The quest for supranational institutions: an out of tune choir?
The adequacy of the nation-state as an instrument to face the most pressing problems of our time is increasingly called into question by scholars of different disciplines. The idea that the political, legal, and socioeconomic phenomena often grouped under the label of ‘globalisation’ challenge ‘established patterns of territorially-based governance’Footnote 1 has hardly received as much attention as in the last twenty years. Global market regulation, international crimes, and climate change, to name but a few, are considered to be too complex challenges to be dealt with by states alone. In order to address such issues, scholars have proposed a wide array of international institutional solutions. It is therefore tempting to jump to the conclusion that the different voices denouncing the crisis of the state are concerned with the same cluster of problems and call for similar solutions. We would like to resist this temptation. We share part of the concerns raised by the inability of the state to face new challenges; however, we also believe that the various problems related to the inadequacy of the state should not be addressed as an undistinguished lump.
Our scepticism is twofold. Firstly, we do not think that all the problems on the table are of the same kind. Different arguments are concerned with features of the state that are deemed inadequate for different, and in some cases opposite, reasons. For instance, whereas the case for the internationalisation of criminal law is mostly grounded in the conviction that individuals ought to be protected from the excessive power of national institutions – and thus identifies the state as the source of the problem – the argument in favour of a stronger regulation of global markets is based on the idea that international institutions should support states in exercising important problem-solving capacities – such as the regulation of economic phenomena and the provision of welfare rights to their citizens – which they can no longer successfully exercise under circumstances of globalisation. Secondly, we believe that the corresponding solutions to these problems are different, in that they might call for the establishment of institutions with different scope, functions, and powers.
In order to keep the argument sufficiently simple, we are going to focus on two issues: criminal law and socioeconomic justice. The two areas are so central to both current debates on globalisation and, conversely, shared ideas about why states are valuable and necessary, that we believe our argument to be of sufficiently general interest.
The article unfolds as follows. The second section provides an overview of the quest for internationalisation in criminal and socioeconomic justice, and highlights some prima facie analogies between the two. The third section examines current forms of international governance in the two areas, and argues that they are unsatisfactory. The fourth and fifth sections assess the idea of a cosmopolitan solution to both problems and argue that, whereas the transnational challenges to socioeconomic justice can only be addressed by institutions that are global in scope (though limited in competence, and therefore not cosmopolitan properly speaking), the creation of a global rule of criminal law would generate more problems than it would solve: a supranational, but regional solution is more appropriate in the criminal case.
The cosmopolitan temptation in criminal and socioeconomic justice
The choice of criminal and socioeconomic justice as objects of our analysis is motivated by two complementary reasons. On the one hand, both areas are central to traditional understandings of the very point of the state: administering criminal justice to guarantee public order and protect rights, and regulating socioeconomic cooperation to make sure that those participating in it have fair standing and returns, are two of the central justifications of the existence of the coercive apparatus of the state. On the other hand, the connection of these two tasks with the state and the state only is increasingly challenged. Hence, the trajectory of the two areas so far has been significantly parallel, and showing where parallelism should end is therefore all the more interesting. This section briefly describes the parallel trajectory.
The case for an international criminal court
Criminal law is a central feature of state sovereignty. Since it received its classical shape during the modern era, the power to punish its own citizens has been one of the most important functions of the state. Criminal law is meant to protect the peaceful living of individuals in a community and, at the same time, it is the most coercive power the state can impose upon its citizens, which could go as far as taking their lives. No wonder, then, that when criminal law is concerned states are extremely reluctant to resign their power in favour of supranational institutions. During the last century, however, scholars have started to challenge the view of criminal law as an exclusive state prerogative and to call for the internationalisation of criminal justice. In particular they have been concerned with ‘international crimes’, a category whose boundaries are still controversial, but which is universally recognised as including at least aggressive war, genocide, crimes against humanity, and war crimes. International courts, so the argument goes, are the most appropriate fora to deal with these crimes for two reasons.
First, international crimes are committed by, or at least with the support of, a state or a state-like organisation. For instance, a war of aggression needs an army to be waged, and crimes against humanity are typically committed through ‘an abuse of state power involving a systematic inversion of the jurisdictional resources of the state’.Footnote 2 Since the state is involved in the perpetration of these crimes, there is no hope that it will punish the perpetrators, at least where no leadership turnover has occurred. Leaving state sovereignty intact means granting impunity to the perpetrators.Footnote 3
Second, advocates of international criminal law contend that increasing global interdependence has brought about the creation of a world-wide international community with shared interests and values. At the core of these values are the ‘peace, security and well-being of the world.’Footnote 4 Since international crimes threaten these universal basic values, their perpetration is an outrage to the whole international community and they therefore ought to be judged by international courts.Footnote 5
The case for global economic institutions
Socioeconomic justice, understood as the just allocation of the burdens and benefits of socioeconomic cooperation, has also been traditionally understood as a distinctively domestic affair. This has been grounded in two sets of reasons:
1. Socioeconomic justice sets the basic terms of socioeconomic cooperation, and it therefore applies only to those who already engage in it, namely people living under the same political, social, and economic institutions;Footnote 6
2. Demands of socioeconomic justice only apply among people who are commonly subject to a coercive order which they impose upon each other. The joint imposition of this order requires justification, and such justification, as argued by several theorists,Footnote 7 can best be given by making sure that the coercive institutions will have a (roughly) equal impact on, or at least greatly benefit, all the authors/subjects of the scheme.
This picture, however, is challenged by two considerations. Firstly, the increasingly international character of the production and distribution of goods renders claim (1) questionable. If goods are produced in a country, assembled in another, and commercialised in a third one, we can no longer maintain that justice-relevant socioeconomic cooperation only takes place between those who share the same nationality or residence.Footnote 8
Secondly, if global forces and phenomena (transnational corporations, tax competition, world trade) have an increasing impact on state policies, it no longer makes sense to say that socioeconomic justice is only required within the state because it and it only coerces us, as claim (2) suggests. This calls into question the adequacy of the state as a problem-solver in socioeconomic matters under conditions of strong global interdependence. For example, tax competition is triggered by competition between states in attracting capital, companies, and skilled labour by offering attractive tax options. Once it starts, so the story goes, states are heavily pressurised into lowering their taxes to retain capital and labour, but in so doing they deprive themselves of public revenues, and consequently of the resources that are necessary to realise social justice.Footnote 9 Some scholars, moreover, claim that tax competition erodes the problem-solving capacity of states even if it does not generate a race to the bottom, for it nevertheless pushes countries towards a problematic rigidity and uniformity in their tax policies.Footnote 10
Hence, the deliverance of (some aspects of) both criminal and socioeconomic justice seems to have become too complex an affair to be dealt with by states alone. The next section briefly examines the existing solutions to these two sets of problems.
Current forms of international governance in the criminal and socioeconomic domain
Can international criminal law carry out its purposes?
The claims in favour of the internationalisation of criminal justice have been remarkably successful, and international criminal law is today a reality. At the end of the Second World War, the Nuremberg and Tokyo tribunals were created to punish high-ranking state officials of the European Axis and in the Far East who had planned, ordered, and committed specific international crimes. Half a century later, two further international tribunals were created to deal with the crimes committed in former Yugoslavia from the start of the war in Bosnia in 1991 (the International Criminal Tribunal for former Yugoslavia, ICTY) and in Rwanda during 1994 (the International Criminal Tribunal for Rwanda, ICTR). Finally, in 1998 the International Criminal Court (ICC) – whose scope is not limited to a particular area or conflict, but is in principle universal – was established.
We would like to suggest, however, that the current system of international criminal law is neither truly effective in putting an end to impunity for international crimes, nor an authentic expression of universal values, as the above presented arguments claim. We shall firstly turn our attention to the ‘end of impunity argument’, which stresses the uselessness of national criminal systems in dealing with international crimes; and then address the ‘common-values argument’, according to which the current system of international criminal law expresses the common interests and values of the global international society.
I. As to the ‘end of impunity argument’, one should ask whether the current system of international criminal law is able to punish the perpetrators of international crimes – even the powerful ones – with a sufficient degree of comprehensiveness, certainty, and uniformity.
The history of international criminal law seems, so far, to contradict this assumption. International criminal law has been characterised by a marked selectivity, which is evident at three levels. Firstly, there is a form of explicit constitutional selectivity, declared in the statutes of international tribunals, whose jurisdiction is not universal as to the territorial and personal domains involved. This is manifest in the case of the Nuremberg and Tokyo Tribunals, the ICTY and the ICTR. The case of the ICC is different, but its jurisdiction is still not universal, for it only applies to the territory and citizens of the states that ratified its statute.Footnote 11
Secondly, there is a form of ‘operational’ selectivity, which is not always declared in the statutes of the tribunals, but which has consistently inspired their practice.Footnote 12 International tribunals only focus on individuals who were at the top of their countries’ political and military hierarchies at the time when the crimes were committed. In this case, as in the first kind of selectivity, the tribunals do not hide their selectivity. Indeed, the choice is justified as a strategic option motivated by the impossibility to prosecute all perpetrators of international crimes.
Finally, there is a third kind of selectivity, which differs from the first two because it contrasts with the official content of the statutes. This selectivity is nevertheless apparent in the practice of international criminal courts, which, so far, have systematically excluded from their activity every case that could prove the responsibility of powerful countries in committing international crimes. The ICTY, for instance, chose not to investigate on the NATO bombing campaign over Yugoslavia in 1999, although it received several referrals on killing of civilians and bombing of civilian targets, like the Chinese Embassy and the TV headquarters in Belgrade.Footnote 13 The ICC has so far focused only on cases involving African states: Central African Republic, the Democratic Republic of the Congo, Uganda – who voluntarily referred their cases to the ICC – and Sudan under the initiative of the UN Security Council. On the other hand the ICC refused to open investigations on the war waged by the International Coalition composed of Australia, Poland, the UK, and the USA against Iraq in 2003, notwithstanding several referrals received.Footnote 14 The representatives and citizens of the most influential states are not prosecuted by international courts, even if no formal impediment applies.
These three kinds of selectivity show that the end of impunity is neither consistently pursued, nor practically realised, by international tribunals. Instead, international courts are interested in, and suitable for, prosecuting only a small amount of those who are responsible for international crimes, who are selected on the basis of the position they occupied in the hierarchies of their states, their nationality, and the place where the alleged crimes were committed. As the third kind of selectivity particularly shows, the need to punish ‘the powerful’, which mainly motivated the creation of international criminal law, is not fulfilled, either. International criminal law simply transfers the problem from the national to the international level. Those who enjoy impunity in this case are not the powerful within the state, but some powerful states. Hence, turning the ‘end of impunity argument’ upside down, one could suggest with Gary Bass that: ‘a few war criminals stand for a much larger group of guilty individuals. Thus, what is billed as individual justice actually becomes a de facto way of exonerating many of the guilty.’Footnote 15
II. As to the ‘common values argument’, in the next section we shall touch on whether an ‘international community’ actually exists. Here we shall only ask whether international criminal law is currently perceived as embodying universally shared values, on the basis of the actual level of adhesion to it.
The ICC is the most interesting case in this respect, because its statute is at least theoretically open to universal ratification. However, among the roughly 200 existing states, only 117 ratified it.Footnote 16 If the consensus per se could be considered sufficiently widespread, although far from being universal, the geographical distribution of states is telling. So, for instance, Europe is the most represented region, with more than 40 states being members of the ICC, while only two states from the Middle East and North African Region (Jordan and Tunisia) ratified it. China, the most populous country in the world, has not ratified the ICC Statute, nor have India, Russia and the US.
Some of the states that have not ratified the ICC Statute expressed their motivation in official declarations. So, for instance, China and India expressed their doubts as to the effective universality, impartiality, and independence of the ICC. China emphasised the need for an election policy of ICC judges so as to be representative of the various regions of the world.Footnote 17 Among the reasons that brought India to the decision not to ratify the ICC statute are concerns as to how Indian criminal proceedings would be judged by the ICC. The Indian criminal system departs from the Western criminal model adopted by the ICC in many respects.Footnote 18 Algeria and Syria, finally, expressed their scepticism as to the decision of the ICC to open a case regarding the situation in Darfur, and proposed alternative solutions involving diplomatic initiatives instead of a judicial approach. Algeria, in particular, proposed an intra-African diplomatic process conducted by the African Union, involving both the Sudanese government and the armed group in Darfur, and stressed the importance of a direct involvement of the Sudanese people, as an alternative to the external judicial initiative of the ICC.Footnote 19
We might conclude, then, that the current international criminal law regime seems not to have delivered its promises so far.
Two caveats are in order at this point. Our critique of the ICC does not intend to suggest that international criminal law is always used against weaker states and to the advantage of powerful ones, nor that the states' reservations towards it are always based on genuine questions of values and legitimacy.Footnote 20
As to the first point, three African states, as we have seen above, referred voluntary their situations to the ICC, thus suggesting that they might have found the institution legitimate or at least useful. Conversely, it is undeniable that powerful states such as the US, China, and Russia have not joined the ICC to date also because of fears that their sovereignty be constrained, so they see the ICC as a potential threat to their power. However, these fears appear to be exaggerated, for – as the UK case shows – powerful member states can enjoy a large degree of impunity. Furthermore, the fact that some powerful states see the ICC as a threat to their sovereignty does not cancel the fact that international criminal law has only been applied to weaker states so far, nor it defeats our argument that international criminal law can be influenced by powerful states and therefore applied in an uneven way.
As to the refusal of some states to join the ICC, of course power-politics considerations also play a role, as we have just seen. But we consider it to be sufficient for our argument that the non adhesion to the ICC by some states, and in particular by non-Western ones, is also determined by the fact that current international criminal law is the expression of a particularistic conception of (criminal) justice.
Global economic governance in a world of sovereign states
Cosmopolitan arguments in socioeconomic matters have not been as successful as in criminal law. With the partial exception of the EU, virtually all attempts at establishing forms of international socioeconomic regulation have been horizontal and intergovernmental in nature. Current solutions to global socioeconomic problems do not challenge the idea of states being the ultimate loci of sovereign power, and regard global governance as a matter to be tackled through agreements and negotiations between fully sovereign states, rather than through, at least partly, supranational institutions with autonomous regulatory power.Footnote 21
Consider, for instance, the case of trade governance, and particularly of trade negotiations within the framework of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization (WTO). The Uruguay round (1986–94) was, as is nowadays almost uncontroversially recognised, biased against developing countries and dominated by a homogeneous discourse that trade liberalisation is the best recipe for development, irrespectively of a country's geography, human capital, institutional and economic structure. Moreover, the round was characterised by a significant knowledge gap between developing and developed countries, Trade Related Technical assistance (TRTA) not being fully on the table yet. Finally, power relationships were heavily unbalanced, since no emerging economies had significant bargaining power to counteract mainstream positions. The outcome mirrored these problems, by penalising developing countries in those areas where they were most competitive (especially agriculture), whilst giving developed countries a high level of flexibility in areas that mattered to them – most notably with the Multi Fibre Arrangement (MFA), which imposed limits on the amount of textiles that developing countries could export to developed ones.
The current trade-negotiation round, the Doha round, which started at the end of 2001, has the lowering of trade barriers around the world as its main objective, an explicit emphasis on development, and is characterised by a more balanced bargaining situation, given the increasing global competitiveness of Brazil, Russia, India, and China (BRICs). The Doha round, however, has been extremely difficult and already collapsed twice (in 2003 after the Cancún talks, and in July 2008 after the Geneva talks); negotiations have yet to be resumed fully after the second collapse. Throughout the negotiations, the most significant differences emerged around the area of agricultural subsidies and anti-dumping measures. Agricultural subsidies are mainly paid by governments of wealthy nations (most notably, the US, the EU member states, and Switzerland) to local agribusinesses to support their activities, with the consequence of increasing the supply of agricultural commodities and simultaneously reducing their market prices. Developing countries argue that agricultural subsidies are trade barriers in disguise, in that they artificially drive down crop prices around the world and annihilate the comparative advantage of developing countries in the production of cheap crops. Moreover, affluent countries have been accused of dumping, namely of adopting policies of predatory pricing whereby commodities are sold at a very low price – in some cases, even below the cost of production – in order to drive competitors out of the market. Developing countries challenge the current trade system for failing to recognise agricultural subsidies as an instance of dumping or at least as a genuine trade barrier, whilst not allowing for relevantly similar flexibility to the economies of developing countries in areas where they are most vulnerable, such as technology-intensive sectors.
Thus, one of the most important current attempts to address issues of transnational socioeconomic regulation through traditional horizontal practices of voluntary agreements between sovereign states has so far failed to a large extent. At a more general level, multilateral negotiations seem incapable to cater for the fact that some countries are affected more than others by trade agreements. Trade barriers and dumping might constitute, for some states, not only the grounds for some loss in absolute or comparative disadvantage, but the loss of the very capacity to tackle issues of domestic prosperity and justice with an acceptable degree of discretion. For some developing countries, not being able to diversify one's economy, access foreign markets in the only areas where one is reasonably competitive, or defend one's own productive sector against artificially competitive foreign imports, might entail not being able to develop in a sufficiently robust and equitable manner. Given what is at stake, and the challenge to an effective exercise of sovereignty that these issues constitute, it seems problematic that such decisions be taken in a forum where the bargaining power of the negotiating actors does not mirror in any satisfactory way (and is indeed in some cases reversely proportionate to) the degree to which these are affected by the decisions.Footnote 22
A clarification is in order at this point. The considerations addressed so far may give the impression that developing countries are, after all, those which are most pressing in favour of a more strongly liberalised global market and therefore less regulation. The issue is, however, more complex. The case of dumping, for instance, is not a classical case of protectionist behaviour: here the idea is precisely that developing countries cannot develop strong productive sectors – especially in complex and technologically intensive areas – if too many cheap products are available from abroad. Developing countries often claim to need stronger protection for their domestic market precisely on the ground that they need to ‘catch up’ in order to be then able to act in the global economy on an equal and fair footage. Moreover, trade is only an example here. As the case of tax competition in the previous section has showed, at least some problems of global socioeconomic governance require more, rather than less, intervention and regulation, and they also threaten the problem-solving capacities of affluent countries. But since tax competition has its short-term winners (most notably, tax havens) no binding regulation policy has been adopted so far, as in the case of trade.
The lesson to learn from attempts to find intergovernmental solutions to global socioeconomic problems, and to trade in particular, seems therefore to be that some form of independent supranational regulation is needed.
A global institutional order? Where the analogy ends
The twin spectres of global despotism and cultural imperialism
The failure of international criminal law to attain its ends described in the first part of the third section could be partly attributed to the fact that international criminal law has not gained universal scope and efficacy. However, as we shall argue in this section, a centralised and universal criminal law system would not solve these issues and would raise further, possibly even graver, ones.
As to the problems related to the ‘end of impunity argument’, the first two types of selectivity – the ‘constitutional’ and the ‘operational’ – could be theoretically minimised by universalising the jurisdiction of the court and by providing it with resources and power substantial enough to deal with all those who are responsible for international crimes. The third kind of selectivity, which grants impunity to most powerful states, seems to be avoidable by establishing a global rule of law regime, which would grant the independence of international tribunals through a complex system of checks and balances. The antidote to selectivity seems therefore to be a centralised power with its own global constituency, a trumping and coercive power over the actions of states, and effective instruments to exercise these powers, such as its own public officials, revenues, fiscal powers, and police, organised and coordinated according to the rule of law model. Although this would fall short of being a world state proper, it would certainly entail the transferral of some relevant sovereign powers from the national to the global level, thus going far beyond the current structure of the ICC. Similar solutions are in fact proposed by the most enthusiastic advocates of legal globalism, represented by authors such as Hans Kelsen, Jürgen Habermas, Richard Falk and David Held.Footnote 23
We would like, however, to resist this proposal, by drawing attention to the fact that a global institution with coercive power in the criminal sphere, whilst potentially suitable to overcome the three kinds of selectivity, would incur the serious risk of reproducing at a global level those very dangers (in terms of abuse of power) that the systems of international humanitarian, criminal and human rights law were created to counteract. These were set up to protect citizens against the excessive power of states by creating international guarantees and protections. But transferring the most dangerous features of state power to the global level would only export the problem to a wider, more dangerous, and hardly controllable level. Most legal globalists claim to be inspired by Kant's cosmopolitanism; however, as several scholars have noted extensively,Footnote 24 Kant's cosmopolitan sympathies fall short of leading him to advocate global coercive institutions. Indeed, Kant himself warns against the risk of incurring into a form of global despotism which would constitute the ‘most horrible’Footnote 25 form of tyranny. It could be objected that we now have a more sophisticated model to export at the global level than the one Kant knew – the contemporary system of the rule of law, based on a complex system of checks and balances, which could better deal with the risk of despotism. However, the history of the last two centuries shows that every system of rule of law is a fragile construction, which is not able to grant against any risk of perverse use of its powers. The advocates of legal globalism seem indeed to take seriously only one of the basic assumption of the rule of law, namely that the law can effectively limit power, and to forget the other, namely that every power has an ineluctable tendency to expand and abuse its prerogatives.Footnote 26 Moreover, the pervading capacity of contemporary state power expanded significantly, due both to its centralised bureaucracy and to the increased possibilities of control over population and territory made available by modern technology.
Under these circumstances, global coercive institutions like the ones which would be necessary fully to implement and enforce global criminal law would generate a high despotic potential. Moreover, they would bring about a concentration of power infinitely superior to that of any individual state subject to them, with the consequence that, if this power were to become despotic, there would be no other comparable organised power to appeal to. The very motivation behind the idea of internationalising criminal law is to protect actors against the excessive power of the state apparatus. However, a global rule of criminal law would only export the problem from the state to the world level – and worse still, create a power infinitely superior to that of the nation-state, with nowhere else to go.
As to the ‘common-values argument’, the preliminary question to ask is whether the world-wide international community of shared interests and values described by the advocates of international criminal law really exists. In the absence of such a community, we would like to argue, it is not possible to find a consensus about Western-style criminal law as the most appropriate tool to redress international crimes. We do not challenge the idea that extreme acts such as those which are labelled as international crimes are universally recognised as extremely evil actions that need to be redressed. But we shall contend that it does not follow that criminal law, and a system based on the Western legal model, is the only valuable system to deal with them.
At closer inspection, and beyond the rhetorical statements of the advocates of ICC, the existence of a homogeneous ethical global community appears to be more a chimera than a matter of fact.Footnote 27 Deep tensions, cultural heterogeneity, and only a limited area of consensus characterise contemporary international society. Even without relying on Huntington's theory of the ‘clash of civilizations’,Footnote 28 the increasing tensions between, for instance, the ‘Western’ and the ‘Muslim world’ is the most evident example against the idea of an increasing culturally and ethically homogeneous international society. In such a context, the use of terms like ‘global community’ and ‘international society’ has a strong symbolic power in strengthening the values assumed as being central and in excluding dissenting views. These expressions present some values as the only values that matter, and suggest an image of the ‘global community’ as an ethically and culturally homogeneous society. This creates a language of inclusion and exclusion: for communities with different ethical and legal systems, the choice is to be either excluded from the club of the global community, or to conform to its moral system in order to obtain the approval of the dominant political culture and be accepted by it.Footnote 29 This constitutes a problem even if no disagreement can be said to exist regarding the moral condemnation of, say, genocide; for it is by no means clear that a penal response to genocide along the lines of a Western style criminal law trial would be the most widely shared or most adequate response in all cases, irrespectively of the relevant context. Different ethical and legal traditions are currently not considered as valuable alternatives to the Western criminal model. Alternative models, however, do exist: procedures inspired by the restorative justice model, for instance, have been applied in response to international crimes in several countries.Footnote 30 The South African Truth and Reconciliation Commission is a particularly successful example. South Africa's proposal to recognise this option as an alternative to criminal procedures was however rejected during the negotiations which led to the creation of the ICC. Other options, like the gacaca courts employed in Rwanda in response to the genocide occurred in 1994, which combine penal and restorative elements were not even taken into account. Under these circumstances, a full-blown global system of criminal law would accentuate the anti-pluralistic and hegemonic character of current international criminal law. ‘Equalizing the cultural differences between the nations of the world’Footnote 31 would be its prerequisite, and would thus raise the spectre of cultural imperialism, parallel to that of a global despotism.
Thus, as far as criminal justice is concerned, although we agree that supranational solutions of some kind are necessary, we believe that, on closer inspection, a global rule of criminal law would not be desirable. This does not mean, however, that all supranational solutions must thereby be ruled out, as we shall see in the last section.
Transnational socioeconomic justice as a case of background injustice
Our discussion in the second part of the third section regarding difficulties in the regulation of global markets points at a more general problem: the insufficiency of self-regulation as a tool to tackle concerns of global socioeconomic justice. The intergovernmental – rather than supranational – nature of institutions such as the WTO is essentially at odds with the very nature of transnational socioeconomic justice. Intergovernmental negotiations, however multilateral they may be, are bound to mirror power relations between countries and short-term interests. This section explores the general theoretical structure of this problem and claims that certain problems raised by socioeconomic phenomena cannot be solved but through institutional regulation of a supranational kind.Footnote 32
Rawls argues that one of the main reasons why institutions are of special importance to socioeconomic justice lies in their role in securing ‘background justice’.Footnote 33 In a context of intense socioeconomic interaction, actors lose the power to control the consequences of their actions:
The accumulated results of many separate and ostensibly fair agreements, together with social trends and historical contingencies, are likely in the course of time to alter citizens’ relationships and opportunities so that the conditions for free and fair agreements no longer hold. The role of institutions … is to secure just background conditions against which the actions of individuals and associations take place.Footnote 34
If this is true, then there is no feasible set of rules that can be applied to socioeconomic actors directly and succeed in preventing the erosion of background justice. There are tasks that actors involved in socioeconomic interaction cannot simply fulfil through self-regulation. A contract signed without any coercion, for instance, may be seen as a legitimate and fair transaction according to the normative criteria that apply to individual conduct in the market place. However, from a wider perspective, the conditions of the contract may put one of the two contractors in a problematic or disproportionately unequal bargaining position in the long run, or have unacceptable consequences on third parties, in ways which cannot be appreciated by the two contractors. For background justice to obtain, the conditions under which contracts can be made in a genuinely free and voluntary basis have to be maintained over time. This, however, requires institutions to do more than just enforcing ‘free’ and ‘voluntary’ agreements. For their accumulated effects can lead to scenarios where some actors can no longer enter free and voluntary agreements – say, because they are in extreme need, liable to exploitation and with virtually inexistent bargaining power. Institutions, therefore, have to preserve certain socioeconomic relationships among actors so as to allow them to be in suitable positions to interact with each other fairly.
The problem of background justice has often been understood as something that arises within an already existing institutional order.Footnote 35 However, the argument of background justice can also ground a case for the establishment of new regulatory institutions. Thus, for instance, current global socioeconomic trends may well generate problems of background justice between states, by depriving them (especially, but not exclusively, the institutionally and economically weaker ones) of the necessary problem-solving capacities to regulate internal socioeconomic dynamics. The current rules on trade, as argued by many, deprive developing countries with vulnerable economies and weak institutions of the necessary means to grow out of poverty or to strengthen their internal economy through diversification, whilst the pressure to liberalise makes them open to cheap foreign goods and further weakens their chances to develop a strong national productive or service sector. Tax competition, on the other hand, weakens the internal capacities of developing and developed countries, erodes welfare states or, in the best case scenario, makes welfare and fiscal policies unnecessarily rigid and homogeneous. These are problems of background justice proper, for sovereign states under conditions of strong power and bargaining inequality, and significant interdependence, cannot interact as such, namely as fully sovereign entities.
If the problems raised by trade rules and other transnational socioeconomic dynamics tackle issues of just background conditions, then only the establishment of supranational institutions with effective regulatory power has any hope of solving them. Like in the standard domestic case, self-regulation and rules of conduct are not going to deliver in this respect; the brief analysis of WTO negotiations seems to back up this point for the case of trade, and similar difficulties have been encountered in several attempts to make agreements in terms of tax coordination and elimination of tax havens.
This, however, does not entail that we ought to construct a world welfare state. On the contrary, the appropriate supranational regulatory institutions are those which, by putting constraints on all countries, give effective problem solving capacities back to them. If, for instance, binding rules against harmful tax competition were to be applied by supranational institutional authorities, then countries would lose the freedom to deviate from such rules, but would gain back the power to design and implement fiscal policies at their discretion within the constraints of those rules.
Criminal and socioeconomic justice: different problems with different solutions
As we have seen, the problems posed by international criminal justice do not justify the establishment of a global rule of criminal law. The challenges of transnational socioeconomic justice, instead, seem to require the transferral of at least some sovereignty from the national to the global level, but with an eye at supporting states in their problem-solving capacities, rather than with the aim of adopting a full-blown cosmopolitan route. By way of conclusion, we would like to sketch a few guidelines for a more promising path in the area of criminal justice, and highlight the differences between the criminal and the socioeconomic case more explicitly.
As argued above, the centralised system of international criminal law, which is the end-goal that inspired the creation of existing international tribunals, would only become fully effective if some additional forms of power were exported from the national to the global level; and such transferral, as we argued, would be extremely problematic, dangerous, and possibly counterproductive. However, international crimes are a problem and cosmopolitans do have a point in being suspicious about the state's willingness and capacity to address them. What would a more promising approach look like? The in-depth elaboration of such an approach is a task for another day, but we shall try and sketch a few promising guidelines here. First and foremost an alternative model would have to be both pluralistic and regionally based. It would support the establishment of a plurality of decentralised and independent regional schemes, each of them establishing the most suitable means to responding to international crimes in full autonomy from the others, and in the way that is most compatible with the cultural and political character of its members. Each regional institution would have competence over a number of political units or states which are relevantly similar with respect to their cultural, legal or political tradition, although also sufficiently diverse among each other to create sufficient neutrality and arbitration at the supranational level. The regional aspect of this solution would create a significant degree of pluralism among the mechanisms adopted by the different regional entities. This means that the solutions adopted should not necessarily involve criminal procedures, but could also rely on other models, such as, for instance, processes of restorative justice.Footnote 36 Finally, each political community would have the chance to deal directly with the violations occurred, the supranational institution being only a last resort, in case the local authority is not able or willing to address the violations.Footnote 37
We believe that institutional solutions designed according to these guidelines present advantages over the ICC and over a global rule of criminal law. Regional institutions would have the usual advantages of being supranational, namely that of not leaving the power to decide whether to act or not to states alone, whilst however avoiding the risk of global despotism. They would not, of course, solve every problem related to efficacy. The disproportion of power which constitutes a problem for international criminal law, for instance, would not disappear at the regional level. A regional system, even if carefully designed, would not be able to redress every serious international crime. But, as we have seen, nor does international criminal law. On the other hand, as an advantage in comparison to the current solution, a regional system would enable different regional blocks to counterbalance and exercise soft control on each other, thereby diminishing the risks of global despotism and creating a possibility for them to exercise external pressure on each other to punish or redress the violations committed in the respective territorial spheres competence. Moreover, the preservation of pluralism, and the construction of supranational legal systems according to the values and practices of those who are or have been affected by international crimes, would be effective anti-imperialistic measures in themselves. Two concluding remarks should be made at this point with respect to our proposal. First of all, the assessment of the comparative advantages of regional and global systems of international law is not made under idealising circumstances and assuming perfect institutional functioning. Under such circumstances, both systems would probably be sound, albeit still more or less desirable depending on the value one accords to pluralism. Under most common empirical constraints, however, whilst both solutions would have shortcomings (such as, in the regional case, a certain risk of disregard for minority views and a vacuum of competence for interregional crimes), we hold that the regional case is, on balance, to be preferred for the reasons suggested above. Second of all, a regional, smaller and possibly more flexible institution would have the further advantage of being able to accommodate (thanks precisely to its flexibility) context-sensitive concerns that are motivated by reasons other than cultural diversity. Gacaca trials, for instance, can be preferred to criminal trials not only because of reasons of affinity to the local public political culture, but also because they are the best way to achieve rough justice when the number of perpetrators is very large. Similarly, Truth and Reconciliation Commissions can also be preferred for political and not only for cultural reasons – such as when social peace will be hard to achieve in case of harsh retribution, and when victims and perpetrators have to carry on living side by side. Regional institutions have a better chance of being able to achieve this fine-tuning.Footnote 38
The conclusion we have reached with respect to criminal justice does not entail, however, a comprehensive rejection of global institutional solutions of any kind. Indeed, the main point of this article is that not all international problems are of the same kind. In particular, the endorsement of a regional supranational solution to international problems of criminal justice does not mean that a structurally similar option would also be appropriate for transnational socioeconomic justice. The different problems of socioeconomic justice addressed in this article are of an interregional character: most of the issues they arise tackle problems that happen across different regions. By this we do not mean that genocides, crimes against humanity or war crimes never happen at an interregional level. What we mean is that regional solutions in socioeconomic governance might reproduce problems of background justice between regions, rather than between countries – thus not even reducing the extent of the problem. For instance, the presence of Regional Trade Agreements (RTAs) constitutes an additional problem, rather than a solution, to the issues discussed in 3.2. Such agreements protect some clusters of countries against others, often making already powerful actors even stronger, and excluding weaker actors from an even wider slice of the global market. The example of EU agricultural subsidies is the most well-known, but by far not the only, example in this respect. RTAs penalise those who are excluded in a way that criminal regional solutions do not. The same applies to the case of tax competition: there is not much use in agreeing on regional institutions tackling tax competition within a region in a world where capital (and increasingly, some forms of labour) can move cross-regionally with great ease. Rules that limit tax competitions within a region would only attract capital and some labour away from that region, thus moving tax competition itself from the interstate to the interregional level, without solving it.Footnote 39
If, however, the conclusion of this article is that global solutions are too dangerous for criminal justice, but only global solutions can solve problems of transnational justice, a final question naturally arises: why should we not be equally concerned about cultural imperialism and global despotism in the socioeconomic case? It is not our intention to deny that such problems might arise. However, we believe that there is an important feature that makes the socioeconomic case different from the criminal one. In the case of socioeconomic justice, what we want to do through international institutions is to support states that are weakened by globalisation in their threatened problem-solving capacities, rather than counteract or limit their power. Thus, global institutions would limit state sovereignty for state sovereignty's sake: if the institutional design were to succeed, the relevant global institutions would, to some extent, give some socioeconomic power back to states. States should give up power to take unilateral decisions in some areas in order to gain more room for manoeuvring in terms of domestic public policy. Once this power is given back to them, different countries can and will take different decisions in economic policy. This remark also responds to the charge of cultural heterogeneity and imperialism: if (some) power is given back to states, and to the weak ones in particular, there is much less reason to fear that the imposition of culturally biased norms will be a by-product of global institution-building. However, whereas global despotism in global socioeconomic governance can be avoided more easily than in the criminal case, this need not entail that the danger does not exist. Of course, this means that the competence of global socioeconomic institutions should be importantly limited in scope.
Finally, if supranational criminal institutions are regional and socioeconomic ones are global, this is a good anti-despotic measure as such. Different supranational institutions (some regional, some global) create in itself a plurality of voices that could be beneficial to counteract the threats of excessive global power.
