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.
|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:
- To ensure that you pay attention to what any body actually is allowed to do and what it actually does; and
- 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.|
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?
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.
- 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.
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?
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.
- 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.
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?
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.
Why can’t we describe the European Union as a government? It seems to have the features of government you describe.
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.
With no formal consent mechanism, how can a nation state avoid being subject to an international customary law?
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.
- 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.
How is international customary law different from a treaty?
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.
- For Canada, see the Negotiations and Agreements section on the Foreign Affairs and International Trade Canada’s website: http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/index.aspx?lang=eng
- For the United States, see the State Department’s website: state.gov
- For Australia, see the Department of Foreign Affairs and Trade: dfat.gov.au
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.
With so many different actors and institutions operating in the international sphere, how do I decide which kind of body to focus on?
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.
Once you have read this chapter, you should be able to:
- Have a basic understanding of the challenges involved in conducting research in the international sphere.
- Identify different kinds of international institutions and actors according to a rough typology.
- Understand how globalization represents both continuity and change from the (old) international order.
- Understand how nation state sovereignty impacts all kinds of decision-making and action at the international level.
- Have a basic grasp of the nature of international customary law, treaties, and hard and soft law.
- Identify relevant actors and institutions relevant to your research and commence gathering information.