Global democratization and international regime complexity

Authority, politicization, and the democratic deficit

The post-World War II era has seen an exponential rise in regional, transnational, and global governance institutions (Tallberg et al., 2012). Although this process began mainly with formal intergovernmental organizations (IGOs), today, civil society groups, public–private partnerships, and even private actors now fulfill regulatory functions in global governance (Brassett et al., 2012; Kingsbury et al., 2005). This institutional density has gone hand-in-glove with globalization (what Zürn (2000) calls societal denationalization). As a result, Scholte (forthcoming) argues that social and political relations have acquired a more global character: ‘People have become substantially more interlinked with one another on a planetary scale: through communications, consciousness, ecology, finance, health matters, military affairs, organizations, production chains, travel and more’ (Scholte, forthcoming: 2).

As the number and density of transnational actors has increased, so has their authoritative and regulatory capacity. International institutions have authority when the addressees of their policies recognize that these institutions can make competent judgments and/or binding decisions (Cooper et al., 2008). Prominent international organizations (IOs) such as the World Trade Organization (WTO), the International Monetary Fund (IMF), and the World Bank exercise powerful authoritative capacity through regulative politics. ² Lesser known IOs such as the Basel Committee on Banking Supervision or the Internet Corporation for Assigned Names and Numbers (ICANN) promulgate a variety of rules and regulations that are also increasingly authoritative in nature. Examples abound of IOs, IGOs, multinational corporations (MNCs), non-governmental organizations (NGOs), and private actors exercising transnational authority. Indeed, the literature documenting the empirical reality of increased governance beyond the state now cuts across disciplines from International Law, Political Theory, International Relations (IR), and European Union (EU) studies (Hix, 1998; Keohane, 1984; Raustiala and Victor, 2004).

Michael Zürn and his co-authors have persuasively argued that the rise of political authority beyond the nation-state leads to politicization and hence requires legitimation (De Wilde and Zürn, 2012; Zürn et al., 2012). As IOs exercise authority, they require ‘sufficient stocks of legitimacy’ to facilitate compliance with policy and day-to-day operations. To the extent that an IO cannot draw upon a reserve of legitimacy, and actors are increasingly aware of this authoritative relationship, then politicization will increase. Often, politicization occasions productive engagement between IOs and addressees of authority, but it can also entail resistance. In order to depoliticize their authority, IOs will increasingly rely upon norms of justification to explain, and ultimately legitimate, their actions (Forst, 2007).

The rise of regulation and politicization beyond the state thus generates many normative complications related to legitimacy standards. Most relevantly for this article are democratic concerns (Held and Koenig-Archibugi, 2004; Macdonald, 2008). Rule-makers in regulatory organizations and networks exercise authority over rule-takers without adhering to democratic norms or standards (Erman, forthcoming). Moreover, the same bodies are not capable of curtailing global problems, which are often left untreated due to cooperative gridlock between states and IGOs. In the same way that state-based (coercive) authority generates democratic demands, authority exercised in transnational fora triggers the same normative expectations of democracy (De Búrca, 2008: 114). Certainly, the democratic deficit is not the only problem with transnational governance: questions of distributive justice (Pogge, 2002), sociological legitimacy (Buchanan and Keohane, 2006), and optimal rational design (Koremenos et al., 2001) are all highly pertinent. However, the democratic deficit is an important issue which helps to explain legitimacy and policy shortcomings and thus deserves sustained, and separate, treatment. ³

Although the identification of a global democratic deficit has become commonplace, there is wide-scale disagreement over the precise nature of the problem, and hence divergence on the prescription that should follow. In the introduction, I employed Scholte’s (forthcoming) stylistic divide between statist and cosmopolitan approaches. Gráinne de Búrca (2008: 117) identifies three strands in the current literature to which she affixes the nomenclature a ‘denial approach,’ a ‘wishful thinking approach,’ and a ‘compensatory approach.’ Similarly, Archibugi et al. (2012: 7) suggest a tripartite (ideal-typical) break in the literature between federalist, confederalist, and polycentric prescriptions for global democratization. Respectively, these ideal types delineate world government approaches (Cabrera, 2004; Marchetti, 2008), state-based cosmopolitan democracy (Archibugi, 2008; Carothers, 2008), and stakeholder (Macdonald, 2008) or deliberative (Dryzek, 2006) models.

A full survey of these positions is not possible due to space constraints. However, it is worth noting that I reject the ‘statist’ approach which attempts to mitigate the global democratic deficit by focusing on the ability of democratic states to control transnational authority. As Zürn (2000: 183) noted more than a decade ago, there is not a ‘zero-sum relationship between national sovereignty and supranationality.’ Although Keohane et al. (2009) are correct to note that international institutions can be ‘democracy-enhancing,’ this potential is far from automatic (Squatrito, 2012). In addition, it is also clear that not all transnational activity is controllable through state-based channels. Private governance structures (such as primary commodity roundtables) and international NGOs (INGOs) are positioned as alternative sites of governance. Moreover, Hawkins et al. (2006) have highlighted the pervasiveness of ‘agency slack’ created by the delegation of state-based authority to transnational actors. In a very insightful piece, Tana Johnson (2013) has stressed that international bureaucrats, operating outside of state control and interests, have meaningfully impacted the design process of around two-thirds of all existing IGOs. These bureaucrats specifically maneuver beyond (national) democratic control. As such, it would seem that global democracy cannot be achieved solely by strengthening national democratic structures and chains.

Models of democracy

Due to the complex nature of global democracy, the boundaries between each categorization are highly porous. It would not be particularly fruitful to demarcate yet another division in the literature. However, there is a common thread running through much of the work. Most proponents of global democracy have a tendency to think in terms of ‘models’ (Bexell et al., 2010; Falk, 1975). David Held (2006) — in the third edition of his text Models of Democracy — has identified 10 distinct models of democracy, one of which is a cosmopolitan variant. Several of the models identified by Held can be broken down into further sub-models. In general, models can be understood as theoretical constructions designed to express the normative qualities of a democratic system as well as its constitutive institutions. Models tend to fit together as whole pieces, and are thus pre-packaged solutions which can be superimposed on different governance structures. Models are supposed to provide a ‘terminal endpoint’ toward which theorists and practitioners can strive (Archibugi et al., 2012). Because all models of democracy have been developed within the container of the nation-state, proposals for global democracy tend to reflect this Western, liberal presupposition (Scholte, forthcoming).

Bexell et al. (2010) identify the trichotomy of representative, participatory, and deliberative democracy as common distinctions in democratic theory and debates over global democracy. In short, representative models emphasize the opportunity for citizens to select between competing elites, typically through electoral processes. This mechanism facilitates the accountability and responsiveness of elites to public opinion. Proponents have advocated for global parliaments and world governments in an attempt to transpose representative democracy beyond the state (Falk and Strauss, 2001). Participatory democrats argue that citizens should be directly incorporated within decisive and consequential political decisions. This focus on inclusion tends to emphasize ‘transnational referenda, citizen initiatives, judicial access for individuals, and broad civil society participation’ as essential to the democratic process (Bexell et al., 2010: 84). Finally, deliberative democrats stress the importance of uncoerced and authentic reason-giving in public debates and political decisions (Dryzek, 2000). Transnationally, deliberative democrats also highlight the importance of civil society, stakeholder fora, and broad transnational public spheres. Cosmopolitans of every ilk draw upon these models in order to formulate and articulate a response to the global democratic deficit.

Values of democratization

Dryzek (2008: 471) is correct to note that, although ‘models help in thinking, they are also constraining.’ As such, it is often more productive to think in terms of processes of democratization. In this vein, we can think about democratization as the ongoing and provisional endeavor to fulfill a set of normative values (Dewey, 1996). This method has the advantage of taking seriously what Gallie (1956) called the essentially contested nature of democracy by allowing for contestation over both institutions and the meaning of democracy itself. Given the early stage of global democracy, it is perhaps sensible to keep options and paths open. This sentiment is echoed by Bexell et al. (2010) who argue, on methodological grounds, that focusing on values of democratization (instead of models of democracy) enables more systematic and rigorous comparison of different prescriptions.

This is certainly the view adopted in this article. Instead of asking what kind of idealized model global democracy should aim toward, we can think about democratizing different regime complexes by fulfilling a set of values. This strategy has similarities to what De Búrca calls the ‘democratic striving approach,’ which highlights the dynamic and inchoateness of democracy. It also follows closely from Joseph Weiler who argued that efforts for democracy beyond the state require rethinking the very building blocks of democracy to see how these values may or may not be employed in the international system. To make the search for values of democratization more tractable, I propose equal participation, accountability, and institutional revisability as central. I discuss and defend each in turn.

Democracy, at its roots, is concerned with rule by the people (Scholte, forthcoming: 1). Any democratic system should work toward the fullest possible participation and representation of those significantly affected individuals. ⁴ Equal (opportunity for) participation lies at the heart of democratic theory in which affected individuals are able to take part in authoring the laws and regulations to which they are subject. In other words, this value stresses the ontological dimension of democracy in which individuals and collectives act to create and abide by rules simultaneously. This is a central view which stretches from (at least) Kant and Rousseau right up to contemporary debates. Generally speaking, more inclusivity (of people, their representatives, and their viewpoints) enhances the democratic quality of a particular institution or system. A premise to enhance equal participation is central to many alternative models of democracy, and should thus find tacit approval. It also acknowledges that representation is not a second-best alternative to participation, but a complex standard integral to the democratic functioning of any system (Urbinati and Warren, 2008: 407).

The migration of authority beyond the state and its normative (democratic) complications has given renewed attention to the boundary problem (Miller, 2009; Whelan, 1983). This involves two distinct, but related, sub-questions. First, how can we delineate the boundaries of a demos without lapsing into the circularity that a demos already needs to be formed in order to democratically determine those boundaries? Second, in the absence of a well-defined global demos, how can we even speak meaningfully about global democracy? Fortunately, understanding democracy as an ongoing and provisional process helps to mitigate both problems. ⁵ The strategy adopted here understands boundaries as being constantly formed and reformed as authoritative relationships change and the degree to which an individual is ‘significantly affected’ is altered through time. In this way, the democratization of institutions becomes both constitutive and generative of a corresponding demos (Bohman, 2007; Cohen and Sabel, 2005 ; Zürn, 2000: 212). ⁶ Accountability is also a core value of democratization. Etymologically speaking, accountability literally means to give an account of one’s actions. However, modern usage of the term in political (democratic) contexts is much richer. In an already influential definition, Grant and Keohane (2005: 29) state that the standard model of accountability implies that some actors have the right to hold other actors to a set of standards, to judge whether those standards have been met, and to impose sanctions if the standards are not reached. Accountability is generally considered democratic when the agent giving an account is the wielder of authority (rule-makers) and the agent(s) setting standards and imposing sanctions are the relevant demos (rule-takers).

Beyond the state, in the absence of a global parliament and a broader constitutional framework, this democratic understanding of accountability is often pared back. ⁷ Grant and Keohane suggest a range of seven accountability mechanisms — hierarchical, supervisory, fiscal, legal, market, peer, and reputational — which help to limit the abuse of power and authority. The significantly affected parties are noticeably absent from direct inclusion in these mechanisms. In a slightly more democratic vein, Jennifer Rubenstein (2007) and Mathias Koenig-Archibugi and Kate Macdonald (forthcoming) discuss the potential for surrogate and proxy accountability, respectively. Both conceptions are underpinned by the notion that the standard model of accountability requires more nuance to explain how third parties can legitimately enforce accountability measures on behalf of the rightful agent to whom accountability should be owed. Finally, in a direct attempt to reconceptualize the standard model in democratic terms, Michael Goodhart (2011) has argued that wielders of authority can be accountable to democratic norms, rather than agents. These norms, Goodhart argues, should be grounded in an evolving framework of human rights linked with the democratic principles of freedom and equality. For this article, I understand accountability as encompassing a variety of shades. It is most desirable that rule-makers are directly accountable to the relevant demos of rule-takers. However, given the incremental approach of democratization to which I am committed, rule-makers can be held accountable to previously agreed laws and norms (De Búrca, 2008).

Finally, again in accordance with the provisional and ongoing search for democratization, institutional revisability is a core value. The institutions which constitute a democratic system must be revisable over time. This enables citizens to question and contest the rules and regulations which significantly affect their lives. Democracy, as rule by the people, requires institutions that reflect the changing and ‘general will’ of those people. Of course, it is not the case that institutions should always reflect that will; we would not want to say that the majority of people could co-opt a political system by gerrymandering the electoral boundaries and forcing their will over the minority. But a degree of revisability is needed. Institutional revisability thus has two components. First, democratic institutions (and the system itself) must be flexible and capable of being changed, reshaped, or recalibrated. Because an institution is always influenced by — and in turn influences — its environment, the institution must be able to adapt in the face of contextual shifts and uphold the normative values which it is supposed to instantiate (equal participation, accountability, etc.). Second, at the level of the democratic system, revisability also means that institutions should work symbiotically with other institutions. Given the wide-ranging nature of the global democratic deficit, multiple institutions and institutional schemes will be required. As such, democratization is about having flexible institutions that can be altered in light of democratic contestation.

I do not argue that responsiveness is the gold standard or ideal of democracy as John May (1978) and Robert Goodin (2003) have contended. Neither equal participation nor accountability should be jettisoned even if an institution is systemically responsive to the will of the majority. But as Michael Saward (1998: 52) argues, it is important to separate the definition of democracy from ‘its justification, conditions and links with other values, and from the extent of its realizability in the complex modern world.’ It seems justifiable that all democracies contain institutions which can be employed to exercise authority. Institutions must be able to adapt to accommodate changes in social norms and new information. Moreover, given the provisional nature of democratization outlined above, having revisable institutions is important.

From regimes to regime complexes

These three democratic values can be applied to international regime complexes as a meaningful strategy for global democratization. ⁸ Although regime complexes are a reasonably recent concept (Raustiala and Victor, 2004), the broader notion of international regimes has a rich pedigree in IR scholarship (Levy et al., 1995). Despite the many conceptual, methodological, and ontological differences between neo-realists, neo-liberals, and constructivists, the 1970s and 1980s saw a near-consensual definition of ‘regimes’ produced by these camps. Following Krasner (1983: 185), international regimes can be conceptualized as a set of implicit or explicit principles, norms, rules, and decision-making procedures around which actors’ expectations converge in a given area of IR. Despite this general agreement, scholars have emphasized different aspects of this definition. Neo-realists suggest that hard power dominates the creation of regimes, and structures inter-state relations in line with those power imbalances (Walt, 1987). Neo-liberals tend to focus on the explicit and formalized rules of international institutions and their rational utility for cooperation (Keohane, 1984). Constructivists typically highlight the intersubjective formulation of norms and principles as central to regime formation (Reus-Smit, 1997).

Valbona Muzaka (2010: 759) notes that the term ‘convergence of expectations’ is quite amorphous. Although all regimes require some degree of shared understanding, it is not clear how much convergence of expectations is needed. Certainly, no international regime has ever generated identical expectations amongst participants. Hegemons, middle powers, weaker states, and non-state actors all have different expectations about how a regime should distribute burdens and benefits, and thus varied expectations about how rules should be negotiated, drafted, and operationalized. As such, it is not productive to understand regimes as fixed arrangements held together by mechanisms of coercion or as fleeting moments of converging interests. It is much more plausible to understand regimes as ‘evolving, dynamic and contested processes’ (Muzaka, 2010: 759; see also Gale, 1998). Regimes compose both material and ideational qualities that define, order, and stabilize meanings, rules, and norms within a certain issue-area. Regimes therefore become the site of contests and tensions between participants as well as the outcome of this contestation.

Understanding regimes in this dynamic light also helps to make sense of the emergence of regime complexes, which tend to develop as regimes splinter through a process of ongoing contestation. As Keohane and Victor (2011) elucidate, international regulatory institutions can be positioned along a spectrum. At one pole, there are single, integrated legal instruments around which clear expectations are generated. At the other, we see highly fragmented legal instruments which have little or no overlap and are not analytically or empirically comparable to other regimes. In between these two extremes, we see nested regimes and regime complexes which describe loosely coupled sets of regimes.

Regimes within a complex are simultaneously held together and kept apart by a series of linkages (Johnson and Urpelainen, 2012; Leebron, 2002). Linkages can be understood as interlaced institutional rules and cognitive frames that define the boundaries and connections between regimes and institutions within a complex. The linkages can be renegotiated and reconceptualized over time. Precisely because of the evolving nature of regime complexity, the boundaries of each issue-area must be considered malleable. Concomitantly, regime complexes tend to encompass a wide variety of ever-changing actors. Although scholars have maintained an ‘unhealthy concern with states as the key actors in international regimes’ (Muzaka, 2010: 760), it is clear that non-state actors (such as MNCs, academics, epistemic groups, NGOs, private citizens, etc.) can all play a decisive role in the shape and nature of linkages within a complex. It is this evolving nature of regime complexity, coupled with the inclusion of state and non-state actors, which opens a strategy for ongoing democratization.

Regime complexes and democratization

Over the past decade, positivist and legal work has described the institutional features of regime complexes (Alter and Meunier, 2009; Raustiala and Victor, 2004). The concept has been applied to refugee policy (Betts, 2009), climate change (Abbott, 2012; Keohane and Victor, 2011), trade (Davis, 2009), human rights (Hafner-Burton, 2009), and, most relevantly for this article, intellectual property rights (Helfer, 2004; Muzaka, 2010; Yu, 2009). Although theoretical and empirical work on regime complexes has abounded, normative work has perhaps been slower to react. This is problematic because today, ‘[T]ransnational governance initiatives increasingly face the problem of regime complexity in which a proliferation of regulatory schemes operate in the same policy domain, supported by varying combinations of public and private actors’ (Overdevest and Zeitlin, 2012: 1). Given this empirical reality, normative scholars in general — and global democrats specifically — should be seeking to gain a foothold in the current situation.

My understanding of global democracy as the provisional and ongoing instantiation of core values meshes well with Muzaka’s definition of regime (complexes) as evolving, dynamic, and contested sites of governance. In order to make the strategy for democratization more concrete, I argue that regime complexes should be disaggregated into horizontal and vertical dimensions. This distinction follows on from Mitzen (2005: 402), who similarly argues that the legitimation of global politics can be conceived in terms of a vertical realm which focuses upon a cosmopolitan citizenry, transnational non-state actors, and private governance initiatives, and a horizontal realm which encompasses inter-state negotiation between national representatives. Of course, multilateral governance is also directly impacted by non-state actors who increasingly have formal and meaningful participation in IGOs, as well as through public resistance and protests (Tallberg et al., 2012). In democratic parlance, the horizontal dimension comprises predominantly rule-makers themselves, whereas the vertical dimension explicitly links rule-takers with authoritative rule-makers. ⁹

In a move that derives from Habermas’ s (1984, 1996) work, Mitzen identifies these planes as ‘global public spheres.’ Public spheres represent shared ‘lifeworlds,’ in which participants engage in communicative action through a process of reason-giving in which uncoerced argumentation provides the motor for change. Although I find the vertical and horizontal heuristic insightful, I seek to show how a wide range of democratic values can be pursued in these fora. Perhaps precisely because regime complexes entail less ‘convergence of interest,’ the bonds between actors within each ‘lifeworld’ break down, and we should thus search for the broader democratic values advocated previously. Therefore, I am not intrinsically tied to the notion of communicative action, although I certainly think it has an important role in the legitimation of global politics and thus global democratization (Risse, 2000). Although other scholars have probed the deliberative democratic potential of international regimes (Bohman, 1999; Samhat and Payne, 2003), this article represents the first explicit attempt to develop a general democratic strategy at the level of regime complexity. ¹⁰

I will argue that horizontal negotiations should be democratized through the equal participation of state and non-state actors, accountability to sets of previously agreed rules, and institutions which can be revised as democratic arguments develop over time. These multilateral negotiations partially rely upon the legitimating quality of communicative action (Müller, 2004) to induce the broader set of democratic values. However, it does not rely solely upon the ‘gentle force of argumentation’ because regime complexes allow for forum shopping, issue linkages, cognitive framing, and even bargaining, which can help promote democratization. Multilateral negotiators, as representatives of national interest and certain discourses, thus perform a crucial democratic function. Likewise, although INGOs might not be directly accountable to their stakeholders, they can still advance global democratization through contesting sites of authority, putting issues on the agenda, exercising proxy accountability, and upholding representation functions (Dryzek, 2012).

The vertical dimension links rule-makers with rule-takers through a variety of mechanisms. In general, these connections should be developed through a framework of democratic experimentalism (Sabel and Zeitlin, 2011). Individuals should be piecemeal included as participants in authoritative governance structures in a way that upholds participation of and accountability to multiple and overlapping demoi which develop through time. Regime complexes contain fertile terrain for the democratization of both multilateral negotiation and the development of democratic experimentalism: I consider both components integral to global democratization.

It is the goal of the second half of this article to elucidate the potential for this strategy through case study analysis of the IPR regime complex. Methodologically speaking, this move represents a type of ‘normative case study’ which combines empirical observation with normative assessment (Thacher, 2006: 1632). Because property rights also represent a ‘tough case’ for global democracy, highlighting the democratic potential of this complex should provide optimism for the democratization of alternative issue-areas of transnational governance (Eckstein, 1975: 118–120). This analysis operates at a fairly high level of abstraction in which I seek to highlight a general pattern of democratic potential (as opposed to a sustained focus on a single institution or regime).

IPR: An evolving complex

The IPR complex has evolved through multiple — often conflicting — conventions, treaties, and agreements. The complex has been in development for over 500 years, with a major shift coming in the late 1800s. At the Paris (1883), Berne (1887), and later Rome (1961) Conventions, copyrights, patents, and performers’ rights were respectively ingrained as property rights. Although IPR are often described as public goods, this change actually created scarcity and rivalry over the production of knowledge (Muzaka, 2010: 764).

After World War II, the United States was predominantly interested in spreading its home-made variant of market liberalism abroad, and thus attempted to link IPR with competition and antitrust measures (Porter, 1986; Sell, 2004). This US-led strategy was successful for many years, with the European Community (EC) and the US being able to dictate international IPR law from the 1950s until the mid-1980s. At this stage, developing states became increasingly dissatisfied with the IPR regime and demanded revisions to the Paris Convention to gain preferential treatment (Helfer, 2004: 20; Matthews, 2007). Eventually, the Paris Convention Diplomatic Conference ground to a halt because the US and EC were unable to compel developing states to combat patent infringement or raise the standards of protection (Buscaglia and Guerrero-Cusumano, 1995: 221–241). This gridlock led the US to determine that the World Intellectual Property Organization (WIPO) — with its one-country-one-vote governance system and UN mandate — was no longer an appropriate venue for IPR negotiation. Instead, buoyed by success its government had had in ‘linking intellectual property to trade in a series of bilateral consultations in the 1980s,’ the US pressed for the inclusion of IPR issues in the Uruguay Round of General Agreement on Tariffs and Trade (GATT) negotiations (Braithwaite and Drahos, 2000: 556).

At the end of the Uruguay Round in 1994, the GATT transformed into the WTO. Membership in the WTO was, and still is, conditional upon national enforcement of the TRIPS Agreement. TRIPS provides a one-size-fits-all set of standards for global IPR which, due to the US influence in WTO negotiations, covers a wide range of issues from plant genetic resources, literary patents, copyrights, geographical indication (GI), layout designs (topography), and much more. TRIPS standards are applied ‘equally’ across all WTO members, a feature strengthened by the WTO’s ‘most-favored nation’ (MFN) provision and the dispute settlement body (DSB) which gives legal teeth to TRIPS. The US was directly responsible for the inclusion of ‘retaliation measures’ against non-compliant states being incorporated into the TRIPS Agreement.

As a result of ongoing contestation, there has been a series of fascinating developments occuring within the regime complex of IPR. Despite the enforceability of TRIPS, the past decade or so has seen widespread backlash against the unfair and uniform standards imposed under TRIPS, especially from developing states (and Brazil, Russia, India, and China (BRICs)). Immediately following TRIPS, developed states attempted to solidify their institutional advantage ingrained in the WTO accession policy. Simultaneously, developing states have attempted to roll back the more onerous provisions of TRIPS (Helfer, 2009: 40), with some success. One notable example is the Article 31 (a-l) provision to TRIPS negotiated as part of the 2001 Doha Round which allows developing states to bypass stringent TRIPS patent laws in the face of national health emergencies. The US (and, to a wider extent, the remainder of the QUAD) has attempted to strengthen TRIPS through a series of bilateral, TRIPS-plus agreements (Yu, 2009).

Equal participation

It is certainly not immediately clear from the preceding discussion that the IPR regime complex holds much democratic potential at the level of multilateral negotiations. However, the politics of forum shopping and issue linkage within a complex provides a strategy to enhance equality of meaningful participation between state representatives by undercutting power imbalances. This strategy also allows a fruitful role for non-state actors to lobby, provide information, and generally impact inter-state negotiations across a range of fora. Helfer (2004, 2009) has undertaken several systematic studies of the post-TRIPS development period. Helfer (2009: 41–43) argues that regime shifting (the strategic choice of venue akin to forum shopping at the domestic level), chessboard politics, and the blurring of domestic and international law has characterized strategy within the IPR regime complex. I discuss each mechanism in terms of enhancing equality of participation between multilateral negotiators.

Regime shifting provides a mode to equalize bargaining positions and create ‘counterregime norms.’ There are many prominent examples whereby developing states have forum shopped in order to obtain more favorable bargaining positions and reframe issues in a more normatively desirable manner. For instance, in an endeavor to roll back the stringency of TRIPS in areas of public health, plant genetic resources, and biodiversity, developing states decamped from the WTO and shifted venue toward the World Health Organization (WHO), the Food and Agriculture Organization (FAO), and the Convention on Biological Diversity (CBD) (Helfer, 2009: 40). These other institutions — all linked within the IPR regime complex — are mandated with issues other than intellectual property enforcement. Developing states have thus been able to create issue linkages and ‘counterregime norms’ (Helfer, 2009: 41). As a specific example, the 2001 International Treaty on Plant Genetic Resources for Food and Agriculture forged through the CBD and FAO saw increased recognition of farmers’ rights and the sovereign claim to putative ownership of plant genetic resources, and facilitated access to international seed stocks. Moreover, because developed states are not always present in alternative institutions (i.e. the US never ratified the CBD), there are often fewer power imbalances in these institutions. Alternate venues thus enabled the creation of rules within the IPR complex that run ‘counter’ to TRIPS.

Although regime shifting can be modeled as a single-shot game, it is more accurately understood as a long-term, iterative process. This is what Alter and Meunier (2009) call chessboard politics, in which actors use regime complexity to create ‘strategic inconsistencies’ between regimes to alter the wider political setting. Marc Busch (2007) rightly notes that we can only understand the choice of venue in NAFTA–WTO disputes (both important elements of the international trade regime complex) when we realize that states select a venue to set long-term precedent, rather than to win individual suits. This means that actors do not always regime shift to change formal institutional rules. Rather, as Helfer (2004) identifies, regime shifting and chessboard politics can be a strategy to align preferences and craft proposals for the long term. This is precisely what occurred in the 2001 TRIPS Agreement on Public Health: developing states used the WHO to coordinate their challenge against developed states by linking issue-areas together (Muzaka, 2010). Indeed, not only did the WHO allow developing states to formulate a consistent message against the TRIPS Agreement, but eventually the rules created in the WHO were employed as leverage to alter WTO rules in an (ironic) effort to ‘harmonize’ international law. As such, regime shifting can allow developing states an opportunity to align preferences and form a counterweight to hegemonic power blocs in a way that fosters equality of participation. In addition, regime shifting allowed developing states to create an issue linkage between public health and IPR which, due to moral and ideological pressure, induced a change in the rules of the TRIPS declaration.

Finally, regime complexity impacts the domestic–international relationship of legal obligations (see also Krisch, 2010). The nature of multiple and overlapping regimes covering a single issue-area means that domestic governments have greater leeway to decide which rules to implement and how to interpret contradictions. Such an example can be seen in Decision 486 of the Common Regime on Industrial Property. In this decision, the Andean Community (Bolivia, Colombia, Ecuador, Peru, and several associate and observer countries) placed specific impositions on patents resulting from biological material found in the Andean region. ¹¹ Although this agreement appears to infringe upon TRIPS (and potentially even the MFN status of the WTO), no state has filed a WTO dispute settlement complaint. In converse, these conflicting laws have allowed powerful states (such as the US) to demand in minilateral talks that developing states accept the more stringent rules available. As such, regime shifting is certainly a strategy adopted by weak and powerful states (Drezner, 2009). However, as a way to foster equality of participation, it is important to think about how weaker state actors can use the contradictions in domestic/international law and the backstop of sovereignty to level the playing field in multilateral negotiations. More generally, it is important to question how regime complexity and issue linkages can be employed to equalize meaningful participation between rule-makers.

Accountability

While equality of participation is an important democratic value, its value is linked closely with accountability. In other words, the outcomes of bargaining and negotiation should set standards of accountability that bind weak and strong actors alike. Given the prevalence of power politics, especially under conditions of regime complexity (Biermann et al., 2009), this is a difficult metric to uphold between states. However, there are glimpses that the IPR complex is capable of upholding this democratic standard. In this section, I focus on a very recent WTO decision in Dispute Settlement DS285 between the United States and Antigua and Barbuda: US-Gambling.

In March of 2003, Antigua and Barbuda (Antigua) filed a complaint with the WTO DSB against the US. In short, Antigua was claiming that the US had violated its WTO trade agreement by preventing citizens from gambling on overseas websites (cross-border restrictions). This allegedly caused Antigua’s gaming industry to collapse from the second-largest employer of people in the Caribbean at around 4000 employees in 2000 to fewer than 500 by 2004 (Thayer, 2004). In 2005, the WTO found in favor of Antigua, and the US opted to implement a series of recommendations laid out by the WTO pursuant to a ‘reasonable timeframe.’ In 2007, Antigua claimed that, pursuant to Article 22.2 of the DSB, the US were not eligible for concessions, and were therefore responsible for the annual loss of USD $21 million to Antigua’s economy. In 2012, bilateral negotiations between Antigua and the US broke down, and Antigua asked the WTO to rule against the US. In these cases, the WTO would usually allow the complainant to raise tariffs against the respondent. However, given the size of the Antiguan economy, this would not help recoup the losses. As at January 2013, the WTO has instead granted Antigua the right to sell US media downloads without compensating the makers, thus legalizing ‘pirated’ material.

Of course, this 2013 ruling will not be the end of the story. However, the point is this: the US originally demanded that retaliation measures be included in the TRIPS negotiation. As we have now seen, the WTO DSB has used these retaliation measures to impose original and powerful standards against the US (and the EC in other cases). As Grant and Keohane suggest, accountability is the ability to set standards, to judge whether these standards have been met, and to impose sanctions in instances of breach. The WTO DSB has fulfilled this tripartite division by setting standards over IPR, judging that the US is in breach of international gambling restrictions, and imposing sanctions which also directly relate to IPR in the form of copyrights over media products. Although a full exploration is not possible here, this ruling by the WTO DSB is at least partially a result of the inter-institutional competition provided by regime complexity in which the WTO must deliver clear and consistent results in order to maintain a standard of legitimacy, as Pascal Lamy (2012) has noted. It is the case that state and non-state actors alike should employ formal accountability measures in multilateral negotiations to support this value of democratization.

Institutional revisability

Within a regime complex, institutions must also be subject to revisability in the face of contestation. The IPR complex exhibits a great deal of revisability which entails democracy-enhancing potential. I focus briefly on two specific examples.

First, regime complexity — and especially the politics of regime shifting — has enabled a wide variety of non-state actors to play a decisive role in multilateral negotiations. This contributes to an equality of participation standard as well by increasing the number of actors, interests, and discourses within the horizontal dimension (Dryzek, 2009). In addition, it elucidates the potential of regime complexity to generate revisability through contestation and competition. Another reason that developing states shifted away from the WTO is because the WHO, FAO, and CBD are all much more ‘friendly’ to civil society participation. Through the CBD, developing countries and sympathetic NGOs (such as the Access to Knowledge Movement) managed to establish links between biodiversity, the environment, and trade in ways that conflicted with the TRIPS Agreement (Pugatch, 2004; Kapczyniski, 2008).The ability of non-state actors to bolster the bargaining position of developing states by creating issue linkages is encouraging from a democratic standpoint, both in terms of equality of participation and institutional revisability. During the same time period, the WTO DSB has also become more ‘open’ to civil society participation. Dunoff (2004) has documented the ways in which civil society groups have been granted the right to file amicus briefs as a type of public participation. Although how and why multilateral institutions have opened up to civil society is still contested (Tallberg et al., 2012), the diffusion of this practice — and its impact on horizontal negotiations — provides optimism that IGOs are subject to democratic revision.

Finally, the re-emergence of WIPO as a central institution in global IPR highlights the revisability of the overall regime complex. The US and EC originally moved negotiations to the GATT/WTO precisely because they felt stifled by the gridlock in WIPO. Over the past two decades, WIPO has spent much time and energy fighting back against its partial marginalization during the Uruguay Round (May, 2007: 161). For example, in 2002, WIPO established a ‘Patent Agenda’ under Article 2 which sought to take account of the unfair rules imposed on developing states by the TRIPS Agreement. In 2004, the Patent Agenda was followed by the Development Agenda which is now being implemented by the Committee on Development and Intellectual Property (CDIP) as part of WIPO’s commitment to global development goals. The WTO has allowed, and even facilitated, limited changes to the TRIPS Agreement in the face of inter-institutional pressure. Such innovations are endemic of regime complexity in which no hegemonic power is able to eliminate competition at will (Keohane and Victor, 2011). From this section, it is possible to argue that multilateral negotiations within the IPR complex uphold, to varied degrees, equal participation, accountability, and institutional revisability.

Democratic experimentalism and regime complexity

Democratic experimentalism is a pragmatic approach which finds its philosophical roots in the works of John Dewey (1996). At its core, experimentalism is ‘a recursive process of provisional goal setting and revision based on learning from comparison of alternative approaches to advancing these goals in different contexts’ (Overdevest and Zeitlin, 2012: 4). Perhaps the most comprehensive explication of experimentalism governance comes from Michael Dorf and Charles Sabel (1998: 267), who argue that experimentalism seeks to decentralize authority ‘to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances.’ Knowledge developed through local decentralization should then be disseminated and diffused by higher levels of governance so that other citizens facing similar problems can learn and adapt. As such, information pooling, coordination, and mutual learning increases efficiency as well as heightening ‘accountability through participation of citizens in the decisions that affect them’ (Dorf and Sabel, 1998: 267).

Overdevest and Zeitlin (2012: 4) identify four features that a system of experimental governance must uphold. First, broad framework goals — and tangible metrics for gauging their achievement — are provisionally set through a combination of central and local units in consultation with affected citizens. Second, local units are then given broad discretion to pursue and attain these targets in their own way. These local units can be private citizens, public groups, or public–private partnerships. Third, these local groups should report regularly on their performance and participate in peer review benchmarking. This involves a learning function in which local units take corrective measures if they are failing to meet pre-set standards. Finally, the goals, standards, and review process itself is understood as provisional and thus is up for debate by ‘a widening circle of actors’ (Overdevest and Zeitlin, 2012: 4; see also Sabel and Zeitlin, 2011).

Regime complexes provide the scaffolding for experimentalism. This argument has now been advanced in the issue-areas of climate change (Abbott, 2012; Keohane and Victor, 2011), forest governance (Overdevest and Zeitlin, 2012), genetically modified food governance (Krisch, 2010), trade (De Búrca, 2008), and transnational regulation (Black, 2008). Without an explicit grounding in experimentalism, similar arguments have been advanced in the areas of financial regulation (Helleiner and Pagliari, 2011) and — with a democratic focus — supply chain governance (Macdonald and Macdonald, 2010). Regime complexes offer a productive structure for experimentalism in three ways. First, no hegemon can impose a single set of rules and thus cooperation between interconnected regime elements tends to be based on flexible, adaptable, and decentralized learning (Keohane and Victor, 2011). Second, regime complexes exhibit multi-level governance that stretches from the local to the supra national. Finally, complexes contain multiple institutional venues such as INGOs, public–private partnerships, regulatory bodies, and IGO experiments which generate the preconditions for direct connections between rule-takers and rule-makers. The extent to which the IPR complex engenders democratic experimentalism based around participation, accountability, and revisability is the core concern here.

Equal participation

Regime complexes tend to include a wide range of actors, including citizens. The DSB, as agreed under the original Marrakesh Treaty, can source information from any actor it deems necessary. This has included both NGOs (in the Shrimp-Turtle dispute) and local communities (in the Softwood Lumber dispute between the US and Canada). Martha Minow has demonstrated how public–private partnerships are able to import public values into private-sector economy and IPR institutions by fostering a healthy version of pluralism. ¹²

Outside of these quite formal channels, the IPR complex provides many other ways for citizens to be involved in IPR governance. In a now well-known example, ICANN — which determines the Internet domain names for websites and has, on occasion, been involved in IPR disputes over naming rights — held public, online elections for several of its Board of Director seats. Similarly, open-source software development provides a clear example of experimental governance in operation. As Benkler and Nissenbaum (2006: 395) succinctly note, ‘[T]he best known examples of commons-based peer production are the tens of thousands of successful free market projects … that occupy the software development market.’ This open-sourcing experimentalism — pushed along by near-global Internet access and increased bandwidth capacity — involves a collective effort of individuals contributing toward a common goal. No one person ‘owns’ the software; instead, it emerges from the collaboration of citizens and developers (Benkler and Nissenbaum, 2006: 395). Companies (IBM, Microsoft), governments (the US, China), and IGOs (the World Bank) have all begun investing in this kind of open-source software development in an effort to connect local citizens with higher sites of governance. These projects are typically inclusive and network-based, with problem-solving and mutual learning being paramount.

An alternative example of the inclusion of citizens in global governance structures can be seen in the Public Intellectual Property Resource for Agriculture (PIPRA) network. This group links around 50 institutions in 15 different countries and is designed to facilitate innovators in the development and dissemination of crops for developing countries. As a form of benchmarking and standard-setting so crucial to experimental governance, PIPRA also develops inclusive educational materials for training a broad range of professionals, including scientists, policy makers, attorneys, and administrators. PIPRA and other non-state actors explicitly establish best practice guidelines and disseminate this knowledge to other stakeholders. In an example of the consequential uptake of this local decentralization in the IPR complex, PIPRA aided farmers in India to defend their traditional knowledge by claiming GI protection over their products. This move managed to use TRIPS to slow neo-liberal economics and created a precedent for GI to be claimed by other local groups (Subbiah, 2004).

As an ongoing process, the democratization of a regime complex strives toward equal and maximal inclusion of significantly affected individuals (cf. De Búrca, 2008). As sites of authority change their mandate, rules, and representatives, the bounds of affected individuals will also shift. Because world politics entails an ever-moving terrain, it is useful to have a conceptualization of democracy that can function alongside empirical reality. Within the IPR complex, civil society involvement, open-source software, and networked governance can provide inclusive mechanisms in line with democratic experimentalism. These bodies provide a way to think about connecting rule-makers directly with rule-takers in multiple and overlapping institutional innovations. To be sure, equality of participation is not an automatic consequence of regime complexity. However, the point is to emphasize a productive strategy that academics and practitioners concerned with the global democratic deficit can pursue in a tangible way.

Accountability

Accountability is again a very tough criterion to apply in regime complexity. However, it is democratically important that rule-takers are able to set, monitor, and enforce standards as part of their collective efforts of self-governance. Keohane and Victor (2011: 17) explicitly single out accountability as a normative goal that regime complexes should strive to uphold. Although they shy away from the term ‘democratic,’ these authors note that institutions within a complex should be accountable not just to states, but also NGOs and the relevant publics. Here, I provide two concrete (but far from exhaustive) examples. The first comes from within the IPR complex. The second comes from the regime complex on international trade. Given that ‘joints’ — institutional points of intersection — between regime complexes tend to produce innovation (Raustiala and Victor, 2004), global democrats should seek to create issue linkages which advance democratic experimentation, and endeavor to diffuse good democratic experiments from one institution (or complex) to another.

Within the IPR complex, rule-takers are directly incorporated into a wide range of standard-setting organizations (SSOs), which are supposed to provide best practice guidelines that can be used as accountability benchmarks for manufacturers and companies (Lemley, 2002). The Internet Engineering Task Force or W3C provides this function. Although a large number of SSOs occupy different regime complexes, this does not seem to create a regulatory ‘race to the bottom.’ Instead, individual citizens (consumers, programmers, and interested stakeholders), companies, and civil society bodies contribute to the development of SSOs by providing information, highlighting shortcomings in different standards, reformulating goals, and expounding standards for ‘good governance.’ This supports the finding of Overdevest and Zeitlin (2012: 11) who claim that the emergence of private certification schemes in the complex of forest governance has not exacerbated regime fragmentation but rather encouraged productive interactions. For instance, different standards established by the Forest Stewardship Council and its competitors have resulted in mutual adjustment, learning from experience, and increased accountability of schemes to one another and to external audiences.

As with participation, rule-makers can be held accountable to rule-takers through a number of mechanisms. Although it is an issue of trade and development, a useful example from the World Bank is the Information and Communication Technologies for Governance (ICT4Gov) project. Based on the notion of participatory budgeting, this project has developed software that enables citizens in deprived communities to communicate with their government and the World Bank through mobile phone technology. In 2012, the technology was used across Africa in an effort to improve dialogue between the ‘public, stakeholders (provincial governments, decentralized territorial entities, civil society and the public and private sectors) and local authorities’ in order to foster trust and learning over time. ¹³ This system works by having local authorities present their budget to citizens who deliberate over priorities, set goals, and monitor the implementation of activities. To quote the ICT4Gov (2012) site: ‘This participatory approach has enabled the decentralized territorial entities involved in the pilot project to improve local governance through social accountability, effective participation of citizens in the management of public affairs and citizen monitoring of public investments.’ The World Bank thus performs two democratic functions. First, it provides a form of accountability by implementing the project and ensuring that local goals are indeed met through SMS consultation with citizens. Second, the World Bank has also learned from the experiment in South Kivu and is diffusing the project to alternative localities in a provisional yet recursive manner.

Institutional revisability

Finally, democratic experimentalism places the notion of institutional revisability at the heart of efficient and legitimate governance. This revisability should be explicitly linked with local-level actors and openness of participation (De Búrca et al., forthcoming 2013). A specific example from the IPR complex helps to tie this criterion together. The Treatment Action Campaign (TAC), running since 1998 in South Africa, sought to alleviate the costs of antiretroviral (ARV) medicine, with a specific focus on HIV medication. The TAC engaged multiple targets for governance reform from the South African government, to health care providers, the pharmaceutical lobby, and the South African legal system. In direct divergence from the trade-based focus of TRIPS, the TAC was able to create an issue link between human rights, public health, and IPR (Heywood, 2009). TAC was not only started as a grassroots organization, but deliberately sought to link individually affected citizens (rule-takers) with national and global rule-makers.

Democratic experimentalism emphasizes the importance of local knowledge in creating and monitoring standards in governance rules. These rules should themselves be periodically revisable, with alterations made in light of better information and the success/failure of other institutional schemes in similar situations (Overdevest and Zeitlin, 2012). The TAC specifically incorporated new actors in discussions over the baseline for adequate public health provisions, such as HIV-infected mothers and new public experts. This campaign also had macro-level uptake in multiple ways. First, TAC managed to induce revisions in the policy of multiple pharmaceutical companies (which donated the ARV Nevirapine). Second, TAC won a constitutional court case against the South African government which made it a legal ‘best practice’ that the government had to provide preventative medication against mother-to-child transmission of HIV. The TAC campaign is still involved in monitoring local clinics, hospitals, and other medical facilities to ensure this standard is being met. Third, when pharmaceutical companies attempted to sue the South African government for violations of TRIPS, the TAC submitted amici briefs in the government’s defense, eventually culminating in the pharmaceutical companies dropping their lawsuit.

Ultimately, this specific case involved local communities concerned with a recursive practice of standard-setting and continuous monitoring. The case exhibits institutional revisability in terms of the TAC itself (which employed networks of actors and other NGOs to bolster their position), changes to local governance policy (the regulations and monitoring standards of hospitals and clinics), and impacts at a national level (constitutional court amendments) and global level (a direct challenge to TRIPS and the pharmaceutical market through issue linkage and the diffusion of new ‘best practice’ standards at the local level).