Regulation from Above: International Organization & International Law

Transcription

1 Regulation from Above: International Organization & International Law

2 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

3 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

4 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

5 Global governance is described as the answer 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 governance structures

6 Theories of Global Regulation 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? How are global regulations made? Who is the authorized author or such regulations? How are global regulations enforced? TRIPS is an example of global regulation

7 Why is cooperative global regulation needed? 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

8 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

9 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

10 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

11 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

12 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

13 At the international level, such arrangements 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.

14 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)

15 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.

16 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

17 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

18 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?

19 As always, implementation 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 ( collective action problem )

20 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

21 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