TopGLOBALIZATION AND INTERNATIONAL LAW
LECTURE TOPICS - please note that that the topics below are subject to change.
In the first half of the semester, we will deal with what may be regarded as the general part of international law. Obviously, some basic knowledge of international law is assumed. This part will largely consist of lectures though you will be required to participate when asked to do so or be assigned distinct topics to speak on. Class participation carries marks.
The areas covered would be:
1. The History of International Law in the Context of Globalization. Hegemonic International Law and Globalization.
2. Sources of International Law. Are sources employed to ensure national interests? Or are they based on precepts of natural law? Is law made only by states? Is the law a reflection of hegemonic interests? What is the role of private power in the making of law?
3, The Interaction of International Law with Domestic Law:
This is an important area. The values of the newly integrated world become to be received through legislation based on international convention. Eg. Elimination of Discrimination against Women. There is also a transference at the same time of instruments at the international level which are made through hegemonic power. Eg. in the area of intellectual property.
The normal rule that the jurisdiction of a state is confined to the territory of the state cannot be maintained in a globalized world. Acts taking place outside jurisdiction have an impact on the state (eg. internet crimes). It is necessary for a state to reach out and control such events. What are these events? How much of extraterritorial control is permissible?
5. State Responsibility.
Primarily, in modern times, state responsibility arises in respect to foreign investment and the harbouring of terrorists. The different problems in this and other areas are explored.
After covering these conventional areas of international law in the light of developments that could be ascribed to globalisation, we shall look at specific topics which have been affected by globalisation and deal with the controversies surrounding them. Additional reading will be indicated for every class. Primarily, it will centre around Harris. The idea is to first get the principles of international law and then consider the impact globalisation has had on them. The first half of the course will involve such a consideration. In the second half, we will consider five areas in detail. These will focus of the impact globalisation has had on these areas. These areas will be : jurisdiction; international trade, focusing on intellectual property and services: foreign investment; human rights; and the use of force. Thereafter, each student will select a topic on one of these areas and will write an essay on it for assessment. This assignment will be written under supervision and constitutes the examination for the course. It is due on the last day of the week before the examinations begin.
As stated, the examination will be by a paper of no more than 5000 words written on an area related to the five topics. Each student will have to make a presentation of her paper on the date assigned for the topic. Others must be prepared to question the presenter or raise issues relating to the presentation. Negative marks will be given for non-participation in class. The topic for the paper could be settled at anytime through consultation with the teacher. Thereafter, continuous consultation is encouraged in the course of writing the paper. You must arrange to meet with the teacher at least once prior to submitting the paper.
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 order. 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 right 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.
Tony Anghie, Imperialism, Sovereignty and the Making of International Law (Cambridge University Press, 2005).
IS INTERNATIONAL LAW TRULY LAW.
The positivist doctrine. The emphasis on sovereignty. Typically English doctrine. John Austin and law as command of the sovereign issued to a definite people with a threat of sanction. International law does not qualify.
Enables international law to be explained as involving self-limitations as sovereigns can have no higher law making authority.
The Theory cloaks colonialism and other misdeeds of major powers on the rationalization that there is no higher law.
The resurfacing of the theory during the Bush administration.
Ties in with the realist explanation of international relations. Every state, particularly the hegemonic state, acts in pursuance of its national interests and cannot be constrained by international law. In the alternative, it shapes the law according to its interests.
The major competing theory is natural law. We saw Vittoria and Grotius seeking to base international law on natural law. It is questioned whether they were doing an honest job or twisting natural law to suit their interests.
International law is constituted through creation of identities and assertions of moral propositions. The constitutive theory.
Significance of the law of cooperation. But, again, is there a hegemonic leader of this law of cooperation.
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
is a horizontal order based on the equality of states. But, a hegemonic state can convert this order into a vertical order by (i) controlling institutions established to administer sectors of international life (ii) by applying its laws extraterritorially.
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 diministed 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 (Harris, Chapter Two)
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.
2. Custom: Distinction between usage and custom. “Constant and uniform usage accepted as law” necessary for custom to be proved. (The Asylum Case). Need for an opinio juris.
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.
7. Treaties: 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.
9. 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 civilized nations, 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.
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.
2. Monism. Somersets Case .(1772)http://en.wikipedia.org/wiki/Somersett's_Case
3. Dualism: R v Keyn (1876) 2 Ex.D 63.
3. The Pinochet Case. The idea that customary international law is received into English law. When customary law changes, English law changes with it.
4. Treaties do not become law unless transferred into domestic law by legislation.
5. Change is effected through international law. Changes taking place in customary international law automatically part of English law. Trendtex v Central Bank of Nigeria.
Trend towards Monism and Resistance to the Trend.
1. Bangalore Principles on Judicial Conduct. http://www.unodc.org/pdf/crime/corruption/judicial_group/Bangalore_principles.pdf.
2. Australia. Teo v minister for Immigration; Mabo v Queensland.
3. India. Vishaka and Cedaw. http://www.lawisgreek.com/indian-laws-for-women-the-historic-case-of-vishakha-versus-state-of-rajasthan Environmnetal protection.
4. US. Clash between Justice Breyer and Justice Clarence Thomas; Democratic legitimacy argument.
5. UK courts and the terrorism cases.
6. Strict construction in Singapore.
Human rights law and its impact on domestic law.
Personality in International Law.
1. States. Recognition of states. Not necessary. Status of Taiwan. Self-determinatiion and secession. The status of territories seeking secession.
2. International Institutions. They have personality to the extent necessary to carry out their functions.
3. Individuals. The movements in human rights and humanitarian law have created rights and duties in individuals. Here, the role of natural law theories is visible. The development of political rights, economic rights and group rights. Minorities, aboriginal people, etc. have personality in modern law.
4. Multinational corporations. Power as a factor in law. Their ability to be direct and indirect actors.
5. NGOs and other groups. The idea of international law from below in collision with international law from above.
For Singapore, see Yong Vui Kong v Public Prosecutor and another matter  3 SLR 489;  SGCA 20 Available in Lawnet.
The international system is horizontal- all states are equal. But, in a globalized world, dominant powers may seek to convert the system into a vertical system.
The need for this is great in a globalized world as i. markets are integrated and rules must be supplied; Iii threats to the system become uniform-terrorism;.iii there may be shared moral values eg human rights. Leadership may have to be given by states with capacity.
But, basic doctrine which avoids conflict is that no state may exercise jurisdiction outside its territory. Principle of domestic jurisdiction. Article 2(7) of Charter. It may be difficult to live with this rule in the modern world.
Lotus Case. Permissive for state to decide on whether the theory should be (i) active territoriality or (ii) passive territoriality. (rationale of Lotus; 1926).
(iii) Active nationality : person committing offence.(iv) Passive nationality: victim. Achille Lauro incident. Anti-Terrorism Act in US.(1986).
(v)Protective principle: currency; national security. (vi) universality principle.
The extension of the territoriality principle: The effects doctrine. Alcoa Case (1945). Hartford Insuranace v California. Protection of Trading Interests Act.
Woodpulp (1988) McDonnel-Douglas-.merger.
Export Control; Soviet Pipeline. Helms-Burton Act, trading with Cuba.
Here, principal user of extraterritoriality is the US. Also, in all the above instances, the US acts provoke hostility.
But, there may be instances where the international community may welcome US action. Eg. its efforts to control bribery, at least on the part of its own companies.
In other areas: Money-laundering; e-commerce frauds; drug trafficking, terrorism; US agencies alone may have the excess capacity to devote to policing these incidents globally as well as the inclination.
Internet jurisdiction. Again, extraterritoriality will be claimed by even small states. Singapore Computer Misuse Act. Internet pornography; internet gambling; defamation through internet; scuttling systems.
Alien Torts Act. Pena-Irala v Filartiga; Saro-Wiwo v Shell.
Universality Jurisdiction: Again, growth because of coincidence in values.
Piracy; (Malacca straits; slavery; Nuremberg principles.Genocide; war crimes, crimes against humanity. Rome Statute and the ICC.
. Immunity. No immunity for acts which are not governmental. Act of State.
1. Effective systems of law must have a concept of responsibility. International law has not yet developed a distinction between civil and criminal responsibility but only deals with delict as the wrong. The ILC attempted codification of the rules on state responsibility in the Draft Articles on Responsibility states for internationall wrongful acts.
2. Responsibility attaches to all violation of international rules creating obligations.
2a. Responsibility attaches to acts as well as to ommissions. Iran Diplomatic and Consular Staff Case.
2b. States cannot act except through officials. Attribution of liability is on the basis of the acts of officials, including those of sub-national actors, such as municipal corporations or state corporations.
3.Liability arises from omissions to act. The Corfu Channel Case.
4. It also arises where people who can be controlled by the state are not so controlled. The Nicaragua Case. The Taleban in Afghanistan. The rule is stated in Article 8 of the Draft Code.
5. State can aid or abet in the wrongfulness of the act of other states. Questio: Is the coalition of the willing responsible for the invasion of Iraq as help was provided the US.
6. Can there be responsibility for acts of insurgents in a third state (Nicaragua Case) or the acts of a seccessionist movement. Helping an insurgency by a third state.
7. Is there responsibility for the remote acts (Rainbow warrior) of agents? Is the rule extended to those over whom there is control? Multinational corporations; citizens; residents. Is there a duty to provide a forum for resolution of disputes? Alien Torts Act. Sex tourism. Football hooligans. Terrorists.
8 Responsibility for harbouring terrorists.
9. Defences: Force majeure; distress, necessity (Torrey Canyon)
10. Full reparation must be made.
11. Lawfulness of countermeasures. WTO Law on countermeasures.
12. Multiplicity of tribunals and the fragmentation of international law.
1.Expropriation Law. This was taken as the basis for illustrating rules on state responsibility. But, intensely contentious nature has made shift of focus to other international wrongs on the basis of which the Draft Code is made.
2. What is a taking of property? The concept of regulatory taking. Changing world. Reverse flow of funds. Sovereign wealth funds.
3. The issue of compensation for expropriation. The role of treaties.
4. Multilateral treaties.
5. The argument as to customary international law.
SECOND PART OF THE SEMESTER.
In the second part of the semester, students will make presentations on the topics they have chosen for their written paper. The paper must be written in consultation with the instructor. The topic must be approved before the second part of the semester begins. The topics are listed below:
Multinational Corporations in International Law.
Clearly the agents of globalization, the multinational corporation nevertheless finds itself in the curious position of not being directly subject to any system of law. This picture may be changing. The network of international soft law instruments, domestic legislation applied extraterritorially and transnational legal prescriptions is being built up to address concerns about multinational corporations. In particular, the violations of human rights and environmental standards are being addressed. It is possible to think of various issues regarding the control of multinational corporations and how they are to be addressed. Another fascinating topic is how the multinational corporations themselves create or shape international law to their advantage.
Trends in Human Rights.
Human rights had progressed towards the creation of a view that violations which are always internal to a state are matters of international concern. The classic situation was the ending of apartheid through universal condemnation. The evolution of the principle furthered globalization. But, it would appear that the rule is being dismantled. The war on terror led to the United States justifying many violations of human rights. Another phenomenon is the increasing number of secessionist struggles: Tibet, Xinjiang, Kashmir, Chechnya, etc. These are also being increasingly violent and their suppression involves much violation of human rights. Again, many areas of research are opened up as a result of these developments.
The Use of Force.
Various efforts had been made in the twentieth century to prohibit wars. But, exceptions to these prohibitions have progressively been made especially by hegemonic powers. The use of preventive force or the Bush Doctrine is so extensive that the prohibition has become redundant. How a new beginning can be made to restore the old prohibition remains a question.
Trade and Globalization.
The best illustration of globalization is the success of the WTO in integrating the world through common rules on trade and its intrusion into the two areas of intellectual property and services. This again opens up many areas for research, especially relating to the impact on developing countries. The Doha Round opens up the challenge as to whether the rules can be made acceptable to the interests of the whole world.
Issues of Human Security.
More recently, the transfer of concern in international law is from peace to human security. This transfers concern to eradication of poverty, the provision of health and welfare facilities and the responsibility of the international community to protect. The extent to which a right to development exists also is explored.
Impact on Domestic Law
One of the most promising ways of integrating the world through global rules is bringing about such uniform rules through the adoption of these rules in domestic law. The possibilities of globalization through such reception is the focus of this topic.