Global constitutionalism

As an explanatory tool, global constitutionalism emphasizes the increased institutional density of world politics and the corresponding authority and legalization of those institutions. Although debates on global constitutionalism are relatively embryonic, at least three distinct strands of thought become apparent: legal process, subjectification, and objectification.^{Footnote 20} First, legal processes have begun to constitute a unified global order. This is leading to a hierarchically-structured system of international law in which legal rights and rules have been formally ingrained, and the jurisdiction between sub-parts are being demarcated. Second, and related to this, different sources of authority are being subsumed within the global constitutional framework to eliminate inconsistencies and secure a sense of mutual obligation. Third, global constitutionalism is itself becoming a source of normative convergence between actors (through jus cogens and other widely recognized beliefs).

Normatively, global constitutionalism ‘carries the promise that there is some system in all the madness, some way in which the whole system hangs together and is not merely the aggregate of isolated and often contradictory movements’.^{Footnote 21} It could provide a safeguard for individual rights, help sovereign lawmakers keep pace with abuses of transnational public power, and crystallize values for a connected world. The project of global constitutionalism is often linked to calls for global democracy. As Anne Peters notes, global constitutionalism requires ‘dual democratic mechanisms … which should relate both to government within nation states and to governance “above” states’.^{Footnote 22} This normative vision maps closely calls for cosmopolitan and cosmo-federal democracy stipulated by David Held and Raffaele Marchetti respectively.^{Footnote 23} These projects, developed in international political theory, call for a hierarchical system of global law to ingrain democratic rights, checks and balances, and a rule of law.

It is not the purpose of this article to dismiss global constitutionalism: I seek to show the value of systemic pluralism in its own right. But it is worth mentioning that scholars are heavily divided on the feasibility and desirability of a global constitutional system. In terms of feasibility, Jeffrey Dunoff argues that the centrality, authority, and hierarchical structure of the WTO within international trade should be an exemplary case of constitutionalism. In a constitutional setting, the WTO Appellate Body (AB) should be able to play a norm-setting role in trade law. However Dunoff argues that, because the AB has failed to resolve underlying value conflicts,^{Footnote 24} the WTO has not constitutionalized in any meaningful sense. Employing the example of amicus curiae brief submissions from non-state actors, Dunoff shows how member-states have rejected the AB authority on the issue. Moreover, in terms of desirability, Dunoff suggests that the attempt to sterilize politics through constitutionalism risks engendering the political backlash it seeks to guard against. Dieter Grimm, in a more theoretical piece, has succinctly argued that ‘the achievement of constitutionalism cannot be reconstructed on the international or transnational level’.^{Footnote 25} This is because the historical conditions which enabled national constitutionalism are not present beyond the state (a feasibility constraint), and attempting to replicate these features would undermine the democratic and authoritative public power of existing national constitutional states (a desirability problem).

Institutional pluralism

Legal pluralism describes a situation in which two or more legal systems coexist within the same social space.^{Footnote 26} In this, ‘[A] growing body of literature suggests that we live in an age of global legal pluralism. The heterogeneous, fluid, functionally fragmented, and uncertain architecture of international law gives rise to overlaps and lacunae in governance.’^{Footnote 27} Institutional pluralism offers an empirical and normative position between constitutionalism and systemic pluralism.^{Footnote 28} Instead of seeking a tightly unified and hierarchical structure, institutional pluralists accept the fluid architecture of international law and suggest that coordination takes place within a common framework of rules. This framework is not hierarchical, but provides a communal structure for interaction.

Empirically, scholars have pointed to the EU and historic developments at the domestic level as embodiments of institutional pluralism.^{Footnote 29} Within the US, for instance, the Constitution provides guidelines for interaction in which the Congress, President, and Supreme Court vie for final authority.^{Footnote 30} Similarly within the broader EU framework, the European Court of Justice (ECJ), the European Court of Human Rights, and domestic courts contest authority with loose rules for harmonization. On a normative level, institutional pluralism is supposed to help overcome the diversity of pluralism by allowing recognition of common rules and laws. This does not entail superimposing a hierarchical constitution on international law. At the same time, institutional pluralism avoids the pitfalls of a completely ‘open’ system of international law in which a lack of an overarching framework might actually generate conflict.

Again, I do not try to disavow institutional pluralism completely. However, there is reason to be sceptical of both the empirical and normative claims here. It is not clear that international law (or any postnational structure) provides a common frame of reference for actors. Across issue areas – trade, refugee politics, climate change, and many others – differentiated normative expectations arise. Indeed even within each issue area, values are shaped differently for those in the global North and the global South. Moreover, I agree with Krisch that institutional pluralism might not be able to provide the kind of fair and just common framework hoped for by proponents.^{Footnote 31} As the rational choice literature within IR has demonstrated, institutional design tends to reflect the balance of power between contracting parties.^{Footnote 32} Deliberately working to establish such a common framework is problematic and subject to unanticipated consequences. Determining a legitimate common framework will be very difficult, especially without pre-existing democratic mechanisms to handle the deep division that characterizes pluralist systems.^{Footnote 33} If the framework prescribes values that clash with the values of affected actors, this will prove empirically and normatively problematic.

Systemic pluralism

Systemic (or radical) pluralism accepts the messy and complex reality of world politics and seeks even further fragmentation and divergence between legal orders. This follows the pioneering work of HLA Hart and, more recently, MacCormick who, writing in the context of 1990s Scottish nationalism, sought jurisdictional distance from EU law and British sovereign authority.^{Footnote 34} Systemic pluralism understands international law as an extreme form of heterarchy in which no institution or regime stands in supremacy to others. While there might be power differentials between institutions, this does not mean that any claim to legal authority should be accepted by other legal orders.^{Footnote 35} As such, institutions often compete for relevance and legitimacy. Related to this, actors can forum shop between venues to locate and employ more favourable rules because there is no overarching framework to guide interactions. When autonomous legal sub-orders do interact, a set of interface norms should govern relationships. These interface norms amount to moral respect and recognition, but not legal binds. The level of recognition varies on a case-by-case basis.

Instead of seeking a global constitution or a common institutional frame, systemic pluralism demands more devolution and contestation between sub-orders. Where Andreas Fischer-Lescano and Gunther Teubner understand systemic pluralism as giving up on normativity,^{Footnote 36} Krisch highlights how diversity, adaptability, stability, and potentially even democratic values come to the fore.^{Footnote 37} Systemic pluralism takes much support from excellent recent work by Paul Berman and Antje Wiener. Berman argues that, in response to the empirical condition of global legal hybridity, ‘we might deliberately seek to create or preserve space for productive interactions among multiple, overlapping legal systems’.^{Footnote 38} This position enables sub-orders to generate their own normative values without reimposing sovereigntist insularity (methodological nationalism) or striving for illusory universals (global constitutionalism). Wiener also maintains that the most viable solution for transnational politics and law is to be found in arrangements which accept diversity and defy attempts at uniformity.^{Footnote 39} This is because norm contestation is an essential element of generating robust social conditions.

In the remainder of this article, I probe whether systemic pluralism promotes or impedes democratization beyond the state. Given the power differentials which animate world politics, we might expect institutional harmonization or constitutionalization to help overcome these imbalances. However, there are good reasons to question this claim. The fact that the veto privileges of the permanent members (P5) of the United Nations Security Council have remained so sticky (even in the face of widespread calls for institutional reform) serves as a prominent counter-example.^{Footnote 40} The article thus takes up the challenge proposed by Isiksel: to show why global legal (systemic) pluralism is desirable, and to specify the desirable degree in the global legal sphere.^{Footnote 41}

Contestation

One way that individuals can jointly shape or alter public power is through effective contestation. This value has a central place in deliberative, republican, and (to an extent) liberal versions of democracy. Contestation enables affected individuals and groups to challenge authority, overturn power imbalances, and even displace hegemonic norms based on acts of resistance, voice, or exit. Philip Pettit is a recent proponent of public contestation in democracy – both within and beyond the state.^{Footnote 54} Pettit claims that democratization requires:

Pettit likens contestation by affected individuals to a form of editorship. Just as editors of a newspaper or journal have the ability to control the content printed by authors, affected individuals and collectives must be able to alter or discard laws and regulations of which they do not approve. The existence of adequate mechanisms of contestation also forces those who author laws to take (ex ante) consideration of how affected individuals may respond. This provides a form of accountability and responsiveness to the preferences and reasons of affected individuals. Similarly, Bohman argues that contestation operates as a ‘corrective mechanism’ which can be employed when the connection between rule-makers and rule-takers has ‘broken down’ and needs to be fixed. Bohman maintains that contestation can make sites of public power responsive to those people it affects.^{Footnote 56} Indeed Bohman specifically notes the importance of contestation for reducing the global democratic deficit and delineating who constitutes ‘the people’ in global affairs. By placing contestation at the core of democratization, it accepts that the boundaries of each dêmoi are themselves contestable as new sites of public power give rise to shifting groups of affected persons.

It is worth noting that beyond that state it is not always possible for individuals to participate directly in contestation. This puts a premium on representation. As Nadia Urbinati and Mark Warren have recently noted, representation should not be understood as a second-best alternative to direct action, but rather as an essential element of any well-functioning democratic system.^{Footnote 57} This enables actors such as states, NGOs, interest groups, and even other individuals to act as representatives for affected persons in contesting public power. Legitimate representation should be assessed on a case-by-case basis in which fulfilling the represented party’s preferences is paramount. The more affected individuals can meaningfully contest the exercise of public power, the more democratic a system is. Although it is difficult to identify who the relevant affected parties are (i.e. which rule-takers are affected by rule-maker decisions), adopting a focus on values appreciates the dynamic and fluid nature of transnational relations.^{Footnote 58} The key point is that contestation to overturn unequal power and assert collective pressure is a core value of democratization.

Authentic deliberation

The second democratic value is that of authentic deliberation, which has taken centre stage in recent democratic theory.^{Footnote 59} The basic idea is that inclusive and reflexive political discussion on matters of common interest should mould individual preferences and shape law.^{Footnote 60} Deliberation should be as non-coercive as possible, with interlocutors prepared to change their mind when presented with better arguments. Agents should engage in this dialectic process to determine the ‘common good’ and laws should be accepted by affected parties. Those who wield public power should also offer transparent justification for their use of authority. A wide variety of speech acts, such as rational discourse, storytelling, narrative, and even rhetoric can be admissible so long as deliberators continuously link their position to more general ideas and norms (a form of reciprocity).^{Footnote 61}

Deliberation goes beyond contestation. While the latter seeks to overturn power imbalances and provide a mechanism to hold rule-makers accountable, the former enables each dêmoi to write laws, regulations, and rules to help determine their common destiny. In other words, deliberation goes beyond editorship and enables affected individuals to participate in authoring the cooperative conditions of joint agency. As with contestation, affectedness is the key criterion for determining whether individuals and groups can participate in deliberation over the terms of common life. The boundaries of the dêmoi are also subject to reason-giving about the issue of inclusion. This endogenous mechanism is therefore helpful in legitimately determining the scope of the dêmoi.

International lawyers and IR scholars have long discussed the importance of deliberation and reason-giving to global affairs.^{Footnote 62} This work has demonstrated the explanatory and normative worth of deliberation as a way to reach agreement and shape international laws. As a value of democracy, laws and policy should be increasingly generated through inclusive and non-coercive deliberation between rule-makers and rule-takers. The more negotiations reflect authentic deliberation, the more democratic it is. As with contestation, though, we should not expect all affected individuals to deliberate on all matters all the time. Representatives of affected parties in civil society and international negotiations can uphold key aspects of deliberation which enhance the democratic legitimacy of international laws. It is most desirable that affected individuals (each dêmoi) jointly authorize shared rights and responsibilities, but we could also expect representatives to fulfil a similar function by engaging in inclusive and transparent reason-giving. These two values – contestation and authentic deliberation – should be taken together to provide a normative baseline for the democratization of world politics.

Contestation

IPR governance covers copyright, patent, and trademark law in the international system. This has historically been the privy of inter-state negotiations. After the Paris and Berne Conventions – both signed in the late nineteenth century – the United International Bureaux for the Protection of Intellectual Property (BIRPI) was established to administer and monitor those pivotal agreements. This body eventually morphed into the WIPO, and until the 1990s, maintained norm-setting primacy over IPR standards in the international system.^{Footnote 64} However, in the 1970s and 1980s the US government became progressively dissatisfied with the WIPO as a multilateral venue due to its role as a specialized agency of the UN and its internal governance (i.e. voting) structure. This caused the US to shift away from the WIPO and toward the Uruguay Round in an attempt to find a venue more susceptible to their domestic preference of high global IPR standards.^{Footnote 65} In 1994, when the General Agreement on Tariffs and Trade (GATT) was brought within the newly-formed WTO, a key condition of WTO accession was the trade-related aspect of intellectual property rights (TRIPS) agreement. TRIPS established a new set of minimal global IPR standards, and was given legal standing through the Dispute Settlement Body (DSB). TRIPS largely reflected the preferences of the US government and European Commission, and by extension, the domestic lobby groups in those countries. Since this time, global IPR has become increasingly politicized and legalized.^{Footnote 66}

The division between the WIPO and the WTO reflects a systemically-pluralist shape, in which neither body (nor any state) upholds final authority.^{Footnote 67} When common ground has been established between the WIPO and the WTO, it is on specific cases through interface norms, rather than designated by an overarching framework. As part of the TRIPS package, the WTO and the WIPO signed the 1995 Cooperation Agreement.^{Footnote 68} This short accord is composed of just five articles which describe functional and generic issues of cooperation. Although the WIPO and the WTO have agreed on some (harmonized) policies, there has been disagreement (fragmentation) on many others: access to health and medicine has seen recent convergence between the WIPO, the WTO, and the World Health Organization (WHO); open-source innovation has been pushed by the WIPO and largely rejected by the WTO.^{Footnote 69} These are examples of how interface norms vary from one institutional relationship to the next, even if many of the multilateral players remain the same.^{Footnote 70}

This diversity and heterarchy gives rise to competition between legal sub-orders. Under systemic pluralism both the WIPO and the WTO can form their own rules and norms. Because the WTO gained norm-setting supremacy when TRIPS came to pass, the WIPO has been amenable to changing its mandate to encompass and encourage new positions. The most notable example of this is the Development Agenda (DA), introduced by Brazil and Argentina in 2004, and supported by the ‘Friends of Development’ group. The recommendations of the DA – including technical capacity building, flexible rule-interpretation, and technology transfer – are designed to promote the interests and preferences of developing nations and indigenous communities.^{Footnote 71} While the WTO (through TRIPS) and the United States (through trade deals) continue to seek a mandate of IPR maximalism, the DA has enabled the WIPO to promote user rights, flexibility, and development.^{Footnote 72} Because only interface norms govern the WTO–WIPO relationship (and not firm constitutional bonds), the WIPO has been able to adapt their mandate in response to changing circumstances without global coordination.

The advent of the DA also shows the contestatory benefits of forum shopping. Developing states exploited the competition between the WIPO and the WTO to enhance their standing in global IPR governance. Acting as representatives of individuals affected by TRIPS, developing states and international NGOs deliberately regime shifted to the WIPO to stake their normative claim and build more amenable policy. Non-state actors – such as the Access to Knowledge (A2K) movement, Third World Network, and Electronic Frontier Foundation to name a few – were also able to join developing countries and use the WIPO to influence the DA recommendations and subsequent regulatory implementation.^{Footnote 73} Because developing states and their citizens are clearly affected by the one-size-fits-all standards of TRIPS, this representation of affected individuals in multilateral negotiations is a positive step.^{Footnote 74}

The mere introduction of the DA within the WIPO highlights successful contestation of hegemonic WTO rules. In this way, the lack of legal supremacy across global IPR regulation is crucial for effective contestation. The WIPO offered a way for actors to ‘partially exit’ the TRIPS regime, voice dissatisfaction in multilateral negotiations, and ‘edit’ global IPR rules through reinterpretation of appropriate standards. And there are also national benefits stemming from forum shopping. Developing states have used assistance from the WIPO to take advantage of flexibilities in TRIPS standards that might otherwise have been unavailable. This has led to enhanced consideration of how traditional knowledge and indigenous rights can be balanced against TRIPS. These changes have been rolled back in to national law by many states and employed to fight multinational corporations that seek high IPR standards across the globe.^{Footnote 75} This contestation represents a form of editorship in which developing states can amend their own rules in light of formal and informal guidance from transnational sites of public power.

Democratic contestation through forum shopping is not confined to the WTO–WIPO relationship. Indeed it is a trend perceptible across much of global IPR governance. As Lawrence Helfer has explicated, conditions of fragmentation enable actors to regime shift and pursue their interests in more amenable venues such as the WHO. The WHO has served as a place for NGOs and developing states to act as a catalyst and seek a ‘critical review of TRIPs’.^{Footnote 76} This led to a 1998 publication by the WHO which stressed how developing states could take advantage of TRIPS flexibilities on public health. Because the WHO was mandated with protecting public health and had permissive rules for non-state actor participation (especially compared to the WTO), this venue enhanced equality through contestation for various actors in global IPR governance when the WTO did not. This case also shows how affected parties (i.e. developing states and NGOs in this case) can edit parts of global IPR policy by changing WHO policy positions and seeking clarification over TRIPS flexibilities. In the absence of an overarching framework to settle jurisdictional battles or prescribe common norms, institutional competition and forum shopping offers weaker actors a chance to counter established power blocs as part of a broader strategy for democratic contestation.

Authentic deliberation

It is important, however, that systemic pluralism enables more than just contestation: it must also offer potential for authentic deliberation. After all, the shift from the WIPO to the GATT/WTO was a form of (coercive) contestation by the US against what they perceived as unfair regulation of global IPR governance.^{Footnote 77} Changes due to contestation should not simply be grounded in power, but should be linked to reason-giving and reciprocity. There are many examples from the WTO–WIPO relationship (and elsewhere in IPR multilateralism) which indicate how competition between institutions and forum shopping promotes deliberative quality. This section focuses on one key example from the WTO–WIPO arrangement: how regime shifting to the WIPO enabled new arguments to be generated and then diffused back to the WTO through issue linkages. This has helped developing states (re-)assert their position against stringent TRIPS rulings in a way that exhibits reciprocity and argumentation. Even though systemic pluralism demands fragmentation, we can still see reason-giving emerging across institutions without a constitutional or institutionally-pluralist structure. Interface norms therefore seem amenable to providing distance between sub-orders while also engendering a mode to transmit the ‘better argument’ across fora.

I look briefly at the recent WTO DSB case, US-Gambling (DS285).This dispute pitted Antigua and Barbuda (Antigua) against the US over cross-border supply of online gambling. Antigua claimed that US restrictions decimated their domestic remote-gambling industry.^{Footnote 78} The US domestic policies were adjudged by the DSB in 2007 to be in violation of the most-favoured nation (MFN) principle. As the DA has gained traction within the WIPO, the DSB and the TRIPS Council recognized the importance of development-oriented issues. In the Antigua gambling case, ‘development’ has been a common trope in arguments from the twin island nations. Antigua noted the 2003 argument from the US that TRIPS would create benefits because ‘cross-border services on trade could alleviate poverty and increase wealth in developing countries’.^{Footnote 79} The DSB explicitly recognized that raising tariffs or exercising trade sanctions – common methods of retaliation – would not help recoup losses, and would actually hurt the development of weaker (developing) states.^{Footnote 80} After negotiations failed in these cases, the DSB ruled in Antigua’s favour and activated Article 22.2 for the suspension of TRIPS.

Shifting from the WTO to the WIPO has provided developing states with an outlet to align preferences and generate clearer arguments to overturn power differentials. Developing states – with the assistance of international NGOs, and strategically employing the WIPO mandate – successfully constructed a powerful argument: that because developed states reached their level of economic and social growth without being subject to TRIPS-like rules, developing states should have the same opportunities. Interestingly, this claim has fed back in to the WTO DSB and the TRIPS Council. As a result, decisions have gone in favour of developing states in cross-border retaliation cases such as DS285. This exhibits authentic deliberation because developing states are unable to rely on power to enforce policy revisability, but must rely upon previously agreed standards and the ‘better argument’. This particular example shows a form of reciprocity in which developing states link their position to the history of developed states. It also exhibits generalizability in that developing states link their argument to previously agreed TRIPS rules that all states – developing and developed alike – have signed and ratified. As such, regime shifting to the WIPO provided a less coercive venue for developing states to forge new arguments, and interface norms between the WIPO and the WTO has allowed those arguments to hold weight in other venues without explicit legal ties.

Authentic deliberation appears in other ways across the systemically-pluralist terrain of IPR governance. Under TRIPS Article 67, developing states are eligible to take advantage of exceptions and receive technical assistance.^{Footnote 81} However immediately following TRIPS, the US attempted to undermine flexible interpretation of TRIPS by imposing bilateral ‘TRIPS-plus’ agreements. Over the past decade, though, this strategy has become less effective.^{Footnote 82} This is also due, in part, to the fact that other organizations – such as the WHO – have helped developing states and non-state actors interpret TRIPS flexibilities and mount new claims. For instance, as noted above, developing and least-developed states have obtained flexibilities in the areas of public health and access to medicine. The European Community, in the face of a growing HIV/AIDS crisis, has come to accept the importance of WHO in helping developing states make use of flexibilities in compulsory licensing regulations to increase access to patented medicine. Many scholars have characterized these changes as a major victory for weaker actors (developing states and NGOs).^{Footnote 83} In several ways, these deliberative victories result from actors shifting away from the WTO and toward the WIPO and the WHO. More precisely, forum shopping allows weaker actors to put new issues on the global agenda which has feedback in related venues through issue linkages and interface norms.^{Footnote 84}

Without a single hegemon in global IPR governance, the heterarchy between – and autonomy of – legal sub-orders also promotes deliberation.^{Footnote 85} As Dunoff rightly argues, the DSB’s failure to embrace a fundamental freedom to trade highlights the anti-constitutional nature of the WTO, and allows developing states a mode to deliberatively challenge established rules.^{Footnote 86} This is exemplified in the US–Antigua case in which the DSB allowed suspension of TRIPS standards for Antigua. Although systemic pluralism might not guarantee the clear and consistent rule-making that constitutionalists would like, the importance of providing adequate deliberation through forum shopping should not be underestimated. The examples here are just several from the horizontal realm of global IPR multilateralism.^{Footnote 87}As with contestation, it is plausible that state and non-states agents act as legitimate representatives of affected parties in negotiations. While this is not an ideal democratic situation, because states are often internally divided, it does reflect a general pattern across the global North and South that should be taken seriously.

Contestation

As the WIPO has shifted toward balancing development with IPR, and the WTO DSB rulings have begun to reflect the interests of developing states, developed nations have turned toward alternate venues to enhance IPR standards. Prodded along by the Motion Picture Association of America (MPAA) and other lobby groups, the US and EU have attempted to push back against their loss of authority in global IPR norm-setting. Along with the ongoing Trans-Pacific Partnership (TPP), the most tangible example is ACTA. Comprising the US, EU, Australia, Canada, Japan, Mexico, Morocco, New Zealand, Singapore, and South Korea,^{Footnote 90} negotiations began in 2004 and continued over the next seven years behind closed doors.^{Footnote 91} At its core, ACTA sought to establish ‘a new and higher benchmark for international intellectual property enforcement’.^{Footnote 92} This agreement is supposed to raise legal standards against piracy, reverse engineering, and counterfeiting of intellectual property. ACTA, therefore, represents another battle between the normative interests of developed and developing states in global IPR governance.^{Footnote 93}

Under conditions of systemic pluralism, where no institution has final authority, the construction of ACTA is unsurprising. As Daniel Drezner has noted, strong actors – with large resource endowments and technical capacity – can regime shift to their advantage.^{Footnote 94} In the case of ACTA, however, powerful actors have faced staunch resistance. The strongest reaction has been from diffuse publics (dêmoi) across the US, EU, and Oceania (Australia and New Zealand specifically). Most contestation was directed toward the lack of transparency offered throughout ACTA negotiations. A2K, Knowledge Ecology International (KEI), BoingBoing, and other NGOs have made public the exclusive nature of ACTA negotiations by leaking ACTA delegate emails and exposing minutes of secretive multilateral summits.^{Footnote 95} These revelations were followed by a high level of scrutiny from individuals, non-states actors, state officials, and even other IOs.

The EU offers the clearest example of contestation from affected individuals. Between late 2011 and early 2012, 22 EU member states and 9 other countries signed ACTA. And yet, despite seven years of negotiations and much momentum, ACTA collapsed in July 2012. Citizen groups began in 2009 to notice and contest the procedure under which ACTA was being negotiated.^{Footnote 96} The Foundation for a Free Information Infrastructure (FFII) filed a request to the EU Ombudsman for EU Council documents pertaining to ACTA but was denied. However, citizen groups stepped up their resistance. In February 2012, a series of anti-ACTA protests were organized. Hundreds of thousands of citizens from (amongst other states) the Czech Republic, France, Germany, Poland, the Netherlands, Switzerland, and the United Kingdom launched mass demonstrations against ACTA and its substantive policy implications.^{Footnote 97} At the same time Avaaz managed to collect nearly three million signatures in an online petition and many EU Parliamentarians recorded high levels of emails and letters on the subject of ACTA.

This intensity of contestation from affected individuals came as a surprise to major industries and multilateral negotiators. Even more surprisingly, though, was the rapid success of the movement. Countries such as Mexico withdrew from ACTA negotiations after initial revelations in 2010, and by June 2012 the Council of Ministers began to back away from ACTA. Finally in July 2012 the EU Parliament soundly rejected ACTA. Across many moments, individuals and citizen groups formed overlapping dêmoi with a clear anti-ACTA message and targeted specific opposition. This strategy managed to overcome strong industry pressure from bodies such as the International Chamber of Commerce, the Bundesverband der Deutschen Industrie, and film/music lobbyists.^{Footnote 98} This example highlights how individuals can collectively contest different layers of governance in a way that overturns seemingly overwhelming power differentials.^{Footnote 99} These dêmoi – which criss-crossed traditional national boundaries – managed to play an editorial function by initially demanding access to ACTA briefings and inclusion in the rule-making process. These groups then extended this editorial function to facilitate the rejection of ACTA through resistance and protests.

In several ways, then, the rugged and fragmented terrain of systemic pluralism opens avenues for democratic contestation over international legal standards. Again, this is partially due to institutional heterachy between sub-orders and forum shopping. In this case, individuals directed their message toward multiple sites of public power: local governments, interest groups, EU Parliamentarians, the Council of Ministers, the WIPO, and ACTA signatory states. For example, the Austrian group ‘STOPP ACTA’ was deliberately set up to contest the role of local and national Parliamentarians in passing ACTA.^{Footnote 100} La Quadrature du Net, in conjunction with well-known bodies such as Oxfam, confronted EU Parliamentarians with great effect.^{Footnote 101} Precisely because these bodies claim ultimate authority and only interact with other bodies through interface norms, each group can hold competing and differentiated normative positions. Individuals were able to constitute domestic and transnational dêmoi to exploit inconsistencies between positions to defeat ACTA. Using strong tactics – such as protests, petitions, email leaks, and internet blackouts – contestation played an effective editorial function to highlight the importance of user rights against business interests and IPR-maximalism. Because individuals could forum shop and direct attention toward varied sites of authority without a centralized hierarchy to determine rules, innovative strategies for contestatory democratization emerged and had a decisive impact in causing the defeat of ACTA and thus upon global IPR rules.

This effective form of contestation is not the only example from the systemically-pluralist world of IPR governance. The ‘Wellington Declaration’ in New Zealand was a successful case in which affected individuals demanded more ACTA transparency from their national government and opposed specific negotiation provisions.^{Footnote 102} Just as impressive for democratic contestation was the dual defeat in the US of House Bill 3261 – the Stop Online Piracy Act (SOPA) – and Senate Bill 968 – the Protect Intellectual Property Act (PIPA). These Bills, introduced in 2011, were designed to raise the bar of IPR maximalism beyond TRIPS to bolster IPR protection in US domestic law and their free-trade agreements. In this instance, a ‘transnational coalition of engineers, academics, hackers, technology companies, bloggers, consumers, activists, and Internet users’ defeated both Bills.^{Footnote 103} On 18 January 2012, this coalition – pushed along by individual entrepreneurs such as James Love (KEI), Jimmy Wales (Wikipedia), and the late Aaron Swartz (Reddit) – managed to orchestrate a 24-hour blackout of 15,000 websites in the US including Wikipedia, Mozilla, and Reddit. Google and Craigslist displayed censor bars against SOPA/PIPA and Google ran a petition which garnered seven million signatures demanding the US Congress reject SOPA and PIPA. Two days later the Bills were dead. These examples (and many more) show how affected individuals can contest forms of international law through different modes and institutional channels under systemic pluralism.

Authentic deliberation

It is important to go beyond contestation and examine whether reason-giving from affected individuals and their collective dêmoi were influential in authoring the policy positions which led to the collapse of ACTA. This section highlights several ways in which argumentation and reciprocity emerged and ties them back to institutional competition and forum shopping under systemic pluralism. This helps to show how individuals can build upon contestation to launch arguments under more equitable circumstances. This adds an important supplement to recent work done by Susan Sell who has noted how vertical forum-shifting has enabled powerful actors to ‘go granular’ and target individuals in their pursuit of ratcheting up global IPR. For instance, global corporations and IOs have (with varied success) pressured or sued patients, customers, activists, regulators, and civil servants in this pursuit. However, Sell also notes that ‘the causal arrows are bidirectional’ and that ‘bottom up innovation is beginning to have an impact on the system as a whole’.^{Footnote 104}

Although ACTA negotiations were kept secret for several years, it is worth noting that proponents were increasingly pressured to offer a discursive rationale for their treaty. ACTA advocates underpinned their policy position by arguing that weak IPR standards led to criminalization, piracy, poor global health standards, and trade losses. Because organized crime, fake medicine, and economic crises negatively affect many individuals, these arguments were employed by rule-makers to justify going beyond TRIPS and institutionalizing ACTA. Specifically ACTA signatory states noted that the proliferation of counterfeit goods ‘hinders sustainable economic development in both developed and developing countries and, in some cases, represents a health or safety risk to consumers’.^{Footnote 105} Because of arguments launched in the WIPO as part of the DA, these claims even represent a degree of reciprocity as the arguments were framed in terms acceptable to developing states.^{Footnote 106} Such justifications, largely offered in response to public demands, highlighted an initial connection between contestation and deliberative quality.^{Footnote 107}

Many of the claims launched by ACTA states, though, have been flatly rejected by developing countries. This is a marked shift from when the WTO commenced in 1995. At that time the US and other QUAD members [Canada, Japan, and the EU] were able to threaten isolation or sanctions if developing states refused to sign and ratify TRIPS standards. These threats were supported by the promise of Foreign Direct Investment (FDI) and technology transfer.^{Footnote 108} However, as Peter Yu rightly notes, after ‘more than 15 years of disillusionment in the TRIPS Agreement, many developing countries have begun to realize that the oft-presented carrots may be illusory’.^{Footnote 109} This emphasizes that the reason-giving offered by developed states has failed to accord with past experiences or alter the preferences of affected agents. The fact that ACTA states cannot coercively impose their preferences through power politics is a desirable feature of systemic pluralism. Without an overarching framework to guide interactions, domestic and international legal jurisdictions are able to determine their own legal norms. Although the counterfactual can never be proved, it seems likely that if TRIPS was the only institutional framework for IPR governance – as constitutionalists and institutional pluralists might demand – contestation and deliberative quality would be severely diminished.

Democratic deliberation can be seen in myriad other ways during the defeat of ACTA. I emphasize how affected individuals directed arguments at different levels of governance from the national to the global in an attempt to push back ACTA. Within the relatively uncoercive domain of civil society,^{Footnote 110} individual citizens clustered arguments around freedom of speech, the importance of net neutrality, the necessity of inclusive and transparent international negotiations, and many more. National Parliamentarians publicly accepted some of these arguments from affected individuals in their decision to reject ACTA. In particular, the Dutch government was very quick to respond to the argument that ACTA might ‘harm a free and open internet’.^{Footnote 111} In May of 2012, Dutch Parliamentarians voted to reject ACTA and not sign another similar agreement for fear of setting a long-term precedent. This sent a strong message to the EU Parliament that domestic and local governments would refuse to implement ACTA policy. Under conditions of systemic pluralism, different sub-orders can seek fragmentation to uphold these arguments without the legal or hierarchical pressures demanded by institutional pluralists and constitutionalists.

A similar national-level reaction occurred in many other EU states. The German Justice Minister, Sabine Leutheusser-Schnarrenberger, explained the German decision to reject ACTA as a result of how ‘many people there are in all of Europe that do not want ACTA’.^{Footnote 112} These decisions were surprising because, for seven years, these national governments had been involved in ACTA negotiations at the EU level. While contrasting positions were evident, these differences between ACTA states tended to be technical and detailed. However, this complete rejection suggests that domestic politicians changed their preferences in response to emerging arguments from protesting publics and civil society at large. Because different sub-orders of governance compete with one another under systemic conditions, affected individuals could use this competition to strategically develop their argument to suit different venues.

Similar preference transformations are also evident in the EU Parliament. In January 2012, in a foreshadowing example, Kader Arif – the EU Parliament rapporteur for ACTA – resigned due to the fact that ACTA had ‘no consultation of the civil society’ and a ‘lack of transparency since the beginning of negotiations’. Then in July 2012, after widespread protests, petitions, and the defeat of SOPA/PIPA, the EU Parliament recognized that ACTA had suffered from a dearth of transparency and inclusive reason-giving. This advice was clearly heeded and the EU Parliament, by a margin of 478–39 (165 abstentions), used powers granted at the Lisbon Treaty to block ACTA for fears of internet censorship.^{Footnote 113} Martin Schulz, President of the EU Parliament, noted ‘the existence of European public opinion that transcends national borders’ was the key explanatory factor behind the Parliament’s decision not to ratify ACTA.^{Footnote 114} This highlights the ability for overlapping dêmoi to emerge and build a strong argument which relatively quickly altered the preferences of EU rule-makers.

And the claims made by anti-ACTA citizen groups had transnational implications in the WTO and the WIPO. For instance, in February 2012, the Avaaz petition was gaining traction and the Greens/EFA group in the EU Parliament demanded that José Manuel Barroso explain why the Commission opted to send ACTA to the ECJ for legal review without public announcement. These groups argued that ACTA stifled internet freedom and data on counterfeiting and piracy costs were unreliable.^{Footnote 115} India explicitly drew upon these arguments crafted by EU citizen groups and EU Parliamentarians in a WTO debate about ACTA.^{Footnote 116} India cited concerns over internet freedom and digital goods when noting that ACTA is ‘likely to have a severe impact on the efforts towards literacy and access to knowledge and information that has been at the core of aspirations of the developing world’.^{Footnote 117} These arguments, as have become clear, were formulated and given legal strength by the WIPO DA.

In earlier concerns about ACTA transparency from a sub-section of the EU Parliament, Lamy – the WTO Director-General – argued that the WTO holds higher standards for transparency than ACTA had exhibited and reinforced the notion that ‘the TRIPS Agreement is the chief multilateral standard on measures for the enforcement of intellectual property’.^{Footnote 118} Similarly, the German Federal Minister for Economic Cooperation and Development drew upon the anti-ACTA petition signed by 60,000 German citizens to warn developing countries that they should not sign or recognize ACTA for fear of hampering access to medicine and seeds. These views filtered back to the WIPO. As noted by the WIPO Director-General Francis Gurry, the WIPO seeks to turn away from the ‘detrimental’ and ‘exclusive’ minilateralism of ACTA toward a more ‘inclusive’ and ‘balanced’ form of multilateralism.^{Footnote 119}

Overall, affected individuals have formed dêmoi and directed well-crafted arguments against different sub-orders of legal governance. Local-level politicians, national leaders, EU Parliamentarians, and international bureaucrats were all faced with contestatory pressure and reason-giving about the freedom of the internet, the lack of negotiating transparency, and issues facing developing states. Because each sub-order is autonomous and can claim its own authority, this opened channels for deliberation in novel ways. National Parliamentarians were presented with argument about liberal democratic rights and the freedom of the internet, and EU Parliamentarians were repeatedly told that they should be more concerned about the isolation of their institution during ACTA negotiations. The ability for individuals and collectives to direct arguments at different groups represents a type of forum shopping that, given the collapse of ACTA, highlights a strategy to obtain normative democratic values under systemic pluralism.