The Comity Framework: Interests and Values
In my new book, the focus on comity serves two purposes. It provides a general framework depicting the world of international rulemaking as an often-incoherent space composed of many overlapping jurisdictions. It also serves a particular purpose in highlighting the contribution to rulemaking that can be made by groupings of like-minded democratic countries operating at the intersection of national rulemaking and the fully international.
Comity places an emphasis on the normative aspect of rulemaking. Norms affect the content of international rule making, relationships between the rule-makers and the way they go about rulemaking. This normative focus is not the same as saying that norms trump international interests. For like-minded democratic countries they are aligned.
The book starts by describing a world where fully international rulemaking is largely blocked. A widespread assumption that, with the ending of the old cold war we would see the emergence of a new world order built around a fully international convergence of norms of behaviour, is not proving correct. Differences of view between democratic countries and authoritarian countries about what principles to apply in rulemaking block agreement in many areas. The world is beginning to decouple.
Against the background of this much more realistic assessment of the world today, the interests of like-minded democratic countries are best served by looking for a way out of the impasse. At the same time, their interests are also best served by looking for approaches to rulemaking that, as far as possible avoid open conflict and a reversion to the kind of ‘mutually assured destruction’ postures we saw in the old cold war. Comity provides a conceptual basis for exploring this rulemaking terrain. In this space the interests of democratic countries are aligned with protecting and promoting their own values relative to those of other non-democratic countries.
Like-mindedness, Institutional form and procedures
The book defines like-minded groups in part in terms of the values and interests they share as democracies and in part in terms of the institutional form of their relationships. They combine substantial autonomy with a sufficient commonality of aims to be able to reach decisions by consensus. They do not look for their secretariats to have significant third-party powers for enforcing compliance.
This institutional form distinguishes such groups, for example OECD, from a group such as the EU. The EU is composed of like-minded largely democratic countries, but they are bound together by an overriding political aim of ‘ever closer union’. In order to achieve this objective, the main decision rule involves majority voting. In addition, EU bodies such as the Commission have very significant third-party powers to ensure compliance, including giving direct effect to measures agreed. Its aim to achieve political union between its members distinguishes it from bodies such as OECD or the G7.
One very traditional reservation about rulemaking involving different actors with substantial autonomy operating in the same space is that the powerful countries, including those with large markets, will end-up dominating. For example, because of the dominance of its financial sector the US has always been in the lead on measures to try to combat money laundering and tax evasion. However, the book describes a more complex scene where big actors can also see an advantage to themselves in acting in consensus with others, where unilateral actions can backfire, and where professional practitioners want to share approaches across borders.
Rights and the knowledge economy
The differences between democratic and authoritarian countries that lie at the heart of the blockage in international rulemaking in today’s world are often expressed in terms of fundamental rights. Democracies try to respect rights; authoritarian countries pay lip service at best.
Rights serve two different purposes. They are often seen as justifying the exercise of power over others – a legitimising purpose. The book discusses this role, and its limits, in connection with the legitimation of international rulemaking. Rights also serve a second important purpose in guiding normative choices in public policy making. In serving this second purpose they help direct attention to what is truly important in a situation, they help make comparisons between situations and applicable values and they perform a ‘matching’ function that helps us to see what is similar and what is different in a setting.
In order to achieve this second purpose, talk about rights requires transparency around relevant information and probity of data. In the absence of these characteristics, reasoned discussion of important values and their application cannot take place. We can make assertions about rights and whether or not they are observed, and those assertions may be well founded. But we cannot buttress our ethical assertions with relevant facts. Reasoned discussion over the abuse of rights may very well not be possible anyway between democracies and authoritarian countries. However, the key point is that the flow of data, information and content that drives the knowledge economy affects, not just transactions in goods and services, but also affects discourse more generally, including discourse around our most important values.
Dividing the World
The basic distinction in the book between democratic countries and authoritarian countries highlights distinctions at the opposite ends of the way domestic authority can be structured. This distinction appears to leave out of the analysis all the countries in the world that fall between these end points. Moreover, the distinction, if applied in practice, also seems likely to heighten divisions in the world. However, the discussion in the book underscores the role of what it refers to as ‘permissiveness norms’.
Permissiveness norms make it possible for like-minded groups of democratic countries to address this middle ground by offering positive incentives to other countries to align their norms, to avoid conflict over general principles by dividing up the area into narrow technical slices, or even to remain silent over differences. There are advantages to avoiding the exacerbation of differences in this way. However, there are also costs. Democratic countries need to defend and project their values. They also need to be forthright in recognising and condemning anti-democratic values. The book concludes on how important it is that democratic countries refresh old alliances and form new ones.
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