International Law and Global Regulation From Above and Below
Laws & Public Order What is regulation? How does it differ from rules, norms and laws? What does it mean to regulate at the global level? Does it differ from international law? How are global laws & regulations made? Who is the authorized author or such regulations? How are global laws & regulations enforced? How can global regulation be effected from below? Does this amount to world government?
What is regulation? Does this picture demonstrate regulation? Regulation can mean to regulate operation, as in to maintain stable functioning. Or, it can be a rule mean to control or manage individual or collective behaviors and practices A law is a regulation, but a regulation does not have to be a law Customs and norms Administrative rules Habit-driven behaviors
Generally, regulations are formulated by authorities when people complain about over-regulation, they tend to refer to state-mandated controls, limits, obligations Regulations are intended to 1. Control or limit behaviors & practices that harm social good; 2. Provide benefits to or impose costs on specific parties. Depending on whether regulations are administrative rules or laws, the manner of enforcement may differ: judicial vs. police power
Abolition of the slave trade & slavery
Political change often takes place through public action Movement to ban slave trade began among educated British bourgeoisie in late 1700s Political change takes place as a result of changing economy and public pressure Groups and movements in civil society mobilize around issues of concern Graphics of slave ships, anger about impressment of sailors, economic actions & boycotts Political elites take up issue; economic elites warn of disaster Bills introduced in Parliament, to much opposition and derision; events also play a role Combination of tactics are used to pressure political elites, who capitulate under pressure from their constiuencies Britain abolished slavery in 1806, slave trade in 1830s and later instituted abolition in its colonies
How does law happen? A norm against some normal practice emerges Racial segregation is immoral and unjust Public concern is communicated to authorities Graphic evidence of action is disseminated Awareness of this practice becomes widespread Demonstrations, rallies, violent response State acts to change practice through legislation Struggles in Congress, states, streets laws are passed Racial segregation is both illegal and non-normalized Violations of law and ethics are simply not done
What about the international level? There is no comparable international or global authority is there? Societies have long had rules governing their interactions: these became known as treaties normally bilateral States developed and adopted rules and practices regulating their relationships: diplomacy Over time, states found it expedient to develop formal arrangements for regulating their interactions: int l law
Global governance is how such regulation is often described Set of codified rules and regulations of transnational or global scope Collection of authority relationships that manage, monitor or enforce said rules Includes a variety of arrangements, including hard law treaties, soft law declarations, private orders, and international governmental organizations, and Global policy coordination that takes place without any clear state-like political structures & practices
Governance is not the same as government. It assumes more than just the institutions of the latter, a wider range of actors, and broader forms of regulation.
Nation-states are understood to maintain a central role in such global arrangements Sovereignty implies that only a state can regulate within its own jurisdictional space Because regulations must be implemented within states to be effective and enforced, states must agree to regulate Enforcement of regulations relies on the judicial and police powers of states, since global equivalents are lacking But the principal-agent problem greatly complicates such regulation which can lead to regulation from below
Why are int l law & global regulation demanded? States are concerned about domestic effects of cross-border flows of goods, bads, people, money States generally do not have the authority to regulate activities taking place in other states Actors are concerned about activities and conditions in other places, and seek to protect their interests Common sets of rules and practices help to standardize and to reduce transaction costs Examples: trade, migration, crime, communications; some of these were already regulated during the 19 th century Nuclear proliferation is a particular current concern
There are three general types of international law Public Treaties, conventions, protocols, bilateral memoranda, unilateral Applies only to states: Kyoto, WTO, NATO, MOU, Super 301 Civil Self-enforcing & municipal-origin laws, standards, norms, conventions Applies to individual actors: EU law, NAFTA, Int l Org. for Stand. (ISO), corp. soc. Responsibility, ICC Private Self-enforcing contractual agreements Applies only to private corporations & associations: Merchant law, private contract law, arbitration
Civil international regulations and laws are formulated or legislated by various entities and apply to individuals, corporations and other non-state actors NAFTA includes various provisions specifying the rights and responsibilities of corporate actors The International Organisation for Standardisation (ISO) sets internationallyrecognized standards for all kinds of product, while the Codex Alimentarius does the same for food Corporate codes of conduct and corporate social responsibility are intended to regulate standards through commodity chains EU laws specify Union-wide rights for citizens of member countries, and before the European Court of Justice
Public international laws are formulated by states in congress to apply only to states State representatives meet to discuss and legislate on matters deemed to be of common concern: UN conferences, summit meetings, int l agency meetings, etc. Principles, e.g., human rights Policies, e.g., climate change Practices, e.g., trade rules When a state signs an int l agreement, it is understood that it will become part of municipal (domestic) law and enforced by domestic authorities
Private international law consists of self-enforcing contracts and agreements between private parties Historically, contract is enforceable in the jurisdiction in which a violation occurs: How does one make and enforce contracts actionable in more than one national jurisdiction, such as a child custody agreement? Rather than fighting in the courts over who has jurisdiction, parties agree to third-party by private courts, mediators, arbitration However, enforcement may rely on decisions of domestic courts and states can reject the findings of private courts
The int l institutional arrangements linked to international law and regulation are generally called regimes Stephen Krasner, International Regimes (p.2): International regimes are defined as principles, norms, rules, and decision-making procedures around which actor expectations converge in a given issue area. Principles are belief of fact, causation, and rectitude. Norms are standards of behavior defined in terms of rights and obligations. Rules are specific prescriptions or proscriptions for action. Decision-making procedures are prevailing practices for making and implementing collective choice. Volker Rittenberger, Regime Theory and Int'l Relations (p.xii): Rules of the game agreed upon by actors in the international arena (usually nation-states) and delimiting, for these actors, the range of legitimate or admissible behavior in a specific context of activity.
Int l regimes can have some or all of the following elements A formative convention or treaty that stipulates problems, principles and practices (e.g., UN Framework Convention on Climate Change) An administrative secretariat or office that has various organizational powers and responsibilities (e.g., UNFCC Secretariat is located in Bonn, Germany) Various related or subsidiary organs and agencies (e.g., IPCC, GEF, SBSTA, etc.) Periodic or regular conference/meetings of the parties (MOP/COP) to the agreement (e.g., Climate Change Conference, Intersessional Meetings, subsidiary bodies Associated agreements and protocols (e.g., Kyoto Protocol; Clean Development Mechanism Other associated operations, agencies at various levels (e.g., carbon emissions trading schemes and markets)
The UN System is a collection of regimes: these are merely the principal agencies of the United Nations and there are numerous public/private regime-like organizations and associations, as well
TRIPS and the WTO are an example of an int l regime TRIPS (Trade-Related Aspects of Intellectual Property Rights) was a political and social innovation by the United States to enable corporations to assert control over products Sometime during the 1960s and 1970s, the economic potential of technological and biological patents became of central concern to the U.S. government
TRIPS Trade Related Aspects of Intellectual Property Rights International treaties required mutual recognition of domestic IPR systems, but not as a precondition for economic relationships U.S. pharma took the lead in pushing for a multilaterally-binding system of IPR recognition, which was eventually embedded in the WTO as TRIPS Accession to the WTO requires signing on to TRIPS, recognizing and adhering to its standards and requirements, and agreeing to dispute resolution procedures when necessary TRIPS is domestically-binding, and the WTO can order national courts to enforce its findings against parties who violate IPRs The WTO can also require payment of damages in the event the offending country does not remedy the violation See http://www.wto.org/english/tratop_e/trips_e/trips_e.htm
In practice, many international regimes are strongly influenced by the United States, the EU and Japan For example, the head of the World Bank is always an American; the head of the IMF is always a European Structural adjustment policies reflect the neo-liberal Washington Consensus of the 1990s, which give advantage to capital International regulations governing commercial aircraft and flight are largely drawn from U.S. regulations The World Health Organization depends on the U.S. Centers for Disease Control and Prevention to investigate disease outbreaks TRIPS is organized around Anglo-American property rights concepts, rules and practices The IAEA generally responds most strongly to U.S. concerns in the event of proliferation issues and concerns So, is Global Governance really global?
How are global regulations enforced, there being no world government with police power? International organizations can issue judgments and orders against offending states, e.g., UN Security Council National entities work together and pool police power States can impose economic sanctions and threats against violators individual and collective And, of course, there is always force
Regulation from below: Civil societies and social movements
Implementation of int l law & global regulation is assumed to take place at national and sub-national levels When national governments do not act, subnational governments may attempt to intervene but there are arguments that this does not make sense why act if no one else will (this is called the collective action problem )
November 15, 2007 Governors Pushing Caps on Greenhouse Gases By JOHN M. BRODER WASHINGTON, Nov. 14 Frustrated with the slow progress of energy and global warming legislation in Washington, the nation s governors have created regional agreements to cap greenhouse gases and are engaged in a concerted lobbying effort to prod Congress to act. To a growing degree, moreover, states and regimes are constructing transnational public-private partnerships Public authority sells property or property rights in things, goods, services Private entity manages thing, good, service and sells it to customers The UN Global Compact is one example
What are the possibilities for doing something about such conditions? Governments could implement int l regulations Agencies could issue rules & regulations Legislatures could be lobbied to pass laws Workers & people could resist & oppose Movements could protest and demand Corporations could regulate themselves
Global system of governance through political economy Decentralized, no legitimate center of political authority Highly marketized, with many centers of market authority Very indirect political representation, with a major democratic deficit Direct consumer influence through votes via preferences and choices Very indirect political representation, with a major democratic deficit Strong channels of economic pressure through boycotts and shaming of corporations
Transnational & global social movements become one means through which political and social change may take place
Creation of the International Criminal Court Consider the ICC: is it needed and why? Crimes in violation of human rights There is no int l forum to adjudicate Individuals have no int l standing Rule of law appears desirable Why might the ICC be unwanted (by some)? States favor domestic laws & courts States don t wish to be defendants State agents may be tried (POWs) States cannot control proceedings Yet the Statute of Rome has become international law: why? Crimes committed in other places Deterrent against invasion (power) Broadens legal system & culture
Pressure through markets appears to have political potential to change practices NGOs can publicize the effects of such work on young children how companies treat child workers and take advantage through media Buyers of soccer balls and rugs don t want to appear immoral or insensitive; Companies don t want to appear greedy or exploiters of young children Campaigns urge consumers to vote by boycott or preferential buying; Companies fear impacts on brand value, share value, and bottom line If one company changes policies, others may also do so; There are benefits to good PR, and changes may improve revenues and profits
Consider another issue: child labor Children are hired sew soccer balls and rugs because they are dextrous ; Children work long hours for low wages in unhealthy conditions and denied education Nat l governments defend the practice and costs; Companies invest due to low wages and obey domestic regulations Families may have no other source of income; it is fair to deprive them of it?
Corporate Social Responsibility (CSR) has become popular
How and why do CSOs and corporations get into the business of regulation and citizenship?
Can fair trade and its variants address such regulatory problem? There is more regulation and politics in the system, but it remains fairly marginal to the industry
Can such campaigns, by themselves, achieve regulatory goals? Consumers can make choices about whether or not to boycott companies Consumers make individual choices to what do these add up? Companies can decide whether or not to respond to consumer preferences Companies are not subject to any binding legal requirement Certification relies on assumptions about process, transparency, legitimacy Regulation within a commodity chain does not imply regulation without Depriving people of jobs serves neither them nor the cause of justice
Privatization of governance is a relatively new commodity frontier, but raises numerous questions: Who decides what to privatize, and to with whom contracts should be signed? Who do private entities represent, and to whom are they accountable? What kinds of regulations and laws must private entities obey, and who monitors and enforces such limitations? What happens if a private entity is found to be engaged in illegal or corrupt activities? Privatization of security services illustrates some of the potential pitfalls of contracting out governance to the market
This brings us back to politics and ethics and denormalizing deviant behaviors The market is political but not ethically binding
At what point, however, does agitation for political and social change become a threat to the social order?
We return to the question: Whose regulations? Whose rules? Who rules?
The World Government