Web viewIndicators as the working language for interaction among regimes. Rene Urueña. Professor and Director of the International Law Program, Universidad de Los

Indicators as the working language for interaction among regimes

Rene Urueña1

This contribution seeks to examine the connection between indicators and international

law. This connection is not readily made by international lawyers. Indicators seem to

belong to a different area of practice of international affairs, closer to development aid

institutions than to the practice of international courts and tribunals. Even in the context

of more recent debates on international legal scholarship, such as those related to global

constitutionalism, global administrative law and legal pluralism, the exploration of

indicators sounds out of place – what can we learn about international law by discussing

some numbers, some charts, some indexes?

In what follows, I would like to propose a couple of elements towards an answer to that

question. To do so, the document makes the argument that indicators can be read as the

working language for the interaction among regimes in international law, and explores

some of the implications derived from this fact.

Now: the Global Administrative Law approach to indicators has been based upon the

premise that the production, promulgation and use of indicators are important forms of

power in global governance, which need to be addressed from, perhaps even regulated

by, the discipline of international law2. I agree with this assessment, but want to focus

on a slightly different angle of the matter. My starting point is that many of the debates

taking place these days on the structure of the international legal system can be usefully

understood as problems derived from the interaction among regimes3. Climate change,

investment protection, humanitarian intervention – all these problems imply the

interaction of different legal regimes (be them domestic, international, or transnational)

whose outcomes and effectiveness depend not only on their own “internal”

characteristics (that is, intra-regime), but also on the way in which they interact with

1 Professor and Director of the International Law Program, Universidad de Los Andes (Bogotá, Colombia). Email: [email protected] See, for example, the contribution of Casini and Cassese to Davis et al. 3 Gunther Teubner and Peter Korth, “Two Kind of Legal Pluralism: Collision of Transnational in the Double Fragmentation of the World Society,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret Young (Cambridge: Cambridge University Press, 2012), 23–54. Also in the same volume: Martti Koskenniemi, “Hegemonic Regimes,” in Regime Interaction in International Law: Facing Fragmentation, ed. Margaret Young (Cambridge: Cambridge University Press, 2012), 305–323.

RU – DRAFT MADRID O9/2012 1

each other – sometimes bolstering each other’s effectiveness, sometimes annulling the

very limited results they achieve.

In this context, indicators work as a hinge between regimes. In a world where each

regime seems to derive its legitimacy from closed communities of experts4, indicators

work as a common language for communication among regimes. With their claim to

technical neutrality, their well-organized and easily understood bits of information, and

their trans-national, non – culturally based terminology, indicators are well-placed to

help epistemic communities communicate with each other, outside their own narrowly

defined area of expertise.

Indicators, in this sense, serve as the lingua franca, the working language, of interaction

among regimes. And if such interaction is potentially able to enhance or hinder

international justice, then a more thoughtful look at indicators seems indeed to be

important in order to understand the way in which international law contributes to a

more just world.

Human rights law is an interesting example where international law and indicators

overlap. Here we have one of the most important areas of international legal regulation,

and we have also one area where indicators have been developed in more detail5. In this

case, quantitative measurement is instrumental for experts and activists acting within the

human rights regime to communicate with people and institutions acting outside that

regime. So, for example, indicators play a crucial role in the interaction between

development experts and human rights lawyers, as is made clear by the World Bank’s

recent report on Human Rights Indicators and Development6, by the role of indicators in

monitoring the UN Milleniun Development Goals7, and by efforts of the UNDP to use

indicators in its evaluations of development8.

4 David Kennedy, “Challenging Expert Rule: The Politics of Global Governance,” Sydney Law Review 27 (2005): 5.5 See, for instance, Ann Janette Rosga y Margaret L. Satterthwaite, ―The Trust in Indicators: Measuring Human Rights‖ 27 Berkeley Journal of International Law (2009) 2536 H. -O Sano and Siobhán Alice McInerney-Lankford, Human Rights Indicators in Development : an Introduction (Washington, D.C.: World Bank, 2010).7 UN Secretary General. Indicators for Monitoring the Millennium Development Goals. UN Docs E/CN.3/2011/13 (2010). 8 UNDP, “Uso de Indicadores Para Exigir Responsabilidad En Materia De Derechos Humanos” in UNDP, Informe Sobre Desarrollo Humano 2000 (UNDP, New York: 2000)


Indicators are also a platform for the interaction between international and domestic

regimes. Here, indicators play two different roles. First, they frame the way in which

compliance with international legal norms is understood. This is particularly true with

regards to economic, social and cultural rights where, perhaps in an attempt to balance

the inherent indeterminacy of this kind of rights, indicators constitute the preferred

technique to assess compliance9. Thus, for example, Article 19 of the San Salvador

Protocol of the Inter American Convention of Human Rights orders State Parties to

report on advancements toward compliance with the Protocol, which is to be done in to

form of indicators. What is more, the UN’s Committee of Economic, Social and

Cultural Rights adopted in the year 2000 a General Comment on the Right to Health

where it suggested that a State Party lacking indicators to measure advancement could,

due to this fact in itself, be in breach of the Covenant.

Moreover, indicators also play crucial role in the way in which international law is

applied by domestic courts. Recent scholarship has explored the role of domestic courts

in the international legal system, focusing mainly on the role of domestic courts as

enforcers and interpreters of international rules10. Indicators are an important part of this

process. International institutions are increasingly adopting quantitative mechanism of

monitoring that are then adopted by domestic courts as part of an “international legal

compact” of sorts, that is then used in domestic adjudication. Here, again, human rights

law provides a useful example. Following Article 19 of the San Salvador Protocol, that

I mentioned earlier, the Inter American Commission of Human Rights adopted in 2008

a set of guidelines for developing indicators of social and economic rights,11 which go a

pretty impressive degree of detail. I can report that the Colombian Constitutional Court

has adopted these guidelines to the last detail12. It domestically enforces international

legal standards, whose international binding status remains doubtful (such as the Deng

9 See, Luis Eduardo Pérez, “¿Es posible medir los derechos? De la medición del acceso a bienes y servicios a la medición del disfrute de los derechos” in Derechos sociales: Justicia, Política y Economía en América Latina”- Bogotá, Grupo IDEAS, Facultad de Derecho, Universidad de los Andes, 2010.10 See André Nollkaemper, National Courts and the International Rule of Law (Oxford: Oxford University Press, 2011). Also: Karen Knop, Ralf Michaels, and Annelies Riles, “International Law in Domestic Courts : A Conflict of Laws Approach,” Cornell Legal Studies Research Paper No 09016 103, no. 09 (2009).Karen Knop, “Here and There: International Law in Domestic Courts,” New York University Journal of International Law and Politcs 32 (2000 1999): 501.11 Inter American Commission of Human Rights Lineamientos para la elaboración de indicadores de progreso en materia de derechos económicos, sociales y Culturales. Doc. 14. July 19 2008.12 Corte Constitucional de Colombia. Auto 226 de 2011, pp. 12 – 14


Principles of Internal Displacement, or the Committee’s General Comments) through

the domestic deployment of indicators.

(Incidentally, one further aspect should be briefly mentioned. Indicators developed by

international institutions also frame the way in which domestic institutions interact with

each other. Water indicators, for example, are a platform that communicates

independent agencies adopting regulation of water as a public utility, with judicial

institutions deciding structural injunctions related to the human right to water13. This

aspect, though, goes beyond the scope of this paper and will not be further explored

here).

As was being said, then, indicators can be understood as one of the working languages

of the interaction among regimes. There are several challenges to this. I want close my

presentation by mentioning just three of them.

The first one is, of course, politics. Indicators’ appeal as technologies of global

governance derives from their a-political stance. To be sure, there will always be some

complains about one indicator or the other – usually from a public official of the state

that appeared as having the worst business climate, the worst rule of law score, and so

on. Indicators, though, need to be generally perceived as non-political by most of those

who are being measured. Otherwise, they would lose most of their appeal.

However, in order to make sense, indicators require simplifying complex social

phenomena - a process that will be necessarily influenced by some political choices.

The Rule of Law Index is a case in point: clearly, defining the Rule of Law (the rule of

law, of all concepts!) cannot be said to be a purely technical and neutral matter.

Now: this is the “what to measure”, “how to measure” problem that has been discussed

in social sciences for long, and which was brought to bear on the indicators debate

recently by Tom Ginsburg14. My point goes a bit further than that. If indicators serve as

a working language for the interaction among regimes, then it becomes relevant to

13 See my own study on Colombia in: Bronwen Morgan and Navroz Dubash, “Understanding the Rise of the Regulatory State in the Global South,” Regulation & Governance (2012).14 Tom Ginsburg, “Pitfalls of Measuring the Rule of Law,” Hague Journal on the Rule of Law 3, no. 02 (2011): 269–280.


realize that such a language may, in its required simplification, favor one worldview

over others. And this, in turn, has the potential to bias the interaction among regimes.

Politics comes into the equation here in a second manner. Once they are created,

published, and discussed, indicators have a way of gaining life of their own. And this

life is indeed political. So, even if the expert teams that develop Doing Business or the

Rule of Index defend their creation as a technically neutral undertaking, it is impossible

to prevent that their numbers are used politically. And it would be silly to attempt to do

so. The influence of an indicator, its success, derives from the fact that it is used by

policy makers: otherwise, indicators would remain as a footnote in scholarly journals

with no influence in real life.

But getting involved in the messy world of politics means that indicators are also likely

to become instrumentalized in the cut-throat business that is political competition.

Surely, Venezuela’s position in the Rule of law Index will be used by the opposition in

that country as an argument against Chávez15. And indicators may end up endorsing

domestic political agendas that are different from those endorsed by the creator of the

indicator. For example, the World Bank’s Employing Workers indicator was contested

in a campaign of a transnational group of workers’ representatives, together with the

International Labor Organization, who argued that the indicator was biased in favor of

labor market deregulation and so was being used by international financial institutions

to pressure developing countries to dismantle protections for workers.

In the context of inter-regime interaction in a global setting, how can we prevent

indicators from becoming instruments for the hegemonic aspirations of one particular

regime, of particular one worldview? Two issues become of importance to explore

possible ways of answering that question:

1. Simplification/political choices:

Indicators’ appeal as technologies of global governance derives from their a-political

stance. To be sure, there will always be some complains about one indicator or the

15 See, for example, http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=6915


other. Indicators, though, need to be generally perceived as non-political by most of

those who are being measured. Otherwise, they would lose most of their appeal.

However, in order to make sense, indicators require simplifying complex social

phenomena - a process that will be necessarily influenced by some political choices.

The Rule of Law Index is a case in point. The Rule of Law Index is a quantitative

assessment tool designed by The World Justice Project (WJP) that seeks to offer a

picture of the extent to which countries adhere to the rule of law in practice. The index

is created by giving a numeric weight to scores obtained under the following factors,

which are then pondered, in order to produce a final score per country. Clearly,

defining the Rule of Law cannot be said to be a purely technical and neutral matter. This

general formulation of indicators as a reflection of political choices seems to have

gained some general traction in recent scholarship. However, it remains unclear in what

concrete choices were made, and their consequences.

2. The market for indicators

Indicators are becoming politically relevant in global governance, which makes them a

valued commodity. The only real barrier of entry to create a new indicator is financial

resources to hire the human talent that develops it, and to pay for the infrastructure to

gather the data. As political relevance of indicators becomes more evident, it is

foreseeable that more resources will be directed towards them. Again, two issues

become relevant.

a. Competition among “public” indicators: The example of the Rule of Law Index

also shows how some indicators compete with others: the Index, for example, competes

with of the World Bank’s indicators, which measure many overlapping issues. It seems

important to to understand the way in which they perceived their “competitors” and the

Rule of Law Index’s own competitive advantage. The goal here is to understand to key

issues: Who does the WJP perceive as the main consumers of the indicator?; and:

Which criteria has the WJP adopted to assess the success of its own indicator?

b. Private v. “public” indicators: That indicators could become so politically

relevant in global governance leads to the final challenge I want to mention here. The

only real barrier of entry to create a new indicator is financial resources to hire the


human talent that develops it, and to pay for the infrastructure to gather the data. As

political relevance of indicators becomes more evident, it is foreseeable that more

resources will be directed towards them. This will imply privatized indicators – for

example, global risk consultancy firm Maplecroft has already developed its very own

Rule of Law Index, which it sells to corporate clients16. And this will also imply that

those being measured by indicators will try to influence them, either by developing their

very own parallel measurements, or by arm – twisting existing producers of indicators

into changing their current techniques. We may foresee a competitive market of

indicators of sorts in the near future.

16 http://maplecroft.com


Documents

Web viewIndicators as the working language for interaction among regimes. Rene Urueña. Professor and Director of the International Law Program, Universidad de Los