Reshaping Global Governance to Reflect the Realities of the 21st Century - Essay Example

?Global Governance and the Role of Law Address to the UN: Reshaping Global Governance to Reflect the Realities of the 21st Century Introduction When we visualize global governance, intergovernmental organizations such as the United Nations and its various institutions, the World Trade Organization (WTO) and the Organization for Economic Cooperation and Development (OECD) immediately come to mind. Attention is also drawn to political and state leaders and the norms and institutions that they articulate and debate. Seldom do we think beyond the individual voices and decisions giving expression to the norms and institutions that form the bulk of global governance. As Kennedy argues in his article Challenging Expert Rule, contrary to appearances, there are “other people” behind the established norms and institutions constituting global governance.1 The reality is, there is a complex conundrum in which others stand behind governments and international governmental organizations, so that global governance is produced by actors in the “foreground” (governments) and actors in the “background” (legal experts).2 Sathirathai in his article Peace and Security, also points out that there are others behind the norms, institutions and actions of intergovernmental decision-making.3 For example, the efforts of the UN are no more than the articulation and expression of work put together by private and independent bodies. Sathirathai also draws attention to others who challenge the multilateral legal regime of the UN Charter: non-state actors such as terrorists and questions whether or not the UN Charter, which was established to regulate peace and security between states is compatible with the reality on the ground.4 Sathirathai argues however, that the legal and institutional basis of the UN for responding to existing and future threats are “sound”, what is needed reform that takes account of all actors within the international community.5 This is very similar to Kennedy’s insistence that global governance must be viewed in terms of “foreground” and “context” in that “public regulation” must be distinguished from “private ordering”.6 In this address I will analyse Kennedy and Sathirathai’s articles and identify the issues and mechanisms that determine how global governance is established and operated. These articles were chosen because they draw attention to the realities of the world in which we live in by demonstrating that world order goes beyond state actors in that regulators and threats can and have originated from behind the scenes actors. While Kennedy draws attention to the non-state actors behind the multilateral legal regime, Sathirathai draws attention to the non-state actors that challenge the multilateral legal regime. I will examine the role of national and international law in mediating the challenging role of behind the scenes and non-state actors in establishing and operating global governance. In the first part of my address I will analyse Kennedy’s article. In the second part of this address I will analyse Sathirathai’s article. In the final part of this address I will provide a conclusion and analysis of the insight gained from the articles discussed with you today. Kennedy’s Address: Challenging Expert Rule: The Politics of Global Governance Kennedy begins his address by observing that the world is indeed governed and that there is no place in this world that is “beyond the reach of law”, nor is “market freedom immune from regulation”.7 If we visualize this observation for just a moment, you will be hard-pressed to identify a place in this world that is outside the reach of a specific nation-state, where you are free to do as you like with immunity. If you commit murder on unclaimed territory, some country will claim jurisdiction over the murder and you will be prosecuted for the crime. It is the international legal order that makes it possible. According to Berman, the international legal order was not established by virtue of a central legal system that binds all states, but by the overlapping and “heterogeneous elements”.8 Kennedy describes this new international legal order as sociological in nature and consisting of both “official” and “unofficial” laws emanating from domestic laws that reach beyond their borders.9 National laws follow citizens wherever they go, regulating the manner in which they conduct their daily lives and respective businesses. Even so, there is more to the international legal order: international public law, the UN and the global multilateral trade systems. Each of these institutions have laws that are put together by the efforts of legal experts in much the same way as national laws. What this means is that the international order is regulated by law and as such the legal experts that advise on the law, enforce it and draft or create the law.10 Reisman provides a good example of how legal experts contribute to and essentially establish and reinforce the international legal order. According to Reisman, whenever there is a crisis that impacts most states, the responses are typically found in law. For example, international terrorism directs states’ attention to responses that involve legal sanctions such as detecting, investigating, arresting and prosecuting. When states attempt to create and agree on universal anti-terrorism measures they cannot come to an agreement.11Nation states are therefore left to turn to legal experts for reforming national laws for implementing the appropriate counter-terrorism measures. Common similarities in these laws create universal principles. This is consistent with Alejandro Alvarez’s theory of international law in which he argued that nation states with their own identities pass laws which creates institutions and international law. 12 Kennedy goes a lot deeper into the background than Alvarez’s theory of international law. The national laws, according to Kennedy are informed by legal experts. In this regard, legal experts ultimately “make decisions that affect the wealth, status and power of other people.” The legal experts decision making occurs in the interpretation and enforcement of underlying norms and institutions that regulate market activities, nation states and families. It is through the efforts of legal experts who modify, and define enforcement constructs that international law is created. As Kennedy informs: Across the globe, experts communicate with one another in common vernaculars, their significance in every national system enhanced at the expense of conventional politicians by the processes we so often refer to as ‘globalisation’.13 Kennedy invites us to look beyond the sociological context and the idea of state sovereignty and instead, to focus on those in the background that “lay context, advising and informing” heads of state, “implementing and interpreting” state “decisions for lay people”.14According to Kennedy, scientists and pollsters “interpret facts for the politician” and lawyers and administrators translate “political decisions back into facts on the ground”.15 Therefore experts basically determine and predict what decisions should be made and what the outcome of those decisions will be. The international labour and trade markets provide a good example of how background actors influence international rules, laws and norms. For example, the International Labour Organization implemented Conventions intended to establish universal labour standards relative to wages, working conditions and the treatment of workers globally. These international standards are non-specific and countries continue to implement and practice as they see fit. The US labour laws provide for substantially higher minimum wages than its neighbour Mexico, which essentially does not have a minimum wage. In the international legal order, the question for legal experts is not whether or not Mexico’s minimum wage laws are right or wrong, but rather whether or not it is normal.16 As Kennedy puts it: To decide, conventional legal analysis relies on an assumption about which legal scheme is ‘normal’, and which not. If farmers normally grow wheat, a new railroad may appear to impose cost – if the difference between American and Mexican wages is ‘normal’, American efforts to raise Mexican standards will seem an abnormal non-tariff barrier. Deciding what is ‘normal’ and what is not is rulership, an unavoidable political decision about allocation of costs.17 The multilateral world trade scheme under the auspices of the World Trade Organization (WTO) involves a system in which states’ trade-related disputes are resolved. In the WTO’s dispute settlement process state will typically argue that their established norms and rules are normal and the rival state is unfairly generating costs or gaining an “unfair advantage” with the imposition of their background rules and norms.18 In hearing and resolving these disputes, the WTO amasses a body of rulings reflecting internationally accepted differences in terms of labour regulations and labour practices and standards. This is known as “the range of ‘normal’ background regulation”.19 Still, WTO decisions are not binding on the states to which they apply. In order for those decisions to be binding, states must agree to cooperate with them.20 Thus whether a state decides to cooperate or retaliate is informed by background actors and experts. According to Wedgwood however, there is yet another informal regulatory process in the background establishing and shaping behaviour in the forefront. This informal background actor is the international capital markets. In pursuit of economic growth and development and the ability to gain access to capital markets states are willing to compromise their own background rules and/or cooperate with the background rules of another state.21 According to Kennedy much of the public decisions made are a result of background consensus building based on input by experts.22 In the background, norms are created such as payment process for ensuring that capital moves across borders unimpeded. There are instances in which domestic regulations are able to cross borders for fighting terrorism and money laundering. In the meantime, the extent to which these regulations are accepted and enforced can be compromised by yet another set of background actors: civil rights and humanitarian advocates.23 Consensus building in the background therefore plays a significant role in what is decided and acted upon in the foreground. For example, it was on the basis of “expert consensus” that Iraq was in possession weapons of mass destruction that informed the decision to invade Iraq.24 It is therefore misleading to think of the international legal order as centred around a transparent hierarchal construct with an identifiable centre and corresponding parts.25 The reality is, the decisions and work in the foreground are made by actors with political and ideological influences. In the background, actors have no such alignments. They are influenced only be professional and objective expertise and perform a purely clinical function in advising on what amounts to the “best practices”.26 For example, “markets are structured to reflect professional notions of ‘best practices’” and are likewise “defended in the professional language of efficiency”.27 The role and power of experts in shaping the international legal order in the background is significant. Experts not only define problems, but also define the appropriate solutions.28 Legal experts are divided into different disciplines and even within these different disciplines, schools of thought change over time. International legal experts typically view the world in terms of sovereign states and view war as an issue and are reminded of the Holocaust and fret about the threat of rogue regimes. Commercial legal experts are focuses on international commercial issues and are reminded of the Great Depression. Even so, these issues and intellectual views are historical in that they tend to change over time and some issues fade while new issues take centre stage.29 Experts have and express theories and methods and do not always agree. They attempt to persuade each other toward their thinking by making intellectual arguments. Still, theories and methodologies can be classified into schools of thought which bring together Western legal thinking and interpretation as opposed to Eastern thinking and interpretation.30 In this regard, we might find a Western coalition in the forefront that builds consensus and makes compromises with an Eastern coalitions and this in turn produces global governance. Danielsen informs that there are other non-state actors in the background shaping and influencing the international legal order. These non-state actors are transnational corporations. Transnational corporations contribute to the global economic order and the welfare of many globally. As such there is a belief that the world is not entirely governed by individual states or a community of states. In fact there is a fear that transnational corporations are may be outside the reach of state regulation given their presence and influence.31 In the final analysis, global governance is established by history, practice, customs, norms and laws situated in both time and place. What occurs in the foreground is no more than expression of background input from both non-state actors and non-state influences. It can therefore be argued, that international law is no more than an expression of that which is normal and customarily accepted and tolerated. Legal experts function to interpret problems, predict outcomes and define solution guided by intellect, history, current events and objective thinking. Sathirathai’s Peace and Security: The Challenge and the Promise Sathirathai also recognizes the work of background and non-state actors in global governance. As Satharathai points out, the UN coordinates the “work of hundreds of independent national public and private agencies” in “responding to humanitarian emergencies”.32 However, Satharathai is not so much concerned with background actors influencing and shaping decisions and regulations that form the framework for global governance. Instead, Satharathai is more concerned with the changing nature of those to which global governance applies. According to Satharathai, the international legal order envisaged by the establishing of the UN by the UN Charter was to regulate and maintain peace and progress between states. However, the changing nature of peace and security, giving the threat of non-state actors, begs the question of whether or not it is appropriate to think of global governance purely in terms of regulating relations between states within a community of states.33 In examining the mandate of the UN and the global governance framework of the UN Sathirathai asks the following questions: Can it manage the challenges posed by the dismantling of nuclear arsenals, the spread of nuclear know-how, the emergence of multiple smaller nuclear – or “maybe nuclear” – states? The Threat posed by nuclear weaponry in the hands of outlaw or terrorist networks is absolutely unacceptable – but is our international regime able to prevent it?34 Yet, when we think of the experts to which Kennedy attributes background global governance decision-making, there is support for the proliferation of nuclear weapons. Cohn explains that “defence intellectuals” who work as official administrators and/or consultants consistently argue in favour of nuclear weapons as either a method of deterrence or for maintaining the balance of power.35 It might very well be that non-state actors influence decisions that enable threats to state security from non-state actors. In other words, the decision to stockpile nuclear weapons is influenced by defence experts who are non-state actors and the existence of nuclear weapons are appealing to terrorists. Sathirathai unlike Kennedy, views global governance as emanating from the UN and while Sathirathai pays homage to the work of agencies working within the UN system, there is no credit given to the work of those who influence the decision of states making up the community of states in the international legal order. Sathirathai instead questions the effectiveness of the UN framework for dealing with the non-state actors that create problems for global governance. In this regard, Sathirathai draws attention to the language of the UN Charter which is stated to be for the development of “friendly relations among nations”.36 Sathirathai questions whether or not the UN Charter as it is constituted is adequate for dealing with security threats to states from non-state actors such as terrorist and international criminal organizations.37 Even more so, Jose Alvarez questions the legitimacy of the UN’s Security Council and its decision-making process. Alvarez argues that the lack of judicial review of UN Security Council decisions renders the global governance system illegitimate. The Security Council does have a system of checks under the veto power of member states when the Security Council seeks approval for the use of force or for the imposition of sanctions. 38 Member States however, will only act in accordance with their own interests and therefore this system of checks and balance is not only limited, but virtually a non-factor. Realists describe the UN Charter global governance system as no more than a “police state” process.39 However, when one considers the veto power, the Security Council can be rendered entirely powerless and will depend on state interests and their alliances and support systems. Legalists on the other hand, take the position that the court should be the “last-resort defender” of the UN’s legitimacy.40 Legalists also argue that the UN Charter contains “limited enumerated powers” and the court as another “institution in the system” can affirm UN Security Council decisions, therefore the “Council” and the “Court” are two complimentary parts of the global governance order.41 In this regard, the Council sits as a political entity and the courts sits as a legal entity. Thus, drawing on the legalist argument, the global governance system is divided between those in the foreground (decision-makers) and those in the background (legal experts/courts). While the Court may not review Security Council decisions and may only approve or affirm those decisions, the Court sits in an advisory position in much the same manner as Kennedy argues. This is confirmed by legalists’ arguments that the Court exists “in part to protect institutional legitimacy by preventing the Council from overstepping its limits”.42 Nevertheless, the powers of the security council are limited to the acts of states and this limitation begs the question of whether or not global governance is complete when non-state actors have acted in ways that threaten peace and security globally. In other words, threats to peace and security to a state is no longer limited purely to state action. As Sathirathai explains, the terror attacks on New York, London, Madrid, Moscow, New Dehli, Beslan, Bali, Israel, Egypt, Colombia, Iraq, Afghanistan, Pakistan and Jordan, demonstrate that threats to state security are no longer confined to the conduct of states and this is no a “global phenomenon”.43 Sathirathai, questions whether or not the global governance multilateral system under effective for: Achieving “collective security” “in the fact of sharp disagreement about the need to use force in the common interest”.44 Meeting the “challenges posed by enduring poverty,” when “so many” are excluded from the “social, political and economic promises of our modern world”.45 Meeting the challenges linked to the proliferation of nuclear weapons and terrorism.46 According to Sathiarathai, the multilateral system is indeed capable of responding to these challenges. This can be accomplished by interpreting and applying the UN Charter in a way that corresponds with the realities of today’s world. It can also be accomplished by revising the framework of the UN Charter and infusing it with “new ideas, new approaches, new visions”.47 As Sathiarathai explains: Indeed, the Charter has often worked best when bold leaders have interpreted it dynamically and used it creatively to address novel situations. Expanding the good offices role of the Security-General, launching peacekeeping missions across the globe, monitoring elections in states vulnerable to political manipulation – all are efforts that have resulted from a dynamic reading of the Charter.48 When looked at in this way, Sathiarathai’s argument is very similar to the argument made by Kennedy in that in the background legal experts impact the decisions made in the foreground. The dynamic reading and interpretation of the UN Charter in ways that lead to responses to new and unprecedented situations speak to background influences. In fact, Sathirathai argues that whenever the UN Charter has been interpreted and applied innovatively, it has usually occurred with the assistance of the various institutions within the US, the members of the UN, and the “informed opinion of the broader international community.”49 Sathirathai, goes on to state that given today’s security threats, the most efficient way for the multilateral system to respond is to involve the “work of the entire international community – of citizens” who have a vested interest in the efficiency of the international legal order and “who hold it accountable” and “of member states, whose servant that UN system remains”.50 Cohen takes this argument further by observing that it is a universal aspiration that common human beings who are impacted by the inequities in today’s world can via peaceful negotiations and actions come together to resolve the difficulties associated with inequities. This is made possible by what is currently referred to as “new governance”.51 New governance, involves a kind of governance in which it is suggested that governance is properly achieved by virtue of balancing “top-down regulation” and “a single-minded reliance on market-based norms” and by “public-private networks, multiparty negotiation and decentered, collaborative institutional design”.52 These private networks have gained increasing power and prominence over the years. Since the implementation of the UN Charter, a number of non-governmental organizations and private bodies, religious and corporate entities have gained significant power in the global order and are regarded as both “reliable and user-friendly”.53 Regional networks have also increased exponentially. Since the end of the Second World War, communication and transportation have also improved and have rendered the need for a central governance process. In fact, when the UN came into being it was designed to act as a central forum for state dialogue. Now the UN “finds itself mounting large scale administrative, humanitarian and military operations across the globe”.54 Moreover, the initial formation of the UN was centred round the idea that the permanent members were those who successfully fought the Axis during the Second World War. However, much has changed since 1945 with the result that the economic and military powers of those permanent members have changed.55 In other words, the idea of global governance under the UN Charter has in practice adjusted to new and previously unanticipated situations and circumstances, although entrenched in an out-dated tradition and premise. There is a need to reform the UN institution if it is to sit as the centre of global governance. There is room for reform and this reform would come from the background actors who drafted the UN Charter and improved on the previous international legal framework. For example, under the Kellogg-Briand Pact of 1928, contracting states merely agreed to implement policies renouncing war. The UN Charter however, makes provision for a “legal framework” in which the use of force can be analysed and leaders can engage in conflict resolution instead.56 The UN Charter calls upon contracting states to resolve all trans-border disputes peacefully. Moreover, the UN Charter requires that no state shall use force against another state unless such force is necessary in self-defence. As a result of the simple and unambiguous language contained in the UN Charter, legal experts have no difficulty agreeing that force many only be used outside of Security Council approval if it is “collective or individual self-defence in response to an attack”.57 Even so, the simple and clear language of the UN Charter does not contemplate a number of security threats today. After all, civil wars, international terrorist attacks and other forms of in-state and non-state violence against states do not immediately fall within the peace-keeping parameters of the UN Charter. Moreover, as Kennedy points out there are currently non-military and non-violent threats to security: economics. In addition, ethnics and nationalism present new opportunities for conflict. These background factors and the increasing emergence of non-state actors are not only contributing to a new set of issues requiring a re-conceptualization of international order, but are also contributing to new norms and customs and are therefore forming a part of international law.58 The reality on the ground is that contrary to the legal underpinnings of the UN Charter, international order is no longer confined to states and state actors. We now live in a world in which a number of factors shape the course of international order: nature, citizens, nations, history, modernity, Western states, the market, spectators, science, religion and any number of factors that can have political impact across borders.59 It is also important to note that some of these various threats are also “within the exclusive jurisdiction” of “one or another state”.60 Meanwhile, the UN Charter requires that no state intervene in circumstances where a threat is within the exclusive jurisdiction of another state.61 Despite the loopholes and gaps left by the state-centric UN Charter, there is still room for global governance that reflects an ordered international community. For example, the requirement for states to resolve conflicts without resort to the use of force can be broadly interpreted to include negotiations and cooperation in many instances where security threats do not emanate from a state specifically, but does emanate from within a state. As Sathirathai observes: Peaceful resolution requires consultation negotiation and the steady partnership with the world’s great powers, and with all stakeholders in a just and peaceful solution. As a result, we should expect that the most effective political and diplomatic work necessary to avert conflict will be undertaken behind the scenes.62 Like Kennedy, Sathirathai describes global governance in terms of background action. While Kennedy accepts that background actors are influencing and perpetuating the global governance we see in the forefront, Sathirathai maintains that background actors have the potential to establish and maintain peace and therefore contribute to effective global governance. Sathirathai does acknowledge however, that in today’s international legal order there are several systems by which states communicate, collaborate and cooperate. These systems include regional, bilateral and multilateral arrangements. However, as Sathirathai points out, collaboration, communication and cooperation is not always possible as states often have conflicting interests and agendas.63 While negotiations, communications and collaborations break down because of competing interests and agendas, global order is still maintained. There have been cases where state actors have acted as mediators between two conflicting states, and thus represent the informal form of global governance referred to by Kennedy. In any event, the European Union (EU), perhaps the world’s largest and most successful regional arrangement has proven that global governance can effectively overcome conflicting state interests. The EU’s creation of a common market removed inter-state competition and created a governance system in which states within the EU have common interests, with the result that the potential for conflicts are minimal.64 Even where conflicts arise, the common market system within the EU provides opportunities for states to peacefully resolve their conflicts for the greater good of the common market. Sathirathai, reminds us however, that in the broader international system, the UN Charter has been used flexibly and interpreted broadly to cover contexts that would not strictly fit within the Charter’s prohibition against the use of force. According to Sathirathai, the UN Charter has enjoyed significant success for at least 6 decades in terms of maintaining peace and security and prescribing exceptions to the prohibition against the use of force. One recent and remarkable example is the US response to the international terrorist attacks on the US by non-state actors on September 11, 2001. As we have already seen, the UN Charter is specifically designed to deal with state actors and relationships between states. The terrorist attacks on the US were not attributable to a state. Yet the US was able to convince its allies that the states that enabled and supported the terrorist were complicit in the attacks on the US and presented a threat to global security. It was therefore argued that the US had the right to the use of force in self-defence.65 Drawing on the wisdom of Kennedy as previously discussed, it is unlikely that the US President at the time made the decision based on his own interpretation of the facts in the context of the UN Charter. The behind-the-scenes, or background legal experts defined the problem and the resolution for the President who then took his argument and plans to the international community. Previously, terrorist attacks were largely regarded as a matter for national criminal laws. For instance the previous attacks on the World Trade Centre in 1993, although not nearly as catastrophic as the attacks of 2001, were dealt with by virtue of US criminal laws. The most recent attacks caused the kind of damages that one would expect in military attack. Fortunately, the experts investigating the facts and interpreting the UN Charter were able to identify a solution that corresponded with the magnitude of the problem. In this era of globalization, the nation state is becoming less important and national solutions are not always and in fact becoming less appropriate. In fact, Kennedy argues that the nation state is becoming fused into an international community and is losing its individual identity. This is representative of the reality of global governance. More and more cultures, politics, and norms are finding that it is necessary to “receive, adapt to, and adopt the international”. 66 Therefore practice, custom and globalization have functioned to create and sustain a global order in which informal and formal institutions and background and foreground actors culminate in global governance and an ordered international community. Conclusion I want to thank you for your patience and for taking the time to indulge me. I hoped that I have engaged your imagination and helped you to see global governance the way that I see it. I wanted to share the articles of Kennedy and Sathirathai with you because they functioned to lift the veil of global governance and permitted a unique view of all the factors that involve the governed and governance. Sathirathai allowed us to look at the complex world in terms of security and the myriad threats to security and how the UN Charter with the help of behind-the-scenes actors can be interpreted to deal with and cope with new threats to world peace. Kennedy helped us to see more clearly, the work of the experts that guide, shape and define state leaders in their decision-making. In closing I can state with the utmost confidence that the world is governed, but not in terms of a centralized system of governance. Instead the world is governed in the foreground and in the background. The laws of nations are increasingly converging to the extent that we now have overlapping laws and norms that are common to a majority of states. We can therefore conduct our businesses and go about our daily lives anywhere in the world because the established and emerging global order makes it possible for us to do so. Bibliography Alvarez, A. 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(Summer 1987). “Sex and Death in the Rational World of Defense Intellectuals.” Signs, Vol. 12(4): 687-718. Danielsen, D. (2006). “Corporate Power and Global Order, In Orford, A. (Ed.), International Law and its Others. Cambridge, UK: Cambridge University Press, Ch. 4. Eberlein, B. and Kerwer, D. (2004). “New Governance in the European Union: A Theoretical Perspective.” JCMS, Vol. 42(1): 121-142. Kennedy, D. (2005). “Address: Challenging Expert Rule: The Politics of Global Governance.” Sydney Law Review, Vol. 27: 1-24. Kennedy, D. (2006). “Leader, Clerk or Policy Entrepreneur? The Secretary General in a Complex World.” In, Chesterman, S. (Ed.), Secretary or General?: The Role of the United Nations Secretary General in World Politics. Cambridge, UK: Cambridge University Press, Ch. 9. Kennedy, D. (2001). “The Forgotten Politics of International Governance.” E.H.R.L.R. Issue 2: 118-125. Kennedy, D. (Fall 1994). “Receiving the International.” Connecticut Journal of International Law, Vol. 10(1): 1-26. Reisman, W. M. (1999). “International Legal Responses to Terrorism”. Houston Journal of International Law, Vol. 22: 1-61. Sathirathai, S. (2006). “Peace and Security: The Challenge and the Promise.” Texas International Law Journal, Vol. 41: 513-528. Wedgwood, R. (2002). “Unilateral Action in a Multilateral World”, In, Patrick, S. and Forman, S. (Eds.), Multilateralism and U.S. Foreign Policy: Ambivalent Engagement. London, UK: Lynne Reinner Publishers, Inc. Ch. 7. Read More