1. UNIVERSITE LIBRE DE BRUXELLES
Faculty of Social and Political sciences
Department of Political Science
Normative influence of NGOs on regime complexes:
study of the interplay between intellectual property
and climate change
Presented by
Florian DEBÈVE
Under the supervision of Professors XIA Liping and Jean-Frédéric MORIN
In preparation to the degree of master in International Relations; orientation Globalization and
Public Policies
2013-2014
3. ii
Abstract
This thesis proposes an explanation for change within institutional complexes, which can be
defined as “networks of three or more international regimes that relate to a common subject
matter; exhibit overlapping membership; and generate substantive, normative, or operative
interactions recognized as potentially problematic whether or not they are managed
effectively”1
. Former researches have highlighted the role of path-dependency and power as
explanatory variable. Using the relationship between climate change and intellectual property
(IP), we propose a new alternative. Instead of considering the influence of institutional history
and power, we advocate a norms-based approach, by which the institutional outcome would
be a reflection of the distribution of norms within a regime. To test our hypothesis, we
decided to study the influence of norms through the power of norms-entrepreneurs, especially
NGOs. We argue that, regarding the specific case of the role of IP in the transfer of
environmentally sound technologies, the absence of governance of this issue, is due to a lack
of power of the NGOs supporting this design. Hence, we intend to establish a positive
relationship between the power of influence of NGOs – calculated through indicators of
material, cognitive, symbolic and organizational power – and the realization of their
influence, namely, the creation of an agency, the signature of a treaty, etc. We argue that the
more NGOs are powerful, the more norms they uphold are likely to be established, and the
more States are likely to be subject to the establishment of these norms. We believe that
norms lead negotiators, for example, to consider regimes as substantively or strategically
linked and consequently modify the institutional structure. By calculating the power of NGOs
– accredited to the United Nations Framework Convention on Climate Change – addressing
the challenges of IP in climate change, we demonstrate that they are relatively weak. Thus, it
according to our hypothesis, it explains why there is no linkage between the two regimes. It
strengthens the credibility of a norm-based approach of change within the regime complex of
climate. We finally conclude that previous researches, mainly rationalists, have wrongly
neglected the influence of norms on regime complexes and on the interplay between
international regimes.
1
Amandine Orsini, Jean-Frederic Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost
for Global Governance?,” Global Governance 19 (2013): 27–39.
4. iii
Acknowledgements
First of all, I would like to thank jointly the academic authorities of Université libre de
Bruxelles and Tongji University for offering me the possibility to write my master thesis in
Shanghai. This experience was extremely enriching. I am perfectly aware that I owe them for
that.
Personally, I should like to warmly thank Professor Jean-Frédéric Morin for his patience, his
unfailing availability and the value of his advices as well as for the professional reflections he
kindly shared with me. He played a great role and did much more than just supervise my
master thesis.
Then, I wish to thank the Dean of the Faculty of Political Science of Tongji University,
Professor Xia Liping, for the outstanding support he gave me all along my stay in China.
Similarly, I shall have some words for my friends, Thomas Coibion and Simon Gérard. I
render them many thanks for the questions and the thoughts that have animated our manifold
discussions during this marvelous year, which sometimes got me thinking for entire days.
They helped me far more than they could guess. Also, I would like to thank Claire Devillez
for her zealous proofreading and the naïve relevance of her criticisms, which definitely helped
me, I believe, to improve my text.
More practically, I want to thank Coline Cornélis who was responsible for officially handing
in my thesis in Belgium. Without her, given that sheets of paper do not have legs, my work
would never have found its proper recipient.
Finally, the most essential, the writing of a master thesis being supposed to represent the
culmination of my academic journey, I feel a need for thanking my mother, from the deepest
of my heart, for having allowed me to begin it one day.
7. 1
1 Chapter 1: Introduction and overview
1.1 Introduction
The access to environmentally sound technologies (ESTs), particularly in developing
countries, is a core element in strategies to fight the climate change. In this regard, the
importance of technology transfer has often been highlighted, including in the roadmap
produced at the Thirteenth Conference of the Parties (COP) in Bali. Indeed, we can read in the
“action plan” signed and presented in Bali that negotiators agreed to “enhance action on
technology development and transfer to support action on mitigation and adaptation”2
.
Since the Bali conference, the role of intellectual property rights (IPRs) has been subject to
more and more attention in discussions in the climate change forums. A debate is now
created, and different opinions have emerged on the positive or negative influence that
intellectual property (IP) may have on access to ESTs.
However, even if the question was raised, there is today neither body nor agency responsible
for governing the role of IP in strategies jugulating the climate change. Practically, since Bali
very little has been done. Little is said about the IP within the climate change regime and even
less about the climate change in the regime of IP. Although these regimes seem to be linked
de facto, there is no political linkage between them; the linkage does not result from a
conscious decision. In this case, although the necessary knowledge, identified by Ernst Haas,
needed to create a linkage between two international issues, is real, it does not appear to be
sufficient. Something is missing. Could it be the interest of the most powerful actors3
?
According to Haas again, an issue-linkage depends on the will of the most powerful actors
within a given issue. He says “a regime that links issues will come into existence only if the
‘outs’ somehow manage to persuade the ‘ins.’”4
This means that if the most powerful
countries (the ins) are not convinced by the others (the outs), the status quo remains and no
new issue-linkage could be expected.
2
International website of the UNFCCC, document available at
http://unfccc.int/files/meetings/cop_13/application/pdf/cp_bali_action.pdf, consulted on 30th
March 2014
3
Ernst Haas, “Why Collaborate?: Issue-Linkages and International Regimes,” World Politics 32, no. 3 (April
1980): 357–405.
4
Ibid.
8. 2
However, if we look at the example of the deforestation and the creation of United Nations
Forum on Forests (UNFF), we realize that the agreements were signed despite great
disagreements openly declared and apparently irreconcilable5
. Therefore, the agreement of the
most powerful players does not seem completely necessary for creating new linkages between
regimes. Something else must act.
In the context of our work, “issue-linkage” will be defined as a “form of strategic interaction”
with which an actor tries to cope with asymmetrical amount of power in different domains6
.
We suppose that actors have a strong bargaining power in negotiation about one issue, but
there is another domain in which they lack of resources or strength to achieve their goals. By
linking two issues, actors can use the bargaining power they have on their strong side, to
obtain a better trade off on the other side, where their resources are limited.
In the case of deforestation, some States, such as the United States, have clearly acted against
their will. They did not want any agreement but they happened to sign it anyway. Let us
compare this case to that of the role of IP in the climate change regime. Regarding our
definition of issue-linkage, some strategic reasoning could suggest that the most powerful
States in the IP regime would benefit from linking the two issues. Indeed, their position of
strength in one regime could offset their “culpable” status in the other. For example,
industrialized countries could hypothetically negotiate China’s entry in Annex 17
in exchange
for relaxation of IPRs concerning the ESTs.
Additionally, one could also consider that the nature by itself of the climate change should
push industrialized countries to support access to technology for developing countries.
Indeed, we believe that climate change is a “negative-sum game” in which one player’s gains
are lower than losses of all players combined. In other words, one wins to lose. The
governance of climate is characterized by the fact that one State cannot solve the problem on
its own, but can dramatically aggravate the situation. Alone, one cannot fix anything, but it
can worsen it. In this regard, it would seem to be in everyone’s interest to optimize the
influence exerted by the IP in the ESTs transfer by at least discussing it, whatever the
outcome.
5
Radoslav Dimitrov, “Hostage to Norms: States, Institutions and Global Forest Politics,” Global Environmental
Politics 5, no. 4 (2005): 1–24.
6
Arthur Stein, “The Politics of Linkage”, World Politics 33, no. 1 (1980): 62–81.
7
This category includes industrialized countries that should commit to quantified goal for reducing their
emissions (e.g. the Kyoto Protocol). This classification is an illustration of the principle of “differentiated
responsibility” on which is built the UNFCCC.
9. 3
Therefore, a question is worth to be asked. Why, in some cases, States act against their will
(creation of UNFF, e.g.), while, in other cases, they do not do what they should want to do?
To answer that question, a rationalist approach does not fit; we should enter the normative
world.
The argument of this text is that norms play a critical role in institutional changes, which
include issues-linkages, by reducing the range of possible choices for actors. In the specific
case of the interplay between IP and climate change, the interests of some States and scientific
knowledge are obviously not sufficient to create a linkage. We will see later that the
relationship between these issues remains at a functional level, which means that a regime has
de facto material consequences on the other. But issues-linkages are evidence of a shift to a
political level. How do we move from the first to the next one? We consider that a phase of
“awareness” is necessary, during which international norms take shape under the impetus of
norm-entrepreneurs to finally constrain the behavior of States.
In our text, we discuss the influence of norms on interplay between regimes. How do norms
create or transform the relationship between international regimes within broader complexes?
Research on norms in international relations can encounter some theoretical problems.
Indeed, a paper on norms can quickly become prisoners of circular reasoning; arguing that
norms guide the dominant behaviors and that these define the dominant norms. Of course,
positive feedback loops make norms relatively stable and fit them into the long term. But
norms are not exogenous material. It is precisely because they are socially produced and
reproduced that they can eventually be created, modified or reversed by the actors8
.
One method to avoid this chicken-or-the-egg-problem is to study the norms through their
promotion by norm-entrepreneurs. This approach provides the significant benefit to recognize
a degree of autonomy to the actors and allows a more linear causal demonstration9
. In this
regard, we decided to work on the influence exerted by non-governmental organizations
(NGOs), generally considered as the more significant entrepreneurs in the climate change
regime.
Here we intend to establish a positive relationship between the power of influence of NGOs,
calculated through indicators described later, and the realization of their influence, namely,
the creation of an agency, the signature of a treaty, etc. To do so, we will analyze the
8
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
9
Ibid.
10. 4
relationship between the power of NGOs promoting the discussion of the role of IP in the
climate change regime and possible evidence of linkage between the two issues. We argue
that the more NGOs are powerful, the more norms they uphold are likely to be established,
and the more States are likely to be subject to the establishment of these norms.
Hence our hypothesis is:
The more powerful are NGOs, the more they are likely to provoke institutional changes
(issue-linkages, e.g.) through the promotion of international norms.
In our specific case study, our hypothesis therefore leads us to think that the presumed lack of
linkage between the two regimes in question would be the result of the absence of NGOs
powerful enough to establish norms that would have pushed in this direction.
We believe that there are three advantages of our research. The first two advantages are
theoretical. Establishing a normative explanation of the change in international regimes and
institutional complexes, we believe that we offer the possibility to answer questions that
rationalist theories ignore or fail to resolve. For example, our approach could solve the
question of interests’ hierarchy. In other words, why are some interests more “important” than
others? Why, in general, do the decision-makers favor the present interests at the expense of
future interests? Additionally, all changes cannot be explained by modification in the
distribution of power? How could we explain the international condemnation of slavery or
child soldiers’ enrollment if not by using a normative approach? Our work, without obviously
innovate on the international role played by norms, helps to strengthen this current of thought
necessary to fully understand international changes.
Secondly, our work is also part of a stream in expansion in international relations studying the
influence of NGOs. But here, our goal is not so much to measure the influence. Our goal is to
analyze, deconstruct and present the how of this influence. By analyzing NGOs as norms-
entrepreneurs we go further than just noticing or measuring their influence. We propose to
understand them as a part of a bigger process. The nature of our work is not what some called
“theory-testing” but rather “theory-building”. We intend modestly here to create a new path to
study the normative influence of NGOs on the international relations. It is clear that the study
of a single practical case cannot confirm or deny, on its own, our hypothesis. Our goal here is
more about asking a question than answering it.
11. 5
The third interest is more social and can be deduced from the previous one. Indeed, we report
here that NGOs could influence the institutional structure of international regimes. If our
hypothesis could be tested and proved in a larger scale that would demonstrate the role that
civil society could and/or should play in international relations. Indeed, the formers are often
perceived as extremely complex and reserved for a handful of technocrats disconnected from
social reality. With this contribution we hope to strengthen the idea that the international civil
society could have a significant influence on the international scene.
1.2 Overview over the rest of the text
The Chapter 2 will be essentially devoted to the theoretical framework necessary to our
analysis as it provides a background for ordering the empirical material. In this section, we
will aim to reduce the complexity of the object studied by illuminating the specific
dimensions that we intend to examine. It will be in this chapter that we will identify the
different stages of our investigation; the indicators we will use and how the concepts
addressed are hinged together. We will mainly define the terms “international regimes”,
“regime complex”, “regime interplay”, “norms”, “norm-entrepreneurs” and we will
conceptualize the notion of power regarding NGOs. We will actually target to construct a
frame able to describe how, through norm-entrepreneurs, norms influence interplay between
international regimes within a regime complex. In this section we will also review the state of
the art concerning our central question; we will expose what has been written and we will
theoretically locate ourselves compared to these previous studies.
Chapter 3 is devoted to the presentation of the case study. First, we will offer the reader a
historical perspective of the relationship between climate change and IP. Then we will define
the institutions that, we believe, are composing the climate change regime, namely the United
Nations Framework Convention on Climate Change (UNFCCC) and the Kyoto Protocol. We
will proceed in the same way in the case of IP. For this regime we will refer to the World
Intellectual Property Organization (WIPO) and the Agreement on Trade-Related Aspects of
Intellectual Property Rights (WTO TRIPS). In both cases, we will try to analyze how a
regime addresses the other. Finally, we will conclude this chapter by the state of the debate on
climate change in IP. On the one hand, we will try to briefly but objectively define the real
12. 6
influence of IPRs on the transfer of ESTs. While, on the other hand, we will display the
arguments of each camp and describe their wishes.
In Chapter 4, we will present the method of empirical realization that we have chosen. Based
on our theoretical framework, we will elaborate several indicators regarding NGO’s
influence. We will explain in detail how we collected the data presented. Then, in Chapter 5,
we will present and discuss the results obtained. In this section, we will compare our case
study to that of deforestation in order to give the reader the necessary perspective for
understanding the figures presented.
Finally, in Chapter 6, we will return to the main lessons learned from our text. We will review
our central question, the hypothesis that guided our research and outline the approach that has
been pursued. We will also highlight the contribution of our work regarding our central
problematic. Then, our paper shall be located in the existing literary fields. Finally, we will
return to the limits of our analysis and how it could be improved or continued.
13. 7
2 Chapter 2: Theoretical framework
2.1 International regimes
International relations have always been developing in order to resolve some issues and
improve the situation in areas that could affect the interests of several countries (security,
trade, climate, etc.). After the Second World War, the governance of these international issues
became further structured and the relations between States got more complex. Many
institutions have been created and many meetings have been organized during which many
treaties were signed. In some cases, such as trade with the World Trade Organization (WTO),
the body governing a specific issue became more autonomous and acquired the power to
legally subject the Member States. The set of instruments put in place by States to govern a
given issue-area has been called “international regime”. Oran Young illustrated in 1980 the
magnitude taken by those new concepts by declaring that “we live in a world of international
regimes”10
.
In the early 80s, criticisms concerning the regime theory were manifold, the most classic of
them being often attributed to Susan Strange who, not without reason, pointed out the
vagueness surrounding the definition of the concept11
. This criticism could be still valid today
and the temptation to see regime everywhere around without being even able to precisely
determine their contours is obvious. The definition considered consensually classic and
around which revolve most of the works published on international regimes since the 80s is
the definition produced by Stephen Krasner. According to Krasner international regimes are:
implicit or explicit principles, norms, rules, and decision-making procedures around
which actors’ expectations converge in a given area of international relations.
Principles are beliefs of fact, causation, and rectitude. Norms are standards of behavior
defined in terms of rights and obligations. Rules are specific prescriptions for action.
Decision-making procedures are prevailing practices for making and implementing
collective choice12
.
10
Oran Young, “International Regimes: Problems of Concept Formation,” World Politics 32, no. 3 (1980): 331.
11
Susan Strange, “Cave! Hic Dragones: A Critique of Regime Analysis,” International Organization 36, no. 2
(1982): 479–96.
12
Stephen Krasner, International Regimes, Cornell University Press (Ithaca & London, 1983).
14. 8
Arthur Stein briefly summarized this definition by arguing that we are in the presence of an
international regime when the actors involved do not take their decision completely
independently13
. The actors involved in a regime are submitted and therefore influenced by
the structure of the regime, that is to say its norms (procedural and substantive), its principles
and its rules. For instance, members of the WTO must comply with the implicit rule of
consensus at a ministerial conference. Similarly, States attending a meeting of the Security
Council must submit to the power of veto of the five permanent members.
In the context of our work, we will use the distinction made by Krasner himself between the
terms “principles”/”norms” and “rules”/”procedure”. According to us, the firsts refers to the
essence of the regime while the latters are more related to its instruments. In other words, the
firsts prescribe or proscribe what one is supposed to do, while the latters define how to do it.
Later in the text, a whole part will be devoted to the conceptualization of norms and their
influence.
Regarding this definition, regime theory goes beyond the realist framework of anarchy to pay
more attention to the issue of cooperation between actors. This theory is therefore often
associated to the neoliberal institutionalism, whose major figures is Robert Keohane, which
postulates the necessity of the creation of institutions (such as international regimes) as a
means to reduce transaction costs. This conception greatly differs from the realist’s one
because it postulates that States willingly give up on a part of their autonomy. Indeed, once
created, these institutions have a structuring effect in particular on the definition of
stakeholders’ interests14
. According to this understanding, the pursuit of the interests of actors
depends on the leeway that gives them the regimes.
Robert Keohane has also developed, with Joseph Nye, a minimalist definition of regimes.
Illustrating the focus set by institutionalist neoliberals on the importance of the convergence
of expectations in order to reduce uncertainty they defined regimes as “institutions with
explicit rules, agreed upon by governments, that pertain to particular sets of issues in
international relations”15
. One of the things that we can immediately notice is that the
definition of Keohane refers to explicit rules whereas Krasner also covers implicit rules.
Norms, according to Keohane and Nye, provided that they are reflected in the texts do not
13
Arthur Stein, Why Nations Cooperates. Circumstances and Choice in International Relations, Cornell
University Press (Ithaca, 1990).
14
Robert Keohane, After Hegemony - Cooperation and Discord in the World Political Economy, Princeton
University Press (Princeton, 1984).
15
Robert Keohane and Joseph Nye, Power and Interdependence, 3rd edition (Longman, 2001).
15. 9
need to be internalized by the actors. Here, the notion of normative conformity is addressed in
terms of the costs that it would create from a reputational point of view, rather than regarding
the actors’ beliefs. In a nutshell, Keohane and Nye give more credit to the interest than to the
beliefs.
This fundamental difference involves different kind of analyzes of the role played by the
regimes. Through the literature devoted to the study of this phenomenon, we can spot several
distinct strands of analysis. Hasenclever et al., in Interests, Power, and Knowledge: The Study
of International Regimes, classified these approaches into three types each related to
institutionalism, realism and constructivism16
.
For realists, the explanatory variable is “power”. Cooperation is only possible in the presence
of a hegemon that imposes and bears the costs of such a system. Regimes are primarily seen
as a way to maximize its own interests. The international relations are submitted to an
anarchical organization. Here States are concerned by relative gains. They want to win more
than the others. Thus, this theory tends to consider regimes as epiphenomena and uses this
concept only to explain its creation17
.
For the liberals, especially the supporters of the institutionalist approach, as we saw earlier
with Keohane’s definition, actors cooperate insofar as it promotes their “interests”. Here,
States are looking for absolute gains in a completely selfish logic. A regime is no longer a
means to impose his vision but a less expensive solution to solve common problems.
According to the institutionalist current, cooperation discourages desertion from the regime
because of the increasing volume of interaction (interdependence18
); it also increases the
amount of information available and allows players to better anticipate the actions of others;
and it finally permits reducing transaction costs19
.
For cognitivists, or constructivists, knowledge is the core element of international regimes. In
this matter, they developed a criticism of the rationalists based on three liberal premises
derived from realistic approach denouncing three limits to their reasoning:
16
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
17
Ibid.
18
For further information in this matter, see Robert Keohane and Joseph Nye, Power and Interdependence, 3rd
edition (Longman, 2001).
19
Stéphane Paquin, La Nouvelle Economie Politique Internationale: Théories et Enjeux (Paris: Armand Collin,
2008).
16. 10
(1) its conception of States as rational actors whose identities, powers, and fundamental
interests are prior to society and its international institutions, (2) its basically static
approach to the study of international relations, all which is ill-equipped to account for
learning at the unit level and history at the system level, and (3) its positivist
methodology, all which impedes understanding of how international social norms
work.20
Theories based on the role of knowledge within the international regimes have focused on the
origins of interest, or rather on the perception of their interests by the actors21
. This theoretical
contribution can be considered, according to us, complementary to the liberal’s built around
the concept of interest. Indeed, by focusing on the creation of preferences and interests,
constructivists fill a theoretical gap created by the liberal understanding of the interests of
States as static and exogenous.
Our text stands between these two latter perspectives. We consider that norms and interest
have a role to play. We argue that the creation of a new regime or a new linkage takes two
steps, each explained by a different variable: norms are pushing States to create new
institutions or regimes while interests and capacity explain their substance. Here, we propose
to work on the first step: the origins of the expectations shared by the actors when creating
regimes or institutional change. Where did they come from? Peter Haas sets in three
assumptions the cognitivists’ position in this matter, which will be the ground of our
intellectual development.
The first hypothesis of cognitivists states that “between international structures and human
volition lies interpretation. Before choices involving cooperation can be made, circumstances
must be assessed and interests identified”. The interpretation itself depends on knowledge
(beliefs) that actors have at some point. We argue that these beliefs shape the social reality of
actors. Regarding this, the interests therefore cease to be independent variables to become the
dependent variables: function to the structure of actors’ beliefs.
20
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
21
In this regard, we would like to introduce a precision. In this text, we want to make the distinction between
knowledge and belief. Knowledge, e.g. scientific, is not sufficient to influence the perceptions of interests. This
knowledge must pass through a phase of “management” to become a normative belief. For example, it is not
enough that the IPCC produce a report proving the global warming to make political authorities sit around the
table. They must apprehend this discovery/knowledge to transform it into a normative belief. In other words, it is
not enough to see to believe.
17. 11
The second hypothesis can be deduced from the first one. It makes reference to the role
played by the meanings shared by the decision-makers before the creation of a regime
regarding given issues. Peter Haas, in Epistemic Communities and International Policy
Coordination, declares that “before States can agree on whether and how to deal collectively
with a specific problem, they must reach some consensus about the nature and scope of the
problem and also about the manner in which the problem relates to other concerns in the same
and additional issue-areas”22
. Quoting Ernst Haas, he specifies “interrelatedness may also
become interdependence in the sense that new scientific knowledge will create a consensual
basis for the recognition of new cause-effect links which had not been recognized before”23
.
The third assumption regards the growing need of decision-makers to obtain precise
information. To be completely rational, one has to calculate the costs and benefits of a choice.
But in a world increasingly complicated, decision-makers are often overwhelmed and forced
to call in some experts. They need reliable information to properly anticipate the full extent of
the consequences of their decisions24
. Doing so, they give an increasing power to private
actors. We will return to this third hypothesis when we deal with the cognitive power of
NGOs.
To conclude this part, we would like to remind that in our work, we refer to the Krasner’s
definition as it provides a greater leeway to social forces. In fact, we interpret the
“convergence of expectations” as an intersubjective agreement whose terms have arisen in the
context of a structure of meanings that agents put themselves up in constituting and
reconstituting the social world25
. According to Charles Taylor, quoted by J-F Thibault,
“intersubjective meaning give agents a common language to talk about social reality and a
common understanding of certain norms” 26
. We believe that without those norms,
“convergent expectations among independent actors in an international issue-area would be
impossible and cooperation would be doomed to failure”27
. We argue therefore that norms are
the core elements of an international regime. According to Kebabdjian, “if the rules and
procedures change while the principles and the norms remain the same, then one is forced to
22
Peter Haas, “Introduction: Epistemic Communities and International Policy Coordination,” International
Organization 46, no. 1 (Winter 1992): 1–35.
23
Ibid.
24
Ibid.
25
Alex MacLeod et al., Relations Internationales: Théories et Concepts, Athéna Editions (Quebec, 2008).
26
Ibid.
27
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
18. 12
argue that the regime has not changed since its fundamental philosophy28
remains the
same”29
.
2.2 The concepts of regime complex and regime interplay
2.2.1 Regime complex
Authors like Keohane, Krasner, Hasenclever and later Raustiala and Victor, have all written
about a proliferation of international institutions after the Second World War. Indeed, as and
when new problems arose (climate change, e.g.), the need for international institutions to
ensure governance has also increased. This has created an unprecedented complexity in the
policy process “as a growing array of national agencies, transnational organizations, and
experts become engaged in decision-making and implementation”30
. This new institutional
density brought new interactions or linkages between different institutions, creating what
Keohane and Nye have called “complex interdependence”31
. A whole part of the literature of
international relations is today dedicated to the study of these relations, which can take place
at any point in the process, to varying degrees and with positive or negative results32
. It can be
a simple exchange of information or an institution may request the expertise of another on a
given matter. Although open conflicts between inter-governmental organizations (IGOs) are
rare, some contradictions may withal occur. Authors such as Johnson and Urperlainen
mentioned the case of negative spillover33
, that is to say when the goals of a regime
negatively affect the goals in another regime, promote cooperation and foster the appearance
of new bodies and agencies. For instance, this would be the negative spillover between the
28
We would say here “its social reality”.
29
Gérard Kebabdjian, Les Théories de l’Economie Politique Internationale (Paris: Seuil, 1999).
30
Kal Raustiala and David Victor, “The Regime Complex for Plant Genetic Resources,” International
Organization 58, no. 2 (Spring 2004): 277–309.
31
Robert Keohane and Joseph Nye, Power and Interdependence, 3rd edition (Longman, 2001).
32
Axelrod, M. (2011) Savings Clauses and The “Chilling Effect”: Regime Interplay as Constraints on
International Governance. In Managing Institutional Complexity: Regime Interplay and Global Environmental
Change, edited by S Oberthür and OS Stokke, pp. 87-114. Cambridge, MA: MIT Press.
33
Tara Johnson and Johannes Urpelainen, “A Strategic Theory of Regime Integration and Separation,”
International Organization 66, no. 4 (October 2012): 645 – 677.
19. 13
WTO and the UNFCCC that led to the creation of the WTO’s Committee on Trade and
Environment.
Orsini, Morin and Young expressed the institutional density by saying that “the number of
new treaties has grown at an exponential rate and existing IGOs have crept into neighboring
issue areas, global governance has become denser. It is no longer possible to negotiate new
arrangements on a clear institutional table”34
. About the proliferation of institutions (regimes),
the variation of the membership in each35
and the multiplication of issues, Victor and
Raustiala stated: “these elemental regimes overlapping in scope, subject, and time; events in
one affect those in others”. They termed “the collective of these elements a regime complex:
an array of partially overlapping and nonhierarchical institutions governing a particular issue-
area”36
.
Other definitions, more refined, have been proposed to overcome the somehow general
definition of Raustiala and Victor. We will use, in this text, the one developed by Orsini et al.,
who have defined a regime complex as
a network of three or more international regimes that relate to a common subject
matter; exhibit overlapping membership; and generate substantive, normative, or
operative interactions recognized as potentially problematic whether or not they are
managed effectively37
.
The authors pointed out six key elements in this definition:
1. The constitutive elements of a regime complex are clearly identified as international
regimes. A regime may cover several institutions to the extent that they share the same
ideas and norms. As soon as normative conceptions differ between two institutions,
they are part of different regimes. Hence, a complex composed of several international
regimes displays ipso facto some degree of normative divergence.
2. A complex consists of at least three regimes. “The complex of the global food
security, for instance, includes the human rights, international trade, and agriculture
34
Amandine Orsini, Jean-Frederic Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost
for Global Governance?,” Global Governance 19 (2013): 27–39.
35
Robert Keohane and David Victor, “The Regime Complex for Climate change,” Perspectives on Politics 9,
no. 1 (March 2011): 7–23.
36
Kal Raustiala and David Victor, “The Regime Complex for Plant Genetic Resources,” International
Organization 58, no. 2 (Spring 2004): 277–309.
37
Amandine Orsini, Jean-Frederic Morin, and Oran Young, op. cit.
20. 14
regimes”38
. A complex is a network. Indeed, a complex composed of only two
regimes would be a bilateral relation and not a network, which means not a complex.
3. In their definition, the authors refer to a “subject” instead of an “issue-area”39
. As a
matter of fact, one could legitimately wonder how an “issue-area” could define the
boundary of a complex when it is already one of the constituent elements of the
definition of regimes? The authors circumvent this semantic difficulty by using the
terms “common subject”. They add that when Raustiala and Victor talk about issue-
area, they actually refer to a subject. “This implies that elemental regimes overlap only
partially and may play a role in different regime complexes”40
.
4. This new definition introduces the fact that the membership of each regime can be
partially overlapping but rarely fully. This is definitely an element that creates
complexity. Indeed, if the members of each institution were identical, then we would
find ourselves in the case of an international regime, not a regime complex. As a
reminder, a complex demonstrated a certain degree of divergence and tends to
generate problematic interactions.
5. The fifth point specifies a set of at least three regimes is not necessarily a complex.
According to Raustiala and Victor, institutions have to overlap somehow to form a
complex. But the extent of such overlapping is never defined. Here, the authors
challenge the idea that all components of a regime complex must be connected.
According to them, it is sufficient to interact with at least one regime part of a
complex to be part of it as well. Here, the concept of interaction replaces the idea of a
set of institutions distributed non-hierarchically in the definition of Raustiala and
Victor. Indeed, it seems clear that the relationships between the elements of a complex
are not hierarchical. Otherwise, their interaction would not be problematic and
therefore would not form a regime complex.
6. The authors introduce the notion of intersubjectivity by using the term “recognize” in
their definition. According to them, regime complexes are not “abstract tools that
analysts create to conceptualize world politics”41
. They pertain to the daily reality of
policy-makers. “What creates a regime complex is not the subject itself or the related
38
Amandine Orsini, Jean-Frederic Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost
for Global Governance?,” Global Governance 19 (2013): 27–39.The authors invite to see Matias Margulis in
this issue.
39
The authors refer to the Keohane’s definition of issue-area: “sets of issues that are dealt with in common
negotiations and by the same, or closely coordinated, bureaucracies.” See Keohane, After Hegemony -
Cooperation and Discord in the World Political Economy.
40
Amandine Orsini, Jean-Frederic Morin, and Oran Young, op. cit.
41
Ibid.
21. 15
rules and their impacts, but the perceptions of actors regarding these matters”42
. In our
work, we will consider that “perceptions draw the boundaries of the complex,
indicating which regimes are recognized—or not—as elements of a complex”43
.
We decided to work on the basis of this definition because it introduces the notion of
intersubjectivity, essential for our analysis of the normative influence of NGOs on relations
between regimes. Now that we have defined our understanding of international regimes and
regime complex as well as clarified each of the elements constituting our definitions, it is time
to conceptualize the interplay between regimes within these complexes.
2.2.2 Regime interplay
A whole section of students of international relations became interested in the study of these
interactions, which attempts to explain why and how the pursuit of goals in a regime could
affect the objectives in another. Authors like Young, Gehring and Oberthür44
, on the specific
instance of the climate change, explained that this particular regime could create complex
linkages with other regimes and the resulting interactions could have notable consequences.
Some argue that these institutional interactions had a significant impact on the effectiveness
of an organization and can even threaten its survival. The theoretical framework for the study
of institutional interplay is still under development but there are already some major works
that can be displayed.
Rosendal, for example, has focused on the causes of regimes interplay45
. She pointed out
norms as key factors. She said, in fact, that norms in the case of overlap determine the type of
interactions – positive or negative – between the regimes involved, depending on whether
norms are convergent or divergent.
42
Amandine Orsini, Jean-Frederic Morin, and Oran Young, “Regime Complexes: A Buzz, a Boom, or a Boost
for Global Governance?,” Global Governance 19 (2013): 27–39.
43
Ibid.
44
Thomas Gehring and Sebastian Oberthür, “Institutional Interaction in Global Environmental Governance: The
Case of the Cartagena Protocol and the World Trade Organization,” Global Environmental Politics 6, no. 2
(2006): 1–31.
45
Kristin Rosendal, “Impacts of Overlapping International Regimes: The Case of Biodiversity,” Global
Governance 7, no. 1 (2001): 23.
22. 16
Gehring and Oberthür identified two major types of interactions between regimes: synergetic
or conflicting46
. The effects of an interaction are synergetic if it reinforces the objectives in
each regime, and conflicting if, on the contrary, it obstructs the pursuits of goals in a regime.
The authors elaborated their thoughts by adding that interplay tend to be synergetic when
memberships are more or less the same, while conflicts arise tendentiously more in the
presence of disparate memberships.
Membership’s composition has not been the only variable studied. Regine Andersen worked
on the influence of time on the interplays47
. This author stresses as well, among other things,
the role of norms. She considers, in fact, that regimes in a more advanced phase of
development have built a more entrenched normative reality. Therefore, when a regime
appears or attempts to appear in a given issue-area, it operates in an already normatively built
environment. The relationship between these two regimes will be therefore influenced by the
convergence or divergence of new regime’s norms with the norms of the pre-existing one.
Regarding the case of IP, policies pursued by the UNFCCC in this matter are submitted to the
anterior international legislations such as, for example, the Convention for the Protection of
Industrial Property.
Several taxonomies of interplays have been proposed. Young, for example, has developed a
distinction between embeddedness (relationships to overarching principles and practices),
nestedness (relationship to functionally or geographically broader regimes), clustering
(strategic and deliberate combination of several regimes), and overlaps (unintentional
influences). The relationship between IP and climate change we are studying stands in the
latter case. Young is also the author of a distinction between functional interplay and political
interplay. That is to say basically that, on the one hand, two regimes are functionally linked if
the operations in the first regime influence the efficiency of operations in the second one.
Whereas, on the other hand, they are politically linked if the actors involved in the regimes
decide to treat issues in a broader context but normatively consistent (issue-linkage, e.g.).
According to us, a functional interplay could lead to a political one through a phase of
awareness or knowledge management. That is to say, when scientific knowledge become a
normative belief and start to shape the social reality, which hence creates political possibility.
46
Thomas Gehring and Sebastian Oberthür, loc. cit.
47
Regine Andersen, “The Time Dimension in International Regime Interplay,” Global Environmental Politics 2,
no. 3 (August 2002): 98–117.
23. 17
Stokke has developed another taxonomy composed by three categories non-exclusive from
each other: utilitarian, normative and ideational. A utilitarian interplay would be exemplified
by “a case where rules or programs that are undertaken within one regime alter the costs or
benefits of behavioral options addressed by another regime”48
. For example, measures taken
in the fight against the hole in the ozone layer unfortunately provoked a substitution of
targeted products by substances fostering the emission of greenhouse gases. This is an
instance of disruptive relationship. A utilitarian interplay can also be supportive. In the case
of the relationship between intellectual property and climate change, the question of the
influence of one on the other is difficult to determine. Indeed, generally summarized, if you
are from the North or the South, you will find respectively that IP has a positive or negative
effect on the climate change regime. Northern countries arguing that patents favor the transfer
of technology and the southern countries defending the opposite idea.
Furthermore, Stokke speaks about normative interplay when “an international regime
confirms or contradicts the norms upheld by another institution and thus affect its normative
compellence”49
. This type of interaction may be voluntary or may be the result of mutual
ignorance. Indeed, it is difficult to believe that the agents of the intellectual property regime,
for example, set their norms in order to hinder the fight against climate change.
The third type of regime interaction, ideational interplay, involves a cognitive process of
learning. According to Stokke,
one regime can support the effectiveness of another by drawing political attention to the
problems that are addressed by the recipient regime. Ideational interplay may also
refer to instances where the tributary regime provides solutions of various sorts that are
emulated or adapted for problem-solving purposes under the recipient regime50
.
In the specific case of our study of the relationship between climate change and IP, we will
focus on the fact that the interplay seems to be merely functional so far. However, as we said,
we believe that to govern this issue, it should move to a political interplay. According to us,
this change requires awareness and recognition within these two regimes. We consider that, to
do so, scientific knowledge should take the form of social reality. In the next section, we look
at how change can be explained among regime complexes.
48
Olav Schram Stokke, The Interplay of International Regimes: Putting Effectiveness Theory to Work (The
Fridtjof Nansen Institute, 2001).
49
Ibid.
50
Ibid.
24. 18
2.3 How to explain the change within institutional complexes?
Are institutional complexes static? Certainly not, on the contrary, they can be considered
rather dynamic. Indeed, the complexes are constantly subject to revisions in existing rules,
addition of new rules, new treaties, new linkages, etc. In others words, complexes are under
constant institutional and substantive evolution. How can we explain these changes? Several
approaches have been used to answer this question. The two best known are the “path-
dependency” and “power-driven change”. These two approaches are considered in
international relations as rationalists. As opposed to what Keohane once called the
“reflectivist” theses, which give more importance to intersubjective norms than to actors’
rationality. After briefly introducing these two theoretical currents, we will present an
approach that we call “norms-driven change”, which intends to build a bridge between
rationalists and reflectivsts. In fact, we recognize the rationality of actors, but subject to a
normative structure. We believe that norms affect the field of possible choices for the actors
by defining their interests. Knowing it, actors will then take a rational decision based on a
costs/benefits evaluation.
2.3.1 Path-dependency
The path-dependency is a phenomenon used by the historical institutionalism to explain
foreign policy. It is, in fact, the constraint of past decisions on future choices. In other words,
if an actor engages himself in a given direction, it will be difficult for him to turn back and
start in a different way, even if it is figured out that the path initially chosen is not the most
optimal51
.
This phenomenon is called incrementalist, that is to say that it increases with time52
. Imagine
a farmer’s cart making everyday the same trip on a dirt road. Deeper are the furrows dug by
the wheels of the cart, harder it will be for the farmer to change his direction. Like this farmer,
51
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
52
Dionyssys Dimitrakopoulos, “Incrementalism and Path Dependence: European Integration and Institutional
Change in National Parliaments.,” JCMS: Journal of Common Market Studies 39, no. 3 (2001): 405–22.
25. 19
political leaders are sometimes asked to make some decisions that involuntarily committed
their countries in a sub-optimal direction. They are based on their consideration of the time
and the context in which they proceed. They do not necessarily anticipate the consequences
on future choices. The path-dependency is, for instance, particularly striking in the economic
field 53
. Indeed, the choice of a trade policy favors necessarily certain players and
disadvantages others. Longer this policy is maintained, the more it consolidates the
beneficiaries’ position and therefore the more it increases their influence, which leads
decision-makers to conserve this policy. The path-dependency does not mean that all
bifurcations are impossible, but just more difficult with time going. Major changes in foreign
policy are often the result of a crisis such as the fall of a political elite or a major economic
crisis54
.
Within an institutional complex, the path-dependency therefore does not mean that change is
impossible, but that decisions taken in the past determine the future trajectory of the complex.
States are left a limited leeway for shaping the complex. Their designs are constrained by the
institutional structure. This means that the complex is not developed randomly and that the
path it espouses does not necessarily correspond to the interests of the actors who created it.
One of the major arguments of the proponents of the historical institutionalist theory is the
role played by positive feedback. When an institution receives positive feedback, it tends to
specialize. Once it is specialized on a given issue-area, it has comparative costs compared to
other institutions. Therefore, actors who would like to go against this trend towards
specialization should incur certain costs. In a nutshell, it is the institution itself that manages
the field of possible choices for the actors.
2.3.2 Power-driven change
While the path-dependent argument suggests that the leeway of actors willing to create
change within an international regime (or complex) is limited by the institutional structure,
the exponents of the power-driven theory defend the opposite. They argue that the interests of
the most powerful actors within a given issue-area shape the regime’s (or complex)
institutional structure.
53
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
54
Ibid.
26. 20
According to the interest-oriented approach, the creation of a regime is the result of a situation
in which States become aware of a common problem and decide to cooperate in order to
improve their chances to solve this problem. This situation is often referred to as the
“Prisoner’s Dilemma”55
.
Figure 1 Prisoner’s Dilemma
The problem called the “Prisoner’s Dilemma” is characterized by the presence of only one
optimum (what players have collective interest to do: quiet), which does not correspond to the
equilibrium (what players have a personal interest to do: fink)56
. Unlike the “Battle of the
Sexes”, that we will explain later, both players have a common interest here, rather than a
common aversion. This optimum is however unstable since actors’ rationality incents them to
fink, pushing themselves in the situation described at the bottom right of the Figure 1: the
equilibrium.
This would be the problem if two criminals suspected of having committed a burglary were
interviewed separately. Testifying against their accomplice, they can expect to benefit from a
reduction of sentence, unless the accomplice also testifies against them. Therefore, the
optimal situation is the one in which they remain solidary to each other so that the authorities
have no evidence against them. Nevertheless, since each does not know how the other will
respond, they may still denounce each other anyway57
.
According to the liberals, to move from equilibrium to an optimal situation, the players
caught in such a dilemma should work together and not just coordinate. It is not enough that
55
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
56
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
57
Ibid.
Player 1
Player 2
Quiet Fink
Quiet 2,2 0,3
Fink 3,0 1,1
27. 21
they agree in advance on how to behave because, when making their decision, they will still
have a strong incentive to betray their commitment expecting further gains58
.
To overcome this incentive, both players must establish a relationship of trust. A possible way
to achieve it could be the repetition of several interactions. This repetition allows both players
to draw information from the past and create an incentive for cooperation by providing a
common future perspective59
. To further enhance the level of trust between the actors, they
can create monitoring mechanisms and sanctions, as it is the case, for example, in the WTO
with the Dispute Settlement Body.
However, according to Stephen Krasner, this conception of the formation of a regime
proposes a misleading picture of the reality. In addition, this design tends to consider that all
players have convergent interests and it does not explain the change within a preexisting
institution. Krasner says that the situation we should refer to is not the Prisoner’s Dilemma,
but rather the Battle of the Sexes60
. According Hasenclever, this
Battle of the Sexes, a coordination game that has been analyzed by situation-
structuralists as well, has two Pareto-efficient equilibria representing the possible
cooperative outcomes of the game. Unlike players in pure coordination games,
however, players in Battle of the Sexes have conflicting preferences for these two
outcomes. For example, two people want to spend the evening together rather than
alone, but they disagree on what to do (attend the theater or go dancing)61
.
Figure 2 Battle of the Sexes
58
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
59
Ibid.
60
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
61
Ibid.
Player 1
Player 2
Theater Dancing
Theater 2,1 0,0
Dancing 0,0 1,2
28. 22
According to Krasner, it often happens that States have an unambiguous preference for
avoiding some “common aversion” by coordinating their activities, but they clash over the
different possible ways to do so.
In international relations, this happens in many negotiations on the establishment of rules and
standards. For example, francophone countries would probably prefer French as the official
language of the International Civil Aviation, while Hispanic countries might prefer Spanish.
But, above all, every country want pilots and control towers to share a common language,
even if it is not their national language. So once a decision is made, the dominant strategy will
be maintained even if it does not lead to the most favorable result for one of the actors62
.
In this kind of situation, the real question to ask, according to Krasner, is “who gets what?”63
.
The creation of an institution always gives rise to more or less ferocious negotiations about its
content (French or Spanish, e.g.). Krasner calls this phase of negotiations the “distributional
conflict” and argues that the only winning way out is to assert his power64
. A strong State can
use the promises and threats to manipulate the preferences of others. Thus, power can be used
to dictate the rules of the game within a regime. Therefore, according to Krasner, the only
equilibrium possible and sustainable in a regime is the one that favors the most powerful
actor(s)65
. So, the power-driven approach leaves little room for the influence of institutions,
preferring to analyze the institutional outcomes in terms of interest and capacity.
However, this does not mean that regimes are useless. Instead, they are a way for States to
avoid uncoordinated stalemate and stabilize the governance of certain issues. In other words,
regimes could be the instruments of power between the interests of powerful actor(s) in a
given issue-area and the results of the governance of this very same issue-area. In sum, the
structure of regime would be the reflection of the distribution of power regarding the subjects
it governs.
Regarding this assumption, the dynamic of change in a regime can be explained by the
evolution in the distribution of power. A regime that would stop being in line with the State(s)
having essential resources in an issue-area would no longer have raison d’être.
62
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
63
Andreas Hasenclever, Peter Mayer, and Volker Rittberger, “Interests, Power, Knowledge: The Study of
International Regimes,” Mershon International Studies Review 40, no. 2 (October 1996): 177–228.
64
Ibid.
65
Ibid.
29. 23
2.3.3 Norms-driven change
To summarize what has been said, we would like to draw your attention to Figure 3 and
Figure 4. The first recaps the historical institutional approach. Achieving stakeholder’s
interests is function to the institutional constraints. That is to say that an actor, no matter how
powerful he is, wanting to accommodate the institutional structure to its interests thus has
limited room for maneuvering. Past decisions determine most of the path followed by a
regime.
Figure 3 Path-dependence as an explanatory variable of institutional change
The fourth figure outlines the reasoning of the exponents of the power-driven theory.
Stakeholders’ interests are not, this time, depending on the institutional structure, but rather
on the power of the actors. Power is understood here as a means, a capacity. The more
powerful is an actor within an issue-area, the more he will be free to pursue his interests and
modify, if necessary, the institutional structure. The relationship between the regime and the
actor is quite reversed. In the first case, the regime influences actors’ foreign policy by
limiting their possible choices, while, in the second instance, the regime is influenced by the
political decisions of the most powerful actor(s). In the first case, we can then say that the
regime is contextual information, whereas in the second one, it can be a means for pursuing
one’s interests.
Figure 4 Power as an explanatory variable of institutional change
Interests! PathAdependence!
Institutional!
change!
Interests! Power!
Institutional!
change!
30. 24
These two approaches are supposed to explain the change in regime. But from our point of
view, they fail to explain certain kinds of change, or the substance of change. How to explain
the reversal of the international community regarding the slavery? How to explain the priority
given to certain interests at the expense of others? Why, for instance, are the climate change
negotiations complicated by economic considerations while ultimately, according to IPCC
reports, everyone is in the same boat? Everyone will suffer, to a more or less long term, the
impacts of the climate change. Nowadays, climate science states that everyone has the same
final interest. However, negotiators continue to give priority to present interests by
mortgaging their future. Why? Why did States agree on the creation of the UNFF, in spite of
the refusal of major actors? The two theories presented above are not able to formulate a
convincing answer to these interrogations.
We think that to answer these questions, we must enter the world of ideas and norms. We
should no longer be interested in how interests are achieved, but how they are shaped. The
argument of this paper is that the norms are the basis of the stakeholders’ interests. They are
perceptions of reality. Figure 5 shows the causal relationships that we believe to be the basis
for institutional change. We acknowledge the power relations within a regime. States are not
all equal; power is a key means for achieving its interests. But, we consider that power is not
all about economic and military resources: there is also a normative form of power, which is
not only the prerogative of States. It exists within an issue-area what Finnemore and Sikkink
have called “norm-entrepreneurs”66
. We will return later to the definition of this concept. We
differentiate from power-driven theory because we consider that the influence of material
power should be taken into account in the second place. The most critical form of power
regarding the explanation of the change lies in the phase of creation of interest. In the
following chapters, we will define the concepts of norms and norm-entrepreneurs and explain
their influence in international relations.
66
Martha Finnemore and Kathryn Sikkink, “International Norms Dynamics and Political Change,” International
Organization 52, no. 4 (Autumn 1998): 887–917.
31. 25
Figure 5 Norms as an explanatory variable of institutional change
2.4 Norms, norm-entrepreneurs and organizational platforms
2.4.1 Norms as a variable explanatory
The concept of norms can be defined differently depending on the theoretical approach that
one wants to use. Indeed, a norm can be considered as a rule, a principle, a value, or as an
expectation regarding a behavior67
. The role of norms has always been a part of the study of
international politics, as Finnemore and Sikkink reminded us, at the first line of their famous
article International Norms Dynamics and Political Change68
.
The concept of norm is a key element in the definition that Krasner provided for international
regimes. In this context, a norm means a type of standardized behavior and takes a meaning
close to “implicit rule”69
. Indeed, the “regime approach” puts more emphasis on the structural
dimension of regimes, rather than on the normative aspect. In other words, according to
students of regimes, norms are mostly procedural; that is to say, they see them as tools to
regulate States’ behavior to reduce the uncertainty inherent in a cooperation process70
.
According to a rationalist perspective, States adopt the behavior expected in a given situation
without necessarily believe in its virtue. They conform simply because they desire to avoid
reputational costs, to maintain the trust of their partners or to reduce pressure by social
movements. The norms are then perceived as contextual information, which States consider
67
Alex MacLeod et al., Relations Internationales: Théories et Concepts, Athéna Editions (Quebec, 2008).
68
Martha Finnemore and Kathryn Sikkink, “International Norms Dynamics and Political Change,” International
Organization 52, no. 4 (Autumn 1998): 887–917.
69
Stephen Krasner, International Regimes, Cornell University Press (Ithaca & London, 1983).
70
Robert Keohane, After Hegemony - Cooperation and Discord in the World Political Economy, Princeton
University Press (Princeton, 1984).
Norms! Interests! Power!
Institutional!
change!
32. 26
when anticipating the consequences of their behavior, and try to identify the option that would
maximize their interest71
.
For other authors, the concept of norm has rather the sense of value or principle. The
definition by the theoreticians of constructivism presents the notions of legitimacy within a
community united by a share of common norms72
. According to a constructivist perspective,
States are complying with norms because they perceive them as fair, legitimate or natural.
They conform regardless of external pressures or perceptions (reputational costs). In this
second scenario, like in the first, norms restrict the field of possible choices and help define
what States consider their interests73
. But here the notion of appropriateness appears. The
norms define the border between conformity and deviance. Finnemore and Sikkink, according
to the generally accepted definition, consider a norm as a standard of appropriate behavior for
actors with a given identity”74
.
We consider in this paper norms as expectations socially shared by a community
(international regime, e.g.) about acceptable behavior for a given identity75
. For example, an
international norm prohibits the use of slavery. Beyond legal texts, it is a practice condemned
by the international community because it is today perceived as “abnormal”. In other words,
norms act as prescriptions or proscriptions of behavior, like legal rules76
.
James Fearon argues that social norms take the generic form “good people do (or do
not do) X in situation A, B, C…” because “we typically do not consider a rule of
conduct to be a social norm unless a shared moral assessment is attached to its
observance or non-observance”77
.
The concept of norms since the mid-80s is mainly used in the context of two theoretical
schools: the study of international regimes and the constructivist approach78
.
We can basically summarize this theoretical distinction between the regime approach and the
constructivist approach by saying that the former considers norms as regulative, which order
71
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
72
Alex MacLeod et al., Relations Internationales: Théories et Concepts, Athéna Editions (Quebec, 2008).
73
Morin, op. cit.
74
Alex MacLeod et al., op. cit.
75
Morin, op. cit.
76
Ibid.
77
Martha Finnemore and Kathryn Sikkink, “International Norms Dynamics and Political Change,” International
Organization 52, no. 4 (Autumn 1998): 887–917.
78
Alex MacLeod et al., op. cit.
33. 27
and constraint behavior79
, and the latter considers norms as constitutive; that is to say that
create new actors, interests and possibilities80
. Indeed, norms, according to constructivist, are
involved in determining the identity and the national interest, which then influence the
behavior of actors81
.
We think, however, that this distinction between rational and constructivist compliance
should not be overestimated. On the one hand, theoretically, the two forms of compliance are
not mutually exclusive. Indeed, initially motivated by the will to avoid reputational costs,
compliance can gradually lead to a genuine internalization. Moreover, methodologically, it
may be difficult to determine if a player has truly internalized norm or if it complies as to
preserve its reputation82
.
That is why, from our point of view, it is possible to construct a third path that would allow to
explain the change within an international regime by the constitutive power of norms. We
surpass this theoretical distinction to develop an analysis of regimes that would accept a
constructivist vision of norms. Briefly, my argument is to consider norms as regulating the
behavior of States in limiting or creating the field of possible choices, no matter if States
follow the norms by belief or strategy. The structure of an international regime would
therefore be defined by the distribution of norms, which decide whether – or not – a behavior
is possible/appropriate. Given this assumption, norms would explain the change (issue-
linkage, e.g.) within international regimes. Actually, we deeply believe that the management
of “commons” (climate, e.g.) cannot be fully explained or understood by a rationalist
approach. Indeed, in our opinion, what Garrett Hardin called “the Tragedy of Commons” does
not apparent to a zero-sum game or a win-win situation, but rather to a negative-sum game
where one’s personal gains are lower than everyone’s collective losses. Hence, it would not
be rational to try to maximize the personal gains, to the extent that it would be like sawing off
the branch on which we sit.
79
Finnemore and Sikkink, loc. cit.
80
Ibid.
81
Alexander Wendt, “Collective Identity Formation and the International State,” The American Political Science
Review 88, no. 2 (1994): 384–96.
82
Jean-Frederic Morin, La Politique Etrangère: Théories, Méthodes et Références, Armand Colin (Paris, 2013).
34. 28
2.4.2 Norm-entrepreneurs as international actors
To properly understand the process through which norms exert their influence, it is important
to shed light on what may be called the life cycle of norms. Generally, mostly based on the
work of Finnemore and Sikkink, we consider that there are three phases: the emergence, the
transmission, and the absorption by the actors, also called internalization83
. Because it would
be too ambitious to study the complete life cycle, we will particularly focus on the first one.
According to theoretical accounts published so far, two elements are essential to create a
norm: norm-entrepreneurs and organizational platforms from which they act84
.
Norms do not come out of the blue. According to Finnemore and Sikkink, “they are actively
built by agents having notions about appropriate or desirable behavior in their community”85
.
They added “norm-entrepreneurs are critical for norm emergence because they call attention
to issues or even “create” issues by using language that names, interprets, and dramatizes
them”86
. In political science, we call this phenomenon “issue-framing”. The creation of this
new cognitive frame is an important part of the promoting strategy because if it succeeds the
terms created by the entrepreneurs will echo within a wider audience. They shall influence
how the issues will be understood and addressed in the future87
.
Finnemore and Sikkink also conceptualized the notion of organizational platform through
which promoters defend their norms. In the case of our study, the type of platform that we
will be interested in is NGOs. According to these two authors, one of the major strengths of
organizations and a major source of influence is their use of the expertise and information88
.
They can support the promotion of their norms by using empirical studies led by professional
searchers. For example, Amnesty International reports annually about the state of Human
Rights in the world. Experts, including specialized jurists, on the basis of empirical studies
claiming scientific rigor, write those reports. International actors today are sometimes
overwhelmed by the complexity of the issues at stake; in fact, some NGO’s reports can have a
83
Martha Finnemore and Kathryn Sikkink, “International Norms Dynamics and Political Change,” International
Organization 52, no. 4 (Autumn 1998): 887–917.
84
Ibid.
85
Ibid.
86
Ibid.
87
Ibid.
88
Ibid.
35. 29
significant impact in redefining a question89
. In most of the developing countries, in the
context of IP, negotiators are unlikely to be all experts on IPRs; it would be impossible to
cover all issues that they have within their portfolio. Delegates are nevertheless forced to fully
understand issues and need therefore reliable information. International NGOs, in this
context, would meet this need by first raising awareness of the significance of IP issues and
by then providing advice and technical expertise to keep delegates informed90
.
If this expertise can be a prodigious weapon in the promotion of norms, the lack of expertise
could weaken or even discredit an NGO. For example, the lack of scientific consensus on IP
influence on the transfer of technology, can perhaps explain the weakness of NGOs fighting
for more compliant IPRs. Indeed, the struggle between supporters and detractors of IP stands
today more in the arena of economic ideology than in the field of scientific certitude.
Obviously, no matter how powerful NGOs are, they cannot coerce the States, they must
convince them. It is mainly through speech and persuasion, as in the communicative theory of
Habermas, that entrepreneurs will change the distribution of norms within a community (or a
regime, or a complex), to transform what seems “out-of-norm” into something appropriate.
How many States do they have to convince? Until now, no solid answer has been given to this
question. This is a weakness in the field of studies of international norms.
Beyond that, another question deserved to be asked: are all States equal from a normative
point of view? Finnemore and Sikkink answer by explaining that there are “critical States”,
which will vary depending on the issue discussed91
. These critical States “are those without
which the achievement of the substantive norm’s goal is compromised”92
. In the case of IP,
for instance, it would be Japan, the United States, Germany, the Republic of Korea, the
United Kingdom, and France93
.
89
David Humphreys, “Redefining the Issues: NGO Influence on International Forest Negotiations,” Global
Environmental Politics 4, no. 2 (2004): 51–73.
90
Duncan Matthews, “The Role of International NGOs in the Intellectual Property Policy-Making and Norm-
Setting Activities of Multilateral Institutions,” Chicago Kent Law Review 82, no. 3 (2007): 1369–87.
91
Martha Finnemore and Kathryn Sikkink, “International Norms Dynamics and Political Change,” International
Organization 52, no. 4 (Autumn 1998): 887–917.
92
Ibid.
93
Ahmed Abdel Latif et al., Overcoming the Impasse on Intellectual Property and Climate change at the
UNFCCC: A Way Forward, Policy Brief, ICTSD Programme on Innovation, Technology and Intellectual
Property (Geneva: International Centre for Trade and Sustainable Development, 2011).
36. 30
2.5 Conceptualizing NGOs and NGOs’ power: material, symbolic, cognitive and
organizational
In the previous chapter we defined norms and how entrepreneurs, particularly NGOs,
promoted them. In this chapter, we would like to draw attention to what we would call the
power of NGOs, that is to say, the resources available to promote a norm and thereby
influence the international debate. But, first of all, let us begin by succinctly defining our
conception of NGOs.
The concept of NGOs can largely vary, depending on how one defines NGOs. The term NGO
may include a multitude of different types of organizations. One might think that private
schools and hospitals are NGOs because they are non-governmental. Another could consider
terrorist groups as NGOs because they are independent. Even the same types of NGOs may
also differ according to their size, their purpose, their organizational structure and their
resources. It is, indeed, difficult to compare an NGO concerned with the distribution of sports
equipment in a small village in Belgium and NGOs like Oxfam that generates tens of millions
of dollars per year. Due to the variation between them, it is important to set our understanding
of NGOs before we kick off our analysis of NGOs’ influence.
In 1992, the World Bank defined NGOs as “many groups and institutions that are entirely or
largely independent of government and that have primarily humanitarian or cooperative rather
than commercial objectives”94
. In 1998, Clarke defined NGOs as “private, non-profit,
professional organizations, with a distinctive legal character, concerned with public welfare
goals”95
. Willetts, for his part, argues that there is no generally accepted definition of NGOs96
.
However, there are usually three accepted characteristics that exclude de facto certain
organizations. First, NGOs should not be affiliated to political parties or government
agencies. They should not be directly linked with institutions of government organizations. In
addition, they should not aim to achieve any political power through their activities. Second,
they should not generate profit. The profit-oriented companies are not NGOs. Third, all
94
World Bank, “Terms of Reference for Study on the NGO Sector in Uganda.” Eastern Africa Department,
Population and Human Resources Operations Division, 1992.
95
Gerard Clarke, “Non-Governmental Organizations (NGOs) and Politics in the Developing World.,” Political
Studies 46 (1998): 36–52.
96
Willetts, Peter, “What Is Non-Governmental Organizations,” UNESCO Encyclopaedia of Life Support
Systems, Section 1 Institutional and Infrastructure Resource Issues, Article 1.44.3.7. (2001). Available at
http://www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM. Consulted on 14th
March 2014.
37. 31
criminal groups should be excluded from the definition of NGOs, even if they do not belong
to governments. NGOs should have a benevolent purpose.
There are different types of NGOs. Actually, NGOs could be classified by level of
organization, geographic location, and the main goal. Willetts classifies NGOs as national,
regional, and global NGOs, depending on their coverage areas of the project97
.
The degree to which NGOs are working is not the only way to differentiate them. We can also
pay attention to what we call their power of influence. Indeed, NGOs are not all equivalent in
terms of influence; some have more staff, more financial resources or a more extended aura.
This allows them to send more or less activists and analysts to a greater or lesser number of
conferences/forums, for instance. In the following sections, we will focus on the four
components of this power and how each of them can strengthen the strategies pursued by
NGOs.
2.5.1 Material power
Material power refers to resources, particularly financial and human, that NGOs can mobilize
as part of their lobbying strategy98
. For example, the number of staff is a key data to measure
the material power. This power can be summarized by economic power. Indeed, more money
you have, the more you can afford to hire manpower. So NGOs from countries more
economically powerful are likely to have more opportunities to accumulate assets and provide
working. For example, in 2009, Greenpeace could count on the support of 102,000 people
who supported them up to 3,802,406 €99
. Likewise, WWF, according to its 2012 annual
report, would have more than 5000 employees worldwide100
. This allows them to attend
numerous conferences around the world and develop large strategies for lobbying. Moreover,
it is often not sufficient for representatives of NGOs to travel to Geneva, or everywhere else,
97
Willetts, Peter, “What Is Non-Governmental Organizations,” UNESCO Encyclopaedia of Life Support
Systems, Section 1 Institutional and Infrastructure Resource Issues, Article 1.44.3.7. (2001). Available at
http://www.staff.city.ac.uk/p.willetts/CS-NTWKS/NGO-ART.HTM. Consulted on 14th
March 2014.
98
Amandine Orsini, “Institutional Fragmentation and the Influence of ‘Multi-Forum’ Non-State Actors:
Navigating the Regime Complexes for Forestry and Genetic Resources,” Global Environmental Politics 13, no.
3 (2013).
99
International website of Greenpeace, http://www.greenpeace.org/belgium/fr/qui-sommes-nous/Transparence-
financiere/nos-ressources/, consulted on 23/03/2014
100
WWF, Annual Review, 2012 (Switzerland: WWF, 2013).
38. 32
for key meetings. Effective engagement requires a day-to-day basis that involves a permanent
presence, which would allow representatives of international NGOs to establish and maintain
relationships with delegates101
. This necessitates a large staff, hence a lot of money to
remunerate them.
Similarly, NGOs must invest in expertise, as we will see in the section dedicated to the
cognitive power. “External experts, normally from academia, are often invited by
international NGOs to provide policy advice by participating in workshops with delegates, to
prepare briefing papers, or to offer advice on an ad hoc basis and at specific events such as a
WTO Ministerial Conference or the CBD-COP”102
. These external experts are seen as adding
value because NGOs generally lack of specialist expertise, or because their knowledge is not
sufficiently elaborated on particular issues. “In this respect, experts are used by international
NGOs because they provide technical advice and facilitate the process of information
exchange and a greater understanding of the IP issues”103
.
2.5.2 Symbolic power
The symbolic power refers essentially to the name or logo associated with a particular
organization 104
. These logos are associated with a range of values such as equity,
environmental protection, sustainable development, etc. For instance, NGOs such as
Greenpeace and WWF have a strong symbolic power. A wide public knows their logo and
their battles. They are surrounded by halo of legitimacy and morality. On the contrary, the
same logic lead often NGOs conducting more “technical” combat such as Technology and
Concentration (ETC) to be caught up in what Beck called a “legitimation trap”105
. Even if
NGOs are organizations inspiring a high degree of confidence106
, the term NGO has not
always positive connotations, mainly because they are not regarded as true experts. Then,
being recognized as an NGO offers advantages and disadvantages. The symbolic power is
something that only large NGOs can use to pressure. For instance, Amnesty International by
101
Duncan Matthews, “The Role of International NGOs in the Intellectual Property Policy-Making and Norm-
Setting Activities of Multilateral Institutions,” Chicago Kent Law Review 82, no. 3 (2007): 1369–87.
102
Ibid.
103
Ibid.
104
Magnus Boström and Tamm Hallström, “NGO Power in Global Social and Environmental Standard-Setting,”
Global Environmental Politics 10, no. 4 (2010): 36–59.
105
Ibid.
106
Ibid.
39. 33
participating or not can influence international meetings dedicated to the issue of human
rights. Indeed, on this specific issue, it is considered a form of “moral authority”. But most
NGOs are small and quite unknown, so they suffer more from the lack of credibility than they
enjoy the status of moral actors.
2.5.3 Cognitive power
The cognitive power refers to the ability of actors to provide knowledge of quality107
. The
symbolic power is not enough for promoting norms. NGOs should also be able to demonstrate
the benefits of a policy by, for example, showing its economic relevance. The cognitive form
of power is not only based on information in general, but especially on the scarcity of
information. The more an organization will be able to provide unique and reliable
information, the more its cognitive power will be important108
. The cognitive power includes,
for example, the knowledge of an unknown language, knowledge of a particular culture, a
field-oriented experience. WWF in 2013 had a budget of approximately 265 million US$ and
offices in 90 countries. These resources offer large opportunities for their researches, which
exceed those of many States. Also, NGOs can settle debates between States, which are often
seen as trying to manipulate reality. Instead, NGOs give the impression of representing the
interests of the whole mankind. It is a valuable strategy for an NGO to claim its objectivity
and its will to represent a universal point of view109
.
In addition, to be effective, the cognitive power must take place in a relationship of trust. As
demonstrated by Duncan Matthews, “trust is important because delegates are more likely to
respond to an individual from an international NGO with whom they have an established and
positive relationship. A relationship of trust must exist before delegates feel sufficiently
comfortable with international NGOs to ask for advice and technical expertise”110
.
107
Magnus Boström and Tamm Hallström, “NGO Power in Global Social and Environmental Standard-Setting,”
Global Environmental Politics 10, no. 4 (2010): 36–59.
108
Amandine Orsini, “Institutional Fragmentation and the Influence of ‘Multi-Forum’ Non-State Actors:
Navigating the Regime Complexes for Forestry and Genetic Resources,” Global Environmental Politics 13, no.
3 (2013).
109
Magnus Boström and Tamm Hallström, loc. cit.
110
Duncan Matthews, “The Role of International NGOs in the Intellectual Property Policy-Making and Norm-
Setting Activities of Multilateral Institutions,” Chicago Kent Law Review 82, no. 3 (2007): 1369–87.
40. 34
Moreover, the cognitive influence tends to depend on “whether linkages between NGOs and
delegates are short-term and issue-specific or of longer duration and cutting across a range
issues”111
. Indeed, “some NGOs deal with a range of IP issues while others deal with specific
topics such as access to medicines, farmers’ rights, genetic resources and traditional
knowledge”112
. Those with a larger range of knowledge tend to be more influential.
2.5.4 Organizational power
“Organizational power is often measured in terms of internal functioning and external
networking capacity”113
. Internally, this type of power depends on the efficiency of the
decision making process and the ability of the organization to cope with new challenges, new
issues, etc. Externally, an NGO’s social capital refers “to the ability of actors to establish or
link to formal or informal cooperation and alliances”114
. Participate in negotiations through a
coalition can actually improve material and cognitive resources of an NGO. However, it may
also have disadvantages. Small NGOs working with Greenpeace and WWF have broad ways
to make their voices heard, but the credit of their eventual success will be absorbed by NGOs
high profile. In this configuration, the small NGOs did not win symbolic power.
To conclude this part one could wonder whether a high level of power means ipso facto a
high level of influence? Not necessarily. The influence of NGOs also depends on their access
to institutions. Contacts with governments and decision-makers are important conditions to
exert real influence. Contacts between NGOs are also very important. Some NGOs are more
popular than others with a particular government. Then, they can serve as intermediaries with
this administration. Even if power does not mean influence, we can nevertheless identify a
positive dynamic between the various types of power and the result of this power calculated
in terms of influence. Material power is useful to be able to invest in the cognitive power.
Indeed, the number and quality of researchers and the materials used can improve with
111
Duncan Matthews, “The Role of International NGOs in the Intellectual Property Policy-Making and Norm-
Setting Activities of Multilateral Institutions,” Chicago Kent Law Review 82, no. 3 (2007): 1369–87.
112
Ibid.
113
Amandine Orsini, “Institutional Fragmentation and the Influence of ‘Multi-Forum’ Non-State Actors:
Navigating the Regime Complexes for Forestry and Genetic Resources,” Global Environmental Politics 13, no.
3 (2013).
114
Magnus Boström and Tamm Hallström, “NGO Power in Global Social and Environmental Standard-Setting,”
Global Environmental Politics 10, no. 4 (2010): 36–59.
41. 35
financial investments. Similarly, the material can promote organizational power, as the
internal management and cooperation with other organizations require resources.
Organizational power is related to the cognitive power. De facto, a high degree of
organizational assistance helps NGOs to effectively manage their resources and thus
facilitates the production of high quality information. Finally, when the cognitive power
increases, NGOs become recognized for their expertise. So, their symbolic power increases.
As a result, they finally receive more funds, which increases their material power.
42. 36
3 Chapter 3: Case study
After presenting the theoretical framework essential for studying the influence of NGOs on
the interplay between international regimes, we will now present a case study on which we
intend to apply our theoretical construction. Many authors have already worked on the
relations between regimes: trade and agriculture or genetic resources regulation and trade,
environment and trade or IP and biodiversity, food, plant genetic resources, etc. For our part,
we decided to work on the relationship between climate change and IPRs. For that, there are
two reasons. Firstly, as far as we know, no author had analyzed this interplay from the angle
that we use. Secondly, our interest was aroused by what appears to us as a paradox. While
these regimes seem, a priori, to be recognized as substantively (functionally) related, there is
no formal (political) linkage between the two. Moreover, as we saw in the introduction, it
might seem strategic to link the two issues. Indeed, the Western countries are the main owners
of resources in the regime of IP. They could use their dominant position to review the status
quo in the climate change regime. For instance, the U.S.A. could try to negotiate China’s
entry in Annex 1 in exchange of a relaxation of IP rights on ESTs. However, no linkage exists
between these two regimes. Nevertheless, the question of their relationship does exist. We
will see in this chapter how it takes shape and which kind of debate surrounds it. The purpose
of this chapter is to contextualize the results of our research by providing the reader the
necessary background to put into perspective our findings
3.1 Historical perspective of the climate change and the IP
Since the establishment of the Intergovernmental Panel on Climate change (IPCC) in 1988,
the issue of climate change has gradually been imposed on the international political agenda.
In fact, nowadays, there are no more meetings or international summits that makes the
economy of a chapter on climate change. Still, this phenomenon is anything but a recent
discovery115
. Since the first measurements of the concentration of greenhouse gases in the
115
Just to mention that the mathematician Joseph Fourier described the phenomenon of the greenhouse effect in
1827, before the Irish physicist John Tyndall and the Swedish chemist Svante Arrhenius, established that
emissions of carbon dioxide were the one of the key factors behind the phenomenon. For further information on
this topic see Spencer Weart, The Discovery of Global Warming, Harvard University Press (Cambridge (MA),
2004).
