University of Helsinki

Whose game is it, anyway?

Who gained power when our planet shrank to a global village? Whose rules should we follow in resolving our disputes? This is what the experts in international relations and law study at the Centre of Excellence in Global Governance Research.

In the Middle East, Israel builds walls around Palestinian residential areas and the parties

disagree fiercely over the justification of the construction. Meanwhile, the EU and the USA are involved in a trade dispute over genetically modified foods: the Europeans do not want the New World’s GM vegetables on their markets, so the Americans complain to the World Trade Organization about free trade regulations being violated on this side of the Atlantic.

A lawyer specialising in international law sees much in common in these two disputes, and would like to add to the list of problematic instruments UN Security Council Resolutions that bypass human rights conventions. “Different fields of law have come to conflict with each other in these cases,” says Academy Professor Martti Koskenniemi, a scholar of international law.

Shopping for a friendly judge

The Israeli wall looks completely different depending on whether you look at it as a possible violation of human rights or in the light of the security norms applicable in a regional conflict. “It is not difficult to guess which the Supreme Court of Israel will prioritise, the Palestinian rights or the security of their own state,” says Koskeniemi.

It is almost as easy to predict whether or not his own research subject, the World Trade Organization, will prioritise free trade regulations supported by the US over the environmental norms upheld by the EU.

“Many conflicts have even more diverse points of view,” Koskenniemi adds. “When chemicals are transported on open seas, at the very least commercial law, environmental law, the law of transport and the law of the sea come into play. Which of them should be applied in the event of an accident? What if the solutions they offer are in conflict?

“The fragmented legal system offers actors and institutions operating in the international field the chance to opportunistically shop for the best forum. Each party to a dispute will try to bring its problems to the arbitrating body that takes the most positive view of its goals,” says Koskenniemi.

Disputes are political

How has the world ended up in this situation in which the solutions to disputes depend on judges? The main reason is that general rules – international conventions, customs – have become too difficult to apply in a globalised world. Situations vary and the needs and interests of those involved are too different. As a result, issues are left for judicial and other expert institutions to decide ad hoc on a case-by-case basis, by trying to find the most “efficient” or “fair” solution in single cases.

Koskenniemi says that although the new governance systems, or regimes, are linked with each other, they cannot be organised in a hierarchy. “Each legal scholar seeks to describe the disputes in a way that situate them in the regime that best serves his or her interests. And each branch of law seeks autonomy, operates independently of the other branches. As long as there is no international constitution – and none seems forthcoming – no one set of norms can have priority over any other.”

Koskenniemi does not believe in the idea that scholars from different fields could sit down and harmonise the whole. “It is not a question of technicalities. These are political conflicts, not legal-technical ones. Who gets to define the problem at a given time,” he says, “determines how the matter will be decided. When experts define crises as ‘security problems’ or ‘human rights problems’, they situate those crises in particular legal regimes, with particular biases, to be decided in particular ways. In this way, they use power away from political control. Everything becomes dependent on which experts will get to decide. ”

According to academia, the situation requires a heightened critical sensitivity on the part of scholars as well as politicians. “The power struggles between experts should be made subject to research and political criticism. This would require that legal scholars intensify their contacts with scholars of political philosophy.”

In fact, building closer contacts is one of the aims of the Centre of Excellence in Global Governance Research, where Koskenniemi works alongside other lawyers, political scientists and anthropologists. The Centre studies what entities rule the world, with what mandate and how they exercise this power.

Empty papers in pretty frames

Professor Jan Klabbers, who directs the Centre of Excellence, is also a specialist in international law.

He has studied what is known as soft law, which is a prime example of the fragmented culture of agreements. Klabbers defines soft law as everything that is left outside actual international conventions: anything from guidelines to memorandums.

In practice, soft law often refers to decisions, recommendations and statements by international organisations, which have in recent decades been churned out for the needs of environmental protection, for instance. Good intentions and beautiful goals do not make Klabbers sympathetic to the explosive increase in soft law. “Soft law is an endless flood of papers that no one dares to admit are worthless, rules that cannot be tried in courts like real norms. The situation undermines the foundation of norms, that is, the fact that things are either right or wrong, black or white.”

Our global village needs global agreements and global maintenance of order, but the problem is to find a new guarantor for the rules now that democratic nation states have been sidelined.

Heikki Patomäki, Deputy Director of the Centre of Excellence in Global Governance Research, studies international relations and has toyed with the idea of a global parliament, which could become one such guarantor. “We need an institution that can reconcile conflicting rules. If we want legitimate laws, we have to address conflicting interpretations from an overtly political stance.”

Patomäki feels that a representative body with a democratic mandate could solve the problem of indeterminacy in international law. “If democracy cannot become global, the democracy of individual states will also gradually become meaningless.”

A parliament for the whole world

In Professor Patomäki’s sketches, the global parliament does not mean global federalism, but something that still must have power. “If an institution does not have practical power, no one will be interested in it and it cannot be built in a democratic way.”

Instead of a federal system, Patomäki is interested in the idea of global parties. “We are quite stuck on the idea that the representatives of the people must be local representatives. However, a collection of local representatives is not necessarily the best form of democracy.”

Nor is a global parliament the only way to strengthen the rule of law in global governance, as Patomäki points out. A well-implemented currency transaction tax, for instance, could be a step in the right direction. “The currency transaction tax would introduce new principles into international law and could play an important role in breaking the ice.”

Patomäki is also not proposing the global parliament as the final answer to problems. Instead of governance models and organisations, he wants to emphasise a continuous process of democratisation. Here he dissociates himself from the visions of Immanuel Kant, in which the world develops into a state of peaceful status quo. “If the development of the international community and globalisation takes a Kantian path in this sense, no laws that would offer anything significantly new will be written. The world would probably be increasingly dominated by one model or state, the West or the United States.”

Several research projects at the Centre of Excellence in Global Governance Research share a desire to see beyond the processes and models of ‘today’s West’. Historically speaking, one of the issues is how neoclassical economics have become dominant in economic debate all over the world. How has one theory gained such a foothold that a certain type of economic behaviour can be claimed to be natural and inevitable?

Virve Pohjanpalo

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