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Perpetual Peace or Perpetual Process Global Civil Society and by pharmphresh27

VIEWS: 34 PAGES: 27

									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.
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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.
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   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>.
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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>.
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(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.
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      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>.
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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.
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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.
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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.
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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.
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      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.
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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.
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          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.
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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.
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      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.
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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.
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      ‘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[09]%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.
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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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