Chapter 11 – International Organisations and the Technologies of Governance

Coordinating Lead Authors:[1] Hilary Charlesworth, Sally Engle Merry

Lead Authors:[2] B.S. Chimni, Javier Couso, Terry Halliday, Outi Korhonen, Vivian Lin, Eden Medina, Leslye Obiora, César Rodríguez-Garavito, Gregory Shaffer, Rene Urueña

Contributing Author:[3] Ruth Okediji

Word count:  30,092

Abstract: As social issues increasingly are conceived as transnational in scope, international organizations have proliferated to address many areas of social life that inhibit social progress. These international organizations have invented and multiplied ways to govern across state frontiers on topics ranging from security, economics, health and the environment to human rights, labor, trade, investment, and consumer safety. International and global governance deploys varieties of social technologies. For social progress, a critical difference among the technologies turns on the respect for sovereignty and local discretion given to states and non-state actors within a state. The present chapter explores the scope and definition of these organizations and technologies, and then examines these organizations within the context of specific issues: Human rights; intellectual property; women’s rights; climate change; conflict, security, and terrorism; health; and refugees and migration.  

Summary:

The term “international organizations”, as used in this chapter, are organizations beyond a single state that engage in transnational or global governance. The chapter focuses on five types of international organizations: intergovernmental organizations whose members are states; non-state international organizations that directly address transnational or global policy; international civil society organizations; international commercial organizations; and hybrid public-private international organizations. This chapter focuses on inter-governmental organizations as they address issues of human rights, intellectual property, climate change, public health, conflict and security and migration. In exploring international organizations, this chapter begins by examining the relationship of these organizations to global order and disorder. While robust empirical research is limited on norm-making and monitoring, it is clear that a handful of countries in the Global North dominate intergovernmental organizations.

This chapter finds that international and global governance proliferates through varieties of social technologies. For social progress, a critical difference among the technologies turns on the respect for sovereignty and local discretion given to states and non-state actors within a state. Technologies of governance have been criticized because they have few mechanisms for tapping into creativity and tacit knowledge at local levels and they implicitly vest expertise and normative authority in the Global North and centers of geopolitics or finance. In so doing, they also deny dignity to many domestic actors.

Our case studies explore these issues through a variety of transnational issues important in today’s world. While the issues are selective, they offer insights into relationships between the Global North and South and local and global processes. The concluding section identifies issues of funding and financial issues, accountability, and methods of improvement.

1. Introduction: International Organizations and Technologies of Governance

Social problems increasingly are conceived as transnational in scope (Halliday and Shaffer 2015). In response, varieties of international organizations have proliferated to address many areas of social life that inhibit social progress.[4] These international organizations have invented and multiplied ways to govern across state frontiers on almost every imaginable topic, ranging from security, economics, health and the environment to human rights, labor, trade, investment, and consumer safety (Alvarez 2005).

1.1 Scope of International Organizations

            The term “international organizations”, as used in this chapter, means organizations beyond a single state that engage in transnational or global governance. The chapter focuses on five types of international organizations: intergovernmental organizations whose members are states; non-state international organizations that directly address transnational or global policy; international civil society organizations; international commercial organizations; and hybrid public-private international organizations. This chapter focuses on inter-governmental organizations as they address issues of human rights, intellectual property, climate change, public health, conflict and security and migration. 

(1) State-created inter-governmental organizations confront social issues through several generic forms, including regional, transnational and global legislatures (such as the European Parliament, UN General Assembly, and World Health Assembly), international courts (such as the International Criminal Court, European Court of Justice, Andean Courts, and WTO Appellate Body), and international regulatory bodies (such as the International Monetary Fund in its role in financial monitoring and surveillance, the International Civil Aviation Organization, and international development banks). State-based organizations can also be largely virtual through networks of state regulatory officials organized and hosted by states (such as the International Competition Network).

In principle, therefore, intergovernmental organizations offer a site for deliberative equality as national delegations engage in lawmaking with equal formal power. In practice, that equality in deliberation is not achieved, which creates challenges for invention of innovative practices to ensure the participation, influence and pragmatic local knowledge from states in the Global South. Global regulation of the financial sector, for example through the Financial Stability Board or G-20, similarly suffers from asymmetries of input and power in both global rule-making and international surveillance of national economies and transnational flows of capital.

While robust empirical research is limited on norm-making and monitoring, research indicates that a handful of countries in the Global North dominate intergovernmental organizations.

(2) A second class consists of international organizations that are not state-based but operate as international organizations: Two examples are the Internet Corporation for Assigned Names and Numbers (ICANN), which governs the internet, and the International Committee of the Red Cross (ICRC), which develops and monitors compliance with the laws of war.

(3) A third class of international organizations is homologous with civil society organizations within states: international non-governmental organizations, including interest groups, religious bodies, political party alliances; international informal but stable networks of organizations or individuals; universities and educational institutions.

International civil society organizations map onto every cluster or type of human right promulgated under UN auspices. Amnesty International (AI) and Human Rights Watch (HRW), for instance, articulate global norms, usually based on UN declarations, conventions and findings in UN watchdog bodies, such as the Human Rights Council. AI and HRW hold countries accountable to those standards and rely heavily on public shaming as a sanction.

World religions, too, can exert great influence on vulnerable populations in poor countries and shape public policy in rich and powerful countries. These influences can both promote social progress and constrain it. The Roman Catholic Church and many Protestant denominations have worldwide infrastructures for medical services, education and literacy. Islamic associations deliver essential welfare services to vulnerable populations across the Islamic world. Notable leaders of religious international organizations, such as the Dalai Lama and Pope Francis, exert powerful moral influence on the shaping of international public discourse through extensive media coverage of the poor, refugees, and victims of government repression or natural disasters. At the same time, coalitions of religious organizations can limit the reach of human rights, for example by resisting recognition of the rights of sexual minorities.

Insofar as they are organized to bring about the realization of rights in practice, international non-governmental organizations can be considered emancipatory. Yet they often escape criticism and scrutiny because their ideals appear noble, or they privilege rights more salient to certain parts of the world than others. They are usually financed and led by actors in the Global North. For social progress, it is therefore appropriate to ask how well their goals, leadership, practices and impacts reflect views of the champions of social progress in the Global South or, indeed, whether in fact they suppress local social organization. 

(4) Market international organizations include industry and professional associations; multi-national business firms; informal and formal financial and investment institutions; labor organizations; and management and investor networks.

            The globalization of professional services projects can be observed in giant law, accounting, engineering, and similar professional firms which project a global footprint with the intent of serving any client anywhere in the world. It is an open question whether these firms project or indirectly underwrite progressive values or whether they subvert such values in search of profits. Professional and industry associations combine and recombine professionals and technical experts both in the creation of transnational norms and in their local application. Such professional and industry associations, which are often involved in global law or rulemaking, require close scrutiny on a case by case basis to judge whether their actions have intended or unintended consequences adverse to social progress, most especially in weak states and vulnerable actors in markets and civil society.

(5) In practice, these classes of international organizations interpenetrate and overlap in public-private partnerships, in international organizations that incorporate both state and non-state actors in their decision-making and implementation, in networks that integrate state and non-state actors in common causes, in international epistemic communities of service professionals, scientists and academics, among others.

            For instance, in health, the World Health Organization has been struggling to develop partnerships with massively endowed private organizations, such as the Gates Foundation, in order to improve health outcomes, but in ways that reconcile potential differences in goals, priorities and accountability. These efforts can introduce contradictions and shift priorities in ways that may be harmful to domestic social progress (Chorev 2012).

1.2 Technologies of Governance

            International and global governance proliferates through varieties of social technologies.

            (1) Global governance of markets through law occurs through the production in international organizations of legal “technologies” such as multilateral conventions, model laws, legislative guides, guides to practice, model contracts, standards and codes, and best practices (Block-Lieb and Halliday 2017). Research indicates that formal representation and procedural fairness commonly does not translate into actual and tangible participation. Voices and views, alternatives and perspectives from outside the global center do not get articulated, and, if expressed, have little efficacy on outcomes in global governance. These technologies for the most part rely on persuasion and moral pressure for adoption, but may also be conveyed through military coercion, economic coercion, systems of reward, modeling, and capacity-building (Braithwaite and Drahos 2000).

For social progress, a critical difference among the technologies turns on the respect for sovereignty and local discretion given to states and non-state actors within a state. Technologies of governance have been criticized because they have few mechanisms for tapping into creativity and tacit knowledge at local levels and they implicitly vest expertise and normative authority in the Global North and centers of geopolitics or finance. In so doing, they also deny dignity to domestic actors.

(2) Governance technologies also include various accountability processes. These include: (a) various formal accountability processes, involving courts and administrative-like bodies (including networks of national officials and private associations), and (b) decentralized certification processes, including informal reporting and peer review assessment in light of hard and soft law norms.

Transnational governance increasingly involves authoritative rulings by international courts. More than two dozen international courts have issued over 37,000 binding rulings (Alter 2014: 4) on trade, human rights, intellectual property rights and international criminal law prosecutions.

Decisions can be strongly conducive to social progress, not only through direct effects, but the shadow of a potential judicial proceeding can have effects without any formal claim being filed. For example, research shows that although the ICC has had few actual prosecutions, the ICC prosecutor’s office can place pressure on domestic proceedings, as evidenced in the Colombia peace dialogues (Huneeus n.d.). 

            The threat of investment arbitration can also exercise a chilling effect that has raised concerns among scholars interested in social progress. For example, big tobacco companies claim countries would interfere with their brand names and violate intellectual property rights were they to introduce plain packaging regulations, even if done in line with the WHO Framework Convention on Tobacco Control 2003.

            Transnational networks of administrative officials meet regularly in multilateral and bilateral forums, including over the Internet, to address common regulatory challenges. For example, the 2015 Paris Agreement under the UN Framework Convention on Climate Change of 1992 provides for voluntary “soft law” targets to which countries commit. Competition officials regularly meet and share information to crack down on cartels that operate and have effects in multiple countries (Shaffer et al. 2016).

            An underappreciated technology in regulatory governance is peer review reporting mechanisms. The WTO, for example, has over a dozen committees that meet, in total, thousands of times per year. The OECD is particularly known for diffusing norms through regular interaction of policy-makers and government officials through peer review assessments. The OECD has no formal dispute settlement system, yet signatories act ‘as if’ certain obligations are binding. Peer pressure is more readily applied in organizations with a strong institutional structure that provides for sustained interaction to clarify definitions and obligations, and to ensure monitoring, facilitate learning, and determine remedies (Shaffer et al. 2016).

            The human rights regime relies significantly on pressure through oversight committees, particularly at the multilateral level (Charlesworth and Larking 2014). For example, Japan changed its policies regarding the Ainu indigenous community after it was challenged before the international human rights monitoring system (Tsutsui n.d.).

(3) A rapidly developing technology of governance relies on indicators (Merry et al. 2015; Merry 2016). These vary from rigorous criteria deployed by international financial institutions to indicators developed by non-profit organizations to rate countries and corporations on human rights, rule of law, freedom, and justice, among others.

            Indicators purport to capture the presence or absence of an underlying phenomenon by the uniform application of a set of measures to all countries in the world. Countries are then rated and those ratings are published as scales of conformity with the supposed norm. For example, both the World Bank and the private World Justice Project have developed rule of law indicators, each seeking to capture variation on differing conceptualizations of the rule of law. Freedom House rates countries on freedom of the press. International development banks rate countries on everything from poverty to education to welfare services to governance.

            Indicators can be valuable as a stimulus to change. They can add measurement to show the frequency and distribution of social problems highlighted by stories. When valid and reliable they can serve as pressure points to stem decline from adherence to progressive values. But indicators can also pose significant dangers to social progress. If their underlying conceptualization of a social problem is trivial or fails to reflect framings salient to those being rated or reflects an ideology inimical to the priority of social progress, scores can be misleading and even counter-productive.

            For indicators to be used constructively for social progress they will always require  (1) identifying who creates the indicators, (2) ensuring that participation in indicator development includes those frequently marginalized from standard-setting, (3) agreeing on underlying dimensions that properly capture the social phenomenon in question, (4) scrutinizing methodologies of operationalization to ensure they validly reflect the views and practices of those measured, and (5) interpreting findings with skepticism about the scope and limits of inferences that can be drawn from them.

            We now examine specific types of international organizations and governance technologies in a series of case studies, paying attention to their ecosystems, in the sense of their contexts, connections, complexities and contradictions.

2. Case Studies

2.1 Human Rights

Human rights are central to the way international governance can promote social progress. They have become one of the main frames for articulating social progress and they are one of the most developed institutional technologies of global governance. Myriad hard-law and soft-law human rights standards interact at global, regional, and national scales, forming a plural governance field that creates both opportunities and challenges for social justice.

2.1.1 The challenge for social progress

These are paradoxical times for human rights in general, and for human rights international national organizations in particular. On the one hand, human rights have achieved an unparalleled status as a global discourse on social progress and have been institutionalized through a wide range of organizations at the global, regional and domestic levels. On the other hand, they are the focus of growing criticism regarding their limited effectiveness, Northern-centrism, and outdated institutional architecture and strategies at a time of increasing geopolitical multi-polarity, regulatory fragmentation, and technological change. This section discusses the key principles and practices shaping and transforming the structures, cultures and processes of human rights. We highlight the current challenges of the field and courses of action aimed at reinvigorating the contribution of human rights to social progress.

2.1.2 The human rights field: context

In keeping with the United Nations Charter, signed in 1945, the UN General Assembly adopted the Universal Declaration on Human Rights (UDHR) in 1948, creating the intellectual foundation of the contemporary human rights system. Two treaties which articulated the basic principles of the UDHR into legally binding obligations entered into force in 1976. These treaties are the International Covenant for Civil and Political Rights (ICCPR) and the International Covenant for Economic, Social and Cultural Rights (ICESCR). Other human rights treaties cover an array of issues, including racial and gender discrimination, torture and enforced disappearances, the rights of children, migrant workers, and people with disabilities.  Most of the treaties are monitored by a committee, such as the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of People with Disabilities. The treaties form the core of the human rights system of law. The human rights field also includes a wide range of international, regional, national and civil society organizations that create, support, and monitor compliance with human rights. Many of these entities serve the critically important role of making violations known and bringing them to global attention. In addition, they develop new issues, share information among each other, and serve as watchdogs for compliance with the terms of human rights treaties.

International organizations are fundamental actors in this field. They include the core agencies of the United Nations universal system, such as the UN Human Rights Council, and numerous specialized UN agencies. There are also regional judicial and quasi-judicial bodies, such as the Inter-American Commission on Human Rights and the African, European and the Inter-American courts of human rights. In addition to policy-making and enforcement-oversight bodies, there are information-gathering and monitoring organizations such as global and regional rapporteurs and working groups on specific rights; for example the UN Special Rapporteur on the Right to Food and the UN Working Group on the Issue of Human Rights and Transnational Corporations and Other Business Enterprises. These entities provide expertise to the system and have, along with transnational NGOs and networks, been decisive in setting and implementing human rights standards. International organizations also include numerous public, private and public-private entities, such as the World Bank, the WTO, the European Central Bank, and transnational corporations which, while not explicitly concerned with human rights, have profound impacts on the realization or frustration of human rights on the ground.

2.1.3 Human rights in transition: drivers of change

  Four transformations are pulling the human rights field in different directions (Rodríguez-Garavito 2015a). First, the rise of emerging powers to counter the dominance of Europe and the United States point to a broader and more fragmented multi-polar world order (de Búrca et al. 2013). In this context, states and NGOs in the Global North have less control over the creation and implementation of human rights standards, as new actors from transnational social movements to Global South states and NGOs are apparently becoming influential voices. 

Second, the range of actors and strategies is changing. Time-honored strategies such as naming and shaming recalcitrant states into compliance with human rights are being complemented by new strategies that involve different actors, targets of activism and mechanism, including social media and virtual networks. At the same time, both autocratic and elected governments are pushing back against transnational advocacy by promoting restrictive laws and policies that constitute what has been called a “global war against NGOs” (Bechenmacher and Carothers 2014; The Washington Post 2015).

Third, the growth of the knowledge economy fostered by advancements in information and communication technologies (ICTs) present new challenges and opportunities for human rights. As shown by mobilizations exemplified by the Occupy Movement around the world, resources such as social networks, video documentaries, digital reporting, online learning, and long-distance education have considerable potential to accelerate socio-political change, reduce the informational disadvantages that buttress the marginalization of disenfranchised communities, and bring together national, regional and global groups capable of having a direct impact on the protection of rights (Zuckerman 2013).

Fourth, extreme environmental degradation – climate change, water scarcity, rapid extinction of species and forests, uncontrolled pollution, etc. – has become one of the most serious threats to human rights. Insofar as human rights mean very little if what is at risk is life on earth itself ecological questions are central to constructive dialogues about human rights (Santos 2014). 

The combination of these four conditions has compounded intense debates in the field. Left with more questions than answers, human rights activists face a complicated situation in a field that tries to provide clear-cut legal solutions to complex moral and political dilemmas. Nonetheless, the seeming turbulence also presents opportunities. Transitions between strategic models, intellectual paradigms, governance structures, technologies and the likes represent openings for creativity and innovation in social fields.

2.1.4 Problems and prospects

  A confluence of factors exacerbated by the cold war tensions protracted the promulgation of the ethical standards and political commitments enshrined in the 1948 UDHR into legally-binding obligations. Geopolitical interests fostered the separation of the interdependent and indivisible rights espoused by the UDHR into two separate treaties, namely the ICCPR and the ICESCR. It was not until 1966 that these instruments opened up for signature and it took another decade to secure enough support for the covenants to enter into force in 1976. Countries that adopted the agreements typically ratified them with reservations, understandings and declarations that watered down their potential effect. The implementation of socio-economic and cultural rights was further curtailed by a provision in the ICESCR that qualified a state’s commitment to uphold them “to the maximum of [a state’s] available resources, with a view to achieving progressively the full realization [of these rights]” (article 2).

Since the human rights system was formed during the colonial era, many nations were not able to contribute to the foundations for its formation. As these nations gained independence from colonial subjugation, some contested both the universalization of human rights that bore the imprint of the West and the primacy of civil and political rights in the system.  Building on the centrality of the right of self-determination in the two core conventions, the ICCPR and the ICESCR, many Third World countries sponsored the Declaration on the Right to Development in 1986. Although its champions failed to galvanize adequate support to translate the Declaration into a legally enforceable treaty, the concept of a right to development influenced subsequent agreements, including the Millennium Development Goals (2000), the agenda for the Sustainable Development Goals (2015), and the Global Climate Agreement (2012). 

Human rights are frequently embodied in legal rules. However, their social impact does not depend only on their formal legal incorporation, but also on their moral status which is based upon a vision of what is good and just in the world. In fact, the core claim of human rights that all persons have an intrinsic value that entitles them to certain freedoms does not depend on express legal recognition nor can it be eliminated by positive legal norms. In spite of the enduring overlap between legal entitlements and moral claims, human rights remain subject to interpretations that question perceived legitimacy, coherence, and cultural deficits (Sen 1999).

The cultural critique of human rights reflects the need for sensitivity to difference and mirrors debates between relativism and universalism. While relativists protest the globalization of human rights norms on the basis of their origin in the Global North, universalists denounce deference to cultural specificity, particularly in the domain of religion and the family. The legitimacy challenge derives from positivistic arguments akin to Jeremy Bentham’s unequivocal dismissal of natural or moral rights devoid of legal recognition as anarchical fallacies or “nonsense upon stilts”. The coherence debate implicates disagreements between proponents of positive rights who prioritize distributive justice and opponents who favor so-called negative rights which limit states obligation to non-interference with individual liberties and laissez-faire institutional possibilities.

Those who question the coherence of human rights claims echo Wesley Hohfeld’s classification of legal concepts which correlates rights with duties; these critics refute the validity of fundamental normative rights which purport to exist in the absence of corresponding duties. The African Charter on Human and Peoples’ Rights (1992), which imposes both rights and duties on the individual, has not entirely resolved coherence concerns. Critics caution against the tendency of political elites to manipulate articulations of reciprocal benefits and burdens, to abdicate cardinal social obligations, diminish individual entitlements, shunt responsibility to individuals, and shirk legal claim rights to life, liberty and property.

Attempts to bolster the legitimacy, coherence and cross-cultural purchase of human rights have engendered spirited discourses about the fundamentals for unforced consensus. Dignity, which defines a basic value across societies, has enjoyed ample affirmation in these discourses. However, historical appeal and cross-cultural ubiquity has not freed the notion of dignity from ambiguity. The constraints on enforcing fundamental liberties and immunities to protect human dignity speaks volumes for the challenges of human rights guarantees, even when they are embedded in a constitution. Despite this, the cross-cultural resonance of the human rights regime as a bellwether for social progress continues to intensify.

Human rights accountability requires both adequate resources and support for financial stewardship practices. For example, development partners traditionally invoke governance deficits caused by corruption to criticize host governments for shortfalls in aid performance. However development agencies often do little better in managing effective aid delivery.

In some places, weak state institutions co-exist with resilient societies in which local organizations align indigenous struggles with universal norms and actively translate international human rights norms into local cultural terms, a process of vernacularizing human rights (Merry 2006). Promoting grassroots agency in communities caught in the tedious vacillations of dysfunctional state sovereigns allows us to reimagine state-society relations. It reinforces Eleanor Roosevelt’s observation that, without concerted citizen action to uphold human rights close to home, “we shall look in vain for progress in the larger world.”

2.1.5 Towards a human rights ecosystem

  A key trait of the contemporary human rights movement is its diversity. The twenty-first century has witnessed a proliferation of actors who use the language and values of human rights in social movements and local activism.  This diversity far surpasses the traditional boundaries of human rights.  Although this expansion has met with some resistance, we argue that human rights theory and practice must open spaces for new actors, themes, and strategies that have emerged in the last decades instead of guarding its traditional boundaries. 

To capture and maximize this diversity, some have suggested that the field should be understood as an ecosystem, rather than as a unified movement or institutional architecture (Rodríguez-Garavito 2015a). In this vein, the emphasis should be on symbiotic relationships and connections between discrete contributions of members of the ecosystem. The nature of the transnational human rights ecosystem is informed by a diversity of actors.  A body of scholarly work on human rights examines its forms of social organization, its effects, and its success, revealing this multiplicity of actors. Current campaigns involve not only professional NGOs and specialized international agencies, but also many others.  While lawyers play an important role, many actors are grassroots leaders, social movement activists, or local participants in NGOs.   

There is also an expanding range of topics taken up by the human rights movement. This is clear, for instance, in the realm of socio-economic rights. Although initially raising doubts among scholars (Sunstein 1996) and advocates (Roth 2004) in the North, efforts by NGOs, social movements and scholars in the South have successfully incorporated these rights into the legal and political repertoire of the field. As a result, socio-economic rights are recognized in international law and constitutions throughout the world, and have become the focal point of large sectors of the human rights field, giving rise to new theories of justice and human rights (Sen 2011).   Activists, academics, and courts in countries like India and South Africa have been in the frontline of developing sophisticated legal doctrines and theories that have improved compliance with socio-economic rights. International human rights actors such as the UN Special Rapporteurs, the African Commission, and the Inter-American Court are busy creating content and improving effectiveness for these rights (Rodríguez-Garavito and Rodríguez-Franco 2015).  These outcomes buttress the idea of human rights as a vehicle for social justice without weakening civil and political rights. Indeed, effective judicial interventions demonstrate the interdependence of civil-political and socio-economic human rights.

An equally pluralistic approach is required to the strategies in the field. Classical, “boomerang effect” strategies (Keck and Sikkink 1998) whereby organizations like Amnesty and Human Rights Watch have successfully pressured Northern states to use their influence on Southern states to get the latter to comply with human rights continue to be important. But multi-polarity makes it difficult for strategies centered on Europe and the United States to be effective, as the current crises in Syria and Ukraine bear witness. Thus, human rights organizations are trying new approaches. Through a “multiple boomerang” strategy, global South NGOs are forming coalitions of national organizations, simultaneously lobbying their national governments and the emerging powers of the region to add their quote to make the difference (Rodríguez-Garavito 2015b).

As in any ecosystem, the strength of the human rights field will depend on symbiosis, that is, the interaction among its different actors, to the advantage of the latter and the broader cause they share. Collaboration and complementarity will thus become even more important to the survival and thriving of the field as a whole. Nurturing collaborations is easier said than done. For dominant global human rights NGOs, this implies a difficult challenge: transitioning from the vertical and highly autonomous modus operandi that has allowed them to make key contributions, to a more horizontal model that would allow them to work with networks of diverse actors. For the time being, NGOs’ efforts to globalize their operations by opening offices in new centers of power in the global South have failed to translate into new forms of engagement.  They have not succeeded in the effort to interact with local, national and regional organizations on an equal footing in terms of initiative, decision-making and authorship. For domestic organizations, adjusting to the new ecosystem entails pursuing strategies that allow them to link up with each other.  It requires using new leverage points created by increased multi-polarity and opening themselves up to non-legal professionals, social movements, and online activists.

In sum, in order for the human rights field to continue to make a decisive contribution to social progress and to address the challenges it faces in the twenty-first century, it should operate as an ecosystem, rather than as a hierarchy. In a more complex and interdependent world, human rights actors should spend less time on gatekeeping and more time on symbiosis.

2.1.6 Conclusions

  This overview of human rights as a technology of governance for achieving social progress emphasizes that the human rights field is a changing and developing complex of norms, structures, organizations, people, and processes. The field is going through a paradigm shift, with basic questions about its actors, strategies, and organizational architecture open to novel solutions and approaches. The language and the values of human rights have become omnipresent, not just through traditional advocacy campaigns to pressure states and private actors to comply, but also to address a range of issues, many of them newly developed by innovative civil society organizations. These efforts have broken down the boundaries of the human rights field to foster novel strategies and accommodate creative solutions.   The increased multi-polarity will allow the system to embrace diverse professionals, social movements, and activists. As the human rights regime becomes a multi-faceted ecosystem, it can accommodate more marginal organizations that link up with each other. Such an interactive, collaborative system could temper the stringent authoritative forces within states. This form of organization prioritizes learning, self-reporting and peer-review to advance the production and use of knowledge about the capacity of human rights to promote social progress.

In order for this collaborative approach to flourish, asymmetries between the Global North and South in the human rights field need to be taken seriously. Northern states continue to have a disproportionate voice and decision-making power in intergovernmental TOs that determine the fate of human rights, from the UN Security Council to the World Bank. NGOs in the North receive over 70 per cent of the funds from philanthropic human rights foundations (Foundation Center 2013) and continue to have disproportionate power when it comes to setting the international agenda (Carpenter 2014). And too often they define this agenda based on internal deliberations, rather than through collaborative processes with NGOs of the Global South, social movements, activist networks, and other relevant actors.

Nurturing collaborations is easier said than done. For dominant human rights organizations, this implies a difficult challenge: transitioning from the vertical and highly autonomous modus operandi that has allowed them to make key contributions, to a more horizontal model that would allow them to work with networks of diverse actors. For domestic organizations, adjusting to the new ecosystem entails pursuing strategies to link up with each other, and use the new leverage points created by increased multi-polarity, as well as creating links with non-legal professionals, social movements, and online activists.

2.2 Intellectual Property

2.2.1 The challenge for social progress

Intellectual property rights are a bundle of time-limited exclusive rights granted to authors and creators in the intangible products of their creative labor. From a utilitarian perspective, incentives to encourage private investment in creative endeavor can enhance social welfare by increasing the production of cultural goods such as useful inventions (protected by patents) and expressions of ideas (protected by copyright). The grant of such monopoly rights, however, also creates social costs in the form of greater barriers to entry for competitors, higher prices for consumers and may impede down-stream innovation.  This requires a coordinated approach to intellectual property regulation in light of other legal frameworks such as human rights, public health, competition and innovation.

With economic globalization, international protection of intellectual property rights became an important issue to rights holders in Europe and in the United States who persuaded their governments to pursue harmonization of intellectual property rules through international organizations and technologies of governance under them, in particular through the international trade system. Substantive harmonization of intellectual property norms as a matter of trade policy through an international organization, however, raises a challenge of normative balance in light of the diverse situations of countries and peoples around the world.  Moreover, tradeoffs involved at the multilateral bargaining table require knowledge of the technical subjects being negotiated and strong national interests that cannot easily be forfeited without serious political or constitutional challenge domestically. In the context of the Uruguay Round negotiations that led to the creation of the World Trade Organization (WTO) in 1995, neither technical expertise nor domestic constituencies existed in developing and least-developed countries to counteract the powerful interest groups demanding stronger intellectual property rules through the WTO. Such strong intellectual property rules, without corresponding limits, constrain national policy space critical for countries to create conditions consistent with the cultural and economic contexts in which innovation and cultural development can best flourish. In this way, international organizations and their technologies of governance may impede social progress.

            The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) is one of the WTO agreements that came into effect in 1995. It required new minimum substantive commitments to intellectual property rules backed by dispute settlement with the threat of trade sanctions to secure enforcement. These requirements since have been made more stringent through a web of bilateral, regional and plurilateral trade agreements negotiated by the U.S. and European Union (E.U.) with developed and developing countries. Importantly, while only governments may bring disputes under the WTO dispute settlement process, many of these bilateral and plurilateral agreements provide rights to private parties to bring claims under investor-state dispute settlement provisions, often overseen by the International Centre on the Settlement of Investment Disputes (ICSID) operating within the World Bank.

As countries sought to implement TRIPS standards in national law, new national institutions were created or powers of existing institutions enhanced, leading to the spread and development of professionals specialized in intellectual property law, affecting local legal practice. Because TRIPS requirements have penetrated state institutions and local legal practice, the result can be viewed as an example of a transnational legal order that has transformed law and practice within countries (Halliday and Shaffer 2015). However, in analyzing and implementing TRIPS obligations, some developing countries have successfully asserted local values or defended national interests by engaging other legal frameworks involving other international organizations, or appealing to constitutional principles that reflect values in the international human rights regimes and limit the domestic reach or effect of TRIPS rules (Okediji 2007; Okediji 2015a).  

This case study is in three parts, respectively assessing developments regarding pharmaceutical patent protection, copyright, and protection of traditional knowledge in relation to international organizations and technologies of governance. Overall, the case studies exhibit the potential pathologies of international organizations when they reflect the interests of powerful states and interest groups within them, whether from the perspective of developing countries or more broadly. Yet international law and international organizations also have been used to check some U.S. and European initiatives through the discourses of development, human rights, health, and indigenous rights law, including as advanced through treaties and soft law.

2.2.2 Pharmaceutical patents and access to medicines

            The issue of access to medicines involved a high degree of contestation. Until the creation of the TRIPS Agreement, no international treaty or international organization required national protection of pharmaceutical patent rights. However, from the mid-1990s until around 2000, in light of the incorporation of mandatory patent protection in the TRIPs Agreement and the negotiation of new bilateral and plurilateral agreements containing TRIPS-plus provisions, countries around the world were required to adopt new patent laws providing for the patenting of pharmaceutical products. As a result, countries were considerably more constrained in exercising policy space to ensure optimal production and distribution of drugs at affordable prices (Shaffer and Sell 2014). 

Although the TRIPS Agreement imposes significant obligations on states to protect the holders of patent rights, commentators now commonly refer to the flexibilities in its provisions to counter U.S. and European demands for ever-greater protection. The TRIPS Agreement provides for some interpretive options, such as what constitutes novelty and inventive step for purposes of granting a patent that many developing countries have explored (Kapczynski 2008; Dreyfuss and Rodríguez-Garavito 2014). Among the most important of the limitations and exceptions for patents for developing countries are the rights of parallel importation, of granting compulsory licenses, and of ‘Bolar’ exceptions for generic drug companies to prepare a drug under patent for marketing authorization once the patent expires (Correa 2000; Dreyfuss and Rodríguez-Garavito 2014). International non-governmental organizations, such as Médécins sans Frontières and Knowledge Ecology International, have actively promoted the use of such flexibilities.  In response to these pressures, in 2001, WTO members negotiated the Doha Declaration on Public Health and they adopted a waiver in August 2003 that enables any member country to import pharmaceuticals made under a compulsory license (although the conditions of the waiver are still contested for being too stringent).

In subsequent developments, the flexibilities incorporated in the TRIPS Agreement have prominently featured in US and EU bilateral and plurilateral agreements. These agreements have eliminated or curtailed significantly many of the policy options provided in the TRIPS Agreement. For example, many of them prohibit parallel importation, and restrict the use of compulsory licenses. As a result, these bilateral, regional, and plurilateral agreements may reduce policy levers available to governments to provide access to lower cost health technologies.

Implementing the relatively high standards of the TRIPS Agreement nonetheless has been more of a challenge than the US and Europe initially contemplated. It has been so, in large part, because a countervailing process of transnational legal ordering has emerged with a different normative frame, one with a human rights focus. Developing countries, civil society actors, and UN-based organizations have advanced this frame at the international and national levels both to counter the push for ever stronger pharmaceutical patent protection, and to spur recognition and application of a right to health in public policy more generally.

At the international level, developing countries have found support from the World Health Organization (WHO) Assembly, the UN Committee on Economic, Social and Cultural Rights, the UN High Commissioner on Human Rights (UNHCHR), the UN Special Rapporteur on the Right to Health, and the Joint UN Programme on HIV/AIDS. The WHO Constitution establishes that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being.” The right to health also is incorporated in multiple human rights instruments, including the 1948 Universal Declaration on Human Rights, the International Covenant on Economic Social and Cultural Rights, and the UN Human Rights Council. The UNHCHR identified access to essential medicines as “a vital component of fulfilling the right to health.” The UN Millennium Development Goals (MDGs) include access to essential medicines; the MDG Gap Task Force Report 2012 advised that “developing countries should carefully assess possible adverse impacts on access to medicines when adopting Trips-Plus provisions.” Such rights advocacy helped to build an alternative normative framing, to establish new offices and initiatives in international organizations (such as in the World Health Organization), as well as entirely new international institutions (such as UNAIDS), and generated pressure for the amendment and interpretation of the TRIPS Agreement in light of social welfare concerns.

2.2.3 Copyright

            The international copyright system emerged from a dense network of bilateral agreements between European countries that shared similar social, cultural and economic conditions. These countries eventually negotiated and agreed to the 1886 Berne Convention for the Protection of Literary and Artistic Works, which established minimum standards for cross-border protection of literary and artistic works. Those standards were extended to many colonial territories, many of which continued to govern and regulate cultural goods under Berne rules even after independence.

In the post-colonial era of the late 1960s and 1970s, the Berne standards were viewed as incompatible with the level of economic development in most former colonies. Yet, international organizations regarded copyright protection as an important element of social and cultural advancement. As a result, these organizations promoted the protection of copyright as an important legal regime for economic growth and development but favored less stringent copyright standards such as those promulgated under the Universal Copyright Convention.  Once the U.S. ratified the Berne Convention in 1989, however, it set the stage for strengthened international copyright norms eventually codified in the TRIPS Agreement.  The incorporation of Berne minimum standards into the TRIPS Agreement augmented the monopoly power of copyright owners and consolidated global market dominance in the creation and distribution of knowledge goods.  Yet, as with patents, important limitations were also incorporated into the copyright provisions in TRIPS. For example, the idea-expression limitation (excluding ideas from copyright protection) was codified for the first time in international copyright law through the TRIPS Agreement. Additionally, the Berne Appendix, a compulsory licensing protocol negotiated to accommodate the bulk access needs of developing countries particularly for educational purposes was also preserved in TRIPS. 

Nonetheless, one of the significant changes occasioned by TRIPS was a limitation on national policy to enact additional limitations and exceptions at the national level.  Known as the three-step-test (TST), this provision in the TRIPS Agreement constrains the extent to which countries can design copyright law to adapt to specific cultural and economic needs.  Countries must “confine limitations and exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.” TRIPS Art. 13. In this contested policy space, international copyright law constrains the pro-development and pro-competitive aspects central to national policymaking.  Exceptions and limitations to copyright are precisely where national cultural, political and social values are best exercised and defended, and where innovation and competition flourish.  Accordingly, the defense and preservation of limitations and exceptions has become a central focus of the international copyright norm-setting activities in the World Intellectual Property Organization (WIPO), emphasizing the role of copyright law on human and social development. 

In seeking to constrain the scope of acceptable limitations and exceptions at the national level, international organizations that administer the various copyright treaties ultimately deny less-powerful countries the explicit right to shape national interests in the production and dissemination of cultural goods.  Under TRIPS, the simultaneous expansion of copyright and reduction of policy space marked a significant change in international copyright law because it also signaled the growing power of private market actors in shaping regulatory policies in areas where fundamental rights are implicated, as is the case with privacy interests and copyright’s role as an engine of free speech.  As copyright industries in the US and Europe sought to consolidate gains from TRIPS by advocating new treaties to gain stronger protection in the digital context, civil society groups, public agencies and developing countries mobilized firm resistance to these expansionist efforts of the copyright industries by advocating for limitations and exceptions in the treaties.  As concluded, the 1996 WIPO Copyright Treaty (WCT) and the WIPO Performers and Phonograms Treaty (WPPT) include provisions that preserve some important national flexibilities in ways that arguably are in tension with the TST.  Negotiated on the heels of the TRIPS Agreement, the normative balance established in these WIPO treaties was made possible in part by the strong resistance to TRIPS which had galvanized an access to knowledge movement (A2K) directed at preserving the public welfare focus of national copyright laws (Kapcynszki 2008).

The strong reaction to the welfare implications of more robust copyright rights imposed by TRIPS caused the Access to Knowledge (A2K) movement to seek international balance in copyright treaties, rather than just national policy space.  National copyright regimes typically are predicated on utilitarian justifications. Put simply, copyright is a means to incentivize the production of cultural goods. This utilitarian emphasis was incorporated in TRIPS, which states that its objective is to “contribute to the promotion of technological innovation and to the transfer and dissemination of technology” (Art. 7).  However, national copyright laws can and should reflect several other justifications including the protection of an author’s personality, advancement of cultural and technological interchange, and the expansion of the public domain.  As stated in TRIPS Article 7, the terms of global copyright protection should insure “to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.” 

The A2K movement, working through a network of private and public organizations, leveraged these treaty provisions to demand change within international organizations. These demands have yielded developments such as the WIPO Development Agenda, which requires that development considerations inform WIPO’s norm-setting and technical assistance programs.  In addition to challenging the dominant ideology of international organizations involved in copyright norm-setting, the A2K movement sought to establish its own vision of copyright regulation, informed by human rights norms.  Since 2008, developing countries and non-governmental organizations have pressed for mandatory limitations and exceptions for libraries and archives, for educational institutions, and for the blind.  In 2013, the Marrakesh Treaty to Facilitate Access to Published Works (MAT Treaty) was concluded.  It established a mandatory exception to copyright law – the first of its kind.  Countries who ratify the MAT are obligated to establish an exception in their national copyright laws to allow visually impaired persons to have accessible format copies.

The MAT is the first treaty to utilize the international copyright regime to accomplish specific human rights ends.  Although Article 27 (1) of the UDHR states that “everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement of its benefits”, the practical implications of this right have been difficult to work out given competing approaches to copyright.  However, reconciling human rights goals with copyright is feasible and has instrumental benefits (Okediji 2007).  To maintain and strengthen those benefits, however, will require on-going collaboration between civil society groups, international non-governmental organizations and developing countries.  It will also require convergence between norms created in different international regimes and across different legal frameworks.   

2.2.4 Intellectual property and traditional knowledge

            Indigenous peoples have historically been economically, politically, and socially marginalized by the modern state, and their knowledge has been subject to assimilation, appropriation, and disregard. International organizations such as the United Nations have played a key role in articulating the importance of protecting forms of traditional knowledge and connecting it to the cultural survival of indigenous peoples. Traditional knowledge is an umbrella term that includes recognition for a number of forms of indigenous cultural production, including traditional cultural expressions such as folklore, music, dance, and oral history; plant-based and ethnobotanical knowledge; environmental knowledge; and, in some cases, genetic resources. We adopt the term traditional knowledge as it is the legal term of art, but recognize that the term can be viewed as misleading, or even pejorative. Our use of the term, therefore, acknowledges that traditional knowledge should not be viewed as ancient, static, and natural, but as dynamic and inventive (Gana 1995; Sunder 2007).

            UN organizations, such as the United Nations Educational Scientific and Cultural Organization (UNESCO) and International Labor Organization (ILO), have generated diverse legal instruments that address the need to protect forms of traditional knowledge and the rights of indigenous communities to control these forms of cultural production. These legal instruments have created narratives that legitimate indigenous claims to intangible property and assist in securing resources for the protection of these rights. However, most of these legal instruments lack enforcement mechanisms that provide recourse to indigenous peoples. Moreover, the UN structure does not always give voting rights to non-state actors, marginalizing the participation of indigenous peoples in intellectual property negotiations. UN organizations have also played a far smaller role than national governments in shaping the articulation and exercise of cultural property rights. Domestic law has played a more important role in determining how states articulate, protect, and limit the property rights of indigenous peoples to their cultural heritage and traditional knowledge.

            Human rights law has provided many of the core principles for protecting forms of cultural heritage. From its inception in 1945, UNESCO recognized that the preservation of culture was an essential part of protecting such human rights as dignity, equality, and mutual respect. In the 1990s, the UN began to adopt an understanding of cultural preservation that included intangible forms of cultural heritage. This can be seen in the 1993 Convention on Biological Diversity that linked indigenous innovation, the preservation of biological resources, and support for sustainable development. It also appears in the 1993 UN report Protection of the Cultural and Intellectual Property of Indigenous Peoples, which highlighted the West’s expropriation of indigenous forms of cultural production and argued for changing intellectual property laws to ensure the survival of indigenous peoples. More recent UN efforts include the 2003 Intangible Heritage Convention, which expanded the definition of cultural heritage to include intangible forms of cultural production, such as ritual, behavior, oral history, knowledge, and practice. The 2005 Convention on the Protection and Promotion of Diversity in Cultural Expressions positioned such cultural rights as trade rights. The 2007 UN Declaration on the Rights of Indigenous People similarly called for nations to enact domestic legislation to protect the intellectual and cultural property of indigenous peoples.

            Such concerns emerged in a context of shifting trade laws that expanded the reach of international intellectual property protection and strengthened them in ways that aligned with the interests of some large multinational corporations (Drahos and Braithwaite 2003). Developments such as the TRIPS Agreement drew increased attention from scholars, indigenous groups, and members of less industrialized nations to the ways international intellectual property laws benefited industrialized nations, in particular the United States, and disadvantaged less industrialized nations and indigenous peoples. For example, patent laws recognize an inventor’s transformation of raw materials into something new and inventive. However, this definition may not easily encompass forms of knowledge that have been collectively produced, that communities have preserved for generations, and that have resulted from incremental change. 

            While multinational corporations ensured that their concerns about economic losses to “piracy” were codified in legal instruments such as the TRIPS Agreement, indigenous peoples saw their own forms of cultural production likened to the public domain and left open to appropriation. International intellectual property laws made it easier for corporations to extract resources from indigenous peoples and developing nations while enriching the economies of more industrialized nations, a relationship that critics likened to a new form of colonialism (Boyle 1996; Shiva 1997). Such developments articulated a need for the rights of indigenous peoples to be protected from intellectual property laws, meaning they needed defensive protection from intellectual property laws that permitted third parties to make forms of traditional knowledge part of their protected property claims (Helfer and Austin 2011). Human rights principles provided the underpinning for many of these defensive claims and served to counterbalance the market logic of international intellectual property law.

            Indigenous communities have also used intellectual property rights as a form of positive protection for innovations based on traditional knowledge. For example, trademark protection has been used to safeguard traditional signs and symbols and trade secret law has been used to protect forms of secret and sacred traditional knowledge. However, framing traditional knowledge as an intellectual property right requires viewing the world in terms of authorship and ownership, a premise rejected by some indigenous groups and activists, who have looked for alternative framings. Attempts to define who counts as a member of an indigenous group or community for the purposes of exercising cultural heritage rights may prove challenging at a practical level. There are rifts within communities and some groups lack formal standing. Some communities may come into being via their relationship to cultural property laws and the rights they provide (Coombe 2011). Moreover, forms of knowledge cannot always be matched clearly and easily with particular people and places. For example, aspects of indigenous medicinal knowledge may also be part of the folk medicinal knowledge of the poor (Hayden 2003).

            Nation-states, especially those in less developed regions, may also claim ownership of indigenous cultural heritage and view such forms of cultural production as part of their national heritage. State efforts to protect forms of indigenous cultural heritage through the use of geographical indications (GIs)—labels for products with a specific geographic origin that have features tied to that origin—have increased the presence of traditional handicrafts and agricultural products in international markets. In some cases, they have increased the economic revenue of communities and state programs and prevented the appropriation of cultural heritage. However, such efforts can also increase distrust and conflict within communities, exacerbate unequal distributions of wealth, benefit distributors and purchasers of these goods more than the small-scale producers, and open indigenous communities to increased state involvement and regulation (Blakeney and Coulet 2011; Chan 2014; Drahos 2014). Future research and policy making in this area should consider not only how intellectual property laws can prevent the appropriation of indigenous knowledge but also how expanding understandings of culture as property affects the lives of indigenous communities in multiple, and sometimes contradictory, ways.

2.2.5 Possible Futures

            The development of human rights, environmental law, and competition law transnationally could provide ways to counterbalance a focus on aspects of intellectual property law that tend to favor wealthier nations and multinational corporations in them. Toward this end, countries could adopt strategies, with the assistance of international organizations, to shape and tailor intellectual property legal norms and practices to specific cultural, economic and social priorities. We note complementary strategies that could be adopted.

(i) Developing alternative or competing normative frames for the interpretation of international IP norms. Braithwaite and Drahos (2000) contend that less powerful stakeholders in global debates fare better if they invest resources in developing principle-based normative frames. These frames can then be combined with technical expertise to apply them. Otherwise, such expertise will tend to work only within normative frames created by powerful actors, such as the US, EU, and business associations within them, and diffused through technical assistance programs, whether through WIPO, WTO, bilateral, or private sector programs. Alternative frames can help catalyze social movements to challenge and call for the modification and reinterpretation of international intellectual property laws (Kapczynski 2008). These alternative frames can be developed and diffused with the assistance of international organizations in such fields as human rights, public health, and culture.

(ii) Developing local expertise and local institutional competence. Developing countries and civil society groups need to develop not only new normative frames; they also need technical expertise embedded in local institutions. In this way, they become entrepreneurs of international norms and not simply passive recipients and adapters of norms that are institutionalized in the development-related initiatives of international organizations, which in practice may serve the interests of developed countries. This local institutional expertise will need to be broad-based, embedded within government institutions, and include civil society and relevant producer interests, such as representatives of generic producers of pharmaceuticals.  Building local expertise in this way could serve to counter the ease with which international organizations, working through technical assistance programs, weaken the authority and credibility of domestic institutions that seek culturally appropriate approaches to intellectual property norms (Okediji 2015a). Understanding technical assistance programs as technologies of governance suggests that international organizations could play an important role in cultivating domestic institutional expertise (Okediji 2014) and should be required to design technical assistance to do so.  They also can raise the visibility and reaffirm the legitimacy of successful legal innovations at the national, regional, and community level that promote the protection of national policy space for domestic institutions to adopt norms that are appropriate for national economic and cultural development.  

(iii) Pooling resources. One way that expertise can be built and diffused is by pooling resources through transnational alliances among governments and non-governmental groups specializing in intellectual property issues, linking where appropriate with international organizations. Centers can be developed in universities and think tanks to provide forums for the sharing of experiences and the identification of more effective practices. Broad-based initiatives that include health activists and generic pharmaceutical producers, for example, are central, as are initiatives that recognize the importance and complexities of protecting traditional knowledge and indigenous cultural heritage rights within existing international intellectual property rules.

(iv) Coordinating with allies in industrialized countries. Developing countries, civil society organizations, and indigenous groups can coordinate with groups in the United States and Europe to undercut industry pressure in the formation of U.S. and E.U. negotiating positions and strategies, and counter them within international organizations. International negotiations involve a two-level game in which national constituencies compete in the formation of national positions and those national positions are then advanced in international negotiations.. Developing countries, indigenous groups, and other constituencies can work with political allies in the U.S. and Europe to alter the U.S. and European domestic political calculus as occurred with respect to the Marrakesh Treaty.

(v) Seek to better understand the effects of applying the IP frame to a diverse world. Intellectual property law imposes particular categories, classifications, and Western “market” values upon the world. Categories, such as “traditional knowledge,” “property,” “author,” and “invention,” are not natural but are brought into being as people interact with legal frameworks that tie these categories to the exercise of liberties and making rights claims. The application of these categories by international organizations can alter social structures, practices, and ways of seeing the world (Okediji 2014; Okediji 2015b). For example, understanding culture as property emphasizes its market value and de-emphasizes other reasons for its production and protection. Viewing the right to health as a right to access patented pharmaceuticals may give priority to pharmaceutical-based policy solutions and foreclose more holistic interventions that take into account economic and social rights and combine them with forms of public medical assistance and education (Biehl 2014). Understanding copyright as an engine of free expression and as a tool for education, as some of the earliest national copyright statutes did, can catalyze important national limits to the property rights of content owners while also facilitating important social welfare policies such as access to education. International organizations involved in the area of intellectual property should bear in mind that the intellectual property frame not only involves the technical application of terms and categories to different cases but also remakes the world so that it conforms to its categories. While human rights law offers alternative frames for the interpretation of IP law, intellectual property can also conceptually alter our understandings of human rights.

2.3 Women’s Rights

2.3.1 The challenge for social progress

  Across the world, women face discrimination and oppression. While there is evidence of progress for women over the past two decades, for example in their increased representation in elected state institutions and the paid labor market, and in the growing enrolment of girls in primary and secondary education, there remain marked asymmetries between men and women’s access to authority, income and power. Apparent progress is often undermined by deep-seated structures of inequality. Thus, while more women are in paid work in most countries, terms and conditions of work have sharply deteriorated. For example, 83 per cent of domestic workers globally are women, but only one half of them are entitled to the minimum wage (UN Women 2015). Beliefs and practices based on gender, prioritizing masculine approaches and values, contribute to this inequality. One response to this situation has been the growth of social movements for women’s rights, framing women’s inequality as a question of human rights.

2.3.2 How are existing organizations working?

            Campaigners for women’s rights have often resorted to the international arena.  International institutions appear to offer hospitable and progressive sites to protect women’s rights in the face of often hostile national environments.  To a large extent, supranational organizations have been pressured by national and international women’s movements to incorporate women’s issues into their mandates.  The proliferation of non-governmental organizations working on women’s rights has been essential to bringing this issue into the international domain. However, incorporating women’s rights into the overall human rights system has been difficult. While there have been a number of important developments in international protection of women’s rights, supranational organizations have also been ambivalent on this topic. There are also sophisticated networks of civil society actors who are hostile to claims of women’s rights, particularly those relating to reproduction and sexuality.

The engagement of international organizations with women’s rights starts with the League of Nations, although women had begun to organize internationally before that. The Hague Women’s Conference in 1915 is a good example of international mobilization, focused on preventing war (Baetens 2010). The League of Nations, established in 1919, paid attention to particular women’s issues, such as nationality. Its contemporary, the International Labour Organization, adopted conventions dealing with women’s labor rights, typically designed to protect women’s role as mothers. The League’s successor, the United Nations had an explicit mandate to consider women’s equality with men:  the preamble to the UN Charter (1945) reaffirms faith in ‘the equal rights of men and women’. The purposes of the UN included promotion of human rights ‘without distinction as to race, sex, language or religion’.  The UN established the Commission on the Status of Women in 1946 as a political body to elaborate this agenda. The UN created a new agency, UN Women, in 2010 to bring together the organization’s work on women. Although the vocabulary of women’s rights is evident within the UN, it does not appear to have made much general impact on the practices of the institution or on the lives of women and girls. There has been selective appropriation of feminist ideas and a formulaic approach to their implementation. A feature of the last two decades is the rise in influence of non-governmental groups as well as private sector actors.

2.3.3 Technologies of governance

  In this area, we see examples of the three types of technologies of governance noted above: hard and soft law documents, accountability processes through courts and administrative systems and indicators of women’s progress.  International organizations have developed a complex normative system to protect women’s rights primarily through the adoption of international agreements and declarations. The Universal Declaration of Human Rights (1948) and the two major international human rights instruments, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both adopted in 1966, provide that the rights they recognize should be respected ‘without distinction of any kind’ including sex.  The most detailed international statement on women’s rights is the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).   The adoption of an Optional Protocol to CEDAW in 2000 allowed individuals to bring international claims of breaches of the Convention. There are also a range of regional treaties dealing with women’s rights. An important recent treaty adopted by the Council of Europe is the Istanbul Convention on Domestic Violence (2011).

During the 1970s and 1980s, a series of national movements for women’s rights coalesced into an international campaign for peace and for women’s economic empowerment and equal participation in education, politics, and development.  Between 1975 and 1995, a series of world conferences brought together government and civil society representatives in transformative events that produced important outcome documents. The first meeting, held in Mexico City in 1975, focused on equality, development, and peace.  Subsequent conferences in Copenhagen in 1980 and Nairobi in 1985 reiterated these concerns, but attention gradually shifted from peace to human rights, with a growing focus on violence against women.  The Nairobi Forward-looking Strategies developed in 1985 identified reducing violence against women as a basic strategy for addressing the issue of peace (Report of the UN Secretary-General 1995, 125).

In 1990, the UN’s Economic and Social Council adopted a resolution developed by the Commission on the Status of Women stating that violence against women in the family and society derives from their unequal status in society and recommended that governments take immediate measures to establish appropriate penalties for violence against women as well as developing policies to prevent and control violence against women in the family, workplace, and society (Report of the UN Secretary-General 1995, 131-132).   This recommendation suggests developing correctional, educational, and social services approaches including shelters and training programs for law enforcement officers, judiciary, health, and social service personnel.  CEDAW does not mention violence against women explicitly, but the committee monitoring the Convention developed an initial recommendation against violence in 1989 and formulated a broader recommendation which defined gender-based violence as a form of discrimination in 1992. 

By the 1990s, with the increasing focus on human rights characteristic of this period, the global women’s movement sought to define women’s rights as human rights. During the 1970s and 1980s, national women’s movements had developed in many countries around the world, coalescing into an international movement by the 1990s.  At the 1993 UN Conference on Human Rights in Vienna, sponsored by the Office of the UN High Commissioner for Human Rights, a worldwide petition campaign gathered over 300,000 signatures from 123 countries asserting that women’s rights were human rights.   The concluding document, the Vienna Declaration and Programme of Action, formally recognized the human rights of women as “an inalienable, integral and indivisible part of human rights” (Connors 1996, 27).  It advocated “the elimination of gender bias in the administration of justice and the eradication of any conflicts which may arise between the rights of women and the harmful effects of certain traditional or customary practices” (sec. II, B, par. 38, UN Doc A/Conf.157/24.)   The Vienna Declaration specifically called for the appointment of a special rapporteur on violence against women and the drafting of a declaration eliminating violence against women, both of which occurred soon after.

In 1995, the Fourth World Conference on Women, held in Beijing, drew representatives from 189 countries and 30,000 civil society activists.  They met for two weeks and developed a major policy document for women’s rights, the Platform for Action.  Many regard this document as a high-water mark for women’s rights, and there is some reluctance to hold further meetings because of a fear that this document will be weakened.  The Platform for Action noted the failure to achieve the goals of the Nairobi conference and identified twelve “critical areas of concern:”

• The persistent and increasing burden of poverty on women
• Inequalities and inadequacies in and unequal access to education and training
• Inequalities and inadequacies in and unequal access to health care and related services
• Violence against women
• The effects of armed or other kinds of conflict on women, including those living under foreign occupation
• Inequality in economic structures and policies, in all forms of productive activities and in access to resources
• Inequality between men and women in the sharing of power and decision-making at all levels
• Insufficient mechanisms at all levels to promote the advancement of women
• Lack of respect for and inadequate promotion and protection of the human rights of women
• Stereotyping of women and inequality in women's access to and participation in all communication systems, especially in the media
• Gender inequalities in the management of natural resources and in the safeguarding of the environment
• Persistent discrimination against and violation of the rights of the girl child (Platform for Action Chapter III, par. 44, p. 31)

The Platform identified violence against women as a violation of human rights and fundamental freedoms, defining it broadly as "any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or private life."  (Platform for Action, Sec D. par. 113).  It includes gender-based violence in the family, the community, or perpetrated by the state, including acts of violence and sexual abuse during armed conflict, forced sterilization and abortion, and female infanticide.   By declaring protection from violence for women and girl children as a universal human right, the conference placed women’s rights in transnational space, the domain of the international human rights system:

    "Violence against women both violates and impairs or nullifies the enjoyment by women of their human rights and fundamental freedoms. The long-standing failure to protect and promote those rights and freedoms in the case of violence against women is a matter of concern to all States and should be addressed." (Platform for Action, sec. D, 112). 

Thus, by the mid-1990s women’s rights were recognized as human rights.  A rapidly growing number of civil society organizations pressured governments and international organizations to recognize these rights.  The shift from a national to a global platform for women’s rights enhanced their visibility. In response, there was a growing resistance to women’s human rights, regularly framed in terms of the protection of culture and tradition. 

The Millennium Development Goals (MDGs), in effect from 2000 to 2015, identified the promotion of gender equality and women’s empowerment as one of their eight goals.    Progress toward this goal is measured by the proportion of women in parliament, the ratio of women to men in paid non-agricultural work, and the ratio of girls to boys in primary, secondary and tertiary education. The Sustainable Development Goals, which replace the MDGs, operative from 2015 to 2030, also specify gender equality and women and girl’s empowerment among their seventeen goals.  The targets under this goal are broader, including reproductive rights, economic rights, elimination of “harmful practices” and gender-based violence, access to technology, and recognition and valuation of unpaid care and domestic work.   

Global initiatives have been important in bringing international attention to gender inequality in work, education, and political power.  However, in practice the focus on women’s rights has remained relatively narrow, zeroing in on violence to women’s bodies such as domestic violence or sex trafficking, while neglecting wider inequalities such as reproductive rights, disproportionate poverty,  and the burdens of unpaid care work.  The prominence of violence against women as a central concern is compatible with older protectionist approaches to women’s rights.   

  We can identify two major themes in the development of women’s human rights.  The first is the idea that women require special treatment, specifically protection. This theme characterizes early international instruments that aimed to prevent some types of exploitation of women, for example, ILO conventions prohibiting women working at night, or in mines.  These instruments were not cast in the language of rights, and their aim was primarily to protect ideals about womanhood, such as women’s physical weakness and vulnerability outside their families.  The protective strand with respect to women has not disappeared, emerging, for example, in a suite of Security Council resolutions on women, peace and security adopted since 2000.  These resolutions depict women in conflict zones as particularly susceptible to sexual violence, requiring protection, rather than as potential agents in shaping their own futures.   Similarly, the centrality of the issues of violence against women and sex trafficking indicate a persistent focus on state protection of women.  

The second theme in the area of women’s human rights is women’s equality with men: the right to equal treatment and non-discrimination on the basis of sex. This principle is signaled in the UN Charter and the human rights treaties cited above.  However, in general, efforts to achieve gender equality in education, work, and political participation and to prevent gender discrimination have lagged in comparison to those focusing on the protection of women from physical and sexual violation.

Although during the early years of the women’s rights movement there was little focus on sexuality and gender identity, more recently organizations concerned with women’s rights and lesbian, gay, bisexual, transgender, and queer rights, called in international parlance SOGI or sexual orientation and gender identity rights, have  worked in collaboration.   Many civil society organizations now seek to pressure international organizations to include SOGI rights in their work, focusing in particular on the prevention of discrimination on the basis of sexual orientation and gender identity.

2.3.4 Achievements and limits of current structure

  Women’s human rights have made precarious progress in the international arena. Although there is now elaborate scaffolding for these rights in terms of treaty provisions and jurisprudence, they are constantly at risk of erosion. One example is the raft of reservations entered to CEDAW by states that have ratified it.

  As noted above, one of the areas of success has been highlighting the problem of violence against women.  Through social movement activism, the UN has been encouraged to develop laws and programs to increase women’s protection from violence.  The UN Committee on the Elimination of Discrimination against Women and the UN Secretary-General have both taken a leading role in identifying the problem and urging states to take action.   

  Despite this progress, many other dimensions of women’s equality have not been addressed adequately.  Issues such as reproductive rights and the equality of work and education have languished.  Violations of women's rights are often justified on the grounds that they are an aspect of particular religious or cultural practices, and rights to religious freedom or cultural integrity are often invoked to “trump” women's rights. While concerns of cultural diversity arise with respect to human rights generally, it is striking that the concept of “culture” is much more frequently invoked in the context of women's rights than in any other area. This issue has arisen in many conflict environments, such as Afghanistan and Iraq.  Resistance to women’s rights comes from local male political elites and religious leaders.  For their part, international actors attach little priority to engaging women in peace processes and protecting women’s rights. Indeed women’s rights are often traded in political settlements to achieve an apparent stability.

The sense that the area of women’s human rights is under constant siege has meant that much energy goes into preservation of a limited status quo and that there is a reluctance to develop new standards. Thus, twenty years after the Beijing Conference, UN Women decided not to hold another conference on women in 2015 because of the anxiety that even the modest gains contained in the Beijing Declaration and Program for Action might be wound back by coalitions of religious influences.

On the other hand, civil society mobilization on women’s human rights is extensive, with strong participation by NGOs in international conferences and meetings of the Commission on the Status of Women.  The international human rights system has proved valuable for many national and local organizations as the basis for making claims about women’s rights that are legitimated by their acceptance by global institutions.   Women’s human rights are typically generated by concerns and issues at the local level, such as dowry murders or honor killing, which circulate to global arenas where they are packaged into broad statements of universal obligation, such as protection from violence.  Such statements, conventions, and policy documents then serve as the basis for vernacularizing these rights:  translating them into terms that are culturally appropriate and appealing to local communities (Merry 2006).    For example, women’s demands for protection from domestic violence may result in the creation of a local women’s court, modeled after a male-dominated village court, as has occurred in parts of India. 

The dynamism of civil society activism on women’s issues and the process of vernacularizing global norms mean that, despite the resistance raised by some states and international organizations to women’s rights, this is a growing and developing field.  The international conventions, conferences, resolutions, and policy documents provide a rich set of resources for local activists to use, offering models for action and legitimation for claims that women’s rights are global.  

The struggle to broaden the issues recognized by the international order beyond narrow individual ones to more systemic ones is ongoing.  For example, rather than seeing violence against women as a product of males who use violence inappropriately, civil society groups advocate a broad approach that critiques the social acceptance of violence against women, the inadequacy of state institutions and laws to protect women, systems of marriage and kinship that prevent women from leaving violent families, and structures of educational, economic, and political inequality that force women to be dependent on men even if they are violent.  Successive Special Rapporteurs on Violence against Women appointed by the Human Rights Council have adopted an approach of this kind.

2.3.5 Possible futures

            International organizations are often reluctant to take up issues that cause controversy, including questions of women’s human rights such as reproductive rights. The challenge for local organizations seeking to appropriate concepts of women’s human rights to improve the status of women is to mine the range of possibilities offered by international organizations in a way that is appropriate to local circumstances while resisting the pattern of trading women’s rights off against other issues, such as the maintenance of tradition or political stability.  Alliances with feminists working within international bureaucracies can be valuable (Eyben and Turquet 2013). Overall, this is a dynamic and contested social field, with alliances and struggles among international organizations, civil society, and states. These contests continually redefine what women’s rights mean and what these ideas and institutions can do to improve the status of women worldwide.

2.4 Climate Change

2.4.1  The challenge for social progress

One of the most serious global challenges of our time is human-induced climate change. The risks posed are dramatic, but until recently, little was done to address it. Richardson et al. (2009: 6) summarize the gravity of this issue: “Past societies have reacted when they understood that their own activities were causing deleterious environmental change by controlling or modifying the offending activities. The scientific evidence has now become overwhelming that human activities, especially combustion of fossil fuels, are influencing the climate in ways that threaten the well-being and continued development of human society. If humanity is to learn from history and to limit these threats, the time has come for stronger control of the human activities that are changing the fundamental conditions for life on Earth.”

Given its global scope, the fight against human-induced climate change is particularly well-suited for the use of transnational technologies of governance. However, given that any effective policy against human-induced climate change will require adjustments in the economic arrangements of both developed and developing nations, there are serious challenges for current technologies of governance.

2.4.2. Current efforts

At the time of the inaugural conference of the International Panel on Social Progress in August 2015, attempts to address climate change in a meaningful way had largely failed. Indeed, in spite of the growing awareness of both the existence of human-induced global warming, and the catastrophic impact that it could have in future generations, the many international meetings that the United Nations organized over the last two decades to tackle it made little progress.

In December 2015, however, the 21st Conference of the Parties (COP21), which took place in Paris (convened by the United Nations Framework Convention on Climate Change, UNFCCC), appeared to open the path for real progress in this domain. Thus, coinciding with the end of the hottest year on record, 197 sovereign states approved an agreement that tackles this problem.[5]

The Paris agreement is a complex international treaty. For the purpose of this Chapter, however, it can be summarized as follow:

1. It contains a formal commitment to hold the increase in the global average temperature to 1.5°C above preindustrial levels, as well as achieving a ‘net zero’ greenhouse-gas emissions between 2050 and 2100;

1. It is universal in nature, not just because it includes almost all states of the world, but because it contemplates that both developed and developing nations will reduce their carbon-dioxide emissions;

1. It includes a goal for developed countries to provide US$100 billion per year by 2020 for climate-change mitigation and adaptation efforts in developing countries;

1. It contemplates that the mechanism for reducing greenhouse-gas emissions will be “Intended Nationally Determined Contributions” (INDCs), a device already in use before COP21, but which will be now legally binding;[6]

1. It sets up a review mechanism that commits countries to take stock of their level of emissions (and consequent reasonableness of their INDCs) every five years.

The goals set by COP21 are ambitious given that global temperatures are already 1°C above pre-industrial levels, and achieving ‘net zero’ greenhouse-gas emissions under current economic and technological conditions is impossible. Nevertheless, the goals are consistent with the ‘precautionary principle’[7] and, more specifically, with avoiding the risk of reaching a ‘point of no return’ in terms of global warming.

Furthermore COP21 represents a significant advance on the Kyoto Protocol in that it makes the fight against human-induced climate change a truly global task, through addressing the action of both economically developed and developing nations. This suggests that the perceived threat of climate change is such that even developing nations are conscious that they would have to adapt their interest in improving national standards of living to be compatible with achieving the emissions reductions required by the COP21.

2.4.3. Technologies of governance

In terms of the categories elaborated by this Chapter, COP21 fits into the first category of international organizations, that is to say, those homologous with state-created institutions by an international treaty. Accordingly, COP21 will most likely exhibit the problems typical of such organizations, namely:

1. “Suffering from asymmetries of input and power in both global rule-making and international surveillance of national (performance)”;

1. “The fact that formal representation and procedural fairness commonly does not translate into actual and tangible participation. Voices and views, alternatives and perspectives from outside the global center, do not get expressed, and if expressed have little efficacy on outcomes in global governance”; and,

1. “That too often compliance studies are check-list, mechanical and rigid enterprises which take little or no account of state capacities or willingness to comply, and even less to creative alternative means of compliance when national circumstances are not conducive to conformity with sophisticated global standards. As a result, compliance is often gamed and countries become adept at symbolic compliance.”

Another feature of the institutional architecture set up by COP21 to enforce the implementation stage of the treaty is that it is heavily dependent on both supranational and national transparency. Indeed, the ambitious nature of the goals set up by the treaty require an increase in public transparency at the national level in all states parties to the agreement, as the primary way to ensure that each state will fulfill their obligations will be self-report.

This weak enforcement mechanism raises important challenges for the implementation stage. Indeed, as the experience of the European Union in 2008 with the lack of transparency exhibited by one of its members, Greece, suggests, when there are strong economic, socio-political, cultural and institutional differences between states within a specific treaty regime, it is difficult to achieve adequate transparency to monitor the performance of the parties to the treaty.

2.4.4. Achievements and limitations

The challenging issue of enforcing the commitments made by the high number of states expected to ratify the Paris treaty will be exacerbated by the fact that the language of COP21 is often vague, even in the description of the primary legal obligation imposed on the parties. Phrases such as ‘countries will aim to undertake rapid reductions’ leave much room for divergent interpretations, which will in turn complicate access to reliable information regarding both the baseline of each country’s greenhouse-gas emissions and the periodical reductions they can achieve.

Another problem that often complicates the life of international organizations such as COP21 is the so-called democratic deficit. COP21 represents a norm of international law brought about by states with different political regimes and public spheres (in terms of media coverage of the issue, participatory deliberations prior to the global negotiations, and public engagement with the issue). The often wide differences in the national settings of the parties will make enforcement of the international obligations imposed by COP21 complicated. They will also affect the legitimacy of an agreement which curtails national sovereignty over spheres as energy policy and economic policy-making.

The transnational technology of governance represented by COP21 has been calibrated to address human-induced climate change. However, the large number of countries which are parties to this agreement, as well as the pathologies associated with this type of international organization, could translate into significant challenges for both the future legitimacy and actual implementation of COP21.

2.5 Conflict, Security, and Terrorism

2.5.1 The challenge for social progress

            Since the first international organizations were created, scaling up authority to a supranational body has been used as a strategy to prevent violence, either as the result of cooperation between nation-states that may otherwise go to war, or as an intervention by an international body in domestic or regional settings that could end up in conflict.  However, this strategy has also been instrumental in the perpetuation of colonial relations, the creation of “enemies” and “existential threats” to justify arbitrary policies, and implementation of counterproductive political and development plans by international organizations.  

The eradication of conflict, insecurity and terrorism are major goals of international organizations; not only those who work specifically in these fields, e.g. the North Atlantic Treaty Organization (NATO), but also those of general jurisdiction.  Conflict, insecurity and terrorism/radicalization are often seen as connected through cycles of conflict drivers including injustice, inequality, poverty, famine, environmental degradation, water shortage, poor health, unemployment, social exclusion and other human rights problems (Korhonen, Gras and Creutz 2006). The concept of complex emergency describes the cycles, linkages and domino-effects among these drivers and root causes (World Food Program 2005).

Traditionally, the policies and actions of international organizations have shifted between and combined two approaches: 1) repressive pacification (e.g. collective defense, peace enforcement, disarmament, criminalization of aggression) and 2) developmentalism and humanitarian relief (e.g. capacity-building, human rights instruments, development assistance). Financial, legal and policy measures have been adopted. Major international organizations, e.g. the United Nations (UN), African Union (AU), European Union (EU), NATO, have mechanisms to employ troops from their member states. Also individual and ad hoc coalitions of states have acted with or without a mandate from the UN in cases of aggression against them and terrorism. 

2.5.2 The institutional ecology of global security governance

  The multiplicity of relevant organizations dealing with security and conflict keeps growing in a world in which governance has been fragmenting and specializing, rather than centralizing. In this context, coordination problems among the various international organizations have been identified as one of the greatest challenges of conflict, security and anti-terrorism governance. Indeed, the UN Millennium Declaration has called for “greater policy coherence and better co-operation between the UN, its agencies, the Bretton Woods institutions and the WTO” to prevent crises and to alleviate them. International organizations have responded through a “cluster approach” and “joint needs assessments”. The Office of the Co-ordination of Humanitarian Assistance (OCHA) and its department (especially the Department of Humanitarian Assistance (DHA)) coordinate internally with over 20 bodies and externally with at least 30 main organizations (NGOs). Similarly, the leading non-governmental organization in the field, the International Committee of the Red Cross (ICRC), engages in wide coordination with civil and military actors generally and in the field. Nevertheless, as international organizations, including NGOs, active in conflict and crisis areas are numerous, co-ordination, overlap and both intra- and inter-institutional competition (for funding, visibility, policy leadership) are an issue.

Inter-institutional interaction is, in this sense, a central dimension of the management of conflict, security and terrorism by supranational organizations.  Ultimately, global security governance is interactional. The law that constitutes the authority of supranational organizations often takes into account the interaction between institutions involved.  Moreover, the institutions in charge of international security governance can be the result of interaction, for example the AU/UN Hybrid Mission in Darfur (UNAMID) established in 2007.  Similarly, substantive policies and programs adopted by supranational organizations involved in international security governance can also be the result of interaction.  It is now usual for the Security Council to refer to international financial institutions in some of its resolutions.  The World Bank, in turn, is actively engaged in the control of landmines, particularly through its Emergency Landmine Clearance Project.  Finally, interaction becomes crucial when multiple institutions are active in a specific area of state.  While supranational organizations have focused their efforts on coordination, the reality is that interaction between institutions may involve competition, mimicry, co-optation and specialization.

Private actors are also important parts of this institutional ecosystem.  Lately, the increase in the privatization of security and military services has sharpened coordination and accountability questions. Corporations to whom security and military service provision is externalized do not fall under the command structure or public control mechanisms of the states who employ them; their contracts are secret and their action takes place outside national jurisdictions of their home states (Francioni and Ronzitti 2011). Coordination with civilian organizations has little if any traditional mechanisms. There is also mutual distrust pertaining e.g. to the compromising of one’s mandate, respectively.

The massive quantity and heterogeneity of public, private, governmental and non-governmental organizations involved in security, conflict and counter-terrorism and the ensuing co-ordination problems have a historical background. In the pre-UN-era it was powerful states or coalitions of interested states who often took over or governed areas that were both strategically and/or economically important for them, for which they competed, which were exploited through colonialism or, during the League of Nations period, given as Mandated territories. Mercenaries were frequently used by colonial powers. Many historical legacies still dominate the behavior of powerful states within and without international organizations as it comes to making policies and taking action in conflict, insecurity or terrorist situations (Korhonen, Gras and Creutz 2006).

2.5.3 Technologies of governance

  As general policies about dealing with conflict oscillate between repression of violence and developmentalism, the technologies and tools of governance alternate correspondingly. Historically, coalitions of states and colonial rulers used civilian administration of territories – direct or delegated, taking over trade and economic governance combined with military repression.  In 1863, the ICRC was founded to protect the victims of war; its efforts spread from relief work to preventative measures e.g. coordination of policies, initiatives and treaty drafting to develop more humane rules of war and arms restrictions. Since the League of Nations, the concept of collective security and peaceful settlement of international disputes became the normative foundation of international security; i.e. an attack against a sovereign state would be considered an attack against all and collectively defended. Mechanisms of dispute settlement ranging from negotiations, peace talks, mediation, conciliation, good offices to court procedures were set up, in particular, after the founding of the UN. The international tribunalization, identified for example by the Project on International Courts and Tribunals (PICT), with its chart of over 100 bodies, provides a host of examples of the peaceful dispute settlement mechanisms. The UN Charter contains the basic rules and principles of friendly relations between states.

In the aftermath of the world wars, the Bretton Woods institutions, the World Bank group (WB) and the International Monetary Fund (IMF) were established. The WB provides instruments to support vulnerable states susceptible to complex emergencies, and to post-conflict rebuilding in which it offers funds and coordination of pledges and assistance programs. The IMF offers advice and aid in stabilizing public finances that are either a driver or, at least, greatly compromised by conflict and insecurity, and the proper conduct of which can decrease terrorist financing.

The UN, the EU and the AU provide a wide-range of capacity-building, good governance, human rights, development assistance, dispute settlement and, also, peacekeeping instruments; the Organization of American States (OAS) does similarly except for the latter. UN peacekeeping is the oldest model and the regional organizations (AU and EU) can act through it, in concert with it, with its mandate or independently, similarly to the NATO. The AU also acts with the Arab League. During the Cold War, the so-called first generation of UN peacekeeping was strictly limited to the consent of the target state and consisted mainly of presence and monitoring of e.g. ceasefire lines (Ratner 1995). If fighting broke out, the Blue Helmets were only permitted to protect themselves. Several controversies (cf. in Congo) resulted over mandates. In the 80s and early 90s the second generation of ‘extended’ peacekeeping emerged with multifunctional mandates including holding of elections and civil governance added to the missions, e.g. in Namibia and Cambodia. After the Brahimi report in 2000 and UN Secretary-General Kofi Annan’s further reform efforts, the third generation of peacekeeping developed to permit more robust force and peacebuilding powers. In 2005, the responsibility to protect (R2P) concept was endorsed by the UN. It marked a turn away from the debate on the right to intervene or to even undertake a humanitarian intervention, towards the duty of states and the international organizations to protect people. R2P was first invoked by the NATO in its Libya operation (2011) that took place alongside a UN mission.

In addition to peacekeeping and development, the UN is also the leading international organization in establishing tribunals (e.g. the International Court of Justice and ad hoc criminal tribunals), in promoting disarmament, arms control and nuclear non-proliferation, in developing human rights instruments, mechanisms, bodies and oversight, and in counter-terrorism. The counter-terrorism mechanisms include 14 treaties, and several subsidiary bodies that coordinate with other agencies internally and externally. The UN Global Counter-Terrorism Strategy was adopted in 2005 to prevent and combat terrorism; to take measures to build state capacity; and to ensure the respect of human rights while countering terrorism, and to strengthen the role of the UN. Despite the aspiration of many states to enhance the international/UN response to terrorism other states still insist the primary role of national states. The conspicuous lack of a general comprehensive counter-terrorism convention tells of these fundamental controversies e.g. to the definition of a terrorist and to the sharing of intelligence. Similar tensions exist within the NATO, EU and AU on this subject.

Complex emergencies put pressure on the kind of governance techniques required for effective international security governance, beyond the traditional toolkit of legally binding norms and soft law instruments. These new technologies of governance, though, pose questions of legitimacy for the involvement of international organizations in security governance, particularly because they imply a technocratic intervention in domestic issues that are, by definition, intensely political

The policy applicable to internally displaced populations (IDP), and the reliance on indicators as a technology of governance, is a good example. Indicators in the context of global IDPs are useful to justify involvement of supranational organizations in a situation that is, in principle, recognized as merely domestic.  Moreover, indicators are a useful mechanism to influence a political outcome.  In this latter sense, they seem to work in a way similar to soft law instruments. They are not backed by armed enforcement, but rather change the terms of engagement with the problem.  Just as soft law norms have been proven effective in the IDP context, so also indicators influence the way domestic governments behave with regard to its IDPs.  Yet, there are many questions as to whose ideas of progress seemingly ‘neutral’ indicators represent and the general problem of non-quantifiability and the risk of reductivism in many social issues.

2.5.4 Achievements and limits

  The achievements in the field of conflict prevention/alleviation, insecurity and counter-terrorism are many. The most important ones include the spread of the norm that aggressive force is unacceptable and the availability of many international fora for negotiations and peace talks. Another key element is the realization that conflict cycles can be eradicated only through eradication of the complex emergencies that drive them.  Yet, all the achievements contain inbuilt dilemmas. First, while war is outlawed, warring has taken more covert modes. Hybrid war tactics, cyber-attacks, using of proxies, unmarked uniforms, mercenaries, economic repression and extortion to destabilize states and governments is on the increase. International organizations cannot keep up in launching policies, let alone actions. Addressing insecurity caused by conflict cycles through eradicating conflict drivers is comprehensive, long-term and, therefore, most often seems too costly. Although many fora for negotiations exist, the access to these fora is not easy and structural biases exist; many voices remain unheard.

Yet, there has been improvement in the peacekeeping mandates, legitimacy, accountability and coordination. Periodic reviews have been made, ombudspersons appointed, the UN Peacebuilding Commission established (2005) and a dialogue for improvement, although slow, has taken place in all international organizations. Multinational negotiations are conducted on some of the most controversial and persistent crises. 

Peacekeeping missions undertaken by intergovernmental organizations seem to have been most successful when managing the aftermath of conflicts already resolved (or tentatively resolved) by some sort of local or international political agreement. Success, then, is defined as stabilization, not necessarily improvement of social justice. In those cases, peacekeeping typically involves electoral missions, or even taking over foreign affairs, finance and communications of a state (e.g. UNTAC 1992 and many since). Similarly, another factor contributing to the stabilization success by intergovernmental peace keeping missions is the commitment of resources by states (particularly, powerful states). Finally, a third factor that contributes to the effectiveness of peacekeeping operations is the acceptance by parties in conflict, and the support of regional supranational organizations. The AU/UN Hybrid operation in Darfur (supra) is an example of this approach which, at almost 20,000 uniformed peacekeepers at its peak in 2007, is among the largest peacekeeping missions. There are, however, operations were the amount of staff and troops has been much larger, e.g. those by the NATO and the state coalitions in co-ooperation with other institutions in e.g. Iraq, Afghanistan. 

However, many challenges remain.  The main problems include the rapid development of technologies and tactics of war and violence that is far quicker than the international organizations’ responses. The rise of the internet and novel ICT has also taken international terrorism and other activity to a whole new level.  More traditional problems include the selectivity of target states and peoples when international organizations launch efforts. The inability of international organizations to respond to the crises in Rwanda, Darfur or Syria testify to this dramatically.

The balancing of available resources and the needs of target areas is also very difficult; the intervention in Iraq and the consequent change in governance has caused massive problems in addition to solving some. Coordination and turf wars were already mentioned. While conflict, insecurity and terrorist situations are always politically highly loaded, international organizations responses tend to prefer the ad hoc to established structures. As the UN counter-terrorism debate shows, powerful states want to maintain independent room to maneuver against or in the absence of multilateral consensus. The downside of ‘adhocism’ is the decreased capacity to learn from the past (mistakes), to make impact analyses and to increase effectiveness through critical self-assessment (Korhonen, Gras and Creutz 2006). On the other hand, delicate situations require tailored responses; an optimal balance between adhocism and improvement-through-systematic/critical-review is not easily achieved.

2.5.5 Possible futures

  The shift in emphasis from traditional, hard or repressive mode of anti-conflict, insecurity and counter-terrorism towards preventative developmentalism is fruitful. International organizations move slowly in comparison to tactics and technologies of aggression, their interventions are politically constrained, targets highly selective and military operations extremely costly and unpopular. Prevention, even if comprehensive and long-term, is simply more economic, not to mention humane. For instance, according to estimates, one day of the NATO bombing (1999) cost as much as one year of the UN rebuilding mission in Kosovo (UNMIK). Thus, if the assistance funds had been put to use beforehand, much of the suffering and injustices could have been prevented without the destruction.

In particular, international security governance gives important lesson in terms of moving forward towards social progress.  Governance of complex conflicts and transitions demand economic and environmental choices from supranational organizations.  “Security” and “economics” cannot be read as separate areas of global governance. These choices, though, imply political and ideological choices, which should be made explicit.  Even though the liberal peace theory – with emphasis on core civil and political rights, electoral democracy, constitutionalization, liberal economics, free trade – had provided the value basis for international security operations since at least the UN, it is questioned whether the liberal peace-building package fits any particular target region, since it is by no means self-evident that the contemporary (neo) liberal agenda is the only alternative, neutral or universally accepted.

Moreover, international security governance is the result of constant interaction between numerous organizations. In their interaction, some of these organizations adopt survival strategies – sometimes cooperating, sometimes competing with other actors. Third, the shortcomings of accountability within international organizations involved with international security governance, particularly the UN, needs to be improved. International norms of immunity of international organizations, international civil servants, and immunities contained in status of force agreements need to be revised and limited.   Beyond the issue of accountability, however, UN reform in terms of amendment to the Charter and its formal organs, seem to be less urgent.

Governance of complex conflicts has triggered the use of new technologies of governance, different from formally legally binding instruments.  These new technologies, though, risk sheltering crucial choices from political scrutiny and have the potentiality of redistributing power among different groups of interests in conflict settings.  International security governance needs to acknowledge that these new technologies of governance are not neutral, and consider the unintended consequences of their use.

In general, the way forward in anti-conflict, security and counter-terrorism for international organizations is to move from narrow-minded adhocism, an openness to learn from mistakes, performing proper impact analysis including entry and exit strategies for missions not only afterwards but also beforehand, and development of early warning analysis. Checks on secrecy, espionage, willful destabilization and unilateralism need to be developed in light of the importance of the information and communication technologies (the cyberspace) for both good and regressive social forces today.

2.6 Health

2.6.1 Challenges for social progress

  The World Health Organization (WHO) is seen today as a “world government for health”, the formal structure and mechanism by which nations come together to determine policies for global health.  Its predecessor organizations, from the mid-19th century, the Pan American Sanitary Organization and the Office International d’Hygiène Publique, arose with the need to balance interests of trade against those of health (Fidler 1999, Lee 2009, World Health Organization 2016). The issue of alignment of national standards of quarantine for infectious diseases remains a core concern today, but the globalized world now sees not only increased population mobility but also a wide array of products that pose risks to health. The tension between commercial and national health security interests remain today central to global health (World Trade Organization and World Health Organization 2002).

The governance challenge has also been made more complicated in the latter part of the 20th century by the proliferation of supranational organizations involved in global health.  The emergence of official development assistance through bilateral and multilateral agencies, the entry of large new philanthropies, the establishment of public-private partnerships, and the expansion of international non-government organizations have highlighted the issue of governance for global health. Underlying the debate about how best to progress global health is the friction between different approaches to achieving good health outcomes, that is, targeted strategies for disease eradication as opposed to sustainable health system development (Dieleman, Schneider et al. 2016).

2.6.2 Ecology of international organizations in health

            The origin of international organizations for health was the First Sanitary Conference in 1851. Convened by the French government, and attended by twelve countries each represented by a physician and a diplomat, concern was focused on whether to standardize international quarantine regulations against the spread of cholera, plague, and yellow fever. The impetus was a report by the French Minister for Commerce, released in 1834, that showed differing quarantine requirements for exotic diseases across these countries.

Until the establishment of the UN and the WHO as a technical agency of the UN, most of the cross-national health actors were non-governmental. There were philanthropies such as the Rockefeller and Ford Foundations and church missions, and they introduced western medicine around the world. Their aim was not to govern global health, but to save lives. Nonetheless, the series of Sanitary Conferences led to the establishment of several intergovernmental bodies. In 1902, the first regional intergovernmental body was set up – the Pan American Health Organization (PAHO) -- to share information about health conditions in the Americas, and to formulate sanitary agreements and regulations so that quarantine requirements would be reduced to a minimum in respect of cholera, yellow fever, bubonic plaque, and smallpox. In 1908, the International Health Office was established in Paris to distribute health information from national health departments. The League of Nations set up a health committee in 1920 which promoted technical assistance to countries to control epidemics.

The post-Second World War environment marks the beginning of contemporary history of global health.  With aggressive internationalism and international organization building, the World Health Organization was founded in 1946 as a technical agency under the United Nations, its Constitution signed by 61 member states. Since then, There health actors have proliferated in bilateral and multilateral organizations, such as the UK Department for International Development (DFID), the US Agency for International Development (USAID), the World Bank, and regional banks.  Although these entities focused largely on development assistance projects and loans for post-war or post-independence reconstruction, they moved increasingly into the health field from the 1960s. The influence of the donors on national health policies and systems grew through both project funding as well as policy dialogues. Bilateral donors often served as the soft power instrument for promoting their national foreign policy interests.

The 1990s saw another burst in the proliferation of organization working in global health. This increasingly complex global health architecture now includes: public private partnerships (PPPs), for example the Global Fund for AIDS, Tuberculosis and Malaria, and the Global Alliance for Vaccines and Immunizations (GAVI); new philanthropies such as the Bill and Melinda Gates Foundation and Bloomberg Philanthropies; as well as strong influences from large international non-government organizations (INGOs), for example Médicins Sans Frontières, Oxfam and Save the Children.  The adoption of the Millennium Development Goals by the UN General Assembly in 2000 saw substantial growth in funding for targeted health programs, aiming to reduce maternal and infant mortality, HIV/AIDS, tuberculosis, and malaria. Funds from a wide variety of sources were channelled not only through governments but increasingly also through non-government organizations (NGOs) (Dieleman, Schneider et al. 2016).

This case study examines the post Second World War developments, particularly from the 1990s onwards.  In reviewing the debates between ideologies and organizational and financing developments, this case study assesses the achievements and problems in this complex landscape for global health governance and social progress.

2.6.3 Technologies of governance and global health architecture

  The WHO allows each member state one vote at the annual World Health Assembly.  Its Constitution provides a mandate to set standards, convene policies, provide technical support to countries, monitor situations and trends, and undertake research (World Health Organization 2016).  The work is carried out through six regional offices and 137 country offices. There are strict restrictions and rules for working with private sector and civil society organizations. As the secretariat to the World Health Assembly, the WHO is funded through assessed contribution from member states, as well as their voluntary contributions and the support of major philanthropies. The financial contribution is dominated by the major bilateral donors and the high income economies of the world.

Two legal instruments are in place – the Framework Convention on Tobacco Control (FCTC) adopted in 2001 and the International Health Regulations (IHR) last updated in 2005.  The FCTC has been the basis for successful introduction of tobacco control efforts across many countries, and serves as the basis for solidarity in the battle against the tobacco industry interests (Framework Convention Alliance 2016).  The most recent revision of the IHR was hastened by the outbreak of SARS in China and elsewhere, but has again come under scrutiny following the Ebola crisis in West Africa, given the reporting by countries about their IHR core capacities is not externally validated.

The WHO's influence over global health is otherwise exercised through its normative work and supporting countries in program delivery. WHO promulgates technical standards, ranging from how various health indicators should be defined and measured, to allowable exposure limits to various hazards, to evidence-based guidelines for public health interventions. Its regular World Health Report presents the 'state of the world' on selected issues, be it health financing, non-communicable diseases, or human resources for health (World Health Organization 2013, World Health Organization 2016). The influence of the WHO extends beyond its member governments to civil society. Most notably, the Declaration of Alma-Ata in 1978 captured the world's imagination through its call for health for all, and enunciating primary health care principles which relate not only to health equity and service delivery but also to community participation in the planning and implementation of health care (World Health Organization 2016).

The governance of global health has, however, become increasingly fragmented and uncoordinated. Bilateral and multilateral donors, working in countries since the 1960s through grant or loan-financed projects, offer substantial funding contributions and with it, sustained technical inputs. The global health landscape became even more complex when the World Bank turned its attention to normative standards in its 1993 World Development Report (World Bank 1993).  In contrast to the universalist orientation of the Declaration of Alma-Ata’s philosophy of 'health for all', the World Bank promoted prioritized funding of benefit packages based on cost-effective analysis. This new approach framed large loan projects across developing country funding programs to provide immunization, combat micronutrient deficiencies, and control and treat infectious diseases.

The dissonance between a targeted ('vertical') approach with a systemic ('horizontal') approach was heightened initially in the global economic downturn shortly after the Declaration of Alma-Ata, when UNICEF promoted 'selective primary health care' (through a package called GOBIFFF – growth monitoring, oral re-hydration, breast-feeding, immunization, food supplements, family spacing and female education) as a way to achieve specific health outcomes in a resource-scarce environment. This was supported further through the 1993 World Development Report, and then reinforced by the emergence of institutions focused on funding or supporting prevention and control efforts directed at particular diseases. The proliferation began in the late 1990s.  UNAIDS was established outside the WHO.  The Global Fund for AIDS, Tuberculosis and Malaria was a public-private partnership as was GAVI (Global Alliance for Vaccine Initiative). The US did not join the global effort on HIV/AIDS and set up its own program of PEPFAR (President’s Emergency Plan for AIDs Relief). The 2000 MDGs, with their emphasis on health goals, promoted targeted programs coupled with performance management through reporting. In a sense, this was a criticism of slow governmental processes to reach agreement on normative standards through the WHO, and of the idealism embodied in the call for “Health for All by the Year 2000”.  It was also a response to reduced UN funding, caused by the US reluctance to pay its UN dues from 1985 onwards. 

New philanthropies also emerged at this time. The Bill and Melinda Gates Foundation and Bloomberg Philanthropies had a presence far exceeding established funding agencies such as Ford and Rockefeller. They seeded major initiatives, with funding that greatly exceeded the WHO’s capacities. As private entities, they had minimal obligations to account for their actions.

The increased funding for global health was welcomed by the recipients and the advocates for particular causes, but there was no mechanism for coordination of global health initiatives, let alone a system of multi-stakeholder governance. Instruments such as the Paris Declaration and IHP+ (International Health Partnerships) were attempts to effect improved coordination at a national level with bilateral and multilateral donors and other public-private partnerships (International Health Partnerships 2016).  A mechanism for policy coherence at the global level remained elusive.

There have been proposals variously for the constitution of an advisory committee of stakeholders for the WHO, such as 'Committee C' (Kickbusch, Hein et al. 2010) and also for a Framework Convention on Global Health (FCGH) (Gostin and Friedman 2013) to coordinate financing of global health. The proposed Committee C would create an additional third committee of the WHA to deal with coherence, partnership and coordination of global health actors, non-health actors, and the development of legal instruments, all within the existing infrastructure of the World Health Assembly. The FCGH proposes the development of a legally binding treaty for global health, from a human rights perspective and driven by civil involvement, based within the WHO, or the UN, or outside these existing forums.

Many observers have noted that the post-Second World War institutional arrangements for global health governance are inadequate for the challenges of the 21st century. A World Health Forum has been proposed, inviting a broader range of participants than the World Health Assembly, including representatives from all major global organizations as well as the private sector. This would enable major actors to work more effectively together – globally as well as at country level - to address issues with coherence, accountability, fragmentation and duplication of effort (World Health Organization 2011). There have also been calls for WHO reforms along the lines of having regional directors appointed rather than elected, in the interest of 'one WHO' (Gostin and Friedman 2015). The WHO has adopted a framework of engagement with non-state actors, in order to strengthen connections with NGOs, private sector entities, philanthropic foundations, and academic institutions, while providing protection from potential risks to reputation, conflicts of interest and undue influence from external actors (World Health Organization 2016). In the post-Ebola period, there have been calls for a separate UN agency to manage emergencies and disease outbreaks (Kickbusch 2016, United Nations 2016). The WHO has now established the Health Emergencies Programme in order to optimize intra-agency coordination, operations and information flow (World Health Organization 2016).

2.6.4 Achievements

  Health is the result of interaction between the person's biological make up and his/her environment, including family upbringing, social networks, educational experiences, living and working conditions, geographical location, political systems, and cultural expectations (World Health Organization 1948, Institute Medicine (US) 2006, Australian Institute of Health and Welfare 2014). Health care services are part of the solution, alongside other public policy interventions.

Taking a long historical view (i.e. from the mid-20th century onward), the health of nations have generally improved. During this period life expectancy increased significantly for most countries and for the largest and poorest nations, China and India, life expectancy increased from less than 45 years to above 60 years (Gapminder 2015). However health inequalities between and within nations remain. Within China, for example, health status and life expectancy vary according to GDP, access to health care and geographical region, ranging from 71 to 82 years (Liu, Chen et al. 2010, Lin and Carter 2014). The largest variations occur within India, where life expectancy varies between states from 56 years to 74 years (Balarajan, Selvaraj et al. 2011). In all OECD countries life expectancy is over 70 years, whereas across G77 countries life expectancy varies from less than 50 to more than 80 years (Gapminder 2015).

Improved health is attributable to a wide range of factors beyond health care, including improved environment, housing, water and sanitation, urban infrastructure, education, income and food supply. In this respect, supranational organisations, be they health-specific, such as the WHO or development banks and bilateral donors or philanthropies and civil society organizations have made contributions. For example, over the last half century the World Bank’s International Development Association has worked in the world’s 77 poorest countries, advising governments on economic development and coordinating donor assistance for access to drinking water, schooling, employment, electricity and roads (World Bank 2016). More recently Bloomberg Philanthropies have played a significant role in enabling improvements in education, energy supply, food supply, road safety, anti-tobacco efforts, and prevention of obesity (Bloomberg Philanthropies 2015). Oxfam International, since its beginnings as a small community-run organisation in the 1940s in the UK, has become a global confederation of independent non-government organisations, raising awareness and funds to address global poverty and provide access to food, water and education (Oxfam International 2016).

Globally, through the WHO and in partnership with other actors, some particular progress in health status and health governance can be seen:

• The Framework Convention on Tobacco Control encourages strict policy, regulatory, and financing strategies that are addressing one of the most deadly risk factors for health.
• The International Code of Practice on Marketing Infant Formula has highlighted the unethical practices that hinder opportunities for babies to receive the nutrition they need (World Health Organization 1981).
• The International Health Regulations are requiring governments to share information about disease outbreaks and to strengthen domestic capacity to manage them (World Health Organization 2016).
• The eradication of smallpox (World Health Organization 2016); the near eradication of polio through the Polio Global Eradication Initiative, the largest public-private partnership for health involving multiple donors globally, the largest private donor being the Bill and Melinda Gates Foundation (World Health Organization 2015, Polio Eradication Initiative 2016); as well as advances in eradication of measles in partnership with American Red Cross, U.S Centers for Disease Control and Prevention (CDC), United Nations Foundation and UNICEF (World Health Organization 2016); and advances in eradication of malaria through the Global Malaria Programme in partnership with endemic country governments and authorities, UN agencies, National Malaria Control Programmes and multiple inter-governmental organizations, private-public partnerships and campaign groups (World Health Organization 2016).

Beyond these specific efforts, the normative frameworks of the WHO have also been important is providing a vision for social progress, such as the Declaration of Alma-Ata (1978) to promote primary health care and equity, and the Ottawa Charter for Health Promotion in 1986 (World Health Organization 1986) pointing to how a multisectoral approach can support communities taking control over the factors that affect their health.

International organizations, through the UN system in particular, have instigated both health-specific norms and regulations as well as provided broader social frameworks and conventions. The most important instruments for the health of vulnerable populations include the Universal Declaration of Human Rights (1948), the Convention on the Elimination of All Forms of Discrimination Against Women (1980), the Convention on the Rights of the Child (1989), the Declaration on the Rights of Indigenous Peoples (2006), and the Codex Alimentarius International Food Standards (Nations 2016, United Nations Human Rights Office of the High Commissioner 2016, United Nations Human Rights Office of the High Commissioner 2016). These have allowed civil society and health sector actors to work in coalition, advocating to and holding governments to account for addressing problems of health inequity. Following the refugee crisis in Europe in 2015-16, the International Organization for Migration has been officially incorporated into the UN system.

In the years since the new millennium, the UN General Assembly has also adopted a range of resolutions specifically for health, for example, the Declaration of Commitment on HIV/AIDs and the Report on Unhealthy foods, non-communicable diseases and the right to health (United Nations 2014). The Millennium Development Goals had a strong health focus - on HIV, TB, Malaria, infant mortality, and maternal mortality – which allowed donors to coalesce their resources around these specific issues.  The new Sustainable Development Goals (SDGs), adopted in 2015, (United Nations 2016) are providing a stronger global platform in being inclusive of all countries, and not just developing countries, and also embody a social determinants of health framework, that requires a multi-sectoral governance approach.  Furthermore, they recognize that universal health coverage is fundamental to the achievement of equitable and sustainable health outcomes and this will require all countries to work on how to ensure all people and communities have access to needed quality services, ranging from prevention to treatment, without undue financial hardship. Universal Health Coverage (UHC) is one of the key targets under Goal 3 (on health and well-being) of the SDGs and is the platform for various health outcomes. UHC builds from earlier normative work of the WHO, including the World Health Reports of 2000 (Health Systems), 2008 (Renewal of Primary Health Care), and 2010 (Health Systems Financing), and indeed the 1978 Declaration of Alma-Ata (in particular sections VIII – X in relation to national systems, access to primary health care, and social and economic development).

2.6.5 Problems and limitations

  Despite the progress, many challenges remain, relating to health inequality as well as to the processes of global health governance. Underlying the problem of global governance are questions about both who funds global health and the knowledge base for global health.

Reducing health inequalities requires redistributional social and economic policies.  Policy for health care systems is, however, also an important part of addressing health inequalities. The responsibility for improving health and well-being fundamentally rests at the local (and national) level.  The extent to which supranational organizations are able to influence national policies is one limitation. Agreement to global rhetoric is easy while implementation is constrained by complex political and economic forces at work. At the national and local levels, there are powerful commercial interests in all countries and forceful religious influences in many countries. Trade interests may drive governments towards free trade agreements, and potentially sacrificing access to generic medicines (Lopert and Gleeson 2013, World Health Organization 2016).

Global normative frameworks can be important rally points for social movements, at local, national and global levels.  The People’s Health Movement is an example of a global citizen’s network, a monitoring report called Global Health Watch is published every few years, from the perspective of health as a human right requiring cross-sectoral and international policy. The ability of supranational organizations to communicate effectively, if not partner, with civil society to support holding governments to account is one reason behind the limited influence of supranational organizations on national policies. At the same time, some member states are wary about engagement with non-state actors (Lin and Carter 2014, Philanthropy News Digest 2016), for fear of losing the centrality of government and the place of the public sector in global health policy and governance, or for fear of corruption by commercial interests (World Health Organization 2015, Gulland 2016).

The roles played by public and private funders, including bilateral, multilateral, and philanthropic donors, can also create distortions in a country's health system, along with distortions in global health priorities (Lane and Glassman 2007).  Funders are driven by their own imperatives and accountabilities – to the domestic politics of a country, to the passions of wealthy individuals, and to the institutional goals of a funding body.  The short-term need to produce results may lead to improved overall health outcomes but may produce unequal distribution of health within a country.  Underlying factors that produce ill-health, particularly health inequalities, may require longer investment periods than funders wish to do. The focus on vertical programs by high income country donors also distorts the financing for WHO and in recipient countries by creating programmatic silos, often at the cost of focus on creating sustainable and resilient health systems. For example, highly targeted programs such as the US President’s Emergency Plan for AIDs Relief (PEPFAR), the Global Fund for AIDS, TB and Malaria, and the Global Alliance for Vaccines and Immunizations (GAVI) absorb large volumes of funding, as well as human resources, at national and even global levels, which may not reflect the burden of disease in different parts of the world (Fidler 2010).

The dominance of high income countries in the financing of global health and of the WHO also drives the values and knowledge bases that inform the work of global health actors.  Recent managerial tools such as 'pay-for-performance' and 'result-based financing', along with continuing emphasis on monitoring and evaluation indicators (World Health Organization 2016), are all consistent with the neo-liberal 'new public management' frameworks that have dominated the English-speaking developed world (United Nations Research Institute for Social Development 1999, Manning 2001).  The emphasis by the World Bank on results-based financing and rigorous impact evaluation (Lin, Carter et al. 2016 In Press) advantages countries and regions where these approaches are in place or are familiar (World Bank 2010). The push for 'evidence-based health policy' (CDC 2016) (or ‘evidence-based medicine’, or ‘public health’, or ‘health care practice') privileges northern production of knowledge, given the funding and publication of knowledge overwhelmingly occurs in high income countries (McMichael, Waters et al. 2005).  The use of English as the common language of governance further perpetuates the hegemony of high income Anglophone countries.  These cultural barriers are difficult to overcome.

Lack of policy coherence at the global level will also influence the extent of policy coherence at the national level.  Global health agreements reached through the WHO may be inconsistent with trade agreements that governments have also signed (World Trade Organization and World Health Organization 2002).  Access to generic medicines may be central for universal health coverage, but patent protection for the pharmaceutical industry may be a stronger driver for some countries (World Health Organization 2001, Lopert and Gleeson 2013, World Health Organization 2016).  Standards for intake of sugar and fat may have sound scientific basis and be adopted globally, but the trade interests of food and beverage industry may be more important in trade regimes (Friel, Hattersley et al. 2013, Legge, Gleeson et al. 2013).

The early history of global health saw difficulties in agreeing on standards for quarantine due to trade interests (Bashford 2004, World Health Organization 2007, Tognotti 2013). While there have been important progress in communicable disease standards over the 20th century, there is now tension between trade interests and the prevention of non-communicable diseases which exhibit a clear socioeconomic gradient in most countries (World Health Organization 2008, McQueen 2013, World Health Organization 2016).  If the rise of emerging diseases, such as Ebola and Zika, are shown to be related to disrupted ecosystems, then the future of global health is closely tied to global action on climate change (Epstein 2001, World Health Organization 2003, Redding, Moses et al. 2016, United Nations 2016, University College London 2016).

2.6.6 Possible futures

  The WHO and the UN system have been significant contributors to social progress in global health, using a variety of governance tools. The results are nevertheless a culmination of the efforts of many – including member states which champion issues on governance boards, advocates who push their governments to lead on global health issues, public and private financiers who make implementation possible, researchers and teachers who provide the evidence and produce a capable public health workforce. 

Health, at any level, is a collective effort.  It is co-produced by individuals, families and communities with those who intervene, be it at the clinical or policy level, and at local or global levels. The 20th century global health landscape has been shaped by a relatively top-down, paternalistic set of institutions.  This landscape has become complicated in the early 21st century. If the current scenario continues, is further progress possible?

A ‘business as usual’ scenario is possible – perhaps likely – because of the deeply entrenched interests of elites, as major financial donors, setting on the governance bodies as well as those within the institutions.  Insufficient vigilance about the changing global health challenges may well lead to further breakdown of trust and social order, and perpetuate health inequalities within and across countries. A 21st century fit-for-purpose international organization for health must pay greater attention to social inclusion and equity.  This will require both active civil society engagement and consideration of new forms of global health governance.

2.7 Refugees and Migration

2.7.1 The problem of social progress

  There are more than 50 million displaced persons in the world today of which about 20 million are refugees. Of the latter nearly 85 per cent are hosted by states in the Global South. (Gammeltoft-Hansen and Hathaway 2015, 242).

There are two sets of problems refugees encounter today. First, there is the non-entrée regime instituted in the Global North consisting of a number of “traditional” and “new generation” measures. The traditional non-entrée’ measures include visa controls, carrier sanctions, and interdiction on the high seas. The new generation measures involve ‘cooperation based non-entrée’ measures that seek to make countries of origin and countries of transit control migration on behalf of the developed world (Gammeltoft-Hansen and Hathaway 2015, 242). Gammeltoft-Hansen and Hathaway have devised a seven-part typology of new generation non-entrée practices with the objective ‘to insulate wealthier countries from liability by engaging the sovereignty of another country’ (Ibid, 243). These are: ‘reliance on diplomatic relations; the offering of financial incentives; the provision of equipment, machinery, or training; deployment of officials of the sponsoring state; joint or shared enforcement; assumption of a direct migration control role; and the establishment or assignment of international agencies to effect interception’ (Ibid, 243).

Second, there are the inadequate rights and welfare regimes in both countries of the Global North and the Global South. In the Global South refugees ‘face serious violations of their rights and extreme levels of poverty’ (Harrell-Bond 2008, 13). A large number of them ‘are confined in camps and settlements where they are denied freedom of movement…Most spend decades “warehoused” in camps, where life is characterized by sub-nutritional diets, neglect of separated children, sexual and gender-based violence, threats, detention, beatings, torture, and even extrajudicial killings’ (Ibid). The situation in the Global North is as troubling because of regressive measures that include mandatory detention, the lack of right to work, deferred family reunification, and dismal living conditions in camps.

2.7.2 Forced migration: refugees – technologies of governance

  In the Cold War period there was a relatively liberal approach towards refugees as they were seen as propaganda weapons against the former Soviet bloc countries. It saw the adoption of the 1951 UN Convention on the Status of Refugees. The convention defines a refugee and catalogues a range of rights that are to be made available to them. The Convention and/or its 1965 Protocol which removed certain chronological and geographical limits have been ratified by 148 states. At the regional level there are conventions and declarations such as the 1969 OAU Convention on Status of Refugees and the Cartagena Declaration 1984 respectively. These instruments are playing a significant role in providing protection to refugees. Besides, there are legal instruments applicable to asylum seekers at sea including the 1960 International Convention on the Safety of Life at Sea and the UN Convention on Law of the Sea of 1982. Finally, there is international human rights law which complements international refugee law in providing protection to asylum seekers and refugees (Harvey 2015, 43).

In so far as international organizations are concerned, the Office of the UN High Commissioner for Refugees (UNHCR), created in 1950 as a subsidiary organ of the UN General Assembly, has the mandate for providing protection and assistance to refugees that has to be renewed every five years. Over the decades the UNHCR has performed the tasks assigned to it reasonably well (Loescher 2001; Betts, Loescher and Milner, 2012). First, it has taken important normative initiatives that comprise of “conclusions” adopted by its Executive Committee (Milner 2014, 1). Second, the UNHCR has actively provided protection on the ground while facilitating the availability of material assistance. Third, it has helped find solutions to particular refugee flows. Fourth, the UNHCR has played a broad supervisory role assigned to it under the 1951 convention.

There are other non-state actors that play a role in the working of the global refugee regime. These include regional organizations like the African Union (AU), the International Association of Refugee Law Judges (IARLJ), Southern Refugee Legal Aid Network (SRLAN), International Council for Voluntary Agencies (ICVA) and academic institutions like Refugee Studies Centre (RSC) Oxford.

2.7.3 Forced migration: refugees – failures

  The global refugee regime suffers from many weaknesses. At least two need to be mentioned. First, major refugee hosting countries have not ratified the 1951 UN Convention on the Status of Refugees. These include Jordan, Syria, Lebanon, Indonesia, Malaysia, Nepal, Pakistan, and Thailand. Only five countries in Asia have become parties to the 1951 Convention: Cambodia, China, South Korea, and Japan. It is also worth noting that Asia does not possess a regional human rights regime.

The other weakness is that the role of UNHCR is constrained by several factors. First, UNHCR’s mandate has been extended in some situations to include internally displaced persons (IDPs) impacting their protection function (Harrell-Bond 2008, 19). It can also lead to situations where the organization provides assistance to those responsible for persecution of refugees (Loescher, Betts and Milner 2008, 122). Second, there is the problem of voluntary funding which results in the lack of adequate and assured funding for performing its protection and assistance functions. The UNHCR is also far too dependent on funds from the Global North to effectively perform its supervisory role which is also hampered by the lack of clear procedures.

2.7.4 Forced migration: refugees – ecology

  The international refugee regime is principally shaped by powerful states of the Global North which argue that the non-entrée regime is consistent with their legal obligations either under the 1951 Convention or under international human rights law. Refugee Studies is also dominated by scholars and academic institutions located in the Global North and proposed solutions to the global refugee problem tend to exclude the concerns of the Global South (Chimni 2009). At the same time there are a number of progressive researchers who have made out a case for a more liberal asylum regime embedded in international human rights law.

2.7.5 Forced migration: refugees – recommendations

            In order to address the global refugee problem a range of short and medium term recommendations can be gleaned from the literature. First, there must be increase in legal channels of migration through eliminating non-entrée measures (UNHCR 2015). Second, the principle of non-refoulement must be strictly respected. In the instance of mass influx of refugees States must ensure that refugees ‘are welcomed into a safe and caring environment’ (Ibid). Third, there must be institutionalized dialogue between countries of the Global North and the Global South to give effect to the principle of burden sharing addressing both financial and physical burden sharing (Chimni 2001). Fourth, a Refugee Rights Committee must be established consisting of independent legal experts to oversee the implementation of the 1951 Convention. Fifth, an adequate response to the problem of climate refugees must be shaped. There are several possibilities that may be explored including expanding the definition of refugee in the 1951 Convention on Refugees or adopting a protocol on climate refugees to the Geneva Convention. Sixth, there must be initiatives at the regional level. For example in the case of EU ‘a supranational institutional arrangement that guarantees the equitable sharing of responsibilities within the EU’ must be established (Turk 2016, 58). It should create an EU Asylum Authority that would act throughout the territory of the EU. This would include the establishment of an independent EU Asylum Appeals Court, as well as one EU Asylum Code that would cover issues related to substantive and procedural right and standards of treatment (Ibid). Seventh, the root causes of refugee flows should given due attention (UNHCR 2015). In this regard much more needs to be done to prevent conflicts, interventions and wars that are among the root causes of refugee flows (Ibid). Eighth, countries not parties to the 1951 Convention should be exhorted to join it. Ninth, international human right law with its wider scope should be made the primary basis for refugee protection (Chetail 2014, 70-72).

2.7.6 Voluntary migration – problems of social progress

  There were an estimated 232 million international migrants in 2013 (UN 2013, 1). Of these, about 59 per cent lived in the developed regions and 41 per cent were hosted by developing countries (Ibid). The numbers include forced migrants as the definition of “migrants” used includes all foreign born or aliens (Ibid).

2.7.7 Voluntary migration – technologies of governance

  The international migration regime comprises migration policies and programs of individual countries, international norms and practices, interstate discussions and agreements, multilateral forums and consultative processes, and the activities of international organizations (GCIM 2005, 65).

On the international plane a range of legal conventions deal with the rights of migrants in addition to the general human rights treaties. These include the 1949 ILO Convention concerning Migration for Employment (Revised 1949) (No. 97); 1975 ILO Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (Supplementary Provisions) (No. 143); 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families; 2011 ILO Convention concerning Decent Work for Domestic Workers (No. 189); 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air. Besides, there are non-binding UN General Assembly Resolutions which usually call upon states to “promote and protect effectively the human rights and fundamental freedoms of all migrants, regardless of their migration status, especially those of women and children” (UN 2013a).

There are a number of international organizations working in the field of migration. First, there is the International Organization for Migration (IOM) whose principal aim is to assist in “meeting the growing operational challenges of migration management; advance understanding of migration issues; encourage social and economic development through migration; and uphold the human dignity and well-being of migrants” (IOM Mission). Second, a number of forums for the discussion of migration issues have been created that include the International Centre for Migration Policy Development (ICMPD) created in 1993 and the Global Migration Group (GMG) established in 2006 which promote cooperation between states and relevant agencies (Geiger and Pecoud 2014, 866). In 2003 a Global Commission for International Migration was also established with the mandate to ‘provide the framework of a coherent, comprehensive and global response to the issue of international migration’ (Martin 2015, 72). Third, there is WTO whose General Agreement of Trade in Services (GATS) regulates movement of natural persons as one mode of delivery of services. Fourth, there are regional and sub-regional consultative processes such as the Regional Migration Conference (RCM), otherwise known as the Puebla Process, that includes Canada, the United States, Mexico, the Central American countries and Dominican Republic (Martin 2015, 71). Finally, the UN human rights treaty bodies have clarified  the rights of migrants through their General Comments and Recommendations.

2.7.8 Voluntary migration – failures

  The weaknesses of the international migration regime are widely known. First, key conventions like the 1990 Convention on the rights of migrant workers have been ratified by few migrant-receiving states. Second, international cooperation in the area of migration ‘is relatively limited in comparison to many other trans-boundary issue-areas’ (Geiger and Pecoud 2014, 866). It is also ‘lightly institutionalized within the United Nations system’ (Doyle 2004, 4). The IOM ‘remains outside of the UN framework and has no explicitly normative mandate other than as a service provider to states’ (Geiger and Pecoud 2014, 866). These problems give rise to challenges arising from the absence of strong coordinating action or evolving preventive strategies, and finding constructive solutions (Doyle 2004, 4). As a result a central problem remains the absence of legal channels for migration and the lack of respect for migrant rights.

2.7.9 Voluntary migration – ecology

There is no policy area in which states more zealously safeguard their sovereignty than in the area of migration. Mainstream migration scholarship also favors restrictive policies. A number of reasons are advanced in support of this standpoint. First, it is argued that a population with common identity is essential to sustain democratic societies. Second, it is contended that accountability in a world of sovereign states is owed only to citizens and not to non-nationals. Third, it is pointed out that unilateral responses have always been the norm in the framing of policies towards aliens in distress. Finally, it is stressed that control over migration is required in order to ensure homeland security.

On the other hand, progressive scholars argue the case for relatively more open borders. In their view, first, a liberal migration regime only stands to reason in the era of accelerated globalization in which capital, goods and services have become increasingly mobile. Second, it is argued that the recognition of the rights of non-nationals is fundamental to the claim of a society being considered a democratic society (Frost 2003, 109). Indeed, it is imperative that democratic societies ‘incorporate a vision of just membership’ (Benhabib 2004, 3). Third, progressive scholars underscore the contribution of migrants to the economic, social and cultural development of host economies.

Where international organizations are concerned, a case for establishing an International Migration Organization has been made out (Bhagwati 2004, 218). However, others observe that creating a new organization in a contentious area is no easy task (Martin 2015). This is because of the preference of states for national level policies, the absence of legal protection mandate for migrants, the lack of a regular budget, and the reluctance to closely link it with UN (Ibid 79). Therefore, it is recommended that the IOM be given the requisite mandate and resources and be turned into an independent specialized agency of the UN (Martin 2015, 58).

2.7.10 Voluntary migration – recommendations

            The following recommendations can be made to protect the rights of migrants. First, the sovereignty based approach to migration must be replaced by a human rights based approach. Second, migrant receiving states should be called upon to ratify the 1990 Convention on the Rights of Migrant Workers. Third, as against managing migration for member states the IOM should devote more attention to the rights of migrants. Fourth, the ILO should be called upon to play a greater role and think of new ways to protect the rights of migrant workers through enhancing its own resources for that purpose. Fifth, the ongoing dialogue in different forums must be sustained to arrive at viable solutions. Sixth, host states must undertake certain urgent measures including domestic legislation to ensure that the rights of migrant workers are protected, offering in particular legal guarantees against discrimination. Seventh, the concerns of migrant women, as identified by treaty bodies like the Committee on the Elimination of Discrimination against Women in its General Comment No. 26, must be effectively addressed. Eighth, states should be required to actively cooperate to stop smugglers and traffickers from exploiting the vulnerabilities of migrants. Finally, a World Migration Organization should be established with a comprehensive mandate on migration but leaving the UNHCR to deal with asylum seekers and refugees.

3. Conclusions

3.1 Interaction between local and global processes

International organizations are constantly interacting with a wide variety of other international, national, and local organizations, shaping their ability to promote social progress. This variety renders the question of what constitutes social progress open to debate.   At the international level, as this chapter shows, there are myriad regulatory agencies, sets of rules and administrative bodies, treaties and conventions, and organizations that meet more or less regularly to address global problems.   While some international law scholars despair about the fragmentation inherent in these global legal processes, others describe the situation in terms of global legal pluralism and celebrate the openness and opportunity that such diversity and competing rules and institutions provide.  As this chapter shows, both fragmentation and opportunity are characteristic of the modes of governance these international institutions provide.

But this chapter also emphasizes the importance of interactions between international organizations and national and local ones.  To some extent, this is an instance of the intersection of state and civil society organizations.  Despite the common assumption that such organizations are quite discrete and distinguishable, in practice they often blur, with civil society groups sometimes receiving state funding and being tasked with state regulatory functions, while state organizations incorporate the ideas, practices, and personnel of civil society groups.  There is a growing tendency for states to turn their regulatory responsibilities over to private actors as budgets shrink and states seek to minimize their responsibilities.  For relatively poor states, international foundations and donor agencies take on increasingly important roles in local service provision in fields such as health or security, leading to yet more imbrication of state and private action.

One of the most striking dimensions of the role of international organizations in technologies of governance is the way they interact with local communities.  Through the work of international humanitarian agencies, human rights groups, and other social service providers, local communities often come under the direct supervision and influence of international actors.   Poorer states may find their health care, police, and even environmental protection systems administered by international foundations or other international organizations.   While this suggests a loss of sovereignty, on the flip side, local organizations actively appropriate the resources, ideologies, and governance approaches of supranational organizations for their own purposes.    While such purposes may be compatible with those of the international organization, such as compliance with human rights, they may also contradict them. Local actors may use the framework of human rights to promote goals quite at odds with the philosophy of human rights, for example.  International organizations, unless they are donors, have little control over this process.

Finally, as these case studies show, the relationship between the local and the global is not always one of consensus and eager appropriation.  It can also be one of deep resistance. Calls to protect tradition, to preserve religious values, and to return to nationalism and nativism are indications of resistance to supranational orders, ideas, and pressures. As globalization proceeds, such forms of resistance have become more conspicuous, although located more in rural than urban areas. Indeed, new supranational organizations have emerged opposed to the secular, rights-based ones, some based on religious ideas or the creation of a new kind of global order.    It is clearly too simple to see social progress as the global dissemination of supranational ideas and institutions, since while some celebrate this change, others see it as a loss of local distinctiveness, economic and political autonomy, culture, and power. The global/local interaction offers possibilities for social progress in some ways, such as the inculcation of more egalitarian ideologies, but also of social regress as local distinctiveness is swallowed up by homogenizing global institutions.

3.2 Financial issues and role of funding

  Limited funding poses a major constraint to the effectiveness of international organizations. Growing consensus about the importance of leveraging other forms of capital to augment financial resources offer a promising trend to mitigate this challenge. Recognizing and integrating non-financial assets ranging from socio-cultural and political to intellectual capital helps foster local buy-ins for transnational technologies of governance and empower situated communities to engage as stakeholders. In the human rights arena, for example, the contingency of rights on the availability of resources has enhanced international cooperation via bilateral and multilateral funding arrangements to support enforcement. The historic commitments that spurred the MDGs and culminated in the SDGs are based both on revenue-generation and non-financial resources that accrue from institutional experience, knowledge and capacity for example. Instructive insights from efforts to attain the MDGs captured the cogency of collaborative learning, benchmarking and incremental progress in lieu of coercive prescriptivism and potentially alienating confrontations.

Initiatives to augment the vigor, deliverables and social returns on investments of global partnerships aimed at circumventing the causes and consequences of depravations coincide with reactionary national politics which oppose foreign aid. Controversies which fuel backlash against support for international organizations illuminate the imperative to raise the threshold of literacy about these institutions among local constituencies. This is especially given objective evidence that foreign aid typically constitute less than one percent of the GDP of contributing state that appropriate disproportionate power to exercise hegemony under the guise of transnational technologies of governance.

Recurrent funding constraints underscore the importance of institutionalizing systematic strategies to generate revenue to defray the overheads of international organizations and advance substantive technologies of governance. Many organizations have accumulated a wealth of knowledge, experience, convening power and the like that could fetch significant income from an array of fee-for-service products. In contexts marked by fragile and failing state sovereigns, civil society organizations make notable strides in forging partnerships across sectors to test and scale interventions that buttress evidence-based policy and operational models. NGOs like BRAC are gradually becoming self-sustaining by evolving profitable social enterprises which wrap around ecosystems that underwrite expenditures and equip program participants to grow into strategic change agents for progress. Equally noteworthy are increasing business sector involvement exemplified by private-public partnerships, corporate social responsibility, and the rise in philanthropic vehicles. By the same token, the growing significance of diaspora engagements and indigenous resource mobilization mechanisms augur well to strengthen the enabling environment for the effectiveness of useful transnational technologies of governance.

These trends dovetail with heightening interests in the devolution of relevant powers, authorities, and processes for fertile state-society collaborations that in turn galvanize the agency of the irreducible human subject. The significance of re-imagining state-society relations to democratize the agency for reform, invigorate popular sovereignty, spur the power of ordinary citizens, and empower respective polities to proactively drive their own destinies is amplified by contemporary challenges in the contemporary epoch of globalization. This is more so in political economies where dominant iterations of Westphalian sovereignty exacerbate quandaries which dramatically demonstrate the incongruity of primarily relying on dysfunctional and considerably hamstrung state parties to operationalize international obligations.

3.3 Cognitive frameworks for global modes of thinking

Technologies of governance, such as indicators (compilations of data that provide tools for measuring a particular phenomenon), compilations of best practices, model laws, and court rulings, generate and impose particular ways of seeing the world. These cognitive categories may seem to be objective and universally applicable in the context of global governance, but they have been developed by epistemic communities of economists, lawyers, development experts, aid workers, and statisticians to make the world visible, knowable, and governable. We come to know and understand such phenomena as human rights, climate change, innovation and cultural production, immigration, health, and national security in terms of the economic, legal, or technical frame that international organizations have applied. This may facilitate the creation of policies and programs, enable communication across agencies and institutions, and make it easier for methods and findings to travel from one context to another. However, it also limits our vision and privileges particular kinds of expertise.

  International organizations derive influence from the epistemic clout of their technical expertise. By framing an issue as technical, organizations are able to exert power over international and domestic political processes and, in the process, may shield political decisions from democratic scrutiny. Indicators, such as those that measure corruption or human rights abuses, reflect decisions about which variables organizations have decided to include, which they have left out, and how such variables should be measured. As numbers, indicators give the appearance of objectively measuring preexisting phenomena. Yet they reflect a particular normative view of the world, one that obscures the choices made when constructing the indicator.

Shared cognitive frameworks also function as a glue that holds international organizations together and allows them to function cohesively in a diverse institutional ecology. Highly specialized organizations may appear to be acting independently, but they in fact inhabit a densely populated space in which they interact constantly with one another. Commonalities in the language and practices of expertise facilitate communication among the staffs of different organizations, as well as their processes of data collection and the standardization of practices. As such, these frameworks provide stability and coherence in international work. However, this shared cognitive frame may make other ways of knowing invisible and contribute to a culture of elitism that gives greater recognition to the knowledges and practices of more powerful nations in the global North. It may also further marginalize members of groups that do not have access to technical experts who can participate in these specialized conversations and represent and communicate the groups’ interests.

International organizations can raise awareness of, and propagate local knowledges from, other parts of the world. They can draw attention to successful innovations at the national, regional, or community levels and devise methods to replicate these practices elsewhere. However, these frameworks can also simplify, homogenize, and force the world to adhere to categories that deny its complexity. Factoring in the role of cognitive frameworks in knowledge production therefore seems crucial to understanding the ways in which international organizations may hinder or promote social change.

3.4 Accountability for international organizations

  Many calls for more accountability are made towards and within international organizations; the distance from popular democracy and domestic accountability mechanisms, the lack of transparency of financing, the structural and gendered biases are among often heard charges. The scope of their activities, the sheer vastness of the global arena, the multicultural and pluralist staffs, locales and goal-settings make management and other oversight different from monocultural situations. Accountability is, however, no singular issue and certainly no panacea for controversies and shortcomings stemming from the aforesaid. Accountability mechanisms seem particularly weak in the face of structural problems and collective responsibility.

Internal accountability mechanisms of international organizations include financial control, internal control and audit that focus on economy, efficiency and effectiveness. Large international organizations may have an audit court (e.g. the EU), an administrative court (e.g. the UN) and other oversight bodies to which organs and agents report periodically. For instance, the UN General Assembly receives some 70 reports from internal bodies annually. Organizations may also have a permanent ombudsperson or mission-specific ones (e.g. UNMIK). Human rights courts and bodies also offer legal accountability in cases of grave violations of human rights.

The limits of the formal accountability mechanisms often derive from the high transaction costs, lack or difficulty of access to them – because of insufficient knowledge or other resources required. Even if appealed to, most accountability institutions – e.g. ombudsperson offices and human rights bodies – are often flooded with cases. The most important accountability ’mechanism’ may, therefore, be a healthy organizational culture and managerial commitment rather than any of the formal tools. Member states and media also scrutinize organizations although the interest is much weaker than in case of domestic organs.

One widely discussed example of the accountability problematique in the case of international organizations is the one related to the sexual exploitation of local women and girls by UN peace personnel. The issue finally prompted the UN Secretary-General to issue a ‘Zero-Tolerance’ Bulletin (2003). The Bulletin, while heralded by some, was also criticized. It was seen as individualizing responsibility and prohibiting sex in all circumstances whilst failing to recognize the complex and difficult political economies of peace operations in conflict areas. It was criticized for diverting attention from the general failures of peace support, such as lack of creation of economic opportunities for locals, specifically, for women and girls, for reinforcing conservative attitudes and local religious elites, and ignoring the problems that derive from the hegemonic masculinities of UN humanitarianism, the structural biases of the operations, the UN and international institutional life at large.

Accountability mechanisms are important but, as in the above case, they typically focus on individual responsibility rather than prompting structural reforms in complex political economies. Different accountability mechanisms need to be supported by a responsive organizational and managerial culture in order to avoid the pitfalls of superficial accountability.[8]

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[1] Affiliations : University of Melbourne and the Australian National University; New York University

[2] Affiliations : Jawaharlal Nehru University ; Universidad Diego Portales ; American Bar Foundation ; University of Turku ; World Health Organization ; Indiana University ; University of Arizona ; Universidad de los Andes ; University of California, Irvine ; Universidad de los Andes

[3] Affiliations : Harvard Law School

[4] Compare the count of 136 intergovernmental organizations and 980 international non-governmental organizations in 1956 with at least 7,757 intergovernmental organizations and 60,272 international non-governmental organizations at present (UIA Yearbook of International Organizations 1956-1957, 2015-2016).

[5] According to COP21 “The Paris Agreement shall enter into force on the 30th day after the date on which at least 55 Parties to the Convention accounting in total for at least an estimated 55 % of the total global greenhouse gas emissions have deposited their instruments of ratification, acceptance, approval or accession with the Depositary.” Although, at the time of writing, only 22 of the 197 states parties to the Convention (representing just 1.08 per cent of the total global greenhouse gas emissions) had ratified COP21, the expectation is that the agreement will, in the end, enter into force.

[6] These are effectively the sort of emission reduction plans that many countries had already developed before the Paris meeting.  Of the 197 states that participated in the drafting of the Paris agreement, 187 committed to elaborate INDCs,

[7] Kriebel et al. (2001) identify four features of the precautionary principle “taking preventive action in the face of uncertainty; shifting the burden of proof to the proponents of an activity; exploring a wide range of alternatives to possibly harmful actions; and increasing public participation in decision making.”

[8] Foundation Center, Advancing Human Rights: The State of Global Foundation Grantmaking.