Governance and Legitimacy in the Era of Globalization
1. Governments purport to be emanations of nations’ collective will. When governments participate in international organisations they purport to represent the will and interests of “their” people, even if domestic constituencies are hardly ever consulted on foreign or international policies. In fact most people don’t know the positions taken by their governments in multilateral or regional fora and even those who wish to know face difficulties to obtain such information. Foreign policy is generally kept by governments outside the realm of democratic consultation, even at the level of legislatures.
2. As long as States possessed full discretion in designing and implementing social and economic policies, considerations of foreign policy were not really of great concern to the majority of people. As countries became integrated into the global economic system, the need arose for multilateral institutions, mandated to regulate this interdependent system, to increasingly undertake governance functions, formerly the exclusive domain of national governments. Such governance functions include reporting requirements, monitoring, prescriptions and prohibitions in areas as diverse as trade, investment, taxation, labour and human rights.
3. Decisions are made daily in fora such as the International Monetary Fund, the World Bank, the World Trade Organisation and various United Nations bodies and agencies, without even the semblance of democratic consultation. While United Nations organs accord selected NGOs consultative status, even such modest concessions to democratic principles are fiercely resisted by governments who would prefer to negotiate behind closed doors. Democratic participation, accountability and transparency must be continuously fought for by popular constituencies.
4. Democratic participation refers to the ability of the citizenry to effectively participate in the elaboration of decisions that affect their community’s physical and social environment. While elections, as practiced in Western “democracies”, are the main form of seeking formal consent to governance, they do not necessarily ensure popular influence on policy decisions nor does the electoral process ensure that the elected body will implement expected or promised policies. Due to the commercialisation of the electoral process (an inescapable consequence of capitalism) compounded by the inherently unrepresentative nature of privately-owned mass media, their general bias in favor of commercial interests and the complexity of modern governance, elections hardly revolve anymore around issues of substance or fundamental values. They typically represent a competiton between carefully nurtured images. Such “product differentiation” becomes ever more necessary as politicians and parties pursue similar social, economic and foreign policies, regardless of the label affixed on the package. The competitive nature of elections forces all politicians, including genuine representatives of the popular classes, to adjust their discourse to the constraints imposed by the commercialisation of politics. As elections become ever more onerous, politicians who wish to be elected, are forced to seek funds from corporations and wealthy individuals. Such dependency has a price.
5. But even when politicians are elected to national legislatures, their role remains marginal compared to the executive. As decision-making power is increasingly removed from national legislatures to the executive and to unelected public officials and from there on to multilateral institutions, the democratic deficit of governance increases in three distinct ways.
Firstly, multilateral (international) institutions are not an emanation of popular will. They typically house a vast bureaucracy of unelected and unaccountable officials, sitting at the top of a long chain of delegated authority. They have no direct legal obligations to respond to popular demands or to protect human rights. These people are more often than not unrepresentative of the constituencies for which they purports to act in terms of gender, income, education and nationality. In many such multinational bodies, there exists a vast difference between individual states’ power, either on account on their wealth, geographical location or custom. The concept of equality between human beings, or between states, would hamper the effective governance of such bodies. Furthermore, such institutions develop, for good or bad, a life of their own, including a bureaucracy and budget.
Secondly, multilateral institutions exercise their governance function over more than one sovereign nation and must therefore balance the rights and interests of one nation and its inhabitants over the other, in as fair a manner as possible. As such institutions do not reflect popular will or consultation, nor subject to popular control, their decisions will inevitably suffer in quality and equity, even assuming the best of the good will of the decision-makers. And to the extent that decisions of multilateral bodies reflect the balance of power between their member states, such decisions will inevitably be biased in favor of powerful actors, corporations or states. Individual victims of policies emanating from such bodies will typically not have a legal standing to claim remedy nor do effective mechanisms exist for alternative adjudication. They will be referred back to their own tribunals which, however, have no jurisdiction over the multilateral institutions.
Thirdly, multinational corporations and their corporative bodies enjoy easier access to decision-makers of multilateral organizations than popular organisations. The reason is that popular organisations, who wish to maintain grass-root democracy, are loath to delegate decision-making to centralized international boards. While centralization of decision-making would give greater unity of purpose to popular action and permit greater influence on multilateral governance bodies, the danger is that such centralisation could lead to ossification, corruption and the alienation of the grass roots. The dilemma is that between democracy and power. Business corporations do not suffer from such a dilemma.This disparity in accessibility exists also at the local (national) level but is exacerbated when decision-making is centralized at the regional or international level.
6. Multilateral institutions have by late recognised the wisdom to consult non-governmental actors. By involving non-governmental actors, governments find it easier to co-opt constituencies which, excluded, might wish to defeat the government’s policies. Democracy should not only be viewed as a constraint on governance but as a means to increase the popular base on which decisions are made and ensure thereby a more effective implementation as well as social cohesion and stability. Co-opting non-governmental actors is becoming an established methods of governance by multilateral institutions, permitting them to claim legitimacy. As the system of non-governmental organisations is neither transparent nor universal, it does not replace true democratic consultation. It can easily become a venue for parochial interests.
7. While multilaterals will most probably continue to call for strengthening the consultative competence of non-governmental actors, it is nevertheless advisable to recognise the limits of such a participation. Even under the best cases, a multilateral institution imposing social or economic policies on a country, could only consult selected domestic actors. Who will select these actors? Whom will they represent? From where will they receive funds? What is the purpose of these NGOs? To which extent could such NGOs affect the agenda and policies of the multilaterals? There are yet no recognised and established legal mechanisms to ensure representativity and accountability in this arrangement.”
8. In order for international institutions to exercise governance functions, there must be an internationally recognised legislature as well as an effective international judiciary with enforcement powers, underlying such governance functions. It is not certain that such a structure will ever exist. However, the need to enable individuals, regardless of nationality, to lodge complaints and obtain legal remedy if their human rights have been violated by their own governments or by other states or multilateral bodies, is gradually recognized. Governments’ legitimacy rests on their capacity and will to ensure the right of individuals to effective remedy for such violations.
9. The question of a government’s legitimacy has a particular relevance with regards to States’ participation in international governance. Unless a world government exists, national governments are the main bearers, individually and collectively, of legal obligations towards humanity. Such obligations are formally enshrined in the Charter of the United Nations and in human rights treaties.
10. While individuals, groups and governments may not agree on the extent of international (or erga omnes) obligations by states towards mankind as a whole, there is no dispute that such obligations do exist, both legal and moral. Legal obligations of an erga omnes character include for example the requirement to co-operate internationally for the suppression of slavery, piracy, apartheid and genocide. States are also required, in accordance with the provisions of the United Nations Charter, to co-operate in order to increase global well-being and promote development. Such a requirement is obviously not justiciable because there is no criteria by which to assess a state’s compliance. The opposite however might be considered a legally binding obligation of States, namely that of refraining of deliberately violating human rights of their constituents or those of other jurisdictions.
11. States which would explicitly renege on their recognised international obligations towards individual human rights, could not possibly be regarded as bona fide participants in the collective endeavour by states to act for the public good. Such states would forfeit their moral legitimacy. Their claim to have a representative competence would merely rest on naked power, hidden or blatant.
12. Usually, a government will not publicly renege on its international responsibilities. All governments claim to act for the public good and recognise, at least to some extent, the universal nature of human rights. Even notoriously repressive governments participate in international fora and attempt to justify their policies as conforming to recognised legal and moral principles. By doing so, they acknowledge the ideological strength and the customary nature of such principles.
13. Governments’ legitimacy can and should be tested. Legitimacy can be tested by challenging the willingness of governments to ensure and respect human rights, both domestically and internationally. Governments are continuously pressed on these accounts by civil society. What concerns us here is the nature of answers provided by governments. While many governments repress the struggle for human rights within their domestic jurisdiction, they cannot engage in such policies within the international system. Within multilateral institutions governments are careful to justify their violations of human rights on apparently rational grounds, such as situations of public emergency, civil war, uprisings, etc. While they often dismiss outside criticism of domestic human rights violations as unacceptable interference, they cannot so easily dismiss as interference in their domestic affairs demands regarding erga omnes obligations of the community of states towards mankind.
14. While governments are very sensitive to overt criticism by other governments, their sensibilities are less offended when they are addressed collectively. This “community of states” might theoretically respond in one voice to popular challenges, thus pitting the peoples of the world against the collectivity of governments. This has not occurred yet.
15. The reluctance of the “community of states” to oppose en bloc civil society can be observed from the reactions to NGOs proposals tabled at the various international conferences on environment, human rights and development. Such reactions are hardly ever unanimous. This show that states address their international duties in various manners and not always negatively. This situation provides a potential for strengthening human rights norms.
16. The threat to expose a government as an illegitimate partner in the international community, can be a potent, symbolic tool, in order to nudge such a government to acceptance of its international obligations towards mankind, particularly with regards to the requirement to co-operate for the promotion of human rights.
17. Although a determination by non-governmental bodies that a particular government lacks legitimacy does not have any legal effect, the implications of such a symbolic determination are nevertheless fundamental. For if a government truly lacks legitimacy, in the sense that it acts deliberately against the interest of humanity, there should be no moral compunction to efforts aimed at undermining the standing of this government.
18. Regardless whether one considers violations of jus cogens norms in a restrictive sense, that is including merely piracy, slavery, apartheid and genocide, or in a more comprehensive manner, including also gross human rights violations, we submit that there exists a threshold beyond which a government cannot be considered legitimate.
19. To affirm that a government is an illegitimate body or an “enemy of mankind” or merely to suggest that the question is being seriously considered, is a symbolic act. By and itself it lacks coercive power. But contrary to widely shared beliefs, such symbolic declarations are not acts in futility.
20. No government wishes to be seen as criminal gang. In order to effectively participate in international fora and be accorded a modicum of respect and provided diplomatic immunity, state officials are extremely sensitive to charges equating them with common criminals, even if such charges are not accompanied by formal indictment. While they can fake indifference to popular charges, especially if they can rely on media complicity, such charges can have long-term effects, if pursued with determination and on sound factual ground. Charges of government criminality must be used with caution and only when well founded. In such a case they can constitute a unique weapon of political delegitimization.
21. When faced with the danger of losing their moral legitimacy (and thereby their moral authority – distinct from effective or physical authority), most governments can be expected to yield in order to maintain their legitimacy and the privileges ensuing from such legitimacy.
22. To question the moral legitimacy of a government should not be equated with traditional critical measures, such as condemning government policies, making demands upon or appealing to the government. To question the moral legitimacy of a government is to challenge its guiding fundamental values or assumptions. While traditional approaches (condemnations, demands and appeals) consolidate, rather than detract from, a government’s legitimacy, the withdrawal of recognition to legitimacy is, figuratively speaking, a declaration of war, though such act remains symbolic in character.
23. The concept of questioning the moral legitimacy of a government has been successfully used in some situations. It represents one of the few strategies available when confronting a much more powerful body. For the sake of deterrence, it can be useful to maintain the threat of withdrawing recognition of governments’ legitimacy as a permanent fixture of popular struggle for justice and human rights.