Global Legal Pluralism and Electronic Democracy

Abstract

Transnational regimes are becoming an important factor in the organization of life around the globe. International institutions such as the World Trade Organization, the International Criminal Court and the Internet Corporation for Assigned Names have taken a leading role in the governance of various fields such as global trade, humanitarian law, and the Internet. There is a wide gap however, between the increasing power of these transnational players and their democratic commitment. Indeed, this democratic deficit is putting at risk the legitimacy of these regimes. This democratic gap calls for the creation of institutional mechanisms that will allow the global public to participate in a meaningful way in the creation and implementation of global norms. Achieving this goal requires the development of inclusive and non-hierarchical decision-making structures, which could break the confines of the current nationalistic order, and offer the public direct access to processes of global norm-production. This paper focuses on the possible contribution that the Internet can make, and is making, to the development of such novel decision-making structures. In particular, it examines whether the Internet can offer ways to incorporate the public more meaningfully into the infrastructure of global legal regimes. The capacity of the Internet to short-cut barriers of space and time, makes it, at least prima facie, the ideal medium for transnational deliberation. Indeed, this has been shown, somewhat ironically, by the fact that the Internet has played a major role in facilitating the protests against various global regimes. Protestors have used the Internet extensively, both to publicize their critique and, more instrumentally, to coordinate their actions. Websites such as Protest.Net, www.indymedia.org, www.WebActive.com and www.corpwatch.org have turned into hubs of political communication. All of these websites include details of upcoming protests, action alerts, and links to other protest websites. The extensive political usage of the Net has even led some commentators to assert that the Internet could revolutionize the face of global politics. However, despite the impressive growth of civic protest over the Internet, the use of the Web to include the public in transnational governance processes appears to be very limited. The question remains, therefore, whether the Internet has indeed the capacity to foster more inclusive structures of global law-making. The paper addresses this question in three stages. First, the traditional conception of transnational governance is reviewed and its weaknesses for understanding and addressing the issues raised by the emerging system of global law are identified. A more contemporary interpretation of international regime formation is then presented that requires a democratic and truly global decision-making forum. Second, the role of the Internet as a means of realizing such ambitions is explored, using the idea of politics as a problem of collective action. The discussion presents a simple game-theoretic model to illustrate the capacity of the Internet to facilitate the emergence of viable transnational communities. In the third and final section, three case studies are presented showing how some international regimes are currently attempting to utilize the Internet to facilitate a more democratic mode of operation. The focus here is on the World Trade Organization, the International Organization for Standardization and the Internet Corporation for Assigned Names and Numbers.