One World – Global Developments as a Constraint

The international sphere is very complex, with many different actors and institutions operating in different ways at different levels. This can make research very difficult. When you did research on national governments, there was a comfortable feeling of being grounded. Although there are many units of government, and a degree of unpredictability in their relations with each other, legislation determined the scope of government actions. When you dealt with corporate actors, you were dealing with actors whose interests were known and whose actions were more or less constrained by law. When you dealt with advocacy groups, you had their own words, freely offered, to guide you in understanding these actors.

You are unlikely to feel grounded and safely oriented when researching in the international sphere. Given all this complexity, you could choose two ways of proceeding with your research on the international dimensions of your issue.  You could abandon primary research in favour of an extensive reading of the secondary literature.  The second way is for you to gain a sense of the whole, vague as this sense might be, and then do original research on one piece of it, say, the actions of the World Bank in the Caribbean.   It will take a combination of both ways if you want to arrive at useful answers.  The steps offered below reflect both ways of proceeding, and thus are a little different from the steps discussed in other chapters.

 

1. Definitions

International sphere Refers to actors, institutions, groups, organizations, meetings and deliberations and decisions that involve interactions among two or more countries and also to developments commonly called globalization.
Nation state Refers to the exercise of political jurisdiction within a geographical territory that is recognised as a nation stat by the international community.
Government vs governance We will refer to government when national, provincial, and local governments are central to decision-making and exercise a high degree of control. We will refer to governance when governments are at most a partner, or when governments exercise little or no influence on decision-making about a specific public issue.
Harmonization and standardization Harmonization refers to the process of making laws, norms and codes of conduct in different jurisdictions compatible with each other. Standardization is the process of making laws, norms, and codes of conduct identical.
Treaty, covenant, or agreement We restrict these terms to documents that are signed and ratified by nation states and that are meant to be binding on all who sign.
Convention, recommendation, codes of conduct, criteria, standards declaration and resolution We restrict these terms to documents that are agreed upon by more than two countries, and sometimes even deemed to be “legally binding” but which include few powers of enforcement.
International customary law Any practice of nation states that is accepted to be law in the absence of a formal treaty. Customary law is established by long-standing convention not by legislation or treaties.


2. Typology of international bodies

These definitions provide a rough typology of bodies functioning in the international sphere. This is simply a handy guide to how to look at various organizations in terms of what they actually do and accomplish, and in terms of those to whom they are actually accountable.

We have two goals:

  1. To ensure that you pay attention to what any body actually is allowed to do and what it actually does; and
  2. To ensure that you follow up on the relevant aspects of the type of body you are dealing with.
Talking club Consider an institution, group, organization, or conference to be a “talking club” if its main function is to deliberate without making decisions.
Network Consider an institution, group or organization to be a network if there are on-going relationships and if harmonization or standardization of norms, codes, activities, law, or policy decisions is its main goal.
Financial Consider an actor or institution to be financial if it functions like a bank or insurance company in lending money, providing financial grants, investing funds,  or marketing.
Trade Consider an actor or institution to be trade-related if it is connected to the WTO or NAFTA or other trade-related institution.
Advocacy Consider an actor or institution in the international sphere to reflect advocacy if it operates primarily outside of government, is non-profit, and claims to represent the well-being of society or particular groups other than corporations.
Military Consider an institution to be military if its activities relate to armies, security, armaments, policing, or peacekeeping.
Inter-state Consider an actor or institution to be inter-state if its primary participants are governments and their officials and if its goal is to arrive at decisions that affect its member nation state participants and, finally, if it does not fit into one or more of the above categories.

 


Question:

I note that you haven’t included non-governmental organizations (NGOs) in your typology of bodies acting in the international sphere. Aren’t NGOs often influential players?

Answer:

We avoid using the term “non-governmental organization” or NGO, even though NGOs play a major role in the international sphere and are spoken about extensively. We avoid these terms because in the international sphere, corporations and business organizations are considered to be NGOs along with organizations such as Human Rights Watch. We need ways of distinguishing among the different types of non-governmental groups, and will use other terms to do so.


3. Researching Government Decision-Making

A. Complexities of the international sphere

  • In the international sphere, there is a multitude of groups, organizations and institutions with large differences in how they operate.
    • There is nothing quite equivalent to a government, but lots of bodies that perform governance functions.
    • There are few laws of general application and fewer still are enforced. Only sometimes do they apply to all nation states.
  • Actors and institutions operating outside of the pull of gravity of the nation state are not as restricted as they would be within the nation state.
    • This makes it very difficult to do a systematic search for documents and to know the exact nature of any group, organization or institution that is found.
  • Research on the international sphere is further complicated by a variety of terms used in different ways to connote current developments, terms such as globalization and transnational.
  • Many bodies acting in the international sphere generate an overwhelming number of documents, while also leaving huge undocumented gaps in their records.
    • Almost all have websites and many produce reports and publications, but much about their activities goes unrecorded.
  • Many international organizations influence particular public issues even if their mandate does not mention them specifically. Often the organizations that have an indirect impact are more important than those that focus squarely on the public issue at hand.

B. Globalization

  • There are many competing conceptions of the term “globalization”. The everyday meaning connects globalization to the new communications technologies and possibly also to the diminution of local and national economies in favour of trade (and jobs) from elsewhere.
  • Academics studying globalization may be focus on:
    • Convergence and divergence of economies
    • Harmonization of laws and norms between and among jurisdictions
    • Communications networks that compact the social space within which actors and institutions function
    • Shifting relations between the developed countries, called the “north” and the developing or undeveloped countries called the “south”
    • Shifting power relations between the public and private sectors, and between the local and the global.
  • Often globalization is distinguished from the international order (or old international order), but many of the attributes of globalization have been around a very long time.
    • Extensive trade relationships have always been central to most nation states.
    • The world is, and has been for some time, laced together by bilateral and multilateral trade treaties.
    • Multinational corporations have been commonplace for a long time.
    • The impacts of colonialism and neo-colonialism are not new.
    • Public and private interests have always been closely intertwined.
  • However, some things are new:
    • The speed and ubiquitous nature of communication, such that long established relations between actors operating on a world stage is easier, faster, and thus a lot more extensive.
    • The sphere of government is shrinking, and there are now many non-state actors that have more than power and influence – many private sector actors now play a significant if not decisive role in governance.
    • Production functions have been split into bits, as the drive for lower costs pushes production into low wage countries.
    • Functions that were, in the past few decades, thought to be the prerogative of governments, are now carried out through hybrid relationships that are in many ways controlled by private actors.
    • Social welfare programs are eroding as the state retreats from its past role as a service provider and guarantor of citizen needs.
    • Serious efforts are made to harmonize laws between and among jurisdictions.
  • Perhaps the most important feature of globalization is that political discourse has changed. Today’s keywords are globalization, corporate governance, human rights, civil society and non-governmental organizations, soft law, liberalization, privatization, the hollowed-out state, and deficit reduction.
    • These terms are signposts – they orient citizens to the world they inhabit, making some options seem attractive while others are not even considered.

Question:

With so many different things people mean when they talk about globalization, how do I decide which concept to adopt? What do I do with all these competing theories?

Answer:

For the purposes of the research discussed here, it does not help you to focus on competing definitions when you are determining the character of actors and institutions in the international sphere that affect your issue. Rather, the various notions of what has and has not changed that surface in debates about globalization and the (old) international order are like signposts. They draw attention to issues and questions that you might not otherwise consider. For example, the debates about globalization draw attention to the relationships between public and private sectors. The debates draw attention to networks of influence, new and old. They draw attention to common perceptions about the proper role of the state in determining the fate of public issues.


 

C. Sovereignty

  • Before the rise of democracy, when people spoke of a sovereign, they were usually referring to a supreme ruler.
  • In its democratic incarnation, sovereignty does not vest in a person; it is the supreme power of the state (the people). This power is legitimate because it is the collective population, as reflected in the state, who are theoretically the sovereign.
  • Countries do not exist in isolation. The actions of one country will positively or negatively affect other nation states. This leads to formal arrangements between sovereign powers.
  • When one sovereign power makes commitments to another, or to many others, two things happen.
    • First, it gains rights, in the sense that it gains the ability to exercise a degree of power beyond its borders.
    • Secondly, a sense of order is established that countries can rely upon. In theory, if one nation state violates this sense of order, there is a mechanism in place to require compensation for deviant behaviour.
  • Nation states are often reluctant to enter into relationships that jeopardize their sovereignty, that is, their control over matters concerning the nation state and its citizens.
  • Countries do sign bilateral trade treaties when the loss of sovereignty is minor and the benefits are great. Countries do sign onto international trade treaties, because to do otherwise is to withdraw the country from the main thrust of trade relationships and the opportunities that arise from them.
  • There are other kinds of formal relationships among countries where there is far less willingness to give up sovereign rights. Although institutions such as the United Nations and the International Criminal Court may be praised as representing a new order, many nation states hold back from relinquishing aspects of their sovereignty to these bodies.

 Question:

If there is such a difference between theory and practice in terms of nation states actually relinquishing sovereignty to international bodies, what clues can I look for to work out what’s really going on?

Answer:

Taking the United Nations and the International Criminal Court as examples, nation states may resist any reduction in their sovereign power in a number of ways. They may refuse to recognize the international court’s jurisdiction, and/or work behind the scenes to determine which cases will be brought to trial. They may refuse to sign on to a United Nations treaty, or fail to ratify it. They may pass what appear to be binding laws at the international level, knowing that they will not implement or enforce them, or that the sanctions are weak or not likely to be applied. They may dismiss international deliberations as being “political” and thus unimportant.

For any international or global group or organization where nation states play a role, you need to find out the level of actual nation state participation, the nature and extent of that participation, and the degree to which sovereign state decisions can be trumped. You need to determine whether there are mechanisms for implementation, for enforcement, and whether sanctions apply and are used. The character of any group or organization functioning in the international sphere arises in large measure from the degree to which nation states willingly give up a portion of their sovereignty to it.



D. International government?

  • No government that exists at the international level is comparable to the governments at the level of the nation state.
  • Although there is a body of international law, there is no authority that can administer power internationally so that international law is enforceable everywhere equally.
  • The United Nations looks like a government:
    • It has a general assembly, the equivalent of a Cabinet, several important decision-making councils, many committees, a bureaucracy and some capacity to operate courts and wage wars.
    • It supports the development of treaties and produces resolutions and declarations.
    • It operates many programs, funding activities and groups, making its contribution by fostering awareness of social issues and by dealing with human tragedies.
    • It has a policing function.
  • But the United Nations is not a government in the same sense as nation states have governments:
    • It has limited powers over its member countries.
    • It has relatively few resources of its own to implement decisions or wage wars and relatively little capacity to impose sanctions except in the most extreme situations.
    • It remains highly dependent upon the cooperation of its member countries, each speaking in terms of its own interests and sovereignty.
    • [we could present these attributes in a table or graphic]
  • It is important not to confuse the exercise of power and influence with government or sovereignty.
    • Sovereignty refers to entitlements to oversee and make decisions concerning those who operate within a geographic location recognized as a nation state.
    • Government refers to the exercise of state sovereignty over all aspects of life within the jurisdiction.
    • The United Nations, European Union, and World Trade Organization all have power, and are all part of governance regimes, but none is sovereign. None is a government in its own right, and none has exclusive rights to exercise powers of governance over all aspects of life within a geographical territory.

Question:

Why can’t we describe the European Union as a government? It seems to have the features of government you describe.

Answer:

Yes, the European Union may look like a government. Among the regional alliances, only the European Union has some attributes of being a government. It has a parliament and a bureaucracy. It issues directives that are tantamount to law. For the most part, it has a common currency. In theory, borders between member countries are transparent, invisible for the purposes of labour mobility and trade. But even in the European Union nation states continue to exist. They exercise considerable power to determine their own policies and actions. Within some limits, the member states operate differently from each other. Nation states ratify decisions taken at the level of the Union within their own national legislatures. They are not always dutiful in honouring them. Sanctions against European Union member states are rare because the process is both slow and cumbersome, with considerable negotiation and investigation prior to and after the involvement of the courts. Even if the European Court of Justice finds against the infringer, monetary sanctions can be imposed upon a continued failure to comply with the directive, but may nevertheless still involve further negotiations. Sanctions may be imposed, but they are not always enforced.


 

E. Membership in the international club

  • To be able to engage in international agreements, a nation state needs to be recognized by the international communities as having sovereignty.
  • For people to be recognized as a nation state or person of international law, they must have:
    • A permanent population;
    • A defined territory;
    • An established authority with legislative competence over the territory (government); and
    • A capacity to enter into relations with other nation states (i.e. other nation states are willing to recognize the other three requirements and treat the group as a person of international law).
  • Being recognized as a person of international law is a political choice made by the existing international community about whether or not to recognize nation states.
  • The Sovereignty and Equality of States doctrine has two main pillars qualifying the rights of nation states to exercise their sovereignty:
    • First, nation states have the qualified right to conduct their domestic affairs without interference. Coupled with this qualified right is a duty not to interfere with the area of exclusive jurisdiction of other nation states.
    • Second, nation states also have a duty to honour the obligations arising from both international customary law and treaties.

F. International customary law

  • International customary law refers to any practice of nation states that is accepted to be law in the absence of a formal treaty. Customary law is established by long-standing convention not by legislation or treaties.
  • When a practice of nation states within the international community is maintained for a period of time in a uniform way, it can be defined to be a customary practice. This practice does not need to be universal, only a general practice.
  • When a judicial body (like the International Court of Justice) identifies a customary practice, it is enshrined as a customary law.
  • There are no legal sanctions for breach of customary law except when it is used by an institution like the International Criminal Court or the International Court of Arbitration.

Question:

With no formal consent mechanism, how can a nation state avoid being subject to an international customary law?

Answer:

To avoid being subject to new international customary laws, a nation state must conscientiously avoid such customary practice, and collect evidence of its avoidance. It does so to be able to mount an argument that it unequivocally refuses to accept enjoying the rights and responsibilities imposed by the customary law, because the custom never was a common practice for the country in question. If a recognized international authority, such as the International Court of Justice, accepts the evidence that this nation state has unequivocally refused to accept the evolution of the practice, customary law does not bind this nation state.


 

G. Treaties

  • Treaties are the most powerful form of international agreement.
  • An international treaty is a formal relationship between two or more countries about the matters specified in the treaty.
  • An international treaty may be called a convention, act, statute, or an agreement.
  • Deadlines for ratification are usually specified, and countries determine their own ratification process giving formal consent (e.g. passing legislation).
    • However, legislatures do not always ratify the international treaties that their country’s negotiators have agreed to, and an international treaty that is not ratified does not bind a country to anything.
  • Treaty organizations, including the WTO, the European common market, and NAFTA, can have significant powers for securing compliance, and in some cases, dispute resolution as well.
  • Treaties can also be bilateral, trilateral, or multilateral, involving agreements between and among specific countries and covering only specific activities, for example, trade in bananas.
    • The enforcement mechanisms of such treaties are usually intrinsic to the relationship involved. For example, should a country attempt to exceed the amount of bananas allowed to be imported, either tariffs are imposed by the importing country or some other retaliatory action is taken, often affecting an area of trade not covered in the treaty.

Question:

How is international customary law different from a treaty?

Answer:

International customary law is a source of law, like a treaty. The only difference is that instead of signing a treaty, countries simply adopt a way of doing things, which is assumed to be binding, in exactly the same way a treaty is binding upon all countries that do not explicitly object to this way of doing things.


 

H. Hard and soft law

  • In order to characterize the different kinds of international law, writers and researchers often draw a distinction between hard and soft law.
  • International law is, in effect, a combination of hard and soft law as well as customary law.
  • International hard law, it is thought, is created by inter-state institutions and is binding within their jurisdiction.
  • However, much of what occurs at the international level is not hard law. The word “binding” is included in their legal mandates, but there are few ways that nation states can be forced to follow through, and often few penalties for not doing so.
  • Soft law’s defining characteristic is that it is not enforceable, in the sense that violations do not carry legal penalties.
    • Declarations and resolutions by the United Nations are examples of soft law. We have also suggested that some treaties and agreements resemble soft law more closely than hard law, depending on whether there are provisions for sanctions and a process for resolving disputes.
  • The distinction between hard and soft law applies within nation states too, but it is particularly important in the international sphere.
  • In order to make binding international law, countries must surrender authority over aspects to an international authority, and they are often reluctant or unwilling to do so. They agree instead to resolutions, declarations, guidelines, codes of conduct, or statements of best practice. All of these are non-binding in nature, allowing nations to retain ultimate discretion over their jurisdiction without being in breach of international law.
  • Thus, many analysts claim that soft law is as important as hard law, and that its value lies in allowing countries to reach agreements over contentious issues in situations where no binding agreement is possible.
  • Soft law allows for recognition of the public-private nexus in governance, as private actors are often involved in the creation of law.
  • Soft law entrenches a discourse about cooperation, principles and values, that otherwise would be lacking.
  • However, the proliferation of soft law does not replace hard law. Trade agreements are hard law and their power has not diminished.
  • Non-governmental, non-corporate advocacy groups constantly apply pressure to turn soft law into hard law.
  • Transnational law includes hard and soft law and also the law-making or norm-setting activities of non-state participants and the agreements that result.

I. The power of the international

  • Despite the seemingly non-binding nature of “binding” international treaties and the proliferation of soft law, it would be wrong to claim that international actors and institutions are not very powerful.
  • We do not accept the notion that the old international order is without much significance in today’s world.
  • We believe that the existence of soft law and the development of resolutions are crucially important, even if they do not conform to all the elements of traditional law.
  • Institutions like the United Nations are the site of important debates that shift the discourse within which political and economic events take place.
  • If the critics are right that globalization is proceeding at a rapid pace and undermining social programs and the capacity of nation states to act in many areas, it is also true that international actors and institutions continue to exist and exert power and influence.
  • Remember that, faced with the array of bodies acting in the international sphere, it would be a mistake to focus exclusively on the United Nations.
  • The search for many kinds of actors and institutions acting in the international sphere is worth the trouble that it takes you to make sense of the whole.

 

4. Steps in Research

A. Conduct a fresh news media search and documents survey

  • First, conduct a fresh news media search and documents survey. This is important because you will be all-too-reliant upon websites to do much of your research on the international sphere.
  • Identify which websites are the most useful. Each new website you find probably lists other actors and institutions you might not otherwise have found.
  • Often the only accessible record of meetings is found only in the press statements released afterwards or in commentaries.
  • It is important not to focus only on the United Nations. You should look not only for other actors and institutions, but also for alliances and sporadic meetings between nation states and others on particular issues.
  • A topical search using a search engine may yield a significant blog or newsletter.
  • Government websites may also be useful at this stage. They provide some information on recent and ongoing negotiations and discussions between the government in question and others.

B. Categorize actors and institutions

  • Next, categorize these actors and institutions according to the roles they play and their capacity for deliberation and decision-making.
  • Take a very quick look at the websites of each actor or institution, plus a glance a few general textbooks – this will be sufficient to determine which kind of actor or institution you are dealing with.
  • The goal is not to fill in all the blanks in your knowledge, but the get a sense of the whole to support your decisions about where to concentrate your research.
  • It does not matter if an actor or institution or arrangement fits neatly into more than one of the categories listed above (Section 2), the talking club versus the trade association, for example. The categories are not meant to be exhaustive or exclusive.
  • Deliberation and decision-making are subject to different constraints depending on the type of institution involved and the role(s) it plays. You need a way to identify the various roles, and these categories provide it.

Question:

With so many different actors and institutions operating in the international sphere, how do I decide which kind of body to focus on?

Answer:

Think about what you’re interested in, and how each type of body relates to your research question. If you are interested in discourse, talking clubs will be the first place to go. If you are interested in the harmonization that is a central feature of globalization, networks should be scrutinized in depth. If relations between rich and poor countries are your central concern, you will want to focus on financial aid institutions. Concern about the economic effects of one country’s activities will take you directly to trade and institutions. If you are concerned about the integration of principles and values within international agreements, you will focus on the inter-state organizations, especially the United Nations.


 C. Focus in depth on specific actor(s)

  • Now you need to burrow into the materials produced by one (or a few, but not many) of the actors or institutions in the international sphere that you have determined to be of special concern.
  • Focus on its publications and its legal mandate.
  • You want to see how it actually operates, in response to what, with what information, with what participants.
  • You are interested in the degree to which nation states are bound by its decisions, and whether there is provision for implementation, enforcement and sanctions regarding its decisions.
  • You should pay close attention to the participants and the sources of its funding.
  • You need to look well beyond the actors’ and institutions’ own websites.
  • There are websites devoted to treaties, international banking, and trade organizations, as well as websites on specific institutions, groups and organizations.
  • Debates about globalization become relevant now. Relationships among actors in the international sphere are essential, and these are often discussed in this literature.

 


Case studies

 FINTRAC

The Financial Transactions and Reports Analysis Centre of Canada (FINTRAC) is an agency independent of government that receives, analyzes, assesses and discloses financial intelligence on suspected money laundering, terrorist financing, and threats to the security of Canada. The agency shares intelligence contributed by certain financial reporting entities with Canadian and international actors tasked with ensuring public safety and the integrity of financial systems.

FINTRAC was established in 2000 under what has now become the Proceeds of Crime (Money Laundering) and Terrorist Financing Act. Within Canada, the Director of FINTRAC reports to the Minister of Finance. Since December of 2001, reported information has been made available to the Canadian Security Intelligence Service as part of the Canadian government’s overall national security agenda.

Through FINTRAC, Canada participates in an international G8-sponsored organization, the Financial Action Task Force that serves as a global watchdog for organized financial crimes that threaten the stability of the global financial market. One of Financial Action Task Force’s chief functions is to circulate warnings, through FINTRAC, regarding countries that harbour suspicious financial transactions.

Specifically, FINTRAC seeks information on suspicious transactions, suspected terrorist property, large cash transactions exceeding $10,000, electronic funds transfers and other cross border currency activity. To that end, FINTRAC identifies ‘money services businesses’ that it requires establish a compliance regime for customer identification and reporting purposes.  Transaction reporting of ‘suspicious transactions’ has been mandatory since 2001 for financial entities such as banks and financial dealers, life insurance companies and agents, certain government agencies that take deposits (such as Canada Post), accounting firms, real estate agents and brokers, and casinos.

What is a suspicious transaction? Any transaction that triggers a suspicion, on reasonable grounds, that a money laundering offence has been committed. Since June 12, 2002, terrorist activity has been included in that definition. Compulsory reporting is required in aid of high-level policy decisions by the Canadian government.

The first professional group to challenge such reporting requirements was Canadian lawyers. They brought a court action to argue that reporting compliance requirements would violate solicitor-client privilege and deny their clients’ constitutional protections under Canada’s Charter of Rights and Freedoms. In November of 2001, the Federation of Law Societies of Canada argued the case successfully pending appeal in the higher courts  Lawyers are not exempt, however, if they are actively involved in generally reportable transactions.

In the wake of the creation of FINTRAC, much industry dissatisfaction with the reporting requirement has been noted. In the casino industry, for example, the 2010 creation of online gambling capabilities for the province of Ontario was mandated by the Ontario government before a regulatory framework existed to facilitate the necessary expansion of reporting conditions. As a result, reporting lagged behind gambling activity while the Ontario Lottery and Gaming Commission struggled with how to implement appropriate reporting guidelines. Gaps in reporting suspicious activity still exist, as the difficulty of attribution of illegal activity is much amplified with digital gambling.

Similarly, financial service industries reported dissatisfaction with the reporting forms that were found to be too vague and arbitrary to elicit meaningful information. There was also a complaint that reporting frequency created a glut of information too massive for FINTRAC investigators to pursue or analyze into meaningful intelligence. Thus there was a lack of adequate feedback from FINTRAC officials and little legal protection for those who provided sensitive disclosure.

In addition, those who complied with reporting regulations complained of a lack of direct response from intelligence personnel and those entitled to FINTRAC disclosure, such as Office of the Superintendent of Financial Institutions, the Royal Canadian Mounted Police, the Canada Border Services Agency, the Canadian Revenue Agency, the Department of Justice, Public Safety Canada, and the Public Prosecution Service of Canada. MSBs were also critical that the whole FINTRAC regime was too expensive and there seemed to be no accountability for expenditures.

A frustration on FINTRAC’s part was that it did not have the legal teeth to administer financial penalties and to name offenders to the legislation. Early on, FINTRAC reported satisfaction with “the placement stage of money laundering” (the original outlay of money) but stated that money service bureaus were lackluster in reporting layering and integration stages of money laundering. FINTRAC defines ‘the layering stage’ as converting the proceeds of crime into another form and creating complex layers of financial transactions to disguise the audit trail, and the source and ownership of funds. It defines ‘the integration stage’ as the placement of laundered proceeds back into the economy.

FINTRAC’s regulative scope was expanded with amendments to the legislation in 2008 that required an increase in the variety and sophistication of suspicious transaction reporting by money service bureaus. By 2010, the FINTRAC Director reported the awarding of a handful of financial penalties and suggested there would be more, once the Canadian government’s Budget announcement of expanding FINTRAC jurisdiction into matters of income tax evasion was passed into law. That expansion of powers would accompany amendments to the Criminal Code that would make income tax evasion a predicate offense to money laundering.

Critics of the FINTRAC system are numerous. One source, while supporting the organization’s intentions generally, comments on the powers of intrusion, and thus lack of transparency and accountability, enjoyed by independent agencies like FINTRAC that are involved in the Canadian national security agenda post 9/11. “The mere fact that a government claims something to be a matter of national security does not necessarily make it so. Such claims, in fact, may be vehicles for avoiding closer legislative watchfulness.” Some authors suggest the National Advisory Council on National Security as watchdog to demand accountability and provide external review.

One step in increasing oversight is a 2006 amendment to FINTRAC’s enabling legislation to permit the Privacy Commissioner of Canada’s office to regularly review FINTRAC’s compliance with the Privacy Act, the federal public sector privacy law. FINTRAC’s lack of official oversight was also addressed in the report of the O’Connor Commission of Inquiry in 2006, assembled to investigate the ‘extraordinary rendition’ activities involving Mahar Arar.

Many have claimed that FINTRAC has been an ‘expensive black hole’, an organization in need of ‘doable’ policies that would improve the sharing of information to those reporting suspicious activities, such as police and intelligence officers. They observed an unhealthy ‘empire building’ taking place among various international organizations who were keen to be seen as taking a tough position on money laundering.

They particularly questioned the official agenda of FINTRAC that seemed determined to avoid questions of the costs of compliance for “deputized” reporting entities or the wider impact of FINTRAC strategy beyond processing outputs such as arrests, prosecutions, and forfeitures.

It is the nature of organizations with ‘apolitical and quasi-legal structures’ to attract criticisms of lack of transparency and objectivity.  Global networks, tend to accept less “pure” forms of sovereignty, deliberative equality, and command-and-control regulation, to be less concerned with civil liberties for example.  In the name of supporting people and democratic choices, often the latter are curtailed.  Such has been the situation with FINTRAC and related organizations.

Elizabeth Kirley 


WIPO

WIPO is a specialized agency of the United Nations dedicated to developing an international intellectual property system.  Intellectual property encompasses a variety of intellectual creations but the major areas are patents, trademarks, and copyrights.  Patents provide an inventor with a limited right to exclude others from making, using, selling, and importing, the patented invention; copyrights provide a limited protection for creative works by an author;  and trademarks are intended to protect the quality of goods through the protection of commercial marks.

WIPO has a mandate to not only promote intellectual property protection but to also create an international intellectual property infrastructure, to create a normative intellectual property structure, and to facilitate intellectual property use to spur development in least developed countries.

Membership in WIPO consists of nations as speaking and voting members.  WIPO’s governing body consists of a General Assembly, the WIPO Conference, and the WIPO Coordination Committee.  Each member nation has a representative in the General Assembly. The General Assembly acts as a kind of legislative body, making decisions on general WIPO operations, budgets, and executive composition.   The Conference consists of all members and covers issues such as conference budgets, non-government organization membership and observer status, and amendments to the Convention Establishing WIPO.   Committees and working groups are also part of the WIPO structure.  Assemblies, committees and work groups consist of members, and it is the members that drive the strategic direction and activities of WIPO.

WIPO allows Intergovernmental Organizations, and non-Governmental Organizations to have observer status at meetings.  Permanent observer admissions are determined by the member nation states.  There are over 250 intellectual property organizations and intergovernmental organizations.   One criterion for admission as a national non-government organization is that the organization must have the authority to speak for its members through its representatives.  Note: this notion of non-governmental organization includes corporate bodies. Non-government organization have a considerable amount of power to determine international and national policy.  The only Canadian entity listed as an observer is the Intellectual Property Institute of Canada, a professional association of intellectual property professionals.  Canada has no other observers at WIPO.

WIPO primarily acts as a forum for intellectual property issues and for discussions related to intellectual property treaty implementation and development.  WIPO has a dispute resolution body that offers mediation and arbitration services.  Both are voluntary services that require the parties to agree to a dispute resolution process.  However, the arbitration process requires the parties to agree to submit to the decision of the arbitrator.  Arbitration issues are primarily those of intellectual property owners and infringers.  Unlike a regular court proceeding, the arbitration process remains confidential, including the proceedings, the decision, and any remedies.

WIPO’s power over nation members lies in its capacity to act as a treaty-making forum.  Intellectual property treaty disputes are often trade related and may fall to different international bodies, such as the World Trade Organization, for dispute resolution.

On the surface it would seem that Canadian research pharmaceutical companies have no representation before WIPO.  But Canadian pharmaceutical companies are indirectly represented through observer non-government organizations.  The International Federation of Pharmaceutical Manufacturers & Associations has observer status at WIPO proceedings and Canada’s Research Based Pharmaceutical Companies is a member of this group also.

Of the Canadian Research Based Pharmaceutical Companies, all are subsidiaries with parent companies in other countries. Based on the previous remarks, it would also seem that pharmaceutical companies only have a handful of representative non-government organizations.  However, a closer look at other pharmaceutical organizations having non-government organization status before WIPO shows that a company such as Pfizer is heavily represented in these organizations.  The European Federation of Pharmaceutical Industries Association is a non-government organization consisting of European national organizations, pharmaceutical company members as well as members of the European Biopharmaceutical Enterprises and the European Vaccine Manufacturers.  Pfizer is present not only as a full member of the European Federation of Pharmaceutical Industries Association but also as a member in the European Biopharmaceutical Enterprises and European Vaccine Manufacturers.  A closer look at the European national organizations indicates that Pfizer is also a member of each of these.  The International Federation of Pharmaceutical Manufacturers & Associations consists of company members and national organization members. Pfizer is a not only a company member of the International Federation of Pharmaceutical Manufacturers & Associations but is also a member of most, if not all, national organizations.  In the World Self-Medication Industries, Pfizer is not directly represented but it is a member of the Consumer Health Products Canada and Consumer Healthcare Products Association in the U.S. through Pfizer Consumer Healthcare.  Biotechnology Industry Organization and the American BioIndustry Alliance are yet more observer organizations in which Pfizer is a member company.  The European Federation of Pharmaceutical Industries Association, the International Federation of Pharmaceutical Manufacturers & Associations, World Self-Medication Industries, Biotechnology Industry Organization, and American BioIndustry Alliance have observer status for all general meetings.  As is now obvious, classifying Pfizer as a non-governmental organization, and identifying the ways it participates under its own name would lead you to make a serious error.

When committees deliberate on intellectual property policy, these will often involve consultations with observer entities.  These committees will also call in non-observer organizations as part of their deliberations process.  For example, the Permanent Committee on the Right of Marks, Industrial Drawing and Models, and Geographic Indicators called on pharmaceutical observer organizations as well as non-observer organizations.  Non-observer organizations, in this case, included the Pharmaceutical Research and Manufacturers of America and the World Medical Association. Thus a company like Pfizer not only had representations through the International Federation of Pharmaceutical Manufacturers & Associations and the European Federation of Pharmaceutical Industries Association, but also through membership in Pharmaceutical Research and Manufacturers of America and as a corporate partner in the World Medical Association.

The non-government organizations will often create submissions to put before a committee during its deliberation and consultation process. For example, the International Federation of Pharmaceutical Manufacturers & Associations and Biotechnology Industry Organization made a joint submission regarding the Policies, Measures, and Experiences Regarding Intellectual Property and Genetic Resources before the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_16/wipo_grtkf_ic_16_inf_21.pdf

Companies such as Pfizer also participate in workshops and meetings at WIPO.  Pfizer directly gave a presentation at the WIPO National Workshop on the Enforcement of Intellectual Property Rights for the Police and Customs Officials in 2006.

Despite their active presence, non-government organizations have no formal voice within WIPO.  Non-government organizations are formally heard only through the consultation process or when asked to present information to a committee or group or when they prepare a background or “expert” paper to be considered.  However, non-government organizations have lobbying power.  Lobbying power can be quite extensive, as can be seen through the interconnectedness of pharmaceutical organizations and the multi-national character of many of the member companies.  This gives non-government organizations access to national governments as well as international decision-making bodies.  Non-government organizations also can gain access to country representatives during WIPO meetings.  Each country has representatives in the Assembly and many countries have representatives on various committees.

Of the treaties administered by WIPO, the Patent Treaty is the only one that directly relates to patents, and this relation is primarily for streamlining and harmonizing administrative procedures for patent applications.  The Patent Treaty creates a minimum standards or protections for patent applicants who apply through the Patent Cooperation Treaty system.  Patent applications are generally administered and enforceable at the national level. The Patent Cooperation Treaty allows for a streamlined filing process in multiple countries.  This is a very useful tool for pharmaceutical companies.  If procedures are not in place than a country’s patent applicants cannot take advantage of certain protections of the Patent Cooperation Treaty.  Once the treaty is in place, the patent applicant may still get international application protections even if procedural elements are not followed by the applicant’s country.

Assume for the sake of argument that the existence of WIPO is a good thing, and that the United Nations has acted with the best of intentions.  By looking at the WIPO website only, as in step two of the research noted above, you would garner the goals, objectives, mandates and powers of WIPO and learn about its connections to the United Nations.  As should now be obvious, this is barely the tip of the proverbial iceberg.  I found the other steps to be essential.

Alecsander Nikolic


Water politics in India and Bangladesh

India is constructing barrages/dams/reservoirs on almost all the major rivers and regulating the flow of water. The most important Farakka barrage has been erected over the international river, the Ganges to divert its water to Bhagarathi-Hooghly River in order to keep the Indian Kolkata Port navigable and free from silts. Bangladesh is extremely dependent on the Ganges River, for agriculture, industrial activity, domestic use, navigation, fisheries, and forestry. The river also prevents the inland intrusion of the saline water from the Bay of Bengal.  Thirty-three per cent of Bangledesh’s population is dependent on the Ganges basin.

The Farakka barrage became the ‘Kashmir’ of Bangladesh’s grievances with a short term agreement on the apportionment of the Ganges water was signed in 1975 between Bangladesh and India.  It expired in a month later.  In November 1977, the two countries signed another agreement, this on for a period of five years. This agreement expired in1982. From 1982-88, Bangladesh had no agreement with India but had Memorandum of Understanding.  Understandings but from 1988-1996 there was not even a Memorandum of Understanding.  Finally, in 1996, Bangladesh and India signed a thirty year long Ganges Water Sharing Accord. The records of water flow suggest that it is not being implemented properly.

In addition to this Farakka barrage, India is contemplating implementing an interlinking of rivers (project. India prepared a mega plan in 2000 to interlink thirty-seven rivers in order to take waters from one basin of a river to another and thus solving the water crisis in the draught affected regions.) If implemented, it can be argued that the effect will be to seriously threaten the very existence of Bangladesh, because eighty per cent of its annual fresh water supply comes as a trans-boundary inflow through fifty fou rivers common to both countries.

Apart from this, the Government of India has initiated the process of construction of the Tipaimukh Hydraulic Dam located 500 m. downstream from the confluence of the Barak River. The main purpose of this dam is the generation of hydro-electric power. Barak is an international river and its tributaries are the Surma and the  Kushiara rivers of Bangladesh. The Surma River feeds the Meghna River which flows through Bangladesh. Millions of people are dependent on the bodies of water fed by the Barak River in the North-East region of Bangladesh for fishing and agriculture.

My concern was Bangledesh, and my study involved proposing ways that this situation could be dealt with. My work involved looking at the situation in terms of international law. Water flows in India and in Bangledesh could not properly be determined between the nation states themselves, I concluded. I wanted to see reference to international law principles, instead of negotiations between the two nation states involved, because international law deals with the use and utilization of transboundary rivers in order to ensure the just and equitable apportionment of water for co-riparian countries.  It further affirms that the use and utilization of water by any riparian country should not cause any significant harm to the use and utilization of water of the other riparian country. I concluded that the governing law should be the principle of “reasonable and equitable utilization”. Neither the absolute territorial sovereignty theory, nor the absolute territorial integrity theory is an acceptable principle in international law.

Determining that international law principles had an important role to play was not the end of my research. There is an intrinsic weakness of international law regarding enforcement of principles, especially when a strong state like India is involved. India has economic and military powers to back up its own policies. I read that an Indian strategic partnership with the United States had been partly responsible for Indian non-compliance to international law regarding the use and utilization of common water and environmental resources with Bangladesh.  Legally sound and important as they are, In concluded that international law principles were not sufficient to resolve disputes between states of unequal power in the real world of international relations.

The documents and interviews confirmed that India’s preferred means of conflict resolution was bilateralism. India wanted to negotiate directly with Bangladesh without the involvement of any third party to settle the dispute. Indeed, since the birth of Bangladesh, both countries have adopted the policy of bilateralism for conflict resolution. Unfortunately, I believed that bilateralism had failed to protect the interest of the weak Bangladesh vis-à-vis India. Bilateralism worked well only between two friendly states or between equally strong states. In hostile situations, bilateralism can often protect the interests of the strong state over the weak.

Multilateralism, in this case third party settlement, seemed like another option. In spite of all the disadvantages of bilateralism,  The advantage of a third party settlement is that it involves a wider array of parties in the discussion, making it no longer a zero-sum game. Furthermore, there is more likelihood that international law principles would be applied if there were parties other than the ones in conflict involved. I looked for and found examples of third party settlement that had been successful.

Both primary and secondary sources were used in my research. Primary sources included: treaties, agreements, memorandum of understandings, public documents, reports of the international conventions, relevant international cases, judicial decisions, and charters of the International and regional organizations. Secondary sources included reference books, scholarly journal articles, dissertations, Newspaper articles, and internet sources etc.  I did not do interviews, but I had years of experience as a political science student and later academic in Bangledesh to back up my research.

Zagul Haider


Once you have read this chapter, you should be able to:

  1. Have a basic understanding of the challenges involved in conducting research in the international sphere.
  2. Identify different kinds of international institutions and actors according to a rough typology.
  3. Understand how globalization represents both continuity and change from the (old) international order.
  4. Understand how nation state sovereignty impacts all kinds of decision-making and action at the international level.
  5. Have a basic grasp of the nature of international customary law, treaties, and hard and soft law.
  6. Identify relevant actors and institutions relevant to your research and commence gathering information.

 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s