ECLA Annual Conference Lecture: Petra Dobner on ‘Crossing the Jordan: Global Water and Transnational Constitutionalism’

Petra Dobner
Petra Dobner

On Friday 9 May Dr. Petra Dobner visited ECLA to deliver a guest lecture, ‘Crossing the Jordan: Global Water and Transnational Constitutionalism’, as part of Annual Conference. It was fitting that Dr. Dobner’s lecture should be the last of the Annual Conference series, as it served to bring together many aspects of water addressed throughout the week and to situate the water problem within the power structures of the globalized world.

The old ‘sandwich’ model of the state, which posits a determined territory, on which a determined people resides, and over whom a determined power is exercised, is outmoded, Dr. Dobner claims. In the globalized world, powers outside a state may impact on its freedom to exercise power over its own territory: the people may not all be located within that territory, or may have strong associations without. Other transnational or international power structures may make claims of the nation state, and on its people. Even the territory of the state has become unstable. The effect of these tendencies is to create a constitutional problem. For where the elements and interests of the nation state are intermingled with those of its neighbours, as well as with transnational organizations, the constitutional principles that act to constrain power become uncertain in their application and effectiveness. Power structures which exist beyond the boundaries of nation-state competence cannot be subjected to state control and thus begin to take on an unconstrained character. The problem for twenty-first-century political theorists is how to submit these power structures to ‘constitutional’ control. This is the project of transnational constitutionalism.

Dr. Dobner demonstrated that as the most fundamental human needs, such as water access, are politicized on the global stage, the need to constitutionalize global power is pressing. Globally, water issues (like many others) are addressed by international institutions, such as the World Water Council, and also by interested NGOs, Greenpeace for example. The key problem for Dobner with this method of establishing international administrative networks is one of legitimacy, because they wield significant and effective power. Members of global institutions tend not to be elected, but co-opted or appointed from pre-existing networks, most of which either represent the concerns of global interest groups (often business, but also NGOs), or are made up of representatives from nation state executives. For Dobner, legitimacy is crucial. She distinguishes criteria of ‘input’ legitimacy (established before the event) and ‘output’ legitimacy (established after the event). Each of these can be fulfilled in two different ways: input legitimacy is established either by election or by stakeholder participation; output legitimacy is established by consensus or by achieving an efficient solution. These four smaller categories have, for Dobner, a cumulative effect, such that the more of them any given institution can exhibit, the more legitimacy it can claim.

Dr. Dobner’s lecture focused on the administrative networks presently in place to address global water scarcity and found that within these power structures legitimacy criteria are only barely fulfilled. She argued that Guiding Principle No. 4 of the UN Dublin Statement (1992), which underlies global approaches to water policy, prominently introduces the idea of water as an ‘economic good’ and finite resource, offering tacit support for water privatization in pursuit of UN goals. This economic focus may, it seems, overshadow the rights-based understanding of water needs promoted in the same document. Dobner went on to outline her research, which suggests that within the administrative bodies charged with the making and implementation of global water policy, there exist close prior connections between administrative personnel with other interested global actors. She found, for example, that sixteen of the twenty-one members of the (UN-established) World Water Council have connections with the World Bank, which favours privatization.

Dr. Dobner closed her lecture by explaining that there are, at present, theoretical attempts to find ways of constitutionalizing the power networks controlling global issues, such as water policy. Explaining that what it means to ‘constitutionalize’ these relationships is subject to interpretation, Dr. Dobner’s lecture posed fundamental questions about water, but also extending beyond it: is it sufficient to codify the global power networks in place, thereby subjecting them to some kind of formal control? Or does globalized society demand of transnational constitutionalism a substantive attempt to push back the steadily encroaching powers which the globalization process has accrued to private actors? Is it ever possible to legitimize or democratize these relationships in any meaningful way? Dr. Dobner’s answer was that it should be possible to find a form of constitutionalization but, whatever happens, transnational constitutionalism will not approximate to the old, Western democratic model of the nation state, which exerted power subject to a democratic mandate and inviolable constitutional rules. These old notions of constitutional values must, it seems, cede to newer versions more suited to the globalized context. What these will look like, we shall have to wait to see. However, as indicated by the political tussles over the fated EU Constitution (to be replaced in a nomenclatural climb-down by the Lisbon Treaty) the process will be a painful one.

Petra Dobner, DR. RER. POL. is a Fellow of the Wissenschaftskolleg Berlin, where she is a member of the research group, Konstitutionalismus jenseits des Nationalstaats [constitutionalism beyond the nation state]. Her research interests include water policy; social policy and theory; and politics and justice. She has published extensively in all of these areas. Her Habilitation thesis is on water policy. Dr. Dobner studied Medicine, Philosophy and Politics at Freie Universität Berlin.

by Samantha Williams (’08, United Kingdom)

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