Presentation Transcript

1. Class 4Intro to Global Governance

   POLS 363 International Law P. Brian Fisher Spring 2010
2. Sample of Writing Papers Writing Clip from Human Ecology Journal article.
3. Basic Terms Jurisdiction: practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility. Tort: governs civil wrongs (not involving contracts) where there is a legal injury. Tort law establishes the circumstances under which one person may be held liable for another's injury. Punitive Damages: damages beyond compensation (to make victim whole) and designed to deter or reform conduct engaged in by the defendant.
4. Setting up Filartiga 28 USC (US Code) § 1350. Alien’s action for tort (ATS = Alien Tort Statute) “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” ** “Law of Nations” = Public International Law (PIL) Private International Law = Conflict of Laws Public IL: the structure and conduct of sovereign states and intergovernmental organizations within a legal context. PIL is evolving to affect multinational corporations (MNCs) and individuals. 2 Branches to Public IL: law of nations (jus gentium) and international agreements and conventions (jus inter gentes)
5. Filartiga(remanded District Ct) Procedural History: Magistrate decision on damages (appealed to US Fed Court) Juris denied in fed district court Juris found according to ATS in Fed Appeals Court (2d circuit) Issue: Is there subject matter Juris with 2 foreign nationals and crime committed in foreign state? Remanded to fed district court Issues: What law is applicable—foreign state’s or IL? Damages?
6. Filartiga Case Brief (577 F.Supp. 860) Facts: Summary of finding of jurisdiction (by appeals court) Issues: Interpretation of “tort” for applying ATS—applicable to wrong “in violation of the law of nations” or merely a wrong actionble under the law of the appropriate sovereign state? That is, should the tort be defined by IL or domestic law? Damages—Justified? How much? Holding: i) ATS is applicable to tort in violation of law of nations—so look to IL for answers. ii) Agree to compensatory awards but expand punitive damages to $5mil each. Reasoning: Hardly makes sense to make the “crime” subject to IL without defining the crime itself (or tort) according to IL. * The court concludes that it should determine the substantive principles to be applied by looking to international law, which, as the Court of Appeals stated, "became a part of the common law of the United States upon the adoption of the Constitution.” Damages: Punitive damages rare in IL cases, but evidence is overwhelming, and it would “further international objectives considering the egregious acts committed by Paraguayan official.”
7. Filartiga Appellate Decision (1980) Alien Tort Statute 28 USC § 1350 Facts: Paraguayan plaintiffs file ATS claim in US Fed Ct against a Para official (Pena) for the torture (killing) of a family member in Paraguay. Issue: a) Is there jurisdiction? b) What law controls? Holding: a) Yes, under ATS.b) IL should be used to interpret the crime itself. Reasoning: ATS is a fed statute authorizing US juris over tortious acts committed in violation of law of nations. “torture” conducted under the color of law was a violation of the law of nations. “torture” is a tort under IL and is so reprehensible to be found a violation of the law of nations.
8. Consequences from Filártiga Extended US jurisdiction in 2 ways: 1. US juris over cases beyond physical territory of US and over non-Americans 2. helped expand jurisdiction over cases beyond states only (private actors under state authority) Precedent for US Fed Ctsto punish non-US Citizens for tortious acts in violation of PIL or Law of Nations Validated and further legitimized the ATS
9. “International” Interactions and processes between States States as contained entities bound by self-interested actors (i.e. sovereignty) Gives rise to collective action problems or ‘Tragedy of the Commons’ Necessitates forms of collaboration and cooperation for resolution
10. ‘International’ vs. ‘Global’ Suggests interactions, transactions, and processes in planetary relations beyond the nation-state Non-state actors (e.g. NGOs, IGOs, social movements, etc.) increasingly influential Increased transactions and power of MNCs
11. ** Changes in i) Problems themselves, ii) Structure of Int’l system, and iii) Agency
12. State Sovereignty (problem or solution?) Sovereignty: the right of the state government to exercise discretionary power over its territory Treaty of Westphalia (1648) Principle Rt of self-determination w/in territory Principle Equality b/w states Nonintervention Resulted in “power balancing” Provides the basis for int’l politics and international law (both enshrine this norm)
13. Transformations in Global System Dramatic increase in Interdependencies: due to processes of globalization Increased Complexity & Networks: Despite the continued adherence to the legal right to sovereignty, states are in practice becoming increasingly enmeshed in and constrained by networks of interdependencies, collaborative arrangements, and subjected to pressure via internationally agreed norms. Technoscience & Neoliberal Economics: flows of globalization are primarily influenced by technology & science and neoliberal economic organization Problem Complexity: globalization has intensified and expanded the scope, scale and intensity of problems Increasing collective action problems Proliferation of New Political Actors: Within this enlarged public space, there has been a dramatic proliferation of new political actors, and/or old actors with new roles—specifically the enhanced role of ‘sovereignty-free’ actors who act in transnational political space. Increased power & influence of MNCs: expansion of power and proliferation of corporations at the global level has undermined state authority and while law and norms apply to states, MNCs can often bypass international conforming standards (regulation)
14. Consequences of Transformations This has led totensions in the system, particularly between state sovereignty and: 1) transnational (non-state) influences, and 2) collective action problems. These transformations have “fragmented” political authority at the global level—who controls what and by how much 2 Gaps in Governance 1. Growing concern of who has political authority—are individuals democratically represented in the system (i.e. a ‘participatory gap’); 2. Spatial gap between the transformations of globalization and the ability for effective social and political responses (i.e. an ‘operational gap’). Thus as the global political system has become more fragmented, there is a growing ‘gap’ between value creation and value allocation.
15. Emergence of Global Governance Global Governance: primarily governmental relationships, but now includes NGOs, citizens’ movements, MNCs, and the global capital mkt. Interacting with these are global mass media (controlled by whom?) Governance is the many ways individuals and institutions, public and private, manage their common affairs…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.
16. Governance v. Government . . . governance is not synonymous with government. Both refer to purposive behavior, to goal-oriented activities, to systems of rule; but government suggests activities that are backed by formal authority, by police powers to insure the implementation of duly constituted policies, whereas governance refers to activities backed by shared goals that may or may not derive from legal and formally prescribed responsibilities and that do not necessarily rely on police powers to overcome defiance and attain compliance. Governance, in other words, is a more encompassing phenomenon than government. It embraces governmental institutions, but it also subsumes informal, non-governmental mechanisms whereby those persons andorganizations within its purview move ahead, satisfy needs, and fulfill their wants. --James Rosenau 1992 Governance without Government
17. Global Governance Defined GG: Evolving system of (formal & informal) political coordination—across multiple levels (global to local) among multiple actors (public and private agencies) seeking to resolve collective action probs Greater role for TN norms, rules and politics Loose framework of global regulation, both institutional and normative, constraining conduct NOT a top down hierarchical structure of authority
18. Shortfalls of GG Politics of Glob Governance is not only about who gets included in decisionmaking, but also about who gets excluded (and at what price), as well as institutional bias and privilege. Ex/ “economic liberalism and the increased influence of multilateral institutions have only intensified ‘market driven poverty’ for the vast majority of Africans, Eastern Europeans, and others whose states are failing” (p.29) Growing gap between rich & poor, failure to address global environmental issues, concerns about labor conditions in many areas, and the lack of direct intervention for crimes against humanity/genocide are clear shortfalls of GG.
19. “Pieces” of GG Int’l Structures and mechanisms (IGOs and NGOs) International rules and laws (treaties, customary law, judicial decisions) International Norms (“soft law”) International regimes Ad hoc groups, arrangements and global conferences Private and hybrid public-private governance
20. ‘law’ or ‘rules’ Binding (usually enforceable) rules of conduct or procedure Based on principles of fairness, justice, accountability, creating order, etc. Subject to negotiation of/by community (local, domestic, and international)—socially constructed or determined Why is this problematic at the int’l/global level?
21. ‘International law’ Binding rules or conduct between and amongst states Known as ‘public international law’ 5 sources: treaties, customary, legal ops, judicial decisions, and general principles) Treaties compose the largest portion of IL. Limitations: 1. only applies to states (except in cases of war crimes and crimes against humanity). E.g. limited ability to bind individuals, MNCs, NGOs, paramilitary forces, terrorists or int’l criminals. 2. lack of enforcement mechanisms 3. role of state self interest in shaping or accepting treaties or int’l rules.
22. ‘norms’ (‘soft law’) Norms: Standard patterns of behavior (based on ‘shared expectations’) that arise to rules informally observed and enforced—particularly by states Can be indoctrinated as soft-law, which has the potential to ‘harden’ through codification into law Human rts norms, labor rts norms, outer space, sustainable development Soft law can take many forms, esp when formal agr is not realized Norms at international level are influential, and important; in many instances scholars argue they are more important than laws. Why? Can develop into ‘customary law’ with sufficient practice of norms
23. International ‘regime’ Regime: i. set of rules (laws), principles, cultural or social norms, and decision-making procedures (discussing & implementing policy) ii. that regulate a specific issue (e.g. climate, human rights, nonproliferation, whaling) and iii. interacts (linkages) with society at multiple levels. International regimes often form in response to a need to coordinate behavior among countries and organizations around an issue. The organizations can operate at any level of governance: local to global. Examples: Global Financial or Trade regimes; human rights; or climate change
24. Global Civil Society Global Civil Society: political arena in which citizens and private ints collaborate across borders to advance mutual goals OR to make gov’ts and/or int’l institutions accountable Social Movements: people with diffuse sense of collective identity, solidarity, and common purpose leading to collective political behavior (e.g. environ, women’s mvmt)
25. Actors in a Global Context Nonstate actors: any international actor not representing a state/gov’t IOs (international orgs): orgs that operate in a transnational or international context (IGOs + INGOs) Transnational Actors (TNAs): any civil society actors from one country that has relations with any actor from another country or int’l organization (NGOs + MNCs) Nongovernmental Orgs (NGOs): private, voluntary orgs whose members are indivs or associations that come together to achieve a common purpose (e.g. usually they advocate a particular cause: HRs, peace, environment, climate change, etc). IGOs: orgs that include at least 3 states among their membership, have activities with multiple states, and are created through a formal intergov’tal agreement.
26. IGOs Intergovernental Orgs ~240 IGOs in operation Range in size from 3 (NAFTA) to 190 (Int’l Postal Union) Can be regionally based (e.g. OAS: Org of American States) Or from all geographic regions (e.g. World Bank) Specific functions (OPEC) or multiple tasks (UN) Examples Global: UN, WHO, WTO Regional: AU, EU Functions: informational (gather, analyze, disseminate), Forums, normative (standard building), rule creation (drafting treaties), rule supervision (compliance), operational (allocating resources and tech assistance).
27. NGOs as Political Actors The creation of a global economy leads to the globalization of unions, commercial bodies, the professions, and scientists (epistemic communities) in int’l NGOs, which participate in the relevant international regimes. Gov’ts can no longer control the flow of info across the borders of their country. Improved communications make it more likely that NGOs will operate transnationally and make it very simple and cheap for them to do so.
28. Proliferation of NGOs
29. MNCs as Political Actors MNC (multinational corporation): company that has affiliates in foreign countries and/or operates globally Power of MNCs: change transfer prices (export price—which doesn’t have to coordinate with mkt price) means that they can evade taxation or government controls on their international financial transactions. individual governments cannot control their country’s international trade Can move production from one country to another means individual governments are constrained in regulating and taxing companies. Result:gov’ts lose sovereignty and regulation now has to be exercised at the global level rather than by gov’ts acting independently.
30. Transforming Global Polity MNCs gain influence through the control of economic resources—particularly in ability to influence actors throughout the world NGOs gain influence through possessing information, gaining high status and communicating effectively MNCs and NGOs have been the main source of economic and political change in global politics
31. Transforming Global Polity * POLITICS: is the “Authoritative Allocation of Values” * - Global Polity is transforming away from state as sole allocator of values to multiplicity of actors on multiple levels allocating values—’system of networks’
32. YES (Krasner) Keen survival instinct and will adapt to Glob US, China & Japan have neither the interest nor inclination to abandon domestic autonomy Econ globalization and TN norms do alter the SCOPE of the state, but state will remain focus of IR NO (Weir) Recent acts of mass violence demonstrate states have become obselete Int’l agrs are critical to new world, b/c although sometime ineffective, raises people’s consciousness States CANNOT deal with global pollution, climate change, WMDs, and increasing econ interdep Success of EU Will State Sovereignty Survive Globalism?
33. United Nations UN CHARTER: Founding document of the UN based on principles of equality and self-determination (Art 1.2) states retain sovereignty and enjoy independence and territorial integrity (2.7) “SC may take action…necessary to maintain or restore int’l peace & security (42) GENERAL ASSEMBLY: comprised of all member states, allocates UN funds, nonbinding resolutions, and various development programs UN SECURITY COUNCIL: Body of 5 great powers (w/ veto power) and ten rotating members, which make binding decisions about peace and security and dispatching peacekeeping forces US, Russia, China, France, UK UN SECRETARIAT: UN’s executive branch, led by the secretary-general (Kofi Anan) ECOSOC: (Econ and Social Council)—under the authority of GA, coordinates the econ and social work of the UN, including with NGOs providing a critical link with global civil society UNDP: UN Development Program UNICEF: UN Int’l Children’s Emergency Fund WHO (World Health Org); ILO (Int’l Labor Org); FAO (Food & Ag Org)
34. Youtubevid: Global Governance Transnationalism (Glenn Beck) Koh: Role of Int’l Law in US Scalia: Role of Int’l Law