Indicators as the Working Language for Interaction Among Regimes

Abstract

This panel is based upon the premise that the use of indicators is an important form of power in global governance, which needs to be addressed from, perhaps even regulated by, law. I agree with this assessment, but want to focus on a slightly different angle. My starting point is that many of the debates taking place these days on the structure of the legal system can be usefully understood as problems derived from the interaction among regimes. Climate change, investment protection, humanitarian intervention--all these problems imply the interaction of different legal regimes (domestic, international, or transnational) whose outcomes and effectiveness depend not only on their own internal characteristics (that is, intra-regime), but also on the way in which they interact with each other--sometimes bolstering each other's effectiveness, sometimes annulling the very limited results they achieve. In this context, indicators work as a hinge between regimes. In a world where each regime seems to derive its legitimacy from closed communities of experts, indicators work as a common language for communication among regimes. With their claim to technical neutrality, their well-organized and easily understood bits of information, and their trans-national, non-culturally based terminology, indicators are well-placed to help epistemic communities communicate with each other outside their own narrowly defined areas of expertise. Indicators serve as the linguafranca of interaction among regimes. And if such interaction is potentially able to enhance or hinder justice, then a more thoughtful look at indicators seems to be important, in order to understand the way in which law not only confronts complexity, but also whether and how it contributes to a more just world. Human rights law is an interesting example of how law and indicators overlap. Here we have one of the most important areas of legal regulation, and we have also one area where indicators have been developed in more detail. In this case, quantitative measurement is instrumental for experts and activists acting within the human rights regime to communicate with people and institutions acting outside that regime. For example, indicators play a role in the interaction between development experts and human rights lawyers, as is made clear by the World Bank's recent report on Human Rights Indicators and Development, (1) by the role of indicators in monitoring the UN Millennium Development Goals, (2) and by efforts of the UNDP to use indicators in its evaluations of development. (3) Indicators are also a platform for the interaction between and domestic regimes. Here, indicators play two different roles. First, they frame the way in which compliance with legal norms is understood. This is particularly true with regard to economic, social and cultural rights where, perhaps in an attempt to balance the inherent indeterminacy of this kind of rights, indicators constitute the preferred technique to assess compliance. For example, Article 19 of the San Salvador Protocol of the Inter-American Convention on Human Rights orders state parties to report on advancements toward compliance with the Protocol, which is to be done in the form of indicators. What is more, the UN's CESCR adopted in 2000 a General Comment on the Right to Health where it suggested that a state party lacking indicators to measure advancement could be in breach of the Covenant. Moreover, indicators also play a crucial role in the way in which law is applied by domestic courts. Recent scholarship has explored the role of domestic courts in the legal system, focusing mainly on the role of domestic courts as enforcers and interpreters of rules. Indicators are an important part of this process. International institutions are increasingly adopting quantitative mechanism of monitoring that are then adopted by domestic courts as part of an international legal compact of sorts, that is then used in domestic adjudication. …