Introduction “The fundamental idea of democratic, political legitimacy is that the authorisation to exercise state power must arise

from the collective decisions of the equal members of a society who are governed by that power.”1 International regulation raises significant questions for the role of nation states and for democratic accountability, as the ability of citizens to make collective decisions about many aspects of the global economy is severely limited by factors such as the limited importance granted to issues in the national political arena (all politics is local, and major national political players tend to be unwilling to raise global regulation issues in national domestic elections), the complexity of international regulation and the varying degrees to which international organisations offer either the possibility of input from national governments and civil society groups – or are structured in a way which allows public opinion to feed into their terms of reference or decision-making. Insofar as democracy requires collective decision-making of citizens, democracy cannot happen without understanding on the part of citizens and the respect of their priorities. The more than 100% increase in intergovernmental organisations from 1951 to 1999 2 gives an inkling both to the magnitude of the change in the role of “nation states” and to the increasing complexity of international regulation. This clearly has a knock-on effect for the nature of the democratic nature of the external relations of nation states, particularly with regard to international organisations. Rather than a situation where “governments have lost the capacity to manage transnational forces in accordance with the expressed wishes of their citizens”,3 it is probably more often true that citizens have had neither the opportunity to discuss, nor the opportunity to express wishes on such forces. For these reasons, democracy as simply an “institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote”4 is the unambitious standard set for democracy at a national, with governments chosen for national priorities given the power to negotiate regulation on an international level. This essay will highlight some relevant limitations of national democracy, in order to show why a simple extension of the national model of democracy to a transnational level would not alone be insufficient but counter-productive and potentially even anti-democratic, before looking at the limitations of NGOs as a panacea to the problems of democracy in international regulation. It will then assess varying academic approaches to the difficult task of bringing the deliberations and views of citizens into the political process, in order to review the possibilities for ensuring that principles and priorities of voters can have a significant influence on the way in which governments interact with international organisations. Moving on from this academic overview, three case studies of widely varying international organisations will be reviewed to analyse how these academic views compare with the “real world”. It will conclude by arguing that, while voters have little chance of knowing, or being able to influence the specifics of what governments do on their behalf, experience exists to suggest that their principles and priorities could have a significant effect if certain key parameters are set for transnational institutions – potentially influencing how decisions are made and which kind of decisions are made– creating more democracy without, necessarily, more elections. Democratic legitimacy emanating from national governments
1Cohen, Joshua, “Democracy and Liberty” in Elster, John (Eds), “Deliberative Democracy”, Cambridge University Press, 1998 p 185 2 Stein, Eric, The American Journal of International Law, Vol. 95, No. 3 (Jul., 2001), P 489 quoting the Yearbook of International Organisations 3 Sandel M, quoted in McGrew, A, “From Global Governance to good governance”, in Ougaard, M and Higgott, R, “Towards a Global Polity”, 4
Warwick Studies in Globalisation, Routledge, 2002, P 209. Emphasis added. Schumpeter, J, quoted in Cammack P, Capitalism and Democracy in the Third World, Leicester University Press, 1997, P 17

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“The central functions of the nation-state will become those of providing legitimacy for and ensuring accountability of supranational and subnational governance mechanisms.5 This common analysis appears to be based on an assumption that the democracy and legitimacy of national governments are so robust that they can somehow radiate true democracy and legitimacy, infusing democracy into international organisations, and this despite the fact that their own power is diminished to the extent that they “are merely one level in a complex system of overlapping and often competing agencies of governance”.6 The distance between voters and what is decided at an international level is such that it is difficult to imagine that international regulation has a perceptible impact on voter preferences. Democracy in a village can take place in a relatively pure form. Villagers' lives are touched by what they are voting about and can see the effects of their leaders' choices. At a national level, this intimate understanding is less evident, although political parties are elected on particular platforms, meaning that voters can still understand the general policy direction of the government. Therefore, although citizen oversight and understanding of the everyday decisions of the government are reduced, a significant proportion of the electorate broadly supported a political direction and philosophy that the government can be judged against. At an international level, citizens generally have little or no understanding of how decisions are made, what their governments have done and the extent to which they would approve. Indeed, in the European Union, which has reasonable grounds for claiming to be one of the most democratic international institutions, Member States actively use “Eurowashing” to have “Brussels” pass legislation which would be unpalatable if proposed at a national level. All of which indicates that a more ambitious democracy involving “deliberation about ends among free, equal and rational agents”7 is not easily achieved on a global or, indeed, international regional level. One problem with regard to electoral democracy in international regulation is that, if we “adopt a more minimalist understanding of democracy, according to which democracy is a system of competitive elections in which citizens chose [sic] who will rule, rather than in any more substantial sense a system of self rule”8, the prospect of any acceptable level of democracy at an international level appears very weak indeed. If voters are not making electoral decisions based on the policies of parties regarding international regulation, to what extent could it be argued that involving “democratically elected” governments in international regulation is democratic? The tenuous relationship between who is voted for in national legislative elections and voters knowing, caring or feeling empowered to have a real input regarding what is done in their name at an international level is illustrated by the following two examples:

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In the 2004 European Parliament elections, turnout was below 45% in fifteen of the 25 Member States, with a downward trend in nine of the fifteen countries that had previously had European Parliament elections.9 The World Trade Organisation was created in 1995, with a major impact on the powers, responsibilities and sovereignty of nation states signing up to it. However, in the United Kingdom, in the 1992, 1997, 2001 and 2005 elections, the Labour Party General Election manifestos made no direct or indirect mention of the WTO, the Conservative Party manifestos

5 6 7 8 9

Hirst, Paul and Thompson, Thomas, “Globalisation in Question”, Polity, 2002, P 257 Ibid Pp 268-269 Elster, J, “Introduction”, “Deliberative Democracy”, Cambridge University Press, Cambridge, 1998, pp 1-18 Cohen, J, “Reflections on Habermas and Democracy”, Ratio Juris, Vol. 12, No. 4, December 1999, P.388 Euractiv, “European Parliament 2004 Elections: Results” 30 June 2004. Online publication http://www.euractiv.com/Article?tcmuri=tcm:29117482-16&type=LinksDossier

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made no direct mention of the WTO but did voice single-sentence support (without qualification or explanation) in all manifestos for “liberalisation” of international trade. The inverse relationship between the level of interest of voters in policy-making and the distance from the local level that policy is made becomes a significantly greater problem for democracy when we consider that the largest companies tend to be transnational and consequently have a major interest in the direction of international economic regulation. For example, the UNDP points out that “agroindustries have exerted considerable influence on national positions in international trade negotiations”.10 If we then consider that these companies are generally the richest and most able to fund political parties and acquire media outlets that then push for one side or another to get elected, there appears to be a direct correlation between the size and geographic spread of companies and their interest in shaping international regulation. In other words, as the democratic interest of voters wanes the more distant the regulation becomes, the stronger the interest of international business in influencing decision-making. A further problem for democratisation is that the complexity of international regulation makes voter involvement difficult. Even putting to one side the policy complexity of the regulation of any global trade issue, the institutional framework, involving varying international bodies with varying powers, enforcement bodies, procedures, etc, is not alone beyond most voters’ grasp – it can even be beyond the grasp of the institutions themselves. The director of the WTO’s Information and Media Relations Division, Keith Rockwell admitted “there is not a single person in this [WTO headquarters] building who understands everything we do. It is simply too much and too complex”.11 The admission by Mr Rockwell above is a very significant one. Lack of democratic oversight, strong vested interests and institutional complexity are key ingredients of corruption. As Stephen Schwenke described in a paper for USAid, “complexity of laws, government regulations, and procedures provide fertile ground for arbitrary discretion by self-interested officials. Institutional complexity also exacerbates corruption vulnerabilities, where overlapping or unclear management responsibilities allow for poor levels of oversight and inadequate accountability”.12 All of this leads to a troubling situation for democracy. However well-intentioned a democratic government may be when involved in negotiations on transnational regulation, it needs to balance the interests of donors from large corporations who helped them get elected, for which international trade is of high importance, with those of voters, for whom it is of little electoral relevance. Bearing in mind these strong anti-democratic forces, it can be argued that increased involvement of democratically elected governments in international regulation risks doing little more than providing a veneer of “democratic legitimacy” while doing little or nothing to render the system more democratically legitimate. Democratic governments in international organisations The rather negative appraisal above is given credibility by the practices of the most supposedly “democratic” of countries. For example, despite the fact that the importance of the World Bank for the daily life of citizens in developing countries is far greater than to that of citizens in developed economies, the European Union and United States have prevented any other bloc or country having
10 11 12
UNDP, “Human Development Report 2002”, New York, P68. No byline, “Traders of the Lost Ark” in “Globalization The New World”, The Spiegel International Edition, No 7, 2005 Schwenke, S, “Cross-Sector Analysis on Corruption”, Management Systems International, November 2002, P 5

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any say whatsoever in the appointment of the President of that organisation. Furthermore, seven countries (USA, Japan, France, UK, Saudi Arabia, Germany and the Russian Federation) control 48% of its voting power. Similarly, in the International Monetary Fund, those same countries make up 46% of voting power. Ongoing support by leading democracies for non-democratic regimes in countries such as Pakistan serves to further underline this weak support for democracy in the international arena. It seems difficult to come to any conclusion other than that, freed from the practical worries of dealing with issues that their citizens may be concerned about, the governments of the world's leading “democracies” appear not to be hugely concerned about democracy. Taking a charitable view, it may be that governments, when dealing with the practical problems of running a country, find it more difficult to prioritise the niceties of the principles that they espoused when seeking election and, in the absence of a restraining force, do not have the self-control to stop themselves from fully using the freedom offered by power with limited responsibility. This phenomenon is illustrated very clearly by the way in which the Labour Party in the United Kingdom enthusiastically supported both the incorporation of the European Convention on Human Rights into the national law and its creation of a Freedom of Information Act. In both cases, it appears selfevident that the Labour government supported the principles behind both pieces of legislation. However, within only a few years, the same government was detaining prisoners for unlimited periods without trial (the Government’s actions being described by a Law Lord not only as illegal under the Human Rights Act but as “anathema in any country that respects the rule of law”13. Similarly, even before the Freedom of Information Act was implemented, some government departments virtually doubled the amount of records that they were permanently destroying to limit the freedom of citizens to obtain the information.14 There is an important lesson to be learnt from both of these examples – despite its desire to untie its hands after implementing both pieces of legislation, by establishing legal restrictions on its own actions, the Labour government created a framework within which it was forced to respect its own principles, the principles that many of its electors voted for. In the case of the Human Rights Act, the independence of the judiciary helped to save the Labour government from defeating its own principles. NGOs and democracy The view is frequently expressed15 that non-governmental organisations (NGOs) can hold governments and international organisations to account, acting as some sort of spontaneous collective societal conscience. However, this expectation depends on some rather fanciful assumptions. That view appears to be supported by Habermas, who argued that radical democracy is possible “because of the sporadic bursts of energy by social movements that, in their role as dispersed sensors, detect popular concerns that are off the political agenda, suggest novel solutions to them, and perhaps influence legislation (and ultimately administration)”.16 This argument, however, proves nothing at all about the democratic nature of such movements – it correctly assumes that social movements may adopt “good” causes and may force change. However, there is no clear logical link between change being forced, the cause being worthwhile, and the democratic nature of the change
13
Amnesty International, “Trusting the Executive, Prolonging the Injustice”, 26 January 2005, published online at http://web.amnesty.org/library/Index/ENGAMR510302005 14 Pilling, K, “Whitehall in rush to shred secret papers”, The Scotsman, 23 November, 2004 15 See, for example, Eschle, C, Engendering Global Democracy, Paper for the World Congress of the International Political Studies Association, Quebec, 1-5 August, 2000. No page numbers in online version (www.sussex.ac.uk/Units/IRPol/Seminars/NWO/eschle.html) 16 Cohen, Joshua, Reflections on Habermas on Democracy, Ratio Juris, Vol. 12, No. 4, December 1999, Pp410

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which took place. For example, a campaign run by Greenpeace regarding the proposed sinking of the Brent Spar oil rig based on scientifically flawed information resulted in a high awareness of the issue (74%17) among the British public and a majority opposing Shell’s proposal. As a result of the public outcry, Shell spent approximately 25 million Euro18 dismantling the rig on-shore, avoiding what are now recognised as minimal environmental impacts – money that could obviously have been spent on worthwhile environmental projects. The information provided to citizens was therefore misleading, inadequately researched and had counter-productive results. In brief, NGOs can, of course, serve a useful purpose in reflecting social concerns and campaigning for their consideration in international regulation, but it is unrealistic to rely completely on them to do. Furthermore, “Habermas thinks that it suffices to make the case for autonomous influence flowing from the periphery, under conditions of crisis”.19 However, citizens are more likely to act out of character when faced with a crisis and more willing to fall for populist rhetoric, resulting in solutions being supported that would be (rightly) considered unacceptable when viewed more rationally. For example, one poll suggested that 76% of British voters would support 90-day detention of terrorist suspects without trial20. This suggests that citizens need to enforce limits on their own actions to prevent democratic but irrational decisions being made in times of crisis. In other words, a time of crisis is a time when the tyranny of the majority needs to be avoided rather than facilitated. On a global level, these “sporadic bursts” have generally come from non-governmental organisations. While many of the best-known NGOs often reflect the “conscience” of society, government funding of such organisations creates a new and more insidious environment. The declaration by the head of USAid, that he would “personally tear up” the contracts of NGOs that did not make it clear that they were an “arm of the US government” is a good indication of this new environment. 21 The idea that NGOs can act as agents for democratisation acting as both a “terrain” and a “source” of democratisation22 on a global level, with power and without responsibility, and when they can only guess at what policies may or may not have a level of support that would make them “democratic”, appears to lack even a semblance of a logical foundation. The exponential growth in the number of NGOs and the heterogeneous way in which they are organised and funded makes it difficult to speak of them in a coherent way, let alone rely on them en masse to be the voice of the people in international regulation. Deliberative Democracy If we accept that knowing what one’s choices are, and having opportunities to refine and discuss these choices is more democratic than choosing between two either similar or unknown options, then “deliberative democracy” offers interesting insights. “Deliberative democracy” as described by Joshua Cohen23 focuses on moving democracy from simply entrusting power to elected individuals through
17 18
Greenpeace, “New Opinion Poll Backs Greenpeace Stance on Oil Platform Dumping”, 5 February 1996 Maxeiner, D, “Lessons Learnt from Brent Spar”, paper presented at the VIII Zavicon Conference, Dresden 2002. Available online at http://www.maxeiner-miersch.de/lessons_from_brent_spar_e.htm 19 Ibid P 410 20 Sky News / YouGov Poll, 4th/5th November 2005 21 Klein, N, Now Bush wants to buy the complicity of aid workers”, The Guardian, 23 June 2003 22 Eschle, C, Engendering Global Democracy, Paper for the World Congress of the International Political Studies Association, Quebec, 1-5 August, 2000. No page numbers in online version (www.sussex.ac.uk/Units/IRPol/Seminars/NWO/eschle.html) 23 See, for example, Joshua Cohen, “Deliberation and Democratic Legitimacy,” in James Bohman and William Rehg, eds. "Deliberative Democracy: Essays on Reason and Politics", Cambridge, MIT Press, 1997

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periodic elections, to a system where policy is made through an evolutionary process of public discussion and deliberation. This, it is argued, would produce a more reasonable and consensual approach which all sides can agree on. According to the deliberative approach to democracy, decisions should be made by “free public reasoning among equals who are governed by the decisions”.24 It “ties the authorization to exercise public power – and the exercise itself – to public reasoning, by establishing a framework ensuring the responsiveness and accountability of political power”.25 Cohen and Sabel look at development of local policy regarding schooling and policing as examples of where such democracy could occur.26 The fact that they choose local decision-making gives an indication of the difficulties of true citizen deliberation at higher levels of decision-making. The core of this approach is that people know best about what is closest to them, and hence in a better able to make decisions about them. Taking deliberation to an international level, the question is how to relate international issues to personal preferences. Durkheim tried to bring decision-making closer to individuals through the creation of “corporations” or “occupational groups” of interested organisations to make decisions on issues. This has the advantage of being able to use the knowledge and experience of the most relevant citizens and bodies to produce informed views at a higher level of government. In other words, he replaces the reduction in democracy of decision-making created by the issues being further from the citizen with an increase in democracy by bringing the most relevant (and consequently knowledgeable) citizens more intimately into the decision-making process – “nurturing among workers a more invigorated feeling of their common solidarity, and preventing the law of the strongest being applied too brutally in industrial and commercial relationships”,27 reducing the “moral distance” between the regulator and the regulated.28 Where issues have significance for voters and they have an appropriate outlet for their opinions, Habermas' twin-track approach of effective and informal public deliberation feeding into formal politics has some obvious credibility. However, with the sheer range and complexity of international regulation and regulatory bodies, the limited scope of each country to feed effectively into decisionmaking and, as explained above, the apparently limited motivation of national governments to enhance democracy at an international level, the idea that this approach could work in a global environment appears unlikely. In the absence of a structure with which to ensure that the wishes of citizens are taken into account in international discussions, there appears to be little, apart from NGOs, to motivate governments in this direction. Democracy and International Economic Regulation – Three Case Studies The purpose of these case studies is to look at elements of principles described above (deliberative democracy, regulation through stakeholder consultation and legal and judicial restrictions on the powers of regulatory bodies) in order to assess their potential in current practice. EU Communications Committee – Development of European Commission Recommendations and Legislation
24 Cohen, Joshua, “Democracy and Liberty”, Op cit, P 186 25 Cohen, J, “Dahl on Democracy and Equal Consideration”, a “work in progress” available from the website of the MIT 26 27 28
http://web.mit.edu/polisci/research/cohen/dahl_on_democracy.pdf Cohan, J and Sabel, C, “Directly deliberative Polyarchy” European Law Journal, Vol. 3, No. 4, December 1999, pp. 313-342 Durkheim, E, quoted in Cotterrell, R, “Emile Durkheim”, Stanford University Press, Stanford, 1999, P. 177. Ibid

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The EU Directive on a Common Regulatory Framework for Electronic Communications Networks and Services (Directive 2002/21/EC) established a “Communications Committee” (CoCom) to gather together independent national telecommunications regulators to “foster the exchange of information between the Member States and between the Member States and the Commission on the situation and the development of regulatory activities regarding electronic communications networks and services” (article 23). CoCom is used as a forum to discuss current regulatory thinking, share experiences and best practice and help develop European Commission regulation and recommendations on regulatory issues. All key industry and consumer representatives are invited to be observers at its regular meetings. As a body which is convened by the unelected European Commission and consisting of unelected national regulatory authorities, this body appears to be the very antithesis of a democratic undertaking. However, on closer inspection, it reflects many of the characteristics of democracy as described by Cohen, Durkheim and others. For example: 1. The ultimate goal of the Committee is to ensure healthy competition within the confines of a regulatory framework adopted by both directly elected Members of the European Parliament and national Ministers and transposed into national law by national governments. This is in line with the normal conception of democracy. 2. The vast majority of voters in all EU Member States vote for parties supporting capitalism and functioning markets so, the better CoCom does its job, the more it reflects the wishes of the population. 3. Both the European Commission and individual national regulators engage in extensive consultations with all stakeholders, and the stakeholders witness the meetings. This reflects many of the priorities both of Cohen’s description of deliberative democracy and of a Durkheimian “corporation”. 4. While reflecting the will of voters to support competition in the market, it also limits the intervention of governments, which are more susceptible to lobbying by national incumbent telephone companies, reflecting Tocqueville’s concern that power needs to be constituted to reflect the majority opinion without being a slave to it. Through restricting CoCom’s terms of reference to parameters that are tied within the bounds of consensus in Europe, and through diligent support for consultation, transparency and deliberation, regulation is created which is both distant from individual citizens and reflecting key characteristics of democratic regulation. Democracy is therefore ensured by those parameters and not by government involvement that could only server to lessen the democratic nature of the organisation. European Court of Human Rights – Margin of Appreciation Doctrine The European Convention on Human Rights establishes basic principles which represent the cornerstones of democratic societies – covering key priorities such as the right to freedom of thought and expression, liberty and security – helping minimize the risk of a “tyranny of the majority”. The Convention provides a brake on possible excesses of the democracies that are members of the Council of Europe both actively (through judgements) and passively (through governments realising what their obligations are and respecting them when implementing legislation). However, while the Convention establishes overall principles, the European Court of Human Rights has recognised that, in certain circumstances, particularly in times of emergency, a national

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government is better able to judge what policies are necessary. Consequently, it developed a doctrine of judicial restraint which is referred to as the “Margin of Appreciation” doctrine. In various circumstances, the Court has decided that it not its “role to substitute its view as to what measures were most appropriate or expedient at the relevant time in dealing with an emergency situation”.29 The doctrine does not give governments carte blanche – as illustrated by cases such as Aksoy v Turkey30 – but simply an acceptance that the international judicial body recognised the right of sovereign governments to make the most appropriate decision in extraordinary circumstances. An interesting aspect of the Margin of Appreciation Doctrine is the ability of the Court to adapt to changing social situations. For example, in cases involving corporal punishment and treatment of transsexuals31, the Court made reference to the changing social situation and different approaches by governments to recognise that the parameters within which previous decisions on similar cases had been made had changed. As a result, it changed handling later cases to more accurately the views of society – increasing the amount of protection given to individuals. Interestingly, it actively used input from civil liberties groups to come its conclusion in the case regarding treatment of a transsexual. This resonates very strongly with Habermas’ view described above that “social movements that, in their role as dispersed sensors” could serve to enhance democracy. The Margin of Appreciation, therefore, is an example of judicial restraint, where the ECHR continues to fulfil the role of an independent judicial body but also sets parameters for itself to ensure that democratic concerns and the changing priorities of society are respected. In short, while it is true for national judges that “[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by”32, the ECHR has had the wisdom to see international judges sometimes are too distant from national “tides and currents”, a recognition which enhances their respect for national democratic choices. World Trade Organisation – EU Hormones Case On January 1, 1989, the European Union implemented a ban on the import of red meat from animals treated with six hormone-based growth promoters. It did so on the basis that there were economic, environmental and consumer concerns that had to be considered when dealing with treating animals with hormones. Ironically, five years after the US launched its action at the WTO against the EU, and only eighteen months after announcing its intention to notify the WTO Dispute Settlement Body of its intention to suspend trade concessions to the EU, the US Department of Agriculture itself highlighted the problems of health scares related to beef in an article entitled “EU Consumers Eat Less Beef Due to Food Safety Concerns”33. Indeed, in response to consumer concerns, the US Congress imposed a three-month moratorium on the sale of animals treated with one particular hormone for three months in 1994.34 In 1999, the arbitration body of the WTO decided that the EU ban on hormone-treated beef
29
This exact wording comes from the judgement on Brannagan and McBride v UK (A-258-B, 26 May 1993). However similar wording appears in several other judgements including Ireland v UK (A-25, 18 January, 1978) and Klass and others v Germany (A-28 6 September 1978) 30 Aksoy v Turkey, Judgement of 18 December 1996 31 For example Christine Goodwin v United Kingdom (Reports 1996-II, 27 March, 1995) regarding the treatment of transsexuals and Tyrer v UK ( Series A 26 1978 ) regarding corporal punishment 32 Former US Supreme Court Judge Cardozo, quoted in Hirshon, R.E., “A few thoughts on the importance of an independent judiciary”, The Journal of Appellate Practice and Process, Volume 4, Issue 2, Autumn 2002. Online edition, no page numbers http://www.ualr.edu/~japp/hirshon.html 33 US Department of Agriculture, Livestock and Poultry: World Markets and Trade”, Circular Series DL&P, 1-01, 2002. 34 Food Marketing Institute “Backgrounder: Bovine Growth Hormone or Bovine Somatotropin”, No date or page numbers. Available online at

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caused significant loss to US beef exporters and that the US was entitled to suspend tariff concessions covering EU trade in the amount of $116.8 million per year. In this case (WT/DS48/AB/R), the WTO’s dispute resolution bodies substituted their view as to the most appropriate measures that should be taken for those both of democratically elected governments (through the EU) and of the specific wishes of voters (the action was taken partly as a result of considerable consumer concern – the problems for the industry of consumer perception being clearly recognised by both the US Congress and the US Department of Agriculture, as shown above). Furthermore, the WTO did so in the absence of any decision or public debate among citizens as regards whether they were willing to have their governments’ decisions, or those of the EU, to be overruled by the WTO. This is illustrated by a Mori poll in the United Kingdom in 2000, which shows that 89% of the British public believe that governments should have the right to ban imports of goods which they believe may be damaging to the health of the population, while 90% of the public believe that, when a conflict of interest arises between the interests of environmental protection and multinational companies, environmental protection should come first.35. While the questions asked were clearly weighted to give a particular result, this poll does indicate that public opinion is at variance with the power demonstrated by the WTO in this case. This case was handled very differently from cases in the European Court of Human Rights. That there were significant consumer concerns is proven not alone by the actions of the European Union, but by the actions of the US Congress and by the article from the US Department of Agriculture. That the situation for trade in beef and agriculture in general was grave is clear from the practical and emotional impact of mad cow disease (caused by the practice, previously considered scientifically safe, of feeding of bone meal to animals). It appears clear that a degree of judicial restraint similar to that used by the European Court of Justice would allow the WTO’s various bodies to deal with significant cases of governments unjustifiably creating barriers to trade while at the same time avoiding the patently anti-democratic process of substituting its views with those of democratically elected governments acting in difficult circumstances. This is particularly true in this case where a new perceived heath threat was forced upon EU citizens already consuming less beef due to health concerns – eliminating a “barrier” to international trade while unquestionably placing a brake on trade in the product in question. Looking at the ECHR and CoCom, the problem with the WTO appears to be a lack of parameters to democratic. If there were

• • •

discussion and agreement on a national level regarding how to balance national decisionmaking on health and environmental measures, for example, with the needs of international trade , discussion and agreement regarding the degree to which national decisions or regional concerns could be overruled by the WTO as in the hormones case and, an appropriate level of judicial restraint akin to the Margin of Appreciation doctrine,

the whole democratic nature of the WTO would change. It is worth noting that two of these three points are failures of national governments and not the WTO itself.

http://www.fmi.org/media/bg/bst.htm

35 Mori, “Huge Public Opposition to Basic Principles of World Trade Orgainisation”, 21 April 2000

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Conclusion It appears necessary that the discussion regarding democracy in international regulation move away from the weak argument that involvement of democratic governments makes international regulation more democratic. In its “Ten Common Misunderstandings of the WTO”, 36 we are told that the organisation is democratic because of consensus decision-making and because trade rules were negotiated by member governments and ratified in national parliaments. This sidesteps the fact that the WTO dispute resolution bodies show far less respect for national democratic choices than, for example, the ECHR and that few, if any, governments informed their citizens that they were liable to be overruled in cases like the hormone beef case. Similarly, we need to move away from the concept that the nebulous concept of “NGOs” are somehow going to vacuum up citizens concerns, opinions and priorities and ensure that a democratic crosssection will then be delivered to the negotiating table at international regulatory institutions. While NGOs have done an impressive job in a whole range of fields, their proliferation, heterogeneity and diverse funding means that a far more coherent vision of their role needs to be developed before this concept can be developed in practice. On the other hand, it is clear that there is a wide range of practice in international bodies which does infuse increased democracy into decision-making. By limiting the actions of an international body to issues which have democratic support and by ensuring that reasonably justified actions by national governments are treated with an appropriate level of respect– as shown by the CoCom and ECHR examples above, the key principles of democracy can result in a far greater degree of democratisation that would be the case through reliance solely on national electoral politics.

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Available online at http://www.wto.int/english/thewto_e/whatis_e/10mis_e/10m00_e.htm

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