a critical view of global governance

A Critical View of Global Governance

James W. Davis

University of St. Gallen

Abstract: This article suggests that various dimensions of the larger project of global governance areincoherent and illegitimate. Three dimensions of global governance – the provision of global publicgoods; processes of transnational regulation; and efforts to spread universal human rights – areexamined and found to be deficient in terms of the ability of affected populations to participate indecisions over value trade-offs. Citizens’ rights to participation in democratic processes often havebeen diminished as the locus of political decision making has shifted: on the one hand, to institutionsbeyond the territorial borders of the nation state; on the other, away from political institutions andtowards ‘‘global civil society,’’ which seems oddly intolerant of diversity. But if global governance isanti-pluralist and disenfranchising, it risks devolving into an imperial project. Hence, the paper con-cludes with a plea for a return to international politics as a control on the threat of empire.

Keywords: Global governance, Human rights, Transnational regulation, Transnational politics,Accountability

Introduction

Global governance – or governance beyond the nation state – is an empirical fact. It is here,observable, and characterized by a variety of state and non-state actors engaged in wide-ranging processes of policy making across numerous issue areas that transcend nationalborders. We speak of governance because these diverse efforts to manage the consequencesor indeed assert political control over processes of globalization take place without anythingresembling a formal, constitutional world government (Rosenau and Czempiel 1992).Indeed, what stands out in any analysis of global governance is the lack of authoritativeinstitutions with truly global reach (Keohane 2001). Instead, we see a plethora of socialinstitutions of limited substantive or territorial scope.

In spite of the fragmentation of institutions of trans- and supranational authority, sup-porters of the emerging contours of global governance herald its potential for enhancingindividual autonomy, avenues for political participation, as well as the more efficient andeffective provision of essential public goods (Cabrara 2010; Marchetti 2008; Ruggie 2004).Because global governance is not truly global, however, positive assessments of the currentstate of affairs seem premature, at least from the perspective of democratic legitimacy. Insti-tutional efficiency and increased participation are not per se political virtues. Rather, thebenefits of efficiency and participation need to be evaluated in specific political contexts.When the locus of decision-making and access thereto are segmented, as is the case in func-tional and ‘‘stakeholder’’ models of governance, the ability of citizens to make reasonedtrade-offs across the wide range of competing values is diminished. And when citizen partic-ipation is limited, mechanisms of accountability are weak if not absent. Hence, independentof any claims for efficiency or increased participation, ‘‘we first need to address the

Swiss Political Science Review 18(2): 272–286 doi:10.1111/j.1662-6370.2012.02069.x

� 2012 Swiss Political Science Association

fundamental question of political agency’’ when discussing the legitimacy of emerging formsof global governance (Marchetti, forthcoming).

In what follows, I do not attempt to critique existing normative models of global demo-cratic governance or develop an alternative. Indeed, this would presuppose a coherenttypology of competing normative models that today is lacking (Marchetti 2009). My goal isnarrower and more conservative. Recognizing the empirical fact of global governance, Isuggest that existing institutions and processes are incoherent and illegitimate, if legitimacyis to be defined in terms of citizens’ participation in decisions where trade-offs amongstcompeting values take place. To substantiate my claim, I analyze three such dimensions –the provision of global public goods; processes of transnational regulation; and efforts tospread universal human rights – and demonstrate that in each, the ability of affected popu-lations to participate in decisions over value trade-offs is not given. Instead, citizens’ rightsto participation in democratic processes more often have been diminished as the locus ofpolitical decision making has shifted: on the one hand, to institutions beyond the territorialborders of the nation state; on the other, away from political institutions and towards ‘‘glo-bal civil society.’’ The former development has tended to strengthen the autonomy of theexecutive branch of government vis-a-vis national legislatures, whereas civil society, to thedegree that it ‘‘acts’’, does so outside the representative framework of democratic institu-tions (Chandler 2003).

Consequently, emergent practices of global governance seem far less empowering, eman-cipating or progressive than many aver. In pursuit of efficient processes, transnational elitedeliberation has supplanted citizen debate and truly representative institutions. Universalmoral claims are being asserted without regard for the pervasive need to make valuetrade-offs in light of local exigencies, thus denying or denigrating the value of a worldcomprised of a variety of political projects. But if global governance in its current form isanti-pluralist and disenfranchising, it risks devolving into an imperial project. Hence, thepaper concludes with a plea for a return to international politics as a control on the threatof empire.

Shifting Borders of the Public-Private Divide and the Provision of ‘‘Public’’ ‘‘Goods’’

Traditional approaches to understanding politics distinguished between the domestic andinternational realms. The former was conceived as hierarchically ordered and devoted tothe provision of public goods – security chief amongst these – within a defined territory.The latter realm was conceived in terms of anarchy – the absence of hierarchy – and theprovision of public goods seen to reflect either the unintended byproduct of the self-regard-ing actions of sovereign nation states or the interests of a hegemon (Waltz 1979; Gilpin1987; Krasner 1976). To the extent that one could speak at all of a public sphere beyondthe borders of sovereign states, it was international; that is, comprised of the states them-selves and issues of common concern.

By contrast, contemporary world politics seems increasingly to be characterized by the‘‘erosion of boundaries separating what lies inside a government and its administration andwhat lies outside them’’ (Shapiro 2001: 369). Consequently, previously well-established rolesand responsibilities are subject to renegotiation and new definition. The classical distinctionbetween the domestic and global public spheres is being eroded by the emergence of newtechnologies and economies of transportation and communication as well as new actorsand forms of organization and political mobilization which those technological innovationsmake possible.

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Thus, John Gerard Ruggie describes ‘‘a newly emerging public domain that is no longercoterminous with the system of states.’’ The actors within this new public domain are heter-ogeneous and include states, NGOs and other civil society organizations (CSOs), as well astransnational corporations (TNCs), which are increasingly assuming responsibility for theprovision of public goods. ‘‘The effect of the new global public domain is not to replacestates, but to embed systems of governance in broader global frameworks of social capacityand agency that did not previously exist’’ (Ruggie 2004: 519).

Although in the first instance interested in outlining the defining characteristics of thisemerging global public domain, Ruggie nonetheless casts contemporary developments in apositive light: ‘‘I want to suggest that this development potentially also may provide a his-torically progressive platform by creating a more inclusive institutional arena in which, andsites from which, other social actors including CSOs, international organizations and evenstates can graft their pursuit of broader social agendas onto the global reach and capacityof TNCs’’ (Ruggie 2004: 503). He argues that efforts such as the UN Global Compact, initi-ated by former UN Secretary-General Kofi Anan, have shown some success in turningTNCs into responsible global actors as these increasingly adopt a repertoire of ‘‘good prac-tices.’’ The results have included otherwise inaccessible education, medical and financial ser-vices for countless individuals in states where public institutional capacity is limited, orpolitical will is lacking.

Without wishing to condemn these specific developments or to deny they may improvethe prospects of those individuals who enjoy the goods and services provided by ‘‘responsi-ble’’ TNCs in developing countries, I nonetheless maintain that a direct link between shift-ing the responsibility for the provision of public goods onto private actors or evenpublic ⁄private partnerships and an improvement of the commonweal cannot be taken forgranted. Rather, the developments Ruggie rather approvingly chronicles raise a number ofimportant normative questions and should be subjected to careful critical analysis. Becausemy purpose is one of illustration, I will limit the discussion to three.

The first question relates to the political agenda of this new and global res publica. If,as Ruggie claims, ‘‘the arena in which ‘the authoritative allocation of values in societies’now takes place increasingly reaches beyond the confines of national boundaries, and asmall but growing fraction of norms and rules governing relations among social actors ofall types (states, international agencies, firms, and of civil society) are based in and pur-sued through transnational channels and processes,’’ how do we ensure that all membersof the res publica are granted equal and at least potentially effective access to these politi-cal channels and processes (Ruggie 2004: 521)? At present, such guarantees are lacking.Individuals do not enjoy a right to advocacy in the processes Ruggie chronicles. Rather,they are dependent on the agency of CSOs for the articulation of their interests and pref-erences and the goodwill of global convenors, who at best can endeavor to include all ofthe relevant ‘‘stakeholders’’ in any given ‘‘deliberation.’’ Such procedures under certaincircumstances may produce outcomes consistent with the wishes of the majority, whilealso respecting of the legitimate interests of minorities, but we cannot assume that this willalways or even often be the case.

For example, to what degree do the principles informing initiatives such as the UN Secre-tary-General’s Global Compact reflect the values, interests and preferences of those individ-uals for whom they are promulgated? True, societies in Sub-Saharan Africa will benefitfrom the access to anti-retroviral therapies offered to the HIV-infected employees of respon-sible transnational corporations. But if given the chance to match private funds with publicneeds, there is no guarantee that these societies would have placed AIDS treatment above

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other public-health goals, such as clean water or malaria prevention (and the list of under-provided public goods in these societies extends well beyond the public health sector).

What is missing from constructions such as Ruggie’s is a clear definition of the relevantpublic and an articulation of persuasive principles according to which desirable goods canbe identified. The problem is not so much the definition of public goods as those whichexhibit non-rivalry in consumption and non-excludability in enjoyment (although uponclose examination many good commonly held to be public come up short on one or both ofthe constitutive dimensions) but rather the fact that the number of goods exhibiting thesecharacteristics is large and the utilities attached by individuals or groups to them are likelyto vary. Given that individual actors are likely to differ with respect to priorities, their will-ingness to contribute to the provision of any particular public good absent state coercionwill depend on their private interests (which may reflect an appraisal of the size and scopeof externalities the provision of the public good is expected to generate), personal senti-ments, and the resources at their disposal.1

Hence, before we can speak of who should be responsible for the provision of a givenpublic good, we need to identify the relevant public that is entitled to define what it regardsto be good; that is, the group entitled to define the range of public goods that could bedelivered and to prioritize their provision. Prioritization is necessity not only because of thepervasive scarcity of those financial and human resources requisite to the provision of pub-lic goods, but also because the provision of one such good may impinge on the provision orfull enjoyment of others. Thus, to ensure clean water (technically speaking a common poolresource rather than pure public good), public access to lakes and rivers may be limited,and the range of public activities allowed in or around these waters severely restricted. Or,in pursuit of public health, access to and enjoyment of ‘‘infested’’ public lands may berestricted. The question again is: who decides which values or interests should take prece-dence?

An approach to global governance built on the participation of CSOs and stake holdersis inadequate to the task. For in casting democratic politics primarily in terms of a civic cul-ture of association, participation and mobilization, it downplays or even neglects the factthat to be effective, governance in the end must produce a decision when interests, prefer-ences or values conflict (Urbinati 2003: 69). An authoritative allocation of values requires abinding (and ideally enforceable) decision, not a set of policy guidelines or a code of goodconduct. Moreover, effective governance presumes that decisions are binding on everyone,not only those who participated in the processes leading to them. Hence, as Nadia Urbinatihas pointed out, there is an important conceptual (and indeed constitutional) differencebetween ‘‘the people’’ as a collective political subject and ‘‘the population’’ that is directlyaffected by any given decision (Urbinati 2003: 80). The former proceeds from the proposi-tion that democratic governance is conducted in our name and that certain issues as a mat-ter of principle concern even those not directly affected. One need not condone thepolemical tone of the larger critique in order to concede Jeremy Rabkin’s basic argumentthat global governance lacks fundamental dimensions of constitutional and hence demo-cratic accountability:

1 The locus classicus is Mancur Olson (1971). For influential extensions to the field of International Relations, see

Kindleberger (1981); and Gilpin (1987). For recent analyses of the global public goods problematic, see Barrett

(2007); Holzinger (2008); Kaul et al. (1999); and Sandler (2004). For a useful survey of recent literature, see Kocks

(2010).



In democratic countries, a legislature literally ‘embodies’ the diversity of the nation, so that rep-

resentatives of many different localities, different interests, and different opinions, can claim, in

the end, to speak as one body with authority to decide for the whole. A legislature is an institu-

tional monument to differences among voters as well as to their willingness to be bound, in the

end, by a common rule. Global governance not only thwarts or distorts the policy impulses of

legislatures, but denigrates the principle that stands behind legislative authority – that a diverse

electorate will accept the results of an ultimate legislative decision so that ‘we’ can be governed

in common. (Rabkin 2007: 42).

The second question of concern relates to how we can ensure equitable access to publicgoods if their provision – either by design or emergent practice – is shifting from the statetoward a multiplicity of international ⁄ transnational public, semi-public, and private actors.The question already emerges in national contexts, where the enjoyment of public goods isoften limited by social inequalities. But the implications of shifting the responsibility for theprovision of public goods to TNCs and other non-state actors for access to those goods aresignificant. For example, it is not self-evident that the provision of sorely needed publicgoods should be limited to those geographic areas of the global res publica in which TNCsjust happen to be active. Before the normative implications of such developments in the glo-bal public sphere have been addressed, however, positive pronouncements relating to theirpotential for promoting a progressive social agenda would appear to be somewhatpremature.2

So the challenge would appear to be one of ensuring that the provision of public goodsreflects public participation in processes directed at defining the good life. But what sorts ofinstitutions or procedures could produce such outcomes? Even if we were to agree that theanswers to such questions should be consistent with the basic tenets of democratic theory,they are unlikely to be straightforward or self-evident. Proponents of cosmopolitan or cos-mopolitical governance call for the establishment of new global institutions that wouldallow the participation of individuals in global governance independent of political circum-stances in their home countries (Held 1995; Archibugi 2003). To widen the scope of partici-pation in political deliberations to everyone on the planet, however, is impractical,inefficient, and presumes a degree of shared values or a common ‘‘life world’’ that today islacking. After all, the goal is liberal democracy – democracy that protects individual andminority rights (Buchanan and Keohane 2006). But to limit the range of options and posi-tions articulated in global deliberations to the preferences of those who 1) happen to have,and can therefore provide, the resources necessary for the provision of public goods; and 2)those who can employ adequate resources to mobilization, organization and ultimatelyeffectively articulation of their positions in policy deliberations would amount to a rule of‘‘no participation without taxation.’’ In light of the externalities generated by the outcomesof such deliberations, such a rule is clearly illegitimate and must be rejected.

My third point relates to the current enthusiasm for cross-sectoral partnerships (or themore narrow phenomenon of public-private partnerships) – whether in national or transna-tional contexts – which appears to be driven by a desire to redress the widespread andsomewhat paradoxical phenomenon of diminished state capacity coupled with the apparentrising inefficiencies of an ever expanding welfare state. In crossing sectors one seeks to bene-fit from the perceived advantages of each. Hence, fiscally constrained states outsource in aneffort to benefit from the efficiencies produced by market forces. Humanitarian states and

2 For a similar conclusion, see Blowfield (2005).

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intergovernmental organizations provide resources to NGOs, which are regarded to be freefrom the pernicious effects of self-interest, in pursuit of depoliticized and more effectivedevelopment assistance. And as discussed above, the Secretary General promulgates a glo-bal code of conduct that encourages private actors to provide public goods in exchange forthe appellation ‘‘good corporate citizen.’’

But if the borders and logics of the state, market and humanitarian sectors are systemati-cally transgressed, can we be certain that the sector-specific mechanisms for preventing anaccumulation of overwhelming power – competition in the marketplace; elections as well as‘‘checks and balances’’ in the state; and a not-for-profit humanitarian ethos in the case ofNGOs – will continue to function as desired (Eckl 2010)? Experience demonstrates thatinstead of importing perceived positive features of one sector into another, expanding thedomain of a given sector by means of cross-sectoral partnerships frequently transforms thebehavior of actors in multiple sectors with results that may diminish or negate the intendedbenefits.3 Students of transactions economics have demonstrated that when the costs of con-tracting and contract monitoring are included in the calculation, the savings desired fromthe outsourcing of the provision of public services often disappear. Moreover, when consid-ering whether to bid on public contracts, private actors have strong incentives to seek outprojects that offer what are essentially monopoly rents (Muhlenkamp 2004).

Transnational Regulations and Technocratic Governance

Persuaded by early functionalist arguments that modern societies create unique problemsbest addressed by technical experts rather than politicians, some global governance opti-mists champion the emergence and spread of issue-specific transnational regulatory regimesand the design of international institutions directed toward the neutral application of normsand standards to promote desired ends and adjudicate disputes (Mitrany 1966).4 In keepingwith the underlying functionalist logic, the process itself is held to generate strong positivefeedback effects. Thus, Michael Zurn and his colleagues argue that the successful liberaliza-tion of the global economy combined with developments in the technology and cost ofglobal communication and transportation has unleashed a process of societal denationaliza-tion which accelerates growth in the volume and density of cross-border interactions. Thedecoupling of society from the nation state renders many of the postwar institutions ofinternational governance ineffective and obsolete and subsequently gives rise to the demandfor the further development of specialized trans- and supranational institutions (Zurn et al.2007; O’Brien 2000: 6–10).

Even if we assume that the description of empirical developments is accurate,5 the opti-mistic appraisal of global governance based on a plethora of specialized institutions popu-lated by technical experts freed from the pernicious effects of national political interestsseems misplaced. The principle shortcoming of such approaches is the belief in both thepossibility of depoliticizing a wide range of cross-border social activities and the effective-ness of technical experts to coordinate cooperation and adjudicate conflicts on the basis ofrationally designed regulatory regimes.

3 For a suggestive study based on NGO behavior in the United States, see Weisbrod (1988).4 For a strong defense of the approach in the context of the ongoing current financial crisis, see Kawai, Petri and

Sisli-Ciamarra (2009).5 But see Davis (2007).



Consider, for example, the recurring disputes between American biotechnology compa-nies and European coalitions of farmers, ecology advocates, proponents of organic foods,and some members of the health sector. The former are interested in selling genetically‘‘enhanced’’ seeds that promise higher crop yields with lower utilization of water resourcesand dramatically reduced reliance on pesticides. One might be forgiven for assuming thatsuch products would be welcomed by those who otherwise advocate for water conservationand alternatives to broad application of chemical agents. Yet this is not the case. Rather,the potential threats posed by such new organisms to biodiversity, local ecosystems, publichealth and the balance between the market power of farmers and seed producers have pro-duced a coalition aimed at minimizing the market penetration of genetically enhancedcrops. For their part, producers point to numerous studies purported to demonstrate thecompatibility of genetically modified organisms with biodiversity, local ecosystems and pub-lic health, and charge Europeans with creating a smokescreen designed to conceal protec-tionist policies that are inconsistent with GATT and WTO obligations.

The example demonstrates a fundamental weakness in the functionalist position.Although functionalism anticipates the demand for governance, it cannot tell us muchabout how demands will be met, which of a number of possible governance arrangementswill prevail, and ultimately whose demands should or will receive priority. Before we canconsult experts to devise technical solutions or apply regulations in support of cooperativeoutcomes, we need to establish which issue is to be decided. Since many of the issues ofconcern are multidimensional, we may need to establish a hierarchy amongst the manydimensions in order to move forward. And when issues are multidimensional and ambigu-ous, we may not be able to establish the essence of a dispute merely by careful observationand precise empirical description. Unfortunately, nature – or social reality – does not speakto us directly. Rather, the question ‘‘Of what is this an instance?’’ must be establishedthrough political processes in which one or the other party to a dispute may enjoy a privi-leged position. It thus comes as no surprise that lobby and interest groups devote enormousmaterial and intellectual resources in pursuit of a preferred framing of contentious issues(Payne 2001; White 2009).

Related to the rather naıve assumption that the essence of an issue is somehow self-evi-dent or readily ascertainable by means of proper diagnostic procedures is the assumptionthat solutions to social disputes can be defined and codified ex ante. A byproduct of the‘‘good governance’’ discourse of the past decade, the emphasis on catalogues of best prac-tices that can be applied in a context-independent fashion neglects the importance of thosefeatures specific to a particular dispute that may condition actors’ acceptance of a proposedsolution. But as has been demonstrated elsewhere, the effects of global norms are often con-ditioned by local cultural understandings and political processes (Cortell and Davis 1996;2005). Hence, the question of ‘‘what works’’ is not only a function of technical knowledgebut knowledge of local customs, traditions and political structures.6

That even explicit rules need to be interpreted in light of the ‘‘facts’’ of a given disputewill of course come as no surprise to lawyers and legal theorists. Hence it is understandablethat a common response to arguments such as these is to champion the proliferation oftrans- and supranational courts, tribunals and arbitration panels. But the emergence of aheteronomy of such legal institutions presents problems of its own. While the ability ofcourts with territorial jurisdiction to solve the problems posed by the multidimensionality

6 For a similar discussion, see Kratochwil (2011). For an empirical example of the problems involved with applying

best practices in multiple cultural contexts, see Gutner (2010).

278 James W. Davis


of social conflicts has been apparent at least since Cassis de Dijon (ECJ 1979), in which theEuropean Court of Justice determined that the dictates of the common market would gov-ern their deliberations thus overriding national concerns over the requirements of consumerprotection and public health, it is by no means clear that functionally constituted transna-tional legal institutions are equally suited to the task. The problem is further complicatedby the very plethora of such institutions. Absent a clear hierarchy of courts or firmly estab-lished doctrine of comity and respect for precedent, disputants are likely to engage in forumshopping and the same dispute my eventually be presented to more than one body for adju-dication.

A system of global governance built on the premise of depoliticized technocratic or expertregulation thus is likely to break down as these ‘‘global governors’’ (Avant et al. 2010)increasingly compete with one another for jurisdiction and resources, all the while relyingon state recognition or CSO activism to enforce or ‘‘encourage’’ compliance with theirrulings.

The Incoherence of the Global Human Rights Discourse

A third problematic dimension of the current global governance discourse is the associatedproliferation of subjective ‘‘human’’ rights. Reflecting a particular strand of Liberal politicaltheory and a particular reading of the history of Western development, much of the energyof global governance activists, in particular those operating within transnational advocacynetworks, has been directed toward the articulation of an ever expanding catalogue ofhuman rights. Desiderata, it seems, are no longer to be debated in the political sphere butto be willed into existence by the claiming of an individual right.

The Universal Declaration of Human Rights adopted by the United Nations GeneralAssembly on December 10, 1948, already contained an astonishing list of enumeratedrights, including the right to ‘‘food, clothing, housing and medical care and necessary socialservices, and the right to security in the event of unemployment, sickness, disability, widow-hood, old age or other lack of livelihood in circumstances beyond his control’’ (UNHCR1948: Article 25). The effectiveness of such formulations in producing the desired effectshinges of course on the degree to which they succeed in imposing duties on third parties.For if my right to food, clothing or housing has any meaning, somebody must have an obli-gation to provide me with the designated goods in the event that I ‘‘claim’’ my rights.Prominent scholars of human rights would appear to agree. For Michael Perry, humanrights provide ‘‘a way of talking about ‘what is just’ from a special angle: the viewpoint ofthe ‘other(s)’ to whom something (including, inter alia, freedom of choice) is owed or due’’(Perry 2000).7 Michael Freeman likewise equates rights with ‘‘just claims or entitlementsthat derive from moral and ⁄or legal rules’’ (Freeman 2002: 6).

Such formulations, however, leave a number of empirical and practical questions unan-swered. Is it true that every reasonable person shares the same moral intuitions and thusrecognizes the ‘‘moral universality of human rights’’ (Donnelly 2003: 1)? If we were toanswer in the affirmative, who is obliged to grant an individual entitlement? By what pro-cess is the meaning of general rights claims to be established in particular cases? And howcan competing rights claims be resolved? Of course the answers to such questions are notonly of a practical nature. They raise fundamental questions relating to the locus of legiti-mate democratic authority.

7 Note, however, that Perry does not regard all human rights to be absolute.



The Universal Declaration’s list of individual subjective rights was expanded and refinedby the International Covenant on Economic, Social and Cultural rights, which entered intoforce on January 3, 1976. For example, in Article 11 of the Covenant, the States Parties‘‘recognizing the fundamental right of everyone to be free from hunger’’ agree to ‘‘take,individually and through international co-operation, the measures, including specific pro-grams, which are needed:

(a) to improve methods of production, conservation and distribution of food by makingfull use of technical and scientific knowledge, by disseminating knowledge of the princi-ples of nutrition and by developing or reforming agrarian systems in such a way as toachieve the most efficient development and utilization of natural resources;

(b) taking into account the problems of both food-importing and food-exporting countries,to ensure an equitable distribution of world food supplies in relation to need’’(UNHCR 1966: Article 11).

Although the Covenant is relatively clear with respect to the identity of those required tofulfill the duties associated with the enumerated rights – here the States Parties – it over-looks the fact that their effective enjoyment presupposes a political consensus over themeaning of such terms as ‘‘efficient,’’ ‘‘equitable,’’ or ‘‘need.’’ Moreover, whether averse orblind to the political preconditions the enjoyment of such rights implies, the approach topromoting the common welfare by means of an ever expanding list of individual rights ulti-mately robs the political community of the possibility (or perhaps right?) of setting its ownpriorities where resources are scarce and the fulfillment of every duty imposed by the cata-logue of rights is impossible.

Because rights as claims on others are not self executing, at a minimum one should con-sider how a State Party is to proceed when individuals’ rights come into conflict. Suchrights conflicts are of at least two types. The first comes about when a lack of availableresources makes the simultaneous fulfillment of duties to multiple claimants of the sameright impossible, for example when an epidemic hits a community and there is a lack ofsufficient medicine to go around. The second relates to conflicts that arise when variousrights – for example the right to ‘‘fair wages’’, ‘‘the highest attainable standard of physicaland mental health’’, free primary education, and participation in cultural life – cannot beenjoyed simultaneously as this would impose prohibitive or unbearable burdens on otherindividuals or the polity as a whole (UNHCR 1966: Articles 7, 12, 13 and 15).

In the modern international system the trade-offs made necessary by pervasive scarcityof resources and the inability to maximize some values without compromising others (forexample maximizing the individual ‘‘right’’ to equality requires infringements on individ-ual ‘‘rights’’ to liberty or private property) were relegated to the domestic politicalprocesses of territorially defined nation states. If we are to avoid the problematic con-struction that universal human rights impose universal duties, then claims for humanrights have to be directed at ‘‘established social entities, since humanity itself is notconstituted as a concrete community’’ (Kratochwil 1989: 174–175). The presumption ofsuch an approach is that local, context specific knowledge and the application of princi-ples beyond those implied by individual rights claims are prerequisites for establishingwhat is right when existing limitations make the full enjoyment of an expanded list ofrights impossible.

Recognizing that a compelling interpretation of the precise content of the general rightsenumerated in the European Convention on Human Rights when invoked in particular cir-cumstances requires local, context specific knowledge, the European Court of Human

280 James W. Davis


Rights developed the doctrine of the ‘‘margin of appreciation.’’8 The doctrine asserts thatstates are best placed to make judgments over the curtailment of contingent (and implicitlyalso absolute) rights in pursuit of other values (Dembour 2006: 19–26 and 39–59). By con-trast, in the emerging post-modern system of global governance it seems that political prior-ities increasingly are set by the actions of transnational advocacy networks and CSOsdirected at the promotion of some particular universal and inviolable right. Apart from thearbitrariness of the process – i.e. the diffusion and defense of human rights being contingenton the existence of interested cosmopolitan activists9 – it cannot solve the dilemmas thatcan arise when several individuals simultaneously claim conflicting rights or when scarcitylimits the number of individuals who can successfully claim the same right.

Under certain circumstances, there may exist expert or technical solutions to conflictingrights claims. For example, although most would accept that individuals enjoy a right toequal access to health care, the scarcity of donor organs produces a need to ration treat-ment. Of course one could resort to market mechanisms to solve the problem, with scarceorgans going to those patients able and willing to pay the highest price. But this would runcontrary to the very proposition that access to medical care should be considered a humanright. The rules of the United Network for Organ Sharing (UNOS), a private, non-profitorganization that manages the U.S. organ transplant system, establish priority amongstpatients seeking a transplant on the basis of factors generally associated with the success orfailure of organ transplants. Such factors include: ‘‘blood type and size of the organ(s)needed, time spent awaiting a transplant, the relative distance between donor and recipient,the medical urgency of the recipient, whether the recipient is a child or an adult, etc.’’ (Xuand Wilson 2006: 42).

Numerous approaches have been proposed for solving rights conflicts in cases wheretechnical solutions are unavailable, but each gives rise to its own conceptual conundrums.In Barcelona Traction the International Court of Justice proposed the idea of a hierarchy ofhuman rights by arguing that certain ‘‘basic rights of the human person’’ give rise to obliga-tions erga omnes (ICJ 1970). Others have asserted a hierarchical relationship among firstgeneration (civil and political), second generation (economic, social and cultural), and thirdgeneration (rights to peace, development and a protected environment) rights (Sohn 1982).But the theory is controversial10 and to date ‘‘[f]ew criteria for distinguishing betweenordinary rights and higher rights have been agreed upon.’’ Hence, ‘‘[t]here is no acceptedsystem by which higher rights can be identified and their content determined’’ (Meron 1986:22).

Starting from the proposition that all rights enjoy equal status, Mackie has suggested thatwhen they come into conflict, the principle of equal sacrifice should be applied. If totalright-fulfillment is not possible, then ‘‘ideally, one person’s rights should not be infringed

8 See the articulation in Handyside v. United Kingdom (ECHR 1976). The doctrine is rooted in Article 15 of the

convention, which provides the High Contracting Parties the right to take measures derogating from their obliga-

tions in times of war or other public emergency.9 Recent scholarship has attempted to identify the conditions affecting which causes are adopted by civil society

actors. For a variety of findings, see Bob (2002); Carpenter (2007); Ron et al. (2005).10 Mary Robinson, former United Nations High Commissioner for Human Rights has argued: ‘‘[D]ivisions and

ranking of rights is artificial… All human rights are universal, indivisible and interdependent and interrelated. The

international community must treat human rights globally in a fair and equal manner, on the same footing, and

with the same emphasis.’’ (Mary Robinson, United Nations High Commissioner for Human Rights, Second

Annual BP Lecture on Human Rights and Global Civilisation [November 29, 2001] as cited in Xu and Wilson

(2006: 43–44, fn. 49).



more than another’s’’ (Mackie 1985: 44). The position, however, has been assailed byMichael Freeden who argues that equal treatment is not necessarily fair: ‘‘a tyrant may boilall his subjects in oil’’ (Freeden 1991: 99).

A third approach to resolving conflicting rights claims is suggested by the concept ofweighting (Xu and Wilson 2006: 44–49). From this perspective, rights are not held to enjoysome absolute weight. ‘‘The weight of a social principle is always relative. The status of afundamental principle is always determined relative to other principles, with which it mayconflict. The weight of freedom of speech relative to freedom of movement is different fromits weight relative to judicial integrity, both of these are different from the weight of free-dom of speech relative to reputation or privacy, and all of these are different from theweight of freedom of speech relative to the public interest in security and safety’’ (Barak2002: 95).

Indeed, it would appear that public officials routinely apply the principle of weight toresolve rights conflicts. Thus, during the SARS epidemic in 2002–2003, large numbers ofpeople were deprived of their right to travel as quarantines were imposed to protect theright to life and health of others.11 Not surprisingly, however, the conflict between compet-ing human rights was solved domestically, that is, by national authorities. The model ofnational adjudication is perhaps the most practical solution to the problem posed by con-flicting rights claims. But insofar as it does not ensure identical results – because the ‘‘facts’’of any given rights dispute may be subject to equally valid but quite different interpreta-tions, and because authorities in different national jurisdictions may apply different princi-ples in the adjudication of rights conflicts – the model of national adjudication runscontrary to some conceptions of the universal and inviolable, that is, absolute and contextindependent, status of human rights obligations.12

The Need for Politics and the Dangers of Empire

The literature on global governance is too vast and sophisticated for an adequate treatmenthere. My purpose, however, was not to engage directly with normative models of globaldemocratic governance or to evaluate the likelihood that any one of them could be imple-mented. Rather, the focus was on a critique of current practices. The characterization ofthe three particular aspects selected for illustrative purposes – shifting borders of the public-private divide; transnational regulation; and the global human rights discourse – is certainlyopen to critique for being superficial and lacking nuance. Nonetheless, I submit the analysisprovides sufficient grounds for a healthy dose of skepticism with regard to both the feasibil-ity and the desirability of current forms of post-, trans- or supranational global governance.

What seems to unify the three approaches to global governance discussed here is a failureto appreciate the need for – or perhaps even more, a deep-seated unease with the vagariesof – politics and an ambivalence or even intolerance toward a diversity of political projectsreflecting different conceptions of the good life. Hence, projects such as the Global Com-pact substitute the activism of well-intentioned cosmopolitan elites for local political deci-sion making thereby disenfranchising millions. In New York priorities are establishedamongst a list of agenda items which is unknown to affected publics in New Delhi, Nairobi

11 Article 13 of the Universal Declaration of Human Rights states: ‘‘Everyone has the right to leave any country,

including his own, and to return to his country.’’12 For an argument in support of accepting heterogeneous outcomes as the consequence of a legitimate difference

principle, see Slaughter (2004: 247–250).

282 James W. Davis


or Nuevo Mamo. And as responsibility for the provision of the duly prioritized publicgoods is shifted from states to a diversity of private actors and ⁄or cross-sectoral partner-ships, the prospects for enhanced state capacity and public accountability are more likelythan not diminished.

Meanwhile, experts of all sorts are busy devising and applying regulatory standards thatincreasingly ‘‘spill over’’ from transnational to national issue areas without regard for long-standing culturally rooted institutions, principles and practices. Similarly, and often withoutregard to what a given community defines to be right, ‘‘activists beyond borders’’ (Keckand Sikkink 1998) promote universal inviolable rights and thereby impose duties on mil-lions of silenced adherents to ‘‘quaint’’ or even ‘‘barbaric’’ cultural forms. As the catalogueof universal subjective rights expands, so too does the list of corresponding duties, which iftaken seriously, impinge on the ability of implicated persons to enjoy ‘‘their’’ rights. Hence,the project would appear to be at risk of collapsing from its own weight and internal con-tradictions.

Even an adherent to the normative standards implied by the various projects discussedhere might sense the incoherence of a political project that ignores or rejects the centralityof politics to governance – global, national or local. Or perhaps she might wonderwhether something more sinister is hiding behind the Liberal facade of much global gover-nance activism. For the alternative to a system based on a tolerance for global diversity isempire. It is worth noting that the modern international system, based on the principle ofterritorially defined sovereign states, emerged precisely from the inability of an imperialsystem that was premised upon the claim to embody universal values, to provide an effec-tive solution to competing rights claims. The well-meaning intellectual efforts of contem-porary proponents of global governance notwithstanding, the statesmen of 1648 had itright. The key to ensuring widespread respect for individual rights is a system of interna-tional politics.

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James W. Davis, Ph.D. is Professor of International Politics, Director of the Institute of Political Science and mem-

ber of the research consortium Global Democratic Governance (GDG) at the University of St. Gallen. He is editor

of Psychology, Strategy, and Conflict: Perceptions of Insecurity in International Politics (Oxford: Routledge, forth-

coming). Address for correspondence: Department of Political Science, University of St. Gallen, Rosenbergstrasse

51, CH-9000 St. Gallen. Phone: +41 71 224 2600; Email: [email protected]

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a critical view of global governance

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