GLOBALIZATION AND INTERNATIONAL LAW
2015/2016, Semester 1
Modular Credits: LL4022V ( 5 ) / LL5022V ( 5 ) / LL6022V ( 5 )
Globalization relaeses forces within the international community which seek to harmonize the laws but also to ensure that the preferred interests of hegemonic leaders are promoted. In this vision, the law, particularly international law, become an instrument of power which is used in order to bring about outcomes desired by the more powerfule states of the world. This coures studies the major areas of international law in the context of globalization, the assertion of normative rules by the hegemonic power and resistance to such rules through assertions fo justice based norms.
NUS Compulsory Core Curriculum or its equivalent
In the first six weeks of the course, the foundation areas of international law will be looked at while developing themes relating to globalization. These will be done through lectures. in the second half, there will be student presentations on five specific areas. The areas selected are in the Lecture Outlines.
The lecture outlines are contained in the workbin under files.
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).
The aim of part one of the course is to acquaint students with the general principles of international law so that they could use them in the study of the more specific areas covered in Part Two of the course.
CHANGES RESULTING FROM GLOBALIZATION : THEIR IMPACT ON INTERNATIONAL LAW.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
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.
1. 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.
1. Power of force vs. power of moral argument and justice.
1. Power of non-hegemonic states to make law.
1. 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.
BIBLIOGRAPHIC SOURCES FOR THE LECTURE.
A good general treatment of the sources of law can be found in the textbooks. Dixon, International Law; Harris, Cases and Materials on International Law; Brownlie on International Law. The two leading cases on custom are the Anglo-Norwegian Fisheries Case and the North Sea Continental Shelf Case. These cases are in Harris. It would be good for you to read the Casebook or the textbook on Sources.
The rest are sources I used. I cannot expect you to read all or even any of them, unless you are writing the paper on the topic. I only indicate the leading texts on each subject I touched on. You must be aware of the extensive literature in the area.
The view that law functions in regimes, is taken from the international relations theory on regimes. A good treatment of the regime theory is to be found in Rittberger, Regime Theory and International Relations (OUP, 1993). The notion of constitutionalism has a heavy amount of literature. The leading writers are European scholars. A sample is Anne Peters, "Introduction-Global Constitonalism from an Interdisciplinary Perspective" (2009) 16 Indiana Jl of Global Legal Studies 385.
The function of power in international law has many works. A good work is Michael Byers and George Nolte, US Hegemony and Foundations of International Law (CUP, 2003).
The Relationship between International Law and Domestic Law.
POWER AND JUSTICE AS OPPOSING FORCES IN INTERNATIONAL LAW.
1. The Realist theory of international relations emphasises power as the basis of foreign relations. In this case, international law becomes an instrument of power. Sovereignty of the state is emphasized.
Dicta in the Wimbledon Case that a state can assert any principle to follow and only such principles as to which it consents bind it is a basis of the statement that international law is based on sovereignty.
2. The realist theory was stated by EH Carr, Twenty Years Crisis and Hans Morgantheau, Politics Among Nations. They argue the futility of establishing an international order as powerful states will always break such order if their national interests suit them.
3. The hegemonic state will impose its preferred principles as law on the world. Thus, rules supported by power become cloaked as law and are regarded as binding. The hegemonic leader of globalization thus makes law for the world.
4. Competing theories are liberal theories bent on structuring a better world. They are based on moralistic arguments based on the need to eradicate poverty or promote peace
5. Justice based views drive human rights law and environmental law and other new areas of international law. There is a tension between realism and liberal notions.
6. Liberal theories can also be used by the realist state to justify its actions.
One way in which a hegemon will use instrumental international law is to insist on it being transferred into domestic law. Thus, there is the insistence that TRIPS becomes part of domestic law.
Liberal theories will argue that the doctrines they support are automatically part of international law. So, the reception of international law into domestic law becomes relevant. The realist will argue that not
all international law is part of domestic law whereas liberals will normally argue to the contrary.
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.
Somersett’s Case.(1772) There is a debate as to the influence of a black girl adopted by Lord Mansfield on the way Mansfield decided the slavery cases.
There is also a recent film on the subject.
2 (a) Ius Cogens principles as part of domestic law. Prosecution of war criminals. Liability of Germany for forced labour in Italy during World War II.
The Ferrini Case in Italy. (2004).
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.
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;
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 Texas v Lawrence. For Singapore, see Yong Vui Kong v Public Prosecutor and another matter .
JURISDICTION OF STATES
Jurisdiction is an important subject for globalization. The hegemonic power will act in two ways. First, it will seek to extend its own jurisdiction over the global markets and control other activity, very much the way the British did in the previous age. The second, it will control institutions that increaingly regulate the different incidents that are the hallmarks of modern globalization such as , financial institutions. Because of its overwhelming superiority in technology, its control over such areas as the internet, e-commerce, etc. are assured it. So, it is necessary to have a look at the conventional rules on state jurisdiction before venturing out into the modern areas affected by the subject.
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.
Universal Jurisdiction. Piracy and Slavery.
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. Kiobel v United States.
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?
PART TWO: INDIVIDUAL TOPICS
1.GLOBALIZATION, THE ROLE OF MULTINATIONAL CORPORATIONS AND PRIVATE POWER
What is the role of the multinational corporation in globalization? Why is it that there are no norms controlling the multinational corporation? What possible rules could be made to ensure the liability of multinational corporations in terms of international law? Is it true to say that international law avoids scrutiny of multinational corporations because of their power and influence?
2 GLOBALIZATION AND GLOBAL JUSTICE.
Global inequality: How can international law deal with it? Are patent standards for drugs just? Will global governance that has uniform standards of trade and investment promote the rule of law and bring about governance standards that are just? Is there globalization from below correcting excesses of the powerful? Is there a movement towards global governance? Would such a movement reflect power or justice?
3 HUMAN RIGHTS ISSUES IN GLOBALIZATION
Do ideas of globalization erode social and economic rights? Is terrorism traceable to globalization? Are the standards of accountability through international criminal law a way of ensuring compliance with human rights laws?
4.THE DARK SIDE OF GLOBALIZATION: MONEY LAUNDERING, HUMAN TRAFFICKING, ETC
What are the harmful effects of globalization and how can they be prevented?
5.USE OF FORCE. AND NEW TYPES OF WAR.
Can old rules on the use of force cope with new types of war? Is there a need for humanitarian intervention? Is responsibility to protect humanitarian intervention in new guise?
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