Globalization and International Law

From the time I was very young, I wanted to be a lawyer.  The story of how I became an IT worker instead, I'll save for another day, but I've always had a fascination for the law and, because of my interest in global migration, international law.

So I dove into Taming Globalization: International Law, the U.S. Constitution and the New World Order by Julian Ku and John Yoo with high hopes for a good read and a real interest in the topic.  I was not disappointed.

It all starts with the notion of sovereignty which is being strained by globalization.  The old Westphalian conception of this idea where states have complete authority over national territory has never been a perfect description of reality but it is even less so in our era.   As Arjun Appadurai points out so eloquently in Fear of Small Numbers, "the certainty that distinctive and singular peoples grow out of and control well-defined territories has been decisively unsettled by the global fluidity of wealth, arms, people and images..."  To this Ku and Yoo add, "the increase in the number and influence of international organizations" and a "fundamental shift in the nature and scope of international law."

International Organizations:  According to the International Court of Justice (ICJ), entities like the United Nations are "international persons" and have a "legal personality."  This means that they possess the right to have rights.  In the case of the United Nations the ICJ determined that "it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims."  Or in other terms it has the, "right of creating international norms, mostly through the treatymaking power or adoption of binding resolutions, but also through their contributions to the creation of customary rules of international law, the active and passive ius legationis, i.e. the right to send and receive representatives of other subjects of international law, as well as to apply sanctions if the rules of the Organization so provide."  Among other things this means that the UN can demand reparations from a nation-state on behalf of one of its employees.  Prior to this ruling only a state could do this on behalf of its nationals.

Ku and Yoo also make the excellent point that some international organizations today enjoy unprecedented levels of autonomy from the nation-states that created them in the first place. They argue, quite convincingly, that both the European Court of Justice and the North American Free Trade agreements possess great independence and real sovereignty.  Both have real power.

International Law:  The first change here (the "new international law") is a change of focus.  Prior international law dealt almost exclusively with relations between states.  This has been broadened to include "the relationship between a nation and its own citizens or between citizens of different nations."  This means that a state that deprives its own citizens of  "universal human rights" such as: "No one shall be subjected to arbitrary arrest, detention or exile" or the right to free expression can be taken to an international court and held accountable.

The second change, according to Ku and Yoo, is how international law is created and enforced.  It used to come from nation-states and their "practice and opinion."  This is still true to a certain extent but their consent is much less important these days.  New laws and norms are coming out of those international organizations which change Customary International Law (CIL) by looking to treaties between states and using them to create "universal international norms that theoretically bind even those nations that refused to join the treaty in the first place."

Does this mean that state sovereignty is dead?  Of course not.  States can and do ignore international law.  Even in EU-land where nations have explicitly agreed to give up some sovereignty and who are bound to obey EU charters and directives, drag their feet or dodge implementation. The Blue card is one example, France's reluctance to respect the European Charter for Regional or Minority Languages is another. But what is clear is that no nation-state can completely ignore globalization and the existence of international laws and norms in both its behavior in the international realm or within its own domestic legal framework.  Nation-states are no longer completely free to do as they wish even within their own territories and the well-being of their citizens is now of direct interest to the international community whether those citizens are living in China, the U.S. or Germany.

Where is all this going?  One possibility is that we are ushering in an era of what Ku and Yoo call "a full-blown, European-style system of global governance." We are surely not there yet.  But even without such a system, international laws and norms are becoming a part of domestic law.  In recent years some high profile cases in the U.S. have, "sought to directly incorporate international legal norms into the domestic order without approval by democratic means."  Here are just a few of the over 30 decisions made by the Supreme Court in the last decade where international or even foreign law were cited in the decisions:   Sanchez-Llamas v. Oregon,  Sosa v. Alvarez Machain, Medellin v. Texas, Hamdan v. Rumsfeld, Morrison v. National Australia Bank Ltd....

You can read about some of these cases and much more in this very excellent read.  For this brief review I've only gone over a few of the many ideas and concepts that they explain in a manner that makes them accessible to a general audience (self-executing versus non self-executing treaties, for example).  And underlying it all is a well-reasoned argument in favor of a sovereignty that (with only minor tweaking) would square the democratic nation-state, respectful of the "will of the people," with all the good that comes from being a responsible international actor in an increasingly globalized world.