The nullification of international agreements and policies or The mongrelisation of diplomacy

Aldo Matteucci

In the Westphalian paradigm states are sovereign in their national policies. In toady’s world deliberative democracy legitimises the laws and policies of the state. International convergence of national laws and policies is obtained through multilateral agreements based on consensus. Their legitimacy relies on national ratification. State laws and regulations are the outcome, and state bureaucracies oversee implementation.

This paradigm is being rapidly eroded. Voluntary and voluntaristic INGOs[1] – akas as ‘civil society’ – spontaneously create voluntary standards and norms in this or that domain of public policy like working conditions, environment, or human and animal rights. Though not legally binding, threat of embarrassment tends to ensure compliance, both at home and abroad – in today’s transparent world reputation strongly affects market sales, and exposure may affect personal and political lives. Once the standard is established, private bureaucracies may emerge to verify and certify conformity to such standards and norms.

This new paradigm may nullify or supplant the old one, imperilling decades of laborious international negotiations futile:

1. While the Swiss government prudently liberalises its agricultural policies Swiss major retailers are nullifying these efforts: their up-market labels like ‘bio’ and ‘regional products’ bring trusted local producers significant mark-ups and enhanced market-shares. Consumer preference (or prejudice if one prefers), rather than trade barriers, will hamper foreign competitors in the future.
2. Private initiative, on the other hand, may penetrate into realms where governments fear to tread. Governments had agreed to side-line the topic of ‘trade and social standards’ in the Doha Round. The Social Accountability SA 8000 standard, developed by the Business Social Compliance Initiative in Brussels[2] and Social Accountability International in New York[3] may be harbinger of voluntary international standards to come in the area of social and labour relations. These initiatives orient themselves on the deliberations of international organisations like the ILO and as such have credibility.

Such voluntary standards are emerging in other areas – from corporate governance to public health, to foreign aid. There is an underlying common pattern to their emergence[4]. An abuse is uncovered and is widely and emotionally discussed in the public arena. Exemplary standards are established. The threat of terminal boycott or reprobation by an aroused population ensures compliance: voluntary standards know no borders and ignore sovereignty. Compliance with existing laws and regulations is no bar to the impact of farther-reaching standards.

The exemplary effect leads to spillovers into related domains as firms and individuals race to pre-empt adverse publicity. Whoever can manipulate public opinion can wield extraordinary power. Size and notoriety – strength in the market or in the public domain – is a weakness here, as Walmart or Matel can attest.

Voluntary standards are fundamentally different from regulations. Here some tentative and necessarily incomplete considerations as to their strengths and weaknesses – in any case it is not my intent to be a judge (even less a hanging judge) on their value, which can only be determined in a specific context:

1. Voluntary standards tend to be tentative (at least at the outset), hence flexible and adaptable – in many cases they are no more than ‘work in progress’ and evolutionary in character;
2. Voluntary standards tend to be ad hoc responses to broadly perceived abuses. They may lack consistency, coherence across like issues, and may be hit and miss;
3. Competition between emerging alternative voluntary standards may eventually allow for more informed rule-making – or radicalisation;
4. The staying power of voluntary standards has not yet been tested. Like some market products in a competitive environment, they may even evolve toward competitive excess, or degenerate spontaneously into irrelevance. On the other hand they may be eventually absorbed by the (inter)governmental regulatory process;
5. Conversely, no mechanism so far has been designed to weed out defective voluntary standards – they tend to fade as rapidly as they emerge, either superseded by the next flavour of the month, or by a better competitor;
6. Success relies on the threat of embarrassment – rather than the harsh but modulated and calibrated weight of the law. We hardly know how to attune suave persuasion – which may lead to excesses and failures[5]. Manias, panics, but also ‘crashes’ may ensue in the pursuit of moral fashion.
7. Voluntary standards may help overcome the tendency of the democratic process toward stagnation, as opposing and vested interests effectively grind the process to a stalemate;
8. Voluntary standards are often perceived as mere conventions, i.e. lacking the broadly agreed ethical and principle dimension that makes legal instruments so difficult to design or reform;
9. Voluntary standards lack broad based legitimacy. The standards have not gone through a deliberative democratic process, but are the product of more or less informed good intentions of small elites. Though nominally democratic, the INGOs that develop such standards face little accountability as its membership is not internally organised;
10. Voluntary standards blur responsibilities between government, civil society, and citizen, and in the end may weaken accountability;
11. If compliance verification is established, it tends to lack transparency as the relationship between the regulator and the regulated is ad hoc and may easily become incestuous;
12. The costs of compliance, verification and traceability can be horrendous and out of proportion to the outcome – yet not subject to public scrutiny. In particular, the associated voluntary bureaucracies may be far less efficient or effective than their public counterparts they are meant to supersede.

At the end of the day the strength of voluntary standards should be their ability to overcome democratic stagnation through a tentative and iterative process of trial and error and possibly competition. They remain more or less educated or opinionated guesses that address an issue rapidly – yet may be discarded more easily than laws and regulations.

The strength of deliberative democracy is its reliance on the ‘wisdom of the crowds’. The price of voluntary standards is lack of democratic legitimacy – elitism by a minority that is able to impose the standard. Elitism coupled with hype and emotional positions tends toward manias and panics[6]. On such basis voluntary standards may range from the inspired to the grossly and frustratingly unfair or downright disgraceful.

Why have voluntary standards become so fashionable? The pessimists might argue that as the world becomes more complex deliberative democracy fails, for it demands too much involvement by the citizenry – being a citizen in classical Athens already was a full-time job. The optimists might argue that voluntary standards are inspired ‘shots in the dark’ – an appropriate solution when no amount of aggregated wisdom will resolve the unknowable. Whatever – voluntary standards are a rapidly emerging reality that might effectively nullify much of traditional governmental and inter-governmental rule-making.

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New paradigms do not simply replace old ones – for long periods both may live side by side, as their respective social value is tested. Hybrid situations may develop and persist where neither prevails. Diplomats are agents of the old sovereignty-centred paradigm. They’ll have to live with the fact that initiatives of civil society may rank equal with their efforts and void their carefully laid plans. For they have lost both the monopoly of forum and initiative – state-to-state negotiations may be just one of the many arenas where actions take place.

Diplomatic negotiations, like wars nowadays, are no longer set pieces and orderly or even brilliant manoeuvres – they have become liquid. Diplomats no longer rule the field, supported by coordinated hordes of auxiliaries or scouts. As a result, principle positions and objective analysis, or elaborate tactics may be easily swept away by emotions or circumvented by ‘non-combatants’. Complex negotiations with many topics and inter-linked agendas (e.g. the Doha Round) may be difficult to control and manage successfully.

In the interest of a desirable material outcome the diplomat might need to abandon hierarchical ambitions and set structures and mongrelise (not that a diplomat was ever a pure breed). The recent photo of an out-of-focus Tony Blair looking on nonplussed as Bono carries on in the foreground about development aid to Africa captures this new reality.

Adjustment to this reality is no mean feat. Loss of certain status and pre-eminence is often difficult to accept. Moving from a hierarchical negotiating to a dispersed (and even chaotic) structure demands a innovative mindset. The style also needs nimble adaptableness, for what is essential in one arena – uncompromising clarity and conviction – can become an obstacle in the other arena, where compromises must be struck[7]. Principle and opportunism must find an uneasy balance. Knowledge will remain of the essence, but (like in bunraku) even more in the background.

Such is (the new diplomatic) life.

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[1]

A ‘half-way house’ is state regulation in a federal structure. Regional entities may either nullify central rule-making, or leapfrog it when the centre remains inactive. The current plethora of state-sponsored environmental standards in the USA is an example.[2]

www.bsci-eu.org[3]

www.sa-intl.org

[4] Only the competitive case is discussed here. Of course, complementarity may also occur, but it does not lead to policy issues.

[5] The Paoacy in the XIII^th century tried a harsher version on moral suasion to obtain ascendancy. The scope of its ambition ruined the attempt, but also highlights the ephemeral character of moral suasion.

[6] For a discussion of the overall topic on ‘democratic’ vs. ‘elitist’ decision-making, see James SUROWIECKI (2005): The wisdom of the crowds. Why the many are smarter than the few and how collective wisdom shapes business, economies, societies, and nations. Little Brown, New York; 295 pp.

[7] For a spirited discussion of the difficulties involved see Harry G. FRANKFURT (2005): On bullshit. Princeton University Press, New Haven; 67 pp.

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