Global Regulation & Global Governance

Sometime during the 1960s and 1970s, the economic potential of technological and biological patents became of

central concern to the U.S. government

TRIPS (Trade-Related Aspects of Intellectual Property Rights) was a political and social innovation by the United States to enable corporations to assert control over products

•S/he who can establish binding rules of the global political economy can do so to his/her advantage

TRIPS—Trade Related Aspects of Intellectual Property Rights

•International treaties required mutual recognition of domestic IPR systems, but not as a precondition for economic relationships

• U.S. pharma took the lead in pushing for a multilaterally-binding system of IPR recognition, which was eventually embedded in the WTO as TRIPS

• Accession to the WTO requires signing on to TRIPS, recognizing and adhering to its standards and requirements, and agreeing to dispute resolution procedures when necessary

•TRIPS is domestically-binding, and the WTO can order national courts to enforce its findings against parties who violate IPRs

•The WTO can also require payment of damages in the event the offending country does not remedy the violation

•See http://www.wto.org/english/tratop_e/trips_e/trips_e.htm

Why is cooperative global regulation needed?

• States are concerned about domestic effects of cross-border flows of goods, bads, people, money

• States generally do not have the authority to regulate activities taking place in other states

• Actors are concerned about activities and conditions in other places, and seek to protect their interests

• Common sets of rules and practices help to standardize and to reduce transaction costs

• Examples: trade, migration, crime, communications; some of these were already regulated during the 19th century

• Nuclear proliferation is a particular current concern

“Global governance” is described as the answer

• Set of codified rules and regulations of transnational or global scope

• Collection of authority relationships that manage, monitor or enforce said rules

• Includes a variety of arrangements, including “hard law” treaties, “soft law” declarations, private orders, and international governmental organizations, and

• Global policy coordination that takes place without any governance structures

Nation-states are understood to maintain a central role in such global arrangements

• Sovereignty implies that only a state can regulate within its own jurisdictional space

• Because regulations must be implemented within states to be effective and enforced, states must agree to regulate

• Enforcement of regulations relies on the judicial and police powers of states, since global equivalents are lacking

• But the “principal-agent” problem greatly complicates such regulation—which can lead to “regulation from below”

“Governance” is not the same as “government.” It assumes more than just the institutions of the latter, a wider range of actors, and broader forms of regulation.

Stephen Krasner, International Regimes (p.2): “International regimes are defined as principles, norms, rules, and decision-making procedures around which actor expectations converge in a given issue area. •Principles are belief of fact, causation, and rectitude.•Norms are standards of behavior defined in terms of rights and obligations. •Rules are specific prescriptions or proscriptions for action. •Decision-making procedures are prevailing practices for making and implementing collective choice.”

Volker Rittenberger, Regime Theory and Int'l Relations (p.xii): “Rules of the game agreed upon by actors in the international arena (usually nation-states) and delimiting, for these actors, the range of legitimate or admissible behavior in a specific context of activity.”

At the international level, such arrangements are generally called regimes

Int’l regimes can have some or all of the following elements

• A formative convention or treaty that stipulates problems, principles and practices (e.g., UN Framework Convention on Climate Change)

• An administrative secretariat or office that has various organizational powers and responsibilities (e.g., UNFCC Secretariat is located in Bonn, Germany)

• Various related or subsidiary organs and agencies (e.g., IPCC, GEF, SBSTA, etc.)

• Periodic or regular conference/meetings of the parties (MOP/COP) to the agreement (e.g., Climate Change Conference, Intersessional Meetings, subsidiary bodies

• Associated agreements and protocols (e.g., Kyoto Protocol; Clean Development Mechanism

• Other associated operations, agencies at various levels (e.g., carbon emissions trading schemes and markets)

The “UN System” is a collection of regimes: these are merely the “principal agencies” of the United Nations—and there are numerous public/private regime-like organizations and associations, as well

In practice, many international regimes are strongly influenced by the United States, the EU and Japan

• For example, the head of the World Bank is always an American; the head of the IMF is always a European

• Structural adjustment policies reflect the neo-liberal “Washington Consensus” of the 1990s, which give advantage to capital

• International regulations governing commercial aircraft and flight are largely drawn from U.S. regulations

• The World Health Organization depends on the U.S. Centers for Disease Control and Prevention to investigate disease outbreaks

• TRIPS is organized around Anglo-American property rights concepts, rules and practices

• The IAEA generally responds most strongly to U.S. concerns in the event of proliferation issues and concerns

• So, is “Global Governance” really “global?”

As always, implementation is assumed to take place at national and sub-national levels

When national governments do not act, subnational governments may attempt to intervene—but there are arguments that this does not make sense (“collective action problem”)

November 15, 2007

Governors Pushing Caps on Greenhouse Gases By JOHN M. BRODERWASHINGTON, Nov. 14 — Frustrated with the slow progress of energy and global warming legislation in Washington, the nation’s governors have created regional agreements to cap greenhouse gases and are engaged in a concerted lobbying effort to prod Congress to act.

To a growing degree, moreover, states and regimes are constructing transnational “public-private partnerships”

•Public authority sells property or property rights in things, goods, services

•Private entity manages thing, good, service and sells it to customers

•The UN “Global Compact” is one example

Privatization of governance is a relatively new “commodity frontier,” but raises numerous questions:

• Who decides what to privatize, and to with whom contracts should be signed?

• Who do private entities represent, and to whom are they accountable?

• What kinds of regulations and laws must private entities obey, and who monitors and enforces such limitations?

•What happens if a private entity is found to be engaged in illegal or corrupt activities?

• Privatization of “security services” illustrates some of the potential pitfalls of contracting out “governance” to the market