The empire of standards, law's migration, and emerging hierarchies in international relations

According to the functionalist paradigm - form follows function - and modern system theory, the “de-nationalization” of politics and the ever-denser network of regimes have - if they have not led to the demise of the state - nevertheless outflanked it and broken its monopoly of setting the terms for interactions. Evidence is quickly assembled. We had as a first wave the growth of international bureaus as technological and economic changes in the nineteenth century leading to a world market (Murphy 1994). But there was also the recognition that international politics had to be managed continuously and not only through the peace agreements after system-wide wars. Thus a “concert” emerged in which the “Great Powers” functioned as managers, a role that was later institutionalized through permanent membership in the Security Council of the UN (Schroeder 1994).

This story of the “growth” of international organization - taken in its generic meaning of the collective singular - has been told many times. Here the functionalist part of the narrative is presented in a more-or-less technology-driven analysis, while the “managerial” version focuses on new forms of international organization, such as collective security and the transplantation of the “regulatory state” after WWII to the international level (Slaughter 1993).

Whatever the differences in emphasis are, the larger storyline of these analyses is that of a “progressing” (if no longer simply “progressive”) empowerment of international institutions, whereby only Slaughter’s “governmental networks” provides, in a way, a counter-thesis (Slaughter 1997; 2004). Here the shift from “government” to governance also occurs by downgrading representative political institutions while emphasizing the new managerial or administrative style of law, with dispute resolution by legal means taking the pride of place. Actual power accrues less to the various existing international organizations than to the governmental networks that emerge from the disaggregation of the state. Thus politics is more or less superseded by the expertocracy of administrators and, very importantly, of judges who have to adjudicate the disputes among them. Judges form also such an international network, but in a Freudian slip Slaughter maintains that they represent a “community”. Although concepts are not indefinitely substitutable, as the contorted semantics of “community” here suggests, Slaughter follows here only a familiar trend among certain international lawyers. They often see a move from merely multilateral forms of association to a world “community”, thereby reversing the direction of the traditional narrative of the enlightenment where “society” displaced communal forms of association (Allott 2002; Tomuschat 2008).

However, instead of a simple story of progress, driven by technology or perhaps by a Kantian cunning of nature, an investigation of the “evolution” or transformative change must examine in greater detail how this process occurs and how within it the “old” and the “new” are reconfigured. Here territoriality serves as an important prism through which the changes of international and state structures can be studied. This seems more promising than arguing that “sovereignty” has “moved” (e.g., to Brussels), where it must now somewhere lie around, or that the functional imperatives of autonomous self-reproducing systems are driving the contemporary transformations (Werner and de Wilde 2001). Missing in those accounts is a more fine-grained analysis of how these changes actually come about. Instead, vague notions of progress, functionality, or “evolution” are invoked, which hide the importance of the choices made and mystify power by representing the results as necessary or “logical” outcomes of circumstances or trends.

Despite the existence of a good number of case studies on the formation of regimes in different issue areas which defy such grand narratives or “theories”,7 the interplay between the domestic structures of hegemonic powers and international regimes has only recently become a focus of analysis.8 Here we quickly come across some surprises. Take the case of intellectual property rights where we had a “functional” international organization; that is, the World Intellectual Property Organization (WIPO) in Geneva. However, the subsequent regime did not follow this functional logic but became, as the TRIPS agreement, part of the WTO. This, at first rather odd, result needs an explanation that can be provided only by carefully examining some important turning points in the regime’s development. As is well known, the United States (with the help of Europe and some other players) was successful in placing intellectual property rights on the trade agenda. This occurred against the determined opposition of the developing countries and parts of the UN, which wanted a broad multilateral treaty in this issue area. Thus, while the distributional results of the regime are perhaps not unexpected, given the bargaining power of the United States, the placement of the issue within “trade” certainly is, because it contradicts “functionalist” theories.

As the history of this case shows, it was not only “politics” rather than “function” that was important, but also it was a change in the domestic structures rather than in “the field” which accounted for the result. The decisive steps had been that business lobbying in the 1980s had changed the fragmented US intellectual property regime by empowering the US Trade Representative to include intellectual property criteria in his decision for granting other countries access to the US market. Having hit on an institutional solution that solved much of the compliance problem plaguing virtually every regime, the US Trade Representative emerged in US trade law (amended in 1984 and 1988) as the dominant institution for aggregating interests (Bello and Hol- mer 1988). Subsequent lobbying by the Intellectual Property Committee (IPC), an organization of sixteen US CEOs, placed intellectual property rights on the agenda of the Uruguay Round. This nixed all attempts of dealing with these issues through the State Department and negotiating a treaty within the WIPO framework. Having first developed a strong domestic institutional anchor, the resulting regime reflected not only US interests but also interests that were filtered through and interpreted by trade institutions rather than through some “copyright or trademark” lenses through which the US Patent and Trademark Office or the US Copyright Office looked and for which the State Department was a natural ally (Bach 2010).

One could now draw the conclusion - for “realists” hardly surprising - that the “dominant” actor simply can have its cake and eat it too, and that the more painstaking effort of tracing the development of certain regimes adds perhaps color to the story but does not fundamentally alter the plot. Such a conclusion is hasty and an invitation to do shoddy empirical work. This can be seen from the next case: a policy controversy within the United States concerning the European Union’s REACH initiative. The case concerns the standards regulating the chemical industry and the implementation of environmental protection mandates, which results from the “concurrent authority” vested by the Constitution in the federal government and the states in certain areas.

As already mentioned, the far-reaching information requirements of the act have been welcomed by NGOs in the United States and elsewhere, but they were promptly condemned by the federal government, which considered the implementation of the act too costly and unworkable because of its complexity REACH also engendered a national debate about the sufficiency of the standards enshrined in the Federal Toxic Substances Control Act of 1976, which is administered by the Environmental Protection Agency Both California and Massachusetts considered bills agreeing with REACH standards, rather than the existing US regulation, when dealing with the identification of “Substances of Very High Concern” (Scott 2009).

Precisely because the US federal systems allow for plural law-making, it creates “diverse points of entry” for laws from abroad and for reconfiguring the nexus between the global and the local. While this process might not exhibit the clear “logic” of functionalism or Luhmannian systems theory, or perhaps that of a teleology, it does show how the transformative changes, subsumed under the category of “globalization”, have decisively altered what counts as a local, federal, or foreign issue.

A different pattern emerges again when we look at attempts of states to transform their environment by making their laws and “practices” binding without asserting direct jurisdiction or incorporating those areas, creating thus normative hierarchies that escape attention by being covered by the catch-all phrase of “global governance”. The efforts of the United States to embed certain accounting practices and “transparency” requirements in other legal orders, or in the qualifying criteria for assistance by international organizations, are perhaps rightly considered part of a hegemonic project. The fact that the European Union’s neighborhood policy contains similar traits indicates, however, that something more fundamental is going on, for which the vocabulary of exclusive territoriality and the distinctions between international anarchy and domestic hierarchy are too limited.

Could it be that this dense network of international organizations - that are in a way established “above” the states, and used for stabilizing the expectations of both public and private actors - represents an organizational form that can only be grasped by taking “hierarchy” in international relations analysis more seriously (Lake 2009)? Perhaps the idea of hierarchy has also to be freed from its spatial representation as “levels”. Today the local and the global are not “located” at different levels. They are constantly being reconfigured by the links that connect a decision- center with other actors and issue areas across the globe. Thus, connectivity, not “proximity”, is now of decisive importance.

Such a research program would have to look at the global processes and their abstract logic of reproduction. But it also must look, much closer to the ground, at the laboratories where the local and the global, the concrete and the abstract meet and enable the center to mold its environment. Any political order that emerges in such “laboratories” is not the result of negotiation and reciprocity. Increasingly it is a function not only of “structural” but also of “productive power”, in Barnett and Duvall’s (2005) sense, operating through “diffuse social relations of constitution”.

Here a quick look at the European Union’s neighborhood policy is instructive. Its aim is to redo adjacent societies in the image of the European Union’s constitutional complex (acquis communautaire), even if they are not marked for later accession. The result is the same strange mix of administrative and legal practices - observable at the EU level too - by which the atrophied institutions of democratic representation are used only for legitimizing the decisions of the center, “winking them through” the legislative processes, which convert the external signal into “internal”, supposedly “autonomous” acts. In this transformation, law is of course the main instrument, but its role is not one of an autonomous system dealing with the “irritations” by reproducing itself according to the underlying code a la Luhmann. It is rather the deliberate transformation of all other systems making up the environment, masking the exercise of power behind the vague concepts of “governance”, “the rule of law”, or “functionality” and “efficiency”. Here the old templates of territoriality, functionality, of levels and the global and the local are no longer of much help, as the old distinctions have lost the power of decoding what occurs in a “politics of law” that dramatically reconfigures the “world of our making”.

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