Hostname: page-component-586b7cd67f-rcrh6 Total loading time: 0 Render date: 2024-11-24T09:30:49.007Z Has data issue: false hasContentIssue false

Disaggregated Sovereignty: Towards the Public Accountability of Global Government Networks

Published online by Cambridge University Press:  28 March 2014

Abstract

Networks of government officials – police investigators, financial regulators, even judges and legislators – are a key feature of world order in the twenty-first century. Yet, these networks present significant accountability and legitimacy concerns. This article identifies and responds to the potential problems of government networks by suggesting means to increase their accountability and proposing norms to govern the relations of members of government networks with one another. Finally, the article develops the concept of disaggregated sovereignty, arguing that government networks have the capacity to enter into international regulatory regimes of various types and thereby are independently bound by the existing corpus of international law.

Type
Articles
Copyright
Copyright © Government and Opposition Ltd 2004

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Paul Martin, ‘Notes for an Address by the Honourable Paul Martin to the Royal Institute of International Affairs’, London, 24 January 2001, on Department of Finance Canada homepage (accessed 22 June 2003); available from http://www.fin.gc.ca/news01/01-009e.html.

2 Moises Naim, ‘Five Wars of Globalization’, Foreign Policy (January/February 2003), pp. 28–37.

3 Flynn, Stephen, ‘America the Vulnerable’, Foreign Affairs, 81 (2002), pp. 6074.CrossRefGoogle Scholar

4 David E. Sanger, ‘The World: When Laws Don’t Apply; Cracking Down on the Terror-Arms Trade’, New York Times, 15 June 2003, section 4, p. 4.

5 Robert Chote, ‘A World in the Woods’, Financial Times, 2 November 1998, p. 20.

6 The Financial Stability Forum was initiated by the Finance Ministers and Central Bank Governors of the Group of Seven industrial countries in February 1999, following a report on international cooperation and coordination in the area of financial market supervision and surveillance by the President of the Deutsche Bundesbank. In additions to representatives from the Basle Committee, IOSCO and IAIS, its members include senior representative from national authorities responsible for financial stability in significant international financial centres; international financial institutions such as the BIS, the IMF, the OECD and the World Bank; and committees of central bank experts. See ‘A Guide to Fund Committees, Groups, and Clubs: Financial Stability Forum’, on International Monetary Fund homepage (accessed 20 December 2002); available from http://www.imf.org/external/np/exr/facts/groups.htm.

7 American readers may be sceptical of these reports due to the widespread and completely false statistic about how few members of Congress have a passport. In fact, 93% of all members hold passports and average two trips abroad a year. Indeed, 20% claim to speak a foreign language. Eric Schmitt and Elizabeth Becker, ‘Insular Congress Appears to be Myth’, New York Times, 4 November 2000, section A, p. 9. What is true is that some members fear that their constituents will identify trips to meet their counterparts abroad with ‘junkets’, but that is a matter of public education.

8 Joseph S. Nye, Jr, The Paradox of American Power: Why the World's Only Superpower Can’t Go It Alone, New York, Oxford University Press, 2002, p. 9.

9 Perez, Antonio F., ‘Who Killed Sovereignty? Or: Changing Norms Concerning Sovereignty In International Law’, Wisconsin International Law Journal, 14 (1996), pp. 463, 476.Google Scholar

10 Alston, Philip, ‘The Myopia of the Handmaidens: International Lawyers and Globalization’, European Journal of International Law, 8 (1997), pp. 435, 441.CrossRefGoogle Scholar

11 See Picciotto, Sol, ‘Networks in International Economic Integration: Fragmented States and the Dilemmas of Neo-liberalism’, Northwestern Journal of International Law and Business, 17 (1997), pp. 1014, 1047.Google Scholar

12 Ibid., p. 1049.

13 Joseph H. H. Weiler, ‘To Be a European Citizen: Eros and Civilization’, in Joseph H. H. Weiler, The Constitution of Europe, Cambridge, Cambridge University Press, 1999, p. 349.

14 On Public Citizen homepage (accessed 1 July 2003); available from http://www.citizen.org.

15 ‘Harmonization’, on Public Citizen homepage (accessed 1 July 2003): available from http://www.citizen.org/trade/harmonization.

16 ‘What Is Harmonization?’, on Public Citizen homepage (accessed 1 July 2003); available from http://www.citizen.org/trade/harmonization/articles.cfm?ID=4390.

17 Ibid.

18 Ibid.

19 Fried, Charles, ‘Scholars and Judges: Reason and Power’, Harvard Journal of Law and Public Policy, 23 (2000), pp. 807–32, 818.Google Scholar

20 Ginsburg, Ruth Bader and Merritt, Deborah Jones, ‘Affirmative Action: an International Human Rights Dialogue’, Cardozo Law Review, 21 (1999), pp. 253, 273.Google Scholar

21 McCrudden, Christopher, ‘A Common Law of Human Rights?: Transnational Judicial Conversations on Constitutional Rights’, Oxford Journal of Legal Studies, 20 (2000), pp. 499532, 507–8.CrossRefGoogle Scholar

22 Ghai, Yash, ‘Sentinels of Liberty or Sheep in Wolf's Clothing? Judicial Politics and the Hong Kong Bill of Rights’, Modern Law Review, 60 (1997), pp. 459479,CrossRefGoogle Scholar quoted in ibid., p. 507.

23 Kofi A. Annan, We the Peoples: The Role of the United Nations in the 21st Century, New York, United Nations, Department of Public Information, 2000, p. 70; Rischard, Jean-François, ‘A Novel Approach to Problem-Solving’, Global Agenda 2003, World Economic Forum, 1 (2003), pp. 30, 31;Google Scholar Wolfgang H. Reinicke, ‘The Other World Wide Web: Global Public Policy Networks’, Foreign Policy (Winter 1999/2000), p. 44.

24 Shapiro, Martin, ‘Administrative Law Unbounded: Reflections on Government and Governance’, Indiana Journal of Global Legal Studies, 8 (2001), pp. 369–78, 369.Google Scholar

25 Ibid., p. 376.

26 Members of the Technical Committee include: Australia, Canada, France, Germany, Hong Kong, Italy, Japan, the Netherlands, Switzerland, the UK and the USA. On OICU–IOSCO homepage (accessed 1 July 2003); available from http:// www.iosco.org/lists/display_committees.cfm?cmtid=3.

27 Howell, David, ‘The Place of the Commonwealth in the International Order’, Round Table, 345 (1998), p. 30.Google Scholar

28 Martin, ‘Notes for an Address’, op. cit., n. 1.

29 On EUR-Lex, European Union Law homepage (accessed 1 July 2003); available from http://www.europa.eu.int/eur-lex/.

30 See Globe International homepage (accessed 1 July 2003); available from http://www.europa.eu.int/eur-lex/.

31 Charnovitz, Steve, ‘Trans-Parliamentary Associations in Global Functional Agencies’, Transnational Associations, 31: 2 (2002), pp. 8891, 88.Google Scholar

32 Ibid., p. 89.

33 Mike Moore, ‘Promoting Openness, Fairness and Predictability in International Trade for the Benefit of Humanity’, Speech to the Inter-Parliamentary Union meeting on international trade, 8 June 2001, on World Trade Organization homepage (accessed 1 July 2003); available from http://www.wto.org/french/news_f/spmm_f/spmm64_f.htm.

34 Annan, We the Peoples, op. cit., p. 70, n. 23.

35 Wolfgang H. Reinicke and Francis Deng, Critical Choices: The United Nations, Networks, and the Future of Global Governance, Ottawa, International Development Research Centre, 2000.

36 Reinicke, ‘The Other World Wide Web’, op. cit., n. 23.

37 Petersmann, Ernst-Ulrich, ‘Constitutionalism and International Organizations’, Northwestern Journal of International Law and Business, 17 (1997), p. 398;Google Scholar

38 Michael Ignatieff, Human Rights as Politics and Idolatry, Princeton, Princeton University Press, 2001, p. 4.

39 Ibid., p. 94.

40 Ibid., pp. 94–5.

41 ‘Notes for an address by the Honourable Paul Martin, to the Royal Institute of International Affairs’, Ottawa, 24 January 2001, On G20 homepage (accessed 1 July 2003); available from http://www.fin.gc.ca/news01/01-008e.html.

42 Joshua Cohen, ‘Deliberation and Democratic Legitimacy’, in Alan Hamlin and Philip Pettit (eds), The Good Polity: Normative Analysis of the State, New York, Blackwell, 1989, p. 74.

43 Loucks v. Standard Oil Co., 120 N.E. 198, 201 (NY 1918).

44 The full faith and credit clause of the constitution requires each state to recognize the acts of another. US Const., art. 4, §1, cl. 1. It is a basic instrument of federalism, knitting the states into one larger polity.

45 Laker Airways Ltd. v. Sabena, Belgian World Airlines 731 F. 2d 909 (DC Cir. 1984).

46 159 US 113, 163–4 (1895).

47 Beginning with United States v. Aluminum Co. of America (Alcoa), the Sherman Act was held applicable to foreign conduct that had a direct, substantial, and foreseeable effect on US trade and commerce. 148 F.2d 416, 440–5 (2d Cir. 1945). This ‘direct effect’ jurisdiction quickly became a source of tension with other states that argued that the United States had no right to assert jurisdiction over persons that were neither present nor acting within US territory. Governments whose nationals and interests were affected by US antitrust law filed diplomatic protests and amicus briefs, refused requests for assistance, invoked national secrecy laws, and eventually began passing blocking laws specifically aimed at the frustration of US antitrust enforcement. Waller, Spencer Weber, ‘National Laws and International Markets: Strategies of Cooperation and Harmonization in the Enforcement of Competition Law’, Cardozo Law Review, 18 (1999), pp. 1111,1113–14;Google Scholar see also Paul, Joel R., ‘Comity in International Law’, Harvard International Law Journal, 32 (1991), pp. 1, 32Google Scholar; Griffin, Joseph P., ‘EC and U.S. Extraterritoriality: Activism and Cooperation’, Fordham International Law Journal, 17 (1994), pp. 353, 377.Google Scholar

48 Waller, Spencer Weber, ‘The Internationalization of Antitrust Enforcement’, Boston University Law Review, 77 (1997), pp. 343, 375.Google Scholar By 1988 the Department of Justice stated that it would only challenge foreign anticompetitive conduct that directly harmed US consumers. Shank, Robert D., ‘The Justice Department's Recent Antitrust Enforcement Policy: Toward A “Positive Comity” Solution to International Competition Problems?’, Vanderbilt Journal of Transnational Law, 29 (1996), pp. 155, 165Google Scholar.

49 Rule, Charles F., ‘European Communities–United States Agreement on the Application of their Competition Laws Introductory Note’, International Legal Materials, 30 (1991), pp. 1487, 1488.Google Scholar The US signed a comparable agreement with Germany in 1976. See Snell, Steven L., ‘Controlling Restrictive Business Practices in Global Markets: Reflections on the Concepts of Sovereignty, Fairness, and Comity’, Stanford Journal of International Law, 33 (1997), pp. 215, 234Google Scholar.

50 See ‘Agreement Regarding the Application of their Competition Laws, 23 Sept. 1991, E.C.–U.S.’, International Legal Materials, 30 (1991), p. 1491.

51 Ibid., pp. 1056–9.

52 See Griffin, ‘EC and U.S. Extraterritoriality’, op. cit., p. 376, n. 47.

53 James R. Atwood, ‘Positive Comity – Is It a Positive Step?’, in Barry Hawk (ed.), International Antitrust Law & Policy: Annual Proceedings of the Fordham Corporate Law Institute, Irvington-on-Hudson, NY, Transnational Juris Publications, 1993, pp. 79, 84.

54 See Rule, ‘European Communities–United States Agreement’, op. cit., p. 1488, n. 49.

55 See Atwood, ‘Positive Comity’, op. cit., p. 84, n. 53.

56 See Rule, ‘European Communities–United States Agreement’, op. cit., p. 1487, n. 49.

57 Griffin, Joseph P., ‘EC/U.S. Antitrust Cooperation Agreement: Impact on Transnational Business’, Law and Policy in International Business, 24 (1993), pp. 1051, 1063.Google Scholar

58 See generally Klein, Joel and Bansal, Preeta, ‘International Antitrust Enforcement in the Computer Industry’, Villanova Law Review, 41 (1996), pp. 173179.Google Scholar

59 See Rule, ‘European Communities–United States Agreement’, op. cit., p. 1490, n. 49. This increased efficiency has also proven attractive to businesses themselves. In United States v. Microsoft Corp., after learning that both the Department of Justice and the European Commission were investigating their licensing practices, Microsoft agreed to waive its confidentiality rights under US antitrust law to permit the two authorities to exchange confidential information. See Shank, ‘The Justice Department's Recent Antitrust Enforcement Policy’, op. cit., p. 179, n. 48.

60 Merit Janow, ‘Transatlantic Cooperation on Competition Policy,’ in Simon J. Evenett, Alexander Lehmann, and Benn Steil (eds), Antitrust Goes Global, Washington, DC, The Brookings Institution, 2000, pp. 29–56, 51.

61 Ibid.

62 See Atwood, ‘Positive Comity’, op. cit., p. 88, n. 53.

63 David L. Shapiro, Federalism: A Dialogue, Evanston, IL, Northwestern University Press, 1995, p. 108.

64 Ibid.

65 Bermann, George A., ‘Taking Subsidiarity Seriously: Federalism in the European Community and the United States’, Columbia Law Review, 94 (1994), p. 331.CrossRefGoogle Scholar

66 Consolidated Version of the Treaty Establishing the European Community, Art. 5, Official Journal C 325 of 24 December 2002. According to the relevant provisions of this Article: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty.

67 Abram Chayes and Antonia Handler Chayes, The New Sovereignty: Compliance with International Regulatory Agreements, Cambridge, MA, Harvard University Press, 1995, p. 4.

68 Ibid., p. 26. As noted above, Wolfgang Reinicke similarly emphasizes the extent to which globalization, unlike interdependence, penetrates the deep structure and strategic behaviour of corporations and other actors in the international system.

69 Ibid.

70 Eyal Benvenisti, ‘Domestic Politics and International Resources: What Role for International Law?’, in Michael Byers (ed.), The Role of Law in International Politics: Essays in International Relations and International Law, New York, Oxford University Press, 2000, p. 109.