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Beyond ConstitutionalismThe Pluralist Structure of Postnational Law$

Nico Krisch

Print publication date: 2010

Print ISBN-13: 9780199228317

Published to Oxford Scholarship Online: January 2011

DOI: 10.1093/acprof:oso/9780199228317.001.0001

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Cooperation and Power in a Pluralist World

Cooperation and Power in a Pluralist World

Chapter:
(p.225) 7 Cooperation and Power in a Pluralist World
Source:
Beyond Constitutionalism
Author(s):

Nico Krisch

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199228317.003.0007

Abstract and Keywords

Chapter 7 focuses on prospects of cooperation and problems of power in pluralism. Assertions of competing supremacy claims are typically part of processes of change in the respective regimes, and this element of change is also crucial for the broader assessment of pluralism's promise. As postnational regimes change—and are strengthened—they provoke challenges from disaffected actors, including domestic ones which are typically at the margins of regime design and adaptation. Pluralism's openness helps to buffer and accommodate such resistance informally, allows for working around competing claims in an incrementalist fashion, and constructing authority over time. Contrary to widespread assumptions in the literature, it can also help to remedy (rather than reinforce) power asymmetries in postnational governance. As regimes evolve, they prompt processes of normative change and trigger greater demand for institutional transformation by previously excluded actors. Pluralism's openness provides space for such challenges, while constitutionalist orders tend to stabilize initial, often more power-driven designs.

Keywords:   pluralism, constitutionalism, cooperation, stability, power, postnational governance, resistance, authority, normative change

The pluralist postnational order, as we have encountered it in the last three chapters, appears like a rugged, mountaineous terrain: highly uneven, difficult to get a grasp of, and certainly not formed according to neat and clear principles. It is a far cry from the hope for an order based on reason along constitutionalist lines—much of it seems due to ‘accident and force’ and not the ‘reflection and choice’ Alexander Hamilton saw in the (American) constitutional project.1

And yet, this pluralism has not caused as many problems as one might have feared. In most of the cases we looked at it led to irritations on particularly salient issues but did not hamper the smooth, day-to-day functioning of the regimes in question. Yet our choice of cases was not representative; it was merely meant to provide a start in the inquiry into the empirics of pluralism. And it was meant to produce insights on the questions that had been left hanging in the normative engagement in Chapter 3. In that chapter, I made a case for pluralism based on its ability to accommodate competing choices and loyalties for different collectives in the postnational space. But a number of concerns remained: regarding pluralism's stability, its vulnerability to capture by powerful actors, its democratic credentials, and its relationship with the rule of law.2 It is to these issues that I return in this final part of the book. Concerns about democracy and the rule of law will be the subject of the next chapter, while the present one focuses on questions of stability and power.

I begin this latter inquiry by sketching the shape of the postnational pluralist order with a more systematic intention than in the pointillistic approaches of the case studies (Section I). Understanding the contexts in which pluralism becomes most visible and some of the driving forces behind it will then help us tackle the further questions about stable cooperation and power that are at the core of this chapter (in Sections II and III). The analysis of these (p.226) issues seeks to connect insights from the case studies and related inquiries with broader literatures on governance in the postnational space. Given the limited empirical basis, this is more of a stocktaking than a definitive assessment of the vices and virtues of pluralism as a model of postnational order. It should help us gain a clearer understanding of the processes at work and develop hypotheses about the potential for (and limits of) cooperation such an order entails—hypotheses that might be used, confirmed, or refuted, in future studies of the phenonemon.

This endeavour does not operate in an ideal world. Structures of governance have to fit the society in which they operate, and the make-up of ‘postnational society’ makes demands on them that we do not typically find in domestic contexts; its radical diversity is only the most prominent among them.3 When thinking about pluralism, we should thus be careful to evaluate it in comparison not to an idealized alternative, but to how other models of order would (or do) fare in a similar context. Throughout this book, I have focused on the constitutionalist alternative because it represents an antithetical yet equally coherent response to the demise of the classical, intergovernmental paradigm of law and politics beyond the state. Both—pluralism and constitutionalism—acknowledge that we have to theorize the global legal order as a whole, not just distinct parts of it; but they differ in whether or not the new order does (and should) rely on an overarching legal frame to structure it. Both competing models offer only broad frames which can be filled by very different institutional arrangements; they do not represent prescriptions for all facets of global regulation. But contrasting them can provide greater clarity about the implications of a fundamental structural choice that may then guide us in analysing, and constructing, the institutions of postnational governance in greater detail.

I. THE SHAPE OF POSTNATIONAL PLURALISM

Before engaging in a more detailed assessment, we should pause for a moment and consider the commonalities and differences of the various phenomena that have gone under the name of pluralism in the preceding chapters. All of them were broadly heterarchical in character, but the element of heterarchy expressed itself quite differently in the context of European human rights, UN sanctions, or global risk regulation.

The central thread running through these cases is the one highlighted in Chapter 3: a genuinely legal form of heterarchy in which various claims to supremacy compete. I have not been interested in the (merely) political competition for influence nor in forms of institutional pluralism within a shared legal frame of reference. Instead, I have drawn upon characterizations first (p.227) developed in legal anthropology and later applied to the European Union,4 and I have tried to show how they can help us capture developments that reach well beyond the EU into broader regional and global settings typically conceived through the separate lenses of domestic and international law. The case studies are too few to allow for broad generalizations; but they indicate that pluralist structures are prevalent in a number of key areas of European and global governance. And they reveal a number of common traits that can help us understand the conditions and logic of pluralist orders.

Contexts

The instances of pluralism observed here were typically related to the rise in importance of particular international institutions—the European Court of Human Rights (ECtHR) in Chapter 4, the UN Security Council in Chapter 5, and the World Trade Organization (WTO) Dispute Settlement Body in Chapter 6. This reflects, on the one hand, the claim developed in the introductory chapter that the emergence of ‘postnational law’ is closely linked to particularly strong forms of trans- and international cooperation; it is here that the blurred line between domestic and international law becomes most acute and that new conceptualizations are needed.5 On the other hand, strong institutions crystallize the supremacy claims that enter the heterarchical competition: outside institutional frameworks, such claims will often remain inarticulated; it is only through concrete and specific demands that a confrontation of claims become visible. Many articulations of pluralism—including those analysed here, but also, for example, in the EU—arise out of contexts of close integration; indeed, they typically reflect processes of resistance to the rise of regional or global institutions and their increasing impact.

If pluralism is most visible in tight institutional settings, it is not necessarily limited to them. This already follows from the way in which assertions of supremacy are usually framed: with the exception of the particular case of the EU, courts typically make claims not for particular contexts but for the relationship between domestic (or regional) and international law in general. The German Constitutional Court's response to the ECtHR is a case in point, as is the stance of the European Court of Justice (ECJ) on UN and WTO law (even if the latter is based on a variation of the general rule). International and domestic law have long coexisted with diverging visions of hierarchy—in the classical dualist order, national constitutions insisted on governing the relationship, while international law rejected arguments from (p.228) domestic law as justifications for non-compliance. As this coexistence in separate spheres comes under increasing pressure from growing interlinkages, the competing rules on the relationship are increasingly in tension with one another. This tension may not come to the surface as long as conflicts do not flare up in institutional settings; rival actors may instead frame divergence as interpretation of the respectively other (underspecified) layer of law. Contests about the meaning of human rights under the UN Covenants are a case in point.6 In such instances, undecided hierarchies are not in the foreground—they provide the backdrop to processes of legal interpretation in the different sites.

The same holds true for the increasingly dense cooperation in government networks, which largely uses ‘soft’ instruments and thus escapes the field of ‘hard’ law.7 Because of the prevailing informality, hierarchies are unarticulated here; cooperation relies on consensus and non-binding commitments that leave all actors formally free. This is typically interpreted as leaving national sovereignty unaffected; indeed, as bolstering it in certain respects.8 Yet this is only true as long as network governance takes place in the shadow of only national supremacy claims; the situation is more ambivalent when a network is situated among competing claims. This is the case, for example, in the EU where government networks—typically in the form of the Open Method of Coordination (OMC)—have become a mainstay of ‘new governance’.9 They have emerged in issue areas such as employment, social policy, and education, in which member states were unwilling to transfer stronger formal powers to EU organs. That far, they do indeed protect national supremacy claims. But they have also been established to ward off attempts by EU bodies to extend their powers into these areas, which in the context of dynamic treaty interpretation by the European Commission and the ECJ may have been a real possibility. From this angle, the emergence of network governance appears as a bridge between different supremacy (p.229) claims; one that allows for cooperation while leaving the issue of principle in the balance.10 As in UN sanctions administration and global food safety regulation, the turn to networks may then be interpreted as yet another pragmatic tool to steer clear of contested supremacy claims in a pluralist order.

Time

Rival assertions of supremacy claims often follow a strong institutionalization beyond the state, but typically they result less from the establishment of such authority than from its change. National courts came to contest the ECtHR's authority when it had grown more influential and encompassing in scope; European courts challenged the UN Security Council at a point when it had morphed from occasional intervenor to detailed regulator in security affairs. And the challenge to WTO authority arose when WTO jurisprudence had filled the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) with a meaning not necessarily anticipated at the moment of its creation. Likewise, the articulation of national supremacy claims vis-à-vis the European Community was a response to its increasingly immediate impact on national law and policy, created through the doctrines of primacy and direct effect by the ECJ.11

At the same time, as we have seen, most of these instances of contestation were not the endpoint of a process, but moves in a continuum of regime change, designed to influence other actors rather than settle an issue once and for all. The result of such strategic moves has in most cases been some form of mutual accommodation of the different actors and layers in a regime. In a related context, that of essential medicines and trade related aspects of intellectual property rights (TRIPS), Larry Helfer has described the dynamic as one of ‘regime shifting’: as an ‘iterative, longer-term strategy that seeks to create outcomes that have feedback effects in other venues’.12

This helps us understand the relevant trajectories, and it suggests that in order to grasp the processes in their entirety, we have to take into view creation and implementation not as separate but as intimately connected (p.230) elements in the development of a regime.13 This is not new to international lawyers who have long understood the making of international law as a process involving customary elements as well as the ‘subsequent practice’ under international agreements. However, the debate about ‘compliance’—long central to explorations at the intersection of international law and international relations scholarship—has often taken the existence of stable, predetermined rules as a given.14 Likewise, much theorizing about the creation of international regimes has focused on how states arrive at formulating terms of agreement (which may then be subject to implementation and enforcement).15 Both perspectives have paid less attention to the feedback effects from implementation to regime design—feedback effects that are likely to follow a different logic than the initial creation of a regime: new actors may be mobilized and previous participants may see their participation in a new light. The trajectory of the SPS Agreement is a good example: initially seen by the negotiating governments as a technical matter, largely to be left to experts, its growth in importance through shifts in the politial context as well as its interpretation by WTO bodies activated other constituencies within governments and mobilized domestic actors—industry, civil society—that previously had paid little attention.16 This accords with broader accounts of a greater (domestic) politicization as a result of higher legalization and institutionalization.17 The assertion of rival supremacy claims appears as a direct result of this change in the structure of actors.

(p.231) Directions

The most typical direction of pluralist conflicts throughout the case studies has been what in Chapter 6 I have termed ‘vertical’—a competition between lower level and higher level actors. Thus, we have encountered the interaction between national courts and the ECtHR; European courts and the UN Security Council; and again European courts and the WTO. Yet we have also detected pluralism in the ‘horizontal’ dimension—as between different actors operating on the same level, such as EU courts and the ECtHR and the Biosafety Protocol regime and WTO dispute settlement. This latter aspect evokes the perennial debate about the fragmentation of international law into multiple, potentially self-contained, regimes,18 but it also links to the literature about regime complexes in international relations.19

Whether the contrast between the ‘vertical’ and ‘horizontal’ dimensions is ultimately useful may be doubted. In the first place, the image of levels with its association of super- and subordination does not sit well with the idea of a heterarchical order in which hierarchies are precisely not settled. More substantively, we may understand both vertical and horizontal conflicts as expressions of a competition among constituencies—as rival claims of different societal groups that might be nested in one another, overlap, or be altogether separate. Because of the strength of national loyalties, one of these collectives will often be the national one, and it will typically contest supremacy claims of broader constituencies. Yet such contests can just as well arise between differently assembled collectives in a global setting—such as those around the WTO (trade-minded, with a strong role for both the US and Europe) and the Biosafety Protocol (more environmentally minded, with a strong role for Europe and a number of developing countries, but a lesser one for the US). Or those of the more homogeneous, more closely integrated European Union vis-à-vis the wider, looser group of states party to the European Convention on Human Rights.

The dichotomy of ‘vertical’ and ‘horizontal’ may then have little explanatory force; we will have to look in greater detail at the shape of the competing collectives and the driving forces behind their claims. Some of these claims will be stable and deeply rooted, others will stem from collectives assembled ad hoc for a particular purpose or around a particular issue. The (p.232) dynamics between them will depend in large part on the material and ideational resources the different constituencies can muster, but not necessarily on the direction (vertical or horizontal) of their interplay.

Modes of Action

A better understanding of these dynamics requires us to develop some basic assumptions about the logic of action behind the processes we are observing. One influential attempt at doing so in the context of ‘regime collisions’ in global law is that of Andreas Fischer-Lescano and Gunther Teubner.20 They draw on systems theory to argue that inter-regime conflicts flow from the diverging rationalities of social subsystems, and that the fragmentation of global law results from law's response to the divergence in its environment.21 Whatever one's general sympathies for their theoretical premises, their application to postnational governance is likely to obscure rather than illuminate the processes at work. For as we have seen in the example of the dispute over genetically modified organisms (GMO) in Chapter 6, rival supremacy claims do not necessarily flow from differentiated systems already in place; the regimes they emerge from may instead be constructed and developed precisely with the aim of countering another regime—by actors who, rather than being caught in the overwhelming rationality of a social system, pursue their own interests through the institutional structures that best suit them. The attempt to establish the Biosafety Protocol (BSP) is a case in point, and the notion of a ‘strategic inconsistency’ created in this way captures much of this dynamic.22

Emphasizing the strategic element here is meant to highlight the agency of the actors involved, not to suggest that they are solely strategically oriented. They may well follow ideational motivations as well, and argumentative logics may complement bargaining modes of interaction.23 The case studies suggest that varying logics are at work. On the one hand, the forum-shopping we have seen in the GMO case was rational: the selection of the regulatory venue by both the US and the EU followed a calculation (p.233) of where they would find most support for their positions. Yet the desired outcome had an argumentative element: by mobilizing certain fora, the different actors hoped to create argumentative resources that would influence action in others. This was most obvious in the negotiations over the BSP—the resources invested here by the EU and the US were based to some extent on the hope to create (or limit) influence on the WTO and its dispute-settlement mechanism. This may have been an attempt to signal widespread resistance to a potentially adverse finding in the WTO. But as judicial actors are typically driven (at least in part) by non-strategic considerations,24 we should understand those investments also as designed to alter the interpretative space the WTO Panel operated in.

The particular combination of strategic and argumentative elements suggested here is due to the legal environment in which the inter-regime contestation was embedded. This setting also conditioned argumentative action in another way: as law privileges generalizable argument, claims about hierarchies and the locus of decision-making addressed at actors in the legal system usually have to take an abstract form that makes them applicable to other situations as well. This can ‘trap’ actors in their arguments: in a future dispute, they will only be able to depart from their general position at some cost.25 Anticipating such entrapment is likely to lengthen the shadow of the future in the development of policies and strategies; publically defended positions need to be advantageous not only for the dispute at hand but also for future cases and other issue areas. In this sense, the legal context provides linkages across issues and time.26 These linkages are not necessarily very tight; even in a judicial setting, generalization is only necessary up to a point. As we have seen in the analysis of the ECtHR and also in the stance of UK courts on UN sanctions, courts have manifold tools to get around issues of principle and hierarchy.27 And states may well choose to bear the costs for limiting general claims in their arguments; the EU's inconsistencies as to the appropriate level of decision-making on GMOs are a case in point.28

(p.234) The legal environment thus pushes the logic of action towards ‘arguing’ rather than ‘bargaining’, perhaps even towards a logic of appropriateness for some actors.29 What weight the different logics have will depend on the particular situation: the set of relevant actors, their background cultures, and shared (or divergent) commitments. And as we have seen, the pluralist interaction can help shift the dominant logic: in the case of Security Council sanctions, the initially interest-based dynamic of bargaining provoked a stronger discourse about appropriate norms that was strengthened by the appearance of domestic courts on the scene. However, a constitutionalist framework might bring about an even stronger shift: by legalizing cooperation more tightly, it might push actors further down the argumentative road, creating awareness that there is no opportunistic escape from a legal logic by reference to competing supremacy claims—it might depoliticize relations that many regard as too politicized.30 We will need to inquire more deeply into how constitutionalism and pluralism facilitate (or hamper) stable and fair forms of cooperation before we can form a view on their respective virtues—and vices.

II. PLURALISM, COOPERATION, AND STABILITY

Any claim that pluralism might have the potential to foster stable cooperation faces an uphill battle: it has to cope with the widespread view that undecided supremacy claims tend to breed instability and chaos. Even Neil MacCormick, a key protagonist of postnational pluralism, expressed serious doubts in this respect. Pluralism, he noted, was not ‘an easy way of looking at law, or of running a society’:

The problems about societal insecurity that lie at the heart of Hobbes's vision of the human condition, and that continue to animate Bentham and Austin, are real problems. The diffusionist [pluralist] picture is a happy one from many points of view, but its proponents must show that the Hobbesian problems can be handled even without strong central authorities, last-resort sovereigns for all purposes.31

(p.235) Concerns of this type led MacCormick later to opt for a softer form of pluralism, as I have sketched in Chapter 3.32 Similar issues are raised by thinkers from very different backgrounds: Carl Schmitt thought that indecision on ultimate supremacy could only work in homogeneous societies;33 H L A Hart held that a multiplicity of rules of recognition represented a ‘substandard, abnormal case containing with it the threat that the legal system will dissolve’.34 And most pertinently perhaps, Stanley Hoffmann famously maintained that ‘[b]etween the cooperation of existing nations and the breaking in of a new one there is no stable middle ground…. [H]alf-way attempts like supranational functionalism must either snowball or roll back.’35

Hoffmann's focus, the European Community, survives even forty years later, but many believe that its continued success depends on its ability to assimilate to a statal form; the drive towards a European constitution can be seen as a step in this direction. Yet Hoffmann's main concern was less about institutional structures than about their social grounding—and loyalties in Europe still lie mostly with nation-states and are unlikely to shift any time soon.36 Short of a wholesale transformation of such loyalties—improbable in Europe, practically impossible on a global scale—the challenge lies in devising structures most apt for stable cooperation under the circumstances, with an awareness of the potential for challenge the fragmented structure of postnational society represents.

Two Dimensions

In order to compare different structures, it is useful to characterize more precisely how they relate to forms of cooperation typically explored in the literature. The key dimension on which pluralism and constitutionalism differ is the degree of hierarchy: while constitutionalism presupposes a fully determined framework that sets out relationships of super- and subordination, pluralism operates with relations of sub-orders that leave ultimate hierarchies open. In that sense, on a continuum between coordination and hierarchy, constitutionalism is further to the right, while pluralism lies (p.236) somewhere in the middle, and other forms, such as government networks, are positioned further left.

Secondly, constitutionalism and pluralism vary in the dimension of integration: both assume that the clear separation between domestic and international law—characteristic of classical, dualist international law, and underlying the operation of government networks—has faded, but they differ in the extent to which they see the two layers as connected; pluralism's heterarchy introduces an element of distance here.

This initial take on differences in institutional structures can help us connect to existing debates about forms of cooperation. At least four debates offer links: one is that over the respective benefits and costs of network and hierarchical settings, often seen as the main poles in discussions of institutional design in postnational governance.37 The second debate, that on hard and soft law in international politics, explores similar issues with a stronger emphasis on legal forms and driven by the broader exploration of legalization beyond the state.38 The third related debate takes into view the role of the domestic/international interface in the construction of supranational authority. It is typically focused on the role of domestic courts in the stabilization of the European Union, but has also explored other institutional settings and more broadly the ‘politicization’ of international institutions in domestic politics.39 A fourth debate starts from the exploration of federal orders and uses it to illuminate postnational contexts, primarily the European Union.40

(p.237) Most pertinently for our question, the comparison of hierarchical and network modes in global governance—like that of hard and soft law—typically identifies a number of key factors. Harder, hierarchical forms are usually seen as preferred in order to

  • solve collaboration problems through credible commitments, monitoring, and enforcement,

  • deal with incomplete contracting through delegation, and

  • stabilize a regime over time and thereby reduce future transaction costs.

On the other hand, softer, network forms are deemed beneficial in order to
  • reduce contracting costs by making initial negotiations less consequential and therefore easier and speedier,

  • deal with uncertainty about future changes in the environment and own preferences, and

  • limit sovereignty costs.41

Softer tools are often useful to accommodate compromises, but in many circumstances they may not provide for stable cooperation. They are typically better suited to coordination rather than collaboration situations because of their weaker enforcement element, and they work best in relatively small, homogeneous groups that allow for the build-up of trust.42 Even then, as studies of EU network governance have shown, they often require a ‘shadow of hierarchy’ to provide incentives for actors tempted by free-riding or cheating.43 The ‘shadow of anarchy’, characteristic of the global sphere, operates as a substitute only if the costs of non-cooperation for all actors are sufficiently high.44

(p.238) Constitutionalism and Pluralism: Costs and Benefits

In this picture, hard, hierarchical modes will often be preferable because they lengthen the shadow of the future and stabilize cooperation beyond the immediate cost–benefit calculation of the actors involved. Constitutionalist structures will typically be associated with these latter benefits: they set up institutions and assign powers in a way that abstracts from immediate situational pressures and interests. Yet this abstraction only works up to a point: like other institutions, constitutions can shift some incentives in favour of cooperation, especially through the creation of focal points and enforcement mechanisms. But beyond that, they have to be self-enforcing even in the domestic context: they have to rest on matching social structures and cannot stray too far from actors' preferences.45

Meanwhile, tightly legalized, constitutionalized regimes are difficult to set up and create particular problems of adaptation later on. In situations of uncertainty in global politics, states will often choose to create flexible institutions to cope with future shocks.46 The case studies are all evidence of such shocks: they reflect processes of resistance to strong institutions and especially to change—change in institutions' powers and the direction of their policies. Yet flexibility is not easily constitutionalized. From the study of domestic constitutions, we know only too well about the dilemmas involved: the right balance between rigidity and adaptability is often elusive and typically requires an interplay of formal amendment procedures and informal, often judicially driven processes.47 In the postnational setting, this problem is exacerbated in two ways. First, because of contestation about the sites of decision-making, constitutional authority is not located on any one (p.239) level; as a result, change cannot be reliably steered in a commonly accepted institutional process. Secondly, because of the fluidity of postnational politics, institutional change usually comes at a rapid pace; but because of the strength of disagreement on substantive issues, it tends to imply significant costs for some states.48 At times—as perhaps in the GMO example49—it may even affect absolute baselines for certain actors.

This brings us back to the difficulties of constitutionalism in multicultural settings I have discussed in Chapter 2. When acceptance of a common level of constitution-making is lacking, processes of constitutional change will often provoke serious backlash—I mentioned the example of Canada's constitutional crisis in the 1980s and 1990s.50 In the postnational context, with loyalties further fragmented, the situation is even more difficult. Because of the distribution of costs, attempts at change will often provoke significant resistance. If change is undertaken in spite of it, it will easily overstretch the authority of the respective decision-making site, thus undermining the stability of the overall order. Decision-making rules can prevent this through high thresholds for amendments, but these also prevent adaptation to changing environments, thereby undermining the effectiveness of the institutions concerned.51 The EU's reform difficulties of the last decades are an example. Yet as we have seen above, the soft, networked alternative is not always helpful either. It does not come with the strict authority claims of a constitutional framework and may therefore accommodate change more easily, but it can also not provide the cooperative benefits often required to provide solutions to problems of regional or global scope.

In this quandary, pluralism's virtue (as well as its vices) derives from the fact that it represents a hybrid between hierarchical and network forms of order. It allows for regimes with an internally hierarchical structure, but denies them ultimate supremacy, and thus navigates between routine hierarchies and exceptional disruptions, to be solved eventually only through consensual forms. This interplay has been present in all the cases we have analysed: cooperation was the norm in the European human rights regime, (p.240) the implementation of UN sanctions as well as the regime complex around GMOs. Much of the cooperation in the latter two cases took the form of networks in which consensual decision-making was the standard mode; but these networks were embedded in a hierarchical context (of the UN Security Council and the WTO Dispute Settlement Body) that could (and did) step in to rectify failures. Yet these hierarchies themselves were not absolute: in some cases, as we have seen, resistance flared up and with it an insistence on rival supremacy norms. The conflict of principle was, of course, not solved in any of the examples; but in most of them, actors found ways to bracket it and work around it in a pragmatic, largely consensual fashion.

To some extent, pluralism thus provides a safety valve constitutionalism is lacking:52 it creates an opening that can be used to signal a need for change as well as the point when the direction of the regime becomes unacceptable to some actors. At the same time, it allows for hierarchies and possibilities of close integration the absence of which typically places limits on network forms of coordination. Pluralism oscillates between hierarchy and network, but this also means that it shares not only in the benefits but also in the deficits of both. In particular, by opening hierarchies up, it relativizes the strength of a regime—in the worst case, rival supremacy claims can become excuses for non-compliance whenever a rule or decision goes against the interests of an actor. Here, pluralism risks creating a slippery slope.

In the case studies, this danger always lurked in the background. The refusal by national courts to follow the ECtHR in sensitive cases showed the Court's limits of authority; the ECJ's critique of UN sanctions could have led to non-compliance with the overall regime; and in the GMO example, the US certainly regarded the EU as non-compliant tout court, just as in other food safety-related cases. The typical pattern in those instances was, however, not that of simple disregard of a global regulatory regime for the sake of one's own interest (even if it was that too). Instead, as we have seen, resistance in both the sanctions and GMO cases followed a period in which critique of the regime had accumulated and found expression in institutional forms—resolutions by other UN bodies in the former case, the Biosafety Protocol in the latter. The pluralist opening in these cases was not exploited for individual states' pursuit of their interests alone; it was also part of a broader movement for change that could not succeed in rigid formal processes. This embeddedness may, however, be a mere coincidence that tells us little about the dangers inherent in pluralist orders. These dangers cannot be fully contained in (p.241) institutional forms—pluralism is characterized precisely by the absence of a legal and institutional framework to regulate disputes between sub-orders. This is its strength, but also its weakness.

What other conditions then would need to be in place to limit the possibilities of abusing pluralism for the pursuit of opportunistic goals? From a rationalist perspective, the main deterrent for abuse would be the related costs.53 Such costs can be material, as in the WTO with its sanctioning mechanism for non-compliance, or in a weaker form in general international law which holds states responsible for violations and requires them to provide reparation or compensation. They can also lie in reduced expectations of gains from reciprocity, if other states limit their investment in a given regime as a response; but this deterrent may be less effective in regimes not based on directly reciprocal relations, as is the case in human rights. Here, though, the interest in maintaining the regime's impact on others might provide a serious incentive.54 Thirdly, costs can also be of a reputational character, depending on the importance a particular regime, or a general appearance as law-abiding, for a state's status. All these considerations flow from general theories of compliance with international law55 and apply to constitutionalist and pluralist orders alike. Pluralism's openness, though, may require stronger incentives to ensure broad compliance.

The Domestic Angle

A key difference between constitutionalism and pluralism, when it comes to containing non-compliance, emerges if we focus on the domestic side of postnational regimes. Given that the idea of ‘postnational law’ is predicated on greater interlinkages between the different levels of politics and law, such a focus—a ‘liberal’ turn56—is called for in any case. But it is also central because studies of the creation and consolidation of supranational (and federal) authority typically find that key sources of stability lie in domestic politics and institutions.57

(p.242) Constitutionalism and pluralism are distinguished, in large part, by the different extent to which they formally link the various spheres of law and politics. While pluralism regards them as separate in their foundations (despite tight links in practice), global constitutionalism, properly understood, is a monist conception that integrates those spheres into one.58 As a result, rules about the relationship of national, regional, and global norms are immediately applicable in all spheres, and neither political nor judicial actors can justify non-compliance on legal grounds. In the EU, for example, this tight legal integration has helped mobilize domestic actors, especially courts, so as to bolster and stabilize the postnational regime significantly. Lower domestic courts were empowered by the direct effect of European law, stipulated by the ECJ, and enforced it in political and legal systems otherwise reluctant to respond.59 Likewise, studies of human rights instruments in Europe and beyond suggest that their anchoring in domestic law, with the possibility of using domestic courts for enforcement, were important factors in achieving compliance.60

Pluralism does not automatically imply such a tight connection, and this might reduce its chances to ensure norm-compliance—and allow actors to abuse its openness for opportunistic reasons. Yet as the European example shows, pluralism also does not rule out the direct effect of regional or global norms in other orders. As we have seen in Chapter 5, the EU legal order has a pluralist character because of rival supremacy claims of the different levels, and still we can observe a tight integration and mobilization of domestic actors. Likewise, in the European human rights regime we have observed domestic courts using the European Convention of Human Rights and judgments of the ECtHR as a matter of course—despite their insistence that national constitutions remain the ultimate point of reference.61 And the ECJ (p.243) may have distanced EU law from WTO law in principle, but this has not prevented it from making ample use of the latter.62

Even if it is a contingent, not a necessary component in pluralism, a tight integration of the different layers of law might help to keep resistance and non-compliance exceptional. On the other hand, the focus on the domestic side reveals particular benefits of pluralism's openness, its accommodation of (occasional) resistance. For it shifts our attention to the alterations in the domestic political process brought about by postnational governance. One of them is a shift towards the executive as the primary actor, partly due to the traditional executive preponderance in foreign affairs which has now gained a broader ambit; partly due to functional reasons that make it difficult to include other actors in what are typically already overloaded and cumbersome negotiation processes. Even in the relatively small and well-structured European Union, the participation of national parliaments in law-making at the Union level remains limited.63

The resulting ‘executive multilateralism’64 leads to a relegation of parliaments and courts in the law-making process—a relegation that is hardly remedied by requirements of ratification and implementation, which have long been of limited impact65 and have become ever weaker as a result of delegated law-making at the global level, factual pressures to ratify, and more direct channels of implementation in which administrative and regulatory actors bypass parliaments.66 But this relegation reduces the information of domestic actors and individuals at the law-making stage, and it limits the likelihood of signals about domestic interests and values that might be affected by new rules. What interests and values are affected, may in any event not be foreseeable at that stage; they might only crystallize later in the life of a regime when domestic actors are even further excluded from its processes.

(p.244) The more postnational governance deals with matters of public interest, the more it comes to affect deeply held convictions and entrenched interests in domestic society. And as it acts increasingly through precise and concrete obligations—often enacted by bodies with delegated rule-making powers—it provokes stronger resistance once domestic actors become aware of the impact. International institutions become ‘politicized’ as a result.67 In the context of the WTO, for example, increasing legalization has been seen to mobilize domestic interest groups in opposition to trade liberalization. This can lead to a destabilization of the regime if options to accommodate such opposition are foreclosed. As Judith Goldstein and Lisa Martin put it, ‘[l]egalization can increase social resistance to new cooperative agreements by reducing the number and types of instruments available to politicians to deal with a rise in antitrade sentiment’. They suggest that ‘trade regimes need to incorporate some flexibility in their enforcement procedures; too little enforcement may encourage opportunism, but too much may backfire…’.68

Pluralism may contribute to such flexibility by allowing for a limited escape from the regime. In the GMO case we have seen how such an escape was used to cope with strong and widespread opposition in Europe; and similarly in the sanctions example European institutions distanced their legal order from that of the UN when fundamental norms seemed to be transgressed. In this vein, pluralist structures also open up channels for signalling strong preferences of key domestic actors that otherwise would not find institutional expression.

If the domestic angle allows us to see a potential virtue in the flexibility of a pluralist order, it also suggests certain conditions that could help contain the risk of abuse of pluralism's openness. The closer analysis of the processes of mutual accommodation in the European human rights regime had suggested that the particular position of the institutions involved had a major role to play. Mutual dependence and mutual empowerment seemed key to understanding why the ECJ and the ECtHR sought to reinforce rather than weaken each other; and also why certain domestic courts—the Spanish Constitutional Court or the House of Lords in the UK—tied themselves so closely to ECtHR jurisprudence.69 This ties in with the story of the mobilization of lower courts in the service of EU law, which gave them a new, (p.245) independent tool to review domestic institutions. On the other hand, as suggested in Chapter 5, the ECJ's strong stance against the Security Council may also be due to a dependence—a dependence not on a UN body, but on national constitutional courts which might otherwise have stepped in to defend due process rights.70 Whether courts (and other institutions) will associate with their counterparts in other spheres of postnational governance, thus probably hinges on the extent to which they can thereby hope to raise their own authority and ward off challenges from others.

The Politics of Authority

This latter remark raises the question of how and when cooperation may be bolstered by the ‘authority’ of common institutions. The construction of such authority may not be necessary for institutional structures to emerge—indeed, these structures may often be based on mutual gains or coercion in the first place. But it helps them persist and be effective over time; they are more resistant to challenge when interest constellations change or coercive instruments become too costly.71 The stability of federal orders, for example, has often been linked to loyalties that transcend the calculation of interests.72 This is particularly so because authority facilitates processes of institutional evolution: actors will more easily accept adverse changes if an institution is based on a deeper sense of legitimacy.

This makes the creation of authority particularly relevant in our context. For as we have seen, many of the processes of resistance and accommodation we studied were triggered by prior elements of change, or at least by shifts in the information of actors about the impact and distributive consequences of the respective regimes. Moreover, some of this change accentuated the ‘political’ character of obligations under regimes that had previously been (p.246) seen as largely technical in nature—this is quite obvious in the case of the WTO and its SPS Agreement, which had initially attracted little attention because of its supposedly technical character. But it may also be true for the sanctions example, in which the image of the effects of Security Council decisions in the domestic context shifted—especially for Western countries—from that of technical regulations of foreign trade to an appreciation that key values (of due process) were at stake. And in the European human rights context, national courts began to signal resistance at a point when the ECtHR had transformed the regime from one of limited checks on domestic politics on a fairly consensual basis to one resembling a constitutional framework dealing with issues of greater political salience. Such a shift from technical to political issues typically provokes fresh legitimacy demands. As Fritz Scharpf has argued with respect to the EU, common decision-making can then no longer be based solely on output considerations—the benefits accruing from the regime—but have to be grounded in a deeper sense of legitimacy.73

How then does the structural framework—constitutionalist or pluralist—affect the likelihood that such deeper legitimacy and authority may emerge and stabilize cooperation? A constitutionalist response would be straightforward: because rules about hierarchies and the relationships of different layers of governance flow from reasoned construction, they are more likely to generate acceptance than rules or processes flowing from political whim. This may be true, but it does not confront a main difficulty of postnational politics, namely disagreement over what a reasonable construction of such relationships might imply. For those with strong loyalties to national communities, regional or global decision-making may be anathema; for those who believe global problems need to be tackled globally, it will appear as a moral imperative.74 In order to build a stable political order, such identifications cannot be ignored; they need to find reflection in the institutions themselves.75

Tackling this gap, bridging this disagreement, requires processes of social change that are largely independent from grand structural frameworks such as constitutionalism or pluralism.76 We are only beginning to (p.247) understand socialization processes—persuasion and social influence—in the postnational realm, but it is often assumed that socialization is facilitated by deliberation in small settings, face-to-face interaction, the acculturation to norms in the surrounding culture or in attractive groups, and by processes of backpatting and opprobrium.77 It is also linked to norm entrepreneurs that gather support and initiate norm cascades.78 Larry Helfer and Anne-Marie Slaughter have shown how some of these tools—especially face-to-face interaction and the creation of familiarity—have been of use in the processes of authority creation for the ECJ and the ECtHR.79 Such processes are possible in both constitutionalist and pluralist frameworks, yet pluralism seems to have an edge in one respect: the space it creates for incrementalism.

Incrementalism

Incrementalist approaches are useful for building and developing postnational institutions not only from a constructivist perspective. Moving step by step, rather than through inital grand designs or big leaps, may be helpful because it affects states' interests only to a limited extent at each turn. As a result, the costs of exit for states will often be higher than the new costs arising from a single step, and states will typically not be driven fully to reassess the costs and benefits of their participation in a regime. A similar dynamic may pertain at the level of domestic actors: those actors that stand to lose from a stronger role of regional and global governance structures are less likely to stage strong resistance if the new threat to their authority with each step is relatively small. And in a neofunctionalist vein, incrementalism reflects the gradual adjustment of interests and expectations in the process of integration.

This may go some way to explain, for example, why domestic supreme courts (and political actors) have not shown firmer, and earlier, reactions (p.248) to the gradual expansion of authority by the ECJ and the ECtHR.80 Yet the full importance of incrementalism here, as more broadly in the construction of postnational governance, comes into view only through an appreciation of the role of ideas. First, a step-by-step approach can lead to change in the acceptance of regional or global institutions via a process of entrapment. For if actors fail to protest against new authority claims, they may later find themselves entrapped in this initial (if tacit) acceptance: in a context of path-dependence, a shift of the argumentation framework is difficult to undo at a later stage.81 It is a typical strategy of courts to wrap fundamental shifts in their jurisprudence in decisions that favour those actors most affected by the shift. This softens the blow, makes strong reactions in the case at hand less likely, and makes later resistance more difficult.

A second, further-reaching advantage of incrementalism emerges when we return to processes of socialization. Theorists generally find that socialization is most successful when new norms resonate with existing ones or do not run up against entrenched normative convictions; unsurprisingly, actors change their minds more easily when their views on issues are not fully settled.82 This suggests some scepticism about the potential for deep authority in postnational governance structures—its construction will typically have to confront well-established assumptions in favour of national institutions, as we have seen, for example, in domestic courts' attitudes towards the European human rights regime.83 This may lead us to assume, in a rationalist vein, that interest- rather than authority-based forms of cooperation promise greater success in this realm.84 But it also has implications for the conditions under which the construction of postnational authority is likely to succeed. It suggests that processes that can avoid head-on confrontations on entrenched issues hold greater promise for limiting large-scale resistance and thus for inducing change over time. The image of dialogues fits this (p.249) point.85 Incrementalist approaches that bracket issues of principle and are able to respond to feedback and resistance run a lower risk of antagonizing key actors and may be able to shift understandings about sites of authority more effectively.

Accordingly, incrementalism is often seen as a key element in the construction of postnational authority,86 and our case studies have confirmed this to some extent. The slow process by which the European human rights bodies came to assert their independence and expand their scope of action is probably the clearest example here: taking cues from domestic politics about potential limits, they reassured political and judicial actors that their authority was not under serious threat. And they moved to bolder assertions only once their status was more settled.87

In principle, incremental processes are possible in both constitutionalist and pluralist settings. But they face tighter limits in constitutionalism: an overarching framework that settles hierarchies may provide some marge de manoeuvre through vague norms, and it may allow for gradual reinterpretations of once-settled concepts. But the very point of the constitutionalist endeavour is to fix these relations legally: to remove them from the political process, to immunize them from constant readjustment. As mentioned above, constitutions vary in the extent to which they accommodate change; but for large-scale shifts, they typically require either formal amendments or something akin to Bruce Ackerman's ‘constitutional moments’.88 And it is very difficult for them simply to bracket issues of principle: the claim to institutionalize the forces of reason as against ‘accident and force’ can only be upheld if those issues are somehow settled through identifiable—reasonable—rules.

Pluralism allows for greater flexibility here. Bracketing hierarchies is its very characteristic: between the supremacy claims of competing regimes, it does not pretend to offer a resolution. In this way, as we have seen in the case studies, it allows for processes of mutual accommodation by which sub-orders react to each other's signals. Such processes are typically incremental: in the European human rights context as well as the UN sanctions regime (p.250) and the regime complex around GMOs, actors have taken in feedback from other sites and have adjusted their behaviour accordingly. They were not forced to confront the issues of principle—they could either maintain their own supremacy claims (as the German Constitutional Court did) or leave their views about hierarchies undefined (as the UK courts did with respect to UN sanctions). In this way, pluralism can protect itself from overreaching and can tie itself more closely to processes of social change. And it can establish an order of mutual tolerance89 by avoiding the confrontation of deeply entrenched convictions of principle that we have seen hindering socialization processes.

We lack reliable data on whether this has in fact led to a change in beliefs about the proper sites of authority, or on whether it has indeed favoured such a change. What we can observe, though, is a significant degree of acceptance in a number of contexts: the ECtHR is broadly recognized as a decision-maker on human rights issues in Europe, as is the ECJ in matters of EU law. The authority of the Security Council and of WTO bodies is probably less stable, but in both cases, authority construction is still at a relatively early stage, and as we have seen, domestic actors have come to follow their decisions as a matter of some routine—even if they insist that such compliance is ultimately voluntary. A fair proportion of this acceptance may be reducible to the pursuit of interests by the respective actors, but some will have deeper roots—if only because it is based on an interest to tap into (or ward off challenges from) the authority of another, postnational institution. If such authority exists, it is probably due, in part, to the step-by-step, incrementalist approach a pluralist order facilitates.

III. PLURALISM AND THE PROBLEM OF POWER

Pluralism may contribute to the stability of postnational governance structures, but this alone does not make it an attractive model. In fact, much of the critique sees pluralism's main weakness not in its alleged instability, but in the unfairness of the outcomes to which it leads, in the fact that it seems open to manipulation and abuse by the powerful in a way constitutionalism is not.

The most vocal articulation of this critique stems from Eyal Benvenisti and George Downs who use political economy tools to understand the dynamics of a fragmented global legal order, and to compare it to a more integrated (p.251) alternative.90 They describe strategies of fragmentation that play into the hands of powerful states: a high differentiation of regimes which renders cross-issue coalitions and logrolling more difficult for weaker states; the choice of single-event settings that limit the coordination advantages weaker actors might have in repeat games; or the selection of alternative, often informal fora when resistance in the initial venue grows. Daniel Drezner makes a similar point, and both analyses tie in with broader accounts of the effects of forum-shopping, which typically benefits actors that have the resources to influence the choice through agenda-setting and enforcement powers, and the ability to bear greater transaction costs.91 It also connects with comparisons of hierarchical and network settings as regards the impact of material power: informal, non-hierarchical frameworks are usually seen to be more vulnerable to capture by powerful actors.92 Compared with more legalized, constitutionalist alternatives, pluralism thus seems hardly a goal worth striving for; quite the contrary.

A Mixed Empirical Picture

Surprisingly then, the picture that emerges from our case studies looks quite different. In the GMO case, the challenge to the WTO that resulted from the Biosafety Protocol was driven not only by the (powerful) European Union but in large part also by developing countries for whom SPS rules appeared as overly demanding and indifferent to precautionary considerations. In the sanctions case, the ECJ's test of the UN Security Council responded to a mobilization of norms that originated mainly from smaller European countries, such as Switzerland and Sweden, but also from a number of developing countries. The bigger countries in the campaign, Germany for example, were not necessarily the most influential in the area of international security. The European human rights case—like that of the EU—is more ambivalent; in both, the most articulated resistance to regional institutions came from courts in Germany, certainly one of the key actors in European politics. (p.252) Though in both, as we have seen, courts from other countries also played a significant part.

This mixed empirical picture mirrors findings by Karen Alter and Sophie Meunier about the consequences of what they call ‘regime complexity’—the ‘presence of nested, partially overlapping, and parallel international regimes that are not hierarchically ordered’. These consequences ‘do not point in a single direction. Sometimes complexity empowers powerful states actors, while at other times weaker actors gain from the overlap of institutions and rules.’93 This ambiguity is borne out, for example, in Larry Helfer's study of the creation of intellectual property rules.94 In the 1980s, powerful Western states managed to shift it from the World Intellectual Property Organization (WIPO) into the more favourable General Agreement on Tariffs and Trade (GATT) context, resulting in the TRIPS Agreement—a treaty very sympathetic to Western conceptions of intellectual property rights and through the WTO endowed with a strong enforcement machinery. After the adoption of TRIPS, though, developing countries and civil society groups made their own attempt at regime-shifting, this time into arenas such as human rights, public health, and biodiversity which, because of their institutionalization in the World Health Organization, the UN Food and Agriculture Organization (FAO), or the Convention on Biological Diversity, were more open to their concerns. This destabilized TRIPS, leading for example to the settlement on essential medicines, initiated by the Doha Declaration.95 Yet it also led to countermoves by the US and the EU: these now sought to incorporate stricter intellectual property rules into bilateral and regional trade and investment agreements, soon labelled by critics as ‘TRIPS plus’ treaties.96

Forum-shopping and Institutionalized Power

Why is this picture so much more mixed than predicted by theorists? One reason may be that the analogy with forum-shopping only holds in part. While analyses of forum-shopping are typically concerned with a single favourable decision in an authoritative forum, choices among a multiplicity of governance sites are usually part of a broader web of decision-making (p.253) instances which feed into a solution on the issue at hand as well as a longer term process defining broader rules.97 In this context, the different fora operate in parallel and influence (reinforce, destabilize) each other. As a result, the power to shift venues is not exclusive: it may trigger countermoves, the initial choice is less consequential, and states will keep the longer term implications of engagement in different fora in mind.98

Another potential reason for the imprecision of the prediction emerges when we move from comparative statics to a more dynamic analysis. It is certainly true, as Benvenisti and Downs suggest, that powerful states will choose, or even create, the forum that suits them best at a given time, and that they will often have the means to make their choice prevail. But ‘at a given time’ is important here: what is relatively best for them at one point may differ from what was relatively best for them at an earlier stage—the range of options will have shifted, at times shrunk. This may be illustrated with John Ikenberry's influential characterization of institutions as ‘locking in’ victories, as allowing great powers to preserve choices made in conditions of a more favourable distribution of power.99 At a later stage, the creation of a new forum (or choice of an existing one) might lead to a different result.

This new choice of forum will then reflect a changed power constellation, but we should be careful not to conceive of power constellations as uniform. Just as an earlier institutionalization may have resulted from the use of power within an existing regime, the creation of a rival venue will often flow from power within a different institution. The respective regimes can thus far be seen as ‘intervening variables’ in the power play of international politics, or even as more broadly constitutive of interests and power relations.100 We have observed this in the GMO case: while the SPS Agreement emerged out of the GATT, with a particular membership and rules of interaction, the Biosafety Protocol grew out of the Convention on Biological Diversity—a setting in which power was distributed very differently. Here, developing countries had a greater say and environmental, not trade ministries took (p.254) the lead. Likewise, in the creation of the UNESCO Convention on Cultural Diversity—yet another attempt to soften WTO rules—France and Canada made use of the much greater power they (and their cause) enjoyed within UNESCO than in the WTO.101 However, as we can see from the intellectual property example, alternative fora can also favour the powerful: influential countries may turn to bilateral treaties, opt for informal settings, or pursue their interests by unilateral means when this option is available.102

When we think about power in the creation of alternative fora, we should thus think of it as differentiated over time and across institutions. The main determinant of whether the creation of a rival forum is likely to benefit powerful states is then the proximity of the existing forum to their current ideal point. Multilateral institutions will usually operate at a certain distance from that point; otherwise they could not maintain the autonomy necessary to fulfill the legitimation functions for which they are often sought.103 Yet in many cases, such as the UN security regime, the international financial institutions, or the WTO, this distance is not great, the formal equality in them has little substance, and organizational as well as substantive rules project earlier (more favourable) power constellations into the future.104 In these circumstances, and unless powerful states retain a credible outside option to counteract the shift,105 the creation of alternative fora—or the assertion of rival supremacy claims—is likely to lead to resistance to power, rather (p.255) than in its reinforcement. The resulting picture is far more complex than the more unidirectional predictions of Benvenisti and Downs and Drezner. It shows that under certain, not unlikely conditions, fragmentation and pluralism may benefit rather than harm weaker actors.

Capture, Information, and the Demand for Change

We can theorize those conditions with greater specificity when we look at the microprocesses of institutional design, and especially when we draw upon insights about regulatory capture in domestic contexts. Walter Mattli and Ngaire Woods have used this body of scholarship to theorize the conditions under which global regulatory bodies are likely to follow the interests of powerful actors (states or economic actors) or respond to broader publics.106

For them, the key factor is the demand for accountability—unless there is strong demand, regulatory institutions will be set up and continue to operate in the interest of the powerful. This is largely because of the interest structure, asymmetrical information, and capacities for collective action. Strong corporate actors are usually affected by regulation more directly and are thus ready (and because of their organizational structure also able) to invest the resources necessary for information-gathering and interest representation. In contrast, broader publics will typically even lack the knowledge about regulatory regimes that would allow them to assess to what extent their interests are affected and to respond. In Mattli and Woods's account, this typically changes in situations of crisis: when the negative impact of regulatory policies becomes visible, civil society groups will begin to gather information and translate a demand for change more effectively.107

Much of this picture applies also to the role of strong and weak states in postnational governance; information and resources are distributed between them just as unevenly.108 And it resonates with the account in our case studies: in all three of them, domestic publics and institutions as well as weaker states only came to realize the impact of global institutions over time. This was partly due to an expansion of the institutions' scope of action, as I have discussed above; but it was also due to a delay in the appreciation of the extent and shape of the institutions' powers. Thus, in the GMO case, the implications of the SPS Agreement were initially not (p.256) fully understood because it was seen as too technical to warrant a greater investment of resources. It only attracted broader attention once it came to impact on key domestic policy choices.109 Likewise, the UN Security Council had already begun targeting individuals in the mid-1990s,110 but the human rights sensitivity of the issue did not come to the foreground until the early 2000s when problematic individual cases were picked up by the media.111 And the expansion of the ECtHR's powers did not become an issue for domestic supreme and constitutional courts until the European Court specifically stepped on their toes.112 The creation and change of postnational governance structures went unobserved and unresisted as long as they operated below the surface; only once a crisis broke out did domestic institutions and governments muster the strength for greater exploration and challenge.

This analysis has important implications for understanding the creation of alternative regimes and the assertion of rival supremacy claims. For it shows how the constellation of mobilized power can differ between the creation or change of a regime and the point where rival claims emerge. And it makes it likely that at this later point, if it follows a crisis and greater awareness, previously excluded actors with less organizational capacity can have greater influence on institutional design.

Trajectories of Normative Change

If the power constellation can change through new information, it can also change through the emergence of new norms. The case study of the sanctions regime was instructive on this point: change occurred here not only because of greater awareness of the expanded scope of Security Council action, but also because this awareness led to a reconsideration of the appropriate norms governing its action. Up until the 1990s, the Security Council had been seen as an intergovernmental body, subject to the organizational (p.257) and substantive norms of the UN Charter (at best).113 The increasing impact it had on individuals came to challenge this frame, and from the late 1990s onwards, a discussion emerged on whether it was, or should be, bound by human rights norms.114 It took a while for this discourse to take hold: it became mainstream only in the mid-2000s, when it entered the institutional practice of other UN bodies and was even recognized—in a limited way—by the Security Council itself.115 It was at this point in the norm trajectory that the ECJ drew upon (European) human rights norms to challenge Security Council practices.

This process is illuminating for the power implications of a pluralist, relatively fragmented order. For if we think that norms matter in international politics, this normative shift towards human rights has altered what states and institutions could or could not do, and at what cost. A forum created (or chosen) at the end of this period is then more likely to reflect a human rights orientiation than at its beginning.

This does not imply, of course, that reflecting a changed normative understanding will always be normatively preferable, or that it will typically favour weaker actors. Norms can change in all kinds of directions. But in the construction of postnational governance, we can observe certain patterns that might indicate a dynamic of empowerment. Norm change in international affairs is not very well understood, but certain elements stand out from the existing studies on the topic. Key to any process of norm change, especially in its early stages, is the challenge of existing normative convictions, largely through reframing issues in a new light.116 New norms do not emerge in a vacuum, they have to compete with previous understandings.117 In order to be successful, they have to find support from actors such as ‘norm entrepreneurs’, but they also depend on further favourable conditions, such as resonance with broader meta-norms and triggering events that unsettle (p.258) old structures. Such triggering events, sometimes also broader processes of environmental—technological or political—change, lead to disputes, then to rival arguments, and thereby shift the argumentative space step by step.118

In the construction of postnational governance, triggering events are usually brought about by particularly salient exercises of a regime's power; and challenges to such exercises can often have recourse to alternative (meta-)frameworks borrowed from the domestic context. Concepts such as the rule of law, democracy, or rights—traditionally not seen as applying to international institutions—then come to the fore and destabilize classical, intergovernmental understandings. Over time, new understandings emerge; when they find sufficient support, they might spread through ‘norm cascades’ or ‘spirals’ and then harden into more stable norms, of a legal as well as non-legal character.119

If this is a typical trajectory, it suggests that exercising power through institutions becomes more difficult over time as normative expectations adjust. This adjustment needs time: triggering events, norm entrepreneurs, and the destabilization of previous frames come about only once institutions have already gained and exercised their (new) powers—and brought about some kind of crisis or contestation.120 In this sociological sense, Thomas Nagel may be right to think that only through strong, illegitimate institutions can new norms of justice on the global scale emerge.121 This lag between institutionalization and normative response, however, should let us assume that an alternative forum created at a later point in time may often hold the promise to constrain the exercise of material power, rather than strengthen it.

Constitutionalism, Power, and Change

If these remarks suggest a potential for rival, pluralist assertions of supremacy to contain power, they counter the widespread claims to the contrary mentioned at the beginning of this section. They should, however, not give rise to excessive optimism: the conditions of postnational governance may come to empower weaker actors over time—because of greater information (p.259) and normative change. But they empower them always only to some extent, and there is no guarantee that a rival forum will strengthen their position—many other factors may work in the opposite direction.

If pluralism thus remains vulnerable to exploitation in certain circumstances, we may ask: would not a constitutionalist model create a stronger bulwark against abuse by the powerful? Such an assumption would be in line with the widespread view that power- and rule-based forms of politics are somewhat antithetical—that the creation of rules limits the impact of power because of a stronger role of publicity and argument; and that rules contain power in their application because they treat all actors alike. These beliefs are a key element of the rule-of-law ideal to which I will return in the next chapter. In this light, the tighter legalization in a constitutionalist framework promises to restrain power better than the more open, flexible structure of a pluralist order.

Yet already doubts arise from our consideration of constitutionalist practice in diverse societies in Chapter 2. Rather than being instruments of moderation and balance, constitutions often appeared as tools for powerful groups to protect their vision of society from challenge.122 These visions may be economic, social, or institutional, and have often included the shape of the nation; from the angle of minority groups, they have thus often appeared as an imposition rather than a fair accommodation of different views.123

The situation is unlikely to be different in international politics. The more rules and institutions matter, the more powerful states will invest in their design and seek to shape them according to their preferences. Rules are then likely to stabilize, rather than challenge, their position—Ikenberry's analysis of international institutions as tools to lock in beneficial power constellations, already mentioned above, is a graphic illustration of this point.124 Such stabilization is counteracted by the implications of formal rule-making—equal participation as well as publicity and uniformity of the resulting norms. Yet the effect of those is likely to be limited: formal equality has not been found to hamper power politics significantly;125 formally uniform rules (p.260) can still be skewed in substance or so indeterminate as to lose all bite;126 and as we can see in the UN Security Council, the World Bank, and the IMF, public rule-making processes may well lead to explicit privileges for certain powerful actors. Even in the widely praised ‘convention’ that produced the draft European constitution, the dominance of bargaining and power politics were not challenged decisively.127 Acting through law imposes some constraints on the powerful—constraints they may at times seek to evade, especially when they see themselves on the rise. But typically, these constraints are weak compared to the benefits that accrue from the stabilization and legitimation of power through law.128

A second caveat to constitutionalism's supposedly beneficial effects stems from the element of change. Change has been a persistent theme throughout this chapter: it has been found to explain the drive towards pluralism as well as many of its benefits. Pluralism seemed to facilitate cooperation particularly through its responsiveness to new circumstances, and also its potential in containing power has been seen to lie especially in its nexus with processes of informational and normative change.

Constitutionalism is typically more resistant to change. One reason is its very ambition: as mentioned above, if constitutionalism seeks to frame politics through law, it cannot follow political changes at every junction. Instead, it needs to contain change through substantive limits as well as procedural rules, but already on the domestic level, such amendment rules with their balance of rigidity and adaptability are difficult to design.129 In the postnational context, this difficulty increases exponentially. The persisting strength of national loyalties typically requires a strong consensus orientation in the making and modification of fundamental rules.130 And while a (p.261) consensus requirement makes initial decisions difficult, it often renders later changes impossible. Fritz Scharpf has described the problem in the context of federal states and the EU as the ‘joint-decision trap’—once a consensual decision is made, states are later trapped in it as a wide range of veto players will usually prevent changes.131

Constitutional change in the postnational space is thus difficult to institutionalize: unless one risks friction through the alienation of key actors, amendment rules have to contain a great number of veto rights—thus setting the threshold so high as to make change practically impossible. This is a general problem in a context as fluid as the postnational one, which requires adaptation at a relatively rapid pace. But it is a particular problem for resistance to institutionalized power: if indeed the promise of such resistance lies in greater information and normative shifts triggered through institutional crises, constitutionalism with its bias towards the status quo is likely to have negative rather than positive effects. It may fare better if the status quo is on the side of the weak, as when an existing regime is closer to the ideal point of weaker actors, or when alternative fora would clearly benefit the powerful. But given that institutions and law on the postnational level tend to follow power more than resist it, constitutionalism's promise in that respect is rather slim.

IV. CONCLUSION

This chapter has sought to shed light on two of the main challenges for a pluralist postnational order: its supposed instability, and its vulnerability to power. Whatever other strengths people have associated with pluralism, on these two issues it has often been seen as weak. Yet with such weaknesses, it would hardly be of much appeal as a framework for postnational governance.

The picture that has emerged in this chapter is, however, much less gloomy. Certain weaknesses remain: pluralism's openness may allow for more opportunistic behaviour of states, and it may fail to stabilize beneficial regimes in the same way against later attacks as tight, constitutionalist structures. Yet pluralism, being a hybrid between hierarchical and network forms of order, has also been found to have important strengths. It allows for signals from (especially domestic) actors otherwise left out of decision-making structures and prevents backlashes against excessive legalization (p.262) unsupported by societal structures. It facilitates socialization processes that proceed incrementally and bracket issues of principle the resolution of which would trigger resistance. It assists the revision of regimes in response to crises that have left a broader public better informed (and mobilized) about them. And it helps tracing changes in social norms that may come about as a result of greater awareness about the operation and implications of postnational governance.

Many of pluralism's strengths are linked to the management of change—to the processes of mutual accommodation that become easier if actors are thrown back to consensual processes when they have overstretched their hierarchical tools. This does not imply that pluralism is always beneficial: with its lesser rigidity, it may also fail to tame adverse processes of change. To a significant extent then, our comparison of pluralist and constitutionalist models hinges on the direction and desirability of change in postnational politics. If we think change will mainly benefit the strong, we may prefer to freeze institutions—to immunize them against revision—through a constitutionalist framework. If we think change will, on balance, have beneficial effects for the weak, we may prefer a pluralist order that holds a greater potential for challenge.

As we have seen, a number of factors make institutional change not only inevitable in the fast-moving environment of postnational politics but also likely to assist regime stability and empower disadvantaged actors. This is in part because weaker players have fewer resources to gain information and participate in formal processes of regime design; they will often become aware of a regime's implications only at the implementation stage. Responding to their interests, and to the processes of normative change triggered by greater information, requires strong adaptative capacities in a regime. Such adaptation will also help a regime's stability: it lowers resistance and helps build authority and legitimacy step by step, thus potentially distancing the regime over time from the vagaries of mere interest calculation of the participants.

Naturally, most of the obstacles to stable and fair cooperation stem from features of postnational society on which institutional structures only have a limited effect. The character of the actors, the distribution of power among them, as well as the shape of their identities and interests condition the workings of both constitutionalist and pluralist orders, even if they may themselves change under the influence of a regime over time. Formal structures and institutions may facilitate such change, and perhaps this will eventually lead to a reconfigured postnational society in which a constitutionalist framework might flourish. Until then, pluralism's openness appears to have an edge in striking the balance between rigidity and flexibility that fair and stable cooperation requires.

Notes:

(1) A Hamilton, J Madison, & J Jay, The Federalist Papers (L Goldman, ed), Oxford: Oxford University Press, 2008, 11 (A Hamilton, Federalist no 1).

(2) See Chapter 3, III and IV.

(3) See Chapter 2, III.2.

(4) See Chapter 3, I.

(5) See Chapter 1, II.

(6) See, eg, H J Steiner, P Alston, & R Goodman, International Human Rights in Context, 3rd edn, Oxford: Oxford University Press, 2007, chs 12 and 13.

(7) Cf A-M Slaughter, A New World Order, Princeton, NJ: Princeton University Press, 2004; K Raustiala, ‘The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law’, Virginia Journal of International Law 43 (2002), 1–92.

(8) Slaughter, A New World Order, 269.

(9) See A Jordan & A Schout (eds), The Coordination of the European Union, Oxford: Oxford University Press, 2006; G de Búrca & J Scott (eds), Law and New Governance in the EU and the US, Oxford: Hart Publishing, 2006; C F Sabel & J Zeitlin (eds), Experimentalist Governance in the European Union: Towards a New Architecture, Oxford: Oxford University Press, 2010.

(10) See also D M Trubek & L G Trubek, ‘Hard and Soft Law in the Construction of Social Europe: The Role of the Open Method of Coordination’, European Law Journal 11 (2005), 343–64 at 346–7.

(11) See A Stone Sweet, The Judicial Construction of Europe, Oxford: Oxford University Press, 2004, 81–91.

(12) L R Helfer, ‘Regime Shifting in the International Intellectual Property System’, Perspectives on Politics 7 (2009), 39–44 at 39.

(13) See also K Raustiala & D G Victor, ‘The Regime Complex of Plant Genetic Resources’, International Organization 58 (2004), 277–309 at 302–5; K J Alter & S Meunier, ‘The Politics of International Regime Complexity’, Perspectives on Politics 7 (2009), 13–24 at 15–16.

(14) See the discussion in B Kingsbury, ‘The Concept of Compliance as a Function of Competing Conceptions of International Law’, Michigan Journal of International Law 19 (1998), 345–72.

(15) See, eg, R O Keohane, After Hegemony: Cooperation and Discord in the World Political Economy, Princeton, NJ: Princeton University Press, 1984, chs 4–7; B Koremenos, C Lipson, & D Snidal (eds), The Rational Design of International Institutions, Cambridge, MA: MIT Press, 2004.

(16) See Chapter 6, I.

(17) J Goldstein & L L Martin, ‘Legalization, Trade Liberalization and Domestic Politics: A Cautionary Note’, International Organization 54 (2000), 603–32; M Zürn et al, ‘Politische Ordnungsbildung wider Willen’, Zeitschrift für internationale Beziehungen 14 (2007), 129–64 at 149–58.

(18) See, eg, M Koskenniemi & P Leino, ‘Fragmentation of International Law? Postmodern Anxieties’, Leiden Journal of International Law 15 (2002), 553–79; B Simma & D Pulkowski, ‘Of Planets and the Universe: Self-contained Regimes in International Law’, European Journal of International Law 17 (2006), 483–529.

(19) Raustiala & Victor, ‘Regime Complex’; Alter & Meunier, ‘Regime Complexity’.

(20) A Fischer-Lescano & G Teubner, Regime-Kollisionen: Zur Fragmentierung des globalen Rechts, Frankfurt am Main: Suhrkamp Verlag, 2006.

(22) Raustiala & Victor, ‘Regime Complex’, 301.

(23) On the different logics, see T Risse, ‘“Let's Argue!”: Communicative Action in World Politics’, International Organization 54 (2000), 1–39; H Müller, ‘Arguing, Bargaining and All That: Communicative Action, Rationalist Theory and the Logic of Appropriateness in International Relations’, European Journal of International Relations 10 (2004), 395–435.

(24) See the discussion in Chapter 4, III.2

(25) See T Risse, ‘Let's Argue’, 23; F Schimmelfennig, ‘The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union’, International Organization 55 (2001), 47–80.

(26) See also A Hurrell, ‘Conclusion: International Law and the Changing Constitution of International Society’ in M Byers (ed), The Role of Law in International Politics, Oxford: Oxford University Press, 2000, 327–47 at 332.

(27) See Chapters 4, I and II, and 5, II; also Chapter 8, III.

(28) See Chapter 6, III.

(29) See also T Risse, ‘Global Governance und kommunikatives Handeln’ in P Niesen & B Herborth (eds), Anarchie der kommunikativen Freiheit: Jürgen Habermas und die Theorie der internationalen Politik, Frankfurt am Main: Suhrkamp Verlag, 2008, 57–83 at 69–73.

(30) See, eg, A Peters, ‘Conclusions’ in J Klabbers, A Peters, & G Ulfstein, The Constitutionalization of International Law, Oxford: Oxford University Press, 2009, 342–52 at 349.

(31) N MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth, Oxford: Oxford University Press, 1999, 78.

(32) See Chapter 3, I.

(33) C Schmitt, Verfassungslehre, 9th edn, Berlin: Duncker & Humblot, [1928] 2003, 375–9.

(34) H L A Hart, The Concept of Law, 2nd edn, Oxford: Oxford University Press, 1994, 123.

(35) S Hoffmann, ‘Obstinate or Obsolete? The Fate of the Nation-State and the Case of Western Europe’, Daedalus 95 (1966), 862–915 at 910.

(36) See Chapter 2, III.2.

(37) See, eg, M Kahler & D A Lake, ‘Economic Integration and Global Governance: Why So Little Supranationalism?’ in W Mattli & N Woods (eds), The Politics of Global Regulation, Princeton, NJ: Princeton University Press, 2009, 242–75; M Eilstrup-Sangiovanni, ‘Varieties of Cooperation: Government Networks in International Security’ in M Kahler (ed), Networked Politics: Agency, Power, and Governance, Ithaca, NY: Cornell University Press, 2009, 194–227.

(38) See, eg, K W Abbott & D Snidal, ‘Hard and Soft Law in International Governance’, International Organization 54 (2000), 421–56; K Raustiala, ‘Form and Substance in International Agreements’, American Journal of International Law 99 (2005), 581–614; A T Guzman, ‘The Design of International Agreements’, European Journal of International Law 16 (2005), 579–612.

(39) See, eg, A-M Burley & W Mattli, ‘Europe Before the Court: A Political Theory of Legal Integration’, International Organization 47 (1993), 41–76; K J Alter, Establishing the Supremacy of European Law, Oxford: Oxford University Press, 2001; L R Helfer & A-M Slaughter, ‘Toward a Theory of Effective Supranational Adjudication’, Yale Law Journal 107 (1997), 273–91; Zürn et al, ‘Ordnungsbildung’.

(40) See, eg, D McKay, Designing Europe: Comparative Lessons from the Federal Experience, Oxford: Oxford University Press, 2001; R D Kelemen, The Rules of Federalism: Institutions and Regulatory Politics in the EU and Beyond, Cambridge, MA: Harvard University Press, 2004; M Filippov, P C Ordeshook, & O Shvetsova, Designing Federalism: A Theory of Self-sustainable Federal Institutions, Cambridge: Cambridge University Press, 2004.

(41) Cf Abbott & Snidal, ‘Hard and Soft Law’; Eilstrup-Sangiovanni, ‘Varieties’; see also Kahler & Lake, ‘Economic Integration’, for a different emphasis.

(42) Eilstrup-Sangiovanni, ‘Varieties’, 205–6.

(43) See A Héritier & D Lehmkuhl, ‘Introduction: The Shadow of Hierarchy and New Modes of Governance’, Journal of Public Policy 28 (2008), 1–17; T Börzel, ‘Der “Schatten der Hierarchie”–ein Governance-Paradox?’ in G F Schuppert & M Zürn (eds), Governance in einer sich wandelnden Welt, Politische Vierteljahresschrift: Sonderheft 41/2008, 118–31.

(44) M Zürn, ‘Governance in einer sich wandelnden Welt—eine Zwischenbilanz’ in Schuppert & Zürn, Governance, 553–80 at 566–7.

(45) See R Hardin, ‘Why a Constitution?’ in B Grofman & D Wittman (eds), The Federalist Papers and the New Institutionalism, New York: Agathon Press, 1989, 100–20; J Bedner, W N Eskridge Jr, & J A Ferejohn, ‘A Political Theory of Federalism’ in J A Ferejohn, J N Rakove, & J Riley (eds), Constitutional Culture and Democratic Rule, Cambridge: Cambridge University Press, 2001, 223–70; Filippov, Ordeshook, & Shvetsova, Designing Federalism.

(46) B Koremenos, C Lipson, & D Snidal, ‘The Rational Design of International Institutions’, International Organization 55 (2001), 761–99 at 793; B P Rosendorff & H V Milner, ‘The Optimal Design of International Trade Institutions: Uncertainty and Escape’, International Organization 55 (2001), 829–57 at 832–5.

(47) See, eg, D S Lutz, ‘Toward a Theory of Constitutional Amendment’, American Political Science Review 88 (1994), 355–70; S Levinson (ed), Responding to Imperfection: The Theory and Practice of Constitutional Amendment, Princeton, NJ: Princeton University Press, 1995; R Simeon, ‘Constitutional Design and Change in Federal Systems: Issues and Questions’, Publius: The Journal of Federalism 39 (2009), 241–61.

(48) On the distributional challenges that arise even in coordination games, see S D Krasner, ‘Global Communications and National Power: Life on the Pareto Frontier’, World Politics 43 (1991), 336–66.

(49) See the discussion in Chapter 6, V.

(50) See Chapter 2, III.3.

(51) See McKay, Designing Europe, 150; on the federal context, B Galligan, ‘Comparative Federalism’ in R A W Rhodes, S A Binder, & B A Rockman, The Oxford Handbook of Political Institutions, Oxford: Oxford University Press, 2006, 261–80 at 269–70.

(52) See also L R Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’, Yale Journal of International Law 29 (2004), 1–83 at 56, on regime shifting as creating a safety valve.

(53) See, eg, Rosendorff & Milner, ‘Optimal Design’, 845–50.

(54) See Chapter 4, III.1.

(55) See, eg, the overviews in H H Koh, ‘Why Do Nations Obey International Law?’, Yale Law Journal 106 (1997), 2599–659; Kingsbury, ‘Concept of Compliance’.

(56) See A Moravcsik, ‘Taking Preferences Seriously: A Liberal Theory of International Politics’, International Organization 51 (1997), 513–53.

(57) See, eg, Filippov, Ordeshook, & Shvetsova, Designing Federalism, on the importance of domestic party structures for the stability of federal orders; B A Simmons, Mobilizing for Human Rights: International Law in Domestic Politics, Cambridge: Cambridge University Press, 2009, 371–3, on the effectiveness of human rights treaties.

(58) See also M Kumm, ‘The Cosmopolitan Turn in Constitutionalism: On the Relationship between Constitutionalism in and beyond the State’ in J L Dunoff & J P Trachtman (eds), Ruling the World? Constitutionalism, International Law, and Global Governance, Cambridge: Cambridge University Press, 2009, 258–324 at 279, fn 34.

(59) Weiler, ‘Transformation’, 2426; Burley & Mattli, ‘Europe Before the Court’, 62–4; Alter, Establishing the Supremacy.

(60) Simmons, Mobilizing for Human Rights, 355–63. See also H Keller & A Stone Sweet, ‘Assessing the Impact of the ECHR on National Legal Systems’ in H Keller & A Stone Sweet (eds), A Europe of Rights: The Impact of the ECHR on National Legal Systems, Oxford: Oxford University Press, 2008, 677–710 at 683–6.

(61) See Chapter 4, I and II.

(62) See Chapter 6, II.2 and IV.

(63) See P Kiiver, ‘The Treaty of Lisbon, the National Parliaments and the Principle of Subsidiarity’, Maastricht Journal of European and Comparative Law 15 (2008), 77–83.

(64) M Zürn, ‘Global Governance and Legitimacy Problems’, Government & Opposition 39 (2004), 260–87 at 264–5.

(65) See, eg, E Benvenisti, ‘Exit and Voice in the Age of Globalization’, Michigan Law Review 98 (1999), 167–213 at 184–9, 200–1.

(66) See Chapter 1, II; B Kingsbury, N Krisch, & R B Stewart, ‘The Emergence of Global Administrative Law’, Law & Contemporary Problems 68:3 (2005), 15–61 at 18–27.

(67) Zürn et al, ‘Ordnungsbildung’, 149–58; W Mattli & N Woods, ‘In Whose Benefit? Explaining Regulatory Change in Global Politics’ in Mattli & Woods, The Politics of Global Regulation, 1–43 at 21–39.

(68) Goldstein & Martin, ‘Legalization, Trade Liberalization, and Domestic Politics’, at 631. For a similar appraisal, see Rosendorff & Milner, ‘Optimal Design’.

(69) See Chapter 4, I.1, II.2, and III.2.

(70) See Chapter 5, II.3.

(71) I Hurd, ‘Legitimacy and Authority in International Politics’, International Organization 53 (1999), 379–408 at 383–9. On the general importance of authority and legitimacy for broader patterns of change in world politics, see eg, J G March & J P Olsen, ‘The Institutional Dynamics of International Political Orders’, International Organization 52 (1998), 943–69; A Wendt, Social Theory of International Politics, Cambridge: Cambridge University Press, 1999; T J Biersteker & C Weber (eds), State Sovereignty As Social Construct, Cambridge: Cambridge University Press, 1996.

(72) See T M Franck, ‘Why Federations Fail’ in T M Franck (ed), Why Federations Fail, New York: New York University Press, 1968, 167–99 at 167–83; J Johnson, ‘Inventing Constitutional Traditions: The Poverty of Fatalism’ in Ferejohn, Rakove, & Riley, Constitutional Culture, 71–109. See also the emphasis on historical groundings in M Burgess, Comparative Federalism, London: Routledge, 2006, ch 11.

(73) F Scharpf, Governing in Europe: Effective and Democratic?, Oxford: Oxford University Press, 1999, 21–8.

(74) See Chapter 3, II.3 and III.

(75) See McKay, Designing Europe, 145–6.

(76) On varied channels of norm diffusion, also apart from socialization-based ones, see B A Simmons, F Dobbin, & G Garrett (eds), The Global Diffusion of Markets and Democracy, Cambridge: Cambridge University Press, 2008.

(77) See A I Johnston, ‘Treating International Institutions as Social Environments’, International Studies Quarterly 45 (2001), 487–515; R Goodman & D Jinks, ‘How to Influence States: Socialization and International Human Rights Law’, Duke Law Journal 54 (2004), 621–703; also J T Checkel, ‘Why Comply? Social Learning and European Identity Change’, International Organization 55 (2001), 553–88 at 560–4.

(78) See M Finnemore & K Sikkink, ‘International Norm Dynamics and Political Change’, International Organization 52 (1998), 887–917; T Risse, S C Ropp, & K Sikkink, The Power of Human Rights: International Norms and Domestic Change, Cambridge: Cambridge University Press, 1999.

(79) Helfer & Slaughter, ‘Effective Supranational Adjudication’, 290–336.

(80) On the ECJ, see Weiler, ‘Transformation’, 2447–8; Burley & Mattli, ‘Europe Before the Court’, 55–6, 67–9.

(81) See, eg, A Stone Sweet, ‘Path Dependence, Precedent, and Judicial Power’ in M Shapiro & A Stone Sweet, On Law, Politics, and Judicialization, Oxford: Oxford University Press, 2002, 112–35.

(82) Johnston, ‘International Institutions as Social Environments’, 496–9; Checkel, ‘Why Comply?’, 562–4; see also A Acharya, ‘How Ideas Spread: Whose Norms Matter? Norm Localization and Institutional Change in Asian Regionalism’, International Organization 58 (2004), 239–75.

(83) See Chapter 4, III.2 and 3.

(84) See, eg, J Kelley, ‘International Actors on the Domestic Scene: Membership Conditionality and Socialization by International Institutions’, International Organization 58 (2004), 425–57.

(85) For an emphasis on dialogue as a source of supranational judicial authority, see A Torres Pérez, Conflicts of Rights in the European Union: A Theory of Supranational Adjudication, Oxford: Oxford University Press, 2009, ch 5.

(86) eg, Helfer & Slaughter, ‘Effective Supranational Adjudication’, 314–17; Goodman & Jinks, ‘How to Influence States’, 701–2.

(87) See Chapter 4, II.3.

(88) B Ackerman, We the People, vol 1: Foundations, Cambridge, MA: Harvard University Press, 1991.

(89) See J H H Weiler, ‘In Defence of the Status Quo: Europe's Constitutional Sonderweg’ in J H H Weiler & M Wind (eds), European Constitutionalism Beyond the State, Cambridge: Cambridge University Press, 2003, 7–23 at 15–23.

(90) E Benvenisti & G W Downs, ‘The Empire's New Clothes: Political Economy and the Fragmentation of International Law’, Stanford Law Review 60 (2007), 595–631.

(91) See, eg, D W Drezner, ‘The Power and Peril of International Regime Complexity’, Perspectives on Politics 7 (2009), 65–70 at 66–7.

(92) See Kahler & Lake, ‘Economic Integration’, 259–60, 274; see also Eilstrup-Sangiovanni, ‘Varieties’, 226–7; N Krisch, ‘International Law in Times of Hegemony: Unequal Power and the Shaping of the International Legal Order’, European Journal of International Law 16 (2005), 369–408 at 392.

(93) Alter & Meunier, ‘Regime Complexity’, 13, 14.

(94) Helfer, ‘Regime Shifting: The TRIPs Agreement and New Dynamics of International Intellectual Property Lawmaking’, ‘Regime Shifting in the Intellectual Property System’.

(95) See F M Abbott, ‘The WTO Medicines Decision: World Pharmaceutical Trade and the Protection of Public Health’, American Journal of International Law 99 (2005), 317–58.

(96) Helfer, ‘Regime Shifting in the Intellectual Property System’, 41.

(97) See also Helfer, ‘Regime Shifting in the Intellectual Property System’, 39.

(98) On the role of future expectations in the choice of international fora, see M L Busch, ‘Overlapping Institutions, Forum Shopping, and Dispute Settlement in International Trade’, International Organization 61 (2007), 735–61.

(99) G J Ikenberry, After Victory: Institutions, Strategic Restraint, and the Rebuilding of Order after Major Wars, Princeton, NJ: Princeton University Press, 2001.

(100) See S D Krasner, ‘Structural Causes and Regime Consequences: Regimes as Intervening Variables’ and ‘Regimes and the Limits of Realism: Regimes as Autonomous Variables’ in S D Krasner (ed), International Regimes, Ithaca, NY: Cornell University Press, 1983, 1–21, 355–68; March & Olsen, ‘Institutional Dynamics’.

(101) See, eg, J Pauwelyn, ‘The UNESCO Convention on Cultural Diversity, and the WTO: Diversity in International Law-Making?’, ASIL Insight, 15 November 2005, 〈http://www.asil.org/insights051115.cfm#_edn4〉.

(102) See Benvenisti & Downs, ‘Empire's New Clothes’, 614–19.

(103) See K W Abbott & D Snidal, ‘Why States Act through Formal International Organizations’, Journal of Conflict Resolution 42 (1998), 3–32 at 18–19.

(104) See, eg, N Woods, ‘The United States and the International Financial Institutions: Power and Influence within the World Bank and the IMF’ in R Foot, S N MacFarlane, & M Mastanduno (eds), US Hegemony and International Organizations, Oxford: Oxford University Press, 2003, 92–114; R H Steinberg, ‘In the Shadow of Law or Power? Consensus-Based Bargaining and Outcomes in the GATT/WTO’, International Organization 56 (2002), 339–74.

(105) See Benvenisti & Downs, ‘Empire's New Clothes’, 614–19. On limits to the availability of outside options, see D W Drezner, All Politics is Global: Explaining International Regulatory Regimes, Princeton, NJ: Princeton University Press, 2007, 211–12. For an illuminating discussion of outside options in the case of the UN Security Council, see E Voeten, ‘Outside Options and the Logic of Security Council Action’, American Political Science Review 95 (2001), 845–58. For a discussion of alternative options of powerful states more broadly, see Krisch, ‘International Law in Times of Hegemony’.

(106) Mattli & Woods, ‘In Whose Benefit?’.

(107) Mattli & Woods, ‘In Whose Benefit?’, 21–6.

(108) For an analysis of the Codex Alimentarius Commission along those lines, see B S Chimni, ‘Co-option and Resistance: Two Faces of Global Administrative Law’, NYU Journal of International Law and Politics 37 (2005), 799–827.

(109) See Chapter 6, I.

(110) See, eg, SC Res 917 (1994), 6 May 1994, on Haiti; J A Frowein & N Krisch, ‘Introduction to Chapter VII’ in B Simma et al (eds), The Charter of the United Nations: A Commentary, 2nd edn, Oxford: Oxford University Press, 2002, 701–16 at 715–16.

(111) See, eg, P Cramér, ‘Recent Swedish Experiences with Targeted UN Sanctions: The Erosion of Trust in the Security Council’ in E de Wet & A Nollkaemper (eds), Review of the Security Council by Member States, Antwerp: Intersentia, 2003, 85–106.

(112) See Chapter 4, I and II.

(113) On growing problems with this paradigm, see M Koskenniemi, ‘The Police in the Temple: Order, Justice and the UN: A Dialectical View’, European Journal of International Law 6 (1995), 1–25.

(114) See, eg, W M Reisman & D L Stevick, ‘The Applicability of International Law Standards to United Nations Economic Sanctions Programmes’, European Journal of International Law 9 (1998), 86–141.

(115) See Chapter 5, I. On the state of the debate in the mid-2000s, see, eg, E de Wet, The Chapter VII Powers of the United Nations Security Council, Oxford: Hart Publishing, 2004.

(116) Finnemore & Sikkink, ‘International Norm Dynamics’, 897.

(117) See the emphasis in W Sandholtz, ‘Dynamics of International Norm Change: Rules against Wartime Plunder’, European Journal of International Relations 14 (2008), 101–31 at 103–7.

(118) W Sandholtz & K Stiles, International Norms and Cycles of Change, Oxford: Oxford University Press, 2008, chs 1 and 12.

(119) See Finnemore & Sikkink, ‘International Norm Dynamics’; Risse, Ropp, & Sikkink, The Power of Human Rights.

(120) See also Mattli & Woods, ‘In Whose Benefit?’, 36–9, on the production of new ideas through crises.

(121) T Nagel, ‘The Problem of Global Justice’, Philosophy & Public Affairs 33 (2005), 113–47.

(122) See Chapter 2, III.3.

(123) See only the critiques in J Tully, Strange Multiplicity: Constitutionalism in an Age of Diversity, Cambridge: Cambridge University Press, 1995; R Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Cambridge, MA: Harvard University Press, 2004.

(124) Ikenberry, After Victory; see also L Gruber, Ruling the World: Power Politics and the Rise of Supranational Institutions, Princeton, NJ: Princeton University Press, 2000.

(125) Steinberg, ‘In the Shadow of Law or Power?’.

(126) See M Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument, 2nd edn, Cambridge: Cambridge University Press, 2006.

(127) See P Magnette & K Nicolaïdis, ‘The European Convention: Bargaining in the Shadow of Rhetoric’, West European Politics 27 (2004), 381–404; J E Fossum & A J Menéndez, ‘The Constitution's Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union’, European Law Journal 11 (2005), 380–410. But see also T Risse & M Kleine, ‘Assessing the Legitimacy of the EU's Treaty Revision Methods’, Journal of Common Market Studies 45 (2007), 69–80, for a more benign interpretation of the convention's work.

(128) Cf Krisch, ‘International Law in Times of Hegemony’, 376–80; see also W Sandholtz & A Stone Sweet, ‘Law, Politics, and International Governance’ in C Reus-Smit (ed), The Politics of International Law, Cambridge: Cambridge University Press, 2004, 238–71.

(129) See text at n 47 above.

(130) See McKay, Designing Europe, 150.

(131) F Scharpf, ‘Die Politikverflechtungsfalle: Europäische Integration und deutscher Föderalismus im Vergleich’, Politische Vierteljahresschrift 26 (1985), 323–56; F Scharpf, ‘The Joint-Decision Trap Revisited’, Journal of Common Market Studies 44 (2006), 845–64.