CHAPTER 13 Global governance: old and new challenges Balakrishnan Rajagopal* I. Introduction cal factors.1 Indeed, it was realized from the begin- ning of the articulation of the right to development The current world economic crisis has high- in the 1980s that its achievement hinged on deep- lighted a profound challenge to conventional thinking rooted transformations in the authorities, institutions on and approaches to human rights, especially the and processes of decision-making at multiple levels right to development. Human rights, primarily eco- within which nation States pursued their development nomic and social rights, are based on a theory of goals. These levels were not only national and inter- constant expansion of the economic pie for all, and national but also sub-State and within social systems the right to development is explicitly predicated on the in constant interaction—in other words, a transforma- idea of the nation State leading the ever-increasing tion of global governance rather than simply interna- process of economic and social well-being of its citi- tional governance. It is in this sense that I use the term zens through international cooperation and solidarity. “global governance” instead of seeing “global” as the These assumptions have never been more under chal- arena beyond/outside the State and “governance” as lenge than now: perpetual world economic expansion a one-dimensional exercise of authority rather than an is under threat; the real wealth of the world—not just interactive one among layers of decision-making. In the economic wealth—may be shrinking rather than this chapter, I analyse the older, inherited challenges expanding; economic and social well-being are more of global governance to the realization of right to and more undermined for the most vulnerable popula- development and emerging new challenges, which tions of the world; the role of the nation State is more have become apparent. and more contested as a vehicle for development; and the international community is more divided than ever. The challenge of who is accountable for these worsening outcomes and who will be responsible for ensuring a different and more sustainable future are central questions of governance and, for the purposes of this chapter, of global governance. The right to development could provide a framework for tackling 1 The idea that the right to development needs to be rethought without be- these questions if it is reoriented to include dimensions ing abandoned is something I have expressed in many ways before. See Balakrishnan Rajagopal, International Law from Below: Development, So- of limits imposed by social, environmental and politi- cial Movements and Third World Resistance (Cambridge University Press, 2003), pp. 219-230. The idea that development and the right to develop- ment have natural and ethically imposed limits, for environmental, social * Associate Professor of Law and Development, Department of Urban Stud- and political reasons, is inspired by many, including Ivan Illich, Tools for ies and Planning, and Director, Program on Human Rights and Justice, Conviviality (Marion Boyars,1973), who elaborated the thesis of limits Center for International Studies, Massachusetts Institute of Technology, with respect to modern industrial society. On more of this, see below, United States of America. section IV.D. 170 REALIZING THE RIGHT TO DEVELOPMENT | Understanding the right to development II. The right to development and the misery of the poor is in fact a “planned misery”, 5 global governance: some as Susan Marks has called it. preliminary considerations The two above radically opposing views on the nature of globalization and its relationship to human A. The relationship between development, rights have a fundamental impact on how we think globalization and human rights about global governance. If we start from the premise that globalization is essentially benign in its impact Human rights have been brought to bear on glo- on the weak and subalterns, and the problem is one balization in recent years insofar as decisions made at of lack of adequate insertion of the poor into global the meta-State levels—in international organizations, markets, circuits of capital and culture, the reform of foreign Governments and private networks—affect the global governance yields one set of proposals.6 Those fundamental human rights of ordinary people around may include the further democratization of interna- the world, who have little say in making those deci- tional organizations by increasing the voice of devel- sions. A traditional understanding of human rights oping countries in their governance, increasing the as the rights of citizens of a single State to whom participation of civil society in global governance and that State owes corresponding obligations became imposing and enforcing obligations against private increasingly untenable as the model of accountability entities and so on. and justice in a world in which the source of violations and the remedy for them appeared to arise beyond However, if we start from the premise that glo- the traditional regulatory competence of such States. balization is a problematic project because it has a A usual call by human rights policy advocates has structural bias against the weak and the poor and the relied on the idea that globalization can be tamed by vulnerable which is hard to separate from its logic human rights, by more participation in the processes of production, consumption and distribution, one of decision-making2—usually in the form of civil soci- must then address a different set of reform proposals ety—or by developing new norms that impose obli- regarding global governance. Such reforms may be gations, which include extraterritorial obligations on more far-reaching and fundamental than any which States for the conduct of non-State actors.3 The idea is are currently on the global agenda. They might include that there is nothing basically wrong with globaliza- fundamental changes to the way markets, finance and tion except that the weak and the vulnerable get little governance are organized at multiple levels and call of its benefits and most of its burdens. The idea is that for sharp augmentation of the capacity for solidarity, if we can tweak, change, humanize globalization, we collective action and self-governance. There is noth- can then have it all. Many influential writers such as ing inherent in the right to development that makes us Joseph Stiglitz articulate this view, which I shall call choose one view over the other, but the politics of that the dominant view.4 right, and of other human rights, especially the strug- gle for economic and social rights, may yet determine It is fair to say that this assumption is not uni- such a choice. versally accepted. Many scholars and practitioners believe that, in the light of our experience with devel- It is imperative to bear this structural dimension opment and globalization, human rights violations in mind as we approach global governance from the are often essential for the production and reproduc- perspective of the right to development. tion of wealth and productivity in the economic sense. In this view, the violation of human rights is often part and parcel of what we call successful development or B. The shift from government to globalization. Such a view maintains that in fact it is governance not the denial of development or the exclusion from The second issue that we must consider regarding globalization that causes human rights violations and global governance is the meaning of the term “govern- economic and social deprivation in general, but that ance”. Implied in it is a rejection of the term “govern- 2 See “Analytical study of the High Commissioner for Human Rights on the fundamental principle of participation and its application in the context 5 See Susan Marks, “Human rights and root causes”, The Modern Law Re- of globalization: report of the High Commissioner” (E/CN.4/2005/41). view, vol. 74, Issue 1 (January 2011), pp. 57-78. There is a long line of 3 See the Maastricht Principles on Extraterritorial Obligations of States in thinking and writing that echoes this across several disciplines, most recent- the area of Economic, Social and Cultural Rights of 28 September 2011, ly captured through the post-development critique. available from www.maastrichtuniversity.nl, and the expert commentary of 6 An example of this, which concludes by advocating reform of international 29 February 2012, available at http://209.240.139.114/wp-content/ governance, is Paul Collier, The Bottom billion: Why the Poorest Countries uploads/2012/03/maastricht-principles-commentary.pdf. are Failing and What Can Be Done About It (Oxford University Press, 4 See Joseph Stiglitz, Making Globalization Work (W.W. Norton, 2006). 2007). Global governance: old and new challenges | PART TWO 171 ment” as the appropriate frame. Indeed, a shift from nized as central to development success12 while the “government” to “governance” has been one of the need to ensure the accountability of States through signal shifts of the post-cold war consolidation of neo- human rights and democracy is also well recognized. liberal democracy on a global scale.7 This shift, which Where one or the other is missing, it has produced occurred in the literature on international relations, is undesirable, and often violent, social consequences. distinct from but related to the shift to the language of The recent rise of global protests and instability is a “governance” in new governance theory8 as well as consequence. to “good governance” in the development field.9 The common ground between the first two senses of the An approach to global governance must begin term “governance” is that a government-centred reg- by clarifying what one means by governance and, in ulatory approach to effectiveness and legitimacy of particular, whether it is related to “good governance” functioning social and economic systems is no longer with its anti-third world government ideology.