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Wednesday, October 22, 2008

Globalization and Global Governance

In response to my post from earlier, Rob Howse referred me to his review article -- The End of the Globalization Debate: A Review Essay -- published earlier this year in the Harvard Law Review.  It's nicely written, insightful,  and well-worth the read.

In the article, Rob describes how both the traditional political right and left have come to embrace globalization -- neither side argues any longer that the territorial nation-state should remain the "locus of control over economic activity" or "should retain a monopoly on legitimate governance."  Rob explains how the once antiglobalization movement, which saw globalization (and the pro-free market forces with which it was identified) as undermining progressive values, itself began to embrace global law and policymaking as a way to advance those same progressive causes.  In Rob's words, everything has gone global.

As a descriptive matter, Rob seems correct that the globalization debate is largely over.  The concept of the nation-state as the sole operator and source of authority in the international sphere has long been inaccurate (if it ever was).  The state, as Rob notes, has been reshaped, remade and reordered as a result of the worldwide expansion of commerce, communications, crime, and human rights, among other things.   If the point is that globalization is here to stay with us, it seems correct.  The question is: what next? This, as Rob highlights at the very end of his review, is the issue of global governance and global justice. It is where much of the cutting-edge legal scholarship in this area is being written.  No longer is the debate over the benefits of globalization itself.

My concern is the path that the global governance debate is taking in the face of, and in response to, a globalized world.  Because economic and social globalization has outpaced political globalization, international actors are feverishly trying to figure out how to address global problems using traditional forms, and not so traditional forms, of governance.  The political left in the United States, disappointed with the speed with which international treaties and institutions have developed, increasingly turn to U.S. domestic laws as a way to promote its American version of environmental and human rights, and otherwise advance its progressive causes.  The political right has the same preoccupation with U.S. domestic laws as a method for promoting economic liberalization.  At the same time, the political right is nervous of non-economic international law, because that law was often developed by liberal elites as part of the international human rights and environmental rights movement.  The right, while largely supportive of economic globalization, is increasingly vocal in its condemnation of international law (a good example, is the spirited debate -- now a few years old -- over the use of international and foreign law in U.S. constitutional decisions).  Academics have supported these domestic law approaches, believing that if state boundaries are no longer as important as a descriptive matter, then domestic law can fill the gaps.  Unilateral actions become necessary, the argument goes, to solve pressing global problems.  Rob's comment to my post yesterday appears sympathetic to this approach, as he asks what's so absurd about U.S. domestic laws regulating the conduct of foreigners abroad?

Yet the global governance debate seems undermined by myopia -- with activists and academics alike focusing on the short-term, and ignoring the long-term.  Over time, the American political left, which promotes a particular brand of human and environmental rights (a kind I happen to like), is ill-served by unilateral domestic actions.  Global governance based on unilateral action by individual groups or states is apt to be fragile and unlikely to lead to a realization and sustaining of those global values which the left values most (Nico Krisch has done some interesting work in this area in connection with theories of hegemonic decline).  The same problem exists for the right.  All too concerned that non-economic international law serves the goals of the left, political conservatives have turned away from a meaningful discussion of creating robust global institutions, and have sought to all too often rely on domestic laws to solve global challenges.

To my mind, neither group ultimately is served by global justice that translates as an anarchic free-for-all of domestic regulation -- be it economic laws or non-economic laws (e.g., ATS claims). Nevertheless, this approach seems often encouraged inadvertently by modern international legal scholars, many who embrace transnational networks, dialogue, and legal process, when they move beyond the descriptive (what's happening with globalization) to the normative (how should global governance be structured).  It's also often evident in scholarship promoting alien tort statute claims, as well as academics who argue for vigorous extraterritorial enforcement of economic laws.

My belief -- albeit admittedly currently unfashionable and seen, by some, as quaint -- is that both groups are better served if traditional international law, based in large part on concepts of territorial sovereignty, remains the preferred method of developing global governance.  That is not to ignore globalization.  It is to say that in a globalized world, the territorial nation-state remains important not as a way to stop globalization, but as a way to govern it in a productive way.  From a American-perspective, international law continues to allow the United States to promote and project its particular brand of human rights, as well as its embrace of free-markets and trade.  I suspect that those who try to regulate global politics through "exhilirat[ing] new possibilit[ies] of connectedness and human flourishing" will ultimately be disappointed.

In short, to the extent valuing traditional forms of international law (treaties) as a way to constrain state excesses and promote American style values means "marching in favor of states" -- I'm happy to march.

 

Posted by Austen Parrish on October 22, 2008 at 01:45 AM in Article Spotlight | Permalink

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Posted by: lulu diriba | Nov 8, 2008 1:00:03 AM

But as my Burma example is intended to illustrate, the idea of a "domestic" law is in itself not so simple. The Burma Democracy Act is an act of the US Congress and enforced through, inter alia the US dustoms authorities-true enough. But it is also a law in the service of universal human rights norms as positivized the the UN Covenants and indeed in custom and to some extent ius cogens. It is also a law that is contextualized by the relationship between the ILO and Burma and its breakdown. Extraterritorial application of domestic law is of course problematic where the legitimacy and content of the law derives exclusively from the idiosyncratic preferences or interests of the people on the territory to which the public authority proclaiming that law appertains. In such cases, we would need to weigh, along the lines (crudely) of for example Timberlaine and its succesors the relevance of the possibly conflicting values or interests of others who are effected by the regulation or who are represented by other public powers on other territories. My point is that the fact that formal authority and potential coercive power of the law emanates from a domestic lawmaker while its regulatory impact is projected beyond the territory to which that lawmaker belongs in itself says nothing or little about legitimacy, or at least is radically indeterminate of the question of legitimacy.

best,


rob

Posted by: Rob Howse | Oct 23, 2008 8:31:31 AM

But as my Burma example is intended to illustrate, the idea of a "domestic" law is in itself not so simple. The Burma Democracy Act is an act of the US Congress and enforced through, inter alia the US dustoms authorities-true enough. But it is also a law in the service of universal human rights norms as positivized the the UN Covenants and indeed in custom and to some extent ius cogens. It is also a law that is contextualized by the relationship between the ILO and Burma and its breakdown. Extraterritorial application of domestic law is of course problematic where the legitimacy and content of the law derives exclusively from the idiosyncratic preferences or interests of the people on the territory to which the public authority proclaiming that law appertains. In such cases, we would need to weigh, along the lines (crudely) of for example Timberlaine and its succesors the relevance of the possibly conflicting values or interests of others who are effected by the regulation or who are represented by other public powers on other territories. My point is that the fact that formal authority and potential coercive power of the law emanates from a domestic lawmaker while its regulatory impact is projected beyond the territory to which that lawmaker belongs in itself says nothing or little about legitimacy, or at least is radically indeterminate of the question of legitimacy.

best,


rob

Posted by: Rob Howse | Oct 23, 2008 8:31:06 AM

I enjoyed the read. It was a nice essay.

To be clear though: I am not arguing that the use of extraterritorial legislative jurisdiction violates international law as established in Lotus. I'm saying that for policy reasons using extraterritorial domestic laws to solve global challenges, instead of developing international law, is problematic in a host of contexts.

My position is not pessimistic or fatalistic. The position is premised on positive outlook for international institutions and law. My point is also modest. I suggest that governing the world through domestic laws will often have the appearance, if not the reality, of being less legitimate, and is less likely to create longer lasting norms. If global governance is done solely through domestic laws -- then the international realist critique becomes true (it's just an issue of power). That seems problematic.

Both the idealists and the realists have certain goals. The question is whether using domestic law to govern globally furthers those goals. It's not clear to me that if other countries use their laws extraterritorially that they will necessarily advance values that the idealists or the realists currently value.

Burma is interesting, and I don't know enough about it to comment. It may well be that the action being taken is the best course under the circumstances. It doesn't mean, however, that it should serve as a model for future action.

I am not a realist (or Sovereigntist) as that term is commonly used. I generally support international law and its institutions, and believe that the turn away from those institutions both by the political right and left over the last decade or so has been harmful to what both sides value most.

Perhaps I should turn it back to you. What confidence do you have that using domestic laws to govern globally (i.e., to apply U.S. laws to regulate conduct of foreigners abroad) will be viewed as legitimate? There are many examples of where it has been viewed as illegitimate in the past. Are you comfortable with other nations applying their laws extraterritorially, particularly when those nations have conceptions of justice that may differ from we would view as desirable.

I believe that liberal internationalists can take the realist critique seriously, while discarding the pessimism. It's not inevitable that the world is moving towards greater interconnectedness, stability, peace and an embrace of human rights. If we want a greater claim to legitimacy in international law then I believe it can't just be imposed. There needs to be a concensus or process that creates legitimacy. And it seems to me that traditional international law processes are better suited to that end than Americans enacting laws that are intended to apply to everyone, everywhere.

I hope you understand the position. I'm not asking you to agree.


Posted by: AP | Oct 22, 2008 4:31:53 PM

Thanks for your thoughtful response to my review essay-and thanks for reading it!

What is "unilateral"? If we go back to Lotus and the fundamental principles of what you call traditional international law, apart from the rule against projection of coercive regulation on the territory of another state (sending in the marines, etc., kidnapping a defendant on the territory of another state), the basic the limits on the use of force against the territorial integrity of another state, there is no default rule prohibiting the exercise of prescriptive or adjudicatory jurisdiction over acts, things or persons beyond one's territory. There was a failed attempt in the 1960s and 1970s to create an international law norm of non-intervention. As we can see in the Nicaragua case no such general norm emerged and indeed one understands why as it is too unstable in conception. So while globalization has created a world of factual and normative interconnection that transcends, or moves in and around territorial state boundaries, in fact traditional international law provides, a la Lotus, for considerable porousness concerning "extraterritorial" "unilateral" actions (which isn't to say there aren't specific rules like the ILC articles in relation to non-forceful countermeasures, for instance, or WTO rules which however include exceptions that have been held to permit trade bans for global environmental purposes for instance).

Take the US trade embargo against Burma for human rights purposes. From one angle it is "unilateral" in that it has not been authorized or required as such by any international institution and is not the action of a large # of states; on the other hand (and I know this because I have worked with the Burma democracy movement to support this ban and strengthen it) the ban is supported by the legitimate democratic opposition WITHIN Burma itself, clearly more legitimate in its title to speak for the Burmese people than the Junta. As well, the norms on the basis of which the ban is enacted, including those of the ILO and basic customary norms of human rights law, are far from unilateral obviously. Nor is the jugdement that Burma is in non-compliance with such norms, as evidenced by actions of the Security Council and the membership of the ILO. So does such US action count for you as "unilateral"?

Perhaps I should simply first read your own scholarship before commenting further, but I wonder where you get your confidence to pronounce on what will work or not in the long term. Why will the global idealists be doomed to be "disappointed"? In other words, there seems to be a pessimist or fatalistic theory of history behind your predictions, and I'm not sure what it is grounded on: a realist conception of the meaning of power?

Posted by: Rob Howse | Oct 22, 2008 1:54:38 PM

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