Australian Year Book of International Law
It is fair to ask at the outset, why discuss global democracy? My answer is that I believe global democracy is the only possible future for world order that avoids human disaster. The alternatives to global democracy are, in my view, some combination of global empire and perpetual warfare, in which the independence of states, the freedom of all peoples, and the very sustainability of life on earth is put in increasing jeopardy.
We have been given an understanding, particularly in the United States, of this emerging style of undesirable world order in the aftermath of the devastating September 11 (9/11) attacks. What we observe to be unfolding on the global stage since that transforming day is the futile struggle by the most powerful national government to restore its national security amid an unresolved and extremely violent competition between surveillance, intelligence, and aggressive state war-making on the one side and secrecy, concealment and terrorist violence on the other. Such an encounter exhibits a new calibration of power as between states and non-states in which the resources and destructive capabilities of the former are being neutralised by the tactics of surprise, extremism, and ingenuity of the latter.
Responding to the imperatives of surveillance and intelligence has encouraged a variety of illiberal practices: torture, racial profiling, unprecedented intrusions on privacy, arbitrary detentions, covert prison sites, and targeted assassinations. Governments manipulate the atmospherics of war to claim special, emergency powers. The result is a pervasive sense of insecurity throughout society. The advocates of global democracy reject this image of security and share the conviction of the World Social Forum and others that another world is possible. Achieving that better world must start with ideas, especially at this time, ideas about security and power that take account of changing modalities of conflict and a global setting that can no longer be comprehended through the Westphalian lens of a world order constituted exclusively by interacting sovereign states.
In my view there exists a deepening double crisis of world order at this time. The most dramatic expression of this crisis is associated with the American drive to achieve global governance for the sake of establishing a global security system, against a background where it is becoming obvious that even the strongest sovereign states possess a declining capacity to provide tolerable levels of national security for their citizens in the face of challenges posed by new deadly types of non-state, non-geographically specific political violence. This push by the United States to achieve some effective form of global governance has become more visible and explicit in the wake of the September 11 attacks, but pressures of a different nature to improve the quality of global governance pre-existed those dramatic events, and were particularly associated with a variety of calls for the regulation of economic globalisation.
The second crisis, which is linked to the first, arises directly from the dynamics of neo-liberal global capitalism, especially the tightening squeeze on world energy supplies in the face of growing consumer demand and the serious environmental problems associated with global warming. This focus on energy supplies at acceptable costs and climate change is increasingly combined with disturbing evidence of a tendency to subordinate environmental protection to the maximisation of economic growth and corporate profits. These trends threaten to overwhelm the carrying capacity of the earth in a matter of decades, producing a deepening ecological crisis of global scope. Also present are a series of social, political, and ethical issues arising from the failure of the world economy to distribute the benefits of global development in a manner that appears equitable and eliminates important sectors of mass poverty, appears to be fair to countries in the South, and does not further accentuate inequalities of wealth and income.
This double crisis of world order can be overcome only by the establishment of an effective form of global governance. This can happen in either of two ways: coercively or voluntarily. Coercively, by seeking effective control over forces of resistance and opposition; voluntarily, by achieving what amounts to a new global contract between leaders, political actors, and peoples, based on consent, shared perceptions of legitimacy, an ethos of human solidarity, and a sense of urgency.
Unfortunately, so far the first line of solution definitely appears to have the upper hand in shaping a global response to the world order challenge, although this impression may turn out to be deceptive. Various forms of resistance are challenging this reliance on coercion, which can also be identified as the imperial approach. The frustrations of the enforcers when it comes to translating their military dominance into a favourable political outcome cast doubt on whether imperial forms of global governance can any longer be considered a viable option. This pattern of effective resistance has been vividly exhibited during the last several years in the course of the American-led invasion and subsequent occupation of Iraq. The American project to establish a global empire administered from Washington DC is encountering a variety of severe financial, ideological, and political difficulties that may lead to its abandonment, and the search for a new framework for global governance. It has often been noted that when an imperial strategy is failing, there is a dramatic increase in reliance upon military means to attain political goals.
The second line of solution depends on the establishment of new consensual foundations for world order based on the norms, procedures, and practices of global democracy. To be effective, this approach requires several developments that now seem beyond reach: the effective realisation of human rights throughout the world; the extension of the rule of law to restrain the use of force in international relations; the strengthening and democratising of regional and global institutions; the establishment of procedures of accountability, participation and transparency that are based upon the existence of a democratic ethos; and a consistent willingness by leading governments to address legitimate grievances of peoples throughout the world, and to settle such international disputes as arise by peaceful means.
I want to suggest that the future of world order is being shaped by an unresolved struggle between these two tendencies. Both world order options are adjustments to the waning of what is often identified as ‘Westphalia world order’, the organisation of world politics on the basis of the primacy of sovereign territorial states and their interplay. This struggle is ideologically confused and confusing. The imperial project lacks legitimacy and tries to hide its true character beneath the banners of anti-terrorism and a supposed promotion of democracy, while the global democracy alternative continues to be disregarded, and even dismissed, by mainstream media and commentators as an irrelevant utopia that clouds the mind without possessing any prospect of realisation.
The advocates of the global democracy project generally proclaim their goals and orientation without recourse to disguises. A democratically constituted world order is most easily grasped as the globalisation of democracy as it has evolved in the regional setting of the European Union over the course of the last 60 years. It can also be understood in relation to specific initiatives of global civil society. These include the values that animate such transnational social movements devoted to human rights and environmental protection, and such institutional projects as the International Criminal Court. It is important to free the political imagination from the models of democracy that have been evolving within states over the course of the last several centuries in settings where governmentality prevails.
It seems helpful to clarify what is meant by global democracy by reference to two illustrative initiatives that have recently engaged elements of global civil society. The first is a global peoples assembly. In other words, the establishment of a global parliament that is inspired by, but does not necessarily resemble in composition or role, the European Parliament. Second, the 2005 World Tribunal on Iraq (WTI) that was convened to assess the responsibility of various political and military leaders in relation to allegations made by opponents of the Iraq War, and to impose symbolic accountability on those leaders of a powerful country who seem to be guilty of violating basic norms of international law and whose behaviour continues to be shielded behind a lamentable culture of impunity that is built into the present structure of geopolitics.
I would situate these initiatives within the domain of ‘moral globalisation’, a terminology that calls attention to certain globalising trends based on the relevance of legal, moral, political and spiritual norms and the emerging means that are available to enhance their influence. With respect to international law there is a growing effort by jurists to establish this point, especially in response to the perceived lawlessness of the American response to 9/11. A conceptually intriguing way to underscore a renewed concern about the applicability of international law to security challenges facing the world is captured by Amy Bartholomew’s contrast of law’s empire, a phrasing made familiar by Ronald Dworkin, with empire’s law, an orientation toward discretionary war-making that reflects the view of George W Bush’s foreign policy that recourse to war is a discretionary matter, at least for the United States.
This distinction roughly parallels the contrast between the imperial project that subordinates law to unilateralist policy-making and the debilitating state of exception, and the global democracy project that accords respect for fundamental legal norms on the basis of a climate of law-abiding, an ethos of treating equals equally, and reliance on procedures for accountability that admit of no exceptions. In 2005, the 2500th anniversary of the birth of Pericles was celebrated in Delphi, Greece. It offered an occasion to reflect upon the origins and development of democracy as a form of government now preferred, at least rhetorically, throughout most of the world. The practices and actualities of government continue to lag far behind the promise of democracy within many states, and this lag exists in all states at times of war or other national emergency.
In the ancient world the glories of democracy were exclusively associated with the robust participatory and satisfying life of the male citizenry within the local confines of a city, managing somehow to coexist with entrenched forms of slavery that excluded many residents from an enjoyment of the benefits of this classical form of democracy. Women were entirely excluded from citizenship, making the realities of democracy rather anti-democratic, if the population of the city as a whole is taken into consideration.
And even for some of those who enjoyed the status of citizens, Athenian democracy was not consistently regarded as a glorious and beneficial system of government. Such influential Greek figures as Plato and Thucydides believed that democracy often encouraged the adoption of disastrous policies and decisions due to the vulnerability of the citizenry to demagogic manipulation – supposedly resulting from dubious appeals by impassioned and ambitious speakers to the emotions of their audience. Athens’ slide toward decline was blamed on this vulnerability of the citizenry to opportunistic politicians who cajoled on behalf of imprudent and self-destructive warfare that caused financial strain and produced military defeat. Democracy and the downfall of Athens as a dominant political force in its region were fused in the classical mentality, leading to a disvaluing of democracy as a preferred form of government.
It is only recently that democracy has been universally endorsed as the only legitimate form of government, having proved its worth by prevailing over the Soviet advocacy of socialism and by linking itself to a phase of capitalism that has organised, for the first time in history, a free market of truly global scope that is claimed not to be susceptible to hyper-inflation or drastic business cycles. This new phase of the world economy was regarded as such a defining feature of world order after the Cold War as to make ‘globalisation’ the term of art most widely, if anxiously, used to describe the 1990’s phase of international relations. It remains far too early to tell whether capitalism has really overcome its tendency toward alternating periods of boom and bust, with painful adjustments between phases of the business cycle, especially for the poor and marginalised. Sceptics would argue that such cruel patterns of adjustment have been occurring, and the positive claims made on behalf of a neo-liberal approach to global economic policy have already been discredited in large sectors of world public opinion.
The modern era, starting in the mid-seventeenth century, has been distinguished by the degree to which the defining political community has been the sovereign state, not the city state, operating within fixed territorial boundaries, and for most of this period, primarily organised around authoritarian forms of governance. To the limited extent that democracy existed, it relied primarily on a primitive mechanism of checks and balances to avoid governmental abuse, depending on legislative authority, judicial review, and periodic contested elections to achieve popular participation and accountability of leaders, as well as to avoid the tyranny of the majority. It is only recently that democratic forms of government have been so widely affirmed and even now, somewhat controversially, as the necessary precondition of legitimate government at the level of the state. It is yet to be convincingly established by experience and consensus that non-democratic forms of governance under certain societal conditions might not be preferable, even from the perspective of human rights, to certain forms of democracy. As with ancient Greece, a militarised popular culture might imprudently opt for war in settings where a more elitist leadership, not responsive to the sway of passion, might behave more prudently. It has not yet been demonstrated that democratic forms of governance within the state are consistently, much less invariably, preferable from the perspective of world order. The recent behaviour of the United States government has reinforced the position of those who say that being a well-grounded democracy at home does ensure respect for law and restraint abroad.
This historically significant affirmation of political democracy is associated with a conjuncture, or clustering, of global trends among which the following seem especially significant: the triumph of the liberal capitalist West in the Cold War and the closely related collapse of a state socialist or Leninist alternative approach to political economy; the discrediting of authoritarianism as a result of a worldwide human rights movement combined with the general failure of military dictatorships, especially in Latin America during the 1970s and 1980s, to organise economic and civic life successfully; the evolution of European regionalism as a post-Westphalian model of meta-state governance; and the menacing insistence by the United States, as global hegemon, that only market-oriented constitutional democracies can be regarded as legitimate governmental solutions for sovereign states.
Each of these trends deserves a detailed consideration for adequate appraisal, but it is not possible to do so within the limits of this paper. I would only observe here that the influential liberal philosopher John Rawls in contrast to the current drift of official thinking in Washington does acknowledge the possibility of benevolent variants of non-liberal governance. That is, non-democratic forms of government should be regarded as legitimate according to Rawls, provided the policies and practices associated with the exercise of governmental authority embody certain humane standards. Rawls identifies this substantive foundation of legitimacy as ‘an overlapping consensus among the peoples of the world on the minimal conditions of human dignity’.
And of course, it should be observed that authoritarian governments in Asia, most notably China, have shown a remarkable ability to organise robust economies to achieve an unsurpassed record of sustained growth. In effect, our experience through time and across space confirms that democracies can engage destructively, while non-democracies may perform admirably. This well-evidenced generalisation challenges the unconditional view that democracies alone are legitimate forms of government, and can also be relied upon to achieve positive political results. Despite this realisation, at the present stage of history it seems correct to claim that only democracy seems capable of producing humane governance on a global level.
A dramatic world order claim made on behalf of the democratic governance of states is associated with the conviction traced back to Kant’s ‘Perpetual Peace’, that democracies do not go to war against one another. Thus, to the extent that states, regions, and the world are democratised, peace would be reliably established without awaiting either an annihilating catastrophe or the utopian unfolding of global constitutionalism in the form of a world government.
In this sense, especially, given the challenges associated with globalisation, democratisation of political space within sovereign states is put forward as the most practical, that is, attainable way to achieve a peaceful world. But such an expectation of a democratic peace vanishes into thin air if the structure of world order shifts from its statist axis to an imperial axis of control as seemed to be happening after the Cold War and, even more dangerously, after the September 11 attacks.
The juridical image of a world of sovereign states never corresponded with the geopolitical realities of unequal power and influence in the world. This Westphalian arrangement of authority at the global level is conveniently, if misleadingly, treated as originating with the peace treaties signed in 1648 at the end of the Thirty Years War. This point of departure occurred in a climate of geopolitical exhaustion in Europe that followed upon a futile and destructive cycle of religious wars. This new, more secular framing of world order was initially descriptive of nothing more than the European regional reality. The conceptual universality of this Westphalian framework seemed deliberately blind to its Eurocentric reality consisting of both colonial domination of the non-Western world and an explicit ideology of Western civilisational superiority that validated the subordination of everything non-Western.
Further, the imagery of the equality of sovereign states ignores the role played and claimed by so-called great powers in the management of world politics. This geopolitical status was acknowledged in the deep structure of the United Nations, principally exhibited by giving the five victorious powers in the Second World War a permanent seat in the Security Council along with a right of veto in relation to proposed decisions. The veto is a significant constitutional acknowledgment that the UN Charter, and international law generally, cannot and will not be imposed on these five states and their friends but can be rendered effective, if at all, only if there exists a geopolitical consensus among the Permanent Five (P-5) on particular issues and then only to the extent of a voluntary submission to such legally constraining guidelines as are contained in the UN Charter. This voluntary relationship to international law is further evident in the role given to the International Court of Justice (ICJ) within the UN system. Only when states agree to submit their international disputes does the ICJ possess the authority to decide, and only when an organ of the UN asks a question about the legal status of controversial behaviour can the ICJ provide a response, and only then in the form of an ‘advisory opinion’. In light of such a conditional commitment to legality it is hardly surprising that the UN has had such a disappointingly modest record of achievement with respect to resolving peace and security issues in accordance with international law.
Arguably, the American commitment to strengthening the global rule of law in the period immediately following the Second World War was moving in this hopeful direction of encouraging voluntary compliance by geopolitical actors. But this optimism was short lived. It was soon badly eroded by the onset of the Cold War and the ascendance of realist thinking in the inner councils of government for most states. Only a few states managed to act in a more globally oriented spirit, most notably Sweden during most of the twentieth century. The basic atmosphere of world politics was shaped by the calculations of opposed geopolitical actors, and their allies, guided by realist assessments of their interests and capabilities.
In those rare circumstances where a consensus among permanent members of the Security Council did exist, as was the case for the first Gulf war in 1991, the Charter framework could operate effectively to deter, or even reverse, instances of aggression. The restoration of Kuwait’s sovereignty offers an impressive, if flawed, example of collective security. When a consensus in the Security Council is absent, as in relation to the Kosovo War of 1999, or the Iraq War of 2003, the UN is made to appear impotent and irrelevant. Such impotence is magnified if world order has a unipolar, rather than a bipolar or multipolar character, with respect to recourse to war, and particularly if the diplomatic style of the leading state is distinctly unilateralist and militarist in the manner of the Bush presidency.
The same structural reality in world affairs caused far less tension during the Clinton presidency of the 1990s, because its tone and operational mode tended to be both more multilateral and consultative, and far less inclined to opt for military solutions. The Clinton emphasis was on economic globalisation and humanitarian diplomacy rather than on global security by way of imperial geopolitics, that depends on military dominance, interventionary diplomacy, and recourse to regime-changing wars. In fairness, the Bush presidency has been challenged by the September 11 attacks to refocus the policy agenda of the United States on global security. But its unilateralist and militarist diplomatic style preceded the attacks even if we grant for these purposes what increasingly seems dubious, the full authenticity of these attacks as genuine surprises.
We know that the neoconservative entourage forming the foreign policy core of the Bush administration believed long before September 11 that it would be beneficial to awaken the American people to the dangers and opportunities that existed in the post-Cold War world by what they prophetically called ‘a new Pearl Harbor’. This outlook was set forth in detailed form in a report of the Project for the New American Century entitled ‘Repairing America’s Defenses’, prepared in the two years before Bush became president, and in print more than a year before the 9/11 attacks. The report was endorsed with the signatures of many leading neoconservatives who became principal advisors in the Bush presidency.
David Griffin’s disturbing book entitled The New Pearl Harbor makes a strong, well-evidenced argument that these imperial globalists were deliberately willing to allow an attack on America to happen, thereby making sure that what was advocated in their report as a wish list would be instantly transformed into viable political undertakings. An increasing number of Americans are asking whether those who were leading the United States in 2001 were not disposed to allow some sort of attack on the United States to occur, if only to have the pretext and popular mandate to follow a policy that they believed to be desirable and necessary for the wellbeing of the country, but could not activate without some sense of urgency on the part of the American public. It is not necessary to accept such conspiratorial musings to follow the main line of analysis and advocacy that I am setting forth.
The global setting of the early twenty-first century definitely reflects the impact of and the response to the September 11 attacks on the United States and the world. The resulting war on terror, with al Qaeda and the United States government, has been an essentially borderless war between two adversaries that are both non-states. One side is a concealed trans-national network without a territorial base, the other a global state with military bases on every continent, navies patrolling every ocean, plans underway for the militarised control of space, including feverish efforts to achieve global surveillance and targeting capabilities. Of course, the borderless war has assumed geographically specific forms as in Afghanistan and Iraq as the United States has tried to address the al Qaeda threat by invoking its overwhelming state-fighting military capabilities, but to little or no avail.
In other words, a democratic form of governance for the traditional state seeking security and control within its own borders, no longer embraces the regulatory structure that affects most of the peoples of the world. National control of course persists for many activities and has been actually intensified for some, including border control, but there is an unacknowledged supranational layer of geopolitical authority and transnational political crime that takes precedence over territorial sovereignty in matters of national and human security.
Concerns about terrorism exert pressure to deal more coercively with illegal immigration and suspect minorities as well as to maintain stricter border control, even unto erecting high walls. It is true that sovereignty in both senses (political independence and territorial control) has long been precarious for many weaker states, especially if at odds with the ambitions of stronger neighbours and hegemonic policies. But the state as territorial entity was previously the only consistently significant actor on the world stage during the modern era. Sovereignty as reality was of course never absolute as suggested by the political myth of sovereignty as uncontested authority within a recognised territorial domain, but it was a satisfactory description of the modern world for most purposes.
The non-territorial nature of this unconditional war on terror is also eroding the democratic character of civic life in the state, particularly the state that claims the mantle of being the world’s leading democracy. The Patriot Act, racial profiling of suspect ethnicities, the Abu Ghraib photographs and Guantanamo revelations of torture, the secret prison sites of the Central Intelligence Agency (CIA), and the tarnished reputation of America led such a respected human rights organisation as Amnesty International to accuse the United States of containing ‘a Gulag of our time’. Such a combination of disclosures deeply challenges America’s democratic credentials. This whole pattern is reinforced by the efforts of neoconservative lawyers working for the Bush presidency to provide legal cover for these policies.
These tarnished credentials coincide uncomfortably with President Bush’s pro-democracy campaign on a global level that includes preaching sermons on the benefits of democracy to the rest of the world. The general pressure to enact antiterrorist legislation and the temptation by opportunistic foreign leaders to imitate the American antiterrorist approach has also weakened democratic practices in many other states. Such an impact renders discordant the American claim to be promoting democracy abroad as a cardinal goal of its foreign policy.
Additional to these developments associated with the global setting, the realities of the information age and economic globalisation are increasingly inconsistent with the traditional belief that national governance can protect the wellbeing of territorial societies, and insulate its citizenry from harmful policies emanating from beyond territorial limits. Considered cumulatively, these various factors underscore the urgent need to consider whether the earlier benefits of democracy at the national level must now be extended beyond the state and the state system of governance, partly to preserve democratic life at home, and partly to ensure that global governance takes a largely benevolent turn.
Global democracy should not be conceived mechanically as the reproduction on a global level of the features of national democracy, an understanding that would seem to point toward the advocacy of a world state as the proper solution to the current challenge of global governance. Such a political imaginary is certainly one logical possibility, but it is not a political horizon that seems, currently, either possible or desirable. What I am proposing as necessary and possible with respect to global governance is premised on the extension of human rights to all peoples and based on a minimum centralisation of constitutional and governmental structure to address problems of an inherently global scope, especially war and the environment.
It is against this background of interpretation that I argue that the prospects for, and project of, global democracy needs as a matter of urgency to become part of the political imaginary of our time. By that, I mean following the thinking of the Canadian philosopher, Charles Taylor, to enter into the active political consciousness of the peoples of the world in a manner analogous to the ways nationalism, patriotism, sovereignty and democracy itself have formed the political imaginary of the modern state. At present, aside from the partial exception of Europe and scattered other countries, there is an unfortunate disconnect between the affirmation of democracy as the foundation of governance for states and the efforts to preclude the democratisation of emergent international structures, arenas of decision, and practices associated with present forms of global governance, which continue to be largely dominated by imperial geopolitics.
This disconnect is complex, but it is centred upon a continued reliance on the geopolitical management of world politics as reinforced selectively by the norm of the equality and autonomy of all states. The latest phase of such management is beset by the contradictions due to the effects of globalisation, the war on global terror, and the American project for managing global security from its own capital without a willingness to accept the restraining influence of global norms, institutions, and procedures.
Prospects for a humane variant of global governance presupposed the existence of global democracy, including the implementation of universal standards of legality. This contrasts with the current moves toward an inhumane form of global governance, resting on a foundation of what might be accurately labelled as ‘imperial legality’, or what I called earlier ‘empire’s law’, which entails imposing legal accountability selectively on normal states even by recourse to war, while at the same time exempting the global hegemon and its various cooperating sub-hegemons from obligations of compliance. The shielding of Israel from censure by the UN Security Council in view of its launching an aggressive war against Lebanon in 2006 is illustrative of this unwillingness to shape foreign policy within the boundaries established by international law.
This exemption, or exception, shapes a legal order characterised by double standards, uneven implementation and the denial of the fundamental axiom of the rule of law ‘that equals should be treated equally’. Such a legal regime consists of double standards and exceptions, and naturally gives rise to a pervasive cynicism about the relevance and viability of international law as the basis for adherence to common standards in the world.
An imperial legality can be best comprehended as the constitutional dimension of what I would call globalisation from above. In contrast, the envisioning of global democracy can be most easily appreciated as the struggle of transnational social forces to achieve global justice in all of its dimensions. That is, promoting the normative goal of globalisation from below. The imagery of global democracy is at this stage almost purely aspirational. It does not exist, except episodically, at the level of practice or institutional arrangement. Global democracy as a reality is at this stage nothing more (or less) than a series of ideas and beliefs promoted by reformers, and some initiatives pursued by activists. It is not yet an orientation toward political and societal reality that is widely shared, or even well understood, by citizens and politicians.
Global democracy has been infrequently theorised because of the persisting hold of the modern worldview, which is based on the shared belief that distinct states are the only object worthy of depiction by the political imagination. In this obsolescent, yet still prevailing imaginary, the state remains the outer limit of genuine political community. Most discussions of global governance by liberal internationalists continue to be based on establishing a stronger, that is, more effective, UN, or more geopolitically on the prospects for global empire in a postmodern form that does not seek or exercise direct, or formal, control over subordinated, or regulated, spheres of human activity. The control is selective, but remains constantly latent, given the global reach of technologies of destruction that can be activated at any moment by sophisticated electronic means.
European regionalism, despite its recent setbacks, offers a challenging middle ground, impressively exhibiting some democratic elements on a regional basis, while establishing an identity and a pattern of governance that complements without displacing what exists beneficially at the level of the state. It is a radical postmodern, post-Westphalian experiment in governance, far more bold in conception and undertaking than the UN. The European Union has greatly diminished the relevance of borders within Europe, relies now on a common currency and possesses influential parliamentary and judicial institutions, as well as having developed over the decades an elaborate arrangement of shared economic policies and procedures for the regulation of trade and investment. The rejection of a proposed European constitution was a setback of major proportions for this vision of a European state, as has been the wave of anti-immigrant sentiments in several European countries.
Despite these formidable obstacles to the further development of this European project, which may yet turn out to be growing pains, it remains of inspirational relevance for a liberating imaginary of global governance. In these respects, the European approach to governance can be interpreted both as a regional prefiguring of global governance and as an approach that moves toward a world of regions, superseding the Westphalia image of a world of sovereign states.
In the 1990s, without much attention, there were a number of developments that satisfied some of the political preconditions for the realisation of global democracy, and I just want to mention very briefly, several of these to show that the advocacy of global democracy is rendered plausible by several supportive political trends.
Perhaps the most notable of these was the emergence of a new political construct, which was generally known as ‘global civil society’. This construct resulted from the activities and achievements of transnational social movements and networks, particularly with respect to human rights, women, and the environment.
Many of these civil society actors focused their reformist energies on economic globalisation, calling for greater transparency, regulatory authority, substantive fairness and participatory policy-making, especially with respect to the operations of the International Monetary Fund (IMF) and World Bank and in relation to the World Trade Organisation (WTO).
A second important development in the 1990s was what I would call the revival of the Nuremberg ethos of criminal accountability for political and military leaders charged with crimes under international law. This took the form of the establishment by the UN Security Council of ad hoc tribunals in relation to the former Yugoslavia and Rwanda, which have been operating for more than ten years in The Hague and Arusha, Tanzania. It also was reflected in the 1998 detention and subsequent extradition proceedings associated with Augusto Pinochet, the former dictator of Chile and the related impulse to exercise universal jurisdiction over such crimes of state by vesting extra-territorial authority and universal jurisdiction in national courts. These developments contributed to the powerful movement of governments and civil society actors that led to the unlikely establishment in 2002 of a permanent international criminal court. This is potentially the most important innovation in international society since the establishment of the UN itself, and what makes this development so intriguing is that it came into existence despite the high-profile opposition of the United States.
A third development was associated with the prominent presence of civil society actors in an influential way at UN conferences on world policy issues, such as the environment, human rights, population, women, racism, and sustainable development up through the mid-1990s. This presence really could be viewed, from my perspective, as explorations in global democracy. That there appeared to be evolving informal ways for representatives of global civil society to exert an influence on global policy-making gave rise to the hope that perhaps global democracy could take shape spontaneously and without formal enactments.
A fourth development in the 1990s was an unprecedented focus of attention on the redress of previously neglected historic grievances. This was a time when there was a great deal of concern directed at past injustices that have been more or less neglected in policy arenas for decades, if not centuries. There were notable undertakings in a series of countries associated with the creation of truth and reconciliation commissions that played crucial roles in shaping transitions from prior oppressive authoritarian rule toward a more constitutional form of democracy. There were also a variety of national and global efforts to give greater attention to the grievances and suffering of indigenous peoples, including acknowledgments of the past wrong-doing endured by traditional peoples around the world. In this period long deferred economic claims for compensation associated with Holocaust victims and survivors were suddenly taken seriously and often resolved, including large monetary payments by Swiss banks that finally took responsibility for shielding in secret accounts Nazi holdings of confiscated Jewish assets. Additionally, the recovery of stolen art objects, the release of insurance proceeds and payments for forced labour were all part of this turn toward the acknowledgement and gestures of rectification for past injustices. There was, in other words, a multifaceted upsurge of concern for these historic injustices that seemed to reflect an encouraging emergence of an ethos of global justice.
Forgotten holocausts like the rape of Nanking in 1937 received attention as well as the use of forced labour throughout Asia during the period of Japanese imperial militarism. And it was in the 1990s that the descendants of slavery, both in Africa and America, were able to put forward credible arguments to both establish slavery as a crime against humanity and to stake claims for reparations, substantive and symbolic.
A fifth element of this upsurge of moral consciousness involved the dramatic rise of human rights. With the transformation of eastern Europe and the collapse of the Soviet Union, and the success of the antiapartheid movement, it became clear that human rights as a political project, was becoming a principal touchstone of political legitimacy within states and a serious item of statecraft. This preoccupation with human rights also produced an international atmosphere in which humanitarian intervention, as occurred under the North Atlantic Treaty Organisation (NATO) auspices in Kosovo in 1999, generated widespread regional and international support, along with a bit of scepticism about the undisclosed strategic motivations of the intervenors. It also gave rise to a new ethos of the responsibility to protect vulnerable peoples faced with threats of humanitarian catastrophe.
What I would like to suggest is that the weight and momentum of these developments in the 1990s was moving in the direction of what I would call a normative revolution in world affairs. Such a hopeful mutation of world politics has been, temporarily at least, sidetracked by global developments since the September 11 attacks. Nevertheless, some of the conditions for the establishment of global democracy as a viable foundation for world order have been and are being established, and should not be overlooked in the feverishly contrived climate of concern about terrorist threats and counter-terrorist warfare.
What was identified as the start of a normative revolution has been beset all along by certain contradictions that were present in the 1990s: the failure of response in 1994 to the onset of genocide in Rwanda; the degree to which economic globalisation was widening disparities between rich and poor within and among countries; the failure of political leaders to take advantage of the end of the Cold War to strengthen the UN, especially by endowing the organisation with a peace force designed for rapid interventions in the face of impending humanitarian catastrophes; and the refusal of the leading states to initiate nuclear disarmament negotiations in a global setting that would have likely been receptive to such undertakings.
Unquestionably, tensions arose between these different tendencies in the 1990s but it was still a hopeful time so far as global democracy was concerned. Attitudes were moving in a democratising direction and proposals were being developed that were responsive to the global democratic deficit.
I want to end by mentioning two specific projects that embody the spirit of global democracy. The first is to establish a global peoples assembly, or a global parliament, which is really based on the experience of the European parliament, but without trying to imitate its manner of evolution or its modes of operations. It is helpful to recall that the European parliament was for years dismissed with condescension as a wasteful talk shop, yet by persisting gradually exhibited its usefulness, and came to possess growing credibility.
The argument for a global parliament rests on the proposition that it is essential for the peoples of the world to have some form of representation at the global level other than that provided by national governments. Such an arena would display more authentically than is the case at present, the differing priorities of diverse peoples and societies. By this means, there might well emerge a creative tension between governmental bodies and the global parliament with respect to the global policy agenda. As might be expected, a proposal of this sort meets resistance from most governments, because it is seen as a threat to their continuing monopoly over participation in international institutions. States remain the only members of the UN and they symbolically conceive of themselves as the only political actors that are capable of formally shaping global policy.
In some ways, of course, especially in the present atmosphere, the establishment of such a global parliament seems politically implausible, but properly conceived, a global parliament is a less-threatening innovation internationally than was the idea of establishing an international criminal court. This court is supposed to exercise real legal authority, at least potentially, over the behaviour of the heads of even the most powerful states and their leaders, whereas a global parliament, particularly in its early stages, would only exercise consultative and advisory authority, and would not be expected to have legislative power. But a global parliament would provide the peoples of the world with a needed voice to express their most urgent concerns. Articulating these concerns in a formal body would be a very important step in promoting an atmosphere receptive to further moves in the direction of global democracy, and would also likely offer intense resistance to imperial approaches to global governance.
The second example of an undertaking expressive of global democracy was the World Tribunal on Iraq held in Istanbul during June 2005. This Tribunal was exclusively a civil society undertaking. It belongs within the domain of events that I associate with ‘moral globalisation’. The WTI was a response to the Iraq War which, more than any previous war, generated widespread opposition both before it occurred and since the occupation of Iraq.
It is relevant to recall that on 15 February 2003 there were demonstrations in 80 countries around the world, which involved some 11 million people and took place in as many as 800 cities. Such a global mobilisation of anti-war activists had never occurred before; it is true that this opposition to the impending invasion of Iraq failed to prevent the war, but it did do a great deal to undermine the legitimacy of the American-led policies. Undermining the legitimacy and legality of the Iraq War was a significant political achievement and became a political fact that inhibited United States efforts to gain international support for its Iraq policy.
Since the invasion of Iraq in March 2003, there have been some 20 civil society tribunals passing judgment on the morality, legality and political propriety of the Iraq war. These tribunals have been organised in all parts of the world, culminating in the Istanbul session that was considered the final phase of this worldwide tribunal process. The major justification for constituting this Tribunal was based on the reasoning that where states and international institutions fail in their ultimate responsibility to insist upon respect for fundamental norms of international law, there exists a residual right and responsibility vested in the peoples of the world to demand respect for international law and to expose the inability of either the UN or the state system to generate that respect. It needs to be appreciated that it is not the job of such a tribunal to discover the truth about the Iraq war, rather its function is to demonstrate comprehensively and convincingly the illegality, immorality and criminality of the challenged policies, and to indict existing international institutions, in this instance the UN, for their failure to uphold their constitutional obligations.
The Tribunal was organised in terms of a jury of conscience whose members were cultural and religious moral authority figures, along with civil society activists, selected for their credibility as world citizens rather than because of their expert legal knowledge and credentials. This jury was assisted by a panel of advocates that did include some leading international law specialists, including Christine Chinkin and Philip Shiner from the United Kingdom and several other notable legal personalities, who made presentations on the main international law issues raised by the Iraq war. The WTI proceedings were informed by international law at every stage, although the Tribunal did not pretend to be a legal body.
The declaration of the jury of conscience, which I think is an important, even historic, document, was written by the jury presided over by the very famous Indian novelist, Arundhati Roy, author of God of Small Things. The WTI declaration benefits from her literary touch, but also draws a series of conclusions as the illegality and criminality of the Iraq war and the continuing occupation of the country, and identifies individuals as perpetrators who ought to be indicted if applicable legal standards were implemented.
The first paragraph of the WTI Declaration of Jury of Conscience sets the tone, and is expressive of an ethos associated with global civil society:
In February 2003, weeks before an illegal war was initiated against Iraq, millions of people protested in the streets of the world. That call went unheeded, no international institution had the courage or conscience to stand up to the threat of aggression of the US and UK governments. No one could stop them. It isn’t two years later now, Iraq has been invaded, occupied and devastated. The attack on Iraq is an attack on justice, on liberty, on our safety, on our future, on us all. We people of conscience decided to stand up. We formed the World Tribunal on Iraq to demand justice and a peaceful future.
This World Tribunal makes a very important effort by its suggestion that if we are to have a humane destiny as a species, we must move toward an embrace of global democracy. It may not yet be time for global democracy to come into being as a full-fledged historical reality, but it is certainly time for its delimitation, the depiction of its initiatives and the advocacy of its projects, as well as the articulation of its animating beliefs. Creating the structures of global democracy by transnational, regional and global means seems to be the most hopeful course we as individuals can take in these troubled times.
I have been dealing with a very speculative subject-matter, but taking it seriously seems closely connected to finding ways to meet the world order challenges described at the outset. It is my hope that by exploring the various moves in the direction of global democracy, as well as depicting the dark consequences if the solution of global governance depends on war and imperial forms of control.
The principal purpose of such an exploration is to engender discussion, debate, and policy outcomes that are beneficial for the peoples of the world. As the Palestinian poet Mahmoud Darwish has put it:
What use is human thought, if not for the improvement of the human condition?
[∗] This article is based upon the Eighth Geoffrey Sawer Lecture, delivered 2 August 2005, Centre for International and Public Law, ANU College of Law, Australian National University.
[∗]∗ Albert G Milbank Professor of International Law and Practice Emeritus, Princeton University; since 2002, Visiting Distinguished Professor, Global Studies, University of California, Santa Barbara.
 For elaboration see R Falk, The Declining World Order: America’s Neo-Imperial Geopolitics (2004).
 Among many discussions see C Johnson, The Sorrows of Empire: Militarism, Secrecy, and the End of the Republic (2004); A J Bacevich, American Empire: The Realities and Consequences of U.S. Diplomacy (2001); and N Smith, The Endgame of Globalization (2005).
 See D Archibugi and D Held (eds), Cosmopolitan Democracy: An Agenda for a New World Order (1995); D Archibugi (ed), Debating Cosmopolitics (2003).
 See D Held, Models of Democracy (1987); D Held, Democracy and the Global Order: From the Modern State to Cosmopolitan Governance (1995).
 A useful popular book along this line is P Sands, Lawless World (2005).
 On ‘empire’s law’ see A Bartholomew (ed), Empire’s Law: The American Imperial Project and the ‘War to Remake the World’ (2006); for a critique of Bush’s abandonment of Charter prohibition of non-defensive force see R A Falk, ‘Renouncing Wars of Choice: Toward a Geopolitics of Nonviolence’ in D R Griffin, J B Cobb jnr, R A Falk and C Keller, The American Empire and the Commonwealth of God (2006).
 See National Security Strategy of the United States of America (2002) White House <http://www.whitehouse.gov/nsc/nss.pdf> , especially President Bush’s covering letter.
 See J Rawls, The Law of Peoples (1999).
 Most persuasively expressed in M W Doyle, ‘Kant, Liberal Legacies, and Foreign Affairs’ Parts 1 & 2, (1983) 12 (no 3 & 4) Philosophy and Public Affairs 205 and 323.
 Elaborated in Falk, above n 1, especially chap 1, pp 3-44.
 A particularly influential account along these lines is H Bull, The Anarchical Society (1977). See also R Aron, Peace and War: A Theory of International Relations (1966).
 See R A Falk, ‘What Future for the UN Charter System of War Prevention? Reflections on the Iraq War’ in I Abrams and W Gungwu (eds), The Iraq War and Its Consequences (2003) 195.
 But see Smith, above n 2, for a strong argument as to continuity in these regards as between Clinton and Bush II.
 See ‘Repairing America’s Defenses,’ Report of the Project for the New American Century, Washington D C, 2000.
 See D R Griffin, The New Pearl Harbor (2004); also D R Griffin, The 9/11 Commission Report: Omissions and Distortions (2005).
 S Krasner, Sovereignty: Organized Hypocracy (1999).
 There is much literature on this point. See for instance R Ashby Wilson (ed), Human Rights in the ‘War on Terror’ (2005).
 Undoubtedly, the most notorious here is the work of J Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11 (2005) inside and outside of government; but see M Danner, Torture and Truth: America, Abu Ghraib, and the War on Terror (2004); K J Greenberg (ed), The Torture Debate in America (2006).
 For a seminal, comprehensive account of how transnational networking is reconstituting political reality see M Castels, The Information Age: Economy, Society, and Culture (vol 3, 1996-1998).
 C Taylor, Modern Social Imaginaries (2004).
 For my attempt to depict this positive possibility see R A Falk, On Humane Global Governance: Toward a New Geopolitics (1995).
 This terminology relating to differing orientations toward globalisation can be found in my book, R A Falk, Predatory Globalization: A Critique (1999).
 M Keck and K Sikkink, Activists Beyond Borders: Advocacy Networks Beyond Borders (1998); see also R Broad (ed), Global Backlash: Citizen Initiatives for a Just World Economy (2002).
 Perhaps the best example of this genre is D Held, The Global Covenant: the social democratic alternative to the Washington consensus (2004).
 For enthusiastic assessments see J Rifkin, The European Dream: How Europe’s Vision of the Future is Quietly Eclipsing the American Dream (2004); M Leonard, Why Europe Will Run the 21st Century (2005).
 M Kaldor, Global Civil Society: An Answer to War (2003).
 St Macedo (ed), Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (2004).
 See generally E Barkan, The Guilt of Nations (2000).
 R A Falk, Human Rights Horizons (2000).
 R A Falk and A Strauss, ‘On the Creation of a Global Peoples’ Assembly: Legitimacy and the Power of Popular Sovereignty’ (2000) 36 Stanford Journal of International Law 191.
 For assessment see R A Falk, ‘World Tribunal on Iraq: Truth, Law, and Legitimacy’ unpublished paper presented at Critical Legalities Symposium, University of California at Irvine, 11-12 October, 2005.
 World Tribunal on Iraq: Declaration of Jury of Conscience, Istanbul, 23-27 June 2005 <http://www.wagingpeace.org/articles/2005/06/27_jury-of-conscience-declaration.htm> .
 <http://www.mahmouddarwish.com/english/index.htm> .