8 and 9 February 2007 (Basel, Switzerland)
The conference on “Non-State Actors as Standard Setters: The Erosion of the Public-Private Divide”, organised by the Basel Institute on Governance on 8 and 9 February 2007, was dedicated to the analysis of the role of non-state actors and emerging political arenas that shape norms and standards of the public sphere. Bringing together senior academics from a variety of disciplines, including public international and criminal law, political sciences, economics and social anthropology, the conference sought to develop an interdisciplinary and empirically grounded conceptual framework that links specific social, political and economic processes with the problem of generalising legitimate public authority. Themes discussed in this context included:
General themes:
- Disciplinary and interdisciplinary contributions to the fundamental premises of governance and the role of non-state actors, with particular emphasis on African countries and a special focus on ‘fragile states’. This includes especially conceptualisations of social and legal norms; authority; legitimacy; and reference points framing the ‘public’ and the ‘private’ sphere, encompassing the whole breadth of current debates.
- Well researched, empirically grounded case studies of norm setting in (cross-cutting) legal, social, political and economic terms.
- Methodological approaches and analyses of specific methodological problems of researching in this area.
- Reviews of governance policies and measures and their impact in terms of governmental capacity, political democratisation and economic welfare.
Specific themes:
- Culture, trust and the constitution of state law (public norms)
The current debate on African states puts the deficiencies of the legitimacy, authority and capacity of the public sector, political system and state law on centre stage: from the ‘weak state’ (Reno 1998/2000) to ‘failed state’ (Rotberg 2004), African state are seemingly marred by dysfunctions. However, the line of inquiry to be pursued here emphasises the constructive process of generating and institutionalising state law in contemporary African states. Under widely differing social, cultural and historical experiences, how is the authority and legitimacy of public norms constituted? Can or should public norms be conceptualised in relative terms? What consequences does this have on public policy and the legal sector, especially in a context of weak and uneven institutionalisation of the state? What current processes, actors and institutions can be identified that contribute in significant ways to the generalisation of trust and acceptance of public norms, both in so-called ‘governance’ states (such as Tanzania or, critically, Uganda) as well as in failed or post-conflict states (such as Liberia or DRC)?
- Pluralisation of norms and actors: consequences for governance
In the wake of globalisation, national norms and actors are increasingly accompanied, complemented or even replaced by both local and international ones. On the international plane, global governance frameworks and their leaders increasingly influence the adoption of norms, such as international conventions (e.g. the UN Convention against Corruption), initiatives (HIPC/PRSPs) or voluntary self-regulation in the public (EITI, Kimberley Process) and private sector (Wolfsberg Group, UN Global Compact, WEF Partnering Against Corruption Initiative). On the national level, the public sector reform and the dependence of many polities on aid push multi-and bi-lateral donors to the centre-stage of policy-making. On the local level, embedded actors (e.g. service NGOs) and non-state frames of reference (e.g. Sharia law) replace or undermine state-made law. Interdisciplinary research questions arising in this context include: What (cross-sector) governance processes are taking place? How can the relationship between the private and the public realm be understood? How can the problem of general order be addressed in view of such institutional, spatial and referential heterogeneity?
Moreover, core concepts which have gained a new relevance in this setting still lack clarification in a legal perspective. How are standards, rules, and principles, or soft law and hard law best defined? What does the “public private split” mean in the context of private standard setting and how is it affected? Concrete legal questions include for instance: In which respects are private standards a new phenomenon? How do they differ from private treaties/contracts? Which forms, procedures and publication techniques are used and what does this mean for the effectiveness and the legitimacy of private standards/norms? What is the impact of private or public-private law-making on constitutional principles such as the rule of law, democracy, and fundamental rights protection? Is the international/national law divide affected?
Do new theoretical approaches such as legal pluralism and legal anthropology offer new insights? Does the pluralisation of norms require a re-conceptualization of the sources of (international) law? How does private standard setting affect the ongoing constitutionalization of public international law? - Shifting perspectives: the scope of ‘boundary’ actors and arenas
The rising importance of non-governmental and private actors has been recognised for more than two decades. However, especially in an African context, what significant new actors and alliances are delineated in terms of norm-setting weight? Of prime interest are empirically grounded studies on the impact of local, national and regional actors operating seemingly at the margins of conventional public policy, such as traditional leaders, cross-territorial traders or criminal organisations. - Public - Private Partnerships (PPPs)
PPPs are heralded as new and effective governance strategies, especially appropriate to complex environments that can range from global health governance to local service provision. Can PPPs be adequately defined in legal terms? How do successful models of PPPs affect the public-private divide? What are the risks, what are the gains in terms of public / private standard-setting? Which influence and bargaining power do state and private actors have? To what extent does citizens’ participation shape and inform the rule-making of such partnerships? Can certain sectors, a specific composition and/or a particular outreach of PPPs be identified as being particularly suitable for strengthening the capacity and legitimacy of public institutions in weak and fragile environments? - Methods and methodology of capturing governance
In the past decade, huge advances have been made on the methodology of governance, and it is now possible to draw from extensive quantitative as well as qualitative data. However, a prime difficulty remains the problem of capturing governance in a context of the pluralisation of social, political and economic order. In what way can existing methodologies be refined to incorporate these dimensions beyond the ‘hard’ state? Should new concepts be developed that are grounded not on conventional theories of governance, but which premise on the informal as well as the formal? What approaches and indicators have been developed that capture such a multi-dimensional perspective?
- Market spaces and government practice: fragmentation or consolidation of public authority?
The privatisation and deregulation of virtually all African economies has led to the opening of new economic spaces and a proliferation of new stakeholders, from multi-national enterprises to local professionals. How does this impact on the regulatory capacity of the state? What economic consequences has liberalisation had? Furthermore, can a democratic opening be identified as a result of less constrained economic enterprise? - Sovereignty and territoriality
The demonopolization of state law-making potentially affects core features of the State, such as State sovereignty and territoriality. In order to capture this problem, this session will seek to address questions such as: Is sovereignty “unbundled” due to private law-making? Do we witness the emergence of “global law without a state” or rather a move to “bring the State back in”? Is co-regulation and “hybrid” standard setting a means for governments to retain control? Can private law-making be squared with traditional principles of State jurisdiction to prescribe? Is the territorial scope of law produced by private or hybrid actors clearly defined? Must novel rules of jurisdiction and for the choice of law be designed? - Insecurity and contested monopoly on the legitimate use of force
Non-governmental policing activity (or activity in the grey zone between military and police), including coercion and potential physical abuse, as exercised by private military contractors or technical assistance personnel is increasing. Whose domestic law is applicable to extra-territorial activities is this kind? Do existing international norms suffice to regulate these activities? Or is there a regulatory gap, especially with regard to private security and military contractors? Could denser self-regulation close such a gap? The answer might also depend on how and by whom private standards are applied, interpreted, and enforced. And how and by whom is compliance monitored and controlled?