TRANSNATIONAL PUBLIC PRIVATE PARTNERSHIPS

HANDMAIDENS OF EMPIRE OR COUNTER-EMPIRE?

Math Noortmann

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2007

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Transnational Public-Private Partnerships

Handmaidens of Empire or Counter-Empire?

Name: Math Noortmann

Student number: 1665030

Word Count: 18222 (incl. references & footnotes)

Course: MSc Thesis

Supervisors: Philipp Pattberg & Bastiaan van Apeldoorn

Private art collection Koning-Noortmann

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Table of Contents

PREFACE AND ACKNOWLEDGEMENT ................................................................................. 7 I INTRODUCING PUBLIC-PRIVATE PARTNERSHIPS, MULTITUDE AND EMPIRE. ................................................................................................................................. 9

THE SETTING AND ITS PROBLEM .......................................................................................... 9 THEORIZING THE CONCEPTS .............................................................................................. 12

On the Problematic of Scaling ............................................................................................... 15 THE METHODOLOGY .......................................................................................................... 17 THE THESIS OUTLINE ......................................................................................................... 20

II THE PRIVATE, THE PUBLIC AND THE CIVIL SOCIETY .................................. 22 THE MYTHS OF ORIGIN ....................................................................................................... 22 THE PUBLIC AND THE PRIVATE: ENTAILMENT OR ENTANGLEMENT? ............................... 26 CIVIL SOCIETY: THE ASSOCIATIONAL PLAYGROUND OF THE MULTITUDE? .......................... 29 ON THE ORIGINS OF THE POLITICS OF ORGANIZING THE MULTITUDE .................................. 32

III MOVING BEYOND THE STATE; THE REMAKING OF POLICIES AND PRACTICES ......................................................................................................................... 36

MOVING BEYOND-THE-STATE ............................................................................................. 36 TOWARDS A NEW-TRANSNATIONALISM? ............................................................................. 37 IMAGINING EMPIRE ............................................................................................................ 41

IV THE OZONE AND CLIMATE CHANGE REGIME; PUBLIC-PRIVATE PARTNERSHIPS BEYOND THE STATE? .................................................................... 44

PPPS: WHAT ARE WE TALKING ABOUT? .............................................................................. 44 BRINGING THE MULTITUDE BACK IN ................................................................................... 46 THE GLOBAL GAS FLARING REDUCTION PUBLIC PRIVATE PARTNERSHIP (GGFR-PPP): BEYOND THE STATE AND BACK .......................................................................................... 50

V CONCLUSION: BRINGING THE MULTITUDE’S COMMON(S) BACK IN ...... 56 LIST OF REFERENCES. ................................................................................................... 60

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…This is no time for Endless Thought … This is no time for Private Gain This is no time for Phony Rhetoric This is no time for Political Speech This is a time for Action because the future's Within Reach This is the time Lou Reed, 1989

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Preface and acknowledgement

My MSc thesis in Political Science, is the result of a one year exploration into

the theories and methods of political science and in particular those of

international relations. I started this exploration, because my international law

background provided me with insufficient conceptual, theoretical and

methodological tools to assess and understand contemporary political-economic

and legal developments beyond the state. Lacking the arrogance to think that I

could explore the vast mass of international political theories and approaches,

methodological tools and publications on my own, I decided to take a full, one

year MSc course at the Vrije Universiteit Amsterdam. I have never regretted

that decisions and in fact enjoyed every moment of reading, reflecting,

discussing with my teachers and fellow-students and finally writing this MSc

thesis.

This thesis, however, in particularly reflects what I learned from, Henk

Overbeek, Ben Crum, and my thesis supervisors Phillip Pattberg and Bastiaan

van Apeldoorn. Henk van Overbeek brought Hardt and Negri’s Empire to my

attention. It permanently changed my perspective on the lifeworld beyond-the-

state and has definitely informed my thinking. Phillip Pattberg triggered my

curiosity on the empirical dimension of the public-private complexity. From

Ben Crum I took more of his methodological craftsmanship than I could

handle. Finally, in Bastiaan van Apeldoorn’s class I found the reflective and

critically environment, which stimulated me to apply all these newly, obtained

skills and insights and turn it into this thesis. The actual writing process was

supervised by Bastiaan van Apeldoorn and Phillip Pattberg. Their remarks,

critical comments and suggestions were highly appreciated and incorporated in

to a thesis, which is entirely my own.

I also have to mention the Netherlands Organization for Scientific Research,

who provided me with a grant for a multidisciplinary research project on non-

state actors and the transformation of international law. It is this grant that

provided me with the time to read, reflect, learn and write on political science

and combine the insights from international law and politics. I hope they don’t

mind that this exploration will result in a call for the End of International Law

rather than the “transformation of international law” as envisaged in the

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proposal. This MSc thesis is written within the framework of that proposal and

will form part of the publication.

Last but definitely not least, there is Juliette, who actually pushed me to send

in the application for the VU’s Master Program in Political Science before the

deadline would pass. Now she’s not only married to a lawyer, but to a social

scientist as well. Being trained now in her own discipline, I am looking forward

to counter her arguments with my new acquired epistemological, ontological,

methodological and meta-theoretical logic.

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I Introducing Public-Private Partnerships, Multitude and Empire.

The Setting and its Problem

Public-Private Partnerships (PPPs) beyond-the-state are “booming”

business. Public-private partnerships have their own websites, databases, fairs

and E-forums (UN-DESA, 2007). PPPs are the subject of United Nations (UN)

resolutions and reports at the highest level (Winter, Curtin et al. 1996).

According to Asha-Rose Migiro, UN Deputy Secretary-General: “Public-private

partnership are the key to achieving the United Nations Millennium

Development Goals …. The United Nations is a strong advocate of public-

private partnerships as reflected in the Global Compact” (JP, 2007:12). The

United Nations is not the only intergovernmental organization, which glorifies

PPPs as the universal solution to the world’s problems. The statement that

“only in the context of a genuine public-private partnership can we create the

conditions for investments that will meet the world’s demands for energy in an

environmentally sustainable way” (IMF, 2007. Italics mn) illustrates how the

idea of public-private partnerships (PPPs) has permeated the thinking of

intergovernmental policy.

The ‘era of transnational partnerships’ developed out of the national

privatization waves of the 1980s (Brühl 2002; Sassen 2006), which paved the

way for a rather unproblematic political institutionalization of privatization and

public-private partnerships into the transnational realms of the 21st century

(Börzel and Risse 2005; Pattberg 2005; Dingwerth 2006). In this, the utilization

of PPPs at the world level fits the wider, well-known attempts to reconstruct

and relocalize agencies, institutions, ideas and concepts beyond-the-state. The

theoretical frameworks of internationalism, intergovernmentalism,

transnationalism and globalism have all earned their applause and critique in

their attempts to explain and construct that lifeworld beyond-the-state

(Jachtenfuchs 2001; Petras and Veltmeyer 2001; Apeldoorn van 2004; Bellamy

2005). The phenomenon of Public-Private Partnerships is no exception in this

respect. PPPs have also received their share of questioning (Anadova & Levy,

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2003; Richter, 2003). Unfortunately, that questioning is of a technical rather

than a critical, political character.

The political implications of the process of relocating institutions and

concepts from one level to another should be critically analyzed especially when

the state is still considered to dominate that system beyond its own reality. We,

the people,1 are only included in that life-world beyond the state in an

institutionalized and divided form: organized and separated in and by states,

non-governmental and intergovernmental agencies, class, ethnicity, race or

‘peoples’, and many other political and social constructs.

Recently Michael Hardt and Antonio Negri have presented us with an

imaginative alternative for the world of states and divided people, in the

combined form of Empire (Hardt and Negri 2000) and Multitude (Hardt and

Negri 2000). If perhaps not (yet) a ‘correct’ representation of the ‘real’ world,

Empire and Multitude present us at least with a mental world, which would allow

for a critical reconceptualization of the politico-economic processes that affect

people all over the world. The politics of organizing, and thereby excluding, the

multitude from political processes beyond the state is a development we have to

critically analyze and comment upon. The public-private dichotomy and the

public-private institutions, which both inform as well as result from that

dichotomy, like public-private partnerships, play a crucial role in that process

While Hardt and Negri’s political philosophy offers a reconceptualization of

world-order, the concepts of Empire and Multitude are not completely

unproblematic. Neo-Marxist scholars like James Petras and Henry Veltmeyer

have criticized Hardt and Negri for “seriously underestimat[ing] and ignor[ing]”

the power of the capitalist and imperial state (Petras & Veltmeyer, 2005:6) and

Cynthia Weber, criticizes Empire for ‘twisting’ the very concepts that students

of international relations understand. Moreover, Hardt and Negri, according to

Weber, unnecessarily complicate traditional Marxist insights of oppression and

resistance (Weber 2005).

1 The phrase ‘we, the people’ is the only representation of an undivided multitude. The opening words of the Charter of the United Nations: ‘We the Peoples’ signifies how the division of the multitude is incorporated in the ordering terminology of international law. The difference between ‘we, the people’ and ‘we, the peoples’ is still profoundly misunderstood by contemporary students of international law and international relations. (see e.g. Richter. 2003). Uncritical reference to the opening phrase of the UN Charter, contributes to the denial of the multitude as people.

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Hardt and Negri’s theoretical problematic is the relationship between the

‘reality’ of Empire, which “understands, validates and legitimizes” itself (Hardt

and Negri 2000:34) and the biological reality of the Multitude. That later reality

is the reality of wo-mankind, the flesh and blood of the masses or as Hardt and

Negri put it: “the living alternative that grows within empire” (Hardt and Negri

2006:xiii italics mn). Where Empire presents itself as a non-typical, post-

modern puzzle in the wider beyond-the-state-discourse, it also offers a possible

counter-hegemonic research model. Hardt and Negri’s idea forces us to engage

with existing concepts like the public, the private and the civil society in order

to understand how they (Savage and Tan-Mullins) hamper the (re)production of

the common of the multitude and how they (Savage and Tan-Mullins) conribute

to the consolidation of the contemporary world order. It is the common of the

multitude, that will take us beyond the constructions of the public-private divide

in order to bring its own biological reality back in (Hardt and Negri 2006:202 et.

seq.). The concept of the common of the multitude and the concept of public-

private are, in my opinion, mutually exclusive in this respect.

According to Hardt and Negri, the “primary dynamic of contemporary

global politics [is] the [non dialectical, mutual constitutive] struggle between the

empire and the multitude” (Hardt & Negri, 2006:225; but see Weber, 2005:130

et seq..) In that struggle, however, empire’s constitutive forces will seek to

organize and neutralize the multitude by reconstructing the political, social and

economic divides and realms beyond-the state.

This thesis, however, is only indirectly concerned with the politics of

(dis)organizing and neutralizing the multitude. The organization of the

multitude is a modern project, which succeeded the enslavement and the

enserfement of the multitude. A project that started when Machiavelli at the

same time noted that “nothing [was] more formidable than a multitude loose

and without a Head”, and the “weakness” and “uselessness” of that same

multitude (Machiavelli 1981). It is at this point that Hardt and Negri deserve

some critique, as they also fail to critically reflect upon the NGOization trend

and the liberal ideas of representation (Hardt & Negri, 2001:309-314; 2005:277-

278, 294-295). Not only NGOization (or the (dis)organization of civil society,)

or ‘representative government’ have neutralized the multitude. Also the public-

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private divide or its phenomenological appearance in the form of public-private

partnerships i.e. partnerships between government and business do so.

While public-private partnerships do not organize the multitude as such, they

are likely to divide and fragmentize the multitude by constructing and

reconstructing ideas of separate realms and institutionalizing private-public

dichotomies and political, economic and social divides and thus serve the

consolidation of empire rather than the processes of counter-empire.

The objective of this theses is to critically discuss the effect of the public-

private complexity on the empowerment of the multitude within the

(re)construction of the contemporary world order. In particular I will question

the role and meaning of public-private partnerships as ‘transnational’

instruments’. The ozone and climate change regimes are taken as examples of

how the idea and practice of public-private partnerships gain firm ground and

how the participation of the multitude became formalized. The connected

problems of ozone depletion and climate change were politically acknowledged

in the 1985 Vienna Convention on the Protection of the Ozone Layer and 1992

United Nations Framework Convention on Climate Change.2 These

international legal regimes, provide the framework for a critical analysis of what

I will understand as the historical and the ideational problematic of the public,

the private and the civil society beyond-the-state. The Global Gas Flaring

Reduction Public-Private Partnership (GGFR-PPP) provides a telling illustration

of that general critique.

Theorizing the Concepts

This thesis centers, as indicated above, around three different concepts,

empire, multitude and public-private. ‘Empire’ and ‘multitude’ have been

primarily informed by and understood from the works of Hardt and Negri.

These ‘new’ concepts form the larger framework for the interpretation and

meaning-making of the older ‘public-private’ concept. In that the core concepts

used in this thesis are to be perceived within a larger critical; neo-Marxists

2 In this I also include the respective protocols and amendments and declarations to the Ozone Convention: the Montreal protocol (September 16th 1987) and 4 different amendments (London, 23rd June 1990; Copenhagen, 25th November 1992; Montreal, 17th September 1997 and Beijing, 3rd December 1999). The Climate Change Convention has been supplemented by the Kyoto protocol, Kyoto 11th December 1997).

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theoretical discourse.3

Empire, according to Hardt and Negri is

A decentered and deterritorializing apparatus of rule that progressively

incorporates the entire global realm with its op, expanding frontiers the

political subject that effectively regulates (…) global exchanges … [it is the]

new global form of sovereignty” (2000:xi, xii).

Empires ontology is immaterial for this thesis. Whether it exists,

“materializes before our eyes” or is “coming” does not affect its value as a

politico-legal concept that facilitates the understanding of politics and counter-

politics beyond the state. It ‘constitutes’ a world order in which or through

which the ‘Multitude’ may be effectively empowered again and be able to

transcend the political constructions of traditional public-private divides.

Recognized by early modern scholars like Machiavelli (1981) and Erasmus

(1511) as a potential power, the multitude has been the subject of a modern

project of neutralization. The constitutionalization of the early modern state by

scholars like Spinoza (1677) involved the organization of the multitude. The

neutralization of the multitude was, furthermore, facilitated by the invention of

the social contract and the civil society by scholars and politicians of

enlightenment (Rousseau, 1762; Fergusson 1767). Hardt and Negri

reintroduced the term in the critical, post-modern world-order discourse (2000;

2005). Hardt and Negri’s use and reconceptualization of ‘multitude’, and

especially the ‘relationship’ between multitude and empire, as indicated above,

triggered serious criticism.4

In Hardt and Negri’s conception the multitude can be “conceived as a

network in which all differences can be expressed freely and equally, a network

3 I thereby disregard the fact that Hardt and Negri (1) consider Empire “a concept, which calls primarily for a theoretical approach” (Hardt & Negri, 2000:xiv) and multitude as a “concept ….[that] grasps the existing social and political tendency, the naming [of which] is the primary task of political theory (Hardt and Negri, 2005:220) 4 The severe critique by Petras & Veltmeyer (2005) and Weber (2005) seems to have been noted by Hardt and Negri and responded to in their 2006 Penguin edition (2006:225). Where Petras and Veltmeyer refer to the forgotten element of class-struggle and capitalist interest (2005:24), Weber highlights the dialectical relationship between ‘multitude’ and ‘empire’ (2005:133). For the purpose of this thesis is not necessary to go into and analise the polemic between Hardt and Negri on the one side and Petras and Veltmeyer, and Weber on the other side. In this thesis I will follow Hardt and Negri’s conception of that relationship with prejudicing the above mention polemic.

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that provides the means of encounter so that we can work and live in common”

(Hardt & Negri 2005:xiv). Multitude then and now designates the unorganized

totality of individuals without an elitist labeling in terms of economic or social

class, ethnicity or nationality. The relationship between multitude and empire

can according to Hardt and Negri be formulated as follows:

Empire is constantly dependent on the multitude and its social

productivity, the multitude is potentially autonomous and thus has the

capacity to create society on its own (2006:225)

Because the multitude’s “autonomy” and “capacity to create society on its own”

is only “potential”, the “multitude is a project of political organization and can

thus be achieved only through political practices” (Hardt and Negri, 2006:226).

However, that also includes the possibility of ‘political organization’ against the

fulfillment of the multitude’s self-creation. It is questionable whether: “imperial

power can no longer discipline the powers of the multitude; [and that] it can

only impose control over their general social and productive capacities” (Hardt

and Negri, 2001:211). The political organization or neutralization of the

multitude has been a combined political, economic and social project, which

materialized in the representative politics of government, the production of

labor and consumption, and the construction of a civil society. These repressive

tools are now being institutionalized beyond-the-state and threaten the global

self-empowerment of the multitude. In other words, they support rather than

threaten empire; they can be the forces of empire or they can be the forces of

counter-empire. It will be argued in this thesis that public-private partnerships

are forces, which sustain empire.

The world-order discourses and other beyond–the-state discourses and

institutions depend for their constitutive existence, on the construction of the

double dichotomies of agency: state – non-state; (inter)governmental – non-

governmental, public – private; community – individual and a corresponding

dichotomy of structure: international – transnational, global – local, anarchy -

order etc. Such constructions defy critical insights that one cannot properly

differentiate between agency and structure (Apeldoorn van 2004:144).

The general truism that “the oft-expressed goal of value neutrality is plainly

impossible to achieve in many contexts” leads Gerring -wrongly so- to conclude

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that “the norm of value-neutrality is incorporated in the criterial framework

insofar as it matters at all to social science concept formation” (Gerring 2001:63).

It is not the value-neutrality which has become the norm in social scientific

research but the understanding that all research and thus all concept-formation

is –more or less- value-biased (Turner 2006:649).

The public/private distinction, which -as we will see below- not only informs

the concept of civil society but also the political-economic divide, rests on two

basically different values: liberalism and communitarianism (Walzer 1995). The

historical quest for finding the equilibrium between these two values has

informed many socio-political processes, procedures and institutions. To the

extent that the institution of public-private partnership pretends that it

represents a public-private balance, a critical normative investigation is

imminent. Especially because the values represented by public-private

partnerships are not necessarily the values of the multitude. The market

informed activities of PPPs come with neo-liberal-capitalist values that are

hampering the production of the common (values) of the multitude beyond the

state.5 The public-private has been subjected to many discourses, which have

resulted in a holistic reconceptualization and mystification of the divide. Public-

private terminology, however, has not been abandoned. On the contrary, it has

entered the new governance language, with a new zest for designating

government and business. It is this understanding of public-private that I

adhere to and critically comment upon in this thesis.

On the Problematic of Scaling

“A good concept stretches” according to Gerring “comfortably over many

contexts” (Gerring 2001:54). At the same time however, he makes clear that the

contextual range has a predominantly horizontal character. The utility of

contextual range lays in its broadness rather than its depth. Applying the

concept of civil society for example to global phenomena is not just a matter of

5 Explicating the common values of the multitude would take this thesis beyond the scope of the problem it seeks to explore. At this point it suffices to assume that these values are to be found within the range of values identified in the policy oriented approach of Myres McDougal and associates:, affection, enlightenment, power, rectitude, respect, skill, wealth, well-being (see, MCDOUGAL & REISMAN, 1981; Chen, 1989).

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“increasing the sample size”, in which case we simply “might either redefine… or

choose a different concept” (Gerring 2001:55).

Young holds that the “problem of scale does not figure prominently in the

discourses of the social sciences” (Young 1995:27). It is more likely, however,

that the social sciences do not explicate the scaling process, which is

troublesome from a political point of view, but not necessarily from a social

perspective. Scaling is an implicit process, which involves the extrapolation of

the phenomena known to the phenomena under investigation. The

transnational discourse faces a scaling-up problem in the sense that concepts

and ideas, which have been constructed and developed within and with respect

to the ‘national’ are scaled up to the ‘transnational’. Concepts and ideas like

governance, commons, public, and private are transposed to another level

without rethinking and/or reconsidering the conceptual origin and the

methodological problems of scale. Moreover, the ‘scaling process’ has a

profoundly political function as it seeks to establish the dividing concepts upon

which state power rests in that lifeworld beyond the state. That reality of a

realm beyond-the-state has definitely permeated the discourses, whether or not

that discourse is informed by law, politics, governance, economics or any other

discipline or interdisciplinary mix. We seek to capture that reality in theoretical

concepts such as globalism and transnationalism by re-using the concepts and

images of the local and the national.

The assessment of the implications of the blurring conceptual distinction

between the public and private realms at a global level requires inter alia

reconsideration of the deconstruction of the national public/private divide (Gal

2002). Deconstructing that distinction at the international6 level ignores the

absence of a public space beyond-the-state. The international realm is the

playing field of a variety of actors, which can be situated on different

continuums: state – non-state; public – private; profit – not-for-profit according

to different characteristics. The national and international realms are not

necessarily the same when it comes to categorizing international actors. States

and governments, which are considered to represent the public interest at the

national level, are the representation of a particular private interest at the

6 The term international will be used throughout the thesis in order to indicate that the realm beyond-the-state is considered to be a realm between states rather than a realm above or even without states.

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international level. The opposite might be true for profit and not-for-profit

private actors, who might be interested in transforming the anarchical, private

international realm into a more hierarchical public international realm.

The fundamental differences between the character of the national and

international sphere, creates a situation in which states are considered to

constitute the Olsonian individual that “will not act to achieve their common or

group interest” (Olson 1965:67). In order to recognize and analyze the existence

of a common space beyond-the-state it is necessary to deconstruct the

traditional distinction between the private and the public.

The reconceptualization or (re)introduction of the public/private distinction,

which is inherent in the construction of a public-private partnership at the

international level, makes it necessary to engage in two different (interrelated)

discourses namely the public/private discourse and the civil society discourse.

These discourses cannot be studied without taking the political consequences

and underlying values of PPPs as transnational institutions into account.

Where PPPs both politically as well as institutionally hamper the movement

of the multitude “beyond private and public” and the formation of the common

as the “collaborative social process of production” (Hardt & Negri 2005:204),

PPPs must be considered to constitute a post-modern strategy of dis-organizing

the multitude. A critical reflection upon PPPs and the public-private dichotomy

as their ideational basis, is called for. Such a critique must take the

empowerment of the multitude as the political benchmark.

The Methodology

In this thesis, I intend to critically explore part of the construction of a realm

beyond-the-state, which is taking place on the basis of divisions, which we

know so well from the political processes and institutions within the state the

political, the economic and the social.

Considering the expectation that with respect to the ongoing integrative

process of institution and community building at the global level, concepts,

theories and empirical evidence are informing each other, this research

therefore follows a methodological approach which allows the researcher to be

“sensitive to the evidence at-hand” in order to enhance “the fit between theory

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and evidence” (Gerring 2001:232). The character of both the research question

as well as the larger puzzle are under investigation, warrants an exploratory

research stance (Neuman 2000; Gerring 2001; Ritchie and Lewis 2003).

Studies beyond-the-state must be highly explorative if we do not want to

take the international, transnational or global as ontologically given nor want to

accept existing ‘localized’ and ‘nationalized’ concepts and terminology to inform

our epistemologies. Normative, conceptual, theoretical and/or empirical aspects

of such a study cannot be easily -let alone neatly- separated. The empirical

subject of this study (PPPs,) carries all these elements in its many

manifestations. Public-private Partnerships are at the same time idea, concept

and agency. The same holds true when we unravel the public and private

dimension of that partnership and deconstruct the relationship between the

public, the private and the civil society. The predominant relevance of the

normative/political, conceptual and empirical dimension of the study cannot be

established beforehand. On the contrary, the intention to find the connection

between these elements informs the whole starting point of this study. In

particular, I presuppose a connection between the transposition of the concept

civil society from one level (state) to another (beyond-the-state)7 and the

normative values of the multitude, the public and the private on the one hand

and the empiricism of Public-Private Partnerships on the other.

In order to explore this connection, I address the elements of the normative

or value dimension of conceptions(s) of civil society and interrelated concepts.

Coincepts such as public, private and PPPs, which are based on a specific

market oriented perspective and developed within societies, which in time and

space are based on and delimited by the concept of the neo-liberal state

(Osborne 2000; Baker and Chandler 2005). The private and the public represent

specific values, which cannot undergo a transnational transposition without

taking into account and comparing the differences between national and

transnational realms in terms of these values. Theoretically speaking this would

not only involve addressing the paradigmatic values of public and private within

the various theories of international politics, law and governance, but also

7 Exploring the impact of conceiving of the realm beyond the national as international, transnational and/or global are an integral part of this study, as these terms cannot be considered to be wholly indiscriminate. The explanatory character of the study requires also an ‘open mind’ towards the variety of terminology. Neuman, W. L. (2000). Social research methods : qualitative and quantitative approaches. Boston, Allyn and Bacon. .

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questioning the analytical/empirical utility of traditional conceptualization as

these must be considered “the building blocks of all theoretical structures”

(Gerring 2001:58).

Last but not least, the empirical problematic has to be uncovered: who is

involved in promoting and constructing transnational PPPs, how do

transnational PPPs work, and what is the impact and spin-off of transnational

PPPs? The empirical study of PPPs has been found within the framework of

the ozone/climate change problematic and more particularly within the

confinements of the Kyoto and Montreal treaty regimes (Benedick 2001; Zhang

and Maruyama 2001; Jaeger and Cameron 2004) as a result of the exploration.

According to Gerring, an “exploratory strategy of research is perhaps best

understood as a process of mutual adjustment, such that by the end of the

process –concepts, theories and evidence are properly aligned” (Gerring

2001:231). That process of alignment is one of “soaking and poking” in which

the researcher will get his “hands dirty as quick as possible” on empirical data in

order to gain inductively formed insights, which than again provide the basis for

another soaking and poking exercise (Gerring 2001:232). “Getting your hands

dirty” meant in this case that I conducted lengthy Google searches on “Public

Private Partnerships” to internalize my own empirical impression, before

turning to Google Scholar in order to discover what was written on this

phenomenon. At the same time, I was reading both contemporary scholars as

Hardt and Negri and Sassen as well as the historical works of Fergusson and

Hegel in order to inform my initial conceptualization of private, public and

social processes beyond the state. The methodology of switching between the

empirical, the theoretical and the methodological, I have maintained throughout

this study.

The fact that the study is not presented as having a separate

theoretical/conceptual part and a separate empirical part reflects the ‘soaking

and poaking’. The theories and concepts related to the Public-Private

Partnerships has only been looked into after I had ‘soaked’ the ‘reality of

‘public-private partnerships’. The choice to present the Global Gas Flaring

Reduction Public-Private Partnership (GGFR-PPP) rather than another PPP is

based on its illustrative potential rather than its representative potential. It

demonstrates in my perspective, perfectly how institutions and concepts are

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transferred from one reality to another and thereby corrupting the potential to

finally create a common.

The Thesis Outline

After this Introduction, Chapter 2 presents (1) an overview of the historical

development of the ideas of the public, the private and the civil society, (2) an

analyzes of the public-private debate and (3) a reconsideration of the discourse

on civil society, in terms of the confinement of the multitude and (4) an

(historical) expose on the political organization of the multitude.

The main argument will be that the private/public/civil society divide is a

political project oriented as the subordination of the multitude. The divide

serves a individual/(neo)liberal oriented political and hampers a (re)orientation

on the common, which is a is a more communitarian concept. This chapter will

be strongly informed by the more general philosophy and theories of critical

political and social sciences.

Chapter 3 seeks to explore the theories and concepts underlying the beyond-

the-state discourse. The first paragraph will open with a more general expose

and analysis of these discourses. Paragraph 2 is concerned with the more

specific concept of transnationalism. Paragraph 3 is completely dedicated to

Hardt and Negri’s Empire. In this chapter, I will investigate claims concerning

the existence of a global common and the rhetoric of the ‘Common’. The latter

will more specifically inform my general conclusions.

After that, an illustration of a public-private partnership (PPP) beyond-the-

state will be presented in Chapter 4. First, I will present a general overview of

the PPP discourse in order to explicate its problematic conception. This is

followed by a demonstration of how the private and the public are introduced

over a period of 10-15 years in a number of international legal instruments to

finally accumulate in the introduction of the institutionalization of a public-

private cooperation in the Kyoto Protocol. The Global Gas Flaring Reduction

Public-Private Partnership (GGFR-PPP) forms the empirical illustration.

Last but not least, I will argue in a concluding chapter that the multitude’s

21

common has to be brought back in to the discourse and that continued

emphasis on a public-private understanding is detrimental to that cause.

22

II The Private, the Public and the Civil Society

The Myths of Origin

Both, the content and boundaries of, as well as the relationship between,

(the) public, (the) private and (the) civil society have been subjected to an ever

space-time related making and remaking. The essence of the classical, discursive

simplicity of the public-private contradistinction, still informs many of the

constructions of contemporary socio-political and economic realities, including

that of civil society, which is often considered to constitute the third element in

the trinity of social, political and economic forces.8

According to Saskia Sassen, the “historically constructed and formalized

division” serves the purpose of preparing, forming and consolidating capitalism

and liberalism as the predominant economic and respectively political system

(Sassen 2006:184 et seq). Hardt and Negri equally stress the link between the

public-private divide and the contemporary politico-economic system in that

they argue that our move ‘beyond’ the private and public divide facilitates our

capacity to transcend into a post-capitalist and post-liberal order (Hardt and

Negri 2006: 202 et seq). Such a move requires inter alia the unpacking of “the

ideology of ‘possessive individualism’ in modern legal theory”, which serves the

consolidation of the political order (Hardt and Negri 2006:203). Maintaining

the separate realms of the public , the private and the civil society, hampers the

political emancipation and empowerment of the multitude as a fourth

undefined power.

Historically informed understandings of the private, the public and the civil

society locate the making and remaking of the link between these three

phenomena on a primitive – post-modern continuum. It is probably during that

first unrecorded transformation of primate to primitive man or later when the

nuclear family replaced the troop as the proto human form of ‘social’

organization that mankind must have constructed an initial sense of a public-

private distinction (Waal 2005:90). It was not until the Classical Period,

8 The most telling example is the distinction in the world’s judicial systems into the dichotomy of public and private law.

23

however, that this distinction found its way into the constructs and rhetoric of

philosophy and law. This classical social construction of the family/household

and the city(state)/polis has later been captured and reproduced in the modern

realities of production and (socio-)politics and became both the manifestation

as well as the representation of the public and the private (Arendt 1998:28-37).

A most problematic and interesting era in the making and remaking of the

public and the private is the Middle Ages. Especially, the rather indistinctive

character of the late Feudal Society in terms of the public-private divide has

informed latter developments. That indistinctiveness must be understood in

Feudal Society’s contradictory institutions of enfeoffment and enserfment,

which were based on the same “dense network of contractual relationships”

(Davies 1996:312). The free and the unfree constituted and reconstituted each

other in the tangible and intangible constructs of the protection of the walls of

castle and city, profane and ecclesiastical loyalties and identities and means of

subsistence. The metaphor of the contract in order to denote the relationship

between the state and citizens is later to be found in Rousseau’s reconstruction

of people’s subordination to a larger institutionalized polity.

A clear distinction between a separate public and private realm is lost in the

feudal system. ‘Public’ denoted the formal feudal authority over appropriated

territory and people (Habermas 1990: 60 et seq). Both political as well as

economic power merged in the person of the feudal lord, which essentially

meant that “public power was completely personalized” (Teschke 1998:334).

The public realm had become what Habermas calls “die repräsentativen

Öffentlichkeit” (Habermas 1990:62). The public denoted the representation of the

common rather the common itself.

It is in this privatization of the public/common realm that feudalism

prepared the stage for mercantilism, early modern capitalism and the early

modern Western state. According to Davies:

Feudalism left a profound legacy in Western culture. It moulded speech

and manners; it conditioned attitudes to property, to the rule of law and to

relations between the state and the individual. By its emphasis on contract

and on the balance between rights and duties … (Davies 1996:315).

24

The post-feudal/early-modern redrawing of the public-private divide not

only constituted a capitalist/statist redistribution of what was once held in

common by the multitude, it also triggered a reclaiming of that common by the

multitude. The religious-economic upheavals in the 16th and 17th centuries are as

much a reflection of the multitudes potential to revolt as they are reflections of

the profane elites power to resist other elites. It constitutes the period in which

the public sphere was both socially reconceptualized as well as institutionally

depoliticized (Somers 1993; Somers 1995). The period in which capitalism and

state building coincided also marks the beginning of the political organization of

the multitude, which what considered to be essential to the success of the

capitalist state (see below).

The construction of civil society as a possible third realm did not materialize

until ‘modernity’ was well on its way in the Western world (Habermas 1990:142

et seq.; Loyal 2006). The coming into existence of civil society, however, cannot

be explained in a space/time dimension only. Informed by the twin realities of

capitalism and the state, and its representative and conceptual images:

business/government and private/public, enlightened, modern scholars like

Fergusson and Hegel constructed two significantly different ideas of a ‘civic

community’ which came to constitute a new, third modern reality within the

state (Fergusson 1767; Hegel 1996). Civil society did not accidentally coincide

with the boundaries of the state in its early conceptions.

To Hegel, civil society was “the realm of difference, intermediate between

family and the state” which followed and presupposed the construction of the

state (Hegel 1996:186). The state was considered a necessary and often

sufficient cause for ‘civil society’ to emerge (Fergusson 1767:36; Hegel

1996:184). The early-modern and modern conceptions of civil society have

largely been informed by the contentious politico-economic values of liberalism,

socialism and nationalism (Walzer 1995; Loyal 2006).

Contemporary ideas on civil society, by contrast, are based on a profound

misconception of Gramsci’s historical understanding of “the struggle between

the civil society and the political society”; the struggle between societal, counter-

hegemonic forces and “the organs of political hegemony …: (1) parliament; (2)

magistry; (3) government” (Gramsci 1957:186). While it can be said that

Gramsci’s ideas on the workings of civil society materialized in the last two

25

decades of the 20th century political transformations in Central and Eastern

Europe and Latin America these transformations are not caused by the counter-

hegemonic forces of civil society, that Mary Kaldor identifies:

social movements, associations, NGOs or the non-profit sector. …the

emphasis was on self-organization and civic autonomy in reaction to the

vast increase in the reach of the modern state, and to the creation of

independent spaces in which individuals can act according to their

conscience in the face of powerful influences from the state on culture and

ideology. This concept was taken up by Western radicals who saw civil

society as a check both on the power and the arbitrariness of the

contemporary state and on the unbridled power of capitalism. (Kaldor

2003:21)

Gramsci’s civil society was the society of the multitude, unorganized and

potentially dangerous to the ‘organs of the political hegemony’. Kaldor’s civil

society is organized and does not reflect that potential force or the resisting

force of the multitude in Budapest (1956), Prague (1968), Gdansk (1970s) and

Berlin (1989).

The new, postmodern conceptualization of civil society coincides with the

waves of globalization on the one hand (Anheier, Glasius et al. 2001; Kaldor

2003; Keane 2003; Baker and Chandler 2005) and emerging reconstructions and

deconstructions of the public/private divide on the other (Sassen 2006). The

existence of a correlation between the partly opposite developments of

socialization, privatization and politicization is hardly an issue in contemporary

discourse. The question is whether and how both the functional systems of

economy, politics and society as well as their institutions and actors inform each

other in terms of within but especially across the boundaries of the divide. (Jessop

200?:3).

26

The Public and the Private: entailment or entanglement?

In analyzing the semiotics of the public/private distinction, Susan Gal leaves

little doubt as to the qualification of the ‘separate spheres’ of the public and

private:

‘public’ and ‘private’ are not particular places, domains, spheres of

activity or even types of interaction. Even less are they distinctive

institutions or practices. Public and private are co-constitutive cultural

categories …But they are also and equally importantly, indexical signs that

are always relative: depending for part on their referential meaning on the

interactional context in which they are used. First than, the public/private

dichotomy is best understood as a discursive phenomenon. That once

established, can be used to characterize, categorize, organize and contrast

virtually any kind of social fact: spaces, institutions, groups, interactions

relations (Gal 2002:81).

The public/private divide can easily transform from a social-construction

into the constructed reality of “institutional structures and routinized

organizations” (Gal 2002:91). The dialectics of the public/private problematic is

best illustrated by the understanding that publics and privates are at the same time

both “mutually embedded” as well as mutually demarcated (Gal 2002: idem)

Many contemporary scholars understand the trend towards increasing

privatization and the ‘hollowing-out’ or deconstruction of the public as linked.

As such, it constitutes a “classic condition of postmodernity” (Dickinson

2005:146). Because of valued dispositions towards the private and the public,

the public-private discourse has become highly normative. The discourse must

critically call its interests and the values into question including a normative

reconsideration of the ‘expropriated’ public of the multitude. In the process of

reconstituting the link between the public and the common or the multitude,

public is no longer a sector commonly equated with authority and government

or an abstract concept called the state. It has been in the latter sense, however,

that the term ‘public’ has been the subject of much scholarly debate centering

around the ideas of the more abstract “public realm” (Arendt 1998), the more

27

concrete “public sector” or combination of these two understandings

(Habermas 1990).

In Strukturwandel der Öffentlichkeit Jürgen Habermas argued that the

institutionalization of the public in the civil constitutional state constituted a

contradiction (Habermas 1981:par. 11 Die widerspruchvolle

Institutionalisierung der Öffentlichkeit im bürgerlichen Rechtsstaat). It is this

political and legal institutionalization of the public that created the condition for

the subsequent economic privatization of the common. The process of

entanglement between the public and the private is first of all a sectoral

entanglement; an entanglement between public authority and private interest;

between government and business. There is little doubt that this entanglement

raises questions concerning the prioritization of values and subsequent

accountability. In order to remedy the unwanted consequences of this

entanglement solutions have been suggested in two opposite directions.

Neo-liberal informed scholarship and those who take the ‘privatized world’

as an ontological truism, have by and large argued to institutionalize the

entanglement between government and business (Dickinson 2005; Dickinson

2006). More critically common(s)-oriented scholars have pleaded for a

(qualified) disentanglement of the public and the private because not all public

entailments can be subjected to the entanglement of a public-private trusteeship

(Sassen 2006:184 et seq).

The different approaches seem to be informed by different perceptions of

both the conception of the public realm as well as the vitality of that realm.

According to Saskia Sassen, the public is perceived as being either “critical to

the viability of the new types of markets and emerging types of private

authority” or it is “simply a victim of growth of the private domain” (Sassen

2006:186).

If one assumes that society has a critical potential to resist, than that

potential is not found in ‘the public’ as the multitude’s representing agency.

History provides ample examples of instances where government-business or

public-private entanglements such as warfare and imperialism, and pollution

and expropriation of national, regional and global commons has victimized the

multitude and the common good. The critical potential of the public is realized

and released (if at all) at most ad post factum and generally without seriously

28

threatening the private. While there is little doubt that “the historically

constructed and formalized division between a putatively apolitical private

market domain and a public political realm has been one of the constitutive

elements of national capitalism and a highly valued norm of liberal

democracies” (Sassen 2006:184), we must also acknowledge that this

construction and division is still being maintained today. The public-private

divide was and is a joint political/economic project, with the objective to

excluded the multitude from these domains. Only if we consider the

development of the public as an elitist political project can we assume with

Sassen that

the modern western evolution in the formalizing of two distinct spheres

largely expanded and valued the public realm, even as it developed the

private as a sphere marked by neutrality and the absence of politics; the

development of the sphere of the market was enabled by a strong public

realm and a strong concept of national interest (Sassen 2006:185).

Since the 1980s, we witness according to Sassen a “reconfiguration of the

relationship between the private and the public” which relates to the

transformations inside the state and are projected on the reorientation of state

capabilities towards global projects (Sassen 2006:149). Such a reconfiguration

would not be limited to the “normative recoding” of the transactions inside the

state (Sassen 2006:185), but would in my opinion require a parallel ‘normative

recoding’ of the relationship between the public and the private in global

projects, such as analyzed below. Can we be confident that the character of the

private-public division will only partly change with the post 1980s developments

(overall growth of private authority) because the states’ administrative

capabilities to maintain the critical distinctions between the public and the

private stay in place “as a critical agency for the instituting of the new

organizing logic of the global age and thereby the reconstruction of the public-

private divide” (Sassen 2006:192)?

Sassen is particularly critical because of the “shift of authorities out of the

state” and “the denationalizing of particular components out of the public

domain” (Sassen 2006:193). These beyond-the-state dynamics are likely to

magnify the major concerns of the contemporary “growth of private forms of

29

authority … the proliferation of private agents …the marketizing of public

functions …, the circulation of private norms and aims through the public

domain, …[and] the shift of public regulatory functions to the private sector

where they reemerged as specialized corporate services” (Sassen 2006:192).

The privatization wave of the 1980s is not exclusively limited to the profit-

sector. The period 1975-1985 reveals a fivefold increase in development aid

channeled through NGOs (Hudock 1999:3) and between 1973-1983, a doubling

of the international nongovernmental social change organizations has taken

place (Keck and Sikkink 1998). The privatization of the social has become the

new postmodern, multitude-dividing project. While the phenomenon of civil

associations emerged with nationalism and imperialism, advanced NGOization

and privatization of the social is a postmodern project. The phenomena rather

reflect further containment of the multitude (Petras and Veltmeyer 2001:135)

than the democratization processes in the 1980s as Brühl contends (Brühl

2002:371).

Civil Society: the associational playground of the multitude?

Above, I portrayed the public and the private as a divide that still informs

many of the discourses in social, political and legal sciences. Here, I introduce

the social as a third realm in any given polity. The social finds its well-known

expression and conceptualization in civil society, which has triggered a

discourse of its own, which in most its post-modern restatements has

disregarded the triangular relationship with the public and the private. Instead

civil society is either constructed in opposition to ‘natural society’, ‘the state’ or

‘commercial society’ (Kaviray 2001) or “reinvented” in the context of the fall of

the communist regimes in Central and Eastern Europe. That context signifies

both its distinctive post-modern break with both its neo-modern story of

origins as well as with its territorially bound character (Kaldor 2003:3).

A pluralistic understanding of civil society is found in Michael Walzers’

conception of civil society (Walzer 1995). In addition to the plurality of

“uncoerced human association” and “relational networks”, Walzer also

identifies the pluralities of “family, faith, interest and ideology” (Walzer 1995:7).

In terms of ideology, for example, Walzer’s civil society can neither be

30

identified with the political (decision-making/republican), nor the economic

(production), the commercial (market) or the national (statehood). Civil society,

according to Walzer exists in relation to these four singularities, but has no

singularity of its own.

Civil society is sustained by groups much smaller than the demos or the

working class or the mass of consumers or the nation. All these are

necessarily fragmented and localized as they are incorporated (Walzer

1995:27).

In an effort to overcome the capitalist, socialist and nationalist conceptions

of civil society, Walzer’s ‘synthesis’ results in a realist reconfirmation of state

power and an idealist plea for a rather critical engagement of civil society groups

(Walzer 1995). As such it is not an analytical concept through which we

comprehend and reevaluate the specific relationship between the public and the

private. Neither is it to be understood as an element of political-economic-social

trinity, in which the composing elements are part of and related to one or both

of the other elements in order to obtain and consolidate a larger objective: the

liberal/capitalist order. Were Walzer focuses on the associational character of

civil society and “groups smaller than the demos” he fails to appreciate the

multitude as the living reality over the constructs of civil society and its

NGOizated structure.

The relationship between ‘the public’, ‘the private’ and ‘the civil society’ is in

a double sense problematic. First of all, in terms of the relationship between

politics, market and society it is unclear how the producing of these fields

inform each other. Secondly, the contentious relation between government,

business, and multitude is not necessarily reflected in the link between the

spaces, which these agencies occupy. The state constitutes a constitutionally and

international legally defined container in which these processes and agencies

have been traditionally located, but do not conceptually speaking constitute

neither a deterministic nor a probabilistic cause for changes in the kind of

relationships indicated above. With respect to the relationship between the state

and these processes, it is unclear, whether the state is predominantly informed

by or predominantly informs the interaction between government, business and

multitude (Knuttila and Kubik 2000; Meyer, Boli et al. 2004) Walzer’s

31

contention that “only a democratic state can create a democratic civil society;

only a democratic civil society can sustain a democratic state” (Walzer 1995:24)

raises that ultimate question as to who or what ‘created’ the democratic state.

The netter view is that ‘democratic states’ are not ‘created’ in the sense that they

are the result of a formal constitutive act, but rather the result of a creative

process of meaning and making, which strikes a demos-cratic balance rather

than a democratic balance. The later strikes a constructed balance between the

powers of the public sector, the private sector and the community, and

effectively neutralizes the multitude, whereas the former would strike a balance

based upon the multitude’s common. It is the multitude, which in Hardt and

Negri’s understanding constitutes “the production [and reproduction] of the

common [that]… tends to displace the traditional division between individual

and society, between subjective and objective, and between private and public”

(Hardt and Negri 2006:202).

The contentions between civil society and public authority are often

misunderstood as antagonisms between civil society and the state. Anheier et al.

for example consider civil society as “the socio-sphere located between the family,

state and market and operating beyond the confines of national societies, polities

and economies” (Anheier, Glasius et al. 2001:193). Opposing the state and civil

society have led many authors to believe that the state would become obsolete

once civil society would be completely constituted (see e.g. Walzer 1995:23).

Because of the -often- misunderstood relationship between ‘civil society’ and

the state it is necessary to elaborate on that relationship. As indicated above, I

have assumed and questioned the public as an element in a trinity of change

rather than the state as such. The state is a construction, which is defined by,

citizens, governmental authority and territory and delimited by boundary

markers.

The character of the internal governmental authority structure (the public) or

the role and position of business (the private) or the citizen (the civil society)

does not determine the existence or inexistence of the state, which functions as

the container for the ‘trinity of change’. Interactions between the government,

business and citizens may redefine the elements within or the seize of the

container. Whereas government-business-citizens contentions may define and

redefine the boundaries of the state, as of yet these contentions are unlikely to

32

unmake the state. On the contrary, government, business and citizen make and

remake the structure called ‘state’ in smaller or bigger seizes but is of yet not

without government, business or citizens.

But, whether civil society cannot “dispense with the state” as Walzer contents

is than highly questionable (Walzer 1995:22, italics MN). The state is merely a

structure; an idea based on governmental powers in order to regulate people

and resources and is basically territorially delimited. The development of an

administration has according to Hardt and Negri changed the relationship

between the governing and the governed in the sense that power and politics

were institutionalized within the state rather than within the sovereign;

institutionalized with a sense of order rather than with a sense of command

(Hardt and Negri 2000:88). ‘Civil society’ plays an identical role in that

resistance and protest are institutionalized in ‘civil society groups’ rather than

the multitude. ‘Civil society’ is the final result of the politics of organizing the

multitude.

On the origins of the politics of organizing the Multitude

As indicated in the introduction, Machiavelli was one of the first political

scientists/politicians who understood the political and economic power of the

multitude and the need to organize and contain these powers. Where the realist

Machiavelli focused on the impressive, constructive and destructive forces of

the unorganized multitude, his humanist contemporary Erasmus ridiculed the

multitude in his Praise of the Follies. To Erasmus, the multitude was “foolish”,

“stupid” “giddy” and “ignorant” (Erasmus, 1511:12, 23, 25, 40).

The multitude’s historiography reveals an astonishing mixture of respect and

ridiculization of the movement of the unorganized masses. It reflects the

uneasiness with its massive power to resist, which can equally be found in

today’s discourses on movements, mass resistance and non-governmental

opposition (Keck & Sikkink, 1998; Tarrow, 2005; Petras & Veltmeyer, 2001,

Hardt and Negri 2006). The street battles in Seattle, Gaza, the banlieus of Paris

and Oaxaca and the peaceful marches in Washington DC, Rome, Tokyo and

Minsk trigger the same mixed understanding of the multitude to contemporary

observers as it did to the commentators of the historical multitude. Where

33

Seattle is “magic”, “inspiring” and above all “transformative” to the one (Hardt

and Negri, 2006:288), it is a “singular event with little effective follow-up” to

the other (Petras & Veltmeyer, 2005:110).

It was on the basis of the recognition of the existential relationship between

the multitude and resistance that Machiavelli started to politically conceptualize

the containment of the multitude, for he pitied the prince “who has the general

public hostile to him [and] can never make sure of them…”

(Machiavelli,1517:29). How different was the advise, which he gave to the

princes in The Discourses to the advise, which he gave them in The Prince: The

best remedies princes had, according to Machiavelli, is “to seek to make the

People friendly”. Therefore, “it appears that it is better to be humane than

haughty, gentle than cruel, when governing a multitude” (Machiavelli,1517:29,

328). Appeasing the multitude was according to Machiavelli relatively easy if the

“indispositions” of the multitude were not stemming from the fear to lose their

liberty and if they “do not have Chiefs to whom they have recourse”

(Machiavelli,1517:68). The Machiavellian dis/organization of the multitude had

begun.

The Machiavellian understanding that the multitude must at the same time

be organized and disorganized would become the credo of the politics of the

post-Machiavellian elites up and until today. The (dis)organization of the

multitude is based on two different concepts, which related to the building and

maintenance of the early modern state. The multitude had, first of all, to be

organized in order to defend and support the state vis-à-vis third states, in other

words, to maximalize its Machiavellian “usefulness”.

In the formative years of Westphalian state building, the state was not only

an international project but also the “the means by which the multitude may be

guided or kept within fixed bounds” (Spinoza 1677:5). The rationalization of

the confinement of the multitude for the sake of ‘governmentality’ of the state

would become the accepted and common practice in the 17th century

notwithstanding Rousseau’s idea that “there will always be a great difference

between subduing a multitude and ruling a society” (Rousseau, 1762:60).

Rousseau incorporated Spinoza’s idea that “contracts or laws, whereby the

multitude transfers its right to one council or man, should without doubt be

broken, when it is expedient for the general welfare to do so” (Spinoza,1677:25)

34

into his social contract theory, which implicetely included the right to “break

the social treaty” (Rousseau, 1762:60).

While the multitude’s right to resistance was formally recognized by the

politico-academic elites of the enlightenment, in principle and practice it was

ludicrous, due to the conditionalities, which were attached to the exercise of

resistance and the organization of imperial society. The multitude, subsumed in

civil society groups, labor forces and political parties, has played no role in the

considerations of modern and postmodern political and legal discourses. At

most the multitude is recognized in its singularity (Alston, Academy of

European Law. et al.) or as a peoples, which constitutes just another political

division of the multitude beyond-the-state (See e.g. Rawls, 1999).

35

36

III Moving beyond-the-state; The Remaking of Policies and Practices

Moving beyond-the-state

Since Marshall McLuhan creatively suggested to imagine the world as “a

global village” (McLuhan 1962) and environmentalists started in the 1970s to

stress the necessity to think globally, the idea to move-beyond-the-state has

definitely punctured contemporary language. Many studies and discourses on

civil society, governance, interdependence, movements and even the state have

been decorated with the fashionable adjective global (Keohane and Ostrom

1995:49; Walzer 1995; Shaw 2000; Keane 2003; Held and Koenig-Archibugi

2005; McDonald 2006). While more prudent scholars insist on the term

transnational in order to denote a realm beyond the traditional international, the

general trend to up-scaling beyond-the-state is well recognized (Risse-Kappen

1995; Tarrow 2005).

While the reality of the global may have outmoded McLuhan’s image of a

global, its transformation is not wholly unproblematic as convincingly suggested

by Oran Young in an article on The Problem of Scale in Human Environment

Relationships (Young 1995). “The problem of scale” according to Young

“revolves around the transferability of propositions and models from one level

to another in the dimensions of space and time” (Young 1995:27). Applying this

insight to ‘global civil society’ Lechner and Boli correctly conclude that this

phenomenon “emerges far from largely analogous to the national civil societies”

(Lechner and Boli 2000:364).

As stated in the introduction, the problematic of scaling is not merely

methodological, but also has an important normative/political dimension. That

political dimension is downplayed in the pragmatist perspective, which holds

that the engagement with the conceptualization of a global civil society does not

intend to differentiate between the reality and the appearance of global civil

society, but between the more useful and the less useful concept here and now

(Rorty 1999:xxii).

While the moving beyond-the-state may involve a quest for “cosmopolitan

definitions” as Gerring (Gerring 2001:55) contends, it is quite another thing to

‘cosmopolitise’ definitions and concepts according to one or another pragmatic

37

understanding. The normative dimension of the problem of scale can best be

illustrated by Young’s discussion of the different notions of res communis and res

nullius at the local and global level and the character of communities and actors

in collective action problems (Young 1995:31).

Where a local res communis would generally be regarded as common property,

the idea of a property based entitlement to “such diverse phenomena as the

high seas, the stratospheric ozone layer, the global climate system, the

electromagnetic spectrum and outer space” is lacking at the global level (Young

1995:idem). Neither the state, nor the individual or any representative body

owes what is generally regarded to be the common heritage of mankind. To the

extent that commons beyond-the-state constitute common pool resource

problems like the Deep Seabed, for example, specific common pool resource

managing arrangements like the International Seabed Authority should be

designed. In stating that “conventional wisdom has long held that the way to

avoid these problems in human/environmental relationships is to introduce

private property or on some accounts public property”, Oran Young

demonstrates how easily the problem of scale trap is stepped into (Young

1995:30). The methodological problem is easily turned into a normative one.

The transferability of the expropriation of public property at the local level

for the sake of the privatization of environmental concerns would at the level

beyond-the-local amount to the privatization or commodification of the global

commons. One of the normative dilemmas lies in the question whether

property notions and privatization should be introduced in solving problems

beyond-the-state. The main differences between the discourse on local resource

regimes and the discourse on international resource regimes is according to

Young the difference in orientation and problem definition (Young 1995:30).

Towards a new-transnationalism?

The question mark stands for all the questions that have arisen on the

subject of transnationalism in the decade between Thomas Risse-Kappen’s plea

for Bringing Transnational Relations Back In (Risse-Kappen 1995) and Sidney

Tarrow’s conclusion that The New Transnational Activism is “domestically

rooted”, “episodic and contradictory” and embedded in internationalism

38

(Tarrow 2005:29). The question than is whether transnationalism signifies more

than “regular interactions across national boundaries when at least one actor is a

non-state agent or does not operate on behalf of a national government or an

intergovernmental organization” (Risse-Kappen 1995:3). And if so, whether the

transnational realm is more than a state of affairs parallel to the international,

which had already been recognized, albeit differently appreciated in a number of

seminal publications (Huntington 1973; Keohane and Nye 1977; Waltz 1979)

The term transnational is generally used to refer to a diversity of phenomena,

which have in common that they cannot be captured by reference to the

international, which has become conoted with systems that exclusively include

states and international organizations. Traditionally transnational phenomena

are defined as border-crossing events in which at least one non-state actor is

involved. On the basis of the involvement of non-state, non-governmental

actors, a transnational phenomenon has been distinguished from

transgovernmental and international phenomena. When transnational is used to

denote actors, the term is even more complicated. Are we transnational

scientists simply because we cross borders when we go to conferences abroad?

Are the members of a local environmental NGO transnational activists because

they collect and donate money to their sister organization across the border?

Internationalism, on the other hand, traditionally refers to an

institutionalized environment, which facilitates co-operation between states.

Internationalization is generally regarded as a historical project, which has been

made and remade according to the specific time-place bound needs of states. In

its early modern inception phase, it was very much a collaborative project

between the emerging modern Westphalian state and burgeoning capitalism

(Shaw 2000: 25 et seq). There is not a great deal of coincidence in the historical

circumstance that “the modern capitalist state was born within an international

framework” (Sassen 2006:149, italics mine). While it can be argued that that

early modern combination of Machiavellian Realism, Grotian Idealism and

Mercantilism could not “move us into the type of world scale evident today”

(Sassen 2006: idem), the question is whether these revisions have substantially

altered internationalism or whether we are notwithstanding the rhetorics of

transnationalism and globalism in just another revisionist phase of

internationalism, which may alter (some of) the rules of the system but not the

39

system itself. Understanding the contemporary process of “globalization’s

relationship to the structure of international politics and transnational

contention”, Tarrow suggests to begin with an understanding of the relationship

between capitalism and state building in what he calls “the great

transformation” (Tarrow 2005: 17-18).

The idiosyncratic duality in internationalism is illustrated by the

characterization of the system of international law as public, which is informed

by the understanding that states are public entities and the misunderstanding

that internationalism can take the public beyond-the-state. Referring to the

Bretton Woods system, Sassen vividly illustrates that system as one that

“focusses largely on the private side of the issues, where each state conducts

itself as a private actor with private interests rather than focusing on the shared

commons of the international community” (Sassen 2006:155).

The public/private problematic in the international legal order, is best

understood as the historical, Grotian reconstruction of the Roman ius gentium,

which was essentially about private entitlements. The private law concept of

contracting perfectly fitted the emerging political construction of sovereign

equality. The idea of a public realm or a commons beyond-the-state, which

could not be appropriated by the state was only developed in the service of

early capitalism. Grotius De Mare Librum, was originally written as a legal brief

for the Dutch East Indian Company, which needed a res communis construction

of the freedom of the high seas in order to appropriate res nullius and engage in

privateering (Borschberg 2005; Van Ittersum 2006).

Grotian internationalism was as much a state as it was a non-state project.

But, if states and non-state actors have jointly produced a realm of linkages

beyond-the-state, than van Apeldoorn is right in concluding that “transnational

relations are as old as international relations” (Apeldoorn van 2004:142). The

transnational/international problematic and puzzle is than reflected in the way

in which separate structural realities of trans-international relations are

reproduced by states and non-state actors alike. While the construction of actor

specific, separate realms can from a positivistic perspective be considered to be

organizationally and legally neutral; from a socio-political perspective it requires

a reflection on the inclusive/exclusive problematic. Van Apeldoorn’s critique

that transnationalism’s phenomenology has been subjected to empirical

40

identification and conceptual definition, but not to theoretically clarification, is

therefore to be understood as both a paradigmatic as well as a normative

critique (Apeldoorn van 2004).

On the basis of Rissen’s definition of transnational, the state may be

properly excluded from the transnational world. In order to avoid that

consequence however, the state re-enters through the back door, by

functionally refining the concept of transnational in the sense that the state

becomes the target of transnational actors (Risse-Kappen 1995:8) or by claiming

that it “is more fruitful to examine how the inter-state world interacts with the

society world of transnational relations” (Risse-Kappen 1995:13). That claim in

itself is informed by the perception that “the reciprocal effects between

transnational relations and the interstate system [are] centrally important to the

understanding of world politics” (Risse-Kappen 1995: 5, citing Keohane and

Nye, 1977)). To the extent that such a claim is based on conceptual differences

between the international and the transnational it is theoretically flawed. It is

therefore that Risse-Kappen’s refined conceptualization of transnational

relations does not seek to develop a new theoretical idea (Risse-Kappen 1995).

Instead it engages in a project to take the agent-structure problem in

international relations one step beyond Wendt’s understanding of ‘structuration’

(Wendt 1897) and provides another social-constructivist focal point beyond-

the-state. In that, ‘transnational’ became a well-received, but rather illusive term

of art.

Internationalization, transnationalization and globalization have become

terms, which do not in themselves refer to conceptually different processes or

phenomena. Both world-wide, issue-related protests and demonstrations as well

as the movements behind these actions for example can apparently be

designated as “international” (Tarrow 2005:15), “transnational” (Keck and

Sikkink 1998; Zürn 2005:155), or “global” (McDonald 2006) without a

significant concern for any of Gerring’s “criteria of conceptual goodness”

(Gerring 2001:41).

If there exists no conceptual distinction in the lexicons and terminology of

ordinary, academic and elite language in order to denominate processes and

phenomena beyond-the-state, why than do we use terms, which suggest a

difference in agency and structure beyond-the-state? Would it make a

41

conceptual difference, if we would swap the terms ‘international’ and

‘transnational’ in Sidney Tarrow’s metaphor of “transnational activism [which]

does not resemble a swelling tide of history but is more like a series of waves

that lap on an international beach” (Tarrow 2005:219). It wouldn’t, but that is not

to say that it does not entail any normative consequences. The blurring of

specific language to denominate processes and realms beyond-the-state

undermines an understanding of that process as the post-modern continuation

and consolidation of the statist/capitalist project. The global turn requires an

imaginative language and a conceptual turn.

Imagining Empire

As stated in the introduction, the most recent, imaginative and thought-

provoking move beyond-the-state is Michael Hardt and Antonio Negri’s

Empire, which is presented as a “new global form of sovereignty …[a] new

inscription of authority and a new design of the production of norms and legal

instruments of coercion…” (Hardt and Negri 2000: xii, 9). Unlike other world

order projects (see e.g. (Falk, Johansen et al. 1993) empire transcends state

based conceptions of the contemporary world order. This is not to say that the

state is wavering or put to a rout. In the trajectory of history, the state may be

represented in the image of the dwelling, the village, or the city which have all

been identified and re-identified in socio-political, time-space related images

(Sassen 2007).

Unfortunately, Empire seeks to overcome “state imperatives by constituting

a global civil society” (Hardt and Negri 2000:7). Hardt and Negri do not

reproduce civil society in the traditional modern, because that “conceptual

framework … was the terrain of the becoming-immanent of modern state

sovereignty (down to capitalist society) and at the same time inversely the

becoming-transcendent of capitalist society (up to the state)” (Hardt and Negri

2000:328). Their terminology, however, faces the political dilemma of the

scaling process. Hardt and Negri stress in -a Hegelian sense- civil society’s

meditative function and the function of non-state institutions, which “organized

capitalist society under the order of the state and in turn spread state rule

throughout society” (Hardt and Negri 2000:328). At this point, I would have

42

preferred that Hardt and Negri would have avoided neo-liberal constitutionalist

terminology. The making of a global civil society does not necessarily require

the prior existence or simultaneous development of global constitutionalism.

Precisely because Empire’s project intends to move beyond Hobbesain or

Lockean conceptions of the world, such languages should be avoided. Especially

since their understanding of the contemporary formation of world authority in

terms of norm and procedure (Hardt and Negri 2000:9) and the

operationalization of the conceptions of “society of control” and “bio-politics”

(Hardt and Negri 2000:23) is heavily co-depending on the empowerment and

emancipation of the multitude.

Hardt and Negri’s multitude is the “other head of the empirical eagle …the

plural … of productive, creative subjectivities of globalization” (Hardt and

Negri 2000:60). That post-modern multitude cannot and should not be

understood in the dialectics of Marxian historical materialism, Giddensian

structuration or Rawlsian jurisprudence9. Multitude is the physical, human basis

of any socio-political constructed phenomenon. Multitude is whereas class,

structure, agency and law is construction. The complexity of multitude becomes

immediately clear when multitude is understood from the multiple lenses of

ontology, politics and norms. “From the perspective of social productivity and

creativity … the ontological perspective. The multitude is the real productive

force of our social world ”(Hardt and Negri 2000:62). From a political

perspective, multitude must be understood first as struggling both within as well

as against empire and secondly as seeking inclusion and exclusion (Hardt and

Negri 2000:62; Hardt and Negri 2006:219 et seq). Finally, multitude is a

normative force, in the sense that it engages in a continuous definition and

redefinition of its own goodness and badness in terms of its common (interest).

While the conception of empire is –as such- not informed by any public-

private divide, let alone a public-private partnership problematic, the act of

transcending the images of public-private, i.e. the discovery of “the commons is

the incarnation, the production and the liberation of the multitude” (Hardt and

Negri 2000:303). It is in the historical destruction and future reconstruction of

9 John Rawls’s recent ‘realistic utopian’ turn(ing) Rawls, J. (1999). The law of peoples ; with "The idea of public reason revisited". Cambridge, Mass., Harvard University Press. as he calls it, ia a conception of a world-order based on the dividing conception of a ‘peoples’ which is just another ‘representative’ associational form.

43

the commons that multitude have to be found and founded. Hardt and Negri’s

exposé on the ‘commons’ reveals a clear (neo)Marxist orientation:

Capitalism sets in motion a continuous cycle of private reappropriation

of public goods: the expropriation of what is common….the currently

neoliberal trend towards the privatization of energy and communications

services … consists in granting to private business the networks of energy

and communication that were built through enormous expenditures of

public money. Market regimes and neoliberalism survive of these private

appropriations…The public is thus dissolved, privatized, even as a concept.

(Hardt and Negri 2000:301)

Whereas empire completely involves the multitude in the creation and

construction of a “new notion of ‘commons’” and the “making of a

community” (Hardt and Negri 2000:302), it is not a communitarian project

(Hardt and Negri 2006). Empire’s imaginative projection of a future world

order is at the same time both a post-capitalist as well as a post-communist

project. Objections and obstruction will therefore come from public as well as

private forces, which constitutes and is constituted by the systematic making

and remaking of power, production and polity.

It is here that the idea and agency of public-private partnerships consolidate

empire from within. Whether empire is a project under construction, or

whether it is understood from the power politics from within, neither is value

free or without the consequences of social, political and economic forces which

shape empire and trigger both hegemonic forces as well as counter hegemonic

forces.

44

IV The Ozone and Climate Change Regime; Public-Private

Partnerships beyond-the-state? .

PPPs: What are we talking about?

A most convenient starting point to explore the question what public-private

partnerships are, is Roger Wettenhall’s The Rhetoric and Reality of Public-Private

Partnerships (Wettenhall 2003). Wettenhall’s main concern is the “boundary

blurring process” (Wettenhall 2003:85). ‘Public-private partnership’ has become

a term of convenience, which signifies all kinds of public-private mixes, such as

mixed enterprises, outsourcing and contracting out, privatization, subsidization

and many others. This new liberal terminology not only creates scholarly and

conceptual confusion, but also facilitates the uncritical acceptance of the

reduction of the public element in these public-private mixtures. In order to

differentiate more clearly between the various types of public-private mixtures

and their different social consequences, Wettenhall proposes to develop a

typology along the relational lines of a “vertical/hierarchical” axis and a

“horizontal/collegial” axis. Genuine partnerships are than only to be found on

the latter axis (Wettenhall 2003:99).

Whether the ideal-type ‘collegial’ PPP can be located in a PPP typology is a

question of concept and definition. The suggestion, however, that such an ideal

‘collegial’ PPP might exists is highly political in its conceptualization, because

the ‘idea’ is not critically reflected upon. In addition to the

organizational/relational aspects of the partnerships one can also focus on the

(1) constituency, (2) purpose and/or (3) activities of PPPs. Each of these

focuses are equally problematic as they are based on dividing typologies or

meanings.

In terms of constituency, for example, public-private partnerships can be

classified on the basis of the distinction between the public, the private and the

civil society, as argued above. On the basis of that distinction than, four types

of partnerships can be identified: Government-Business, Civil Society-Business,

Civil Society-Government and Civil Society-Government Business.

From a more traditional perspective (the one I adhere to for the purpose of

this exploration) public-private denotes government and business. This not to

45

say that the distinctive features of the partners are always clear-cut or easy to

establish. Considering the normative and political consequences of the

involvement of different sectors in these partnerships, there is little compelling

reason to be to formalistic about identifying public-private partnerships. The

manner in which PPPs are agreed upon, established and legalized is immaterial

for their potential impact. One of the political impacts is the

exclusion/inclusion phenomenon. If a partnership is informed by a traditional

understanding of the public-private, that partnership is likely to exclude the civil

society. Private is than in most cases understood as referring to profit oriented

entities: corporations, business and industry associations and other for-profit

interests (Buse and Walt 2000). The not-for-profit interests are generally

organized in Non-Governermental Organizations (NGOs citizen organizations)

and Civil Society Organizations (CSOs) (Nishtar 2004; Beckmann, Rai et al.

2005). Whether this distinction between the profit sector and the non-profit

sector should be maintained in PPP-land questionable. Whereas NGOs and

CSOs are indeed private in form, their ideal typical purpose or interest is of a

rather society oriented or public character (Reinalda 2001). On the other hand,

the privatization wave has not left the not-for-profit sector untouched, which

has led critical Neo-Marxist scholars like James Petras and Henry Veltmeyer to

conclude that NGOs serve rather than undermine imperialism (Petras and

Veltmeyer 2001:123 et seq). It appears that neither normative nor analytical

considerations justify the exclusion of the non-profit sector from an analysis of

PPPs (Brühl 2002:371).

Partnership indicates in the opinion of most analysts an institutionalized

collaborative/cooperative relationship, which create agency in its own right.

Out-sourcing, procurement and tendering result in a public-private arrangement

but do not constitute genuine public-private partnerships.

The purposes or objectives of these partnerships may involve any or all of

the following: policy-making, norm-setting and implementation (Beckmann, Rai

et al. 2005; Börzel and Risse 2005) or in the terminology of Buse and Walt:

consultation, concertation and operationalization (Buse and Walt 2000).

From the same perspective another critical, yet illusive distinction can be

questioned. According to Judith Richter, it is “important to distinguish in

general between public-private ‘partnerships’ as a policy paradigm, and actual

46

examples of public-private ‘partnerships’ (Richter, 2003:47). Here again, it must

be recalled that policy and practice cannot easily - if at all - be separated. PPPs

are at the same time ideational and empirical. Richter’s call for separating

practice and policy demonstrates that scholars are struggling with phenomenon

of public-private ‘practicy’. A phenomenon, which is characterized by the

entanglement of the practice and policy. Notwithstanding many critical

investigations, most scholars are on a mission to improve public-private

partnerships beyond-the-state (Richter, 2003; Andonova & Levy, 2004;

Wettenhall 2003). Social-political engineering seems to be the devise in the

public-private partnership discourse. Instead of deconstructing PPPs and

revealing their power structures and consequences for the multitude’s

empowerment and resistance, critical PPP scholarship is on a mission to

“influence the future of the partnership process” (Andonova & Levy, 2003:29).

In order to avoid that “the seeds of innovation currently present will be choked

out and the process will become a mockery” (Andonova & Levy 2003:idem),

PPP criticasters have adopted a technical rather then a normative understanding

of term critical. What should be questioned is whether these ‘seeds of

innovation’ actually include or exclude the multitude.

Bringing the multitude back in

The need to bring the multitude back in flows directly from Andova and

Levy’s conclusions with respect to the Johannesburg Type II Partnerships:

International Organizations lead close to one third of the partnerships,

an observation consistant with the hyphothesis that secretariats of

international institutions will be among the most eager suppliers of

partnerships in an effort to reinvent their mission and legitimacy. A closer

look at the 55 NGO-led initiatives all reveal that most of the leading NGOs

as large transnational organizations…The WSSD partnership movement

appears to be led and dominated largely by international policy

entrepreneurs from international secretariats, OECD governments and

transnational NGOs, reflecting rather than challenging existing realities of

power and influence. […] While partnerships are expected to have a

comparative advantage in broadening the centres of influence and

47

empowering the weaker or non-traditional stakeholders in the international

arena, the empirical record shows that the partnership enthousiasm and

leadership of such groups remain limited (Anadova & Levy, 2004:23).

PPPs beyond-the-state are perhaps more problematic than their national

counterparts whether or not these partnerships are conceived as global,

transnational, or international (Buse and Walt 2000; Brühl 2002; Börzel and

Risse 2005). At the national level, the multitude would at least have the

possibility of recourse to legal procedures or other means of accepted and less

accepted resistance. Beyond-the-state formal instruments of protest and

resistance are limited and the multitude is subjected to PPP ‘practicies’10.

An analysis of the development of the public/private construct in the Ozone

and Climate Change regimes illustrates how the multitude is brought half-

heartedly into that specific regime for the protection of a shared or common

resource beyond-the-state. In order to do so, a clear analytical line must be

drawn between instances of public-private confrontations, private participation

in public settings and public-private partnership. Within the line of my general

argument, however, these demarcations should not be understood in an

ontological sense.

Brühl’s statement, for example, that “private actors have been important

partners in international governance from its very beginning … in 1972 at the

first environmental world summit in Stockholm” (Brühl 2002:372) can only be

taken seriously in hindsight. As far as the notion of partnerships is concerned ,

such statements contributes to further terminological confusion than that

clarifies discursive terminology. There are many ways to bring the private in, but

not al these ways create partnerships, in particular the participation of NGO’s

and business at larger UN conferences or Conferences of the Parties does not

constitute partnerships. The larger legal framework of treaties, protocols and

declarations for ozone protection and climate control construct an

environmental regime which constitutes a “common concern of mankind”

(Birnie and Boyle 2002:503), but they do not necessarily constitute a framework

for partnerships.

10 Somewhere else I have argued that the EU Court of Justice and the Worldbank Inspection Pannel, constitute mechanisms for individuals and groups to resist policies, practices and projects by public and private actors beyond-the-state (Noortmann, 2006; see also below).

48

The least one could argue is that the defined content and rather precise

demarcation of this regime facilitates the development of a public/private

process. The specific language, which culminates according to Benedick in “the

technical revolution that emerged from the public-private partnerships” as one

of the “most relevant [aspects] to the climate negotiations” (Benedick 2001:7).

However, in that revolution governments “adopted market-oriented policies

and incentives” rather than that the private sector adopted public good oriented

policies and incentives (Benedick 2001:10). Being the masters of their contracts,

governments can formulate and agree to a conventional text, which symbolizes

the underlying political agreement. That agreement might or might not include

an understanding on a public-private affiliation.

As early as 1985, governments started to introduce a private element in the

Ozone problematic by differentiating between ‘governmental’ and ‘private’

research in article 3 of Annex II of the 1985 Vienna Convention on the

Protection of the Ozone Layer. No reference to the public element was made at

that point in time. In article 9 (2) of the 1987 Montreal Protocol on Substances

that Deplete the Ozone Layer this deficiency is partly remedied by

acknowledging the necessity to raise public awareness, meaning the awareness of

the multitude on ozone depletion That multitude is thereby turned into an

addressee rather than a participant in the process of ozone protection. The

confined role of the multitude is confirmed in Article 11 of the same Protocol

in which civil society organizations are given a formal non-governmental

observer status. The multitude might by some considered to be ‘represented’

but it is definitely not invited to participate. In article 9 of the London

Amendment to the Montreal Protocol the necessity of public awareness is

repeated, but there is no formal, textual evidence that the private found its way

into the agreed regime.

In the subsequent protocols of Copenhagen, Beijing and Montreal a clearer

public-private dimension is materializing. However, the impact of these

arrangements is widely questioned. To Patricia Birny and Alan Boyle, for

example, the Ozone Convention is “largely an empty framework”, but in

combination with the Montreal Protocol and its amendments, the regime

“appears to be working” (Birnie and Boyle 2002:220,223).

It is in the 1992 United Nations Framework Convention on Climate Change

49

that the multitude receives more attention. On the basis of article 6 (b) the

parties are obliged to co-operate with respect to “education, training and public

awareness”. On the basis of the preceding article 6 (a), however, a significantly

broader obligation to develop public awareness, public access and public

participation is limited to the national, sub regional and regional level.11

It is in the 1997 Kyoto Protocol to the United Nations Framework

Convention on Climate Change than that the idea of public-private cooperation

is included in a legal instrument.12 Articles 10 (c) and 12 (9) respectively provide

for:

Cooperation in the formulation of policies and programmes for the

effective transfer of environmentally sound technologies that are publicly

owned or in the public domain and the creation of an enabling environment for

the private sector, to promote and enhance the transfer of, and access to,

environmentally sound technologies

and

Participation under the Clean Development Mechanism … may involve

….private and /or public entities…

It is with the adoption of the Kyoto protocol that

it became obvious that the reduction of the greenhouse effect would

require close co-operation between states and private actors …[which] will

play an important role in the implementation of these flexible mechanisms

since the very object whereby emission reduction is achieved is mostly built

and owned by private companies …. (Brühl 2002:374).

The consequence of this scheme is immediately clear to Brühl: “the decision

of TNCs to invest in other countries determines how and where emissions will

be reduced. Decisions will not be taken in the public interest, rather, emissions

will be reduced in accordance with market interest” (Brühl 2002:idem).

If Brühl is correct in her assumption and market interests are going to trump

11 The attention increase for involving the larger public in environmental issues has a strong post 1990 and European dimension. (See for example REC, 1996) 12 Article 10 (e) also recalls the obligation to “facilitate at the national level public awareness of, and public access to information on, climate change”.

50

public interest, than one must critically question whether the Kyoto Protocol

can be classified as a public-private partnerships scheme, whether it is an

example of “private governance, [which] goes beyond the phenomenon of

privatization in world politics” (Pattberg 2005:593) or whether it is just that

….privatization in world politics.

The Global Gas Flaring Reduction Public-private Partnership (GGFR-PPP: Beyond-the-

state and Back 13

The GGFR-PPP was initiated in 2001 at the the 7th UNFCCC’s Conference

of the Parties in Marrakech and launched one year later at the World Summit on

Sustainable Development (WSSD) in Johannesburg. A World Bank Press

Release, revealed that the GGFR was launched as a Public-Private Partnership.

The overall aim of the partnership was formulated as follows: “to support,

national governments, development agencies, and the petroleum industry in

their effort to reduce the environmentally damaging flaring and venting of gas

associated with the extraction of crude oil” (World Bank 2002). Than, five

different objectives are set in order to reduce gas flaring and an equal number

of practices in order to “overcome barriers that currently inhibit flaring

reduction”(World Bank 2002). The GGFR-PPP first of all seeks to:

create a forum and platform to disseminate best practices and ideas on

implementing and financing gas flaring reductions efforts. …improve flaring

statistics and reporting, and … develop … common technical standards …

enhance the World Bank mechanisms to mitigate the risk of financing

flaring reductions … and provide assistance in designing carbon credit

schemes to unlock ‘green’ financing (World Bank 2002).

The practical solutions are:

Improve the legal and regulatory framework for investments in flaring

13 All data and quotes which are unaccounted for in this section come (unless otherwise indicated) from: http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/EXTOGMC/EXTGGFR/0,,contentMDK:21023037~menuPK:2856621~pagePK:64168445~piPK:64168309~theSitePK:578069,00.html The site has been visited regularly in the period from May 1 – 17, 2007.

51

reductions; improve international market access for gas; provide technical

assistance to develop domestic markets for flared gas; disseminate

information, ncluding on international ‘best practices’; and promote local

small-scale use of gas. (World Bank 2002)

On three significant issues, the World Bank’s Press Release follows the

obligatory or politically correct rhetoric. First of all, “Non-Governmental

Organizations, civil society groups, and other stakeholders are expected to join

the activities of the partnership as it grows” (World Bank 2002) Secondly, it is

stated that it is the Partnership’s intention that “the bulk of investments come

from the private sector. And last but not least, “Poverty Reduction aspects are

[stressed] as an integral part of the Gas Flaring reduction Partnership” (World

Bank 2002).

At the GGFR’s 2006 Global Forum on Flaring Reduction and Gas Utilization, the

first four-year phase of GGFR was closed and the second 2007-2009 phase was

launched. While the Forum provided an opportunity to evaluate and reveal

GGFR-PPP’s achievements in that period, relatively little information on

success and failure has been disseminated by the GGFR-PPP. The following

results are listed on GGFR-PPPs website14:

Ten major oil companies, the OPEC Secretariat and 14 countries that

contribute a significant share of the world’s total flaring (about 70

percent) have already joined GGFR.

The majority of partners have endorsed a Global Standard for gas

flaring reduction

GGFR is implementing demonstration projects for associated gas

utilization in eight countries.

GGFR is assisting Algeria, Cameroon, Equatorial Guinea, Kazakhstan,

Nigeria, and Qatar to meet identified dates for zero flaring, through

increased collaboration between operators, the national oil company and

the regulator.

Potential avoided flared gas, through GGFR facilitated carbon

projects, is approximately 12 billion cubic meters per year (or 423 billion

14 www.worldbank.org.ggfr accessed 21 may 2007.

52

cubic feet), equivalent to 115 million tons of CO2 emissions reduction by

2012.

GGFR has developed a unique web-based tool to report flared and

vented data by country. The data tool will be implemented in GGFR

partner countries, starting with Cameroon, Nigeria, Algeria and Qatar.

How these results are to be assessed and whether they can all be attributed

to the GGSF-PPP is questionable. It is clear, however, that these results do not

include an increased involvement of civil society, an example of overty eduction

or reference to major financial contributions from the private sector. These

targets do not seem to have a high-ranking status on the GGFR-PPP’s priority

list.

The fact that the GGFR-PPP was unable to solicit the participation of civil

society representation

in the partnership in

the past 4 years and the

fact that there is little

indication that it is

likely to do so in the

next three years

qualifies some of its

objectives as mere

rhetoric if not lip-

service. It provides an

indication of what

GGFR-PPP is and

how it works.

GGFR-PPP first of all, constitutes a partnership between oil-producing

countries, state owned companies and major international oil companies, but is

unclear how these partners relate to each other and what their specific task

and/or function is in the partnership. According to GGFR-PPP’s own Partners’

matrix, partners are identified under the headings: Donors, Oil Companies,

Organizations and Countries. The latter category however contains links to

national companies rather than the country, leaving the question as to who is

who in GGFR-PPP wide open. The character of the partnership is extremely

Figure 1. GGFR Partners

53

questionable. Based upon GGFR-PPP’s newsletters and statements of the

GGFR-PPPs manager Svent Bensson, the impression arises that GGFR-PPP is

rather a 10-person unit, the ‘GGFR’s Core Team’ to put it in the Team’s own

words than a public-private partnership. It is a bureaucratic project, rather than

a governmental, let alone public-private partnership.

The three main activities of the office the GGFR Core Team, which is

located in the World Bank’s Department of Oil, Gas, Mining and Chemicals,

are: publishing reports and newsletters, organizing and attending workshops,

seminars and conferences, and maintaining a website.

After the 2002 World Summit on Sustainable Development, Bent Svensson,

the GGFR-PPP’s present Program Manager outlined a program, which

predominantly focused on “viable project’s i.e. financially viable to private

entities under existing regulatory/incentative frameworks” and “project financing

mechanisms [such as] carbon credit trade … international [and] domestic

markets (Svensson and Djumena 2002:3 ).

One of the problematics of the GGFR-PPP is the cooperative stance of the

partners or potential partners, such as the International Association of Oil and

Gas Producers (OGP), on their tasks if not duties within the PPP. The opinion

of OGP’s Executive Director Charles Bowen, leaves little doubt as to how

OGP would position itself within the GGFR-PPP:

Of course, OGP collects data from companies, not countries, so we’ll

have to examine, in some detail, the feasibility of our taking on this task

…to assist with monitoring, data collection and identifying and

disseminating best practices.15

Whether the GGFR-PPP is a typical or a-typical public-private partnership is

not a question that can be answered on the basis of this exploration. However,

it serves perfectly as an illustration of how the term public-private partnerships

are used for and by a sub-organization of the Worldbank, which is mainly

engaged in presenting smaller demonstration projects, participating in

conferences and acquisition for larger projects involving the partners. There is

little doubt that the partnership is first and foremost a project which is

15 International Association of Oil & Gas Producers, Highlights (December 2005), http://www.ogp.org.uk/Highlights/Issues/1205.pdf accessed 23/05/2007.

54

sustained by public money and intended for private investments. Moreover it

participates in the larger Kyoto scheme of commoditizing pollution. PPP like

the GGFR-PPP are likely to undermine the production of the multitudes

common.

55

56

V Conclusion: Bringing the Multitude’s Common(s) Back in

Hardt and Negri have observed that “a continuous movement throughout

the modern period to privatize public property” (Hardt and Negri 2000:300).

However, it is not so much the “the continuous cycle of the private

appropriation of public goods [as well as] the expropriation of what is

common” (Hardt and Negri 2000: 301) that constitutes the larger problematic.

The immaterial aspects of expropriating the multitude’s common are more

fundamental to the politics of (dis)organizing the multitude.

What is common is in contrast to the public good not necessarily material.

Common as in ‘common heritage of mankind’ or “Life in Common” -Hardt and

Negri’s telling preface to Multitude- is the produced shared that defines the

multitude and which “allows them to communicate and act” (Hardt and Negri

2006:xv). The consequences of expropriating that common may go well beyond

the consequences of the privatization of a public good.

Global publics, privates and civil societies are generally not discussed in

terms of a shared common, notwithstanding the traditional Olsonian logic of

collective action, which found that rational self-interested actors would “not act

to achieve their common interest or group interest” (Olson 1971:34). If the

multitude would be characterized according to the logics of behavioralism and

rational choice theory as a rational self-interested actor, the production of a

common would be a utopian project. However, if the multitude’s rational and

self-interest is one of physical survival, the achievement of a common is a

prerequisite.

The public-private partnership beyond-the-state by contrast seems to be

based on the outdated logic of collective action in that absence of a hierarchical

coercive or sanction mechanism beyond-the-state, only “some separate [outside]

incentative”, or partnerships which are “marked by considerable degrees of

inequality - that is, in groups of members of unequal size or extent of interest

in the collective good” (Olson 1971:34) collective resource problems can be

solved.

The problematic of PPPs beyond the state is exactly that they do not involve

the multitude in recreating that immaterial common beyond the state. On the

contrary the commodification of the ozone layer the results in the detachment

57

of the multitude of a common problematic. Where governments and inter-

governmental arrangements seek partners in the profit and not-for profit world,

the two realms (public/private) are artificially separated as demonstrated by the

United Nations policy with respect to civil society and business.16

In most of the specific Government – Business partnerships, the multitude

is structurally excluded. At best the multitude is captured in public participation

schemes of international instruments like the UNFCC and the Kyoto Protocol,

which provide for formal standing in (semi) legal procedures, but does not

guarantee its implementation. Somewhere else I have argued that the interest of

the individual, which I would now rephrase in Hardt and Negri’s multitude,

isstructurally excluded from the intergovernmental decision making processes. I

then pleaded for reforming the international institutional design from below

(Noortmann 2006:322).

Such a reform would aim at the involvement of both the multitude’s

singularities as well as its multiciplies, from which a “common identity, a

transnational demos … at the global level” –which as most authors agree does

not exist- (Brühl 2002:376) has to emerge. The failure to construct the common

would threaten our ontological existence. From the perspective of Empirical

biopolitics and with a flavour of existentialistic pessimism, the logic of collective

action will turn into the illogic of collective action if we adhere to Olsonian

understandings of public goods which are provided by governments. These

public goods beyond-the-state, have been appropriated before the idea of global

common(s) could develop.

It is in the exclusiveness of public-private partnerships that the core

problematic is found as these institutions preclude the development of a

common. The most important stakeholder in the production of that common

(the multitude) is not only excluded from the inception, institutionalization and

implementation of public-private partnerships, but also from the very

identification of the problem and its solution. As illustrated by the Kyoto

Protocol , the UNFCCC and the GGFR-PPP, the ozone and climate change

problematic is decommonalized and turned into technical issues such as flaring.

Poverty reduction is at most a by-product if not pure political correct rhetoric.

16 See the following UN websites: http://www.un.org/issues/civilsociety; http://www.un.org/partners/business/index.asp, http://www.unglobalcompact.org/; http://www.un.org/unfip/ accessed 30 May 2007.

58

It is not the objective at issue.

Excluding the multitude from engaging in global collective action problems

can be explained on the basis of Olsonian biases against including large groups

such as “negative rationality of reward”, absence of “oligopolistic interaction”

and high organization costs (Olson 1971:48). Keohane and Olstrom, however,

have convincingly demonstrated that the existence of a comparative element in

the collective action problematic at the local and the global level is lacking

(Keohane and Ostrom 1995). Keohane and Olstrom are inconclusive as to the

‘causality’ between the ‘number of actors’ and the ‘heterogeneity of actors’ as

independent variable and the outcome in terms of facilitating or hindering

cooperation (Keohane and Ostrom 1995:23). In this they deviate from Olson’s

findings (Olson 1971), who found a clear difference between small and large

groups with respect to the specifics of the scope and the heterogeneity of the

actors. Keohane and Ostrom issue a warning against the comparing and

designing of solutions for common pool resource problems at the local and the

global level:

[At the global level] … scope (the number of actors) and the heterogeneity

of actors pose complicated issues for cooperation. Increasing scope may

render cooperation more difficult: but the local CPR literature (as well as

the older literature on the balance of power in international relations)

should make one cautious about simplistic generalizations that increases in

scope necessarily hinder cooperation. When scope changes, so do other

features of the situation and it may be these changes that are causing the

observed effects. Furthermore, increase in the number of actors may, under

some conditions, increase opportunities for constructing coalitions that

facilitate cooperation (Keohane and Ostrom 1995:23).

Public-private partnerships do generally not increase the number of actors

and as such they hamper the production of the common of the multitude. PPPs

are at best instruments to address practical problems and as such they defy the

underlying common problem.

PPPs constitute an element in the (dis)organization of the multitude. It is the

in the ‘privatization' of the multitude i.e. the decommonalization of the masses,

that we find the empirical force. Public-Private Partnerships is just one way to

59

privatize the Multitude’s common. Were a post-empire era is the beyond the

divides, empire nurtures divides not only in terms of private-public, but also in

terms of the social, the political and the economic. The divide of the multitude

takes various forms of which the national, the religious and the political are the

most obvious. The privatization of the social and in particular the NGOization

and is in this respect completely underestimated. Even Hardt and Negri tend to

perceive multitude as the NGOizated civil society. If the multitude opposes the

“project of the privatization of the public goods” (Hardt and Negri 2006:204),

one question remains: which power will prevail: Multitude or Princes.

60

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