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Beyond the Monopoly of States GARTNER.DOC 1/13/2011 7:04 PM BEYOND THE MONOPOLY OF STATES DAVID GARTNER* ABSTRACT In the twenty-first century, a wide range of complex global challenges will require unprecedented levels of global cooperation between states and non-state actors. Yet few leading international institutions today are designed to effectively leverage the resources, ingenuity, and connectivity of diverse societal actors. While some scholars maintain the view that civil society should not meaningfully participate in the governance of international institutions, a new generation of multi-stakeholder institutions points to a new way of understanding the relationship between non-state actors and international institutions. This article examines the role of civil society in the governance of international institutions and highlights this new generation of multi- stakeholder institutions that involve non-state actors as full participants in governance. It applies insights from work on associative democracy to suggest a new approach to evaluating civil society participation within international institutions. * Associate Professor of Law at Arizona State University Sandra Day O’Connor College of Law. J.D. Yale Law School; Ph.D. Massachusetts Institute of Technology. Thanks especially to Douglas Sylvester, Laura Dickinson, Kenneth Abbott, Dan Bodansky, Aaron Fellmeth, Lesley Wexler, Kristen Boon, Jacob Cogan, Ian Johnstone, Steve Charnovitz, Ian Hurd, Jonathan Koppell, Andrew Hessick, Carissa Hessick, and Zachary Kramer for their helpful comments as well as to the participants in the American Society of International Law-International Organizations Section Workshop, the Sandra Day O’Connor College of Law Faculty Workshop, the School of Public Affairs Research Colloquium at Arizona State University, and the Rocky Mountain Junior Scholars Conference. 595 Published by Penn Law: Legal Scholarship Repository, 2014 GARTNER.DOC 1/13/2011 7:04 PM 596 U. Pa. J. Int’l L. [Vol. 32:2 TABLE OF CONTENTS 1. INTRODUCTION ............................................................................596 2. THE MONOPOLY OF STATES APPROACH ...................................599 2.1. Theory Grounded in Twentieth Century Practice .................609 3. TWENTY-FIRST CENTURY INSTITUTIONS ...................................615 3.1. From Governance to Impact ..................................................622 4. BEYOND THE MONOPOLY OF STATES .........................................629 4.1. Reconciling Theory and Practice ...........................................634 5. CONCLUSION ...............................................................................639 1. INTRODUCTION In the twenty-first century, a wide range of complex global challenges will require unprecedented levels of global cooperation. However, most of the international institutions we inherited from the last century were designed only to promote cooperation among states in the context of a very different world in the wake of World War II. Sixty-five years later, many of today’s biggest challenges can no longer be managed or solved by states alone, but instead require the resources, ingenuity, and connectivity of diverse societal actors. A new generation of institutions is increasingly harnessing the energies of civil society organizations1 and other non-state actors through multi-stakeholder forms of governance. The governance of international institutions and the expanding role of these institutions in responding to key global challenges has become a resurgent area of research interest.2 However, a number 1 See John Gerard Ruggie, Reconstituting the Global Public Domain—Issues, Actors, and Practices, 10 EUR. J. INT’L REL. 499, 522 n.1 (2004) (defining civil society organizations (“CSOs”) as “transnational social movements, coalitions, and activist campaigns as well as formal non-governmental organizations”). 2 See generally JOSÉ E. ALVAREZ, INTERNATIONAL ORGANIZATIONS AS LAW- MAKERS (2005); ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER 10, 18 (2004); Kenneth W. Abbott & Duncan Snidal, Why States Act Through Formal International Organizations, 42 J. CONFLICT RESOL. 3, 29 (1998); Kenneth Anderson, Book Review: Squaring the Circle? Reconciling Sovereignty and Global Governance Through Global Government Networks, 118 HARV. L. REV. 1255, 1311 (2005); Daniel Bodansky, The Legitimacy of International Governance: A Coming Challenge for International Environmental Law?, 93 AM. J. INT’L L. 596 (1999); Steve Charnovitz, Nongovernmental Organizations and International Law, 100 AM. J. INT’L L. 348, 372 (2006); Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J 1490 (2006); Andrew T. Guzman, Global Governance and the WTO, 45 HARV. INT’L L.J. 303 (2004); Laurence R. Helfer, https://scholarship.law.upenn.edu/jil/vol32/iss2/4 GARTNER.DOC 1/13/2011 7:04 PM 2010] BEYOND THE MONOPOLY OF STATES 597 of theorists remain skeptical that civil society should play a significant role in the governance of international institutions.3 This article argues that involving civil society in the governance of international institutions is increasingly necessary and that the traditional approach of consultation is inadequate to catalyze their potential contribution to these institutions. Instead, multi- stakeholder forms of governance, which are features of a number of twenty-first century institutions, will be increasingly critical to the success of many international institutions. Civil society groups are becoming key actors in a wide range of international arenas that were formerly the exclusive province of states and increasingly viewed as essential actors in many of these areas. Few people would suggest today that contemporary global challenges in areas such as climate change or global health can be solved by states alone without the extensive participation of non- state actors. Thus far, relatively few scholars have examined a new generation of twenty-first century international institutions that are moving away from exclusively intergovernmental structures and towards multi-stakeholder partnerships where non-state actors are full participants in governance.4 Most work on civil society Understanding Change in International Organizations: Globalization and Innovation in the ILO, 59 VAND. L. REV. 649 (2006); Robert O. Keohane & Joseph S. Nye, Jr., Between Centralization and Fragmentation: The Club Model of Multilateral Cooperation and Problems of Democratic Legitimacy 4–6 (John F. Kennedy Sch. of Gov’t, Harvard Univ., Working Paper No. 01-004, 2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=262175; Benedict Kingsbury et al., The Emergence of Global Administrative Law, 68 LAW & CONTEMP. PROBS. 15 (2005); Kal Raustiala, The “Participatory Revolution” in International Environmental Law, 21 HARV. ENVTL. L. REV. 537 (1997); Ruggie, supra note 1, at 499. 3 See, e.g., Kenneth Anderson, Global Governance: The Problematic Legitimacy Relationship between Global Civil Society and the United Nations (Am. Univ., Wash. Coll. of Law Research Paper Series, Paper No. 2008-71, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1265839 (arguing that non- governmental organizations (“NGOs”) do not possess sufficient democratic qualities to play a legitimate role in global governance); John R. Bolton, Should We Take Global Governance Seriously?, 1 CHI. J. INT’L L. 205, 217 (2000) (“[I]t is precisely the detachment from governments that makes international civil society so troubling, at least for democracies.”); Martin Shapiro, Administrative Law Unbounded: Reflections on Government and Governance, 8 IND. J. GLOBAL LEGAL STUD. 369 (2001) (arguing that NGOs are epistemic communities that develop rules through opaque processes that do not involve the participation of voters). 4 See, e.g., Kenneth W. Abbott & Duncan Snidal, Strengthening International Regulation Through Transnational New Governance: Overcoming the Orchestration Deficit, 42 VAND. J. TRANSNAT’L L. 501, 577–78. Published by Penn Law: Legal Scholarship Repository, 2014 GARTNER.DOC 1/13/2011 7:04 PM 598 U. Pa. J. Int’l L. [Vol. 32:2 participation within international institutions has primarily focused on the practice of twentieth century institutions, which significantly informs the conclusions that many theorists draw about the role of non-state actors in governance.5 Innovative twenty-first century institutions, in areas such as global health, are demonstrating that multi-stakeholder governance can be extremely successful and increasingly undermining the logic of those who reject the idea of moving beyond exclusively inter-governmental arrangements. A rich literature on associative democracy, which is usually applied to national contexts, offers fresh insights into some of the key design challenges facing these multi-stakeholder institutions in terms of enhancing the contribution of civil society actors.6 Section 1 examines the theoretical objections raised by scholars to the inclusion of civil society actors in the governance of international institutions. It seeks to understand these objections in the context of the practice of leading international institutions, such as the United Nations and the Bretton Woods Institutions. Section 2 highlights a new generation of institutions challenging the traditional view that states are the only legitimate actors within international institutions. Section 3 applies insights from associative democracy theorists and develops an approach to evaluating civil society
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