Leiden Journal of International Law, 16 (2003), pp. 673–699 C Foundation of the Leiden Journal of International Law Printed in the United Kingdom DOI: 10.1017/S0922156503001584 ARTICLES Perpetual Peace or Perpetual Process: Global Civil Society and Cosmopolitan Legality at the World Trade Organization RU T H B UC H A NA N * Abstract This article argues that a contemporary form of ‘cosmopolitan legality’ serves as an animating force behind contemporary practices of global civil society and global governance. The ﬁrst part provides an account of the recent history of civil society engagement with the World Trade Organization. It observes that civil society groups have focused their collective efforts on issues relating to procedural legitimacy, including accountability, openness, and transparency, poten- tially to the detriment of efforts to bring about more fundamental change. In the second part of the article, various theoretical approaches to cosmopolitan legality are discussed, including their claimed Kantian origins, and are mapped on to the preceding discussion of the place of a global public sphere in global governance. Programmatic approaches that purport to mobilize cosmopolitanism in the service of either a political or legal project are ultimately rejected, and a provisional alternative reading is suggested. Key words cosmopolitanism; global civil society; global governance; Kant; World Trade Organization International law has always been implicitly cosmopolitan in its orientation, yet explicit considerations of these cosmopolitan foundations are often viewed within the discipline, in the words of David Kennedy, as ‘vaguely vulgar or unnecessary’.1 This article originates from a contrary view: that both the sources of and the slip- pages within ideas of cosmopolitanism currently debated within and around the discipline of international law merit closer scrutiny. Moreover, mobilizing the idea * Associate Professor of Law, University of British Columbia. The research on which Part I of this paper draws was funded by a special joint initiative of the Law Commission of Canada and the Social Sciences and Humanities Research Council of Canada (SSHRC), ‘Relationships in Transition’. Versions of this paper were presented as Faculty Seminars at Birkbeck College Faculty of Law, Reading Law School, and Osgoode Hall Law School in February and March 2003 and at the Workshop on The New International Law at Birkbeck in June 2003, and I beneﬁted greatly from the generous comments of the participants at each of those occasions. I am grateful to Sundhya Pahuja, Judy Fudge, and Peter Fitzpatrick, who read and provided detailed comments on various drafts. Robert Russo provided truly excellent research and bibliographic assistance. 1. D. Kennedy, ‘When Renewal Repeats: Thinking against the Box’, (2000) 32 New York University Journal of International Law and Politics, at 340. See also R. Buchanan and S. Pahuja, ‘Collaboration, Cosmopolitanism and Complicity’, (2002) 71 Nordic Journal of International Law 310–16, for a discussion of the relationship between cosmopolitanism and international law. 674 RU T H B UC H A NA N of ‘cosmopolitanism’ as a justiﬁcation or defence of one’s position seems to have become fashionable again. Arguments from cosmopolitanism, most frequently at- tributed to Kant, have recently been called into service in support of (international) legal arguments over humanitarian interventions, an emerging right to democratic governance at international law, and various proposals regarding the direct demo- cratization of global governance, including the creation of a Global People’s As- sembly.2 Despite, or perhaps as a consequence of, the current era of increasingly explicit US unilateralism, cosmopolitanism retains a compelling currency within international debates. Some have argued that ‘much, perhaps too much’ has been made of Kant’s ostens- ible ‘revival’ in international legal theory.3 This may well be the case. Notwithstand- ing a proliferation of monographs and articles on Kant’s relevance for contemporary international law; the linkage between Kant and the trinity of contemporary liberal internationalism – human rights, the rule of law, and democracy – is not as neces- sary or obvious as is frequently assumed.4 However, debates over origins will not be the primary focus here. Rather, this article seeks to understand what function con- temporary appropriations of cosmopolitanism – Kantian, neo-Kantian, or neither – have come to play in contemporary political struggles in and around international institutions. To appreciate adequately how the ideas of cosmopolitanism function these days to justify and propel signiﬁcant changes within the institutions of global governance, one must begin by looking beyond the discipline of international law itself.5 There- fore, instead of engaging primarily with debates internal to the ﬁeld, this article seeks to track the migration of a concept, cosmopolitanism, across both disciplinary and geographic boundaries, and to chart some of the effects of its movements. In the process, the argument will trace its own movement, from a sociological exam- ination of emerging cosmopolitan practice, exempliﬁed by mobilizations of civil society actors around the World Trade Organization (WTO), to a consideration of contemporary theoretical approaches that purport to account for these practices. 2. On cosmopolitanism as an argument for the intervention in Kosovo, see J. Habermas, ‘Bestiality and Human- ity: A War on the Border between Legality and Morality’, (1999) 6 Constellations 263; on the right to democratic governance in international law, S. Marks, ‘International Law, Democracy and The End of History’, in G. Fox and B. Roth (eds.), Democratic Governance and International Law (2000) 532; S. Marks, The Riddle of All Consti- tutions: International Law, Democracy, and the Critique of Ideology (2000); on democratizing global governance, see D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995); also R. Falk and A. Strauss, ‘On the Creation of a Global People’s Assembly: Legitimacy and the Power of Popular Sovereignty’, (2000) 36 (2) Stanford Journal of International Law 191. 3. N. Greenwood Onuf, The Republican Legacy in International Thought (1998), at 243; P. Capps, ‘The Kantian Project in Modern International Legal Theory’ (2001) 12 EJIL 1003. 4. Some recent examplesinclude: F. Teson,A Philosophy of International Law(1998); P. Eleftheriadis, ‘Cosmopolitan Law’, (2003) 9 European Law Journal 241–63; J. Bohman and M. Lutz-Bachmann (eds.), Perpetual Peace: Essays on Kant’s Cosmopolitan Ideal (1997). Among those who have called into question the connection between Kant and contemporary liberalism are G. Cavallar, ‘Kantian Perspectives on Democratic Peace: Alternatives to Doyle’, (2001) 27 Review of International Studies 229–48; A. Francheschet, ‘Sovereignty and Freedom: Immanuel Kant’s Liberal Internationalist Legacy’, (2001) 27 Review of International Studies 209–28; K. Flikschuh, Kant and Modern Political Philosophy (2000); and Capps, supra note 3. 5. I have discussed the particular contours of the close relationship between cosmopolitanism and the discipline of international law elsewhere. See Buchanan and Pahuja, supra note 1, 297–324. This analysis seeks in contrast to locate itself outside the discipline, in order to make a more encompassing assertion regarding the pervasive inﬂuence of a cosmopolitan sensibility, and its particular legal orientation. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 675 In particular, the article will highlight the emergence of a powerful, although not uncontested, ideal of ‘cosmopolitan legality’ that has become a point of departure for contemporary developments within and around the WTO. Conventional accounts of the relationship between the World Trade Organiza- tion and its critics frame it as a clash of opposing worldviews. To a great extent, this account is a reﬂection of the imagery that was indelibly etched on the public imagination during the coverage of the ‘Battle in Seattle’. However, underpinning the oppositions presumed by this view is a considerable degree of consensus about the nature of the ‘global’ and the need for a certain type of legal regime to govern it, even if the details might vary. On both sides of the fence, positions are justiﬁed with reference to the same set of cosmopolitan ideals: a global community in which all can be seen as citizens of the world, governed by institutions that are legitimate and accountable, through the participation of democratic governments. That is, a shared adherence to the liberal idea of cosmopolitan law connects the WTO’s defenders to many (although not all) of its current critics. While this convergence may account for the limited inroads that recent advocacy efforts have in fact made at the WTO, this article raises the concern that these efforts may ultimately prove counterproductive. Not only might they fail to lead to the types of substantive changes that are the stated goal of many justice-oriented non- governmental organizations (NGOs), but, if successful, current campaigns centred largely on proceduralist reforms could well transform the WTO into an even more powerful institution of global economic governance without signiﬁcantly affecting the current system of global economic inequality over which it presides. The impli- cit assumption made by both activists and policy-makers is that there is a linkage between the transparency, legitimacy, and accountability of multilateral institutions and the structure of the global economy. This article interrogates this assumption, and, in so doing, tries to identify the source(s) of the apparently widespread convic- tion that governance in the name of the free market, the rule of law, and democracy is incompatible with the continued existence of economic injustice at a global level. The ﬁrst section of the article will examine the ideas and practices currently identiﬁed with ‘global civil society’, primarily through an account of the efforts of networks and coalitions of NGOs over the past several years to engage with and transform the WTO. These networks and their practices might be described as one example of ‘practical cosmopolitanism’, insofar as they are seeking to put into play a set of ideas about the place of the ‘global citizen’ in transnational governance. The second section will turn to contemporary theoretical debates around cosmopolitan- ism and, in particular, to consideration of the notion of ‘cosmopolitan legality’ that emerges from the case study. In it, I shall argue that the realms of both global civil so- ciety and global governance draw normative force from the appeal to a (putatively Kantian) ideal of cosmopolitan legality and, further, that this notion constitutes these realms as co-dependent. The current discourse of cosmopolitan legality draws its persuasive power from the convergence of two equally powerful assumptions: ﬁrst, the tendency in debates about cosmopolitan democracy to equate an expansion of deliberative processes at the international level with expanded public recogni- tion of the social justice dimensions of global governance; and second, the parallel 676 RU T H B UC H A NA N tendency in debates about legalization of the international order to equate formal- ization with an increase in just outcomes. In this way, law and politics are conﬂated, and both are reduced to formal or procedural rather than substantive norms. Rather than setting us on the road towards perpetual peace, I wonder whether cosmopolitan legality as presently conceived is more likely to lead into a cul-de-sac of perpetual process. I conclude with some provisional observations regarding a more generative and less programmatic alternative reading of cosmopolitanism. 1. P RACTICAL COSMOPOLITANISM : CIVIL SOCIETY ENGAGEMENT AT THE WTO 6 This part of the article focuses on the practices of one segment of what has come to be called ‘global civil society’, that is, the advocacy efforts of public interest NGOs (PINGOs) or transnational advocacy NGOs (TANGOs) engaged with issues concern- ing international economic governance generally, and the World Trade Organization in particular.7 While a more detailed consideration of the conceptual underpinnings of global civil society (GCS) will be undertaken below, a few preliminary remarks are needed. 1.1. The ‘open’ concept of global civil society The emergence of this contemporary notion of the global public, or the GCS as I am calling it, can be linked to a perceived shift in the role of the state in the con- text of globalization.8 Bypassing national legislatures, parties, and other traditional political forums, non-governmental organizations and international activist groups have increasingly directed their energies towards the institutions through which, they claim, key policies for the governance of the global economy are forged – the World Bank, the International Monetary Fund (IMF), and the WTO among them.9 They have become increasingly effective, utilizing networked forms of organiza- tion facilitated by the capacity to disseminate analysis and organize information widely using websites, e-mail lists, and alternative media. While the evidence of a signiﬁcant expansion in the number of non-governmental organizations, networks and coalitions operating internationally over the past several decades is relatively incontrovertible, the concept of GCS remains fuzzy and contested.10 6. This section of the article draws in particular upon a report recently submitted to the Law Commission of Canada, ‘Contested Global Governance: States, The World Trade Organization, and Global Civil Society’ by R. Buchanan and A. Long (on ﬁle with author). 7. It will not address advocacy efforts on the part of non-governmental business-oriented groups, trade or industry associations, or Chambers of Commerce, although they are included in the WTO deﬁnition of a non-governmental organization and generally well represented both at WTO Ministerials and at WTO headquarters in Geneva. Business groups generally represent the single largest category of NGOs that obtain accreditation at WTO Ministerials, with the exception of the Seattle Ministerial. Ibid., at 26–7. 8. S. Strange, The Retreat of the State: The Diffusion of Power in the World Economy (1996); R. Boyer and D. Drache (eds.), States Against Markets. The Limits of Globalization (1996). 9. R. O’Brien et al., Contesting Global Governance: Multilateral Economic Institutions and Global Social Movements (2000). 10. H. Anheier, M. Glasius, and M. Kaldor, ‘Introducing Global Civil Society’, in Anheier, Glasius and Kaldor, Global Civil Society 2001 (2001), 3–22. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 677 To a large extent, this contestation is reﬂected in the diversity of tactics and perspectives on the part of organizations seeking to inﬂuence the WTO. Even if one excludes, as I do, groups primarily identiﬁed with business interests, such as the International Chamber of Commerce, the groups remaining hardly present a uniﬁed front. There is a great deal of disagreement and debate within the PINGO community around particular issues and in terms of the appropriate approach to global economic institutions, with the spectrum of positions ranging from re- form, through transformation, to abolition. In particular, the divide between ‘re- formers’ and the ‘abolitionists’ is highlighted by the ambivalent post-Seattle slo- gan, ‘WTO: Shrink or Sink’. This divide might also be said to map, although not too directly, on to another distinction that is often made, between the more bur- eaucratized and well-funded international NGOs on the one hand (Public Citizen, Oxfam, Institute for Agriculture and Trade Policy) and more broadly based social movements and direct action groups on the other.11 However, activists uniformly argue that these differences are overplayed by their political opponents, suggest- ing that it is more important to focus on the broad areas of agreement that do exist than on the diversity of issues and approaches that characterizes the move- ment.12 Indeed, many suggest that criticisms of the diversity and plurality of views within the movement for global social justice miss the mark in a rather revealing way, as such diversity provides a vital and much needed democratic antidote to the technocratic and anti-democratic tilt of mainstream discussions around global governance.13 The groups opposed to the WTO are in many ways a microcosm of the un- wieldy diversity of the conceptual landscape of ‘GCS’ more generally. Indeed, ‘GCS’ can mean quite different things to differently positioned actors. On the one hand, policy-makers, particularly those in the West, and in multilateral lending institu- tions such as the World Bank and the IMF, have increasingly recognized NGOs (which are equated with GCS) as previously untapped sources of governance and service delivery capacity, especially in developing countries. Support for an expan- ded role of NGOs/GCS has come to be included within a broader package of policies, sometimes referred to as the post-Washington consensus, which focuses on fostering governance and institutional capacity within developing states to better facilitate 11. An example closer to the social movement side of this dichotomy would be People’s Global Action (PGA) online: <www.agp.org>. PGA was launched in 1998 in Geneva as a ‘worldwide coordination of resistances to the global market, a new alliance of struggle and mutual support called People’s Global Action against “Free” Trade and the World Trade Organization’. The ‘hallmarks’ of PGA, which have undergone some revision since its inception, explicitly reject ‘capitalism, imperialism, feudalism; all trade agreements, institutions and governments that promote destructive globalization’. They also support ‘a confrontational attitude’ and make a ‘call to direct action and civil disobedience’. 12. Groups and networks that embrace quite different platforms, strategies, and approaches routinely bridge those differences in their advocacy and organizing efforts. So, for example, a PGA-organized organiz- ing meeting to plan opposition to the Cancun Ministerial included a presentation from the Our World Is Not For Sale network. Online: Nadir <http://www.nadir.org/nadir/initiativ/agp/free/cancun/0108WTO action.htm>. See also the discussion of this issue in the Law Commission Report, supra note 6, at 43. 13. J. A. Scholte, ‘The Future of Civil Society Opposition to Neoliberal Global Economic Governance’, (2002) 9 (1–2) Canada Watch 59; M. Ritchie, ‘Interview with Mark Ritchie of Institute for Agriculture and Trade Policy’ (2002), online: University of Washington <http://depts.washington.edu/wtohist/Interviews/Ritchie.htm>. 678 RU T H B UC H A NA N their integration with the global economy.14 In the post-Washington consensus view, both local and transnational NGOs have a role to play in facilitating the more effective delivery of development programmes and in helping to buffer the shocks of integration. In contrast, activists see transnational NGOs as one part of a broader social movement that is engaged in a struggle for social justice and equality, and which seeks out expanded opportunities for meaningful citizen engagement at a global level. They see the GCS in primarily political, rather than technocratic, terms. The slippages between multiple conceptions and practices of GCS are both pro- ductive and dangerous. In part it is the open-textured nature of the concept and the practices that are associated with it that has allowed broadly inclusive and ﬂexible networks of organizations to come together for a variety of purposes, to work creat- ively across a range of forums, and to attain a degree of inﬂuence and recognition within governance institutions. Indeed, some academic commentators, such as the editors of the Yearbook of Global Civil Society, have celebrated this ambiguity, claiming that the notion of GCS ‘paradoxically creates a shared terrain on which individuals and representatives of organizations, institutions and companies can communicate with each other, can engage in a common dialogue’.15 What this conception fails to acknowledge is that this ‘shared terrain’ is also a treacherous one. At stake in these debates over the multiple meanings of global civil society is the potential for citizens and grassroots groups to make a meaningful and transformative contribution to the practices and processes of global governance. The struggles around the World Trade Organization provide a cogent illustration. 1.2. Tracking transnational advocacy at the WTO While there are, as I’ve acknowledged above, a broad array of approaches, positions and tactics advocated within the anti-WTO networks and coalitions, my research has suggested that it is possible to identify at least one strong narrative thread, that is a set of arguments around which civil society actors have most frequently rallied in their public opposition to the WTO. In addition to the variety of issues around which groups may attach different levels of signiﬁcance to, or even disagree about, one nexus of issues on which a large subset agrees is the call for increased procedural legitimacy. By procedural legitimacy, I mean the need for improvements to processes relating to transparency, accountability, access, and inclusivity. This convergence can most easily be identiﬁed through a reading of the many collectively drafted ‘sign-on’ statements issued over the past seven years.16 Although the networks and groupings of NGOs associated with the statements may vary somewhat, tracking these statements does provide a reasonable indication of issues that have generated 14. R. Buchanan and S. Pahuja, ‘Legal Imperialism: Empire’s Invisible Hand?’, in J. Dean and P. Passavant (eds.), The Empire’s New Clothes (2003). 15. Anheier et al., supra note 10. 16. See ‘WTO – Shrink or Sink! The Turnaround Agenda and International Civil Society Sign-On Letter’ (2001), online: Public Citizen <http://www.citizen.org/trade/wto/shrink sink/articles.cfm?ID = 1569>, ‘Call to Re- ject Any Proposal for Moving the MAI or an Investment Agreement to the WTO’ (1999), online: Third World Network <http://www.twnside.org.sg/title/signlet-cn.htm> and ‘Sign-On Statement On Doha Outcome And Process From Civil Society Groups’, Aftinet Bulletin (18 Dec. 2001), online: Australian Fair Trade & Investment Network <http://www.aftinet.org.au/bulletins/archives/2001/4>. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 679 some degree of consensus, and can be used for the limited purpose of describing those collective efforts made by civil society groups to inﬂuence the trajectory of the World Trade Organization since its ﬁrst Ministerial Conference in Singapore in 1996.17 Indeed, these efforts, to the extent that they were directed at bringing the questions of WTO accountability and transparency to the attention of a broader public, can be described as moderately successful. Although it is a rather difﬁcult thing to measure, after the events in Seattle, the WTO seemed for a time to have assumed a much more prominent place in public consciousness in many parts of the world. Recently, the institution has taken a number of steps to address public concerns about its perceived lack of legitimacy and accountability, without necessarily undertaking the type of dramatic reforms or roll-backs of the WTO agenda for which many activists have called. For these reasons, the shifts that have taken place at the WTO in response to NGO criticisms since its inception can be described paradoxically as both signiﬁc- ant and limited. Unlike the General Agreement on Tariffs and Trade (GATT), the 1994 Marrakesh Agreement which established the World Trade Organization does make speciﬁc reference to the matter of consultations and co-operation with ‘non- governmental organizations concerned with matters related to those of the WTO’ in Article V.2. In July 1996 the WTO General Council approved ‘Guidelines for Arrangements on Relations with Non-Governmental Organizations’ (WT/L/162). Although the guidelines give primary responsibility for WTO–NGO liaising to the WTO Secretariat, no formal institutional forum has yet been developed speciﬁcally to facilitate this interaction. Despite the lack of an ofﬁcial forum, interactions have been taking place, with increasing frequency and intensity, over the past seven years. As early as June 1994, an event was held which brought NGOs and WTO ofﬁcials together in the same room to discuss the possible linkages between trade, the envir- onment, and sustainable development. Many such symposia have been held since that time, facilitated by the WTO’s External Relations Department, generally with sessions and speakers organized by both NGOs and the WTO itself, to mixed success. NGO representatives described some of these early symposia as ‘dialogues of the deaf’. Critics have suggested that too often, instead of participating in constructive dialogue, the WTO is perceived to be using these events as opportunities to try to generate support for the institutional agenda, like the need for a new Round, or as part of an effort to defuse criticisms of the environmental impact of trade policies, or to lecture on the beneﬁts of trade liberalization.18 In 1998, following the Ministerial in Geneva, a group of NGOs developed a collective statement on transparency at the WTO, which was forwarded to the WTO 17. Such collective efforts are in addition to the wide-ranging, energetic, and well-informed efforts made by NGOs and social movements working separately on various issues. While not overlooking those efforts, the scope of this paper is far too limited to engage in a consideration of this activity or of the less visible but also ubiquitous collaborations and exchanges of research and information between NGOs that are not reﬂected in these public statements. 18. S. Charnovitz, ‘Opening the WTO to Nongovernmental Interests’, (2000) 24 (1–2) Fordham International Law Re- view 173; O’Brien et al., supra note 9; M. Khor, ‘Civil Society’s Interaction with the WTO’, (1999) Montreal Inter- national Forum Case Studies, online: MIF <http://www.ﬁmcivilsociety.org/ etud khor english text.html>. 680 RU T H B UC H A NA N prior to a scheduled review of the document derestriction policy.19 The statement called for the application of a ‘general principle of openness’ to all WTO decision- making processes, with limited exceptions only for strict negotiating texts. The NGOs also sought greater consideration of civil society input through the inclusion of NGO submissions in WTO background documents, and for the WTO to draw the attention of its member states and their delegates to available NGO documents. Although in 1995 the WTO had launched its own website, indicating that some progress had been made in terms of providing public access to WTO documents and panel judgements, in the opinion of the NGOs much more needed to be done. Since that time, the website has been expanded, partly in response to the demand for greater public access to the institution, and a speciﬁc NGO section was added.20 Also, gradually, the number of WTO documents that have been made available to the public and the speed at which they are derestricted have been increased.21 Indeed, in 2002, the WTO announced new procedures for document derestriction, something that had been under discussion with member governments since 1998. In 2003 the UK charity One World Trust ranked the WTO relatively highly on its ﬁrst ‘Global Accountability Report’, a survey of intergovernmental organizations, international NGOs, and multinational corporations on a range of indicators. The WTO ranked third out of 18 institutions on access to online information, and fourth overall, reﬂecting the strong emphasis placed by the Report on web-based accessibility as a proxy for overall transparency.22 While it is true that measures taken over the past several years have increased dramatically the amount of information available to the public about the WTO, particularly in contrast to the much more secretive GATT, speciﬁc criticisms re- main. For example, one activist advised in July 2002 that NGOs still did not have advance access to the agendas for meetings or access to minutes of actual meetings, which meant they were unable to target their advocacy efforts appropriately to educate or lobby government representatives on speciﬁc issues.23 Despite ongoing incremental developments in this area, many NGOs today would still agree with the 1998 assessment of the International Centre for Trade and Sustainable Development 19. ‘Civil Society Statement on Openness, Transparency and Access to Documents at the WTO’ (7 July 1998), on ﬁle with author and online: ICTSD <http://www.ictsd.org/ministerial/geneva/statement.PDF>. There are 51 organizations endorsing the statement as of 1 July 1998. 20. The NGO section of the WTO website was announced on 17 July 1998 by WTO Director-General Renato Ruggiero, following the ‘Civil Society Statement on Openness, Transparency’, supra note 19. See WTO, Press Release, ‘Ruggiero announces enhanced WTO plan for cooperation with NGOs’ (17 July 1998), online: WTO <http://www.wto.org/english/news e/pres98 e/pr107 e.htm>. 21. ‘Non Governmental Organizations (NGOs): Explanatory note on old and new procedures’ (20 Jan. 2003), online: WTO <http://www.wto.org/english/forums e/ngo e/derestr explane e.htm>. 22. ‘WTO Gets High Marks For Accountability, Transparency’ (11 Feb. 2003), online: WTO <http://www. wto.org/english/news e/news03 e/global account report 11feb03 e.htm>. 23. Interview cited in Law Commission Report, supra note 6. It appears as if some progress has been made since the time of that interview with respect to the release of agenda and minutes, as evidenced by Director- General Panithpakdi’s assurances to NGOs that, in relation to the Ministerial in Cancun, ‘both delegates and civil society will be aware of what issues will be covered before the conference begins’ and that ‘all parties will know if information is to be added to the agenda’. See E. Hayward, ‘Basic Information for NGOs Considering Attending the WTO Ministerial’ online: Ecumenical Advocacy Alliance <http://www.e- alliance.ch/wtoministerial.jsp>. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 681 (ICTSD) that ‘the WTO has evolved from opaque to translucent. Transparency is still some distance away.’24 Although the WTO does beneﬁt by being compared with many other far less transparent multilateral bodies, such as the G-8, it has some way to go to meet the expectations and the needs of civil society groups that want to increase their inﬂuence on multilateral trade policy-making.25 Calls for improved transparency intensiﬁed in the lead-up to the Cancun Ministerial, held in September 2003.26 Many NGO observers concluded, however, that the processes leading up to and during the ﬁfth Ministerial were ‘more or less the same as the non-transparent, undemocratic processes that have characterized the 55-year-old trading system’.27 Another means by which NGOs have sought to inﬂuence the course of negotia- tions at the WTO is by attendance at the biennial ministerial conferences. At the ﬁrst Ministerial in Singapore in 1996, the WTO initiated a process of ‘accrediting’ non-governmental organizations ‘concerned with matters related to the WTO’ for attendance at plenary sessions (but not the formal or informal negotiating sessions) during WTO ministerials. NGOs are also provided with physical facilities and access to media brieﬁngs and press releases. This proximity to the meetings was of course welcomed by the NGOs which, lacking access to formal or informal negotiating sessions, seek to make the most of whatever opportunities might arise to ‘corner national delegates on the fringes of the meeting and to publicize their views among the press corps’.28 In conjunction with the ministerials, NGOs often organize parallel symposia and meetings to which delegates are invited.29 However, these events are usually poorly attended by national delegates, and are generally not considered to be an effective mechanism for NGO communication with the institution, although they have some utility as vehicles for educating the public about trade policy issues. Even in Seattle, where a great deal of organizing by a broad range of labour, envir- onmental, ecclesiastical, development, women’s, and other advocacy groups drew record numbers of people to the city, to attend the many workshops as well as large public marches and demonstrations, the ofﬁcial NGO programme agreed to by the city of Seattle and the WTO and supported by the then US President Bill Clinton attracted little interest from ofﬁcial government delegations.30 To date, Seattle has marked the high point in NGO participation at ministerials; according to the WTO website, 739 accredited NGOs participated in the event, a 477 per cent increase over the previous ministerial.31 Following Seattle, ‘many observers expected the WTO 24. ICTSD, WTO/NGO Symposium on Trade, Environment and Sustainable Development. Bridges Between Trade and Sustainable Development, 1998 <http://www.ictsd.org/html/review2-3.7.htm>. 25. See Law Commission Report, supra note 6, at 54. 26. See Friends of the Earth International et al., ‘Letter to Honourable Luis Ernesto Derbez Bautista, Mexican Min- ister of Trade’ (2 April 2002), online: FOEI <http://www.foei.org/trade/mexico.doc>. A further statement was signed by 150 NGOs in Nov. 2002, criticizing the failure of the WTO to adhere to democratic principles. It can be found online: Friends of the Earth Europe <http://www.foeeurope.org/press/AW 14.11.02 Sydney.htm>. 27. C. Raghavan, ‘WTO Ignores Calls for Democratic, Inclusive Processes for Cancun’, 20 June 2003, online: Global Policy Forum <www.globalpolicy.org/socecon/bwi-wto/wto/2003/0620ignore.htm>. 28. O’Brien et al., supra note 9, at 93. 29. See generally M. Pianta, ‘Parallel Civil Society Summits’, in H. Anheier, M. Glasius and M. Kaldor (eds.), 2001 LSE Global Civil Society Yearbook (2000). 30. Described in more detail in Law Commission Report, supra note 6, at 35. 31. Cited in ibid., at 35. 682 RU T H B UC H A NA N to engage with critical NGOs in a more transparent and constructive manner [in order to] repair the pervasive mistrust held by civil society towards the multilateral trading system’.32 These optimistic expectations were tempered by the selection of Doha, Qatar, as the site for the following ministerial held in November 2001. In sharp contrast with the turnout at Seattle, only 366 NGOs were able to make the trip to Doha. Accreditation rules for Doha only permitted one delegate per group, ostensibly because of limited hotel space.33 Although no ofﬁcial ﬁgures have been released, NGO estimates suggest that a smaller percentage of the groups in attendance were public interest groups, and that more than half the groups accredited for that meeting were business-oriented.34 The choice of location for the meeting and the stricter limits on NGO participation were criticized as efforts by the institution to shut itself off from public debate and criticism following the events in Seattle. These suspicions were exacerbated by some representatives’ difﬁculties in acquiring visas to attend the event, and Qatar government warnings about a lack of tolerance of interference with ofﬁcial government business.35 A joint social movement, trade union, and NGO statement was issued to express these concerns following a meeting in March 2001.36 In addition, the Our World Is Not for Sale (OWINFS) network37 organized a series of parallel events around the world to highlight ongoing concerns about the directions of WTO negotiations and the impacts of trade liberalization on vulnerable communities. Key organizers of events in North America included Public Citizen and Council of Canadians. An updated OWINFS sign-on statement housed on the Council of Canadians website, which set out a number of substantive concerns about the current course of negotiations and opposing the launch of a new round in Doha, listed 380 groups in support as of November 2001.38 Groups that were able to attend the Ministerial were, despite the relative absence of high-proﬁle street protests, as active as they had ever been, focusing on speciﬁc aspects of proposed texts, and advocating a range of views on 32. ‘NGOs Pursue New Avenues to Get Their Voice to the Table’, (2001) 5 (39) Bridges Weekly Trade News Digest 1. 33. This was contradicted by one of the activists interviewed for the Law Commission Report, who observed that there seemed to be no shortage of accommodation in Doha. See Law Commission Report, supra note 6, at 44. 34. V. Yu, ‘The WTO Ministerial Conference in Doha, Qatar. Note on the General Composition of NGO Representation’, (2001) Friends of the Earth International, online: Amazonia <www.amazonia. org/Campaigns/CBDvsWTO/GENET-Newsletter/16.08.2001.htm>. 35. South African Business Report, ‘No Room at the Inns of Qatar for Visaless WTO Protestors’, 31 Aug. 2001, online: <http://www.amazonia.org/Campaigns/CBDvsWTO/GENET-Newsletter/06.09.2001.htm>; C. Denny and L. Elliott, ‘Shaping Up for Seattle at the Beach’, Guardian (4 Sept. 2002, online: Guardian <http://www.guardian.co.uk/business/story/0,3604,785702,00.html>; M. Donkin, ‘Protesters Barred from Trade Summit’, BBC Online, 9 Nov. 2001, online: BBC News <http://news.bbc.co.uk/2/hi/business/ 1646352.stm>; R. Thompson, ‘On the Ground in Doha’, APCO’s Doha Bulletin (2001), online: <http://www. apcoworldwide.com/content/services/index.cfm>). 36. Joint Statement of NGOs and Social Movements, ‘NGOs Urge Governments To Call Off ‘New Round’ Proposal’ (2001) online: TWN <http://www.twnside.org.sg/trade 10.htm>. 37. The OWINFS network describes itself on its website as ‘a loose group of organizations, activists and so- cial movements worldwide, ﬁghting against the current model of corporate globalization embedded in global trading systems. OWINFS is committed to a sustainable, socially just, democratic and accountable multilateral trading system’, online: OWINFS <www.ourworldisnotforsale. org>. 38. ‘WTO: Shrink or Sink Signatories’ (12 Nov. 2001), online: Council of Canadians <http://www.canadians. org/display document.htm?COC token = 1@@fc8f935a0ce80fe97e04e871ac25f874&id = 276&isdoc = 1&catid = 104>. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 683 substantive issues both individually and collectively at the meeting.39 A broad range of NGOs has also been publicly engaged since that time in vigorous debates over the ambiguous outcomes of the Doha meeting, countering the positive ‘spin’ given to the meeting by ofﬁcials such as European Trade Representative Pascal Lamy and the then Director-General Mike Moore.40 In contrast, activists and NGO commentators suggested it should be called the ‘Everything but Development Round’ and argued that the interests and concerns of developing countries, with which many NGOs saw themselves as aligned, were being excluded.41 Although various proposals have been advanced to create more formal institu- tional mechanisms to facilitate the NGO–WTO interaction, or even a permanent accreditation process, none has yet been adopted. Practices have evolved, however, to make procedures somewhat more efﬁcient. For example, NGOs that have obtained accreditation for two previous Ministerials did not have to undergo the full applic- ation process for Cancun.42 For Cancun, unlike Doha, up to three representatives from each NGO could apply for accreditation. However, only one pass was issued to each group permitting access to the secured area around the conference centre where all plenary sessions, meetings, and brieﬁngs were to be held. Although exact numbers have not been available at the time of writing, a very large number of NGOs applied to be accredited for the meeting in Cancun.43 A large turnout of global civil society in Cancun would not be surprising, since or- ganizing for the Cancun Ministerial began almost as soon as the site was announced. A series of preliminary meetings facilitated organizing between the transnational groups and coalitions and local Mexican groups essentially playing ‘host’ to those NGOs attending the meeting.44 People’s Forum for an Alternative to the WTO: Cancun 2003 was formed by these Mexican organizations and their international allies to serve as an ‘umbrella’ organization for Cancun and global activities related to the WTO meeting.45 A further issue attracting a signiﬁcant amount of attention, particularly from some transnational advocacy NGOs, has been the debate over the submission of 39. ‘Civil Society Groups Call on Countries to Reject Power Politics at Doha and an Expanded Agenda’ (9 Nov. 2001), ‘WTO Fails Again: The First Time Was Farce, the Second Time Is Tragedy’ (16 Nov. 2001), and ‘Green Light to Put Public Health First at WTO Ministerial Conference in Doha’ (19 Nov. 2001), online: IATP Trade Observatory <http://www.tradeobservatory.org/Library/index.cfm>. 40. M. Moore, ‘WTO and the New Round of Trade Talks’ (Speech to the 14th general meeting of the Paciﬁc Economic Cooperation Council, Hong Kong, 28 Nov. 2001), online: WTO <http://www.wto.org/english/ news e/spmm e/spmm73 e.htm>. Pascal Lamy suggested that the ‘results of Doha were globally very satis- factory indeed’. P. Lamy, ‘The Multilateral Trading System and Global Governance after Doha’ (Speech to German Council on Foreign Relations, Berlin, 27 Nov. 2001) online: Europa <http://europa.eu.int/ comm/commissioners/lamy/speeches articles/spla86 en.htm>. 41. See, for example, Maude Barlowe’s argument that the Ministerial text ‘continues to exclude the develop- ing countries’ key demands while vigorously advancing many proposals to which these WTO members adamantly object’. Law Commission Report, supra note 6, at 53. 42. ‘Registration for non-governmental organizations’ (May 2003), online: WTO <http://www.wto.org/english/ thewto e/minist e/min03 e/ngo acc e.htm>. 43. The Deadline for NGO Accreditation was 30 April 2003. 44. Key organizing meetings were held in Mexico City in Nov. 2002 and May 2003; other meetings were held in Evian, France, in May 2003. See ‘WTO Cancun Ministerial Conference 2003’ (13 May 2003), online: ICTSD ´ <http://www.ictsd.org/ministerial/cancun/>. 45. See online: Environmental Monitoring Group <http://www.emg.org.za/Documents/CancunActivites2. doc>. 684 RU T H B UC H A NA N amicus curiae briefs.46 The issue of amicus briefs has received rather more attention from legal scholars than the broader and more diffuse questions around transparency and democratization, and I will not recount it in detail here.47 NGOs are continuing to press the issue, as many argue that advances in the realm of amicus briefs represent ‘the ﬁrst step towards formal and direct participation for NGOs in the real workings of the WTO’ and can be taken as evidence of some recognition by the Appellate Body at least of the need for greater legitimacy and accountability in WTO dispute resolution.48 For our purposes, it is important to note that the arguments in favour of amicus briefs reinforce my insights regarding the procedural emphasis of NGO activism regarding the WTO more generally. 1.3. The conceptual underpinnings of global citizen action The procedural and legalistic thread that unites the practices of NGOs in relation to the WTO, their diversity notwithstanding, should not be terribly surprising if we understand it as emanating from a series of shared assumptions, or an ideology. Most important of these is the ideal of global civil society – as a realm of public engagement that can be conceived as separate or autonomous both from particular states (and the state in general) and the market. It is this ideal that gives rise to many of these transnational networks and organizations, or inspires the reorientation from a domestic arena to an international one of a group’s advocacy. And yet, as I have suggested above, it is also an open concept, necessarily deﬁned in abstraction from particular social contexts, languages, or even politics. Both the appeal and the difﬁculty of the GCS notion resides in the way in which it appears to sweep away the multiplicity, plurality, and conﬂict that are necessarily a part of interactions among agents differently situated around the globe. Because of the ideals underpinning the notion of GCS, activists working within the messy particularities of international networks can imagine a common purpose towards which they are working. That common purpose is identiﬁed in general terms as the provision of an import- ant and necessary opposition to the forces of global capitalism or global governance. 46. A. K. Schneider, ‘Unfriendly Actions: The Amicus Brief Battle at the WTO’, (2001) 7 Widener Law Symposium Journal 87; and G. Zonnekeyn, ‘The Appellate Body’s Communication on Amicus Curiae Briefs in the Asbestos Case: An Echternach Procession?’, (2001) 35 Journal of World Trade 553. 47. The amicus issue came to prominence in 1997, in relation to the by now infamous Shrimp–Turtle case, in which the United States, responding to domestic activism from environmental NGOs, prohibited imports of shrimp from several Asian countries on the basis that harvesting techniques were threatening the already endangered sea turtle. Although there was no formal provision for the acceptance of briefs from NGOs, two environmental groups did submit briefs for the consideration of the Dispute Settlement panel. The countries named in the complaint objected on the grounds that the submissions were not authorized by the DSU, and the briefs were rejected. On hearing the US appeal, however, the WTO Appellate Body, while it declined to uphold the US law, did reverse the initial panel ruling on the consideration of amicus briefs, stating that there is authority for panels to consider NGO briefs, although it amounts to neither a right for NGOs to have their briefs considered nor an obligation on the part of panels to consider them. The decision of the Appellate Body was much criticized. After the ruling, uncertainty prevailed as to the status of NGO submissions. Subsequent panels more often than not either rejected or refused to consider submissions from NGOs. See R. Howse, ‘The Appellate Body Rulings in the Shrimp/Turtle Case: A New Legal Baseline for the Trade and Environmental Debate’, (2002) 27 Columbia Journal of Environmental Law 491. 48. R. Howse, ‘Membership and Its Privileges: The WTO, Civil Society, and the Amicus Brief Controversy’, (2003) 9 European Law Journal 496–510; also Charnovitz, supra note 18, at 18. See also Law Commission Report, supra note 6, at 34. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 685 GCS is therefore set up as a countervailing force in relation to global governance, something to which we can turn when we ﬁnd that the institutions of governance are lacking – say democracy, legitimacy, accountability, or transparency. In this view, GCS both operates as a check on the unfettered and unaccountable actions of these multilateral institutions, and offers precisely those goods that its critique claims that the multilateral institutions fail to provide. In order to imagine civil society able to function as a ‘countervail’ in this way, however, one must also be able to presume that, sociologically, these two arenas can be seen as ‘distinct’. Only civil society groups that can be understood as ‘authentic’ emanations of society and not indirectly the product of states or corporations can be entrusted to perform as a coun- tervailing force to the juggernaut of states and markets.49 Whether it turns simply on our ability to make a distinction between these two realms or a more rigorous test of ‘authenticity’, this view of GCS assumes our ability to distinguish clearly between camps of ‘us’ and ‘them’, globalization from below versus globalization from above, regulation versus emancipation.50 This perspective, to the extent that it overlooks the mounting evidence of hy- brids and overlaps between these realms and the opportunities they present for co-optation as well as collaboration, can be dangerously misleading. The ‘regulat- ive’ functions of the institutions of international economic law and the potentially ‘emancipatory’ actions of civil society can be seen in many ways as co-extensive and complementary, rather than as dichotomous and discrete. A considerable amount of social scientiﬁc research already leads us in this direction, including research on transnational ‘epistemic communities’ or ‘knowledge networks’ that incorporate both state and non-state actors.51 Yves Dezalay and Bryant Garth have provided perhaps the most compelling formulation of this view in their account of the ‘new legal orthodoxy’.52 Their research on lawyers in Latin America led them to reject accounts that represented the relationship between agents of regulation and social justice advocates in dichotomous terms; ‘We see instead the development of a new orthodoxy of power that includes both neoliberal economics and human rights – even if it is quite imbalanced – and a legal ﬁeld that now manages to incorporate both quite easily’.53 The argument is based on historical and sociological research, including interviews with three hundred individuals including lawyers and eco- nomists in four Latin American countries – Brazil, Mexico, Argentina, and Chile – as 49. See for example M. Warner, Publics and Counterpublics (2002), which identiﬁes autonomy as a crucial dimen- sion of the public as self-organized and sovereign. 50. J. Brecher, T. Costello, and B. Smith, Globalization from Below (2002); A. Portes, ‘Globalization from Below: “The Rise of Transnational Communities”’, Economic and Social Research Council, Working Paper Series (1997), online: ESRC <http://www.transcomm.ox.ac.uk/working papers.htm>; A. Hunter, ‘Globalization from Below? Promises, Perils of the New Internationalism’ (1995) 25 (4) Social Policy 6; H. Chavez, ‘Latin America: Looking North or South?: Globalization From Below’, (2001) 18 New Perspectives Quarterly 16; B. de S. Santos, Toward a New Common Sense: Law, Science and Politics in the Paradigmatic Transition (1995). 51. See for example, D. Stone, ‘Knowledge Networks and Policy Expertise in the Global Polity’, in M. Ougaard and R. Higgott (eds.), Towards a Global Polity (2002). 52. B. G. Garth and Y. Dezalay, ‘Legitimating the New Legal Orthodoxy’, in B. Garth and Y. Dezalay (eds.), Global Prescriptions: The Production, Exportation, and Importation of a New Legal Orthodoxy (2002), 306–34. 53. Y. Dezalay and B. G. Garth, The Internationalization of Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States (2002), at 163. 686 RU T H B UC H A NA N well as ofﬁcials of various multilateral institutions such as the World Bank and the IMF, major foundations, and universities in the United States and elsewhere. Central to their study was a group of individuals they identiﬁed as ‘technopols’, governing elites in Latin America, most often educated in the United States,54 who ‘gradually came to incorporate two international pools of ideas: one favorable to markets and the other to democracy’.55 By focusing on individuals who frequently move between government and non-governmental positions as the vehicles for the transmission of ideas, Dezalay and Garth provide a complex account of the interconnections between these realms. Another illustration of the difﬁculty of disentangling the strands of government, corporate, and NGO sectors might be found in the very successful World Social Forum (WSF) held annually in the Brazilian town of Porto Alegre.56 ‘Another World is Possible’ is the motto of the Forum, which aims to create an ‘open meeting place where groups and movements of civil society opposed to neo-liberalism and a world dominated by capital or by any form of imperialism, but engaged in building a planetary society centred on the human person, come together’.57 Much credit for the success of this event, one of global civil society’s most celebrated incarnations, must be given to the Brazilian Workers’ Party (PT), which has controlled the mu- nicipal government of Porto Alegre for the past several years. At the time of the launch of the initial idea of the WSF at a meeting between Brazilian NGOs and the founder of ATTAC and publisher of Le Monde Diplomatique, Bernard Cassen, the PT also controlled the state government of Rio Grande du Sul.58 Indeed, Santos reports that the loss of the state election in 2002 provoked a ﬁnancial and organizational crisis within the predominantly Brazilian organizing committee.59 However, at the same time the PT leader Luis Inacio da Silva (‘Lula’) was elected president of Brazil, an event which added both momentum and high-proﬁle support to the 2003 World Social Forum.60 The various levels of government provided, among other things, security, volunteers, buses, and much needed funds to ensure the success of the event and the comfort of the 20,763 participating delegates, representing 5,717 or- ganizations from 156 countries.61 Boaventura Santos’s account of the WSF notes the ‘decisive support’ for it provided by the PT, without which ‘it would have been im- possible, at least in Brazil, to organize the WSF with the ambition that characterized it from the start. To be sure, this kind of support has its price.’ Of the relation- ship between political parties and social movements at the WSF, Santos observes 54. Ibid., at 176: ‘A new generation of Latin American leaders whose US training brought them to the virtues of economic orthodoxy and democracy’. 55. Ibid., at 177. 56. Most recently in Feb. 2003. See online: WSF <http://www.portoalegre2003.org/publique/>. 57. Online: oneworld.net <http://www.oneworld.net/specialreports/worldsocialforum/>. 58. ‘On the Attack: Interview with Bernard Cassen’, (2003) 19 New Left Review 41. See also the very useful and de- tailed account provided by B. Santos, ‘The World Social Forum: Toward a Counter-Hegemonic Globalization’ esp. s. 3.3. Online: Personal webpage of Santos <http://www.ces.fe.uc.pt/bss/fsm.php>. 59. Santos, supra note 58, s 3.3: ‘The Organizational Issue: Internal Democracy’. 60. T. Teivainen ‘The World Social Forum and Global Democratization: Learning from Porto Alegre’, (2002) 23 Third World Quarterly 621; see also ‘World Social Forum 2003’ online: Choike <http://www.choike.org/cgi- bin/choike/links/page.cgi?p=ver indepth&id=738>. 61. ‘World Social Forum 2003’, supra note 60. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 687 that while the WSF is ‘an emanation of the civil society, . . . in practice, things are ambiguous’.62 This ambiguity would perhaps not be so troubling if the realm of global civil soci- ety could indeed be understood as distinct at a conceptual level. As we have already seen, however, global civil society is an essentially open concept. Yet, despite its evid- ent ambiguities, most of us ﬁnd it possible to act as if GCS does represent a distinct and identiﬁable realm. I will argue in the next section that this is because the concep- tual contours of GCS are brought into focus by its relation to its ‘other’ – the realm of global governance. Global governance and GCS can be understood as mutually dependent pieces of a larger puzzle, or conceptual framework, that I have identiﬁed with ‘cosmopolitan legality’. Exploring the extent to which our current ideas about GCS share conceptual foundations with approaches to global governance will help to develop further the counter-intuitive proposition that global civil society, despite the purportedly oppositional stance of most of its public incarnations, may also function to reinforce or reinscribe this hegemonic globalism. This helps to explain why it is possible that the civil society efforts that I have already described, direc- ted at transforming the WTO into a more ‘transparent’ and ‘inclusive’ institution, might lead instead to its expansion and increased legitimacy without bringing about corresponding substantive changes in its normative frameworks. 2. T HEORIZING COSMOPOLITANISMS 2.1. The matrix of cosmopolitan legality: governance and global civil society In order to begin to see how global civil society, as both a conception and an emergent group of actors and practices, might function in a manner opposite to its stated aims, I have suggested that we need to examine the relationship between this concept and what it is most commonly set in relation to: global governance. The purpose of this discussion is to reveal a mutual dependence. I argue that these concepts support one another by ‘supplementing’, in the sense of mutually shoring up and helping to conceal the incoherence of the other. That is, discussions of global governance always seem to rely on some notion of a global polity for their legitimacy, while debates over global civil society are usually given both coherence and content by reference to the necessity for democratizing governance at a global level, in the shadow of growing constraints on state sovereignty.63 The co-extensive pre-eminence of these two notions has its source in a shared belief in ‘globalism’ that both perceives a particular impact of globalization on nation-states and gives content to the ‘global’ as an alternative place or ground for law, authority, and legitimacy.64 They each presume the existence of a world in which the capacity of states to govern effectively within their territorial boundaries is seen to be declining, in which the scope of the jurisdiction of sovereign states has become constrained in important new ways that go beyond the formal constraints 62. Santos, supra note 58, s. 3.3 ‘The Organizational Issue’, subheading ‘Parties and Movements’. 63. Law Commission Report, supra note 6, at 14. 64. P. Fitzpatrick, Modernism and the Grounds of Law (2001). 688 RU T H B UC H A NA N of the inter-state system of international law.65 So, for Susan Marks, ‘what is signi- ﬁcant, on this view, is the way global linkages are changing the context in which state functions are exercised . . . In fundamental respects, collective life is affected by decision-making undertaken not only at a national level, but also in a host of non-national settings – other states, international organizations, intergovernmental meetings, regional and inter-regional networks, global markets and so on.’66 Or, ac- cording to Anne Marie Slaughter, ‘the state is not disappearing; it is disaggregating into its separate, functionally distinct parts. These parts: courts, regulatory agencies, executives, even legislatures, are networking with their counterparts abroad, creat- ing a dense web of relations that constitutes the new trans-governmental order’.67 While they resist declaring outright the obsolescence of the state, I think that the implications of these state ‘transformation’ theses for state law is equally dramatic: instead of beheading the sovereign (in a Foucauldian sense), scholars who speak of global governance in terms of ‘networked minimalism’ would dismember it.68 In this account of the shift from government to governance, lawmaking is de- coupled from the state and placed in the hands of transnational networks of tech- nocratic experts or functionaries, many of them state actors, but also many who are not. ‘If government denotes the formal exercise of power by established insti- tutions, governance denotes cooperative problem solving by a changing and often uncertain cast.’69 Global governance tends to be conceived in terms both of multiple levels (involving and linking supra-state, state, and sub-state) and multiple actors. In its articulation, we can perceive the development of two contradictory themes. On the one hand, global governance evokes the notion of ‘epistemic communities’ of congenial and collaborative experts, working out the technical glitches of global commerce behind the scenes, and keeping the whole thing running smoothly. This is a picture devoid of conﬂict and politics, its vision of law reduced to mere regulation. But, at the same time, inevitably, theorists of global governance must also introduce the ‘uncertain cast’ of ‘non-state’ actors into the scene. They evoke an image that is much more crowded and conﬂict-ridden than the ﬁrst. Both images are necessary, I would argue, for the idea (and ideal) of global governance to cohere. In this regard, the parade of non-state actors inevitably introduced into discus- sions about global governance, but then kept off the stage so as not to complicate the proceedings unnecessarily, is very useful. The NGOs appear to ﬁll in the gap between the constrained jurisdiction of national law, and the acknowledged prob- lems of legitimacy and accountability of international economic law. Arguably, the ‘new legal orthodoxy’ described by Dezalay and Garth highlights this apparent con- vergence of discussions on the institutions of global governance, the important and growing role for non-state actors, and the rule of law.70 Dezalay and Garth identify 65. S. Strange, The Retreat of the State: The Diffusion of Power in the World Economy (1996). 66. Marks, supra note 2, at 77. 67. A.-M. Slaughter, ‘The Real New World Order’, (1997) 76 (5) Foreign Affairs 183 at 184. 68. R. O. Keohane and J. S. Nye Jr, ‘Introduction’, in J. S. Nye and J. D. Donahue (eds.), Governance in a Globalizing World (2000), at 12. 69. Slaughter, supra note 67, at 184. 70. Garth and Dezalay, supra note 52, 306–34. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 689 the underpinnings of the new orthodoxy in the growing prevalence of a particular – US – view of law.71 My account emphasizes, in contrast, the extent to which this convergence draws on (a putatively Kantian) ideal of cosmopolitan legality. In my view, this ideal, which includes the belief that this particular type of legality can serve as the foundation for a just and peaceful global order, is central to both GCS and global governance. For both realms, the lawmaking capacities of states are understood as increasingly conﬁned or limited from the outside by the dictates of markets and of the interna- tional economic institutions that regulate them. That is, the link between law and the sovereign seems to be increasingly destabilized, even irretrievably broken. Giving up on sovereignty, however, does not necessarily mean giving up on law. Cosmopol- itan legality is central to the solution to this dilemma. A compelling explanation of the enduring appeal of the invocation of law in the context of the ‘global’ has been offered by Peter Fitzpatrick.72 Fitzpatrick argues that the authority of modern law depends on the appeal to a transcendent, or more speciﬁcally, the irresolution between the appeal to the transcendent on the one hand and its particular instanti- ations on the other. Law, for Fitzpatrick, occupies ‘the space in-between determinate position and what [is] beyond it, and that which constitute[s] and impel[s] law [is] the antinomy between these two dimensions combined with their necessity for each other’.73 Heretofore, nation has provided the territorial foundation for law’s coincid- ent appeal to be both particular and universal, yet nation is itself also made possible by the same irresolution.74 However, within the globalist perspective I have been exploring, the need arises to replace the transcendent sovereign with yet another transcendent. The adherents of ‘global law’ introduce a different type of terminal legality, one where law’s integral reliance on a place of determination, such as nation, is denied. Law thence becomes truly, transcendently, global. It assumes a free-ﬂoating efﬁcacy which matches the quality of ‘deterritorialization’ claimed for globalization’.75 I argue that this transcendent is, for a surprisingly wide range of advocates and apologists of both global governance and global civil society, to be found in some version of cosmopolitanism. 2.2. Kant’s vision of cosmopolitanism I have already alluded to the fact that a remarkable number of the participants in contemporary debates over global governance and global civil society claim Kant 71. Ibid., at 309: ‘A US position on the rule of law for example, has been promoted almost self righteously in much of the literature about the role of NGOs, about democratization, and especially about proper government business relations.’ 72. Fitzpatrick, supra note 64. 73. Ibid., at 104. 74. Ibid., at 129: ‘For what makes a nation possible, as we have just seen, is not its particularity or its universality or any demarcated combination of the two but, rather, it is the irresolution between the particular and the universal; and it is this irresolution, the lack of any clear divide, which enables the particular to be elevated universally and the universal to be exempliﬁed particularly.’ 75. Ibid., at 184. 690 RU T H B UC H A NA N as the source of their cosmopolitan convictions.76 In a late essay, ‘Perpetual Peace: A Philosophical Sketch’, published in 1895 and intended for a popular audience, Kant articulated an ideal of a peaceful world federation of republican states linked together by trading relationships.77 It has been argued that many contemporary readers may not fully appreciate the place of this relatively anomalous essay in the context of Kant’s rather complex system of thought, and, indeed, there are ﬁerce ongoing debates over correct interpretations of Kant’s famously ambiguous text.78 However, as I have already indicated, engaging with these debates is not my primary objective. In my view, the remarkable amount of contemporary comment- ary that Kant’s essay has generated is illustrative in itself, and merits further con- sideration.79 There are several aspects of the essay that are likely to seem eerily prescient to most contemporary readers. First, many read Kant’s essay as an early modern recognition of the phenomenon that we have come to call globalization, the interconnection of states and societies around the globe, as a fundamental issue for international politics and law. That he does this long before many of the technologies that so many of us identify with globalization – air travel, fax machines, the Internet – could have been imagined is understood by different readers either as a strength or a weakness of the essay.80 Some argue that globalization is inherent in our modern era, while others claim that new technologies in particular have given rise to qualitative shifts in the nature of the interconnections in our contemporary global polity that Kant could not possibly have anticipated or accounted for, as a prelude to providing us with an ‘update’ of Kant’s own views on current conditions.81 A considerable body of recent literature has also been generated on what has been called the ‘democratic peace’ thesis, the argument that has been identiﬁed as 76. Explicit references to Kantian cosmopolitanism include S. Charnovitz, ‘WTO Cosmopolitics’, (2002) 34 New York University Journal of International Law and Politics 299; and S. Muthu, ‘Kant’s “Cosmopolitan Right”: Global Justice, Foreigners, and Anti-Imperialism in the Age of Enlightenment’, paper presented to the In- ternational Society for the Study of European Ideas Conference (Bergen, Norway, 14–18 Aug. 2000), online: St. Francis Xavier University <http://iago.stfx.ca/people/wsweet/ISSEI-Muthu.html>. P. Lamy, ‘Harnessing Globalization: Do We Need Cosmopolitics?’, speech at London School of Economics (1 Feb. 2000), on- line: <http://europa.eu.int/comm/trade/speeches articles/spla86 en.htm>; R. Kagan, Of Paradise and Power: America and Europe in the New World Order (2003). 77. I will be referring to the version collected in I. Kant, Kant: Political Writings, ed. H. Reiss (1991). 78. As Francheschet observes, ‘This relative ignorance of his critical philosophy justiﬁes R. B. J. Walker’s harsh comment that it is only a “kitsch Kantianism” which animates recent liberal theorizing and social science’, in Francheschet, supra note 4. See also Capps, supra note 3, and Cavallar, supra note 4. My analysis, as I’ve indicated, largely side-steps these debates. However, in response to critics who might nonetheless charge that by engaging with Perpetual Peace in isolation from Kantian philosophy more generally, even in this limited and qualiﬁed way, I risk offering yet another ‘mis-reading’, I would cite Gayatri Spivak, for whom intentionally mistaken acts of reading serve a useful purpose: ‘I will call my reading of Kant mistaken . . . My exercise may be called a scrupulous travesty in the interest of producing counter-narratives that will make visible the foreclosure of the subject whose lack of access to the position of narrator is the condition of possibility of the consolidation of Kant’s position’: G. Spivak, Critique of Postcolonial Reason: Toward a History of the Vanishing Present (1999), at 9. 79. See in particular the essays collected in Bohman and Lutz-Bachmann, supra note 4.Others who have taken a Kantian or neo-Kantian approach to cosmopolitanism include those writing in the Report by the Commission on Global Governance, Our Global Neighborhood (1995); M. Nussbaum, For the Love of Country (1997); D. Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995). 80. As James Bohman and Matthias Lutz-Bachmann put it, for Kant, ‘globalization is the process by which the conditions for positive peace come about’. Bohman and Lutz-Bachmann, supra note 4, ‘Introduction’, at 5. 81. J. Habermas, ‘Kant’s Idea of Perpetual Peace, with the Beneﬁt of Two Hundred Years’ Hindsight’, in Bohman and Lutz-Bachmann, supra note 4, at 113. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 691 the closest thing to an ‘empirical law’ that can be found in international relations, which is the claim that democratic nations do not go to war with one another.82 The thesis is attributed to Kant, and ﬁnds textual support in his discussion of the First Deﬁnitive Article, which states that the civil constitution of every state shall be republican. He goes on to explain that republican constitutions, insofar as they require the consent of citizens to decide whether or not to declare war, might bring about the desired result of a permanent peace simply because citizens are likely to suffer more from the consequences of war than, say, heads of state and hence will be much more reluctant to embark upon it.83 The explanatory force of this observation for current observers turns on one’s willingness to equate Kant’s republics with contemporary Western liberal democracies. It has been suggested that the consent of citizens is required in a meaningful way in very few contemporary democracies as a condition precedent for the declaration of war, and the recent worldwide citizen mobilizations against the war in Iraq might be seen as a vivid illustration of the gap between our current realities and Kant’s imagination on this point. Further evidence of a gap between our realities and Kant’s ideals is revealed in his famous remark in the First Supplement to Perpetual Peace, on the relationship between commerce and war, particularly if it is read with the recent Iraqi conﬂict in mind: 3. Thus nature wisely separates the nations, although the will of each individual state, even basing its arguments on international right, would gladly unite them under its own sway by force or by cunning. On the other hand, nature also unites nations which the concept of cosmopolitan right would not have protected from violence and war, and does so by means of their mutual self interest. For the spirit of com- merce sooner or later takes hold of every people, and it cannot exist side by side with war.84 However, most of the attention generated by the essay, and particularly among legal scholars, draws on the Third Deﬁnitive Article, in which he sets out a notion of universal hospitality, deﬁned as a right of visitation (as opposed to a right of residence) by citizens of the world in any country of the world. The right of hospitality is intriguing, as it preﬁgured such twentieth- (and twenty-ﬁrst-) century issues as large-scale migrations, displaced peoples, and refugees. Many commentators have also claimed Kant’s Third Article as the source of modern human rights law:85 The peoples of the earth have thus entered in varying degrees into a universal com- munity, and it has developed to the point where a violation of rights in one part of the world is felt everywhere. The idea of a cosmopolitan right is therefore not fantastic or overstrained; it is a necessary complement to the unwritten code of political and international right; transforming it into the universal right of humanity.86 82. A noteworthy proponent of this view is M. W. Doyle, Ways of War and Peace (1997). See A. Francheschet, ‘Popular Sovereignty or Cosmopolitan Democracy? Liberalism, Kant and International Reform’, (2000) 6 European Journal of International Relations 280–8, for a concise overview and critique of this literature; also Cavallar, supra note 4, at 238. 83. Kant, supra note 77, at 100. 84. Ibid., at 114. 85. Eleftheriadis, supra note 4, at 246. See also S. Anderson-Gold, Cosmopolitanism and Human Rights (2001). 86. I. Kant, Kant’s Political Writings, ed. H. Reiss (1991), at 107–8. 692 RU T H B UC H A NA N While it is easy to see how a vision of a cosmopolitan right (or law)87 that binds together the world not only into a community of sovereign states but, more than that, into a community of humanity, is compelling to contemporary readers, read- ings which unequivocally appropriate Kant’s cosmopolitan right (or law) as the foundation of a new global legal order are difﬁcult to square with another part of Kant’s text. While cosmopolitan law is usually identiﬁed with international human rights law and is distinguishable from international law in that it can authorize in- terference in the domestic affairs of sovereign states, such interference is speciﬁcally prohibited by Kant. A textual source for that prohibition is found in the ﬁfth prelim- inary article (‘No state shall forcibly interfere in the constitution and government of another state’), but commentators have argued that it ﬂows more generally from Kant’s views regarding the necessary autonomy and equality of all states.88 For our purposes it might be suggested that the two most salient issues for contemporary readers preﬁgured in Kant’s essay are the importance of publicity, or transparency, and the place of citizens, or collectively, a cosmopolitan public sphere, in constraining the actions of states. For example, James Bohman has suggested that Kant’s ‘unwritten code’ (mentioned in the quotation above) ‘can only mean that some informal and publicly known equivalent to international law emerges via the non-formal mechanism of world public opinion. It is in the exercise of public reason among the citizens of more powerful and civilized nations that “unwritten but nonetheless universal rights become a public and political reality”.’89 It does appear that by placing faith in the public use of reason addressed to a world public sphere as a means of constraining the otherwise unrestricted authority of states, Kant illuminated a necessary connection between the ideal of a global civil society and the issue of global governance. However, Kant has also been cited in support of the more robust arguments that a legitimate cosmopolitan framework for global governance must include the active participation of a critical and educated world public, that extend well beyond his own modest proposal for a ‘federation of republics’. However, it is this idea, or variants on it, that underpins much of the theory and practice of global civil society discussed in the ﬁrst section of this article, and it is to these contemporary debates that we shall now turn. 2.3. Contemporary appropriations of the cosmopolitan ideal One of the problems with many contemporary versions of cosmopolitanism, apart from their distance from their claimed Kantian origins, is the tendency of the cos- mopolitan to universalize a particular perspective which conveniently tends to be his own.90 Bound up with this problem of the covert ‘globalized localism’ of most 87. The German word ‘recht’ can be translated as law, right or justice. Interpretations of the preceding quote vary in their translation of the term. For different approaches to this issue of translation in Kant’s writing, see Flikschuh, supra note 4, at 11, and Eleftheriadis, supra note 4, at 242. 88. E.g. Reiss, in Kant, supra note 77, at 96. On the issue of the ‘right of intervention’, see Cavallar, supra note 4, 240–3. 89. J. Bohman, ‘The Public Spheres of the World Citizen’, in Bohman and Lutz-Bachmann, supra note 4, at 182. 90. As Daniel Archibugi admits, cosmopolitans may be guilty as charged of too often ‘falling prey to the conviction that, by coincidence, the best customs are their own’. D. Archibugi, ‘Demos and Cosmopolis’, (2002) New Left Review 24 at 25; as quoted in Buchanan and Pahuja, supra note 1, at 309. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 693 invocations of the cosmopolitan is the way it functions in a world of profound inequality. That is, as I have argued with Sundhya Pahuja, very few cosmopolites are self-reﬂexive about the privileges that enable them to occupy that position.91 Boaventura Santos is more direct in his condemnation of the imperialist tendencies with which the concept has been suffused, arguing that ‘more often than not, when this concept has been used – either as a scientiﬁc tool to describe reality or as an instrument in political struggles – the unconditional inclusiveness of its abstract formulation has been used to pursue the exclusionary interests of a particular social group. In a sense cosmopolitanism has been a privilege of those that can afford it.’92 As this critique has been well aired recently both within and beyond the ﬁeld of international law, I will not enlarge on it here.93 Instead, this section will focus on serious efforts, which have met with varying success, to reclaim and reconstruct cos- mopolitanism in the service of pluralist, democratic, or subaltern ends. We might call these ‘critical cosmopolitanisms’. While they are too numerous to elaborate here, contemporary critical reappropriations of the cosmopolitan vision would in- clude approaches such as Boaventura Santos’s notion of ‘subaltern cosmopolitanism’. Santos’s reconstructed utopian vision includes a ‘mosaic’ of cosmopolitan initiatives ‘allowed to engage without apology with their particular roots and their empirical reality’.94 He claims that the litmus test to determine whether a movement or an initiative belongs under his banner of ‘subaltern cosmopolitanism’ is whether their ‘political creativity’ has rendered the world less comfortable for global capitalism.95 Another approach, which contrasts with Santos’s top-down–bottom-up approach, is that advanced by William Connolly. He argues for a ‘plural matrix’ of cosmo- politanisms, or regulative ideals, governed by the cultivation of modesty about the contestability of one’s own faith or philosophy.96 I shall focus my attention in this article on one particularly inﬂuential approach, that is, the theory of ‘cosmopolitan democracy’ advanced by David Held and others. The debates around cosmopolitan democracy are still too unwieldy to summarize here, however, and so I will conﬁne myself to a consideration of Held’s model as it is adopted by Susan Marks in her recent book on democracy and international law.97 Marks turns to Held’s model of cosmopolitan democracy to shore up the shortcomings, cogently identiﬁed by her in the ﬁrst part of the book, of liberal 91. Buchanan and Pahuja, supra note 1. 92. B. de S. Santos, Toward a New Legal Common Sense: Law, Globalization and Emancipation, 2nd edn (2002), 460. 93. See, e.g., B. Rajgopal, ‘From Modernization to Democratization: The Political Economy of the ‘New’ Interna- tional Law’, in R. Falk, L. E. J. Ruiz, and R. B. J. Walker (eds.), Reframing the International: Law, Culture, Politics (2002), 136–62; A. Anghie, N. Berman, S. Pahuja, V. Nesiah, etc. 94. Santos, supra note 92, at 464. 95. Ibid. 96. William Connolly, Neuropolitics: Thinking, Culture, Speed (2002), 199: ‘As the hope to secure a single regulative ideal is shaken by a world spinning faster than heretofore, a small window of opportunity opens to negotiate a plural matrix of cosmopolitanisms. The possibilities of afﬁrmative negotiation depend upon several parties relinquishing the provincial demand that all others subscribe to the transcendental, universal, immanent, or deliberative source of ethics they themselves confess. That ain’t easy. Still a start can be made in Euro- American regimes as Kantians, neo-Kantians, and Nussbaumites acknowledge the profound contestability of the conception of morality they confess most fervently, and as they adopt a modest stance towards those who don’t confess it.’ 97. Supra note 66, at 157. 694 RU T H B UC H A NA N international approaches to the question of a right to democracy.98 Marks comes to her project with a well-developed critique of the way in which mainstream approaches to what she calls the democratic norm thesis in international law actually operate to stabilize existing power relations both by identifying democracy with low- intensity democracy, and conﬁning it within the territorial scope of nation-states. Her argument powerfully demonstrates how ‘the move to promote democracy through international law becomes a step in securing systematic inequalities among states, within states, and in global governance generally’.99 Her reconstructive project seeks to recruit David Held’s theory of cosmopolitan democracy to underpin her own argument for a ‘principle of democratic inclusion’ that might ‘serve as a means of grounding efforts to direct international law to the democratization of global politics’. She expresses the hope that the principle might help to make these efforts appear ‘justiﬁed, and even necessary and urgent’.100 Cosmopolitan democracy is articulated as a speciﬁc response to conditions of globalization, that is, a world in which issues increasingly ‘transcend national fron- tiers’. As Held puts it, ‘the problem of democracy in our times is to specify how it can be secured in a series of interconnected power and authority centers’.101 In such an interconnected world, according to this view, Democracy can only be fully sustained in and through the agencies and organizations that form an element of, and yet cut across, the territorial boundaries of the nation state. The possibility of democracy today must, in short, be linked to an expanding framework of democratic states and agencies bound by and committed to democratic public law.102 The cosmopolitan model of democracy is said to be based on three key require- ments: ﬁrst, that systems of accountability must be extended to enable issues which elude the regulatory capacity of individual national governments to be brought un- der better democratic control; second, that established agencies of geo-governance be reoriented and restructured so that they provide a more coherent and effective focus for public affairs; and third, and most signiﬁcant for the argument here, that the place of the international public sphere be acknowledged and strengthened, through the closer articulation of international civil society and its diverse associ- ations and organizations with international political institutions.103 This last does seem to be the most important and most debated feature of the model of cosmopol- itan democracy, which has also been described as ‘a model of political organization in which citizens, wherever located in the world, have voice, input and political representation in international affairs, in parallel with and independently of their 98. I have identiﬁed Marks because she is a thoughtful exemplar of a more general tendency. For another example, see H. Patomaki and T. Teivainen, ‘Critical Responses to Neoliberal Globalisation in the Mercosur Region: Roads Towards Cosmopolitan Democracy?’ (2002) 9 Review of International Political Economy 37. 99. Supra note 66, at 101. 100. Ibid., at 116–17. 101. D. Held, ‘Cosmopolitan Democracy and the Global Order’, in Bohman and Lutz-Bachmann, supra note 4, at 245–6. 102. Ibid., at 246. 103. Supra note 66, at 104. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 695 own governments’.104 Mark’s articulation of the principle of democratic inclusion reinforces this emphasis. She argues that the principle would ‘support and pro- mote moves to make the process of (international) law making more inclusory’ and, further, that it would ‘help to justify the efforts of NGOs to take up a central role in the framing of international legal norms’.105 That expanding the space for the participation of NGOs in global governance is a good thing is taken as axiomatic. Marks (and Held) argue that to reinvent global institutions along the lines re- quired by cosmopolitan democracy would require many and substantial changes to the ways in which the world is governed. However, it is also argued that those changes ﬁnd their precursors in certain current developments, notably demands articulated by global civil society for transparency and accountability on the part of international institutions: the project cannot be dismissed as futile, for . . . moves are already under way to demon- strate how transparency may be improved and accountability enhanced. In this con- nection a frequently cited development is the rising proﬁle of social movements, non- governmental organizations, and pressure groups. Of course, only a small self-selecting and largely elite section of the world’s population takes part in such initiatives. But, while few observers have illusions that these elements of an international civil soci- ety alone can sufﬁce, many see in them important indications of how the circle of participation in international and transnational decision making might begin to be enlarged.106 Of the institutions to which Marks may be referring in this passage the WTO is, of course, a key example. We have seen, however, the ways in which that institution has responded to NGO demands for improved accountability and transparency over its relatively short history, and on that account, I would argue, there is a reasonable basis for pessimism regarding Marks’s claim that, following Held, these developments can be seen as the precursors to the type of profound institutional transformation required by the theories of cosmopolitan democracy. 2.4. Towards perpetual process? Querying the connection between participation and justice The previous discussion of efforts to lay claim to the Kantian legacy through con- temporary reappropriations of cosmopolitan legality returns us to the issue with which this article began, the ongoing conversation about the role of global civil society in democratizing the institutions of global governance. Indeed, these con- versations tend to have a circular quality to them, returning again and again to the interdependent roles of civil society and governance, governance and civil society. The institutions must include more actors from civil society so that they can be more democratic; they must become more democratic so that civil society can be included. One is tempted to cut the conversation short by echoing David Kennedy: 104. Ibid., at 109, citing D. Archibugi and D. Held, ‘Editors’ Introduction’, in Archibugi and Held (eds.), Cosmopolitan Democracy: An Agenda for a New World Order (1995), at 3. 105. Supra note 66, at 113. 106. Ibid., at 85. 696 RU T H B UC H A NA N ‘Why are we limited to celebrating the expansion of participation in an emasculated policy process?’107 Why indeed? It seems as if the question of how or if the demo- cratic changes called for will effect substantive as opposed to merely procedural change is never directly engaged by this circular conversation about participation and democracy. There may yet be another level at which a critical response could be formulated, however. One might ask just what role this global civil society, or global public sphere, does or could perform – or to put it more bluntly, so what if global civil society makes the institutions of global governance more transparent? Will anything really change? In a recent study of the relationship between technoculture and democracy, Jodi Dean has made an argument about the ideological function of technoculture that in some senses overlaps and parallels the argument I have been making in this paper. This should not be surprising as these developments are often seen as coincidental with one another. That the rise of the Internet has facilitated the organization of transnational coalitions of NGOs and the organization of protest events by social movement actors in a way that would have been unimaginable two decades ago has been well documented.108 In her book Publicity’s Secret, Dean argues that the ideal of the public sphere has come to function ideologically as we have entered an era of what she calls ‘communicative capitalism’.109 Her starting point is that con- temporary discussions of the Internet identify it with the potential for a resurgent global democracy at the very same time as it is has become the apotheosis of the free market. So she describes how Jurgen Habermas, undoubtedly the leading theorist of ¨ the public sphere, identiﬁes the phenomenon of a ‘world public sphere’ emerging in today’s ‘cosmopolitan matrix of communication’.110 While he identiﬁes the cos- mopolitan public sphere with digital communication networks, in Dean’s account, Habermas fails to remark upon the ‘ruthless economic preconditions of this digital- ization’.111 Yet it would seem clear that prevailing conditions of profound economic inequality, and corresponding unequal access to these networks, tend to subvert and undermine whatever democratic promise they might contain. The appearance of democracy and openness, however, continues to serve an ideological function, facilitating continued belief in the dream of global public space while concealing its market-driven nature. So, while critical theorists locate the possibilities for both freedom and legitimacy in a public sphere identiﬁed by appeals to openness, trans- parency, inclusivity, accessibility, and so on, those same ideals in Dean’s account function to aid the furtherance of a commodiﬁed technoculture, rather than its democratization.112 Dean’s analysis follows Zizek in focusing on contemporary beliefs that automat- ically link democratic processes with substantively better outcomes: ‘there is no 107. D. Kennedy, ‘Background Noise? The Underlying Politics of Global Governance’, (1999) 21 (3) Harvard International Review 52, at 54. 108. S. Saskia, ‘Global Cities and Diasporic Networks’, in Yearbook of Global Civil Society (2002), online: LSE <http://www.lse.ac.uk/Depts/global/Yearbook/PDF/ PDF2002/GCS2002%20pages%20%20.pdf>. 109. J. Dean, Publicity’s Secret: How Technoculture Capitalizes on Democracy (2002), at 3. 110. Ibid., at 156. 111. Ibid., at 157. 112. Ibid., at 162. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 697 guarantee that the democratic politicization of crucial decisions, the active involve- ment of thousands of concerned individuals, will necessarily improve the quality and accuracy of decisions and thus effectively lessen the risks’.113 Dean’s thesis is that in the world of communicative capitalism, the ideal of the public sphere func- tions ideologically, protecting the circulation of global capital, primarily through its assumption that communicative expansion enhances democracy. Democratic potentials are thereby collapsed into increases in access and communic- ation. Democratic governance becomes indistinguishable from intensiﬁcations and extensions in the circulation of information. Our deepest commitments – to inclusion, equality, and participation within a public – bind us into the practices whereby we submit to a global capital.114 The same conditions of profound economic inequality which structure access to communicative networks also structure access to international economic insti- tutions. The claims made in support of the democratizing potential of global civil society parallel, and to some degree, overlap the claims made about the inherently democratic nature of the Internet, and the extent to which each is already embedded within a capitalist global marketplace, destabilizing, unequal, and commodiﬁed, is overlooked. Rather than functioning to democratize global governance, I strongly suspect that in most of its incarnations, the role of global civil society – in so far as it is linked with the appeal to inclusion, openness, transparency, accessibility and so on – functions to further the current tendency towards an increasingly legalistic approach to global governance, driven by the expansion and expanded legitimacy of institutions such as the WTO and the World Bank. 3. C ONCLUSIONS The account I have provided of the best efforts of NGOs arrayed in opposition to the WTO reveals that the involvement of civil society, particularly in its more ‘institutional’ incarnations, might even accelerate the process of global governance. This process is furthered by the inclusion of a range of ostensible critical perspectives, the opening up of the institution to a degree of scrutiny, and through the magic words ‘transparency and accountability’ create the illusion of democratic deliberation where none had existed before. In a way, Susan Marks has anticipated this argument by allowing that her own principle might be subjected to the same ideology critique that she has levelled against the norm of democracy in international law. Because we cannot anticipate a world in which meaning no longer serves power . . . we must remain constantly alert to the danger, highlighted by Slavoj Zizek, of sliding back into ideology just when we seem to step out of it. From this perspective, the principle of democratic inclusion must be seen as part of an ongoing process of critique. It 113. S. Zizek, The Ticklish Subject: An Essay on Political Ontology (1999), at 388. 114. Supra note 109, at 151. 698 RU T H B UC H A NA N draws out emancipatory potentials. But, since it can also become a vehicle for closing off democratic potentials, it requires to be approached with the same critical attitude out of which it was born.115 The aim of this paper, then, has been to contribute to this ongoing process of critique in which Marks and others are also engaged by offering a speciﬁc warning about the ways in which ‘globalist’ assumptions about the nature of ‘cosmopolitan legality’ function in contemporary debates about the role of global civil society at the WTO. I have argued that we need to become more attentive to the particular ways in which the ideal of cosmopolitan legality that remains at the heart of most cosmopolitanisms, even subaltern, decentred and democratic ones, functions to subvert and undermine efforts to promote global justice. And I have illustrated some of those processes and possibilities through my discussion of recent advocacy efforts in relation to the WTO. (Im)possible cosmopolitanisms? It is no longer a question of whether perpetual peace is really possible or not, or whether we are not perhaps mistaken in our theoretical judgement if we assume that it is. On the contrary, we must simply act as if it could really come about (which is perhaps impossible) and turn our efforts towards realizing it.116 This article has argued that the optimism embedded within contemporary restate- ments of a vision of cosmopolitan law, attributed to Kant, in which the will of peoples expressed through a global public sphere would effectively constrain the belligerent tendencies of states both towards other states and towards their own citizens, continues to blind us to the social and historical conditions that have always tended to militate against its realization. The apparent impotence of the movement against the US-led war in Iraq, which in size, organization, and global scope was simply unprecedented, conﬁrms the extent to which these purportedly Kantian intuitions continue to be confounded. The profound economic, technolo- gical, and military inequalities that structure the current global order are far more resilient than we might wish to believe. Does this mean that cosmopolitanism is an impossible political project? Should it therefore simply be abandoned? While my analysis in this article is intended to sow seeds of doubt regarding contemporary theories and practices of cosmopolitan legality, I do not thereby wish to argue that cosmopolitanism is no longer relevant to our current global condition. I am suggesting, however, that we may need to reorient our readings of Kant’s compelling ideal. One provocative reorientation is that offered by Jacques Derrida in a brief essay, ‘On Cosmopolitanism’, which considers the notion of universal hospitality, as in Kant’s Third Deﬁnitive Article of Perpetual Peace. The contradictory implications for state sovereignty of the requirement of universal hospitality and Kant’s insistence that there can be no exceptions to the ﬁfth Preliminary Principle – of 115. Supra note 2, at 118. 116. Kant, supra note 77, at 174. G LO B A L C I V I L S O C I E T Y A N D C O S M O P O L I TA N L E GA L I T Y AT T H E W TO 699 non-intervention in the affairs of sovereign states – has been observed above. Derrida confronts this contradiction head on. For him, the invocation of cosmopolitanism provides a compelling example of the persistent dilemmas of modernity, the ongoing negotiation between the contradictory demands of the absolute and the relative, the universal and particular, the conditional and unconditional.117 It is a question of knowing how to transform and improve the law and of knowing whether this improvement is possible within an historical space which takes place between the Law of an unconditional hospitality, offered a priori to every other, to all newcomers, whoever they may be, and the conditional laws of a right to hospitality, without which the unconditional law of hospitality would be in danger of remaining a pious and irresponsible desire, without form and without potency, and of even being perverted at any moment.118 Without attention to the particular or the conditional ‘pole’ of the dichotomy, the cosmopolitan right to hospitality would remain empty, capable of perversion or, I venture to add, co-optation. For Derrida, the cogency of cosmopolitanism lies in the tension or pull that it creates between these two orientations. What is not clear in his account is whether he believes, as do Santos, Held, and Marks, that it is possible to reorient institutions or actors with reference to the unconditional and therefore unattainable cosmopolitan law of hospitality. What he does seem to insist upon, however, is the necessity of both aspects of this duality. This seems to imply that for Derrida (as for Kant, albeit for very different reasons), whether or not improvement of the law is possible, we are called upon to imagine that it could be.119 It is necessary to recognize that today, persistent economic inequality and wide- spread social injustice are apparently compatible with what has been commonly identiﬁed as the framework of cosmopolitan legality: an expansive system of well- established institutions of global governance as well as an engaged and committed global public sphere. Our practical cosmopolitanisms will always fall short of the cosmopolitan ideal. Recognizing this, however, does not require that we thereby renounce our cosmopolitan aspirations. An alternative reading of cosmopolitanism might understand that it is not really about offering a political or juridical solution to problems of justice in the world, as it is often taken to be. Rather, cosmopolit- anism is better understood as an invitation towards a particular ethical stance, one that insists that we continue to seek to realize the unrealizable aspirations encoded within it. 117. See generally S. Critchley and R. Kearney, ‘Preface’, in J. Derrida, On Cosmopolitanism and Forgiveness (2001). 118. J. Derrida, On Cosmopolitanism and Forgiveness (2001), at 22. 119. I should not be taken here to be indirectly attributing to Derrida the notion of a Kantian ideal. While Derrida’s account perhaps points us towards the persistence of the unconditional within each act that seeks to make a right to hospitality operative, the Kantian formulation suggests, in contrast, a transcendental ideal of cosmopolitanism beyond our capacity to realize it. I thank Peter Fitzpatrick for pointing this potential misreading of Derrida out to me. On the Kantian ideal, see Cavallar, ‘Perpetual peace is above all and in the ﬁrst place a moral duty and hope, a matter of ‘unscientiﬁc moral action and belief. We should adhere to normative principles while at the same time knowing that our ways of realizing them are always deﬁcient’, supra note 4, at 248. Similarly, Connolly (supra note 96) suggests that ‘Cosmopolitanism . . . gains a grip in Kant’s moral imagination only because it ﬂows from a transcendental imperative to act as if the world were ﬁlled with a providential direction that stretches beyond the reach of human agency’ (180–1).
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