Previous versions of this paper were presented at the Graduate Institute of Geneva, Duke University, University of Pittsburgh, University of Virginia, McGill University, Harvard University, the Mershon Center for International Security Studies, the University of Chicago PIPES seminar, the University of Toronto, and the 2006 International Political Economy Society meeting,. I am grateful to Karen Alter, Stephen Bernstein, Charli Carpenter, Antonia Handler Chayes, Dale Copeland, Christina Davis, Emilie Hafner-Burton, Jack Goldsmith, Vaidyanatha Gundlupet, Yoram Haftel, John Ikenberry, Judith Kelley, Jeff Legro, Sophie Meunier, Layna Mosley, Sharyn O’Halloran, Jennifer Mitzen, Kevin Narizny, Louis Pauly, Mark Pollack, Steve Saideman, Anne Sartori, Dahlia Shaham, Duncan Snidal, Alex Thompson, and Joel Trachtman for their feedback.
In recent years there has been a proliferation of international rules, laws and institutional forms in world politics. Some policymakers, a fair number of international relations scholars, and many international lawyers posit that these trends will lead to more rule-based outcomes in world politics. This paper suggests a contrary position: institutional thickness paradoxically weakens global governance structures. Institutional proliferation erodes the causal pathways through which regimes ostensibly strengthen international cooperation. After a certain point, therefore, the proliferation of regimes shifts global governance from rule-based outcomes to power-based outcomes. To demonstrate these effects, the paper examines two cases: the aftermath of the 2001 Doha Declaration on intellectual property rights and public health, and recent efforts to create an WMD interdiction regime that permits the boarding of ships on the high seas. These cases show that there is little “viscosity” within global governance structures.
In recent years there has been a proliferation of international rules, laws and institutional forms in world politics. The 2008 financial crisis and subsequent Great Recession have spurred additional calls for new regimes – and new responsibilities for older regimes.1 This spike in supply and demand has been matched by renewed attention to the role that forum-shopping, nested and overlapping institutions, and regime complexes play in shaping the patterns of global governance.2 Some policymakers, a fair number of international relations scholars, and many international lawyers posit that these trends will lead to more rule-based outcomes in world politics.
This increased attention has not necessarily improved our theoretical understanding of the phenomenon, however. The increasing thickness of the global institutional environment clearly suggests a change in the fabric of world politics.3 Just as clearly, however, multiple actors in international relations have demonstrated a willingness to engage in forum-shopping in order to advance their interests on the global stage.4 This leads to an important question. Does the proliferation of rules, laws, norms and organizational forms lead to an increase in rule-based outcomes, or merely an increase in forum-shopping?
This paper argues that the growth of global governance can have a paradoxical effect on global governance. Institutional thickening eventually erodes the causal mechanisms that – according to the institutionalist paradigm – foster cooperation in an anarchic world. As global governance structures morph from international regimes to regime complexes, legal and organizational proliferation can shift world politics from rule-based outcomes to power-based outcomes. Proliferation enhances the ability of powerful states to engage in forum-shopping relative to other actors. Weaker actors, as well as the great powers, can and will avail themselves of forum-shopping. There are a variety of reasons, however, why international regime complexity stacks the deck in favor of the strong over the weak to a greater degree than the status quo ante. In the process, institutional proliferation erodes the causal mechanisms through which regimes ostensibly strengthen international cooperation.
If powerful actors are constrained from forum-shopping, then the erosion of global governance structures would be ameliorated. We can label this property the degree of viscosity within global governance structures. In fluid mechanics, viscosity is the resistance a material has to change in its form. High levels of viscosity imply a material that changes slowly. In global governance, high levels of viscosity would imply substantial amounts of internal friction within a single regime complex, raising the costs of forum-shifting. It is worth contemplating whether some regime complexes possess higher rates of viscosity than others – and also whether some regime complexes grow more or less viscous over time.
Recent literature on international organizations, including the Rational Design school, propose a number of factors that could explain the relative viscosity of global governance structures.5 To assess these possible constraints, this paper looks at two regime complexes that would be considered to possess high degrees of viscosity – the public health amendment to the TRIPS accord, and the Law of the Sea constraint against the interdiction of ships on the open seas. In both cases, the pre-existing regime would be considered “strong” in terms of legalization, norm coherence, and rule adherence. Nevertheless, the cases suggest that these factors do not pose either a consistent or persistent constraint to forum-shopping. Even over short periods of time, there is little viscosity within global governance structures.
The rest of this paper is divided into seven sections. The next section revisits the realist-institutionalist debate to understand why institutions initially contribute to rule-based outcomes. The third section discusses why the proliferation and legalization of global governance structures can undercut rather than reinforce institutionalist theories of world politics. The following section draws on recent literature to evaluate the collection of factors that could increase the viscosity of global governance. The fifth section examines the great power response to the Doha Declaration on TRIPS and public health to determine how great powers worked around a hard law constraint on pharmaceutical patents. The sixth section examines recent efforts to carve out a WMD exception to international legal constraints against interdiction on the high seas. The final section summarizes and concludes.