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.
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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)
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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
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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.
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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
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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
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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
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