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Insights

1. Issues: In the search for solutions to issues that transcend national boundaries (e.g., climate, trade, marine conservation, illicit trade, human rights), decision-makers encounter an ever-growing variety of initiatives. These often involve diverse actors and constituencies working on such issues in place of, or in conjunction with, state governments. Our Council refers to these types of initiative as “coordinated governance”, as distinct from “coordinated government”, which occurs purely between states and state regulatory bodies.

More precisely, we define “coordinated governance” as “any mechanism under which public and private actors across several states align their efforts to implement an internationally acceptable approach to a common problem”. Critically, it is important that this is done through a process that seeks to operate in accordance with established guiding principles and fundamental norms1, to ensure that the resulting governance is broadly regarded as legitimate.

These initiatives face basic issues of long-term stability and legitimacy, in part because they operate outside the traditional rule of law. In this context, “the rule of law” is a term that, though widely used, is often only superficially understood, and various definitions exist. As a working definition, our Council has adopted the four defining rule of law principles developed by The World Justice Project2:

  1. The government and its officials and agents are accountable under the law.
  2. The laws are clear, publicized, stable and fair, and protect fundamental rights, including the security of persons and property.
  3. The process by which the laws are enacted, administered and enforced is accessible, fair and efficient.
  4. Access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives and judicial officers who are of sufficient number, have adequate resources and reflect the makeup of the communities they serve.

These principles defining the rule of law (accountability, transparency, due process and respect for universal norms) are culturally universal, having been developed following discussions with 2,000 legal professionals worldwide. Consequently, incorporating them into the design of coordinated governance initiatives, can contribute significantly to addressing issues of stability and legitimacy.

Individual rule of law principles (transparency, for example) have actually played a significant role in cases where international problem solving and reform have been discussed. Paradoxically, however, the perceived inadequacies of multilateralism and international rule-making in areas of global concern (e.g., climate change) have fostered efforts to tackle such areas through less formal and more ad hoc means – such as coordinated governance initiatives – rather than through traditional rule of law mechanisms such as multilateral treaties, tribunals and official sanctions.

2. Response: in November 2011, our Council set the goal of developing a framework for analyzing forms of coordinated governance, their interplay with the rule of law, and the possible guidance such a framework could provide in addressing the basic issues around these initiatives. In the process, we plan to identify areas and patterns of success or failure in coordinated governance and the function of the rule of law in contributing to more positive outcomes. A body of learning along these lines could help decision-makers and reformers develop creative solutions to global problems through coordinated governance informed by a rule of law awareness and ethic.

In anticipation of discussions at the Forum’s January meeting in Davos, we developed a paper: – “Coordinated Governance as a New Model: The Concept, Its Value, Its Relationship to Rule of Law and Global Problem Solving, and the GAC Work Plan” (the “Concept Paper”). This paper, in addition to expanding on the definition of “coordinated governance” noted above, distinguishes the coordinated governance approach from two related areas: “promotion of the rule of law”, and “global problem solving”.

a. Promotion of the Rule of Law. The coordinated governance approach acknowledges that the capacity of a state to apply the rule of law is likely to be a key element where a state is called upon to implement an internationally agreed solution to a common problem, in a domestic setting, in collaboration with other actors such as multinational corporations and NGOs. Efforts to promote the rule of law and improve the capability of states in such cases have a long history and are essential.

Yet, a forward-looking agenda is implicit in the concept of promoting the rule of law so as to ultimately achieve a threshold in rule of law capacity and then build on it. Such an agenda does not speak to alternative arrangements for order in cases where a robust rule of law is lacking. Supplementing the promotion approach, the coordinated governance approach is concerned with governance even in cases where a robust rule of law is absent. The coordinated governance approach assesses patterns and degrees of success and failure in governance scenarios involving state entities where elements of the rule of law are weak or missing. The dynamics can be complex. An ad hoc governance solution to an issue may prevail for some time or fail quickly. One subset of state or non-state actors may advance faster than others in experimenting with an innovative solution that eventually commands broader acceptance.

b. Global Problem Solving. We use this term to describe any attempt to address a pressing current problem through a public-private partnership. These efforts necessarily vary depending upon the problem being addressed. They also vary in the extent to which they seek the views and engagement of interested parties.

The problem solving approach is most often found when states are weak, and therefore involves substitutes for, or supplements to, official state structures. The coordinated governance approach is similar in its focus on domestic implementation in certain states where an internationally acceptable solution to a particular problem is sought, even where some of the states involved may be politically weak or lack a robust rule of law.

However, the coordinated governance approach differs from global problem solving  both in its emphasis on the effectiveness of the problem solving effort, and also in its long-term stability as well as its legitimacy as a form of de facto governance. This distinction addresses one of the criticisms of some global problem solving initiatives, that they lack legitimacy both in terms of how the contours of the internationally agreed solution are arrived at, and in how they are implemented. Today, we ask more and more of governments in normative terms of what it means to govern well. Yet, ironically, we increasingly turn to ad hoc public and private partnerships for solutions, and often do so without guiding principles regarding, for example, accountability, transparency, representation, or stakeholder involvement. Models of governance should be assessed in terms of limited resource availability, the implications of one solution for other areas of common concern, and the general integration of objectives underlying several avenues of action.

Accordingly, one goal of the coordinated governance approach is to examine and articulate guiding governance principles when public–private partnerships are used to solve problems. The purpose is to enhance such efforts by providing an analytic framework that will help to strengthen the likelihood of their long-term success.

3. Key Obstacles to Progress: We anticipate that our work on the framework will identify various obstacles to achieving long-term stability and legitimacy in coordinated governance initiatives of different types. Introducing rule of law principles as part of the solution to these issues will itself present challenges for a variety of reasons. Among these are: a perceived fatigue surrounding rule of law development efforts; bias against the term “rule of law” as a Western concept, even though the WJP principles are culturally neutral; disenchantment with the failings of a state-based international legal system when, in reality, state capabilities are needed to implement solutions; and the difficulties in building legal systems with adequate capacity to interact effectively with non-state actors in coordinated governance initiatives.

A lack of concrete examples of coordinated governance – and a prevailing focus on the ‘macro’ concepts rather than the ‘micro’ realities of actual cases – can be an obstacle to gaining traction on the issues involved. We intend to address this problem in the course of developing our framework.

 Impact

Defining the global agenda on rule of law issues overlaps with many substantive areas of that agenda. Our decision in November 2011 to focus on rule of law in the context of coordinated governance provides, we believe, a novel and flexible perspective on the field. But it needs to be made concrete. We began testing the concept during the Abu Dhabi Summit and continue to do so in various contexts, as noted below.

Early signs that our advocacy within the Forum for the rule of law perspective and ethic has already had some impact are encouraging. Questions on governance and elements of the rule of law were welcomed in our discussions with other Councils in Abu Dhabi on a variety of substantive topics where specific reform policies and initiatives involving state and non-state actors were under discussion. Our perspective has also influenced the creation of a rule of law working group (on which our Council is represented) within the Professional Services Network (PSN) of the Forum. Our chairman’s presentation on “coordinated governance” to the PSN session in Davos met with favourable responses, in part because the term is less abstract than, and gives a context to, the rule of law. A leading academic noted that our Concept Paper matched what he sees as a coming wave in scholarship and policy development.

In order to increase our impact, we will continue to test the concept through the events and projects below, carrying through into the Global Agenda Summit in November 2012 and thereafter.

Events:

Members of our Council will be participating in the events listed below and testing the concept of coordinated governance and rule of law in the context of those events:

  •  7 May – Speech by the UN Secretary-General on the Rule of Law, Washington, DC. This luncheon address was hosted by the Global Agenda Council Chair and James Bacchus of the Forum, among others, participated. http://www.youtube.com/watch?v=nZqkrHxKlec
  • 23 May – World Justice Project briefing, Berkeley. This will be a briefing on the WJP’s Rule of Law Index.
  • 20-22 June – Rio+20 UN Conference on Sustainable Development, Rio de Janeiro. “Coordinated governance” arose in several discussions at Davos regarding this upcoming conference. We understand that the Forum’s environment team is working on a concept approach for Rio+20 which, once available, may help to shape a decision on how our Council might engage with the conference.
  • 24 September – UN General Assembly high-level meeting on the Rule of Law, New York. Members of our Council are already involved in the UN event in various ways and will have a chance to further test the concept of coordinated governance, although this concept is somewhat ahead of the state of discussions at the UN. Our Council has considered organizing a side event around this meeting – potentially putting us in direct contact with Member States to further test/crystallize the concept with the benefit of input from an audience outside the Forum.
  • 1-2 November – Hague Institute for International Law (HiiL), Annual Law of the Future Forum, The Hague. Organized by one of our Council Members, and several other Members will also participate. This forum will include “accountability” as a major theme and core element in rule of law principles. (Our Council is considering taking a coordinating role on the accountability initiatives within various other Councils.) Our Council Members participating in the HiiL conference are planning a side meeting to prepare for the Summit on the Global Agenda in Dubai, 12-14 November.

Projects:

  • Book: At the Global Agenda summit in Abu Dhabi our Council formulated a book project – with the working title: Coordinated Governance and the Rule of Law: Designing creative solutions in a complicated world. Our Council’s work plan over the remainder of the 2011-2012 term and thereafter aims to elaborate the various dimensions of a coordinated governance approach. This is to be done through a joint research project in which: (1) the concept and value of coordinated governance is examined; (2) case studies of coordinated governance efforts are considered, to examine patterns of success and failure; and (3) principles of good governance to guide public-private initiatives (including resolution of disputes) may be articulated. We expect the case studies will be designed and explored largely through interactions with other Councils. The HiiL conference in November of 2012 is considered a key focal point for examination of some of the questions presented. We currently have a skeleton outline of the book, the Concept Paper, as a basis for a conceptual first part of the book, and several ideas for chapters/thought pieces illustrating aspects of the concept. Several Council Members are working toward a more comprehensive outline by the end of April that will include suggestions for contributions from outside our Council.
  •  Professional Services Network (PSN) ‘joint projects’: our Council has been asked to draft a conceptual framework for a description of various joint projects being drafted by the International Justice Mission (IJM). (The joint project concept attempts to link corporate sponsorship with specific projects aimed at improving rule of law machinery). We expect to turn to this task as soon as the description is available.

 Advocacy & Discussions

While the activities described under “Events” and “Projects” above reflect the extent of our plans to test and raise awareness around the concept of coordinated governance and rule of law, more needs to be done. The book project will serve as a catalyst for future interactions with other Councils and experts outside the Global Agenda Councils as we solicit input for chapters. We will continue to pursue interaction with the PSN.

We need to do more to reach out to individual Councils in one-to-one and cross-council discussions. As a priority, we will be considering what guidance we can give other Councils on the sort of case studies on coordinated governance that we are looking for.

Disclaimer

The opinions expressed here are those of the individual members of the Council and not of the World Economic Forum or any institutions to which they are affiliated.