Law as problem solving: standards, networks, experimentation, and deliberation in global space.

Abstract

This paper presents a view of international law as a framework for problem solving. Many authors have noted the increased legalization of world politics. Where many conventional approaches to legalization conceive of law as regulation and stress compliance with preexisting rules, we argue that, especially in the complex arena of transnational governance dubbed "global space," law often operates very differently. Where many see international governmental organizations as the primary actors in international regulation, we put more emphasis on the operation of multi-level networks, and where many who think of international law stress enforcement and compliance with fixed norms, we put more emphasis on the role of experimentation for the solution of international problems and deliberation for the internalization of international norms. We show that in many cases law-like processes operate more as a framework for collective problem solving in complex and uncertain situations--where multiple actors are involved and multiple levels must be coordinated--than as a set of fixed rules. Such an order may form norms more through bottom-up participatory processes than top-down legislation, rely primarily on open-ended rather than precise legal rules, and deploy flexible and revisable standards. Although such features are present in domestic law, they may be more important in global space. Drawing from the "new governance" literature, this Article develops an alternative framework that embraces the full range of law-like processes, paying particular attention to how they operate as a framework for problem solving. This Article conducts a preliminary empirical analysis of the expanded vision of law in global space in three cases--the WTO council and committee system, the EU's Water Framework Directive, and the "Tuna-Dolphin" case. While these cases all involve some of the more legalized areas in international affairs, we show that each relies heavily on new governance type mechanisms to operate.

I. INTRODUCTION                                               360

II. THE DISCOVERY OF "GLOBAL SPACE" AND EMERGENCE OF A        362
PROBLEM SOLVING ORIENTATION

III. LAW AND PROBLEM SOLVING IN GLOBAL SPACE                  364

     A. Limits of the Legalist Model                          364

     B. Features and Functions of Collective Problem Solving  367

        1. Standards, Not Rules                               368

        2. Standards, Not Rules                               368

        3. Dynamic Arenas for Deliberation and Negotiation    369

        4. Networks and Methods to Coordinate Multiple        369
           Levels of Governance

        5. Soft and Hard Law                                  370

     C. Processes                                             371

        1. Deliberation                                       371

        2. Learning                                           372

        3. Norm Diffusion                                     373

        4. Peer Pressure                                      374

        5. Penalty Default and Destabilization Regimes        374

IV. THE EXPANDED LAW OF GLOBAL SPACE: THREE CASES             375

     A. The "Hidden Governance" of the WTO: New Governance    375
        in the Interstices of a Legalized Regime

        1. Communication and Facilitation Through Councils    376
           and Committees

     B. The EU Water Framework Directive: Mixing Fixed        380
        Rules with Process for Mutual Learning and
        Consensus Formation in a Hybrid Constellation

     C. The Tuna-Dolphin Case: Problem Solving in the Wake    385
        of Penalty Default and Destabilization

V.  Conclusion                                                390

I. INTRODUCTION

Law is playing an increasing role in international affairs. Fueled by the integrative forces of globalization, international legal arrangements of one type or another take on greater importance. International institutions like the World Trade Organization ("WTO") reach deeply into national legal orders, as do supranational bodies like the European Union ("EU"), and transnational norms have evolved to deal with the increasing number of cross-border interactions. Yet law may play different roles than it does in strictly domestic settings because this environment includes states, supranational and international agencies, businesses, and non-governmental organizations ("NGOs"); involves many multi-level arrangements; encounters a great diversity of circumstances; and creates complex coordination issues. This Article explores the special characteristics of the settings that global law increasingly encounters, the challenges these settings create, and the institutions that are emerging. This Article shows that in this fluid and complex regulatory environment there is a growing need for legal tools that encourage problem solving and sketches some of the mechanisms that have developed to facilitate this kind of interaction.

Conventional notions of legalism, broadly defined as "the view that law and legal institutions can keep order and solve policy disputes," have long informed discourse regarding the role of law in international affairs. A strictly legalist approach tends to project the ideals of municipal law onto the international realm. (2) Thus, legalist approaches to international law emphasize command and control regulation in which courts and similar bodies that apply sanctions for non-compliance lay down and enforce relatively specific rules that define allowable behavior. (3)

While this account has been widely held and continues to influence contemporary debates over the role and efficacy of international law in world politics, it does not provide a complete description or understanding of the function of law in international society. This insight is not new. For example, in his work on the General Agreement on Tariffs and Trade ("GAIT") legal system, trade law scholar Robert Hudec recognized that international law was as much a framework for problem solving and negotiation as a set of fixed rules, and he explored ways in which these two dimensions (problem solving and rule orientation) may fit together. (4) As the world becomes more complicated, commensurate challenges in understanding the role of law in transnational affairs have become ever more daunting.

In this Article, we put forth an alternative vision that focuses on law as problem solving. Where conventional models of international law stress the importance of rules, we give more attention to open-ended standards. Where many see international governmental organizations as the primary actors in international regulation, we emphasize the operation of multi-level networks, and where many who think of international law stress enforcement and compliance with fixed norms, we emphasize the role of experimentation in solving international problems and deliberation for the internalization of international norms.

II. THE DISCOVERY OF "GLOBAL SPACE" AND EMERGENCE OF A PROBLEM SOLVING ORIENTATION

Over the past two decades, international relations and legal theorists have been confronted with an increasing diversity and density of law-like governance in "global space," a term we use to refer to an evolving regulatory environment created by both globalization and the increasing role international norms play in domestic settings. A review of the literature suggests that this environment contains at least four defining features.

First, global space is increasingly diverse and complex. To the extent that the law of global space seeks to bring out some degree of uniformity across borders, it must confront the great variation in the social systems and legal orders of the world's more than 190 states. Second, it consists of multiple and overlapping legal orders that transcend conventional state boundaries and bring many more participant actors into the regulatory arena. Legal fictions to the contrary notwithstanding, states are not unitary actors. (5) Rather, the complex interplay of the state and civil society determines state behavior. A third defining feature of global space is the relative weakness of international systems of coercion in the face of national resistance. The range of sanctions available to back up international standards is limited so that coercion is less available in the law of global space than it is in many aspects of municipal law. (6) Even when sanctions are applied, they do not necessarily have the coercive power required to bring about conformity with legal norms. (7) Finally, global space is characterized by an ongoing knowledge deficit due to the high degree of uncertainty concerning optimal solutions to problems.

The foregoing conditions have fueled a growing emphasis on problem solving in many areas. Collective problem solving, in general terms, is a dynamic process that involves the common identification of a problem, formation of a consensus that it ought to be solved, and the mobilization of appropriate expertise and resources to do so. While these processes bear some resemblance to law at the national level, and sometimes operate in similar ways, in many cases they perform functions and employ features that are fundamentally different from their municipal counterparts. (8) Thus we increasingly see flexible, revisable, decentralized, and participatory legal mechanisms--what many call "new governance"--operating in global space. (9)

This trend can be seen in numerous areas. For example, the WTO is widely considered to be the most legalized and formal international regulatory institution, but its constituent councils and committees operate according to an alternative set of mechanisms that engage in norm elaboration and avoid the need for coercion. The EU employs hybrid forms of governance that mix classic top-down regulatory modes and legally binding requirements with decentralized, bottom-up, participatory and deliberative processes; iterative planning; horizontal networks; stakeholder participation; information pooling; sharing of best practices; and non-binding guidance. Finally, in the famous "Tuna-Dolphin" case, the suboptimal decision by the GATT dispute panel spurred a participatory process that engaged a range of stakeholders in alternative governance arrangements that resulted in significantly strengthened dolphin protection. In each of these situations, law operates not to secure uniform compliance with fixed rules, but rather to ratchet up standards, accommodate diversity, and solve problems before coercion is necessary. Section IV of this Article elaborates on these case studies.

This Article provides an introduction to an emerging vision of law in global space that reflects a growing problem-solving orientation. Such a vision may promote a more complete understanding of the role of law for three principal reasons. First, it brings into the definition of regulatory space a number of institutions and processes that might not normally be labeled law. Second, it illuminates the mechanisms by which certain functions and features of law or law-like arrangements operate to promote problem solving. Third, it brings to light processes that may be more compatible with the needs of global space than more traditional rule-based, top-down approaches.

The remainder of this Article proceeds in three steps. Drawing on prominent strains of literature in international relations and new governance, it first highlights an emerging focus on law as a problem-solving agent and outlines the functions and features of law in this respect. It then provides a few empirical examples of how these processes often work in tandem with more rule-oriented dimensions of global governance. It concludes by teasing out the implications of this emerging vision for the future of international law.

III. LAW AND PROBLEM SOLVING IN GLOBAL SPACE

A. Limits of the Legalist Model

Recent discussion of governance beyond the level of the nation-state has drawn more attention to "legalization," or the tendency to bring more and more aspects of international life into the ambit of law-like processes. (10) The conventional approach to legalization largely reflects the traditional legalist model, envisioning the law as a system of precise rules that third-party decision makers interpret and enforce. (11) This approach makes the implicit assumption that greater degrees of obligation, precision, and delegation will lead to more compliance and hence greater cooperative gains. (12)

However, this assumption might not always hold true. The model presupposes that obligation increases cooperation by enhancing legitimacy and coercion, but this does not always occur. (13) A regime may be perceived as more legitimate if it makes compliance voluntary by using nonbinding norms. (14) States may also be more willing to enter into regimes that are nonbinding yet follow their norms once they become part of the regime. (15) It is assumed that precision makes compliance easier because actors know exactly what is expected of them, but this is often not the case. When norms must cover substantial variation in national conditions and cultures, as Section III demonstrates, precision may actually reduce compliance as precise rules may create resistance in situations where open-ended standards, allowing for diversity, would not. Further, the model assumes that delegation to a third-party decision maker reduces non-compliance. This presupposes that there is an expert body that can authoritatively determine the scope of norms and is capable of applying sanctions that can actually affect behavior, yet this rarely occurs. Moreover, delegation may encourage gaming the system, zealous advocacy, and rigidity--all of which can be found in the critique of domestic litigation. Finally, the model assumes that participants can specify detailed norms in advance, but in many cases the optimal solution is not known from the start and can only arise from complex interactions among affected parties.

While it is true that there has been an increase in the use of such "legalization" in international affairs, this model represents only some of international life and is but one form of law-like process operating in the international arena. Much of the legalist discourse tends to stress what law is--"hard or soft," (16) centralized or decentralized, enforceable or unenforceable. (17) There is great emphasis on "compliance," or securing behavior specified by fixed and preexisting rules. (18) Consequently, strict reliance on conventional notions of regulation can deflect attention from the full complexity of the "new world order," to quote Anne-Marie Slaughter, (19) and obscure the importance of other modes of governance with law-like aspects, the variety of mechanisms by which they can affect outcomes, and their interrelationship with more strictly juridical approaches. This Article, therefore, begins by asking what law does. (20)

Indeed, several prominent strains of literature seem to coalesce around the basic insight that law functions in nuanced ways to promote collective problem solving in an ever mutating transnational regulatory environment. (21) The purpose here is not to provide an exhaustive review of the relevant literature, which is voluminous. Instead, the remainder of this section draws on the prominent strains of the international relations (22) and "new governance" (23) literatures to present a vision for the emerging role of law in global space.

B. Features and Functions of Collective Problem Solving

In the context of global space, the overarching purpose of law is to promote a normative order that allows public and private actors to coordinate behavior and solve problems. At its core, the model rests on the idea of collective problem solving in complex multi-level arenas. This emphasis raises two central questions: 1) what does collective problem solving in global space mean and what are its core features? and 2) what are the characteristics of the process and institutions that would promote such problem solving? Collective problem solving involves a common …