Hannah Arendt and the Languages of Global Governance

01 Nov, 2015 GENERAL LAW 0

Hannah Arendt and the Languages
of Global Governance

JAN KLABBERS

IT HAS BECOME rather fashionable to explore contemporary political issues by invoking the works of Hannah Arendt, and often this takes the form of starting with Arendt’s thoughts on some topic or other, finding that her thoughts leave a few gaps, filling in those blanks, and then somehow hoping that the speculating is enough in line with what Arendt said and wrote to make it plausible. There is, obviously, a huge temptation to do the same with the broad topic of global governance—something that was not around when Arendt wrote, and most assuredly not under that name. In fact, it would even be arguable to say that even the discipline of international relations was still in its infant shoes when Arendt devoted attention to world politics, and that her most well-known comment (to the effect that the relations between States were not traceable to economic interests) would be considered outdated by most specialists these days.¹

Given the methodological problems involved in what Besson, in chapter eighteen of this volume, refers to as ‘Arendtology’, I shall fiercely try to resist the temptation to read things into Arendt that may not be there—without fully succeeding, no doubt. Indeed, elsewhere I have suggested that Arendt is best seen not so much as a fount of wisdom, but rather as a source of inspiration: the unexpected connections she made, and the unorthodox ways in which she defined concepts and looked at what went on around her, shed unfamiliar light on familiar issues—even if it sometimes ended up generating more heat than light.² What I shall aim to do instead is try to sketch some connections between what Arendt wrote and what could be called ‘global governance’.

Arendt’s biographer and former student, Elisabeth Young-Bruehl, recently remarked that ‘Arendt’s greatest gift as a political thinker was to identify novelties, to explore them, and when the exploration led to a generality, to state that generality clearly’.³ One of Arendt’s preferred methods of identifying these novelties was by zooming in on the language used, on the unspoken assumption that language is rarely neutral but often already steers discussion and debate into a certain direction, or, more importantly still, comes to function as a blanket, warming its users but obscuring relevant issues and opinions from view.

The aim of the present contribution is to tease out some of this, with special reference to global governance. It would seem that Arendt can offer useful insights about the language and concepts used in discussing, analysing and celebrating global governance, even if she did not say anything out loud. In what follows, I address first what global governance stands for: disputed as it is, it is not impossible to find something of a working concept. Secondly, I highlight some of the pitfalls of global governance: some issues keep puzzling analysts. Subsequently, I explore how an Arendtian frame of mind could be useful to analyse some of those topics. In doing so, I first address human rights, followed by a discussion on the use of language and concepts in global governance more generally. The reason for this distinction is that human rights law is one of the few manifestations of global governance about which Arendt did actively write, even if her writings on human rights are somewhat dispersed throughout her work. Hence, here her writings can offer some direct guidance. Inevitably, I shall be painting with a rather broad brush; the format of an essay does not allow for a more detailed exploration.

I. (SOME OF THE) HALLMARKS OF GLOBAL GOVERNANCE

What seems reasonably clear these days is that there is no single institution running the world. Power and authority are divided and, what is more, dispersed. Authority is exercised by States (some more than others), but not by States alone. Authority is exercised by intergovernmental organisations (think of the UN, the WTO, the World Bank), but again to varying degrees. Authority can also be found in the work of non-governmental organisations: entities such as Amnesty International or Greenpeace may have an influence on global affairs beyond what could reasonably be expected given their formal status.

In addition, companies and industries exercise authority. On the prosaic level, anyone who used WordPerfect as their preferred word-processing device will have realised that in the days of Microsoft, there is not much chance left to continue working with WordPerfect: Microsoft’s systems are not highly compatible. The dominance of Microsoft makes free choice in the field of word-processing well-nigh impossible. The picture is similar in other industries, as the 2009 global financial crisis made clear: some actors can set the tone, but the downfall of one can cause an economic avalanche beyond anyone’s control. As a result, it is possible to argue that the problem resides not so much with companies, but with the markets on which these operate: authority, on this view, is located somewhere in these markets—and that makes things all the more difficult to control, or even to identify who exactly is influencing whom.⁴

What is also unclear is how global governance is exercised. Anne-Marie Slaughter has made a plausible case that much governance these days is being exercised through informal networks of civil servants, making deals and arrangements far from the spotlight and far from any democratic or judicial control.⁵ Many of the results of such concord are, furthermore, laid down in instruments of uncertain legal status, ranging from summit statements and guidelines to codes of conduct, action programs and the like.⁶ As a result, it is not just difficult to find out how global governance is exercised, but also, most disturbingly perhaps, what it consists of. Much the same applies to the guidelines and codes developed by industry representatives in such vital sectors as insurance and banking: their legal status is opaque, resulting in great uncertainty for audiences worldwide and well-nigh unlimited room for manoeuvre for the powers that be.⁷

James Rosenau, arguably among the first to identify governance in the absence of government, more or less accidentally defined governance as related to the exercise of governmental functions in the absence of ‘organizations and institutions explicitly charged with performing them’.⁸ Indeed, pivotal to global governance are ‘the informal, non-authoritative dimensions that are so essential to the functioning of international orders and regimes’.⁹

The elusive nature of global governance has several consequences for research. One of these consequences is that global governance cannot be captured fully within the confines of a single academic discipline. While possibly most work to date has been done by those with a background in international politics, much of this work misses the legal dimension. International lawyers, in turn, have difficulties studying informal exercises of authority, precisely because these are informal and not institutionalised. Both lawyers and political scientists, moreover, might lack the sensibilities that come with training in the humanities. Theologians and moral theorists may offer valuable insights on the ethics of global governance (or the absence thereof), while sociologists and anthropologists may be better equipped to tease out presumptions on how people behave and, in particular, on how informal mechanisms relate to formal ones. It is perhaps no accident that trans-disciplinary approaches (think of legal anthropology, for example) are undergoing something of a renaissance in the context of global governance.

Global governance also stimulates a different research agenda. As Avant et al make clear, the study of global governance is not so much interested in the types of actors operating as in the character of relationships in the global sphere. They outline how authority, instead of flowing top-down through institutions and, it is hoped, bottom-up through democratic legitimation procedures, comes in different forms: authority can be institution-based, it can be delegated, it can be based on expertise, on principle, and it can be based on capacity. This checklist alone would suggest that a single disciplinary perspective no longer suffices.¹⁰

There is the additional circumstance that existing disciplinary paradigms may well no longer be suitable to address even aspects of global governance that could otherwise be said to fall within the province of that discipline, and perhaps the main example resides in the fragmentation of international law. It is not just the case that international law has great difficulties in classifying and analysing documents other than treaties (or other recognised manifestations of international law): the suggestive term ‘soft law’ already hints at these problems, carrying the connotation that such instruments are not hard law, and thus either not law at all or, at best, straddling the boundary between law and non-law. This alone would be tricky enough, but the greater difficulty resides in the circumstance that it is often not even clear where, in the great taxonomy of international law, a given issue properly belongs.

Fischer-Lescano and Teubner provide a telling example when they observe that the discussion concerning the spread of HIV-Aids and the availability of patented medication may be viewed in a variety of ways. Thus, so they suggest, the AIDS medication issue may be seen as a conflict between rights: pitting the right to life, and the right to a decent health care system, against the rights of patent-holders protected under the WTO Agreement on the Trade-Related Aspects of Intellectual Property (TRIPs Agreement). Alternatively, it may be seen as an issue between competing institutions, triggering a conflict between the WTO and the WHO. Or it may be seen as a conflict between different rationalities: the rationality of healthcare versus the rationality of trade.¹¹ The questions this provokes relate not just to what the TRIPs Agreement says, or whether a right to medication is reconcilable with intellectual property rights, but go deeper, and relate to how to decide between those different interpretations of the same issue: how can we even tell where we should begin to look for applicable law?

While Arendt never wrote on global governance specifically, her work can be an inspiration to the study of global governance. This finds its cause, it would seem, in two related factors. First, Arendt’s work has always been seen as a bit erratic and not terribly systematic,¹² and thus, it could be claimed, transgressing traditional academic divides almost inadvertently—although one suspects that much of it was intentional, given her oft-stated preference for ‘thinking without banisters’;¹³ surely, such a stand is eminently compatible with an approach which leaves academic disciplines for what they are. Secondly, Arendt was erudite by any standard—well-read in politics, history and the social sciences, with formal training in philosophy and a more than passing acquaintance with religious studies. She even managed to write sensibly about law, something that is more exceptional than one might hope.¹⁴ In short, as her critics often highlighted with some exasperation, her work was difficult to categorise and classify, and a bit elusive, which suggests that her work may be highly suitable for the purposes of approaching global governance—elusive phenomenon par excellence. In much the same way as Thomas Kuhn once observed that scientific breakthroughs are often achieved by relative newcomers to a field who have not yet been blinded by a field’s paradigms,¹⁵ so Arendt’s reluctance to be pigeonholed may well result in her being able to offer useful insights into a phenomenon that refuses to be pigeonholed.

Global governance and globalisation would seem to go hand in hand: the rise of globalisation, however precisely defined, has been accompanied by the rise of global governance. In other words: global governance, it could be claimed, sets the parameters in which globalisation can develop and blossom. Not surprisingly, then, much of global governance is motivated by a desire to make the global economy function smoothly, in much the same way as modern legal systems took their shape in the late nineteenth century so as to facilitate the modern capitalist economy.¹⁶ In this light, the current popularity of such topics as international trade law or international investment law is hardly a coincidence: these bodies of law are considered necessary to make the economy run smoothly, and are often portrayed as neutral arbitrators which help to ‘level the playing field’, as the popular phrase among WTO protagonists has it.

Accompanying this drive towards economic liberalisation and globalisation has been an erosion of traditional values. The neo-liberal economic philosophy upon which the globalising economy rests cannot be reconciled with any set of distinct values other than the value of laissez-faire which, in different settings, appears as toleration.¹⁷ Religions are unsuitable chaperones to globalisation because of their truth claims—and as Arendt held in the 1950s, truth claims are naturally absolutist.¹⁸ Likewise, grand ideologies are ill-suited companions, as these too tend to make the sort of truth claims that will not allow for liberal trade and investment flows. Yet some normative floors and ceilings are required; people need some guidance concerning what to do and what not to do in matters that do not directly impact their roles as producers and consumers—roles that may be shrinking, incidentally.¹⁹

In the globalised world, this guidance comes in (at least) two recognised manifestations: the rise of a set of predominantly liberal human rights since the 1970s, and the completion of a system of international criminal law, visible in the creation of the Yugoslavia and Rwanda tribunals of the 1990s and culminating in the creation of the International Criminal Court in 2002. Indeed, the last-mentioned is a most wonderful simulacrum of global governance: a well-developed institution, based on a set of detailed rules and even more detailed elaborations thereof, with nothing to do: it has yet to decide a substantive case, despite having been in existence for almost a decade.

II. (SOME OF THE) PITFALLS OF GLOBAL GOVERNANCE

Global governance comes in various shapes and guises—that much is clear. Some of its manifestations turn out to be highly problematic, and so are some of the manifestations of non-governance: it would seem, for example, that climate change could well benefit from some form of governance; some form of governance might be better than none at all. Or perhaps it is more accurate to say that governance is taking place in the form of a hyper-liberal approach: industrialised States take no measures whatsoever, neither do the large industrialising ones, and any attempts at reaching some form of international agreement fail miserably.

Likewise, issues of migration are still largely left to regulation by national governments: sovereign States have been highly reluctant to liberalise the movement of persons through global regulation, despite the circumstance that goods and services can nowadays move rather freely from one side of the globe to another. While products move freely and have been subjected to some kind of global governance, most notably within the WTO, what economists refer to as production factors are less regulated. The movement of persons is deemed problematic; and if anything, national controls have strengthened, not just over the last decade (since 9/11), but already before: passports and visas are inventions of fairly recent origin.²⁰

Financial regulation, including the movement of capital, would seem to be subject to some form of global governance, but without there being much regulation, so to speak. There are no formal intergovernmental institutions in existence to supervise the work of banks, central banks and the financial sector at large, and no rules exist to combat such things as currency speculation. Still, below the surface (on the ‘legally subliminal level’,²¹ so to speak) it would seem that things do not happen randomly. There are networks of regulators in the financial sector, ranging from the Basel Committee to the International Organisation of Securities Commissioners or the International Accounting Standards Board, whereas heads of State meet (or used to meet) regularly in loose frameworks such as the G7, G8 or G20, debt issues may be discussed in the nebulous Paris Club, and security in the more visible but not less nebulous Organisation for Security and Cooperation in Europe. Companies and their accountants may be asked to (or stronger: expected to) follow International Financing Reporting Standards, so by any measure it would seem that some form of governance is going on. And yet the financial crisis of 2009 managed to take many by surprise, and accounting standards did little to prevent Enron from making a mess a decade ago—whatever governing takes place in the banking sector or concerning the behaviour of companies would seem to be insufficient. Moreover, scandals such as that involving Enron paved the way for aggressive unilateral legislation (think of the US Sarbanes-Oxley Act—itself a form of global governance).

By contrast, there are other sectors in which global governance can be seen to be present in abundance; perhaps too much so. One sector is the ‘war on terror’ (which will be further discussed below) which helps to legitimate the imposition of economic sanctions on individuals suspected of cooperating with terrorists or suspected of financing them. The problem here is not the absence of governance: the UN Security Council has adopted many resolutions, some even of a legislative nature, and those resolutions are implemented with enthusiasm by governments and the European Union.²² The problem is rather that those resolutions, which may freeze an individual’s property and therewith come close to criminal punishment, are not based on anything even remotely resembling a fair trial. There is no clear indication of how individuals come to be suspected of aiding terrorists; the procedure by which individuals become blacklisted is nebulous; there is no legal procedure for becoming de-listed, and at no point is a trial based on the rule of law envisaged. It is, moreover, difficult to challenge sanctions once they have been imposed, and there is not even a plausible indication, in any particular case, that the regime is effective. It may be that the regime as a whole is reasonably effective (in that it may help to prevent further terrorist attacks—then again, as a counterfactual this is impossible to prove or disprove), but it is by no means certain that sanctions on individuals X, Y or Z contribute anything to this, other perhaps than as serving as a deterrent. But such considerations are difficult to reconcile with any conception of the rule of law, liberal or otherwise: people should not be punished for what they have not done, and should not be punished, without established ground, just to set an example.²³

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Hannah Arendt and the Languages of Global Governance