The broad question that is raised in the introduction to this book is: “how can the international juridical order resemble the legal systems that we find in Western liberal democracies?” As such, it makes two assumptions. The first is a relatively uncontroversial one: that the “international criminal justice system” is imagined in the image of an archetypal liberal democratic system. The second is more controversial: that the legitimacy of the system is undermined by its inability to conform to the basic characteristics of the system it seeks to replicate.
As the introduction notes, a key weakness that remains in the international juridical order is its lack of a system of checks and balances that is normally inscribed into liberal democratic legal systems. In making this observation, we do not assume that the international juridical order should simply mirror Western liberal democratic systems, but merely the political reality, that it has evolved with reference to a very particular legal model, first dominated by the European empires, and later by the United States, in the image of some form of (capitalist) liberal democracy (Zolo 2009). Moreover, principles of equality and transparency guaranteed by liberal democratic legal systems both vary widely across national contexts, and have rarely, if ever, operated as they are supposed to.
Nonetheless, there does appear to be a major disruption to the prospects for upholding principles of popular accountability in the current structures of international criminal justice institutions such as the International Criminal Court (ICC). This major disruption is however, not merely to do with the presence or absence of “checks and balances” but is to be found in a much broader problem for the global system: its inability to deliver a convincing replica of a liberal democratic system of justice.
This disruption is most visible given that the (formal) bureaucratic relationship (in classical liberal terms, the form that the separation of powers takes) between the political, legal, and economic spheres at an international level is much less developed than in many nation states’ systems that have developed over several centuries. The separation of powers that established lines of accountability and authority for each institution’s decision-making responsibility and for the scope of their powers remains highly under-developed at the international level. The inability to replicate a liberal democratic system of justice at the international level is also a function of the ineffectiveness of international law as a system of equally sovereign states. One function, if not the primary function, of international law is the maintenance of a colonial dynamic through legality, which reproduces a form of political sovereignty that is completely consistent with the economic and military subordination of the periphery by the core (Anghie 2006: 747, 751; see also Mutua 2002; Pahuja 2011). Consequently developing nations—most of which are former colonies—have what we might call impaired sovereignty, resulting in international law de facto contradicting the tenet of equality between nations on which the liberal democratic system it is modelled on.
Drawing upon debates in international relations, this chapter begins by exploring what all of this means for the development of new hegemonic—and counter-hegemonic—forms of international criminal justice. It then revisits debates in the institutions of the United Nations on a particular aspect of human rights law—the complicity of private corporations for human rights violations—in order to assess the prospects for the development of a counter-hegemonic practice in the international juridical field.
“Hegemony” and International Law
The absence of checks and balances comparable with those that we find in liberal democratic states raises the question of how an international juridical system might be legitimately sustained. The central issue at stake here is the rupture that occurs between normal and formal mechanisms of accountability at the level of the national or local state. In international governmental institutions, such as the various organs of the UN, the link between government and populace is weakened by the absence of direct elections and an absence of parliamentary and legal accountability mechanisms that citizens can access directly. One does not have to be a true believer in liberal democracy to see how the absence of those formal mechanisms weakens the degree to which a system can be held accountable.
The question of how popular legitimacy can be secured in an international order has also been the focus of longstanding debates amongst scholars in the disciplines of international relations and political science. The body of work which has consistently foregrounded the concept of legitimacy (i.e., works by Cox 1981, 1983, 1987; Gill 1992, 1995; Sklair 1995) is rooted in a Gramscian tradition, that is, it is influenced by the ideas of the Italian Marxist Antonio Gramsci. From this perspective, the global order is viewed as a political project which emerges under conditions that contain some kind of mix of consent and force (Gramsci 1971).
A common aim in Gramsci’s work on the popular legitimacy of the international order is to show how disjuncture between social forces—as well as disjuncture between competing national interests—rather than continuities have shaped the emergent political order, and highlight how this order is always contested. The deeper question about legitimacy and the rule of law that this work raises is the extent to which legitimacy is either viable or necessary to the architects of global institutions. Gramsci’s major impact upon social science is largely due to the perspicacity that he brought to understanding—at the level of the nation state—exactly what those writers seek to explain at the global level: how a mixture of coercive practices of government and popular consent (which differ according to the historical development of states) produced the conditions for dominant groups to rule.
For Gramsci, force or coercive power alone cannot be a sufficient condition to rule; ruling blocs must secure some measure of consent in the public sphere (or what Gramsci terms “civil society”). Insofar as it seeks to define the extensive range of institutions in which key social ideas and practices are developed, this definition of civil society is much broader than the definition applied in contemporary studies of the global order and seeks a basis for understanding the decisive intuitions that refract the struggle between social forces (for a discussion see Keene 2003). Thus, for Gramsci, trade unions, business associations, political parties, churches, and educational institutions are as much a part of civil society—the places where consent to rule is developed—as the NGOs and the voluntary sector that are normally captured by this definition. The question of securing consent at a global level, from this perspective, then, must understand the character and nature of both international institutions of government and the institutions of civil society that operate at an international level, beyond the confines of national boundaries.
Bieler and Morton (2003) see globalisation as a production structure in order to identify social forces as the key collective actors. Globalisation, as the “transnationalisation of trade and finance” (Gill 1995 cited in Bieler and Morton 2003), has provoked new collective actors, which they identify as transnational social forces of capital and labour. These new social forces attempt to organise around a hegemonic project, and in the era of globalisation, they argue, neo-liberal economic projects have been broadly successful in bids for hegemony. But to be successful, they need to shift a hegemonic project from the particular form of state to the global sphere of activity. In general, they suggest, this occurs with the help of international organisations, for example, through the inward investment by transnational corporations (TNCs) or through neoliberal restructuring programmes such as IFI-enforced structural adjustment plans.
In reflecting on this literature, it becomes clear that the explanation of how consent to rule is generated in a wider sense, at an inter- or trans-national level, has typically drawn upon a more general—and not strictly Gramscian—concept of consensus, rather than consent. Thus, Robert Cox (1987) develops an account of how consensus formation takes place in the advanced liberal democracies whereby the central agencies of those states (presidential and prime ministerial offices, foreign offices, treasuries, and central banks) interact with each other in conversations and negotiations that are often channelled through formal international institutions and more ad hoc fora such as economic and environmental summits. Those fora are where we see social forces refracted and mediated in ways that enable the ideas and practices applied in national ruling blocs established on a global basis. The need for popular consent for international political structures is most crucial in the powerful, core nations, where social forces are more effectively translated into international economics and politics. Yet, at best, a notion of consensus is maintained at a level removed from the public sphere, and has taken on the character of an intra- as opposed to inter-class consensus. As Cox has noted: “the international institutions are particularly important in defining the ideological basis of consensus, the principles and goals within which policies are framed, and the norms of ‘correct’ behaviour” (1987: 259). There is, therefore, the basis for hegemonic cohesion at the ideological level, and at the level of defining practice. But at the moment, bids for hegemony at an international level appear to be locked within ideas and practices that are developed within elites. These elites have been called the “transnational capitalist class” (Sklair 2002) consisting of four interconnected groups: “those who own and control the major corporations and their local affiliates, globalizing bureaucrats and politicians, globalizing professionals, and consumerist elites” (Sklair 2002: 144). Yet, despite the appearance of transnational groups capable of developing bids for hegemony, they still do not have obvious mechanisms of public dissemination—far less a civil society structure that is necessary for securing popular consent.
An enduring problem for the global system is that it lacks comparable domestic mechanisms that are used to manufacture and sustain popular consent. As Gill and Law noted almost two decades ago: “there is not a clear cut ideal international political society which would promote transnational hegemony on a global scale” (1993: 117; see also Augelli and Murphy 1993: 128–130). This is why Sklair, in his assertion that historical blocs do form at the global level, is never quite able to show how civil society is capable of securing popular consent, or indeed how counter-hegemonic groups are formed. On the contrary, he is very pessimistic about the marginal position of organised labour in the world system (1995: 74). The challenge to the global hegemony is sometimes located in “global civil society.” However, attempts to discern how counter-hegemonic social forces might gain traction globally have been consistently pessimistic. The search for a global process of counter-hegemonic formation consumed scholars ten to fifteen years ago (van der Pijl 1997; Sklair 2001). This search endures (e.g., Gill 2010, 2012). The answer that most scholars have come back to in response to this dilemma is that counter-hegemony remains most viable at the level of the nation state. As Cox argued, “we must shift the problem of changing the world order back from international institutions to national societies” (1993: 64).
Counter-hegemonic responses to corporate violations of human rights have been stunted at the international level due to the incapacity and even unwillingness of international fora to address these issues. The counteraction has been to use the national systems as an attempt to attain some form of judicial reaction. Examples have come predominantly from the use of the Alien Torts Claims Act (ACTA) 1789 in the American courts, from plaintiffs seeking redress for human rights abuses.2
In contrast to critics of the global order that foreground the relative weakness of counter-hegemonic social forces, some remain unshakably optimistic about the prospects for a functioning international system. For Falk (2002), the global network of human rights movements and human rights struggles has functioned as an effective “civil society.” Transnational global movements affect policy and influence the context of the global system, often working locally but thinking globally (or vice versa) thus highlighting the “glocal” dimension of their work. However, the unavoidable problem with this analysis is precisely the same one that is raised in the introduction to this book and to this chapter: that transnational NGOs have a relatively narrow constituency, drawing support from their membership in the core Western nations, and that most NGOs cannot legitimately claim to represent the demands or struggles of the majority world.
Others have sought to show how the form that global systems of government take are shaped by the outcomes of such struggles for ideas and practices in civil society at a national level (an archetypal example of this analysis can be found in Rupert 1995, 1997, 2001), a position that is consistent with Gramsci’s original formulation (Thomas 2009). Those ideas and practices are then imposed upon the global order, mediated by a process of struggles, dialogues, and agreements between states. Local and national hegemonic struggles thus get played out on the world stage. As Santos (2002) has noted, the emergence of the American law firm as a hegemonic influence in the development of a global body of private law has been crucial to developing law to the needs of transnational systems of production and transaction. This Santos called “globalized localism,” a process in which the dominant ideas and practices of core states are adopted in “global” forms, and local systems of law in periphery states are increasingly vulnerable to a global form of law. The regulative role of the state is reconfigured as a facilitator of global law produced by core nations and integrated into the periphery. By emphasising the centrality of consensus, those writers point to how power is reproduced by elites in fora that are relatively separate from other sections of civil society and are certainly operating in a separate sphere to the bulk of the world’s population.
The form of the global legal order, from this perspective, tends to replicate the balance of social forces in the dominant, core nations. “Global” civil society can also be critiqued from this perspective. What appears to us as a developed body of civil society similarly resembles organisations and institutions that are practically or ideologically affiliated to the core. In this respect, global human rights networks typically refract struggles that may focus upon global issues, but are largely communicated, discussed, and played out in the core nations.
No matter how incomplete a global hegemony can be, there does exist something like a common set of ideas that is shared across the ruling elites of most nations and has some purchase in many of the most influential global political and economic institutions. Thus, adherence to a set of principles that most commentators describe as “neo-liberalism” (for a discussion and definition, see Bourdieu 1998, 2003; Harvey 2005) has become an article of faith guiding the work of the IFIs and international trade organisations. Like every other bid for hegemony, the rise to dominance of neo-liberal ideas has depended upon a major effort of intellectual leadership. As Bourdieu has argued, the rise to dominance of neo-liberalism has not been based upon its merits per se, but upon its “inevitability” (1998: 30–31). Neo-liberalism, in the dominant discourse, is promoted as a fait accompli. The emergence of a global order is therefore presented in social Darwinist terms—as a matter of human progress towards a common system of social organisation. Famously, Francis Fukuyama, one of the lapsed architects of Bush’s neo-conservatism, proposed in The End of History and the Last Man (Fukuyama 1992) that liberal democracy will become the only form of government for all states, and therefore for the international order. Similarly, John Gerard Ruggie’s (1982) concept of “embedded liberalism” describes a historic post-War compromise across the core nations whereby “all sectors of society agreed to open markets” (Ruggie 2003: 2). This strand of thought assumes that there is a relatively consensual support for a new global order (which is nonetheless troubled every now and then by dissenting voices within the international system) precisely because it follows a rational path of development. Notwithstanding the growing visibility of its dissenters, the idea of an unfolding consensus of a democratic liberal global order as a matter of historical progress has played a crucial role in hegemonic terms: in providing intellectual leadership to ruling blocs.
The neo-liberal Washington consensus has been equally influential in the institutions of the United Nations (UN) as it has in the global financial and trade institutions. As Utting has noted, the 1980s “witnessed a signifi-cant shift in approach. Partly reflecting the influence of neo-liberalism, UN policy towards TNCs changed course. Instead of trying to regulate foreign direct investment (FDI), UN agencies like UNCTAD sought to facilitate the access of developing countries to FDI. Deregulation was encouraged. By the early 1990s various regulatory initiatives ground to a halt, including several inter-governmental codes” (2000: 2–3). The rest of this chapter will seek to show in some detail how this shift in approach played out in one case.
Put together, those points suggest that an international juridical system cannot emerge in a truly hegemonic sense; it cannot hope to establish a broad hegemonic common sense about questions of the rule of law and justice at the international level. Indeed, as the international legal system develops, it is likely that its political mechanisms, just as the “civil society” structures that support it, will exert a greater degree of autonomy and exist as an increasingly rarefied and exceptional political space. It is this tendency that makes the prospects for a truly global counter-hegemony less viable at the current juncture, leaving the international order more vulnerable to the agendas promoted by the dominant core nations. Yet, at the same time, the existence of counter-discourses and practice at the global level does indicate that the foundations of domination are not entirely solid. In particular, human rights law, due to the universality and protection of humanity it formally claims, appears more amenable to a global consensus than other sites of struggle (Santos 2009). This, as the chapter will argue—with reference to one site of those struggles—gives us reason for both optimism and pessimism about the prospects for challenging corporate human rights violations.