Developing a Law and Global Governance Approach to Korean Unification and
II. Law and Global Governance” Defined
2. Law and Global Governance
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.
their own actions, while determining the meaning of the actions of others. In the loosest sense, this is what is meant by “order.” This I think is perhaps the greatest contribution the UN has made to inter- national society. While it has not necessarily formed a body of law in the same sense that a sovereign nation legislates, it has nonetheless created an emerging sense of continuity and consistency in expecta- tions across the many different venues, contexts and circumstances, both formal and informal, through and in which states now engage and interact with each other. This in itself is a form of “legalizing,”
though it is not “law” in the traditional sense.15
Hence, when we add law and legal theory to the global gover- nance concept, what we are getting at is the way in which global institutional interdependence both impacts, and is impacted by, developments in domestic, transnational, and international norms and practices. To illustrate: the development of treaties or agreements (law) and international bodies (institutions) in itself creates, strengthens and alters the way actors behave toward one another in their international relations (global politics). These alterations in turn lead to the establishment of norms (legaliza- tion), which in turn influence national politics and shape the development and implementation of domestic policy and norms (domestic law).16
15 For theories of legalization in international politics, see Kenneth W. Abbot and Duncan Snidal, “Law, Legalization and Politics: An Agenda for the Next Gener- ation of IL/IR Scholars,” in Interdisciplinary Perspectives on International Law and International Relations: The State of the Art, eds. Jeffrey L. Dunoff and Mark A.
Pollack (New York: Cambridge University Press, 2013), pp. 33~56.
16 For an insightful discussion of the relationship among these norms, see generally Eyal Benvenisti, The Law of Global Governance (The Hague: Hague Academy of International Law, 2014).
Thus, the pursuit of legal ordering is itself a form of political set- tlement. One of the most essential qualities about law is that it is addressed to the specific, while retaining generalized statements of agreed upon norms. As such, the creation of law requires the making of specific, identifiable decisions. This is because in its most devel- oped form it requires us to actually write something down (or to at least isolate specific principles in the case of unwritten law). In the writing down, we are forced to decide what the precise wording will be. When this is done among a group of negotiating parties, be they national legislators or international representatives, a dia- logue emerges that is focused on parsing out the difference in vari- ous positions until an agreed upon set of norms that is satisfactory to all, though satisfying to none, is reached. Thus, the process of lawmaking, or “agreement crafting” on the international plane for lack of a better term, is itself a problem solving process that is fully an expression of political stabilization.
From the foregoing, it should be plain that “law and global gover- nance” is essentially “law and politics” on a global scale. At the highest level of analysis, it becomes a debate about where these two fields of inquiry ultimately cross and overlap.17 Law and global governance as a discipline therefore provides a framework for bringing together both legal specialists and specialists in various non-legal fields such as political science, economics, history, etc. It provides an umbrella concept for the unification of international
17 For a thorough discussion of this question in the context of international relations and international law, see Abbot and Snidal, “Law, Legalization and Politics: An Agenda for the Next Generation of IL/IR Scholars.” See also, Kenneth W. Abbot et al., “The Concept of Legalization,” in Legalization and World Politics, eds. Judith L.
Goldstein, et al. (Cambridge: MIT Press, 2001).
relations and international law research, resulting in a unified field of analysis that is ultimately far more insightful than the sum of its parts.18