GLOBALIZATION AND INTERNATIONAL LAW
2012/2013, Semester 2
Modular Credits: LL4022 ( 4 ) / LL5022 ( 4 ) / LL6022 ( 4 )
THE AIM OF THE COURSE IS TO GIVE STUDENTS THE MEANS OF UNDERSTANDING THE CHANGES THAT ARE TAKING PLACE IN PUBLIC INTERNATIONAL LAW AS A
RESULT OF GLOBALIZATION. THERE IS A RAPID DEVELOPMENT OF INTERNATIONAL LAW AS A RESULT OF THE PROCESSES OF GLOBALIZATION, THE TENSIONS IT
HAS THROWN UP AND THE DISINTEGRATION OF THE EXISTING GLOBAL ORDER THAT MAY BE ATTRIBUTED ALSO TO GLOBALIZATION. SELECTED THEMES ARE DISCUSSED
IN THE COURSE.
How is international law viewed now? Natural law; positivism; policy oriented approach; global governance. TWAIL. The view based on power, past orders and continuation of such power in times of globalization.
a loose definition as a process that makes the world integrated through collapsing space and time, made possible through advances in technology.
: The idea that during times of globalization, a state amasses such power through technology that it becomes a leader. Its military might is unrivalled as a result of technology and it becomes a leader in other aspects such as fashion, literature and other fine arts.
Exertion of global control:
Such a power seeks to create a global order that reinforces its leadership in order to retain its power.
It does this through the instrumentality of international law.
The notion of an instrumental international law is associated with power, both public and private. The role of private power.
Instrumental international law has philosophical or economic rationalizations.
Previously, international law was justified on the basis of a standard of civilization. Now, the justification relates to the spread of democracy and market capitalism as necessary for peace and for economic development.
Instrumental law may not meet interests of justice.
Being a construct that furthers the objectives of power, international law serves the interests of the few and ignores the large majority of people. The law affects individuals. The empowerment of the people through
ensures the legitimacy of the law in democratic times.
in rules of international law is brought about by the test of legitimacy that is provided by justice.
This analysis empowers the individual.
The movement in international law then becomes the protection of the individual and his interests.
The course seeks to test out some of the hypothesis made out above in certain selected areas which largely cover the traditional areas of international law and hence offers a comprehensive theoretical explanation of international law in terms of a clash between power and justice. It is a corrective to the learning of rules without context. It provides a method of analysis that enables and explains continuous change.
Multipolar World :
The Rise of China and India. Will the order change?
The course is largely a reading course. You will have a series of lectures on connecting themes. In the second half, you will present a paper on a selected topic written under supervision
GLOBALIZATION AND INTERNATIONAL LAW
please note that that the topics below are subject to change
Three ideas are central to this course.
which for convenience we define as seeking to bring the world closer in many respects,
which provides a global leader for the globalized world ensuring order and unifying norms according to which the global order functions and
which ensures that the world functions according to the standards that have been devised by the norms through compliance mechanisms. When the world has a unipolar order, globalization is a possibility but when that order breaks up, a multipolar order emerges in which the earlier norms get diffused. The question that is raised in the course is whether such a multipolar world order is emerging as a consequence of the dissolution of an hegemonic order. Several themes will be looked at in considering these ideas.
Active student participation and discussion is encouraged. Students must remember that there is 10% of the marks are awarded on the basis of class participation.
FIRST WEEK. INTRODUCTORY LECTURE.
History of International Law
in the Context of Globalization. Hegemonic International Law and Globalization.
This will be a general lecture introducing the course. 1. We will consider what globalisation is.
2. The impact it has had on the law will be considered from a historical perspective.
3. We will consider the nature of international law. The role of power in the period of globalisaton will be a special factor that we will look at.
4. Every age of globalisation has had an hegemonic power pulling the law towards positions that are in its interest. The instrumental use of international law occurs as a result. There are also imitational pulls which make other states model their behaviour on that of the hegemonic state.
5. Prevailing doctrines which are favoured by the hegemonic state also have a role in shaping international law. Neo-liberalism and neo-conservatism are doctrines which exert such influence.
6. Thus, eg. the WTO seeks to drive liberalisation of trade and investment; the notions of spreading democracy are behind new doctrines on the use of force.
7. Pre-occupation with the question of whether international law is law. Harris Chapter 1 indicates this predisposition.
8. This is due to the popularity of the Austinian definition of law in terms of a sovereign, a command and a sanction. International law lacks these.
9. But, there are other ways of looking at international law. It is successful where regimes are formed in areas of international activity. Eg. Civil aviation and the rules made by the International Civil Aviation Organisation.
10. Hegemonic pressure: Eg. TRIPS and the WTO.
11. Necessity: eg. when transnational epidemics break out (SARS) coordination through rules made by a central global agency becomes necessary.
12. Norm cascades: when ideas receive global acceptance. eg. prohibition of torture universally.
13. It is wrong to look at a single theory.
14 Competing explanations are that international law is grounded in ethics and morality which conduces all humankind to similar rational behaviour.
15. States act in their national interest. They form international law in areas which coincide with their national interest and reject other areas. This is a theory that seems to have acquired favour among some American scholars. It helps a unilateralist position by the US.
16. Only those rules to which states consent are binding on them. There is a subjection to rules that emerge as a result of a surrender of sovereignty.
THE HISTORY OF GLOBALIZATION AND INTERNATIONAL LAW.
1. Though other parts of the world had periods of globalization, international law is largely Eurocentric. It is the history of Europe and its contacts with the rest of the world that
constitutes the story of globalization and international law.
2. The Spanish conquest of South America. The decimation of the Incas. The rationalization of the conquest. The role of Vittoria and Suarez. The issue of whether the native people had sovereignty in terms of international law. Conquest had to be explained as consistent with theological theories based on natural law. The reconciliation of Vittoria and others. Conquest may be wrong but once initiated, there is some trusteeship notion that kicks in which requires the conqueror to bring the native people to light.
3. The Thirty Years War. The Treaty of Westphalia (1648) ending the war. The Westphalian
. Its two central assumptions. (i) Each state being sovereign, no state can interfere with events within the domestic
jurisdiction of the state. (2) All states are equal. This was a European order.
3. The British and Dutch phases. Again, conquest and settlement of "new" lands (Australia and North America). Terra Nullius. Now revoked.
4. Grotius and the freedom of the high seas. The Law of Prize. Not piracy but booty of war. The
to trade. Its assertion through use of force. Linkage of trade and war.
5. The notion of property. Becomes the central concept of trade. Commodification of items not regarded as property previously. The eradication of communal property and the emergence of private property.
6. Notion of just war to protect the state and protect the right to property and the acquisition of property through trade. Just war also included prevention of cannibalism and other such barbaric practices. The creation of the other. Were the acts of the conquistadors any better? A long continued debate. Sadam Hussein and the foreign forces in Iraq.
6. The notion of the standard of civilization. The mandate system.
On history, see
Marti Koskenniemi, “Empire and International Law: The Real Spanish Contribution”(2011) 61 University of Toronto Law Journal 1.
Ileana Porras, “Constructing International Law in the East Indian Seas” (2006) 31 Brooklyn JIL 741.
Imperialism, Sovereignty and the Making of International Law
(Cambridge University Press, 2005).
CHANGES RESULTING FROM GLOBALIZATION : THEIR IMPACT ON INTERNATIONAL LAW.
29th January 2013.
Globalization brings changes particularly when the power of the hegemonic leader begins to wane. Norms established during the period undergo challenges from other aspirants to leadership, as well as other centres of power.
The emergence of other centres of power is a feature of the present era of globalization. Protest can be carried out more easily due to modern means of communication almost without cost.
The rise of the
is a classic example. The changes they seek are relevant and they will slowly begin to have an impact on the law.
The so called
has been challenged by these changes. But, whether state sovereignty has been affected or has been strengthened in recent times is a matter for conjecture. The Westphalian order stressed state sovereignty. Other traditions support such a globalized world. Obviously, first among them was the natural law tradition which viewed humanity as one. But was it phony? Then the positivist tradition which was exclusionary in that it denied sovereignty to many peoples of the world. Now, the notion of governance and regimes.
The following areas of change can be identified:
I.There is a
massive population increase and a movement of people
both within states and between states. People are in search of work and a seemingly better life elsewhere. Rapid industrialization, that was a feature of globalization, also has contributed to the process. An uprootedness is visible. This has consequences.
The legal problems associated with these phenomena are: increasing gaps between rich and poor; decrease in welfare; increasing encroachments on tribal lands by industries and mining concerns; increase in illegal migration; problems of pollution; desertification; land grabs. Hunger and poverty increase. Will there be a law on development? On protection of tribal people? An international welfare law relating to right to food and health?
enhanced identities of people
and brought about insecurity in traditional societies, which lived according to distinct cultural and religious norms. Majority communities profited from globalization. States had been made artificially in earlier periods of globalization without reference to their ethnic and tribal compositions. Imperial rulers set one group against the other. In this context, the world is now faced with great religious, ethnic and tribal discontent with a great potential for internal wars based on identity. What solutions does international law has to offer? Will there be a new law stressing rights of groups?
: Increase in financial flows and world trade. Economic power has changed with emergence of BRICS. Sovereign wealth funds of small states like Singapore are major players. Multinational corporations and their role. Neo-liberal ideology of the Washington Consensus. The WTO. Its rules favour
. Also, liberalization in foreign investment. Challenges and change. One view is that economic sovereignty had ended. But the other is that the
has been strengthened as a result of the economic crisis and the failure of neo-liberalism. Has sovereignty been eroded or has sovereignty hit back? Will regionalism be an answer? Is ASEAN the successful response?
IV. Capitalist consumption and individualism are putting an enormous stress on the
. Climate change has caused problems. The peak resources, oil, water, food will go into short supply. Fish stocks will diminish. Wars will begin on how river waters and underground water sources are shared. The South China Seas and its resources. Cordoning of the seas.
V. As a consequence of factors mentioned in II and IV,
the scope for violence
within and between states will increase. Old wounds will take new forms in this context. Eg. shortage of water in Palestine. Violence system is promoted by ideology, including democracy (the US goes to war to promote democracy in Iraq, etc.) and socialism.
Non-state actors have acquired the capacity to use global violence, posing threats to states. They also fight for change. Their ability to galvanize forces on a global scale threatens existing the existing order. Domestically, laws on terrorism have to be constructed. Internationally, the threat posed to human rights norms increase. The inability of the existing laws on war to deal with this phenomenon is clear. What woud replace such laws?
VII. Internal violence will increase causing external repercussions. Such violence is no longer territorial. Refugees seek to enter other states. Arms are brought from or travel through different countries. Pressure will be put on states to save co-religionists under threat of extermination. New doctrine of humanitarian intervention will surface. Is the R2P an answer? What is the role of the international institution like the UN? Is there liability for inaction? What principles apply to heads of state engaging in violence? How effective will international criminal law be in deterring ethnic and other violence by political leaders who use religion and ethnicity as tools of power?
VIII. As inter-dependence increases, will there be greater concern for human rights? What form will it take? Can states like China, take refuge under domestic sovereignty any more? Common responses have also to be worked out for increase in transnational crime, electronic frauds, money-laundering, controlling diseases like bird flu, etc. What happens may be that an intermediate system is developing that caters to this area of inter-dependence so that officials of states cooperate in tackling these common problems without too much of reliance on sanctions from legislative and other channels. Eg. controlling terrorism or crime.
IX. Where does the individual stand in all this? She sees greater institutionalisation and regionalization, with the forces of globalization pulling towards uniform norms. Divergence is frowned upon. Local cultures suffer. Wealth gap widens. Individual search for capital sets in and social cohesion is lost. She seeks to dissent. This may lead to authoritarianism curbing dissent. The whole law on human rights becomes opened up to new changes as a result.
X. The rise of dispute settlement. Problem of fragmentation of international law. WTO and dispute settlement. Is this a part of constitutionalization that dispute settlement is becoming stronger?
We shall focus on these nine areas in this course, taking each of these themes in turn. Starting from next week.
You will, by the fourth week, structure an area that you propose to write your paper on within these nine themes. Eg. Desertification and movement of people? Are the people to be considered refugees? Or Will China accept the R2P doctrine? You will have wide autonomy in structuring the question or theme that you will cover. You will also have to give presentations on the theme of your choice.
In the future weeks, the three hours will be structured in the following manner.
The first hour will consist of a lecture on an area in one of the eight themes. The second hour on a reading assigned for the week. The third hour will consist of student presentations.
The student presentations will start in the week before mid-semester break.Before then, the sessions will be two and not three hour sessions.
FOR NEXT WEEK PLEASE READ ARTICLES BY ALVAREZ AND ANGHIE (IN THE WORKBIN) . FOUR STUDENTS WILL BE ASSIGNED TO LEAD DISCUSSION.
This week too we cannot have any student presentations as I have to end the class at 11 am.
There will be two lectures given by me.
The first lecture will be on custom and sources of international law. The second will be on the first two topics relating to the changes identified in the last lecture. You will understand how the course is structured. The course will deal with the conventional aspects of international law taking just four of the standard themes in any internaitonal law course:(i) custom and sources of international law (ii) domestic law and international law (iii) jurisdiction (iv) state responsibility. This way, we will be able to see have these standard themes have been affected by globalization.
The second aspect would be to deal with the ten themes of change. So the second hour will be devoted to the consideration of these changes. You must participate in discussions. In the final hour, there will be discussions of papers led by assigned students. You will write a paper on an area that would be covered in class. You must dicuss this paper with me personally.
THE SOURCES OF INTERNATIONAL LAW. THEIR ROLE IN GLOBALISATION.
1. The Myths of the Westphalian system: (a) All states are equal and sovereign.(b) A state should not interfere in the domestic affairs of another state.
2. These organizing principles still underlie the international community but are fictional. There are dominant states. When institutions exist, these come under control of the dominant states. The order that is constructed
based on the equality of states. But, a hegemonic state can convert this order into a
by (i) controlling institutions established to administer sectors of international life (ii) by applying its laws extraterritorially.
But, globalization requires a different type of horizontal order arrived at through consensus among states and the existence of standards of governance.
3. The Westphalian order is progressively breaking up. Its break up has much to do with globalization as norms generated by globalization are intrusive.
4. Firstly, the growth of human rights has diminished the non-interference argument.
5. Secondly, it is said that there are norms of global governance emerging. Eg. WTO; investment law.
6. Thirdly, the evolution of regimes and the process of constitutionalization of these regimes.
7. Fourthly, the growth of a rule of law rather than the rule of power. The judicialization of the law that is created by regimes. Judicialization ensures that the law created becomes more acceptable.
8. Fifthly, the legimacy crisis. What is a legitimacy crisis? Eg. seizing assets of terrorists. Law made by the Security Council. List provided of terrorists. No decision by local courts and no defence. Also, lawmaking. No legitimacy as there is no public debate.
SOURCES OF LAW.
Sources of Law
1.Custom, Treaties (The principal sources if the idea of international law as a system of self-limitation of sovereignty is accepted). Then come General Principles of Law and as subsidiary sources, writings of the highly qualified publicists and Judicial Decisions.
Distinction between usage and custom. “Constant and uniform usage accepted as law” necessary for custom to be proved. (
The Asylum Case
). Need for an
3. The Anglo-Norwegian Fisheries Case.
4. The notion of a persistent objector. North-Sea Continental Shelf Case.
5. Can custom be made more easily by the powerful states?
5. Are these global rules? Did the developing states participate in them? Developing states resisted some of the rules that were formed earlier. Role of custom less in modern times due to disagreements on several issues.
6. But, possible for custom to be creative in institutions and bring about law quickly.
The notion of
General Assembly resolutions
and instant customary international law. (Bin Cheng). The resolutions on terrorism.
Bilateral and Multilateral Treaties. Quicker law making. But, opposition of hegemonic power provides a stumbling block. Kyoto Protocol; the International Criminal Court.
8. Again, where the hegemonic power turns unilateralist, difficulties are caused. This is a defect in the system.
General Principles of Law.
Opposition to it from those who believe international law consists of self-limitation of sovereignty. This source permits creativity. Who will create the law on its basis? Also, the formula states, general principles of law of the
, introducing a historical problem into the definition.
10. The subsidiary sources: teachings of highly qualified publicists and judicial precedent as subsidiary sources of international law.
The role of power in shaping custom. Does the fact that the most powerful state stands out matter. Non-participation of the US in the International Criminal Court, the Kyoto Protocol on Climate Change and the Landmines Convention.
Power of force vs. power of moral argument and justice.
Power of non-hegemonic states to make law.
Power of less developed states to oppose and change laws. Eg. patents and generic drugs.
2. Can the persistent objector argument apply when the less powerful seek to challenge rules? Is the persistent objector of relevance any more? Can practice of other states aligned with popular movements, central figures and justice related ideas, create international law? Self-determination; the ending of apartheid in South Africa; torture and Amnesty International.
3. Creating and Dismantling law. Prohibition against the use of force. The creation of exceptions. Humanitarian intervention as an exception. The preventive use of force against terror. Use of force against undemocratic governments. The Bush doctrine.
4. Hegemonic creation of custom is not always a possible project. Opposition will be easily mounted when an outcome is not desired. Investment treaties as customary law.
5. Treaties: Multilateral treaties. Now getting usual way of quick international law making. This despite the efforts of the US to keep out. But, some multilateral treaties do not make it because of opposition.
6. Efforts at creating a Multilateral Agreement on Investment. Opposition of the NGOs. First instance of a global action against making of laws that were favourable only to one group of states and actors. The emergence of NGOs as actors.
7. The notion of an international law from below. That people could organize themselves across global frontiers and ensure law that is favourable to the interestsof the environment and global development than to the few with power.
8. The role of the General Assembly Resolution. Democratic law making. Speedy law making.
LECTURE ON 18 FEBRUARY 2013
The Relationship between International Law and Domestic Law.
1. Monism and Dualism. The theory of incorporation v. the theory of transformation.
1a. Third idea that hegemonic power drives its own preferences through articulation as international law into domestic legal systems.
The German Border Guards’ Case.
Incorporation. In the common law, customary international law is incorporated in the common law. The common law changes when customary international law changes.
Trendtex v Central Bank of Nigeria;
R v Keyn
(1876) 2 Ex.D 63. Treaty on the other hand is different. It must be transformed by legislation into law in common law jurisdictions.
4. Monism would bring about a global law if accepted.
5. Trend towards Monism and Resistance to the Trend.
6. Bangalore Principles on Judicial Conduct. http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf.
Teo v minister for Immigration
Mabo v Queensland
8. India. Vishaka and Cedaw.
9. US. Clash between Justice Breyer and Justice Clarence Thomas; Democratic legitimacy argument. Homosexuality; Abortion; Capital Punishment. For Singapore: For Singapore, see Yong Vui Kong v Public Prosecutor and another matter .
LECTURE ON 5th March 2013
(Please note that you must settle the subject of your research paper with me before the end of next week. You must then arrange to see me starting from 11the March. I will state how this works in class. Also, presentations will be made in class on 5th March by Shafeeah, Shellyand Harleen. I will send the paper on which Shelly and Harleen are to make presentations by e-mail).
JURISDICTION OF STATES
1. Traditional law stresses territoriality as the main basis of jurisdiction, with nationality, protective and universal jurisdiction as additional criteria.
2. Given this framework, the question to determine is how globalization has effected changes to the existing model.
3. Firstly, the hegemonic power will extend its jurisdictional scope extraterritorially, particularly in economic matters as well as in security areas. In the economic area, we see the United
States extending extrateritorial jurisdiction in antitrust matters, securities fraud, etc. on the basis of the effects doctrine. It does so in the security sphere on the basis of the passive nationality principle. It does so in the human rights sphere, through the Alien Torts Act. The Kiobel Case still to be decided by the US Supreme Court.
4. On newer crimes, such as e-marketing frauds, money laundering, electronic transfer frauds, the chances are that the United States will lead enforcement.
5. New regulatory institutions will have to be set up to deal with newer phenomenon relating to security, health and such matters. The US will be a leader of these institutions and will bring about the norms according to which these institutions will function. Eg. seizure of terrorist assets.
6. But, independently of the United States, there is movement particularly in the human rights shphere to ensure that crimes against humanity are prosecuted.
LECTURE ON 12th MARCH 2013
State responsibility is a crucial test of international law’s claim to being law. The extent to which an area of the law has effective machinery of enforcement when breaches occur is the test of its quality as the law. One would think that in a globalized world, the law that governs it would be effective.
We have seen that this effectiveness is achieved in several ways. These include: incorporation of international law into domestic law and enforcement of the law as if it is domestic law; creation of regimes in the context of which the law is enforced through dispute settlement mechanisms (WTO) or other institutions where mutual interests and exclusion work to ensure that laws are obeyed. A third method is that an order is kept as desired by the hegemonic power through the extraterritorial enforcement of its laws. These extraterritorial means would intrude into many areas, such as human rights.
But, these are peripheral means. One may even say that an international lawyer is saving face by clutching at these instances. Are there direct ways in which international law imposes responsibility on states or on individual actors? Is responsibility on individual actors more important, states being just impersonal entities?
The subject has also hitherto been discussed in the context of a specific problem of foreign investment flows and their protection. International law has seldom discussed responsibility for the violation of the laws of war by states. First, we look at state responsibility for injuries to aliens. It is a subject that concerns globalization directly. In the past, order was kept through gun boat diplomacy, now through the law.
Here the law was involved in a tussle between the developed states (US and Europe) and the developing states (Africa and Asia).
Here the law was involved in a tussle between the developed states (US and Europe) and the developing states (Africa and Asia).. An attempt at the solution to this tussle was the signing of over 3000 bilateral investment treaties and several free trade agreements. Just this week, there is being negotiated a Trans Pacific Pact (TPP) which will bring together a very large area of the world, the US, Peru, Chile, Mexico, Canada, Brunei, Singapore, Malaysia, Vietnam into a trade and investment pact.
As far as obligations in these investment treaties are concerned, they are enforced by unilateral arbitration brought by an investor and there have been 465 different arbitrations so far.
A tussle has developed at the law so created to ensure the protection of large multinational corporations. The Philip Morris Case and the Elli-Lilley Case. NGOs have entered the field to protest at the privilege given to multinational corporations in these treaties.
The other development is that the International Law Commission has codified the rules on state responsibility. These relate only to the codification of the secondary rules in the hope that primary rules would come to be stated when the secondary rules are applied. The episode indicates the difficulties in formulating rules in this area.
But, the international law on responsibility of individuals has burgeoned in recent times, suggesting an optimistic possibility of sanctions against breaches of important aspects of the laws, particularly those relating to human rights and violations of the laws of war. Nuremberg principles to the trials of war crimes. The next phase is the recognition of the rules of complicity. Is this victor’s law only?
!9 March 2013.
USE OF FORCE.
The structure of the Charter is clear. No force (Article 2.4) Except in Self Denfence (Article 51). Breach of Peace under Chapter VII .
But, revival of customary principles and contrary practices.
Intervention at invitation. (Czechoslovakia, Hungary, Grenada, Vietnam).
Humanitarian intervention. (Kosovo; but Bangladesh, Cambodia, Uganda)
Promotion of democracy (Haiti, Dominican Republic) Wars of national liberation.
Dismantling of the force of Article 24 and reviving the just war doctrine?
Notion of anticipatory self-defence. Six Days War. Oil Platforms Case.
Armed bands. Cumulative events. Is there a right of self-defence? Nicaragua Case.
Wide notion of Preemption. Ensure an absence of a politican vacuum so that the intervening state is kept safe- The Armed Activities in the Congo Case.
Bush Doctrine of Preemption.
The old doctrine as political interference.
The new instances Kosovo, Iraq, Libya.
Responsibility to protect: is it a wolf in sheep’s clothing?
. The views of India and China. Indian practice as to use of force. Use of self-defence continuously. Hyderabad, Kashmir, Goa, Bangladesh, in Sri Lanka; Maldives and Mauritius.
Use of force still an open issue despite years of development.
90% OF THE MARKS WILL BE GIVEN ON THE BASIS OF A PAPER ON A SELECTED TOPIC CHOSEN IN CONSULTATION WITH THE LECTURER.
10% OF THE MARKS ARE GIVEN ON THE BASIS OF CLASS PARTICIPATION WHICH WOULD INCLUDE PRESENTATION OF THE PAPER TOPIC
AS WELL AS CONTRIBUTIONS MADE DURING CLASS.
THE DATE ON WHICH THE PAPER IS DUE - TUESDAY, 16 APRIL 2013 (9AM).
PLEASE NOTE THERE WILL BE NO CLASSES ON 22 JANUARY 2013.
THERE WILL BE TEN CLASSES IN ALL.