Developing a Law and Global Governance Approach to Korean Unification and
II. Law and Global Governance” Defined
1. Global Governance as Integrated, Institutional Interdependence
As most will know, the term “global governance” has had many uses
over time, some very general, some very specific.7 In my own view, what the term is essentially attempting to capture is the idea that the world community is experiencing a growing level of integra- tion in terms of the various international and domestic political and economic structures through which the world is governed. I want to emphasize the phrase “structures through which the world is gov- erned.” These structures constitute the institutions and practices that populate the international landscape and are therefore the pri- mary channels through which the emerging global order has been and is being constructed.
In straightforward geopolitical terms, it is possible to character- ize “global governance” as essentially an institutional approach to global politics, which is ultimately a classical international relations way of looking at things. But I think that characteriza- tion really only captures the “governance” aspect of the concept, since it merely captures the functional output of the system as a whole. What makes the subject global is its attempt to capture the identifiable and growing interdependence among these insti-
7 The seminal work on global governance as a notion separate from the concept of government and inter-state relations is James N. Rosenau and Ernst-Otto Czempiel, Governance Without Government: Order and Change in World Politics (Cambridge: Cambridge University Press, 1992). For a substantial review of the multiple uses of the term in the decade following, see Klaus Dingwerth and Phillip Pattberg, “Global Governance as a Perspective on World Politics,” Global Governance, vol. 12 (2006), pp. 185~203 (attempting to construct a more spe- cific definition of the term in response to Finkelstein’s observation that “Global governance appears to be virtually anything”). Lawrence S. Finkelstein, “What is Global Governance?” Global Governance, vol. 1, no. 3 (1995), pp. 367~372.
For a recent review, see Sophie Harmon and David Williams, “Introduction:
Governing the World?” In Governing the World?: Cases in Global Governance, eds. Sophie Harmon and David Williams (New York: Routledge, 2013), pp.
1~10.
tutions. Something classic international relations theory simply cannot digest.8
Some examples of the broadest international institutions to date include of course the WTO, the IMF, the UN, the EU, and the ICJ.
These are institutions that in and of themselves deal with specific governance objectives, and hence constitute the governance part of international governance. However, when we speak of these institu- tions in the context of global governance, the sense is that they are (1) in fact, governing globally and (2) ultimately tending toward a single system.9
On the first point, we can say these institutions are “governing globally” not because they are simply institutions that govern on some ethereal “global plane.” But rather, because they are global institutions that direct and guide the decisions and planning of their constituent members through the application of agreed upon norms. What else could such an institution be? They are insti- tutions that are directing their members from an authority status
8 For a discussion of global governance as an analytical concept that pro- vides a perspective on world politics different from the more traditional notion of “international relations,” see Klaus Dingwerth and Phillip Patt- berg, “Global Governance as a Perspective on World Politics,” Global Gover- nance, vol. 12 (2006), pp. 185~203 (“[Global governance] differs from the state-centric perspective of seeing world politics as essentially “inter-na- tional relations.”).
9 This second notion is reflected in the growing literature on the “global legal order.” It is a notion that suggests that what is emerging is not just a mosaic of overlapping, pluralistic legal regimes, but rather a totality of governance viewed from the point of view of the whole. For an accessible and thorough discussion of the global law perspective, see William Twining, “Globalisation and Law: Ten Theses,” in The Law of the Future and the Future of the Law: Volume II, eds. Sam Muller, et al. (The Hague: Torkel Opshal Academic EPublisher, 2012), pp. 27~38.
that is higher than any single member. This authority is indeed a conferred authority, as opposed to a sovereign authority, but it is nonetheless a higher authority when it executes the functions for which it was designed. Thus, these institutions are governing by function and globally authoritative by agreement, i.e., they are governing globally.
On the second, and perhaps more controversial point,10 these institutions and the interactions among them are ultimately mov- ing toward a single or unified system of governance.11 This is because they borrow from each other in terms of institutional framing, the logic of their relationship to their constituent mem- bers, and in substantive decision-making.12 Where one institution is faced with a dilemma that is impeding its ability to carry out its function, it naturally looks to another for possible solutions. The adoption of a borrowed solution raises the level of consistency between the relevant institutions going forward. This contributes to an emerging body of norms and practices that is nowhere codi-
10 For a starkly critical view of this development, see B.S. Chimni, “International Institutions Today: An Imperial Global State in the Making,” The European Jour- nal of International Law, vol. 15, no. 1 (2004), pp. 1~37.
11 It is important to note that the emergence of a “single system” does not imply, nor is it intended to imply, the emergence of a “world government.”
The distinction between a unified system of order and the construction of a formalized, elected, empowered and democratically accountable government at the global level is vast. For a discussion on the relationship between the term “global governance” and notions of “world government” popular circa 1930~1940, see Weiss, “What Happened to the Idea of World Government,”
pp. 253~271.
12 For illustration, see Abigail C. Deshman, “Horizontal Review between Inter- national Organizations: Why, How, and Who Cares about Corporate Regu- latory Capture,” European Journal of International Law, vol. 22 (2011), pp.
1089~1113.
fied yet everywhere followed.13 This, of course, is quite similar to the history of early legal development in both civil and common law systems.
It is important to note at this point that the term global gover- nance often refers to not only the sorts of formal and immediately recognizable institutions represented by those cited above. It is also about the less formal ways in which states attempt to manage their transnational and international relationships through both direct and cooperative influence.14 The “global” element in this informal context refers to the fact that states themselves, similar to the emerging practice of international institutions, are governing, in both their domestic and international reach, in a manner that is more and more globally consistent. Which is to say, the actions and expected actions of a larger and larger number of players is beginning to show greater consistency across different circumstan- tial contexts.
It should also be noted that the term “governance” in discussions of global governance often refers as well to the contributions of an expanding international civil society. That is, the term “global gov- ernance” is often used to capture the activities and contributions of
13 This, of course, can also lead to the problem of fragmentation. In the history of law and legal institutions, it is safe to argue that only the presence of a true governing authority leads to the correction of inefficient divergences. For a dis- cussion on overlapping legal regimes, fragmentation and “international govern- ment,” see Joel P. Trachtman, The Future of International Law: Global Government (Cambridge: Cambridge University Press, 2013).
14 Rosenau, Governance Without Government: Order and Change in World Politics. See also, Anne-Marie Slaughter, A New World Order (Princeton: Princeton University Press, 2004) (Identifying the international system as networks of both formal and informal actors).
non-state actors to governing outcomes at the international level.
However, in this author’s view, such an expansive view of “gover- nance” raises some very serious questions as to what we mean by
“governing,” and whether the term should be limited to the role and function of public entities who hold the proper public mandate for the responsibilities they carry out. While non-state actors, such as the many NGOs that do invaluable work on the international level, have great and consequential influence on governance outcomes, it is confusing the roles of the various actors in public life to say that these entities are “governing.” Obviously, this is a discussion that is beyond the scope of this chapter. For purposes of this chapter, the definition of governance is primarily limited to the activities of for- mal, publicly mandated institutions.
Thus, given the institutional emphasis in the context of a globalizing system of world governance, it is possible to view the phenomenon of “global governance” as essentially the emergence of a single sys- tem of governance through the growth of integrated international and domestic institutional interdependence. The term “global gov- ernance” is obviously a much more convenient shorthand for this understanding of the current state of world order.