, 230, 233, 235, 253 aristocratic, 78 international organizations, 150, 166, 190, 201 levels, 4, 36, 109 moral, 46, 76 non-state actors, 46, 197 Office of the High Representative (OHR), 180–5 public, 61, 134 religious, 232–3 secular, 85 of states, 26, 31–2, 126, 128, 131, 137, 183, 222–3, 232 Azerbaijan, 138, 164–6, 170, 173, 175n1, 175n7, 175n11 human rights organizations in, 14, 161, 166–7, 169, 171

Balkans, 177, 179, 186–7, 191 European Union, 11 post-conflict reconstruction, 15, 178–9, 190–1 Bosnia, 185, 189 administration, 180, 182, 184, 186–7 integration, 180–1 judicial process, 185 Kosovo, 179–80, 183, 185–6, 191 OHR, 180–1, 185 peace agreements, 180 violence, 178, 183 Boundary, 2, 17, 23, 39–40, 137, 205 Bourdieu, Pierre, 70 Bull, Hedley, 1, 104 Bretton Woods, 104, 147, 153, 158 creation, 115, 147, 150 financial system, 150, 156–7, 159 Transnational corporations (TNCs), 157–9 United Nations, 155–6 Canada, 53, 225–6, 260–1 Citizen, 31, 84–5, 105–6, 108, 178, 189, 191, 239n3 beyond the state, 49, 129, 137, 170, 229, 230, 235 corporate, 131, 230 cosmopolitanism, 69 empowerment, 113, 191 government, 106, 128, 187, 228

index / 263 rights, 105, 130, 225, 229, 236 Rousseau, 222–3, 235 Civil society, 4, 45, 48, 53, 55, 59–61, 65, 107, 139, 171–2, 175n11 components, 8, 121, 122n7 conflicts, 47 development, 139, 165 Forum of Civil Society, 237 hegemony, 56–8 legitimacy, 57–8 morality, 52, 65 networks, 62 Non-governmental organizations (NGOs), 9, 62, 64, 166, 168, 171, 188, 205 states, 56–7 transatlantic, 45–7, 54, 62, 64–6 transnational, 11, 40, 47, 49, 51–2, 54, 56, 59, 60, 62, 129, 139, 142, 143 Coffee, John C., 71, 83, 88, 92 Commission on Global Governance, 28, 33–4, 39, 145 definition of global governance, 3, 34, 221 political conflicts, 38 Cosmopolitanism, 69, 137 Council of Europe, 163 Culture, 118–19, 152, 197, 228, 258n17 Bosnia, 187 bureaucratic, 133 freedom, 239 multiple, 141 political, 62, 134, 164 Cutler, Claire A., 16n2, 244 Czempiel, Ernst O., 5, 19, 49, 146, 205 de Wilde, Jaap H., 26–7 Dezalay, Yves, 73, 76, 244 Dispute Settlement Body (DSB), 11, 196–7, 255

Easton, David, 46, 54, 59 Empire, 76; see also Hardt, Michael; Negri, Antonio Erga omnes, 198, 202 European Parliament, 233 European Union, 121–2n4, 163, 178, 183, 226, 253 accession, 189 Balkans, 11, 180, 178–9, 184–5, 188 Chile, 211 governance layers, 116, 211 human rights, 170 Non-governmental organization (NGO) funding, 168–9 Forum of Civil Society, 237 Garth, Bryant G., 73, 76, 244 Gellner, Ernst, 140 General Agreement on Trade and Tariffs (GATT) creation, 115, 150 developing countries, 212 human rights, 213 legal aspects, 208–9, 214 nontariff barriers, 209 transformation into World Trade Organization (WTO), 104, 115 Ghettoization, 78 Global Compact, 62, 157, 230, 239n5 Global Governance, definition, 3 Globalism, 69, 92, 94 contemporary, 77, 84 democratic, 93 vice other states of being, 95n3 Gramsci, 61 Guzzini, Stefano, 25, 42 Habermas, Jürgen, 130, 137, 257 Hardt, Michael, 1, 9, 71 Hegemony, 65–6, 107 economic, 103 United States, 9, 103, 115

264 / index Held, D., 1, 22, 37, 104 Hirst, Paul, 51, 95n3, 113 Hobbes, Thomas, 133, 142 Ideology, 239 human rights, 221, 223, 229–30, 235, 238 legalism, 251 religion, 229–230 Ignatieff, Michael, 229, 234, 240 Inside/ outside, 21, 29–30, 33, 105, 110, 113, 125 challenges, 33, 39 clear-cut, 105, 113–14 global, 30 new boundaries, 40 sovereignty, 30–2 International Court of Justice (ICJ), 199–200, 202, 204, 212, 214, 217, 225 International Criminal Court (ICC), 197, 205–6, 208 International Criminal Tribunals, 224 international human rights law, 229, 230, 239–40, 244 compliance, 224, 234 inadequacies, 225, 233 sources, 224, 236 International Labor Organization, 148, 196, 201 International Law Commission, 196, 204, 207 International Monetary Fund (IMF), 62, 73, 115, 150, 162 purpose, 150 sustainable development, 156 International Society, 113, 206, 231, 247, 253 law, 64 vice world society, 137 International System, 196, 252 anarchic, 3, 38

conceptualization, 3, 150, 198, 253 transformation, 1, 130 Iraq intervention, 136, 199 U.S. occupation, 77 Ius cogens, 204 hierarchies, 197, 198, 204 human rights, 225 international community, 202–3 international law, 203 Vienna Convention on the Law of Treaties, 202–3 Jews racism, 69 Venice, 78, 82, 87, 91, 95 Kaldor, Mary, 139, 142 Kant, Immanuel, 42, 106, 111–14 Keck, Margaret E., 62, 66, 244, 249 Kennedy, David, 197, 229, 248, 253–4, 258 Keohane, Robert O., 34, 195, 257n1 Koh, Harold, 224, 254 Krasner, Stephen, 26, 126 Kratochwil, Fritz, 1, 9, 16, 26, 32, 39, 41n2, 41n4 Language game, 10, 24–5 Latham, Robert, 8, 18, 24, 34–5, 37, 39, 41–2 Law of the Sea, Tribunal of the Law of the Sea, 196, 207–11, 218 League of Nations, 111–12, 136 Lebenswelt, 14 Liberalism, 65 economic, 50–1 embedded, 5, 19, 51, 258n18 political, 65 United States, 232 Luhmann, Niklas, 55, 195

index / 265 Mahnkopf, Birgit, 5 Metapolitics, 47, 58–61 Messner, Dirk, 1, 3, 5 Mittelman, James H., 51 Multipolarity, 1, 83 Nationalism, 96, 115, 118, 126, 223 Negri, Antonio, 1, 9, 71 Neo-medievalism, 1 New Public Management, 2, 154 Non-governmental Organization (NGO) activism, 168, 257 Balkans, 187 elites, 164–7 environmental, 153, 247 human rights, 172–3, 230 networks, 249 Transnational corporations (TNCs), 230 Western world, 53, 247 World Commission on Dams, 62 Nye, Joseph S., Jr., 34, 195, 218, 257n1 OECD, 163 O’Neill, Onara, 43 Ottaway, Marina, 9, 62–3, 230 Palan, Ronen, 28 Parapolitics, 47, 58–61 Pauly, Louis W., 16, 138, 142 peace of Westphalia, 127 Polanyi, Karl, 122n5 Policy maker, 12 Post-conflict reconstruction, 181–2 Balkans, 15, 178–9, 190 international institutions, 177 liberal governance, 182–3, 190 Private law, 248, 253, 261 Alien Tort Claims Act (ACTA), 246–7

application in national courts, 247, 248 limits, 243, 252, 254 transnational litigation, 15, 244, 246, 254–5 Procedure, 84, 107, 138, 213, 215, 246 Protests, 91 Reinicke, Wolfgang, 51, 61–2, 67 Risse, Thomas, 1, 164, 244, 249 Robert, Johnston, 51 Rorty, Richard, 25, 29, 45, 245, 252 Rosenau, James, 3, 4, 5, 23, 49, 146, 205 authority, 35–6 problems for global governance, 36–7, 41n1 sovereignty, 26 Rousseau, Jean-Jack, 137, 222–3 Ruggie, John G., 5, 32, 41n2, 51, 67, 115 Rwanda, 131, 136, 141 Scharpf, Fritz, 19, 60, 67 Scholte, Jan Aart, 51, 95n3, 101 Secularism, 222, 231–3, 239 Security Council, 147, 199–201 Balkans, 181–2, 185 establishment, 147 legal issues, 200 Sikkink, Kathryn, 62, 66, 176, 244, 249, 259–60 Simma, Bruno, 196, 199, 200–1, 203, 208–9, 219 Slaughter, Anne-Marie, 71, 80–1, 83, 88, 92, 200, 219, 244, 249, 252 Speech Act Theory, 13, 29 State-building, 188 Strange, Susan, 24, 50, 51, 137 Strauss, Andrew, 71, 88, 92, 97 Sudan, 136

266 / index Teubner, Gunther, 55, 195, 197, 245, 250 third sector, 168, 170, 176 Thompson, Grahame, 51, 98, 113 Tilly, Charles, 126, 136, 141, 143 UN Charter, 110, 199, 226 Article, 21, 209 Article, 71, 62 Article, 92, 199 Article, 103, 197, 201 Vienna Convention on the Law of Treaties, 202, 203, 207, 220 Waever, Ole, 41

Walker, R.B.J, 29–32, 41, 108, 110, 124, 126, 138 Weber, Max, 46, 48, 55, 126, 143 Werner, Wouter W., 26–7 World Bank, 73, 88, 115, 157, 163 developing world, 115, 150, 156 environment, 156 Worldliness diversity, 81 globalism, 92 politics, 78, 81 Venetian, 13, 77, 81, 83, 85 Yearbook of International Organizations, 53